Personal touch

The features about family contact in the July and August editions of the Journal have raised important issues which merit considering in the wider framework of family law and dispute resolution. The fundamental questions are how far child related issues should be treated as legal questions, whether the current process deals with them correctly and, finally, the best way of bringing children’s views into the process.

Child related matters and the law

All aspects of our society are regulated by systems of rules. Family life has been regulated by law for centuries and the rules provide a necessary framework when parties are in dispute. The distinguishing feature of family law is the impact of emotion. Parties may feel their entire identities will be shaped by the outcome, where in most other disputes the outcome will be important but not defining. Attitudes have to be taken into account as well as facts.

There is a strong tradition in Scots law that the majority of family cases are resolved by agreement rather than third party decision. It is a positive tradition and one which should be fostered energetically. Family lawyers have a very important role as gatekeepers to the road through separation, and have a significant responsibility to offer appropriate skills and knowledge, including an understanding of the dispute resolution options.

When dealing with any area of law it is necessary for lawyers to absorb matters which are not simply black letter law. In family law one important additional dimension is psychology. That is not to imply that solicitors need to become “haun’ knitted” counsellors. It is to recognise that to provide proper advice and appropriate referrals, solicitors need basic knowledge of child development and how children and adults react to separation, and interpersonal skills to allow that knowledge to be used helpfully.

Children take on many and varied roles in separation, often with the motive of looking after a parent or parents or bringing them back together. These roles can lead to behaviour which is easily misinterpreted and can lead to widening the gap between adults.

At some point the adult making the decision to separate will be prone to justify that by exaggerating the unacceptable behaviour of their partner. The one who did not make the decision will feel threatened and defensive and their ability to make plans will be affected until they have had longer to adjust. If legal advisers are alert to these aspects they can provide appropriate acknowledgment, proper advice and referrals to additional help to enable clients to make the transition.

Which method?

This awareness can also allow effective assessment of which dispute resolution method should be used. Mediation and collaborative law provide a good route to assist parties to adjust to being separated parents rather than a couple. Sometimes the buffer of more formal negotiation is required. In some cases litigation is necessary. With appropriate legal guidance the cases being dealt with in court should be restricted in financial matters to those involving complex law where parties prefer to have a third party decision; and in child cases to those where there are significant problems with either or both parents, or a collision of strongly held opinions about some specific issue.

In Australia an impressively joined-up array of resources has been assembled to provide as much support as possible for families affected by separation. Viewing www.australia.gov.au/familyrelationships introduces the “family dispute resolution practitioner”, who promotes a co-operative approach to sorting things out. In the main, access to the courts will only be possible if such efforts are tried and fail. This development highlights how important it is for Scottish practitioners to be proactive about having the skills and knowledge to link to the appropriate resources and methods of dispute resolution. Equally, resources such as parent information classes, DVDs and counsellors for young people need to be available.

Adversarial or inquisitorial?

Since a third party decision should only be necessary if there are hotly disputed areas of fact or law, or seriously disjointed issues of personality, it follows that the process to deal with these does have to carry weight and deliver authority. Perhaps one of the issues not explicit in the debate so far about child welfare hearings is consideration of whether these matters should be dealt with on an inquisitorial or an adversarial basis – whether by traditional court or some form of tribunal. In either process, the essential components are for the parties to be dealt with on an evenhanded basis and have an impartial decision made which is reasonable against the background of the facts and legal rules.

In an adversarial process the responsibility for providing the information on which this decision will be made, rests on the advocate for the party; while in an inquisitorial process, the decision maker has more responsibility for exploring information and possibilities. There is a strong argument that the inquisitorial approach would better serve both child related and financial issues. In child cases, the adversarial approach tends to encourage each parent to paint the bleakest picture of the other. In financial issues it imposes a rather one-dimensional template where the legal rules themselves provide three-dimensional options.

In fact, many productive child welfare hearings (including those with evidence led) are dealt with on an inquisitorial basis. There are common elements but also significant differences in the skills required for a decision maker in each approach. In both there has to be impartiality, fairness and a decision justifiable by the information on which it was based. In an adversarial process the more formal setting and context tends to confer a substantial authority on the judge. In the inquisitorial approach that authority has to be created to a greater extent by the decision maker. Either a specialist sheriff, or a tribunal with a legally qualified chairman and the option of an additional member from either an accountancy, mental health or psychology background could be appropriate.

However, on the basis that a third party decision is only required in more challenging cases, it is also important that inquisitorial is not perceived as “law-lite”. If family lawyers have brought their knowledge and experience into the handling of cases, it should mean that any actions being resolved by a third party involve a situation where there is a serious problem. This will not necessarily be apparent at a hearing during which a gloss of courtesy is imposed for the period the parties are present, only to be dispersed by the scouring effect of an abusive relationship or an intransigent personality. It would be unusual at a child welfare hearing run as an unequal conversation between bench and parent, for a parent to admit to abuse or implacable hostility.

