SOCIAL WORK LAW Social Work Law Alison Brammer School of Law, Keele University Fourth Edition Pearson Education Limited Edinburgh Gate Harlow CM20 2JE United Kingdom Tel: +44 (0)1279 623623 Web: www.pearson.com/uk First published 2003 (print) Second edition 2007 (print) Third edition 2010 (print), 2011 (electronic) Fourth edition published 2015 (print and electronic) © Pearson Education Limited 2003, 2010 (print) © Pearson Education Limited 2011, 2015 (print and electronic) The right of Alison Brammer to be identified as author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988 The print publication is protected by copyright Prior to any prohibited reproduction, storage in a retrieval system, distribution or transmission in any form or by any means, electronic, mechanical, recording or otherwise, permission should be obtained from the publisher or, where applicable, a licence permitting restricted copying in the United Kingdom should be obtained from the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS The ePublication is protected by copyright and must not be copied, reproduced, transferred, distributed, leased, licensed or publicly performed or used in any way except as specifically permitted in writing by the publishers, as allowed under the terms and conditions under which it was purchased, or as strictly permitted by applicable copyright law Any unauthorised distribution or use of this text may be a direct infringement of the author’s and the publishers’ rights and those responsible may be liable in law accordingly All trademarks used herein are the property of their respective owners The use of any trademark in this text does not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such trademarks imply any affiliation with or endorsement of this book by such owners Contains public sector information licensed under the Open Government Licence (OGL) v3.0 www.nationalarchives.gov.uk/doc/open-government-licence Contains Parliamentary information licensed under the Open Parliament Licence (OPL) v3.0 http://www.parliament.uk/site-information/copyright/open-parliament-licence/ Pearson Education is not responsible for the content of third-party internet sites ISBN: 978-1-4082-9405-5 (print) 978-1-4082-9406-2 (PDF) 978-1-292-00347-4 (eText) British Library Cataloguing-in-Publication Data A catalogue record for the print edition is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for the print edition is available from the Library of Congress 10 9 8 7 6 5 4 3 2 19 18 17 16 15 Cover: © Tungphoto/Shutterstock Print edition typeset in 9.5/12 ITC Giovanni Book by 73 Print edition printed and bound in Slovakia by Neografia NOTE THAT ANY PAGE CROSS REFERENCES REFER TO THE PRINT EDITION Brief contents Foreword Preface Author’s acknowledgements Publisher’s acknowledgements Table of cases Table of legislation List of abbreviations Part 1 Legal context of social work practice Introduction to law and social work practice Sources of law Courts and law officers Social workers’ role in law The Human Rights Act 1998 and social work practice Discrimination Part 2 Children and families 10 11 12 13 Supporting children and families Children and family breakdown Child protection Looked after children Adoption Education Youth justice Part 3 Vulnerable adults 14 15 16 17 18 19 20 Glossary Index Adult social care Mental health Mental capacity Adult safeguarding Criminal justice Welfare and homelessness Asylum xxi xxiii xxviii xxix xxxi xlvii lxi 29 51 79 113 143 163 165 198 229 283 306 341 364 395 397 426 463 484 515 545 563 581 585 This page intentionally left blank Contents Foreword Preface Author’s acknowledgements Publisher’s acknowledgements Table of cases Table of legislation List of abbreviations xxi xxiii xxviii xxix xxxi xlvii lxi Part 1 Legal context of social work practice Introduction to law and social work practice Learning objectives Introduction Relationship between law and practice The qualifying framework Standards of Proficiency Professional Capabilities Framework QAA benchmarks Regulation of social work Legal framework of social work Summary of key legislation impacting on social work practice and defining service user groups Limitations of law Key legal concepts Confidentiality Accountability Duties and powers Rights Values Partnership Choice Empowerment Anti-discriminatory, anti-oppressive practice Formal guidance on values and principles A framework for decision-making Chapter summary Websites Further reading Notes 4 6 10 11 14 14 14 17 18 19 19 20 21 22 22 24 24 25 26 26 27 Contents Sources of law Learning objectives Talking Point Introduction Language of law Legislation Process of new legislation Delegated legislation Regulations Guidance documents Directions Codes of practice The common law: case law and precedent Precedent Accessing and understanding case law Judge-made law Practice Directions Judicial review Law reform The Law Commission Chapter summary Exercises Websites Further reading Notes Courts and law officers Learning objectives Talking Point Introduction Courts and the English legal system Distinguishing between civil and criminal law Courts exercising civil jurisdiction Outline of a civil case Courts exercising criminal jurisdiction Brief outline of the criminal process The court structure Magistrates’ court County courts Crown Court The High Court Court of Protection Family Court Court of Appeal The Supreme Court European Court of Justice European Court of Human Rights Coroners’ court Tribunals Public and private hearings Taking the courts into the twenty-first century Social-work involvement in the courts Rules of evidence Law officers Solicitors viii 29 29 30 30 31 33 34 39 39 39 40 41 41 41 43 44 44 45 45 46 47 47 49 49 50 51 51 52 52 52 53 55 55 57 57 58 59 59 60 60 62 62 62 63 63 64 64 64 65 66 66 67 67 67 contents Barristers Crown Prosecution Service Criminal Defence Service Magistrates/Justices of the Peace ( JPs) Justices’ clerk Judges Attorney-General Director of Public Prosecutions Official Solicitor Children’s guardian Probation service Lord Chancellor and the Ministry of Justice Access to law and representation issues Chapter summary Exercises Websites Further reading Notes Social workers’ role in law Learning objectives Talking Point Introduction Social work roles in the legal system Applicant McKenzie friend Witness Report writer Children’s guardian General principles of report writing Appropriate adult Advocacy Working in court Courtcraft skills Giving evidence Rules of evidence Admissibility Hearsay Opinion Corroboration Competence Evidence of children and vulnerable adults Relationship with lawyers Challenging social work practice Local authority’s complaints procedure Local government ombudsman Default power of the Secretary of State Judicial review Monitoring officer Action for damages Human Rights Act 1998 Employer’s duty of care to staff Record keeping Data Protection Act 1998 Freedom of Information Act 2000 68 68 69 69 70 70 71 71 71 71 71 71 72 74 75 76 77 77 79 79 80 80 80 80 81 81 82 82 83 84 85 85 85 87 90 90 90 91 91 92 92 92 93 94 95 97 97 98 98 101 101 103 104 106 ix www.downloadslide.net Index foster care (Continued) long-term 257, 285, 290–1 negligence 99–100, 292 number of children 293 parental responsibility 202–3, 291, 293 payment/allowances 292 personal views 291–2 private arrangements 287, 293 professionalism 8, 291 references 291–2 refuges 245–6 registration of private fostering 293 relatives and friends 286, 290–1, 292 religious discrimination 291–2 reports 291, 293 residence orders 97, 177, 213, 291 