Overview
The Bill changes the law to improve the court process in contact and residence cases. Contact and residence cases decide the living and visiting arrangements for children. It also covers contact and residence cases of children when parents are no longer together. It also covers changes to aspects of the Children’s Hearings system.
The changes proposed by the Bill include:
- encouraging hearing the views of younger children
- protecting vulnerable witnesses in court cases about children
- recognising parental rights and responsibilities obtained outwith the UK
- regulating child contact centres
Child contact centres provide services for children to have contact with family members and parents they do not live with.
The Bill makes other changes such as setting up registers of child welfare reporters. These are people who can seek the views of the child or undertake other enquires and make reports to the courts.
The Bill also:
- sets up registers of people who can be appointed to safeguard the interests of a child at court
- adds to the list of things the court must consider when making their decisions
- aims to promote contact between looked after children and siblings
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
The Bill aims to comply with the United Nations Convention on the Rights of the Child (UNCRC) in family court cases.
The UNCRC says that adults should think about the best interests of children and young people when making choices that affect them.
This means that adults should:
- think about what’s best for children and young people in their day to day lives when making decisions
- make sure children and young people are protected and cared for
- make sure that groups who protect and care for children and young people are good at what they do
You can find out more in the Policy Memorandum document that explains the Bill.
The Children (Scotland) Bill became an Act on 01 October 2020
Becomes an Act
The Children (Scotland) Bill passed by a vote of 113 for, 0 against and 0 abstentions. The Bill became an Act on 1 October 2020
Introduced
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Financial Resolution
The Presiding Officer has decided under Rule 9.12 of Standing Orders that a financial resolution is required for this Bill.
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Additional information and correspondence
Committees involved in this Bill
Lead committee: Justice Committee
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
The Deputy Convener (Rona Mackay)
Good morning and welcome to the Justice Committee’s 29th meeting in 2019. We have received apologies from Margaret Mitchell.
Agenda item 1 is the committee’s first evidence session in its stage 1 consideration of the Children (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. I welcome the Scottish Government’s bill team to the meeting. We have Simon Stockwell, head of the family law unit; Iain Fitheridge, head of the children’s hearings team; Hannah Frodsham, family law unit; Shona Spence, looked-after children team; and Margaret Main, Jamie Bowman and Victoria Morton, Scottish Government legal directorate. I invite Hannah Frodsham to make brief opening remarks of up to five minutes.
Hannah Frodsham (Scottish Government)
Thank you for inviting us to speak to you today about the Children (Scotland) Bill. I will give a brief overview of the bill and then we will be happy to answer any questions you may have.
At the time, the Children (Scotland) Act 1995 was seen as groundbreaking. However, we have heard concerns from many children, parents and organisations about how part I of the act works in practice. We consulted last year on reviewing part I. As well as the Children (Scotland) Bill, we published a family justice modernisation strategy in September 2019. The strategy aims to improve the operation of family justice and the culture of the courts in family cases. It sets out our on-going work, plans for secondary legislation and improved guidance and areas for further consideration.
The key policy aims of the bill are to ensure that the child’s best interests are at the centre of any contact and residence case, ensure that the views of the child are heard, further compliance with the United Nations Convention on the Rights of the Child, and further protect victims of domestic abuse and their children in family court proceedings.
On ensuring that the child’s best interests are at the centre of contact and residence cases, section 11(7)(a) of the 1995 act provides that:
“the court ... shall regard the welfare of the child concerned as its paramount consideration and shall not make ... any order unless it considers that it would be better for the child that the order be made than that none should be made at all”.
We have tried to ensure that none of the provisions in the bill cuts across that central principle while, at the same time, taking steps to put the child more at the centre.
Section 8 of the bill introduces a register of child welfare reporters. Those are individuals appointed by the court either to obtain the views of the child or to provide a report on the best interests of the child. That will ensure that all child welfare reporters are subject to suitable and consistent qualification and training requirements, so that the best interests of the child are reflected back to the court. Training will cover domestic abuse and coercive control.
Section 16 places a duty on the court to investigate any failure to obey an order under section 11 of the 1995 act. The investigation can be done by a child welfare reporter or by the court itself. Understanding the reasons behind non-compliance with an order could help the court to ensure that the order remains in the child’s best interests.
The second aim of the bill is to ensure that the views of the child are heard. Sections 1 to 3 remove the presumption that a child aged 12 or over is considered mature enough to give their views in a number of circumstances. That includes cases under section 11 of the 1995 act around contact and residence, children’s hearings and adoption and permanence proceedings. The presumption was never intended to restrict children aged under 12 giving their views. However, we have heard that in practice that can sometimes be the case. The intention is for all children who are capable and wish to do so to be able to give their views. Of course, if a child does not wish to give their views, that should be respected. The Scottish Government believes that a child should be able to express their views in a manner that is suitable for them. That may be by completing a form, giving views via an appropriately trained and qualified child welfare reporter or speaking directly to the court.
The third aim of the bill is to further compliance with the UNCRC. The policy memorandum that accompanies the bill provides further information on the relevant UNCRC articles for the bill. In addition, we have published a full children’s rights and wellbeing impact assessment that goes into more detail on that. I will focus on the key areas.
The provisions that I have already mentioned on the best interests and views of the child are relevant to a number of the UNCRC articles, notably articles 3 and 12. Adding two factors to those that the court must consider when making an order under section 11 of the 1995 act is relevant to articles 5, 7 and 18 of the UNCRC. Section 10 aims to strengthen the law in relation to a local authority’s duty to promote contact and personal relations between a looked-after child and their siblings. That is relevant to articles 8, 16 and 20.
The final key aim of the bill is to further protect victims of domestic abuse. The bill looks at two key areas—the stage during a child welfare hearing and the final stage of a case when evidence is led. Section 7 gives the court the power to order a range of measures to assist the parties if attending or participating in the proceedings is likely to cause distress that could be alleviated by the use of such a measure. The measures are similar to existing measures that are available when giving evidence in other civil and criminal cases. Those include screens, live video links and allowing a supporter to be present in a child welfare hearing.
