ISW assessments abroad - competition or collaboration?

I thought it may be helpful to post this commentary in response to a sharp rise in international ISW assessment enquiries, where alleged ‘prohibitive’ requirements on the part of the country in question, can lead to significant delays and confusion amongst British children’s services professionals and indeed within UK courts. For example, a large proportion of recent ISW enquiries we have received were accompanied by this question: ‘Is the ISW registered and qualified to practice in the country they are to conduct the assessment in?’ The question is usually posed by a solicitor, whether for the local authority or one of the other parties. However, in my experience it is seldom, if ever, supported by a clear rationale as to why they may believe this might indeed be needed in such a context.

 

In the past 15 years I, and members of my organisation’s ISW team, have completed dozens of ISW assessments in Europe and around the world. The prevailing theme in those has been a sense of collaboration with the host country’s professionals, and not competition. The suggestion that an ISW might need to be ‘registered’ with a professional body in that country, or better yet ‘qualified as a social worker’ there, was almost unheard of (outside of Poland’s politically driven approach post 2017) until it has become persistent in the past several years. The reasons for this are unclear to me at this point. I should add, however, that such apparent ‘prerequisites’ seem to be coming from UK professionals and not necessarily any foreign government or entity, as far as evidence currently available to me suggests. I also think it is possible that solicitors/professionals who ask me those questions may well be misinformed or have misunderstood advice they might have been given.

 

When I discuss this with the enquiring professional, I do try to focus on two main aspects of international ISW assessments, as I see them. The first being assessment jurisdiction and the second being assessments the other country would be likely to trigger themselves, irrespective of what Britain might be doing.

 

Jurisdiction:

 

It could be argued that if the ISW was to complete a parenting or Special Guardianship Order assessment under, for example, French jurisdiction and for the use by French children’s services teams and family courts, and for the exercise to be funded by France, then the ISW would absolutely have to be at least registered to legally practice in the country as a member of a protected profession, which social work in the UK certainly is. If the assessing ISW was to complete the assessment based on the French assessment templates and criteria, then they would need to be at least trained in the procedures followed in France, if not qualified as a social worker in France. All this sounds like common sense, because it is. However, this approach should not apply to British ISW assessments of family members resident in France.

 

In my view, the argument for not requiring British social workers to be qualified in the country where the UK national is to be assessed is based on the following factors:

 

- an ISW assessment is commissioned and funded by a British entity (the local authority)

- it is completed under a British jurisdiction and based on British evidential standards and assessment templates

- it is for the sole use of British institutions and the Courts, and sanctioned by those Courts (where in proceedings)

- it cannot compel the foreign state to support the child in a way as the ISW may suggest would be optimal- it can only made recommendations based on the identified need and the ISW’s understanding of available social and legal provisions in the host country (ideally via collaboration and information exchange between the British ISW and local social workers/professionals in the country where the assessment is being undertaken)

- it is conducted on the premise that the person in question has put themselves forward for assessment and is willing to take part in the interviews and enquires that the process requires. The ISW, in effect, meets with the applicant on their explicit invitation and such individuals are free to meet with and talk to anyone they choose, without the need for prior permission from their government.

 

Internal assessment processes:

 

Even when the UK was part of the European Union, and a signatory to Brussels II bis, the participating countries’ obligations to enforce family court orders made by the courts in other member states, seemed unclear at best, and in my experience seldom enforced in practice. I am not sure if that Convention remains in any way binding for the UK now that the UK is no longer part of the EU, though I doubt this has much bearing on current international order recognition and implementation arrangements between the UK and Europe. Furthermore, any such ‘arrangements’ between the UK and the rest of the world would be likely to be even more tenuous. 

 

I understand even in the pre- Brexit era, a stand-alone order by the British court would have been inadequate for any of the countries in which my organisation has conducted ISW assessments, for the Court there to enforce it- international conventions or not! How it worked in practice, and how I believe it continues to work in most countries, is for their own professionals to complete their own assessment work; typically  for fostering/kinship placement applications and for parenting assessments, although the latter are requested less often. That ‘internal’ assessment and recommendation would in the end inform the foreign court as to the legal basis, and the support package, it should apply in the context of a child being transferred from the UK to its jurisdiction. It seems to me that that foreign court would normally regard the British order and evidence, as material supporting its own analysis and decisions, but not as a legally enforceable order.

 

But what should come first, the  British ISW assessment or one by the other country? I would argue that in the context of available court timescales in the UK, and the need for permanency for the subject child, assessment enquiries should be initiated by the British side as soon as it is needed, typically starting with the viability assessment. At the same time, the local authority should make enquiries directly with the relevant country, via their central authority and/or embassy in the UK, to request that they start on their own assessment processes and also agree to offer assistance with pending ISW enquiries in the local area, should this be deemed necessary at any stage by UK entities. This way unnecessary delays can be avoided, the other country receives a comprehensive background to the assessment request and their professionals are primed to collaborate and share information with the ISW during their visit. Ultimately, the foreign ‘assessment report’ would feed into the UK ISW assessment enquiry and help inform its outcome. 

 

I have yet to encounter a situation in which a positive assessment made by a UK ISW has to contend with a negative assessment by foreign professionals. This is because of the forensic nature of British parenting/SGO assessments and the focus on the child’s welfare and long-term needs, compared to the often-simplistic assessments by other countries, which tend to be brief and lack sufficient depth and scope of enquiry. Still, I believe British courts should make allowances for scenarios where this may be the case, and then make decisions that mitigate potentially negative outcomes for the child, should they be transferred to a country which does not agree that a placement with a family member there should occur.

 

A much more likely ‘conflict’ that may arise in the context of two assessment outcomes (by the foreign country and the UK) is that foreign professionals might recommend the child being placed with family there, whilst the ISW concludes this should not happen. Logically, in such circumstances, given the British court has jurisdiction, the foreign recommendations could only be regarded as information and not formal, somewhat binding recommendation as to the preferred outcome in the UK proceedings. In other words, even if the foreign country asks for the child to be sent there, the British court will consider its decisions based on British assessments and evidence available within British care proceedings.

 

I would argue that a request for evidence supporting advice given can help clarify any ambiguities on this matter. If the advice regarding British ISWs conducting an assessment in another country is prohibitive, then one should consider further enquiries:

 

1.                  If the source is a foreign government representative, then what is their name, position, contact details and organisation? What domestic or international law is their advice based on (including legislation dates, clear references and even copies of the text). Do they have authority to speak on these matters, on behalf of their government?

 

2.                  If the source is an NGO or UK professional, then what is their source within the other country’s government, ask for references to applicable domestic or international law underpinning the advice given, when was this advice issued and to whom (as it may be third hand)?

 

3.                  If the standard ‘the ISW must be registered and/or qualified in the other country’ statement is offered, then ask: registered with whom, where and why? Why would the ISW need to be ‘qualified’ as a social worker in that country to complete an assessment under a British jurisdiction, for British institutions and paid for by the British State?

 

In closing, I would welcome thoughts on this subject from any of my colleagues who may also have experience of undertaking or commissioning international assessments and the standing of the work undertaken by UK qualified social workers. 

Author: Arthur Gajewski September 2024

 

alex brenan