Sticks and Stones….

This is a post by Sarah Phillimore

I have been thinking a lot in the aftermath of the EU Referendum, about how we speak to and about each other and the impact that has on our willingness to listen and try to understand. Most people, it seems to me, will ‘mirror’ the attitude and responses of the other in conversation – if you go in fighting, you will encourage a combative response. But what is the impact of this on the subject matter under discussion, on the prospects of shared understanding? Particularly in an arena such as a family court in care proceedings where the issues under discussion are going to impact on adults and children for the rest of their lives, or even into the next generations.  Cross examination should never be perceived as a ‘game’ – if it is, it’s a game that no one wins. 

 

The impact of the adversarial system of cross examination on social workers giving evidence.

I had an interesting chat with a social worker when I represented a LA last week. She had been in her post seven years so I simply assumed she had lots of experience in giving evidence in court and being cross examined. I was very surprised when she told me that my assumption was way off – in that 7 years she had given evidence on just two occasions, and the last one was 3 years ago. She had never received any training in how to present evidence in court or deal with cross examination and felt that the necessary support from managers at court was sometimes lacking.

She said that she felt that a lot of lawyers treated it as a game or a piece of theatre and a brutal cross examination was very difficult for social workers to cope with. Of course, for those of us who conduct contested hearings day in, day out we do become habituated to our work and probably de-sensitised. As lawyers we probably need to be more aware of this and more aware of the consequences for those we cross examine. The SW explained that she felt very nervous about the prospect of giving evidence in what we both agreed was a finely balanced case and it was giving her real pause for thought about whether she wanted to carry on with her job.

She, like many other SW was juggling a case load well in excess of what could be sensibly managed. It is little wonder that SW get apprehensive about how to defend their statements in court if they don’t have sufficient time or proper supervision to get their case in order. Is our current system really the best way we can devise to protect parents’ rights to a fair trial but without losing focus on the needs of the child?

What is the current training offered to social workers about how to cope with giving evidence in court? This social worker had none. Is it different for the newly qualified social worker today? Or should the focus rather be, not to train social workers to better withstand aggressive cross examination, but rather moving more explicitly to an inquisitorial system to try to determine what is best for children.

EDIT July 13th

Thanks for this comment from a reader who wished to remain anonymous. I am surprised again to hear that the police also get no formal training!  This does appear to be another example of the dangers of ‘silo working’ – when we have little or no appreciation about how other organisations work.

One reader commented that he suspected that social workers got no formal training about giving evidence, in the same way that most police officers get no training – which again, came as a surprise to me. There are some local schemes where magistrates go to talk to social work students about the court system and decision making but it seems clear that this is a fairly ad hoc arrangement and dependent on the availability and good will of the magistrates.

Happy Edit July 20th

As a result of Twitter conversations prompted by this post, hopefully I will be visiting Huddersfield next year with some other barrister colleagues, to take  part in some training for social workers in a mock trial. Useful evidence that Twitter is not just a playground for the bored and mad.

24 thoughts on “Sticks and Stones….

  1. Julie Hughes

    Social Workers my family has come across don’t know how to talk to children or service users so this is no surprise. They do know how to lie in court and write minutes of Core Group meetings and CP conferences inaccurately and refuse to amend them.

    Reply
    1. Sarah Phillimore Post author

      I am sorry you have had this experience, and equally sorry to note that it is an experience many other parents tell me they have had.
      However, that is not the point of this post. What I am worried about is whether or not treating cross examination as ‘theatre’ is really the best way of trying to find out what is best for any particular child.

      Of course, if a SW is lying that has to be challenged very robustly. But I can’t see the point of making questions in court a ‘brutal’ experience, for any one.

      Reply
      1. Dad

        I’ve seen two types of cross examination – one example – by leading counsel was incredibly cerebral, considered, steady and one by junior counsel was much more challenging. Bluntly, the first didn’t work in the circumstances. Inaccuracies were allowed to lie unchallenged and as a consequence this lead to more heartache and more hearings. In subsequent (/separate / parallel) litigation the unchallenged inaccuracies were challenged robustly, exposed for what they were with significantly different results.

