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.