Child Law for Social Work


Jane Williams

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    Alphabetical List of Cases

    • A v United Kingdom [1998] FLR 118; [1998] EHRLR 82 45
    • A County Council v K, D and L [2005] 1 FLR 851 184
    • A Local Authority v S and W and T by his Guardian [2004] EWHC 1270 (Fam) 180
    • Ali v Lord Grey School [2006] UKHL 14 47
    • Botta v Italy [1998] ECHR 12; [1998] 26EHRR 241 21, 46, 125, 127, 138
    • Bouamar v Belgium [1989] 11 EHRR 1 45
    • CD v Isle of Anglesey County Council [2004] EWHC 1635 (Admin) 76, 144
    • CF v Secretary of State for the Home Department [2004] 2 FLR 517 47, 76, 86
    • Clingham v Royal Borough of Kensington and Chelsea; R (McCann) v Manchester Crown Court [2002] 4 All ER 593 234
    • Council for the Civil Service Unions v Minister for the Civil Service [1985] AC 374 75
    • D and K, Re (Care Plan: Twin Track Planning) [1999] 2 FLR 872 216
    • DG v Ireland [2002] ECHR, App. 4974/98 45
    • Eriksson v Sweden [1989] 12 EHRR 183 152, 201, 203, 217
    • Gillick v West Norfolk and Wisbech Area Health Authority and the DHSS [1986] 1 AC 112: [1985] 3 All ER 402 28, 175, 239
    • GW and PW v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247 184, 186, 189
    • Hendriks v Netherlands [1983] 5 EHRR 223 46
    • Humberside County Council v B [1993] 1 FLR 257 178
    • JD (FC) v East Berkshire Community Health Trust and others [2005] 2 FLR 284 74, 75, 148, 183
    • Johansen v Norway [1996] 23 EHRR 33 46, 152
    • KA v Finland [2003] 1 FLR 696 203
    • K and T v Finland [2001] 2 FLR 707 149, 203
    • Kent County Council v G [2005] UKHL 68 169
    • Lancashire County Council v B [2000]1 FLR 583 179
    • Lukanov v Bulgaria [1997] ECHR 18 45, 250
    • Mabon v Mabon [2005] EWCA Civ. 634 33
    • McMichael v United Kingdom [1995] 20EHRR205 46
    • Nielsen v Denmark [1989] 11 EHRR 175 46
    • Niemitz v Germany [1992] 16 EHRR 97 46
    • Olsson v Sweden [1988] 11 EHRR 259 46, 152, 204, 218
    • P, C and S v United Kingdom [2002] 2 FLR 631 152, 164, 170
    • Pini and Bertani v Romania [2004] ECHR Apps. 78028/01 and 78030/01 198
    • R v Bexley London Borough Council, ex parte B (Care Hours Provision) [2000] CCLR 15 137
    • R v. Cannings [2004] EWCA Crim. 1 186, 188
    • R v Central Criminal Court ex parte W, B and C [2001] Cr App R2 251
    • R v Hampshire County Council ex parte H [1999] 2 FLR 359 76, 164–5
    • R v Harrow London Borough Council ex parte D [1990] 165
    • R v Islington London Borough Council, ex parte Rixon [1996] ICCLR 119; The Times, April 17 52
    • R v Norfolk County Council ex parte M [1989] 2 All ER 359 76, 164
    • R v North and East Devon Health Authority Ex Parte Coughlan [2001] QB 213; [2000] 3 All ER 850 142–3
    • R v Royal Borough of Kingston upon Thames ex p. T [1994] 1 FLR 798 80
    • R v Somerset County Council, ex parte Fewings [1995] 3 All ER 20 60
    • R v Tameside MBC ex p J [2000] 1 FLR 942 R v W [2001] 1 Cr App R (S) 143 191
    • R (AB and SB) v Nottingham City Council [2001] EWHC Admin 235 131
    • R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 47
    • R (G) v Barnet London Borough Council; R (W) v Lambeth London Borough Council; R (A) v Lambeth London Borough Council [2003] UKHL 57, [2004] 1 All ER 97 19, 137, 138–41, 142
    • R (Howard League for Penal Reform) v Secretary of State for the Home Department and Department of Health [2002] 1 FLR 484 19, 55, 223, 226, 250
    • R (J) v Enfield London Borough Council and Secretary of State for Health, ex parte [2002] EWHC 432 29, 75, 138, 142