        I have no doubt that in the rarefied air of the Court of Appeal where it’s more to do with fine points of law the cerebral approach may have better suited, but when it’s witnesses who are / have been extremely inconsistent, the second approach seemed to bear more dividends.

        My immediate description of the cross – examination by junior counsel was “brutal bloodsport”. But my considered reaction the next morning was “Actually, it wasn’t. It was a forensic dismantling of the witness’s lies and inconsistencies”. The barrister was smiling, charming, but persistent in exploring the issues in the statements / evidence. It was painful to watch, but only because it was painfully clear to all in the court what was happening as the lies unravelled.

        Equally, following an entirely inadequate social services report, constructive engagement with the relevant social workers didn’t work – they had a narrative and they were sticking to it. They weren’t going to consider whether they had simply taken at face value a series of assertions by one side without even considering they may be inaccurate or considering other evidence that the narrative may be mistaken. It took the threat of a Judicial Review to ensure a change of team, and a fresh start. The new team were never going to say that their colleagues got it wrong but the revised report performed an elegant 180 degree turn, and gently admitted “confusion” as to the previous narrative.

        Constructive engagement / friendliness should be the first port of call, but if they don’t appear to be getting to the heart of the matter or if there are issues that should be explored / challenged then they should (and must) be. Otherwise injustice risks being done (either in or out of court).

        Reply
        1. Sarah Phillimore Post author

          Of course lies must be challenged – but there is a ‘way’ of doing this which is not demeaning to a witness. I have seen some awful cross examinations which I think were meant to be the kind of forensic dismantling you describe, but which were clumsily done and actually obscured the purpose of the questioning.

          Of course people are going to be upset when their lies or inadequacies are exposed – I remember a CAFCASS officer accosting me in the street once to say I had made her cry after cross examining! – and I am not advising holding back from that. But there is no need to be ‘brutal’. As you say, one can be charming – but persistent.

          Reply
          1. Angelo Granda

            Sarah, I agree with you there is no need to be brutal and I know you are greatly interested in the use of language. I see there has been recent discussion of it on twitter following recent political events.

            Clearly, barristers should not be brutal and overly hostile or cruel to witnesses. They should be polite, charming (if they have charm) and should conduct cross-examinations with civility, understanding and they should not attempt to trick witnesses. However, they should never be false either. In my view, the barristers are right to consider their use of language and I thank you for your post. What do you mean by ‘brutal’?

            In my opinion, the CAFCASS officer will have been upset when lies were exposed but she was wrong to accost you for it. My view is that the TRUTH can never be brutal; the truth is what it is! The whole point of a real Court is to establish the truth. I am willing to bet that no parent has ever accosted you in the street for exposing the truth. Parents know the truth and will react positively when it comes out. They want it.

            Whilst you think about language, do you consider history books and the humanities? I often turn to them. Do all CP professionals fully understand what is meant by truth? The word is the truth and the power of the truth is the word. Lawyers should never compromise on the use of language nor should they seek to moderate the use of language or limit the free speech of others. the truth never harmed anyone!

            When I give an opinion, it is just that an opinion, it is not necessarily a fact. When I say something and assert it as fact, I try not to do so recklessly and I honestly believe it is a fact. To me 2 and 2 is 4 until I am proven wrong. For example, when I comment that CP professionals are dishonest, cruel and inhumane, I mean exactly what I say. To me, that is the truth and it is not being brutal. Their state of mind is absolutely wrong. Those three words describe exactly their actions. They cannot be moderated because it is the truth. As has been described on this resource before, many of them know they are doing wrong, know they are imposing inhumanity upon children and families and physically recoil from what they do. Wrongly, they think that it is their job to inflict the cruelty and they justify it by the false mantra that they do it in the children’s best interests.

