Children (Scotland) Act 2020 - registers of child welfare reporters, curators ad litem and solicitors: consultation

Annex F: Draft Business and Regulatory Impact Assessment

Title of Proposal

Establishment of registers of child welfare reporters, curators ad litem and solicitors appointed where a party has been prohibited from personally conducting a case themselves.

1. Purpose and intended effect

• Background

1.1 The Children (Scotland) Act 2020 (the 2020 Act) gained Royal Assent on 1 October 2020. Section 7 of the 2020 Act establishes a register of solicitors who can be appointed where a person is prohibited from personally conducting their case. Section 9 of the 2020 Act establishes a register of child welfare reporters. Section 17 of the 2020 Act establishes a register of curators ad litem. In a number of areas, the 2020 Act amends existing legislation, notably the Children (Scotland) Act 1995 (the 1995 Act).

Child welfare reporters

1.2 Child welfare reporters can be appointed by the court either to seek the views of the child and report any views expressed by the child back to the court; or to undertake enquiries and report to the court. Where the court asks a reporter to undertake enquiries, this can include seeking the views of the child and reporting on their best interests. The 2020 Act also extends the functions of child welfare reporters so in future they will also explain court decisions to children and, if requested to do so by the court, will investigate the reasons for failure to comply with an order under section 11 of the 1995 Act on matters such as child contact and residence.

1.3 We understand that currently there are approximately 400 child welfare reporters in Scotland appointed across the six Sheriffdoms. Individuals seeking to be a child welfare reporter may be appointed to lists held by the Court of Session and by the six Sheriffs Principal (for the Sheriff Courts in their respective sheriffdom). The presiding judge or sheriff can then appoint a child welfare reporter on the appropriate list to report on a case.

Curators ad litem

1.4 Curators ad litem are appointed to represent and protect the interests of an individual lacking full capacity, including a child. Curators ad litem are used in cases other than those under section 11 of the 1995 Act such as Mental Health Tribunals, divorce proceedings where it appears to the court that the defender lacks capacity; or to protect the interests of a child who is the subject of proceedings for permanence or adoption orders. The 2020 Act only covers establishing a register of curators for the purposes of orders made under section 11 of the 1995 Act.

1.5 Currently, practice in relation to appointment of curators ad litem varies across Scotland. In some Sheriffdoms, curators are appointed from the list of child welfare reporters held by the Sheriffs Principal. In other areas curators are appointed from the panel of curators held by each local authority for permanence and adoption cases. The number of curators ad litem appointed varies across the country. For example from a survey of Sheriffs Principal, in Lothian and Borders there were four appointments of curators ad litem in the first two months of 2019 whilst in the Sheriffdom of South Strathclyde, Dumfries and Galloway there were six appointments for the whole of 2018/19.

Solicitors appointed where a party has been prohibited from personally conducting a case themselves

1.6 The Programme for Government for 2017-18 committed the Scottish Government to consulting on prohibiting of personal cross examination of domestic abuse victims in child contact cases.

1.7 Sections 4 and 5 of the 2020 Act introduce a new special measure into the Vulnerable Witnesses (Scotland) Act 2004 (the 2004 Act) prohibiting a party from personally conducting the remainder of their case in certain circumstances. This special measure is available in proceedings where the court is considering making an order under section 11 of the 1995 Act and in Children's Hearings court proceedings.

1.8 In order to protect the right to a fair trial under article 6 of the European Convention on Human Rights of an individual who has been prohibited from personally conducting the remainder of their case themselves legal representation must be available.

1.9 Section 6 of the 2020 Act gives the Scottish Ministers the power to establish a register of solicitors from whom a lawyer is to be appointed if a party fails to appoint one themselves where the prohibition applies in either a case under section 11 of the 1995 Act or a Children's Hearing court proceeding.

• Objective

1.10 The policy aim of the register of child welfare reporters and curators ad litem is to ensure that the best interests of the child are at the centre of any case under section 11 of the Children (Scotland) Act 1995 (the 1995 Act). Establishing these registers will ensure that child welfare reporters and curators ad litem are subject to suitable and consistent qualifications and training requirements.

1.11 The policy aim of the register of solicitors appointed where a party has been prohibited from personally conducting a case themselves is to support the 2020 Act's protection of vulnerable witnesses . The register will facilitate the appointment of solicitors to parties so prohibited where they are unable or unwilling to instruct one. This ensures that party's right to a fair trial. The prohibition of personal conduct of a case ensures the protection of victims of offences, including victims of domestic abuse, and the protection of vulnerable witnesses in Children's Hearings court proceedings and in cases under section 11 of the 1995 Act

Rationale for Government intervention

1.12 Establishing a register of child welfare reporters and of curators ad litem ensures that the child's best interests are at the centre of any contact or residence case as it will mean all child welfare reporters and curators ad litem are sufficiently trained.

