There are all sorts of rules and guidance in criminal proceedings as to when you can, or can’t adduce or cross examine on ‘bad character’ evidence. We don’t have those rules and guidance in care proceedings (yet).
If you are a parent in care proceedings, every bit of your life is pored over. There will be a life history, assessments, questioning, examination of records relating to school, health visitor and sometimes your medical records. You will find yourself scrutinised – if you are foolish enough to have an open Facebook page, you might see that produced – you might end up with your text messages being obtained and released into the proceedings, maybe your emails too.
So in a sense, a lot of the proceedings can be (or at least seem to be) about bad character.
There’s a new development though, which is that judgments in care proceedings are being published. Those can (and generally should) contain the names of the social worker and Guardian.
Now, what happens if in one of those cases, the Judge says that Steve Pink (your social worker) has done a bad assessment, hasn’t been fair, didn’t keep proper records and fell short of the standards required of a social worker conducting an assessment. (Or the Guardian, the same principle works for both)
(Or if you want a real example, read the last blog post – I don’t want to pick on those professionals specificallly, but I can see that there are things in that judgment that they wouldn’t want to be cross examined on in other cases)
If the parent’s case is that the worker has done the same thing again with THEM, are they entitled to cross-examine the social worker or Guardian about those matters? Is it material evidence that could undermine their credibility and bolster the parent’s case?
It would seem to be so. It probably feels uncomfortable and worrying for professionals that things they got wrong in one case could come back to bite them in another. But think for a minute – if the judgment was about the father instead, it would be relied on and used in care proceedings. Is what’s sauce for the goose sauce for the gander? Or is it on the parent who is ‘on trial?’
I will be interested to see when this issue arises, and how the Court’s deal with it. There’s a risk of article 6 unfairness if something material isn’t admitted (I think it has to have relevance to the case – i.e the complaint the parent is making has similarities, not just being done to make a witness squirm – there are some strictures against that in the Bar Council Code of Conduct (g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person – I’ve seen plenty of people sail pretty close to that though)
Once the genie is out of the bottle though, it has implications – suddenly everyone has to search case law for any references to the social worker, Guardian or other professional witnesses to see if there’s any dirt there, the Court has to slog through an entire judgment on another case to ensure that the criticisms are not being cherry-picked out against a more positive overall view. And a Court might feel fettered in naming, or shaming a social worker if they know it might be brought up time and again. Also, it places even more pressure on social work evidence, particularly for the inexperienced ones who might have a blunder in one case dog them for the next year.