Registers of child welfare reporters, curators ad litem and solicitors appointed when an individual is prohibited from conducting their own case: consultation analysis

Executive Summary

Background

The Children (Scotland) Act 2020 (the 2020 Act) gained Royal Assent on 1 October 2020 and builds upon the Children (Scotland) Act 1995 (the 1995 Act). A key aim of the 2020 Act is to place children at the heart of proceedings that relate to them. This includes more closely aligning Scots law with the UNCRC, ensuring children’s views are heard in family court cases and children’s hearings, and ensuring the best interests of the child is at the centre of each case.

There are a number of different ways in which children’s views can be considered, including through child welfare reporters who can be appointed by the court in cases under section 11 of the 1995 Act. Curators ad litem may be appointed to represent and protect the interests of an individual lacking full capacity, including a child, in cases under section 11 of the 1995 Act.

The 2020 Act also aims to ensure that victims of domestic abuse and their children are further protected in family cases. The 2020 Act provides for solicitors to be appointed when a person is prohibited from conducting their own case in certain circumstances.

The 2020 Act provides for the creation of new registers for child welfare reporters, curators ad litem and solicitors appointed where a person is prohibited from conducting their own case, which will ensure eligibility criteria and training standards are met.

Respondent profile

The consultation closed on 12 July 2021 and received a total of 84 responses.

Table 1: Respondent profile

	Number	%
Legal	11	13
Local Authorities	3	4
NHS	2	2
Public body	4	5
Representative body	5	6
Third sector / advocacy	14	17
Other	1	1
Total organisations	40	48
Individuals	44	52
Total respondents	84	100

(Percentages might not add to 100% due to rounding)

Key Themes

A number of key themes were evident across questions as well as across respondent groups. These are summarised below.

• Of key importance across all registers, there is a need to ensure there are no conflicts of interest and that the best interests of the child are considered at all times.
• Also of importance across all registers are the processes for appointment, reappointment, fees and expenses paid and the complaints procedure; with respondents identifying a need to ensure an approach that offers accountability, scrutiny and transparency; with an independent review and appeals process and procedural safeguards.
• While opinions were mixed over the amount of days of training that would be required for child welfare reporters, curators ad litem or solicitors, importance was placed on the experience, skills and expertise of these individuals and the need for all to have training to ensure they have the required skills and expertise. As such, there may need to be flexibility in the training offered to complement the skills and experience already held by child welfare reporters, curators ad litem or solicitors.
• While it is important for child welfare reporters, curators ad litem and solicitors to have a consistent baseline of skills and expertise, it is acknowledged that some individuals will have more experience in certain types of cases. As such, choice of an individual needs to be matched to knowledge and experience on a case by case basis, so as to ensure the most suitable individual is appointed.
• Respondents also identify a need for ongoing appraisal and training, to ensure skills are kept up-to-date and relevant. As such, some respondents feel there should be no automatic reappointment to the registers and that there is a need to demonstrate eligibility for inclusion.
• While there is a need to demonstrate a wide range of skills, key ones appear to be an ability to engage with children, have an understanding of family dynamics, have an understanding of domestic abuse, and a basic understanding of court procedures.
• In regard to the payment of fees, there is a perception that the payment method needs to reflect the amount of work undertaken, given the varying complexity across different cases.
• There were some requests for further detail and clarity, for example, in relation to the complaints procedure, the reappointment process or the content and format of training.
• Whichever body is appointed to manage the registers, this will need to be independent, impartial, consistent, accountable and objective.

Summary findings: Register of Child Welfare Reporters

Operating and managing the register of child welfare reporters

• There was no consensus as to which approach to adopt in terms of the operation and management of the register of child welfare reporters. The option with the highest level of support was to contract out, with some respondents noting this approach has worked well with safeguarders and would offer consistency in standards, access to training and help keep the costs of administration and management of the register at a reduced level (Q1).

The process for including an individual on the register of child welfare reporters

• A majority of respondents agreed with the proposed process for including an individual on the register of child welfare reporters. Key reasons were that there is a need for annual performance appraisal and that ongoing training is imperative (Q2).
• A majority of respondents also agreed that child welfare reporters should be included on the register for a three year period (Q3).
• A majority of respondents were supportive of the proposed reappointment process (Q4).

