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

Part 2: Register of Child Welfare Reporters

Introduction

2.1. This section of the consultation focuses on child welfare reporters. It seeks views on:

• 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.

Existing situation

2.2. Child welfare reporters can be appointed by the court in cases under section 11 of the Children (Scotland) Act 1995 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 producing recommendations on their best interests. There are other ways the court can seek the views of the child^[4].

2.3. We understand there are approximately 400 child welfare reporters in Scotland appointed across the six Sheriffdoms and the Court of Session. 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.

2.4. In cases under section 11 of the 1995 Act, a court may appoint a local authority to report on a child. The Scottish Government understands that in certain areas of Scotland the courts are using these provisions to order a child welfare report from local authorities.

2.5. Individuals can apply to the Sheriff Principal of a Sheriffdom to be added to the lists of child welfare reporters. The appointment criteria are set by each Sheriff Principal.

2.6. Most child welfare reporters are practising solicitors and many of them are family lawyers. However, some child welfare reporters have other backgrounds such as in social work or in teaching.

2.7. Generally, the appointments are not for a fixed period of time and finish when an individual asks to be removed from the list. The procedure for removing a child welfare reporter from office is a matter for each Sheriff Principal/ the Lord President.

2.8. We understand that child welfare reporters do not have regular appraisals or any other monitoring or review except to ensure that their Protecting Vulnerable Groups registration is maintained^[5]. In general, there is no requirement for any specific training. However, we are aware that certain Sheriffs Principal have organised training for the child welfare reporters on the list in their Sheriffdom.

2.9. The Financial Memorandum^[6] which accompanied the Children (Scotland) Bill when it was introduced into the Scottish Parliament included information on Scottish Legal Aid Board (SLAB) funding of child welfare reports. SLAB may fund child welfare reports when one or both parties to the case are in receipt of legal aid.

2.10. We have recently produced information for children about child welfare reports.^[7] This is aimed at children and young people with a reading age over 11. We are now working on a guide for younger children.

Historical position

2.11. From 2013 – 2015, the Scottish Government chaired a working group to examine the role of child welfare reporters.^[8] This working group led to a number of outputs including:

• a guide to the child welfare report,^[9]
• instructions to child welfare reporters,^[10]
• a change in the name from Bar Reporters to child welfare reporters, and
• proposed training requirements^[11].

2.12. The working group also led to changes in court rules. In October 2015, changes were made to rules for family cases in relation to the use of child welfare reporters. The Scottish Civil Justice Council (SCJC) has published information about these changes.^[12] The changes to the rules included a presumption that the parties to the case would meet the costs of a child welfare report equally. The court has power to order that the costs be split unequally.

2.13. The rule changes also included a new form of written court order for sheriffs and judges in the Court of Session to complete when requesting a child welfare report.^[13] This allows the sheriff or judge to set out what the child welfare reporter can do^[14]. In the interlocutor appointing a child welfare reporter, the sheriff or judge can say:

• whether views of the child or children are to be sought
• the enquiries the reporter should undertake
• the issues to be addressed in the report.

Children (Scotland) Act 2020

2.14. Section 101A of the 1995 Act places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as child welfare reporters. The 1995 Act 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.

2.15. Section 11(1B) of the Matrimonial Proceedings (Children) Act 1958 as 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.

2.16. 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 decisions in section 11 cases are explained to the child concerned in an impartial manner unless the court considers it not in the best interests of the child to give an explanation. Explanations can be provided by either the court or by appointing a child welfare reporter.

2.17. Section 22 of the 2020 Act inserts section 11G into the 1995 Act. This introduces a requirement on the court where it is considering whether to find a person in contempt of court for failing to obey an order under section 11, or to vary or discharge an order under section 11 on the bases that a person has failed to obey it, to establish the reasons for that failure. The investigation can be by the court or by appointment of a child welfare reporter. We would expect a child welfare reporter would be appointed in more complex cases.

Who would operate and manage the register of child welfare reporters

Background

2.18. Currently, child welfare reporters are appointed from lists held by each Sheriff Principal for cases heard in the sheriff court and by the Lord President for child welfare reporters appointed in cases in the Court of Session.

2.19. The 2020 Act inserts section 101A into the 1995 Act. Section 101A(3)(e) of the 1995 Act gives the Scottish Ministers the power to make provision for or in connection with the operation and management of the register. We will do this by making regulations.

