Social Justice and Children in Care

Morag Owen

• Publisher: Routledge
• Year: 2017
• eBook ISBN:
  9781351899475
• Topic: Política y relaciones internacionales
• Subtopic: Política pública

Can justice be achieved in voluntary cases - or is it purely a matter for courts to determine? Using a multi-disciplinary framework, which has at its centre a philosophical/anthropological view of social work as a moral practice, the author explores the notion of justice in public child care. The problem of parents' and children's rights is addressed, first of all in the legal context of care proceedings and then in the social work setting of voluntary care. Forty-six difficult cases are examined to see how decisions are made and implemented. In the final analysis the dimensions of social and legal justice are charted in a way which may contribute to general understanding of these issues and some suggestions are offered about how social work may move forward in response to legitimate criticism.

Section IV
SOCIAL WORK AND LEGAL JUSTICE

15 Social work and law as moral practices

Since the early 1970s, the ‘treatment ideology’ in social work has been under attack from those who would like to see a greater element of justice. The main aim of the justice-seekers is to restrict unnecessary intervention, by pinpointing in detail the criteria for its use.

The main criticism is that social work reports have tended to be unfair. They are unfair, not simply because too much of the family interaction is considered pathological, but because too much is considered relevant. The justice approach therefore seeks to limit the processing of information according to social workers’ discretion - but not necessarily by the direct imposition of legal rules. The commitment to law is a secondary matter. It expresses itself in a respect for due process as a way of safeguarding individual rights, and a general preference for judicial proceedings as a form of dispute resolution, in the belief that the law is capable of accuracy and neutrality.

Because much criticism is targeted on social inquiry reports, there is also a tendency to separate justice and welfare as these terms are used in criminal proceedings; i.e. justice is concerned with establishing matters of fact (in accordance with matters of law) by means of reasoning from admissible evidence, whereas welfare is a diagnostic process concerned with opinions about disposition.

In terms of moral practice theory, neither of these beliefs makes any sense. Both practices have means of establishing facts and what can be deduced from them; but the conclusion which is made to follow from the beliefs (and which clearly does not follow) is that the legal system is invariably the best way of achieving justice. The fallacy here is the same as the one committed by Evans-Pritchard when he said that science was superior to non-science as a way of making sense of the environment. In saying this, he had already adopted a scientific view of reality. If the judicial view of justice is adopted as a universal standard, there is no way that any other practice can compete with it.

The ‘justice’ view - at least as represented by its chief exponents Morris, Giller, Szwed and Geach - does not of course equate legal justice with everything which happens in court. Much of these authors’ criticism is directed at courts, and the juvenile court in particular, as being insufficiently rigorous in its application of justice (Morris et al, 1980). The significant point is that care proceedings are being criticised from the point of view of legal norms. What is under criticism is the welfare orientation of care proceedings. The inconsistency of High Court judges is also recognised in relation to care disputes - but only as another defect of the system, which could be improved by more careful codification (Morris et al, 1980, p. 109). There is no suggestion that social work can complement legal processes. On the contrary, the Finer Report is quoted as evidence that the Family Court, in its original conception, was intended not as a welfare tribunal but as a judicial institution ‘which in dealing with family matters does justice according to law’ (p.125).

It has to be admitted that, in difficult disputes, attention to due process can eliminate the worst excesses of discretionary judgement. But it is clear that not every moral dilemma in social work can be taken to court. Social workers are inevitably engaged in justice-making decisions. Do social workers exercise a diluted form of legal justice?

There is a parallel, here, with the issues raised by Winch in his article ‘Understanding a Primitive Society’ (Winch, 1964). Winch's criticism of anthropologists such as Evans Pritchard and Fraser was not that they saw the primitive society as totally lacking in scientific thinking, but that they saw in its activities a form of attempted science - an immature form of technology in which the elements of explanatory theory were not well formulated. If the analogy is pursued as a means of understanding justice in social work, it is possible - but perhaps equally fallacious - to say on the basis of superficial resemblances (such as the resemblance between some case conferences and courts of law) that social workers exercise a watered-down form of legal justice.

Against the allegation of fallacy, it has to be admitted that there is a clear link between social work and law - a link which does not exist between us and the Azande. Social work is bound by legal rules. In matters such as the failure to observe legal status, already noted, social workers can be accused of ‘bending the rules’ to the point where professional decisions become unjust if not actually illegal.

The reason this argument is so immediately appealing is that we are not conditioned to think of social work and law as moral practices. Social work has its own meaning for legal rules. The reason that disrespect for legal status can be classified as unjust, in social work, is that it frequently denies children's rights of access or return and places the child's future welfare in jeopardy - and also that the position taken is lacking in comparative justice, since children in long-term voluntary care are treated in the same way as children subject to a care order and relevant differences are ignored. These are law-related but not specifically legal reasons. They are casework reasons, and they pre-suppose a social work notion of justice - more consequentialist, perhaps, than respect for previous holdings and entitlements (which cannot of course be ignored) , but more relevant to the dilemmas in which social workers are engaged. The applications are not less precise; they are more precise than the legal rule. They may be described as interpretations of legal principles - but they are interpretations carried out in accordance with social work norms.

