Social Work on Trial: The Colwell Inquiry and the State of Welfare

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They are in full compliance with article 12 of the United Nations Convention on the Rights of the Child.

Social work on trial: the Colwell Inquiry and the state of welfare

It can be argued with Jane Fortin that it is. Indeed, it can be fundamentally important for children, especially adolescents, to be present in the forum where their future is discussed and their parents are assessed. The way they will understand and accept the measures decided for them and more generally the success of the care plan can depend on it. Within the fusion between the interests of the family, the child and the state, the juge des enfants is not in charge of a legal adjudication between competing interests.

The design of the proceedings and the decision process are marked by this role and reflects what M. Others, especially social services, have to refer a case to the Procureur, who appreciates the necessity of requiring the judge to intervene. It is also very short up to a maximum of two to three hours and intense.

In Child protection in France and England - authority, legalism and social work practice, B.

Luckock, R. Vogler and H. Indeed, most lawyers struggle to find their role in this hearing where the judge acts simultaneously on behalf of the child, the family and the state. Coercion is less likely to be used within informal settings, when all actors have the same aim, than in adversarial proceedings where conflicts are sharpened. As judicial authority is the guarantor of individual freedoms, it is not surprising that the system relies on the personal commitment of the judge in child protection and in the respect of civil liberties.

However, the judicial process, designed to promote a persuasive intervention, sometimes exceeds the limits of benevolent paternalism and crosses the border of arbitrariness. The service appointed can refer the situation to the judge as a matter of emergency. Independent assessments are increasingly used, and are ordered in nearly two thirds of new cases. Interim measures can be ordered until the assessment is completed, up to a maximum of six months. However, the usual practice is to allow very young children to be present during the hearing, in order to fulfil several functions.

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It gives them a symbolic place in the proceedings and can make them aware that accounts are asked to their parents and that the state is concerned with their welfare. Children can feel particularly powerless and vulnerable and it is not uncommon that they ask their allocated social worker to express their wishes. Families and children are denied the right to have direct access to their file.

Their lawyer can only read it and is not entitled to obtain any copy.

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Despite this decision, the Cour de Cassation held that this provision is not inconsistent with the European Convention on Human Rights. Indeed, it would give the hearing a different stance because parents would be more focused on criticising the reports. However, this opinion is highly criticised by lawyers and an increasing proportion of juges des enfants.

According to Michel Huyette, conseiller in Lyon Court of Appeal, these arguments are legally wrong and reflect the current culture of secrecy, which allows bad social work practice. He also suggests that reports should be sent to the family at the same time as they are sent to the judge. The report also recommends the possibility for the judge to propose to the parents and the child the assistance of an independent professional. Another report, jointly commissioned by the Ministry of Justice and the Ministry of Social Affairs suggests that the assistance of a lawyer should be compulsory in public law proceedings, thus making the access to the file possible.

As a result, the parents think that the decision is made in advance and that the hearing is meaningless. Some judges fail to summon the parents after emergency interim measures or before the expiry date of an educational measure because they are overburdened with cases, due to the increase of judicial proceedings. This grim picture makes one wonder whether the social contract is about to be broken or if overworked judges have forgotten the role that empathy plays in their functions. It gives the French system an arbitrary stance, in particular when compared with the English proceedings, where parties have access to all the papers except in most exceptional circumstances, and only when the court is satisfied that the disclosure would be so detrimental to the welfare of the child that it outweighs the normal requirements for a fair trial.

Empowering children and parents to promote a fair dialogue on an equality basis and emphasising empathy in the training of judges are necessary steps to prevent a paternalistic system becoming arbitra. Both countries have a dual system of protection. The voluntary, non-coercive intervention is the norm. It is only when a partnership with the family cannot be carried out that the local authority will apply for a judicial order. I believe that the law allows flexibility in the application of the threshold criteria, but that courts choose a strict interpretation, especially in relation to the definition of significant harm, taking the risk of undetected abuse rather than the one of unjustified intervention.

The Department of Health in its guidelines Working together to Safeguard Children describes this concept according to its causes, the context in which it is more likely to happen, and its effects. He was acquitted but the local authority sought a care order in respect of the three other children. The House of Lords held that the sexual abuse was not established and that there was therefore insufficient basis for proving the likelihood of harm for the younger children.

This requirement of more evidence to convince the court can amount to requiring a criminal standard of proof to establish the most serious abuse. The Children Act widened the previous grounds of intervention by admitting a likelihood of harm. These figures suggest that local authorities cannot work efficiently on a preventive basis with families and choose the judicial route, although the latter is deemed to be detrimental to the possibility of working in partnership with parents. In Re B and W threshold criteria , a 7 months old baby, whose care was shared between the parents and a child-minder, suffered from serious injuries after having been shaken.