    • R (L) v Secretary of State for Health [2001] 1 FLR 406 201
    • R (M) (A Child) v Sheffield Magistrates Court [2004] EWHC 1830 27, 134, 205, 242
    • R (S) v London Borough of Wandsworth, London Borough of Hammersmith and Fulham, London Borough of Lambeth [2002] 1 FLR 469 131
    • R (S) v Waltham Forest Youth Court and Others [2004] 1830; [2004] F.C.R. 281; [2004] Fam Law 790 46, 249
    • R (T) v St Alban's Crown Court [2002] EWHC 1129 Admin 234
    • R (W) v London Borough of Lambeth [2002] EWCA Civ 613 39, 138
    • Re AB (Care Proceedings: Disclosure of Medical Evidence to Police) [2003] 1 FLR 579 190
    • Re B (Adoption Order) [2001] EWCA Civ 347 209
    • Re D and K (Care Plan: Twin Track Planning) [1999] 2 FLR 872 165, 216
    • Re F (A Minor) (Care Order: Withdrawal of Application) [1993] 2 FLR 9 177
    • Re G (Care: Challenge to Local Authority's Decisions) [2003] 2 FLR 42 104, 152, 202
    • Re G (Children) (Care Order: Evidence) [2001] EWCA Civ 968 179
    • Re G (Protocol for Judicial Case Management in Public Law Children Act Cases: Application to become a Party in Family Proceedings) [2004] EWHC 116 (Fam) 169, 170, 173
    • Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 4 All ER 905 156, 179, 181
    • Re K (Secure Accommodation: Right to Liberty) [2001] 1 FLR 562 18, 45, 199, 203
    • Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam); [2002] 2 FLR 730 152
    • Re L (Care Proceedings: Human Rights Claims) [2003] 2 FLR 160; [2004] 1 FCR 289 77, 201
    • Re L (Children) [2006] EWCA Civ 1282 185
    • Re LU (A Child) and Re LB (A Child) [2004] EWCA (Civ) 567 182, 186, 188
    • Re M (A Minor) (Care Order: Threshold Conditions) [1994] 3 WLR 558 179
    • Re M (Care: Challenging Local Authority Decisions) [2001] 2 FLR 1300 152
    • Re M (Care Proceedings: Disclosure: Human Rights) [2001] 2 FLR 1316 190
    • Re M (A Child) (Secure Accommodation) [2001]EWCA Civ 458; [2001] 1 FCR 692; [2001] 2 FLR 169 203
    • Re M (Interim Care Order: Removal) [2005] EWCA Civ 1594; [2006] 1 FLR 1043 152
    • Re M & R (Child Abuse: Evidence) [1996] 2 FLR 195 183
    • Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134 177
    • Re P-B [2006] EWCA Civ 1016 216–17
    • Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 175, 185, 186, 187
    • Re S (A Child) (Adoption Order or Special Guardianship Order) [2007] 1 FCR 271; Re M-J (A Child) (Adoption Order or Special Guardianship Order) [2007] 1 FCR 329; Re AJ (A Child) [2007] 1 FCR 308 210
    • Re S, Re W [2002] 2 WLR 720; [2002] 1FLR 815; [2002] 2 All ER 192 10, 11, 80, 150, 202, 212
    • Re T (Accommodation by Local Authority) [1995] 1 FLR 159 80
    • Re X, Emergency Protection Orders [2006] EWHC 510 (Fam) 157, 159, 163
    • S.C. v UK [2004] 40 EHRR 10 46, 226, 248
    • Stanley, Marshall and Kelly v Commissioner of Police for the Metropolis and Chief Executive of Brent Council [2004] EWHC 2229 234, 235
    • Surugiuv v Romania [2004] 243
    • Sutherland v United Kingdom [1997] App. 25186/94 47
    • TP and KM v United Kingdom [2001] 34 EHRR 42 152
    • Tyrer v UK [1978] 2 EHRR 1 250
    • V and T v United Kingdom [1999] 30 EHRR 121 46, 55, 225, 226, 227, 247
    • W v Oldham Borough Council [2006] 1 FLR 543 W v United Kingdom [1988] 10 EHRR 29 46, 152, 163, 217
    • X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] FLR 159, 164
    • X (Minors) v Bedfordshire [1995] 2 AC 633; [1995] 3All ER 353 73, 74
    • Yousef v Netherlands [2003] IFLR 210 46
    • Z v United Kingdom [2001] 2 FCR 246; [2001] 2 FLR 612 16, 45, 73, 149, 152