Sections 4 and 5 introduce a new measure into the Vulnerable Witnesses (Scotland) Act 2004 that prohibits a party from personally conducting their case in certain circumstances. The new measure is available in cases under section 11 of the 1995 act or in court proceedings arising out of children’s hearings. If a party is subject to that restriction and is unwilling or unable to appoint a lawyer, one would be appointed by the court from a register of lawyers established by Scottish ministers.
I hope that that brief overview has been helpful. We are happy to answer any questions that the committee has.
The Deputy Convener
Thank you. That was very helpful. You mentioned removing the 12-plus presumption in respect of a child giving their views. Do you think that there is any contradiction between that and retaining the existing presumption that only a child over 12 is mature enough to instruct a solicitor? Although that provision is already in the bill, could it be monitored to see whether it could be changed at some point?
Hannah Frodsham
The Scottish Government’s view is that even children of a very young age are able to give their views in contact and residence cases about who they want to live with or have contact with but that a child would need a certain degree of maturity to be able to decide whether they wished to instruct a lawyer to give their views to the court. Therefore, the presumption of 12 is retained in those circumstances.
The Deputy Convener
That will probably not change, as far as you can see. Children mature at different rates, but do you think that it is better to set a benchmark of 12 for that?
Simon Stockwell (Scottish Government)
That was our view about instructing a lawyer when we were preparing the material. As Hannah Frodsham said, we thought that a child could express views for a court at a very young age, and a variety of methods can be used for that—it does not have to be done by traditional methods or using forms. A child welfare reporter could use other ways to get views. However, instructing a solicitor has to be a more formal process. The solicitor has to be happy that the child understands the instructions that they are giving. We thought that it was right to keep the presumption of 12, given that there is a difference between instructing a solicitor and offering views more generally in a contact or residence case.
James Kelly (Glasgow) (Lab)
The financial memorandum notes that in 90 per cent of cases the decision of the court would be explained by a child welfare reporter as opposed to the court itself. Will you explain the thinking behind that approach?
Simon Stockwell
When we spoke to the judiciary, the court service and legal practitioners, the view was that, although they could see some attractions in the court explaining decisions to the child and the court getting views directly from the child by, for example, the child going to see the sheriff, there was a degree of caution about that. There were a number of reasons for that caution: first, sheriffs’ time is limited; secondly, not all sheriffs would necessarily have the full training to explain decisions to the child; and thirdly, it might be a bit off-putting for the child to go to the court. There are a number of reasons why, although we could see the rationale for saying that the child might want to speak directly to and have direct contact with the sheriff or with the court, we thought that in practice it might be more realistic to expect that most decisions would be relayed to the child by way of a child welfare reporter. In the bill, we are looking to improve the training, qualifications and experience of child welfare reporters. We thought that one of the key functions of child welfare reporters in the future, as well as taking the views of the child in the first place, would be to explain the decisions to the child.
James Kelly
Do you think that sheriffs need more training in how to deal appropriately with children, given the fact that one of your reasons for putting the onus on the child welfare reporters to take the lead is that you feel that sheriffs might not be able to handle it appropriately?
Simon Stockwell
I need to be careful not to tread too much on the judiciary’s toes when it comes to judicial training; otherwise I will be told off by the Judicial Institute for Scotland. Judicial training is not directly a matter for the Government; it is for the Judicial Institute. We speak to the Judicial Institute about training requirements.
Sheriffs are generalists, on the whole. In the central belt, there are sheriffs who do family cases most of the time, but most sheriffs are doing a quite wide variety of cases—criminal cases, other civil cases, family cases—and we have to accept that when you have a generalist system, which we probably need, given Scotland’s geography, sheriffs cannot be trained in, and be experts in, everything. Speaking and listening to children is quite a skill. It is something that child welfare reporters are quite good at and we want to encourage them to be better at it through more training and laying down requirements for qualifications and experience. We recognise that we have a system of generalist courts that often deal with family cases, but we have child welfare reporters who are specialising now and we hope that they will specialise even more in the future. The bill reflects that reality.
The Deputy Convener
What is your view on integrated domestic abuse courts hearing both criminal and family cases? Would you support or consider that?
Simon Stockwell
We have considered it. Around the time that the bill was introduced, we published some research that looks at some detail of how such courts operate in other jurisdictions. We can send the committee a link to that research if that would be helpful. We have some concerns about how it might work in practice. One of the concerns is that if entry to the court depends on there being a criminal case, what happens if the person who is accused is found not guilty or the case is not proven? Does it then fall out of the court and back into the ordinary courts? Another concern is about whether it would operate across all of Scotland or just in some parts of Scotland. There might also be knock-on implications for the scheduling of other cases. We would need to think about which lawyers would be doing such work. Some practitioners are skilled in family law and other practitioners are skilled in criminal law. There was quite a lot to think through in respect of integrated domestic abuse courts when we published the research. We will look further at the issue, but we felt that we were not ready to do what you suggest in the bill, because there are a lot of issues to think through before we introduce it.
The Deputy Convener
It would be helpful if you could send the link to that research.
Simon Stockwell
We will certainly do that.
John Finnie (Highlands and Islands) (Green)
I readily accept that Governments consult on a wide range of measures that do not necessarily make their way into a bill. One area that was consulted on was child support workers, as a mechanism to support children through the system, as the title suggests. Can you explain the rationale for the Scottish Government not including that in the bill? Are there any proposals to legislate on that in future?
Hannah Frodsham
We appreciate that child support workers can play an important role in ensuring that children can give their views, but there are concerns that a child may end up with a number of child support workers for different situations—for example, for children’s hearings and criminal cases—and that may not be in the child’s best interest. Also, many children already have child support workers. They are available in some areas of the country, such as West Lothian, Aberdeen and Glasgow, and Scottish Women’s Aid offers them.
That is why we have not included child support workers in the bill. However, in the family justice modernisation strategy, we have said that we will consider the matter further, because we need to ensure that there is a joined-up approach for the different sorts of advocacy and support workers.
