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Registers of child welfare reporters, curators ad litem and solicitors appointed when an individual is prohibited from conducting their own case: consultation analysis

This report provides an analysis of the consultation responses to the consultation on the registers of child welfare reporters, curators ad litem and solicitors appointed when an individual is prohibited from conducting their own case. This relates to the Children (Scotland) Act 2020.


Register of solicitors

252. This section of the consultation focused on the register of solicitors who can be appointed where an individual is prohibited from personally conducting the remainder of their case themselves under sections 4-5 of the 2020 Act. It sought views on:

  • The fee rates and expenses to be paid.
  • The requirements that an individual must satisfy in order to be included on the register.
  • What ongoing training requirements there should be for the individuals.
  • How the court would appoint a solicitor from the register.
  • The complaints process about individuals included on the register.

253. This register will be separate to the registers for child welfare reporters and curators ad litem.

254. The 2020 Act places a duty on the Scottish Ministers to establish a register of solicitors from whom a lawyer is to be appointed if a party fails to appoint one themselves, where the prohibition applies either in a case under section 11 of the 1995 Act or a Children’s Hearing court proceeding. The Scottish Government expects the register will be managed and operated in the same way as the registers for child welfare reporters and for curators ad litem. Therefore the duty to maintain the register would remain with the Scottish Ministers, but the day to day management and operation would be contracted out. Fees and expenses to these solicitors would be paid by the Scottish Ministers.

Requirements for solicitors to be included on the register

255. It was proposed that an individual would need to hold a practising certificate from the Law Society of Scotland. As with child welfare reporters and curators ad litem, certain categories of people would not be eligible to be on this register. These would be:

  • An individual directly involved in the establishment, maintenance, operation or management of the register of curators ad litem.
  • An individual employed by the SCTS.
  • A member of the judiciary.
  • A member of the Scottish Government or a junior Scottish Minister.

256. It was also suggested that there are certain skills an individual on the register would need to demonstrate. These skills are:

  • Family law.
  • Domestic abuse, particularly the dynamic of coercive control.
  • Family conflict.
  • Proofs.

257. Question 28 asked:

Q28: ‘Do you agree / disagree with the proposed requirements that a person must satisfy in order to be included on the register of solicitors?

258. As shown in table 21, an overwhelming majority of those who gave an opinion agreed with the proposed requirements.

Table 21: Q28: Do you agree / disagree with the proposed requirements that a person must satisfy in order to be included on the register of solicitors?
Number
Agree Disagree Don’t know
Legal (11) 7 2 2
Local authority (3) 2 1 -
NHS (2) 2 - -
Public body (4) 1 - 3
Representative body (5) - - 5
Third sector / advocacy (14) 8 1 5
Other (1) 1 - -
Total organisations (40) 21 (53%) 4 (10%) 15 (38%)
Individuals (44) 24 (55%) 4 (9%) 16 (36%)
Total respondents (84) 45 (54%) 8 (10%) 31 (37%)

(Percentages might not add to 100% due to rounding)

259. 25 respondents chose to give reasons for their answer at Q28a. Many of those who agreed with the proposed requirements mentioned caveats in common with those who disagreed or didn’t know and these are therefore all analysed together.

260. A large minority noted that the proposed requirements seem sensible, agreeing that the areas mentioned are the essential ones for any solicitor or court reporter to fulfil.

261. Similar numbers agreed that individuals on the register need to have the appropriate skills, experience and knowledge for the areas mentioned, with several respondents citing a need for experience to be demonstrated by relevant evidence (e.g. paperwork). Two respondents specified that significant experience should be required of conducting proofs, with one individual highlighting a concern that many reporters are retired from private practice and hence would not be conducting proofs. A third sector / advocacy respondent urged:

“…careful distinction of ‘family conflict’ from domestic abuse in areas that skills and expertise are required in, in order to keep survivors of domestic abuse safe… Domestic abuse is often wrongly identified and described as ‘family conflict’. This description and understanding does not reflect the power imbalance, the elements of fear and control, and the direct and indirect impacts on survivors that characterise domestic abuse, and could thus create an unsafe situation and response to many women, children and young people.”

262. A few respondents agreed that solicitors with conflicts of interests should be excluded from the register. However, a local authority thought that registered individuals in this position should only have to decline from nomination to a particular case rather than from the register entirely, stating that legal professionals were best placed to decide on whether or not they have a conflict.

