Is the legal tail wagging the social work dog?

Mary Baginsky, Senior Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce, introduces the paper given by Martha Cover recently at the Unit. Dr Baginsky convenes the seminar series where the paper was presented.

We were delighted that Martha Cover led our latest seminar in the Contemporary Issues & Debates in Social Work Education, Research and Practice on 18 January 2022.  Martha is a very experienced child law barrister who has considerable experience representing parents and children in cases of serious injury and death. Until recently she was joint head of Coram Chambers.

Martha writes on this subject, and regularly gives television and radio interviews and has given evidence to parliamentary select committees.

She was legal aid barrister of the year in 2019 and has recently been given an honorary doctorate in Law by Queen Mary University of London.—Mary Baginsky

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Is the legal tail wagging the social work dog?

Martha Cover

Martha Cover

Martha Cover

What I do not propose to do in this talk is to enter into the debate about whether the “right” number of children are in care, or whether there are too many or too few – or whether they are in fact the “right” children. To set the scene, as of March 2021, there were 80,850 children in care in England. The great majority were the subject of section 31 care orders rather than voluntarily accommodated under section 20 Children Act 1989.

I want to travel upstream from that and ask the question: with legal processes and court requirements becoming more dominant, is there an unintended consequence that social work is now focussed from the start on court requirements, and proving the section 31 threshold? If that is right, then is there any room in frontline social work for open and supportive relationships with children and their families?

The idea for this topic germinated when reading some government research following the institution of the 26-week time limit for care proceedings, introduced by the Children and Families Act 2014.  In August 2015, the Department for Education published “Impact of the Family Justice Reforms on Front-Line Practice: The Public Law Outline”. The research examined the impact of the changes in the PLO on front line practice. It quotes a social worker:

“As soon as we have a case that we know may meet threshold, straight away we start doing pre-proceedings work- family group conference, viability assessments, more comprehensive chronology, exploring extended family members,…. doing any assessments that need to be done……”

The research authors comment:

“Another benefit identified in front-loading the work during the pre-proceedings stage is that social workers have gathered a range of evidence that has already been quality-assured by managers (including the case manager) and this can then be used as evidence in court.” (my emphasis).

The focus from the beginning is on preparing for court before the 26- week clock starts ticking. Another social worker said this “What is great is having legal planning meetings at the outset and discussions about what to go for and have we got the information ready.” (my emphasis).

A social work manager commented:

“The reforms have had a secondary impact on recruitment- previously we recruited people who can work with children and families- now we are keen on people who can write and write well. We welcome a newer brand of social workers who are able to write better than existing social workers.”

The authors of the DfE research comment approvingly that this is a positive change in recruitment practice.

Once threshold is in sight, social work and process-led thinking seems increasingly to be driven by the court process, and getting evidential ducks in a row before issuing, which starts the 26-week clock ticking. The focus is no longer on working with and supporting the family outside the framework of care proceedings, and thereby possibly avoiding proceedings altogether.

With the new public law guidance issued by the President’s Office in March 2021, the requirements placed on the local authority lawyer and social workers are even more comprehensive and reach further into advising on pre-proceedings social work tasks and approaches.

These new protocols are expressly designed to help local authorities to prepare cases properly before issuing the section 31 application. In the year ending November 2020, a startling 66% of all care cases were short notice applications. It is likely that the majority were therefore without adequate preparation for court. The President’s guidance is intended to avoid this, and also to lead cases away from court wherever possible:

“Care proceedings are the option of last resort. The PLO pre-proceedings process represents a genuine opportunity to work closely with families by offering help and support to address their recognised needs, in a bid to negate the need to issue care proceedings.” (Appendix E, Public Law Working Group Best Practice Guidance, March 2021)

Furthermore, the new guidance makes it clear that the ability of an authority to satisfy the section 31 threshold criteria is not the be-all and end-all:

“The fact that legal threshold is or can be met does not always mean that it is right or proportionate to arrange a legal planning meeting, proceed to pre-proceedings, or instigate care proceedings… Despite threshold being met, thorough consideration should be given to what can be done differently to achieve progress without escalating to the PLO process…” (ibid.)

