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Child Protection in Court – Countering Oppressive Practice – Opinion piece by: Sasha Williams


“Oppressive: Adj:

  1. Of the nature of or characterised by cruel or unjust exercise of authority or power; unreasonably harsh; tyrannical.
  2. weighing heavily on the mind, spirits or senses; depressing.”

(Shorter Oxford Dictionary, 1993)

Is child protection practice oppressive or helpful?  CAFCASS announced this week that the number of care applications in a single month had exceeded 900 for the first time ever (CAFCASS, 2012).  This means that an increasing number of families and social workers will find themselves involved in the Court arena to determine who should have the legal responsibility for determining the future care of the children in the household.   The purpose of this piece is to question what the role of social work as a profession should be towards the escalating numbers of families brought before the Court, and to try and identify the ongoing role for social work within the Court arena.

Firstly, we need to explore the numbers carefully.  It seems to be agreed an increase in neglect related proceedings lies behind the relentless rise in figures rather than an increase in proceedings issued in response to allegations of physical or sexual abuse (CAFCASS, 2012).  While these increases may be partly due to proceedings being issued earlier than previously due to ‘the Baby P effect’ (Butler, 2012), there remain a large number of children whose needs are not being met under the present child protection system. Recent research indicates that a large number of the professionals surveyed consider the thresholds for neglect are still prohibitively high and prevent them intervening in cases where they suspect neglect is occurring(Burgess et al, 2012).  So, an initial concern is that the system we have to protect children from neglect is simply incapable of responding to a large number of children at risk from or experiencing neglect.  Vulnerable children whose needs are being ignored by society are certainly worthy of the description of ‘oppressed’.

Whatever the difficulties inherent in the concept of child neglect (and research indicates that social workers do struggle with it for a variety of reasons) (Gardner, 2008), Anthony Douglas of CAFCASS is correct: there is a “greater recognition of the appalling impact” of neglect on children (CAFCASS, 2012).  Research indicates that from before birth right up to legal adulthood, neglect can have catastrophic consequences on the physical, cognitive and emotional development and wellbeing of children (Horwath, 2007).  Yes, Matt Dunkley, Director of Children’s Services is correct when he says that we are increasingly aware of the ways in which domestic violence within the home damages children and the negative impact of drug and alcohol abuse on parenting (BBC News, 2012).  However, research has also shown that neglect is very strongly associated with poverty and social disadvantage (Dyson, 2008).  Poverty and social disadvantage also have potentially catastrophic consequences on children’s physical, cognitive and emotional development and wellbeing (CPAG, 2009).  Poverty must be a child protection issue.  If we present child neglect simply as something that bad parents do, and divorce it from the wider context of being correlated to the intolerable stresses visited on families suffering from multiple deprivations (Magadi and Middleton, 2010), then we are indeed being oppressive, especially in the current climate of rapidly diminishing social and financial resources for vulnerable social groups.  We cannot as a society remove the safety nets for people and then blame them for the mess they cause as they hit the ground.  However complicated and unpopular it may be, social work as a profession must stand alongside the marginalised and the demonised and demand better for children, even as individual social workers remove individual children from the intolerable situations in which many are forced to live (BASW, 2012).

The increase in the number of children subject to care proceedings is likely to mean that an increasing number of social workers have to negotiate court proceedings.  As an ex-family solicitor who also qualified in social work, I was increasingly aware of how oppressive the legal arena is for many – clients and professionals.  A great deal can and should be said about the experience of bewildered clients trying unsuccessfully to negotiate the alien language, routines, demands and paperwork generated by the care proceedings process.  Social workers are well placed to understand just how far removed the lives of lawyers, judges and court experts are from the lives of those families they are called to represent, analyse or pass judgment upon.  What was also clear both during my time as a family solicitor and since being involved with social work students at University is how oppressive many social workers also find the Court process.  Social workers have said that when in Court they often feel that they and their expertise is on trial and considered inferior to experts from other professions (pediatricians, psychologists, etc.), and they feel deskilled, trivialised and dismissed when giving evidence.  They are right to feel this, under the adversarial system it is the duty of those representing the parents/ carers to test the social worker’s evidence, and deliberately and skillfully do all that they can to try and undermine or discredit the social worker’s record of events, expertise and conclusions.  This is oppressive and can be a personally and professionally destructive experience for the social workers involved.

