The Unqualified Gap Through Which Children Fall in Scotland’s Family Law System: Full Report
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. [i] [ii]
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 [iii] 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) [iv] 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. [v]
We don’t want qualified people (?!!)
At relevant Scottish events I’ve attended (eg 2012 [vi] to 2017), 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. [vii] Most voluntary organisations don’t have qualified professionals or professional standards of research [viii], of skilled assessment, or experience of working with whole family and child situations.
At an event last November [ix], 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 [x] 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.[xi] 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 [xii] 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 [xiii] and 2011 [xiv]). And why decide on two days training? Was one day just too obviously tokenistic?
We know well [xv] how the lack of diversity [xvi] in a group can lead to deeply flawed group-think [xvii] 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 [xviii] 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 [xix] 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 [xx] 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. [xxi] 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.
Ensure you get an email alert to when and how to submit your views to the review – email Liam Rankin [xxii].
The rest of this full report details more 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 a skilled single assessments and for court-mandated ‘prescribed cooperation’
Why qualified helping professions have drifted away
Over decades in Scotland, professionals such as child and family social workers, child psychologists, and child psychiatrists, have drifted or been discouraged from bringing their skill to bear on family law cases that need it. In contrast with family lawyers, these professions do many solid years of professionally governed training, practice, supervision and CPD. They need some additional specialist training too for this complex work with family law cases.
There are past studies of information such as Bar Reports available to the family courts (eg 1984, 1987 and 2011). Susan Seale / Matheson the author in 1984 and 1987, was a keen young civil servant, concerned to ensure that mothers knew the importance of keeping separated fathers in their children’s lives. She went on to manage family mediation services. Richard Whitecross, the author in 2011, is an academic lawyer, now teaching law students. Neither have any qualification in child and family assessment or work. Wasoff (2007) reviewed Dealing with child contact across international family law systems. Laing and Wilson (2010) reported on courts’ and families’ experiences of child contact cases without reference to the issue of who is competent to do this work.
Only Whitecross considers competence: The competence or not of Scottish judges (to take children’s views as without with the expertise of ‘child welfare professionals’ used in England); the competence of curators (to do child-centred family law); and the (lack of any standards of) competence of those on the list of Bar Reporters. The outcome of this 2011 report was the setting up of the Bar Reporters Working Group in 2013. The outcome of the focus on the competence of Bar Reporters was the proposed two day training.
The reports chart how in 1984 the Court of Session was joined by the Sheriff Courts to carry the increasing divorce workload. Prior to this, Advocates – those called to the Bar – would supplement the otherwise routine templated flow of minimal documents that the central Court of Session took as the basis of handing out divorces. A single phrase meant the children were doing fine. Contact and residence was presumed to be sorted by the parents without further legal involvement.
Sheriffs did not have Advocates to call on for Bar Reports. Initially they called for reports from social workers where there was concern about the welfare of the child. Social workers were well placed to assess things more professionally and to take on any concern for risk to the children. One social work department and one Sheriff emphasised that the job should be done by social workers who were qualified and better placed. “I can’t imagine asking a lawyer. The idea never entered by head!” said one Sheriff in 1987. But the majority were not bothered. So the hint about competence went un-noticed. In fact, one social worker said they were pleased there were lawyers to do the work because of the workload. Competence is mentioned in relation to other countries practice, but again, no interest was triggered in the competence of Scotland’s system.
In summary, these reports reflect the decades of wilful or accidental blindness to the de-professionalisation of this key function of assessing child welfare. All five of these Scottish Government reports show that the politicians, the commissioning civil servants, and the authors themselves fail to even mention the question of standards of qualification and competence. Officially Sheriffs were free to choose who they asked to provide reports. But in practice it was more convenient or comfortable for private practice solicitors to do more and more of the family court Bar (now Child Welfare) Reports while social workers did fewer and fewer of them. Social workers and other qualified professions had increasingly demanding day jobs to get on with too.
Guidelines for the better lay-out of reports were provided then. But even back then the specialist skills required for the job – those implied by the Sheriff who couldn’t imagine asking a lawyer – were clearly not addressed. Bar Reports were originally just a way to collect facts for the Sheriff to interpret. But without skilled interpretation in the reporting of inherently complex child and family situations, over the years, we have allowed the blind to lead the blind.
