Protect Service Users Human Rights

Published Date: 02 Nov 2017

ASQ105 (Law)

The law is an instrument to protect service user’s ‘human rights’. Discuss this statement with reference to children.

This assignment will look at the foundation and value of law and how relevant it is to social work practice in today's society. It will look at how we view and treat children as outline by the United Nations Conventions on the right of the child. How the act set precedence for future laws and legislation to promote the rights of the child and how these principles are used in our role to protect the safety and welfare of children. Using case references it will show us how the law can be used to help guide our decisions making and show accountability to the wider public. In addition this assignment will illustrate how often these laws, legislations and policies can often conflict and cause dilemmas within social work practice.

The law assumes a social purpose to establish a set of normal behaviours, prohibiting and proposing certain lifestyles (Brayne & Preston-Shoot, 2010). Social work works in agreement with the law to maintain social stability. However social problems are socially constructed by poverty, deprivation and racial harassment. Although many argue that the law only exacerbate these problems by failing to address the problems people face by enforcing policies which dehumanise individuals (Brayne & Preston-Shoot, 2010).

The law is viewed as the framework for which social work practice is based. Many of the key values and principles of the law are embedded in the social work’s professional values, as described in the British Association of Social Workers (BASW) code of ethics (COE), including respect for all person’s including service users belief’s values, culture, goals, needs and preferences, relationships and affiliations, and a commitment to social justice, including the fair and equitable distribution of resources to meet basic needs (BASW, 2002, 3.1, 3.2).

Many of the values and principles of the law and social work practice intertwine, values of respect for the individual, ending prejudice and discrimination, commitment to equality and access to resources and services and natural justice where social workers have to show fairness in their decisions and be accountable for any decisions made (Roche, 2010). However with plenty of guidance around tackling discrimination and working with disadvantaged groups social work is often criticised for having more rhetoric than reality on these matters, for not appreciating the extent and impact of inequality and poverty on the lives of service users. With focus being on the individual problem rather than seeing the bigger picture (Dickens, 2009). Good practice in social care teaches practitioners to encourage and empower service users to use their rights. Thus improving individual circumstances and contributing to a culture of respect, equality, fairness and autonomy (Roche, 2010).

BASW code of ethics state that social workers are required to have the ability and commitment to act ethically and promote social justice (BASW, 2012, 1.1). These values are support in law by through anti-discriminatory legislation. Yet the law in itself can discriminate as in the case of unmarried fathers who do not have automatic parental rights if not named on the birth certificate (SCIE, 2012).

The relationship between social work practice and the law is a very complex with many regarding social workers as mere agents of social control (Banks, 2001). The government produced social work as a profession and gave social workers powers and responsibilities which made them accountable to the public (Brayne & Carr, 2010). Social workers have statutory powers which are derived from the statue law which is passed by UK Parliament to provide guidance for any decisions that they make.

The CA 1989 outlines how local authorities and others should deal with the care and welfare of children the main emphasis being "The welfare of the child is paramount" (s.1.) (Brayne & Carr, 2010). If there is suspicion that a child is suffering or likely to suffer harm S.47 of CA 1989 places a mandatory duty on the local authority to investigate. With a ‘child in need’ who requires additional support from the local authority to meet their potential s.17 of CA 1989 places a duty on the local authority to safeguard and promote their welfare (Brayne & Carr, 2010). Giving discretionary powers to intervene and regulate family life especially in the protection of children (Roche, 2010). This can often conflict with article 8 of Human Rights Act 1989 (HRA) as in Re L (care proceedings: Human Rights Claims [2003] EWHC 665 (fam) (Brammer, 2011). However the service user’s right to control their own lives and participate in any decision is one of the main principles.

A requirement of CA 1989 states practitioners should work in partnership with parents and take into consideration the wishes and feelings of children. However if a service user lacks capability to make safe choices it is the social workers role to make a decision in the ‘best interests’ of the child as in cases of child protection (Parris, 2012). For example Re B [1991]FCR 889 (SCIE, 2013) where intervention was considered as in the best interests of the child. In spite of Human Rights Act 1989 (HRA) article 2 which declares ‘everyone’s right to life shall be protected by law’ this article not only refers to life or death situations but the quality of life. This article applies to age related treatment and in this case there will have to be clear justifiable evidence to support such a decision (Brammer, 2010). The Codes of practice (COP) require social workers be accountable for the quality of their work and take responsibility for maintaining and improving their knowledge and skills (CCW, 2002, 6).

