Posted on 18/12/2015 by Jeff Walters
Since a group of family lawyers found councils’ guidance on recording child protection meetings was patchy and unclear, the sector has rushed to offer solutions to a problem The Transparency Project said was exacerbating misunderstandings between parents and social workers.
But while the reaction to the project’s investigation, which flagged up a problematic lack of consistent guidance, has been broadly supportive, some dissenting voices remain.
Child protection consultant Joanna Nicolas says recording meetings would distract focus from the child and leave professionals too scared to speak openly and honestly about concerns. Meanwhile, members of The Transparency Project, a website aimed at promoting transparency in the family courts, believe this fear comes partly from an incomplete understanding of the law.
So what does the law say, and should social workers be worried about parents wanting to record child protection meetings?
Now everyone has a mobile phone, the technology to covertly record is far more readily available and social media means the ability to publish or share it has increased exponentially. This, along with the far greater exposure of parents to alternative sources of advice on the internet, has created a “perfect storm”, according to local authority lawyer and author of blog Suesspicious Minds, Andrew Pack.
The recording itself should not be a problem, and may in fact improve parents’ engagement and help to foster a more constructive relationship, The Transparency Project lawyers say. But problems arise when these recordings are distributed. This then opens up concerns recordings may be edited or taken out of context and only show part of the picture. If shared publicly, identification of the child becomes a concern and if parents are making recordings of children during contact sessions, rather than professionals in meetings, there is a risk this could become emotionally abusive.
Freedom of expression
According to a precedent-setting court case, Re J, parents have the right to tell their story as long as they don’t identify the child. But there is a clear statutory law in place that prevents anyone from publishing information identifying a child as being the subject of care proceedings. If a parent were to publish recordings or even an account of their case in a way that identifies their child, local authorities could get an injunction to stop that happening.
However, understandably, many councils have erred on the side of caution and tried to prevent parents from making recordings in the first place to avoid the risk of this happening, rather than waiting until information was shared that could potentially harm the child.
Andrew Pack says: “Once that information is out there, it’s out there. You can go and get an injunction but we all know what’s on the internet never really disappears. If some has tweeted it, all those retweets still exist. If someone has posted it on Facebook, the information will continue to exist on the feeds of anyone who shares it.”
In guidance given by councils to The Transparency Project under the Freedom of Information Act, several referred to data protection and human rights as reasons not to permit parents to record meetings.
The Data Protection Act 1998 does not prevent parents recording meetings. It was designed to apply to organisations processing data, not individuals, particularly if the data is collected for personal use. The Transparency Project has now published its own (non-binding)guidance which states that what a professional says at a social work meeting is not personal data for the purposes of the Act, although the personal data of others may be contained in what is said at a meeting. It is the social worker’s own record of any meetings which falls under the provisions of the Act. The same applies to the Regulation of Investigatory Powers Act 2000 (RIPA).
Similarly, family members do not owe a duty to one another or to the social worker under theHuman Rights Act. When it comes to matters of human rights it is the social worker, as an agent of the state, who owes a duty to the family and must act with a respect for the rights of privacy, family life and expression. These are all conditional rights and can be interfered with where they compete with other rights if it is necessary and proportionate to do so. A social worker is already by definition interfering with individuals’ article 8 right to a family life and so must ensure they are weighing up all the competing rights.
The rights of the social worker to privacy do not apply since a meeting attended by someone in their role as a social worker is unlikely to contain information about the social worker’s private life.
The Transparency Project says in its guidance: “Generally human rights are rights owed by the state to private individuals.
“As long as parents who wish to record a meeting are prepared to agree not to distribute their recordings and will only use it for their own records or private court proceedings, we don’t think social services could be criticised for a breach of privacy in allowing this.
“Again, it is not the making of the recording that is problematic but the distribution of it.”
The question then arises, how far should a local authority reasonably go to safeguard against the possibility parents might distribute recordings to the detriment of their child? And how can social workers balance risks to a child’s right to privacy against the parent’s right to expression?
There are three main pieces of national guidance which refer to conducting child protection meetings. Working Together to Safeguard Children does not say anything about the making of recordings of child protection or looked after children meetings, or give guidance as to whether this should or shouldn’t happen.
The IRO handbook for independent reviewing officers on looked after children reviews also does not say anything about parents recording meetings. It makes it clear the IRO is responsible for ensuring an accurate record of meetings is made, but doesn’t include any way of addressing parents’ concerns about inaccuracies.
Children and Family Court Advisory and Support Service (Cafcass) guidance says social workers should have nothing to fear from covert recording, but if they find out they have been covertly recorded they should tell the court.
The Transparency Project guidance says the best way forward is for social workers to initiate a non-confrontational conversation with the parent about why they felt they need to record covertly.
“It might be helpful to have a discussion with them about why they want to record and what they will do with the recording. You may be able to find an agreed compromise once you understand better,” the guidance says.
Ultimately, it is better to have guidance and discretion to deal with the matter on a case by case basis, Pack says. But social workers need some guidance to know where they stand with the law.
Community Care readers commenting on the issue suggested an independent recording, sealed against the possibility of tampering, and available for all interested parties to listen to.
Pack agrees this is the best solution. But, he adds, whether there is the political will or money to put in the infrastructure to do it is a different story.