Preparing reports for the court in family actions

The following is an article from notes used to give talks to Intrants. I hope it may be of assistance to practitioners who are asked to prepare reports for the Court.

Preliminary preparation

• The agents responsible for instructing the Reporter will provide a copy of the interlocutor appointing the Reporter and a copy of the pleadings.
• On receiving instructions open file and obtain a notebook. Papers and correspondence in these matters grow quickly. As well as providing a place to note what is said by those interviewed, the notebook also helps to keep “everything together” including details of time spent doing the work.
• The interlocutor is the document which gives the Reporter authority to prepare the report. Photocopies of the interlocutor should be taken and kept in the file as they may be required later on. Take a moment to study the interlocutor. It identifies (a) who the parties are; (b) how many children are in the case; (c) how wide the Reporter’s remit is; and (d) whether the report has to be prepared quickly (quam primum) or not.
• It is advisable to telephone the agents on the respective sides for addresses and telephone numbers of their clients and any other relevant information. A brief word with the agent most closely connected with the case can prove to be helpful, particularly as the pleadings may not state the updated circumstances.
• An important decision must now be made. Who should the Reporter interview first? The parent with custody/residence or the parent without? Sometimes expediency rules the day, especially if the report is required quam primum, but it is a good idea to consider the alternatives before the first interview is arranged.
• Having decided who to interview first, a telephone call to introduce oneself and to agree the venue and time for an appointment should be made. An indication by the Reporter as to how long the interview is likely to take may help the witness to prepare. A home visit is preferred to an office interview because one can see the home circumstances for oneself and form an impression from that. Follow the telephone call up with a letter.

Interviewing parties

• It is not uncommon, on arriving to interview a witness, for the witness to have present a friend or relative whom the witness would also like to be interviewed. A decision about whether to interview that person has therefore to be taken on the spot. I suggest that if a witness wishes the Reporter to interview someone whom the witness regards as important then, unless there is good reason to the contrary, that person should be interviewed.
• Thereafter the Reporter should politely explain that he/she wishes to interview witnesses separately. Invariably this request is accepted. The Reporter can then arrange a time for the witness not being interviewed to be available later on.
• Show the witness a copy of the interlocutor. It is good practice for the Reporter to stress to the witness that he/she is not instructed by onside or the other, but has been appointed by the Court and is neutral. The idea of being a “referee” may help the witness to understand the Reporter’s role better.

Some questions to ask

• Obtain the name, address and date of birth and qualifications (if appropriate) of the witness.
• Is family history relevant or not? This is a matter of judgment. Overall the court wishes to make a decision based on the present circumstances. The present circumstances are probably connected with the past. However, discretion should be exercised here to bring out only historical matters which have relevance to the decision which the Court requires to make.
• If the television is on, ask politely if it could be switched off. A witness with one eye on the Cup Final cannot be expected to give full attention to the Reporter’s questions.
• Ask the witnesses if he/she has been married before, and whether there are other children by previous marriage(s). A witness may not consider this information as having any relevance to the present proceedings, but if the question is not asked it may be embarrassing (and time consuming) to find out later on that, instead of the mother having the children as detailed in the interlocutor, there are other children by previous marriages in the background as well.
• At the end of the interview ask if there are any points which the witness considers to be important and that have not been raised.
• I see no harm in a polite request by the Reporter also to view the bedroom where the child(ren) in question sleep.
• This type of work is often conducted with witnesses who are anxious and may also be angry. However, as the case unfolds it is not uncommon for the Reporter to find that the real issue in dispute can be narrowed. If this possibility arises it may be helpful to raise these matters during interview to test out witnesses’ reactions to proposals made by the Reporter. For example, the Reporter could ask, say, the father, if he really wants custody/residence? What is his reaction to the suggestion that the mother be granted custody/residence but with increased access/contact granted to him? It is, of course, more difficult to raise these questions at the first interview when the Reporter is not familiar with the whole background of the case. However, the Reporter should be alert to the possibility of this approach as it can enable the Reporter to present to the Court a more concise and relevant report.
• Before concluding the interview, tell the witness that if matters come to mind after the interview, and which the witness considers to be important, these matters should be directed to the Reporter by letter or telephone to the Reporter’s (work address).

Interviewing professional witnesses

It is not uncommon for Reporters to require to speak to social workers, G.P.s, teachers, health visitors, and other professionals. A telephone call to introduce oneself and to arrange the initial interview is good practice. Often the request for an interview is met with uncertainty. This is usually because the professional witness is unsure about confidentiality and whether any breach of trust will arise. A way round this is for the Reporter to suggest that he/she would be happy to write to the witness enclosing a copy of the Interlocutor. If necessary the Reporter can also suggest that he/she will write to the (Health Board) or Legal Department of a local authority for permission to conduct the interview. Usually permission is then given. It is not unusual in these interviews to find when the Reporter arrives, that an “official” is also present and requests to be present during the interview. I suggest the presence of the official should be allowed. (Refusal would probably lead to the witness being refused permission to give the interview).

