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

Annex J: Draft Fairer Scotland Duty Impact Assessment

Fairer Scotland Duty

Title of Policy, Strategy, Programme etc

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.

Summary of aims and expected outcomes of strategy, proposal, programme or policy

The key policy aim of the registers 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.

The policy aim of the register of solicitors appointed where a party has been prohibited from personally conducting a case themselves is to protect vulnerable parties by introducing a special measure of prohibition of personal conduct. The register ensures the right to a fair trial. The prohibition of personal conduct of a case in certain circumstances protects victims of offences, including victims of domestic abuse, and vulnerable witnesses in Children's Hearings court proceedings and in cases under section 11 of the 1995 Act.

A child welfare reporter may be appointed by the court either to undertake enquiries and report to the court or to seek the views of the child and to report any views expressed by the child to the court. In the future, child welfare reporters will also explain court decisions to children and, when requested to do so by the court, investigate reasons for non-compliance with a court order.

Currently, child welfare reporter fees are paid by either the parties in a case themselves or by the Scottish Legal Aid Board (SLAB) if the parties are eligible for legal aid. Once the register of child welfare reporters is operational this cost would be met by the Scottish Government either directly or through the body appointed to operate and manage the register of child welfare reporters.

At present, the cost of a Child Welfare Report can vary significantly from case to case and also in different areas of the country. The Ordinary Cause Rules provide that the cost of a Child Welfare Report should be met in equal share between all the parties unless there is good reason for it to be met in a different allocation.

A curator ad litem is appointed by the court to safeguard and promote the interests of a child in so far as those interests are affected by particular litigation.

Currently, 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 ad litem held by each local authority for permanence and adoption cases. In one Sheriffdom the sheriff principal maintains a separate list.

Establishing a register of child welfare reporters and curators ad litem in section 11 cases will mean their fees would be met by the Scottish Ministers. This means that no individual will have to meet the cost of a Child Welfare Report or curators ad litem fees.

Funding Child Welfare Reports and curators ad litem fees for all parties will remove any access to justice concerns. The Scottish Ministers understand from discussion with stakeholders that parties not in receipt of legal aid may have to incur considerable expenditure to meet the costs of a Child Welfare Report.

The Scottish Government also intends to meet the fees, outlays and expenses of solicitors where a party has been prohibited from personally conducting a case themselves. Overall, costs here are expected to be low as the number of cases where these solicitors are likely to be needed is expected to be low.

Summary of evidence

In 2018/19 there were 3,554 family cases raised and 15,649 hearings in family cases involving children (excluding adoption and permanence). Of the 15,649 there were 6,655 child welfare hearings. A child welfare reporter would not necessarily be appointed in every case.

SLAB have figures on the number of reports that are funded by legal aid, and the table below shows the figures over previous years in relation to child welfare reporter costs:

Year	Estimated number of individual payments made for CWRs Costs	Total cost (£m)	Estimated average cost per report (£m)
2016/17	1,711	3.0	0.028
2017/18	1,983	3.5	0.035
2019/20	2,263	3.7	0.027

Currently the cost of a child welfare report can vary. Figures from a SLAB report to the Family Law Committee of the Scottish Civil Justice Council suggest that in 2016, 10% of reports cost under £500; 18% of cost between £501- £1000; 25% cost between £1001-£2000; 15% cost £2001 - £3000 and 16% cost more than £3000. In legal aid cases where the cost of the report is to be in excess of £3000 then permission is required from SLAB.

Information on the number of privately funded cases where a child welfare report is currently ordered is not currently collected. However, from discussions with stakeholders it is understood that this figure could be 10% of all child welfare reports.

During stakeholder events as part of the consultation on the Review of the Children (Scotland) Act 1995, the Scottish Government heard of privately funded Child Welfare Reports costing upwards of £10,000.

Rethinking Legal Aid, An Independent Strategic Review in February 2018 set out that when child welfare reporters are appointed by the court the outlays can be significant. The review also suggested that a centralised system for child welfare reporters should be considered.

The review found that the system of civil legal aid eligibility, contributions and clawbacks is inconsistent and complicated, in particular that assessment and verification of financial eligibility in civil legal aid cases, where applicants are not in receipt of state benefits, can be complex.

In addition the review referred to evidence that there can be added financial stress to a person in having to pay a large contribution or indeed the whole costs of a case.

For those who are eligible for legal aid, many will still have to pay a contribution towards the cost of the case. This is means tested by assessing the person's financial situation (disposable income and disposable capital).

Summary of assessment findings

Although the proportion of cases in which a party privately funds a child welfare report may be relatively low, the potential costs to those affected individuals could put them under significant financial pressure.

Requiring a person who is privately funding their case to pay a considerable sum (perhaps up to £10,000) for a child welfare report could pose access to justice issues.

The additional burden of having to pay for a court ordered child welfare report could add to stress felt by parties to a case under section 11.

Sign off

To be completed for final version of Fairer Scotland Duty Assessment.