- Social workers are fully trained and specialised over many years and have far more appropriate and independent skills to provide these reports to Family Courts. Children’s social workers’ whole ethos is the welfare of children and they do not have any other aim of their professional role. Lawyers will have a few days training only.
- Social workers are independent of the legal system while lawyers are part of it.
- Lawyers who act for the parties in Court and Court officers have another professional relationship with the lawyer who presents the report and are less inclined to question or challenge their colleagues’ conclusions. That is not promoting an independent ethos in these cases.
- The current system of lawyers presenting reports to Family Courts in Scotland denies children independence in recommendations for their future.
- Scotland is the only country of the UK where this system occurs.
There is a need for provision of proper social work reports/assessments in Scottish Family Law cases. It is unsuitable to appoint members of the Scottish legal profession to provide such reports. That is not meant as any negative reflection on them as individuals, but rather on what I have seen to be an unsuitable system. Our legislators should not just accept the status quo, because it is there. It should be questioned and better approaches taken. That is how our representatives bring about progress on our behalf. This really matters to children’s whole lives.
As a social worker and social work manager of more than 40 years, I have written and presented in my own right before a variety of Family Courts, including the High Court in Southern England in a wide variety of cases. I have supervised and managed many social workers in obtaining relevant information from all parties and in analysing and presenting their reports to the court. Potential for one-sided views before the court was further mitigated by having a Guardian ad Litem ( GAL) also appointed in cases, who was also a trained, experienced social worker. Experienced and competent professional Social Workers have the levels of education and skill in the field of children and families’ work in which they specialise. It is more thorough in that specialism than a lawyer would have.
I live in Scotland now and have observed the system in Private Family Law cases and seen reports written by lawyers to present to courts. So, I speak both as an observer with experience of a different system and from an observer’s perspective in relation to the Scottish Family Law system. I have noted how very long it takes to get the reports done and before the courts, which can leave children stranded in bad circumstances pending decisions in some very contentious cases. It can take several reports to be presented to the court in Scotland. This means extra expense to the parties in the case, who pay the lawyer either themselves or via Legal Aid funding.
In Private Law cases in Scotland, the ability to pay for Legal support is a big issue. Even if people do qualify for Legal Aid, it only lasts so long. In Scottish Family Law cases someone may be able to pay for expensive legal services for these lawyer-written reports and can be advantaged by that, but could also be bankrupted in lengthy and combative cases. Some cases go on for years. Someone falling between these financial poles can be particularly disadvantaged. The GAL service and LA social workers do not charge for reports in England. There is no vested interest in English cases and lawyers for the parties are not in the same professional body with another lawyer colleague who writes the report. There is much more stress on the independence of the parties.
In my experience in English cases a Judge presiding in a case of Private law might decide that it fell into the Child Protection arena and require that the Local Authority be joined to the case and provide reports.
The Judge In English cases would push very hard for all parties to get a move on and provide reports asap for the sake of the children. A sense of urgency was built into the process that does not seem to be present in Scotland. The emphasis from the Judge was on moving along at a reasonable pace for the welfare of the children. The very length of these cases is not in the children’s interests in my view. Statistics show the large difference of average time taken for cases in the two jurisdictions of England and Scotland.
It is remarkable to me that so little research is done by the Curator or Child Welfare Reporter in Scottish cases on the children’s wider social circle to gain context. It can be a very light touch in general. I have seen that those reports in Scottish cases are less well-researched and contextualised. People who are integral to the child’s life can be omitted from the process.
To be brutally honest, as a supervisor, I would not have allowed social workers to present some of what I have seen in reports as a basis for decision making about children’s whole lives. I would have required them to obtain fuller information and get a more rounded picture to base their analyses on, before finding it acceptable to put before a court. The light touch of court reports in Scotland is not good for children and families and assumptions are always easy to make when you do not have a fully trained and informed background. In what I have seen in Scottish Courts the report is questioned only marginally by lawyers for all parties. They do not want to upset colleagues. There is a real danger in this sort of insider dealing in courts. Children can be left in dangerous situations with no further support or information offered. In Private Law cases that dilatory action can leave children at risk of harm. The fact that a lawyer Curator may see to the heart of what is going on sometimes is lucky and a testament to rare skill. That comes despite the flawed system, not because the system is set up in such a way as to have the highest likelihood of upholding the welfare of the child. That good outcome can only happen when social workers who have the training, skills and expertise in the area of child welfare are presenting the report. A few days or even weeks of training for lawyers cannot make up for the difference from the years of training and field experience of professional social workers.
I am not sure why Scotland has such a remarkably different system of lawyers doing family court report writing amidst their other work and their specialisms, which can be very different and not child-focused at all. Why is it just Scotland that does this? I would suggest that the practise has become entrenched as a pathway and income for legal careers now; that everyone in authority including the current Scottish Government and many MSPs are afraid to rock the boat and question the wisdom of reports being undertaken by solicitors who are trained in one field and get minimal training in the psycho-social fields compared to several years of training and total specialism of social workers.
The Scottish Government and MSPs have some lawyers as a strong interest group in their midst. Lawyers who present the reports and lawyers who act for the parties in the same case are all part of the same profession that is benefitting from the current system. That could make them less likely to see that this system does not serve the interests of children. I hope that lawyers in the Scottish Parliament can be bigger than that and put the essential welfare and rights of children before their self-interest. Social workers’ profession is about the welfare of children alone and about putting the welfare of the child as paramount. Social Workers are specialist professionals. I am not suggesting that solicitors do not care and in some fortunate cases do take on the role adequately. But I believe it is by good fortune rather than built into the system and focused on the needs of children, as it should be.
A proper involvement from a social work perspective in reports going before the Scottish Courts in Family Law cases should be put in place while the Bill is before the Scottish Parliament. Negotiation should take place with social work bodies to get the system for this in place in Scotland, as it is elsewhere. It can be done easily enough and should be done if the focus is on the child. It is just an extension of childcare social work. The Curator system could be changed to a Guardian system, as happens elsewhere and Scotland could be fair at last to the children impacted by this retrograde system. That will depend on whether the Government is truly interested in the welfare of children.
Decisions taken following from these reports to family court have a life-long impact on the children involved. If they are done in a peremptory and cursory fashion, they are not truly focusing on the welfare of the child and can have a permanent and damaging impact on children. Most of the families going before the courts do not have the financial wherewithal to combat this in any meaningful way and may not qualify for Legal Aid in these matters, so do not have much of a voice in the proceedings. It should be changed for the sake of the children.
A Retired Social Worker & Social Work Manager