First published in the Scottish Review on 6/5/15: It has been hard to be silent on the social worker 'contempt’ case over the last 18 months. As the union initially representing the individuals, it was important we avoided anything that might prejudice their case in such bizarre and unpredictable legal proceedings.
Despite the woeful inaccuracy of some social work commentators’ responses, we could not correct them without sharing details of the case which are only now fully in the public domain. Now that the social workers have been cleared, and even more importantly the paramountcy of the welfare of children has been recognised, it is time to put some records straight.
UNISON was the first to step in with legal support for our members. So confusing were the beginnings of the case that it was not clear how or where else legal support would or could come from. Honourably, the City of Edinburgh Council readily took responsibility but without that immediate union support in the first few days and weeks, our members would have been totally vulnerable in the Kafkaesque proceedings they found themselves at the centre of.
For our members, and for our wider social work membership, it was never just careers that were at stake. It was the long-held principle of the paramountcy of the welfare of children and all the complexity around that in our legal system. It was also a principle that the council recognised from the beginning. An example of how deep that sits with social workers arose when I outlined the case to more than 1,000 UNISON members at a conference last year. The biggest and longest applause came when I said that we must not allow decisions like this to force us into defensive practice when it comes to protecting children.
In late 2013 it was a lonely place for our members to be. It seemed only UNISON and the Scottish Review were prepared to speak in support of these two social workers. But it was not only two social workers. Sparked by the Edinburgh case, attempts were made at contempt proceedings in the north and west of Scotland and UNISON was involved with both. Children’s reporters seemed to be making up defensive rules as they went along when it came to appeals. Nobody knew where they stood. And it was not helped by social work 'experts’ who seemed only too happy to be quoted on something they knew little about. These members were not just facing the wrath of the court. They were also facing what seemed to be assumed guilt in quotes from people they should have realistically expected to have defended the profession.
The publicised stuff was bad enough but having to spend ages on the phone with journalists explaining why the information the 'experts’ had given them was patently wrong was wearing to say the least. We even had to get the professional association to correct a statement on their website. Yet some slipped through. Like the quote that social workers should have taken the case back to court. Anyone with a fleeting acquaintance with child law in Scotland should have known that there was no way for them to do that. The route was for the social workers to call a children’s hearing. That is what they did. That was known and that was never in doubt.
Whether or not people who should have known the legal system didn’t, you might have at least expected that they would speak up about the legal duty to protect the welfare of the child. But they didn’t. They didn’t challenge or even try to understand the dilemma faced by social workers day in, day out when faced with children suffering when an order is contributing to that.
Things can change rapidly. The circumstances when a legal order is imposed may not be the same circumstances weeks or months later. What is decided in principle may not work out in practice. We need to be able to respond quickly to circumstances that are affecting a child’s wellbeing. That’s what these social workers did. Hearings and courts regularly make orders for supervised contact and you are never going to know how it works out until it happens. (I would sometimes like to ask panel members or sheriffs whether they would be comfortable sending their own child once a week to a situation where they would only be protected if a social worker was supervising.)
It opens up the other problem in what is an increasingly adversarial legal context for children in Scotland. Human rights for adults are readily understood by lawyers and courts. The rights of children still lag far behind in their understanding. Even when they are addressed, it is often in the context of adult rather than child concepts. That adversarial approach is undermining the children’s hearing system. A colleague summed it up recently when he said: 'Hearings used to operate for the children, now they operate for the system'.
Referring to a hearing where each parent was represented by lawyers (no lawyers, of course, for the child or social worker), he said: 'My duty is to focus on the child. I am not there to be an adversary to the parents'. But unfortunately that is the role that social workers are being cast into more and more as hearings allow the process to become one of argument rather than discussion. We need to re-assert the principle of the child being at the centre.
No-one is above the law and social workers can only operate within the legal structure that allows them the awesome responsibility of intervening in people’s lives. The judgement in this case makes it clear that the social workers took the only legal measure open to them to address the issue that faced them. Why, then, were the ‘experts’ not prepared to defend them?
UNISON was so disturbed by the legal process and the compromising of the child welfare principle that we took the issues to a meeting with Scottish Government officials. We raised the dilemma as to what happens when the legal duty of paramountcy of the welfare of the child collides with other legal requirements. This was especially important because the sheriff at the start of the case was clear that the welfare principle did not apply in contempt proceedings. We called for a legal review or at least guidelines for sheriffs.
We welcomed guidance from Social Work Scotland and the Scottish Children's Reporter Administration on the issue, especially since it reflected the guidance we had already circulated to our social work members. It set a context that recognised that legally risky decisions might need to be taken to protect children and, so long as they were cleared by senior management, they would be backed by the councils. It was therefore all the more galling that while directors and the local authorities were recognising the issue and supporting the staff, the experts were locked into suggesting that these workers had got it wrong.
My fear is that the experience of this case over the last year may have led to some of us having put children through more than they needed to suffer for fear of being hauled into court, convicted and thrown out of a job and livelihood. I have not seen it but I suspect it may have happened and I suspect that there are social workers out there still feeling tortured by that.
I hope not. I know that for most of the social workers I have met in the last 30 years, if the choice was between a child’s welfare and their own career, the child would win every time. Now, that may be a brave statement of faith but if the spokespeople for our profession couldn’t manage that faith, they could have at least managed the benefit of the doubt.