2.20. The Scottish Ministers have not yet decided whether to contract out the operation and management of the register or retain this work in house. The Scottish Government's initial view, however, is that contracting out the operation and management of the registers may be preferred. In particular, external expertise could be needed in relation to functions such as organising training for professionals from a variety of areas. Annex D to this consultation sets out the Scottish Government's view on what would be done by the body appointed to operate and manage the register if the Scottish Government decides to contract out this role.

2.21. In their responses to the Justice Committee call for evidence on the Children (Scotland) Bill the judiciary suggested that the register of child welfare reporters should continue to be maintained by individual Sheriffs Principal, or by the Lord President for cases in the Court of Session.^[15] The Judiciary argued that the court may wish to appoint a specific child welfare reporter on the basis they have specific skills. In addition, they have highlighted that it would not be value for money to appoint a child welfare reporter who lives in, for example, Shetland to undertake a child welfare report in Stranraer.

2.22. The Scottish Government recognises the concern above regarding location of child welfare reporters. However, one of the key aims of establishing a register of child welfare reporters is to increase consistency. We consider that a centralised register of child welfare reporters is the best way to ensure that there is consistency across Scotland in terms of appointment process, complaints procedure and training requirements.

2.23. Leaving the registers to be maintained at Sheriffdom level would put additional resource requirements on the SCTS.

2.24. To ensure value for money, we would propose to require child welfare reporters when they are included on the register to identify the locations that they would be willing to work in. There would be an expectation that child welfare reporters would only undertake work in their local area. However, this could cover a number of Sheriffdoms or the Court of Session. Even if a child welfare reporter operates in more than one Sheriffdom and in the Court of Session they would only need to be registered once on the central register.

2.25. A child welfare reporter may be appointed by a court in one Sheriffdom but have to travel to another area of the country to speak to a parent, a child or another family member if it is not possible to do this remotely.

Options

2.26. As indicated above, the Scottish Government considers that a centralised (ie national) register of child welfare reporters is the best way to ensure that there is consistency across Scotland in terms of appointment process, complaints procedure and training requirements. There are therefore three options which would all involve running a national register across Scotland:

• the Scottish Government running it in house
• the Scottish Government letting a contract for the operation and management of the register to a third party organisation
• the SCTS running a single register of child welfare reporters across Scotland.
  

2.27. As indicated above, the Scottish Government's initial view is that contracting out the operation and management of the register (option 2) may be preferred as this could bring valuable expertise to the role. Option 3 could put additional pressure on the SCTS and could also involve them in carrying out new functions such as organising training for solicitors, social workers and other professionals.

2.28. If the Scottish Government were to adopt option 2 then we would propose to run a full public tender for this contract. If the Scottish Government chose option 1 then the team responsible for the operation and management of the register would be separate from the current Family Law Unit in the Scottish Government.

Question 1):

Who should provide the operation and management of the register of child welfare reporters? (please select one answer).

(a) the Scottish Government

(b) the Scottish Government should contract this out to a third party

(c) this should be run by the SCTS on a national level.

(d) another option

(e) don't know

Why did you select your answer?

Process for including an individual on the register of child welfare reporters & reappointment process

2.29. The Scottish Government would anticipate that advertisement for the role of child welfare reporter would to take place in 2022. This would be subject to any regulations setting out eligibility requirements being made and coming into force. We would expect that in future years further recruitment rounds would be undertaken to replace people ceasing to be on register or to deal with an upsurge in demand.

2.30. Individuals would need to complete an application form which would be sifted on an anonymous basis. Individuals who pass the sift may then be interviewed to assess their suitability for inclusion on the register. The application form would seek evidence of how candidates meet the requirements. The application form may also require individuals to indicate the areas of the country that they would be available to work in. This would be used to ensure that there was sufficient coverage of child welfare reporters across the country.

2.31. Successful individuals would be required to agree to terms and conditions and obtain a disclosure certificate^[16]. They would then be asked to confirm the areas of the country that they would be willing to work in.

2.32. Practice varies in relation to the length of appointment in other areas Safeguarders appointed to the panel in Children's Hearings are appointed for three years. Reappointment can be for between one and three years. The Tribunals (Scotland) Act 2014 provides that appointments to the Scottish tribunals are for five years and reappointment is automatic for a further five years.

2.33. As a number of safeguarders are also child welfare reporters the Scottish Government considers a three year appointment period to be appropriate to allow for consistency.

