Another consultation on aspects of the changes brought about by the Children (Scotland) Act 2020 has been published.
As well the regulation of Child Welfare Reporters, the consultation also covered the creation of new registers for curators ad litem and solicitors appointed where a person is prohibited from conducting their own case.
Child Welfare Reporters are appointed to investigate and report on the circumstances and take the views of the children when issues such as child contact are raised in court actions.
At present almost all the people appointed to do this work are family lawyers. Concern was raised some time ago that lawyers doing this reporting, particularly in complex cases, should undertake a rigorous training programme and have the quality of their work supervised.
It is also intended that other specialists (social workers, child psychiatrists or family therapists) should undertake this work, as happens in other countries.
The other changes will bring curators ad litem under a national registration process and prevent party litigants (people representing themselves in court) from questioning their ex-partner in certain circumstances by providing a lawyer for them. These are quite fundamental changes to the way family court hearings are conducted.
The consultation attracted 84 responses, half from individuals and half from organisations. Given the current debate about whether the legal profession should have external regulation, it is not surprising that there was some criticism of these changes from legal organisations.
Shared Parenting Scotland supports the proposed changes in the appointment, training and oversight of Child Welfare Reporters. At present oversight is conspicuous by its absence, and even when a sheriff makes negative comments about the work of a particular reporter there is no visible process for dealing with this issue.
We know that there are some excellent Child Welfare Reporters who take their duties very seriously and undertake lots of relevant training. We are also aware of far poorer practice by some reporters and also of cases in which it would have been better to appoint a child psychologist rather than a lawyer because of the complex set of issues.
Although there are a range of answers to the questions, the overall response to this consultation seems to be supportive of the need for change. A wide range of training topics have been suggested, reflecting the complex job that the child welfare reporter has to undertake.
Almost all responses agreed that existing Child Welfare Reporters should have to apply to be on the new register.
Many agreed that a Child Welfare Reporter should provide recommendations on what is in the best interests of the child in their report and felt that recommendations are an important part of the report, albeit that a sheriff can disregard these if they so choose.
The consultation responses about Curators covered a broadly similar range of topics – this is another system which will be brought under national supervision and will hopefully ensure the practice across the country is standardised.
The third part of the consultation related to the register of solicitors who can be appointed where an individual is prohibited from personally conducting part of a court case. This will happen when the other party is considered to be a vulnerable witness because of an allegation of domestic violence or other issues. It applies when evidence is being taken from the vulnerable witness, such as in a proof hearing.
Although the idea behind this change is sensible and could help party litigants, consultation responses mentioned a number of problems. These included difficulties with appraisal as the work of solicitors is confidential and cannot be disclosed to a regulation body. It was also suggested that the proposed payment for time spent conducting or preparing for the proofs is inadequate.
Concern was expressed that solicitors would not come forward to be included on the register if not properly paid, and the job may be rushed if insufficient compensation was available.
Now that this consultation has been carried out the Scottish Government will start to put these provisions in place, although it may be some time before the changes are fully implemented.
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