Panorama – Protecting Our Children – A Balancing Act

Ironically, given the title, the preponderant comment I’ve seen about this Panorama (even before it was aired tonight) is a complaint about a lack of balance. Social workers (because it did seem mainly to be social workers making such comments on my social media when a post by Community Care magazine popped up on my Facebook feed) are not, it turns out, clairvoyant – either when it comes to predicting the risk of future harm to a child or when predicting whether an unseen documentary will show balance. Because it was actually pretty balanced.

I’m not completely impartial, of course – I have two connections to this documentary that I should own up to before going further. One is that the journalist who was behind it and who fronted it (Louise Tickle) is a former client of mine (and a colleague in other capacities), and the other is that two of the parents interviewed for the programme are my former clients. I’m not going to comment on their case beyond inviting those who are interested to read the judgment, and to observe that, insofar as ‘my’ case is concerned, the documentary was fair and balanced and properly reflected the court’s findings after a long and careful court process and trial. At least some of the other cases covered are also the subject of published judgments so anyone who is worried about a lack of balance can check those out for themselves. Just go to Bailii.org and search for keywords ‘Hereford’ and ‘Keehan’. If you need to narrow your search you could add in the word ‘egregious’ or ‘failure’.

Anyway, I was shocked at the time of my Keehan / Herefordshire case, about the fifty shades of dismay that emerged as the case progressed, and I defy anyone who has read the judgment to be at all surprised to hear the sort of comments that came from the adoptive parents in that case (voiced up by actors to protect their identity and those of the children). Of course they are angry and upset.

What I came here to say – intentionally pretty much immediately after I watched the show, since everyone else has shot from the hip – is this…

It is so depressing to see people rush to judgment before they have even seen the programme. Based on their jaundiced views of the media generally, their negative views of the previous work of this journalist or upon their general defensiveness against any criticism of their profession.

It is just as depressing to see them shoot off having seen the show without going away to read the actual findings of the court (it was pretty obvious from some of the post-show comments I’ve seen that some still believed the show to have aired spin rather than the conclusions of the court – even though the judgments were specifically quoted).

It’s even more depressing to see people (mostly social workers) complaining that a journalist has chosen to write about local authority failure rather than all the good things that social workers do. Social workers are under-resourced, over-worked, their task, skills and dedication under-appreciated, and they are often wrongly criticised (most of which is repeatedly acknowledged in the documentary by the way). But people don’t make documentaries about stuff that is working ok. Firstly because nobody would watch it. And secondly because it’s much more important to expose things that are going wrong. Over the last few years I’ve learnt quite a lot about how print and broadcast journalism works and I’d bet my house that you’d never get such a show commissioned let alone to air (if you want to get a sense of how much work goes into getting something like this through see Louise’s tweet thread earlier here).

More to the point : this was not an example of social workers wrongly criticised by the venal media. This was an example of local authorities RIGHTLY criticised – by a judge. Repeatedly. After proper scrutiny. And of a public service broadcaster bringing that – already largely public – information to a wider audience, and in a format that they can better engage with than several lengthy detailed and excoriating judgments. I’ve seen several outraged comments from tweeters who had clearly never heard of the twins case until they saw this programme. But it’s all out there in the public domain. That’s the power of the broadcast media. It has reach and it has impact that mere publication of a judgment in some internet backwater.

And what I also noticed when I watched this programme was that – right from the start – the script was actually pretty sympathetic about the chronic difficulties social workers face – asking in the opening section ‘Are social workers properly supported to decide who is at risk and who isn’t?’, and going on to involve respected social work academics to help show the systemic problems that sometimes contribute to or cause failures of the sort that happened in these Herefordshire cases, and which touched upon the impossible decisions that social workers are often called upon to make.

There was no blaming of individual social workers by the presenter or academic interviewees (although Mrs Justice Lieven had given permission for the social workers in one case to be named, in fact they weren’t). There was scrutiny of the system. Which on any sensible view has gone horribly wrong for quite a lot of families in Herefordshire. And possibly more widely. At a time when the Care Review is about to be published and our news is full again of horrific stories of small children dying and possible safeguarding failures this sort of public debate is pretty critical. Difficult, but you don’t solve a problem by ignoring it and patting social workers on the back. You solve a problem by making systemic change that supports families and supports social workers.