Parenting with backup

It is certainly important to have a starting point that good parenting would normally include the ability to foster a good relationship with the non-resident parent. If there are disputed allegations of violence, drink or drugs, or implacable hostility which might challenge that assumption, then some form of evidence needs to be led. The objective should be to establish whether there is any basis on which one parent’s ability to parent should be regarded with some care. If not, the focus can shift to an expectation that each parent should be treated with respect by the other, and practical and detailed arrangements for time with each parent explored and monitored. Referral to mediation at that stage could be useful to assist the parents to better communication.

For parents who cannot agree contact arrangements, it may be that third party decision in tandem with a contact facilitator (as envisaged by pilot projects in Glasgow and Edinburgh, with further backup from counsellors able to support children whose parents are in high conflict) could provide sufficient protection and structure to enable those young people to navigate a difficult parental separation. Monitoring the situation would be an important element of such a structure. Although the legal framework should have an important role to play, it is also vital for other resources to be available and to be called on to make the process meet the needs of young people.

The child’s perspective

The most healthy way for children’s views to be taken into account is if each parent is able to separate his or her own reaction to the situation from the reality for the child, and listen to what that child needs. If family lawyers can assist parents with information, advise about available resources including literature and parent information classes if available, or perhaps a DVD, and assist in assessing the appropriate form of dispute resolution, it may make it easier for a parent to see that.

If children’s views have to be canvassed in a litigated situation, it does leave children vulnerable to enormous pressure from parents and a significant sense of guilt about the impact of their views. Anyone involved in the process of taking children’s views should be aware of children’s normal reactions to separation, the roles they commonly take on in that situation and the increased potential difficulties over communication across an age gulf.

An ability to see things from the child’s perspective should be central to the process of decision making, and questions about the specifics of children’s activities, friends, extended family and texture of their lives have to be explored to understand that. A focus on practical details and routine can help the process of making plans become more problem solving than battle.

A fundamental element of considering how to deal with family cases is the recognition that the legal process should attempt to bring out the best in both parents, but cannot bring about a change in attitude by court order. In some cases people effectively choose potential parents for their children with considerably less thought than when purchasing a new car! Bad choices at that point cannot be rectified by law. What the law should do is to protect children so far as is possible from the damaging consequences. The filtering from well informed and skilled family lawyers should reduce cases going to court to those where the problems are severe.

Obligation to deliver

It is essential for family lawyers to have the skills and knowledge to help ensure that only cases involving extremes of complexity or behaviour have to be resolved by third party decision. It is equally essential that for those cases the decision making process delivers credible authority, coupled with strong interpersonal skills and appropriate knowledge of more than just the black letter law, with additional resources to draw on where appropriate. Our views on the training that should be provided to the different groups involved are set out in the panel below. There should also be consistency where at all possible in the person making the decisions, and sufficient time should be allocated at each stage.

There are shining examples of good practice from courts throughout Scotland, but that is attributable to the approach of individual sheriffs, rather than to the process itself. Given the range of issues which may need to be resolved in family cases, it would not be possible to have a “one size fits all” approach, but it is desirable to have a significant degree of consistency.  It should be achievable to have set standards of training for all involved, and to have sufficient ancillary resources available.

An inquisitorial approach could allow an application for a third party decision to receive an initial assessment moving forward on either a fact finding basis or with interim decisions followed by suitable support and monitoring. What is not working is the uneasy juxtaposition of an adversarial structure with attempts to mediate from the bench, or several child welfare hearings before different sheriffs where one may order a report while the next is allergic to such an intervention. It may be some consolation that the issues most taxing in the current court process are rarely resolved by a magic wand waved by another discipline, such as psychology or mediation. However what the legal process has to deliver is a practical and workable structure where all the parties involved, including the children, can feel they have been treated thoughtfully and with expertise.

If we accept that shortcomings exist, the review of civil justice being undertaken gives family lawyers an important opportunity to influence the way they are addressed and to provide more satisfactory processes for the future.

Anne H Dick and Tom Ballantine are partners with mhd Law, Glasgow and Edinburgh

TRAINING AN ALL ROUND NEED

The processes we use for making decisions about children and taking the views of children are only going to be as good as the people that operate them. That involves several professional and non-professional agents.

The court reporter

At present, in Lothian & Borders sheriffdom at least, a person wishing to become a reporter to the sheriff court on child related issues (for instance, who a child should live with, or what contact that child should have with the non-residential parent) simply writes to the sheriff principal (or occasionally is brought to the sheriff principal’s attention by recommendation of a sheriff). There is no experience required, although several years’ involvement in child related litigation is normally expected. No training is required. Enquiries are normally made of sheriffs who are familiar with the applicant, but otherwise no further investigation into suitability is made.

While processes may vary between sheriffdoms, we think all the Scottish sheriffdoms broadly follow this line. In Scotland there are no guidelines on content and practice to be followed in preparing reports.

Comparison with the equivalent reporting process in England through CAFCASS (Child and Family Court Advisory and Support Service) is salutary. CAFCASS employees can deliver reports in either civil or public law. Positions are advertised and applicants interviewed by a panel, completing various exercises as part of the interview depending on the nature of the position.

