Social Work with Children and Families - Essay Example

Social Work with Children and Families Question 1: What legal knowledge might guide social workers in drawing up a pre-proceedings agreement with parents? The pre-proceedings are preliminary hearings that mark the start of the case management process. The pre-proceedings might appear to be purely a technical exercise, but are key to the successful management of social workers’ case load. Therefore the legal knowledge that might guide social workers in drawing up a pre-proceedings agreement with parents will involve understanding the nature and purpose of pre-proceedings leg of the case management process. In other words, social workers will be best aided by knowledge of what to expect at the pre-proceedings and why. Any arrangements contemplated in advance of the hearings will be guided by the welfare principle (Sendall, 238). The welfare principle is established by Section 1 of the Children Act 1989 and imposes a duty on local authorities and the courts to place the welfare of the child first and foremost in any proceedings involving a child’s “upbringing” or involving child maintenance of property matters (Children Act 1989, Section 1(1)). The pre-proceedings within the framework of the public law outline (PLO) was introduced by the Children Act 1989 Guidance and Regulations Volume 1. The Guidance establishes the steps to be taken when applying for either a care or supervision order. The pre-proceedings is essentially a “checklist” (Laming, 79). Thus, social workers must be able to provide the evidence upon which their decision for applying for a care or supervision order is based. The court will want to be informed of the work that has been conducted with the family. The evidence presented should also demonstrate that the parents have an understanding of the issues, the aims of intervention and the action taken and should also be informed of what the actions are up for review (Laming, 79). In other words, any arrangements made at this point must be clear and supported by logical evidence and must be demonstratively for the child’s welfare. In general, the PLO as described by the Children Act 1989 Guidance and Regulations Vol. 1 is enabled by Section 7 of the Local Authority Social Services Act 1970. By virtue of Section 7 of the 1970 Act, social workers and all local authorities are required to perform their social work duties with guidance from the Secretary of State for Education. Thus in issuing the Guidance, it is intended that case management be monitored so that each stage of the proceedings all issues are identified and progress made is officially recorded (Spray and Jowett, 167). The pre-proceedings are aimed at the “earlier identification of the key issues through assessment” (Spray and Jowett, 167). A Practice Direction issued in 2008 contains a pre-proceedings checklist that the social worker in Jennifer, Aarif and Halim should follow before engaging the court. The checklist requires that all orders made by the court in relation to his family be provided to the court as well as any assessments made. All evidence taken from family and friends, together with reports from other agencies such as medical and educational reports should also be provided to the court at the pre-proceedings hearing. Any discussions conducted with the family and records of local authority meetings in connection with the family should also be turned over to the court. In addition, the court will want to see any strategies planned by local authorities in relation to the child, a chronology of social work and any letters relevant to the child and the child’s family. The social worker will be required to prepare four key documents for the pre-proceedings hearing. The four documents are a “schedule of proposed findings”, “initial social work statement,” a “care plain” and “allocation record and timetable for the child” (Practice Direction Guide to Case Management in Public Law Proceedings, 9). It is important to ensure that when going over the pre-proceedings checklist that the social worker is honest and realistic. This is because at the first appointment, the court will endeavour to determine whether or not social workers and all other relevant local authorities are complying with the pre-proceedings checklist (Practice Direction Guide to Case Management in Public Law Proceedings, 9). The documents and information required as listed in the pre-proceedings checklist will be filed with the application for a care or supervision order (Practice Direction Guide to Case Management in Public Law Proceedings, para. 10.1). The purpose of the pre-proceedings hearing is to ascertain whether or not the checklist was complied with, to schedule the proceedings and to gather sufficient information ensuring that case management is efficient (Practice Direction Guide to Case Management in Public Law Proceedings, para. 11.1). In preparing for the pre-proceedings hearing, the social worker must ensure that notice of the proceedings is served on the Cafass or Cafass Cymru (Practice Direction Guide to Case Management in Public Law Proceedings, para 11.4(2)). In any event, the court will appoint a solicitor or a guardian to represent the interest of the child and will “make arrangements for a contest hearing, if necessary” and will also fix a date for the first appointment (Practice Direction Guide to Case Management in Public Law