How to hold court

For social workers, the experience of care proceedings can be
traumatic and disillusioning.

Many complain about the hostility of care proceedings, often from
the lawyers representing the parents or the child, but also from
critical remarks made by judges and magistrates. Others feel
mistrusted and unvalued by the courts, and some express anger at
being ordered to undertake further assessments or other work, often
at short notice, without apparent consideration of resource
limitations or the other tasks on the social worker’s caseload. It
can be a hostile environment.

Yet there are social workers who survive it and have been doing
court work for many years – and some who say that they actually
enjoy it. My study of social workers¹ came up with the
following tips and strategies from those who relish the work.

An important message is that a clearly written and well argued
statement can make the rest of the proceedings much more
straightforward. It may even mean that a contested hearing is
unnecessary. But to do this the statement must be more than just a
chronology of events – it must weigh up all the factors, consider
their impact on the child and show why the proposed plan will best
meet the child’s needs. One of the main complaints from lawyers,
and some managers, was that not all statements do this. One lawyer
said: “I think analysis is really what is lacking in the evidence
that we are getting so far. It just seems to be a diary of what
they have done – you can’t see in that statement how they have come
to their conclusion.”

Social workers often end up doing the written work at home, late at
night or over the weekend. Yet the statement and care plan are so
important that social workers should write them when they are best
able to think clearly and calmly, and the statement should be
checked and amended if necessary. So the message is to book in
sufficient time to write the statement and care plan, and to guard
it as carefully as if it were an important meeting. This might
sound like a counsel of perfection, but if things are left to the
last minute there is no time to deal with an unexpected crisis. The
advice from the lawyers is to keep them up to date with
developments on the case and let them know of any problems as soon
as possible. If delays occur, they might be able to negotiate an
extension with the court and the other solicitors.

Another helpful strategy is to use the solicitor’s experience to
anticipate the sort of questions that the judge or magistrates and
other lawyers are likely to put to you. What will the court want to
know more about? What counter-arguments are the parents’ lawyers
likely to use? Anticipating these issues means that you can deal
with some of them in advance, in your statement, and gives you the
chance to prepare your responses to questions.

The negotiations that take place outside the courtroom, in the
waiting rooms and corridors, are often crucial to the outcome of
the case. Some social workers like to be fully involved in these:
others expect their solicitor or barrister to come back to them
with details of what is being discussed and to ask for the social
worker’s response. The important thing here is to be clear with
your own lawyer about which way you prefer to work, and not to be
bullied – by the other lawyers or even your own lawyer – into being
excluded or into saying something that you are not sure
about.

Beyond these practical suggestions, there are important survival
secrets in the way that social workers think about care
proceedings. Those who enjoy court work find the whole experience
interesting – they look at people’s behaviour in court, they
analyse what is going on. They welcome the chance to learn from the
experts and other people involved in the case. They also welcome
the opportunity to explain and be held accountable for their
recommendations. They recognise that the decisions being made are
so important that they have to be tested by an independent
tribunal, and they take a positive approach to this. As one puts
it: “It’s about independence and checks isn’t it? All right, it is
our professionalism and we believe in it – our knowledge and
everything else – but it needs to be tested out, it needs to be
heard, with counter-arguments. Otherwise we could just walk all
over people.”

Linked with that, a helpful strategy for coping with questioning
from the other lawyers is to think of it as an opportunity to
explain your reasoning more fully, not as a trap to catch you out.
Of course, lawyers do set traps, but seeing every question in this
light will make you react defensively. Taking a positive approach
will help you to respond more calmly and confidently. As a manager
said: “So many times in court the reasonable social worker, who is
prepared to consider other options when they give evidence, is much
more powerful than the social worker who is wedded to one outcome.”
This does not mean being unclear about your plan. On the contrary,
it is because you know the case well and are clear about the plan
that you can explain why the alternatives would not be suitable,
rather than just rejecting them in a knee-jerk manner. It also
means being prepared to be flexible on some issues to ensure the
best overall result for the child.

Social workers who perform well in care cases tend to think beyond
the actual proceedings, taking a long-term view. They appreciate
that they, or one of their colleagues, will probably have to
continue working with the family and the child after the
proceedings have ended. In that context it is not always helpful to
fight tooth and nail on every issue, leaving the parents angry or
humiliated. These social workers retain their empathy for the
parents, and try to keep a relationship with them.

Finally, social workers who survive care proceedings tend not to
dwell on whether they – or their department, or the parents, or the
guardian – have “won” or “lost”. Their objective is to get the best
result for the child – for the child to be the winner. So even
though going to court is still stressful, the sense of achieving
something for the child sees them through.

Jonathan Dickens is a lecturer in social work,
University of East Anglia. 

References  

¹ Unpublished study. For information
contact the author at
j.dickens@uea.ac.uk

Legal problems  

“What we have is an adversarial system where it’s ‘let’s knock the
local authority even if they have done a good job’. Yes, you might
get the odd platitudinous remark from a judge about how well the
social worker has done, but the premise of the family proceedings
court – and certainly the higher up you go – is that the local
authority has done it wrong and poorly, and needs to be watched and
scrutinised at all costs otherwise it will do something terrible.”
Social services manager

“You find that you have everyone coming at you from different
directions…it is very, very pressurised…to me at that time, I
felt as if this is not what I want to do, I want to be a social
worker!” Social worker

The research

The study consisted of more than 50 interviews with social
workers, social services managers and local authority lawyers in
2001-2 and was supported by a grant from the Nuffield Foundation.
The interviews were in six local authorities in England equally
divided between social services and legal staff.