263. A few legal respondents wished to take a slightly less prescriptive approach to inclusion on the register, citing the small number of cases involved and the need to ensure solicitors participate. Specifically, there were calls not to exclude part-time judicial office holders (e.g. part-time sheriffs or tribunal chairs) as measures are already in place to prevent conflicts of interest in these situations, and one request was not to exclude newly qualified solicitors in the requirement for experience. A third sector / advocacy respondent thought there was a need to include advocates on the list, for cases where the other party in the case is represented by an advocate.

264. A few respondents argued for other areas of specialist knowledge and insight to be considered, which they regarded as necessary for people to have to be included on the register. These are as follows:

  • The dynamics and trauma of family separation.
  • Undue influence of the child by either parent.
  • Prevalence of false allegations.
  • Awareness that domestic abuse can be committed by either men or women.
  • The attachment processes of children.

265. Finally, two legal respondents who both disagreed with the proposed requirements detailed a variety of opinions as follows:

  • The register needs to be subdivided as family law is not homogenous. This legal organisation went on to say: “Persons who regularly practise in child law with reference to children’s hearings may not have skills to equip them to appear in a divorce action where issues arising under section 11 of the Children (Scotland) Act 1995 may be litigated in a proof which also concerns financial provision under the Family Law (Scotland) Act 1985. Our members regularly appear in cases concerning both children and money, including those where there are allegations of domestic abuse.”
  • A request to omit the requirement to be able to demonstrate skills and experience in relation to “family conflict”, as in one view, every litigated family law case is an example of family conflict.
  • An annual appraisal is impractical as work is confidential and therefore the solicitor cannot disclose it for the purposes of appraisal.
  • Solicitors are unlikely to seek appointments to the register if inclusion requires training by an organisation separate to their own professional body (the Law Society of Scotland).
  • Solicitors’ professional obligations require that he/she has necessary competence in areas of law and therefore there should not be a government function to have responsibility for standards / training.
  • Solicitors employed by public authorities engaged in child and family protection work should be excluded.
  • The funding of legal representation should remain with the Scottish Legal Aid Board.

266. Question 29 then went onto ask:

Q29: ‘Are there any other requirements that a person must satisfy in order to be included on the register of solicitors?

267. As the following table 22 shows, views were split as to whether there are any other requirements that a person must satisfy in order to be included on the register of solicitors. However, almost half did not know or did not answer the question. Within organisation subgroups, there were differences. Most local authorities and legal organisations saw no further requirements, whilst most NHS and third sector / advocacy organisations thought there should be other requirements.

Table 22: Q29: Are there any other requirements that a person must satisfy in order to be included on the register of solicitors?
Number
Yes No Don’t know
Legal (11) 3 7 1
Local authority (3) - 3 -
NHS (2) 2 - -
Public body (4) - - 4
Representative body (5) - - 5
Third sector / advocacy (14) 7 2 5
Other (1) - 1 -
Total organisations (40) 12 (30%) 13 (33%) 15 (38%)
Individuals (44) 9 (20%) 10 (23%) 25 (57%)
Total respondents (84) 21 (25%) 23 (27%) 40 (48%)

(Percentages might not add to 100% due to rounding)

268. 19 respondents made comments about additional requirements they felt should be satisfied in order to be included on the register of solicitors. However, many of the answers reinforced points made at the previous question.

269. Knowledge of family law was the most often quoted requirement, albeit by only a few respondents, and children’s rights and associated financial issues were specified in this context. A few respondents touched upon legal experience more generally, citing a minimum post-qualification period as being necessary for inclusion on the register: 3-5 years, 5 years and 10 years were all suggested as necessary time periods.

270. A few respondents reinforced the requirement to have no conflicts of interest or bias, unconscious or otherwise, and equalities in terms of gender, diversity and inclusiveness knowledge were specifically mentioned.

271. Small numbers of respondents chose to comment about knowledge, experience, skills and training in areas relating to the involvement of children. These included child behaviour, child development, child communication (e.g. skills in communicating complex issues and questioning to take evidence) and experience in representing children generally.

272. A few respondents also mentioned knowledge of the child protection system as being a requirement.

273. A few respondents reinforced a requirement for skills, knowledge and training concerning domestic abuse. Similar comments were made in relation to trauma-informed care and practice and its impacts, coercive control, and understanding family conflict.

274. Single respondents made mention of the need for PVG disclosure, a requirement for ongoing training, for solicitors on the register to be qualified and to have knowledge / experience of substance abuse and mental health and their effects on individuals and families.

Ongoing training requirements for solicitors on the register

275. The consultation paper explained that the Scottish Government would expect that anyone included on the register would undergo regular training to ensure they are au fait with the latest developments in family law, whilst acknowledging that solicitors already undergo CPD. It is envisaged that the number of days training required would be less than for child welfare reporters or curators ad litem since solicitors on the register are unlikely to be appointed to represent a party as frequently as child welfare reporters and curators ad litem are appointed. Also, solicitors on the register will not be engaging with the child at the centre of a case, so detailed knowledge of how to engage with children is less relevant.

