The last two decades have seen increased political, legal and moral debate about the rights and needs of children worldwide. While the issues are complex, and absolute agreement remains elusive, a consensus may have begun to emerge in the shape of the United Nations (UN) Convention on the Rights of the Child. Representing the first detailed international treaty providing minimum standards for children, by 1995 the Convention had been ratified by 175 countries. Article 12 of the Convention affirms the principle that children should have a greater say over matters affecting them and their lives. The Convention also stresses the importance of families, extended families and communities in children's lives (Article 5) and parents’ duty to exercise their influence and powers over children responsibly and in the child's best interests. Precisely how these standards are best achieved remains contentious, however.

Balancing the different, and sometimes conflicting, rights and responsibilities of children, their families and the State has been an enduring problem for childcare policy and practice and was a central concern of the 1989 Children Act (England and Wales). The ambition of the Act was that these respective rights and responsibilities would be balanced by a more inclusive and collaborative approach to families, although still ultimately secured though social work agency procedures and the courts. While the Act anticipated that its philosophy of inclusion would be implemented through working in partnership with families and their communities, in practice this partnership has been hard to achieve. The growing interest in family group conferences (FGCs) as a model for partnership may reflect a continued frustration at the inability to work collaboratively and to manage in practice the tension between the role of the family and that of the State in the care of children.

This book is about the FGC approach to decision making in child welfare. Developed originally in New Zealand in work with Maori and Pacific Islanders, the approach attempts to build on family and community strengths in planning for the care and protection of children.

Perhaps the most striking feature of the academic literature about immigration and asylum in Britain is the high moral tone it adopts towards the policies of successive governments. One of the first sociological accounts about the determination and appeals process was Slamming the door by Moore and Wallace (1975), which was written at a time when most people in the country, and all the main political parties favoured immigration controls. Moore and Wallace had no illusions that their findings – mainly case studies, based on interviews with Asians who had experienced ill-treatment at the hands of the immigration service and Entry Clearance Officers – would lead to any change in public opinion. Instead, they wanted their book to ‘bear witness’ to the experience of migrants excluded from Britain, and divided families, so that future, more enlightened, generations could know what had taken place in their name.

Academics today, both in Britain and internationally, continue to write despairingly about what they view as the wickedness of controls. One recent book review concludes with a plea for readers to listen to those who are putting forward recommendations for change:

The editor of a journal that publishes ‘progressive’ or ‘critical’ research in discourse analysis invites contributions about this topic with a similar plea for academics to search their consciences:

Introduction

As the above quotation indicates, one of the explicit aims of the legislation behind the New Zealand family group conference (FGC) is the ‘empowerment’ of families within the childcare decision-making process. Not only is it believed that the FGC approach will empower family members by affording them greater control over decisions about the care and protection of their children, but it is also assumed that the particular way in which such decisions are made within the FGC approach will, in itself, empower those who take part:

In this way the FGC approach can be seen to fit snugly with the growing preoccupation of UK social policy discourse over the 1990s with citizen-consumer involvement in public service development and provision. Described variously as “… the buzz word of the 1980s” (Adams, 1990, p 42) or the “theme for the 1990s” (Clarke and Stewart, 1992, p 18), the idea of ‘user empowerment’ rapidly achieved political prominence over these years, securing official approval in the guidance to the National Health Service and Community Care legislation: “the rationale for this reorganisation is the empowerment of users and carers” (DoH/SSI, 1991, p 7). The popularity of the idea of empowerment in large part resulted from its attractiveness to political groups of the Left and Right alike. In the context of social welfare, for example, it played a central role in the language of user groups pressing for more control over State services but was also a key theme in the literature of New Right theorists, concerned with freeing the individual from unnecessary interference by, or dependence upon, those services.

There is already a rich sociological literature that provides different ways of understanding immigration control, and can help us appreciate debates about this issue in social and political life. My objective in this chapter is to provide a selective review of the main approaches being pursued by British sociologists, but also to put forward a case for the interpretive approach adopted in the rest of this book.

The structure of the chapter will be as follows. I will begin with a short historical summary of immigration control in Britain, which is necessary to provide some context for the arguments of different sociologists. I will then review some of the main theoretical perspectives on immigration in the sociology of racial and ethnic relations, concentrating on the traditions of neo-Marxism and poststructuralism that currently dominate research and theorising in this field. In the second half of the chapter, I will identify a problem in this literature: the gap between the perspective of theorists and our everyday experience of the world. I will suggest that Robin Cohen’s (1994) study of British policy towards asylum-seekers bridges this gap, through its focus on the actions and perspectives of government officials, pressure groups and politicians. This study takes this interpretive approach a step further by examining a range of institutional and practical perspectives in the immigration courts.

