‘Working Together 2013 ignores human rights and we must act on this’

The story of state intervention in the absence of significant harm has been a story in two parts. For the first decade, after the passing of the Children Act, councils were busy denying that section 17 gave a right to an assessment of need (see W, R (on the application of) v. London Borough of Barnet).

Then, in the wake of Victoria Climbie, Baby P, the Soham murders and the initiatives that followed, authorities were under huge pressure to find a right to intervene. But note the slightly changed language of rights: it was the right to be assessed that was initially fought for, now it’s the right to intervene.

It is in the context of that unfolding drama that I come to analyse Working Together 2013 on the assessment of children in need, and to make three points. These are on statutory assessment, the use of consent or compulsion and the significance of harm.

Working Together 2010

First, though, a reminder of Working Together 2010 on the same subjects. A critical opening paragraph sets this out: “1.6 in the great majority of cases, it will be the decision of parents when to ask for help and advice on their childrens care and upbringing.

Only in exceptional cases should there be compulsory intervention in family life, for example, where this is necessary to safeguard a child from significant harm. Such intervention should provided this is consistent with the safety and welfare of the child support families in making their own plans for the welfare and protection of their children.”

Those short lines make three important points about the culture of Working Together 2010, a culture that seems wholly absent from the latest offering. Compulsion is to be the exception. Significant harm is the statutory threshold for compulsion (further reinforced at 1.26 and 5.49). And critically, even when there is significant harm, social work looks to support families own plans for welfare and protection.

Paragraph 26 of the first chapter of Working Together talks about statutory assessments. First is an assessment of a child in need under section 17. I find it curious, to put it mildly, that an assessment we once denied children and families had a right to receive now occupies such pride of place. But I’ve set out that there is a right, so perhaps this is just the natural culmination of that legal battle, the empowering of children and families? Let us see.

The new Working Together asserts that: “Each child who has been referred into local authority childrens social care should have an individual assessment to respond to their needs and to understand the impact of any parental behaviour on them as an individual.”

That language doesn’t seem very empowering of families. With the local authority as the routine arbiter of parental behaviour, it is not really language designed to appeal to parents as empowering, or to encourage the rights of families to secure assessment, as envisaged in the old version.

Consent or compulsion?

Working Together 2013 describes an early help assessment. It is trying to avoid the need to escalate to a statutory assessment (paragraph 8, page 12), and need not be carried out by a local authority. This is the only point at which the need for consent or permission is mentioned (paragraph 10, page 13).

This language – ‘need’, ‘escalate’ – and the silence on consent or permission in our work with children who are in need, but not at risk of significant harm, is in stark contrast with the law – so succinctly summarised in the old version: “The Children Act 1989 introduced the concept of significant harm as the threshold that justifies compulsory intervention in family life.”

The significance of harm

Harm is defined in the Children Act. What is not defined is what makes it significant. Happily, the old version of Working Together used to help us, with extensive guidance on what makes harm significant at 1.128. Unhappily, Working Together 2013 offers no such help. It is silent both on the meaning of significant harm, and on significant harm as the threshold for compulsion.

Now, I am going to suggest that I can bring these three threads together and draw something from them. A child in need assessment now sits alongside a child protection enquiry as a statutory assessment. Every such assessment has the social worker assessing parental behaviour and potentially supplanting the parent as the arbiter of the childs interests. The distinction between initial and core assessments has gone.

The last reference to consent is prior to a referral to social care. The reference to significant harm as the threshold for compulsion has gone. There is no longer, apparently, even a need to offer guidance on what significant harm might mean.

‘The new guidance ignores human rights’

Somewhat insidiously, by what is said and by what is left unsaid, children and families social work is being invited to behave as though all statutory social work is under compulsion. I have written elsewhere about human rights as the dog that didnt bark in the night: human rights are not mentioned in Working Together 2013, and it is important that we notice and act on the significance of this silence. Here, in this critical development on assessments of children in need, applying the human rights principles that the new guidance ignores is pivotal. This brings me to the issue of necessity.

If we want statutory guidance that complies with data protection and human rights law we are going to have to grasp the nettle of necessity. Children and families social work, being state intervention in private and family life, engages Article 8. Article 8 itself makes clear that any interference with the right must be based on necessity. Applied here, social works interference in private and family life must either be consensual or it must be necessary.

Is social work losing its rudder?

It is wholly uncontroversial to me that protecting a child from significant harm is an obligation on the state, and is necessary. What is highly controversial is whether it is necessary or proportionate to extend compulsion and to ignore the issue of consent for those families who do not reach that threshold. And if it is not necessary or proportionate then it is not lawful.

On assessments of need in the absence of significant harm, Working Together 2013 is not the triumphant assertion of the right of children and families to secure social work support for their efforts. It is, instead, an important twist in the unfolding drama of the new risk-averse state intervention: the point at which social work loses its rudder.

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  Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot Solicitors and Social Workers.