No, the only people you heard in the programme directly criticising social individual workers, attributing to them motivations which I know most social workers would feel hurt, uncomfortable and affronted to hear – was the families (both parents and in one case a young person who had been in foster care). They were aggrieved. They were hurting. They were angry. At the harm caused, at the time lost with their families, at the stigma, confusion and anxiety they had felt and continued to feel.

Their perspectives are of course not ‘neutral’ (whatever that means), and what they choose to focus on is inevitably only going to be a tiny part of the bigger picture. But it’s their story and their experience, and it’s how it felt to them. They are describing what state interference with their Article 8 of the European Convention of Human Rights feels like – they are bringing the law off the page. This is how it feels to lots of families – both to those who are actually ‘wronged’ by social services, and sometimes to those who are caused pain by social workers who are simply doing the right and necessary thing. And I think we should respect and listen to those stories and give them some validation. It is easier to discredit or turn away from those accounts that are dissonant from our internal narratives that we are good actors doing the right and necessary thing to protect and rescue children – but part of good judgment (as a social worker, a lawyer or a judge) is about tolerating, listening to and thinking about the impact of our actions on others – and asking whether stepping in and removing might be more harmful than leaving a child at home. If we stop listening to parents when they push back – even though they sometimes say things that are difficult to hear, unfair, or even unreliable – then we may well find we resemble the criticisms of some of those panorama parents rather more than we care to believe.

Those parents talked about feeling judged and not listened to. When I see those hackneyed old knee-jerk complaints of ‘but it’s not fair, Miss!’ that I’ve heard a hundred times before whenever anyone wants to talk about social work gone wrong, I think those parents might have a point. They aren’t always listened to. And sometimes they are right.

Any professional with life changing responsibilities has to be able to tolerate a level of challenge and a level of accountability. That’s hard (I know it’s hard because lawyers get exactly the same blame for judgment calls we’ve made, and for things that we can’t change, too). But it’s not really optional if we want to be trusted and respected.

I’ve not tried to re-locate and quote from specific tweets and comments I’ve seen – I’ve been intentionally broad brush about the themes I saw this morning, and again post-airing. But it’s right to say that this ‘Why don’t you ever talk about how we save children from abuse?’ whataboutery-type response to journalism that has scrutiny rather than PR as its aim, is fortunately not the whole picture. From what I have seen so far, the show has also prompted a much wider range of responses than that, many positive or at least constructive. And that is what it’s about : Public awareness, debate, disagreement and maybe change – not shutting down of criticism and battening down of hatches.

And now I should stop fretting about stuff I’ve seen on the internet and go to bed.

 

Self-reflective learning journal (aka navel gazing)

Fresh back from a CPD weekend and I’m full of ideas for blog posts, albeit slightly tired and emotional (there may have been some socialising too – the children keep correcting me when I say I’ve been away for work: ‘No mum, you’ve been to a party!’).

Anyway, high hopes of knocking out a blog post on the train up and another on the train back did not materialise, but since I am in that sweet spot between a long trial collapsing at the last minute and the diary refilling itself, I have time to ruminate, to limber up my blogging muscles before embarking on the half a dozen chonky ones that are taking up RAM in my brain, but which I will need to be able to focus on rather more than I care to do today.

I’ve been using this blog as a sort of combined CPD motivator and therapeutic vehicle for almost 15 years (3/4 of my professional life!). I checked back to see that in July 2007 I wrote my first post. It was….underwhelming.

Its Sunday night and I’m all prepped for my trial tomorrow. So finally a few minutes to make my first entry. Unfortunately little energy left to think of something sparkling to say. But I have lots of ideas brewing in my mind at the moment which I hope will emerge here sooner rather than later. Bear with me. Life is busy.

Yes, that’s the entire post. Admirably – and uncharacteristically – brief. But it’s as true as ever on this Sunday evening. Life is busy. And blogs have been ever thinner on the ground as the years have worn on.