reviews 292 security, lack of 291 short-term 284, 290 specialist carers 291, 292 staying put arrangements 292 support for carers 292 support foster care (respite care) 284, 290 training 291, 292 vicarious liability 292 wardship 270 Francis Inquiry 398 fraud 489, 519 freedom of expression 131–2, 218, 405, 477, 503 freedom of information 106–7 gagging clauses 103, 132, 503 gang injunctions 380 gaps in law 14 gender and gender discrimination age 156 aggravated offences based on transgender identity 538 asylum seekers 566, 567 child care commitments 156 enforcement 149 fathers in family disputes 200 indirect discrimination 155 legal profession 67–70 part-time workers 156 persecution 566, 567 public sector equality duty 158 school exclusions 354 600 gender reassignment see transgender people General Social Care Council (GSCC) 9, 497 Gillick competence 179, 200, 455–6 grandparents 175, 203, 206–7, 213, 334 green papers 33, 38, 582 guardianship see also children‘s guardian after-care 453 asylum seekers 577 guardian‘s allowance 558 Mental Health Act 1983 400, 413, 429, 435–42, 445–7, 455–6 after-care 453 asylum seekers 577 duration 447 nearest relative (NR) 435, 437–9, 446–7 termination 447 nearest relative (NR) 435, 437–9, 446–7 Public Guardian, Office of (OPG) 473, 478–9, 498 special guardianship orders (SGOs) 36, 180, 308, 310, 318, 333–6 termination 447 guidance 18, 39–40 see also under individual main headings formal policy guidance 24, 40 general practice guidance 40 guilty pleas 529, 531 habeas corpus 71, 582 Halliday Report 517 harassment 149, 151, 156, 507–8 see also harassment, alarm or distress harassment, alarm or distress 365, 370, 373, 377, 379 harm 36, 149, 151, 156, 174, 314, 315–17 see also significant harm health see medical treatment/health issues Health and Care Professions Council (HCPC) 9–10, 17, 103, 434, 497 Health and Social Care Information Centre (HSCIC) 490 hearsay 90–1, 275 Henry, Tyra, inquiry into death of 148, 272 hierarchy of courts 41–2, 52–3 High Court 55, 62, 65 see also High Court, inherent jurisdiction of High Court, inherent jurisdiction of 61, 232, 269–70, 438–9, 456, 504–5 home schooling 345–6 homelessness 545–55 advice and assistance 547, 550, 552–3 allocations policy 551 assessments of needs 553–4 asylum seekers 547 bed and breakfast 550–1, 554 children and young persons 548, 549, 550–2, 554 Code of Guidance 547, 550, 555 complaints 554 disabilities, persons with 550 domestic violence 217, 546, 547, 548, 550, 552 duties 547–54 eligibility 547–8, 553 emergency accommodation 547, 551, 554 ethnic minorities 547 fair hearings, right to 554 home, homelessness at 548 intentional homelessness 546, 547–8, 552–4 inter-agency working/cooperation 551, 554–5 local connection 552 looked after children 550–1 overcrowding 548, 551 priority need 546, 547, 549–51, 553–4 racial violence 550 reasonableness of continued occupation 548, 551–2 refuges 546, 548 reviews 547, 554 specific duties 547–52 strategies for prevention 547, 555 suitable accommodation 547, 549–50, 553–4 temporary accommodation 548, 549, 550–1, 553 vulnerable persons 549–51 homosexuality see sexual orientation Hoskin, Steven, murder of 484, 509 www.downloadslide.net Index hospital orders 536–7 Houghton Committee 309 House of Commons 33, 34–5 House of Lords 33, 34–5, 56, 63 housing/accommodation see also homelessness; residential care/accommodation adaptations 129–31 allocation 206 anti-social behaviour 379, 518, 555–6 assessments of needs 129–31 asylum seekers 566, 568–70, 572, 575–6 disabilities, children with 191 eviction, protection from 555–6 exclusion from home, power of 246–7 home, definition of 555 housing benefit 556, 558–9 leaving care 300 locality preferences 568–9 looked after children 190–1, 285–9, 300 possession proceedings and orders 144, 556 private and family right, right to respect for 114–15, 129–31, 555–6 same sex couples and succession to tenancies 134 Human Rights Act 1998 113–42 see also individual rights (eg fair hearings, right to) absolute rights 122, 126 abuse 115, 231, 236, 262, 486, 490, 500, 516–17, 540–1 accountability 17 adult social care 406, 416–18 anti-discriminatory and antioppressive practices 23, 147 asylum seekers 568–71 best practice 115, 119–20, 121 care orders 253 care plans 257 Care Quality Commission (CQC) 421 case law of ECtHR, consideration of 117–18 case studies 114–15 children, rights of 138 compatibility of legislation 118, 120, 135 Convention rights 122–35 culture of rights 19, 115 damages 135–6 declarations of incompatibility 118, 135 detention of people with a mental disorder 448 discrimination 134–6, 147 Equality and Human Rights Commission (EHRC) 136 European Convention on Human Rights 64, 116–19, 122 First Protocol 134 horizontal effect 120 incorporation of rights 117–22 judiciary, training of 35 living instrument principle 118 margin of appreciation 121 negligence 99–100 prisoners 540–1 proportionality 121, 122, 135 public authorities 17, 118–21, 437, 555 qualified rights 122 reactive, not proactive, law as 14 remedies 116, 135–6 statements of compatibility 118 supervision orders 253 vertical effect 120 victim requirement 45, 94, 101, 135 illegality 45 immunity 15, 99–100, 231, 296 imprisonment see custodial sentences in camera proceedings 65–6, 127, 582 in loco parentis 202–3, 291, 582 incapacity see mental capacity/ Mental Capacity Act 2005 income support 559, 560 Independent Mental Capacity Advocates (IMCAs) 41, 85, 479–80, 505 Independent Mental Health Advocates (IMHAs) 85, 442–3, 505 independent personal budgets 411 Independent Reviewing Officers (IROs) 256–7, 289, 357 Independent Safeguarding Authority (ISA) 496 indictable offences 56, 58, 522, 529 individual support orders (ISOs) 379 information and communications technology (ICT) 66 Information Commissioner 106 information, freedom of see freedom of information information sharing 16, 107, 217, 369, 406 inherent jurisdiction see High Court, inherent jurisdiction of inhuman or degrading treatment abuse 100, 262, 500 asylum seekers 125 closure of homes 414 corporal punishment 135 minimum level of severity 124, 130, 450 racial harassment 568, 570–1 restraint by police 135 solitary confinement 124–5 injunctions 582 abuse 20, 501, 503 anti-discriminatory and antioppressive practices 159 anti-social behaviour 365, 366, 376, 379 committal for contempt 467 domestic violence 216, 501 gang injunctions 380 Human Rights Act 1998 135 in camera proceedings 65 judicial review 45 mental capacity 466–7 wardship 270 inquiries/reviews 5, 11, 21, 271–4, 294 see also individual inquiries (eg Climbié, Victoria, inquiry into death of) inquisitorial role 64, 271 inspections abuse 499–500 adoption 311 domiciliary care 421 education 17, 344 foster care 292, 293 mental health 447 residential care/accommodation 294 institutional/residential settings, abuse in 232, 246, 298, 487, 488–90, 493, 499–500 intensive supervision and surveillance programme (ISSP) 378 601 www.downloadslide.net Index inter-agency working/cooperation 181–4 abuse 230–1, 233, 236, 272, 485, 492 adult social care 406 children 169, 181–3, 187–8, 191–2, 272, 342, 456 homelessness 551, 554–5 multi-agency working 8, 24, 86, 185 youth justice 366–7, 369 interest/pressure groups 34, 46, 93, 97, 135, 200, 460 Irish Traveller/Roma Gypsy children, education of 346 irrationality 45 Islamic dress 351 Issues Resolution Hearings (IRHs) 259 jobseekers allowance 559, 560 judicial review accountability 17 Administrative Court 45 adult social care, failure to provide 416 advantages and disadvantages 97–8 assessment of needs 18, 97 asylum seekers 