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Justice in Public Law
Added: (Mon Dec 11 2006)
Minister of State for Justice
Department for Constitutional Affairs
Selborne House
50-60 Victoria Street
LONDON SW1E 6QW
December 11, 2006
Dear Minister,
I present before you a series of questions that have arisen in our work with families subject to Social Services intervention in their family life, in the hope of opening constructive and equitable dialogue with your department and any other involved in this area.
FASSIT is a support and information organisation that has grown out of an increasing number of parents (carers, guardians etc) frustrated at attempting to work with Social Services in the best interests of their child/children. Initially a campaign organisation looking to change views over the legitimacy and ethics of ‘forced adoption’ the organisation has grown to encompass support for individuals at any point in the investigative processes operated by Social Services.
A vast proportion of our client base have evidenced what could best be described as blatant discrepancies between the evidence presented at Court by expert witnesses (social services; health; education etc) and the actual events or material facts of the case.
However, due to ‘gagging’ orders and other such Court protections for expert witnesses, clients who are proved innocent or who have their view substantiated by the Court are unable to publicise their cases (which could be argued to be in the public interests). Nor do they see a willingness on the part of the Court to hold these professionals accountable for their evidence, to give a public form to examine whether there was malfeasance, a deliberate and concerted attempt to mislead the Courts, or just that they were not fit to discharge their duties.
Q1: Does the Government have any plans (included within proposed changes to secrecy in Court or outside of this) to redress the balance and hold professionals to account for the accuracy of their submissions and testimony in Court?
Q2: In cases where it can be proven beyond reasonable doubt that such evidence was fictitious or fatally flawed, are there plans for legal safeguards in the following respects:
i) Reversal of any order placed on a child (including freeing orders and adoption [please see later about adoption]);
ii) The automatic requirement for referral of the professional, by the Court, to the relevant authorities for investigation and disciplinary or legal action (i.e. Police, GSCC, SCSI etc);
iii) Proper use of Contempt of Court and Perverting the Course of Justice legislation in favour of the injured party?
As a result of intervention by the Local Authority many of the parents (hereinafter to read as any individual with responsibility to care for a child or children) requesting assistance from FASSIT are finding that contact with their children is being used by Social Services to force ‘compliance’ with their demands without any attempt by Social Services to explain the methodology of their demands, nor in our view, with due regard for the parent’s legal or human rights.
Indeed it appears that despite the spirit of the Children Act requiring and recognising the right of children to have contact with family and friends and for this contact to be facilitated and supported by the Local Authority, this is not the case in practice. Consequently, parent(s), grandparents, extended family and friends are finding that they have no ‘legal rights’ to contact with the accommodated child and that Social Services have absolute power in this regard.
Often and despite research findings and Government guidance, Local Authorities are placing children in locations that are difficult if not impossible for parents and others to visit accommodated children. Further, it is commonplace in our experience, for Social Services to sever contact between parents, extended family and friends with the accommodate child on the basis that the child’s behaviour worsens after such visits. The emotional trauma of the accommodation process together with the emotional loading of seeing family and friends and not being able to be reunited with them is likely to adequately explain many if not all of these behaviours. It is, in our view, disgusting that Social Services would frame such behaviours in a way so as to blame the parents! Further, it seems inhumane to suggest that the best option or alternative is to cease contact between the child and their family and friends (this includes siblings).
Q3: Does the Government have plans to legislate contact arrangements between accommodated young people and their families?
Q4: Does the Government agree that such arrangements should be the purview of the Courts and not an issue for Social Services?
Q5: Does the Government recognise the supremacy of the Court over the interests of Social Services?
Q6: Does the Government have plans to reinforce the value and primacy of the family unit over the interests of Social Services?
Q7: Does the Government have plans to monitor and review current working practices of Social Services in regard to rights of visitation for parents?
Q8: Can the Government give an undertaking to extend the ‘settlement’ period of adoption to allow a more reasonable ‘grace’ period whereby birth parents:
i) Whose original cases are proved to have been without foundation; or,
ii) Where the Local Authority is proved to have ignored other interventions prior to applying for adoption orders; Can have their case(s) represented to Court and secure a reunification order, revocation order or a stay of final order until further investigations have been conducted?
FASSIT, as an organisation, strongly believes in the need for protection of vulnerable children and young people from abuse. However, increasingly it appears that the organisation set-up to safeguard children is itself becoming abusive, not only to children but also too vulnerable adults subject to Social Services processes.