The conclusion is that social work has its own forms of justice. This does not of course prevent social workers from acting in a way which could be described as unjust, from either a legal or a social work point of view.

Clive Grace in his thesis ‘Legal Rules in a Social Work Setting’ produces an interesting study of attitudes towards law in two social services departments. He found that many social workers ‘apprehended law in a social work manner, rather than in a way that might be termed legalistic or judicial’ (Grace, 1984). He appears to understand and accept this difference - but when in his later research he finds that one department has evolved by increasing attention to legal detail, he says that the position has improved.

Certainly the position has improved, if ignorance of the law and woolliness of thinking is all that has gone by the board. Grace also has a good argument in saying that members of the legal profession expect (and have a right to expect) control over the possible meanings of legal terms (Grace, 1984, p.76). But Grace's thesis lacks a moral perspective, and at times it is rather mechanistic. He is concerned with the processes of negotiation, manipulation and compromise which are carried out on the fringes of social work and law. There is no consideration of how, in the process of this negotiation, justice for clients is helped or hindered.

Attention to legal detail within a welfare framework does not necessarily increase justice, as a few examples from Grace's thesis will serve to show.

1. Area Office A, in his study, has a firm regard for due process and legal rights. Their policy - in accordance with a respect for legal detail - is to seek court sanction for a transference of rights whenever the Department wishes to assume control of a child. But when that position breaks down, the office attempts to satisfy its casework objectives by ‘bending the terms of voluntary care and then negotiating with the parents from a position of considerable strength’ (Grace, 1984, p. 148).

This strange behaviour can be accounted for as an attempt to avoid parental rights resolutions which - although they are provided for in law - ‘represent a low water mark of judiciality in child care matters’ (p.133). The absence of parental rights resolutions may, as Grace suggests, be used as a test of the legal ethos in a department; but inasmuch as they are replaced by other forms of coercion, their absence cannot automatically be equated with justice. Nor is it right to encourage the view that, as long as the requirements of legal rules are satisfied, social work can do as it likes. This is not what a social work theory of justice implies.

2. A separate but related issue is the reasons for which legality is observed. In Dept. A, wardship increased in popularity because of its advantages to the parents. (The parents were parties, with legal aid, at a time when legal aid in care proceedings was confined to the child. Moreover, care orders made in wardship proceedings were more flexible and could be amended to meet the family's changing circumstances).

In Dept. B, on the other hand, wardship was favoured because of its advantages to the Department. (Wardship was seen as an easy option if there was insufficient evidence for care proceedings).

These different usages of identical legislation are very striking. They may indicate, as Grace suggests, that law acts as ‘a resource for social workers’. They also indicate what happens to legal rules in the presence of social work norms - and that the social work norms are themselves subject to variations, since each department has its own view about what constitutes justice.

It is tempting to identify social justice simply as a set of general principles for use in moral reasoning - but this is injurious to the whole notion of justice, which ceases to be of much value if it is over-extended in this way. As Tom Campbell says, ‘Any analysis which sets out to capture the full range of uses to which the language of justice is put may turn out to be unmanageably open-ended’ (Campbell, 1988, p. 5). At the same time a social work theory of justice which is founded on moral reasoning would not succeed in excluding questions of legality, since the essence of such a theory (presumably) would be to accommodate and prioritise claims - of which the claims based on legal rights form a part.

One of the challenges for theory-building in this area is to find out how the different ‘conceptions’ of justice in social work and law may be linked. Campbell identifies as ‘a major weakness of much contemporary philosophy of justice’ the fact that it has so little to contribute to our understanding of the relationship between justice in different spheres - particularly those of law, welfare and remuneration for work. He continues:

‘Although many analyses of social justice do at least seek to bring together considerations of justice in the welfare and employment spheres, they are often at a loss to explain how justice in these areas relates to justice in the administration of law, thus fostering the conceptually and politically unhappy idea that legal justice and social justice are quite distinct phenomena’ (Campbell, 1988, p.10).

In my thesis, social and legal justice are not being treated as ‘distinct phenomena’. They are being considered in the context of admissions to care; but within this framework, social workers’ decisions to receive a child into care voluntarily are being ‘operationalised’ as a form of social justice. It makes sense, therefore, to look at ways in which research may be able to shed light on the issues.

. . .

Most social work decisions about admission to care are not made with deliberate reference to principles of justice, as other researchers have discovered. Vernon and Fruin, for example, in their study of social work decision-making, found that the issue of voluntary or compulsory care was not addressed explicitly. On the contrary, the determination of legal status emerged from the interplay of some apparently unrelated factors (Vernon and Fruin, 1986, p.43). The researchers found that social workers are guided by generalised assumptions about the appropriateness of certain actions in relation to specific situations, and they concluded that ‘cases became categorised according to criteria such as age, underlying reason for admission and need for control, in such a way that decisions about legal status and placement were made in a routine manner and not necessarily with reference to individual circumstances’ (Vernon and Fruin, 1986, p. 58).