When separated family cases come into the Scottish family law system, there are still a few skilled helping professionals doing some of the court work that is needed. Mostly that’s providing the court with expert reports. They don’t offer ongoing court-mandated work between court hearings, a standard provision in other legislatures. In a system that is not aware of its gaps, the remaining helping professionals have mostly not needed to update and sharpen their skills. They are not fully up to speed themselves. Perhaps that’s why people are not keen to bring them in.
This work demands time, commitment, care and special knowledge and skills. The helping professional expects to be trusted, neutral, child-focused experts. But often they are lined up against other experts on both sides. Hearings in adversarial courts can be more like an old Punch and Judy fight … where the baby’s welfare may be more ignored than paramount. And the standard whacking of the expert witnesses is certainly no fun. Meanwhile, the helping professions’ day jobs have been cut back through the years. The demands of the day job leave nothing to spare for court work. No wonder they’ve drifted away.
Why family lawyers and courts are ineffective on their own
With only a few of the better qualified professionals – who are not close at hand – and no standards in place for unqualified family lawyers doing their job, these most worrying family cases are in an expensive lottery. If you don’t strike lucky, it may bankrupt you. Your postcode and your money brings your lucky draw of which lawyer and sheriff/s you get. This luck of the draw ‘system’ takes a long time before a sheriff hands out major decisions over distressing and complex separated family strife with little ceremony or discussion. With luck, harm is reduced. Without luck, the courts make the harm worse [xxv] [xxvi]. Many parents in these serious cases just cannot afford to use family lawyers and courts. Harmed though (they and) their children may be, they just have to lump it. In or out of the system, harm can continue untouched.
The custom and practice of informal family court processes in Scotland creates unreliability, imbalance and unfairness. Despite the fine legal ideals of parents having equal responsibility and rights on separation, a family lawyer’s customary advice to a client is that in reality ‘possession is 9/10ths of the law’, that the law is very limited in what it can do. The resident parent – the defender – will have used the power of ‘possession’ of the children to shape their preferred residence and contact pattern.
Lawyers and courts could (but do not) challenge the resident parent’s decisions. Implicitly those decisions are sanctioned as if they are 10/10ths good ones – which they may or may not be. In contrast the court custom then requires the non-resident parent, the pursuer, to prove their personal and parental worth and safety (though no formal doubt has been raised) as if any arrangements they propose are 10/10ths dubious – which they may or may not be. So much for a fair ‘due process’ that most people presume they will find in a court of law. And so much for reducing the adversarial culture as informal hearings were meant to do. Neither side can show a blink of a two-sided view for fear that that will be taken as admission of complete culpability.
Any custom and practice can be changed just because of a better idea. So here’s a good idea that has already happened in a few Scottish courts: Level the playing field and open proceedings by requiring the defender to explain why they made their decisions about the contact pattern. If significant risk is the alleged reason, referral to appropriate agencies would be (belatedly) made for a proper assessment of serious concerns. If the court reckons that the risks are not significant, then the defender’s chosen pattern would be set aside.
Even better than this would be to adopt proactive guidelines as in some legislatures in the UK and the USA: these set out the court’s firm expectations for parents and their lawyers. Such guidelines could be used to quickly establish a culture that includes, for example, the expectation of those coming to court to have reported serious risks beforehand in order that the hearing can get on with it’s proper focus. The absence of accessible properly qualified court-linked services means there are no checks or balances, comparison, criticism or influence to correct these flawed features of the legal process in Scotland.
Parents who are able and can afford to, have often spent many months and a small fortune to get to see the sheriff, this genial Wizard of Oz. With more or less wisdom, the sheriff makes interim residence and contact orders. With not much more than blind hope sometimes, pinning orders onto families is more like pinning a tail on the donkey. Whether the case is serious or not, and without substantial legal direction nor the will or option to delegate the work nor to simply set the parents free to sort it themselves, family lawyers and family courts often settle down into a well-intentioned continuing role like very expensive traffic cops directing (at best) the flow of disputes as they arise. Family courts do not assert the law – which would be to confirm (or not) that both parents have equal responsibilities and rights and send the parents away to get on with it or get the help they need. The courts cannot do competent mediation themselves, let alone child-focused mediation. And the courts have for decades failed to recruit and mandate those who are qualified to do this child and family work.