            They have a state of mind and too much power put into their hands. There is an imbalance of power and it is the barrister’s job to protect children from the abuse of power. As opined by several high court judges, the permanent liquidation of families is the most extreme sanction and I think it should be outlawed in the name of Humanity. In my opinion, it represents ‘punishment’ (using the word in its wider context) which is worse than summary execution. It is akin to torture and crucifixion. They may seem extreme terms to you but they are true. No brutality is intended. The CP system denies citizens the very basic of humanity! This is that human beings can be culpable but they have to be given the chance to repent and reform, they are ALL capable of it, no matter what the level of their past mistakes.

            I will applaud any barrister who seeks out the truth and exposes it in court. If the lower courts won’t see it then I expect them to appeal right to the top.

            Never be ashamed of it. If readers disagree with my views, please enter the discussion. This question of the use of language calls for more examination.

          2. Sarah Phillimore Post author

            The Cafcass officer who was upset with me had not ‘lied’ – but she had done a poor piece of work and I asked her about it. She was very upset. With hindsight, I could probably have conducted that cross examination in a better way. it should be possible to be robust without being unkind.

            When I say ‘brutal’ I am thinking about times I have seen very young/inexperienced SW given a hard time when there wasn’t really any need. I don’t think I have witnessed anything really awful in court – but of course, I can only see it through the lens of my experience and resilience and it must feel very different for the parent or social worker on the receiving end.

            Does anyone understand what is meant by ‘truth’? ‘truth’ has many faces. Your ‘truth’ for example is that the CP system is often inhuman and non consensual adoption is ‘akin to torture and crucifixtion’. I don’t doubt that is your ‘truth’ and you sincerely and passionately state your own views BUT this would not be ‘truth’ to the police officer or CP social worker who have to rescue a baby from a filthy home and dangerous parents. They would see removal of that child as necessary and right.

            I prefer to look at it this way. I cannot determine ‘the truth’ as I am not infallible. But what I can try to do is insist that courts only make decisions on proper evidence, having applied the proper legal tests. We may not get the ‘truth’ but at least the procedure is fair and people have had a chance.

            today for example, I was making an appeal on behalf of a parent – I argued that the procedure in the court below was unfair and thus the decision of the Judge should be overturned. It may well be that my client did do all the awful things the local authority describe. I don’t know. I wasn’t there. But the way the local authority got their findings troubled me and I challenged it.

            I think that is all any of us can do. I am not sure the ‘truth’ is as easy to establish as you think. But we can all work to achieve procedural fairness and transparency.

          3. Angelo Granda

            Thank you for the reply. I find your comments interesting and I hope you think mine are fair. The use of language is very, very important in the Court arena and the moderation of language and the twisting of words creates a fog of denials, evasions, lies and half-truths which is difficult for the Court to penetrate.

            We should look at the words used because the truth is in the actual words. The truth can not be implicated, suspected, predicated or be a matter of professional opinion. The truth often bears no relation to notes in CS files and entries on computer databases so why do Courts so readily accept those sources as fact. They are not.
            Likewise medical files do not tell the whole truth. For example, a husband drove his wife to prescribed MH therapy once a week for over two years until she was discharged. Apparently, there were no entries in medical files (or in social work archives). Consequently, it was stated in Judgment that therapy had been prescribed but that Mum had not undergone any therapy as advised. That finding wasn’t based on facts, was it? The father complained but the Judge said he preferred the professional evidence. There is a tweet tonight (at the head of the page) which comments ‘If it isn’t written down by SW’s, it didn’t happen!

            If a professional says, ‘it is noted in cp files that blah, blah, blah’ or ‘ a Mum appeared to be under the influence of an intoxicating substance’ he or she is presenting misleading evidence which does not rely on facts. The truth lies in the words ‘it is noted’ and ‘appears’. Is the procedure really fair? Do parents genuinely get a chance? If a Court is to take really serious decisions, it should rely on facts alone. It seems the facts aren’t checked rigidly.

