Study summarised:

In their own words: Kisthardt, M. (2006-2007). Working in the Best Interest of Children: Facilitating the Collaboration of Lawyers and Social Workers in Abuse and Neglect Cases. Rutgers Law Record, 30, 1-77

Link to study: Source

The summary:

This reflective article was written more than a decade ago by a social work and legal professional. Although based on the child protection and legal system of the United States of America, we can learn valuable lessons for our South African context.

  • The authors argue that working in the best interest of children in abuse and neglect cases is a daunting task for both lawyers and social workers.
  • However, they acknowledge that although collaboration between these two it is widely recognized that it does not come easy.
  • Social workers are sometimes frustrated because they misunderstand the ethical code of attorneys.
  • Two conflicting ethical perspectives between social work and the legal profession that may hamper interdisciplinary collaboration in child protection cases are highlighted below followed by practice considerations.

Reflections on the conflicting ethical perspectives between social work and legal professions
Who is the client?

  • One of the most fundamental differences between the social work and legal professional is in how they view the 'client', child or family.
  • Attorneys are usually pretty clear about the identity of their client, usually a single person, e.g. mom or dad or child. Lawyers have an obligation to advance their client's interests. As long as those interests are within the limits of the law.
  • On the other hand, the social workers Code of Ethics provides that while their primary responsibility is to promote the wellbeing of the client, a social worker's responsibility to the larger society may supersede the loyalty owed to clients.
  • Social workers on the other hand view a child abuse and neglect case from a systems perspective and subsequently will often identify the 'client' as the 'family'. Furthermore, they understand that the problem is not with an identified 'client' but with the family as a system that may include individuals with clearly conflicting legal positions.
  • The law's emphasis on individual rights and responsibilities is inherently inconsistent with the social worker's family systems worldview. The law's devotion to single-minded advocacy for the client stands in stark contrast to the social worker's holistic view of acting in the best interests of the client broadly defined.
  • The best interest of parents may not be congruent with the best interests of children, yet the social worker has a professional and ethical responsibility to parents as well as children.
  • Trained to use moral sense as well as to consider the need of all parties, the social worker can view legal advocacy of lawyers as unethical and unacceptable. The attorney's narrow focus violates social work principles and offends the worker's moral concern for the child's well-being.

Confidentiality vs privilege

  • Another significant difference in ethical perspectives is the treatment of confidentiality.
  • Attorneys are restrained by ethical rules of attorney-client privilege that require the protection of confidentiality in a context where the presiding officer needs information to ascertain the best interests of the child.
  • A social worker's ethical duty is to gather and share the broadest range of facts to promote a stable, healthy family.
  • Privilege mean that some information may come to the attention of the attorney, but not to the attention of the social worker regardless of how relevant the information is to the appropriate outcome of the case.
  • Although both lawyers and social workers are called upon by their professional codes to keep their client information confidential, the exceptions to those confidentiality rules differ greatly.
  • Attorneys are only allowed to keep all information privilege and disclosure is discretionary, not mandatory.
  • Social workers, however, are allowed to disclose confidential information for certain reasons (for example if it is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person),
  • Social workers are also often mandated by law to disclose otherwise confidential information in certain situations for example in the case of child abuse and neglect.

Practice considerations

  • Social work and legal professionals both a very important role in the child protection field.
  • Legal professionals do not have the same goal and work ethics as social workers due to the inherently different nature of their profession.
  • As such, social workers need to take cognisance of the difference in an ethical approach to who the lawyer’s client is, and steer away from disrespecting the lawyer as a colleague and a professional on the basis of alleged unethical behaviour.
  • However, lawyers also need to acknowledge and appreciate the effects of social workers’ advocacy on the family system, the uniqueness of the goal and purpose of social work and ethical principles that underpin the profession.
  • Furthermore, social workers should steer away from engaging in power struggles with attorney colleagues. Instead treat them with respect, irrespectively if the approach is reciprocal, so as to honour the Social work ethical code.
  • Also, acknowledge that attorneys are there to do a job according to the goal and purpose of his/her profession, based on their ethical principles.
  • Ensure that you as social worker stay within the parameters of the social work ethical code and purpose of social work. Acknowledge that the legal arena is not our playing field – we are there as guests and should adhere to rule and codes prescribed by the legal profession– and do our best to leave a professional footprint when we leave the legal arena
  • A professional footprint may include professional behaviour (e.g. respectful and maintain emotional regulation), professionally written reports (e.g. reflect objective and thorough investigation, and an investigation of multiple hypotheses), and an overall positive outlook and demonstration that you care for the wellbeing of others.