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Bad character evidence

 

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.

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

23 responses

  1. I will be interested to see when this issue arises, and how the Court’s deal with it.

    PLEASE SORT YOUR APOSTROPHES OUT!!

  2. “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.” And so it should, inexperience does not stop innocent families being ripped apart, so why should parents and children have to suffer at the hands of a social worker just because they are “inexperienced.” Although they may be inexperienced, hopefully their managers who ultimately sign off on their reports and actions aren’t. If they are God help us all…social work evidence is often flawed, sometimes deceitful, sometime blatant lies and hence perjury. This must be stamped out immediately, of course were the family courts to work on thy basis of “beyond reasonable doubt” rather then the “balance of probabilities” then fewer children would be taken into “care” and endure the abuse so oft perpetrated upon them.

    • Ashamedtobebritish

      Unfortunately, the managers who are supposed to read and sign off the reports, often don’t, that’s a problem in itself as when they’re caught lying, everyone looks to how the manager allowed this to happen, he/she then creates a whole new dynamic to cover the sw and his/her own failings, usually by lying

  3. Ashamed to be British

    Thats why they should get proper training, not leave open university (not that there’s anything wrong with getting your degree there, I did) and let a 22 year old loose on a poor family where no one has half a clue on law and what’s what.
    To top it all these sw’s make it to management within a year just to fill the gap from the manager who has left because they’ve had enough of the stress
    Blame the system

  4. “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.”

    How are those text messages, status updates, emails and so on legally obtained? How does SS access those “legally”? Through a court order, from the provider directly, through a RIPA? Or are these text messages and emails that were send to them directly, and are public FB status updates, commentary and similar quoted?

    Please elaborate.. thank you!!

    • Court orders are sought and obtained. Facebook status updates, if someone is foolish enough to have open privacy settings, are available for public inspection. With emails, it is often that when parents or parent + boyfriend fall out, one produces the emails.

      • Thank you! 🙂 It all relies on human weaknesses, doesn’t it 🙂

      • “Court orders are sought and obtained.” – Court orders to access email account via a provider such as gmail or text messages via a mobile provider?? All else which is public or handed over by “friends” is dealt with as public domain evidence?

      • Haven’t ever seen emails ordered through provider, but phone records yes. And yes on the second question. If things are in the public domain, they can be produced if material evidence

  5. I think this would be disastrous. Courts would be reduced to tittle-tattle and bickering. Although opening up the child protection system to public scrutiny has been a good thing, the need to respect the privacy of individuals should not be forgotten.

    The social work profession claims to be committed to ethical practice but unfortunately it has been dragged into a different place through political correctness and has developed a hotch-potch of theories to accommodate to this. Much practice now strikes me as incoherent and no longer based on social work beliefs and values. Social work should be on the side of the individual and against the state when it acts in an authoritarian and oppressive way. Unfortunately, many influential people within the profession have an ideology of opposing the social control function of social work and students leave training courses expecting to be therapists, not social workers. They show a high level of trust in parents, prioritising their child’s needs, but if this proves to be incorrect a punitive approach is adopted. Training should be much more focused on helping social workers develop the skills to challenge constructively and to consider risks.

    Social work is in bad place at the moment and will have to change. The political will for this has not existed in the past but the treatment of Ashya King’s family has exposed the problem of excessive state interference in family life. There seems to be growing political interest in the philosophical issues around state intervention and family life. Hopefully this will force social work to change its flawed ideology.

    • Ashamedtobebritish

      Unfortunately social work doesn’t work like that, it’s literally a case of ‘if your face fits you’re ok’ – a sw who takes a dislike to you will make your life a living hell and they’ll side and even place a child with an abusive family member in order to get the point across that they are in control.
      Regarding the kings, that’s what happened to them, they did nothing wrong, families go abroad for treatment all the time, but for them, their face didn’t fit, so the child is now being abused by the system. I’m pretty sure ss are involved in this but have not put their name to the case, keeping very quiet, because they know the fall out will be disastrous for any future crimes they have planned

  6. Pingback: Bad character evidence | Children In Law | Sco...

  7. It is bizarre to consider that Munro (2011) undertook an independent review of the whole Child Protection system and clearly indicated that Child and Family Social Workers do not receive adequate training in the very areas of practice that are vital Court assessments and reporting – such as how to engage with parents and work with complex families, ‘communicating with children’ and ‘communicating with men’ were other gaps if I remember rightly.

