This is a post by Sarah Phillimore.
What gives a social worker the power to investigate my family?
Children’s Services have two basic functions; to help and support families stay together but also to make application to the court to remove children from those families if they think there is a risk of serious harm. There is clearly a tension between these two different roles and the dividing line is not always clear between ‘support’ – which must be something you agree to have – and ‘removal’ – which is usually something forced on parents against their will.
However,as Lady Hale said in Williams v Hackney in 2018 when talking about children in section 20 accommodation, who might be there to provide their parents with some respite, or might be there because of worries about how safe they were at home:
In practice, the distinction between these categories is not always clear cut. Some accommodated children in need may also be at risk of harm if they are left at or returned home. In law, however, the distinction is clear. Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not.
Section 47 and sharing information
If the social workers at your local authority (LA) are given information that makes them worry your children are at risk, unless the situation is one of obvious and immediate danger (when the police should probably be called), the LA will need to carry out an investigation to decide if it should make an application to the court or instead offer the family some support.
The important statutory provision here is section 47 of the Children Act 1989 which sets out the LAs duty to investigate:
Where a local authority—
(a) are informed that a child who lives, or is found, in their area—
(i) is the subject of an emergency protection order; or
(ii) is in police protection; . . .
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.
When it goes wrong – AB and CD and the London Borough of Haringey
A case involving the LB of Haringey heard in November 2012 makes an interesting read.
There is a good blog post about it here if you want more detail.
Someone got in touch with the Haringey child protection team, making an anonymous allegation about two parents who happened to be child protection professionals. A social worker contacted the child’s GP and school for information before calling the parents. The mother reacted very angrily to the call, as no one had informed the parents before trying to get this information. Haringey was alarmed by her response and decided to carry out a full child protection inquiry under section 47 of the Children Act 1989. No concerns were found; the original allegation was suspected to be malicious.
The parents then took legal action by way of judicial review and were awarded damages against Haringey.
What went wrong? The tension between support and investigation.
There will always be a tension between the role of the social worker in carrying out child protection investigations and assessing a family to offer help and support. Obviously, the more serious the worries about a child, the quicker they may have to act. But to act too quickly and on limited information could also be very damaging.
Hilary Searing comments on this tension:
It strikes me that parents need to be very clear about whether there are actually grounds for a social worker to become involved. Social workers carry dual responsibilities – for welfare and protection. In the welfare role the focus is on the child’s development in the broadest sense and in providing appropriate services. Social work support is only provided with the voluntary agreement of parents, and parents have the right to decline the offer of an assessment.
However, in the child protection role the social worker has powers and duties defined by the 1989 Children Act which includes powers to investigate suspected abuse and neglect. When a sec 47 is carried out social workers are also permitted to obtain confidential information without consent. In ‘welfare’ situations there is an important principle of informed consent but I get the impression that social workers are too relaxed about this and tend to forget this principle.…
It is worrying if some social workers do not understand the difference between ‘welfare concerns’ and ‘risk of significant harm’ and are incapable of explaining this to parents.
Hilary further explores this issue and the importance of understanding what is meant by ‘significant harm’ in this blog post.
When can a social worker try to get information about your child?
The Data Protection Act sets out the limited circumstances in which it is permitted to share data:
- If you agree
- If the data has to be shared to enable someone to do what they are required to do by statute (‘the statutory gateway’)
Section 47 of the Children Act is a clear example of such a ‘statutory gateway’ to data sharing.
But in the case discussed above, Haringey had NOT started a section 47 investigation when they tried to get information from the child’s school or GP. The parents certainly hadn’t consented because they didn’t know. Therefore Haringey’s actions were unlawful.
But why is this a bad thing? Shouldn’t we be able to share any information we have in order to keep children safe?
Procedures matter and failure to follow them can have a number of serious consequences. Not only can this undermine the ability of the parents to work together with the LA, there are also legal implications if you fail to give sufficient protection to an individual’s right to privacy. In addition, as the court set out in the Haringey case, the consequences of a section 47 investigation can be very serious.
Section 47 enquiries are multi-agency in their scope and they will usually include such agencies as the child’s school, medical practitioner, social workers and the police. The police have an important role to play given the likelihood that in most cases where a child is suffering or is at risk of suffering significant harm, the perpetrator or perpetrators of that risk or that harm will have committed or will still be committing serious criminal offences whose victim is a child.
A section 47 enquiry involves an in-depth child-centred assessment of a child’s developmental needs, of the harm she is suffering or may suffer, of the capacity of the child’s parents or carers to respond to the child’s needs and of the family and environmental factors that are playing a role in the harm she is suffering or may suffer. This intrusive assessment should take account of the views of the different agencies involved with and the external influences on the child and it must also directly involve both the parents and the child unless this will endanger the child. The necessary fact-gathering should include sessions with the child without her parents or carers present and it should ascertain that child’s wishes and aspirations wherever possible. The assessment, known as a core assessment, must be concluded so that a holistic view may be taken of the child’s needs, of the significant harm that the child is being or is at risk of being subjected to and the steps that can be implemented for the eradication of negative influences on the child and the promotion of favourable ones on her.