For practitioner positions with CAFCASS, a social work qualification and three years’ post-qualifying experience in social work practice with children and families are required. A university post-qualification award for social work is now being set up, specifically linked to CAFCASS’s work. CAFCASS reporters have to be registered with the General Social Care Council, with re-registration required every three years. As part of the registration procedure practitioners are required to demonstrate they have done at least 15 days’ relevant training in the previous three years. There are guidelines on the content and practice to be followed in preparing reports.

Put succinctly, in England there is a formal application process, interviews, required relevant training and experience, required ongoing relevant training, and guidelines on the content and practice for reports. In Scotland there is an informal application process, no interview, no training or experience required (beyond the expectation of involvement in relevant litigation), no required ongoing training, and no guidelines on content and practice for reports.

It does seem extraordinary that the two jurisdictions should approach things in such radically different ways. We acknowledge straightaway the very high standard of report provided by many reporters in the Scottish system. However, it is difficult to avoid the conclusion that the processes for appointment and training in England are more likely to produce consistency and quality in standards of reports. Any success in reporting in Scotland is in spite of rather than because of our ways of approaching these matters.

Alongside many excellent reports, sadly, there is a vast amount of anecdotal evidence to the effect that very poor reports are produced too. It is very rarely in the interests of a party to challenge the effectiveness of a reporter, in the knowledge that that reporter may be asked to give subsequent reports in the same case. There is the knowledge also that, broadly speaking, the judiciary recognises, as do we, the difficult nature of the reporter’s task, and is unlikely to be well disposed to challenges. Many of those acting as reporters do so out of a strong commitment to the interests of children. They deserve our support. In these circumstances it is unsurprising that weaknesses in practice and in the content of reports are rarely focused on.

It is worth acknowledging that qualifications, training and guidelines are no guarantee of quality in reports. However there are two important arguments in favour of the English approach. First, it is difficult to see how relevant qualifications, training (including ongoing training) and guidelines can worsen the overall quality of reports produced.  Secondly, for the client who sees the arrangements for residence and contact for his or her child as the most important thing in life, it is, for the more thinking client at least, a matter of astonishment that crucial decisions on the welfare of their children are being made based on recommendations from untrained individuals working without guidelines. Justice is not being seen to be done if justice involves the application of consistent and fair processes by a trained practitioner.

The judiciary

When it comes to the involvement of the judiciary, at least in the sheriff court, the situation is also one of concern. A new sheriff has a whole host of different skills to acquire and it is understandable that input on child related issues is squeezed.

There is no initial training on the skills required for speaking to children. The Judicial Training Group, commendably, runs courses for sheriffs on investigative interviews with children and those are, we understand, attended by approximately 12 sheriffs a year with the course lasting a day. However in our view, if issues relating to children are dealt with through the courts, it is essential that judges have some knowledge of the impact of divorce and separation on children, how children and young people communicate in these situations, developmental stages for children and young people, and the most recent research on what children want and benefit from following separation.

Solicitors

We would strongly argue that solicitors choosing to specialise in this area should be required to demonstrate similar knowledge to that mentioned for the judiciary before being given any specialist accreditation in the field.

Children/young people

The Family Mediation Service offers a counselling service for children and young people. It would be a great benefit if young people were given information about this and other services. A mechanism needs to be found to achieve that end. Children and young people are the blameless, vulnerable victims of our process and they deserve to have access to support in understanding the legal process and the situation they are in, and coping with both.

Parents

The final and most important element in all this, aside from the children and young people, is of course their parents. It is astonishing to us that, notwithstanding the clear success of models of parent information sessions in America and other jurisdictions, there is no requirement on parents in sheriff court actions to attend such sessions. It need not be an expensive or time consuming exercise. Excellent DVDs giving the relevant information are available, or could be produced. Our suspicion is that the cost of setting up such sessions would quickly be met by the reduced use of court time.

Doubtful defences

One of the great defences to changes on training and the like is that, ultimately, decisions about children come down to “common sense” or “life experience”. The problem is that one person’s common sense is another person’s madness.

Life experience can lead the experiencer in many, often unhelpful, directions. It would no doubt horrify members of the public to know that conversations take place between agents on who is going to be on the bench on a particular day, with often successful predictions as to the likely outcome of the case made simply on the gender, or the ideal of “common sense”, of the person making the decision. It is hardly surprising that, in these circumstances, clients think they see the dead hand of prejudice rather than the skilled touch of training, knowledge and experience.

Another defence is that somehow by being involved in family litigation or being a parent, people are suited to the role of meeting with families at home, eliciting and interpreting responses from children, understanding the ins and outs of child development and the impact of divorce. If all those involved in court processes were wonderfully wise parents with some intuitive insight into these matters this might be valid, but the likelihood is that, just as with the wider public, so with the profession there will be both good and bad understanding of children and how to deal with them.

ONGOING DEBATE: RECENT VIEWS

For recent Journal discussion of how to handle family law disputes, see Mackenzie, “Point of contact”, July, 20; Welsh, “Family cases: another view”, August, 16; Fordyce, “The law and the forum”, November, 9.