570, 573 care plans 412 complaints 45, 95 declarations 45 exhaustion of alternative remedies 87 fair hearing, right to a 127 grounds 45 homelessness 554 illegality 45 interest groups 97 irrationality 45 judge-made law 44 local government ombudsman 45, 418 mandatory orders (mandamus) 45 monitoring officer, appointment of 98 natural justice 45 need, children in 190 procedural impropriety 45 prohibitory orders (prohibition) 45 public authorities 45, 120, 158 quashing orders (certiorari) 45 602 resource issues 11, 61–2, 97 sources of law 45 sufficient interest 45, 97–8 time limits 97 tribunals 65 ultra vires 45, 62 Wednesbury unreasonableness 62 judiciary appointment 70 circuit judges 59 Court of Appeal 62–3 Designated Family Judge 52 district judges 59, 62, 70 diversity 70, 146 Family Court 52, 62 Human Rights Act 1998, training on 35 Lord Chancellor 70–1 single judges 60 summing up 58 welfare principle, guidelines on 172 juries 58, 60, 64, 522, 529 Justices of the Peace see magistrates/ Justices of the Peace (JPs) juvenile offenders see youth justice key legal concepts 14–19 knowledge base, understanding labelling 32 Laming Reports Baby Peter, death of 11, 273, 275, 508 Climbié, Victoria, death of 9–10, 167, 169, 181, 273, 293 language of the law 31–3, 146, 191 lasting powers of attorney (LPAs) 467, 471, 473, 476–9, 498, 582 law and practice, relationship between 4–10 CCETSW Rules and Requirements College of Social Work advice note on roles and functions Professional Capabilities Framework 6–8 QAA benchmarks 8–9 Rules and Requirements for DipSW Standards of Proficiency Law Commission 30–1, 35, 46–7, 171, 200, 398, 403, 467 law officers 67–71 see also barristers; judiciary; solicitors law reform 30, 31, 45–7 see also Law Commission law reports 43–4 law, role of social worker in see role of social worker in law lawful chastisement 131, 135, 203, 292, 353 leading questions 87–8, 89, 275 learning disabilities, persons with 400–1, 432–4, 442, 485–6 least interventionist approach 318 least restriction principle 427, 429, 439, 471 leaving care 298–301, 367, 550–1 Legal Adviser (Clerk) 62 legal aid 69, 72–4, 520 Community Legal Service 72 Controlled Legal Representation 73 cuts 72–3 exclusions 73–4 Family Help 73 Family Mediation 73 Help at Court 72 Legal Aid Agency (LAA) 72 McKenzie friend 81 Public Defender Service 72 Legal Help 72 Legal Representation 73 Representation Orders (ROs) 69, 520 tribunals 65 legal framework of social work 10–13 legislation, summary of 11–12 local authorities with social service functions 10 Local Authority Social Services Act 1970 (LASSA) 10–11 legal privilege 524 legal profession, diversity of 145–6 legal representation see also solicitors access to law 72–4 arrest, free advice on 522, 527 barristers 63, 68, 70, 92–3 child safety orders (CSOs) 373 children in domestic violence cases 215, 218–19 Citizens‘ Advice Bureaux 62 courtcraft skills 86, 92–3 fair hearing, right to a 262 free legal advice, access to 382, 522, 527 www.downloadslide.net Index legal aid 72–3 litigants in person 72 litigation friend 466–7, 501 McKenzie friend 81, 126 Mental Health Review Tribunal (MHRT) 452–3 relationship with social workers 86, 92–3 Representation Orders (ROs) 69, 520 secure accommodation 298 tribunals 65 Legal Services Ombudsman (LSO) 67 legislation see also legislation as source of law consolidation, codification and revision of statutes 46, 582 duties, powers and rights 18 Human Rights Act 1998, compatibility with 118, 120, 135 interpretation 4–5 language of the law 32–3 legal framework of social work 11–12 male pronoun, use of 23 simplification 32–3 understanding current legislation legislation as source of law 33–40, 46 amendments 36 bills 33–5, 38, 46 commencement 35–6 committee stage 34, 35, 38 consultation process 33, 38 debates 34 delegated legislation 39–41 government policies 33 green papers 33, 38 Hansard 35, 582 House of Commons/Lords 33, 34–5 implementation 35–6, 38 pressure groups 34 Private Member‘s Bill 33–4 process of new legislation 34–8 Queen‘s Speech 33 readings 34, 35, 38 report stage 34 Royal Assent 35, 36, 38 standing committees 34 summary of legislation 11–12 voting 34 white papers 33, 35, 38 Leitch Review 343 lenient sentences 60, 532 liberty and security, right to 125–6 asylum seekers 570–1 deprivation of liberty safeguards (DOLS) 474 mental health 126, 443–5, 452 remand 528–9 restraint by police 135 secure accommodation 297 licence, release on 535 life, right to 123–4, 570 life sentences 535 limitations of law 14 litigants in person 59, 62, 72, 582 litigation friend 466–7, 501 litigation limit 177–8, 582 live links 276, 535–6 local authorities with social service functions 10 Local Authority Social Services Act 1970 (LASSA) 10–11 local government ombudsman (LGO) 17, 43, 45, 94–7, 407, 417–18, 454, 582 Local Safeguarding Children Boards (LSCBs) 167, 183, 233, 235, 237, 367 looked after children (LAC) 168, 180, 283–305 see also foster care abuse 298 accommodation 285–9 adoption 284–5, 286, 290 advise, assist and befriend, duty to 298–301 advocacy 298 anti-discriminatory and antioppressive practices 149, 357 asylum seekers 285, 300, 572 bursaries for further education 301 criminal offences 367 care orders 284–5, 288 care plans 288–9 children‘s rights officers 298 consultation duty 285–6 contact, promotion of 286 criminal supervision orders with residence 284 cultural, racial and linguistic background 286 damages 284 definition 190, 284 disabilities, children with 191 duties 285–90 education 286, 287, 289, 290, 299, 301, 342, 356–7 housing/accommodation 190–1, 285–9, 550–1 independent visitors 298 leaving care 298–301 mental health 290 need, children in 189, 190–1, 290 outcomes 289–91 pathways plans 299–300 permanence 285 personal advisers, role of 299–301 powers 18 residential special schools, children in 287 resource issues 286 respite care 284 reviews 284, 289 section orders 213 secure accommodation 296–8 short-term arrangements 284–5 special educational needs (SENs) 356 welfare benefits 300 wishes and feelings of child 180, 285–6 youth detention accommodation 284–5 Longcare Inquiry Report 101 Lord Chancellor 69–71 Macpherson Report 148, 517, 519, 537 magistrates‘ court/Justices of the Peace (JPs) 69–70, 521–2, 529 appeals 59, 60, 62 appointments 69 civil jurisdiction 55, 59 district judges 70 diversity 69–70 either way offences 56, 57–8 Family Court 59, 62, 70 family proceedings court (FPC) 53, 59 justices‘ clerks 70 qualifications 69–70 reasons 531 retirement age 69 sentencing 70, 517, 531 summary offences 59 training 70 youth court 59, 70, 384 603 www.downloadslide.net Index maladministration 95–8, 417–18, 435 mandatory life sentences for murder 535 mandatory orders (mandamus) 45, 582 margin of appreciation 121 marriage see also civil partnerships and same-sex marriage adoption 134 arranged marriages 466, 504 definition 219 divorce 219–23 forced marriage 219–21, 225, 488 marry and found a family, right to 132–3, 147, 200, 219 mental capacity 465 private and family right, right to respect for 465 transgender persons 132–3, 219 witnesses, compellability of 91 McKenzie friend 81, 126 media asylum seekers 565, 566 case law, accessing and understanding 43–4 child abuse inquiries 5, 271 Court of Protection (CoP) 477–8 courts 52, 59 decision-making framework 24 freedom of expression 477 freedom of the press 131 homelessness 547 magistrates/Justices of the Peace (JPs) 69 mental health 428 reporting restrictions 59, 127, 224, 384, 389 scapegoating 24, 271 welfare benefits 557 youth justice 366 Mediation Information and Assessment Meeting (MIAM) 205 medical examinations, refusal of 19, 180, 239–40, 273 medical treatment/health issues adoption 311, 312, 314–14, 320–1, 330 advance decisions 473–4 asylum seekers and NHS 577 children, rights of 179–80 consent 179, 441, 449–50, 455–6 604 declarations 270 detention of people with a mental disorder 441, 449–50, 455–6 Independent Mental Capacity Advocates (IMCAs) 479 life-sustaining treatment, refusal of 473 medical abuse 232 necessity 129 refusal 129, 180, 449–50, 473–4 reports 330 reviews 289 wardship 270 youth justice 369 mental capacity/Mental Capacity Act 2005 13, 463–83 see also Court of Protection (CoP); Mental Capacity Act 2005 Code of Practice abnormally aggressive or seriously irresponsible conduct 430 abuse 487, 495, 498, 501, 503–5, 509–10 adoption, consent to 325 adult social care 399, 403–4 advance decisions 473–4 advocacy 415–16 anti-social behaviour orders (ASBOs) 378 assessment of capacity 470–1 assistance in making decisions 469–70 best interests principle 465–6, 468, 471–2, 476, 480, 503–4 blanket policy 472 care or treatment, acts in connection with 472 care orders 288 criminal offences 479, 505, 509–10 cultural, racial, linguistic and religious background 471 decision-making 464–72, 480 declaratory relief 464, 465–6, 473, 476 definition 469–70 delay 46–7 deprivation of liberty safeguards (DOLS) 126, 430, 474–6 detention under MHA 1983 448, 450, 467 enduring powers of attorney (EPA) 465, 473 Family Division 61 financial abuse 497 forced marriage 220 housing/accommodation 288 independent mental capacity advocate (IMCA) 479, 505 inherent jurisdiction of High Court 504–5 injunctions 466–7 issue-specific capacity 470–1 judge-made law 44 lasting powers of attorney (LPAs) 467, 471, 472–3, 476–7, 498 Law Commission 35, 46–7, 467 learning disabilities, persons with 400–1, 432–4, 442, 485–6 least restrictive principle 471 legal proceedings, conduct of 470 litigation friend 466–7 marriage 465 medical treatment, consent to 450 mental health 430–1, 448, 450, 464, 467, 472 personalisation 411 presumption of capacity 465, 468 private and family right, right to respect for 465, 468 proportionality 472 Public Guardian, Office of the (OPG) 478–9 restraint 472 standard of proof 470 wishes and feelings of person 471–2 Mental Capacity Act 2005 Code of Practice 41, 430–1, 468 abuse 498, 509 advance decisions 474 assessment of capacity 470–1 best interests principle 471–2 carers 480 Court of Protection 476 criminal offences 479, 509 day-to-day decisions 467, 472 detention 445, 479 deprivation of liberty safeguards (DOLS) 445, 479 evidence in criminal or civil proceedings, as 480 Independent Mental Capacity Advocates (IMCAs) 41 personal care decisions 472 www.downloadslide.net Index mental health/Mental Health Act 1983 426–62 see also detention of people with mental disorders; learning disabilities, persons with; mental capacity/Mental Capacity Act 2005 abuse 502, 504, 509–10 adult social care 400, 417 advocacy 442–3 after-care 400, 417, 453–4, 577 alcohol and drug dependency 432 anti-discriminatory and antioppressive practices 19–20, 144, 153–4, 431–2 appropriate adult 523–4 approved mental health professional (AMHP) 428, 434–6, 448, 455, 509 approved social workers (ASWs) 428, 434–5 assessments of needs 435 asylum seekers 576–7 care plans 400, 429 care programme approach (CPA) 436 child protection social workers 428 civil proceedings 435 Code of Practice (MHA) 20, 427, 429, 430–4, 439–40, 451 community, living in the 400, 429, 435 community penalties 533 community psychiatric nurses (CPNs) 428 community treatment orders (CTOs) 427, 436, 442, 453–5 criminal offences 435, 456–7 cultural, racial, linguistic and religious background 431–2 dangerousness 428, 431–2 definitions 430, 432–4 deprivation of liberty safeguards (DOLS) 474 discrimination 14 domiciliary services 454 effectiveness, efficiency and equity principle 428, 429 entry and inspection, powers of 447, 509–10 evidence-based approach 431 fitness to plead 536 guardianship 400, 429, 435, 436–9, 442, 445–7, 453, 455 Health and Care Professions Council (HCPC), registration with 434 hospital orders 536–7 independent mental health advocacy (IMHAs) 442–3 informal admission 400 investigations 509–10 learning disability, people with a 432, 433–4 least restriction principle 427, 429 life, right to 123–4 looked after children 290 medication, refusal of 427 mental capacity 430–1, 448, 450, 464, 467, 472 mental disorder, definition of 432–3, 440, 510 Mental Health Act 2007 428–9, 430, 454 mental illness, definition of 433 multi-disciplinary work 427, 435, 446 nearest relative 428, 435, 436–9 neglect 510 occupational therapists 434 participation principle 427–8, 429 patient‘s guardian 435 place of safety, removal by police to 447–8, 509–10 possession proceedings 144 principles 427, 429 psychologists 434 psychopathic disorders 433 purpose principle 427, 429 records, failure to keep 435 Reference Guide to MHA 1983 429 registration 434 removal to place of safety 447–8 reports 435 residential accommodation 454 responsible clinicians (RCs) 427, 436, 455 short-term powers 447–8 suicide 123–4 summary of key provisions of MHA 1983 457 supervised community treatment orders (CTOs) 428, 454–5 support, time, recovery (STR) workers 436 menu principle 175 Ministry of Justice (MoJ) 40, 58–9, 71–2, 370, 516, 520–1 miscarriages of justice 63, 517, 524, 538 misconduct hearings 9–10 mitigation 57, 58, 385, 531 modes of address 87 monitoring officer, appointment of 98 multi-track claims 56 Munro Report 167, 185, 230 names, change of 207, 211, 334 National Minimum Standards (NMSs) 269, 291, 294–5, 310, 311–12, 317, 420 National Offender Management Service (NOMS) 71, 520–1 National Service Framework (NSF) 436 natural justice 14, 45, 126, 583 nearest relative (NR) age 437 approved mental health professional (AMHP) 436, 437, 451 community treatment orders (CTOs) 437 discharge of patient 436, 437, 438–9, 451–2 displacement 437–9, 451 guardianship 435, 437, 438–9, 446–7 inherent jurisdiction to displace NR 438–9 list of adult relatives on basis of priority 436–7 Mental Health Act 1983 428, 435, 436–9, 441–2, 451–2 objections 437–8 public authority under Human Rights Act 1998, as 437 resident with patient, priority given to persons 437 necessity 129, 444–5 need, children in 176–7, 185–91, 401, 570, 574 neglect/negligence 583 abuse 232, 233, 488–90, 492, 494–5, 502, 510 criminal offence 479 damages 98–100 605 www.downloadslide.net Index neglect/negligence (Continued) education 99–100, 352 fair, just and reasonable test 99, 352 foreseeability 99 foster care 99–100, 292 mental health 510 neighbour principle 99 public interest immunity (PII) 99–100 sentencing 529 standard of care 251, 319, 448, 572 vicarious liability 99 neutral citation 44 no case to answer 58 no intervention principle 170–7 no order principle 32, 176, 204–6, 247, 318, 583 No Secrets guidance abuse 39, 485, 487–8, 490–2, 495, 498, 503, 505–7 Human Rights Act 1998 115 lawyers, relationship between social workers and 92 partnership 21 values 24 non-molestation orders 120, 216, 505 Norgrove Review 62 not guilty pleas 57–8, 60 oaths and affirmations 87, 529, 581 obiter dicta 42, 583 occupation orders 216 occupational therapists 434 Offender Assessment System (OASYS) 534, 583 Official Solicitor 71, 501, 503 Ofsted (Office for Standards in Education) 17, 290, 310, 311, 343, 346 older people abuse 487–90, 495, 502, 505–6 Action on Elder Abuse (AEA) 487–8, 489–90, 508 age discrimination 400 carers, as 400 definition 400 disabilities, with 399–400 mental health 428 residential