The case of AB and Another v London Borough of Haringey 2013 and the valuable lessons that can be learned from it.
The case itself can be found here:-
And there’s an exceptionally good piece on it here, written by Celtic Knot, [@Celticknottweet] a fellow blogger, who was involved in the case and thus has both first hand knowledge and a very good perspective on it.
The issue was broadly this. Haringey social workers became concerned about the children of a family and sought information from other professionals about those children. They did not seek the consent of the parents to obtain that information. The parents, who were professionals working in the child protection sphere (one a social worker, one not) considered that, with their knowledge of procedures, that the procedures had not been properly followed and that their confidentiality had been breached and sought to challenge matters.
The nub of the case was this – was Haringey’s decision to conduct a section 47 investigation a fair and reasonable one, following proper processes? There are two distinct categories of social work involvement at this early stage – one is the initial assessment, and one is a section 47 investigation. The Court were looking at what needs to be in place before one crosses from initial assessment and investigation and information gathering to a formal child protection investigation under section 47.
The Court sum up the law on section 47 investigations very neatly
- Section 47 of the Children Act 1989, in Part 5 of the Act entitled Child Protection, provides as follows:
“47 Local authority’s duty to investigate.
(1) Where a local authority— …
(a) are informed that a child who lives, or is found, in their area—
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare … .”
- Section 47 enquiries are one of the principal measures available to a local authority to enable it to exercise its child protection functions to protect children who are at risk of suffering or are suffering significant harm whether it be physical, emotional or psychological harm. Such harm and such risks are often very difficult to ascertain and root out and the purpose of section 47 is to provide a readily available means whereby a local authority can ascertain the facts and risks that a child is running and then to identify and implement necessary protective, supportive and developmental measures to safeguard and to promote that child’s welfare. The objective of a section 47 enquiry is to protect children who are suffering from or are threatened with significant harm and the threshold for its operation in any given case is the need for the local authority concerned to have reasonable cause to suspect that that child is suffering or is likely to suffer significant harm.
- The use of section 47 and the measures that may be taken by a local authority following its use are predominantly aimed at securing the best interests of children. Its use is intended to be child-focused and to take account of the child’s views and wishes without unduly and unfairly disrupting her family life. The use of section 47 should also take account of the personal and family rights of a child’s parents or carers so long as that does not interfere with the overriding duty of child protection and development.
- Section 47 enquiries are multi-agency in their scope and they will usually include such agencies as the child’s school, medical practitioner, social workers and the police. The police have an important role to play given the likelihood that in most cases where a child is suffering or is at risk of suffering significant harm, the perpetrator or perpetrators of that risk or that harm will have committed or will still be committing serious criminal offences whose victim is a child.
- A section 47 enquiry involves an in-depth child-centred assessment of a child’s developmental needs, of the harm she is suffering or may suffer, of the capacity of the child’s parents or carers to respond to the child’s needs and of the family and environmental factors that are playing a role in the harm she is suffering or may suffer. This intrusive assessment should take account of the views of the different agencies involved with and the external influences on the child and it must also directly involve both the parents and the child unless this will endanger the child. The necessary fact-gathering should include sessions with the child without her parents or carers present and it should ascertain that child’s wishes and aspirations wherever possible. The assessment, known as a core assessment, must be concluded so that a holistic view may be taken of the child’s needs, of the significant harm that the child is being or is at risk of being subjected to and the steps that can be implemented for the eradication of negative influences on the child and the promotion of favourable ones on her.
- A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.
- A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.
- For all these reasons, the simple and apparently straightforward terms of section 47 mask a myriad of problems and to help deal with these, a plethora of rules, procedures and guidance have been produced. These are largely found in the statutory guidance issued by the Department for Children, Schools and Families and by statutory authorities such as the London Safeguarding Board. Statutory guidance is issued with statutory authority and it must therefore be complied with unless local circumstances indicate exceptional reasons to justify a departure from it in a specific case. This body of guidance is intended, if followed, to enable the very difficult decisions and exercises of professional judgment to be made satisfactorily on a case by case basis. These judgments are taken so that the substantial harm affecting the child may be investigated, her best interests may be protected and the rights of parents and carers are taken into account.