Perhaps because of the hostile and adversarial environment of the Court, social workers often seem to feel that social work is something that takes place outside the Courtroom, and that issuing of proceedings is a way of marking the failure of the social work process with the family.  I would argue to the contrary, that social work and social workers can and do have a very valuable and helpful role to play within Court proceedings.   What follows are suggestions for continuing good social work practice within the Courtroom based on my own experience and that of others.  I have seen good and bad social work practice in care proceedings.  It does make a difference.

1.  Respect for the child’s carers/parents

A key social work value is the respect for human dignity and for human beings.  Social workers are expected to place empowering individuals and forging partnerships with them at the heart of their practice.  It is important not to lose sight of this during Court proceedings.  Although the local authority and the parents/carers disagree over whose wishes for the child’s future should prevail, this does not mean that those holding different views about the child’s best interests are ‘the opposition’.  Social workers should continue to draw upon their detailed knowledge of the family and the multilayered and complex relationships that they have built up with the family rather than adopting the dangerously simplified categorization of ‘them and us’.  Resisting being co-opted into the adversarial mindset of the Court system can be a major challenge for social workers, but resistance is vital to prevent oppressive practice.

2.  Reflective practice

Reflective practice and supervision are enormously important.  Particularly where neglect is involved, social workers may have been involved with a family for a considerable time and have invested a huge amount of emotional energy and resources on trying to keep the family together.  When that effort is no longer considered to be the best for the child Court proceedings are issued.  The emotional effect of this may be enormous.  The social worker may be dealing with their own feelings of failure and inadequacy (most social workers come into social work to try and preserve families and removing children is always a very painful thing to do).  It is likely that the family with whom the social worker has spent a great deal of time trying to nurture good and productive relationships express their feelings of anger and betrayal.  The social worker may also feel angry with and betrayed by the family in whom so much time and energy has been expended to no apparent benefit. In addition, the social worker may be apprehensive about the legal process and overwhelmed by the demands in terms of time and paperwork that care proceedings will require from him/her.  These feelings, if unrecognised and unaddressed may lead to oppressive and unprofessional behaviour from individual social workers towards the people they work with, and it is all too easy for those of us with power to be censorious and judgmental about the families whose children are being ‘saved’.  Child protection proceedings are not about finding fault, they are about establishing what has happened and what is in the best interests of the child for the future.

3.  Honesty throughout the relationship with the family

Honesty with clients from the outset of social work involvement with them is vital.  One of the cornerstones of person-centered therapy is the need to be congruent: to be effective as a helper the outer self needs to reflect the inner self.  If you have been clear and honest with the family at all times about their strengths and your concerns, then they will have less reason to feel betrayed by the conclusions you come to about the child’s future.  If however you have not been honest with the family about your concerns as you worked with them, then for them to suddenly be confronted with your ‘real’ opinion will be shocking, oppressive and an abuse of the social work relationship.

4.  Fairness/ an acknowledgement of strengths as well as weaknesses

Just as when one is working with and supporting a family, it is very easy to try and focus solely on their strengths, so when one issues proceedings, it can be very tempting to focus solely on the weaknesses of the family.  Rather than the evidence being interpreted in the most favourable light, it is now reinterpreted in the most damming way.  It is natural for social workers to wish the Court to understand how truly awful things are and how important it is to get a Court order to protect the children.  It is also natural for social workers to paint the situation in a bad light in order to see off any minimising challenge from lawyers of the parents or carers.  However, it is important that the Court and the parents/ carers are informed of the strengths within the family as well as the weaknesses, and where progress has been made it is important to acknowledge that.  A report that is fair and evenhanded is more likely to be accepted as such by other professionals and by the parents/ carers.  An unbalanced report is without question oppressive.

5.  Competence and professionalism

At times child protection social workers seem to be their own worst enemies.  Social work competence is vital for those involved in the Court proceedings to have a fair hearing.  The social workers role in Court is threefold:

  • To explain to the Court what has happened in the child’s life
  • To give an analysis of what the child’s needs are
  • To explain why it is in the best interests of the child for the Court to make the order the local authority is seeking.

