Terms of Reference

by expoƒunction

WORKING GROUP ON BAR REPORTERS: TERMS OF REFERENCE

 Statutory background to child welfare hearings

 1.         Part I of the Children (Scotland) Act 1995 makes provision in respect of parental responsibilities and rights (PRRs).   Section 11 of the 1995 covers court actions in relation to PRRs, including actions in relation to residence and contact.   This paper outlines below key provisions of section 11 which are relevant for this Working Group.

2.         Section 11(7) of the 1995 Act provides that when a court is considering whether or not to make an order under section 11, the court:

“ (a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

(b) taking account of the child’s age and maturity, shall so far as practicable –

            (i) give him an opportunity to indicate whether he wishes to express his views;

            (ii) if he does so wish, give him an opportunity to express them; and

            (iii) have regard to such views as he may express”.

3.         Section 11(10) of the 1995 Act then provides that:

“          Without prejudice to the generality of paragraph (b) of subsection (7) above, a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view for the purposes both of that paragraph and of subsection (9) above”.   [Subsection (9) relates to legal representation of the child].

4.         Child welfare hearings are held if the granting of a section 11 order is opposed or if in any other circumstances the sheriff considers that a Child Welfare Hearing should be held.

Statutory background to the appointment of bar reporters

5.         Section 11(1) of the Matrimonial Proceedings (Children) Act 1958 provides that:

“          Where the court is considering any question relating to the care and upbringing of a child, it may, without prejudice to its power to appoint any other person not being an officer of the local authority for the purpose, appoint an appropriate local authority to investigate and report to the court on all the circumstances of the child and on the proposed arrangements for the care and upbringing of the child.”

6.         Sheriff Court Ordinary Cause Rule 33.21 provides:

“          (1) This rule applies where, at any stage of a family action, the sheriff appoints-

(a) a local authority, whether under section 11(1) of the Matrimonial Proceedings (Children) Act 1958 (reports as to arrangements for future care and upbringing of children) or otherwise, or

(b) another person (referred to in this rule as a “reporter”), whether under a provision mentioned in sub-paragraph (a) or otherwise,

to investigate and report to the court on the circumstances of a child and on proposed arrangements for the care and upbringing of the child.

(2) On making an appointment referred to in paragraph (1), the sheriff shall direct that the party who sought the appointment or, where the court makes the appointment of its own motion, the pursuer or minuter, as the case may be, shall-

(a) instruct the local authority or reporter; and

(b) be responsible, in the first instance, for the fees and outlays of the local authority or reporter appointed.

(3) Where a local authority or reporter is appointed-

(a) the party who sought the appointment, or

(b) where the sheriff makes the appointment of his own motion, the pursuer or minuter, as the case may be,

shall, within 7 days after the date of the appointment, intimate the name and address of the local authority or reporter to any local authority to which intimation of the family action has been made.

(4) On completion of a report referred to in paragraph (1), the local authority or reporter, as the case may be, shall send the report, with a copy of it for each party, to the sheriff clerk.

(5) On receipt of such a report, the sheriff clerk shall send a copy of the report to each party.

(6) Where a local authority or reporter has been appointed to investigate and report in respect of a child, an application for a section 11 order in respect of that child shall not be determined until the report of the local authority or reporter, as the case may be, has been lodged.”

Scottish Government scoping study on bar reporters

7.         In 2011, the Scottish Government published: Child Welfare Hearings: A Scoping Study of the Commissioning, Preparation and Use of Bar Reports1.    Paragraph 5.40 of this study suggested some aspects of the current system of bar reporters that may require further consideration:

  • “Transparency over appointment to the list of bar reporters.
  • A consistent and uniform appointment process across all sheriffdoms with clear lines of responsibility to ensure adherence to national approach.
  • Clarity over the required qualifications and experience that bar reporters should possess in order to be appointed.
  • Although Disclosure Scotland certificates may now be required for those recently appointed to the list of bar reporters, all bar reporters irrespective of length of experience should be required to provide Disclosure Scotland certificates. This should apply even to those lists that are currently closed.
  • The qualifications and experience of the bar reporter should be narrated in the bar report.
  • The right of parties to challenge statements in the bar report should be more clearly specified.
  • Guidance on the standard structure of the bar reports should be provided.
  • Feedback on bar reports to the bar reports should be provided by sheriffs to ensure that high standards are maintained and to enable the delivery of appropriate training.
  • Clarity over the use and role of the bar report should be provided to ensure that the system retains public confidence”.