I have found over the years that I can trick myself into making time to do things if I promise to do them publicly on this blog. This ridiculous home-made psychological medicine saw me through the training for my first half marathon (absolutely no way I’m going to publicly promise to do that again!), and (after a couple of attempts) got me off the cigarettes. So, the theory is that if I write a blogging ‘to do’ list and share it with you, I’ll have to make good on my promise.

  • Financial remedy transparency – this is occupying about fifty percent of my brain at the moment, at the expense of basic motor functions. I have read Xanthopolous and Sir James Munby’s detailed piece in support of it, and today Christopher Wagstaffe’s equally persuasive and beautifully written riposte. I’d like to add something useful to that discussion, but it’s percolating. And it’s a frankly daunting follow up act to attempt.
  • Domestic Abuse – the prohibition on cross examination will be in force very soon (June) – as soon as the final version of the rules and guidance are published I shall have some thoughts to share.
  • I *might* venture into the water on the Amber Heard / Jonny Depp trial that is currently ongoing. Not because I know anything about US / Virginian law or libel law generally, not even because I’ve watched more than a snippet or two of the trial, and certainly not because I know who is telling the truth – but because I am really troubled by both the trauma and abuse as entertainment that this trial has facilitated, and by some of the responses by both lawyers and lay persons to what they’ve seen or what they think they’ve seen and as to what a fair trial looks like.
  • I am slowly, intermittently, plugging my way through a book called ‘Challenging Parental Alienation’, which I have promised to review. It is possible that I’m subconsciously putting off reading it in order to delay the moment when my review prompts a wave of twitter outrage or critique – something I’ve no doubt will arrive at my virtual door no matter whether I give the book a rave review or a rotten tomato (since merely tweeting a picture which incidentally showed a corner of the cover on my dinner table seemed to prompt a surprising amount of responses from those wishing to make a point about alienation and about my assumed views, as divined from my mere proximity to the text). But I’m not going to chicken out, even if parental alienation is a horribly toxic topic which I’d rather steer clear of.
  • I have a fuzzy outline for a post about clients who transgress the boundaries in the lawyer-client relationship.
  • There are several interesting judgments I’d like to write up – either here or on the Transparency Project blog (a case about the use of intimate images and the Somerset judgment)
  • I’m following with interest the developments around BAILII and the National Archives…that might involve a blog post at some point too.
  • The 4th edition of Family Court without a Lawyer is going to the printers very soon. I shall of course tell you all what’s new in it since last time once that is done. Might be a blog post or a video or both.

As you can see there is a lot going on in my head. Better out than in though, eh?

I dare not put any realistic timescale on this frankly ridiculous list of stuff to write about, and I must lay down a marker for myself that I do need to spend some time doing something apart from law (and crochet) – and so next weekend is earmarked for sorting out the garden, tidying the house (we’re getting ready for a Ukrainian hopefully, so lots of ‘stuff’ needs sorting, moving, chucking) and for making rhubarb, ginger and chilli jam. I owe myself the space to do that too. Having spent a reasonable amount of time of late staying away from home for work and for ‘parties’, I am genuinely longing for a bit of pottering around the house and garden, restoring order in my environment as well as inside my head.

Anyway, for now, much like 15 years ago, I have little energy left to think of anything sparkling to say right now, so I’m off to vegetate…

 

Lying lawyers – when is a lawyer misleading the court?

It’s not uncommon to see litigants complaining on social media about lawyers lying on behalf of their clients. It’s almost as common to see lawyers getting a bit twisty about those complaints, and feeling affronted at the suggestion.

This is because honesty is fundamental to the legal profession and any suggestion that a lawyer has been dishonest is a BIG DEAL. It makes all lawyers look bad when that happens. Lawyers jealously protect the reputation of their profession – the justice system depends upon it.

But I think we can do better that just saying ‘lawyers don’t lie’. The truth is that sometimes they do – we know that because sometimes one of our regulators publishes a decision that says as much. Usually when dishonesty is proved the sanctions from our regulators are serious. A solicitor might be struck off (by the SRA), and a barrister disbarred (by the BSB) – sometimes these career ending sanctions are imposed even where the dishonesty in question is comparatively minor (because actually dishonesty is never minor for a lawyer).

