PSYCHOBABBLE IN WITNESS STATEMENTS: STRONG VIEWS FROM THE FAMILY COURT
This blog has looked many times at the perils of giving “opinion” evidence in witness statements. A particularly stark example can by found in the judgment of Ms Justice Russell in re W  EWHC 2039 (Fam). Another case that should be read by anyone responsible for preparing witness statements (in any jurisdiction). The judge held that a large amount of the evidence given was inadmissible and partisan.
“The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make.”
A child W had been placed for adoption by Brighton and Hove Council. The child’s father was granted permission to oppose the adoption application. The Court of Appeal had overturned a placement order.
THE JUDGE’S VIEW OF THE EVIDENCE
Social work evidence I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.
The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads“[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.
In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.
To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge. Moreover it would seem that the actions of Ms Alsop led directly to the father losing his job. The circumstances in which his employment with the B School was terminated came about because Ms Alsop raised the matter with the local authority designated officer (LADO) in an email on 19th February 2015 in these terms “the father has secured employment as a teaching assistant at B School. I presume that the school will have done checks and seen the father is working with us…” This is hardly likely to suggest that social services in the person of Ms Alsop are keen to ensure that the father retains his position.
The LADO sent an email to the head teacher which included the following sentence. “There were further concerns reported in December 2012, directly in relation to the father, when a child sustained an injury whilst in his care and another alleged that he had smacked him sustaining an injury to the ear“. This was contained in an email which set out that the significant harm threshold had been met although reporting that the orders which had been in place had lapsed. Neither “injury” had formed part of the threshold. The local authority tried to excuse the misleading, damaging and inaccurate referral as a consequence of difficulties presented by the CareFirst IT system. I do not know whether or not the fault with that system is capable of correction. In raising the father’s employment with the LADO in February 2015, Ms Alsop had a professional obligation to ensure that balanced, accurate information was conveyed to the LADO and then to the school; she failed to carry out that obligation and in her duty to act openly. It is likely that had the school been presented with the full story based on balanced information and given the positive view of the father’s work at the school that his employment would not have been terminated, along with the positive benefits for him and his family of him being in work.
I agree with his counsel that the father has borne the loss of his employment with great dignity. The local authority is obliged at the very least to take positive steps to ensure that the information held by the Disclosure and Barring Service (DBS records) in respect of the father is now accurate and that this error is not compounded by further loss or inconvenience to the father in future. In the light of their unprofessional behaviour and their negative view of him both as a father and as a individual as expressed in their evidence there can be little wonder if the father finds it hard to trust the local authority and to work with them from time to time. It is largely their responsibility to repair their working relationship with him; the father’s measured response to the local authority gives me reason to believe that he will play his part not least as he fully understands the need to do so for the sake of all his children.
Guardian’s evidence At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at  of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children)  EWCA Civ 1018; Re G  EWCA Civ 965; Re S (A Child)  EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.
The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.
I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.
Richard Madge had been the guardian for all four children in the public law proceedings. Yet he failed to put forward the case for W’s siblings who all want her to come home. He did not visit W’s mother or seek her views during the course of these proceedings and – having visited W’s siblings in December 2014 – did not visit them again or ask for their views in advance of the hearing in May 2015. This guardian has been involved in the proceedings from their outset in December 2012. I accept the submissions of counsel for the father and for the mother that it was immediately apparent from his evidence that the guardian has failed to understand the requirement for a holistic analysis of the evidence or to engage with the possibility of W returning to her family in an appropriately open minded manner. This was evident from both his reports and from his oral evidence. His explanation that the impact of Re B and subsequent Court of Appeal cases including Re R, Re G and Re S had not been appreciated at the time of the final hearing in September 2013 was not acceptable. His counsel’s submission that the court had pre-determined the case when he was reminded of the requirement for a proper analysis was inapposite and defensive.
In opposing the father’s application to bring his appeal against the care and placement order out of time before His Honour Judge Farquhar the guardian and W’s legal representatives set to prioritise a resolution in favour of adoption over any investigation of reunification and the rectification of an obvious injustice that W had suffered. The views of her siblings were not put before the court by the guardian at the final hearing; they should have been. In relation to opposing the father’s application for leave in circumstances where he had so clearly demonstrated substantial and positive changes the guardian was so closely aligned with the local authority’s position that he evidently felt unable to support a full assessment of the potential for rehabilitation.
The father’s evidence the father had filed statements in support of his opposition to adoption; he also gave oral evidence. I found him to be an open, credible and thoughtful witness albeit somewhat given to using the jargon which he must have picked up during this prolonged litigation. He very clearly loves all his children, including W and is devoted to them. I found him to be remarkably forgiving and understanding of social services, which gives me cause to believe he would work positively with them in the future (providing they are working with him
RELATED POSTS: OPINION EVIDENCE IN WITNESS STATEMENTS
- Appeals on issues of fact: Speculation and “opinion” evidence from witnesses is to no avail.
- Opinion evidence in witness statements
- The Rhianna case and opinion evidence in witness statements
- The dangers of letting witnesses give their opinions: it hinders rather than helps your case
- Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
- What the Jackson report said: Problems with witness statements: “lengthy, irrelevant and rambling”