care/accommodation 400 606 O‘Neill, Denis, death of 271 oppressive practices see antidiscriminatory and antioppressive practices paedophilia 432 parental responsibility 199–204, 583 adoption 202, 308, 319, 322–5, 333, 335–6 appropriate adult 383 care orders 253, 257, 264–5 Child Arrangements Orders (CAOs) 203–4, 206–7 children‘s guardian 202, 203, 266 consult with other person with parental responsibility, duty to 202 corporal punishment 203 court, applications to 201 decisions about a child, examples of 200 definition 200 delegation of parental responsibility 202–3 education 345 emergency protection orders (EPOs) 203, 240–2 family breakdown 199–204 fathers 201–3 foster care 202–3, 291, 293 in loco parentis 202–3 joint exercise 202–3 joint registration of birth 201 limitations 203 local authorities with care orders 202 looked after children 286 name, change of 207, 211 need, children in 186 no intervention principle 176–7 non-traditional families 199 prohibited steps orders (PSOs) 203, 212 recorded agreements 201 recovery orders 245 removal from jurisdiction 207 residence orders 202 same sex couples 223 section orders 201, 204 specific issue orders 203, 211 step-parents 202 supervision orders 264–5 termination 202 unmarried parents 201–3 wardship 269–70 who has parental responsibility 201–3, 204 parents see also parental responsibility accountability 21 beyond parental control 252–3 bindovers 386, 583 carers 193, 419 communication skills 21 consultation 285 education, preferences as to 350 family breakdown 198–228 fathers 200, 201–3, 324 lone parent households and absence from school 346 parenting contracts 347, 348–9, 375–6 parenting orders 347, 348–9, 370, 374–5, 376 parenting plans 205 partnership 21 referral to independent advice and advocacy agencies 235 rights of children 179 step-parents 202, 319, 321 Youth Offender Panels (YOPs), attendance at 386 Parliamentary and Health Service Ombudsman (PHSO) 97 parliamentary sovereignty 118 participation principle 427–8, 429 part-time employees 145, 155–6 partnership 20–1, 168, 183, 288, 492 see also inter-agency working/ cooperation paternalism 22, 168, 170, 465–6, 483, 486 pathways plans 299–300 patient‘s guardian 435 peaceful enjoyment of possessions 134 penalty notices 347, 348–9 People First 417 personal advisers 299–301 personal assistants, employment of 411–12 personal independence payments (PIPs) 559 personal values 20 www.downloadslide.net Index personalisation 333, 405, 410, 411–13, 558 physical disabilities see disabilities, persons with pin-down report 273, 294 place of safety, removal to 240, 272–3, 447–8, 509–10 plans see care plans POCA (Protection of Children Act) list of adults unsuitable to work with children police abuse 236, 245, 518–19, 524–8 arrest 57, 246, 380, 382, 522–3, 527 child curfew schemes 371–2 community resolution 381 complaints 519 confessions, admissibility of 527–8 custody officers, role of 84, 527 custody records, access to 383, 524–5, 527 decision-making framework 25 detention 41, 84, 383, 523–5, 527 dispersal powers 372–3 domestic violence 501 emergency protection orders (EPOs) 245 evidence, improperly obtained 527–8 helping police with their inquiries 523 institutional racism 148–9, 517, 519, 537 miscarriages of justice 524 PACE and codes 41, 84, 382–4, 523–4, 527–8 partnership 21 place of safety, removal to 447–8, 509–10 powers 524–8 removal of children 245 restraint 135 station, rights at the 527–8 positive action and positive discrimination distinguished 157 possession orders/proceedings 144, 556 poverty 193 power imbalance 21 powers as key legal concept 18–19, 583 powers of attorney 581 enduring powers of attorney (EPAs) 465, 473, 498 financial abuse 497–8 lasting powers of attorney (LPAs) 467, 471, 472–3, 476–9, 498 practice and law, relationship between 4–10 practice directions 44–5, 209–10, 216, 218, 389 see also Public Law Outline (PLO) precedent 583 advantages and disadvantages 41–2 binding, what is 42–3 European Court of Human Rights (ECtHR) 117 hierarchy of courts 41–2, 52–3 obiter dicta, definition of 42 ratio decidendi, definition of 41–2 sources of law 31, 41–3 Supreme Court 41 pregnancy or maternity discrimination 152, 153 pre-sentence reports 58, 82, 388, 520–1, 534–5 prevention 367–8, 370–80, 405, 408, 495–500 prison see custodial sentences private and family right, right to respect for 128–31 abuse 237–8, 253, 262, 486, 495, 500, 505 adoption 315, 317–18, 324 adult social care 404, 416 anti-discriminatory and antioppressive practices 147 anti-social behaviour 556 assessments of needs 129–31 asylum seekers 569 care plans 263 carers in decision-making, involvement of 129 contact orders 207, 209–10 Court of Protection (CoP) 477 damages 135–6 data protection 106 deprivation of liberty safeguards (DOLS) 475 detention of people with a mental disorder 450–1 emergency protection orders (EPOs) 241 expert witnesses 268 family breakdown and children 200 foster care 292 freedom of expression 131–2 housing/accommodation 114–15, 129–31, 555–6 in camera hearings 127 interpretation 128–30 marriage 465 medical treatment 129 mental capacity 465, 468 nearest relative 437 non-molestation orders 120 personalisation 411 prison, separation of mothers and children in 540–1 proportionality 121, 129–30, 253 public interest 129 qualified rights 129 reporting restrictions 127 residential care/accommodation 114, 414, 416 restraint by police 135 separation of couple 114 sexual abuse 128, 486 sexual orientation 128, 135–6 specific issue orders 211 transgender persons 219 working with vulnerable adults or children, exclusion from 129, 495 youth court 384 private hearings 65–6, 452, 477–8 private law orders see section (private law) orders Probation Service 21, 71, 82, 366–7, 369, 520–1 pro bono work 67, 583 procedural fairness 45, 406 Professional Capabilities Framework (PCF) 6–8, 31 professional conduct of solicitors 67 professions, characteristics of 93 prohibited steps orders (PSOs) 167, 203–5, 210–11, 212, 270 prohibitory orders (prohibition) 45 proof see burden of proof; standard of proof 607 www.downloadslide.net Index proportionality 583 see also under individual main headings care orders 253, 262 children 241–2, 253, 262–4 closure of homes 414 custodial sentences 385, 388, 390 data protection 104 discipline at school 353 emergency protection orders (EPOs) 241–2 Human Rights Act 1998 121, 122, 135 litigation limit 177–8 mental capacity 472 parenting orders 375 private and family right, right to respect for 121, 129–30, 253 sentencing 529 supervision orders 5, 121, 264 Protection of Vulnerable Adults (POVA) index 495–7 psychiatric examinations, refusal of 19, 180, 239–40, 273 psychological abuse 215–16, 232, 296, 488, 490, 493, 501 psychologists 434 psychopathic disorders 433 public authorities Crown Prosecution Service (CPS) 68 definition 119 disability discrimination 157 European Convention on Human Rights 23 Human Rights Act 1998 17, 118–21, 437, 555 judicial review 45, 120 National Asylum Support Services (NASS) 570 public sector equality duty 23, 148, 157–8, 415 residential care/accommodation 119 public functions, bodies exercising 53, 119, 158, 416 Public Guardian, Office of (OPG) 473, 478–9, 498 public hearings 65–6 public inquiries see inquiries/reviews public interest immunity (PII) 15, 99–100 Public Law Outline (PLO) 583 advance disclosure 89 care orders 247, 258–60 608 children‘s guardian 267 delay 175, 234, 317 flowchart 260 preparation 258 significant harm 247–8 Pupil Referral Units (PRUs), placement in 355 purpose principle 427, 429 QAA benchmarks 8–9 qualification framework 5–6 