Posted on | April 21, 2012 | 16 Comments
This is a guest blog post by Noel Arnold. Noel is a partner at Philcox Gray & Co in London and sits on the Law Society’s Children Law Sub-committee and the Association of Lawyers for Children’s Executive Committee. The views expressed here are his own and do not purport to reflect the views of any other organisation or individual. Follow Noel on Twitter: @Children_Law.
Use of Independent Social Workers in Care Proceedings
I was fortunate to have been invited recently to the launch event of the publication of an important piece of research and one that is said to be the first of its kind. ‘The Contribution of Experts in Care Proceedings: Evaluation of Independent Social Work Reports in Care Proceedings’ is said to be a first because the role and value of independent social work (ISW) assessments and reports has not been the specific remit of any research project to date. Its aims were to first focus on the work of ISWs and the second to examine the impact of the work of ISWs on courts. In this blog piece ‘ISW’ will refer to independent social work, ‘ISWr to independent social worker and ‘ISWs’ to its plural.
The research team from the University of Oxford was headed by leading senior research fellow Dr Julia Brophy. If you can’t find time to read the entire research report, I can recommend the excellent Executive Summary. In essence the research was undertaken because of a number of concerns expressed from various quarters and over some time, but most recently in the interim report of the Family Justice Review. That report stated at paragraph 4.228 that:
“The Review has heard claims that family courts in public law proceedings are commissioning too many reports from Independent Social Workers. We are clear that Independent Social Workers should only be employed to provide new information to the court, not as a way of replacing the assessments that should have been submitted by the social worker or the guardian.”
Many felt that such comments were misleading as to the reasons why ISWs were instructed in care proceedings. Nagalro in its response to the consultation stated:
“The assumption in the review that the contribution of Independent Social Work expert witnesses duplicates that provided by local authority social workers is highly questionable, as there is a regrettable lack of research evidence on the ISW contribution to family proceedings…”
So now we have the research on ISWs and it tells us this (amongst other things):
- “The reasons why an ISW was instructed to assess a parent where there was evidence of a previous assessment by a local authority was because that assessment had not included this parent, or parent and a new partner; this was the reason in 43% of cases. In these circumstances the ISW does not ‘duplicate’ the local authority assessment, but adds information”
- “In 35% of cases a previous local authority assessment was contested by parents but most (27%) were contested on grounds of content; in just 4 cases (8%) parents contested a local authority assessment on grounds of lack of independence or human rights claims”
- “Findings do not therefore support views that ISW assessments routinely duplicate local authority assessments, adding nothing new. These were not like-for-like assessments: new people, changed/new circumstances were the driving forces”
- “The findings indicate that the independence and the skills of the ISW, and time to fully assess complex parents with a history of non-cooperation or engagement with local authorities are key benefits to the court of ISW assessments”
I agree with and welcome the report’s findings, which largely reflect my own experience of ISW assessments in care proceedings. However, as I listened to the presentations and discussions at the launch event I was interested in what could flow from the research. The findings of the research will likely be endorsed by many ISW practitioner and representative groups but in the words of Carrie Bradshaw, “Later that day, I got to thinking…” could there be even wider use of ISWs in care proceedings or should there be?
Care proceedings are about the best interests of the subject children. Their welfare is deemed to be the most important factor and the family court has to make often difficult and finely balanced decisions. Care proceedings are not formulaic and there is certainly no one rule (or even several rules) which can apply to every case. That is because the cases are so highly fact specific. One cannot look at the facts and easily predict an outcome as the circumstances may change: new family members put themselves forward to provide alternative care, breakdown in foster care placements during the currency of proceedings and parents may be able to demonstrate capacity to change and insight into concerns such that children can be returned to their parents’ care.
Professionals involved in care proceedings generally try to reduce the tension and hostility in order to conduct them in a less adversarial manner than other forms of civil actions. I agree that this must be correct however, I think sometimes that we forget that care proceedings are still litigation. By virtue of the nature of the proceedings there is an Applicant and there are Respondents and in most cases at least one of these is pitted against the Applicant. Why is that? Because the Local Authority application has made an application for a care order. What does a care order do? If made, it vests Parental Responsibility in the Local Authority and allows them to remove and accommodate the child where it sees fit (usually foster care). Naturally, parents don’t like the idea of their child being removed from their care and so they do see themselves as having to ‘fight’ against the Local Authority to prevent that happening. At a very basic level the core structure of care proceedings renders them adversaries.
Local Authorities apply for care orders because they are concerned for a child’s safety, welfare, development – or all three. Those concerns are directed to those who are caring for the child (usually the parents) and may involve allegations that the parents have caused the child a serious injury, abused the child, neglected the child or do not have the capacity to provide good enough parenting. In some cases there are no general concerns about a parent’s basic parenting capacity but rather the concerns might be about other things, such as the parent being able to show that s/he can remain free from substance misuse; avoid violent or harmful adult relationships; discipline a child in an appropriate way. There are many more examples of specific concerns/difficulties. In these cases the parent must try to persuade the court that the Local Authority has got it wrong: either the concern does not exist, has been exaggerated and so does not meet the threshold for local authority intervention or for orders to be made in respect of the child, or the parent has to show that s/he has addressed the concern to such an extent that it is no longer a valid concern.