            To take the discussion further (using our previous example) I don’t think the truth has many faces. There is only one truth. Why would a barrister not use the words dishonest, cruel or inhumane when referring to Police and SW’s? It is the truth not a matter of opinion. What they see as necessary and right is often very, very cruel and inhumane? Why not get the message over in Court by using my words?
            The truth is in the words ‘what they see as necessary’. It is not necessary. The truth is that the Law states that in scenarios of filthy houses and dangerous parents, the child should be ‘rescued’ through support and reformatory procedures. Houses can easily be cleaned up and kept clean. A dangerous father can be charged and dealt with properly.

            I sense (this is opinion not fact) that many CP lawyers show more respect to the LA’s than they do to families. They don’t hesitate when using words like filth, cruelty and inhuman behaviour in respect of parents. They seem reluctant to use strong terms about professionals.

            If a house is filthy, we should use the word filthy not ‘apparently in a low state of hygiene’. Likewise, when SW’s act unlawfully and not in accordance with legal guidelines, we should say so. Citizens must be protected from authoritarianism. Tony Blair ‘felt’ it right and necessary to invade Iraq. Inhumanity resulted because he did not follow legal guidelines, safeguards, correct protocol and the Law with scrupulousness before making his decisions. Was he right? I wouldn’t like to judge him but if he is put on trial for such a serious issue, it should not be in a civil court. And he should be questioned by a barrister willing to use hard-hitting words not one who is reluctant to upset him.

            In Family Courts, as always, there will be right words to use .Some will be more polite than others, I suppose but professional evidence has to be tested rigidly. I empathise with young, vulnerable, newly qualified professionals too, of course I do, but the truth is that they should not be doing the job. The LA is to blame for it, not they. Why not say so?
            All comments welcome. I like the comment from Dad above. QUOTE: It was a forensic dismantling of the witness’s lies and inconsistencies”. The barrister was smiling, charming, but persistent in exploring the issues in the statements / evidence. It was painful to watch, but only because it was painfully clear to all in the court what was happening as the lies unravelled :UNQUOTE

          4. Angelo Granda

            May I add, Sarah, that when I write ‘akin to torture and crucifixion’, those are words I use dispassionately to convey the truth. Sadly, there is no compassion in the truth.
            I think High Court Judges have done their very best to describe and rule on the extreme severity of liquidating families ,especially for children involved. Professionals,will it ever sink in,do you think?

          5. Sam

            I have had yet another professional deliberately lie , this time the IRO . This is not for the first time. He is a nice enough man by so embroiled in the system and certainly not independent. Apparently he did not receive a parental view form from me yet it was sent as an attachment to an email. I suspect it was because he did not want my child to see the truth written on the form. Or possibly I am not allowed to have a viewpoint in this misogynistic LA So it looks to the child and other professionals as though I can’t be bothered. My child who is placed under a care order with an abusive man has been thoroughly abused by those who supposedly safeguard her. I am so (insert your own swear word) with the games played.

          6. Angelo Granda

            Sam, I am so sorry to hear of this new experience you have had ( due to a dishonest IRO).Of course ,we also deplore the situation angry mum is in .The malpractices,dysfunction etc of professionals continues uncontrolled and there is little you ,I or any other parent can do about it. The ability to covertly record meetings is progress and will have an effect ,i hope. It will make it a bit easier to challenge false evidence in court. Has any SW objected yet?
            However, for the purposes of discussion on these forums, I think we have to accept that the SW’s do often get it wrong. As we have stated repeatedly,they are badly trained and managed etc. We empathise with them. We can’t say more than we have as far as the CS are concerned. Some get it right,some get it wrong,some dishonest,some not. We have analysed their methods and found some of them flawed, we have discussed the standards of their evidence base and recognised mistakes they make ( particularly in the use of files and computer databases).We still empathise with them because we know they have a difficult job and they work within a system.We recognise they are following rigid policy directives ,they are following orders from above and they have to do as they are told. Some of them resign in disgust and some go along with the LA. We have met them at conferences and so forth besides in day-to-day dealings and they appear to have good intents. They appear to acknowledge their working practises need reforming and they have started the process . We empathise with that and we wait, in hopeful anticipation that something will come of it. Helen
            Sparkles has been on and she recognises problems , empathises and advises us to complain. Not a lot appears to be gained from complaints and the situation continues.