If you want it even shorter than that, it is that section 47 investigations are an important tool to protect children, but using them has consequences for the parents and the State must be careful that they are used in accordance with the guidance given, to avoid abuses.
The threshold for deciding whether a set of circumstances triggers section 47 is as below (underlining mine)
18. The relevant service has a statutory duty to initiate a section 47 enquiry but only if it has decided that it has reasonable cause to suspect that the child is suffering significant harm or is at risk of suffering such harm. That reasonable suspicion must arise in and be tested by the initial assessment process which may only be short-circuited in exceptional circumstances. The objectives of the resulting core section 47 enquiry are essentially to determine what is likely to happen if nothing changes in the child’s present situation and what the likely consequences for the child are.
Of course, the section 47 investigation process might well either develop those concerns about the risk that the child is exposed to, or reveal that the concerns held are either baseless or that the risk is comfortably managed or has dissipated; but the crux is that in order to embark upon a section 47 investigation, the LA MUST have reasonable cause to suspect that the child is suffering significant harm.
That’s the reason why social workers can’t just knock on a persons door and ask to come in and snoop for some evidence of harm – they have to have reasonable cause to suspect (or what, if you want to borrow from American cop shows, you might call “Probable cause”) that the child is at risk of harm in order to commence an investigation.
This is what prompted the Haringey s47 investigation
- An unsigned letter dated 11 March 2011 addressed to LBH’s “Social Services Child abuse Department” was received by SFR on 15 April 2011. There is no record of when it was sent by the anonymous author or first received by LBH. The letter read:
“Dear Social Workers
Worried about the family living at [full postal address given].
I am a neighbour of the family living at the above address and I have some very big worries about how they are looking after the young girl in the house. I think the little girl is about 7 years old and there (sic) girl. The mother is always screaming at the little girl shouting and screaming. I have seen the mother pulling the little girl along by her arm and slapping her. The little girl looks so unhappy she is not allowed to speak to anyone and when you see her in the street the little girl looks very sad and never raises her head to look at you. There is often shouting late at night from the house. The man in the house is much older and could be granddad or a lodger.
I am worried to talk to the family because they don’t speak but I know they have been rude to other people in the street. Please could you make sure that the little girl is alright.”
As a result, Haringey social workers made what are called ‘background checks’, contacting the police, GP and school to see if there was anything known about the family.
It was only after these checks were conducted, that Haringey contacted the parents to notify them of the concerns, and to begin their investigation/assessment. [AB and CD are the parents in this case, LBH refers to the London Borough of Haringey, EF is the child]
- AB reacted strongly to this call for a number of related reasons. These were:
(1) It seemed to AB, with her knowledge of child protection procedures, that LBH had made several serious errors in the way it had dealt with her daughter’s case.
(2) LBH should have obtained her or CD’s permission before making any contact EF’s GP and school but had in fact approached those agencies without even attempting to obtain it.
(3) LBH appeared to have embarked on an initial assessment of her daughter without first evaluating her risk to satisfy itself that one was needed. In her view, a risk assessment was particularly necessary since the referral had been made by an anonymous member of the public so that it could not be tested or evaluated.
(4) Before deciding on an initial assessment, a social worker should have seen EF on her own to assess whether it was possible that she had been subjected to a significant risk of being seriously harmed.
(5) The threshold for the decision to start an initial assessment had not objectively been reached in this case.
(6) Even if it turned out that it was wholly unjustified to carry out an initial assessment, the fact that it had taken place could ruin the careers of both her and CD as professionals involved in child protection work.
(7) None of the appropriate steps had been taken that would have enabled an objective and fair decision to be taken that it was necessary to embark on an initial assessment of her and her family.
AB had grounds for legitimate complaint about each of these features of the decision-making process leading to the initiation of an initial assessment process.
At the end of the s47 process, the conclusion was that EF was not at any risk and the referral had been malicious
- 54. On 10 May, Ms Mawdsley noted the following about the investigations and assessments that he had carried out:
“Following the home visit to [EF] and her parents and having considered information shared from other agencies, it is my opinion that it is highly likely that the referral received was malicious. It is my assessment that [EF] is not at risk of significant harm in the care of her parents.”