In addition article 12 states the right for the service user to express a view and have it taken into account consideration is given to age and understanding (Brammer, 2010). Often referred to as the Gillick competence (Gillick WestNorkfolk v. AHA [1986] A.C.112;). While social work is a caring profession there is a fine balance between care and control (Thompson, 2009). Comprising discussion as to the child’s absolute right to self-determination against the adult’s decision to act in their best interest to protect them (Brammer, 2010).

When working with children and families it is important that you communicate in an open way respecting confidential information and clearly explaining agency policies about confidentiality to service users and carers (CCW, 2002, 2.2 & 2.3). Whenever possible you should always seek written consent from the service user to share information. However confidentiality is not an absolute right and should be considered by the principle of proportionality is there a risk of significant harm to the child or a need to protect the public’s interest (Brayne & Carr, 2010).

Previously the law was not seen as important to social work practice and did not account for good practice, which is based on principles applied on a daily basis, not knowledge of the law, regulations and guidance (Brayne & Carr, 2010). However there has been recent change with the law being seen as essential in protecting the rights and promoting the interests of service users and carers (CCW, 2002, 1.3, & 1.5). Social workers are responsible for informing service users of their rights around oppression and discrimination and how they can exercise these rights, in order to do so they have to have an understanding of the law on rights and use them to guide and influence social work decisions (Roche, 2010). Equally the principles and values of the law have been incorporated into the codes of practice to further enhance ethical decision making.

Despite the fact social workers often find the law complicated and unsympathetic, there are many benefits for children with a right to complain, have a decision reversed or entitlement to a service they require (Roche, 2010). The law is no longer viewed as a procedural activity but an ethical one where the differences between the law and social work values have to be understood. While it is often difficult to put the underpinning values of social work into everyday practice due to conflicting values, the same can be said for the law (Roche, 2010). As Banks argues the law does not tell us what we ought to do what, just what we can do most decisions in social work involved a complex interaction of ethical, political, technical and legal issues which are all interconnected. Therefore the law like social work is often considered as contested multiple discourses (Roche, 2010). How we interpret the law is influenced by our values and ethical principles (Banks, 1995).

The European Convention of Human Rights (1953) wanted to protect peoples civil liberties after the atrocities of World War 2 (Holocaust) giving rights to include liberty, life, fair trial, freedom from torture and servitude as in C.N. and V.v France [2102] (ECHR, 2013). These principles have been encompassed into the The UN Convention on the Rights of the Child (UNCRC) proclaiming everyone under the age of 18 as a child, individuals in their own right and not the possession of their parents or the state. Children are individuals with evolving capabilities, thoughts, feelings and rights. These rights are founded on dignity and respect and based on what a child needs to survive, grow, participate and live their lives to its fullest potential (UNICEF, 2013). Children need rights as they are often voiceless and invisible and cannot make themselves heard like adults (SCIE, 2012).

These rights apply equally to everyone regardless of race, gender, language, religion, opinions, wealth or ability and therefore apply to everyone no matter who they are, or where they come from (UNICEF, 2013). Despite this a right comes from a need which enables someone to live with dignity and can be imposed but is not obligatory (SCIE, 2012). This is one of the first international legally binding documents which implement the protection of the child’s cultural, economic, political, economic, political and social rights. It outlines a child's right to protection from harm, abuse, exploitation and participation in family, cultural and social life. It goes on to set the standards for health, education, social services and the child’s legal rights (UNICEF, 2013).

The UNCRC is now incorporated into the UK legal framework within the HRA 1998 preserving social work values and maintaining ethical practice. HRA 1998 is based on the principles of dignity, fairness, equality, respect and autonomy and has now been incorporated into UK domestic law giving courts the ability to hear human rights cases. HRA 1998 distinguishes between absolute and non-absolute rights. Absolute rights, articles 3, 4 & 7 can never be interfered with unlike qualified rights which balance the rights of the individual against what is considered in the public’s best interest (Brammer, 2010). Article 3 is an absolute right which prohibits torture and inhuman and degrading treatment and is fundamental to social work duties to protect children.

In the cases of Z v United Kingdom (2001) 34 EHRR 97 and E v United Kingdom found local authorities in breach of article 3 for failure to protect children (Brammer, 2010). However only the person affected by the act (victim) can appeal to court providing the decision was made by a public body (Brayne & Carr, 2010). A public body is a non-commercial and non-political organisation which provides a service to the public. Article 6 refers to the principle of fairness and natural justice and in the case of RE O (Children); RE W-R (A Child); RE W (children) [2005] EWCA civ 759 the courts appointed a McKenzie friend to support and ensure a fair hearing in common law (Brammer, 2010). Another breach of Article 6 Re D.(A child) [2005] EWCA Civ 743, failed to consider a grandmother in care proceedings (Brammer, 2011). Failure to comply with a convention right will be a new ground for judicial review of public authorities (Brammer, 2011). In addition HRA 1989 provides a range of anti-discrimination legislation, and legal frameworks for empowerment in the relationship between service users and providers of services (SCIE, 2012).