    Alphabetical List of International Instruments

    Alphabetical List of Statutes

    Acts of Parliament
    Secondary Legislation
    • Adoption Agencies Regulations 2005 S.I. 2005/389 215, 216
    • Adoption Agencies (Wales) Regulations 2005 S.I. 2005/1313 (W 95) 215, 216
    • Adoption Support Services Regulations 2005 S.I. 2005/691 218
    • Adoption Support Services (Local Authorities) (Wales) Regulations 2005 S.I. 2005/1512 (W 116) 218
    • Arrangements for Placement of Children (General) Regulations 1991 S.I. 1991/890 204, 205, 211, 217
    • Children Act 1989 Representations Procedure (England) Regulations 2006 S.I. 2006/1738
    • Children (Allocation of Proceedings) Order 1991 S.I. 1991/1677 86
    • Children's Homes Regulations 2001 S.I. 2001/3967 13
    • Children's Homes Regulations (Wales) 2002 S.I. 2002/327 W 40 13
    • Children's Commissioner for Wales Regulations 2001 S.I. 2001/2787 W.237 56, 82
    • Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2003 S.I. 2003/762 137
    • Community Care, Services for Carers and Children's Services (Direct Payments) (Wales) Regulations 2004 S.I. 2004/1748 (W 185) 137
    • Family Proceedings Rules 1991 S.I. 1991/1247 33, 173, 177
    • Family Proceedings Court (Children Act 1989) Rules 1991 S.I. 1991/1395 (L. 17) 173, 177
    • Family Proceedings (Amendment No. 4) Rules 2005 S.I. 1976 L. 18 190
    • Health, Social Care and Well-being Strategies (Wales) Regulations 2003, S.I. 2003/154 (W 24) 66
    • Placement of Children (Wales) Regulations 2007 S.I. 2007/310 (W. 27) 204, 205, 211, 217
    • Race Relations (Amendment) Regulations 2003 S.I. 2003/1626 40
    • Review of Children's Cases Regulations 1991 S.I. 1991/895, amended by S.I. 2004/1449 (W. 149) and S.I. 2004/1419 204, 211, 212
    • Special Guardianship Regulations 2005 S.I. 2005/1109 218
    • Special Guardianship (Wales) Regulations 2005 S.I. 2005/1513 (W 117) 218


    I would like to express my thanks to all the participants in the Swansea Family Court Inter Disciplinary Forum, from whom I have learned much over the last six years, and my colleagues on the Wales UNCRC monitoring group, especially its co-ordinator Rhian Croke. I am indebted to Professor Mary Hayes for invaluable encouragement and for comments on early drafts. Most of all I would like to thank my husband, Mike, without whose encouragement and support I would not have started, carried on or finished this book.

  • End Note

    Throughout this book it has been emphasised that a rights-based approach to social work practice with children is both a legal and professional requirement. Rights-based thinking is required in order to give effect to the values set out in the NOSCCPQ, the Codes of Practice and the social work Code of Ethics. It helps to refocus attention on children's services users as rights bearers rather than on the services themselves and their organisational context. It helps to promote an approach which is child-centred but which also places the child clearly in a wider community of other rights bearers of all ages, as a citizen in relation to government: as a ‘being’ rather than a ‘becoming’. Based on the assumption of universal entitlement, it necessarily tends to support non-discriminatory practice and to promote a broad notion of equality. It provides an assertive rather than plaintive language in which to advocate on behalf of children denied access to this universal entitlement, and a conceptual system within which conflicts between competing claims and policy objectives can be resolved.

    It has been suggested in this book that social workers should acquire legal knowledge to assist them in developing a rights-based approach. Court judgments demonstrate the way in which specific statutory powers and duties bear additional meaning when construed in accordance with the principles set out in the ECHR and UNCRC. Case-law examples have shown how this impacts on the way in which local authorities exercise the discretion given to them by statute, whether in identifying and supporting children in need and their families, in taking compulsory measures to safeguard children, in supporting looked after children or in dealing with children within the criminal justice system. However, it would be wrong to leave matters there, with an impression that social workers must simply become ever-more adept at receiving and applying messages from the courts about human rights compliance. The child care social worker can and should have a much more active role in developing rights-based thinking and practice than that would imply.