The key issue in dispute therefore was whether Haringey were able to legitimately commence a s47 investigation on the family BASED on the referral, and thus seek the background checks without parent consent, or whether a s47 investigation could not legitimately begin until the workers had actually talked to the parents (this not being a case where there would be a difficulty in finding them).
The Court broke this down into four questions
- These grounds require these issues to be addressed:
(1) Was a section 47 enquiry decided upon?
(2) If so, was it unlawful?
(3) Was the data-gathering exercise before and during the initial assessment process unlawful?
(4) What remedies are the claimants entitled to?
The Court concluded that at the time, there had not been a formal decision to move this consideration of the anonymous referral from an initial assessment to a section 47 investigation (looking specifically at the failure to have any record of such a decision, there being no approval by a manager of that decision and
(5) Particularly significantly, the family were visited and AB and CD were interviewed separately from EF. These interviews were not in structure or content part of a core assessment but were part of, indeed the principal component part of, an initial assessment.
(6) Whereas it is perfectly possible to terminate and abort an initial assessment, the guidance provides that a core assessment should be completed even if it emerges that the criteria for a section 47 assessment are not in fact present. In such a case, the outcome resulting from the completed core assessment will be that the child is not subject to significant harm and any recommendations for future interventions or that no future interventions are needed will be recorded.
(7) The guidance also makes it clear that the section 47 decision must be taken at a strategy meeting, held if necessary, if the situation is one of extreme emergency, over the telephone. Such meetings were held and both decided upon there being no further action and that decision was recorded by Mr Baker, albeit long after the fact in the core assessment document.
(8) Ms Chew appears to have taken the section 47 decision after Mr Baker had left her and, it now seems from an analysis of the evidence, only after she had sight of AB’s email to the Head of Service dated 4 May 2011. She then appears to have reacted hastily and as a direct response to seeing that email and only communicated her decision to AB and CD in her letter dated 5 May 2011 which was delivered on 7 May 2011. That cannot be regarded as a final and conclusive section 47 decision given all the shortcomings that I have described.
They went further, to say that IF a section 47 investigation had been decided upon before meeting with the parents and seeing the child, that would have been unlawful. The only circumstance in which a s47 investigation can be triggered without seeing the parents and the child, would be where there was extreme urgency or an assessment (based on evidence) that a home visit would put the child at risk of harm, neither of which were present.
The Court’s decision that Haringey had not been in fact conducting a section 47 investigation was critical, because it would be the fact of a s47 investigation that would allow the obtaining of information from third parties without the direct express consent of the parents
- The initial data-gathering exercise was unlawful in two respects:
(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.
(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.
- These were serious departures from permissible practice and these actions were unlawful.
The Court then moved on to remedies
77. Issue 4: What remedies are the claimants entitled to?
- The claimants are entitled to a quashing order quashing the purported section 47 enquiry decision and to declarations that there never was a section 47 enquiry decision, that the initial assessment was terminated because EF was not at risk of significant harm and because it was highly likely that the anonymous referral was malicious. In consequence, the Manager and the Practice Manager decided to close the case. They are also entitled to declarations that LBH acted unlawfully in not seeking AB and CD’s consent before approaching EF’s GP and school and seeking information from them.
- That leaves over for further argument what steps should be ordered to be taken to ensure that all references to AB and CD having been subject to a section 47 enquiry are removed from all data bases and that all appropriate persons who should be notified of this are notified and what the terms of that notification should be. Furthermore, it leaves over a claim for damages on which I need further argument as to both entitlement and amount.
The relevance of this decision is therefore this :-
- That unless there is urgency, or an assessment based on evidence that a home visit would endanger the child, it is unlawful to commence a section 47 investigation without visiting the child and speaking with the parents (that process would instead be an initial assessment)
- Seeking background checks without parental consent would be unlawful UNLESS a legitimate s47 investigation had been formally convened and was taking place (and frankly, even then, one ought to try to get parental consent)
- A breach of (1) or (2) above, can result in financial compensation.
There’s big discussion over at the blog I referenced initially as to whether the parents in this case got a better outcome because they were social workers. It is certainly the case that knowing the procedures and guidance led them to know that the procedures and guidance hadn’t been followed, and of course, the consequences for them of a malicious referral had professional consequences for them as well as for their family. But the principles here apply to all families and all investigations.