by Allan Norman"If we don't intervene, we don't know what we might find!" My discussion with the students was taking an interesting turn, as I tried to debate with them a case study of a chaotic and fluid household, in which nonetheless no evidence of specific harm had ever been identified.
The instinct to intervene was strong. I wondered in response whether that made it okay for social workers to intervene everywhere? I was presented in return with the self-serving argument that social workers wouldn't be carrying out an investigation unless there was good cause for concern.
And then the old chestnut, "we're damned if we do, and damned if we don't" - apparently leading inexorably to the conclusion that we might as well intervene.
I tried to suggest that child protection was not like a mediaeval trial by ordeal, where if you survived the ordeal you must be guilty so were condemned anyway. Rather, the exercise was like operating finely balanced scales - easy to upset in one direction or the other, but with skill, judgement and experience, it is possible to get the balance right.
The judgement of the House of Lords a few days ago in B (Children), Re [2008] UKHL 35 (11 June 2008) seems to confirm this point. It is yet another case on the finely balanced burden of proof and the familiar phrase, "likely to suffer significant harm".
Giving the leading judgement, Baroness Hale starts by reassuring us that:
"In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality."
And then on finding the balance:
"There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof... care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way...
Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts...
As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future... As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability."
In plain English, the legal test in respect of the significant harm we fear for the child is the simple balance of probabilities: is it more probable than not? This approach is at the fulcrum of the scales, the point of balance between an undue tendency to intervene, and a failure to protect from harm.
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
I tried to suggest that child protection was not like a mediaeval trial by ordeal, where if you survived the ordeal you must be guilty so were condemned anyway. Rather, the exercise was like operating finely balanced scales - easy to upset in one direction or the other, but with skill, judgement and experience, it is possible to get the balance right.
The judgement of the House of Lords a few days ago in B (Children), Re [2008] UKHL 35 (11 June 2008) seems to confirm this point. It is yet another case on the finely balanced burden of proof and the familiar phrase, "likely to suffer significant harm".
Giving the leading judgement, Baroness Hale starts by reassuring us that:
"In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality."
And then on finding the balance:
"There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof... care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way...
Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts...
As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future... As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability."
In plain English, the legal test in respect of the significant harm we fear for the child is the simple balance of probabilities: is it more probable than not? This approach is at the fulcrum of the scales, the point of balance between an undue tendency to intervene, and a failure to protect from harm.
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
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