    It has been seen that social work functions are ‘executive’ functions within a constitutional democracy. A constitutional separation of governmental powers allocates to the elected legislature the role of law-making and political scrutiny; to the executive, the role of policy development, administration and law enforcement; to the judiciary, the role of conferring lawful authority on enforcement measures in individual cases and of dispute resolution. Section 6 Human Rights Act 1998 gives ‘further effect’ to the ECHR by requiring both executive and judicial functions to be carried out in a way which is compatible with the Convention rights, subject only to deference to the UK Parliament as supreme law-maker in the British constitution. Section 6 necessitates for both the legal and the social work profession a careful and ongoing examination of the way in which their practice respects and promotes human rights. In doing this both the lawyer and the social worker will be mindful not only of the ECHR but also of other human rights texts, notably the UNCRC, which can be used as an aid to interpretation of the rights of children under the ECHR.

    There are two ways of approaching the requirement to act compatibly. These apply both to lawyers and to social workers. The first is a narrow approach which regards human rights obligations as a compulsory adjunct to domestic powers and duties –; an additional check to be made having first applied traditional reasoning to a decision.

    The second (and preferable) way is to strive to develop a new approach drawing on human rights principles, recognising synergies and disparities with pre-existing traditions. This may result in a conception of individual rights which ranges more widely than the ECHR or any other particular international text –; a conception which, whilst compliant with the internationally agreed standards, is developed and owned by the individual State, reflecting its own social and legal characteristics. There is evidence of a tendency towards each of these approaches by the judiciary in England and Wales post-Human Rights Act 1998 (Masterman, 2005). But whatever approach is taken by the judges, they adjudicate upon only a small part of the decision-making that affects children, and hence the need for a pro-active approach by child care social workers.

    The majority of decisions concerning children are not taken by judges in court but by adults operating in other spheres. The most obvious is the private sphere of the family which is protected from external scrutiny unless a certain threshold of need or risk is reached. At that point, positive obligations arise, requiring State intervention to support or protect the child. In the course of carrying out those obligations, many administrative decisions fall to be made, very few of which are ever scrutinised by the courts. Decisions made in the course of social work assessment, about provision of services, placement and treatment of looked after children, are all such administrative decisions.

    Law provides systems of accountability for these administrative decisions. Some are judicial, involving an application to court: notably judicial review, negligence claims and freestanding human rights claims. Others are administrative, involving an administrative authority such as an audit or inspection body external to the decision-making authority, or involving internal complaints and review systems such as complaints under s. 26 Children Act 1989 and review of looked after children by an independent reviewing officer. There are limits to the reach of any of these systems and in particular there are limits to their ability to effect a change to rights-based thinking and practice.

    Judicial mechanisms are limited by a number of factors. First, legislation confers substantial discretion on the local authority as an administrative body and it is well established that the courts will not interfere with decisions made within that discretion but will limit themselves to review of the way in which a decision is made. Second, statutory duties relating to support and provision of services are normally owed not to any individual but to the public at large, and therefore do not readily lend themselves to individual litigation. Third, even where an individual duty is owed (for example to looked after children under s. 22 Children Act 1989), because of the limitations of legislative incorporation the courts have only restricted powers (that is, those set out in the Human Rights Act 1998) to redefine it as a human rights issue in terms of the ECHR and even less power to deal with it as a children's rights issue in terms of the UNCRC. Fourth, there is the issue of accessibility to legal services. This means not just the availability of legal aid but also acknowledging the emotional, mental and physical effort involved in pursuing a claim for people who, because of their personal and social circumstances, may be amongst the least well equipped to sustain it. Fifth, individual claims are often not the best way to seek review of broad policy decisions: even where an individual claim succeeds, there is no guarantee that it will lead to a change in policy.