I think it might be helpful to explain what the rules are about honesty and what lawyers are and aren’t allowed to do – and a bit about what they are required to do. Because what I’ve seen over the years is that what a lay person will see and describe as lies or dishonesty, is in fact usually just a misunderstanding of a lawyer doing their job. I’m going to look specifically at the rules for barristers because that’s what I know most about, but the rules governing solicitors are very similar.

Barristers have 10 core duties, of which the first three are most relevant here :

CD1 You must observe your duty to the court in the administration of justice [CD1].

CD2 You must act in the best interests of each client [CD2].

CD3 You must act with honesty, and with integrity [CD3].

In addition, there is a fourth duty I want to highlight for the purposes of this post : to keep the affairs of each client confidential (CD6)

You can find all the rules here in the Bar Standards Board Handbook, in the Code of Conduct section.

A lawyer’s main job is to represent their client BUT their duty to the court trumps that duty when they clash. To use the words of the guidance : “CD1 overrides any other core duty, if and to the extent the two are inconsistent”.

The guidance also says that the barrister’s duties to the client is subject to the duty to act honestly.

Conduct rule rC3 says a barrister “must not knowingly or recklessly mislead or attempt to mislead the court.

Sounds simple (maybe), but I can tell you that this is not easy to operate in practice. I and my colleagues have agonised over how to do right by all the rules in many cases. Most of us will have talked these ethical issues through with colleagues or with our ethical hotline before deciding how to reconcile a tension between our clients interests and instructions and our other duties – sometimes they can’t be reconciled. In those crunch cases we have to withdraw and walk away. That is not a decision to be made lightly. I’ve done it maybe three or four times in 20 years.

Let’s go back a bit to help you understand why this is actually so tricky and why people often make the mistake of thinking lawyers lie.

First up : clients lie. Not all of them, but some. Some of them lie to others, some to themselves (that is to say they might be inaccurate but actually believe what they are saying is true).

Second : it isn’t a lawyer’s job to judge which clients are lying. That’s the job of (as the title suggests) the judge. The lawyer’s job is twofold : to advise the client confidentially, and to present the client’s case (whether it be strong, so so or rubbish) to the court as best as can be done. And the barrister must do that fearlessly and independently, as long as the other conduct rules aren’t breached.

That doesn’t mean a lawyer doesn’t have a view about whether the client’s instructions are true. It is part of a lawyer’s job to advise a client (confidentially) of their view of how likely a client is to prove the facts they need to prove to win their case, and that necessarily involves thinking about how plausible the client’s account is. But a lawyer isn’t advising on the basis of what the lawyer believes is true or whether they think the client is lying: instead they are advising on how likely they think it is that the client’s account will be believed (by the judge or jury in court after the evidence has unfolded and been tested through a trial). It is quite possible for an honest client to have a case that is (for various reasons) very unlikely to be proved, or for a possibly dishonest one to have a good chance of proving facts that aren’t actually true (though the general idea is that the process should weed out a good portion of these, the system isn’t infallible – courts don’t find truth they decide what is likely to have happened).

More than that, whether a case is proved is not only about the honesty of the party or witness. Honest witnesses can be mistaken witnesses, and lots of people are just rubbish historians. Two witnesses giving incompatible accounts might both be doing their best to be honest and accurate. Sometimes some other evidence will show that what an apparently genuine witness has said just can’t be right. If the judge concludes that the witness was wrong that doesn’t necessarily mean they were lying (if a judge has concluded that the witness was lying they will generally say so). Non lawyers tend to leap from something not being proved or something having been proved as long as equivalent to a lie by the person asserting it, and as equivalent to a slam dunk that automatically means that person or party should lose. But that isn’t how the system works.

Because of the way the court process is structured, a lawyer quite often has to present the facts of the case that they might suspect (possibly even strongly) are not true or accurate. They might have a hunch that the client is not telling them the truth, they might know that the client has not been honest about some other things and might be worried that they are not being told the truth now. They might have formed the view that the client is not going to be a very good witness, or that they have subconsciously filled in the gaps in their memory in retelling their story (this is a known phenomenon). But at the end of the day, the lawyer’s job is to present the case so the judge (or jury in a criminal case) can decide where the truth lies. It is not unethical to do so, even though for someone on the other side of the case who knows (or believes) that the client is lying, it can be hard to stomach.