A short history of immigration control in Britain

Britain has experienced three waves of mass immigration in recent history. During the middle of the 19th century, the potato famine caused large numbers of Irish immigrants to come to Britain. The Censuses of 1841 and 1861 indicate an increase in those of Irish origin from 415,000 to almost 750,000. Towards the end of the century, political persecution, and later famine, and war, resulted in about 300,000 Russian Jews settling in Britain between the period 1870 and 1914 (Pollins, 1989), and they were joined by a smaller number of Jewish refugees from Germany prior to the Second World War. In the post-war period, Britain has experienced what one writer calls “nothing less than a rapid and quite unprecedented demographic and cultural transformation” (Spencer, 1997). Large numbers of citizens from Britain’s ex-colonies in the Caribbean, the Indian subcontinent and Africa came seeking economic opportunities in the 1950s and 1960s, and have since brought over dependants, and raised families.

This book is about the family group conference (FGC) approach to decision making in child welfare and protection. One of the central aims of FGCs is to empower children and their families via a process which enables their effective participation in decision making and by outcomes over which they have more control. Given growing international interest in FGCs, it is important that their development is underpinned by good quality research. The central aim of the book is to assess critically the available evidence on the empowerment potential of the FGC approach.

However, empowerment is an extremely slippery concept. Because of its appeal across the political spectrum, it is particularly important to be clear about the specific expectations and assumptions by which empowerment initiatives are underpinned. This book is therefore also more broadly about the meaning of empowerment in the contemporary child welfare context. In the face of the general clamour for ‘evidence-based practice’ it addresses the difficult question of how empowerment can be operationalised and its achievement assessed.

Introduction

Most of the decisions about the care and protection of children take place, most of the time, in their own families. However, in spite (or perhaps because) of this fact, the history of family involvement in such decisions in the context of social services is one of restricted participation. While the concepts ‘partnership’ and ‘empowerment’ have increasingly occupied the language of child welfare social work, they have rarely led to tangible policies/practices that are experienced as ‘empowering’ by the children and families involved. Despite the rhetoric, when things are seen to have gone seriously wrong in families, the remedies are perceived to lie in the hands of the professionals. As late as the 1980s, the National Society for the Prevention of Cruelty to Children (NSPCC) opposed the full participation of children and parents in child protection conferences on the grounds that it would subvert the professionals’ ability to problem solve expediently (Dale et al, 1986) and the Department of Health remained clear in its early draft of inter-agency arrangements for child protection, Working together, that there was no place for parents, let alone children, at child protection conferences (Horne, 1990).

Then the crisis in Cleveland erupted and the Report of the subsequent Inquiry raised concerns about social workers paying too little attention to the views and rights of the parents involved (Secretary of State for Social Services, 1988) and objectifying the roles of ‘abused’, abuser’, ‘abusing family’ and so on. It was felt that, in responding to the concerns about abuse, professionals were in danger of losing sight of the real needs of the children they were trying to help. Children should be seen as people in their own right, not as an “object of concern” (Secretary of State for Social Services, 1988, p 245). While acknowledging the potential tension between the rights of parents and those of their children, the Report emphasised the right of both to be consulted and informed and the importance of recognising family strengths as well as weaknesses.

Although many academic studies have been concerned with the interaction of lawyers, witnesses and judges in the courtroom, there have been few attempts to examine the routine administrative work which takes place behind-the-scenes in maintaining any court-system. In this chapter, I want to examine the immigration courts mainly from the perspective of civil servants in the Home Office and Lord Chancellor’s Department during the period 1996-97, and look at the effect of changes made during this period on other organisations in the court-system. I will also be discussing the 1999 Immigration and Asylum Bill, which will have received its third reading in Parliament by the time this book is published.

I will begin by providing a general introduction to the perspective of the civil service in this area of government policy. I will then provide an account of some of the administrative work involved in making the 1996 Asylum and Immigration Act, and the new procedural rules that came into effect in September of that year. I will also examine the effect of these, and other changes that were taking place, on the work of managers and practitioners in the Immigration Advisory Service (IAS), a unit of Home Office Presenting Officers, and the Immigration Appellate Authority. I will then discuss developments after 1997, including the changes that will result from the 1999 Act, and conclude by considering the practical alternatives open to policy makers in managing the immigration courts.

The civil service perspective

When the immigration courts were set up by the 1969 Immigration (Appeals) Act, they were initially made the responsibility of the Immigration and Nationality Department in the Home Office. It has the task of making and implementing British policy on immigration and asylum, under the direction of ministers appointed through the political process.

