Some people, in the midst of a litigation involving children, will have reason to come into contact with a child welfare reporter. As a child welfare reporter myself, the history, evolution and regulation of the role is of interest to me and I summarise the position here:
History and evolution of the role
Within the Sheriff Court (where the vast majority of child-related disputes are litigated in Scotland) section 11 of the Matrimonial Proceedings (Children) (Scotland) Act 1958 was the source of the power, enabling Sheriff's to appoint any person to "investigate and report to the court on all the circumstances of the child and on the proposed arrangements for the care and upbringing of the child". The associated court rule is Ordinary Cause Rule 33.21. The 1963 case of Wallace v Wallace is the first reported case in which the purpose of such a report was discussed. What is clear from this case is that the role of reporter was, at that time, a very narrow one and the starting point was that it was to be fulfilled by employees of the Local Authority. One of the most significant changes in the role, since 1963, is that currently over 90% of child welfare reporters are solicitors.
The first real examination by the government into the role of child welfare reporters did not take place until 2013. Between 2013 and 2015 the Scottish Government chaired a working group to examine the role of child welfare reporters and the following came from that examination:
- A 'guide' to the child welfare report;
- 'Instructions' to child welfare reporters;
- A change in the name from "bar reporters" to "child welfare reporters" and;
- Proposed training requirements
Arguably, over the past 61 years since Wallace v Wallace, there has been a lack of clarity as to exactly what the role of child welfare reporter is and the first attempt to resolve this was made by the working group. Their instructions of 2016 together with the Sheriff Court Ordinary Cause Rules remain the only formal documents available to child welfare reporters which clarify the role.
Past, present & future regulation
There have been a number of attempts, over the years, to reform the situation regarding the role and regulation of reporters. In 2009, the report of the 'Scottish Civil Courts Review' by Lord Gill was published. Part of Lord Gill's report discussed the persons appointed in civil proceedings to protect the interests of the child and/or to provide a report to the Court. Lord Gill made various recommendations and wanted the Courts, Scottish Government, Local Authorities and others to collaborate in developing systems which would meet those objectives.
In 2011, the Scottish Government published "Child Welfare Hearings – A Scoping Study of the Commissioning, Preparation and use of Bar Reports". Lord Gill's review and the Government's research suggested that a number of issues needed to be considered, including:
- What qualifications and experienced reporters should have;
- The induction, training and continuing professional development that reporters need;
- The clarity and what reporters should do, with the possibility of more guidance being provided on the structure of reports and what reports should contain;
- How best to monitor the quality of the work carried out by reporters and how to deal with any cases where the work falls below the standard expected;
- How the parties involved in the case can challenge the content of a report.
The most recent changes to reporting were introduced by the Children (Scotland) Act 2020 which gained Royal assent on 1st October 2020. The 2020 Act builds on the existing Children (Scotland) Act 1995. Section 101A of the 1995 Act (as amended by the 2020 Act) places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as child welfare reporters. The 2020 Act also introduces two additional brand-new functions for reporters;
- Section 20 of the 2020 Act inserts section 11F into the 1995 Act. This provides that decisions in relation to children are explained to the child concerned in an impartial manner unless the court considers it not to be in the best interests of the child to give an explanation. Explanations can be provided by either the court or by appointing a child welfare reporter
- Section 22 of the 2020 Act inserts section 11G into the 1995 Act. This introduces a requirement on the court (when it is considering whether to find a person in contempt of court for failing to obey an order under section 11 or to vary or discharge an order under section 11 on the basis that a person has failed to obey it) to establish the reasons for that failure. The investigation can be by the court or by a child welfare reporter. The expectation is that a child welfare reporter would be appointed in complex cases.
At the time of writing this article, none of these new provisions in respect of child welfare reporters, as established by the 2020 Act, are in force. What is clear is that child welfare reporting in Scotland has evolved and further, significant, changes are on the horizon.
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