What would you do if your child saw a genial surgeon, one with no standards or qualification to do surgical operations nor anyone else more qualified to turn to who does know? You wouldn’t tolerate that for a moment. But for decades Scotland has put up with an equally dodgy family ‘amputation’ business.
Alternative dispute resolution
Others than lawyers try to be helpful. Everyone rightly wants to keep the distress and conflict out of the expensive adversarial legal processes that inflame it. Alternative dispute resolution (ADR) is the general term for a range of alternatives to courts for separating couples to sort out their differences. It’s obviously best for the parents who know and care for their children to take this collaborative way to share their responsibilities. The majority of parents do manage to separate and sort out arrangements for their children and their assets without the need for much outside help.
Of course it’s best for separating parents to sort arrangements out by themselves. It is next best to sort it by seeking help from one of the ADRs. In general, the fewer courts, lawyers and professionals involved, the better. We are talking here about other families who cannot or will not or should not resolve things without the legal system. There is no doubt that the legal system is essential for some cases, for the small number of the most serious cases that come into the legal system. ADR providers may try to keep a child-focus, but that is never going to happen in more severe cases, when they do not know how – they are not qualified – to be fully child-inclusive or child-focused.
Each brand of ADR – family mediation, legal mediation, collaborative divorce and so on – sells its strengths and may even find a way to help some challenging cases. Yes, lawyers have set up their own glossier brands of ADR. No surprise that these legal ADRs are what lawyers recommend to their clients. Well-intentioned of course, the lawyers’ unqualified monopoly in Scotland keeps growing.
Of course ADRs should be firmly encouraged if not required to be tried out. But if they don’t work, persisting is worse than useless. They should be stopped and other measures taken instead. The key points are that all of the mainstream ADRs in Scotland are nowhere near being child-inclusive, and they are wedded into the basic principle that the clients must commit to the work collaboratively and on a voluntary basis. They demand a solid wall of not reporting or communicating between the ADR work and the family courts. ADRs are great when they work. But what about when they can’t or don’t?
When separated parents can’t or won’t collaborate?
What can be done when, for valid or invalid reasons, separated parents cannot, will not, or sometimes should not, volunteer for collaborative approaches? Perhaps ADRs have been tried and have failed? What happens when the children are suffering or being harmed directly or indirectly by the effects of the dispute and adversarial legal processes?
There’s a solution to that problem that our systems in Scotland have been strangely blind to. The gap is one that can be relatively easily and cheaply filled. The gap in the help needed for the more serious cases is the gap for skilled and qualified professionals – ADR providers included perhaps – who can team up with courts rather than remain walled off from them. It’s already beginning to happen: A qualified professional has taken an individual initiative, one that others can learn and do, an approach that can be ‘rolled out’ right away in preference to some long-awaited ‘ideal’ system (such as Cafcass aspires but fails to be [xxvii]; Scotland is probably better off starting from scratch). This very new initiative in Scotland needs all the promotion we – and the review – can give it.
Meanwhile, given the gaps in the system in Scotland, there is only one other place for separated families to turn: the voluntary sector. Some offer some ADRs like family mediation. Other charitable organisations campaign and lobby. They offer support to particular groups of parents (and their children) who turn to them. Mirroring the standard heterosexual separating couple, these groups tend to be parent-focused and gender-based – eg Scottish Women’s Aid, Families Need Fathers Scotland. These organisations know how unjust and grindingly awful it can be, going through the mill of Scotland’s family legal and court processes.
But charities, most uncharitably, battling gender against gender, resident against non-resident parent, justified versus unjustified concerns for harm for children with the other parent – all of this misses the point. It misses the point because the Scottish problem is independent of these categories. Some of the worst cases are of same sex separated couples [xxviii]; risk can happen with either gender of parent and with resident as well as non-resident parent. [xxix] The point is that if the system is inherently not competent, then everyone is liable to get a poor deal from it.
Does the child in the middle know what to do?!
At one recent event [xxx], the unqualified lawyers and voluntary organisations were determined that promoting ‘the voice of the child’ was the way to rescue the situation in Scotland. Doing this using a simple F9 form has been firmly rejected. [xxxi] But the persisting idea that children will get us out of our mess is yet more evidence of unqualified leave of our senses.
