Concern for a child’s welfare can never justify illegal practice

By Allan Norman, registered social worker and qualified lawyer, Celtic Knot consultancy

Imagine you, a social worker, are in court, facing serious allegations of perjury, attempting to pervert the course of justice and contempt of court. These allegations arose out of your conduct in a case where you felt you were just trying to do your job and protect a child.

Imagine that at the early stages of the investigation into your alleged criminal conduct, you at least felt your perspective was understood, and were reassured that a fair and balanced report would be produced.

Fair trial

But as time goes on, rumour reaches you that the original investigator is off the case, indeed appears to have left altogether in unknown circumstances. Your defence lawyer asks – as they are entitled to, as the right to a fair trial dictates – for sight of the evidence that would have supported your defence, and specifically the original report.

Imagine your horror when after initial prevarication, it is eventually denied that there is any such report. A report emerges instead which paints a picture of you and your practice which you simply do not recognise. A new investigator, and their manager, ruthlessly criticise your failings. They invite other agencies to join in and make more negative statements about you.

Even the lawyers, whose job it is to oversee the disclosure of favourable evidence to the defence, let you down. In the witness box at your trial, you watch these other professionals lie. As the final nail in the coffin of your faith in humanity, you learn that this new investigator and their manager have been rewarded with promotion.

Witholding critical evidence

Does imagining that fill you with horror? It’s a scene from a police state out of control. Where is the rule of law, where is justice – even the hope of justice – if agents of the state are apparently so committed to your being convicted they withhold critical evidence and conspire to prevent the judge from knowing the truth?

More importantly, I imagine you would be equally – if not more – horrified if the agents of the state were social workers and it was service users who are treated in this way. Which is pretty much what Hampshire social worker Sarah Walker Smart and her manager Kim Goode stand accused of in this week’s news reports. I certainly felt a gut-wrenching sense of betrayal – betrayal of the service user, of the rule of law, of both my professions of social work and law.

In 2008, my practice had the privilege of representing a newly qualified social worker whose bullying manager had told her to lie on oath if necessary in child protection proceedings. We exposed in the High Court how that manager subsequently manufactured evidence and in the judgment, we achieved findings of all the allegations mentioned at the start of this article. The judge said:

“I take great care to remind myself that amounting as they do to allegations of perjury, attempting to pervert the course of justice and contempt that these are very serious allegations indeed.”

Lied under oath

After reviewing all the evidence, he found these allegations proven. It was a case we had never seen the like of, and did not expect to see the like of again. Reading last week’s judgment involving a social worker who lied under oath and Justice Horton’s damning remarks about the team involved, I could not help but compare the two cases and reflect.

The similarities are startling: in both cases, the existence of an original core assessment of a child was a key issue. In both cases a very experienced team manager thought it was ok to lie to a court. Both team managers were considered by the respective judges to have a domineering personality which would make it difficult for their team to speak out against them. Both were exposed forensically by the court process.

In both cases, the courts considered that this unlawful conduct was driven by the local authority’s misguided attempts to promote the outcome it believed to be in the children’s best interests, at any cost.

But the differences need highlighting too. The newly qualified social worker in the 2008 case had the courage to question the unethical action she was asked to take. She asked a local authority lawyer, and the lawyer was clear, not only that she must not do it, but also that justice for the family demanded that the judge be told what the team manager had done.

It is distressing to see that in this latest case the cancer appears to have bitten deeper, with collusion between social worker and manager, and the local authority lawyers also failing to act.

And what are we to make of the statement from Hampshire County Council? “We are satisfied that at no stage did any of the named officers deliberately mislead the courts.” This is at odds with the express findings of the court, and the recorded evidence at the hearing. Based on their statement, I wonder if there will be an attempt to reason that because the truth emerged, it can’t be said the court was misled by their lies.

Management bullying

In the 2008 case, the local authority, Bath and North East Somerset, very properly funded representation so their own staff (both team manager and junior) could be intervening parties in the case (i.e. because the allegations meant they would be affected by the outcome of the case, the issue between them of the junior being encouraged to lie was investigated as part of the hearings).

Bath and North East Somerset then accepted the findings of the court, and arranged an independent investigation to see whether any other cases had been tainted by the team manager’s dishonesty and bullying. I don’t see a robust grasp of a public authority’s duties in Hampshire’s statement.

The court must decide, not the social worker

One final but important similarity. In both cases, the local authority obtained the order to protect the child notwithstanding its unlawful actions. This should give local authorities no reassurance. It is not because of what they did, it is despite it. We must never take the principle that the child’s welfare is paramount to justify illegality such as manipulating or fudging evidence because we believe that in a particular case, removal is the ‘right thing’ for the child.

The opening words of the Children Act are clear: “the child’s welfare shall be the court’s paramount consideration”. We must never undermine the court’s ability to do justice by the child.