8.         The Government considers that work to ensure that bar reporters provide the best service possible is in line with its Getting It Right for Every Child (GIRFEC) approach and in line with the provisions of section 11 of the 1995 Act, on the welfare of the child being paramount.

Lord Gill’s review of the Civil Courts

9.         In 2009, the Report of the Scottish Civil Courts Review by Lord Gill was published2.  Paragraphs 100 to 112 of Chapter 5 of Lord Gill’s report discussed persons appointed in civil proceedings to protect the interests of the child and/or to provide a report to the court.   As Lord Gill noted, there are a number of different types of appointment, both statutory and at common law.   Appointments the Scottish Government is aware of are shown in the table below:

Type of appointment What does it do Type of case Jurisdiction
Bar reporters Provides a report to the court. Child welfare hearing Sheriff Court
Curators ad litem Safeguards the interest of a child or of someone lacking capacity Various Sheriff CourtMental Health Tribunal
Safeguarders Safeguards the interest of a child (in children’s hearings) or an adult lacking capacity or needing support and protection (in the sheriff court). Various Children’s hearingsSheriff Court
Reporting Officers Witnessing agreements Adoption; freeing for adoption and applications for parental responsibilities orders in favour of a local authority. Sheriff Court

10.       Lord Gill recommended the following (recommendations 74 to 76):

“          Curators, reporting officers, safeguarders and court reporters

 For children, the following are required:

  • An open, fair and transparent system of recruiting panels of people from whom curators, reporting officers, safeguarders and reporters can be appointed by the court.
  • Clarity and consistency as to the qualifications and experience required for each type of appointment.
  • Rates of remuneration which reflect the actual work required to fulfil the remit of the particular appointment.
  • Access to appropriate induction and training for people appointed to panels, as well as opportunities for continuing professional development and the sharing of good practice.
  • Clarity for appointees as to what is expected of them. For some appointments this may be laid down in rules of court, for others it maybe appropriate to have non-statutory guidance. In any event, the sheriff or children’s hearing making the appointment should always ensure that the person appointed is clear as to what is required of them, if necessary by specifying this in detail in the order.
  • A system for monitoring the quality of the work done and reports provided by appointees and for dealing with situations where they fall below the standard expected.

The courts, the Scottish Government, local authorities, SCRA, SLAB and the legal profession should collaborate to develop systems which will meet these objectives.

For adults, the basic requirements of the systems of appointment, training and remuneration of safeguarders and curators ad litem are the same as set about above. The relevant organisations should work together in a similar way to develop appropriate systems.”

Potential role of this working group

 11.       In ‘A Sustainable Future for Legal Aid’3, published on 5 October 2011, the Scottish Government set out plans to consider the costs involved in relation to bar reports and whether these costs could be reduced in the short term given the considerable pressures on legal aid expenditure in the current financial climate.  Across Scotland, the average cost of Bar Reports paid for through legal aid is £3,104 and total expenditure by the Scottish Legal Aid Board on Bar Reports is over £4 million a year.

12.       A lack of a clear structure for payment of bar reporters and curators ad litem has been raised by various auditors, sheriffs and by Lord Gill in his review.  Currently bar reporters who are solicitors, curators ad litem and safeguarders tend to charge either at judicial rates or under the former “General Table.”  This work is currently being taken forward by the Scottish Government, in close consultation with stakeholders such as the Law Society of Scotland, in order to deliver legal aid savings during the course of the current Scottish Government spending review period.

13.     This working group is concentrating on bar reporters.  The Government recognises that there are strong links with other appointments.   As Lord Gill’s report noted at the time, work is being taken forward separately in relation to safeguarders in the children’s hearings system.   Therefore, the Government would not propose that specific issues in relation to children’s hearings be considered in this working group.

14.        As this working group is concentrating on children, the Government would not propose this working group consider in detail matters relating to persons appointed to safeguard adults.

15.      As this working group is considering private family law actions, the Government would not propose that this working group consider matters relating to persons appointed in actions on adoption and parental responsibilities orders in favour of a local authority.