            You ,I and other parents on this thread are intelligent enough to see through all these problems and you have actually taken issues to Court. The lesson is that the overall responsibility for injustices and humanity is DOWN TO THE COURTS AND LAWYERS not to the CS. You have been to court ,you have told the Judge what happened yet still he preferred the LA’s false evidence. Now we can only hope that lawyers will work on their own practises and reform the court system. We empathise with them and i welcome this ‘sticks and stones’ post.Sarah and other professionals are questioning current practices.This is progress.

            Meanwhile,life goes on for us victims.It seems clear to me ,from talks with them,that all SW’s are subjected to rigid directives. They are sent out on visits to problem homes and they have a lot of responsibility put upon their often inexperienced shoulders.One of the strict directives is that they have to have a pen and notebook and they must take notes,notes,notes of everything they see and hear. Notes.Notes.Notes.They are led to understand that these notes are everything. ( It follows from this that parents should be very careful what they say and do).
            When they get back to the office, they look at their notes and put them into the computer.Some things may get lost and right or wrong opinions also get entered into computer templates. The actual truth may or may not be distorted at this early stage.

            What happens next? The TEAM MANAGER studies the data which has been entered. He or she then issues further directives to the SW and tells them how to proceed, tells them what to say when they next make a visit . The SW has to see the parent and pass on the manager’s orders.
            Whether the manager has aims which are legitimate or not ,in all cases the notes are his ammunition! He picks out all the negative risk factors and endeavours to eliminate them.That is where the authoritarianism comes in. The team manager might say ‘Go and tell her she must change or we will go for adoption, she must do this,she must do that,sign this ,sign that etc.etc.’.
            We all have empathy with SW’s.We have made that clear. Do we empathise ,however,with team -managers,IRO’s and other LA executives? I am not so sure.
            What can you tell us of your meetings with these people? Overall, i get the idea that SW’s are basically honest and well-intentioned. They want to do good , they look honest. They appear to be doing their best under high pressure. I don’t get the same impression from the managers i have met,unfortunately. They are cold,aloof and oppressive. They will not look one in the eyes.They do not listen AT ALL. They only issue commands.
            I will welcome the views of others.

          7. Sarah Phillimore Post author

            I think that many others would share the experiences you describe about managers – it is perhaps inevitable that those who are further removed from the front line will have a different approach and possibly less empathy for service users. It is a complaint of some social workers I have spoken to that the ‘culture of managerialism’ is stifling social work and I assume they refer to that kind of distancing and barrier.

            I agree that being able to communicate honestly and with respect is a key skill for anyone in a ‘caring’ profession, such as social work or medicine.

            I am not sure what the answer is. As ever, I think there are lots of reasons why this breakdown in communication occurs and not all are the ‘fault’ of the system. Some parents also have to consider what they bring to the dynamic and how they behave.

          8. Angelo Granda

            Let us discuss the dynamic.I think a large part of the problem is that parents are not able to bring anything to the dynamic or do anything to stop it proceeding along a course which is predetermined by strict directives which emanate from management. More importantly, neither is the frontline SW.

            Lawyers should listen very carefully to parents. What are their most common complaints?
            1. The SW does not ‘listen’ to them. Well, Sarah, because some of these young SW’s may lack experience, that does not mean they are unintelligent and lack insight. One who resigned and returned to the teaching profession told me that their main priority when visiting a home ( under the instructions of management) is to note down everything they see and also every utterance ,whatever it is, which the parent/s or child makes. SW’s are not attending in order to work with the family; they are on an evidence-gathering mission. Furthermore, the management is not looking for positives, the emphasis is on negatives. The SW’s are instructed that their main task is to make copious notes. Their notes are all. What does this tell us?
            2. Parents say the SW’s deceive them. They appear to want to be helpful and appear empathetic to their problems. Then, the resultant assessments are the complete opposite. Decisions are taken behind their backs. I can also tell you that I have asked a SW about false reporting in her statement and she did not appear to remember having written it. She was dumbstruck and looked at the floor. Furthermore, it was signed and dated at a time when she had previously told me she was on annual leave. As she had apparently signed
            it, who can be blamed for untruths but her? There was a link amongst the tweets on this page yesterday to a ‘blog’ written by a manager. Here are some of her words.

