by Andrew Matthews
I was staggered to read about Herefordshire and the misuse of section 20. The cases involved Herefordshire council keeping children in care against the consent of parents under a voluntary arrangement called a section 20.
I found it shocking considering that the law within social work training is a significant part of the curriculum. Social workers are trained to have a strong sense of what is right, what is just and what is lawful. This is further true of decisions makers within local authorities.
There is no excuse for this and I struggle to comprehend why instances like this occur, yet I have considered why this may be the case.
Are you struggling with section 20?
Identifying misuses and misunderstandings of the law on section 20 will be one of the topics covered in a legal learning session delivered by leading family court barrister Oliver Millington, at Community Care Live London, on 26 September.
This year, for the first time, you can reserve your place at our legal learning sessions, for a fee of £29 plus VAT (£24 plus VAT before 27 July 2018). Book your place now.
Firstly, one idea may be that management oversight is poor and the very roots of the practice system is flawed. There are practices going unchecked and unregulated. Ofstead rated Herefordshire as ‘requires improvement’ when assessed in 2014.
To think that this is the only reason is unfair for staff and social workers in this area, though. Bad habits of malpractice may have become the norm but then how has this idea of practice developed?
Manipulating the law
This leads to my second idea, the belief that social work teams and local authorities are acting in the best interests of the child and therefore the law can be manipulated. I have come across this in respect of interpreting Regulation 24 arrangements. Regulation 24 of the 2010 Care Planning Regulations sets out arrangements for the temporary approval of a connected person as a foster carer in exceptional circumstances for up to 16 weeks.
Therefore, if a child is placed with a relative, this would be completed under regulations 24. Under regulation 24, the child is looked after by the state either under a voluntary arrangement or court order. Both colleagues and I have observed the practice of where children are moved to live with relatives in the short or long term under what they refer to as a private family arrangement.
This is in effect a regulation 24 placement and the child needs to be legally looked after as the local authority is making decisions for the child which requires parental responsibility. Now this does happen legitimately, when families decide themselves, but what makes it different and problematic is when the local authority suggests or enforces this without a court order or without consent. When the local authority starts to suggest that care proceedings would be needed if this doesn’t happen is a clear misuse of power.
One could suggest that this, and the problems exposed in Herefordshire, is rooted in a lack of understanding. I truly find this hard to believe but do appreciate where workloads are at unworkable levels, working with high risk, environments can be confusing and overwhelming. However, the law is one of the foundations of social work practice and practice leaders have this knowledge and are decision-makers within organisations.
I therefore believe that actions can be taken knowingly because they believe that this is in the best interests of the child. Why, then, could practitioners and the authority choose to pursue a section 20 agreement without going to court?
Firstly, it is cheaper, to initiate care proceedings is costly and, secondly, it is time consuming. To have a section 20 agreement for local authorities in this case is perhaps convenient.
I believe that misuses of power are related to practitioners and organisations taking expert positions where the highest context is not the law, but doing what is best for the child. The profession is culturally and societally pressured to do the best for children and keep them safe.
But, and it is a massive but, we must act in line with the law. I think that the pressure is huge to keep children safe, which is often unrealistic. We are not infallible, and we cannot stop children from being harmed in every case. This is perhaps shaped from the top down, which has had the negative impact on practitioners and systems making decisions which are unlawful to keep children safe.
That said, my personal position is strong, whatever the intention, however good this may be, we cannot act above the law.
There appears to be a dichotomy at play; there is a pressure to do the best by children but we all need to appreciate that this is not always possible. The law in my view is fair and attempts the challenge of balancing the rights of the family and the rights of the child. In practice this is what makes social work as challenging as it is.
But we cannot take the easy way out and act punitively and unfairly just because we have good intentions. We must accept that we are not perfect and we will do our best to respect both rights of the child and family as enshrined in law.
I have attempted to articulate the reasons why misuses of power may be happening and I think the construction of social care as being able to keep every child safe does not help. This is not to say that the misuse of power by local authorities should not go unchallenged; my recommendation for practitioners if they come across this and are worried then it needs to be raised immediately. I would recommend raising with a trusted senior colleague or Principal Social Worker.
If it is felt that this is a problem organisationally then I propose taking advice from the Family Rights Group, CAFCASS or Ofsted. Malpractice needs to be voiced and practitioners can’t stand by and let this happen. While we might understand why this happens, it does not justify it taking place.
Andrew Matthews is a pseudonym. He is a children’s social worker.