    Why then did the Family Justice Council ever recommend in November 2011 that, in effect, Social workers can undertake all the assessment and reporting roles that used to be the province of experts? I know there has been a strong anti-expert agenda for some time now but, speaking personally, I have always needed every bit of my training, my NHS mental health experience and all the other additional training I have chosen to undertake in order to produce decent ‘expert witness’ assessments of families in Care Proceedings – and that training involved several years worth of academic, theoretical and practical work on how to engage clients with different needs and problems, amongst other relevant stuff.

    What on earth is being achieved by the FJC and Ministry of Justice on the one hand publishing endless guidance, reviews and recommendations which basically suggest social services/social workers can now do everything all by themselves including assessments, Court Reports and apparently all the therapeutic interventions according to this brand new shiny MOJ/DofE ‘research’ (link below)

    http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330332/RR369_Assessing_parental_capacity_to_change_Final.pdf

    And on the other hand publish what appears to be more and more evidence from Judges and on Appeal which, in effect, simply reiterates Munro’s findings that Social Workers in many situations are being given a task which is beyond that which they have been trained for and are then being ‘exposed’ publicly in Judgments and Appeals for lack of competency in key areas which the FJC/MOJ knew from Munro’s evidence was the case all along!

    Taking your point about exposing the behaviour of professionals to the same level of scrutiny as parents have to suffer – I have been wondering about this one..

    Say you have a parent who had a period in care as a child. This period in care was unstable, lots of placements, some which broke down due to ‘behaviour’ and some which broke down due to LA failing to put right services in place (home tutoring etc). The parent in question remained strongly attached to birth parents and ran home to them as often as possible.

    As ‘corporate parents’, the LA undoubtedly evidenced some serious failings and neither the parent or her own birth parents emerged from the experience with a positive relationship with LA.

    Parent then has their own child and is wary of LA involvement.

    I am sure this kind of scenario is familiar to many but my question is this..parents who have been in care as children and reunited with their birth parents as adults are often expected to ‘keep their distance’ from their birth parents when they have a child of their own, and to ‘show insight’ into the relationship problems and risks related to their birth parents. This may be quite appropriate in certain cases but what if the parent has a legitimate case that their ‘corporate parent’ has also failed them in the past, not always been honest, introduced endless different people to the child (due to staff changes), not created a stable home (due to placements ending) etc. How then can the LA expect the parent to be completely open, honest, accepting of advice etc etc in their Care Proceedings dealings with the Local Authority whilst they are simultaneously expecting the parent to have ‘insight into the problems between themselves and birth parents’ and often, as a consequence, not see birth parents, not seek support from them etc It has always amazed me that parents are supposed to apparently disregard any negative experiences they have had whilst in Care and completely ‘engage’ with the Local Authority the minute they have a child themselves, when, one could argue that distrust of a Corporate parent that has ‘failed’ you is actually a sign of a protective parent?

    I know that this is an over-simplification but perhaps the question is a relevant one in considering how parents might perceive real contradictions in what is ‘expected’ of them.

    • I would not be surprised if most social workers have suffered difficult childhoods themselves and this is why they want to work in children’s services. They may have ‘insight’ into how they were able to survive but should they expect this of parents? Perhaps they ought to be more interested in simply helping parents accept their own responsibilities?.

  8. I’m glad this article has tackled the vexed question of what to do about inexperienced social workers who are completely out of their depth but it saddens me that so many people think the child protection system is corrupt and have no confidence in it. I find it depressing that there is so much rage over injustices suffered that it is difficult to get beyond people’s need to vent their feelings. There is a disturbing tendency in all of us to disparage others and deny the difficulties in finding solutions to problems.

    Courts are expected to contain the tensions between parents involved in care proceedings and the social workers presenting evidence against them. The formality and structure of the court process are essential for keeping things calm and making sure that feelings are kept in check. While social workers have a lot of power it would be a distraction to start challenging them by producing evidence of their apparent incompetence in a previous court case. The focus should be kept on obtaining the key facts of the case, scrutinising and analysing them, and making decisions that are sound and fair.

    That is why I think it would be disastrous to go down the road of seeking evidence about the social worker’s level of competence to present in court. For the the same reason I think courts should not pay any attention to subjective evidence about the character of parents which may have come from unreliable sources. I’m very concerned to hear that bad character evidence is now such a large part of the social worker’s ‘evidence’. In my day the ‘evidence’ I produced was based on my knowledge of the family through working with everyone in the family – I thought hearsay evidence was not permitted?

