Many of you reading this will have shared this experience. You are cross-examining a witness (in this case a social worker) and gradually, as a result of your thorough prep and impressive forensic skills, the other side’s case begins to crumble. In the particular case I’m thinking about, the evidence just didn’t add up. There were inconsistencies in the social work records. Stray comments had been repeated, changing slightly in the process, and over time opinions had solidified into fact. There was one particularly satisfying moment when a passage in a witness statement on page C72 got traced back to a note of a visit on page F375c which said something completely different. In my subsequent submissions the phrases ‘Chinese whispers’ and ‘putting two and two together to make five’ got used a lot.
Until quite recently I thought of this case as one of my achievements. I looked back on the experience with some pride. Justice had been done, I thought. A family had been protected from the overweening protective exuberances of the State.
That feeling of satisfaction has been challenged (along with many other assumptions, as it happens) by the work I have been doing over the past two years within one of the workstreams in the Independent Inquiry into Child Sexual Abuse (‘IICSA’). The Inquiry’s focus is on institutional failures to protect children from sexual abuse. Familial sexual abuse is not within its scope. But most of the safeguarding professionals who are now working within the institutions and providing expert evidence to the Inquiry started their careers as local authority social workers, and so their approach is informed by their experience of the sort of frontline child protection cases that we as family lawyers deal with every day.
What I have learned from this experience – and you might think it would have been blindingly obvious – is that keeping children safe is all about assessing risk. And if you are going to do that properly you have to take into account all the relevant information you have.
At our workstream’s latest public hearing one of the institutional witnesses (not a social worker) was giving evidence about his institution’s failure to spot sexual abuse that had been going on for decades. Trying to explain why this had happened, he spoke of a failure to ‘join up the dots’. The ‘dots’ he was talking about were pieces of information, and they came in different forms. Occasionally there was an explicit allegation made by a victim of abuse. But these were few and far between. The other dots were much more vague: ‘he’s known as the Pied Piper because he is always surrounded by children’; ‘I thought it was odd that he shared a tent with the teenagers on the camping trip’; or even ‘it just felt wrong’.
As lawyers we know what to do with these dots. Re B  UKHL 35 gave us a very clear message. We must take a binary approach. Either the harm occurred, or it didn’t; there is no room for ‘it might have happened’. This is called ‘making findings’, and forms the bedrock of the court’s assessment of future risk. The dots that have failed to come up to proof are scrubbed from the record.
No institution that has found itself under the IICSA spotlight will ever take such a narrow approach to the assessment of risk. Institutional safeguarding is (now, if not before) all about seeing the full picture. Done properly, a safeguarding risk assessment will take into account all the dots and allocate weight as appropriate. An off-the-cuff remark about unusual or inappropriate behaviour may not, in the end, carry very much weight. But it will never be dismissed or ignored.
Why do we do things so differently in the family court system? Any assessment of risk involves answering the same basic questions: what could go wrong, how likely is it that it will, and how bad would it be if it did? The process is the same, although the context and consequences (a child remaining at home, or a teacher remaining in post) may be very different. That being so, should the family courts not be free to base their assessment of future risk (‘likely to suffer’ in s31) on all the information available to them?
The answer usually given – including in Re B – is that s31 is the main safeguard for families at risk of state intervention. This is why we guard its provisions so jealously, and why the prospect of the threshold criteria being met on the basis of ‘mere suspicion’ makes us so nervous.
I am not saying that we don’t need safeguards to protect families from unwarranted state intervention. I am simply wondering whether those safeguards might be better positioned at the welfare stage, when the decision of whether to remove the child from the family is ‘live’. This could be done, perhaps, by an explicit acknowledgement that family reunification is such a desirable outcome that in order to achieve it wherever possible, the state has to tolerate a higher degree of risk. The current binary approach forces judges to gamble: a finding of serious abuse equates to very high risk, and almost inevitable removal; a finding that abuse did not happen means that there is no risk, and leads to the withdrawal of all oversight and support. A court-produced risk assessment, based on all available information, might enable a child to remain a home with protective measures in place, properly calibrated to address the risk.
Children Act proceedings are often called ‘quasi-inquisitorial’. Perhaps in comparison to the Lehman Brothers litigation they are. But our approach to issues of threshold and risk is fundamentally adversarial. If you want to see a real example of an inquisitorial system in action, come along and watch some of the public hearings of the Inquiry (the clue is in the name). The Inquiry Rules, as far as I can tell (the ‘proper’ public lawyers on my team might demur), permit an Inquiry to do exactly as it likes in terms of the evidence it hears and how it is presented and challenged. It’s Article 6, Jim, but not as we know it.
When it comes to it, and if the decision were in my hands (thankfully it isn’t) I’m not sure whether I would in fact re-write the current approach of the family courts to the threshold criteria so drastically, or at all. But I am deeply grateful for the experience of IICSA, which has reaffirmed what I have always very strongly believed: that we need to grasp every opportunity we get to step off our own well-trodden pathways and see things from the perspective of another professional for a while. Perhaps unsurprisingly, cross-examining them is not usually the most effective way of doing that.