Lucy Reed examines the lawfulness of social workers using Facebook and employing other techniques to gather evidence in child protection cases.
I've had this post on my 'to do list' for some time, but have finally been nudged into action by coverage last week of some research on the topic in The Times: Social workers ‘spying’ on families through Facebook (sorry, paywall).
That says that "Social workers are risking breaking the law because they are using Facebook to spy on families and inform decisions on child custody, academics say."
This is not news to those of us who act for parents or social workers in these cases (in fact they say custody cases but it is clear they are really talking about cases where social workers are involved for child protection reasons, so this would more often arise in care proceedings than disputes between parents). I have been worried about the lawfulness of what social workers are doing for some time, and the low levels of awareness of the potential legal issues - hence my plan to write this post.
What The Times say is that the study they are referring to found '“surveillance” of Facebook accounts was common. Social workers used fake profiles to “friend” parents in cases where their posts were not publicly viewable. They watched parents’ relationships and behaviour, looking out for factors such as abusive partners or drug use.
Oddly, I've been able to find no trace of this study and it has been suggested that what is being referred to is some sort of leaked draft. No matter, the point is that it chimes with my own experience. Social workers do this stuff because it is a very effective way of seeing whether parents are walking the walk as well as talking the talk. You'd be surprised how often parents will insist that their lifestyle is all Little House on the Prairie, but their Facebook feed suggests it is rather more Kardashian (I don't really know who the Kardashians are but I believe they have big bottoms and very exciting lifestyles). And of course parents/ex partners harvest and produce this stuff too when warring over children or divorce.
Many would say that if it's on a public Facebook page it is fair game, and if it shows a child is at risk it should be admitted in evidence (and can you just stop complicating things please, Reed?). Those are reasonable perspectives. But just because something is a good idea or is a means to an end, doesn't mean its lawful. And where it is the state gathering and using this material there is a pretty good chance that it isn't lawful at all (parents need not panic this applies to situations where social workers are looking at and gathering data about private individuals).
So. The law. Do you have a caffeinated drink and a stress ball handy? Then I'll begin. What follows is merely a sketch, not a comprehensive guide.
- Social workers are employed by local authorities. As such, when they are carrying out their job they are acting as agents for a public authority. The Regulation of Investigatory Powers Act 2000 regulates surveillance of private individuals (you and me) by public authorities (NB same probably also applies to CAFCASS guardians and reporting officers).
- The 2000 Act regulates this activity not by saying what is unlawful, but by providing a route to give authorisation for specific types of covert surveillance - it's a piece of shield legislation. That is to say that if a public authority sticks to the requirements of the Act it is protected against claims under the Human Rights Act. If it doesn't, it's fair game and may find itself liable under various bits of law (tort, criminal, human rights, privacy etc etc). Unless of course some other law specifically authorises the activity.
- Surveillance 'includes monitoring, observing or listening to persons, their movements, conversations or other activities and communications.'
- It's 'covert' if it is carried out in 'a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place'.
- RIPA divides covert surveillance into 'directed' or 'intrusive' surveillance. In short intrusive is surveillance of people's homes and cars. Directed surveillance is surveillance that doesn't qualify as 'intrusive', but is conducted for the purposes of a specific investigation and likely to result in the obtaining of private information about any person.
With me so far? Take a slug of coffee. Continue...
We can see from the above that lots of things that social workers routinely do might amount to directed or intrusive surveillance. Here are some examples that I bet every care lawyer has seen at least once:
- social worker sitting in their car around the corner from a family home waiting to see if the violent ex turns back up and is let in, or if his car is still there in the morning, or routinely arriving a few minutes early to see if they can catch them out.
- social worker on unannounced visit when family are out peering in the window and recording the carnage they see inside - or peering over the gate to see if that mouldy mattress or bags of rubbish are still in the garden.
- social worker arriving for a visit and listening from outside before ringing the bell
- social worker who sees Mr X and Mrs Y with the children in a car together and decides to follow them to see where they are going
- social worker checking the Facebook profile of the parents in a case to see what they are up to (relationship status, when they are out socialising, who they are friends with), making a note of these things or screenshotting etc.
This is where most people are going 'Holy sh*t'. That IS covert surveillance. And there is some LAW about it.
Alright, but a public Facebook profile isn't private so it's fine. Right? Nuh uh.