Quality Protects initiative 168, 290, 572 quashing orders (certiorari) 45 Queen‘s Bench Division (QBD) 56, 60, 61–2 Queen‘s Counsel (QCs) 63, 68 Queen‘s Speech 33 race and racial discrimination 148–9, 151, 152–3 aggravated offences 385–6, 537–8 asylum seekers 566, 570 code of practice on reporting and recording racist incidents 519 dangerousness 431–2 detention of people with a mental disorder 431–2 enforcement 159 ethnic origins, definition of 152 evidence 148 foster care 291 genuine occupational requirements 156–7 harassment and violence 149, 151, 570 homelessness 547 indirect discrimination 155 inhuman or degrading treatment 570 institutional racism 148–9, 517, 519 instructions to discriminate 153 legal profession, diversity of 67–70, 146 looked after children 149 Macpherson Report 148, 517, 519, 537 national origins 152, 153 police, monitoring in 149 public sector equality duty 23, 148, 158 racial groups 537–8 racial hatred, incitement to 149 racial incident, definition of 537 religious hatred, incitement to 149 sentencing 537–8 stereotyping 148 stop and search 537 under-representation 157 ratio decidendi 41–2, 583 reactive, not proactive, law as 14 reasonable adjustments and disability discrimination 153–4, 157 reasons 65, 258, 410–11, 354, 531, 574 records 103–7 abuse 231, 234–5, 499–500 adoption 330 contemporaneous records 104 data protection 103–4, 106 eligibility 410 freedom of information 106–7 impartiality 103 maladministration 435 mental health 435 professional judgments 103 role of social worker in law 103–7 Standards of Proficiency witnesses, preparation of 86 recovery orders 245 re-examination 58, 89, 583 referral orders 386–7 refugees 245–6, 565, 566–7, 569, 571–2, 583 refuges 217, 245–6 registration 9–10, 191, 346, 293, 308, 421, 434, 473 regulation 9–10, 17, 294–6, 420 rehabilitation 386, 389–90, 529, 531 relatives see also parents abuse of adults, by 490 adoption 308, 311–13, 314, 317 foster care 286, 290–1, 292 religion and belief children and families, supporting 174 discrimination 152, 154, 291–2 foster care 291–2 incitement to religious hatred 149 Islamic dress 351 thought, conscience and religion, freedom of 131–2, 292, 351, 420 remand 382, 528–9, 535 www.downloadslide.net Index remedies 583 see also compensation; damages; injunctions civil cases 53–4 domestic violence on children, impact of 215–16 effective remedy, right to an 262 exhaustion of domestic remedies 87, 117 Human Rights Act 1998 116, 135–6 proportionality school, absences from 346–9 removal to place of safety 240, 272–3, 447–8, 509–10 reparations 386, 387, 529, 531 reporting restrictions 59, 127, 224, 384, 389 reports abuse 237, 529 adjournment 529 adoption 310, 319, 321, 330, 332, 334–5 bail information reports 520 CAFCASS 83 child and family reporter 172 children‘s guardian 82–3, 172 contents 83–4 expert witnesses 268 foster care 291, 293 general principles 83 mental health 435, 452 officers of court, social workers as 367 pre-sentence reports 58, 82, 388, 520–1, 534–5 Probation Service 82 social circumstances reports 441 social enquiry reports 435 writers, social workers as 82, 83–4, 367 youth justice 367, 369 Representation Orders (ROs) 69, 520 residence adoption 318, 333–6 adult social care 410 care orders 253 foster care 97, 177, 213, 291 orders 97, 177, 212–13, 291 parental responsibility 202 payments 207 section orders 212–13 shared care or shared residence arrangements 205–7, 583 special guardianship orders (SGOs) 335–6 residential care/accommodation 293–6 abuse 296, 487, 488–90, 493, 499–500 adult social care 400–1, 413, 416, 419–20 assessments of needs 413, 420 Care Standards Tribunal 65, 295 choice 22, 413 closure 414 conditions of registration 295 continuous residence 293–4 damages 296 definition 293–4 immunity, removal of 296 inhuman or degrading treatment 414 inquiries 294 inspection 294 learning disability, people with a 400–1 looked after children 293–6 managers, registration of 295 mental health 454 monitoring 294 National Minimum Standards (NMS) for Children‘s Homes 294–5 private and family right, right to respect for 114, 414, 416 proportionality 414 psychiatric or psychological injury caused by abuse 296 public authorities 119, 416 public functions, bodies exercising 416 registration, appeals against cancellation or refusal of 295 regulation 294–6, 420 restraints 294, 295 standards 294–5, 420 suitability 420 thought, conscience and religion, freedom of 131, 420 voluntary associations 420 youth justice 367 Resource Allocation System (RAS) 411 resource issues abuse 518 adoption 332, 334–5 adult social care 409 assessments of needs 409 CAFCASS 264 care orders 258 choice 22 detention of people with a mental disorder 444 domiciliary care 414 duties 18 education 351, 358–9 eligibility 408–9 judicial review 11, 61–2, 97 leaving care 299 looked after children 286 need, children in 185 staffing, adequacy of 11 taking into account respect principle 428, 429 respite care 191, 284 responsible clinician (RC) 427, 436, 451, 455, 583 restitution 529 restorative justice 366, 387 restraining orders 508 restraints abuse 499, 502 fair hearing, right to a 126 guidance 294 mental capacity 472 pin-down report 273, 294 police 135 training 295 retribution 529 reviews abuse 231, 236–8, 271–4 adoption 311, 330 asylum seekers, detention of 570 CAFCASS 289 care orders 257 care plans 289 complaints procedures 94–5, 417 deprivation of liberty safeguards (DOLS) 475 detention of people with a mental disorder 452 domestic homicide reviews 508–9 foster care 292 health 289 independent personal budgets 411 inquiries 5, 11, 21, 271–4, 294 looked after children 284, 289 serious case reviews 233, 271–2, 509 609 www.downloadslide.net Index rights 19 , 117 see also European Convention on Human Rights (ECHR); Human Rights Act 1998 risk assessment 14, 96, 250, 253, 268, 409, 418, 501 ritual/Satanic abuse 232 role of social worker in law 79–112 applicants in court, social workers as 80–1 appropriate adult, social workers as 84, 367, 383, 524, 527 challenging social work practice 80, 93–103 courtcraft 80, 85–93 record keeping 103–7 report writers, social workers as 82, 83–4 whistleblowing 80 witnesses, social workers as 80, 81, 85–90 Royal Assent 35, 36, 38, 583 safeguarding see adult safeguarding from abuse Schedule One Offenders 274 schools see education screening child care workers 270–1 screens in court 92, 276, 535 Secretary of State, default powers of 11 section (private law) orders 203–14, 583 see also Child Arrangements Orders (CAOs) care orders, effect of 213 Children Act 1989 203–4, 207, 209 children 212–13, 215 conditions 204 contact orders 203–4 domestic violence on children, impact of 215 eligibility 212–13 family assistance orders 214 family breakdown 203–14 grandparents 175, 203, 206–7, 213 interim orders 213 investigation of child‘s circumstances 213–14 looked after children 213 Mediation Information and Assessment Meeting (MIAM) 205 no order principle 204 parental responsibility 201, 204 610 parenting plans 205 prohibited steps orders (PSOs) 167, 203–5, 210–11, 212, 270 residence orders 212–13 rights of children 180 section 37 directions 213–14 Separated Parents Information Programme (SPIP) 205 specific issue orders 167, 203, 205, 210–12, 456 variation or discharge 204 wardship 203–4 who may apply 212–13 secure accommodation 296–8, 367, 380, 382, 388 self-determination 24, 487 self-funded care 95 sentencing (adults) 529–41 see also community penalties; custodial sentences; disposal/ sentencing (youth justice) abuse of adults 522, 529–41 aggravating factors 531 appeals 532 causing or