A number of issues arise from the proposals on child welfare reporters. A child welfare reporter will normally be instructed or appointed at a relatively early stage in a case, before the court has conducted the ultimate fact-finding exercise. In my experience, the purpose of the child welfare reporter is to assist the court with an interim situation, pending final resolution of the case.
It might seem curious to some people that we send lawyers out to speak to children and to investigate the circumstances in which they live, but the lawyers in the case understand the backdrop to the dispute and that they have to deal in a particular way with allegations that have been made but which are, as yet, untested. They also understand that they cannot usurp the function of the court. It is not for them to tell the court what to do or even, in most cases, to recommend what the court should do; they provide information that the court cannot get for itself. It is for that reason that the current system, in which there is in the court a list of those who are willing and able to carry out that function and have the necessary protecting vulnerable groups certification, is a helpful method of being able to regulate whom we send out for a particular exercise.
I will not repeat what I said earlier about the very different types of case for which we might have to do that. It is, of course, helpful that there is a variety of people on the list, whether or not they are solicitors—or advocates, as they usually are in the Court of Session—and it is helpful that the court maintains the list, because there would be practical difficulties if that were not within the court’s remit. That works well at the moment.
The judiciary has repeatedly raised the training issue. It is important that all those who are sent out to examine the circumstances in which children live, whether or not they also elicit the views of the child, are properly trained. In the Court of Session, we have the benefit of the very active Advocates Family Law Association, which has provided training for its members—I understand that it is willing to continue to do so. There is a good relationship between bench and bar, such that the court is satisfied that those who are currently on the list are suitable and appropriate. I am not quite sure how that would work if the list was not maintained and regulated by the court.
I absolutely agree with Sheriff Tait that the judiciary cannot comment on financial matters or their implications. However, in the Court of Session in particular, it is less likely that the parties will qualify for legal aid. In our system, the default position in our court rules is that one party or the other bears the burden of the cost of a child welfare reporter in the first instance, and the court then has the power to regulate that later on in dealing with the expenses of the case.