4 ACADEMIC AND PROFESSIONAL ACCOUNTS - AN OVERVIEW
4.1 The previous chapter set out the legal framework for the administration of Child Welfare Hearing Reports (i.e. their commissioning, preparation and use). In this chapter, a short review of academic and professional accounts of Child Welfare Hearing Reports is set out. The purpose of this review is to highlight the limited research on Child Welfare Hearing reports and the key issues surrounding the administration of Child Welfare Hearing reports discussed in the previous chapter.
4.2 The review of academic and professional literature is divided into two parts. The first section examines the professional and academic literature on the legal context within which the regulatory framework of Child Welfare hearing reports operates. It specifically, if only briefly, considers the "welfare principle" and the 'voice of the child' in legal proceedings outlined in chapter one. The second section considers the administration of bar reports. It seeks to draw out from the literature comments on the commissioning, preparation and use of the bar reports.
The Views of Children and their Participation in (Private) Legal Proceedings
4.3 Research during the 1980s ' highlighted how much the lack of information and input was increasing the distress of young people affected by parental separation.' 44 The participation of children in legal proceedings is recognised as an important aspect of their welfare, something appreciated fully by the drafters of the UN Convention on the Rights of the Child. The introduction of Child Welfare Hearings in 1996 has been described by a practising family solicitor as "a positive step". 45 Consequently there is a presumption that the child's views ought to be 'heard' or given sufficient attention.
4.4 In Scotland, this is set out in s.11 (7) (b) of the 1995 Act, where 'the court':
(b) taking account of the child's age and maturity, shall so far as practicable-
(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express.
Researchers have proceeded to examine the processes involved in Child Welfare Hearings, in light of these legislative developments, considering the extent to which the prevailing commitment to children's welfare is being observed. There have been mixed views on certain aspects of the processes, which invariably relate to one or more of the underlying tensions discussed in chapter three. The 'limitations', as it were, of the right to be heard in legal proceedings, appear therefore to be entangled in the same complexity that surrounds the application of welfare standards generally: competing legal provisions, for example, respect for a child's views to be confidential versus the right of parents to fair and due process; conceptual problems of definition; and related methodological problems.
4.5 Bearing in mind that the child's participation in a Child Welfare Hearing might simply involve attendance, there are a number of specific methods that are employed by the courts to elicit the views of the child. Cleland outlines these in an excellent overview on "children's voices" in legal proceedings in Scotland. 46 Indirect methods include the completion of the F9 form; legal representation; other forms of representation, such as a curator ad litem, who must represent the child's best interests when there is an identifiable conflict of interest between parent(s) and child; and the commissioning of background reports - the latter of which is, of course, where the present study fits in (although there are other types of reports that may be commissioned). The most relevant form of direct participation, other than attending in the Child Welfare Hearing, is the judicial interview - where the judge meets and speaks directly to the child in question to ascertain their views. 47
4.6 Fiona Raitt has written on her research of the judicial interview, from Scottish and comparative perspectives. 48 She observes that the Scottish Judiciary have exercised a greater flexibility with regard to interviewing children. This stands in contrast to the position in England (addressed in the next section), where judges seem to defer to the 'experts', as it were, not entirely confident in their ability to fulfil this role. Yet in both systems there is a 'central role' reserved for the preparation of reports - of whatever type - by 'child welfare professionals' (social workers, child psychologists rather than solicitors): 'the findings of this study indicate that Scottish judges are willing to complement those reports by hearing directly from children in chambers.' 49
4.7 The reluctance of judges to engage with this form of participation is for reasons which accord with the limitations and problems associated with the administration of welfare standards, which we can say are, in the main, limitations and problems for indirect methods of ascertaining the child's view. In this context the problem re-emerges as a question of children's agency, and the extent to which certain weight can be attributed to their views:
While numerous professions may have important contributions to make, including psychologists, health visitors, social workers or teachers, none are inevitably the single source … [w]here do the child's felt or expressed needs fit into the determination of the child's best interests?50
There are those who argue, according to Raitt, that the voice of the child is marginalised by appointing agents on their behalf and through 'the discourses of chronological age and welfare'. 51 This relates to the points from above on 'who decides' and the subjective/objective test dilemma. In Fowler v Fowler Lord Stott, for example, opined: 'it cannot by any means be assumed that a child's interests necessarily coincide with her wishes.' 52 Raitt suggests, however, that the judge may be in a better position, as decision-maker, to exercise discretion on the appropriate weight to give a child's view, inasmuch as they may be less dogmatic and can take a more 'context-dependant' approach. 53 This same flexible context-dependant discretion is an argument, presented by Raitt, in favour of judges involvement in the decision-making in matters of 'best interests' and child welfare generally.