            QUOTE: . In the last two weeks for instance I have written 5 LAC review reports, attended 2 of these, written a Statement for an Interim Care Order and completed court care plans on four children : UNQUOTE
            So without actually seeing children or parents , the managers are setting the agenda ,writing reports and statements .

            QUOTE: As a manager I frequently have to advise senior managers, IROs, conference chairs, and other professionals. I see this as an essential part of protecting my staff. In many ways I think the art of not doing things is probably as important a part of our jobs as anything else : UNQUOTE.

            From these words ,we can see that not only are the team managers writing reports, without actually attending reviews and conferences themselves, they are ‘advising’, informing and directing ( issuing instructions) to other CP professionals behind the scenes. Is this why parents complain that the outcome of meetings appears to be pre-determined? Is this why nothing said by parents or other professionals will change the SW’s mind? They cannot change; they have to do what the team manager has told them.

            I can also relate to you, Sarah, what happened to one couple. They contacted the SW and asked why they had not been involved in assessments, care-plans etc. They were told they would not be involved or have any input at all. “The manager instructs that as you are contesting the threshold criteria, we don’t have to involve you in care-plans or talk to you”. This tells us that the litigation predominated. Children and families were last on the agenda.

            So can we reasonably deduce (Watson) that the team managers control the dynamic, the SW’s you cross-examine don’t have much to do with it and that is why they get upset in court? They are blamed but they are not responsible. Perhaps the wrong people are called to give evidence!
            The LA brings the case. Their executives should be called to Court.
            As always i hope this helps and all comments welcome.

          9. Angelo Granda

            Sam, Are you aware that any mail to an IRO is diverted via the CS team managers and that , in practice,should they think it unhelpful they may not send it on. This might explain why the attachment wasn’t received. Also when i have written to Doctors,education etc.,they will not answer except briefly refusing to discuss the matter and instructing me to address all communications through the CS. When i have done so,i never received any reply at all.Clearly the letters haven’t been sent on. The CS issues edicts to other professionals not to communicate with parents except through them.That is how they cover themselves a lot.

    2. Angry mum

      Same here. I have failed my assessment before it has finished. The independent psych doc asked what the l.a. A and guardian had wanted for my children and I said an I. C. O and she said she “highly agreed and was suprised I got an I. S. O. This was before she started the assessment. Then the l.a suddenly announce adoption on Monday. On Tuesday I had other issues caused by them and today at contact (with kids I. C. O) I suddenly can’t take them out of the room into the garden but no explanation given

      Reply
      1. Angelo Granda

        Angry Mum, Before seeing you, the independent Doctor will have seen and taken as kosher all the professional assessments sent to her by the CS and Guardian. If they were wrongly conducted and full of unrealistic appraisals , so will the expert’s assessment because of the ‘ripple effect’.
        When you get the assessment,check the list of evidence she used to consider issues. You will find it at the end.Did she she see your statements ? Was she sent other evidence favourable to you? Was she sent full and complete medical files from your GP? If not ,tell your solicitor to bring it to the attention of your barrister,if you get one.

        Reply
  2. Sue

    Perhaps I should send this to the Barristers who bullied my youngest son to the point he has turned from a bright friendly boy to one who has had two admissions following self harm and suicide. The behaviour of the Barristers towards him giving his evidence was reprehensible. Both LA Barrister and Guardian Barrister should have been spoken to by the judge but she just let them carry on even when it was obvious he was distressed. They accused him of lying over and over and got him so muddled and twisted his words. There seems to be no protection for non professional witnesses. All professionals including Social Workers during the case were never challenged in such a way. Not even by the parents Counsel. No challenge of inconsistencies or known errors made.
    I was told Family Court was not adversarial. Family Court has been responsible for my sons current condition. The assault on my 16 year old son will never be forgiven.