allowing the death or serious injury of a child or vulnerable adult 508 compensation orders 53, 532, 539 Crown Court 536 culpability 529–30 dangerousness 529 deferred sentences 534 denunciation 529 deterrence 529, 531 discharges, absolute and conditional 532 discretion 531 fines 53, 347–9, 386, 522, 531–2 fitness to plead 536 fixed penalties 532 guilty pleas, discount for 531 hospital orders 536–7 incapacitation 529 just deserts 531 lenient sentences 63, 532 magistrates‘ court 70, 517, 531 mandatory minimum sentences 516 maximum penalties 529 miscarriages of justice 538 mitigating factors 531 negligence 529 pre-sentence reports 58, 82, 388, 520–1, 534–5 proportionality 529 punishment 53, 531 racism 537–8 recklessness 529 rehabilitation 53, 529, 531 reparations 529, 531 restitution 529 retribution 53, 529 Sentencing Guidelines 531–2 seriousness 529, 531 special measures for vulnerable witnesses 535–6 suspended sentences 534 transgender identity, aggravated offences based on 538 Separated Children in Europe Programme 572 Separated Parents Information Programme (SPIP) 205 Serious Fraud Office (SFO) 519 seriousness custodial sentences 385, 387, 390 sentencing 529, 531 serious case reviews 233, 271–2, 509 youth justice 385 settlements 56 severe disablement allowance 559 sex discrimination see gender and gender discrimination sex offender orders 386, 387, 507 sexual abuse/sex offences adult safeguarding 485–6, 488–90, 493–4, 496, 499, 501, 504, 506–7 care worker offences 506–7 children Children‘s Commissioners 180 damages 100, 296, 540 definitions 232–3, 489 diagnosis 272 emergency protection orders (EPOs) 240–1 parental responsibility, termination of 202 private and family right, right to respect for 486 significant harm 247 working with children, exclusion from 9, 129, 270–1 consent, definition of 506 Criminal Records Bureau (CRB) 271 www.downloadslide.net Index disqualification orders 271 domestic violence on children, impact of 215 inducements 506 learning disability, people with a 401 private and family right, right to respect for 128, 486 sex offender orders 507 Sex Offender Register 271 trust, abuse of 271 working with children, exclusion from 9, 129, 270–1 sexual orientation see also civil partnerships and same-sex marriage adoption 223, 319–20 armed services 135–6, 147 children 174, 216, 223 discrimination 115, 147, 154 domestic violence 216 Human Rights Act 1998 134, 135–6, 147 private and family right, right to respect for 128, 135–6 sexual relationships with service users siblings 186, 256, 286, 315, 326 significant harm abuse 247–53 beyond parental leave 252–3 care orders 247–54 causing or allowing the death or serious injury of a child or vulnerable adult 275 children and families, supporting 174 criminal offences 252 emergency protection orders (EPOs) 241, 246 exclusion from home 246–7 experts 91 flowchart 254 harm, definition of 248 identification of abuser 252 likely future harm, action on 249–50 split hearings 261 standard of care 251 standard of proof 54, 250, 252 supervision orders 247–53, 264 threshold criteria 247–54, 264, 270 wardship 270 silence, adverse inferences from 92, 523 simplification 33 slavery or servitude 118 small track claims 56, 59 social care see adult social care Social Care Institute for Excellence (SCIE) 419 social circumstances reports 441 social enquiry reports 435 social exclusion 487, 566 Social Fund 559–60 social policy and law, understanding development and application of social security see welfare benefits socio-economic inequalities 157 solicitors 583 see also legal representation advocacy 67 appropriate adult 84, 382–3 barristers 68, 92–3 children, appointment of solicitor for 266 complaints 67 contingency fees 67 Crown Prosecution Service (CPS) 67–8 diversity 67 duty solicitors 382, 522 justices‘ clerks 70 Legal Services Ombudsman 67 local government, work for 67–8 Official Solicitor 71 pro bono work 67 professional conduct 67 Solicitor General 71 solitary confinement 124–5 sources of law 29–50 changes and developments 31 common law 31, 41–4, 46, 582 judge-made law 44 language of the law 31–3 law reform 30, 31, 45–7 legislation 33–40, 46 practice directions 44–5 precedent 31, 41–3 special educational needs (SENs) 342, 345–6, 351, 357–9 absenteeism 346, 348, 350 appeals 359 assessments 359 code of practice 358 definition 358 Education, Health and Care Plans (EHC) 358, 359 exclusions 355 fair, just and reasonable test 352 Human Rights Act 1998 134 looked after children 356 negligence 352 pathfinder areas 357–8 resource issues 358–9 statements 356, 358–9 vicarious liability 352 special guardianship orders (SGOs) 36, 180, 308, 310, 318, 333–6, 583 special measures for children and vulnerable adult witnesses 583 aids to communication 276, 536 Charter 536 criminal proceedings 506 Crown Prosecution Service, withdrawal of cases by 92 custodial sentences 389 fair hearings, right to 276 familiarisation 276, 506, 521 fear or distress 535 guidance 536 intermediaries 276, 536 live links 276, 535–6 screens 92, 276, 535 sentencing 535–6 unsworn evidence of children 92 video links 66, 92, 276 video recording 276, 536 vulnerable witness, definition of 535 witness service 521 specific issue orders 167, 203, 205, 210–12, 456 split hearings 261 staffing, adequacy of 11 standard of care 251, 319, 448, 572 standard of proof 584 anti-social behaviour orders (ASBOs) 366, 377 burden of proof distinguished 54 civil cases 10, 54–5, 366, 377, 452–3, 470 criminal cases 5–6, 10, 54, 366, 367, 453, 506, 521–2 mental capacity 470 misconduct hearings 10 significant harm 54, 250, 252 611 www.downloadslide.net Index standards abuse 485 education 342 Health and Care Professions Council (HCPC) National Minimum Standards (NMSs) 269, 291, 294–5, 310, 311–12, 317, 420 Professional Capabilities Framework (PCF) 6, 7, 31 residential care/accommodation 294–5, 420 Standards of Proficiency standing committees 34 statements of truth (affidavits) 90, 581, 584 status quo principle 173 statutory instruments 39, 584 step-parents 202, 319, 321 stereotyping 70, 148, 220, 404, 470 sterilisation 465–6 stop and search 537 stress asylum seekers 573, 575 carers 493, 495 court, experiences of 55–6, 80, 86, 172, 278, 506, 535 post-traumatic stress disorder (PTSD) 383 social workers 4, 30, 80, 86, 101, 230 strict liability 521 substance misuse 289, 432, 488, 532–3 suicide 123 summary offences 58, 60, 522, 532 summing up 58 supervised community treatment orders (CTOs) 428, 454–5 supervision orders abuse 231–2, 247, 253, 262, 264–5 beyond parental control 252 discharge 264–5 extension 265 family assistance orders (FAOs) 214 interim orders 373 proportionality public authorities 121 significant harm 247–53 threshold 167 variation 264–5 612 support services see also children and families, supporting adult social care 409, 412, 415 asylum seekers 566, 567–72, 574–6 carers 495 foster care 284, 290, 292 support, time, recovery (STR) workers 436 youth justice 367–8 Supreme Court 41, 53, 60, 63, 117–18 thought, conscience and religion, freedom of 131–2, 292, 351, 420 title ‘social worker’, protection of 8, 10, 497 tort 501–2, 584 see also neglect/ negligence torture 124, 500 trade unions as source of legal advice 72 trafficking 125 training appropriate adult 383, 523 Court of Protection (CoP) 476 criminal justice 518 data protection 106 Family Court 70 foster care 291, 292 Health and Care Professions Council (HCPC) Human Rights Act 1998 35 inquiries into child abuse 271 lawyers, relationship between social workers and 93 restraint 295 witnesses 80, 86–8 transgender people anti-discriminatory