1.13 Establishing a register of solicitors who can be appointed when a person is prohibited from personally conducting a case themselves allows the prohibited party's right to a fair trial to be protected, in turn allowing the courts to protect victims of a range of serious criminal offences from having to be questioned by their abuser.

1.14 The registers contribute to the following National Outcome:

We grow up loved, safe and respected so that we realise our full potential

1.15 The registers aim to help meet this National Outcome by ensuring our children grow up in an atmosphere of happiness, love and understanding and that children are not left worried or isolated.

2. Consultation

2.1 In preparing the consultation, the Scottish Government's Family Law Unit have worked with:

Within Scottish Government

• The Directorate for Children and Families
• Justice Analytical Services

Courts:

• The Scottish Courts and Tribunals Service

2.2 The Scottish Government has also taken on board responses received to the 2018 consultation on the Review of the Children (Scotland) Act 1995 and also the evidence received during the passage of the then Children (Scotland) Bill 2019 through the Parliament.

• Public Consultation

2.3 This draft BRIA forms part of a public consultation which will run for 16 weeks. The Scottish Government will seek views from a range of organisations representing children, victims of domestic abuse, parents, lawyers, social workers, existing child welfare reporters and curators ad litem.

3. Options & Impact on Scottish Business

1.1. This section focuses on the key options that are considered in the consultation. The consultation document itself lists all the options we are considering.

Register of child welfare reporters

1.2. Currently the court can appoint a child welfare reporter to either seek the views of the child and to report any views expressed by the child to the court; or to undertake enquiries and report to the court. These functions are set out in court Rules. The existing child welfare reporters are all on lists held by the Court of Session and the six Sheriffs Principal. The court can then appoint a Child Welfare Reporter from the appropriate regional list to produce a report.

1.3. Section 101A of the 1995 Act (inserted by section 9 of the 2020 Act) places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as child welfare reporters. Section 101A gives Scottish Ministers the power by regulations to make provision about:

• the requirements that a person must satisfy in order to be included, and remain, on the register
• the process for including a person on, and removing a person from, the register
• the process for how, and by whom, a registered person is to be selected as the appointed child welfare reporter in a case
• the remuneration of child welfare reporters including expenses and outlays
• the operation and management of the register.

1.4. Section 11(1B) and (1C) of the Matrimonial Proceedings (Children) Act 1958 (inserted by section 19 of the 2020 Act) means that if a local authority employee wishes to continue to act as a child welfare reporter then they would need to apply to be on the register of child welfare reporters and meet the required eligibility standards.

1.5. The 2020 Act also introduces two additional new functions for child welfare reporters. Section 20 of the 2020 Act inserts section 11F into the 1995 Act. This ensures that the outcomes and reasons for decisions are explained to the child concerned in a way that the child can understand. The court is not required to do this if they consider it not in the best interests of the child to do so. An explanation can be provided by either the court or by appointing a child welfare reporter.

1.6. Section 22 of the 2020 Act inserts section 11G into the 1995 Act. This introduces a requirement on the court to investigate the reasons for non-compliance with an order. The investigation can be by the court or by appointment of a child welfare reporter.

1.7. There are 10 areas being considered in relation to the register of Child Welfare Reporters. These are:

• who should operate and manage the register of child welfare reporters
• the process for including someone on the register of child welfare reporters
• the reappointment process for child welfare reporters to the register
• who would not be eligible to be included on the register of child welfare reporters
• how a child welfare reporter could be removed from the register
• the remuneration (fee rates) and expenses to be paid to child welfare reporters
• the requirements that a person must satisfy in order to be included on the register
• what ongoing training requirements there should be for child welfare reporters
• how a child welfare would be selected from the register and
• what a child friendly complaints mechanism should look like.

Register of curators ad litem

1.8. Currently, practice in relation to appointment of curators ad litem varies across Scotland. In some Sheriffdoms, curators are appointed from the list of child welfare reporters held by the Sheriffs Principal. In other areas curators are appointed from the panel of curators held by each local authority for permanence and adoption cases. The number of curators ad litem appointed varies across the country. For example, from a survey of Sheriffs Principal, in Lothian and Borders there were four appointments of curators ad litem in the first two months of 2019 whilst in the South Strathclyde, Dumfries and Galloway there were six appointments for the whole of 2018/19.