Of course children’s views should be sought and genuinely included when children want to do that, and can do so understanding how their views will be used. But the original Australian use of the voice of the child was precisely to keep that out of court, to enable the child to be heard with skilled help for their parents to take on board. [xxxii] This was particularly intended to ensure the child was NOT given a powerful vote in the complex decisions that mature and skilled adults need to put together.
We know how deeply upsetting attachment change and loss can be for children of all ages. In Scotland we have, in a word, rather forgotten about: Influence. Children – all of us in fact – are constantly influenced. You don’t need to be a professional to know that children are influenced all the time in all kinds of positive and negative ways. [xxxiii]
Yet many who seek change in Scottish family law seem to have forgotten that. Once the child’s voice has been heard, the complexities of influence are what requires the most careful thought if not a qualified professional’s skill, to meet all parties and take into account bias and influence of all kinds and to assess the child’s capacity and response to it (see Miller, S G, in Baker et al, 2013) [xxxiv] [xxxv] [xxxvi] One of the proposed topics for future child welfare reporters in their brief training is to understand influence and undue influence. It seems that we all need to be reminded some more about influence. So here goes:
To repeat: There’s no such thing as an uninfluenced child. Never mind the usual 12 year old watershed of responsibility for thinking for themselves. Even into young adulthood, children are not mature in their thinking and understanding, nor resilient against influence [xxxvii] If well-functioning adults can be recruited by the undue influence of online scams and mind-control cults (who create a new disturbed attachment to do it [xxxviii]), then a child’s parent is already in pole position to shape their own child’s mind. By definition children are immature. They are inevitably influenced by their close family, dependent as they are on those primary attachments.
Of course (adults and) children have valid experiences and views to contribute. But no one, and certainly not the child, can get the full picture in conflict situations without looking at the full picture and the influences going on. In the extreme distress, high emotion and tense loyalties of separating, children become sitting ducks for a parent – with others chipping in as well – to consciously or unconsciously, strategically or unduly, validly or invalidly, influence them to side with one parent and tribe against the other.
It is madness to imagine that anyone’s views, let alone a child’s expressed views and feelings, will be somehow pure, pristine, objective fact and informed judgement without consideration of many factors including what may have influenced their views and feelings. On the other hand, if their minds aren’t minced, children can be savvy. They will sense or know well what their family are like, who they think they need to keep in with, what it is that whoever wants to hear from them.
Voluntary organisations include the child in their talk but tend to represent the partial interests of the parents with the children and their voice likely to be used to serve the adult interests. That is part of the problem not part of the solution. Skilled qualified assessment of a child’s best interests has to go beyond a child’s stated views, feelings and wishes and beyond the partial views and wishes of the disputing parents (Weir, K. 2011). [xxxix]
If we turn to the child to lead us through adversarial courts, another once core principle has been forgotten – one that children have also “voiced’. [xl] We know that children want to be informed and involved in what happens in their family after separation, but they do not want to be made responsible for decisions that force them to choose between one or the other parent. [xli] There is no better way to escalate the harmful tug of love that tears apart the children in the middle than to place a child and their voice in such a central role.
Child-focused adults listen to the child’s voice. Let’s take the more neutral familiar legal expectation that children attend school but may not want to: “I never want to go to school”. We all know that a child’s welfare is not served by blind obedience to what a child says. Someone needs to assess all aspects of the situation carefully, at school: bullying, insensitive teachers, specific learning problems, and at home: the child’s separation anxiety or even panic disorder, and the relational factors with their home parent (intentionally keeping the child off school, or the parent’s unintentional stressed feelings, mental health or personality disorder).
Even without any extra complications, children resisting contact with their other parent may equate precisely with children resisting going to school. Without qualified professionals in place to assess things properly in complex family law cases, the pursuit of the child’s voice as the solution to the major flaws in the Scottish system is a most terrible mistake.
So far, we’ve seen the lack of relevant qualification in the family lawyers and voluntary organisations who have been left to dominate the Scottish scene. We’ve described how family lawyers, ADRs and voluntary organisations try but cannot fill that gap. We’ve covered the faulty simplistic notion that a child’s voice equates to a child’s welfare. We’ve seen that we need to take ‘influence’ into account. With this clarification of what a child-focus looks like, we share the unanimous agreement that the system should be more effectively child-focused – that the principle of paramountcy of the welfare of the child be given more than lip service. In such a fraught situation as this, a genuinely child-focused system needs professionals who are qualified to assess and know one end of a child and family from the other. There are three more missing bits to describe:
Different codes of practice for risk
In a system where a monopoly of unqualified lawyers stands in comparison to the qualified professionals left out, one missing function is worth setting out in detail. If the underlying concern in these more complex disputes is of risk and harm especially to the children, how is this high priority issue managed across different sectors? Are there gaps that (adults and) children fall through? There are.