2.34. Practice also varies in relation to reappointment. Safeguarders on the Children's Hearings panel may only be reappointed if the Scottish Ministers are satisfied that the person is fit to be a member of the Panel. In Scottish tribunals an individual is automatically reappointed unless the member has declined to be reappointed, the member is ineligible for reappointment or the President of Tribunals has recommended to the Scottish Ministers that the member should not be reappointed. This process ensures judicial independence for tribunal members. This is not necessary for child welfare reporters.

2.35. The Scottish Government believes that it is important that child welfare reporters have to demonstrate that they continue to have the relevant skills and experience and therefore reappointment should not be automatic. We would expect that child welfare reporters would be subject to an annual appraisal. This would involve discussion about the performance of the individual.

2.36. In considering whether an individual should be reappointed to the register the outcome of the annual appraisals would be taken into account.

Question 2): Do you agree/disagree with the proposed process for including an individual on the register of child welfare reporters?

Agree

Disagree

Don't Know

Why did you select your answer?

Question 3): Do you agree/disagree that child welfare reporters should be included on the register for a three year period?

Agree

Disagree

Don't know

Why did you select your answer?

Question 4): Do you agree/disagree with the proposed reappointment process for child welfare reporters?

Agree

Disagree

Don't Know

Why did you select your answer?

Individuals who are not eligible to be included on the register of child welfare reporters

2.37. The Scottish Government believes that certain individuals should not be eligible to be included on the register of child welfare reporters. This will help to ensure the safety of the child concerned. It will also help to ensure that all child welfare reporters are impartial and do not have any conflict of interest.

2.38. We consider that to help ensure the safety of children an individual should be barred from being a child welfare reporter if they are barred from regulated work with children by virtue of the Protection of Vulnerable Groups (Scotland) Act 2007^[17]. An individual can be barred from working with children if they have:

• harmed a child
• placed a child at risk of harm
• engaged in inappropriate conduct involving pornography
• engaged in inappropriate conduct of a sexual nature involving a child or
• given inappropriate medical treatment to a child.

2.39. The Scottish Government believes that to avoid any conflict of interest the following individuals should be ineligible to be a child welfare reporter:

• an individual directly involved in the establishment, maintenance, operation or management of the register of child welfare reporters
• an individual employed by the SCTS
• a member of the judiciary
• a member of the Scottish Government or junior Scottish Minister.

2.40. In terms of any conflict of interest we would expect that an individual included on the register of child welfare reporters who subsequently accepts a post that would make them ineligible to be included on the register would need to resign as a child welfare reporter.

Question 5):

For each of the following categories of people, should they be ineligible for inclusion on the register of child welfare reporters? (Please select yes/no/don't know for each option)

an individual directly involved in the establishment, maintenance, operation or management of the register of child welfare reporters

an individual employed by the SCTS

a member of the judiciary

a member of the Scottish Government or junior Scottish Minister

an individual barred from regulated work with children by virtue of the Protection of Vulnerable Groups (Scotland) Act 2007

Why did you select your answers?

Question 6) Is there anyone else who should be ineligible for inclusion on the register of child welfare reporters?

Yes

No

Don't Know

If you answered yes please provide details.

Removal of individual from the register of child welfare reporters

2.41. Section 101A(3)(b) of the 1995 Act gives the Scottish Ministers the power to lay down in regulations the process for removing someone from the register of child welfare reporters. The Scottish Government believes that someone should be removed from the register if they do not meet the required standards. This could be done by removing them from the register before their period on the register has been completed. Alternatively, a decision could be made not to reappoint them when their period of appointment has come to an end.

2.42. The body appointed to operate and manage the register may receive complaints about the conduct of a child welfare reporter or the quality of the reports they have produced. This would be investigated. If the body considers that the conduct is serious enough or the quality is low enough to merit the individual's removal from the register then the person could be removed. In appropriate cases, such as where there is an urgent and serious concern, the person's inclusion on the register may be suspended whilst investigations are pending. Please refer to paragraphs 2.99 – 2.109 on the complaints procedure.

2.43. If the Scottish Ministers remove an individual from the register of child welfare reporters due to the quality of their report writing this would not affect their appointment to other registers, such as the register of curators ad litem or to the safeguarders panel. In appropriate cases, such as where there is an urgent and serious concern, the Scottish Ministers or the body appointed to operate and manage the register may suspend a person's inclusion on the register whilst investigations are pending.

2.44. However, if there are serious concerns about the conduct of a reporter, the Scottish Ministers may need to refer the matter to the reporter's professional regulatory body. This may result in an individual being barred from regulated work with a child under the Protection of Vulnerable Groups (Scotland) Act 2007. The Scottish Government will consider further with relevant bodies how such referrals could be made.

