As qualified helping professionals have drifted away, the lawyers have been left holding the baby. But they and the courts are not competent to do this job on their own. Back to the key report
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 in the 1987 report. The guideline of what both social worker or lawyer should include in a Bar Report lists matters that could never be considered in the range of competence of a lawyer. So, even back then, the specialist skills required for the job – those included in the guideline report, and implied by the Sheriff who couldn’t imagine asking a lawyer – were clearly not addressed. It is not even clear what a basic Bar Report was originally intended to cover on its way 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, and to allow the blind to audit and report on what the system and the Bar Reports. One or two lawyers now admit that they have been breaking their own Rule B1.10 on Competence, diligence and appropriate skills:
You must only act in those matters where you are competent to do so. You must only accept instructions where the matter can be carried out adequately and completely within a reasonable time. You must exercise the level of skill appropriate to the matter.
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 system make the harm worse. 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.