John Finnie
I understand that there might be a specific role of child support worker, although you are right to identify that a range of people provide support across a range of circumstances. Are there any plans in the strategy to have a template or post specification for people who would have the capability to provide support, including in court?
11:15Simon Stockwell
You are right that, as part of the work on the family justice modernisation strategy, we need to give thought to what child support workers are for and what qualifications, experience and training they need. One of the issues that we have been wrestling with for the past 10 years, since I started this job, is the experience, training and qualifications of child welfare reporters. If we were to make provision in legislation on child support workers, we would also need to think about the training that they require to carry out their role and what the role would be. I certainly have sympathy with what I think is Mr Finnie’s suggestion that we would need to think about a holistic approach in which child support workers work in a variety of situations and whether it would be possible to have one worker taking a child through a variety of processes. That is perhaps easier said than done, but we would look at what the role of child support workers would be if we were to introduce them in future and how it could be a joined-up service rather than a bitty one.
Iain Fitheridge (Scottish Government)
We will be introducing advocacy workers in the children’s hearings system. I think that that is the type of person that Mr Finnie is referring to. Those workers will start next spring. They will help young people through the process, prepare them and help them to understand it. They will also be another person who can express a view for a child. It is about finding out what the needs of the child are and supporting them through the whole process of the hearings. That would go into the court side, if the hearing extended into a proof or some other stage. It will be helpful for us to evaluate how that goes and there might be an opportunity to extend that approach if it works.
John Finnie
That is interesting. You are right that an evaluation is important, because there is no point in just training someone to have a skill—they need to be deploying that skill. We are trying to avoid people going to court rather than having a skill that is required in court. However, I am sure that we will follow that work with great interest.
The Deputy Convener
Why does section 12 not include a specific statutory requirement relating to parental alienation?
Simon Stockwell
The term “parental alienation” is much disputed among practitioners, voluntary sector organisations and others. It attracts considerable attention. Scottish Women’s Aid would argue that some of the research around it is not right, whereas shared parenting organisations argue that it is appropriate. The Scottish Government generally supports both parents being involved in a child’s life. We recognise that, in some cases, that is not possible.
The term “parental alienation” would probably attract a considerable amount of adverse comment, so we did not think it right to include it in the bill. We could include something about one parent turning a child against the other parent but, in practice, if that was happening, we would expect the court to pick that up and cover it. We thought that including the term “parental alienation” would perhaps raise more concerns than it would answer. More generally, if there is any evidence of that type of behaviour happening, the court would have to look at what is in the best interests of the child and take a decision anyway.
The Deputy Convener
It is quite an extreme phrase, but there are issues if the child does not want contact with a parent. We need to look at that seriously, because there have been issues with that in the past. It might come down to training or just understanding the needs of the child, but I take your point.
Shona Robison (Dundee City East) (SNP)
How does the Government envisage that the statutory regulation of the child welfare reporters and curators will work in practice? For example, how does the Government propose to set fee rates for those officials, whether they are reporters or curators?
Simon Stockwell
This has been a long road for us, because we have been looking at child welfare reporters ever since we published research on the issue a number of years ago and then set up a working group. There is general consensus that there needs to be regulation of child welfare reporters. We would do that by secondary legislation and would consult widely as to exactly what needed to be laid down in that secondary legislation. The Cabinet Secretary for Justice is keen that we do not just think about lawyers acting as child welfare reporters but that we consider whether other professionals, such as social workers, can act as child welfare reporters.
We have existing models to follow for fee rates. We have the work that is currently done by the Scottish Legal Aid Board on how much it expects to pay for child welfare reports, and we have a model on the children’s hearings side, for which Iain Fitheridge is responsible. We will look at existing models and then seek views.
Our aim is to have focused reports rather than lengthy ones, so I do not think that we will pay by the page or something like that, because there would be a risk that people might be encouraged to write 250-page reports when 25 pages would do. It will be based on things such as how much work has been put in and what travel has been required. We will need to recognise that being a child welfare reporter is undeniably a difficult and skilled job. It involves making a recommendation to the sheriff on something that matters deeply to the child and the parents. It is not a straightforward matter by any stretch of the imagination. The sheriff courts rely on child welfare reporters and usually follow their recommendations, so the fee rates will have to be set at an appropriate level to attract good-quality people to do the work.
Shona Robison
Section 13 requires that the courts appoint curators only where necessary and that the courts should give reasons for that appointment and reassess every six months. The likely result of that is a reduction in the number of curator appointments made in family cases. Is that potentially a problem?
Simon Stockwell
I do not think so. The aim is to ensure that the curator is needed and is working to protect the child’s interests. We want to make certain that, when somebody is appointed to do that work, the child actually needs the person and it is helpful. Where a court has decided that the child needs a curator, possibly because the child is quite young, we need to check that the child continues to need the curator and that the curator is continuing to perform a useful and valuable role. The provisions are there to act as a check to make certain that the role of the curator is still required in particular cases.
Liam McArthur (Orkney Islands) (LD)
To follow up on that, it has been suggested to us that the threshold for the appointment of a curator is based on necessity rather than the child’s best interests. Would it not be more appropriate to set the bar at best interests, which would probably be more consistent with the general approach in the bill?
Simon Stockwell
We will have a look at any particular points that are made in written or oral evidence about whether we have the wording right. At the moment, the provision talks about protecting the child’s interests, which I think would cover the point that you are raising, but we will look at any detailed points and see whether we have got it right.
Liam McArthur
It has been suggested to us that, currently, the responsibility of child welfare reporters is to the court rather than the child. I know that they have a broader range of responsibilities but, where their work touches on the child, would it not be more appropriate for their primary responsibility to be to the child rather than the court?
Simon Stockwell
Ultimately, the court has to have the welfare of the child as its paramount consideration, so we get there, but perhaps by a more indirect route. If the court decides to appoint a child welfare reporter, it cannot abdicate its responsibility to decide the case with the welfare of the child as its paramount consideration. Child welfare reporters know when they are appointed that their primary responsibility is to give a report to the court that takes account of the key point that the welfare of the child is paramount. That aspect probably works all right at the moment, in that the legislation is clear that the welfare of the child has to be paramount. The court knows that, and the child welfare reporter knows it when appointed.
