Law for Social Workers

Caroline Ball, Ann McDonald

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780754617778
• eBook ISBN:
  9781351922753
• Topic: Sozialwissenschaften
• Subtopic: Strafrecht

The fourth edition of this popular text has been expanded to accommodate social workers' continuing need for a thorough grounding in the statutory framework of local authority practice and the wider legal context of social work in the statutory and voluntary sectors. The separate chapter on social work law in Scotland addresses continuing developments in relation to devolved government and new legislation. Since 1996, the pace of change has been remorseless. Part IV of the Family Law Act has been implemented; youth justice in England and Wales has been substantially reformed; the Human Rights Act 1998 impacts on areas of social work practice; and social security law has been significantly amended. The Adoption and Children Act 2002 will both radically reform the law relating to the adoption of children and significantly amend the Children Act 1989. All these important changes, central to social work practice, are addressed in detail.

Part I
The Legal Context of Social Work Practice

Chapter 1
Nature, Sources and Administration of Law

The law, by which is meant the body of rules whereby a civilized society maintains order and regulates its internal affairs as between one individual and another, and between individuals and the state, consists in the United Kingdom of common law, statute law (Acts of Parliament) and case law, or judicial precedent. Domestic law is also significantly influenced by international treaty obligations. For instance, the Human Rights Act 1998 effectively incorporates the bulk of the substantive rights of the European Convention on Human Rights (ECHR) into UK law (see Chapter 2), and the Adoption (Intercountry Aspects) Act 1999 incorporates the Hague Convention on Intercountry Adoption into domestic law.

For historical reasons the law of England and Wales, and its administration, differs quite substantially from that in Scotland (see Part VI), and in important respects, from that of Northern Ireland; any reference to particular provisions in Parts I to III therefore relate only to England and Wales unless the contrary is stated.

Sources of Law

Legislation

Parliament can, subject in any conflict to the supremacy of European Community law, by statute make or change the law in any way that a majority decision of both the House of Commons and the House of Lords, following established procedure, deems appropriate.

Most legislation (statute law) is introduced by the government of the day to implement its political agenda, respond to crises, or to carry through politically non-contentious departmental policy reforms, often to remedy perceived deficiencies in existing statute law; the Children Act 1989 is a prime example of the latter. The frenetic legislative activity 1997–2000 provides abundant evidence of the first. The Labour government came to power in 1997 committed in their manifesto, amongst other things, to devolution, reform of the House of Lords, and a complete overhaul of the youth justice system. All have been legislated for and most implemented. Legislation may also be introduced, not to make new law, but to rationalize and clarify existing provisions scattered throughout several statutes. For instance the Powers of the Criminal Courts (Sentencing) Act 2000 brought together all the sentencing powers of the criminal courts. This reform was long overdue. The consolidated sentencing powers were previously enacted in 15, mostly much amended, statutes ranging from the Children and Young Persons Act 1933 to the Youth Justice and Criminal Evidence Act 1999, including Criminal Justice Acts from 1982, 1988, 1991, 1993 and 1994 (Criminal Justice and Public Order Act).

Acts of Parliament, or statutes, are primary legislation and have to go through the whole parliamentary legislative procedure. Rules and regulations are made by statutory instrument under powers delegated to the Secretary of State for the relevant government department in the primary legislation. Delegated legislation is subject to only cursory parliamentary scrutiny, although it has equal force in law to primary legislation. (For a helpful account of the legislative process, see, for instance, Partington, 2000: ch. 3.)

Codes of Practice and Guidance

Whether set out in departmental circulars or glossy volumes, guidance and most Codes of Practice do not have statutory status. They are intended to be a statement of what is officially regarded as good practice and followed for that reason. Where guidance is issued under section 7(1) of the Local Authority Social Services Act 1970, local authorities are required to follow it. Although they do not breach the law by failing to do so, their actions may be challenged by complaint to the Ombudsman or weigh against them in legal proceedings. The helpful summary of the relative status of regulations and guidance in The Care of Children: Principles and Practice in Regulations and Guidance (DoH, 1989) has not been bettered.