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  • The House of Lords held that the relevant period for the assessment of the harm is the time when the local authority initiated the protective arrangements for the child, and not the time of the hearing. This means that the fact that the child is presently well cared for, as a result of the arrangements, does not preclude the making of a care order. Anyone can apply for an emergency protection order. However, the grounds for emergency protection orders are designed to focus on emergency, in accordance with the recommendations of the Review of Child Care Law, which took into account the widespread criticisms made against the place of safety orders under the Children Act The order lasts for a maximum of eight days and can be renewed once for seven days.

    Neither the law, nor the courts have defined more precisely the danger or the circumstances in which the conditions of education are gravely compromised. Furthermore, the concept of children in danger, which justifies a judicial intervention, is usually opposed to the concept of children at risk, for whom a preventive measure would be appropriate.

    These confused definitions show how the border between administrative and judicial intervention is blurred and how a strict legal analysis on the model of the English system is impossible to perform. It is generally admitted that the danger criterion is more a question of degree and of individual assessment than a definable concept. The judge has a wide discretion in deciding whether a situation matches the criteria.

    The Cour de Cassation limits its control to the motives of the decision. The Code civil does not expressly require that the danger should be attributable to the parents. The constant check of the threshold criteria throughout the procedure. As educational measures are temporary by nature, the existence of danger must be checked at each hearing, that is to say every time the parents apply for the rehabilitation of the child or at the end of each period of placement.

    The criteria for emergency protection are not different from those applicable in other situations. Therefore, emergency measures can last up to six months and can be renewed.

    The Colwell Inquiry and the State of Welfare

    In cases of emergency, article al 2 of the Code civil allows the procureur to order any measure placement, supervision, imposition of conditions without summoning or even informing the parents and the child, who cannot appeal against this decision. Firstly, there is no legal consequence if the procureur fails to refer the case to the juge des enfants. Secondly, there is not yet any requirement that the judge organises a hearing within a short period of time, and situations have been reported where families have not met any judge for six months.

    There is however no call for limiting the duration of the orders, and all the propositions tend to safeguard the flexibility of the current law. The focus of French proceedings is not on the abuse but on the partnership between the judge and the family. Therefore, the circumstances in which the French juge des enfants intervenes are by nature different from those that fulfil the threshold criteria.

    However, there is a risk that the relevant causes of danger are not expressed in order to ensure further co-operation, and then are not worked on by the appointed social workers. It can also delay a firmer action and lead to aggravated abuse. This situation leads to unjustified interventions and burdens the judge with unnecessary procedures when other children would need more attention.

    Relationship between the administrative and judicial system at that stage. In Protecting Children, Messages from Europe, Rachael Hetherington, Andrew Cooper, Philip Smith and Gerti Wilford explain that partnership with the family is made difficult for social workers because of their conflicting duties to support and to investigate and of the lack of an intermediate concept between justice and welfare, which could work as a buffer between administrative and judicial intervention.

    Furthermore, an order cannot be sought on the basis of grounds for anxiety. At the administrative stage, local authorities focus on investigation rather than family support. In The New Politics of Child Protection , Nigel Parton argues that the dramatic increase of referrals requiring investigation in the context of reduced resources makes the identification of significant harm a priority of child welfare services.

    He suggests that this situation has led to the impossibility of developing preventative family support. Denman and D. Gibbons, S.


    Conroy and C. It works in a spirit of collaboration linked to a consensual view on how the state and the family can work together even when parents disagree. Because cases come to the judicial system more readily than in England, partnership is carried out with a certain degree of constraint on parents, at the expense of their rights of information and consultation. The main causes of this trend are threefold. Thirdly, the intervention of the juge des enfants allows more flexibility than the sometimes-bureaucratic system of administrative protection, and social workers feel more secure and more authoritative when they have judicial approval.

    Courts and services appointed to carry out educational measures are clogged up. Though, combined with the lack of resources, it entails the risk of reinforcing the focus on investigation at the expense of preventive support.

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    A compulsory lay mediation procedure promotes the compliance of the family with social workers proposals and is a buffer between preventative work and access to courts. However, these risks are worth taking compared to those faced by English children falling through the protection net or French children whose educational measures are not implemented because of the services being clogged up.

    It could also have an impact on the interpretation and practical application of the threshold criteria by English courts, and cause French juges des enfants not to avoid conflicts and coercion when it is in the best interest of the child. Due to the difference in the philosophy of child protection in each country, the decision processes are dissimilar.

    In England, the paramountcy of the welfare of the child dictates to courts their course of action. The welfare principle is the most important guideline judges are expected to follow. This statutory possibility was preceded by a pragmatic use of the inherent jurisdiction, when no other efficient alternative was available. The welfare of the child is the paramount consideration in all child care cases, except for secure accommodation orders.

    Indeed the duty of local authorities to protect the public from serious injury supersedes the paramountcy principle. Although the consistency of secure accommodations with the European Convention on Human Rights was questioned, the Court of Appeal saw no incompatibility where it is justified within article 5 1 d as the detention of a minor by a lawful order for the purpose of educational supervision. However, it can be argued that education is not the purpose of secure accommodations, and that the architecture of the text and the judicial interpretation make it a tool of long-term social control over disturbed children, who are considered more as delinquents than children in need of protection.