During the 1970s, the Home Office was responsible for all aspects of the appeals process, as well as the initial work of making decisions on applications. It was directly responsible for training and managing the Presenting Officers who represented the government at appeals hearings. It also funded, and exercised ultimate administrative authority over both the United Kingdom Immigration Advisory Service (UKIAS), which provided free advice and assistance to appellants, and the Immigration Appellate Authority which ran the courts.

Introduction

Following their development in New Zealand, international interest in family group conferences has grown rapidly. Although retaining some common core components, the precise shape and nature of the FGC approach has varied as it has been transplanted into different national jurisdictions. There are also interesting international and intranational variations in terms of the extent to which and ways in which the FGC approach has been evaluated. While it cannot pretend to be exhaustive, this chapter provides a brief overview of some of the major international developments in the FGC approach, describing their main similarities and differences. It goes on to examine the key findings of the available research on the operation of FGCs and highlights the central issues and debates emerging from this research. While the overview of the development of the approach indicates the range of social problems and issues with which FGCs are being used, the examination of the messages from existing research focuses predominantly on its operation in the child welfare context.

The international development of the FGC approach

Some of the earliest developments outside New Zealand occurred in the United States where initiatives similar to the FGC model developed in a number of different parts of the country. What is referred to as the family group decision-making approach (FGDM) has been in use since the early 1990s in child welfare work (Graber et al, 1996) and is being practised in around 10 states at the time of writing, although typically as pilot projects (Merkel-Holguin et al, 1997; Merkel-Holguin, 1996, 1998). While there are a number of different variants of FGDM, including the New Zealand FGC model itself, one of the most prevalent is the ‘family unity meeting’ – developed in Oregon around the same time as the FGCs in New Zealand and subsequently incorporating elements of the latter. This differs from the FGC insofar as the facilitator remains throughout the meeting (Graber et al, 1996) and there is no private planning time for families. Moreover, the underlying assumptions are very different.

Introduction

As we have seen, the proponents of the FGC model claim that it provides a much better basis than traditional meetings for embodying the spirit of partnership between professionals and families implicit in the 1989 Children Act. In comparison with traditional approaches, the FGC process, it is argued, is more enabling of family participation and serves to increase the involvement of families in the decision-making process, providing a means for their greater empowerment (Wilcox et al, 1991; Jackson, 1993; Ryburn and Atherton, 1996; Morris and Tunnard, 1996). As Jackson emphasises, however, it is important to be explicit about what is meant by ‘empowerment’ here. In the child welfare context it is clearly impossible for there to be a wholesale transfer of power and control to the families involved. Rather, the basis for empowerment is seen to derive from an approach which attempts to work with the strengths of family groups, instead of focusing on their weakness and seeks to enable them to take greater responsibility for the decisions made about their children.

As we have indicated, however, empowerment is a very slippery concept to define and measure. In the specific case of the FGC it is clear that there are at least two central (although related) dimensions to family empowerment: that which derives from participation in the process itself (empowerment via participation), from the experience of being able to make decisions and have those decisions respected by professionals; and that which comes from the impact or outcome of those decisions, from being able to act upon the world to alter it for the better (empowerment via change). The two dimensions are of course closely related: the empowering effect of a successful outcome will in part derive from the family's collective view of the extent to which it determined the content of the plan and, no matter how participatory the process, its potential for empowerment will be limited if the plans made by the families are ultimately unsuccessful.

The immigration courts are part of a larger administrative and judicial process that starts in the Home Office and is sometimes only concluded by an appeal to the House of Lords. This whole system has been subject to a great deal of criticism in recent years, and a number of changes will be made by the 1999 Immigration and Asylum Act. Some proposals have been quite radical: one consultation paper circulating in 1998 suggested that the whole second tier of the court-system could be abolished! Chapters Six and Seven examine how civil servants, politicians and pressure groups have understood the courts as an administrative problem. This chapter gives an overview of how the system worked while I was observing hearings in 1996. It summarises the main stages of decision making, and introduces the occupational groups working in the courts.

Four stages of decision making

Anyone seeking to enter the United Kingdom as an immigrant must apply for Entry Clearance from the British government. Similarly, anyone seeking asylum must apply for recognition as a Convention refugee. These decisions are made by civil servants working for the Home Office, but applicants have a right of appeal to the system of administrative tribunals, which I have been calling the British Immigration Courts.

There are four principal stages of decision making: the initial decision by the Home Office; a review by an adjudicator; a review by ‘The Tribunal’, the second tier of the immigration court-system; and a further review by the higher courts.

