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.
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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.
‘Poor questions’
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.
Timescales
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.
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I see it as a mark of a civilised society that when I stand up in court as a social worker to recommend the removal of a child, my evidence is rigorously tested by a skilled barrister. After all, I could be wrong! We should be proud that in this country the most vulnerable parents – those with learning disabilities, chaotic substance misuse, severe mental health problems or living on the streets – are represented so carefully. Any erosion of this access to expert legal advice should be opposed by all of us.
I totally agree with this article that cross examination and court processes are vital to ensuring family justice is fair and transparent.
I have been qualified for 13 years and I still get nervous at court because it is such a fundamental issue that is being discussed for a child/children and their family. Even when I know professionally that what I have recommended is the best outcome for the child the ramifications are life long and will be very traumatic for all involved.
I thoroughly enjoyed this article, as it is a thoughtfully positioned statement, identifying the challenges for all involved in court proceedings. As a social worker, I actively encourage families to be part of processes, express their opinions and challenge, for what they are fighting for, is to remain an active and involved part of their child’s life.
One of my most pertinent memories is when I was preparing a case for separating a child and parent through a court order. The evidence for removal was clear, the parents explained to me, that whilst they accepted the concerns, they will show to their child that they fought for them, the importance of my case recording became clear. So, yes, let us be challenged and let us be scrutinised, we read social work and qualified, therefore we must indeed be held to account.
The whole basis of the British legal system is based upon a system of adversarial argument and counter argument based on a search for the ‘truth’ and so-called ‘facts’ However, in reality what is fact, cannot always be proven or there may be different versions of what is fact or the’facts’ may be dated or lost. Even if the ‘facts’ exist, the truth can be ignored or successfully buried or hidden from the Court or the judge may not allow certain ‘facts’ depending upon what mood s/he is in on any given day.
I have seen Judges have tantrums, refuse to hear key evidence, which could have changed the course of a case or clearly negated a finding that the Judge wanted to make. I have also seen judges ignore challenges to the position s/he has taken by more than one counsel and declined permission to appeal.
So whilst this article asserts some kind of mythical fairy story about the fight for truth and justice, we only have to look at what can happen even in the highest courts in the land to see that the system is flawed – just look at what happened to civil justice in 30 years of the Courts dealing with scandals such as Hillsborough.
If you really think that it is only fair that a social worker is left feeling uneasy, I must note that my sense of unease can be to do with erroneous adjudication, depending upon the values, attitudes and/or prejudices of judges and/or barristers. One only has to look at cases such as Ellie Butler who was returned by the High Court to her violent father, Ian Huntley where there was a failure to convict him for repeated sexual offences prior to the death Jessica and Holly, Baby Peter Connelly’s killer Steven Barker had already raped a two year old but was never convicted, prior to Peter’s death, but funnily enough was convicted following the public outcry that ensued. Surprising that the evidence did exist, but the ‘facts’ did not come to light until it was too late for Peter?
I think that the current adversarial legal approach is counter-productive to what everyone is trying to achieve. If anyone should feel uneasy it is the judges who adjudicate unfairly and barristers who set about like rottweilers engaged in the theatrics and relish of going for the ‘kill’ when ripping apart social workers whose primary aim is to safeguard a child.
I was a Guardian ad litem then children’s guardian then ISW for 25 years. Since 2006 I have also had experience on the other side of the bench albeit as the lowliest member of the judiciary, as a tribunal member. So the issue of the interface between social work and the law is one I find absorbing. I agree with much of what Julien Foster says particularly about the drastic powers of the court and the need to ensure justice by using formal transparent procedures and rules to test the evidence. It is not a cosy forum and all professionals taking part should expect to be tested. However I think social workers should stand up for our profession. Too many go to court unprepared for the issues that cross examination might explore. The starting point is to have well thought out and well presented reports and statements. Social workers could do much to enhance their professional image by presenting material that’s grammatical and spelt properly. Second, a more forensic approach would help. For example, knowing who said what, when, and how and it being properly recorded and dated would give confidence to the judge in giving weight to an issue as well as helpful to the social worker in facing cross examination. If attachments are an issue, be aware of what that can mean in terms of the care plan for the children especially in long term fostering v adoption hearings. If mistakes have been made, say so, giving reasons and what’s has been done since to try to put things right.
The court is the lawyers arena. The judge and advocates are the lead players. It’s important that we as social workers conduct ourselves with professional dignity. Look the part, dress appropriately. Too often have I seen young social workers come to court looking like as though they are off to the pub. Wrong message! Be able to give reasons for what you say and do. Gut feelings have no place in evidence. I’ve seen social workers roasted over an open fire for saying they decided something because had a gut feeling. But, if you had a gut feeling and followed it up to produce the evidence e.g., conversations, changes in behaviour etc, all recorded, then fine.
Finally, the importance of chronologies; for the judge it’s important to quickly absorb events that the professionals involved have lived with for months. A clear agreed chronology is immeasurably helpful.
As for conflicts with families. That has been a factor since child protection began. It has to be part of the conversation as soon as proceedings are a glimmer on the horizon. It’s part of our professional task.
Pat McLoughlin
Well l can say surely lying in court is a criminal offence and would be thrown out of a criminal court they don’t seem to help us work together,also give you an order which is out of the timeframe,Also will not fund treatment or legal aid this is against our human rights they are the abusers
Interesting, and accurate in many ways. However I have spent day’s in court with 5 barristers discussing good child care practice over education. The financial cost to the state over something that parents and local authority could have sorted out in an hours meeting cost the tax payers 1000’s. At times it would appear with good guidance some cases need not end up in 6court arena. It appears that to often cases end in court as that’s what we’ve learnt to do. This continues to be a very large drain on the public purse. There is a time and place for everything. Not all cases need to end in the court arena at the tax payers cost.