The Welsh Assembly Government pledges their commitment to promoting the rights and welfare of their children by setting up the Children and Young People, rights to action policy which encompasses the UNCRC. The policy has 7 core aims which go beyond child protection to promoting the best possible outcomes for children through tackling poverty and placing a duty to provide for play and participation of children (WAG, 2004). This is further supported by the appointment of a children’s commissioner who will help the children to have a voice and be heard by providing opportunities for children and young people to participate in decisions that affect them, such as school councils, eco councils and healthy schools, initiatives (WAG, 2013). Including Funky Dragon the children’s own assembly group.

The Children and Young Persons Act 2008 include the introduction of local safeguarding boards, advocacy services, designated teachers (s.20) independent visitors (s.16) and independent review officers (s.10) who will all focus on promoting children’s rights and protecting their welfare specifically in cases of adoption and fostering (WAG, 2013). Although the IRO have no statutory powers and can only make recommendations they may be viewed as tokenistic. In addition it includes additional funding (s.21) and assistance (s.22) for further education for looked after children and allows for relatives to apply for special guardianship (s.38) and residence orders (s.36). However children aren’t always aware of their rights or services and often face restricted access to them due to lack of resources.

The Equality Act 2010 (EA) has exchanged all previous anti-discrimination laws with one single law in order to remove any inconsistencies. It offers seven protected characteristics to age (over 18) disability, gender reassignment, marriage civil partnership, pregnancy and maturity, race, religion or belief, sex and sexual orientation (SCIE, 2012). It also extends to the provision of goods and services. The EA 2010 differentiates the way people are discriminated against for example direct and indirect discrimination, harassment, victimisation and failure to make a reasonable adjustment for a disabled person as everyone has a right to be treated with dignity and respect (SCIE, 2012).

EA 2010 also offers protection by association for example children who have same sex parents. While equality law says that everyone should be treated equally not everyone’s needs are equal e.g. a child with a learning disability needs more care and educational support than other children (Brayne & Carr, 2010). However it can reinforce discrimination by failing to consider social differences.

While the EA 2010 considers age as over 18 children can fall into other categories such as pregnancy, race and disability. It places a duty on schools to be proactive in its inclusion of disabled children within mainstream schools including suitable adaptions, availability of information, equipment and assistance to services. Exemptions apply in the context of same sex schools or schools with a religious character (Home office, 2013).

The NSPCC found that 46% of children are bullied within school, protecting young people from bullying, harassment and other forms of discrimination is vital as it can have major effects on the child’s future development. The EA 2010 has been important in setting out legislations, policies and procedures to help address forms of bullying and harassment in all forms, be it sexual, physical or verbal. However, it is not equal treatment to provide two different people with information about services available written in English, if one person spoke another language for instance Welsh.

The Welsh Language Act 1993 (WLA) provides a framework to promote equality and parity between the Welsh and English language in Wales. The COP state that you should respect diversity and different cultures and values (CCW, 2002, 1.6). The welsh language is an essential part of Welsh culture and life therefore consideration needs to be given to a child who speaks welsh and has no opportunity to attend extra-curricular activities through the medium of welsh. Or a young person who wishes to use a Welsh-language service but the council or the phone company tells them that there is no-one available or they will have to wait for a call back the next day or later (Lewis, 2009). What impact will this have on the young person (assembly wales, 2013). As Article 30 of the UNCRC states you have a right to learn and use the language and customs of your family whether or not these are shared by the majority of the people in the country where you live (Lewis, 2009).

In 2007 there were 591,846 children in Wales who were able to speak welsh and this is proving to be on the increase therefore to become a truly bilingual Wales we have to ensure that we can provide services which are both suitable and sustainable (Home office, 2013). Currently the WLA has no powers of enforcement and is geared more towards the provider than service user with delivery and implementations varying between organisations. Although the Welsh Language (Wales) Measure 2011 seeks to address this placing duties on public bodies to protect the rights of welsh speakers.

The law is an important framework within society helping to regulate behaviour and providing an instrument to promote the welfare and rights of individuals ensuring everyone is treated with equal respect and dignity. The law is constantly evolving and changing over time and cultures, influenced by changing attitudes, improved knowledge and understanding and advancements in medicine. However the law is only one resource, open to interpretation, abstruse and not always current with many conflicting values such as care verses control or welfare verses resources.