    Reply
    1. Sarah Phillimore Post author

      I think this is a real problem. We are not supposed to be ‘adversarial’ – but we do have to make our client’s case. But the Judge should have intervened if a child was being caused distress by questioning in court.

      Reply
  3. Angelo Granda

    I would say that as long as a Social Worker is trained to answer all questions under oath with absolute honesty then he or she requires no other training in order to face cross-examination. No questions are hostile to the SW although questions from the respondent’s solicitor will inevitably be hostile to the Local Authority case. The respondent receives no training either but most of them know they have to tell the truth under oath and most have the common-sense to expect questions from the LA counsel will be hostile to their case.

    QUOTE: She, like many other SW was juggling a case load well in excess of what could be sensibly managed. It is little wonder that SW get apprehensive about how to defend their statements in court if they don’t have sufficient time or proper supervision to get their case in order :UNQUOTE

    The SW’s ,as witnesses in a case have no duty other than to be truthful in order to defend their statements.They should be impartial and they are not responsible for putting the Local Authority case in order. Their task is to carry out impartial investigations into the facts of a case and report what they find to the other LA child-protection professionals.They may or may not be called to give oral evidence but when they are they must be truthful. The LA ,with the aid of its lawyers, are solely responsible for getting their case in order and the solicitors will supervise it.
    I can see how a barrister acting for the LA will worry about the competence of SW’s and their ability . I suggest they should simply be advised to answer all questions frankly and honestly regardless of the LA case and to write all their statements making them impartial ,not showing favour to the LA case. Once they know what is expected of them,they will be under less pressure.

    Reply
  4. Angelo Granda

    May i add that respondents to a case receive no support in the witness box which is the only time,as a rule, they are able to open their mouths and answer questions.Neither should the team managers be able to coach key SW’s and instruct them what anwers to give.Neither should the lawyers instruct them other than to answer questions honestly.
    I have seen it happen in a Magistrates Court (Family Proceedings) where a key social worker was answering a magistrate’s questions not in the box but as he was stood amongst the other professionals. He stood up and his team manager was sat next to him prompting him in a stage whisper. He said he thought the Mum was intoxicated but there was no proof of it at which the team manager nudged his elbow and prompted him to add ‘she smelled of alcohol’.
    Is that sort of thing fair,Sarah?

    I think Barristers should warn SW’s in no uncertain terms that they should not feel pressurised or obliged in any way to bend evidence or succumb to LA instructions. Furthermore,any LA or team manager who penalises a SW for answering questions honestly should be censured.

    Reply
  5. Julie Doughty

    I thought that all social workers who might ever be called to give evidence had court skills training. Am surprised to hear a SWr has avoided this – but if you only get called once every few years you’re not going to build up much confidence I guess.
    Anyway on a more helpful note, Research In Practice brought out a load of training material a couple of years ago. I think this is still all available. e.g
    http://www.ccwales.org.uk/family-justice/
    and
    http://coppguidance.rip.org.uk/

    Reply
  6. Angelo Granda

    QUOTE: I am sorry you have had this experience, and equally sorry to note that it is an experience many other parents tell me they have had: UNQUOTE

    QUOTE: I think this is a real problem. We are not supposed to be ‘adversarial’ – but we do have to make our client’s case: UNQUOTE

    It is well-known that SW’s are often badly trained and sometimes badly-managed as well. Readers have all empathy with them, particularly the poor dears who find themselves unable to cope with the work involved due to over-work, massive case-loads etc. and lack of supervision when they are newly-qualified and so on. One cannot blame those SW’s who choose to throw in the job because of the conditions management force upon them.