A lawyer with such a client walks a fine line between ‘respectful skepticism’ and forming a view. Challenging a client in private about the apparent inconsistencies or weaknesses in their account is part of the job, but it is also part of our role to suspend disbelief – a lawyer who either believes a client too much or takes too skeptical a view of an apparently dishonest client is going to end up at risk of doing a poor job when presenting the case because they’ve lost their professional distance. So we try to stay objective. Clients who demand in conference to know whether I believe them are often disappointed and taken aback when I decline to answer, telling them its not my job and the thing they need to worry about is whether the judge will believe them. Clients (honest ones and dishonest ones) think they need a lawyer who believes them. But that is not actually what they need. They need a lawyer who will listen to them, and who will be open minded, and who will then tell them honestly before the show that they think the judge is never going to buy this, or that there is a risk they won’t (as appropriate) – and who will go on and run their case to the best of their ability based on informed instructions from a client who knows the risk. If my client wants to lie to the court that is their risk. They will have been warned. If my client wants to give a difficult to win case a good shot then I will do my best to get them home. Sometimes we win cases that looked weak before the start of the trial. Sometimes we lose cases that looked like a dead cert.

For my part I can think of many cases where I’ve had to present a case where I suspected the client was not telling me or the court the full truth. Frankly, in my line of work its very common – some might say in many family cases at least one party has to be telling fibs, although I tend to think that genuinely different perspectives, subconscious rewriting of history to dampen emotional pain and fallible memory are more often to account for incompatible histories.

If I only represented clients who I was confident or sure were totally honest not only would I be out of work but many many parents would go without the legal representation that they deserve and need. Even dishonest parents deserve representation. And as we often submit to judges in line with a case called R v Lucas, witnesses lie for many reasons – shame, embarassment etc. And just because someone has lied about one thing doesn’t mean they have lied about everything. Nor does it mean that their case is necessarily bad, it just means that the judge has to think really hard before accepting their evidence on the facts.

There are of course quite intentional, manipulative and persistent liars in the family and other courts. Some of them are my former clients. Only last week there was a published judgment awarding (unusually) costs against a mother who had been found to have made up various things in an attempt to scupper a father’s contact. So there are potential consequences where dishonesty is proved, and of course there were consequences for the father and children in that case whose relationship was impacted by the lies or at any rate by the delay during the process of sorting out the truth from the lies.

Imagine this : you are a parent who has been assaulted by your partner. They say you have made it up. You have no ‘evidence’ – no pictures of injuries, nobody saw it happen. You didn’t tell anyone at the time and you stayed. From the outside it was a happy family. You have now told the police about this but realise that you’ve got your dates muddled, all the events blur into one and you’ve mixed up one assault with another. You’ve ended up giving unintentionally inconsistent accounts. You are traumatised, you can’t remember all the details or the sequence very well. You remember smells and odd snippets but not what started the argument. You are worried your account might not be believed. Would you want your lawyer to judge your honesty and decide whether to represent you based on that hunch? Because it would be a hunch if I made my mind up about that before sitting through the evidence, before seeing your evidence tested, before testing the evidence of your assailant. I know this because I have gone through this process so often over 20 years. You appraise the evidence on the papers, you meet the client – are they likely to be a credible witness, are they going to fall to pieces, clam up or fly off the handle when they get in the witness box? How plausible will the other party be? But you never know. You never know until they get in the box. You never know until the last question is answered. Sometimes the strongest looking case springs a leak after the first question and sinks rapidly from thereon in, whilst sometimes a client you thought would be a disaster gives, under pressure, a coherent, plausible and detailed account of what is obviously their lived experience. Sometimes a witness you thought you had nothing to ask proves your case for you the minute they open their mouth and sometimes a witness you thought you’d be able to cross examine very effectively is utterly impenetrable.  And sometimes, it has to be said, you think the trial has gone in one direction and the judge then takes a completely different view and believes the witness you thought was not remotely credible. This is known as ‘litigation risk’.