Liam McArthur
In the absence of a specific reference to an advocate, unlike in the children’s hearings system, if the child welfare reporter’s primary responsibility was to the child, that would address the concern.
Simon Stockwell
That already is their primary responsibility to an extent because, as I say, the welfare of the child is paramount. Certainly the child welfare reporter reports to the court, but their primary duty is not to the parents or to any of the other parties to the case; it is to provide a report on what is best for the child.
Hannah Frodsham
The child welfare reporter can already be appointed specifically to get the views of the child rather than to look at the best interests of the child. The reason why a child welfare reporter is appointed depends on what is decided in each case.
Liam McArthur
I am sure that we will explore that with future panels.
James Kelly
I am interested in the approach set out in sections 4 to 6 in relation to cross-examination. In comparison to the approach taken in the children’s hearings system, it would appear that there are greater restrictions on cross-examination in that system than in the approach that is set out in the bill. What is your thinking on that?
Hannah Frodsham
We aim to ensure that witnesses are appropriately protected in both systems. Children’s hearings proceedings usually focus on the behaviour of the child or the parent and those are set out in the statement of grounds, which is specific and detailed. The protective measures that are open to witnesses are tailored depending on the nature of the grounds. Family cases operate differently where the subject matter of the case does not inform whether prohibition applies, so a different approach is required. In cases under section 11 of the 1995 act, criminal convictions will not be drawn to the attention of the court by virtue of the subject matter of the proceedings.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
There is an argument for a children’s hearings-type system for all court matters affecting children, but I can understand why that might not be within the scope of the bill. Was any consideration given to the overlap between the systems that means that when serious issues are raised by a civil case, there is some sort of mechanism to refer the case to statutory bodies or to the children’s hearings system?
Shona Spence (Scottish Government)
There is already a provision to do that in the 1995 act or the Children’s Hearings (Scotland) Act 2011.
Margaret Main (Scottish Government)
It is in the 2011 act.
Shona Spence
The 2011 act already has a provision that the court can refer, in any civil matter, to a children’s hearing if there is concern about the welfare of the child.
Fulton MacGregor
I am aware of that, but I am talking about more routine cases. Perhaps this is a better way of explaining it. If children are not having their voices heard through the court system, their voices could be heard through a hearings system or the type of environment that the hearings system produces. Was any consideration given to widening that provision as opposed to its being just for child protection or other serious concerns?
Shona Spence
There are a number of reasons, from lack of care to abuse and so on, why a child can be referred to the reporter. The reporter’s job will be to assess whether there is a need for compulsion in relation to those children.
The reporter service will already receive a number of referrals in those circumstances and then it will be for the reporter to determine whether there is evidence that a ground for referral applies, and thereafter whether the child needs or may need compulsory measures that justify the intervention of a children’s hearing. A children’s hearing is an extra intervention in the family’s life. The process exists, but I am not sure whether you mean that the family court environment should be different.
Simon Stockwell
One thing that we briefly considered—it has been raised occasionally with us—is whether we should take these private contact and residence cases out of the courts and set up a family tribunal instead. We would have some concerns about doing that.
11:30First, a number of current cases probably raise more than one issue. They might raise divorce, financial provision, possibly an interdict, or contact, so you would be splitting cases up, which might not be in people’s best interests. Secondly, although a tribunal might sound attractive, we are not certain that it would resolve matters. We might end up with the same sorts of issues that we have now with the court. The general view was that we should stick to the existing system but change it and try to improve it rather than do something more radical.
We are aware of the example of England and Wales, which have family courts with family judges and a system that has a higher degree of specialisation, but we have recognised that it is harder to do that in Scotland, given our geography.
Liam Kerr (North East Scotland) (Con)
I will stick with James Kelly’s line.
In her opening comments, Hannah Frodsham talked about sections 4 to 7 and how one of the practical impacts would be to prohibit certain parties from personal conduct of their case. Instead, they would have a lawyer who was appointed by the court from a panel appointed by the Scottish Government. I think that the Scottish Government consulted on a different model under which automatic legal aid would be provided for litigants who are subject to a ban on personal conduct. What was the thinking underlying the change in approach? Who would pay for the automatically appointed lawyer? Is there any research on the impact that the measure could have on the profession?
Hannah Frodsham
As you pointed out, the bill takes the power to establish a register of lawyers who would be appointed. We expect that those lawyers would be appointed in only a very few circumstances: first, because such cases generally do not reach the stage of getting to proof; and, secondly, because by the time they get to that stage, a party will often already be represented. Also, a party might be given the opportunity either to seek legal aid funding for a lawyer if they are eligible or to pay for one privately. The list of lawyers would be there for when parties are not eligible or are otherwise unable to appoint a lawyer.
We did not put it down as a legal aid system, because a party might not meet the financial or merits test for legal aid and there might be cases in which a party has tried to obtain a legal aid lawyer in their local area but has not been successful. A party could use that as a delaying tactic in the court proceedings. That is why we propose to introduce the register of lawyers. As for who would pay, we assume that Scottish ministers would fund the lawyers.
Liam Kerr
I understand. Thank you for the clear answer.
Sticking with the same area, in contrast to the position of vulnerable witnesses in sections 4 to 6 of the bill, in the context of section 7 of the bill no litigant is deemed to be vulnerable, as such. Instead, there are several different elements to the test of whether someone might be defined as vulnerable. What is the thinking behind the difference in approach between sections 4 to 6 and section 7?
Hannah Frodsham
Section 7 is to do with vulnerable parties, mainly in child welfare hearings. We have heard that, in some circumstances, vulnerable parties attending child welfare hearings have not had access to special measures such as live television links, television screens or supporters—measures that are available when they are witnesses in civil or criminal cases. Section 7 is aimed specifically at ensuring that special measures would be available, mainly in child welfare hearings but also in other cases where there is a vulnerable party as opposed to a witness.