A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.
A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.
Social work perspective on this judicial view
Hilary Searing has concerns about the Judge’s perspective on section 47 investigations:
I strongly dispute the argument put forward in the Haringey case that ‘A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed.’ Surely this is only the case following a police investigation into an alleged offence? It is completely different from a social work investigation in a Sec 47. You need to be aware that where concerns do not seem serious enough for police involvement there may still be sufficient concerns about the child’s safety to warrant a Sec 47 – sometimes there is a sole agency investigation by social services. Social workers are caring people and I cannot imagine a situation where a single home visit/interview would result in so much serious damage to individuals and relationships!
In 2012-3 only 41% of Sec 47s carried out in England resulted in the child being made the subject of a Child Protection Plan. In my experience, the investigation should focus on the cause for concern, such as a suspicious injury or an allegation, and gathering the facts around this in order to clarify the situation. In many cases the concerns do not merit further investigation but there may have been a family crisis (e.g. the concerns might be about a domestic incident where a child was present) and the social work role is to offer help in dealing with the underlying problems which have come to the surface. The family may have reached breaking point and is willing to co-operate with social workers on a voluntary basis.
While I understand you are bound to present the legal position from the perspective of parents you should be aware that from the social work perspective our view of a Sec 47 is that it serves an important function in identifying children who may be suffering cruelty and extreme neglect. It is sometimes a way for social workers to get into families who are on the borderline of ‘likelihood of significant harm’ and an opportunity to work with them in a structured, supportive way to prevent the need for care.
The need for balance
Even on this brief examination of different perspectives, we can see how important it is to continue to try to strike the right balance between the need to protect children and the need to intervene only when it is proportionate and appropriate.
The 2010 edition of ‘Working Together To Safeguard Children’ at para 5.3 discussed what should be done when working with children when there are concerns about their safety and welfare.
Achieving good outcomes for children requires all those with responsibility for assessment and the provision of services to work together according to an agreed plan of action. Effective collaboration requires organisations and people to be clear about:
- their roles and responsibilities for safeguarding and promoting the welfare of children (see the Statutory guidance on making arrangements to safeguard and promote the welfare of children under section 11 of the Children Act 2004 (2007) and Chapter 2);
- the purpose of their activity, the decisions required at each stage of the process and the planned outcomes for the child and family members;
- the legislative basis for the work;
- the policies and procedures to be followed, including the way in which information will be shared across professional boundaries and within agencies, and recorded for each child;
- which organisation, team or professional has lead responsibility and the precise roles of everyone else who is involved, including the way in which children and family members will be involved; and
- any timescales set down in regulations or guidance which govern the completion of assessments, making of plans and timing of reviews.
This has been replaced by the 2013 edition which discusses sharing information in Chapter 1 at para 22. The emphasis appears to have shifted from the earlier guidance about achieving good outcomes to a move to emphasising the importance of sharing information about children who could be at risk. However, there remains a clear need to have procedures in place to ensure that risk is properly identified and information appropriately shared.
The guidance was again updated in 2018.This appears to have expanded significantly upon the 2010 guidance and talks explicitly about data protection law and the need for practitioners to feel confident in how they apply its principles and exceptions. The relevant part now reads:
Effective sharing of information between practitioners and local organisations and agencies is essential for early identification of need, assessment and service provision to keep children safe. Serious case reviews (SCRs13) have highlighted that missed opportunities to record, understand the significance of and share information in a timely manner can have severe consequences for the safety and welfare of children.
The key points made are that practitioners should
- be proactive in sharing information as early as possible
- be alert to sharing information which may impact the child’s safety
- recognise that Information sharing is also essential for the identification of patterns of behaviour
- consider how to build positive relationships with other areas to ensure that relevant information is shared
- have arrangements in place that set out clearly the processes and the principles for sharing information.
- not assume that someone else will pass on information that they think may be critical to keeping a child safe
- aim to gain consent to share information, but be mindful of situations where to do so would place a child at increased risk of harm.
- have due regard to the relevant data protection principles which allow them to share personal information, as provided for in the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).
- be confident of the processing conditions under the Data Protection Act 2018 and the GDPR which allow them to store and share information for safeguarding purposes, including information which is sensitive and personal, and should be treated as ‘special category personal data’
Fears about sharing information must not be allowed to stand in the way of the need to promote the welfare, and protect the safety, of children, which must always be the paramount concern. To ensure effective safeguarding arrangements:
The parents in the Haringey case had a clear advantage over many other parents who might get such a phone call – they knew that Haringey was not following correct procedures. Not many parents could be expected to have their levels of knowledge about how the system worked. This explains why it is clearly demanded of social workers that they help service users understand and exercise their rights.
Assessing Children and Families – an NSPCC factsheet November 2017
If you are not happy with the way an investigation has been carried out, see our post on making a complaint.
You may also be interested in our post about how child protection issues get reported to Children’s Services.