    As one lady pointed out at CPRConf2016, if a professional is ignored by his or her employer when they complain about it and accepts it, then they are unable to protect themselves. How can they possibly protect our children from LA policy directives? They are right to resign.

    However, that isn’t the point of this thread which relates to cross examination by barristers. It is good that lawyers are looking at their own real problems.

    As always, I empathise with them and offer the following advice. I do so as a humble parent and do not wish to appear arrogant or judgmental. I want to be constructive.

    1. Listen to parents. Try and understand why so many of them (like Julie Hughes above) make the same complaint.
    2. Read between the lines. Recognise that barristers come to a case late in proceedings and understand that SW’s have two faces. An official face which they show to you and to Court and another which they only show behind the scenes.
    3. Reading between the lines, consider these points. Does the CS have legitimate aims in the case or illegitimate aims? If the department follows working together frameworks and procedures diligently, is open and honest with parents and if it involves them fully and offers them support, then it has legitimate aims. On the other hand, should it not follow guidelines, should it record minutes badly and should it not be impartial, it probably has illegitimate aims. (You can tell when it is biased because it will fail to present ANY contra-indicative of the LA case for removal of children).
    4. When the CS has illegitimate aims you have to recognise that it will treat parents and children badly and do its very best to upset them from an early stage. It will do so by threats, surliness, cruelty and other oppressive means. Not least, the SW’s will make false statements disguised as fact. Why does the department have to do this? Because when it wants to take children into care, for whatever reason, it cannot do it forcefully without a court order. It has to engineer a situation whereby the parent/s contest the issues and do not agree with all the concerns. Especially when parents have acknowledged concerns and also when they have actually raised the issues themselves and requested support, the CS must deceive everyone and report the opposite to court. They have to create an adversarial situation. In every case, whether or not child/children are in real danger from parents, they have to antagonize parents.
    5. Once it has started proceedings, the LA can backtrack, apologise, change evidence, present risk and hearsay evidence to Court and it will not be made accountable for the behaviour of its agents (the CS). Once a case is started, the LA knows that 95% of the time, it will win and the Judge will not consider false evidence crucial.
    6. Whilst Children’s Legal Panel solicitors are quite right to advise parents to cooperate and work with the SW’s and not to create an adversarial situation, they are wrong to advise it when the department acts unlawfully and deliberately does it itself. Barristers should examine the behaviour of SW’s at the outset and they may see that the SW’s will start to allege failure to acknowledge or understand concerns, reluctance to accept professional support etc. before making assessments and explaining concerns to parents. Or even ‘disguised compliance’ may be alleged.
    7. When in court and when conducting cross-examination of witnesses, barristers have to be adversarial not only with the SW’s but also (in fact mainly) with the LA lawyers. You have to balance your duties to parent clients, your duty to the Court and your duty to the children very carefully. Your primary duty is to the client! If necessary you must be adversarial towards the Guardian’s lawyers also. If the Judge appears to be wrong, you must be adversarial with the Judge and you must be adversarial with expert witnesses who make assessments which do not support your client’s case. Parents expect you to be very adversarial not just go through the motions. They expect you to be especially adversarial with SW’s who present false evidence and you must call them to account for it. Indeed if you find a SW has presented false evidence under oath, parents might reasonably expect you to report it to the Police for prosecution. No piece of evidence can be isolated ,it is all taken together and considered as part of a finely –balanced matrix. One piece of false evidence has a ripple effect. Tell the judge that, tell him or her how they cannot exercise any fair discretion of the dynamics of a case and parents involved when dishonesty or false evidence has infiltrated.
    8. Barristers should recognise the failings of solicitors and that they sometimes may have a conflict of interest. That is a fact. They, too, are often badly-trained and also some of the instructions and information they have given you may be flawed and incomplete based on work by non-qualified staff.
    9. If any barrister disagrees with any of this advice, please comment but if you think any of it right, I hope you will recognise that even barristers have some flaws and should be prepared sometimes to change.

    My apologies for assailing readers with such a long comment ; this thread appears to have stalled . I hope someone will add to it.

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