Human rights have disappeared from ‘Working Together’ – Allan Norman

9 April 2013 by Guest Contributor

‘Working Together to Safeguard Children’ is the lead piece of statutory guidance on… well, working together to safeguard children. Originally published in 1999, a new edition was published in 2006 following the changes brought about following the death of Victoria Climbié. And the next edition in 2010 incorporated recommendations of the second Laming Report which followed the death of Baby P. It had grown longer over time, as we all learned lessons from Haringey; but its growing length was causing concern. 

A new version was published last month. The new version was published the week after judgment was handed down in AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013) (my firm represented the Claimants).

We secured Human Rights Act damages for an unlawful intervention to safeguard a child. We demonstrated multiple breaches by Haringey of the ‘Working Together 2010’ statutory guidance, including in relation to data-sharing. It would be an understatement to say, however, that the judgment does not exactly major on the human rights arguments that were aired.

Nor does the new version of ‘Working Together’. Indeed ‘human rights’ gets not a single mention. Not one. Human rights have been airbrushed out.

What did Working Together 2010 say?

First, a reminder (or an introduction if you are new to this territory) of what ‘Working Together’ used to say explicitly about human rights:

• It affirmed in the introduction that it was intended to be grounded in human rights principles [page 24]

• It required that those who chair conferences in child protection matters should be grounded in “knowledge of relevant legislation, including that relating to children’s services and human rights” (5.90);

• It reminded practitioners that data-sharing engages human rights: “No request should require a record holder to breach data protection principles, or other protections of confidential or personal information (for example, under the Human Rights Act) in a manner which cannot be justified…” (3.95) and “In deciding what information to disclose, careful consideration should be given to duties under the Data Protection Act 1998, the law of confidence and, where relevant, the Human Rights Act 1998.” [page 201]

• It reinforced that forced marriage and honour-based violence (6.21), “debt bondage, deprivation of liberty and lack of control over one’s labour” (6.54) are all human rights abuses.

Our case pleaded among other things breaches of human rights, breaches of data protection law, and failure to follow the statutory guidance. ‘Working Together’ was particularly helpful because it clearly set out how not to breach human rights and data protection law. Now it is gone, in favour of a version that mentions ‘data protection’ only once (in the context of publishing serious case reviews) and human rights not at all.

Why the reticence on human rights now?

It is the case, of course, that Europe features in both human rights and data protection: the former because it is the European Convention of Human Rights, from the Council of Europe, that is set out in the Human Rights Act; the latter because the Data Protection Act gives effect to the law of the European Union, specifically EU Directive 95/46/EC

While we belong to the Council and to the Union, Europe will not just go away. What is the government hoping to achieve by this airbrushing out of overarching legal principles?

Social workers will typically want to keep user-friendly guidance documents by their elbows rather than legal texts on EU and human rights law. If that document is ‘Working Together 2013’, my fear is that over time social workers can be persuaded that these overarching European level principles really have no bearing on their everyday practice as social workers.

I desperately hope not. One of my hobby horses is that social work as an international profession is fundamentally about human rights:

“Human Rights and Social Justice are fundamental to social work” (International definition of social work, International Federation of Social Workers)

If social workers stop caring about human rights, isn’t that like doctors stopping caring about health or lawyers about justice?

Human Rights and Child Protection

Let’s pose two fundamental questions about social work with children and families for a moment:

First, what does it mean to say that the welfare of the child is a paramount consideration? In particular, does it mean that our focus is on the child to the exclusion of the family interests?

Second, social work’s encounters with children includes those who are “in need” and would benefit from services; but it also includes those who are “at risk” and require protection. Are these all on a continuum, and whether or not they are, is there a clear break point where one becomes the other?

On the first question we reminded the Court in our case of the European Court of Human Rights authority that,

“The child’s interest… dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit.” [Grand Chamber decision in NEULINGER AND SHURUK v. SWITZERLAND – 41615/07 [2010] ECHR 1053 (6 July 2010), § 136]

We also reminded the Court of European Court of Human Rights authority that parents continue to have procedural rights:

“[W]hat … has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests.” [cited in HK v. FINLAND – 36065/97 [2006] ECHR 801 (26 September 2006), § 111]

This caselaw underpins the fact that the parents in our case were able to secure Human Rights Act damages.

On the second question, is there a clear break point between welfare concerns and protection concerns, we said ‘Yes’. There is a fundamental divide between Part III of the Children Act (‘Local Authority Support for Children and Families’) dealing with need, and services that are sought or provided consensually; and Part V (‘Protection of Children’) dealing with risk and invoking the spectre of compulsion. Consensual working is preferable for both, but there is a need for a clear break point, and the initial assessment process set out in ‘Working Together’ was the procedure for a Human Rights Act compliant assessment of whether that break point had been reached.

The new version of ‘Working Together’ has abolished initial assessment and blurred the boundary between child welfare and child protection concerns:

61. To facilitate the shift to an assessment process which brings continuity and consistency for children and families, there will no longer be a requirement to conduct separate initial and core assessments.

On data protection, the new version of ‘Working Together’ emphasises information sharing:

24. Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children… [page 15]

Notice, therefore, that without reference to “data protection principles, or other protections of confidential or personal information (for example, under the Human Rights Act)” (and therefore in stark contrast to ‘Working Together 2010’), the emphasis is on information sharing to promote welfare and not only to protect children from harm.

Don’t throw away ‘Working Together 2010’ just yet!

The outcome of our case would be the same, before or after the introduction of ‘Working Together 2013’. The crucial difference is that the new guidance no longer gives the necessary steer to get it right

The bottom line is that overarching law, both EU law and human rights law, is the same both the week before and the week after judgment. Nor does this new version of ‘Working Together’ coincide with any chance in primary legislation. So ‘Working Together 2010’ and ‘Working Together 2013’ offer guidance within the same legal framework.

Of course, ‘Working Together 2013’ is now statutory guidance, with the enhanced status that flows from it. Equally, of course, ‘Working Together 2010’ is now non-statutory guidance. Which means that along with every other piece of non-statutory guidance thrown at us, it need not be followed, but might yet offer useful elucidation of the law that it would be wise not to ignore.

Since the older but not the newer version offers detailed guidance on compliance with the overarching legal framework instead of leaving detail to local protocols, I venture to suggest it would still be wise for practitioners who care about the disappearance of human rights to keep the older version by their elbows.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

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