How to avoid humiliation when you’re cross examined in court

It’s hard to effectively cross examine a social work witness who is balanced, fair and empathetic, says family barrister Lucy Reed. Here she reveals how the best social workers assist the court process.

Readers of the Family Justice Review would be forgiven for thinking that social workers and lawyers tend towards the dysfunctional relationships more commonly associated with private law children disputes.

In their report, the review panel said their research revealed a “sometimes deep-rooted distrust of local authorities and unbalanced criticism of public care”. They said courts and councils must work together, “to tackle their at times dysfunctional relationship”.

Criticising professionals for their ‘dysfunctional’ ways of working together risks stifling healthy dialogue about the strengths and weaknesses of different players and how things could be improved, but there is also a misunderstanding in the suggestion that there’s a dysfunctional criticism of social workers.

Scrutiny and challenge

It is part of the core function and responsibility of family courts and lawyers to scrutinize and challenge the social work that underpins the removal of children from their families. Purposeful scrutiny and challenge should not be seen as purposeless sniping or criticism. It is vital – to protect families from poor social work, to protect children from poor parenting and to formally approve good protective social work and sanction local authority intervention.

Sometimes it seems social workers have internalized this narrative though, as if we are all out to get the social workers. When social workers come to court in a defensive mindset, discussions and planning can be stymied and their evidence will be of less assistance to the court. By the same token, when lawyers become too cynical about the capability and motivation of social workers, professional working relationships are more strained. And when we as lawyers are clumsily adversarial at the wrong moments we risk severing lines of communication. That is to no-one’s advantage.

The right balance

A healthy balance and respect for our different functions is essential. It helps different professionals work collaboratively to achieve our mutual aim: a smooth, robust and fair process, even if we are striving for different outcomes. We don’t all strike the right balance in every encounter but, contrary to the impression emanating from the family justice review, most of us – from all disciplines – get it about right most of the time.

We in the legal profession know social workers are under immense pressure; from families, from managers, from burdensome caseloads, from regulatory and administrative overload and from the particular pressures associated with cases “in proceedings”. The constant scrutiny and challenge from lawyers in care cases must be just one more additional stress, and no doubt a chronic irritation.

Good and bad social work

All of us at the family bar can think of individual social workers who stand out as great at their job, but many of us have also seen poor practice that’s had a serious impact on families. And, quite apart from the genuinely poor social work, the reality is that there are increasing numbers of social workers who are prevented from being great because they are asked to achieve the impossible with limited resources.

So, we have to ask our questions, although it may be tiresome. If the social work on a case has been thorough and fair the annoying questions will soon dry up. It’s hard to effectively cross examine a witness who is fair, balanced and empathetic. A hostile, defensive, embattled social work witness is likely to experience a more combative style of questioning, and will find themselves in the box for longer.

So, how can you put your best foot forward in encounters with lawyers and courts? The following are suggestions, offered in constructive spirit, that will assist the court and the process generally rather than favouring any particular party: 

A lawyer’s tips for social work witnesses 

• Take legal advice – early and often. Don’t care plan in a legal vacuum.

• Meet your deadlines if possible, remembering to allow time for documents to go through your legal team first. Often easier said than done, but many an adjournment has been secured because the parents have not had time to consider your evidence with their lawyers or because a vital piece of promised work has not been completed. Remember part of your function is to avoid delay for children, and allowing parents’ lawyers time to advise them about the strengths of your evidence and plan could avoid both dispute and delay – an opportunity that is lost if you arrive at court with a mountain of information the parents cannot hope to read and absorb advice on.

• If you’re objecting to a course of action and the reason is resources – be up front about it, so your lawyer can argue it on that basis. Do not exaggerate social work concerns to cover up a manager’s reluctance to fund an alternative course of action.

• If you know you are going to need managerial/purse holder approval for a particular course of action while at court, be prepared to seek that approval by phone. Have the numbers to hand. Similarly, anticipate requests for information – details of a proposed placement, arrangements for contact etc.

• Don’t allow yourself to get defensive when questioned about your work, planning or analysis. Give solid, social work based answers. Be able to answer questions about why you did this or did not do that.

When preparing written evidence or giving oral evidence:

• Be candid. If things have not been done that ought to have been done – say so. Say why. And say how and when they will be fixed.

• Acknowledge the positives. It matters that you are able to acknowledge the efforts and strengths of the parents, even if your conclusion is adverse to them.

• If you are going to cite research, cite it properly so the lawyers can look it up. Or, better still, provide a copy to your legal department so your own lawyer and the other lawyers can pre-read it.

Community Care is holding a family justice conference in London on 5 December. It will help you carry out better section 47 assessments and better prepare you for court appearances. Register your interest or request a brochure here.