Liam Kerr
Forgive me, but I want to press the question in case I am not quite understanding this. Hannah Frodsham might have answered this already. In sections 4 to 6 of the bill, there is deemed vulnerability—someone objectively does or does not have that characteristic—whereas under section 7, one almost has to satisfy certain tests to avail oneself of vulnerable status. A different approach has been taken. I am trying to understand the underlying reason for that difference.
Jamie Bowman (Scottish Government)
Maybe I can assist. As Hannah Frodsham pointed out, sections 4 to 6 deal with situations where the vulnerable person is acting in the capacity of a witness and, as a witness, there is scope for them to have direct interaction with the other parties to the case. Section 7 concerns situations where the vulnerable person is acting in their capacity as a party litigant. In those situations, there is less scope for them to have engagement with the other parties as directly as they might when they are being cross-examined, for instance. That is the difference in the context, which I think underpins the difference in the approach taken.
As you say, there are no deeming provisions in section 7. The deeming provisions in sections 4 to 6 strike at situations in which a victim of an offence is being cross-examined as a witness by the person who committed the offence. The threshold that is set in section 7 is quite low and gives the court relatively broad discretion to authorise such special measures—supporters or television links, for example—as it considers would be appropriate to assist the party in their participation and reduce their distress.
It is possible that a party might have the benefit of both. They might be protected in their capacity as a party by the use of a screen, for example, and also in their capacity as a witness by the imposition of the prohibition on personal representation.
Jenny Gilruth (Mid Fife and Glenrothes) (SNP)
If someone failed to follow a court order, section 16 would impose a new duty on the court to investigate why the order had not been complied with. How often do you think that would be carried out by a child welfare reporter as opposed to by the court itself?
Simon Stockwell
I suspect that that is quite a difficult question to answer. Some voluntary sector organisations that support people who are involved in this sort of case told us that the way in which the courts dealt with the enforcement of court orders was fairly patchy, that there were not necessarily any consistent procedures laid down, and that, as a result, the court possibly was not doing quite as well as we might hope. We put the provisions in to clarify that if the court thinks that there is an issue about how a contact order is being complied with, or not being complied with, it should investigate the reasons for any non-compliance.
Will the courts ask for child welfare reports? It probably depends on how complicated any non-compliance is. In some instances, the non-compliance might have a fairly simple reason. The child might be ill or something like that, or there might have been a misunderstanding about timing. If the reason is relatively simple and straightforward, the court could probably deal with it by itself without appointing a child welfare reporter. If, on the other hand, the explanation that is given is rather more complicated, a child welfare reporter might be needed. I suspect that the answer depends on how complicated the situation that the court faces is, whether the court can deal with it fairly quickly, or whether it will need more information or advice, in which case it might have to appoint a child welfare reporter.
Jenny Gilruth
It is still ultimately in the gift of the court to choose to appoint that person, so if that still happens across the board, there is potential for patchy provision. Because there is no compulsion, the court might choose not to appoint a child welfare reporter when it should have done.
Simon Stockwell
There is a balance for Government to strike here. People have raised points about procedures in family courts across Scotland varying, saying that what happens in one sheriff court might not happen in others. Equally, cases inevitably vary and we cannot lay down in primary legislation provisions that are too prescriptive because we would be cutting across judicial independence and the court being able to reach a view on an individual case depending on the facts and circumstances. There is a balance to be struck in trying to ensure consistency across Scotland while reflecting the fact that cases simply vary.
Liam McArthur
I understand that Children 1st, which is obviously very supportive of the bill generally, has raised a concern about information that is gathered as part of the therapeutic work that it does with children who might have experienced a range of abuse over a period of time and which forms the basis of case notes. It is concerned about the fact that there have been occasions—even when Children 1st has sought to register such information with the court in a confidential envelope—on which the court has taken a decision to share the information; sometimes it has even been shared with others who might have a record of abuse. Is there anything in the bill that would give Children 1st some reassurance on that issue?
Simon Stockwell
We consulted on that specific issue and have had a number of meetings about it. Before the main consultation, we also issued a discussion paper on it. Most people who responded to the consultation paper and looked at the earlier discussion paper generally concluded that the existing provisions in the area that is known as commission and diligence work, and they were very nervous about us changing provisions in that area.
When we looked at the issue in more detail, one of our concerns about changing the law in this area was that we were not certain that we could do very much, because we did not think that we could provide that the welfare of the child would be paramount in the context of the disclosure of the documents. There might be a number of people with an interest in the documents, including parents, other children and the service provider, so it is difficult to say that, in this instance, the welfare of the child has to be paramount. We thought that we would have to simply provide that the court would have to take account of the varying interests of the parties involved and reach a view as to whether the documents should be disclosed and, in essence, we think that that is what the law is now. We did not see an easy way to amend the law in this area.
We have said that we will think about issuing some guidance in this area in an effort to provide clarity and to meet the particular concerns that have been expressed by Children 1st. We will continue to discuss the matter with Children 1st, but the majority opinion in the consultation was against a change in the law.
Liam McArthur
I am not sure whether you have seen the work that Dr Barnes Macfarlane has carried out. She has expressed concerns about the extent to which, as things currently stand, the rights of unmarried fathers in such situations have kept pace with where we are on human rights, but the bill does not propose any changes in that regard. What was the basis for that decision?
Simon Stockwell
The question of unmarried fathers’ rights has been around since at least 1992—I think that this is in Lesley-Anne Barnes Macfarlane’s report—when the Scottish Law Commission recommended that all fathers should have parental responsibilities and rights. The law was changed in 2006 so that unmarried fathers can get parental responsibilities and rights if they jointly register the birth of a child. The statistics—which we can send on if that would be helpful—show that about 96 per cent of fathers now get parental responsibilities and rights, either by being married to the mother or by jointly registering the birth. We thought about whether we should extend parental responsibilities and rights to all fathers and decided against it.
