A and B (Children) [2016] EWFC B115 was decided in March 2016 but published in February 2017, alongside Baker J’s July 2016 decision (A and B (Findings against social worker) (Rev 1) [2016]) not to permit the social worker to appeal the original findings of misconduct against her.

The decisions have generated interest on twitter, at the Transparency Project, and in the legal and social work press generally. (The Chair of The Transparency Project acted for the mother in this case, and hasn’t taken part in discussions specifically about the case or the reporting of it.)

This blog clarifies some points arising from a Community Care report of the case of A and B. It then goes on to respond to a blog at Social Work Tutor on the wider issue of whether decisions of the social work regulator, naming social workers, should be published (in light of new research about the impact on them).

(For recent twitter discussions about lack of transparency in decision making by the social worker regulator (HCPC) and the impact on public confidence, as generated by both A and B and the earlier case of A, B, C, D & E (Final Hearing), [2015] EWFC B186 (‘the Hampshire case’), see Public Confidence in the Social Work Regulator: Where Next? at the Transparency Project. In ‘the Hampshire case’ the social work regulator decided there was no formal case to answer despite family court findings of serious misconduct. The reasons behind this HCPC reason have not been published nor otherwise made known to the public. The Professional Standards Agency who oversee the social work regulator say they have no power to intervene and no intention of exercising their discretion. In the case of A and B (as in ‘the Hampshire case’), the social worker appears to continue to practise as a registered social worker, with no sign of published reasons or a pending fitness to practise hearing at the time of writing).

 

The Community Care Report 

Community Care reported on 1st March 2017 with Social worker loses appeal against judge’s decision to name her: A social worker had been criticised for changing reports and then denying it in care proceedings.

The Heading

The social worker here was principally trying to appeal District Judge Exton’s 2016 findings about her actions (rather than the case management decision to name her in a published judgment). Albeit that her legal team sought appeal of that too, if upheld on the matter of the findings being unjust, seeking to draw these threads together in a submission that the judge’s linear findings and rejection of Ms Fraser’s case were wrong and/or an injustice on Ms Fraser with the result that the order authorising publication of the judgment and naming Ms Fraser was unjust (para 34).

District Judge Exton’s detailed findings are not set out in Baker J’s judgment but in the earlier judgment it links to, though Baker J summarises, including as follows:

The central allegations made against Ms Fraser are that, following this direction, she (a) obtained authorisation to access the logs relating to certain observations of the mother with the children contrary to the policies of the local authority (b) thereafter made alterations which, in a number of respects, added critical comments about the mother and (c) subsequently, when challenged about this, lied about editing the logs, stating that she had not done so, knowing that to be untrue.

Baker J also records District Judge Exton’s case management decision on publication and naming the social worker at paragraph 25:

Having made those findings, the judge made an order for publication of a version of the judgment, anonymised, save that the local authority and Ms Fraser should be identified but stayed publication until the conclusion of any appeal process. She further directed that unredacted copies of the judgment should be placed on the local authority’s files for the children and disclosed to other named agencies involved with the family and to the individual carrying out a local authority independent investigation and also to the HCPC, the professional body responsible for social workers.

• Secondly the judgment is a decision refusing permission to appeal, although the decision was made at a rolled up hearing where both parties were present and made submissions.

 

The correct legal test

Although Community Care clarify this later in the article, there does seem to be some confusion in their summary of the legal framework. We think the second half of this sentence should say ‘permission to appeal must be allowed…’ rather than ‘Appeals must be allowed…’

Under rules governing family proceedings, the courts will allow appeals when a decision by a lower court is found to be wrong or unjust. Appeals must be allowed when an applicant “demonstrates a real prospect of success;

The statutory test for permission to appeal prescribed by rule 30.3 (7) of the Family Procedure Rules being:

the court considers that the appeal would have a real prospect of success; or there is some other compelling reason why the appeal should be heard.

With the appeal court required to allow an appeal:

where the decision of the lower court was wrong; or unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (FPR rule 30.12 (3)).

 

The medical evidence

 The article explains that:

the social worker’s appeal relied on evidence that she was under very considerable stress at the time and was suffering from significant health problems; and

Baker found Exton had been “fully aware” of the argument that stress may have affected her evidence at the time; and

The judge found no reason to think that Ms Fraser’s powers of recall were affected in any way, particularly when the events she was being asked to recall occurred only eleven days previously.

