Introduction
This essay will begin with a brief description of the nature of my placement and the setting. The law and guidance relating to the policy framework will be identified. I will also make a distinction between the legislation and the statutory guidance that underpins the practice, before broadly establishing how it relates to my agency policies and procedures in broad terms.
Within my placement, there have been two prominent themes; child welfare and confidentiality. The main body of this essay will discuss these two themes. From the dimension of ethics there will be examination of the law, the policy and ethical dilemmas. I will draw on my own case experiences to emphasize some conflicts and the way forward.
The Agency Placement
My placement is in a statutory setting; it is a children and families locality team. The team supports children aged from pre-birth to 18 years. The placement supports children who meet the eligibility for child protection (CP) according to section 17, CA 1989 (Great Britain, Children Act 1989). The CA 1989 largely contains the framework for the safeguarding of children.
The team has further legal obligation which includes; CA 2004, Data Protection Act (DPA) 1998, Freedom of Information Act (FOIA) 2000 and the Human Rights Act (HRA) 1998 (Brammer 2010). The Acts identify legal powers that social workers may use, and legal duties that are mandatory for them to carry out (Walker and Walker 2009). Weber would describe my organization as a rational organization as it operates on impersonal legal grounds with “rigid departmental divisions and clearly defined roles and rules, mobilized through hierarchical chain of command” (Morgan 1984, p.64). The government issues statutory guidance to inform my placement agency’s policy and practice. The guidance is mandatory for the agency to apply unless there’s good reason to act otherwise (Brammer 2010).
There are two main policy documents that are underpinned by legislation in this case; Every Child Matters (ECM), and the Working Together to safeguard Children 2010. These two areas provide the “Framework of Assessment of Children in Need and their Families”, issued in 2000 by the Department of Health (Brammer 2010).
My agency has further internal guidance notes for working with children to ensure good practice in information dissemination (Surrey Net 2008). Historical application of law has shown that it is not a rigid concept and has no clear-cut criteria for application. My aim is to illustrate that Law is flexible with regards to child protection, is flexible, and its application is reliant upon an individual’s perception and circumstances. It is therefore prudent to state that different professionals, according to their provision of evidence, can apply law differently. Although it may be pointed out that this non-uniform application of law may lead to a grey area or lack of uniformity and approach to different problems (Thompson 2009), it is clear that any attempt to rigidly apply law may not yield fair results as far as child’s best interests are concerned. In my placement, I held nine s.17 cases and co-worked two s.47 child protection cases. Amongst these cases, the two themes that became prominent to me were; the child’s welfare (wishes and feelings, and confidentiality.
Section 2
My placement agency operates within the confines of Children Act (CA) 2004. Drawn from the CA 1989, CA 2004 presented an improved policy that would shape Child Care Law and Policy practice (Brammer 2010). Every Child Matters is “comprised of the policy set by the government in response to the findings and recommendations by Lord Laming” (Brammer 2010). Lord Laming found out that despite the robust legislative, structural and policy foundations put in place by the government, it was clear that there was a need to make “a step change in the arrangements to protect children from harm” (Great Britain 2005, p.3). He directed his challenge to the government to “inject greater energy and drive into the implementation of change and support local improvement” (Great Britain 2005, p.3). These recommendations were based on the case of Victoria Climbie, whose social case drew so many critical issues in the implementation of the children protection policy.
To summarize this case, Victoria, aged eight, died from hypothermia after several months of sustained abuse by foster carers. It was concluded that Victoria’s death could have been prevented, had the professionals involved, explored the opportunities available to protect her from further harm. Some key systematic problems were identified to have jeopardized the process of intervention, leading to the ineffectiveness of the legislative and ethical procedures. They included: “Low standards of professional practice; an absence of a person or persons with accountability; poor managerial support for front line workers; and failure to share information within and between agencies” (Great Britain 2005). Lord Laming’s key proposal was to have keener focus on the needs of children and young people, hence the creation of Children’s Commissioner for England (Great Britain 2005). According to the report, it was believed that a Children’s Commissioner would form a powerful ‘listening post’ for children and young people, and “an important part of the commitment to place children at the center of reforms” (Great Britain2005).
Section 1 of the CA 1989 presents the child’s welfare as a paramount consideration in the implementation. Section 1(3a) states that the “wishes and feelings of the child must be ascertained and considered depending on age or developmental understanding” (Brammer 2010). This may be read to explicitly mean that child centered approach is of great significance, as reinforced in the five main outcomes of Every Child Matters namely: “Be healthy, Stay safe, Enjoy and Achieve, Make a positive contribution and Achieve economic wellbeing” (Great Britain 2005, p.8). However, whilst the court has to take into consideration the wishes of a child, it is not bound to adopt those wishes (Brammer 2010), further putting the policy implementation into dilemma. In my placement, there are guidelines that aid us in the decision-making process, in case the court fails to honor the child’s wishes.