This means that the social worker’s statement and evidence needs to contain detailed accurate factual information about what has caused the social worker to be concerned about the child, and the basis on which the social worker has come to the decision to initiate care proceedings.  This means that social workers need to go through their records carefully and try and explain for the Court what their thinking process has been and why.  Without this degree of analysis and care, inconsistencies and inaccuracies may not be picked up on until the social worker finds him or herself questioned on them in the witness box.  Legal credibility depends on social workers being detailed and thorough and presenting their analysis together with the factual and theoretical basis that informs it.  Conclusions without the evidence to explain how those conclusions are arrived at are meaningless at best and oppressive at worst: parents and carers can neither learn from, accept or challenge the social worker’s analysis if they are unaware of the basis on which it is made.  Social work and social workers need to explicitly draw on their own professional knowledge base to explain their practice and their recommendations to the Court, to the parents, and later to the adult child who chooses to try and find out something of his/her own history.  The social worker has the position of being the chronicler of the history of a family in crisis.  What is recorded in statements by social workers can continue to exert an influence on families and children long after the original proceedings are over.

To return to the original question – is child protection practice oppressive or helpful?  There is no question in my mind that within the Court arena it has the capacity to be both.  Social work statements (particularly written statements) stand as a monument to the often lengthy and painstaking work that social workers do within families.  They also testify as to what has gone wrong for individual families and why.  Unlike other experts who may be appointed by the court, social workers are not confined to looking for dysfunction or disease within individual family members, they have seen and worked with the family in context and can present a whole picture of the children’s lives and needs rather than a decontextualized and fragmented one.  As such, the social worker’s statements are hugely important documents.  Social workers need to be supported in getting the time and effort that a statement requires to be effective, fair and helpful to all concerned.  A document that has been rushed, is ill-considered, inaccurate, incomplete or unfair, which is not sufficiently detailed about the social workers analysis of the situation or the facts on which that analysis is based, or which simply does not make sense gives a bad impression of the professionalism of the social worker and the social work profession.  Worse still, it deprives the child and the family of an effective professional social work voice within the Courtroom.  For those who value social work and social workers, that outcome is unacceptable.

Sasha Williams  (@sasemwills) is a PhD researcher interested in the area of child neglect.

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References:

BASW (British Association of Social Workers) (2012) “Rise in referrals necessary, but more money needed to cope” (9th February 2012) available from https://www.basw.co.uk/news/rise-in-referrals-necessary-but-more-money-needed-to-cope/ accessed on 10th February 2012.

BBC News (2012) “Councils refer record number of children into care” (9th February 2012) available from http://www.bbc.co.uk/news/mobile/uk-16958373 accessed on 12th February 2012.

Burgess, C., Daniel, B., Scott, J., Mulley, K., Derbyshire, D., and Downie, M. (2012) Child Neglect in 2011: An annual review by Action for Children in partnership with the University of Stirling available from http://www.actionforchildren.org.uk/media/2760817/childneglectin2011.pdf accessed on 8th February 2012.

Butler, P. (2012) “Fear of the ‘next Baby P’ drives increase in children taken into care” in The Guardian (9th February 2012) available from  http://www.guardian.co.uk/society/2012/feb/09/children-care-applications-increase-analysis accessed on 9th February 2012.

CAFCASS (2012) “Cafcass care statistics January 2012” (8th February 2012) available from http://www.cafcass.gov.uk/news/2012/january_care_statistics.aspx accessed on 8th February 2012.

CPAG (Child Poverty Action Group) (2009) Ending Child Poverty: a manifesto for success London: CPAG

Dyson, C. (2008) “Poverty and child maltreatment” available at http://www.nspcc.org.uk/Inform/research/briefings/povertypdf_wdf56896.pdf

Gardner, R. (2008). Developing an Effective Response to Neglect and Emotional Harm to Children, UEA and NSPCC.

Horwath, J. (2007) Child Neglect: Identification and Assessment,  London: Palgrave Macmillan

Magadi, M. and Middleton, S. (2010) Severe Child Poverty in the UK, London, Save the Children.

Shorter Oxford Dictionary (1993) edited by Lesley Brown, 4th edition, Oxford: Clarendon Press

 

Discussion

One thought on “Child Protection in Court – Countering Oppressive Practice – Opinion piece by: Sasha Williams

  1. It still surprises me that after over 40 years of a different system of child protection through the Children’s Hearings system in Scotland, that focuses on need not deed, and international evidence from countries like France, that employ an investigative judicial system rather than adversarial court system, that more advance has not been made in the English Court system to protect children. The reality is that when ‘investigation’, that may be supported by evidence from education, health and social services is undertaken by another professional (in Scotland it is the Reporter) it leaves the way open for the social worker to establish a working relationship with children and families that has not become bogged down in that inherent adversarial approach and can then go on to be the base of the relationship that will lead to change.

    Posted by Ruth Stark | February 13, 2012, 6:09 pm

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