    • Ashamedtobebritish

      Hearsay evidence is not permitted, but judges allow it anyway.
      Although I’m somewhat in agreement with you, and also believe proceedings should focus on the child’s needs rather than character assassination of either party, we have unfortunately reached a point where there is so much corruption within the system from bottom to top, that any desperate parent is going to seek to lead the court into believing the social worker is unreliable in their evidence, this rarely works as even with evidence of false reports, lies and general misconduct, judges tend to dismiss the fact.

      You have to remember, back in the day, social workers did a job, they didn’t have endless streams of supervisors, line managers, senior managers and so on to get through, they were trusted to get on with it, that’s changed, with the awareness of corruption, child abuse, grooming etc, they have become very much seen as the most untrustworthy profession in the uk, backed by unscrupulous judges.
      When I was a child we had one social worker (who I might add was simply brilliant) looked after children today, have several changes of social worker in a short period of time, leading to confusion, mistrust and chaos, not only for the child but the entire family, as everyone works differently, the goalposts constantly change, it’s bound to cause resentment.
      On an end note – if you’ve been stitched up and that leads to you losing your children to the state, the social worker is going to get the full brutal force of the fight. All that needs to change, is the lying, no one trusts them any more and anyone with any sense certainly would not seek help from them, because without a doubt, they’d be punished, victimised and drowned under reams of accusations, falsified reports, meetings, psychologists, parenting courses, mother and baby units, division between families, blackmail and inevitably removal of the child, why would anyone purposely make themselves a victim of circumstance twice over?

      • “Hearsay evidence is not permitted, but judges allow it anyway”
        That is completely wrong. It is the other way around. Under s1 of the Civil Evidence Act 1995 evidence is not to be excluded on the ground it is hearsay. The relevant procedural rules are set out in the FPR at Pt 23.

      • Ashamed to be British

        No, it is not wrong, I will be attending court (again) week after next, the judge ripped up a residency order and handed the child over to the other party on hearsay evidence, which I might add, was shoved under his nose upon the party walking into the court.

        So we asked him to recuse himself, which he did, for that reason and a couple of other misdemeanour’s he’d got up to over several months.

        The law says they can’t allow it, the law says a lot of things, it doesn’t mean the judges follow it

      • What Jim is saying is that the law is that hearsay evidence is permitted in children proceedings. And he is right. It is. There is guidance that the Court should be mindful when evidence is hearsay evidence and ensure that when deciding how much weight to give it this is taken into account. But hearsay evidence is admissable in Children Act cases, and a Judge who allows it is not doing something they shouldn’t.

        [There’s a different argument about whether that is right, but in terms of whether it is legal to admit hearsay evidence, there’s no doubt. It is. There are some other wider issues in your particular example, and article 6 is probably your best point – one should not be putting documents in to the Judge that the other side have not been shown and the other side should have proper time to read and consider them, and have the opportunity to respond]

      • Ashamed to be British

        Oh I did, I kicked up a merry stink, regarding last minute hearsay evidence and relying on evidence that was not in the bundle, I left fuming when he dismissed my concerns regarding art 6 & 8, refused to hear my parties evidence that was in the bundle … which led to asking him to get the hell off the case (I might have hinted at some blackmail if he didn’t do one)
        I wouldn’t really have made such a fuss if the child didn’t suffer as a consequence of his stupidity, however, the decision did lead to further emotional abuse, bear in mind that this judge already knew the child was suffering emotional abuse at the hands of the other party, the child will now be in therapy for years, it was a train wreck all the time he was hearing it.
        Thankfully we have successfully transferred the case to a different county, with a judge who takes note of all parties evidence and even opinions

      • I have to say I’m a little bit confused as to why your response to someone explaining out what the law is—and citing the authority for the proposition—has been met with just a bare assertion that I’m wrong. I’m not, and you can read the Civil Evidence Act 1995 for yourself if you wish as it is available for free online at http://www.legislation.gov.uk/ukpga/1995/38

        Section 1(2) actually defines hearsay. You might find that useful as the legal definition of hearsay might be slightly more nuanced than you had previously believed. If you have an interest in the procedural rules about evidence in family proceedings you might find Parts 22 and 23 of the FPR worth a read.

      • Ashamed to be British

        Sorry Jim, I read it wrong, I thought you were saying they aren’t taking hearsay evidence when they are, my bad, apologies again

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