It is the case that Social Services have ‘monopolised’ the practical applications of current thinking in terms of child protection. Yet many of their policies and initiatives fly in the face of more academic and scientific research (especially sociology and psychology). Social Services have become an insular and antonymous organisation that appears impervious to external influences, with this in mind a balance needs to be struck between: a) the rights of young people to have an equitable voice in their care; the rights of parents, friends and family to have parity and equity in child care proceedings; and, a recognition of the State’s function to protect its citizens from abuse, harm and institutional oppression.
At present the picture is of a State that has devolved its responsibilities to a single organisation (Social Services) in regard to its legitimate role to protect young people and children. Despite initiatives to engender a multi-disciplinary approach to working the primacy of Social Services in all matters remains unassailable. Despite the good work and intentions of organisations such as the GSCC and SCSI it remains the case that those who would have a genuine case to complain about their treatment are those people who are also vulnerable and because of the system disempowered and stigmatised.
Q9: Does the Government have plans, such as in draft mental health legislation, to legitimise and legislate the right of parents and families to:
i) Professional, impartial and accountable advocacy;
ii) Means tested legal support for all stages of child proceedings – including interviews and planning meetings;
iii) Professional mediation between the parent(s), family and Social Services where the relationship between them has broken down irrevocably?
Q10: Does the Government recognise the Declaration of human Rights of the Child and will it review childcare proceedings under this light:
i) With a view to recognising that ‘advocacy’ from within Social Services, the Court or CAFCASS is not independent or impartial;
ii) That children have the right to access to independent and independently funded advocacy;
iii) That the views of the child should have some legitimacy within the process that is externally validated and qualified?
Any institution that is unaccountable to its client base has no imperative or impetus to change or any ability to recognise when its own infrastructure is abusing power. Cultural ideologies and pedagogies are stagnant with Social Services and the move to professionalisation and managerialism has removed the ‘empathic’ component of this service to the extent that it is widely considered to be “a Law unto itself”. This is very much the picture being presented to FASSIT from solicitors in the field who find that despite understanding the letter of the law are powerless to navigate the internal processes and procedures of Social Services departments.
Absolutism has never been considered a healthy or appropriate paradigm for the execution of socially coercive powers – the State itself vest different powers in different bodies and subjects its own decisions to scrutiny by the House of Commons, the press, the Lords, the Judiciary and ultimately the electorate. Social Services has no such accountability, its mechanisms are shrouded in mystery and many of its operations and conclusions are reminiscent of folk-psychology or the witch-hunts of early centuries. Social Services rests itself on the belief that it is only its opinion that matters and that their beliefs and opinions do not have to be evidenced in facts.
Q11: Does the Government have plans to radically re-evaluate the role and merit of Social Services in contemporary society?
Q12: Does the Government concede that there may be merit in considering disestablishing Social Services and reinvesting the capital monies in other professional disciplines that are equally or more adequately skilled to undertake the assessment and provision roles currently ring fenced to Social Services – i.e. disabled children and adults; mental health; learning disabilities etc.
FASSIT has become aware of a growing chasm between the ‘lay’ expertise (to put it politely) and folk-psychology approach of Social Services and the evidenced and ethical practices of other specialists (health and psychology) in respects of developmental and psychological disorders. As ‘gatekeepers’ or ‘access points’ Social Services exert an enormous influence on the professional network and act as inhibitors of creative intervention where such interventions do not fit with Social Services perceptions of a situation or their desired outcome. Often they are fixed in their belief that children should be accommodate or adopted and professionals are unable to penetrate this mind set.
Developmental delays, cognitive impairment and other (non-traumatogenic) psychological presentation are well known and accepted within scientific communities to exist on a spectrum of disorder and impairment. The diagnoses and prognosis for complex disorders is something that requires skill, training and experience. None of these is a prerequisite for Social Services who are to many a “Jack-of-all-trades and master-of-none”. However, it is still the case that Social Services take priority in driving plans and interventions and set the ‘tone’ of child process interventions that professionals find difficult if not impossible to challenge and has led to many missed diagnoses or cases where subsequent to accommodation Social Services have been forced to acknowledge the underlying psychological problems.
Q13: Does the Government have plans to redistribute authority and autonomy within the professional network to encourage healthy debate between members of child process panels (such as child protection) to mitigate the influence and arguably autocratic operations of Social Services?
