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9.5 Giving Evidence in Court

Contents

  1. Preparation for Contested Hearings
  2. The Day of the Court Hearing
  3. Outside Court Discussions
  4. The Court Hearing
  5. Examination in Chief
  6. Cross-examination
  7. Re-examination
  8. Legal Issues that May Arise Whilst Evidence is being Given
  9. Confidentiality
  10. The Sources of Law


1. Preparation for Contested Hearings

It is absolutely essential to have easy access to and to have read all the statements and reports that have been filed in the proceedings. Prior to a contested hearing, our support staff will have prepared an indexed bundle of documents for the court and the other parties to the proceedings and should provide you with a copy of this index so that you can ensure that you have all the court documents and can therefore access them easily for reading through at any stage before and during the proceedings. If your court documents are in a muddle, ask your lawyer to provide you with a copy of the court bundle.

Although you should be familiar with all the documents that make up the bundle, you should focus your preparatory reading on the issues in dispute and the issues that the court is being asked to decide.

You should always be clear about the issues in dispute prior to any contested hearing and should discuss these with your lawyer.

Generally for a contested final hearing you will need to bring all CYPS files to court as well as the court papers. This means that if you are asked to clarify or expand on a point in one of your statements you are in a position to do so. It has become less common for social workers to need to refer to information in their files, as statements have become so much longer. Nevertheless, the chances are that if you do not bring your files you will need them. If you do bring them, you probably won't!

You also need to know the order in which witnesses will give evidence. In cases involving jointly instructed expert witnesses, the expert witness will generally be the first witness. If there are other local authority witnesses, they will generally give evidence before you do. However, these are not hard and fast rules and the order of witnesses will depend to some extent on who is available when. Generally, it is helpful not to be the first witness as it enables you to clarify the issues on which you are likely to be cross-examined and also familiarises you with the style and approaches of the other parties’ advocates.


2. The Day of the Court Hearing

Breakfast is recommended as it is best not to have to deal with a rumbling stomach at the same time as giving evidence.

It is always important to arrive at court at least half an hour before any court hearing and you should discuss with your lawyer when you should arrive. If you arrive late and discussions are already underway, you will inevitably be at a disadvantage.

Although the Family Courts are relatively informal, you should always dress in a way which shows that you take the hearing seriously and have respect for the court. It is equally important that you dress comfortably and feel at ease in what you are wearing.


3. Outside Court Discussions

Generally, the expectation is that social workers will actively participate in all outside court discussions. There may be issues that you want to discuss privately with the local authority advocate before the more general discussions take place. If this is the case, ensure that you let your advocate know that this is what you need.

Discussions outside court are often quite wide-ranging and informal. Parents' solicitors may be quite frank and open about the hopelessness of their client's case. You should not, however, see this as an invitation for copious criticisms of their client as this could be used against you at a later date.

Remember also that parents' solicitors generally have a duty to pass on any information given to them to their clients. If you are unsure whether information can be shared with other lawyers during a discussion between all the parties, ask to speak to your lawyer in private.

It is important to remember that, from the very first meeting outside court, the other advocates will be making a conscious assessment of their client’s children's social worker. If you can persuade them from the first meeting that you are competent, confident, professional and discreet you are likely to have a much easier time in court.

Even before you arrive in court, the process of assessing you will have been started by an assessment of the quality of the written documents filed when proceedings are issued.


4. The Court Hearing

The court hearing begins with the applicant's lawyer (in care proceedings always the local authority) opening the case. In the County Court and sometimes also in the Family Proceedings Court the local authority lawyer will have prepared a written case summary and the opening in court will therefore be very short.

The applicant will then present his/her case and call his/her witnesses. There are three stages in giving evidence as a witness: examination in chief, cross-examination and reexamination.

The rules of evidence provide that if a court hearing is adjourned whilst a witness is still giving evidence, for example adjourned for lunch or until the next day, the witness must not speak to anyone about the court hearing or about the evidence they are giving. This means that your own lawyer will not be able to speak to you during the period of adjournment. You may have to go to lunch on your own or may have to leave court at the end of the day and go into court the next morning without talking to your lawyer. This can be quite difficult, but is less painful if you are prepared for the possibility.


5. Examination in Chief

These are the questions your own advocate will ask you. Generally, examination in chief is very brief as your evidence will be contained in the written documents. However, as your final statement and care plan will have been completed some weeks prior to the final hearing, you will probably be required to bring the court up to date with significant events or changes to the care plan.

The rules of evidence state that, during examination in chief, witnesses cannot be asked leading questions in which the answer is contained in the question. If your advocate does ask you leading questions, they may well be challenged. The same rule applies to all witnesses but parents' advocates do often ask leading questions and are not challenged as it is accepted that parents may need to be assisted with their evidence.

Whilst you are giving evidence during examination in chief, it is a good idea to keep good eye contact with your own advocate as they should be able to indicate to you whether you should be expanding upon your answers or keeping them short. When answering the questions, you should address the magistrates or the judge.

The most important thing is to speak loudly and not too fast. In the Family Proceedings, the  justices clerk will be taking notes of all the evidence and in the County Court the Judge will take notes of what is said. Do not be surprised if you are asked to speak more loudly or to slow down.


6. Cross-examination

Generally, this will be the most lengthy part of your evidence as you will be cross-examined by the parents' advocates, any other parties advocates and then lastly by the solicitor for the child.

The magistrates and judge may also ask you questions. Magistrates usually wait until the end of your evidence but judges often interrupt as and when they see fit.

Cross-examination is generally the most difficult experience you will have in court. The rules allow the advocates cross-examining you to ask leading questions and you can expect to be questioned on factual details which are not agreed and to be challenged on your opinions.

