Social Workers on the witness stand

Astark seminar room is the setting for an exercise that will give final year BA and MA social work students at the University of East Anglia (UEA) their first taste of what it might be like to give evidence in court.

They will be cross-examined by students from the university's law school in the family court role-play, staged once a year. It is something the law students tend to enjoy rather more than the social work students, explains UEA lecturer in law Polly Morgan. "Some of the law students wear their suits, and the social work students are a bit taken aback," she says.

The mock care proceedings take place in small groups. The documents are taken from a real-life child protection case and anonymised. Each social work student takes the oath or makes an affirmation before going to the "witness stand" to answer questions put to them by "barristers" in front of the "judge" - one of the law lecturers.

There is a bit of tension beforehand, and relief when it is over. The "judges" give feedback to the social work students. One, Selina Watts, points out that most of the budding social workers did not look at her while giving their evidence. "You should try to build a relationship with the judge and communicate that you know what you're talking about," she tells them.

Tricky questions

Penny Black, lecturer in social work, also gives feedback to her students, congratulating them on managing some tricky questions. She reminds one student she should refer to the mother in the case by name and not as "mum".

Although the law students' questioning is fairly gentle, the students have all heard scare stories about tough cross-examinations and it is something they worry about. The idea of this exercise is to ensure they have at least some idea of what giving evidence is like.

"It's not like the court arena - but it's still helpful," says second year MA student Dan Tumber. "I blanked out at first because they asked me a couple of questions I hadn't anticipated. In some senses the role play prepares you for what it would be like, but in another sense you would be more confident in real life because it's your case and you're going to know what happened and why."

While many qualified social workers are given some training in court skills, this type of training for student social workers is rare.

Once qualified and in a job, they can expect to get more training provided through a specialist training company or in-house such as the courses laid on by Norfolk County Council twice a year, led by the authority's legal services child protection team.

"We give newly qualified social workers help and support rather than leaving them to get on with it," says Christopher Gray, practice lead for family intervention and looked-after children at the county council. "The training course is only one aspect. They also shadow people and observe what goes on at court. It's important to demystify the process and enable them to get familiar with how it all operates."

Social worker support

New social workers preparing to give evidence in court get support from their team, manager, the solicitor and the local authority barrister if there is one involved in the case.

"The solicitor will look at their documents and advise on how they've presented their evidence. When they get to court the local authority barrister can discuss the case with them," says Gray.

"Some social workers find it daunting but others like the opportunity to put their case and show their practice in a good light, so it does vary. Experience helps a lot."

While councils like Norfolk are trying to ensure staff are prepared to give evidence, there is clearly room for improvement in the training and support provided by local authorities in general. A 2015 Unison survey of more than 1,000 social workers found more than half said their training and continuing professional development (CPD) on presenting evidence in front of a judge was inadequate or very poor. Many said they were self-taught and the phrase "lamb to the slaughter" was frequently used when workers described their experience when starting out.

When it came to writing court reports, 45 per cent said their training and CPD was inadequate or very poor. Common themes to emerge from the research included cuts to training departments and the fact that training and CPD had not kept up with changes.

Barrister Francesca Burfield, the subject matter expert in children's social care training at legal skills training company Bond Solon, admits to being taken aback by some social workers' lack of knowledge.

"I was training a group of newly qualified social workers recently and quite a lot of what I said, they had never heard before," she says. "They are supposed to be guided, monitored and supervised - that's the theory, but it wasn't happening. They are thrown in at the deep end and left to sink or swim. They are not quite sure what's required of them in court."

While social workers are not expected to be experts on the law, it is often in the courts where the final decisions on children's futures are made.

Sarah Phillimore is a family law barrister and trustee of The Transparency Project, a charity to help people better understand family law and the family courts in England and Wales. She also runs the Child Protection Resource website.

She points out that in the UK, unlike most of the rest of western Europe, the family court system is adversarial rather than inquisitorial. In an inquisitorial system the judge is responsible for making sure the evidence is gathered, so court hearings are more like inquiries. In the adversarial system, it is a battle between the two legal teams and the judge simply presides over the evidence that is brought to him by the two teams. The cross-examination is about finding any discrepancies and weaknesses in the other party's evidence. The judge's decision is solely dependent on the case made by the lawyers, which is why it is crucial that the evidence brought to court by social workers is solid and well-presented.

"I've spoken to social workers who argue ‘the law is just one aspect of our profession'," says Phillimore. "That's fine, but when you get to court, the law is everything. If you take your case to court on an imperfect understanding of how the law operates, that's when it all starts to crumble. Fundamentally, cases are going to go a lot better for all of us if social workers understand their role in the adversarial process."

But not all social workers can readily seek advice from their council's legal team. Such back-up is patchy and often not well resourced, says Phillimore. She has heard of cases where social workers have even been charged a fee for picking up the phone to get some advice.

The quality of evidence given by local authority social workers is very variable, she says, but it is not simply a lack of training that is to blame. "The overwhelming problem is that social workers have too much to do, their caseloads are too high - there has been a massive increase in the number of referrals and investigations have rocketed," she says. "It's a toxic mix: overwork and stress and the culture of blame and shame."

