The Minister’s plans …

The qualifications and experience required to be a Child Welfare Reporter will be set by secondary legislation. … We would expect that these criteria would not exclude lawyers …

Government Response to Stage 1 Report para 105

Ash Denham is Minister for Community Safety. This article examines the development of section 8 of the Children (Scotland) Bill, including what training and qualifications she envisages will be required to become a Child Welfare Reporter. Objections to Liam McArthur’s amendment raised at stage 2 are also examined in light of information now available.

The Minister’s starting point is that: “We would expect that these criteria would not exclude lawyers …”. This seems curious given that she intends the qualifications and experience required to become a Child Welfare Reporter to be set by secondary legislation. Despite most of them starting off with little or no qualifications or training in the central matter of welfare, it seems lawyers are already assured of a future as Child Welfare Reporters. That appears to be incompatible with the Minister’s repeated assertions that the best interests of children are paramount.

At times, the Minister appears to be heavily reliant on lawyers to fill this role, almost as if she is unable to see a viable alternative. Yet there is an obvious and rather overdue solution: to utilise the existing skill & experience of social workers. For years, that has been a requirement for child welfare reports of this kind in courts in all the other home nations. The assessment of welfare is, after all, unquestionably the domain of the social worker. Anyone in doubt need only look to the Scottish Government’s own framework for training and regulating social workers.

It turns out that there are two fundamental problems with the Minister’s plans: Firstly, Freedom of Information disclosures now reveal she did not consult the Scottish Government’s own Chief Social Work Adviser or the wider social work profession on the matter of Child Welfare Reporters. Secondly, she has continued to portray lawyers as the profession with the requisite expertise. Why then is there a need for section 8 of the Bill to address their lack of qualification & training and the absence of any regulation of their work?

Scottish Government and the legal profession have been considering Child Welfare Reporters since the formation of a working group in 2013. Despite this, it appears not to have occurred to them to be prudent, to subject Child Welfare Reporters and their reports to expert and independent objective scrutiny. Although lawyers have been doing this work in Scotland for 30 years, it does not necessarily follow that they have been serving children well.

Now some interesting things emerge from beneath all this. One is that when the Minister and lawyers inform MSPs about the ‘expertise’ legal colleagues bring to this role it is clear there is no objective or expert evidence to support this assertion. Another is that no useful comparisons have been drawn between the proposed arrangements in Scotland and equivalent arrangements throughout the rest of the UK. The Minister is not able, therefore, to offer any justification for MSPs agreeing to her plan to take Scotland down a familiar outdated path, over the alternative. That alternative is to implement recognised standards of welfare assessment and protection for children. Those standards have been available to children throughout the rest of the UK for some time.

This option, to bring standards of child welfare reporting into line with the rest of the UK, is available by supporting Liam McArthur’s amendment 40 to section 8 of the Children (Scotland) Bill.

At the time of the Stage 2 debate, MSPs had little or no information about social work practice in this area. This had not been sought by the Minister. The debate and objections around Mr McArthur’s amendment also evidence potential misunderstandings that have not yet been addressed.

Leading professional bodies in this field – Nagalro, BASW Cymru and SASW – have all come forward with expertise, information and experience in relation to the social worker model applied elsewhere in the UK. Their informed views concerning the relative merits of social workers and lawyers being permitted to do this work are invaluable.

The Minister raised these objections to Mr McArthur’s amendment:

“… I am not convinced that there is a justification for losing that pool of expertise by limiting the role to only social workers.”

Liam McArthur attempted to address the point about capacity, but I am not clear whether there is sufficient capacity in the social work sector to take on the role of child welfare reporter.

I am keen to encourage non-lawyers to become child welfare reporters because I believe that diverse experience in the role of child welfare reporter would be beneficial for the process. Rona Mackay, John Finnie and Fulton McGregor made good points about that. What we are looking for, which I think sums up what those members said, is not necessarily a job title but people who have the right skills, experience and expertise. Such people might be social workers, but they could equally be child psychologists or lawyers.”

Minister for Community Safety, Stage 2 debate

The Minister’s failure to engage with the Chief Social Work Adviser and the wider social work profession puts her in no position to judge the relative merits of her own proposal against the amendment. Nor does the Minister provide any objective evidence of lawyers having expertise in relation to matters of welfare.

The Minister made a vague suggestion there may be insufficient capacity in the social work sector. The Minister’s plans are based on an average number of reports (1,241) per annum being carried out by the (421) Child Welfare Reporters on existing court lists. On that basis, each Child Welfare Reporter would average only (3) reports each year. This likely represents a substantial overcapacity of Child Welfare Reporters. There is no evidence available to indicate that the Minister had established how many Child Welfare Reporters are actually required.

Freedom of Information results also now demonstrate the Minster had failed to contact the regulator for social work in Scotland. Data they hold identifies a total of 10,913 social workers registered in Scotland as of 29 June 2020. Of them, the latest available data (2018) suggest only 55% (circa 6,000) will be employed by Local Authorities and that 44% of all Local Authority social workers will be children & family specialists. Whilst there may well be some problems attracting and retaining social workers to work in Local Authorities, there is no evidence to support the Minister’s suggestion of lack of available capacity in the pool of registered social workers in Scotland. Indeed the recent call to action due to Covid 19 appears to have brought an additional 300 previously registered social workers back into the workforce. By way of comparison, the latest data from The Law Society of Scotland indicates there are over 12,000 solicitors in Scotland.

It’s also worth refuting the misconception that Liam McArthur’s amendment places any additional burden on Local Authority social work departments. Nor is that the case in England and Wales.

A further misunderstanding seems to be that an amendment allowing only social workers to become Child Welfare Reporters excludes expert input from other professionals. Currently, the courts in Scotland order specific reports from psychologists or psychiatrists in some cases. Those professionals are not routinely appointed as Child Welfare Reporters but are appointed, as experts, alongside or instead of a Child Welfare Reporter. That will not change as a result of Liam McArthur’s amendment which places no restrictions on other professionals being appointed in that capacity.

While the Minister has suggested her intention to attract psychologists and other professionals to become Child Welfare Reporters, Freedom of Information disclosures confirm that she has not consulted with any regulated profession other than lawyers over the matter of Child Welfare Reporters. Dr Whitcombe, who has written here and was invited to give evidence to the Scottish Parliament Justice Committee, advocates powerfully for only social workers to be able to become Child Welfare Reporters.

The Minister’s failure to consult with the relevant professions has created a vacuum in respect of consultation and scrutiny of Section 8. Dr Child, a retired psychiatrist holds similarly strong views to Dr Whitcombe concerning his own profession.

Rather than amendment 40 limiting professional diversity, the opposite is more likely to be true. Typically, only one Child Welfare Reporter is appointed to a case at a given time. The appointment of a social worker as a Child Welfare Reporter increases the professional diversity in each case where otherwise only lawyers fill the family law space. One of the issues that tend to plague cases is the group-think that occurs when everyone, including the Child Welfare Reporter, is a lawyer.

Perhaps it will strike you as odd that the other home nations do this so differently. That this has never been properly examined by the Scottish Government. That no justification has been offered for why we should in large part continue to do things “the way we’ve always done them”. And all in the face of such a vast gulf in professional skill and experience in relation to welfare.

The safe way to proceed now with this matter is to support Liam McArthur’s amendment 40 to Section 8 of the Bill.


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