Q14: Specifically, does the Government have plans to require, in the absence of specialist professional availability, that Social Workers undertaking complex assessments should:
i) Pass a professional assessment and hold accreditation in the particular specialism required;
ii) Have this accreditation prior to beginning any such assessment with a family;
iii) Cease their specialist work if a professional become available or seek external, independent validation for their findings;
iv) Submit to blind (without warning) re-assessment in practice and theory by an independent specialist registering body (not the GSCC)?
Q15: Where differences exist between specialists and Social Services would the Government give an undertaking to issue guidance that the specialist supersedes Social Services?
Q16: Does the Government agree that children and young people have a right to specialist assessment by verified and competent professionals rather than generic assessments currently undertaken by Social Services?
Q17: Does the Government agree that where the only concern to Social Services regarding the safety of a child relates to the abilities or competence of a parent in terms of developmental delay or other psychological presentation then assessment should be undertaken by a relevant specialist – preferably from an organisation that has experience and understanding of supportive and independent living?
Q18: Does the Government agree that removal of a child solely based on the potential for harm, where no evidence exists, is a breech of human rights and that where this is based solely on the perceived intellectual capacity and functioning of the parent(s) is tantamount to Disability Discrimination as legislated against in many areas of public life?
Q19: Does the Government have plans to extend or reinforce such legislation, as in Q15, to specifically refer to the conduct of Social Services and other health and social care agencies?
An assessment by Social Services may, at any point, turn into an inquiry or investigation without the knowledge of the subject of that assessment. Social Services invariably argue that they are under no obligation to inform parents etc., yet such information may provide the basis for further legal action.
Social Services do not, even when directly requested via a parent or legal advisor, feel they are obliged to provide the legal basis for their enquiries. Further, they do not have a process, again even when directly requested, to inform parent(s) of their rights or even the process document relating to the investigation. Whilst the legal caution for a suspect being interviewed outlines their right to silence, the potential consequences of failing to answer a question when asked if giving an answer to the Court later, and the fact that anything said in interview may be presented as evidence, this never happens in Social Services investigations and participants are strongly dissuaded from taking minutes or recordings of meetings and only receive limited copies of notes without applying or access under Freedom of Information Act legislation.
Q20: Can the Government justify or explain why parent(s) involved in family actions are not treated similarly and accorded the same basic rights (as under the PACE codes of practice) that would accompany their being questioned by the Police? Specific points for consideration are:
i) Can the Government give an undertaking to review the legitimacy of data gathering by Social Services, specifically in line with what would be required in similar circumstances to data gathered by the Police?
ii) Can the Government give an undertaking to review all aspects of the interview and assessment process of Social Services giving due regard to the civil, legal and human rights of the subject(s) of those enquiries?
iii) Can the Government review the lack of a requirement for Social Services to explain and document their legal position in regard to the answering of questions and requests for provision of information from subject(s) of such enquiries?
The terms ‘emotional abuse’ and ‘likelihood of emotional abuse’ are the most common category cited by Social Services in their interventions to remove children from the family home. Yet various researchers and academics find the term ‘emotional abuse’ to vague and broad to have any legitimate and universal meaning. Describing the term as both culturally specific and contested, researchers have found little correlation or transparency of application of thresholds amongst social care organisations (domestically or globally). It is viewed as an ineffable category that has subject the whole of child protection to a grey area open to interpretation and subjectivity.
Emotional abuse is viewed as a standardised term that allows Social Services a wide remit for inferring in private family life. Much of the outcome of individual reports is little more than prophesying with little evidence (other than subjective anecdotal evidence) or ‘professional opinion’. This leaves both the parent(s) and their legal team searching for definitive criteria, thresholds and evidential requirement to be expected from Social Services in presentation of their allegation(s) and yet invariably this is not the case when presented to Court.
Q21: Has the Government plans to re-issue guidance on what constitutes ‘emotional abuse’ and will it proscribe minimum thresholds that are transparent to all parties; and will it seek to define the legal evidential requirements on Social Services as proof of ‘emotional abuse’?
Thank you for taking time out of your undoubted busy schedule to consider responses to the questions above. In order to fully answer the points above FASSIT accepts and encourages dissemination of this paper amongst your and other departments and in order to facilitate better communication and understand FASSIT is more than willing to be approached for further clarification of the points above.
Whilst FASSIT campaigns for change in Family Law it remains committed to working, wherever possible, in partnership with Government and other agencies to bring about a safer and fairer society for our children and our families.
Link: http://www.fassit.co.uk/justice_in_public_law.htm
Yours sincerely
FASSIT ‘Helping to Support One Another’
http://www.fassit.co.uk/