Dr Nick Child on a culture of silence

“If this silencing of professional colleagues is – as appears may be the case – a dominant part of culture in family law in Scotland, it is the very antithesis of how the social work and other ‘helping’ professions operate. It cannot possibly work in the best interests of children.”

For years family lawyers haven’t answered my questions. A blank look. A child-like silence. Only now I realise: They’ve been silenced. At one event, so was I.

I’m a retired child psychiatrist and family therapist. I didn’t work with family law cases until ten years ago. I started looking to family lawyers to explain things to me. In relation to cases. In relation to general enquiries.

For ten years, I drew that blank. I went to events. I asked questions. I still got a blank.

I went public with my questions and concerns. In April 2018 Scottish Review published them in: “The shame of Scotland’s family courts”. You’d think someone would say something after that? Not a peep. I heard many pins as they hit the floor.

Even more extraordinary was the silence I got when I talked at a family law event in November 2018. Sixty family lawyers with Sheriff Wendy Sheehan in the chair. I put my questions respectfully. I asked about fact-finding, form F9 (for children to set out their views), competence, training, qualifications and the Law Society of Scotland’s rule B1.10. I said:

“And if I get some of this wrong today – which I’m likely to do – then please tell me; if not this afternoon, then by e-mail (provided to all). Be as blunt as you like. But if I hear nothing from the 60 or so family lawyers in this room, I will be shocked.”

I got no emails. No one in the audience said a single thing that day once Sheriff Sheehan had tried to put me in my place:

I do feel at this stage as a sheriff in the family court and a former Bar Reporter and as a judicial representative of the Bar Reporters Working Group, I have to say something a bit more about some points in relation to Bar Reporters: I think there’s a fundamental misunderstanding about what a Bar Reporter does. Bar Reporters are not child psychologists. Courts, day in day out, instruct child psychologists. In your presentation you pointed out that sheriffs have to ascertain the underlying facts, establish the facts, before making a decision about welfare. That’s what a Bar Reporter does. In a case where one parent says black and the other says white, a Bar Reporter is appointed to make investigation. It would be impossible for all cases to go to proof on an urgent time scale. The court system would collapse, and what the Bar Reporters do is be the ears and eyes of the court.

The reason that the guidance notes (which I wrote) require Bar Reporters to come to a conclusion is that, yes, in any profession there are good and bad examples of practice. But a Bar Reporter should make conclusions and recommendations to the court, they shouldn’t just simply precognosce the witnesses and provide that information. They are there to assess the reliability and credibility of that evidence in the same way a sheriff would come to make conclusions.”

Sheriff Sheehan failed to address the principal issue I had raised in my talk: that solicitors are not qualified to make assessments of welfare. As chair she moved us all on to other topics. She gave me no chance to reply to her. And neither did she contact me after the event.

Anonymous event feedback showed attendees gave my talk very high ratings. On reflection, and especially after reading the account on this site from A Senior Family Lawyer, I now realise we were all silenced. If this silencing of professional colleagues is – as appears may be the case – a dominant part of culture in family law in Scotland, it is the very antithesis of how the social work and other ‘helping’ professions operate. It cannot possibly work in the best interests of children.

The legal profession and others – maybe uniquely to Scotland – seem to be so used to this established custom and practice – of solicitors acting as Child Welfare Reporters – of over 30 years, that they simply don’t see the concerns. They don’t see how this could possibly be someone else’s job, like a social worker’s. They’ve assumed that the status quo is and will be fine. Why? What is their reasoning? As is evidenced in other posts on this site, it’s basically because: ‘we’ve always done it this way’.

Nor can the legal profession let go of the notion that what’s required of a Child Welfare Reporter can’t be a terribly difficult thing to do. What could be easier than chatting with a child? It’s just collecting information for the court. We aren’t making recommendations … even though Sheriff Sheehan publicly admitted her Instructions to Child Welfare Reporters make clear they must do exactly that.

For my work in CAMHS, I spent a decade of full-time training – and further education after it – to do my job. The legal learned opinion seems to be that I was wasting my time. That I needn’t have bothered.

Sheriff Sheehan has been at the very heart of discussions about the need for Child Welfare Reporters to be trained and qualified and regulated. Yet in recent weeks I understand she herself shouted down a solicitor who dared to ask about the training and qualifications of the Child Welfare Reporter she was about to appoint to a case that day. I’m told the reason she gave for not even permitting the line of questioning, was that the Child Welfare Reporter had served as a valued and trusted officer of the court for 30 years. I would note here that social workers along with all other helping professionals have to show far more than long service before they’re allowed to do their job.

Where’s the transparency, the reason, the child focus in all this? Does this apparently extraordinary conduct of proceedings not go some way to explain why over 88% of Child Welfare Reporter recommendations are followed by sheriffs? These are recommendations by Reporters, 90% of whom are solicitors, who likely have no training or qualifications whatsoever in the field of child welfare.

Just to remind ourselves, we’re talking about children, about children’s safety and welfare. Everyone’s mantra is of children’s paramountcy. And that’s what it says on this tin: Child Welfare Reporter.

It’s not at all easy to do that job. So many of the helping professionals I know say that family court-related work is the most difficult and complex work they’ve ever done.

Many years ago when Sheriff Tom Welsh was in charge of CPD for sheriffs he half-joked with me. I was waxing lyrical about the paramountcy of children and their welfare, about how family courts could better help them. “Help?!” he said. “Help, Dr Child?! … The courts are not there to help. Their role is to apply the law justly.”

Now I think he was seriously right. The legal establishment – and its younger branch of family law – is indeed and rightly not primarily there to help anyone.

Through centuries of the uniting and devolving of kingdoms, the Scottish legal establishment has held its own independent power and its influence on the state. It has rarely had to think or question its own authority. Its loud lip-service to the paramountcy of children is an easy cover up for the ‘paramountcy’ of family lawyers. Most sincerely well intended, their custom and practice in family law is set to carry on for decades given the present Children (Scotland) Bill.

Yet much of this can be turned around shortly. MSPs in the Scottish Parliament can vote for Liam McArthur’s Amendment 40 to Section 8.

Dr Nick Child is a retired child psychiatrist & family therapist who lives in Edinburgh.

#section8

One thought on “Dr Nick Child on a culture of silence

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  1. The evidence the legal profession gave to the Scottish Parliament Justice Committee seems to be seriously at odds with the views Sheriff Sheehan expressed to Dr Child and are set out in the “Instructions to Child Welfare Reporters” document she authored. Here are just two examples from the Official Reports:

    Ruth Innes QC (Faculty of Advocates)

    The child welfare report is not the court. It is for the court to make findings in fact. The child welfare reporter simply has to narrate what the various people have said; the reporter does not, and should not, make a decision about what is true or false—that decision is for the court.

    Official Report, Justice Committee 28/01/2020 (Col 19)

    Lady Wise

    It is not the role of the child welfare reporter to make recommendations about what should happen in the case overall. It is very much for the court to decide, through applying the legal test, what is in the best interests of the child.

    Official Report, Justice Committee 20/02/2020 (Col 12)

    My question then is this: How can MSPs have faith in #section8 of a Bill that the Minister based on engagement with the legal profession, to the exclusion of all other professional views, when a senior lawyer and two members of the judiciary seem so confused & conflicted about what the role of Child Welfare Reporter entails?

    Liked by 1 person

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