Underlying family separations that come into the family law system is the question of risk. But family lawyers and courts don’t deal with risk in the way that all other helping professions do. Back to the key report
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. 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. 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‘, 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. 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. It’s not that difficult to get to grips with.
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.