In contrast to lawyers and many family mediators too, all other helping professionals who work with children and families have a strict code of conduct that confidentiality is modified when the worker hears from their client about anyone being at risk of harm. The lawyer’s remit is not the same as that of a helping professional. They do not have this code of conduct, so – even though they are plainly hearing of concerns of risk – they don’t take the steps that any other qualified professional would take. [xlii] The same applies to many family mediators in Scotland – where parents tell of risks, many mediators just step away; they do not have the same responsibility to take risk seriously
In fact, lawyers of all kinds tend to advise clients against going to any other helping profession lest they do put into effect their code of conduct about reporting risk. Because those professions in Scotland are not familiar enough with family law work, there is some reason to worry about what the other agencies might do to complicate a complex situation with more disconnected agencies and un-joined-up approaches. However and not surprisingly, many people have found that these other agencies do more good than the lawyers and courts do for the interconnected family and child situation – and they are likely to be a lot cheaper or even free.
Closer to family lawyers and family mediators but also rather ignored by them, the Scottish government’s guidelines for separating parents recommend that if anyone thinks or alleges that there is serious risk to child or adult, then this should be referred to appropriate agencies straight away. [xliii] Family lawyers and courts are informally dealing with cases where a parent may not have referred serious concerns as recommended. Parents may assume that lawyers are the highest authority in these matters. As well as having no code to take further steps themselves, family lawyers are not known to advise their clients to follow the positive government guidance.
Indeed there is more good advice in those guidelines about mutual agreement, taking time to calm down, and getting help from ADRs. Family lawyers don’t make much use of that guidance either. Their priority is to send out letters of engagement about fees and conditions. As we’ve noted, a realistic family lawyer may refer to the stated principles of family law – of both parents having equal responsibilities and rights to make decisions – but then will revert to saying that actually ‘possession is 9/10ths of the law’.
Lawyers could choose to raise more of a challenge based on the law and this guidance from the start. But they don’t. Parents may trust that their lawyers know what they’re doing. And, though it may not be in the children’s interests, parents may be right to think that they are more likely to get their way in an informal legal process than the scarier-looking option of being duly assessed by police or social work.
So family lawyers and some ADRs too are unqualified in working with children and families, are not guided by the usual codes of conduct and government guidance and ‘getting it right for every child’ [xliv], and are somehow above the law, in respect of managing risk and harm. This gap should be explored further in the forthcoming review of the Children (Scotland) Act and / or the family justice modernisation strategy. [xlv] The wider context is part of the problem too. The qualified helping professions and agencies have not kept updating their professional knowledge and skills through CPD. So they are also not fully competent for these cases.
That helps explain why the senior reporters to the (separate and uniquely Scottish) childrens hearings system do not see this as something they can or should deal with. Yes, concerns about child abuse and risk are their business, the childrens panel’s supervision orders specify alternative care placements that may go on for years. But lasting family decisions are legally the realm of the family courts – however ill-equipped they are – not a matter for the childrens hearings. And even if the childrens hearings took this kind of abuse on – that is the emotional abuse of children, which is what the concern is mostly about – emotional abuse is anyway assumed to be complicated, and that the resources and skills are not available to assess or deal with it. In fact emotional abuse is not a minor kind of abuse; it is what makes all the more concrete abuses so harmful. Another name for emotional abuse is coercive control. [xlvi] It’s not that difficult to get to grips with. [xlvii]
So all parts of the Scottish system turn their unbatted and blind eye to this admittedly challenging problem. Everyone claims they don’t have the resources, the authority, nor the skills to meet the task and the need. It’s hardly the fault of family lawyers and courts that they are left trying to do it all. Meanwhile (adults and) children go on falling through the gaps.
There are two other important components that other legislatures do much better than Scotland does. They don’t need to be described in detail. They both require skilled and qualified helping professionals to fill the gaps in the present system.