So. To go back to the original issue : when a lawyer says ‘my client was assaulted five times in 2021’ (or whatever fact it is they are asserting) they are not misleading the court if, at the time they said it, the lawyer strongly suspected it wasn’t true and it had all been made up. They are not misleading the court if it turns out that allegation isn’t proved. They have not misled the court even if the judge positively concludes it was a lie on the part of the client. They have presented their client’s case, which is their actual job. The lawyer is not a liar.

So, when exactly would a lawyer be misleading the court? Well, if my client was running a case based on the assertion that they had been assaulted five times in 2021 but they then told me in confidential discussions that in fact they had not been assaulted five times in 2021, or that in fact they hadn’t been assaulted at all in 2021, but they want me to go ahead and run the five assaults case anyway – then if I go ahead and assert that there were five assaults when I know they haven’t taken place I am misleading the court.

If, after giving evidence that they were assaulted five times in 2021, the client then admitted to me that this evidence wasn’t true I cannot make any further assertion that the assaults happened without misleading the court because NOW I know that the case has been run on a false basis and the client has lied. In fact, I now have a positive duty to correct the position by actively telling the court about my instructions (because my mere silence would be misleading). And if the client won’t consent to me correcting the record I have to walk. That is because I can’t reconcile my duties to the client (including my duty of confidentiality in relation to their instructions) with my duty not to mislead. I can only continue acting if the client agrees to me setting the record straight. But I can’t breach my duty of confidentiality either – so I have to walk (there are VERY limited circumstances where a lawyer can breach confidentiality – basically a credible threat to life or limb can justify it. I’ve done that three times in 20 years and I think that is probably a high rate. I guess I’m unlucky that way).

These conversations about correcting an error or disclosing something unhlepful (I’ve had them many times) are really tough conversations. They come up particularly often in family cases because a duty to disclose material which is unhelpful to my client’s case often arises in cases involving children even without there being any dishonesty by the client. There is a lengthy guidance note produced by the Bar Council about this which I’ve re-read many times over the years. I’ve been sworn at, called names, sacked and cried on in the course of explaining that I can’t carry on acting and withhold this information. Most often the client reluctantly agrees to the necessary disclosure.

Of course, there are some submissions a lawyer may make which are based upon a reading of the papers and their own knowledge of events at previous hearings. A lawyer must make sure that their submissions on these points are accurate (whether in a case outline or chronology or skeleton argument) – for example in reminding the judge of what happened at the last hearing, or when a particular step in the proceedings was taken. If a lawyer subsequently realises they’ve made a mistake about something of that sort then they need to correct it – to say nothing would amount to misleading. Lawyers take this pretty seriously – if you watch you will sometimes see lawyers making a point of correcting something which seems pretty petty in the grand scheme of things – this is the lawyer squaring off some inadvertent factual error with the code of conduct – making absolutely sure the court doesn’t wrongly rely on a mistake they made.

So, that is an account of how it is that a lawyer may well say something that isn’t true, but that this doesn’t make them dishonest.  Never forget that you only hear what the lawyer says in court. You cannot know whether the lawyer believes their client or doubts them. Their demeanour is not going to help you here because a lawyer cannot act against their client’s interests by making plain an adverse personal view – poker faces are the fashion here. For all you know they may well have sternly warned their client they are likely to be disbelieved before going on to do the advocacy part of their job and presenting the case they are given.

The system is designed on the notion that this leads to a sound result because each party will have a lawyer doing the same thing – it can become unbalanced when one party doesn’t have a lawyer, but that isn’t the fault of the lawyer, it’s the fault of the system and (depending on your view) the fault of the Government for cutting back legal aid.

The lies told in court almost always belong to the party or witness. Except on those occasions where a lawyer in breach of the most fundamental rules that govern their entry to the profession and their conduct within it, decides to knowingly tell a lie to save the client or their own skin (for example to cover up a mistake). Those lies when told are rightly potentially career ending. And because of that fact they are also pretty rare.

 

 

PS : There is a whole other blog post I might write here about professional witnesses who lie, but that is not this post. The TLDR of this unwritten post is probably : yes they do sometimes lie, I know because I’ve seen and proved such lies – but they don’t lie as routinely as is often asserted – being wrong or inaccurate is not necessarily dishonesty etc etc.