and antioppressive practices 152, 153, 155–6 birth certificates 133 Gender Recognition Act 2004 118, 133, 219 marry and found a family, right to 132–3, 219 private and family right, right to respect for 219 transparency coroners‘ court 64 Court of Protection (CoP) 477–8 data protection 25 decision-making framework 24–5 fair hearing, right to a 127 family courts 224 freedom of information 106–7 reporting restrictions 224 tribunals 63–5, 81, 452 truancy 343, 346–50, 375–6 trust, establishment of 21 ultra vires 45, 62, 584 UN Convention on the Rights of the Child 137–8 adoption 315 appropriate adult 384 asylum seekers 571 Children‘s Commissioner 181 children‘s guardian 265–6 custodial sentences 388 education 346, 350 rights of children 178, 180 youth justice 380 unacceptable/oppressive language 32, 146, 191 unaccompanied asylum seeker children 571–4 16-17 year olds 572 accommodation 572 age assessments 564, 572–4 burden of proof 573 Children Act 1989 572 cultural, racial, linguistic and religious background 573 definition 571–2 judicial review 573 looked after children 285, 300, 572 Quality Protects initiative 572 reasons for age determinations 574 refugee status 571–2 Separated Children in Europe Programme 572 standard of care 572 support, provision of 572 UN Convention on the Rights of the Child 571 undue influence 502 Universal Credit 557, 559, 560 Universal Declaration of Human Rights (UDHR) 136–7, 146 unmarried parents 201–3 Upper Tribunal 65, 452 www.downloadslide.net Index up-to-date with practice developments, keeping 14 urgency see emergencies and urgent cases Utting Report 273, 293–4 values 6, 7, 19–20, 24, 31, 168 verdicts 58 vetting and barring schemes 9, 129, 270–1, 495–7, 503 vexatious proceedings 45, 107, 177 vicarious liability 99, 292, 331, 352, 502 victimisation 102, 156 victims abuse 501–2, 538–9 Code of Practice 538–9 Commissioner for Victims and Witnesses 216 criminal injuries compensation scheme 509 Human Rights Act 1998 45, 94, 101, 135 Prosecutor‘s Pledge (AttorneyGeneral) 539 video links 66, 92, 276 video recordings 276, 536 violence see domestic violence Visitor (CoP), role of 478–9 voluntary bodies 72, 85, 310–11, 383, 570 voting rights 450 voyeurism 507 vulnerable persons see adult safeguarding from abuse Wales 33, 39–40, 95, 180, 290 wardship abuse 232, 269–70 care orders 269–70 child abduction cases 270 Children Act 1989 269–70 declarations 270 Family Court 269 foster care 270 inherent jurisdiction 61, 269–70 injunctions 270 Official Solicitor 71 parental responsibility 269–70 prohibited steps orders (PSOs) 167, 210–11, 270 section orders 203–4 significant harm 249–50, 270 specific issue orders 210–11, 270 warning notices 421 Warnock Report 358 Waterhouse Inquiry Report 101–2, 180 Wednesbury unreasonableness 62, 292 welfare benefits 556–60 see also individual benefits advice and assistance 557 asylum seekers 565, 566, 569, 571, 576 backdating 557 care orders 265 children and families, supporting 181 contributory and non-contributory benefits 557 Department for Work and Pensions 556–7 income-related benefits 557 Jobcentre Plus 556 leaving care 300 media 557 personal independence payments (PIPs) 559 taxable and non-taxable benefits 557 unclaimed benefits 557 work capability assessments 558 welfare, decision-making on 503 welfare principle 166, 170–8, 184–5 abuse 231–2 adoption 311, 313–18, 324–5, 328, 331, 335 asylum seekers 564 chambers, seeing children in 172 characteristics of child 173–4 checklist 170, 171–5, 199, 211, 313–17, 328 child safety orders (CSOs) 373 contact orders 207–9 custodial sentences 386 delay 173, 175–6 education 343, 344, 348, 352, 356–7 emergency protection orders (EPOs) 242–3 family breakdown and children 199–200 foster care 293 inter-agency working/cooperation 184 judges, guidelines for 172 language of the law 32–3 Law Commission 171 looked after children 168, 286, 356–7 no intervention principle 176–7 paramount, use of word 313 parental responsibility 199, 201–2 partnership 21 promote and safeguard welfare, duty to 184–5 reports 172 status quo principle 173 supervision orders 265 split hearings 261 timetable 175 welfare, definition of 170 wishes and feelings of child 172–3 youth court 384 wellbeing, duty to promote 21, 181–4, 188, 402–4, 487 whistleblowing 80, 101–3, 132, 503 white papers 33, 35, 48, 584 wishes and feelings of child adoption 311, 313–14, 321, 328, 334 age and maturity of child 172–3 care plans 256 children‘s guardian 83, 266 domestic violence, impact of 215, 218 family breakdown 199 Gillick competence 173 independent visitors 298 looked after children 180, 285–6 rights of children 138, 178, 180 witnesses 85–90 see also expert witnesses; special measures for children and vulnerable adult witnesses advance disclosure 89 children 275–7 civil jurisdiction 56 Commissioner for Victims and Witnesses 216 compellability/competence 92, 582 coroners‘ court 64 courtcraft skills 86–8 criminal courts 58 cross-examination 58, 87, 89–91, 268, 276–7 demeanour 90 613 www.downloadslide.net Index witnesses (Continued) domestic violence 92 dress 87 examination-in-chief 58, 87–8 familiarisation 89 leading questions 87–8, 89, 275 modes of address 87 oaths and affirmations 87, 529 personal views 85 preparation 86–9 records, contents of 86 re-examination 58, 89 social workers as witnesses 80, 81, 85–90 spouses, compellability of 91 statements, example of 88 summonses 92, 584 timetable 89 training 80, 86–8 witness service 521 work capability assessments 558 youth justice 21, 56, 58, 364–94 see also appropriate adult; disposal/sentencing (youth justice) acceptable behaviour contracts (ABCs) 376 age of criminal responsibility 366, 374, 381 614 anti-social behaviour 365–6, 367, 370, 372–3, 376–80 anti-social behaviour orders (ASBOs) 365–6, 376–9 arrest and charge 382 audits 368–9 bail 382 care, leaving 367 cautions 381–2 chief constables 366–7 child curfew schemes 370, 371–2 child, definition of 367 child safety orders 370, 373–4 community resolution 381 duty solicitors 382 emergency protection orders (EPOs) 373 governors 367 health authorities 369 information 369, 373–4 institutional arrangements 368–9 interagency working/cooperation 366–7, 369 investigation, local authority duty of 370 juvenile, definition of 367 legal representation 373, 382 media 366 offending behaviour 381 orders and offending 380–5 parenting contracts 375–6 parenting orders 370, 374–5, 376 persistent offenders 366 police 366–7, 369, 370 pre-court measures 381–2 prevention 367–8, 370–80 prisoners, children of 367 probation boards 366–7, 369 probation officers 369 remand 382 reporting restrictions 59 reports 367, 369 restorative justice 366 serious offences 385 social workers, role of 367–8 supervision 369, 373–4 support 367–8 truants, removal of 376 welfare principle 373 youth court 70, 384–5, 385 youth inclusion and support panels (YISPs) 369 Youth Justice Board 370 youth justice plans 368–9, 584 youth justice services 368, 369–70 youth offending teams (YOTs) 21, 366–7, 368–9, 376, 379–80, 386–7, 584 young person, definition of 367 ... context of social work practice Introduction to law and social work practice Sources of law Courts and law officers Social workers’ role in law The Human Rights Act 1998 and social work practice... Framework QAA benchmarks Regulation of social work Legal framework of social work Summary of key legislation impacting on social work practice and defining service user groups Limitations of law. . .SOCIAL WORK LAW Social Work Law Alison Brammer School of Law, Keele University Fourth Edition Pearson Education Limited Edinburgh