Adversarialism in informal, collaborative, and ‘soft’ inquisitorial settings: lawyer roles in child welfare legal environments

ABSTRACT

This article explores the challenges and benefits of increased legal representation in child welfare hearings, with reference to the Scottish Children’s Hearings System. We look at the role and impact of adversarial behaviours within legal environments intended to follow an informal, collaborative approach. We analyse the views of 66 individuals involved in the Hearings System, including reporters, social workers, panel members and lawyers, collected through four focus groups and 12 interviews held in 2015. We place this analysis in the context of previous research. Our findings identify concern about adversarialism, inter-professional tensions and various challenges associated with burgeoning legal representation. Difficulties stem from disparate professional values and perceived threats to the ethos of hearings. We conclude it is difficult, but possible, to incorporate an adversarial element into such forums. Doing so may help to protect rights and potentially improve decision-making for children and families. The article concludes by considering implications for the practice of lawyers and others.

KEYWORDS:

• Decision-making
• lawyers
• rights
• best interests
• adversarialism
• social work

Acknowledgments

The authors would like to thank all of the participants who took part in focus groups and interviews as part of this study, with particular thanks to the children and young people who shared their experiences with us. The data used in this analysis were originally gathered during a study funded by the Scottish Legal Aid Board. We thank them and all participants for permitting use these data in this paper. Our thanks also to colleagues and reviewers for the many constructive comments that have strengthened this paper.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. The role of Safeguarder is similar to a Guardian ad litem in other jurisdictions.