Francesca Burfield also highlights the impact of pressures in the child protection system. Problems with the recruitment and retention of social workers can lead to a lack of continuity which can spell drift and delay for children. Sometimes social workers have to take cases to court they are unfamiliar with, after an agency worker or colleague has moved on. Social workers are often reliant on their managers for advice and training, but there are huge pressures on their managers' time too.

Nearly 13,000 new cases entered the family courts in the year to March 2016, a 15 per cent rise on the year before and a trend that has continued into 2016/17.

For the families in care proceedings, there is the agonising prospect of losing their children. Meanwhile, the future wellbeing of the children is at stake. For social workers, the fear of getting it wrong can be overwhelming, and good training and support can help with the emotional and psychological impact of being involved in these stressful, highly charged decisions.

Social workers may be subjected to hostile media coverage when a tragedy happens or when parents feel their child has been removed unfairly. Sometimes furious family members threaten reprisals against social workers or vilify them on social media.

There are fears among some in the profession that this kind of threat might be exacerbated by recent moves to publish judgments and the names of social workers involved - unless there are compelling reasons not to.

The Unison survey found 97 per cent of respondents were worried by the prospect of their name appearing in media coverage of court proceedings.

Nushra Mansuri, professional officer at the British Association of Social Workers, agrees that training, support and the opportunity to observe more experienced colleagues in court are key. However, she fears many social workers lack the time to do vital preparation.

"You may be the best social worker in the world, but if you have not had sufficient time to prepare then you're not going to be feel confident," she says.

The Public Law Outline, which guides the process for taking cases to court, requires social workers to do as much preparation as possible before going to court.

"But in real time that can be difficult," says Mansuri. "Sometime local authorities might delay going into proceedings so they can do as much as they can before they get there. This is clearly not ideal if you've got a risky situation."

TIPS FOR GIVING EVIDENCE

1. The family court needs to know the local authority's case - the essential facts, the evidence the local authority is relying on to establish its case, what the local authority is asking of the court and why. This does not mean a long narrative of events but a succinct analysis of what the events say about the prospect of parents changing and the most realistic prospect for a successful outcome for the child.
2. Be confident in what you have to offer the court - it is likely you know the child and the family better than anyone else there.
3. Do your paperwork in good time. When people have difficulties, it is usually because they have not done the written evidence properly.
4. While there are still a few lawyers who treat cross-examination as a game or piece of theatre, they are very much in a minority. Most judges would now intervene to stop this.
5. Be honest when discussing the evidence, and don't try to deny there are good points about the parents. It is perfectly possible to say: "This parent has done a good job in certain respects but in other respects the job is not good and the child is suffering."
6. Questioning comes from a lawyer or barrister, but it is the judge or magistrate who is making the decision, so you should address your answers to them.
7. Although a bundle of documents has been prepared to assist the judge with understanding the case, do not assume he or she has read or understood everything.
8. Stay calm, remain in control and do not argue with the advocate regardless of their tone or possible rudeness. Retain a professional approach in all discussions in court.

MY DAY IN COURT

Paul McGrath was a team manager in a child protection team at Norfolk County Council. He has been involved in many care proceedings and supported and trained less experienced social workers. He is now studying for a PhD.

I joined the child protection team as a newly qualified social worker in November 2011 and went to court for the first time in May 2012.

It was a contested hearing. I was absolutely petrified. But my manager at the time came with me and he was really good. There was bad neglect, the parents had stopped us seeing the children and were very anti-intervention.

The hardest question is the first one: "What's the harm and why are you wanting to remove them now?" Your mind goes blank. But once you get over that initial question, it's not as hard as you imagine. It's not like Rumpole of the Bailey. The judge just wants to know what you know, because they want the best information. At that first hearing I got really good feedback. I knew the case - it was my assessment and my analysis. It's not just about going to court, it's the work you do beforehand.

Within minutes of the judgment, the parents are briefed by their barrister and then you have to go and talk to them and say: "We now have to remove your children." No matter what I felt, it was even harder for the parents. However, you do feel relief when it's all over.

I finished in court at about 6pm and the grandmother gave the children to me and a senior social worker at her house. We took the kids in the back of my car that evening. They were scared and didn't know where they were going. We placed them in two separate placements, leaving the last placement at around 10pm.

The only times I've really cried at work have been after court. This case was upsetting because it was my first one, it had been really stressful and I was knackered.

By the time of the final hearing, I felt fairly confident. By then I'd had court work training and I'd given evidence a lot so was more experienced.

I was in the witness box for 90 minutes, which is quite short - the longest time I've been in the witness box since then is around five hours. Mostly it was my barrister asking me questions. I can present things in quite an ordered way, and if you do that the other party's barrister won't cross-examine you for too long because, if they do, more evidence comes out and your case is strengthened. But if you start flapping around and looking like you don't know what you're talking about, they will go to town on you. If you have any weaknesses in your practice, they will pick holes. Some people get anxious about it. But the family needs to be sure that everything has been done fairly and legally, and they need to see that your work has been challenged critically.

In hindsight, I should have taken the case to court sooner, but I was newly qualified and I thought I could fix it. Within a couple of weeks of us removing them, the children were so changed. They've still got their challenges, of course - they suffered horrific trauma - but they are all doing well.