3.4 Whilst a person may have a reduced expectation of privacy when in a public place, covert surveillance of that person’s activities in public may still result in the obtaining of private information. This is likely to be the case where that person has a reasonable expectation of privacy even though acting in public and where a record is being made by a public authority of that person’s activities for future consideration or analysis. Surveillance of publicly accessible areas of the internet should be treated in a similar way, recognising that there may be an expectation of privacy over information which is on the internet, particularly where accessing information on social media websites...
3.5 Private life considerations are particularly likely to arise if several records are to be analysed together in order to establish, for example, a pattern of behaviour, or if one or more pieces of information (whether or not available in the public domain) are covertly (or in some cases overtly) obtained for the purpose of making a permanent record about a person or for subsequent data processing to generate further information. In such circumstances, the totality of information gleaned may constitute private information even if individual records do not. Where such conduct includes covert surveillance, a directed surveillance authorisation may be considered appropriate.
3.10 The growth of the internet, and the extent of the information that is now available online, presents new opportunities for public authorities to view or gather information which may assist them in preventing or detecting crime or carrying out other statutory functions, as well as in understanding and engaging with the public they serve. It is important that public authorities are able to make full and lawful use of this information for their statutory purposes. Much of it can be accessed without the need for RIPA authorisation; use of the internet prior to an investigation should not normally engage privacy considerations. But if the study of an individual’s online presence becomes persistent, or where material obtained from any check is to be extracted and recorded and may engage privacy considerations, RIPA authorisations may need to be considered.
Right, so taking a quick look once on the off chance might be ok - but checking back multiple times and joining the dots. Not so much. Here's the example that they give in the guidance and you can easily translate it onto social workers hanging around a family home:
Example: Officers of a local authority wish to drive past a café for the purposes of obtaining a photograph of the exterior. Reconnaissance of this nature is not likely to require a directed surveillance authorisation as no private information about any person is likely to be obtained or recorded. However, if the authority wished to conduct a similar exercise, for example to establish a pattern of occupancy of the premises by any person, the accumulation of information is likely to result in the obtaining of private information about that person and a directed surveillance authorisation should be considered.
And if you were thinking that it's probably fine where someone hasn't bothered to put any privacy settings on their social media account, think again :
3.13 depending on the nature of the online platform, there may be a reduced expectation of privacy where information relating to a person or group of people is made openly available within the public domain, however in some circumstances privacy implications still apply. This is because the intention when making such information available was not for it to be used for a covert purpose such as investigative activity. This is regardless of whether a user of a website or social media platform has sought to protect such information by restricting its access by activating privacy settings....
See these examples at 3.15, which again have obvious parallels for social workers tasked with gathering evidence to support their assertions about disguised compliance or ongoing relationships etc for the purposes of care proceedings:
Example 1: A police officer undertakes a simple internet search on a name, address or telephone number to find out whether a subject of interest has an online presence. This is unlikely to need an authorisation. However, if having found an individual’s social media profile or identity, it is decided to monitor it or extract information from it for retention in a record because it is relevant to an investigation or operation, authorisation should then be considered.
Example 2: A customs officer makes an initial examination of an individual’s online profile to establish whether they are of relevance to an investigation. This is unlikely to need an authorisation. However, if during that visit it is intended to extract and record information to establish a profile including information such as identity, pattern of life, habits, intentions or associations, it may be advisable to have in place an authorisation even for that single visit. (As set out in the following paragraph, the purpose of the visit may be relevant as to whether an authorisation should be sought.)
So, how many social workers who think it is just part of the job to 'keep an eye' on families who are suspected of disguised compliance, who think it is all part of their social work toolkit of 'respectful skepticism', have got a RIPA authorisation for this stuff? How many of their lawyers even knew this was a thing? Gulp... (I'm not being a clever arse here, I too was pretty clueless about this until I had to look it up one time.)
I think the position may be different if there is a clear written agreement in place which says that visits may be made that will be announced and unannounced, because in that scenario the expectations of privacy are somewhat different and the surveillance is not covert. 3.12 confirms that:
where a public authority has taken reasonable steps to inform the public or particular individuals that the surveillance is or may be taking place, the activity may be regarded as overt and a directed surveillance authorisation will not normally be available.
It is important therefore that thought is given to this, and that sufficient attention is paid to the drafting and logging of such agreements. Written agreements or even just writing to a parent to tell them this is how you work are likely to remove much of the risk in this area.