276. If a solicitor does not attend the required number of training days without a reasonable excuse then they could be in breach of their terms and conditions and could be recommended for removal from the register.

277. Question 30 asked:

Q30: ‘Do solicitors on this register require fewer days training each year than child welfare officers and curators ad litem, on the basis that they are likely to receive fewer appointments?

278. As shown in table 23, a majority of those who gave a response thought solicitors should not receive fewer days training each year than child welfare reporters and curators ad litem. Again there were differences amongst organisation sub groups, with legal and local authority bodies generally in favour of fewer days training, and third sector / advocacy organisations against this.

Table 23: Q30: Do solicitors on this register require fewer days training each year than child welfare officers and curators ad litem, on the basis that they are likely to receive fewer appointments?
Number
Yes (fewer) No Don’t know
Legal (11) 7 3 1
Local authority (3) 3 - -
NHS (2) 1 1 -
Public body (4) - - 4
Representative body (5) - - 5
Third sector / advocacy (14) - 8 6
Other (1) - 1 -
Total organisations (40) 11 (28%) 13 (33%) 16 (40%)
Individuals (44) 8 (18%) 21 (48%) 15 (34%)
Total respondents (84) 19 (23%) 34 (40%) 31 (37%)

(Percentages might not add to 100% due to rounding)

279. 39 respondents in total gave reasons for their answer. Amongst those who thought that solicitors require fewer days training than child welfare reporters and curators ad litem, the greatest numbers of respondents (mostly comprised of legal organisations) cited that they were already subject to training and annual CPD requirements from their governing body, the Law Society of Scotland. There were also some suggestions that this training could double as training to be on the register if it was in a relevant area.

280. A few respondents pointed out that solicitors who put their names forward to be on the register were already likely to be engaged in similar work and have considerable experience prior to doing so.

281. Several respondents however agreed that some training was still necessary for solicitors, with child protection, training in domestic abuse, coercive control and family law all specified, along with situations in which the person represented gives either no instructions or inadequate instructions.

282. Other single mentions of reasons for solicitors requiring fewer training days included that separate training days would be impractical as skilled practitioners would be too busy, that there needs to be a proportionate approach to ensure there is sufficient coverage by solicitors across Scotland and that the solicitor’s job does not necessarily entail the abilities of child welfare reporters and curators as it does not necessarily involve interaction with the child.

283. Among the majority who did not agree that solicitors should have fewer training days, almost half referred to a need to be equally well equipped and qualified for each case as child welfare reporters and curators would be, in order to support consistency and help standardise practice. Similarly, a large minority stated that it was the quality of service which counted irrespective of the number of appointments undertaken.

284. Additionally, significant numbers of respondents also cited the following reasons:

  • The complexity of situations and issues arising meant there was a need for full understanding of the processes involved.
  • Training needs to be ongoing in order to keep up-to-date due to the constantly evolving legal landscape and advancing knowledge about trauma and violence.
  • Training is part of the process for ensuring the wellbeing of domestic abuse survivors and ensuring children and young peoples’ rights are respected.

285. A third sector / advocacy respondent summed up these views as follows:

“We would submit that the number of appointments that they may require to undertake is irrespective of the training required. The training is required to ensure that each case is handled appropriately and sensitively. There should be consistency across the board and no one case should be left behind.”

286. Question 31 then went onto ask:

Q31: ‘Are there any other training requirements that you think should be included?

287. 24 respondents chose to give additional requirements at this question, some of which reiterated and reinforced training requirements stated in the consultation document. A couple of respondents thought that the training requirements should align with those of child welfare reporters and curators ad litem.

288. The most frequently mentioned additional requirement that was recommended - largely by third sector / advocacy respondents - was diversity or inclusivity training, incorporating areas such as disability, equalities, language and the experiences of and issues faced by BME families.

289. Training in dynamics with clients was recommended by a small number of respondents. This was thought necessary because of predicted difficulties with clients as a result of the client having a solicitor appointed for them rather than being able to choose, resulting in possible hostility. Facets of training mentioned included how to avoid complaints and behavioural impacts of solicitors on their clients and others. Two respondents specifically suggested conflict management training and one recommended shadowing an experienced solicitor.

290. Other suggested additional training requirements largely mirrored those suggested for child welfare reporters and curators ad litem. Training in communication and engagement with children was mentioned a few times, particularly in respect of obtaining children’s views. Other areas of child-related training, put forward by one or two respondents each, included child development, child protection and understanding of children’s human rights.