Potentially violent witnesses

If the Reporter is conducting an interview at the home of a witness, it is good practice for the Reporter to advise a colleague where he/she is going, how long the interview is expected to take and a telephone number where the Reporter can be contacted. During the interview if the Reporter is in any doubt as to his or her safety the interview should be cut short, an excuse should be made and the Reporter should leave immediately.

Any further interview should be conducted not at the home of the witness, but in the Reporter’s office.

Interviews at institutions

If a Reporter is visiting a prison or similar institution, the Reporter should write to the governor beforehand for permission to interview the inmate. This allows the institution to make arrangements to have the inmate available. It also provides the governor with an opportunity to notify the institution social worker of the Reporter’s visit. If the Reporter also wishes to speak to the institution’s social worker this request should be included in the letter to the governor.

During the interview of an inmate a prison officer will usually be sitting nearby, usually outside the interview room. In prisons where the regime is more relaxed an officer may not be immediately available especially if the inmate is a “low category” risk. However, if any problems arise during the interview causing the Reporter to be apprehensive as to his/her personal safety, again curtail the interview, make an excuse and leave the room. The apprehension should be discussed afterwards with an appropriate person in authority and before the Reporter leaves the institution.

Interviews furth of Scotland

Where the SLAB is paying, obtain the permission of SLAB, preferably in writing, before travel arrangements are made. Keep all receipts. If the case is not funded by SLAB it is advisable to write beforehand to the agents who are responsible for the Reporter’s fee.

Writing up the report

As the case unfolds, the volume of notes increases. It is a good idea to write up the report as you go along. Alternatively a PC (if you have one) could be put to good use. Dictating machines are helpful for recording notes of the interview in the car afterwards.

Obtaining schedules of previous convictions

It can arise during an interview that a witness makes an allegation against another witness. For example, a wife may make an allegation of violence against her estranged husband and/or that in the past the husband has sexually abused the children of the marriage. If allegations like these arise, it is important for the Reporter to take the allegations seriously but also to remain objective and to find out if evidence to support the allegations exists. One way to do so is to check to see if the alleged perpetrator has any previous convictions. The Reporter will then require to check in particular if the alleged perpetrator has previous convictions for sexual offences. The Reporter should advise the party making the allegations that enquiry will be made. The Reporter should also tell that witness that the matters will be raised with the alleged perpetrator and included in the report. To obtain a schedule of previous convictions may not be easy. However a letter to the local Sheriff Clerk or Reporter to the Childrens Hearing could prove helpful. The Reporter should enclose a copy of the interlocutor and an explanation why the Schedule is required. The last known address of the alleged perpetrator should also be supplied.

It is, of course, extremely important for the Reporter to maintain an open mind regarding allegations of this nature. On the whole it is recommended that such allegations are approached with caution.

The style of the report

Headings are helpful. This should lead to relevancy and conciseness. It can be disheartening to read reports consisting of long paragraphs that go on for ever.

A heading “Conclusion” or, Recommendation” is suggested. It is helpful for the Reporter to discuss why the conclusion has been reached and what evidence has been accepted and what evidence has been rejected.

Submitting report

The principal report, signed and dated, should be lodged in the Sheriff Clerk’s Office or the General Department of the Court of Session together with two copies; one copy for the pursuer’s agents and one copy for the defender’s agent. The Reporter should retain a copy. The Reporter should then inform the agent instructing the report that the report has been lodged.

Correspondence received after report submitted

Sometimes a witness will write to the Reporter after the report has been submitted, but before the case is heard. If this happens the principal letter should be forwarded to the Court, with a separate note for the court indicating whether the contents of the letter alter the recommendation reached by the Reporter.

Getting paid

Under O.C.R. 1993, R.33.21 (and RCS 1994 R.49.2), the Reporter must lodge the report when it is completed. It is submitted that the Reporter is not entitled to withhold the report until the fee is paid.

If the report is funded by SLAB, from SLAB’s point of view the more detail provided to them the better. Similarly , in a privately funded case, the more detail provided to the paying agents the better. If a notebook and file have been used from early on compiling the fee note should not be too difficult. If the work has been carried out in loose pieces of paper everywhere...

Final point

Please remember that while preparing a report for the Court may be regarded as an interruption to a Reporter’s busy diary, we must not forget that the repercussions of the Reporter’s recommendation, if accepted by the Court, may be far reaching.
John P. Doohan (The author acknowledges the assistance of Sheriff N.M.P Morrison, QC. in the preparation of this article)