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

Introduction

Background

1. The Children (Scotland) Act 2020 (the 2020 Act) received Royal Assent on 1 October 2020 and this 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. Additionally, this 2020 Act aims to provide more protection to victims of domestic abuse and their children.

2. Under the 1995 Act there is a presumption that children aged 12 or older are of sufficient age and maturity to give a view about court proceedings which relate to them. The 2020 Act removes any age presumption in relation to a child’s ability to give a view. The 2020 Act also requires the court to give the child an opportunity to express a view in a manner which that child prefers. This could be through drawings, videos, letters, play therapy, or speaking directly to the decision maker, ensuring children’s views are considered on an impartial basis and in a way that is best for the child.

3. One approach is through child welfare reporters who can be appointed by the court in cases under section 11 of the 1995 Act 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.

4. Curators ad litem may also be appointed by the court in cases under section 11 of the 1995 Act to represent and protect the interests of an individual lacking full capacity, including a child. Their role is separate and distinct from the role of a child welfare reporter.

5. Sections 11A, 11B and 22B of the Vulnerable Witnesses (Scotland) Act 2004 as inserted in the 2020 Act introduce a new special measure prohibiting a party from personally conducting the remainder of their case in certain circumstances. This 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. In these instances, and to ensure the right to a fair trial, legal representation must be available for an individual who has been prohibited from personally conducting the remainder of their case.

6. 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.

7. Once the 2020 Act is fully in force, the Scottish Government intends that the fees, outlays and expenses of child welfare reporters, curators ad litem appointed in section 11 cases and of solicitors appointed when an individual has been prohibited from personally conducting a case themselves will be met by the Scottish Government, either through an in-house unit or through any external contractor appointed by the Scottish Government.

Background to the consultation

8. During the passage of the 2020 Act through the Scottish Parliament, the Scottish Government committed to a full and public consultation on the establishment of the registers of child welfare reporters, curators ad litem appointed in cases under section 11 of the 1995 Act and solicitors who can be appointed when an individual has been prohibited from personally conducting a case themselves.

9. The Scottish Government launched a consultation which closed on 12 July 2021, seeking the views from a range of stakeholders including children and young people and people who have had direct experience of family court proceedings. Findings from this consultation will be used to inform the next steps in implementing the register of child welfare reporters, register of curators ad litem appointed in cases under section 11 of the 1995 Act and register of solicitors who can be appointed when an individual has been prohibited from personally conducting a case themselves.

10. The 2020 Act also requires the Scottish Ministers before making, revising or revoking regulations in relation to the register of child welfare reporters to consult people with lived experience of domestic abuse and court ordered contact.

Consultation responses

11. In total, there were 84 responses to the consultation, of which 40 were from organisations and 44 from individuals.

12. Respondents were assigned to respondent groupings in order to enable analysis of any differences or commonalities across or within the various different types of organisations and individuals that responded. Table 2 shows the number of respondents in each organisational category.

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

13. A list of all those organisations that submitted a response to the consultation is included in Appendix 1.

Methodology

14. Responses to the consultation were submitted using the Scottish Government consultation platform Citizen Space or by post, although most respondents submitted their views via Citizen Space. Where responses were submitted in hard copy, these were entered manually onto the Citizen Space system to create a complete database of responses.

15. It should be borne in mind that the number responding at each question is not always the same as the number presented in the respondent group table. This is because not all respondents addressed all questions. This report indicates the number of respondents who commented at each question.

16. Some of the consultation questions were closed with specific options to choose from. Where respondents did not follow the questions but mentioned clearly within their text that they supported one of the options, these have been included in the relevant counts.

17. The researchers examined all comments made by respondents and noted the range of issues mentioned in responses, including reasons for opinions, specific examples or explanations, alternative suggestions or other comments. Grouping these issues together into similar themes allowed the researchers to identify whether any particular theme was specific to any particular respondent group or groups.

18. When considering group differences however, it must also be recognised that where a specific opinion has been identified in relation to a particular group or groups, this does not indicate that other groups did not share this opinion, but rather that they simply did not comment on that particular point.

Analysis of responses

19. The analysis of responses is presented in the following chapters which follow the order of the questions raised in the consultation paper. While the consultation gave all who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, any figures quoted here cannot be extrapolated to a wider population outwith the respondent sample.

20. The Citizen Space database was exported to an Excel working database for detailed analysis. Where respondents requested anonymity and / or confidentiality, their views have been taken into account in the analysis but quotations have not been taken from their responses. Quotations have been included where they illustrate a point of view clearly and have been selected across the range of respondent sub-groups.