2.45. An individual may also be removed from the register if they indicate to the body appointed to operate and manage the register that they wish to be removed.

1.46. If an individual has been removed from the register they will cease with immediate effect to be a child welfare reporter. The Scottish Government considers that any reports that they are currently undertaking may need to be redone by another child welfare reporter. This may mean slight delay in the affected case as a new child welfare reporter would need to take over investigations. A new reporter to a case in these particular circumstances would need to be appointed. Once a person is no longer on the register of child welfare reporters, that person could no longer carry out child welfare reporter functions, including the functions of providing an explanation of a decision to a child (section 20 of the Act) or to investigate the reasons for non-compliance with a decision (section 22 of the Act).

Question 7) Do you agree/disagree with the approach proposed when an individual is removed from the register of child welfare reporters?

Agree

Disagree

Don't know

Why did you select your answer?

What requirements should an individual satisfy to be eligible to be included in the register

Background

2.47. One of the key aims in establishing a register of child welfare reporters is to ensure that individuals on the register meet minimum standards. The same standards would apply to child welfare reporters appointed across Scotland. Currently, appointment criteria can vary between Sheriffdoms. This section of the consultation focuses on what the requirements should be.

2.48. Currently over 90% of child welfare reporters are lawyers. Whilst recognising the valuable role played by lawyers who act as child welfare reporters, other professionals also have skills which mean they too could be good child welfare reporters. Indeed, in the past, it was common for child welfare reporters to be social workers^[18].

2.49. At stage 2 of the Bill an amendment was brought forward calling for all child welfare reporters to be social workers. The Scottish Government did not support this amendment for a number of reasons. Firstly, the most important factor for any child welfare reporter is that they meet the required standards, regardless of their professional background. The Scottish Government was not convinced that there is a justification for losing a pool of expertise by limiting the role to social workers only.

2.50. The Scottish Government was also concerned that there would be limited capacity within the social work sector to take this role on, and that further detailed consideration and consultation with the sector would be required. Capacity issues could lead to delays in producing child welfare reports which could in turn delay cases overall. This would not be in the best interests of the children concerned. In addition, limiting the role to social workers would mean that existing child welfare reporters who are lawyers would not be eligible to apply despite the significant experience and skills they bring to this role. It would also stop other professionals from acting as child welfare reporters.

2.51. During the passage of the Bill it was also argued that if a social worker wishes to be on the register of child welfare reporters they should be automatically eligible to be on the register as social workers already have to meet specific standards as set out in their Code of Practice^[19]. The Scottish Government has concerns about this. It is important to ensure that those working as child welfare reporters have the specific skills needed to carry out the child welfare role.

Eligibility Requirements

2.52. During the passage of the Bill suggestions for eligibility requirements were put forward, in terms of training, qualifications and experience, in the following areas:

• coercive control and alienating behaviour
• domestic abuse
• influence of a parent
• how to take the views of the child
• how to look after children's information
• child development
• learning disabilities

2.53. In addition the Scottish Government believes that a child welfare reporter should be able to produce a succinct report on what is in the best interests of the child or the views of the child.

2.54. It may also be beneficial for a child welfare reporter to have experience of the family court system. However, making this mandatory may exclude some individuals who would have the required skills to undertake this role despite not having family court experience. As noted above, a child welfare reporter could be a lawyer but could also be a child psychologist or social worker. In the Scottish Government's view it is less about an individual's profession and more about the skills they can bring to the role.

2.55. In considering the requirements that a person must satisfy in order to be included on the register it is also important to balance how to ensure that individuals have sufficient experience and also to ensure enough individuals would be able to apply.

2.56. The Scottish Government suggests that an individual would be eligible to be included on the register of child welfare reporters if they can demonstrate relevant skills and experience in:

• communicating with children including obtaining the views of children
• understanding domestic abuse, particularly the dynamic of coercive control
• report writing
• understanding the ways adults can influence a child
• understanding family conflict
• child development including learning disabilities
• understanding of child protection issues and the child protection system.

2.57. By not specifying that a child welfare reporter must come from a specific professional background this allows the role to be open to an individual who can demonstrate the requirements above but who may not be a member of one of these professions.

2.58. The Scottish Government would not propose to specify that the experience an individual has needs to be current as this would be difficult to define and could also exclude an individual who has relevant experience but not within the specified timeframe. However, in assessing whether the skills and experience are relevant we would expect the panel sifting the child welfare reporter applications to take into account when the experience was obtained.