This is sound advice. Inevitably, pre-proceedings social work is carried out under the looming threat of care proceedings, and a legal letter has already been sent to the parents, warning them of the consequences if there is no change. Can the social worker build an honest and open relationship with the family under this sort of pressure? She must always have one eye on the need to collect evidence and build the case against them, and they know it. This is not what she became a social worker to do.

This is no criticism of the new court guidance, which is clear and comprehensive, and repeatedly emphasises the need for good social work relationships being built with the child and the family. It is a further attempt by the family justice system to address a vacuum in local authority planning for children at risk. It is also designed to deal with the growing burden of care cases and a continuing lack of preparedness in many local authorities. Its intent is that every care application brought to court is, in the words of the President of the Family Division, Sir Andrew McFarlane, “match-fit”. But it is based on the assumption that all reasonable attempts to help and support the family will already have been made before the pre-proceedings stage is entered into, and in so many cases this is not happening. The only clear structure for case planning and work which is evident on those cases is the legal process and the protocols developed by the courts.

When the history of contacts between the parents, the child and the local authority is disclosed in the care proceedings, one usually looks in vain through the case records for the actual help offered, and for the time spent by one social worker in building knowledge and relationships. What has actually been done to get to know them, to help them, rather than simply to assess them? What is the good of the assessments if those assessments recommend services or support which are not available? If court proceedings, and the pre- proceedings stage, and even pre-pre-proceedings, are the main or only focus, then how and when is the social work relationship being built?  When is the social worker given the time and space to form a relationship with the child and his family? How is she being supported by her local authority to do so?

The heart of children and family social work is the professional practice of the individual social worker, and her ability to form a working alliance with her clients. This is so as it is of a solicitor and client, or a doctor and patient. This professional practice must be taught, supervised, valued and supported by the management within the local authority:

“It’s all about relationships. We are talking about dealing with people with problems, with painful stuff. You have to know someone, trust them. They must be reliable and be there for you if you are going to be able to talk about the things that you don’t want to. The things that scare you.” (epigraph quoting a mother in care proceedings: The Munro Review of Child Protection Interim Report: The Child’s Journey, January 2011).

The skills of a good social worker include being clear-eyed about the risks to the child, insightful about the depth of the problems, but still able to build that alliance with the child and parents. She will always bear in mind that the child is “a person, not an object of concern” (Butler-Sloss LJ, Cleveland Inquiry, 1987) She will inevitably have to manage the tension between monitoring the risks and providing the support. Managerial systems designed to collect hard performance data cannot be used to measure qualities such as altruism, empathy, and commitment to the child. The managerial mantra “What can’t be measured can’t be managed” dates back to the 1950s, but is still being damagingly applied to complex and subtle human interactions such as these. Quoted in Ken Burns’ documentary on Vietnam “When you can’t measure what is important, you make important what can be measured.” This seems to me to be true of the heart of social work practice. What can be measured, however, is whether the child is getting the help he needs.

But surely local authorities are almost always justified in bringing care proceedings? There is a widespread belief that in most cases local authorities “get it right”- but, if the care judges are getting it right, then this is misplaced. Research before the 26 weeks legislation was enacted demonstrated that almost half of all applications for care orders resulted in no order, or an order allowing the child to remain within his family. This was the finding of the MoJ research carried out for the Family Justice Review in November 2011 (Summary 5/11) into 285 care cases. (It does not include cases where the local authority withdrew its section 31 application before the final hearing.) Those results were strongly replicated by the South London Care Proceedings Project (“the Quadborough study”) published in April 2015-  of the 348 care cases across the four boroughs, a  startling one third returned to or remained with their parent /carer, and a further 29% were placed with another  family member. In further research published by Professor Judith Harwin and her colleagues in March 2019 (“The Contribution of Supervision Orders and Special Guardianship to Children’s Lives and Family Justice”), of over 175,000 children in section 31 proceedings between 2007 and 2017, only 52% of applications for care orders resulted in a care order or care and placement order being granted (Harwin, ibid; Table 3.2). (Note: 94% of all the originating section 31 applications were for care orders, 6% were for supervision orders.)

There is a view that local authorities may be bringing care proceedings to seek a finding that the section 31 threshold is met on the case, and thereby they are able to share the risks and responsibilities of decision-making with the court, even if they do not succeed in obtaining a care order on the care plan put forward. The statistics also in my view underline that a care case, usually seen as the end of the line by the local authority, is a forward-looking and dynamic process that often manages to avoid children being removed from their families, despite the pessimism of the local authority. It is a process which can galvanise a dormant local authority into action. It provides an intense focus on the needs of the child through the appointment of a children’s guardian, produces expert assessments and advice, and also has the effect of engaging most families parents and achieving their commitment to the process. Some families will listen to a judge when they have not been ready to listen to anyone else.