The Immigration and Nationality Department

Immigration control is the responsibility of the Immigration and Nationality Department (IND), a sub-division of the Home Office, based at Lunar House in Croydon. Decisions on marriage appeals, which I will be describing in the next chapter, are made by Entry Clearance Officers who work in British embassies and consulates abroad. Unsuccessful applicants are sent a two- or three-page ‘Explanatory Statement’ setting out the reasons why they are being refused leave to enter Britain. Decisions on asylum applications are made by case-officers working in Croydon. Unsuccessful applicants receive a statement in the form of a ‘letter of refusal’ from the Secretary of State.

This chapter describes the methodological problems I encountered in studying four groups of people who have a practical interest in the immigration courts: legal practitioners; civil servants; politicians; and appellants. Each of these groups has a public face, so it is possible to learn a great deal about legal proceedings, or appellants, from sitting at the back of courtrooms; about the work of civil servants from the annual reports of government departments; and about immigration as a political issue through attending public meetings or watching debates in parliament. They can also, however, be understood as private social worlds, whose members have a distinctive viewpoint on the appeals process, which is not immediately available to outsiders.

Understanding the private world of the courtroom

There is a large sociological literature about the courtroom, which can be explained by the fact that courts offer a rich source of publicly-available data about most aspects of society. In America, and some European countries, researchers can usually obtain permission to make audio- or video-recordings of courtroom hearings, and important cases, such as the Kennedy Smith rape trial, and the O.J. Simpson murder trial, are publicly available on television. In Britain, it is not normally possible to make audio-or video-recordings of criminal or civil hearings, but anyone can sit at the back of a courtroom and take a full set of notes.

The immigration courts as a public institution

There are immigration courts in a number of cities in Britain, and anyone is entitled to observe appeal hearings. The first court I visited was in Manchester. This is situated on the third floor of an office block in the city centre, which is also used by the Department of Health and Social Security. The hearing rooms in this building have been converted from offices. Tables have been arranged to form a courtroom in which the representatives for the appellant and the Home Office (in court slang, ‘HOPOs’) sit on opposite sides of the room facing the adjudicator. Appellants give their evidence between the two representatives, often accompanied by an interpreter (see Figure 2.1).

I also spent a few days at the hearing centre at Wood Green, a setting already known to sociologists from Paul Rock’s (1993) ethnographic study of the same building when it was a crown court (which is now based in the impressive palais de justice next door).

Immigration has not simply been an administrative problem for the civil service: it has also featured regularly as an issue which has raised passions, and generated debate, in national political life. In this chapter, I will look at the history of this issue in post-war British politics, drawing upon the accounts supplied by Saggar (1992) and Layton-Henry (1984), and discuss the work of politicians, pressure groups and campaigners. I will also examine the content of political debate in Parliament during the passage of the 1996 Asylum and Immigration Act, and review the proposals that have been put forward to change British immigration policy in recent years.

The history of immigration as a political issue

Immigration became an important issue in post-war British politics in the 1950s, when pressure began to build up on the Conservative Party to retreat from its commitment to open borders in the newly formed Commonwealth. This was led by a small group of maverick backbench MPs, including Cyril Osborne who introduced a Private Member’s Bill into the House of Commons advocating immigration controls in February 1961. The 1962 Commonwealth Immigrants Act was partly the result of Conservative ministers bowing to irresistible political pressure from their own grass roots.

The Labour Party leadership also changed its policy towards controls following the 1964 General Election, when Patrick Gordon-Walker, the Shadow Foreign Secretary, lost his seat to Peter Griffiths who fought a campaign against Labour’s ‘softness’ on the immigration issue. This shift in policy resulted in the 1968 Commonwealth Immigrants Act, and cross-Party agreement on the need for stricter immigration controls. As Saggar observes:

Despite this consensus, immigration continued to pose a problem for both political parties during the 1970s. One reason why the Labour Party lost the election in 1970 may have been that it was still perceived as being ‘weak’ on immigration control, at a time when public concern was continuing to rise.

Introduction

Chapter Six has established that the FGC process generally appears very enabling of family participation and represents, potentially at least, a means for greater partnership between the family members and the professionals. Effective participation in the process of decision making, however, is only one of the preconditions of user empowerment. No matter how potentially enabling the process, and accepting that this may itself be viewed as an “immediate output” (Hudson et al, 1996, p 15), the FGC will not serve to empower family members if the plans they make are not ultimately successful. While the experience of being involved may be empowering in itself, the quality or longevity of that empowerment will be impaired if those involved perceive that little has changed as a result and/or that their decisions have been undermined or ignored. Worse, such an experience may actively ‘disempower’ participants, reinforcing their perception of the limited extent of their control over events. Failure to protect a child or enhance his/her welfare may not only be profoundly disempowering for that child (or worse) but also for those who may feel that they have failed (possibly again) in their role as parents. Fear of plan failure was one of the main concerns expressed by the family members interviewed in one of the pilot studies (Lupton et al, 1995).

