Our Duty of Care to Children

A recently reported case from the Court of Appeal London Borough of Hackney v Williams [2017] illustrates the dilemmas for social workers about fulfilling their duty of care to children when faced with resistant parents. The experience of one family and the ensuing legal action are described in some detail. There are important lessons to be learned from this case.

This case was referred to children's services in July 2007. The family consisted of the married parents and eight children, aged 14, 12, 11, 9, 7, 5, 2 years and 8 months old. One of the older children in the family had been arrested on suspicion of shoplifting chocolate bars. The child told the security guard that he needed money for food. When seen by the police he said that he had been beaten by his father with a belt and that this was the explanation for a bruise on his face. The police visited the home and found that it was not in a fit state to accommodate the children. The police took the eight children into 'police protection' - a legal status meaning they were in care for 72 hours.

The parents were in a state of shock following the sudden removal of their children and the children were also very distressed. The parents, who were under investigation by the police, were granted bail but a condition of bail for each parent was that no unsupervised contact was permitted with any of the eight children. There had been no previous concerns about the family. The parents were interviewed by social workers and signed a form of 'safeguarding agreement' which purported to authorise the council to continue to accommodate the children in foster care. The parents quickly obtained legal advice and their solicitors realised that the children were accommodated under section 20. The Children's Resources Panel, chaired by the Assistant Director, had ongoing oversight of the case but owing to the continuing bail conditions it was not possible for the children to return home swiftly.

The care arrangements would have presented children's services with considerable logistical problems. The children had to be placed in a number of different families. Whilst in care most of the children were moved to different foster carers, several times in two cases. One child fractured an arm whilst in foster care and there was a delay in reporting this to the parents. Another child was burnt by hot water whilst taking a shower. After constant pressure from the parents to have the children back home the police eventually varied the bail conditions and the children were returned home. However, two months had elapsed before the children were re-united with their parents.

After the children returned home the criminal investigation resulted in indictments against the parents, suggesting there was strong evidence of physical abuse and child neglect. However, in the end this was discontinued on the grounds that it was not in the public interest to require the children to testify against their parents. Then the parents engaged in formal complaints against the local authority culminating in a final decision of the Local Government Ombudsman, issued in April 2013. They later issued a claim in the High Court which resulted in an award for damages of £10,000 in July 2015 for each of the parents. However, the local authority made an appeal against damages which was subsequently successful.

Presumably, the parents were made aware when social workers first became involved that court proceedings were a possibility and initially felt obliged to accept section 20 care arrangements. However, one of the key lessons to be learned from this case is that it is better to use court proceedings upfront in order to prevent this type of ongoing battle to sort out the legal muddle afterwards.

It now appears that the response to the referral should have been an immediate Strategy Meeting, a section 47 investigation and an application for Emergency Protection Orders. If court orders had been granted this would have given social workers up to eight days to carry out an assessment, at the end of which they might have concluded that the harm to the children was as a result of poor parenting, rather than criminal intent, and focused on the support needs of the family. The problems caused by the bail conditions, which apparently prevented the children from returning home, should also have been addressed - if necessary by obtaining an extension to the Emergency Protection Orders for a further seven days.

This use of the legal process would have enabled the children to return home more quickly but with the necessary framework provided by child protection plans. This would have given a clear message to the parents that social workers understood the stress on the parents in caring for eight children and wanted to provide ongoing support to raise standards to a more acceptable level. The most urgent task was to tackle the physical conditions in the home and an offer of practical help from social workers might have been a useful way of engaging the parents. Ongoing social work with the whole family was also necessary to improve parenting and to find more appropriate methods of managing the children's behaviour.

Essentially, the thrust of social work intervention should have been to provide some degree of containment of the situation and a very clear understanding that social work intervention with the parents was necessary to improve the safety and welfare of the children and not to punish them. The home environment was chaotic and the parents were apparently under a lot of stress and their situation required intensive social work intervention. A structured, inter-agency approach with a clear focus on child protection was therefore essential. The effectiveness of this approach would have been subject to review at a Child Protection Conference.

It is not known to what extent social work intervention in this family achieved significant improvements in the children's lives. The parents apparently found the service they received unhelpful. The most positive outcome for the children may have been the very clear underlying message to them that physical punishment of children is unacceptable and the parents were required to raise the standards of care. However, it is tragic that a boy's 'cry for help' caused so much distress to his family and the parents have seemed unable to move on from the trauma they suffered.

In 2007 this authority had been starting to introduce the Reclaiming Social Work Model with its policy shift towards family support and partnership with parents. There was a strong belief that the new model of practice could transform families and avoid the need to go to court. Children's services had also undergone changes in response to the Children Act 2004 leading to a renewed focus on providing support services to vulnerable children and their families.

It has become apparent that some social work practice has been driven by a misreading of the law. There is an incorrect assumption within the profession that the 'no order' principle is at the heart of the Children Act 1989 and an important guide to practice. In fact the 'no order' principle, section 1 (5), does not create a presumption one way or the other. It is merely a principle for the court to consider after the threshold criteria have been met and the welfare of the child is under consideration; the court must ask itself the question whether to make an order would be better for a child than making no order at all.

Many of the problems in this case arose from a belief within the profession that social workers should avoid using their legal powers to protect children. Paradoxically, this meant that the parents were denied the protection afforded by the court of their rights as parents and were powerless to challenge decisions handed down to them from the Children's Resources Panel. It is now considered good practice to use section 20 only when there is a good degree of trust between parents and social workers.

In this particular case a humane and compassionate approach was needed in order to reach out to the parents and to engage them in collaborative work. Obviously, good communication is essential in child protection work as well as an understanding of the extent and limits of the local authority's statutory powers and duties. Sometimes this means social workers having to be more proactive in exploring the nature of the family's difficulties and recognising the ethical imperative to avoid criminalising parents, if at all possible.

It is outrageous that a profession that claims to be caring intervened in a family in a way that left the parents with a deep sense of grievance. Opposition to formal child protection measures has become an article of faith by many within the profession but this is producing a workforce ill-equipped for the child protection task. This case illustrates what can go wrong when routine practices are applied to a situation which required a more creative and flexible response.

It is taken for granted that we all have a duty of care towards children and that intervention is necessary when children are thought to be suffering cruelty or neglect. A key dilemma for social workers is the question of whether to work with the family on a voluntary basis or whether formal child protection measures may be required. Social workers need to be more confident about the use of authority when carrying out their duty of care to children and realise that this is different from being authoritarian.

Hilary Searing

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