Dr Nick Child BSc MB ChB MPhil MRCPsych
Retired CAMHS psychiatrist and family therapist
Edinburgh and Lanarkshire
For those outside Scotland, jaws drop in disbelief when they hear what I’m about to tell you. Those of us inside Scotland are so used to it that no one bats an eyelid any more.
The most complex and difficult cases of separated families head for family court. When parents cannot otherwise talk or agree, the courts are where decisions are made. These are cases where disputes over contact or residence are often covertly transformed – under the guise of informal hearings – into concerns of harm, of disturbance, of poor care, of risk, of physical or emotional abuse, of coercive control or undue influence relating to children.
Over several decades in Scotland, this system has become overwhelmingly dominated by lawyers. Not one of the legal professionals in their various roles – not one – is required to have any qualification or training in assessing or working with children and families.
Family lawyers and courts need to be part of the system.. Those involved may be sensible, experienced and well-intentioned. People’s successful work is never noticed as much as failure is. But lack of competence jumps off the page when we look at the whole system more closely and compare it with international best practice in family law and standard practice in other regulated professions.
Several gaps can be remedied by bringing skilled professionals back into the family law system. Over decades, they have collectively drifted, or been discouraged, from bringing the skill in their profession to bear on cases where the lack of such skill should be seen as a fault. To Scotland’s greater shame, a forthcoming review will seek to legitimise incompetent professional practice that’s somehow been tolerated within our current system for decades.
Those doing this job aren’t qualified for it
Of course, lawyers are qualified in law. Family lawyers need little more than an interest to start that work. Family lawyers provide child welfare reports for the courts. But they are not qualified at all in children’s normal and disordered development, maturation, psychology, their attachment, family and other relationships, parenting, and education; in child and adult mental health and its disorders, addictions and personality disorder; in risk assessment and management within multi-agency systems. Caring professionals spend many years training before they are registered as competent to practice by professional bodies that continue to govern their registration through standards of ethical practice, supervision, complaints procedures and continuing professional development.
In contrast with Scotland, other countries have comprehensive professional systems in place for the family courts. England and Wales have Cafcass (Child and family court advisory and support service).
I’m a retired child psychiatrist and family therapist. I trained and worked in Scotland. I have developed the widest concern for cases going through Scottish family courts. Intensive study and active networking over the past eight years equip me with a comprehensive understanding of the current field.
We don’t want qualified people (?!!)
At the relevant Scottish events I’ve attended, there’s hardly a member present, nor a mention of, the qualified professions that share the stage everywhere else in the world. In Scotland, it’s all lawyers and worried voluntary groups lobbying hard mostly on behalf of parent groups. The voluntary organisations often don’t have qualified professionals nor professional standards of research, of skilled assessment or experience of work with the whole child and family situation.
At a recent event last November, no one denied this description. No one else took note of an experienced speaker saying that an expert assessment is needed in complex cases. Astonishingly, the audience stayed silent when leading presenters said, with no shame at all, that no one wanted qualified people involved.
One of many things the forthcoming review will consider is a recommendation that child welfare reporters (family lawyers) get two days teaching – basically, that’s to cover everything. So, what takes qualified professionals many years is supposed to be learned, for this even more complex kind of work, in just two days. Scotland could be about to confirm that it is acceptable for disturbed vulnerable children to rely on the well-intentioned but unaided services of lawyers with the most minimal of training.
The earliest start for any minimal training of child welfare reporters would be 2019. The Lord President decided approval was needed at a higher government level. This delay may be because he realised the consequences of ratifying any training at all for family lawyers. Changing the old name of bar reporter into child welfare reporter makes it clear that the job is about child welfare. That’s the job for which the reporter claims the skills, that’s what the label says on this tin.
When we buy something, we expect what’s inside to match what it says on the tin. The same principle applies to professional negligence: Spondet peritiam artis, et imperitia culpae adnumeratur. Roughly translated: You are responsible for having the skills you profess and if you don’t have them it’s your fault. Completely unqualified child welfare reporters are well camouflaged. The moment it is formally agreed that any training is needed, then that two-day training stands in comparison to a proper several years’ training. This spotlights the long-standing culpability and the lack of qualification. The comforting cover of ignorance will be blown.
Obviously a couple of workshops of awareness-raising is a good thing for family lawyers. But that won’t solve the system’s key problems. Even if they wanted to, lawyers shouldn’t add on those years of specialist training. Apart from the drop in income, unidisciplinary systems (monopolies) do not work as well as multi-disciplinary ones do. So the answer has to be to bring back more of those qualified professionals who are already properly trained. They also need the added specialist skills for this particular kind of work.
A bar reporters working group started in 2013. In the five years since, why has no one spotted the problem or the solution? That group was set up to focus specifically on concerns about bar reports. Strangely the group did not think to study the reports objectively as they have been before (1987 and 2011). Given its undue monopoly in Scottish family law, it’s no surprise that the working group was all lawyers. We know well how the lack of diversity in a group can lead to deeply flawed groupthink and failure to spot and solve serious problems. Flawed groupthink might explain the empty hand the government review has now been given. At this last chance saloon, will anyone have the flair and wit to demand a new deal?
The Scottish government review: A good time for eyelids to bat
No one denies the range of improvements that need to be made. This is not the only one. But to repeat: People earnestly agree that the Scottish system is failing many families and their children. We accept that those serving them have no qualifications for the job, that we are most certainly not “getting it right for every child“, nor is there anyone qualified nearby. But leading authorities assert publicly – without batting an eyelid – that the answer is definitely not to get usefully qualified people involved. (Please re-read this paragraph until your eyelids bat.)
Click here for extra detail on the following topics:
- why professionals have left it to lawyers
- alternative support from ADRs and the voluntary sector
- the child’s voice and the influences on them,
- lawyers treat risk differently to caring professions
- the need for skilled single assessments and for court-mandated ‘prescribed cooperation’
- a summary in three diagrams: the system, the gaps, the solution.
Scotland’s choice now: Competence or boy-scouts with penknives?
Several interlocking problems in the Scottish family law system should be remedied. This stands to reason and to international comparison. Mapping the gaps points to their solution. The quickest, most effective and only ethical answer to several key gaps in the Scottish system lies in getting qualified child and family professionals back up to speed and back into harness. There cannot be two standards for the same important complex specialist child and family work: family lawyers with two days training, versus qualified child and family professionals with many years training.
If the forthcoming government review leads MSPs to create this legislation, it will be like recruiting boy scouts to do open-heart surgery with penknives. That is unthinkable in Scotland today.