How Did Judges Become Experts in Child Welfare?

How Did Judges Become
Experts in Child Welfare?

The independent review of children's social care in England states that 'Social workers have to make complex and challenging decisions every day, balancing how to protect a child from harm, whilst keeping families together where possible. We need a system that gives them the skills and confidence to do this.' I believe that the Family Court system is in crisis and this has implications for social work practice in child protection. The system is now biased towards expensive court hearings, endless legal debate and unrealistic expectations about what can be achieved. This causes a great deal of anxiety for professionals and families alike.

At the core of child protection work is the task of identifying children at risk of significant harm. This is relatively simple when there is very strong evidence of risk based on a serious incident or allegation. However, social workers are now seeing a lot more children who are vulnerable, needy and not well parented and in these situations their child protection duties are much more difficult and complex. An essential part of this work is the task of developing a deeper understanding of the dysfunctional patterns of behaviour within the family and doing everything possible to promote the safety and wellbeing of the children. However, when a decision is made to commence care proceedings responsibility for assessment is often handed over to a judge. In an increasing number of cases heard by judges in the Family Court the threshold arguments are soon accepted but most of the time is taken up with child welfare considerations. In effect this means that judges are now assumed to be experts in child welfare.

Obviously the Family Court has to give the welfare of the child paramount consideration. It is not unusual for courts to deal with cases where there appears to be no immediate threat of physical harm to the children but there is plenty of evidence that the threshold of significant harm may have been crossed. Legal arguments therefore move swiftly into a search for evidence that the child's welfare has fallen below an acceptable level. Judges usually rely on evidence presented by a range of people - such as psychiatrists, psychologists, teachers and the guardian - to help them understand the child's difficulties and the level of risk to the child in the future. On occasions the judge may decide to meet a competent child - who would also be entitled to legal representation. When the final judgment is delivered it includes an explanation of the arguments for or against removal of the child, or children, and the reasons for giving or withholding additional powers, such as those provided by a supervision or care order.

Once something is named as child protection work it usually means that more coercive measures are considered appropriate. However, objectivity in decision-making is difficult to achieve when there are many different ways of perceiving risks to children, each with different consequences for action. Social workers often pursue a number of different avenues of work and, although they may have some successes, it is not unusual for new areas of concern within the family to arise. The profession values evidence-based practice but also knows that the level of harm to children growing up in adverse circumstances cannot be measured scientifically. Sometimes, uncertainty about the threshold for significant harm can make social workers feel obliged to start care proceedings in order to obtain the necessary clarification.

Social work has its own distinctive approach. It has chosen to reframe child protection as safeguarding work. When lawyers assume that child protection is simply a matter of correct interpretation of the law, social workers often feel that their skills in understanding human behaviour and seeing the potential for change are being devalued. Social workers know that a true understanding of families comes from the experience of engaging in real life situations. This demands skills in observation, the capacity to grasp the significance of a range of different pieces of information and intuitive understanding.

Social work considers itself a profession and has an increasing body of professional knowledge, Children's social workers have a range of powers they can utilise in their day-to-day practice, such as the child protection conference, child protection plan and written agreement. Furthermore, they may undergo training in Signs of Safety, Family Group Conferences and Court Skills to help them with their task. The tendency of children's social workers to locate problems in the family has put them on the front line in raising standards of parenting and supporting vulnerable children. Family relationship difficulties and unsatisfactory parenting due to drug and alcohol problems and domestic violence are often very challenging areas of work. In recent years the level of monitoring and surveillance of families by social workers has risen considerably and this has made some in the profession question its value base and understanding of the meaning of ethically informed practice.

In child protection work a certain level of legal oversight is needed to make social workers accountable for their actions. However, judges seem to have a different perspective for understanding family life from the rest of society. It would be much better if the principles underpinning decision-making in care proceedings came from society at large, instead of from a judge alone. A single judgment can have wide ramifications. It is in the interests of everyone in society to support constructive measures to improve parenting and support vulnerable children and to find alternatives to judge-led decision-making.

Unfortunately, judges may feel obliged to obtain formal assessments in child protection cases because the social workers themselves fail to provide the judge with a competent analysis of the full circumstances of the family. In some cases it even appears that social workers have failed to challenge parents displaying inappropriate parenting and thereby unwittingly ignored irresponsible behaviour.

It would be a mistake for me to suggest a simplistic solution to the serious problems in children's services that have many causes. It would be wrong to impose a standardised notion of the ideal social worker and fail to value the range of different qualities that social workers bring to the job. However, I am against the tendency to think that if a person's difficulties can be given a label such as 'early trauma' or 'post-traumatic stress disorder' a solution can be found. Once something is named people may feel better understood but this may not change their current worrying behaviour.

When I did this work in the 1990s court hearings normally took place in a Magistrates Court. After the initial hearing I would make use of Protecting children: a guide for social workers undertaking a comprehensive assessment [See below] to conduct an assessment of the family. This, together with my knowledge of the family from working with it previously, enabled me to present the family court with a written report and recommendations for a particular course of action. The process was much simpler then and I would like to see a return to this.

Hilary Searing