Dr Nick Child BSc MB ChB MPhil MRCPsych
Retired CAMHS Psychiatrist and Family Therapist
Edinburgh and Lanarkshire
Elsewhere, jaws drop in disbelief when they hear what I’m about to tell you. In Scotland 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 transformed – at a series 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 in family law – 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 as soon as we look at the role of Child Welfare (formerly Bar) Reporter, their lack of skill jumps right off the page. And 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, we come off very poorly indeed.
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 could 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 family law work. Few if any family lawyers are 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 in training before professional bodies register them as competent to practice and they continue to be governed via registration through standards of ethical practice, supervision, complaints procedures and continuing general and specialist professional development.
In contrast with Scotland, other countries have professional systems in place for the family courts. England and Wales have Cafcass (Child and family court advisory and support service) where the equivalent practitioners are fully qualified social workers.
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. Over the past eight years, intensive study and networking give me a comprehensive understanding of the current field.
We don’t want qualified people (?!!)
At relevant Scottish events I’ve attended, there’s hardly a member present – nor mention of – the qualified professions that share the stage elsewhere in the world. In Scotland, it’s all lawyers and worried voluntary groups lobbying hard mostly on behalf of parent groups. Most voluntary organisations don’t have qualified professionals or professional standards of research, of skilled assessment, or experience of working with whole family and child situations.
At an event last November, no one denied this description. No one else took note of an authoritative view 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. If the Scottish public got wind of this comprehensive de-professionalisation of the assessment of our children and families, there would be far more than the noise of eyelids batting.
One of many things the forthcoming review will consider is a recommendation that the private practice solicitors who act as Child Welfare (formerly Bar) Reporters should now receive two days training. That’s just two days 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.
How did we get here?!
The two-day training proposal came from the Bar Reporters Working Group, set up in 2013 to focus specifically on these concerns. Given their undue monopoly in Scottish family law, it is no surprise the Working Group was composed almost entirely of lawyers. And given their natural and financial self interests it’s perhaps not so strange they didn’t want to think too deeply. They made no objective study of past Bar Reports as outsiders had done in earlier studies (1987 and 2011). And why decide on two days training? Was one day just too obviously tokenistic?
We know well how the lack of diversity in a group can lead to deeply flawed group-think that fails to spot and solve serious problems. When The Lord President was asked to formally sanction these tokenistic qualification and training requirements, he found himself unable to do so, stating that only primary legislation could bring this about. He could not legitimise this dubious and most concerning practice and simultaneously (many will hope) wipe away the sins of decades of shocking legal practice in Scotland.
It is, of course, quite unthinkable for The Lord President to sanction private practice solicitors making any welfare assessment of children and families, when elsewhere we demand those assessments remain the exclusive domain of professionals with appropriate skill. Yet that’s precisely the situation the work of the Bar Reporters Working Group has led to.
Not what’s in the tin
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 the label. 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.
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. Uni-disciplinary systems (monopolies) do not work as well as multi-disciplinary ones do. 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.
Will anyone break the awkward silence?
The Lord President refused to sanction the two-day training. It is equally unthinkable for MSPs to sanction that very same thing. Does the legal profession now hope that busy MSPs just might be duped into doing so – in the absence of any warning of the fundamental problems with this?
Years of wilful blindness on the part of the Scottish legal profession over this major issue have now resulted in an awkward silence. It’s the sort of silence that occurs when the privileged few, who understand the problem, hope that a most unlikely solution might just make it all go away before it blows up in their face.
Flawed group-think might explain the empty hand the review has now been given. As The Lord President passes this embarrassment on to a long agenda for the Scottish Government to review, who will point out why these proposals are so wrong? Will anyone have the flair and wit to demand a new deal? Will the review and the MSPs who will vote any recommendation into legislation realise just what kind of cover up and ignorance they will be perpetuating?!
Scotland’s choice: Competence or boy-scouts doing heart surgery?
Few would deny the range of other improvements required in the family law system. This is certainly not the only one that’s needed. It’s now acknowledged that the Child Welfare Reporters do not possess the skill necessary for the job. We most certainly are not getting that right for every child. Yet leading authorities assert publicly – without batting an eyelid – that the answer is definitely not to get skilled, qualified people involved; that instead a monopoly of private practice lawyers – without the necessary skill – will do just fine for another generation.
The quickest, most effective and only ethical answer to several key gaps lies in getting qualified child and family professionals back up to speed and back into harness. In fact – if they are nurtured not trampled into the mud by the final boots of ignorance – a few green shoots are already appearing in the shadow of Scotland’s family courts.
If we allow our MSPs to be duped into creating this absurd legislation, it will be like giving license for boy scouts to do open-heart surgery.
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.