4.8 This is interlinked with questions of expertise in dealing with children. Another inhibition of judges, according to Raitt, arises from their perceived lack of training to deal effectively with children. Whilst some sheriffs expressed being comfortable with children, others, like the English judiciary, prefer to deal with other agents, such as curators ad litem thereby leaving it to them to elicit the child's views. However, it is perhaps worth asking whether or not judges are competent to make this assessment in the first place. Raitt observes that simply 'liking children' 54and being more comfortable with children does not equate to being qualified in the sense of having the necessary skills (although no specific skill set is required for their appointment). The expertise that is called for in dealing with children may be outwith the purview of the judicial role, given the sensitivity involved with such a delicate task.
4.9 This may, indeed, be good cause for appointing agents who may be more qualified to address these nuances. A further difficulty which, it has been argued, requires such expertise, is the ability to understand the reasons for and judge the tyveracity of the views expressed by children. Concerns have been expressed about parental 'coaching', parental pressure, and lies from the child. It might thus be difficult to determine 'genuine' expressions from the child in that a child might, for example, be inclined to copy the attitudes of the hitherto resident parent. Anne Dick , a respected family law practitioner, also observes that the 'lateness' of the child's ability to rationally 'weigh future consequences' may also be a latent problem in interpreting their views (although she observes that this is true of adults also). 55
4.10 Finally, there are socio-psychological factors that present difficulties. Again, this touches on one of the recurrent 'limitations' and themes of children's welfare, in that the intervention of the state - whether it be by a judge or a judicially appointed agent - to determine the child's views may have severe consequences on the child's psychological state and social environment. It is very possible that this will damage the parent/child relationship - breaching trust in some circumstances. Undue pressure on the child can be distressful, especially if the child sees that their views will have significant implications.
4.11 This has serious implications for another area of concern - protecting confidentiality, and especially in the context of judicial participation. Because of the fact that any decisive information or evidence used by the judge is usually made available to the disputing parties - and indeed this is important for due process 56 -places the judge in a difficult situation when faced with a child who does not want his views to be conveyed to one or either of his parents. This problem was observed in Dosoo v Dosoo57 discussed in chapter three, para 3.14. As Sutherland notes, "generally, children do not want to hurt their parents. In addition, some children may feel very real anxiety or fear over the possible consequences of a parent knowing that the child was less than enthusiastic about, for example, contact." 58 However, Article 6 of the European Convention on Human Rights guarantees each parent a fair hearing. This right to a fair hearing is based on each party being aware of the evidence that will be taken into account by the court when making its decision. In contrast to Dosoo v Dosoo, but not resolving the problem facing the court, it was acknowledged in Oyenyin v Oyenyin it was "counselled that children should be warned that there could be no guarantee of confidentiality." 59 Raitt observed from her research that many members of the judiciary in Scotland favoured a balance in favour of protecting the child's confidentiality. She also highlighted that the House of Lords had promoted the duty of disclosure, clearly swaying towards concerns of due process, in the English case of Re D (Minors) (Adoption Reports: Confidentiality). 60 This is another example of a conflict between the welfare principle and other broadly articulated normative expressions.
On the Commissioning, Preparation and Use of Child Welfare Hearing Reports
4.12 There is little academic literature that specifically focuses on Child Welfare Hearing reports. A study in 1987 provides interesting insights into reports on children in divorce cases shortly after the creation of concurrent jurisdiction for divorce between the court of session and the sheriff courts in 1984. The study was a follow-on study to an earlier one conducted in the court of session. Guidelines on the structure and content of the reports were set out in the 1984 report. These guidelines, which predate the introduction of Child Welfare Hearings, were viewed by sheriffs as "very comprehensive" and of "practical benefit". 61 The suggested format and contents of reports "on children involved in divorce" are set out in Annex 1 of this report. The 1987 study however noted that the majority of bar reports in its sample taken during the mid-1980s were prepared by social workers. This has significantly changed in the intervening twenty years with the majority of bar reports being prepared by solicitors.