291. In depth domestic abuse training was agreed to be a priority. Respondents cited the importance of the dynamics of coercive control and an understanding of its many impacts. Two third sector / advocacy organisations recommended that this training should be performed under the Safe and Together Model.

292. A variety of other very specific additional training areas were recommended by very small numbers of respondents. These included trauma or trauma informed practice, mental health including its impacts, substance use / abuse including its impacts, parental alienation, counselling skills, Data Protection law and reporting.

293. In addition, there was one request to target training based on the individual’s expertise and skillsets, perhaps identified through CPD plans or annual appraisals, and a query as to how and who would monitor the training in terms of quality and quantity.

How a court would appoint a solicitor from the register

294. The consultation paper noted that if the courts consider an appointment is required, the court would make an order accordingly and would then approach the body managing and operating the register. The body would then consult the register and approach the next solicitor who is willing to work in a specific geographic location. Once a solicitor has been selected, the body would then advise the court accordingly. The court would give them sufficient time to engage with the party and to take instructions from them. The next question asked:

Q32: ‘Do you have any comments on the proposed process for the court appointing a solicitor from the register?

295. 19 respondents chose to make comments about the appointment process for solicitors; almost half of these made generally favourable observations agreeing with the process. Remarks indicated that the process was straightforward, fair and reasonable, with a few respondents agreeing to appointments being done via the next person on the register on the basis of availability and willingness to act.

296. However, a few respondents were in favour of basing solicitor appointments on expertise and experience for a particular case rather than by calling up the next person on the register. These respondents thought that the most appropriately trained solicitor should be the one appointed, and that this would be the optimum method of looking after a child’s best interests. A third sector / advocacy respondent thought this should be the way forward, especially in cases involving domestic abuse, violence and coercive control.

297. Two respondents were in favour of courts having at least a say in the appointment process, further commenting that the appointment should be at the discretion of the presiding sheriff or judge. It was surmised that this would make it easier to choose an individual well suited to a particular case. Two other respondents thought the appointments system should be controlled locally. A legal organisation voiced the following issue about the proposed selection process:

“… (we have) serious concerns about selection of a solicitor by a third sector organisation who has limited direct contact with courts. The only organisation that could realistically deal with this choice would be the Law Society of Scotland. Failing that, the choice should be a matter for the sheriff or Lord Ordinary.”

298. Further opinions, stated by one or two respondents each, included documentation stating the procedures and court rules for appointing a solicitor should be available (e.g. for accountability purposes) and that there is a need to assess and identify conflicts of interest. It was also suggested that the body operating the register does not need to be the same as that for child welfare reporters or curators ad litem, due to the differing circumstances and nature of the appointment.

299. A respondent noted a desire for clarity over what “sufficient time” might be for a solicitor to engage with their party after selection (in particular where there is a lack of client instruction). Another commented that it would be helpful for the solicitor to outline at register application which geographical areas he or she would be prepared to work in. Another said that consideration should be given to using the Duty Solicitor Scheme operated by the SLAB in relation to Children’s Hearing proceedings. The final comment was that the proposed payment for time spent conducting or preparing for the proofs is inadequate.

Expenses for solicitors

300. The Scottish Government expects that solicitors would only be able to claim expenses and allowances if the additional expense is actually incurred when carrying out official work whilst acting on the register. The Scottish Government would expect that solicitors seek value for money in terms of travel expenses. Question 33 asked:

Q33: ‘Do you agree / disagree with the proposed procedure for expenses for individuals appointed to this register?

301. As shown in table 24, an overwhelming majority of those voicing an opinion agreed with the proposed procedure for expenses.

Table 24: Q33: Do you agree / disagree with the proposed procedure for expenses for individuals appointed to this register?
Number
Agree Disagree Don’t know
Legal (11) 7 2 2
Local authority (3) 3 - -
NHS (2) 2 - -
Public body (4) 1 - 3
Representative body (5) - - 5
Third sector / advocacy (14) 6 1 7
Other (1) - - 1
Total organisations (40) 19 (48%) 3 (8%) 18 (45%)
Individuals (44) 21 (48%) 2 (5%) 21 (48%)
Total respondents (84) 40 (48%) 5 (6%) 39 (46%)

(Percentages might not add to 100% due to rounding)

302. 21 respondents provided comments at this question, most of which were favourable to the proposed approach, albeit with occasional caveats. However, a large minority (mainly legal organisations) chose to focus their comments on fee rates rather than expenses.