What it doesn’t add is that Baker J  also said:

She [DJ Exton] was fully aware of the argument that Ms Fraser’s health or stress or destress may have affected her evidence and her recall. District Judge Exton drew on her experience in assessing witnesses in rejecting this suggestion. To my mind, this is a paradigm example of how it is the trial judge who is best able to carry out the evaluation of evidence in reaching findings.

DJ Exton having made clear that:

The letters from her GP dated 7 and 8 January 2016 state that, although there has been some improvement in her condition, she continues to suffer from significant symptoms of depression, remains certified as unfit to work and is likely to remain so for several months. Her ability to give evidence may be impaired (in relation to future evidence); and 

When she gave evidence in July 2015, there was absolutely no sign, or any evidence, that she was poorly at that stage. She adamantly denied altering the Gardiner Haskins note when, as I have said, she did it following the hearing of 2 July and how could she possibly forget that, in the context of that hearing when the local authority opposed the order I made. And why, after the order I made for disclosure, did Ms Fraser think it was right to alter those case notes?

So, I have considered the medical evidence (submitted after her testimony in July) but it does not alter my findings. (Paras 38-40)

 

The Social Work Tutor blog 

Dated 2^nd March 2017 the piece asks : IS IT FAIR TO PUBLISH HCPC FINDINGS AND SHAME SOCIAL WORKERS FOREVER?

It highlights new research:

the publication of a new piece of research in the British Journal of Social Work that looks at the experiences of social workers referred to the Health and Care Professions Council (HCPC)

Noting both that:

It won’t come as a surprise to learn that lengthy investigations, the shame of public hearings and questions about fitness to practice have a significant impact on the emotional wellbeing of those subject to a probing by the HCPC; AND

More than half of those interviewed also considered taking their own life or attempted to do so

Before concluding that:

I might be alone in this view, but I really don’t agree that the findings of HCPC hearings should be made public. The people in question have often lost their jobs and had their lives ruined because of their actions.

We don’t suggest for a moment that the wellbeing of social workers doesn’t matter. It plainly does. And we agree that fairness of process to social workers is very important. But we don’t agree that the balance between professional accountability for decisions of such import and fairness to social workers is struck by simply not publishing regulatory decisions naming them as is suggested.

The new research pertains to one important but nevertheless narrow aspect of the troubled topic of social work regulation – the impact on social workers; and is based on interviews with a small sample of eight social workers with direct experience of HCPC regulation.

We also repeat the response of Lucy Reed in the comments section of the Social Work Tutor blog here:

All regulated professionals who commit serious misconduct and are sanctioned or struck off can expect the facts of their misconduct to be made public. Regulation is for the benefit of the public. It is undoubtedly very hard on the individual who is under scrutiny or criticised, whether they are a lawyer, a doctor, a psychologist or a social worker (it would certainly be my worst nightmare as a lawyer) and from the study in question it doesn’t sound as if social workers are well supported through the process (for lawyers their indemnity insurance covers legal representation and I’m surprised there is not something similar for social workers) but I just don’t see how one can justify saying that these things should remain unknown to the public, and not just because naming is a protection against struck off unfit individuals holding out as professionals and exposing the public to risk. Incidentally, the “half of those interviewed” amounts to four social workers. I would hope that this small, self selecting sample is atypical, but it certainly suggests social work management is rather dysfunctional if it is.

Incidentally, most regulators only leave things online for a period of years – without checking I think its probably five for the bar, and is probably similar for other regulators. So it isn’t an endless halflife. Although coverage in industry and mainstream press won’t necessarily go away after five years.

The decision not to proceed even to a formal decision with publication in ‘the Hampshire case’ (possibly also in the A and B case) sits in notable contrast to the HCPC decision Community Care reported recently about a poorly supervised social worker who fell badly behind with recording and referred herself to the HCPC. This seems, frankly, punitive by comparison, and lacking in real engagement with wider contributing factors at any systemic council or profession-wide level.

The future of social work regulation is uncertain. The Children and Social Work Bill currently making its way through Parliament provides for the current regulator (the HCPC) to be replaced by ‘Social Work England’. The level of independence from government of that new body and how if at all it will differ from the current regulator is as yet unclear.  It is to be hoped that some of these serious issues (lack of public confidence in its effectiveness in protecting the public and holding professionals to account; failures to ensure key decisions are transparent; fairness to social workers; and the need for a system capable of pro-actively promoting change and learning, rather than one which only individualises ‘failure’) will be addressed.