Question 8): Do you agree/disagree with the proposed requirements that a person must satisfy in order to be included on the register of child welfare reporters?

Agree

Disagree

Don't know

Why did you select your answer?

Question 9): Are there any other requirements that a person must satisfy in order to be included on the register of child welfare reporters?

Yes

No

Don't know

Please give the additional requirements you feel are necessary and why you feel they are important.

Existing child welfare reporters

2.59. As mentioned above, existing child welfare reporters are on lists held by each Sheriff Principal and the Court of Session. Different criteria are applied for each Sheriffdom/Court of Session. The Scottish Government considers that existing child welfare reporters would have to apply to be on the new register. This would ensure that everyone meets the same minimum standards.

2.60. An existing child welfare reporter may not wish to transfer across to the new register. There would be no obligation on existing child welfare reporters to apply to be on the new register. If a local authority employee wishes to continue to produce child welfare reports then they would need to apply to be on the register.

Question 10): Do you agree/disagree that existing child welfare reporters having to apply to be on the new register?

Agree

Disagree

Don't know

Why did you select your answer?

Ongoing training requirements for child welfare reporters

2.61. The Scottish Government would expect anyone who is included on the register of child welfare reporter to undergo regular training to ensure they are aware of the latest understanding in key areas. Training would be commissioned by the body appointed to operate and manage the register. It would not necessarily be provided by the body. Training would cover the following areas:

• the role of the child welfare reporter
• communicating with children, including obtaining the views of the child and providing explanations of decisions to a child
• understanding domestic abuse, particularly the dynamic of coercive control
• report writing
• understanding the ways adults can influence a child
• child development including learning disabilities
• child protection issues

2.62. Attending a certain number of training days would be mandatory as part of a child welfare reporter's terms and conditions. In the Financial Memorandum which accompanied the Bill as it was introduced to the Scottish Parliament the Scottish Government estimated that a child welfare reporter should receive four days paid training a year.

2.63. Four days was considered appropriate as it would strike a balance between ensuring regular training is provided and recognising that a child welfare reporter may only produce a limited number of reports a year meaning training requirements cannot be overly burdensome. In addition, all child welfare reporters will be required to demonstrate experience in key areas when they apply to be on the register.

2.64. The recruitment process will ensure that all child welfare reporters have experience in a variety of areas. The Scottish Government would expect training to be provided by experts in the relevant areas. Training would be provided by the body appointed to operate and manage the register or by individuals and organisations the body asked to carry out the training.

2.65. A number of child welfare reporters are also curators ad litem and safeguarders in the Children's Hearings system. Any training requirements that overlap between these roles would be taken into account to avoid duplication. In addition, professionals undertake Continuing Professional Development (CPD).

2.66. If a child welfare reporter does not attend the required number of training days without a reasonable excuse they could be in breach of their terms and conditions and could be recommended for removal from the register.

Question 11): Do you agree/disagree with the proposed training requirements for child welfare reporters?

Agree

Disagree

Don't know

Why did you select your answer?

Question 12): Is four days of paid training per year for child welfare reporters appropriate?

Yes

No, I believe it should be fewer days

No, I believe it should be more days

Don't know

Why did you select your answer?

Fee rates for child welfare reporters

Existing situation

2.67. Currently child welfare reporter fees are paid by either the parties in a case themselves or by SLAB if the parties are eligible for legal aid. Once the register of child welfare reporters is operational this cost would no longer fall to SLAB or the parties. Instead this cost would be met through the body appointed to operate and manage the register of child welfare reporters. Table 6 of the Financial Memorandum which was published when the Children (Scotland) Bill was introduced into the Scottish Parliament provides the following estimated costs:

Year	Estimated number of individual payments made for child welfare reporter costs	Estimated average cost per report (£)	Estimated average cost per report x 1.6 to reflect the proportion of cases where SLAB fund both sides in a case and an estimate of percentage of cases in which the court splits the cost between parties (£)	Total cost (£m)
2016/17	1,711	2,800	4,500	3.0
2017/18	1,983	3,500	5,600	3.5
2018/19	2,263	2,700	4,300	3.7

2.68. The Scottish Government would expect to set fee rates to ensure consistency of remuneration. The Scottish Government expects fee rates to vary from case to case, as outlined in more detail below.

2.69. However, only in exceptional circumstances should fee rates exceed £3,000 in total for one report. Currently if a child welfare reporter is paid through legal aid and their costs exceed £3,000 then permission is required from SLAB^[20].

