“If we allow our MSPs to be duped into creating this absurd legislation, it will be like giving licence for boy scouts to do open-heart surgery.”
That quote, from the article below was originally published in April 2018 in Scottish Review. In it, Dr Child talks about what was then “a forthcoming review” by Scottish Government of the Children (Scotland) Act 1995. That review led directly to the Children (Scotland) Bill, section 8 of which is under scrutiny on this blog, section8.scot. It’s quite astonishing to go back and read it today.
Dr Nick Child, April 2018:
Reviewing Scotland often shows her standing proud. The Scottish Government is shortly to review the Children (Scotland) Act 1995. One concern will be improving how the children of separated families in serious disputes are served by the family law system. Elsewhere, jaws drop in disbelief at how Scotland currently does this. In Scotland no one bats an eyelid. Here our pride must fall. With an injection of some good Scots’ sense before MSPs come to vote on it, that pride can rise again.
The most complex and difficult cases of separated families head for family court. When parents cannot otherwise talk or agree, the courts are where decisions are made. These are cases where disputes over contact or residence are often transformed – at a series of informal hearings – into concerns of harm, of disturbance, of poor care, of risk, of physical or emotional abuse, of coercive control or undue influence relating to children.
Over several decades in Scotland, this system has come to be dominated by lawyers. Not one of the legal professionals in their various roles in family law – not one – is required to have any qualification or training in assessing or working with children and families.
Family lawyers and courts need to be part of the system. The lawyers involved may be sensible, experienced and well-intentioned. People’s successful work is never noticed as much as failure is. But as soon as we look at the role of child welfare (formerly bar) reporter, their lack of skill jumps right off the page. And when we look at the whole system more closely and compare it with international best practice in family law and
standard practice in other regulated professions, we come off very poorly indeed.
Several gaps can be remedied by bringing skilled professionals back into family law. Over decades, they have drifted or been discouraged from bringing the skill in their profession to bear on cases where the lack of such skill should be seen as a fault. To Scotland’s greater shame, the forthcoming review could seek to legitimise incompetent professional practice that has somehow been tolerated within our current system for years.
Lawyers are, of course, qualified in law. They need little more than an interest to start family law work. Few, if any, family lawyers are qualified at all in children’s normal and disordered development, maturation, psychology, their attachment, family and other relationships, parenting, and education; in child and adult mental health and its disorders, addictions and personality disorder; in risk assessment and management within multiagency systems.
Caring professionals spend many years in training before professional bodies register them as competent to practice, and they continue to be governed via registration through standards of ethical practice, supervision, complaints procedures, and continuing general and specialist professional development.
In contrast with Scotland, other countries have professional systems in place for the family courts. England and Wales have Cafcass (child and family court advisory and support service) where the equivalent practitioners are fully qualified social workers.
I’m a retired child psychiatrist and family therapist. I trained and worked in Scotland, and have developed the widest concern for cases going through Scottish family courts. Over the past eight years, intensive study and networking has given me a comprehensive understanding of the current field. At relevant Scottish events I’ve attended, there’s hardly a member present from – nor mention of – the qualified professions that share the stage elsewhere in the world. In Scotland, it’s all lawyers and worried voluntary groups lobbying hard mostly on behalf of parent groups. Most voluntary organisations don’t have qualified professionals or professional standards of research, of skilled assessment, or experience of working with whole family and child situations.
At an event last November, no one denied this description. No one else took note of an authoritative view that an expert assessment is needed in complex cases. Astonishingly, the audience stayed silent when leading presenters said, with no shame at all, that no one wanted qualified people involved. If the Scottish public got wind of this comprehensive de-professionalisation of the assessment of our children and families, there would be far more than the noise of eyelids batting.
One of many things the forthcoming review will consider is a recommendation that the private practice solicitors who act as child welfare reporters should now receive two days training. That’s just two days to cover everything. So, what takes qualified professionals many years is supposed to be learned, for this even more complex kind of work, in just two days.
The two-day training proposal came from the bar reporters working group, set up in 2013 to focus specifically on these concerns. Given their undue monopoly in Scottish family law, it is no surprise that the working group was composed almost entirely of lawyers. Given their natural and financial self-interests it’s perhaps not so strange that they didn’t want to think too deeply. They made no objective study of past bar reports as outsiders had
done in earlier studies. And why decide on two days training? Was one day just too obviously tokenistic?
We know well how lack of diversity in a group can lead to deeply flawed group-think that fails to spot and solve serious problems. When the Lord President was asked to formally sanction these tokenistic qualification and training requirements, he found himself unable to do so, stating that only primary legislation could bring this about. He could not legitimise this dubious and most concerning practice, and simultaneously wipe away the sins of decades of shocking legal practice in Scotland.
It is quite unthinkable for the Lord President to sanction private practice solicitors making any welfare assessment of children and families, when elsewhere we demand that those assessments remain the exclusive domain of professionals with appropriate skill. Yet that’s precisely the situation the work of the bar reporters working group has led to. It’s equally unthinkable for MSPs to sanction that very same thing. One can only imagine the hope of the legal profession is that busy MSPs just might be duped into doing so – in the absence of any warning of the fundamental problems.
Years of wilful blindness on the part of the Scottish legal profession over this major issue have now resulted in an awkward silence. It’s the sort of silence that occurs when the privileged few, who understand the problem, hope that a most unlikely solution might just make it all go away before it blows up in their face.
As the Lord President passes this embarrassment on to a long agenda for the Scottish government to review, who will point out why these proposals are so wrong? Will anyone have the flair and wit to demand a new deal? Will the review and the MSPs who will vote any recommendation into legislation realise just what kind of cover up and ignorance they will be perpetuating?
Few would deny the range of other improvements required in the family law system. This is certainly not the only one that’s needed. It’s now acknowledged that child welfare reporters do not possess the skill necessary for the job. We most certainly are not getting that right for every child. Yet leading authorities assert publicly that the answer is definitely not to get skilled, qualified people involved; that instead a monopoly of private practice lawyers – without the necessary skill – will do just fine for another generation.
The quickest, most effective and only ethical answer to several key gaps lies in getting qualified child and family professionals back up to speed and back into harness. In fact – if they are nurtured, not trampled, into the mud by the final boots of ignorance – a few green shoots are already appearing in the shadow of Scotland’s family courts.
If we allow our MSPs to be duped into creating this absurd legislation, it will be like giving licence for boy scouts to do open-heart surgery.
Dr Nick Child is a retired child psychiatrist & family therapist who lives in Edinburgh.