I think that Lesley-Anne Barnes Macfarlane’s report discusses whether there are fathers to whom we might not want to give parental responsibilities and rights. Are there concerns about abuse and violence? Why is the mother not jointly registering the birth with the father? Does the mother have some concerns about the father? In the end, we came to a balance of rights and thought it best for us to make no changes to the current provision, given that it provides most fathers with parental responsibilities and rights and probably provides some protection for women in certain situations.
11:45Liam McArthur
It would certainly be helpful to have the figures that you referred to.
Earlier this morning, the point was made to us that simply registering the fact that an individual was the father of a child would not necessarily imply responsibilities and rights where there were concerns about what the implications of those responsibilities and rights might be, either for the child or children or, indeed, for a current or former partner. A distinction was drawn between those two aspects and, on the face of it, it does not seem unreasonable for the child to at least know that X was their father; in a sense, it would appear to be in their interests to know that. Whether the child would choose to have contact with them or whether the court would assume that it would be in the child’s interest to prescribe contact are other matters entirely.
I am curious about why you took the decision that you took. Was it simply because, at the moment, 96 per cent of fathers are covered, through marriage or joint registration, and it is assumed that there are other factors at play in relation to the remaining 4 per cent and you do not want to interfere with that?
Simon Stockwell
Each year, I go to the annual conference of the Association of Registrars of Scotland, a group of people who have to deal with challenging issues face to face and who often give Government a hard time when we appear before them.
I have discussed with registrars whether there should be something like compulsory birth registration, so that when somebody came in to register a birth, they would have to disclose who the father was, and registrars have told me that they think that that would be quite challenging and difficult for them; frankly, they have sometimes put it in more colourful language, which I will not repeat in front of the committee. They have pointed out that, in some cases, the mother might not know and, in other cases, there might have been violence and the mother might be reluctant to put the father on the birth certificate, even if that does not give him parental responsibilities and rights; she might be concerned about those sorts of issues.
Registrars have asked what they can do if the informant simply gives wrong information. It might be quite hard to challenge the informant, because the registrar would not know. We have thought about that sort of issue, but in practical terms—I think that the registrars would say this—what you are proposing might be difficult to achieve.
Liam McArthur
That is helpful. I am sure that the registrars will be listening in attentively and will avail us of their views in due course.
Currently, we are left in a situation in which court proceedings are the only option for a father who is being denied what he sees as his right to be registered as the father of a child. That seems to be almost incentivising a point of conflict in relation to at least registering the fact that an individual is the father of a child without applying responsibilities and rights.
Simon Stockwell
There is a balance of rights to be considered here. We could make provision that we could try to enforce so that all fathers are named on birth certificates. In many cases, that would provide a benefit to those fathers, but there might be a downside for the mother in certain cases, particularly depending on the nature of the birth and the nature of her relationship with the father.
I think that we have reached a balance of rights here. In practice, the sole birth registration rate is now only about 4 per cent. We have provided information, which I think that we will look to update, about what responsibilities and rights a father gets through joint birth registration. The rate of sole birth registration has fallen in recent years—statistics show that it has gone down from about 6 per cent to 4 per cent.
I know that registrars provide information to people when they register a birth and talk them through what the issues are. In practical terms, I think that we have a reasonable system of birth registration that has worked fairly well, by and large. If we changed it, there might be concerns about adverse impacts on the rights of some people.
Liam McArthur
We will brace ourselves for the registrars’ submission and get ready to redact some of the more colourful language.
Simon Stockwell
I am sure that they will be polite to you, Mr McArthur.
Liam McArthur
The bill does not include a requirement on parents to at least attend information sessions about the opportunity for mediation. It would be helpful if you could set out why the Government has chosen not to put that in the bill.
Simon Stockwell
Although there is nothing in the bill on mediation, we certainly recognise the value of mediation in a number of family cases. There is financial support for mediation, we regularly refer people to mediation and we are looking to improve our guidance and signposting to mediation as part of the family justice modernisation strategy. We are not ignoring mediation.
When it came to putting provisions on the face of the bill, we decided not to for a number of reasons. First, there is the issue of domestic abuse. Scottish Women’s Aid and others will say that there should never be mediation when there has been domestic abuse. An attempt could be made to put in provisions—
Liam McArthur
I entirely understand the rationale behind that, but we are talking about making information about mediation available rather than having a requirement or a presumption in favour of mediation as a first course of action.
Simon Stockwell
I think that we assumed, having looked at the English model, that it would probably be necessary to have some exemptions from getting information about mediation, one of which would be to do with domestic abuse. I suppose that we could have a provision that said that everybody had to go to an information session, but—Scottish Women’s Aid could probably say more about this than I can—I suspect that some victims of domestic abuse might object even to going to an information session about mediation or might see it as a waste of time, on the basis that they do not believe that the issues that they have with the other party could be resolved by mediation. There would be issues around domestic abuse, even if we were talking only about an information session.
It would also be necessary to consider whether there was a need for any other exemptions. We have looked at the provision that is in place south of the border, and it is evident that there might need to be exemptions for people who have tried mediation recently or for situations in which there is no mediation service available in the local area, no information is available or there is an emergency. There might need to be a number of exemptions. In our consultation, we outlined the position south of the border and talked about some of the exemptions that might be needed.
I would like to make a final point about dispute resolution outside of court. In family cases, it is not just about mediation. Mediation clearly plays a valuable role in family cases and is the most commonly used form of dispute resolution outside of court, but we know that collaborative law is used in some cases and that family group conferencing might be used in Edinburgh. Often, a couple will be able to resolve their dispute outside of court. Therefore, it is not just about mediation. There are other forms of dispute resolution, which is another reason for providing information and guidance rather than putting something firm on the face of the bill.
Liam McArthur
I appreciate that a reasonableness test would be required. Where no service is available, it would clearly be unreasonable to expect individuals to go down that route. However, broadening the definition to include alternative dispute resolution mechanisms beyond mediation would not appear unreasonable and would send a stronger signal that at least availing oneself of the information about the alternatives is in everybody’s interests. Even if someone were to reject it at the first point of asking, at least a message would have been conveyed that going through the courts is not necessarily in their or anybody else’s interests, albeit that people absolutely retain the right to opt to go down that path if they so wish.
