Misuse of Section 20

In child protection work the failure of local authorities to act properly when dealing with suspected child abuse and neglect has taken social work practice in a more authoritarian direction. When responding to child protection concerns many authorities do not use their powers to carry out investigative work under s47 of the Children Act 1989. Instead they take children into care under s20 and this often has the effect of dis-empowering parents. Many parents are finding they have been manipulated into putting their children into care through misunderstandings about their legal situation.

In a recent civil court case (following an eight-year battle with Hackney) a husband and wife were awarded £10,000 each in damages because the council wrongly kept their eight children in informal foster care for two months, instead of returning them home as soon as possible. The judge rejected the couple’s claims against Hackney of 'misfeasance in public office' but allowed their claim under the Human Rights Act.

Hackney had a duty under s47 to investigate immediately the suspicions of neglect and physical abuse and also powers to apply to court for Interim Care Orders on the children to keep them safe until matters were resolved. Although they failed to use their legal powers to protect the children no penalty has been imposed for this - possibly because it is difficult to prove the consequences of local authority inaction.

In another ongoing case in the family court Judge Wildblood strongly criticised Gloucestershire for repeatedly making inappropriate use of s20 in child protection cases. Although there was a frank admission in court by the council of its failure to follow the correct procedures there is no reason to believe that its organisational culture, which has allowed this practice to continue, will change in the future.

The reluctance to use the more formal approach of a s47 investigation seems to be widespread. Initial referrals tend to be treated as concerns about a child's well-being as opposed to a formal child protection referral. Many social workers assume that a child protection investigation is an integral part of the Common Assessment Framework. Unfortunately, there are two problems with this approach. One is that assessment may simply become a form-filling exercise and insufficiently focused on the investigative role. The other is that inexperienced social workers sometimes do not fully understand the dual roles of assessment and investigation, nor the extent and limits of their legal powers and duties. Consequently, it is easy to understand how parents may be misinformed or mislead by social workers.

There is plenty of evidence that the misuse of s20 leads to 'drift' in care plans for children and lengthy disputes with aggrieved parents. When parents realise they will never get their children back they feel angry they have been denied the protection afforded by the court of their rights as parents. It is poor social work practice to use s20 in child protection cases because it avoids the need to consider whether the legal threshold set out in s31(2) of the 1989 Act has been met and increases the risk of costly, protracted legal argument later on. Common sense suggests that a more formal approach at the point of referral would be both more family-centred and cost-effective. Informality gives social workers more freedom but it also increases the risk of authoritarian interventions.

Some of my concerns about current arrangements for child protection investigations are:

- Much social work practice in this area lacks urgency and rigour. In some cases social work practice is so slipshod and dangerous that it amounts to non-compliance with the law.

- Often there has been no clarity about whether a s47 investigation has been carried out. Managers do not record their decision to instigate this and social workers are confused about the difference between this and safeguarding work.

- The information obtained from the investigation may not be recorded, or important details that may be required in subsequent court proceedings are left out.

Some of these problems reflect the difficulties in responding to urgent referrals which need to be dealt with by experienced staff. This is particularly a problem in those authorities which suffer high staff turnover and unremitting pressures of work.

The current multi-agency system for identifying and monitoring children at risk of significant harm now provides an excellent framework for practice. The social work profession has much practice wisdom in this area and many authorities carry out investigative work with sensitivity and respect and in a proportionate and lawful manner. They know that the competence with which a s47 investigation is handled will crucially influence the effectiveness of subsequent work.

However, the profession has allowed investigative work to become devalued because of an ideology which regards it as authoritarian and inconsistent with social work values. The myth that a visit from a social worker undertaking a s47 is invariably traumatic must be dispelled. Any unexpected visit is certainly going to cause parents anxiety but if the social worker is respectful and fair the outcome may not be so bad. If parents are struggling to manage their lives the visit from a social worker may motivate them to accept help.

It is kinder for social workers to use their legal powers appropriately than to act in a way which puts parents under pressure while denying them legal advice. To prevent these problems there has to be a commitment to ensuring that arrangements for responding to child protection referrals lead to competent decision-making and that s47 investigations should only be carried out by experienced social workers with appropriate training.

Hilary Searing