Other legislatures do much better than Scotland does with two other gaps. Both require skilled and qualified helping professionals to remedy this. Back to the key report
Competent single 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.
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) 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).
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.