    This last point is equally true of administrative complaints in individual cases. In fact the position is even worse, because not only is there no guarantee that a successful complaint will lead to a change in policy, it may not even lead to redress in the individual case. Audit and inspection may be better mechanisms than individual complaints for examining broad policy decisions, especially those decisions about the allocation and management of resources which are so crucial to implementation of the social and economic rights of children and with which the courts are least likely to interfere. Audit and inspection operate within a statutory remit and measure performance against pre-ordained criteria. In England and Wales these are not as yet couched in terms of fulfilment of children's rights but the Audit Commission has demonstrated the potential for use of general powers of investigation to embrace inquiring into and reporting on the extent to which administrative decision-making properly reflects human rights principles (Audit Commission, 2004). The Children's Commissioners offer a further opportunity to promote rights-based practice and there is evidence of this being put to good use in the early years of operation of all four of the UK's Children's Commissioners, despite the weak formal connection between the English Commissioner and the UNCRC. Common to all these administrative mechanisms, however, is that their decisions and recommendations are not legally enforceable so that their impact is very largely dependent on political will.

    Social work decisions, assessments and judgements made in day to day child care practice are based on the values held by the individual practitioner in her professional capacity. The limitations on the reach of judicial and administrative accountability mean that the way in which social workers operationalise their rights-based professional values is in practice of far more significance to far more people than the decisions made either by the courts or in the course of administrative processes for accountability.

    It has been suggested here that constant attention to process, purpose and proportionality, combined with a thorough understanding of what the ECHR and UNCRC require, will help keep decision-making compliant with human rights obligations in individual case-work. No doubt the well-trained, qualified child care social worker will acquire the necessary understanding and be able to see how individual case-work can be conducted from a position which puts first the child's entitlement to protection, provision and participation. Yet the social worker will encounter barriers to fulfilment of this aspiration. The barriers may be cultural (for example, a rights-averse ‘child view’), structural (for example, organisational or geographical barriers to integrated service delivery) or simply a question of capacity (put crudely, insufficient numbers of people like her to deal with increasing case-loads). Such were amongst the barriers explored by Morris (2000), in discussion with a wide range of participants including looked after children and key service personnel having responsibilities in relation to their care. She concluded that the relationship of social worker and child was critical to the realisation of the children's entitlement within a rights-based perspective, but she also recognised that other matters, in particular the organisation and funding of services and the training and recruitment of staff, were equally important.

    In a rights-based perspective, the effective provision of adequate resources is properly to be seen as an aspect of the State's positive obligation to deliver the universal entitlement. It is not one which is likely to be achieved solely by doing individual case-work better. As Masson (2006) has argued, the tendency in major inquiries and reviews to concentrate on failings in individual casework serves to obscure the underlying policy problems for which responsibility lies at a collective, political level rather than with individual practitioners. The adequate supply and effective direction of resource should properly be seen as UNCRC-compliance issues. The question then arises what mechanism, if any, can be employed to effect the necessary change, given the limitations of the systems for accountability referred to above. The most obvious answer lies in the monitoring and reporting process provided in Article 42 UNCRC itself. This is a legal process in the sense that it is contained in an instrument of international law, but is in practice essentially a political process, in which arguments about policy and about the allocation of resources (directly addressed in Article 4 UNCRC) sit more comfortably than in any judicial process and fall to be determined unequivocally by reference to children's rights. The publication of this book will coincide with the final part of the conflated third and fourth reporting periods for the UK within this process.

    The UN process provides an opportunity to promote the changes necessary to fulfil the positive obligations of the State. A key role may be played by those statutory bodies and non-statutory alliances which prepare independent reports for the UN Committee (in practice, in both England and Wales, the Children's Commissioners and alliances of non-governmental organisations). Through their networks these bodies and alliances are able to identify shortfalls in provision and to consider aspects of policy and practice which need to change. When they submit their report to the UN Committee, they are communicating messages to a supra-national body, to which the UK Government must account. Child care social workers can engage with this process, whether as individuals or collectively, contributing their expertise to the task of influencing policy development and legislative change. This would be consistent both with professional standards and ethics and also with the self-executing ordinance of s. 6 Human Rights Act 1998. It would accord with the pleas of senior family judiciary, some of which have been referred to in this book, for greater absorption of human rights principles into practice. Accordingly, the last message here is an optimistic and exhortatory one, to commend consideration by all practitioners of the potential of the UN process, in conjunction with governmental and non-governmental organisations, to further the development of rights-based policy and practice at national and sub-national levels of government, as well as in their individual case-work with children and their families.


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