LAW FOR SOCIAL WORKERS CP Cavendish Publishing Limited London • Sydney LAW FOR SOCIAL WORKERS Dr Stephen Hardy, LLB, PhD Lecturer in Law, University of Salford Martin Hannibal, BA, LLM Barrister-at-Law and Senior Lecturer in Law, Staffordshire University CP Cavendish Publishing Limited London • Sydney First published in Great Britain 1997 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 E-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com © Hardy, S, Hannibal, M, 1997 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. Hannibal, Martin Law for social workers 1. Social service – Law and legislation – Great Britain 2. Public welfare – Law and legislation – Great Britain I. Title II. Hardy, Stephen 344.4’1’031’3 ISBN 1 85941 359 5 Printed and bound in Great Britain We dedicate this book to our parents Miriam and Tom (Hardy) and Geoffrey and Joyce (Hannibal). Preface We have no doubt that this book will be used in different ways and at different levels depending on the reader. In fact, that was the whole purpose behind writing this text in the manner set out below. However, whilst the contents list will provide some indication about the general structure and vast subject areas herein, let us outline the following, which we hope will assist your usage of this book: • Each chapter seeks to identify a major area of social work practice. • It is divided into six parts, in order to group relevant areas of practice together for the convenience of the reader and practitioner alike. • Within each chapter the reader will find the relevant law and practice in the area being considered. • The philosophy behind the book seeks to simplify the law and provide a prac- tical approach as to how the law operates in the context of social work law and practice. • The appropriate legal procedures and skills are highlighted and explained at various points in the book, in order for readers to familiarise themselves with the law in action in the pertinent theme. • At the end of each chapter we include practice points and further reading to assist the reader should they wish to pursue the issues discussed further. • This text is written largely for those students seeking to obtain their profes- sional qualification in social work, namely DipSW course students, as well as practising social workers, post-graduate students, lawyers and those with an interest in social policy and issues and social welfare, generally. Overall it is hoped that this text will not only serve as a useful course companion for those undertaking DipSW and the like courses, but will also become a vital resource post-qualification or at the very least during their placement. We wish our readers every success in their studies and practice. vii Acknowledgments According to the Central Council for the Education and Training of Social Workers (CCETSW), there are over some 100,000 people employed in the UK as social workers. This book is about the legal knowledge which any competent social worker ought to have, or at least be aware of. Due to both the breadth of the topic and the complex interface between legal and social work practice, many social work and legal practitioners have given advice on various topics in this book. It from these experiences and professional insights which we believe the book has benefited from immensely. Though that will be for our readers to decide. In particular, we would like to acknowledge the contributions of Micheal Barden, Rhiannon Billingley, Jeff Edwards, Dianne Gibbons, Doug Hearn, Ian Jones, John McCarthy, Peter Robinson and Ian Whitehurst, as well as our other colleagues and students at Salford and Staffordshire respectively and the multitudinous number of social workers and training officers from Social Services Departments across the UK who gave advice on various aspects of this book, or even encouraged us to write it. We remain indebted to the assistance and patience of our publisher, in particular Jo Reddy and Cathy West. As ever, the support of our families, Louise and Merryn, Matt, Nick and Charlie has allowed both this project to exist and be completed. The law is as stated at 1 August 1997. The same law applies to both Scotland and Northern Ireland, unless otherwise stated. Stephen Hardy, Martin Hannibal Salford 1 August 1997 ix Contents Dedication v Preface vii Acknowledgments