Options

2.70. It would not be appropriate to set a per report fee rate as the information requested by a court in a report can vary significantly. The court may order a child welfare reporter speak to a number of individuals and this could necessarily take time.

2.71. The Scottish Government's considers there are two options of how the fee rate could be established. These could be:

• an hourly rate; or
• a per page rate for the report to be published.

2.72. An hourly rate would ensure there is no incentive to write excessively long reports. An hourly rate would also reflect that a child welfare reporter may need to travel to speak to individuals whereas a per page rate may not reflect this. An hourly rate may also be more appropriate for the two new functions for child welfare reporters. In particular, the function of explaining court's decision does not require a report back to the court

2.73. A per page rate would need to reflect the time taken to speak to individuals and to travel to a meeting as opposed to simply writing the report itself.

2.74. The Scottish Government expects that the hourly fee rate for providing an explanation of a decision to a child and for investigating reasons of apparent non-compliance with an order could be the same as for producing a child welfare report. These function would also be skilled and would involve speaking to a child, and others.

Fee rates in other similar situations

2.75. Safeguarders in the Children's Hearings system have a per appointment fee of £260 which covers the investigation, written report including interim report, written communications, contribution at hearing considering report and administrative expenses. Safeguarders can then claim additional fees as appropriate: for example, for attending a Children's Hearing or for attending court ^[21]. They can also claim expenses.

2.76. Rates for members of the Scottish Tribunals vary depending on the tribunal. The Scottish Government considers the two tribunals which are most similar to the work undertaken by child welfare reporters are the Mental Health Tribunal for Scotland^[22] (MHTS) and the First Tier Tribunal for Scotland (Health & Education Chamber) Additional Support Needs jurisdiction^[23].

2.77. The MHTS' primary role is to consider and determine applications for compulsory treatment orders under the Mental Health (Care and Treatment) (Scotland) Act 2003. Considering restricting people's liberty could be seen as broadly equivalent to the role of a child welfare reporter as both areas involve exercising judgement in sensitive and personal areas.

2.78. The Additional Support Needs jurisdiction of the Health & Education Chamber of the First Tier Tribunal for Scotland^[24] hears references (appeals) from parents and young people against decisions of education authorities regarding the provision of educational support. This could be seen as a similar role to child welfare reporters as this tribunal engages with children and young people. A child welfare reporter would be similar to an ordinary member in that they have specific experience of working with children. An ordinary member is also required to weigh up potentially conflicting evidence and support the other members of the panel to reach an independent and reasoned decision. This could be seen as equivalent to a child welfare reporter weighing up potentially conflicting evidence and preparing a report for the court. A legal member of either tribunal is not considered a comparable role as a legal member of a tribunal is making a decision and chairing a panel whereas a child welfare reporter is seeking the views of various individuals and preparing a report.

2.79. The ordinary member daily rate for the First-tier Tribunal for Scotland Health & Education chamber is £239.86; the medical member for the MHTS receives £422.71 per day.

Question 13): How should fee rates for child welfare reporters be applied?

Hourly rate

Per page rate

Another way

Don't know

Why did you select your answer?

Expenses for child welfare reporters

2.80. The Scottish Government expects that child welfare reporters would only be able to claim actual expenses and allowances incurred whilst carrying out child welfare reporter work, including actual receipted costs and flat rate mileage payments. Where there are items of expenses where it is not possible to obtain receipts (such as paying for parking by phone) then this should be claimed for with an explanation of why the receipt isn't available.

2.81. The Scottish Government would expect that child welfare reporters seek value for money in terms of travel expenses. For example they would be expected to purchase standard class rail fares. The expenses a child welfare reporter can claim may be in line with civil service rates set by the Scottish Government for its staff. These are set out at Annex E to this consultation.

2.82. Any remuneration would be paid through the organisation that is appointed to operate and manage the register.

Question 14): Do you have any comments on the proposed policy in relation to expenses for child welfare reporters?

Yes

No

Please provide your comments

How a court would appoint a child welfare reporter to undertake a report

Background

2.83. Currently, under the court rules a court can decide to appoint a child welfare reporter to seek the views of the child or to undertake enquiries and to report to the court, where this would be in the best interests of the child and it will promote the effective and expeditious determination of an issue in relation to the child to undertake enquiries and to report to the court^[25]. The court issues an interlocutor which details who the child welfare reporter should speak to and what they should investigate. The court may complete a form (the form F44^[26]) to outline this. Ordinary Cause Rule 33.21(5)^[27] requires the report to be sent to the court no less than three clear days before the relevant hearing (excluding any day on which the sheriff clerk's office is not open for civil court business) unless cause exists for specifying a later date. There are identical provisions in relation to Civil Partnership actions (see Ordinary Cause Rule 33.21A(5) and also for cases in the Court of Sessions (see Court of Session Rule 49.22(5)^[28].

