… the practice of judges rubber stamping … [#2]

by Roy Mackay

See the previous post on this subject here .

And again compare this:

Mrs Justice Pauffley has noticed the practice of judges rubber stamping the wishes of [others] without even so much as checking the information they provide or examining it through a fair hearing. And whilst some may argue that judges rely on ‘experts’ to provide information and guide them on outcomes, the reports provided were never meant to be taken ‘as read’. That has become common practice in our courts and factors such as time pressures and resources are irrelevant here. Breaking procedure is simply not an option.

Judge of The Week: Mrs Justice Pauffley

… with the Scottish Government’s March 2016 “Instructions to Child Welfare Reporters” (formerly known as Bar Reporters):

Format of Report

Your report should set out clearly and concisely the facts which you have found established and which lead you to the conclusions and recommendations which you are making to the court. Your report has been ordered by the court in order to ascertain matters of fact and in order to enable the presiding sheriff to better regulate interim matters at a child welfare hearing. It is not appropriate for you to indicate that you have been unable to formulate a clear view as to appropriate next steps in the case and that the matter should simply proceed to proof. [Emphasis added]

Instructions to Child Welfare Reporters: Edition 1 (March 2016), page 3 [Published 22 March 2016]

This surely is a remarkable instruction, and given that the majority of Bar/Child Welfare Reporters are private practice solicitors without any welfare qualifications, training or experience (and the lack of any formal appointment criteria for these posts), a matter of real concern.

General points

5. A number of general points have arisen during the work of the Working Group, including:

5.1 Most child welfare reporters now are solicitors but some may come from other backgrounds such as social work. Nothing is laid down centrally on training, qualifications and experience. The Sheriffs Principal (and the Lord President, for the Court of Session) hold lists of persons who may be appointed by the court.

5.2 Child welfare reporters need to provide focussed reports with recommendations, to inform the court.

5.3 The work of a child welfare reporter is challenging, given issues such as the sensitive nature of the cases, the need to be skilled in interviewing children and the need to provide clear and robust recommendations.

Scottish Government paper (4.3A Child Welfare Reporters) considered by the Scottish Civil Justice Council’s Family Law Committtee at it’s 1 September 2014 meeting.

Even now – in April 2017 – no arrangements have been made for the delivery of any of the somewhat vague training requirements the Working Group identified.

12. The Working Group identified the following elements of training courses for child welfare reporters which it considered to be required:

a. Overview of child development
b. Talking to children, including input from a child psychologist
c. Issues affecting child welfare including:
a. Domestic abuse
b. Mental health
c. Addiction
d. Cases where a parent has undue influence over a child (sometimes known as parental alienation).
d. Report writing.

Letter of 16 September 2016 from Jan Marshall, Deputy Director, Civil Law and Legal System Division within the Scottish Government’s Justice Directorate to the Lord President of the Court of Session [Published 20 September 2016]

Whilst it must be acknowledged that many Bar/Child Welfare Reporters work hard to produce objective & fair reports, the focus ought to remain fixed on a system that enables others to offer partial, even ideologically driven, reports which have profound consequences for families and in particular for children.

Given that prior to the creation of concurrent jurisdiction for divorce between the court of session and the sheriff courts in 1984, the majority of bar reports were prepared by social workers (see Scoping Study of the Commissioning, Preparation and Use of Bar Reports, 4.12 to 4.16), and that in the intervening years the majority have been prepared by private practice solicitors, a burning question remains to be answered: How could this have been allowed to happen? Perhaps the answer lies with the concept of mission creep. Had the remit of bar reporters been limited to providing an opinion on technical matters, or to investigating factual circumstances and reporting on them to the court, and even to identifying and preserving evidence, then the qualifications and experience of a solicitor might well be ample. Over the years however the role has expanded to infringe professional practice of the caring professions with such welfare related tasks as interviewing children (& interpreting what they say) and assessing child welfare & development issues which properly require professional skill that few if any private practice solicitors possess. The Working Group has failed to adequately address this fundamental question (of want of professional skill) and has now further compounded the problem by formally redefining the role as ‘Child Welfare Reporter’; apparently content to bestow on members of the legal profession a pseudo professional status that’s not within their gift. A couple of days (even a couple of weeks) training every three to five years will not come close to equipping private practice solicitors to perform these tasks competently.

The Working Group has been overwhelmingly dominated and informed by the legal profession. Had they been examining the conduct of any other profession carrying out work for which it’s members were manifestly unqualified, it’s hard to imagine that other profession emerging entirely unscathed. Rather than begin with the evidence and work towards a conclusion, this Working Group seems to have worked in the opposite direction. More egregiously, apparent scepticism about the possibility that these private practice solicitors might actually be doing something that’s fundamentally wrong seems to have caused them to dismiss the need to gather any objective information. There’s no evidence, for example, of any qualitative, or any other form of independent analysis having been carried out on the Bar Reports themselves, which annually cost the Scottish tax payer in the region of £4M; something this Working Group is perhaps uniquely positioned to instigate given the confidentiality and sensitivity of these by-products of our in-camera family court process.

The Scottish Government may now have left itself open to criticism that it’s been drawn in to endorsing a low key attempt to legitimise 30+ years of quite widespread improper professional conduct by offering just a few days training to the next intake of Bar/Child Welfare Reporters.