A barrister responds to last week’s article by a social worker questioning whether the ‘theatre’ of the family courts helps either families or those working to protect children.
By Julien Foster
When I was training to be a barrister, I once observed a case where a court was considering whether to remove a child from his mother. I commented that I felt it might be better if people sat round a table to discuss the child’s welfare rather than stood up in court to argue about it. The barrister replied that the matters being dealt with were so weighty that surely those involved deserved the same rights and protections they would receive in any other serious dispute that required a judge’s attention. It did not take me long to agree.
As the most senior family judge in the land, the President of the Family Division, has said, since the abolition of capital punishment, the family courts’ powers are amongst the most drastic available to any court, including as they do the power to remove a child. It is all very well for social workers to wish to be collaborative. Yet if, ultimately, the social worker and the family disagree about what is best for the child, I find it difficult to imagine a fairer way of resolving that disagreement than court proceedings.
‘This is no theatre’
The court room is no theatre with its infinite possibilities of performance; it is a place where discipline is maintained with rules, procedures and codes of conduct which have to be followed. There are no actors; there are children and families whose lives may be forever changed and professionals doing their jobs. There is no audience to be entertained but an independent judge required to follow the law. There is no script but oral evidence given on oath with each party entitled to take it in turn to ask relevant questions of witnesses and to make representations.
Sharpen up your court skills
Do you find the court process and appearing in the witness box daunting? Then sign up now for your free place at Community Care Live London to receive expert training on improving your court skills.
In her session, solicitor and trainer Shefali Shah will arm you with the essential skills to ensure your evidence stands up to scrutiny.
Register now for the event, on 26-27 September.
None of this may at the time feel like “what’s best” for social workers or even the families involved. It can indeed lead to uncomfortable hours spent in court. But I have certainly experienced courts cutting through bureaucracy, addressing unreasonable conduct by parents and social workers alike, and making decisions which ultimately serve the best interests of the children with whom it is concerned.
Court is an unfamiliar environment, certainly for parents; perhaps less so for experienced social workers. It is still a place which can unsettle me and that is as it should be. If social workers in court ever feel a sense of unease, of their professional judgement being in question, then I for one find that reassuring.
I know that professional unease and questioning of my own judgement is one of the most valuable assets I have as a lawyer.
The right to question witnesses is important. Questions should not be multi-layered and judges are expected to intervene to stop that from happening. I must admit that I sometimes hear poorly-framed questions or questions which ramble. The two examples of poor questions given in the article were indeed poor questions. I would hope that no competent questioner would ask them.
I would also hope that a judge would interrupt and insist on the question being asked in a different way. I know of one High Court Judge who has a “ten word rule” for each question. Sometimes judges will let particular questions go because it can take longer to argue about the form of the question than to have it asked properly and break up the flow of questioning.
As for jargon, all professionals are guilty from time to time of using language that is unique to their particular profession; lawyers and social workers are no exception. But if I use jargon in my questioning of a witness then I would expect the judge to stop me.
When done properly, cross-examination is an important and effective way of challenging evidence. It can demonstrate whether an argument stands up to scrutiny or whether a witness is being truthful.
The ‘inexperienced social worker’
Should lawyers be able to use a young or new social worker’s lack of experience as a basis for discrediting their evidence? I can’t see anything wrong in principle with doing so. Qualifications and experience are surely relevant to competence. They are not the only factors that matter but the words “expert” and “experience” come from the same root. If someone claims expertise in a field, it must be fair to test that against that person’s experiences. As a matter of passing interest, judges frequently use the phrase “experienced social worker” in their judgments; it comes up far more often than “inexperienced social worker”.
No lawyer should bully a witness or ask a question without foundation and I would expect a judge to prevent improper questions being asked. The specific example given by the author of the article – youth being used as a basis for inviting the judge to find that the social worker would struggle to understand parenting – would, in my view, be an unwise approach.
Whether we act for local authorities or parents, we know that we will sometimes be called upon to argue points which are unattractive and may, indeed, “insult” someone in the court room. Provided the point is properly arguable, it is part of our job to do so; and the risk of someone being insulted rightly takes second place to ensuring that a client’s case is properly put. That said, I would, again, expect a competent lawyer to recognise that criticism can cause damage to future working relationships, and to exercise care when casting doubt on a witness’s credibility.
Barristers “chatting and laughing about their private and social lives” in court is a worrying image. Context matters. I have, I must admit, been left feeling uncomfortable by such conversations (among social work professionals as well – not just the lawyers) in court. On the other hand, I have sometimes used light-hearted conversation with my client in court to demonstrate that I am at ease in the hope that, as a result, they will feel more relaxed. I hope it works as the risk of misunderstanding is, I acknowledge, great.
I am sorry that social workers feel drained and tired at the end of court. I imagine the parents and – dare I say it – the lawyers often do as well. That it is a draining, tiring experience reflects the subject matter and the emotion involved. But that is one of the prices paid for justice. I am sorry, too, that it can be so slow. But as a High Court Judge who retires this week once said, “Justice must never be sacrificed upon the altar of speed”. The introduction of the twenty-six week timescale for proceedings to conclude is intended to improve matters; but I have often heard social workers complain about having insufficient time to conduct assessments and parents longing for more time to change.
The social worker who wrote the article suggests that there must be a “better way” to resolve these matters. If all those involved are able to agree on what should happen then there are routes outside the courts. But if there is a dispute, then there need to be fair, transparent rules by which it is resolved. The risks of not having such rules are obvious: force of personality rather than force of argument prevailing; people getting their way due to their status; in short, injustice.
Julien Foster is a barrister practising at 1 Garden Court Family Law Chambers in London. He represents local authorities, parents, children, and other people and organisations appearing before the family court.