1.9. The Scottish Government understands that the appointment of curators ad litem by the court has a long history and rests in the common law powers of the court. The Scottish Government is not aware of any relevant court rules on the appointment of curators ad litem in family cases other than provisions on fees and outlays.

1.10. Section 9 of the 2020 Act amends the 1995 Act (by inserting a new section 101A) so as to place a duty on the Scottish Ministers to establish and maintain a register of individuals to act as child welfare reporters. Section 101A gives Scottish Ministers the power by regulations to set:

• the requirements that a person must satisfy in order to be included, and remain, on the register
• the process for including a person on, and removing a person from, the register
• the process for how, and by whom, a registered person is to be selected as the appointed child welfare reporter in a case
• the remuneration of child welfare reporters including expenses and outlays
• the operation and management of the register.

Solicitors appointed where a person has been prohibited from personally conducting a case themselves

1.11. Sections 4 and 5 of the 2020 Act introduce a new special measure into the Vulnerable Witnesses (Scotland) Act 2004 (the 2004 Act) prohibiting a party from personally conducting the remainder of their case in certain circumstances.

1.12. This special measure is available in proceedings where the court is considering making an order under section 11 of the 1995 Act and in Children's Hearings court proceedings.

1.13. In order to protect the right to a fair trial (under Article 6 of the European Convention on Human Rights) legal representation must be available for an individual who has been prohibited from personally conducting the remainder of their case.

1.14. In criminal proceedings where a party has been banned from cross examining another party or witness then where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes. The Scottish Government does not consider it appropriate to use solicitors appointed to this list in family court cases as they may not have experience of family law and also may not wish to represent individuals in these situations.

1.15. Section 7 of the 2020 Act requires the Scottish Ministers to establish a register of solicitors from whom a lawyer is to be appointed if a party fails to appoint one themselves where the prohibition applies either in a case under section 11 of the 1995 Act or in Children's Hearing court proceeding.

1.16. The Scottish Ministers must by regulations specify the requirements criteria a solicitor must meet to be eligible to be on the register and may also provide for the remuneration (the fee rate) payable to the solicitor. Provision may also be made about outlays such as fees to be paid to Counsel.

• This consultation seeks views on:
• the fee rates and expenses to be paid
• the requirements that an individual must satisfy in order to be included on the register
• what ongoing training requirements there should be for the individuals
• how the court would appoint a solicitor from the register and
• the complaints process about individuals included on the register

Sectors and groups affected

1.17. We consider the following groups or sectors will be affected by the options being considered:

Child welfare reporters and Curators ad litem;

Children and young people

The Courts

Faculty of Advocates

Family lawyers

Grandparents

Individuals seeking to be declared a parent of a child

Law Society of Scotland

Local authorities

Organisations supporting parents, families and children

Parents

Other Family members

Scottish Children's Reporter Administration

Scottish Courts and Tribunals Service

Scottish Legal Aid Board

Benefits

1.18. The main benefits from establishing registers of child welfare reporters and curators ad litem are that all child welfare reporters and curators ad litem will be subject to suitable and consistent qualification and training requirements. This will in turn ensure that the child's best interests remain at the centre of any contact or residence case.

1.19. The main benefits from establishing the register of solicitors who can be appointed if a person is prohibited from personally conducting a case themselves will be that vulnerable witnesses in family court cases and children's hearings court proceedings are protected.

Costs

1.20. The costs associated with establishing the three registers are set out in the Financial Memorandum which accompanied the Children (Scotland) Bill when it was introduced into the Scottish Parliament. The Financial Memorandum is at Financial Memorandum Children (Scotland) Bill (parliament.scot). For ease the estimated costs have been replicated below:

	2022/23	2023/24	2024 onwards
Operating and managing the register of child welfare reporters (£m)	1.67 -2.44	2.12-2.44	2.08-2.44
Operating and managing the register of curators ad litem (£m)	0.09 -0.11	0.06 -0.11	0.06-0.11
Operating and managing the register of solicitors appointed where a person is prohibited from personally conducting a case themselves (£m)	0.2	0.176	0.176

4. Scottish Firms Impact Assessment

4.1. To appreciate the impact that the proposed legislation may have on businesses operating in Scotland, as part of the consultation process the Scottish Government will seek views from bodies representing lawyers and bodies representing other professionals.

5. Competition Assessment

5.1. We do not expect the options to have an impact on competition as they will not:

• Limit the number or range of suppliers.
• Limit the ability of suppliers to compete.
• Limit suppliers' incentives to compete vigorously.
• Limit the choice and information available to consumers.

