Open Letter to Hon C Robertshaw MHK, Minister for Social Care
Dear Mr Robertshaw,
You know our Children and Young Person’s Act 2001 is the only law which applies to children with welfare or other needs and, secondly to those who may be at risk of significant harm and require protection.
Children ‘in need’ are covered by section 23 (5) of the Act; and section 23 (1) deals with a child ‘suffering or likely to suffer significant harm’. The Act recognises there is a fundamental difference between ‘need’ and the services required, and a child needing ‘protection’ from significant harm.
You also know all our public authorities, such as the Department of Social Care, and those who work for them are governed by our over-arching Human Rights Act and the European Convention on Human Rights which has applied in the island since 1953. Guidance and procedures are given to those working with children from the Protecting Children Board website to help them navigate through difficult issues.Much is taken directly from England’s ‘Working Together to Safeguard Children’ statutory (legal) procedures which have no statutory authority here and no one is obliged to follow them.
We even have the extraordinary situation where the Protecting Children Board, the source of our procedures, including that on information sharing, cannot be registered with Data Protection – as it has no legal existence. Its ‘Information Sharing Guidelines for Managers and Practitioners’ makes the claim ‘Endorsed by the Data Protection Supervisor’s Office 7 October 2009’ on its cover. This is incorrect.
Despite none of its guidance being statutory the Protecting Children Board expects all member agencies will ensure staff have access to its procedures ‘and will comply with them’.
Your department can help a child in need – with the parents consent - but can only legally take forceful action when a child is at risk.
Despite this legal position the Protecting Children Board website 3.3 (2.1) requires action ‘…whether or not the child is a child in need and at risk of significant harm’. This blurring of thresholds about when action may be required has led to the confusion over when it is legally allowed. Need and significant harm are not the same thing
Last year, this confusion led to over 950 children (and their families) being referred to your Department for Initial Assessment. This included 77 children referred for ‘low income’ or ‘other than in need’ as you told Tynwald in January this year.
But far, far worse 70 per cent of all these children were wrongly referred to Social Care and had to endure baseless investigations.
In a tight-knit community like ours contact from ‘The Social’ can lead to nasty rumours and may cause long term damage within a family.
Yet your department put over 670 families through this ordeal last year without cause, referred by people more concerned about complying with the procedures and covering their own backs, than with seeking the best for children.
I had no wish to write this letter but as the minister you must stop this rot.
Social workers, teachers, doctors and anyone dealing with children must be made to understand that welfare and protection from significant harm are legally different; and that sharing personal information between agencies is allowed only for the serious business of protecting children from significant harm; but not for ‘needs’ in general.
The Protecting Children Board claims to have ‘a wider safeguarding agenda’. No one has ever explained what this means and there is no legal backing for a wider remit as you know.
But there is good news for parents on the Isle of Man because a court in London recently judged that social workers who force action on a family when there is no evidence that a child is at risk are breaking human rights law and awarded damages.
This judgment will help any parent on the island to sue your department for damages if they feel the present Protecting Children Board’s procedures are being used against their family. Since the Protecting Children Board has no legitimacy to back up its procedures this could start costing the Department of Social Care and, ultimately taxpayers, dear.
The judgment states: ‘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.’
This judgment confirmed that there is a fundamental legal break point between children in need and those needing protection. You will have to see this is made clear.
The court also ruled that correct procedures must include the parent in the decision making process, including seeking parental consent before involving other agencies and sharing information.
If government fails to do so it may be sued by all those wrongly referred.