There are serious problems with our child protection system, which now involves 5% of all families yearly. We accept this because we think it will help keep children safe yet figures show that it isn’t working. And the families caught up in it are being harmed. Research from Dr Lauren Devine and Parker unpicks how the erosion of important boundaries established by the Children’s Act 1989 has led to the current situation and the problems created.
The increase of families investigated has not decreased child abuse as the efficiency rate of referrals to detections had dropped from 24% to 7%.
The following is a summary of Rethinking Child Protection Strategy: Progress and next steps Keynote address: Transparency Project Conference, 3rd June 2016, The Priory Rooms, Birmingham ‘Where do we go from here?’ Dr Lauren Devine
“Our findings indicate that the current strategy requires urgent review and reform. Our findings show the current strategy of conflating child protection with safeguarding at the early stages of referral and assessment have not resulted in more efficient or proportionately more detection of child abuse that the question of consent has been inadequately considered under the new Continuous Assessment framework, and the focus on risk does not provide a consistent or reliable method of abuse prediction or prevention. The current strategy is inefficient and does not adequately address the question of child abuse.”
We consider the current position to be at least potentially unlawful in respect of the interference itself and any associated data sharing that takes place in cases where consent is not explicitly given and which falls below the s.47 threshold (Devine, 2015c).
Government strategy: conflating child protection and safeguarding
The Children Act 2004 hugely expanded the children who are the concern of the state. The Children Act 1989 restricted legal involvement to s.17 ‘in need’ for which state involvement had to be consensual, and s.47 ‘suffering or at risk of suffering significant harm’ for which action did not require consent.
Coercive practice at a low threshold of need is a barrier to achieving a productive relationship as well as an inefficient means of detecting child abuse.
The Children Act 2004 aimed to address parents whose parenting was felt to be inadequate, although below the s.47 threshold and who did not wish to engage with social workers. It is still the case that until the s.47 threshold has been reached coercive sanctions are not permitted, the 1989 legislation being clear on this point. However, the 2004 legislation combined with statutory guidance, Working Together to Safeguard Children (HMGov, March 2010; DoH, April 2010; DfE, 2013; DfE, 2015) has eroded this clarity due to estimation of risk.
Following the 2004 Act all children are now in a category which could be referred due to the concept of ‘safeguarding’ as an additional concept to ‘child in need of protection’ and ‘child in need’. Additionally, ‘need’ and ‘risk’ are now conflated into one Continuous Assessment making it difficult to establish the boundaries of the two, and therefore blurring where consent is required. The result has been ever increasing numbers of families referred by agencies covered by s.11 of the Children Act 2004 (such as schools) The majority of referrals are not cases of ‘reasonable suspicion of significant harm’ but are often treated and assessed as though they are.
Large numbers of families referred but no statistically significant reduction in abuse
Since the Children Act 1989 the State’s concern into families and combined with policy changes has resulted in 5% of families being referred every year. Many families are being ‘risk assessed’ without giving informed consent, free from coercion including threat of escalation. The system is having to process this large number, most of which are not cases which reach a s.47 threshold even following assessment. Because of this the efficiency at referral and assessment stage has fallen leaving the problem of how serious child abuse is to be addressed. The increase of families investigated has not decreased child abuse as the efficiency rate of referrals to detections had dropped from 24% to 7% (Devine and Parker, 2015).
Policy strategy is very risk adverse. Early referral leading to early interventions are favoured, with families being escalated should they fail to engage. In theory this should lead to a significant reduction in child abuse, aiming as it does to catch problematic behaviour at an early point. It is unclear if it does so. Studies do not report any reduction in prevalence of reported child abuse in the general population (Cawson et al, 2000; Radford et al, 2011). Devine and Parker’s trend data of 25 years of referrals and assessments shows that the increasing emphasis on early referrals and interventions has not resulted in the expected statistically significant reduction.
Harms of over-referral and impact on families
The families referred and assessed are harmed, as highlighted by a large body of literature. Cases of false positive referrals (where risk assessment has predicted abuse where in fact none exits) has been shown to lead to serious trauma with PTSD type symptoms reported. In 2013/14 the potential scale of this in England was 592,600 families so affected, for which there is no redress.
The tendency towards over-referral compromises the ability of social workers to carry out timely and effective reports increasing the likelihood of serious cases being missed. Children’s social care departments have ever increasing cases and workloads.
The Children Act 1989 aimed to protect children while realigning ‘…the balance between families and the state so as to protect families from unwarranted state interference …’ (Allsop, 1990:41-46) Following the Children’s Act 2004 many have raised concerns about the over-intrusive policy and direction of legislation which has raised questions of rights to privacy and family autonomy and the unprecedented high level of surveillance and intervention of families at a level far below the statutory s.47 threshold.
Eileen Munro and Nigel Parton warned: ‘England is in the process of introducing a mandatory reporting system but not based on any notion of child abuse but on the basis of “a cause for concern”, which is not defined in the legislation. The new policy of “safeguarding” children has a much wider remit than just “protecting” children from abuse or neglect.’ (Munro and Parton 2007:14)
“We consider the current position to be at least potentially unlawful in respect of the interference itself and any associated data sharing that takes place in cases where consent is not explicitly given and which falls below the s.47 threshold (Devine, 2015c)”
A 2009 report, Database State, by Anderson et al found that both the now abandoned ContactPoint and the electronic Continuous Assessment Framework are illegal.
Aspects of the system examined by Devine and Parker
Empirical research of educational professionals in schools into safeguarding training
This project investigated the impact of s.11 CA 2004 and related statutory guidance which introduced what amounts to a mandatory reporting requirement on schools and education providers. Empirical research with educational professionals in schools to evaluate their safeguarding training and how that translates into referrals. The project found unregulated, for profit organisations delivering legally and factually incorrect training with a bias towards over-reporting.
