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Bar reports no more

14 December 15

Family briefing: child welfare reports have replaced bar reports, and with them come additional considerations for solicitors ahead of the court instructing a report

by Amanda Masson

The wait for updated rules in relation to bar reports in children’s cases is over. By way of the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Child Welfare Reporters) 2015 (SSI 312/2015), the Sheriff Court and Court of Session Rules have been amended to reflect the recommendations of the Scottish Civil Justice Council, the new rules having come into force on 26 October 2015.

The changes reflect the trend towards a higher level of case management in family cases generally, by seeking to ensure that a reporter shall only be appointed when the court is satisfied that the appointment is in the best interests of the child, and will promote effective determination of the issues.

Whilst practitioners and indeed decision makers may have different views about how best to promulgate those principles, one thing is clear – agents conducting child welfare hearings will require to give more in-depth consideration to the future progress of a case than they might otherwise have done. In approaching a child welfare hearing where a report may be called for, there are a few general considerations to bear in mind relating to the conduct of hearings and the information clients may require to understand the function of the reporter:

1. The term “bar report” is now obsolete. The term for a report is now “child welfare report”.
2. The report can be compiled by a social worker, as well as by a solicitor appointed from the usual list. This may be helpful where there has been a high degree of social work involvement with the family concerned.
3. Reporters will now require to undergo compulsory training to remain on the list of suitable persons to undertake reports. This may result in fewer persons being available to prepare reports, which may impact on timescales, particularly in smaller faculties.
4. Calling for a bar report is no longer the default position where issues are complex. Careful consideration requires to be given to whether or not a report is likely to assist the court in making a decision about orders sought at interim stages of a case; otherwise, the court may be more likely than previously to seek to adhere to the usual procedural timetable.
5. The decision maker can provide a very specific remit to a reporter, such as restricting a report to obtaining a child’s views only, or clarifying the content of contact centre notes where contact has been operating but there are concerns about commitment or quality of contact. The court can also now direct that certain documents be made available to the reporter. More detailed identification of the issues in dispute, their significance to the issue which the court requires to determine, and what investigations are necessary (rather than desired by one or both of the parties), will be essential.
6. There is now a proforma checklist which is to be attached to the interlocutor appointing the reporter, which will confirm the nature of the enquiries expected. Consideration of this may assist agents in focusing submissions relating to the appointment of a reporter, and identification of their remit.
7. There are certain matters which the court must specify in an interlocutor appointing the reporter. Many of these requisite stipulations reflect the previous form of interlocutors. The court must now also intimate the identity of the reporter to any local authority to which intimation of the action has been made.
8. It is no longer the case that the pursuer is responsible for payment of the reporter’s fees and outlays in the first instance. The interlocutor recording the appointment must direct that liability is to be borne, in equal shares, by the pursuer, the defender who has lodged a notice of intention to defend, and any minuter who has been granted leave to enter the process; or, by one or more of the parties on cause shown.
9. It is now clear that a reporter can approach the court for further direction and/or to bring to the court’s attention any impediment encountered in discharging their function. The court can then issue further direction as appropriate. It is anticipated that this should enable reporters to highlight at an earlier stage any issues or concerns arising in the course of investigations, meaning that these can be addressed before the next scheduled child welfare hearing.

Amanda Masson, partner, Family, Harper MacLeod LLP 

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