Simon Stockwell
I agree that in many cases court is not the place to go, and that is one of the reasons why we are looking to improve guidance in this area. I often tell people over the phone—and personal friends, for that matter—not to go to court unless they have to, but to try to resolve the issue by mediation or another form of dispute resolution, or just by talking to the other party. We see that as something that would work better by way of providing better guidance and information rather than by putting provisions on the face of the bill.
Liam McArthur
You have referred two or three times to drawing parallels with provisions that are in place south of the border. Has that thrown up a series of unintended consequences or inevitable circumstances that you wish to avoid, with the result that you have decided not to go down that route in the bill?
Simon Stockwell
When mediation, information and assessment meetings were introduced south of the border, legal aid was largely removed from family cases. It can be slightly difficult to look closely at the English provisions because, in England, legal aid was taken away in a way that it was not in Scotland.
Generally, the message from south of the border is that MIAMs have not been a great success. The amount of mediation has not seemed to increase, and there have had to be a number of exemptions from the requirement to go to an information session. When we looked at the provisions south of the border, to be frank, that seemed to be a model not to follow.
Fulton MacGregor
I want to ask a very brief question about delay in court cases. What effect do you think that the new duty on the court in section 21 might have?
Simon Stockwell
That is an area that has been discussed since 1992. At the time, the Scottish Law Commission noted that a provision on delay might be included in what became the Children (Scotland) Act 1995, but the commission concluded that it would be better to include that in court rules.
In practice, we are 30 years on and we still do not have sufficient provisions on delay. The provision that we have put into the bill is at a very high level. It sends a clear signal, following some court cases that have undeniably taken far too long, such as a particular Supreme Court case, that the court must have regard to the need to avoid delay, and that delay cannot be in the best interests of the child.
The provision on delay also sets a framework for court rules to be put in place. The family law committee of the Scottish Civil Justice Council is currently looking at the court rules, which are very much about case management, how to manage family cases properly in the first place, what sorts of issues need to be explored at an early stage in the case so that the court knows what areas are likely to come up and how those can best be managed. The provision on delay in the bill sets a high-level framework. We hope that, beneath that, some court rules will come into place on how to manage cases and avoid drift and delay.
The Deputy Convener
Thank you. That completes our questions. Thank you all very much for attending. It has been a very useful session.
11:58 Meeting suspended.12:00 On resuming—
26 November 2019
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25 February 2020
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Delegated Powers and Law Reform committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 21 November 2019
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate on the Bill transcript
The Deputy Presiding Officer (Lewis Macdonald)
The next item of business is a stage 1 debate on motion S5M-21834, in the name of Ash Denham, on the Children (Scotland) Bill.
15:05The Minister for Community Safety (Ash Denham)
Presiding Officer, thank you for giving me the opportunity to address the Parliament on the general principles of the Children (Scotland) Bill. I am delighted to open the debate.
I am grateful to the Justice Committee for its careful scrutiny of the bill, and I welcome its recommendation that the Parliament agree to the bill’s general principles. I am also grateful to the organisations and individuals who gave evidence to the committee.
Before I talk about the bill, I want to mention the impact of the Covid-19 crisis on family relationships. Many members will have received correspondence from worried grandparents, parents and other family members at this time and will appreciate that it can be extremely difficult for parents to work out what is in the best interests of their children. I am grateful to the Lord President for issuing guidance on compliance. In addition, we have published information on the Parent Club website, which is aimed at helping parents to make informed decisions. The most important message is that anyone who is concerned about risk of harm to their child at any time should contact their local authority social work department or the police on 101—or the police on 999 if they think that the child is in immediate danger.
Let me move on to the Children (Scotland) Bill. Like many members, I am sure, I receive a lot of correspondence about family court proceedings, and I appreciate that, for everyone who is involved in such proceedings, it can be a difficult and stressful time. That is especially true for the child who is at the heart of the case.
Civil law does not often take centre stage; it is often overshadowed. However, it can and does have profound implications for people who are involved with it, especially in the family courts.
The bill follows a consultation on the Scottish Government’s 2018 review of the Children (Scotland) Act 1995, which is the key legislation on contact, residence and parental responsibilities and rights. The consultation specifically sought the views of children and young people, from whom we received 300 responses to the questionnaire. The views of those children and young people guided the development of the bill.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Does the minister recognise that, in that consultation, children overwhelmingly supported the right of children to have meaningful relationships with grandparents and other ancestors? Does she acknowledge that the French have passed a law that guarantees children the right to sustain a relationship with an ancestor if it is appropriate for them to do so? Does she recognise the groundswell of opinion in Scotland among people, not least my constituents Gordon and Shonia-Maree Mason, who are estranged from their grandson for reasons beyond their control and have not seen him since he was an infant, who would very much like a similar right to be afforded to children in Scotland?
Ash Denham
I am grateful to the member for raising that issue. He will recall that I met him and his constituents so that I could hear from them at first hand about the matter. He highlights the important role that grandparents play in children’s lives. For that reason, in our “Family Justice Modernisation Strategy” I committed to further promotion of the charter for grandchildren.
I have considered the issue very carefully, but I am of the view that an automatic right of contact is not appropriate for a number of key reasons. An automatic right for children to have contact with grandparents would have substantially the same implications as an automatic right for grandparents to have contact with their grandchildren. Such an automatic right would cut across the general provisions of the bill, in which the most important thing is the interests of the child. For that reason, I do not think that it is appropriate to include that provision in the bill. However, one of the factors in the checklist that is included in the bill is that the court must take into account the relationships that are important to the child, and it is envisaged that the relationship with grandparents will be one of those. I hope that the member is reassured by that.