Proceedings, para. 11.5). The first appointment is usually scheduled within the next 6 days of the pre-proceedings (Practice Direction Guide to Case Management in Public Law Proceedings, para. 11.5). The pre-proceedings hearing therefore paves the way for a more structured and guided case management process. In the meantime, as Butler and Hickman inform, the pre-proceedings meeting is also an opportune time for informing the parents of the local authorities’ intentions with regards to the child. The pre-proceedings meeting will also provide an opportunity for local authorities to engage with the parents with the hope that a statutory order may not be necessary and “voluntary arrangements” are made instead (Butler & Hickman, 256). Even where voluntary arrangements are not possible, the pre-proceedings meeting is expected to “narrow down the focus of the local authority’s continuing concerns” (Butler and Hickman, 256). Although, social workers will invoke the pre-proceedings process by formally filing an application for a statutory order, the statutory order can be avoided if alternative voluntary arrangements can be made. However, it is important to note that the alternative voluntary arrangements will only be accepted by the court if they are clearly in the best interest of the child under the welfare principle. Question 2: What legal knowledge might inform assessment and service delivery options at this point in relation to Jennifer, Halim and Aarif? The legal knowledge that might best inform assessment and service delivery options at this point in relations to Jennifer, Halim and Aarif are the welfare principle and the statutory orders provided under the Children Act 1989. The welfare principle as well as the statutory orders functions to explain the duties imposed on social workers and local authorities in general with respect to promoting and protecting the welfare of children who are at risk. The key is therefore to first reliably assess that the child’s predicament and then to arrange for care that promotes and protects the child’s (Halim) welfare. Local authorities, including social workers will be best informed if they have an understanding of what welfare means. Although, the term welfare is not defined by the Children Act 1989, a welfare checklist is contained in Section 1(3) of the Children Act and provides an understanding of what needs to be considered in the assessment of a child and his or her family and what services to offer. There are seven factors that will be considered according to the statutory welfare checklist. The first of these factors is the child’s own “wishes and feelings” which are taken into account with reference to the child’s age and ability to understand (Children Act 1989, Section 1(3)). Since Halim is only two years old, his input will be minimal. The court will therefore determine what is in Halim’s best interest rather than rely on input from Halim. This could include an order for maintaining contact between Halim and Aarif although Aarif has yet to be determined to be the child’s father. For example in O v L (Blood Tests) the court of Appeal determined that continued contact for a 3 year old would be ordered although the child had a different biological father. In preparation for this part of the welfare checklist assessment, social workers need to focus on the child’s relationship with Aarif. If that relationship is good, the courts will be predisposed to continue contact so that the child maintains some measure of stability in his life (O v L (Blood Tests)). Essentially, even if the child is mature enough to articulate his preferences, the court will consider what is truly in the child’s best interest for protecting and promoting his or her welfare (Re EW (Custody)). The second factor on the statutory welfare list, is the child’s physical, emotional and educational needs. In this particular assessment, the bound between Halim and his mother is important. Although Jennifer has been presented with physical and emotional difficulties of her own, the court will consider the emotional consequences of break in the relationship between Halim, a child of tender years, in terms of his separation from his mother (Adams v Adams). In other words, the court will consider whether the distress and emotional disturbance of Halim on being separated from his mother will be greater than the risk of emotional distress upon remaining with his mother and maintaining no contact with his putative father (Adams v Adams). The court will however, consider whether or not it is possible for Jennifer to provide continued care (Allington v Allington). Jennifer’s emotional distress appears to have been contained with the aid of anti-depressants. However, unless she can be treated for her anorexia and continues to use the services of a nanny and can abide by an arrangement that limits and supervises contact between herself and Aarif in Halim’s presence, Jennifer’s ability to provide continued care will be a problem. Therefore, the case worker will have to assess Jennifer’s progress with respect to treating her own physical and emotional needs so that the court can determine whether or not Jennifer can provide for the emotional, educational and physical needs of Halim. The third factor on the welfare checklist is the “likely impact of a change in circumstances” (Children Act 1989, Section 1(3)). The most important factor in this regard is