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About this book

Written by a team of leading authorities in the field, this collection provides a critique of the law as it applies to social work practice, and identifies key contemporary issues for social work. Tackling topics such as trafficking, youth justice and child protection, the book is a valuable contribution to the debates in social work law.

Table of Contents

1. Introduction: Critical issues in challenging times

The idea for this edited collection arose out of an established collaboration between social work and law academics at Keele University. Several of the chapters are developed versions of papers presented at a social work law research seminar series held at Keele which brought together academics, practitioners and policymakers. For a number of years the recognition of social work law as a discrete academic discipline has grown (Preston-Shoot et al., 1998), and this is reflected in the growing body of knowledge in this area. Established texts provide detailed explanation of the law relevant to social work practice and applied illustrations through case studies of that law in practice (Brammer, 2015; Braye and Preston-Shoot, 2016). More critical research literature, however, is lacking, or has to be gleaned from journals on topics of relevance – for example, relating to care proceedings, but not necessarily from a social work law perspective. In bringing together this collection, we recognise that one of the challenges facing practitioners is keeping up to date with changes in the law and debates concerning its impact and application. Increasingly, there are calls for greater legal literacy among the social work profession emanating critically from the courts, policy documents and serious case reviews.
Alison Brammer, Jane Boylan

2. Social work values, the law and the courts

The relationships between the law, individual values and society’s values have long been matters of intense debate for politicians, judges and philosophers. And social workers, although they may well be seen to lack the professional power or social status of those other groups, find themselves firmly in the middle of those debates – or, as it may be better to put it, at the sharp end. Think of the sort of questions that social workers have to address as part of their everyday job. How much support should be offered to parents to help them care for their children, or when should the children be placed in a different family? When should an individual be detained in a hospital or a care home, without their own agreement? How much money should be spent to help an individual remain living in their own home in the way that they choose, when budgets are limited and demand is high? The law provides one framework for thinking about these difficult matters – what is required and what is allowed, what isn’t allowed, what legal processes have to be followed. But the legal provisions have to be seen in the context of wider societal values about family life, the role of the state and the powers of the court; and social workers will also have their own personal beliefs about these matters.
Jonathan Dickens

3. Anti-oppressive practice and the law

This chapter will consider how the law can be used to promote anti-oppressive practice. The reality of contemporary social work is that resources are limited and legalism is a feature of practice. It can be argued that legislation, guidance and regulations prescribing practice promote and encourage good practice since they stress the importance of prevention and support as well as providing legal safeguards when compulsory intervention is needed. However, the controlling and restrictive elements of legislation move social workers away from responding to need to managing risk. The impact of this is the development of a ‘defensive and morally timid social work practice’ (Stanford quoted in Whittaker and Havard, 2015). The contradictions that consequently characterise the complex relationship between practitioners, services users and the legislative framework will be examined within this chapter. By encouraging practitioners to critically reflect on the dilemmas they may face when working within restrictive policy and legislative frameworks, while at the same time advocating for people’s rights, a more creative and nuanced response to using the law can be promoted. In recognition of the complex relationship which exists between the law and antioppressive practice, the authors will demonstrate that using the law alongside professional codes and guidance can contribute to the development of practice that is beneficial, supportive and promotes anti-oppressive values.
Beverley Burke, Jane Dalrymple

4. Care, vulnerability and the law

This chapter will explore the norms that underpin the law. It will be argued that the law presumes that citizens are autonomous, independent and self-sufficient. The law is designed to promote and protect the values that such a being would want. This works against the interests of those who fall outside the model. In particular, it leads to a devaluing of the importance and impact of care work. It also leads to a sharp divide between those who are labelled as vulnerable and those who are not. This causes particular problems for those in caring relationships who suffer from the lack of respect for care and a misapplication of the notion of vulnerability. Privacy, respect for autonomy and the promotion of independence play a central role in much social work. The British Association of Social Workers (2012), in its Code of Ethics for Social Workers, emphasises the values of autonomy. That means allowing service users to determine for themselves how to live their lives, unless there is a risk of serious harm to others. The opening principle is: Social workers should build and sustain professional relationships based on people’s right to control their own lives and make their own choices and decisions. Social work relationships should be based on people’s rights to respect, privacy, reliability and confidentiality.
Jonathan Herring

