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Losing control of the rudder?

Predeterminiation iStock 000016468646Small 146x219Allan Norman considers how assessments of need without significant harm are treated under 'Working Together 2013’ and ls left distinctly inimpressed.

I do not like the new ‘Working Together’ on assessments of need in the absence of significant harm.

I have pointed out elsewhere that ‘Working Together 2013’ is almost completely silent on the subjects of human rights and data protection, to its huge detriment – we have to comply with these laws whether ‘Working Together’ helps us to do so or not.

Here, I focus in particular on the assessment of children in need. I will return to Human Rights Act compliance, but first, some historical context. It is, I think, a drama in two Acts.

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Act I – “Please assess me!

People fought for years for the right to an assessment as a child in need under section 17. 

You see, section 17 does not refer to assessment. And it opens with the words “it shall be the general duty…” Local authorities, alive as ever to financial constraints, sought to argue (with some success) that section 17 was a “target duty”. That is to say, it was something to aim at. It was aspirational. But critically, it did not give any individual child in need the right to be assessed under section 17. 

As ever with social services, assessment was the gate through which you had to pass to receive services. So, if social services refused to let you pass through that gate, you could not access the services the other side of it. In contrast, there was a duty to assess (“enquire” into) the situation of a child suspected to be at risk of significant harm. Many local authorities effectively developed policies which suggested that being on a register of such children was the route to accessing support. 

The Children Act was passed 24 years ago. Act I really covers the first half of its life. The definitive judgment on whether there was a right to an assessment if there was no risk of significant harm came from the House of Lords in 2003 in W, R (on the application of) v. London Borough of Barnet [2003] UKHL 57 (23 October 2003).

The opening paragraph sets the context well: “The first and principal legal issue relates to the nature and extent of the duty imposed on local authorities by section 17 of the Children Act 1989. The claimants' case is that section 17(1) requires a local authority to assess the needs of a child who is in need and to meet his needs when they have been assessed. The defendant local authorities refute both limbs of this claim. 

In summary, their Lordships answered the first question positively, and the second one negatively. You can insist on an assessment; you may or may not have a right to services thereafter. 

Section 17 was amended thereafter, by the insertion of an additional subsection, referring to the provision of services to an individual child, and the need to ascertain the wishes of that child where possible. 

Note that these claims were brought by people who wished to be assessed, hence my name for Act I – “Please assess me!” 

Act II – “Let us assess them!”

Earlier in 2003, Lord Laming’s report into the death of Victoria Climbié was published. On the back of that report came a swathe of initiatives – the Every Child Matters initiative; the Children Act 2004; the creation of the ContactPoint project, and of the Children's Commissioner for England.

The following year, in response to the Soham murders, came the Bichard report, leading to the foundation of the Independent Safeguarding Authority, later the Disclosure and Barring Service.

The backdrop was changed. Every Child Matters was very much about the broader welfare of children and not just their protection. The Bichard principle was very much about the accumulation and analysis of data as a critical part of risk assessment. 

Act II, corresponding roughly to the last decade, has in one sense a different agenda to Act I. There is a growing wish to extend the right of the state to intervene in the lives of children and families. But note that in another sense, it has a strongly shared agenda with Act I. Whether turning families away at the gate, or forcing them unwilling through it, neither Act is about empowering children and families; the State is firmly in control of the gates. 

It is in the context of that unfolding drama that I come to analyse ‘Working Together 2013’ on assessment of children in need, and to make three points, on ‘statutory assessment’; on the use of consent or compulsion; and on the significance of harm. 

Statutory assessment

Firstly, on statutory assessment. Paragraph 26 of the first chapter of ‘Working Together’ talks about “statutory assessments”. First among these is an assessment of a child in need under section 17. I find it curious, to put it mildly, that an assessment we once denied children and families had a right to receive now occupies such pride of place. But I have set out above that there is a right to such an assessment, so perhaps this is just the natural culmination of Act I, the empowering of children and families? Let us see… 

It is interesting to observe paragraphs 36-37: 

“36. Every assessment should be child centred. Where there is a conflict between the needs of the child and their parents/carers, decisions should be made in the child’s best interests.

37. Each child who has been referred into local authority children’s social care should have an individual assessment to respond to their needs and to understand the impact of any parental behaviour on them as an individual.” 

‘Child-centred’ and ‘best interests’ may seem warm and desirable concepts, (unless you’ve heard me before on best interests decision making with adults) but I venture to suggest that the social worker supplanting the parent in the event of a dispute about a child’s best interests, and routinely assessing the impact of “parental behaviour” is not really language designed to appeal to parents as empowering or to encourage the rights of families to secure assessment. 

Consent or compulsion? 

Secondly, on the use of consent or compulsion. ‘Working Together 2013’ has another type of assessment, an ‘early help assessment’: 

“These early help assessments… should identify what help the child and family require to prevent needs escalating to a point where intervention would be needed via a statutory assessment under the Children Act 1989 (paragraph 26).” [paragraph 8, page 12] 

And at paragraphs 10 and 11: 

10. For an early help assessment to be effective: 

  • the assessment should be undertaken with the agreement of the child and their parents or carers… 
  • if parents and/or the child do not consent to an early help assessment, then the lead professional should make a judgement as to whether, without help, the needs of the child will escalate. If so, a referral into local authority children’s social care may be necessary. 