Large-scale secondary data analysis, investigating areas identified as influential for strategy
Our overall finding is that Serious Case Reviews are costly, and provide no reliable research findings on which to base future policy to be applied generally in non-fatal cases.
Retrospective failure analysis
One response to child fatalities and serious incidents of child abuse is retrospective analysis to see if failures can be identified, such as Public Inquiries, Serious Case Reviews and the Child Death Review Process. Devine and Parker reviewed the recommendations of all available Serious Case Reviews finding that recommendations, although often vague inevitably recommend more intrusive and coercive surveillance and increased data sharing. This is done without consideration of the potential harm of doing so and without understanding of the wider impact on all cases.
Such reviews contribute to a culture of blaming individuals and organisations which contributes to the fear of ‘missing something’. Social workers can be blamed for both action and inaction but professional and judicial sanctions only apply to inaction. The result is unbalanced strategy and professional action slanted towards increased intervention.
“Our overall finding is that Serious Case Reviews are costly, and provide no reliable research findings on which to base future policy to be applied generally in non-fatal cases.”
Importantly Serious Case Reviews have not established that there are particular risk characteristics in families subject to the reviews that substantially differ from other families that social workers come into contact with, or that exist in the general population (Brandon et al 2012). Safeguarding policy has failed to take this important finding into account.
Prediction of Risk
When risk prediction was adopted as a tool to be used in child protection the limitations were recognised. It was known that a large number of false positives, families predicted to abuse their children who did not do so, and some false negatives, families not predicted to abuse but who actually did. Over the years risk prediction has become a key aspect of safeguarding and these shortcomings have been forgotten.
Devine and Parker analysed the outcome of a risk prediction exercise undertaken by other researchers and found that the risk prediction wrongly predicted risk in over 97% of cases, and under predicted risk by missing 17.5% of abuse cases. (Read in full for tables.) The current government strategy relies heavily on prediction, which is very problematic within the framework that makes it mandatory for all parents wanting services for a child ‘in need’ to be ‘risk assessed’ in order to access them. “This is why the question of consensual assessment is so important as this scrutiny can escalate families into a more coercive process simply because they have certain characteristics.”
…risk prediction wrongly predicted risk in over 97% of cases
Devine argues that coercive state interventions are part of a policing not welfare agenda. The current system which erodes the intended distinction between s.17 and s.47 fails on both welfare and policing. “Coercive practice at a low threshold of need is a barrier to achieving a productive relationship as well as an inefficient means of detecting child abuse.” It provides inadequate protection for families where children are not abused yet are coerced into non-consensual engagement. At the same time embedding the policing model within the welfare framework risks insufficiently robust early stage response when a child is at risk of significant harm. She claims that the current system is at least potentially unlawful.
The Outlier Paradox/Model Service User
Devine and Parker identified what they call the ‘Outlier Paradox’. The Model Service User is the family who the framework is designed for and who will be helped by it. They have parenting challenges they cannot fix themselves, agree they need help and are happy to accept any social work interventions, both suggested and coercive despite not having reached the s.47 threshold of significant harm.
However, the current strategy becomes less effective for service users the further they are away from being a Model Service User. Two very different families may present similar features to the social worker, for example of being resistant to engaging with social work assessment. At the most extreme these will be a) a family who have been mistakenly referred and have no difficulty meeting their child’s needs, and b) a family who are correctly referred and who are systematically and covertly abusing their child. Both families will exhibit similar resistance for different reasons. Failure to comply and show ‘insight into problems’ and ‘capacity to change’ can lead to escalation of the case into the litigation states of the Public Law Outline (MoJ, 2014) despite resistance being entirely justified in the case of a) family mistakenly referred.
Further examination is being carried out into this phenomenon.
A new strategy and real change needed
Unless the state has a lawful reason via a power or a duty to interfere into private life, any such interference is de facto unlawful and ultra vires unless it is consensual.
Going forward it is necessary to separate out the policing and forensic investigative role from supportive social work with a focus on repairing the trust of the public and professionals in the productive working together of state and families. Early intervention should be consensual. We must move to focus on referrals which meet s.17 and s.47 thresholds, which should be investigated separately by different frameworks which are appropriate for their purpose and the duties of the state.
“Child abuse is rightly considered a problem, but the solution is considered to be as simple as detecting ‘signs’ that indicate a risk and referring them early. This is undoubtedly a logical if simplistic response, but it does not take account of the complexity of the issue of child abuse, the unreliability of risk prediction and the important protections that families need from unwarranted state interventions. A new strategy is undoubtedly needed via root and branch review and reform of the system. The recommendations of our research will be for this to happen: it is time for change.”
Dr Lauren Devine LL.B. (Hons), M.Phil (Law, Bristol), M.A. (Research Methods, Bham), Ph.D.(Law, Bham), Barrister of the Inner Temple (ICSL, London); P.G.Cert.H.E., FHEA is the Director of the Social Justice Research Group, the Interdisciplinary & Expert Evidence Network (IEEN) and Solutions for Safeguarding CIC.
Her research focuses on the legal and ethical balance between State power and private rights, particularly in public law processes, identifying hidden vulnerabilities and unintended consequences in welfare systems.
She has completed major funded projects examining the safeguarding and child protection systems with work funded by the Economic and Social Research Council and the Nuffield Foundation. She has published a book ‘The Limits of State Power and Private Rights’.
Current research focuses on trends in the child protection system, the consequences of rises in referrals, assessments and care order applications, risk, ‘big data’ and artificial intelligence in child protection, and the creation of an ethical charter where big data and AI is used in public decision making.