One might sum up the differences between the requirements of these various official documents like this: – Regulations say ‘You must/shall’; codes say ‘You ought/should’. When guidance explains regulations, it reaffirms the ‘you must’ messages. However when it goes beyond regulations setting out good practice, it conveys the message that ‘It is highly desirable to ...’ or ‘Unless there is good reason not to, you should...’ rather than ‘You must’. (Ibid.: 2)

Case Law

The judges of the superior courts, the House of Lords, the Court of Appeal and the High Court, through their interpretation of statutory provisions and legal principles, both define and refine existing law, and may on occasions, where there is no similar case or established legal principle to which they can refer, make new law. Where judges do ‘make’ law in this way, Parliament may, by statute, subsequently restate the law to its own liking. The process of legislation from political or practical ideas through the democratic process to enacted statute is a familiar one; the interpreting and occasional making of law by the judges may be less so (for further elaboration, see for instance, Partington, 2000: 50–59).

Figure 1.1 The criminal courts

Figure 1.2 The civil courts

Key

Appeals

In order to understand the working of judicial precedent it is necessary to look at the structure of the courts and the way in which decisions in the superior courts have to be followed by those below them in the hierarchy (Figures 1.1 and 1.2). The courts within which the law is administered reflect the essential difference between the civil and criminal law. Civil law, for the most part, involves disputes between individual parties or corporate bodies, with one seeking either an order, or compensation for loss or damage suffered, against another. The criminal law is concerned with the trial and punishment of those who have acted in a way that is unlawful; this includes, of course, besides acts generally recognized as crimes such as murder, rape and theft, a vast range of matters, such as minor motoring offences, which are only technically ‘criminal’ in nature but nonetheless come within the jurisdiction of the criminal courts.

As can be seen from the figures, the separate systems of courts for the administration of the criminal and civil law now come together only when an appeal reaches the Judicial Committee of the House of Lords (commonly referred to simply as ‘the House of Lords’), or more rarely the European Court of Human Rights.

Judicial precedent – the system by which the decisions of superior courts are binding on those below them in the hierarchy – not only clarifies and refines the law, but makes it more certain. Where a point of law has been decided in a previous case, a court subsequently hearing a case involving the same point will be bound to follow that decision or differentiate the circumstances of the current case.

A point of law decided in a case in the House of Lords is binding on all other courts below – but not necessarily on itself on a future occasion (Practice Statement (Judicial Precedent) 1966). Decisions in either division of the Court of Appeal bind all the courts below and will generally be followed in their own subsequent decisions. In the High Court, Divisional Court decisions (two judges) are binding on a judge sitting alone, but one High Court judge’s decision will not necessarily be binding – although it is likely to be influential – on another.

The inferior courts, which are the county court, lower tier of the Crown Court and all the magistrates’ courts are bound by the decisions of all superior courts, but not by their own or those of other inferior courts.

Information on all important judicial decisions is recorded in reports in which the facts of the case, the points of law involved and the decision are recorded and regularly published in hard copy and electronically according to the specialist subject matter involved. There is an elaborate system of referencing to enable lawyers and courts to keep track of developments in case law and to trace decisions relevant to particular situations or legal principles (see page 4). In 2000, a new system of referencing reported decisions in the superior courts was introduced. Cases continue to be reported in specialist reports but will be cited according to the new referencing system. Judgments from the Court of Appeal and the House of Lords are available almost immediately on the Internet, and those from all superior courts can be accessed through a growing number of electronic legal databases.

Jurisdiction of the Courts

Civil Courts

The venue for civil trials will depend either on the nature of the dispute or the sum of money involved, or sometimes both. As an example, it may be helpful to look first at family proceedings and then at other civil disputes.

If the traditional concern of family law was with marriage and its consequences particularly in regard to property, today the term covers a wider area. It encompasses, for instance, such legal regulation as there is regarding the consequences of cohabitation, and the public as well as the private law relating to children. In most family proceedings, although not in divorce in which magistrates have no jurisdiction, all three levels of court (magistrates, county court and High Court) have concurrent jurisdiction. The decision as to which level of court to make application in private law proceedings is a matter for the applicant, although if they are in receipt of funding by the Legal Services Commission (see page 19) they will only be funded for the least expensive proceedings able to provide the order or remedy required. Public law cases start with an application to the magistrates’ family proceedings court, and may be dealt with there or transferred to a county court care centre or, exceptionally, to the Family Division of the High Court. Private law proceedings related to family breakdown are dealt with in greater detail in Chapter 7 and those relating to child care and protection in Chapters 9 and 10.

Cases such as those involving claims for personal injury or breach of contract will generally be heard in the county court or in the Queen’s Bench Division of the High Court if very large sums of money are involved. Almost all these cases are eventually settled between the parties before the case actually reaches the court, or when part-heard.