11. If at any time it is considered that the child may be a child in need as defined in the Children Act 1989, or that the child has suffered significant harm or is likely to do so, a referral should be made immediately to local authority children’s social care. 

So, an early help assessment (which is not, intrinsically, a local authority assessment) should be consensual, but a “child in need” “statutory assessment” represents an “escalation”, that need not be consensual – at least, there is no further reference to consent or permission. 

The significance of harm 

Thirdly, on the significance of harm. These statements appear in the old, but not the new version of Working Together: 

“1.6 …Only in exceptional cases should there be compulsory intervention in family life – for example, where this is necessary to safeguard a child from significant harm. Such intervention should – provided this is consistent with the safety and welfare of the child – support families in making their own plans for the welfare and protection of their children… 

1.26 Some children are in need because they are suffering, or likely to suffer, significant harm. The Children Act 1989 introduced the concept of significant harm as the threshold that justifies compulsory intervention in family life…” 

Harm is defined in the Children Act. What is not defined is what makes it significant. Happily, the old version of ‘Working Together’ used to help us, with extensive guidance on what makes harm significant at 1.128. Thus, the old version unambiguously reminded us that compulsion was the exception not the norm, that significant harm was the threshold, and tried to offer guidance on what it meant. 

Unhappily, ‘Working Together 2013’ offers no such help. It is silent both on the meaning of significant harm, and on significant harm as the threshold for compulsion. 

Now, I am going to draw a bow at a venture, and suggest that I can draw these three threads together and draw something from them. 

A child in need assessment now sits alongside a child protection enquiry as a “statutory assessment”. Every such assessment has the social worker assessing parental behaviour and potentially supplanting the parent as the arbiter of the child’s interests. The distinction between initial and core assessments has gone. The last reference to consent is prior to a referral to social care. The reference to “significant harm” as the threshold for compulsion has gone. There is no longer, apparently, even a need to offer guidance on what “significant harm” might mean. 

Somewhat insidiously, by what is said and by what is left unsaid, children and families social work is being invited to behave as though all statutory social work is under compulsion. 

Those who follow what I have written elsewhere will know I do not favour this as a model for practice – see for example ‘Hobson’s choice – voluntary or compulsory removal of a child?’ Nor will they be surprised if I promptly turn to look at the matter through the prism of human rights. This brings me to the issue of necessity. 

Necessity? 

If we want statutory guidance that complies with data protection and human rights law we are going to have to grasp the nettle of necessity. Children and families social work, being state intervention in private and family life, engages Article 8. Article 8 itself makes clear that any interference with the right must be based on necessity. Additionally, every single one of the authorised grounds for dispensing with consent under the Data Protection Act is also predicated on the sharing being necessary. 

I think there is broad agreement on how necessity in human rights terms interfaces with necessity in data protection terms. In the case of Southampton City Council v Information Commissioner (Data Protection Act 1998) [2013] UKFTT 2012_0171 (GRC) (19 February 2013) in February this year, there was certainly such agreement: “the parties are agreed that the essential question on contravention is whether Art 8 of the ECHR (which guarantees the right of privacy and which we set out below) is infringed by the Council’s policy, and in particular whether the policy is justified under Art 8(2) as a proportionate means of achieving a legitimate aim. This is because it is common ground that if Art 8 is infringed by the policy, [it] will not be “lawful” for the purposes of the first data protection principle by virtue of the Human Rights Act 1998 and, furthermore, that none of the conditions we have identified as potentially relevant will be satisfied, in that the processing will not be “necessary” for any of purposes set out therein any more than it will be “necessary” for the analogous purposes set out in Art 8(2).”   

Applied here, social work’s interference in private and family life must either be consensual or it must be necessary. And neither data sharing nor the extension of compulsory state intervention can be necessary unless they are also a proportionate means of achieving a legitimate end. 

It is wholly uncontroversial to me that protecting a child from significant harm is an obligation on the State, and is necessary. What is highly controversial is whether it is necessary or proportionate to extend compulsion and to ignore the issue of consent for those families who do not reach that threshold. And if it is not necessary or proportionate then it is not lawful. 

What happens if we try to get wishy-washy about whether we have acquiescence or consent, whether we have powers of compulsion or not? We get damning human rights judgments criticising social work: 

"54. But the local authority here seemed to be going far beyond this. It seemed to be conflating absence of objection with actual consent – a doctrine which at least in this context is, in my judgment, entirely contrary to principle and which, moreover, contains within it the potential for the most pernicious consequences, not least because there are probably many… who believe, quite erroneously, that a local authority has power, without any court order, to do what the local authority did in this case. 

55. To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger." 

[G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008)]

On assessments of need in the absence of significant harm, ‘Working Together 2013’ is not the triumphant climax to Act I, the assertion of the right of children and families to secure social work support for their efforts. It is, instead, an important twist in the unfolding drama of Act II: the point at which social work loses its rudder. 

Allan Norman (@CelticKnotTweet) specialises in the law relating to the practice of social work. He is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. Allan can be contacted on 0121 286 8785 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. A version of this article also appeared on Community Care.

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