whether or not the circumstances as they are now should be maintained for the best interest of Halim. Clearly, changes to these circumstances are needed. The court will look at the quality of care administered by Jennifer so far and will weigh this in with the prospects of future care (Allington v Allington). Thus far, Jennifer’s care has been unstable with her giving up at times and more importantly, allowing Aarif into the home and exposing the child to domestic violence and refusing to prosecute Aarif. There is a danger that she may continue to become overwhelmed if treatment is not followed and arrangements are respected that excludes Aarif from the family home unsupervised. Therefore assessments should cover the prospects of successful treatment and the likelihood that Jennifer can or cannot provide continued care in a safe environment for Halim. The court must be satisfied that future care has better prospects than the current state of care for Halim, otherwise a statutory order may be made. In assessing Halim’s age, sex, background and any other characteristics that might be relevant, the court will consider Halim’s welfare as the primary factor. This involves the fourth factor on the welfare checklist. This might include the child’s culture and ethnic background and the utility of ensuring that the child maintains links with both sides of his family for the enrichment that is tied to his background. However, these factors are not as important as the ability of the parents to provide material and sustained care for the child in question (Re P (Wardship: Surrogacy)). The welfare principle as discussed so far, guides the remaining assessment factors on the welfare checklist. Perhaps the most important assessment factor on the welfare checklist in regards to this case are the harms suffered thus far and the likelihood of it reoccurring and the parent’s ability for meeting the needs of the child. Given the history of exposing Halim to domestic abuse and although not proven in court, the court will likely not agree to supervised contact. The court will likely find that on a balance of probabilities, domestic violence exists and that contact should be discontinued between Aarif and Halim (Re R (Child Abuse: Access)). As for assessing Jennifer’s capabilities as a parent, the court will consider whether or not Jennifer is able to manage her relationship with Aarif in a way that does not continue to expose Halim to domestic violence (C v C (Custody Appeal) [1991] 1 FLR 223). Therefore, at the end of the day, assessment will primarily focus on the entire dynamics of the family and their relationship and impact on Halim. The main concern is whether or not Jennifer can provide care that is consistent with promoting and protecting the welfare of Halim to the satisfaction of the court. Question 3: Comment on any competing rights arising from application of the law in this case? The most important competing rights in applying the law in this case is the right to privacy of the parents under Article 8 and freedom of movement under Article 1 of Protocol 4 of the European Convention on Human Rights 1950 and the welfare principle protecting and promoting the child’s welfare under the Children Act 1989 and under the Convention on the Rights of the Child 1989. The assessments and subsequent hearings and meetings will involve a probe into the private and family life and papers of the parents and the entire family which is necessary for protecting and promoting the welfare of the child. In this regard, there are conflicting and competing rights: the parental right to privacy under Article 8 of the 1950 Convention and the child’s right to have his or her welfare protected and promoted pursuant to the welfare principle contained in both the 1989 Act and the 1989 Convention. Article 3 of the 1989 Convention contains a provision similar to the welfare principle contained in Section 1 of the 1989 Act. In this regard, Article 3 of the 1989 Convention provides that in all “actions concerning children”, “the best interest of the child shall be a primary consideration” (Convention on the Rights of the Child 1989, Article 3(1)). What this means is that when any decision is made by adults and institution, consideration must be given to how those decisions impact children (Tan, 110). However, Article 3(2) of the 1989 Convention also cautions that the “rights and duties” of the parents or legal guardian will also be considered. This is an important aspect of social life in that the relationship between the parent and the child is a particularly intimate one and parents are entitled to raise their children free of state interference (Schoeman, 6). At the same time, the 1989 Convention establishes the welfare principle as an important human right for children. The tensions between family private life and the welfare principle are pervasive in family law (Herring, 223). For example, in E (Residence: Imposition of Conditions) the court of first instance attached a residence order prohibiting the mother who was the custodial parent moving to Liverpool as this would impact the father’s ability to have contact with the child. On appeal, the court ruled that the court could not impose an order instructing the mother how and where she could live. The only issue for the court was whether or not the child could continue living with the mother in terms the mother’s ability to continue caring