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

Conclusion

315. The Scottish Government has prepared a number of draft impact assessments in relation to the development of policy in this area. Question 35 asked:

Q35: ‘Do you have any comments about, or evidence related to:

a) The draft Business and Regulatory Impact Assessment

b) The draft Child Rights and Wellbeing Impact Assessment

c) The draft Data Protection Impact Assessment

d) The draft Equality Impact Assessment

e) The draft Fairer Scotland Impact Assessment

f) The draft Islands Communities Impact Assessment

316. 18 respondents responded to this question. Several of the comments were favourable about the draft impact assessments as a whole, saying they were generally well considered and to be welcomed. However, two individuals considered them meaningless and did not reflect their experience of the court process.

317. Only one comment referred to the draft Business and Regulatory Impact Assessment: a public body requested that the recruitment processes for all the roles under discussion maximise retention from those currently employed in the role or similar roles.

318. The draft Child Rights and Wellbeing Impact Assessment attracted the most discussion, albeit from only six respondents. A majority reinforced the importance of children having a voice and being listened to, with recommendations for child welfare reporters and curators ad litem to engage with them to a greater degree. There were also requests to specify ways in which this could occur.

319. Similarly, there were demands for children’s rights to be the priority, rather than parents. One suggestion cited that parental alienation allegations can serve to silence young children and therefore impact on their rights. Following on from this, respondents requested more consideration of the role of the courts and judiciary in helping to uphold children’s rights and ensure their voices are properly heard. Other comments from single respondents were as follows:

• The CRWIA should document tactics used by perpetrators of abuse.
• A doubt that the statistics on children’s hearings are the most accurate statistics to illustrate this CRWIA, with a suggestion that “…it might be pertinent to include figures on the number of proof applications held and the numbers of section 67 grounds for referral established” (Public Body).
• A lack of acknowledgement of the gendered nature of domestic abuse (mostly female victims / male perpetrators).

320. Remarks on the draft Data Protection Impact Assessment cited concerns about unlawful data sharing and the importance of information governance to the success of the regulatory body. A public body wished for clarity in cases where the complaints process might potentially involve information sharing between the register and the Scottish Legal Complaints Commission’s complaints handling process.

321. On the draft Equality Impact Assessment, there was a concern about equality within the family law legal system (within which it is assumed the victim is a woman), and a comment that the proposals will impact disproportionately on females because most family lawyers are female. It was also noted that victims may wish child welfare reporters to be a different gender to the abuser. Other remarks surmised positive impacts if equality and diversity was incorporated into the full span of the registration process.

322. Comments on the draft Fairer Scotland Impact Assessment focused on hopes that the registers will reduce local variations in service provision and costs. It was noted that getting the right people can help steer cases in the right direction and in so doing can make cost savings from unnecessary court processes.

323. With respect to the draft Island Communities Impact Assessment, a small number of respondents agreed that it was important to ensure national coverage in rural and island communities to obtain effective access to justice and reduce costs of travel from other parts of Scotland. The continued use of ‘remote or virtual courts’ and training by video conferencing for those in remote areas (subsequent to the Covid pandemic) was predicted to be helpful in increasing individuals’ availability for work on the islands. However, a lack of data about child welfare reporters and curators ad litem working in the islands was highlighted within the draft ICIA. It was also recommended that individuals on the register be briefed on some elements of domestic abuse that tend to be specific to island communities.

324. At the end of the consultation, respondents were given an opportunity to provide any further comments in relation to any element of this consultation.

325. 31 respondents provided further comments. A significant minority were generally welcoming to the registration system for child welfare reporters, curators ad litem and solicitors, commenting that it was more efficient, fair and safe. Many responses reiterated themes already mentioned during the consultation.

326. The most discussed theme, by a large minority of respondents, alluded to the success of the proposed system depending to a large degree on the skills, abilities and experience of the individuals appointed to the registers; sufficient training was urged and a qualification in family law desired. Smaller numbers of respondents highlighted the importance of sufficient regulation, oversight, appraisal, disciplinary and independent appeals processes in making the system work.

327. A number of individual respondents cited adverse court or child welfare reporting experiences, implying the system needs overhauled. Accusations were made that it was a blunt instrument for dealing with traumatic issues and caused harm to children and families. Further mentions were made of the system being unsafe, inefficient, complex, lacking cohesion and failing to give a voice to the child. A concern was raised that parents had not been involved when considering the Children (Scotland) Bill. A few respondents raised an issue of perceived family court bias against fathers and a bias in reports towards mothers. A couple of respondents thought more assessment would be needed about the impact on children of forced separation from a parent or parents. A third sector / advocacy respondent wished to promote the ‘Safe and Together Model’, which aims to keep children together with a non-offending parent.

328. Several respondents reinforced the goal that children and young people’s rights must be respected, protected and fulfilled, and that they must be able to contribute to proceedings in a meaningful way.

329. The other key theme discussed was decision-making in cases within the system. Several respondents were in favour of judicial discretion and decision-making by the courts rather than by the body in charge of the register, in regards to case appointments. The main advantage was cited to be local knowledge as sheriffs would be familiar with local candidates and could therefore pick the one best suited to the case. Local knowledge generally was thought to be undervalued by a few respondents, as knowing the local schools environment and local social work department philosophy helps the chosen individual from the register know how to proceed. There were also several mentions of open, unbiased and readily available information being vital to decision-making in court processes, with a couple of provisos that this could be anonymised if necessary to comply with data protection standards.

330. A few respondents raised concerns about fees and costs and queried funding availability; for instance, it was perceived that fees were unrealistically low for child welfare reporters with the result that there may be difficulties retaining people on the register.

331. A very small number of suggestions were made about registration as follows:

• One body should oversee all the registers to help facilitate consistency and standardise procedures.
• There should be automatic registration for existing child welfare reporters, curators and solicitors.
• Equalities assessment should take place regarding the gender balance of the people appointed as child welfare reporters or curators.

332. Finally, there was a point raised by a public body about how it would be helpful to address whether a curator ad litem might be entitled to appoint their own solicitor and how that might operate with civil legal aid. There was also a concern from a legal respondent about possible vexatious complaints or litigation arising through a defendant not being required to meet legal costs if they have a register-appointed solicitor.