Commonly there will be multiple issues and some concerns as to general parenting ability. The Local Authority has a duty to undertake a Core Assessment, that should comply with the ‘Framework for the assessment of children in need and their families’. One of the key dimensions to be addressed is parenting capacity. A core assessment has to be filed with the court with the Local Authority’s application for a care order. It is reported that in 40% of care proceedings, the proceedings commence without a core assessment being filed. It is usually the social worker allocated to the child who will complete the core assessment and so it is s/he who is informing the court of the parent’s difficulties in providing good parenting to the child.
Although a Local Authority may make an application without having a fixed view of the orders it will be seeking or the plan it will ultimately be recommending it is (anecdotally) increasingly common for Local Authorities to issue care proceedings only at the point where interim removal is sought. Whilst assessment reports should be balanced and deal with positives and challenges before conclusions are drawn, it must be remembered that in these cases Local Authorities are seeking to remove children from the care of the parents, or otherwise to justify the orders sought. Logically it must follow that the Local Authority assessment of parenting capacity is likely to illustrate difficulties and conclude negatively: if the parent’s care of the child was good enough, there is less likely to be a need for court proceedings.
There is lots of talk about how Local Authority social workers are expert and are best placed to make judgments about the child’s needs and the parents’ capacity to meet those needs as they work on the ground with the child and family. It is said that the court has the expertise of the social worker on these issues and so unless “the information is not already available through other sources” there should be no instruction of another expert to report on the same issues. [paragraph 42 of the Government’s response to the Family Justice Review]. It is probably fair to say that the social worker will know the child and family well and will be in a good position to assess and make conclusions about parenting capacity but these amount to one professional’s view and it is the parent’s inalienable right to disagree with the social worker’s view and to suggest that the social worker has got it wrong. That is litigation. That is what happens when a Local Authority seeks to remove a child from a parent and the parent does not want that to happen.
There may be understandable reasons for the parent not being willing to accept the assessment of the social worker as to parenting capacity. Parents will often see the social worker as the servant of the Local Authority which seeks to separate their child from them, and therefore as presenting an unbalanced view or one which supports the Local Authority’s application. The social worker may have only very recently become involved and so may have gathered information more from the social work files than any direct work/engagement with the parents. Or the social worker may have been involved for such a long time during multiple child protection case conferences (spanning years) and the parent believes that the social worker has not (through those social worker processes) supported, guided or assisted the parents to overcome any alleged difficulties. For all of these reasons, it may be fair for a parent to question the validity and strength of a parenting assessment presented to the court as professional evidence on behalf of the Applicant Local Authority which may seek an order endorsing removal of child from parent. Of course a parent may simply lack the insight to be able to acknowledge justified criticisms of their parenting or behaviour.
In times gone by parents may have been able to expect that the Children’s Guardian (CG) will undertake some direct social work with the family to assist the CG in formulating his/her own view as a social work professional, about what the Local Authority has said about parenting capacity and other matters that the court will adjudicate on. It is well recognised that CGs no longer have the time, support and managerial sanction to work with the family in the way that they perhaps used to. So where does this leave the parent? The parent can try and continue demonstrating through meetings with the social worker that their parenting capacity has improved or was originally misjudged, the parent can attend a parenting course if the Local Authority facilitates this and that may well assist the parent’s case (although it is not an assessment as such), and the parent can attend contact with the child where supervised notes of contact are produced and may show good interactions. All of those suggestions have evidential limitations for obvious reasons.
The Local Authority and child as parties hold their own in-house social work expertise. The parent cannot of course write his/her own parenting assessment from a social work practice perspective and even if s/he could, it would lack both independence and impartiality. Without an ISW assessment, the parent has, in my view, a great mountain to climb in order to put his/her case regarding parenting capacity. The beauty of an ISW instruction is that it is usually a joint instruction (even if not jointly funded) and the ISW is instructed as an expert witness to the court and is to be independent (in process and reporting) from the parties, including the party who is instructing the ISW or the lawyer who is the ‘lead’ for the instruction. The parent cannot guarantee that the ISW will say something in his/her favour or reach a conclusion different to the Local Authority social worker. What the parent can be assured of is that a detailed independent assessment will be undertaken and that will be presented to the court by someone who does not work for the Applicant in the litigation. This means that it is all the more possible that a negative ISW assessment report will be easier for a parent to take on board, and the parent may be more able to take a step back, take perspective and possibly consider alternative care options in positive way which was not possible before, free from the distracting concerns about Local Authority bias or the fear that Local Authority evidence will be constructed as a means to justify a pre-determined end (removal). If a parent can be given confidence in the process and can be taken along with the Local Authority so much the better for avoiding delay and for the family – including the child.
I suppose what I am ultimately suggesting is that more routine use could be made of ISWs for the benefit of care proceedings. When I think about other forms of litigation it is common for independent reports to be produced in pursuance of a client’s case against state intervention/interference. For example in immigration/asylum appeals, the Appellant will usually present his/her own expert ‘country’ evidence and assessments from medical and mental health professionals as to the impact of torture. In special educational needs appeals before the tribunal system, the parent may instruct his/her own educational psychologist, speech and language therapist or occupational therapist to produce reports to present to the tribunal a more detailed and notably independent assessment as to the child’s special educational needs. These may suggest that the child’s needs require more/better provision than that originally offered by the Local Authority in the statement of special educational needs provided to the child.
There are obvious resource issues but in my view, the family justice system should support fairness between the parties by more readily allowing ISW assessments which invariably assist the court’s own decision-making as they are detailed works. ISW assessments have the cloak of independence and so are more likely to be acceptable to a parent even where a conclusion is not what that parent really wants to hear.