But what has happened before the pre-proceedings stage? Has there been a proper attempt to form a relationship with the family and help them to deal with some of their problems? Has that work been sustained over a reasonable period of time? (Let’s ask ourselves: how much use is a twelve-week parenting course to most care mothers and fathers?) The answer is usually no. There may have been intermittent social work involvement over a lengthy period, but that usually means a succession of different workers who have come and gone, a litany of section 47 investigations and/or initial core assessments, followed by the sad refrain “Case closed”. The local authority has usually missed many opportunities to get properly involved with the child and his family, and the family has come to regard the local authority as punitive and unhelpful.

The reply of local authorities is always: we have huge caseloads and we cannot work with families as we used to, due to severe budget cuts and constraints. The budget cuts are admittedly severe, but there is something else at work- and that is the huge shift in emphasis from welfare to control, and the process- driven, risk-averse leadership and culture at the top.

It is likely that the lives of thousands of children are affected by removal before any sustained and planned attempt has been made to help the family to change. Removal seems in some authorities to be the only weapon in their arsenal. Under the shadow of care proceedings, parents must now demonstrate dramatic improvements in very short timescales, and prove that they can go on to manage on their own in future. Parenting with continuing social work support as a goal seems to be virtually non-existent.

There are however authorities who have bucked this trend and have had great success in reducing the number of children coming into care and remaining within their families, including Leeds and Neath Port Talbot. The information that follows is taken from a Sunday Times article about Neath Port Talbot in August 2021, and also from a recent discussion with Keri Warren, its head of children’s services.

In 2012, Neath Port Talbot had the highest rate of children in care in England and Wales. It was on the verge of being placed in special measures. Half of all its vacancies for children’s social workers were unfilled. Social work caseloads were between 30 and 40. A new leadership team came in and radically changed the way that the department worked, with the new focus being on working directly with families and children in a sustained way.

The new team began with the idea that, although risk can never be eliminated, the great majority of families where the children are at risk do not intentionally harm their children. Neath Port Talbot began to offer children and their families extensive support and a sustained working relationship with the social worker. The work is needs-driven and not process-led. It offers family support workers to help with budgeting and family and household routines, uses foster carers to befriend families and act as unofficial grandparents, and sometimes pays for therapy for parents, particularly for “repeat” mothers. This has had very good outcomes.  Social work support continues for children in need with no court orders. The number of children on child protection plans is relatively low at around 70-75.

Caseloads now stand at about 12-15 per worker. Because they are not constantly under threat of court proceedings, social workers find that the families are more open about their ongoing problems, about lapses into drinking or drug-taking, or domestic abuse incidents. Risk can be properly managed. The social worker is also not forced to spend most of her time preparing reports and statements for court or presenting her case for a care order to a legal planning meeting. At the heart of this work is the quality of social work practice and the ability to establish a good working relationship with the parents and children. Care proceedings are taken swiftly if the risks become acute, but there has been a revolution in culture and leadership within the department.

Neath Port Talbot has achieved this while its child care budget has remained the same as it was in 2012. Large savings in legal fees, agency fees, and foster care and other placements, have been ploughed back into frontline services for families. This demonstrates that, although there have been severe cutbacks in local authority budgets, there is still a lot of room for manoeuvre within what is available to them. Many of the processes and bureaucratic burdens complained of by local authorities and central government appear to be self-imposed.

In the executive summary of The Munro Review of Child Protection: A Child-Centred System  (May  2011), Professor Eileen Munro found  that the then current child protection system was  driven by four key forces:

  • The importance of the safety and welfare of children and the strong reaction when a child is killed or seriously harmed;
  • A commonly held belief that the complexity and uncertainty of child protection work can be eradicated;
  • A readiness in high profile inquiries into the death of a child to focus on professional error without looking deeply enough into its causes;
  • The undue importance given to performance indicators and targets which provide only part of the picture of practice, and which have skewed attention to process over the quality and effectiveness of the help given.