16.       However, the Government recognises that this working group may wish to comment on the role of persons, such as curators ad litem and safeguarders, appointed to safeguard the rights of children in private family law actions in the sheriff court.   There are strong links with the role played by bar reporters in providing a report in child welfare hearings.   The United Kingdom Supreme Court commented on the role of the curator ad litem in NJDB v JEG.4

Terms of reference

 17        The Government considers that both Lord Gill’s review and the Government’s own research show some concern about bar reporters.    Lord Gill’s review and the Government’s research suggest the following issues need to be considered:

  •  Whether bar reporters should continue to have a role at all.
  • Assuming that they do, how bar reporters are appointed and how this can be made transparent.
  • Ensuring that bar reporters have the necessary disclosure clearance.
  • The qualifications and experience bar reporters should have.
  • Issues surrounding the longer term future of how bar reporters should be paid, taking account of the immediate work being taken forward as set out paragraphs 11 and 12.
  • The induction, training and continuing professional development which bar reporters need.  (For example, the working group could consider the provision of Level 1 Domestic Abuse Risk Assessment training for bar reporters.   Level 1 Risk Assessment training enables participants to assess and manage risks associated with contact in cases of domestic abuse).
  • Clarity on what bar reporters should do, with the possibility of more guidance being provided on the structure of reports and what reports should contain.
  • How best to monitor the quality of the work carried out by bar reporters and to deal with any cases where the work falls below the standard expected.
  • How the parties involved in a case can challenge the contents of a report.
  • Providing greater clarity and information to the public on the role of bar reporters, to enhance public quality in the system.

18.       The Government therefore proposes the following terms of reference for the Working Group:

“          To provide advice and recommendations to the Government, the Scottish Court Service and other parties on bar reporters appointed by the sheriff in child welfare hearings to provide a report to the court.  In particular, the working group should make recommendations on:

  • Whether bar reporters should continue to have a role in child welfare hearings.
  • Assuming that bar reporters should continue to have a role, how they are appointed and how this can be made transparent.
  • Ensuring that bar reporters have the necessary disclosure clearance.
  • The qualifications and experience bar reporters should have.
  • How bar reporters should be paid.
  • The induction, training and continuing professional development which bar reporters need.
  • Clarity on what bar reporters should do.
  • What guidance should be provided on the structure of reports and what reports should contain.
  • How best to monitor the quality of the work carried out by bar reporters and to deal with any cases where the work falls below the standard expected.
  • How the parties involved in a case can challenge the contents of a report.
  • How best to provide greater clarity and information to the public on the role of bar reporters, to enhance public confidence in the system.”

In addition, the working group should consider if there is a need for any recommendations to the Government, the Scottish Court Service and others on other appointments in the sheriff court to safeguard children, such as curators ad litem and safeguarders.”

19.       The bodies being invited to join the working group are outlined at Annex A.

20.       The proposed way in which the working group would operate is outlined at Annex B.

Family and Property Law
Justice Directorate
Scottish Government

January 2013

ANNEX A:  WORKING GROUP ON BAR REPORTERS
Bodies invited to join working group (one representative each, to keep numbers manageable).

Association of Directors of Social Work
Faculty of Advocates
Families need Fathers
Family Law Association
Judicial Institute for Scotland
Law Society of Scotland
Scotland’s Commissioner for Children and Young People
Scottish Court Service
Scottish Government (Chair and Secretary)
Scottish Legal Aid Board
Scottish Women’s Aid
Sheriffs’ Association
Sheriff Court Rules Council
A Sheriff Principal

Family and Property Law
Justice Directorate
Scottish Government

ANNEX B: WORKING GROUP ON BAR REPORTERS

Way of working.

1.         The Government suggests that there could be three meetings.

2.         The first meeting (in January) would:

  • Consider the draft terms of reference, and agree them.
  • Have an open discussion on bar reporters.
  • Have an open discussion on other sheriff court appointments to safeguard children.

3.         The second meeting (February/March) would:

  • Consider draft recommendations put forward by the Secretariat following the discussion at the first meeting.

4.         The final meeting (April) would:

  • Agree final recommendations put forward by the Secretariat following the discussion at the second meeting.

5.         The final recommendations would be published as would the response by the Government, the Scottish Court Service and others and a short action plan showing progress on implementing the agreed recommendations.

Family and Property Law
Justice Directorate
Scottish Government