In the international context, The United Nations Convention on the Rights of Children (UNCRC) has been set to safeguard the rights of children. It is the “comprehensive instrument that sets out the rights that defines worldwide principles and norms for the status of children” (except in USA and Ethiopia) (Unicef 2010). Although UNCRC is a global body with less power in terms of legal backing, it offers a universal guideline that may be critical in setting up better policies to protect children. However, working with children is a very challenging exercise, as their wishes and feelings change from time to time. Moreover, it cannot be ignored that the changing circumstances and perceptions of personal freedoms are part and parcel of our society. Social workers who work with children are often unsure of how to approach certain issues, particularly those related to child welfare as defined by his or her wishes, and rights and confidentiality as prescribed in the law (Smith & Logan, 2004).
In order to demonstrate the social and legal dilemma that exists in working with children under foster care, I will now outline the case that I jointly worked on during my placement. I will maintain confidentiality by referring to the child as X. X’s case is a challenging dilemma of an 8-year-old child who needs support, and decisions that ensure maximum benefit. Working with X, I faced an ethical dilemma of what was in the best interest to ensure his welfare.
X’s parents have an acrimonious relationship and are divorced; X’s father has remarried. X resides with his father and the step mother. The dilemma in the situation is based on X’s choice and desire against wishes of the people concerned (father, mother and the carers). Part 5 of CA 2004 places a duty of on local authorities to make arrangements through which children welfare can be achieved in the faster care programs. X’s step mother notified the local authority’s Children’s Department of her intention to carry out a private fostering arrangements, with assistance from X’s mother. Section 48(1) indicates that a parent or a spouse of a parent of the child in need is eligible to apply for parenting responsibility. The authority granted him a go-ahead to incorporate X as part of the new family. Sections 44 to 47 of Part 5 of the Act only require the local authority to strengthen the existing notification arrangements for private fostering, with “a reserve power to introduce a registration scheme should these not prove effective” (Stationery Office 2005, p.2).
Given the growing professional assumption that direct post-adoption contact is beneficial for children, it was agreed that X would maintain contact with the biological mother and his siblings. According to Smith & Logan (2004), good practice demands that direct contact should be the preferred option along a continuum of arrangements for enhancing openness. He asserts “we know unequivocally that the balance of evidence points to the importance of the maintenance of links and contacts for those who are adopted, with their original families. However, against the backdrop of this important observation, has overtly refused to maintain any contact with the mother and siblings. X is 8 years-old and according to Erikson stages of psychological development, he is at the initiative versus guilt stage (Thompson 2009). This is the stage in which limits of imposed by others truly begin to be “internalized by the child to form a conscience” (Wallen 1993, p.23). It is possible to argue that his parents’ acrimonious relationship the possible contributing factor to his refusal to see his mother, as he had began to internalize the past parental relationship. How can X’s case be handled within this conflict of the law and ethics of respecting his will and desires? The practitioner’s aim whilst adhering to relevant legislation and policy is for X to achieve “the five outcomes of ECM; be healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic wellbeing” (Johns 2009). The practitioner also needs to know what reasons have X considered in the decision not to see his mother regularly.
Child’s Interests, Rights and the LAW
X like all Children have specific rights conferred by the 1989 United Nations Convention on the Rights of the Children. Articles 9 and 12 are of particular relevance to his case. Article 9(3) presumes that “children separated from their parents have a right to maintain personal relations and direct contact with both parents on a regular basis, except if this is contrary to the child’s best interests” (Smith & Logan 2004, p.14). Basically, this provision requires policy-makers and practitioners to think carefully about contact arrangements for X who are separated from either of the parents. Article 12 is probably the best know for its insistence on children’s rights to express their views and, in accordance with their age and maturity, to have them given due weight. Common argument is that professionals often make decisions of contact without giving serious consideration to the child’s whishes and feelings (Munro 2004. p.212). In consistent with this provision and other ethical requirements as explained earlier, is it logical for X to be forced into contact with the biological mother? Would breach his rights as well as go against his personal feelings. Although X’s mother has right to family life art 8 ECHR 2000, X’s rights seem to override every aspect of the legal provision (Munro 2004). The UNCRC has been supplemented by the Human Rights Act 1998, which incorporates the convention for the Protection of Human Rights and Fundamental Freedoms into domestic law. Article 8(1) of the convention states that, “everyone has the right to respect for his private and family life, his home and his correspondence” (Smith & Logan 2004, p.15). This correspondence may be categorized under that autonomy of the individual, as being responsible for their own act. According to Bowles et al. (2006), autonomy is the opportunity to choose independently from a number of options. Furthermore, autonomy can only be viewed as an extension of the liberal notion of freedom from harm and interference in self actualization (Bowles et al 2006). Even though X faces the risk of detachment with his mother and siblings, does the emotional distress suffered by X due to separation from his mother and siblings overrides the need for attachment? Furthermore, the conflict remains will overly facilitated contact will increase his emotional distress, considering his developmental stage of life (Surrey County Council 2010). Would it be in his best interest to shun his mother and siblings’ advances to meet him? For this age and development stage, it would be logical to allow X to exercise his freedom of choice until he reaches a stage in life where he would need to recognize the importance of his mother.