This chapter examines the available UK evidence on the outcomes of FGCs, again in the context of the key issues raised by the international literature. It begins by setting out the central objectives of the FGC approach using the framework devised by Hudson et al (1996) of a progression from ‘immediate outputs’ to ‘ultimate outcomes’. The extent to which and ways in which these objectives can be seen to have been achieved is then examined and attempt is made to answer the central question of whether they, individually or in combination, appear to provide for the empowerment of those involved. Throughout the discussion, the nature of the existing research evidence on outcomes is described and the areas where additional research is needed are highlighted.

Evaluating outcomes

As we have argued in the previous chapter, the identification and evaluation of ‘outcomes’ in social life is notoriously difficult, not least in terms of establishing causality in the face of human agency.

My aim in this chapter is to examine the work involved in representing appellants, and deciding appeals concerned with the primary purpose rule, which became part of British immigration law in the early 1980s, and was abolished by the Labour government that won power in May 1997. Even when it existed, some legal textbooks described this rule as a “sordid episode in immigration history” (Bevan, 1986), or as “this cruel rule” (Sachdeva, 1993), and expressed the hope that it would quickly be repealed. Now this has actually happened, this chapter is of only historical interest, although I can perhaps provide a more dispassionate account of the legal work involved in deciding particular appeals than would have been possible when the rule was a live political issue in the 1980s.

I begin the chapter by providing a short history of the rule, and then describe some aspects of the legal and evidential issues in six appeals, drawing upon my record of the hearings, and the determinations. I then discuss some factors taken into account by adjudicators in their decision making, drawing upon these case studies.

The history of the rule

The primary purpose rule can be understood as a successful attempt by successive governments to restrict or delay secondary immigration to the United Kingdom through marriage, following the end of most primary immigration after the 1962 Commonwealth Immigrants Act. It has particularly affected, and been directed against, further immigration from Asia, although white men have also experienced problems in marrying women from Third World countries such as the Philippines.

A detailed history of the rule can be found in Sachdeva (1993), which is especially useful in explaining how restrictions on immigration through marriage were revised, or in his words, “fine-tuned”, a number of times during the 1970s and 1980s in response to changing political pressures and circumstances (see also Dummett and Nicol, 1990). I will now provide a short summary of this history to provide some context to how the rule was being used in the last year of its existence in 1996.

Restrictions on marriage in the 1960s

There were no attempts to restrict immigration through marriage while Britain was still admitting primary immigrants during the 1960s. However, after 1968 commentators began to suggest that men from the Indian subcontinent, who were refused entry under the Commonwealth Immigration Act, were using marriage as a means of circumventing immigration controls.

Introduction

At the same time as the 1989 Children Act was being drafted in England and Wales, similar legislation was being finalised in New Zealand. Both enshrined much the same principles, but the 1989 New Zealand Children, Young Persons and their Families Act (CYPFA), provided a far more radical mechanism for enacting those principles than the UK Children Act. Both Acts were heralded at the time as a challenge to the old order and sought fundamentally to re-evaluate the relationship between the family and the State. Thus, in the UK, the arrival of the Children Act was described by Lord Mackay, then Lord Chancellor, as: “… the most comprehensive and far-reaching reform of child law which has come before Parliament in living memory” (Hansard, 1998, vol 502, col 488). In New Zealand, the report strongly influencing the legislative reform – Puao-Te-Ata-Tu – was described by Anne Hercus, Minister for Social Welfare, as: “The most significant document ever presented to the Department and Social Welfare” (quoted in Wilcox et al, 1991, p 3).

In particular, both Acts sought to keep children with their family of origin where possible and placed emphasis on supporting rather than replacing existing families. Both envisaged a central role for families as carers and decision makers. However, while the theme of partnership within the Children Act was implicit, contained not in the body of the law itself but in the volumes of guidance and regulations by which it was accompanied, the New Zealand law involved a far more central requirement, explicit within the primary legislation, to work collaboratively with the families involved. The practical manifestation of this requirement was the family group conference (FGC). This chapter will examine the sociopolitical factors surrounding the CYPFA and consider its main objectives. The nature of FGCs, and the central values and assumptions by which they are underpinned, will be described and assessed and some of central issues and debates raised by their operation in the New Zealand context will be discussed.