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

• Across the types of people who it was suggested should be ineligible for inclusion on the register, a large number of respondents agreed rather than disagreed (Q5).
• A wide range of suggestions emerged for additional types of individual who should be ineligible for inclusion on the register (Q6).

Removal of individuals from the register of child welfare reporters

• A majority of respondents agreed with the proposed approach for removing an individual from the register (Q7).

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

• A large majority of respondents agreed with the proposed requirements (Q8).
• A range of additional requirements that a person must satisfy in order to be included on the register were suggested (Q9).

Existing child welfare reporters

• A large majority of respondents agreed that existing child welfare reporters have to apply to be on the new register (Q10).

Ongoing training requirements for child welfare reporters

• A large number of respondents agreed with the proposed training requirements for child welfare reporters (Q11).
• A significant minority of respondents felt that four days of paid training per year is appropriate, although slightly more wanted to see more days of training per year (Q12).

Fee rates and expenses for child welfare reporters

• A majority of respondents supported an hourly rate, although a significant minority felt that another option would be preferable (Q13).
• There was general agreement with the proposed policy for the payment of expenses (Q14).

Appointing a child welfare reporter to undertake a report

• More respondents supported the appointment of a child welfare reporter based on specific expertise, than supported appointment being based on the next child welfare reporter on the register (Q15).

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

• A majority of respondents felt that a child welfare reporter should provide recommendations on what is in the best interests of the child, in their report (Q16).

The proposed procedure for complaints

• There was general support for 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 (Q17).

Grievance procedure

• A majority of respondents agreed that a grievance about fees or expenses or comments on a child welfare reporter’s appraisal should be dealt with by the body appointed to operate and manage the register (Q18).

Complaints about a child welfare reporter

• Respondents felt that any complaints procedure needs to be straightforward, simple, accessible, clear, transparent and accountable, with short and speedy timescales. There were also references to the need for the procedure to be child-friendly and comply with UNCRC (Q19).

Summary findings: Register of Curators ad litem

Requirements for curators ad litem to be on the register

• A large majority of respondents agreed with the proposed requirements that a person must satisfy to be included on the register of curators ad litem (Q20).
• A significant number felt there should also be other requirements a person must satisfy in order to be included on the register (Q21).

Ongoing training requirements for curators ad litem

• Respondents were generally positive about the training requirements (Q22).
• Opinions were mixed as to whether four days of paid training per year for curators ad litem is appropriate (Q23).

How a court would appoint a curator ad litem

• A majority of those who commented were in favour of basing curator appointments on a case by case basis rather than by calling up the next person on the register (Q24).

Fee rates and expenses for curators ad litem

• A large majority of respondents supported an hourly rate (Q25).
• Most respondents who commented were favourable to the proposed approach (Q26).

Complaints procedures

• Respondents noted a complaints system should be clear, transparent, accessible and open to scrutiny, with clear reasons given for decisions and without conflicts of interest (Q27).

Summary Findings: Register of Solicitors

Requirements for solicitors to be included on the register

• A large majority agreed with the proposed requirements that a person must satisfy in order to be included on the register of solicitors (Q28).
• Some additional requirements were outlined that should be satisfied in order to be included on the register of solicitors (Q29).

Ongoing training requirements for solicitors on the register

• Fewer respondents supported the proposal that solicitors on this register require less days training each year than child welfare officers or curators ad litem, on the basis that they are likely to receive less appointments (Q30).
• Some additional training requirements were outlined for inclusion (Q31).

How a court would appoint a solicitor from the register

• There was general agreement with the appointment process for solicitors, although there were some suggestions that appointment should be based on expertise and experience rather than by calling up the next person on the register (Q32).

Expenses for solicitors

• A large majority agreed with the proposed procedure for expenses (Q33).

Complaints procedures

• Respondents commented that the complaints system should be clear, transparent, accessible, accountable and easy to understand (Q34).

Summary Findings: Draft Impact assessments

• A small number of respondents commented on the draft impact assessments, with general comments that these were generally well considered and welcomed (Q35).