Child Protection Thresholds

A serious weakness in the current child protection system comes from the inability of many social workers to fully understand the thresholds for formal child protection intervention. Too many social workers in children's services have serious gaps in their knowledge and skills and are ill-equipped for their key role in decision-making about compulsory removal of a child from his or her family.

Social workers recognise that it is a contentious issue to commence legal proceedings. It requires the local authority to satisfy the court only on the balance of probabilities that the child 'has suffered, or is likely to suffer, significant harm'. There is considerable scope for discretion and the work of the family court is heavily dependent on the quality of evidence provided by the local authority.

It is good practice for social workers to reflect carefully on suspicions or concerns arising from a single event and to analyse in detail the 'evidence' provided by other professionals, such as the police or the medical profession. The section 47 investigation is a formal procedure for making an initial assessment of risk. If the local authority later concludes that the child is at immediate risk of significant harm it has lead responsibility for presenting evidence of the precise nature of the harm in court.

The role of the court should be minimal; it scrutinises the evidence presented by social workers and acts as safeguard for parents against unlawful, or unfair, social work practice. While the adversarial nature of the court process often closes down the possibility of a more informal approach to problem-solving, the formality of it offers some protection to the parents of their rights.

The courts take their duties of scrutinising a case very seriously. However, there may be occasions when the court struggles to reach a fair and balanced decision owing to poor quality evidence but concludes it has no alternative to granting an order.

The threshold for obtaining an Emergency Protection Order is much lower than for a Care Order - the court only has to be satisfied that there is 'reasonable cause to believe' the threshold has been met. It does not have to decide about the causes of the risk or whether it is attributable to shortcomings in parental care. The simple fact of the likelihood is enough.

If the local authority proceeds to a full Care Order this is an extreme measure and courts therefore require stronger evidence and clear plans. Assessment of the risk factors and the family circumstances is an ongoing process and has to be reviewed regularly and updated in response to any changes and developments in the family circumstances.

The demands placed on social workers during care proceedings are onerous. The social worker must present the facts about the risks to the child and the nature of family life in a clear and succinct manner in order to show that the threshold has been met. There will be different versions of the truth presented in court and each witness will be tested through cross-examination.

In the past courts required strong evidence of physical or sexual abuse or neglect to remove a child but they have now moved into the controversial area of regarding emotional abuse as evidence of 'significant harm'. However, after concluding that the threshold has been crossed the court must then consider (at the welfare stage) whether it is in the child’s best interests to make an order. It was inevitable that, in recent years, court decisions have provoked a backlash from some parents who believe they have been treated unfairly.

There has also been a shift in government policy towards adoption and in reducing unnecessary delay in the adoption process. This means that, inevitably, it can be difficult to achieve the right balance between the need for decisiveness in care planning and the need for justice for parents. In one case an injustice arose because an adoption application was granted but the criminal case against the parents subsequently collapsed. Delay in the criminal justice system had resulted in key evidence that had been used for the threshold test being discredited - but too late to challenge the adoption.

As a retired social worker I find it shocking that some social workers attend court without a sound grasp of the legal threshold for compulsory removal of a child as set out in s31(2) of the Children Act 1989. Courts are being presented with poor quality assessments and flawed evidence because authorities have not completed essential pre-proceedings work or are sloppy in their compliance with the law. In these situations it is quite right for the court to reject their application for an order.

The solution to these problems is to ensure that all social workers doing court work are properly trained for the job and supported in keeping up to date with developments in the law. In particular, they should undergo a test to demonstrate their competence in writing clear threshold statements and to show that their legal knowledge is fully integrated into practice. Unless the social work profession takes responsibility for improving social work competence in legal matters its claim to professional status may not be taken seriously.

Hilary Searing