There are several tips for surviving cross-examination:

  1. Remain calm and pleasant throughout the process. Even if the advocate cross examining you appears to be aggressive, aggravating, or critical, it is important (although difficult) not to take this personally. If you do start to take this personally, you will inevitably become defensive and your evidence will become less clear;
  2. Take your time in answering the questions. If you are not sure what the question is, ask the advocate to repeat it. If you have not understood the question, you will inevitably have difficulty in answering it. If more than one question is asked at one time, make it clear that you are answering the first question first or ask which question the advocate would like you to answer first;
  3. It is helpful to avoid too much eye contact with the advocate cross-examining you. This will help you to avoid getting locked into a confrontation with the advocate. Address your answers to the judge or magistrates. The process or turning your head to face the judge or magistrates will give you some thinking time and will enable you to feel more in control of the situation;
  4. It is important to be fair to parents. If a parent's advocate is trying to bring out positive aspects of their client's case it does not weaken the local authority's case to acknowledge the positives. Magistrates and judges are likely to listen to your views on the negative aspects of the parents' case with more respect if they have heard you acknowledge the positives;
  5. If you are unsure about something factual, say so. Ask to refer to the court papers or to your files if this is necessary;
  6. Remember that parents' advocates are putting their clients' case in as positive a way as they can. Sometimes it is helpful to turn a question round so that you answer not in terms of the parents but in terms of the needs of the children. It is helpful to keep in mind the reality of the particular children the case is concerned with and to remember that it is the welfare of the children that is the court's prime consideration;
  7. If you think that you are being asked a question which you have already answered, whilst being cross-examined by the same advocate, you can state this. You do need to be confident that you have fully answered the question and if so, you may find the magistrates or Judge will agree with you and direct the advocate to move on and ask a new and different question;
  8. Generally, you cannot expect your own advocate to assist you during cross examination. As you are a professional social worker witness, the expectation is that you are able to deal with the process of cross-examination and the rules provide for intervention from your own advocate in very limited circumstances. If you feel that you have said something, which on reflection you believe to be wrong, it is best to clarify this as soon as possible after you have said it. For example, you could say something like "I think I have just said something which gave the wrong impression" or "I made a mistake when I said that, what I meant to say was………";
  9. Generally, it is a good idea to keep your answers quite short, particularly if you are very nervous. However, it is also best to avoid one word answers such as "yes" or "no" as these answers could be leading you into a conclusion that you do not agree with.


7. Re-examination

This is when your own advocate has the opportunity to clarify with you any points that may have arisen during examination in chief or cross-examination. The rules provide that new evidence cannot be introduced at this stage. Generally, if it happens re-examination is very brief.


8. Legal Issues that May Arise Whilst Evidence is being Given

You may find whilst you or other witnesses are giving evidence that the evidence will be interrupted by legal arguments. The most common legal arguments that arise during evidence are as follows:

  1. An advocate is challenged for asking leading questions of their own witness;
  2. An argument arises about the weight to be given to a particular piece of evidence. "Hearsay evidence" is evidence given by a witness who does not have first hand knowledge of a particular fact, for example if a witness is telling the court about information given by an anonymous telephone caller. Unusually, hearsay evidence is admissible in care proceedings. Nevertheless, the court may attach less weight to hearsay evidence purely because the person who made the statement is not available to be cross-examined in court. You should not be thrown off balance if your evidence is interrupted by an argument about the weight to be given to that evidence. You are entitled to give hearsay evidence and the argument is a matter for the lawyers, and ultimately the court;
  3. Lawyers sometime argue about the order in which witnesses should be cross examined and the order in which they should address the court.


9. Confidentiality

Children Act proceedings take place in closed court with only the parties and their legal representatives being present throughout the court hearing. Witnesses remain outside court until they are called to give evidence. The magistrate or judge can give permission for them to remain in court after their evidence has been given.

Occasionally, the magistrates or judge will give permission for an observer to be present during the hearing, for example a social work student or trainee magistrate. Permission for observers will only be granted if all parties agree.

Information which is disclosed during the court hearing is confidential and should not be discussed outside the court.


10. The Sources of Law

Statutes

These are Acts of Parliament which are debated first by the House of Commons then by the House of Lords and usually again by the House of Commons. The Children Act 1989 and Adoption and Children Act 2002 are examples of statute.

The date refers to the year in which the statutes receive Royal Assent, not the year that they were implemented. For example, the Children Act 1989 did not become law until October 1991 and the Adoption and Children Act 2002 was not fully implemented until December 2005.

Delegated Legislation

Most statutes contain a power for what is known as delegated legislation. Proposed delegated legislation is placed in the House of Commons and the House of Lords for a specified number of days. Following that, the delegated legislation comes into force.

Sometimes there will be a vote on the delegated legislation and sometimes the delegated legislation comes into force automatically unless a vote is requested by a sufficient number of MP's.

Case Law and Statutory Interpretation

One of the functions of the Higher Courts is to interpret the meaning of the law as it is set out in the statute. In the seventeen years the Children Act 1989 has been in force, there have been hundreds of reported cases involving statutory interpretation of different aspects of the Act.

The Lower Courts are bound by the Higher Courts' interpretation and all courts are thus bound by the interpretation of the House of Lords.

Generally, lawyers are concerned to ensure that the court is made aware of all case law that might support their client's case. The local authority lawyer and child's solicitor has a more general duty to ensure that the court is aware of all relevant case law.

Guidance Documents

CYPS guidance documents are generally issued by the Secretary of State. When guidance documents are issued under section 7 Local Authority Social Services Act 1970, although not legal documents they must be adhered to unless there are justifiable reasons for not doing so.

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