Appeals from the magistrates’ family proceedings court go to the Family Division of the High Court and from the county and High Courts to the Court of Appeal Civil Division. From there they may, with leave, go to the House of Lords and, if they involve a claim against UK law, which has not been resolved in the domestic courts under the Human Rights Act 1998 (see Chapter 2), to the European Court of Human Rights in Strasbourg.

Criminal Courts

All criminal cases concerning adults (aged 18 years and over) start in the magistrates’ court and most are dealt with there. Most criminal proceedings against young offenders (aged 10–17), except the most serious, are dealt with in the magistrates’ youth courts (see Part IV). The criminal justice system was reviewed by Lord Justice Auld in 2000. His report with wide-ranging recommendations was published in 2001. In July 2002, the Government published a white paper Justice for All setting out proposals for wide-ranging reforms (Home Department, 2002).

Except in inner London and other areas of dense population, where paid, legally qualified, District Judges (Magistrates’ Courts) sit alone, judicial decisions in magistrates’ courts are made by benches of three unpaid lay justices. There are some 32,000 justices of the peace, appointed, until they reach the retiring age of 70, by the Lord Chancellor, acting on recommendations from local Advisory Committees. In the past the whole process of the selection of justices of the peace was somewhat secretive; over recent years it has been opened up, and now advertisements encourage both the recommendation of people to serve and personal applications. The names of members of the Advisory Committee are published, and selection processes are in most areas designed to encourage the appointment of people who reflect the composition of their communities, although there are serious doubts as to the extent to which this is achieved (Darbyshire, 1997; Sanders and Young, 2000: 531–7). Justices of the peace or magistrates – the term is interchangeable – have to undergo basic training before they adjudicate and are required to undertake appraisal and refresher training on a regular basis. All lay magistrates sit in the adult court and are eligible for election to serve additionally on the family proceedings and youth court panels. They are advised on law and procedure by a legally qualified clerk, although the magistrates bear responsibility for all the decisions they make, whether they have acted on their clerk’s advice or have ignored it.

More than 90 per cent of all criminal cases begin and end in the magistrates’ court. In more serious cases, requiring more severe sentences than the magistrates have power to impose, or where the defendant chooses trial at the Crown Court, accused persons are required to enter a plea of guilty or not guilty in the magistrates’ court. If they plead guilty they will be committed to the Crown Court for sentence. Those who plead not guilty are committed for trial in the Crown Court. Cases committed to the Crown Court will generally be heard in the second tier by a circuit judge or a recorder, possibly sitting with two lay justices and, if the defendant is pleading not guilty, a jury of 12 laymen and lay women whose role is to determine guilt or innocence. Murder and some other very serious or complex cases will be heard in the top tier of the Crown Court by a High Court judge, with a jury to decide guilt or innocence if the offence is denied.

Appeals against findings of guilt or sentences imposed by the magistrates are heard in the Crown Court, and on points of law by the Divisional Court of the High Court. When a case is committed by magistrates for trial in the Crown Court, appeals against sentence or on a point of law – but not generally against the jury’s finding of guilt unless this can be seen to be perverse in view of the way the judge summed up the evidence – are heard, with leave, in the Criminal Division of the Court of Appeal. On a point of law only, and with leave of the court, there may be a further appeal to the Judicial Committee of the House of Lords. From there, if a point of Community law is involved, there is a possibility of appeal to the European Court or, if there is a challenge under the European Convention on Human Rights which has not been resolved in the domestic court, to the European Court of Human Rights in Strasbourg.

Access to Legal Advice and Representation

Unusually, when compared to other jurisdictions, the legal profession is divided into two branches: solicitors who currently have a monopoly on direct access to clients, and barristers who have greater rights of advocacy in the higher courts and are instructed by solicitors on behalf of their clients. Although each branch of the legal profession still has a separate identity, there is less division in regard to the work that they undertake than there was in the past. Although currently the majority of solicitors work outside the courts and most barristers practise as advocates in the courts, it appears likely that the two professions will gradually merge into one.

In order to help the public, most of whom will have occasion to seek professional legal advice only rarely, in the choice of a solicitor suitable to their needs the Law Society publishes lists of firms and legal advice centres, indicating their areas of expertise and whether they are franchised to undertake work funded by the ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• Preface
• List of Abbreviations
• Part I The Legal Context of Social Work Practice
• Part II Children and Families
• Part III Vulnerable Adults
• Part IV Youth Justice
• Part V Legal Issues for Clients
• Part VI Scotland
• Table of Cases
• Table of Statutes and Statutory Instruments
• Glossary of Legal Terms
• Bibliography
• Name Index
• Subject Index