“He is responsible for skill in his profession and want of such skill is regarded as a fault.”
Spondet peritiam artis, et imperitia culpae adnumeratur
(Bell’s Commentaries (7th ed.) I, 489, Bell’s Principles)
The court had general power to make a remit to a reporter (a) to provide an opinion on a technical matter, (b) to investigate the circumstances and to report on them to the court, and (c) to preserve evidence. The circumstances in which the power to make a judicial remit might be used were very various indeed, as was the nature of the reports required and the expertise of the reporter. [Adoption (Scotland) Act 1978, s. 58; RCS, rule 67.4. – this public law reporter example is provided as a point of reference.]
Rule 33.21 of the Ordinary Cause Rules concerned the appointment of a local authority or reporter 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. Although this function was formerly carried out by local authority Social Work Departments, often at no cost, it now appeared that solicitors in private practice were most commonly appointed by the court to perform this role.
A report can be obtained from someone other than a solicitor, such as a social worker or psychologist, but the majority of reports are prepared by solicitors. These reports are very often the basis for decisions which are made at in interim stage and, of course, almost inevitably become the foundation for the longer-term plans. The bar reporter becomes the ‘eyes and ears’ of the court. The bar reporter has an enormously influential role as it is rare for a decision to be made against the recommendation of such a report.
.. There are no special qualifications required for solicitors who carry out these reports … Many are exemplary in their impartial and helpful focus and in making sensible and practical suggestions which form the basis for workable plans. However, the lack of understanding of child development and family dynamics can result in an adult view rather than a child-centred one.
The issue of qualifications and, in particular, the importance of an understanding of child development and concerns over interviewing children reflect a range of comments and concerns expressed by a range of people (sheriffs, solicitors, family therapists, social workers, mediators, as well as grandparents and parents) interviewed during 2008 – 2009.
The authority of the court is essential if intractable disputes are to be resolved, but are we overwhelmed with views from legal professionals when the problems are centrally to do with human relationships and only marginally to do with law?
Of the fifteen bodies originally invited to join this Working Group, nine have a legal focus. Although one representative from the Association of Directors of Social Work was invited to join the Working Group, other helping professions that do or could provide support in these cases were not. Is there sufficient professional diversity within the Working Group to ensure the often highly counterintuitive situations in conflicted separated families can be understood well enough, in particular to satisfy the GIRFEC and best interest of the child objectives?
It’s failure to understand and differentiate the complex patterns in high conflict families which often leads to a cascade of disasters for children. The growing body of international evidence shows just how serious & long-term the consequences are for these children and why effective early intervention is required; intervention that’s been shown to reduce the families’ traction and increase the traction courts have on them.