Competent single joint expert assessments
Related to the issue of appointing competent single expert assessors rather than several on both sides, in some family court processes, there’s an unreliable commitment to the principle of not putting children through multiple interviews when they may be victims of abuse. When a child has been victim of physical or sexual abuse, police and social work have strict joint interview protocols. [xlviii]
In the distress and frankly emotional abuse there may be in severe family separation, there is no such security and reliability for the child. Several interviewers (unqualified and qualified) all have a go. Each will make separate sets of appointments to see the child and parents and others. In fact, the present child welfare reporter does represent a single assessment pattern. If they were properly qualified to do the job, that would be good. But we’ve seen that is not feasible.
A skilled ‘prescribed cooperation’ service
We’ve already referred to this last most important gap. Even in more ordinary cases, the inevitably adversarial quality of a legal system mean that both sides mustn’t blink first: each has to maintain a view that places responsibility on the other side because to admit to even a minor contribution – “Yes, I felt really upset and angry at that point” – will leave the door ajar through which far greater blame will gleefully burst. Skilled mediation with the parents can moderate this unreal and unhelpful stand-off. But the one thing that can most effectively help any separated family – and it is essential for the most severe cases – is skilled, actively child-focused, ‘prescribed cooperation’ (Cochemer [xlix]) or ‘parenting coordination‘.
The present system in Scotland gives no place for – we don’t even seem to have the idea of – a skilled professional who can work with a child and their separated parents under the teamed-up mandated direction of a court. This requires careful specification in the sheriff’s order to the skilled professional to assess, report back, then take on the court’s mandate for specified work. It is essential that the same sheriff remains engaged and expects a report back on progress (or lack of progress) for their further court direction. The key has been neatly stated: “Without the intervention the court cannot act and without the court the intervention does not have teeth” (Woodall, K. & N. 2017) [l].
At present, courts end their worthy deliberations and make an order. Often sheriffs get no feedback at all about the consequences of what they order. They can forget that their words do not always make something happen – even though they come from the high authority of a sheriff or judge. Cases are still coming back year after year because no one has done what was ordered. In difficult cases, courts need to mandate a child and family separation consultant (or the like) who knows how to work with children and their separated parents in order to make the court order work.
Firmly ordering parties to use mediation happens in small-claims courts in Scotland. Supervision orders for social workers to work with children and families are completely standard in the children’s hearings system. Proactive problem-solving courts manage cases of drug and alcohol abuse. But the use and follow through of various kinds of ‘prescribed cooperation’ as used around the world, has hardly been thought of let alone used by Scottish family lawyers and sheriffs.
The exciting news is that – since it is so obvious and useful – a few sheriffs in family courts across Scotland have begun to use the child and family separation consultant who knows how to do this kind of work. That can only be a tentative promise of a future to come … if and when the review helps establish broad support for this development across the Scottish system.
Scotland’s choice: Competence or boy-scouts doing heart surgery?
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 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. 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.
Few would deny the range of other improvements required [li] 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. [lii] 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.
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.
Dr Nick Child, BSc MB ChB MPhil MRCPsych; Retired CAMHS psychiatrist and family therapist; Edinburgh and Lanarkshire
This report is available online at: https://theunqualifiedgap.wordpress.com
The views represented in this article are the author’s best-informed attempt to describe what he has seen and learned about Scottish family law. Being a retired and voluntary campaigner, he has no vested interests to declare … except the concern for providing the best system for those children and families in Scotland who are not well served just now. For clarity, the argument has been simplified. Finding systematic evidence of what goes on in Scotland is virtually impossible. So constructive feedback and criticism will be welcomed.
There are far too many people to acknowledge individually all those who have helped shape this picture over the years. You know who you are. Thank you.
[i] Evan Stark (2007) Coercive Control: How Men Entrap Women in Personal Life. Oxford University Press
[vi] Changing the Culture (Aug 2012) See Nicholson, P. (2012) ‘Taking care of child cases.’ Report of a seminar. The Journal of the Law Society of Scotland. http://www.journalonline.co.uk/Magazine/57-10/1011755.aspx
[vii] I exaggerate but not much. There are some qualified professionals who are used by Scottish courts. They do court reports.
[viii] For example, otherwise well educated people – academics even – often fail to spot that an explicit bias in the selection of cases for research (eg gender-based DV cases) means the results cannot be generalised (as usually happens) to ALL child and family situations.
