There are some observations in the judgment in Hampshire County Council -v- O  EW B22 (CC) that are of general importance. It relates to the duty of lawyers to ensure that witness statements are full and adequate.
“It is the role of a solicitor in these circumstances, not only to take down what they are told by their clients, but also to ask questions about it, and challenge it, so as to ensure that the statements reflect what their client actually says.”
The judge was considering evidence in a childcare case. The parents gave evidence. However their witness statements were brief and inadequate.
Before going on to deal with the history of the matter and the law I refer to comments that I made yesterday during submissions about the standard of the written evidence which was put into evidence by the parents. I did say then, and I repeat now, that it is not their responsibility to produce documents which set out in exhaustive detail their case, but it is the responsibility of those who advise them, and prepare the statements, to ensure that their case is adequately set out and that it reflects the instructions that they have given. It is the role of a solicitor in these circumstances, not only to take down what they are told by their clients, but also to ask questions about it, and challenge it, so as to ensure that the statements reflect what their client actually says.
The context of this is that both parents’ written evidence where they attempt to deal with the allegations are woefully inadequate and the evidence that they gave at the hearing was significantly more detailed than that which is contained in the written evidence. This has contributed to the length of the hearing, but also it has meant that both parents were subject to longer cross-examination than otherwise they might because matters emerged in their evidence which no one, apart I assume from the parents, had known about prior to the start of the hearing.
I did say twice yesterday that I do not regard this as an issue which makes any difference to the evidence which the parents have given, which is clear, and which I have taken into account, but it is a matter which those who represent the parents really need to be alive to and ensure that their statements are as detailed as possible.”
OTHER CASES WHERE THE FAMILY COURTS HAVE CONSIDERED EVIDENCE
- Proof of facts: the basic principles summarised (borrowing from the family courts).
- Proving matters by evidence: a lesson from the family court
- Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.
- Psychobabble in witness statements: strong views from the family court.
- Proving things 21: when the whole process of investigation is flawed.
POSTS ABOUT THE PROCESS OF INVESTIGATION (AND SUBSEQUENT IMPACT ON TRIAL)
- Drafting witness statements: the question you ask will determine the answers you get: eight crucial points on evidence.
- Asking leading questions and witness statements: (this is going to end badly).