5. Coercion in social care

The very idea of coercion in social care seems contradictory, and, to many, even abhorrent. How can someone be compelled to accept care? How can someone who is an adult be forced to comply with the decisions that someone else is making for them? How can someone be obliged to stay living in a care home where they do not wish to be? This surely is an infringement of their basic rights, a true deprivation of liberty. The answer, in brief, is when someone has lost the ‘capacity’ to make decisions for themselves, so they are legally considered to have lost the right to self-determination. This raises a whole host of legal, policy, practice and ethical issues which this chapter aims to highlight. The intention here is to analyse how these interact and intersect, rather than offer detailed advice about how practitioners should apply the law in specific cases (for which see Barber et al., 2012; Brown et al., 2015; Department for Constitutional Affairs, 2007; Johns, 2014; Mandelstam, 2013; Ministry of Justice, 2008; SCIE, 2015; Williams and Evans, 2013).
Robert Johns

6. Child protection

The term ‘reform’, with particular reference to family justice and child protection, continues to be used indiscriminately. There are associated terms that are almost as pervasive: modernise, timely, quality, timeframes and deadlines. These terms have been deployed routinely within the last decade with procedures that have been introduced with the aim of ensuring that court proceedings in respect of children are concluded more quickly, while at the same time reducing the resources that are required to deal with these complex matters. The introduction of the Public Law Outline (PLO) (Ministry of Justice, 2008) in 2008, the revised PLO 2010, 2013 and 2014 and the Children and Families Act 2014 has set in train further instrumental approaches to dealing with complex child protection cases by requiring local authorities to demonstrate compliance with pre-proceedings protocols prior to an application to court being made, when in many instances the families have been known to children’s social care for several years (Broadhurst and Masson, 2013). Debates continue between the modernisers who are seeking reform through legislation and protocols that have introduced further procedural elements to achieving justice for children and their families, and the more conservative approach that advocates a holistic approach to decision-making (Re B (A child) (Care Proceedings: Threshold Criteria) [2013] UKSC, 33; Re B-S (Children) [2013] EWCA Civ 1146; Re A and B v Rotherham Metropolitan Borough Council [2014] EWCF 47; Re J and S (Children) [2014] EWFC 4; Re C (A Child) [2013] EWCA Civ 431; Re R (a child) [2014] EWCA Civ 1625; M P-P (Children) [2015] EWCA Civ 584; Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039; Re H [2015] EWCA Civ 583; Re B and E (Children) [2015] EWFC B203).
Kim Holt

7. Hastening slowly: Does the law promote or frustrate timely adoption from care?

Non-consensual adoption from care will always be controversial, and these wise words of the former President of the Family Division acknowledge the concerns of the general public, encouraged by certain sectors of the press. Bullock (2011) expresses another side of the coin: while there are undoubtedly a lot of abused and neglected infants entering care, for most of them adoption does not leap out as the automatic solution for all kinds of reasons, not just the stupidity, stubbornness and prejudices of social workers and judges. For good or ill, successive governments in recent years, beginning with Tony Blair’s Labour administration, have generated a flurry of initiatives both to speed up and to increase adoptive placements. This enthusiasm has to be considered within the legal context of the hierarchy of placement choice, as prescribed by section 22C Children Act 1989, which requires consideration first of rehabilitation to birth parents, and then placement within the wider family: only if safe family placement cannot be achieved should consideration be given to permanency elsewhere. As Lord Templeman famously stated in Re KD (a Minor) [1988] 1 All ER 577 HL: The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered. Public authorities cannot improve on nature.
Sally Dowding