Right to Confidentiality and the Law
One of Lord Leming’s conclusions in the report, “The Protection of Children in England: A Progress Report”, was that Victoria’s death was aggravated by failure to share information within and between agencies (Great Britain 2005, p.7). But to what extent should one consider sharing confidential information? That is, to what extent should confidentiality be prioritized? My organization has legal responsibilities associated with handling of information including the Data Protection Act (1998), the Freedom of Information Act (2000) and the Mental Capacity Act (2005). Brammer (2010, p.13) comment that confidentiality is “an important source for social workers faced with ethical dilemmas.” The General Social Care Council Codes of Practice addresses confidentiality as an aspect of requirement for social workers to strive to establish and maintain the trust and confidence of service users and carers (Brammer 2010). These include clarifying and being clear with service users how the information is likely to be recorded and used, establishing confidentiality in terms of undertsnading professional and service user boundaries.
One of the proposals of Every Child Matters is that “a more integrated processes available across children’s services, including protocols for sharing of information about individual children; a computerized ‘child index’ containing basic data about all children; common assessment and referral procedures for identifying and addressing need; joint training with common core standards” (Great Britain 2005, p.8). Through her study of the case against data protection, Munro (2004) believes that the greatest risk that information sharing between the social workers is suspicion and not surveillance per se as many have believed. But she states the problem of suspicion relies on the inability to control the shared information strictly within the parties concerned (Munro 2004). This highlights the importance of managing information within the boundaries set by legislation, agency policies and procedures. By following laid down legislation, agency policies, as well as procedures, the agency is in a position to eliminate ethical dilemmas, central to Kantian principle of the concept of duty versus respect for the autonomy of individual person (Banks 2006).
My placement has a confidentiality internal guidance, which states that information disclosed is not shared with an individual but to the body organization (Banks 2004; Surray net 2010). This is confirmed by Thompson (2009) that confidentiality is not maintained by an individual but by the organization. This view is reached by noting the ‘general rules and descriptive statement of what is good’ (Hugman 2005, p.11).
Way Forward
The best way forward is to ensure that some criteria are applied in the overall plan of care (Sakia & Kuelinad 2002). According to section 12 of the CA 2004, professionals should share information by entering information on service users in the database. Basically, such information is placed on the database in accordance with the six Caldicott Principles (Hugman & Smith 1995; Sakia & Kuelinad 2002; Brammer 2010). These principles identify standards on the protection of personally identifiable information, thus is applied in addition to DPA (1998) (Surrey net 2010). Moreover, a Court of Law can breach confidentiality if it instructs either or both parties concerned to reveal the confidential information of one reason or the other. This highlights the fact that confidentiality is best understood as ‘careful attention to privacy than as absolute maintenance of secrecy’ (Collingridge et al. 2001 cited in Hugman 2005, p.79).
One issue that must be stated is that while the law is clear on individual privacy as well as confidentiality, it should not act as a roadblock to necessary “information sharing between professionals” (Stationery Office 2005). As Banks (2006) states professionals have a duty to safeguard children, therefore the need to prioritize the concept of greatest good before the interest of the individual. In my placement, the use of confidentiality has been concentrated within the departments that are concerned with specific cases. Every member of the organization has been made aware of the need to overall information protection.
Conclusion
This essay has aimed to discuss two prominent themes; child welfare and confidentiality. In the perspective of ethics vs. law, the ethical dilemma that has faced my agency placement has been synthesized, with some analysis of policy provisions. It is clear that the need to adhere to the professional code of conduct in child welfare has increased in debate. However, the example given earlier (the foster-care of a child) demonstrates that decision making should not be rigidly based on laws and regulations particularly if they do not reflect free will and choice of the child in question. Social workers should be in a position to adhere to statutes and to the organization’s procedures, albeit within the legal provisions. Social workers who have develop a wider knowledge based on laws, beyond the directives for social work intervention are better placed to succeed in the foster care initiatives. Lastly, it is clear that confidentiality is not absolute in application. When the principle of confidentiality is inconsiderately applied, it may restrict the information shared thus leading to potentially abusive situation being missed as happened in the Victoria Climbe’s case (Parrott 2008). The need to restrict information to individual organizations and follow strict ethical needs is needed for adequate protection. This offers an important insight: legislation is the guiding principle for all social workers. However, applying law to practice is more of an inductive logic, and will change from time to time depending on the situation at display (Anderson & Hill 1997; Parrott 2008).
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