for the child (E (Residence: Imposition of Conditions)). This approach would again, bring the question of the parent’s right to private and family life back to the welfare principle and would in many ways constrain the mother’s ability to move as she sees fit. For example, if it is found that the child’s welfare is best served by remaining in its current environment where it has close ties to schools, friends and family support, the mother will be indirectly forced to remain at the residence she occupied when the custody order was given. The consequences of the child welfare principle therefore undermines the parents’ ability to move freely pursuant to Protocol 4, Article 1 of the European Convention on Human Rights 1950. Essentially, Article 1 of Protocol 4 of the 1950 Convention prohibits the state attaching conditions that prohibit the free movement of individuals within and outside of the state. However, the welfare checklist specifically requires that the parent’s movements and private life be examined for consistency with the child’s welfare. Although the court will not order a specific lifestyle, the court will make an order where these lifestyle choices are inconsistent with the child’s welfare and this can indirectly force the parent to change his or her lifestyle choices. As Choudhry and Fenwick observe there appears to be two different approaches to the competing rights of children and parents in the courts of the UK and the courts of the European Court of Human Rights (453). In the UK courts, the welfare principle is prioritised over the rights to privacy and freedom of movement contained in the European Convention on human rights. The European Court on Human Rights however, prefers to “balance the rights of different family members” (Choudhry and Fenwick, 453). The balancing approach adopted by the European Court of Human Rights appears to be the best approach because it does not alienate children per se and does not alienate parents and is therefore more consistent with Article 3 of the Convention on the Rights of the Child 1989. The 1989 Convention urges the welfare principle to be considered by also taking account of parental rights and responsibilities (Article 3(2)). This approach ensures that the rights of parents and the rights of children are both heard. Previously, children were regarded as incapable of making decisions or expressing any input into custody hearings. Now children are heard and there is a determined shift away from leaving all decisions primarily to that of the state and the parents (Coley, 51). In other words, children, who are impacted the most by decisions regarding their upbringing can express a view, provided they have the emotional maturity to do so. This is quite different from the previous approach that left the decision to the state and/or parents. Giving children a voice adheres to the concept that children have rights and that those rights should be protected and incorporated into the welfare principle. At the same time, children’s rights should not be protected to the extent that they infringe on the human rights and the parental responsibilities of parents. While the UK courts tend to favour the welfare principle, the courts will consider the impact of restraining parental rights and responsibilities on the welfare of the child. In this regard, it is difficult to separate the welfare principle from the rights and responsibilities of the parents. Where parents ignore their responsibilities to the detriment of the child’s welfare, it makes sense, that the child’s welfare is prioritised by the courts. Works Cited Adams v Adams [1984] FLR 768. Allington v Allington [1985] FLR 586. Butler, Ian and Hickman. Social Work with Children and Families: Getting into Practice. London: Jessica Kingsley Publishers, 2011. (C v C (Custody Appeal) [1991] 1 FLR 223). Children Act 1989 Guidance and Regulations, Vol. 1. Choudhry, Shazia and Fenwick, Helen. “Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act.” Oxford Journal of Legal Studies, Vol. 25(3) (Autumn 2005): 453-492. Coley, Maria. “Children’s Voices in Access and Custody Decisions: The Need to Reconceptualize Rights and Effect Transformative Change.” Appeal: Review of Current Law and Law Reform, Vol. 12 (2007): 48-72. E (Residence: Imposition of Conditions) [1997] 2 FLR 638. European Convention on Human Rights 1950. Herring, Jonathan. “The Human Rights Act and the Welfare Principle in Family Law: Conflicting or Complementary?” Child and Family Law Quarterly, Vol. 11, (1999): 223-235. Laming, Herbert, Baron. The Protection of Children in England: A Progress Report. London: TSO, March 2009. Local Authority Social Services Act 1970. O v L (Blood Tests) [1995] 2 FLR 930. Practice Direction Guide to Case Management in Public Law Proceedings, April 2008. Re EW (Custody) [1984] FLR 17. Re P (Wardship: Surrogacy) [1987] 2 FLR 421. Re R (Child Abuse: Access) [1988] 1 FLR 206. Schoeman, Ferdinand. “Rights of Children, Rights of Parents, and the Moral Basis of the Family.” Ethics, Vol. 91(1), (Oct. 1980): 6-19. Sendall, Jane. Family Law Handbook 2014. Oxford, UK: Oxford University Press, 2013. Spray, Carolyn and Jowett, Beverley. Social Work Practice with Children and Families. London: SAGE Publications Ltd. 2012. Tan, Jon. “Education and Children’s Rights.” In Jones, Phil and Walker, Gary (Eds.) Children’s Rights in Practice. London: SAGE Publications, 2011. Read More