4.13 Cleland and Dick do provide a very interesting chapter about the role of curator ad litems and reports in a joint work focused on child centred family law. 62 Cleland's overview outlines the main features set out in chapter one without providing more than a passing reference to the bar reporter and their work within this context.' 63 Dick notes that:
Probably the most common way in which children's views are made known in the civil process is where an independent solicitor or advocate is appointed to prepare a report. A report can be obtained from someone other than a solicitor, such as a social worker or psychologist, but the majority of reports are prepared by solicitors. These reports are very often the basis for decisions which are made at in interim stage and, of course, almost inevitably become the foundation for the longer-term plans. The bar reporter becomes the 'eyes and ears' of the court. The bar reporter has an enormously influential role as it is rare for a decision to be made against the recommendation of such a report. 64
Dick, later in the same article, makes an important comment:
There are no special qualifications required for solicitors who carry out these reports … Many are exemplary in their impartial and helpful focus and in making sensible and practical suggestions which form the basis for workable plans. However, the lack of understanding of child development and family dynamics can result in an adult view rather than a child-centred one.65
The issue of qualifications and, in particular, the importance of an understanding of child development and concerns over interviewing children reflect a range of comments and concerns expressed by a range of people (sheriffs, solicitors, family therapists, social workers, mediators, as well as grandparents and parents) interviewed during 2008 - 2009.
4.14 In Elaine Sutherland's authoritative work on Child and Family Law contains a broad and useful discussion on the formulation of policy around children's rights and the place of children in the Scottish legal system. 66 She notes in the context of Child Welfare Hearings that:
The sheriff may order such steps to be taken, make such an order or order such further procedure, as he or she thinks fit. So, for example, he or she may: appoint a curator ad litem for the child; order a report from a suitable person on the child's background, with a request that the bar reporter make recommendations on the matters in dispute; or fix a preliminary hearing or proof in relation to the issues affecting the child.67
Other recent works on family law in Scotland, notably Thomson (2006) and Wilkinson and Norrie (1999) both of which contain references to the relevant legal provisions but without any detailed consideration of the aspects being considered in this study: namely the commissioning, preparation and use of the reports.
4.15 One aspect of the current process has not been examined by this research - the use of F9 forms. 68 These, in theory, provide a means for a child to express their views in writing and to return the F9 to the sheriff court. However, from discussions with professionals and court staff the F9 does not appear to be widely used and it was only found in 5% of the cases reviewed. In a significant number of cases intimation to the child was requested to be dispensed with - normally in cases where the child was very young. Therefore, the Child Welfare Hearing report represents one of the main mechanisms, with the exception of judicial interviews and the appointment of curator ad litems, to enable the views of the child at the centre of the Child Welfare Hearing be made available to the sheriff before interim orders of contact or residence are made. 69
4.16 Finally, in the review of the Scottish civil court system, Lord Gill discusses court reporters, together with curators, reporting officers and safeguarders. This report is solely focussed on court reporters. In the recommendations, two (74 and 75) are made addressing curators, reporting officers, safeguarders and court reports. The recommendations state:
74. For children, the following are required:
- An open, fair and transparent system of recruiting panels of people from whom curators, reporting officers, safeguarders and reporters can be appointed by the court.
- Clarity and consistency as to the qualifications and experience required for each type of appointment.
- Rates of remuneration which reflect the actual work required to fulfil the remit of the particular appointment.
- Access to appropriate induction and training for people appointed to panels, as well as opportunities for continuing professional development and the sharing of good practice.
- Clarity for appointees as to what is expected of them. For some appointments this may be laid down in rules of court, for others it may be appropriate to have non-statutory guidance. In any event, the sheriff or children's hearing making the appointment should always ensure that the person appointed is clear as to what is required of them, if necessary by specifying this in detail in the order.
- A system for monitoring the quality of the work done and reports provided by appointees and for dealing with situations where they fall below the standard expected. (Paragraph 111)
75. The courts, the Scottish Government, local authorities, SCRA, SLAB and the legal profession should collaborate to develop systems which will meet these objectives. (Paragraph 112)