These forces “have come together to create a defensive system that puts so much emphasis on procedures and recording that insufficient attention is given to developing and supporting the expertise to work effectively with children, young people and families.”  The review considered the child’s journey through the child protection system and concluded that “instead of ‘doing things right’ (ie. following procedures) the system needed to be focused on ‘doing the right thing’ (i.e. checking whether children and young people are being helped).” The review recommended “a radical reduction in the amount of central prescription to help professionals move from a compliance culture to a learning culture, where they have more freedom to use their expertise in assessing need and providing the right help.” (Munro, executive summary, paragraphs 2-5).

Professor Munro’s study was comprehensive and deep, and it drew on a huge well of expertise, as well as on the evidence of many care-experienced people and families. Her recommendations have by and large not been implemented by central government, although some local authorities have taken the messages to heart. Instead, in 2021, another “once in a lifetime” review of the child protection system was launched by the DfE. In terms of its reach and depth, it seems so far to be underpowered compared to the Munro review. (NB: it is hoped that the “once in a lifetime” description does not mean that the Minister and his advisors were unaware of the Munro report, which is a mere ten years old.)

Munro’s recommendations are still valid today and should be acted upon. She places an intense focus on liberating social workers from high levels of prescription, targets, and data collection, and on the development of trust in the social worker to exercise her professional judgment.    This will entail “radically improving the knowledge and skills of social workers from initial training through to continuing professional development.” (Munro, executive summary paragraph 10). This will give leaders and social workers more autonomy but also more responsibility, which can be alarming and difficult to accept, when the previous culture has been highly defensive and risk-averse. But “Helping children is a human process. When the bureaucratic aspects of work become too dominant, the heart of the work is lost.” (ibid; paragraph 21).

It is time to give social workers their jobs back.

Martha Cover, Coram Chambers, 18 January, 2022.

This is the transcript of a paper given by Martha Cover at the NIHR Policy Research Unit in Health and Social Care Workforce, 18 January 2022.

5 thoughts on “Is the legal tail wagging the social work dog?

  1. I have two cases to share, one 15yr old and one 8yr old two different authorities, one child lives me now full time and the other authority has tried to remove the younger, then place with mum and we haven’t had home for 4 months. It is retraumatising my older son and causing so many long term issues. I have had the case reviewd and SWE are very concerned.

    False reporting, no fact finding and misleading courts..

  2. I have had first hand experience with social services and when they say that they always prefer to keep families together, that is a lie! Loving parents are losing their beloved children on a daily basis on the most flimsy of “evidence” and social workers are free to lie in order to meet their agenda. Family court is held behind closed doors and the parents are unable to speak in court until the trial, by then the decision has usually been made and the parents then recieve gagging orders to keep the corruption underwraps. This has to change. When parents ask to have home visits to make sure all is well in the home, they’re told that they don’t have the resources for that bbut then will happily pay people up to 700 pounds a week to care for children. Why couldn’t they spend some of that money on welfare inspection officers or something similar?

  3. Reading this makes me hopeful being involved with family and childcare is hard some of them say there just child protection so you know they are only there to build a case. Some of the professionals are awful in their attitude lucky im working with someone that hasnt bullied me about my illness. I always hold myself accountable but not knowing why your under so much attack is heartbreaking when all you want is the best for your family. Its comforting professionals are relising the need for change in themselves for a change.

  4. I left children and family social work for a period in the late 90’s after having done the most complex assessment on a family that I ever wished to do . I became a Children’s rights officer during a period when The UNCRC was at least some reference point in the landscape.I found then, as I still do now, that much decision making is driven by professional anxiety across the board. Risk analysis remains a poorly understood process throughout the system. High levels of stress impact upon relationship building and consequently social work assessments of risk. I have myself found myself in such a position . However I have mainained my professional integrity, I think, by practicing as a locum, always slightly on the outside, and willing to see the asssignment being cut short as a proce to pay for professional integrity .

  5. I’m not a legal boffin… just a parent who has has experience of the court system and a teacher for 30 years.

    I’ve seen schools turn from child led learning to data driven…
    Social Workers too, no longer put the child and their family foremost but protocols and expectations.

    Teachers and social workers entered the job to help improve the quality of the lives of children, not to achieve targets, or improve their own prospects as a primary consideration.

    The legal tail most definitely wags the social work dog.

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