2.84. The child welfare reporter is required to send the report to the sheriff clerk by the date specified; and unless otherwise directed, send a copy of the report to each party to the proceedings by that date.

Proposed new procedure

2.85. The Scottish Government envisages that the court should continue to only appoint a child welfare reporter to produce a child welfare report if this would be in the best interests of the child and will ensure an effective and expeditious determination of an issue in relation to the child. The Scottish Government also considers that the court should continue to specify in the interlocutor who the child welfare reporter should speak to and what information they are to obtain.

2.86. Revised court rules are likely to be needed setting out how the court is to ask the body appointed to operate and manage the register to select a child welfare reporter to produce a child welfare report and for the functions of a child welfare reporter explaining decisions to a child and investigating the reasons for non-compliance with a court order. The Scottish Government will, in line with usual practice, prepare a policy paper for the Family Law Committee of the Scottish Civil Justice Council proposing new and revised court rules. This policy paper will reflect the regulations that will be made by the Scottish Ministers under section 101A of the 1995 Act (as inserted by section 9 of the 2020 Act).

2.87. The working group on child welfare reporters discussed how child welfare reporters should be appointed.^[29] The Scottish Government's preferred approach is that when a court orders a child welfare reporter be appointed the clerk of the court will contact the body appointed to operate and manage the register. The body would then select the next child welfare reporter from the register who is willing to work in the specific geographic location. The body would need to ensure that there was no conflict of interest for the child welfare reporter in that particular case. A child welfare reporter may also turn down the work due to other commitments. Child welfare reporters should have sufficient training in all relevant areas to not require a specialist in a particular area to be appointed.

2.88. There is an alternative approach. Under this system, when the court orders that a child welfare reporter be appointed, the court could also, if it wished, specify areas it would expect the child welfare reporter to have expertise in. These areas could, for example, relate to domestic abuse or to drug or alcohol addiction or to other areas of expertise which child welfare reporters could be asked to identify when applying to be included on the register.

2.89. As indicated above, the Scottish Government's initial view is that it is preferable for the next available reporter on the register to be selected as:

2.90. If a child welfare reporter is appointed early in a case, it may not be evident then what particular areas will feature strongly in the case. Therefore, a reporter appointed because they have a specific area of expertise might find other areas are more relevant. Appointing the next available reporter may be more transparent. Many of the skills needed for child welfare reporters (eg listening to children; a full understanding of domestic abuse; report writing) will be required generally and all child welfare reporters will need these skills. In future, child welfare reporters will not just be writing reports. They will also be explaining decisions and investigating reasons for non-compliance with a court order. Unless a child welfare reporter who has already been involved in a specific case is selected for these tasks (see below), it seems appropriate that the next reporter on the register is selected as all reporters should have the skills required for these roles.

Question 15): When a child welfare reporter is selected should this be:

The next person on the register

A person with specific areas of expertise requested by the court

Through another system

Why did you select your answer?

2.91. Where a child welfare reporter has already provided a report, the court would be able to request that the same child welfare reporter is selected to provide an explanation of a decision to the child or investigate the reason for non-compliance with the order, if this is considered in the best interests of the child.

2.92. If a child welfare reporter has a query about, for example, expenses or payment for the report, this would be dealt with by the body appointed to operate and manage the register. Queries about, for example, who they are supposed to speak to would be addressed to the court itself, as now

Child welfare reporter being asked to provide a recommendation in reports on what is in the best interests of the child

Background

2.93. This section of the consultation specifically relates to the existing roles of a child welfare reporter and also the new function of investigating the reasons for non-compliance with a court order. A recommendation would clearly not be required where a child welfare reporter is appointed to provide an explanation of a decision to a child.

2.94. The instructions to child welfare reporters which were published as a result of the working group on child welfare reporters suggests that the report should include recommendations^[30]. These instructions, which are non-statutory, could be amended without the need for legislation.

2.95. It would also be open to the Scottish Government to prepare a policy paper for the Family Law Committee of the Scottish Civil Justice Council to propose court rules on whether or not a child welfare reporter should make recommendations.