The fact that decisions were made ‘in a routine manner’ does not of course suggest an absence of justice. On the contrary, this kind of categorisation can be a useful attempt at delineating criteria, in such a way that comparative justice is increased. The main criticism here is that the rules are not sufficiently sensitive to client needs. But further investigation suggests that social work has an implicit notion of justice, which needs to be drawn out in order to be explained.

The balanced administrative structure of social services, and the conduct of case conferences etc. within it, reinforces a generally held belief that the main characteristics of justice are fairness and consistency. These characteristics are not specific to justice, as Eugene Kamenka points out. They are part of ‘the requirements of communication and rational discourse, of which the judgement of justice is a part’.

‘Successful communication, the conditions of discourse, requires that words be used invariantly, in the same sense to cover the same events, that inconsistency and contradiction be avoided, that lies be not told and relevant facts be not concealed, that people say what they mean, that there be no arbitrary, self-willed, unpredictable change of concepts or meaning and no unexplained exclusions. These are therefore among the foundations of justice as in intellectual activity’ (Kamenka, 1979, p.13).

This definition of justice is not peculiar to the legal system. Pursuing its own identity, and at the same time seeking to combine justice with welfare, social work has found its own way of incorporating justice (in the sense of fairness) in its own system. The desire for consistency manifests itself in supervisory checks and balances - the use of managers and co-ordinators, for example, to chair case conferences across a wide area, or the request for second opinions. In some areas there are specialist consultants in child abuse, and these consultants have senior status. The aim of these manoeuvres is to reduce the arbitrary nature of decision-making for children. Their effects include diffusion of responsibility within the service, and a general distancing of the locus of decision-making from the point of contact between worker and client.

It stands to reason that justice as fairness is also social justice; but it still does not answer the questions which are central to social work. Increasing bureaucratic controls may actually interfere with justice in the sense of the meeting of legitimate needs.

Justice in the widest sense is concerned with how people should be treated. For a great many social workers, the basis of the treatment must be contractual. This appears to give more freedom of choice to the individual, even if it is only within a limited range of options. (If reception into care is voluntary, the parent may still have no alternative if wider social injustices exist). However, it does make the point that if intervention is not voluntary, its use should be carefully restricted. This is reflected by the desire of some social workers not to use compulsory powers unless the situation clearly demands them.

For others, the basis of social justice must be distributive (Miller, 1976). Because of the link with the rest of the welfare system, the allocation of care within the social services can be interpreted as a form of resource distribution - and this element within the study of voluntary care merits further investigation. If reception into care depends on an assessment of the parent's needs and resources and a calculation of the shortfall, the prime notion here is one of bureaucratic entitlement - and this carries with it the notion of comparative justice.

A narrow concept of distributive justice does not go far enough, however, in describing the allocation of care. Firstly, the rights of the parents when the child is in voluntary care should not be described as rights of recipience (and therefore passive) so much as rights of action. Secondly, the supposed entitlement to care is no more than a need which could conceivably be met by other services; and thirdly, the theoretical criterion for distribution is not parent-need or even child-need but the child's best interests - and the ramifications of this notion go beyond any rigidly-conceived form of distributive justice into other forms of adjudication. Both social workers and courts, in the matter of admitting children to care, are concerned with corrective justice.

The notion of duties and responsibilities, although fundamental to law, is common to both practices. Even the notions of procedural and substantive justice, as discussed in Ch. 7, are not confined to social work or law. The results of the study suggested that voluntary care may be strong on some aspects of substantive justice, weak on procedures; but further differentiation is possible if attention is paid to the contrasting forms of care (e.g. short or long term) and the exact circumstances surrounding admission.

In short, the discussions of justice and the investigations which have led up to this point have not elicited any evidence which suggests that legal justice should be treated as a concept quite separate from social justice in the matter of admitting children to care - nor do they suggest that legal justice is a paradigm by which all else should be measured. What they seem to show is that social and legal justice vary along certain ‘dimensions’, which may be described as distributive/corrective, substantive/procedural etc. Given these dimensions, the difference between social and legal justice emerges as a bias in one direction rather than another (see Table 15.1).

A few points need to be made in clarification of this table. Firstly, the categories are not mutually exclus...

Table of contents

• Cover Page
• Social Justice and Children in Care
• Copyright Page
• Contents
• List of tables
• Foreword
• SECTION I: Introduction
• SECTION II: Parents' and children's rights in a court setting: the notion of justice in care proceedings
• SECTION III: Parents' and children's rights in a social work setting: voluntary care
• SECTION IV: Social work and legal justice
• Bibliography