A further thing to think about is interaction via Facebook without being up front about who you are. In my direct experience social workers seem to know that pretending you are someone else in order to extract information is not ok, but I am a member of a number of parents groups on Facebook where this is a real worry and parents are very careful to vet who is allowed access to the groups (I'm open about who I am on these groups btw!). The Times example gives a quote apparently from the research study, from a social worker apparently bragging to a colleague about her fake Facebook profile set up for the sole purpose of 'stalking' parents. Yikes. The guidance says:
3.11 Where a person acting on behalf of a public authority is intending to engage with others online without disclosing his or her identity, a Covert Human Intelligence Sources authorisation may be needed.
Sneaking into a private Facebook group under a pseudonym is a definite no no.
And for members of the independent bar who think it is ok for them to have a quick squint and report back to their local authority clients - that's also a no (which should come as no surprise frankly):
3.17 Internet searches carried out by a third party on behalf of a public authority, or with the use of a search tool, may still require a directed surveillance authorisation...
4.32 a surveillance authorisation should also be considered where the public authority is aware that a third party (that is not a public authority) is independently conducting surveillance and the public authority intends to make use of any suitable material obtained by the third party for the purposes of a specific investigation being undertaken by that public authority.
OK chaps, we're gonna need some authorisations...
Firstly, it's gotta be necessary and proportionate. This involves balancing the seriousness of the intrusion into privacy against the need for the operation. Is it REALLY necessary and proportionate?? Can you get this information another way? (If you can get it by being up front through a notification or written agreement I'd say not). Also see 4.10:
When completing an application for a warrant or authorisation, the public authority must ensure that the case for the warrant or authorisation is presented in the application in a fair and balanced way. In particular, all reasonable efforts should be made to take into account information which weakens the case for the warrant or authorisation.
Since 2012 there are heavy restrictions on what authorisations local authorities are allowed to grant/apply for (as far as I understand it they are only permitted to authorise directed surveillance where it is for the purpose of preventing or detecting crime or of preventing disorder, and even then only in relation to certain specified types of crime), which is not going to apply for much of what we are looking at. Any authorisation is likely to need judicial approval (from a JP), and it needs to be in place BEFORE you start snooping (see 4.42). I confess that I have lost the will to live with trying to spell this bit out since Lexis is down for maintenance and I'd need to cross reference two acts and various iterations of the applicable regs to work it all out.
So I'd suggest this. Think hard. Think long and hard about this stuff before cracking on without an authorisation or before applying for one. It's tempting, but it's not always going to be justifiable - or frankly, worth the effort and risk. And find out who the person is in your organisation is that is responsible for this stuff. And get them to provide some training!
Whilst I've referred here to the Home Office Guidance rather than the Act directly, you can see that this is a veritable minefield which many are happily skipping through as if it were a summer meadow.
There are other examples in family law where everyone has been operating under the collective delusion that because we do this stuff it must be lawful. Take the case of Tchenguiz & Ors v Imerman (Rev 4)  EWCA Civ 908 where the Court of Appeal said there was no special rule in the Family Court that sanctioned otherwise unlawful conduct (that case was about a wife taking private documents from a husband to demonstrate his dishonesty about his financial position on divorce, which had previously been thought to be permissible in certain circumstances). See also Prest v Petrodel Resources  2 AC 415 in which Lord Sumption issued a reminder that "courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different" (See speech of Lord Sumption here and my blog post about it at the time).
Those cases are a reminder that we can't just apply the magic hand wave of family court specialness or mutter something about 'child protection' or 'the best interests of the child' and pretend we haven't noticed. Social workers need advice and support on this and their lawyers should be ready to deliver it. Whilst unlawfulness is not itself a bar to evidence being admitted into family proceedings and relied upon (see here), this will not protect a local authority from privacy / human rights / data protection actions brought by parents.
This is a tricky area. Sometimes this evidence is dynamite and it can be the difference between a child being protected from collusion and concealed risk/harm and a case failing. It might sometimes be the only way of showing that a suspicion is founded in reality - but in reality I doubt that is often so, and in any event our courts quite rightly work on the basis of fairness, and evidence rather than suspicion. What's more it does the social work profession no favours to be seen as going about this with complete disregard for the law and the privacy of families. If you stop and think about it, it is actually oppressive and disrespectful and an abuse of power, and can only further damage the ability of social workers to gain an understanding of the strengths and weaknesses of families, and to assess their honesty through a mutually trusting professional relationship.
Conclusion : Must do better (All of us).