Options

2.96. One option is for the court to be able to ask the child welfare reporter to provide recommendations on what is in the best interests of the child. This reflects that in some cases the child welfare reporter after having spoken to a range of individuals may be well placed to provide views on what is in the child's best interests. The child welfare reporter may consider it in the child's best interests to express these views to the court.

2.97. However, this could be seen as undertaking the role of the court which is to, after considering all the evidence, decide what is in the best interests of the child. Making a recommendation could also be seen as influencing the court when the child welfare reporter may not have access to all the evidence held by the court.

2.98. If the child welfare reporter has concerns about the safety of the child that they should raise this in the report or raise it immediately with either the court or the relevant authorities (police or social work services) if the situation warranted.

Question 16) Should a child welfare reporter provide recommendations on what is in the best interests of the child in their report?

Yes

No

Don't Know

Why did you select your answer?

Complaints procedure

Complaints by a person about not being included on the register of child welfare reporters and about being removed from the register.

2.99. An individual may wish to complain about being unsuccessful in their application to be on the register of child welfare reporters or about being removed from the register. The Scottish Government envisages that any such complaint would initially be handled by the team which led on the appointments If the individual remains dissatisfied then the complaint would be dealt with by another team who had no role in the original decision-making process.

Question 17):

Do you have any comments on the proposed procedure for complaints from individuals who are unsuccessful when applying to be on the register of child welfare reporters or are removed from the register?

Yes

No

Please provide your comments.

Grievance procedure

2.100. A person on the child welfare reporter register may have a grievance about fees or expenses; or comments on their appraisal; or on the quality of the training provided and the subjects covered; or on other points about the way in which the register is run. Any such grievances would be handed by the body appointed to operate and manage the register.

Question 18):

Where a child welfare reporter has a grievance about fees or expenses or comments on their appraisal should this be dealt with by the body appointed to operate and manage the register?

Yes

No

Don't Know

Why did you select your answer?

Complaints about a child welfare reporter

2.101. Currently an individual can complain about the conduct of a child welfare reporter to the relevant Sheriff Principal. If the child welfare reporter is a lawyer holding a practising certificate with the Law Society of Scotland or a member of the Faculty of Advocates an individual could make a conduct complaint to the Scottish Legal Complaints Commission^[31]. If a child welfare reporter is a social worker an individual could make a complaint to the Scottish Social Services Council.^[32]

2.102. One of the key aims of establishing the register of child welfare reporters is to ensure that there is a child friendly complaints process available. If a child or adult wishes to complain about the conduct of a child welfare reporter they should contact the body appointed to operate and manage the register.

2.103. Complaints would be limited to the conduct of the child welfare reporter or the standard of the report. The body would not handle complaints about the outcome arising from the report as the mechanism for any person aggrieved by a decision of the court is to appeal that decision.

2.104. A complaint could be raised by the child, a party to a case or by one of the individuals that the child welfare reporter has spoken to. Any complaint by the party to a case could cover both the standard of the report itself and also the conduct of the child welfare reporter.

2.105. Individuals who are not parties to the case, including the child at the centre of the case, do not automatically receive a copy of the report. Therefore, it might be harder for them to complain about the standard of the report. An individual who has given their views to a child welfare reporter may ask for the child welfare reporter to share that section of the report with them, and they could complain that their views have been misrepresented. It would not be appropriate to share the full content of the report with an individual who is not a party to the case as it may contain personal information.

2.106. On receiving a complaint the body appointed to operate and manage the register would decide whether it has any merit. If there is evidence of failings a decision would be taken on the outcome which could be – more training, a verbal or written warning or being suspended from or removed from the register. The body may approach the relevant sheriff who requested the child welfare report to seek their views.

2.107. Any decisions to remove an individual from the register would be made by the Scottish Ministers based on evidence provided to them.

2.108. The Scottish Government would ensure that children and parties are aware of the complaints process by including information in the guide for children on child welfare reporters and in the guidance for parties on attending court. When parties receive a copy of the child welfare report this would also include information about how to raise a complaint about the conduct of a child welfare reporter or the quality of the report itself.

2.109. The Scottish Government would expect that parties and any other person could raise a complaint about the conduct of the lawyer to the Scottish Legal Complaints Commissioner in the usual manner^[33]. Similarly, complaints against other professionals could be raised with the relevant professional bodies.

Question 19): Do you have any comments on the proposed procedure for complaints about child welfare reporters?

Yes

No

Please provide your comments.