8. The changing face of youth justice

In this chapter we are concerned with the operation of the criminal justice system as it applies to defendants under 18 years of age. This group includes children (10–13) and young persons (14–17), collectively referred to as ‘juveniles’ and, in this context, ‘young offenders’. While youth justice is certainly part of the wider criminal justice system, it is a highly distinctive area in which many of the rules, guidelines and conventions are different from those which apply to young adult (18–20) and adult (21 and over) defendants. This reflects a long-standing policy choice to deal with young offenders separately from their older counterparts as far as possible. As we will see, the reality of criminal justice is that few youngsters who break the law are prosecuted and taken to court. The great majority are dealt with more informally, through youth cautioning, the latest form of diversionary measure designed to avoid the stigma and labelling associated with bringing young defendants before the courts. Youth is an important factor in deciding criminal justice outcomes because offending may, in large part, reflect immaturity and inexperience. Young offenders often suffer from a range of social disadvantage and difficulty. It is important to remember that the majority of youngsters ‘grow out of crime’ (Rutherford, 1986), and that while criminal justice intervention may sometimes help to reinforce social boundaries, provide support and assist in promoting desistence from crime, it may also have the unintended effect of reinforcing delinquency. Minor criminality in early years may be a natural testing of the rules rather than evidence of a settled pattern of antisocial activity (see further Pickford and Dugmore, 2012: 61–86).
Martin Wasik

9. Vulnerable and intimidated witnesses: Special measures, competence, consent and cross-examination

It is a sad fact that some members of society, including the very young and those who are mentally or physically incapacitated, are particularly susceptible to abuse: an autistic man duped out of his disability benefits by his so-called friends; a deaf woman physically abused and kept locked up as a domestic slave; a very young boy stamped on by his ‘carer’; a learning-disabled resident of a care home sexually abused by a member of staff. Unfortunately these are real examples from cases in the criminal justice system where the evidence of the victim has been crucial for a prosecution. If the criminal justice system is working correctly, the police will investigate and gather the evidence, the right suspect will be charged and there will be a guilty plea or a finding of guilt after a trial. When a matter proceeds to a criminal trial, in the usual course of events, prosecution witnesses will be required to give their evidence orally and to be available for oral cross-examination. Where a witness is ‘vulnerable’ on account of their age, physical or mental disability or disorder or ‘intimidated’ through fear of distress, it raises the issue of what adjustments should be made to standard court procedures to enable the witness to give their best evidence.
Penny Cooper

10. Human trafficking and social work law

Trafficking of human beings is a global problem. It has been estimated that approximately 140,000 people are trafficked into or within Europe each year (United Nations Office of Drug and Crimes, 2010: 7). Of these, only 10,374 have been identified by the relevant authorities in 2013 alone (US Department of State 2014: 45, 61), suggesting that the vast majority of victims are not properly identified in practice. Within the United Kingdom, a total of 2,340 victims from 96 countries were identified in 2014 (National Crime Agency, 2014: 1). The clandestine and sophisticated nature of human trafficking means that the actual number of victims is likely to be higher than these statistics. Upon arrival at their destinations, these victims are exploited in a number of ways. While female victims are predominantly exploited sexually, male victims are trafficked for the purpose of labour exploitation (Eurostat, 2015) in sectors including agriculture, construction, catering and food processing. The annual profits generated from sexual and labour exploitation amounts to $150 billion (International Labour Organization, 2014: 13), highlighting that human trafficking and exploitation are lucrative businesses for criminals. Human trafficking is not merely a criminal justice issue. It is also a human rights issue, as its victims experience gross violations of their fundamental rights and freedoms before, during and after their journey.
Tom Obokata

11. Good review? Good question

This chapter examines the arrangements for review in services for adults-at-risk and explores whether they achieve their aims. New provisions within the Care Act 2014 restate the primacy of achieving systemic change, as opposed to the holding of individual service providers to account, but in a fragmented marketplace of health and social care provision this often proves illusory. Meanwhile, the mechanisms for review often provide a clumsy vehicle for managing the distress of relatives or for recalibrating the standards of staff. Definitions of the noun ‘review’ confirm that it is a formal assessment of an event or process with the intention of instituting change if necessary. The verb ‘to review’ refers to a process of going over a subject. It is helpful to keep these definitions in mind as we consider some familiar responses to tragedies and scandals, all of which promise learning and reform. These are variously mandated as ‘inquiries’, serious case reviews (SCRs), post-incident reviews, statutory domestic homicide reviews (DHRs), serious incident reviews or serious incidents requiring investigation.
Margaret Flynn, Hilary Brown
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