5.2. We would welcome any comments during the consultation as to whether any of the options would have an impact on competition.

6. Test run of business forms

6.1. Generally, we do not envisage that any new forms will be introduced for businesses by Scottish Government as a result of our policies. However, the introduction of the three new registers is likely to require that persons who wish to be on them will need to complete application forms.

7. Legal Aid Impact Test

7.1. Establishment of the three registers will have implications for the Scottish Legal Aid Board (SLAB) as the Scottish Ministers have the power under the 2020 Act to set the fee rates for child welfare reporters, curators ad litem appointed in cases under section 11 of the 1995 Act and also solicitors appointed where a party is prohibited from personally conducting a case themselves. Setting the fee rates centrally may lead to cost savings. It should also ensure consistency of fee rates across Scotland. A report by SLAB to the Family Law Committee of the Scottish Civil Justice Council showed there is a variety across the country in fee rates paid to child welfare reporters currently: The report is at paper-4-2---report-by-slab---child-welfare-reporters.pdf (scottishciviljusticecouncil.gov.uk)

7.2. Child Welfare Reporter fees are currently paid either by the parties to a case themselves or by SLAB if parties are eligible for legal aid. With the establishment of the register of child welfare reporters, this cost would no longer fall to SLAB. Instead, the cost of child welfare reports would be met by the Scottish Government, either through the organisation contracted to manage the register or directly if the Scottish Government should run the register in-house. In 2018/19 SLAB paid £3.7m in child welfare reporter fees.

7.3. The register of child welfare reporters will improve access to justice as currently if a party is not eligible for legal aid they may have to pay for a child welfare report themselves. The Scottish Government has heard anecdotally from stakeholders that this can cost up to £10,000. Once these provisions in the Bill are in force then all child welfare reporter fees will be paid by Scottish Government. The Financial Memorandum for the Bill estimated these costs (in table 7) as between £0.14 million and £0.56 million a year.

7.4. The register of solicitors who can be appointed when a person is prohibited from personally conducting a case themselves will have an additional impact on SLAB. Once a person is prohibited from conducting a case themselves then they would have the opportunity to either appoint a lawyer themselves – either privately or through SLAB if they are eligible for legal aid. If a party does not appoint a lawyer themselves then the court will order a lawyer to be appointed from the register. The fees of the lawyers on the list held by Scottish Ministers will be paid by Scottish Government rather than through legal aid.

8. Enforcement, sanctions and monitoring

8.1. The registers does not change the current way a party can complain about the outcome of a case. If a party wishes to complain about the conduct of a sheriff then this is handed by the Judicial Office for Scotland. The usual way of complaining about the outcome of a case is to appeal the decision.

8.2. The registers will introduce new child friendly complaints mechanisms The complaint will be handled by the body undertaking the management and operation of the register. A person may be removed from the register if Scottish Ministers deem the conduct to warrant it.

8.3. In addition, a child welfare reporter or curator ad litem will be subject to a regular reappointment process. If a person fails to meet the required criteria at the reappointment then their appointment may not be continued.

8.4. If a person is not happy with a decision not to appoint them to the register, not to reappoint them to the register or to remove them from the register then they can complain about this.

8.5. The 2020 Act provides that where a solicitor is appointed to represent a party where they have been prohibited from personally conducting a case themselves then the solicitor may not be dismissed by the party for whom they have been appointed to act. This reduces the risk of parties who may not wish to be legally represented dismissing their solicitor without reason.

9. Implementation and delivery plan

9.1. The consultation will influence the Scottish Government's decisions about next steps and the provision which will be made about the registers. This BRIA will be finalised for the regulations, taking account of points made by consultees. The final version of the BRIA will be published on the Scottish Government website.

9.2. It is envisaged that the registers will take time to commence. It is hoped that the Scottish Government will lay regulations early in 2022. This will mean that a contract for the body (if one is appointed) to manage and operate the registers will be let by April 2022. There will then be a year for the recruitment of child welfare reporters, curators ad litem and solicitors. The intention is for the new registers to become operational from April 2023.

Post-implementation review

9.3. The Scottish Government will review the legislation generally to ensure that it is still fit for purpose within 10 years of enactment.

9.4. In addition, Section 31 of the 2020 Act places a duty on the Scottish Ministers to review the effect of the Act on children's participation in the making of various types of decisions which affect them and in relation to which their views are required to be sought and taken into account. The review must, in particular, consider the resources required to ensure effective participation by children in the making of the decisions.

10. Summary and recommendation

10.1. The Scottish Government are seeking views on the three registers. This section will be completed in the final BRIA when we have considered the responses from this consultation.