ix Table of Cases xv Table of Statutes xix Table of Statutory Instruments xxv Table of European Legislation xxvii PART I SOCIAL WORKERS AND THE LEGAL SYSTEM 1 1 A social worker’s legal competence 3 2 Social workers and the courts 13 PART II SOCIAL WORK LAW: CHILDREN AND FAMILIES IN PRACTICE 31 3 Children and the law 33 4 Local authority support for children and their families 49 5 The protection of children at risk under the Children Act 1989 65 6 Guardian ad litems 93 7 The Children Act and ‘private’ family law orders 101 8 Family breakdown 109 9 Local authorities and community care 121 xi LAW FOR SOCIAL WORKERS PART III CRIMINAL PROCEDURE AND JUSTICE IN SOCIAL WORK 141 10 Criminal justice 143 11 Social workers and the police 155 12 Social workers at the police station 165 13 The criminal process 189 14 Sentencing adult offenders 205 15 Juvenile justice 213 16 Criminal justice appeals and police accountability 219 PART IV SOCIAL WORKERS IN THE COURTS 225 17 Court attendance and giving evidence 227 18 The social worker as a professional witness 235 19 Children giving evidence 239 20 Public interest immunity, confidentiality and privilege 247 21 Evidence and the Children Act 1989 255 22 Prisoners’ rights 267 PART V SOCIAL WELFARE AND SOCIAL WORK 277 23 Discrimination law and equal opportunities 279 24 Immigration law 303 25 Housing, money advice and social security 317 xii CONTENTS PART VI THE MODERN SOCIAL WORKER: LEGAL ADVICE AND ACTION 345 26 Advice work and legal aid 347 27 The modern social worker 353 Appendix 1– specimen forms 357 Appendix 2 – useful addresses 373 Index 381 xiii Table of Cases A and Others (Minors) (Child Abuse Guidelines), Re [1992] 1 Fam LR 214 . 260 A, Re [1995] 2 Fam LR 153 . 104 B (Change of Surname), Re [1996] 1 Fam LR 791 . 105 Barret v Enfield London Borough Council (1997) The Times, 22 April. 122 Birmingham City Council v H (A Minor) [1994] 2 AC 212 . 37 C (Expert Evidence: Disclosure Practice), Re [1994] 1 WLR 290 . 264 C v Director of Public Prosecution [1995] All ER 43 . 149 Campbell v UK [1992] 15 EHRR 137 . 274 Crane v Lancashire County Council (1997) The Times, 16 May. 135 Cresswell v Hodgson [1951] 1 All ER 710. 324 Croydon London Borough Council v A (No 1) [1992] Fam LR 169 . 101 D (Infants), Re [1970] 1 All ER 1088. 248 D (PSO), Re [1996] 2 Fam LR 273 . 105 D (Residence: Imposition of Conditions), Re [1996] 2 Fam LR 281. 103 D v NSPCC [1978] AC 236 . 252 Derbyshire County Council (1993) The Times, 19 February . 28 Devon County Council v Glancy [1985] 1 Fam LR 20 . 94 Dietmann v London Borough of Brent [1988] IRLR 299, CA. 279 Director of Public Prosecution v Morris (1990) (unreported) . 168 Essex County Council v R [1993] 2 Fam LR 826 . 261 F and M (Child Orders: Restricting Applications), Re [1995] 2 Fam LR 416 . 103 F F and R [1995] 1 Fam LR 524 . 104 F v Leeds City Council [1994] 2 Fam LR 60 . 37 F v Suffolk County Council; [1981] 2 Fam LR 208. 258 F v Suffolk County [1981] Fam LR 208 . 232 G (Minors)(Expert Witnesses), Re [1994] 2 Fam LR 291 . 264 xv LAW FOR SOCIAL WORKERS Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 . .35, 39, 58 H, Re; Re K [1989] 2 Fam LR . 257, 260 H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] 2 WLR 8; [1996] 1 All ER . .88, 257 H (Shared Residence: Parental Responsibility), Re [1995] 2 Fam LR 882, CA . .37, 102 H v H and C [1969] 1 All ER 240 . 258 Hokkanen v Finland [1996] 1 Fam LR 289 . 104 IPH v Chief Constable of South Wales [1987] Crim LR 42. 149 J v C [1969] 1 All ER 788 . 37 K & A (Local Authority: Child Maintenance), Re [1995] 1 Fam LR 688. 52 L (A Minor) (Police Investigation: Privilege), Re [1996] 2 All ER 78 . 261 Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 . 272 Liverpool City Council v Irwin [1977] AC 239 . 322 M (A Minor) (Care Order: Threshold Conditions), Re [1994] 3 All ER 298 . .88 M (A Minor) (Disclosure of Material), Re [1990] 2 Fam LR 36 . 248 M (Contact: Welfare Test), Re [1995] 1 Fam LR 274 . 104 M and Another (Minors), Re [1990] 1 All ER 205 . 253 Manchester City Council v B [1996] 1 Fam LR 324 . 88 Newham London Borough Council v Attorney General [1993] 1 Fam LR 281 . 258 Nottingham County Council v P [1993] 3 WLR 637 . 87 Nottinghamshire County Council v J (1993) (unreported) . 57 O (A Minor) (Care Order: Education: Procedure), Re [1992] 1 WLR 912 .