[ix] Views in Legal Proceedings. Scottish Child Law Centre event, 23rd Nov 2017, Edinburgh
[x] Review. See: http://www.gov.scot/Topics/Justice/law/17867/review-of-children-scotland-act-1995 Child welfare reporters, See: http://www.gov.scot/Topics/Justice/law/17867/reporters
[xiv] Richard Whitecross (2011) Child welfare hearings reports: A scoping study of the commissioning, preparation and use of bar reports. http://www.gov.scot/Resource/Doc/336942/0110393.pdf
[xxiv] Richard Whitecross (2011) Child welfare hearings reports: A scoping study of the commissioning, preparation and use of bar reports. http://www.gov.scot/Resource/Doc/336942/0110393.pdf
[xxv] Bernet, W. (2015) Children of high-conflict divorce face many challenges. Psychiatric Times, 32 (10):9, 12-15.
[xxvi] Verrocchio, M. C., Baker, A. J. L. & Marchetti, D. (2017) Adult report of childhood exposure to parental alienation at different developmental time periods. Journal of Family Therapy. http://onlinelibrary.wiley.com/doi/10.1111/1467-6427.12192/pdf
[xxviii] This gender point is illustrated in how mothers in same sex separations find FNFS more useful than SWA.
[xxix] The heated debate about importance based on the general statistical pattern (of gender etc) is not relevant when faced with a particular case that requires attention. Statistics feeds bias and prejudice when each case requires an open mind.
[xxx] Views in Legal Proceedings. Scottish Child Law Centre event, 23rd Nov 2017, Edinburgh
[xxxiii] Child, N. (2017) The abuse of the child’s voice in high conflict separation. See https://thealienationexperience.org.uk/2017/06/28/the-abuse-of-the-childs-voice-in-high-conflict-separation/
[xxxiv] Miller, S. G. (2013) Clinical reasoning and decision-making in cases of child alignment: diagnostic and therapeutic issues. In (eds) Baker, A. J. and Sauber, S.R. (2013) Working with Alienated Children and Families: A Clinical Guidebook. New York: Routledge
[xxxv] Buster Benson Cognitive Bias Cheat Sheet: Summary of 175 sources of bias https://betterhumans.coach.me/cognitive-bias-cheat-sheet-55a472476b18
[xxxvi] Child, N. (2017) Parental alienation’s long list of counter-intuitives. https://thealienationexperience.org.uk/2015/07/31/parental-alienations-long-list-of-counter-intuitives/
[xxxvii] See Open Minds Foundation: openmindsfoundation.org.uk
[xxxviii] Stein, A. (2017) Terrorism, love and brainwashing: Attachment in cults and totalitarian systems. Routledge
[xxxix] Weir, K. (2011) Intractable contact disputes: the extreme unreliability of ascertainable wishes and feelings. Family Court Journal, 2 (1), 1-8.
[xl] Dunn, J. & Deater-Deckard, K. (2001) views of their changing families. https://www.jrf.org.uk/report/childrens-views-their-changing-families
[xli] Baker, A. J. L. & Andre K. (2009) I Don’t Want to Choose. Kindred Spirits: New York. (Also a school program.)
[xliii] See: ‘Your safety – and yours’ in Scotland’s Parenting Agreement http://www.gov.scot/Publications/2006/04/19140046/1.
[xlvi] Evan Stark (2007) Coercive Control: How Men Entrap Women in Personal Life. Oxford University Press
[xlvii] Three key elements of emotional abuse aka harmful coercive control are: “I am the only one who loves you and you need me to feel good about yourself; Others are dangerous and unavailable; Pursuing a relationship with those others jeopardizes your relationship with me.” Practice Guidelines of American Professional Society on the Abuse of Children. https://www.apsac.org/9235fgnl8
[xlix] Developed in Cochemer, Germany. See von Boch-Galhau, W. (2013) Parental Alienation and Parental Alienation Syndrome / Disorder: A serious form of psychological child abuse – with case examples. English edition trans: Guy Knight-Jones and Ulla Knight. Perfect Paperback.
[l] Woodall, K. and Woodall, N. (2017) Understanding Parental Alienation: Learning to Cope, Helping to Heal. Charles C Thomas: Springfield Illinois