303. A large minority of respondents who agreed with the proposed approach stated that it was reasonable, fair and represented the standard procedure by which legal professionals currently charge expenses. A few commented that the procedure was clear, transparent and accountable.

304. In small numbers, respondents reiterated or raised the following provisos:

  • Only justifiable expenses with a receipt should be claimable (for parking expenses, it was intimated that receipts can be requested or photographic evidence could be provided. For fuel receipts, journeys should be recorded).
  • Expenses should follow HMRC guidelines (e.g. 45p / mile vehicle expenses).
  • Expenses should represent best value for the public purse.

305. A very few comments were made by those disagreeing with the procedure, as follows:

  • There is nothing legally being put in place to stop solicitors from exploiting the system.
  • Solicitors’ expenses should be met either by SLAB where their client is eligible, or privately by the individual concerned.
  • Expenses in conducting a proof could be calculated on the same basis as for solicitors working directly for parties, possibly with reference to the amounts that SLAB would allow.

306. As previously highlighted, a significant number of comments, mostly from legal organisations, related to fees rather than expenses. The Scottish Government expects that a per hour fee rate would be set, although it recognises this may be a challenging role so it is proposed that fee rates would be pitched accordingly. Comments from respondents included the following:

  • Fees are insufficient for complex family cases and need to be reviewed. Further remarks indicated that solicitors would not come forward to be included on the register if not properly paid, and the job may be rushed if insufficient compensation was available.
  • A list of time spent should be available for checking should a fee be questioned.
  • Individuals should not be forced to pay for a solicitor where they are not permitted to self-represent in cases.
  • Queries over how counsel’s or expert’s fees would be determined in cases where a counsel or expert is instructed.

Complaints procedures

307. The Scottish Government considers that the complaints process in relation to solicitors on the register would be similar to what was outlined for curators ad litem. This would include complaints by an individual about not being on the register or being removed from the register, grievances held by solicitors on the register, and complaints about a solicitor on the register. The final question in this section asked:

Q34: ‘Do you have any comments on the proposed procedure for complaints by or about solicitors on this register?

308. 26 respondents gave responses to this question; all comments referred to complaints about solicitors rather than those made by them.

309. Nearly half of those responding remarked that the complaints system should be clear, transparent, accessible, accountable and easy to understand, with one suggestion to have a lay person involved in the process.

310. A large minority of respondents, almost all of which were legal organisations or public bodies, foresaw problems caused by the existence of at least two competing complaints systems. It was foreseen that the legal profession’s own systems (SLCC’s in particular) could feature, causing duplication and confusion about which route complainants should go down. Points were made that solicitors should not have to deal with two separate complaints processes regarding the same complaint. A public body noted this issue as well as a lack of detail concerning remedies following a complaint if this is made to the body operating the register:

“…solicitors on this register could be open to complaints about the service provided, as well as their conduct. These complaints could be made to the body operating the register, and/or to the SLCC. They could be made by the person being represented, by another party to the case, by the child or by any other person. In the case of a complaint being made about the service provided, it is not clear from the consultation paper what remedy would be available to the body operating the register.”

311. Furthermore, several respondents – almost all of them legal organisations – said that complaints (if relating to a solicitor’s conduct or service) should be made to the Law Society of Scotland or the SLCC, rather than a body operating the register, and that existing regulatory frameworks should be used with no need for a separate complaints system. A third sector / advocacy organisation however hypothesised that given the complaining party would not have a conventional relationship with the solicitor, there may need to be changes made to the complaints processes operated by the professional bodies.

312. A few respondents (mainly third sector / advocacy bodies) insisted that the complaints system needs to be child-friendly, citing the requirements of the UNCRC Incorporation (Scotland) Bill and the Council of Europe’s Guidelines on Child-Friendly Justice.

313. A small number of requests were made for more information about an appeals process, citing this needed to be delineated from the complaints process within the complaints procedure. Similar numbers had concerns about vexatious or frivolous complaints or higher numbers of complaints than normal, due to the increased likelihood of blaming the lawyer if a client’s case is lost, given the lawyer wasn’t chosen by the client. Several other comments about the complaints process were each made by a very small number of respondents and these included that complaints should undergo the same considerations as those for child welfare reporters and curators ad litem, that they should be dealt with timeously and that a request to know what the decision-making process will be for whether a complaint has ‘any merit’.

314. A few respondents held negative general perceptions of current complaints procedures. One individual specified the SLCC system, commenting that it was not fit for purpose. Other general concerns about current procedures were that there is a need for a clear guide on complaints to be made available for lay persons, and that the process to complain and for handling complaints needs to be clear, simple and transparent.

Contact

Email: family.law@gov.scot

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