The main aims of the bill are to ensure that the interests of children are at the very heart of family justice modernisation and to ensure that the views of the child are heard. In particular, the bill’s provisions represent a step forward in ensuring that the child’s best interests are at the centre of all contact and residence cases, in ensuring that the views of the child are heard, in further protecting victims of domestic abuse and their children in family court proceedings, in ensuring further compliance with the United Nations Convention on the Rights of the Child, and in ensuring that relationships between brothers and sisters are promoted for children in care.
Neil Findlay (Lothian) (Lab)
The minister mentions brothers and sisters. The Justice Committee’s recommendations on the bill include the ask that the word “practicable” be removed from section 10, which is entitled “Promotion of contact between looked after children and siblings”. During oral evidence, CELCIS agreed that the word should be removed and that it was very important, in order to overcome systematic failure, to maintain and prioritise the relationships between brothers and sisters in care. So far, the Government has been resistant to that move. I urge the minister to take up the suggestion, so will she reconsider?
Ash Denham
The relationship between siblings is very important, and we really want the duties to be implemented in practice. We will continue to work with local authorities in order to understand whether there are any barriers to doing that.
I take Neil Findlay’s point about the inclusion of the word “practicable”. It is included specifically to give local authorities flexibility when required, because—as, I am sure, he will accept—there are a number of instances when such contact would not be practical in order to carry out the relationship. It might be that the sibling has not been in care, and we cannot force someone to have a relationship with someone else if they do not want to have one. That is why the word has been included, and it is intended to be used only on a very limited number of occasions.
I have responded to the recommendations that were made by the Justice Committee in its stage 1 report. The bill is only one part of the work on reforming the family courts. Some work is better done through secondary legislation or guidance, and that is set out in our “Family Justice Modernisation Strategy”, which was published alongside the bill in September last year.
I would like to mention four areas, in particular. The first relates to ensuring that children are able to participate in decisions that affect them. I am aware of concerns among stakeholders that the views of younger children are not being heard in family court cases, and I welcome the recently published research by Dr Fiona Morrison and Professor Kay Tisdall on children’s participation in family actions. The bill removes the legal presumption that a child aged 12 or over is mature enough to give their views in various situations. I believe that the majority of children are able to express their views, but there will be circumstances in which some children—they might be extremely young or have severe learning difficulties—will not be able to form a view. The bill requires options in those exceptional circumstances but, again, we expect those exceptions to be used infrequently.
I appreciate the concerns among stakeholders and members of the Justice Committee that the bill should be strengthened to make it clear that the starting point should be that all children are capable of forming a view. Of course, if a child does not want to give their views, I do not expect them to be made to give them.
Jamie Greene (West Scotland) (Con)
I apologise—I am not on the Justice Committee, so I have not followed the bill all the way through. Will the minister explain how, if all children are treated equally in a different way to the current legislation, she will address the issue of coercion, especially of younger children who may feel under pressure from one parent to have a particular view? What safeguards are there to ensure that all children can express their views freely and without undue pressure?
Ash Denham
That is part of what the bill will do. It will attempt to give all children an opportunity to express their views in a way that is suitable to them. In doing so, we will regulate child welfare reporters. That is a key way that a child might be supported and be able to give their views. We will also set up a system of training for child welfare reporters. We will expect them to be trained in issues such as coercive control, spotting unhealthy family dynamics and so on, so that those professionals are able to support the children to give their views without any pressure of the type that Jamie Greene mentions.
I appreciate the concerns that stakeholders raised about strengthening the bill in that area, and I propose to lodge an amendment at stage 2 to strengthen the provisions in sections 1 to 3 to avoid, as far as possible, the risk of the capacity exemption being used excessively by decision makers. I also propose to lodge an amendment at stage 2 to clarify that, when the court investigates the reasons for non-compliance with a court order, it should seek the views of the child concerned. The bill states that the decision maker must
“give the child an opportunity to express the child’s views in a manner suitable to the child”.
One of the aspects of the guidance for parties and courts that I have committed to in our “Family Justice Modernisation Strategy” is publication of information on the ways in which a child can give their views to the court. I have also committed to producing a public paper in advance of stage 3 that will outline the ways in which children can be supported to give their views to decision makers. It is important that, when a child has given their views to the court, the reasons for the court’s decision are explained to the child in a clear and impartial way. For that reason, the bill ensures that the outcomes and the reasons for them are explained to the child. We would not expect all decisions to be explained, as many would be procedural in nature, but we would expect the important decisions to be explained.
I understand that a number of stakeholders have suggested that the bill should include provisions around child support workers. That issue was also raised by the Justice Committee in its stage 1 report. Child support workers could play a useful role in supporting children to give their views when they are, say, completing a form or when they are speaking to a child welfare reporter or a sheriff. However, we need to ensure that minimum standards of training and experience are set out in legislation to ensure consistency of approach and that the best interests of the child are maintained. Further work is needed on that issue, to ensure a joined-up approach so that any provisions work with existing support and advocacy systems and with other proposed Scottish Government work.
When the bill was introduced, I published the “Family Justice Modernisation Strategy”, which sets out work for secondary legislation on guidance and work that requires further consideration. One action in the strategy is to further consider the role of all support workers. The paper outlines the ways in which children can be supported to give their views to decision makers, which I referred to earlier in my remarks, and will look further at child support workers.
I will briefly focus on the regulation of child welfare reporters. I am aware that that issue was also raised in the stage 1 evidence and in the Justice Committee’s report. I recognise that child welfare reporters can play an important role in ensuring that the best interests of the child are reported to the court. The bill will establish a register of child welfare reporters, and it will give them two new functions: explaining decisions and investigating reasons for non-compliance with an order. The full details of training requirements will be laid out in secondary legislation, and we will consult fully on those in due course. I am aware that children and young people who have spoken to a child welfare reporter will have views on their training and experience, so I will ensure that children and young people are fully involved in the consultation process.
At the moment, about 90 per cent of child welfare reporters are lawyers. One of the aims of the bill is to encourage more non-lawyers, such as child psychologists and social workers, to become child welfare reporters. In my response to the stage 1 report, I committed to setting out before the first stage 2 session how we propose to encourage other professionals to become child welfare reporters.
It is important to note that the list of child welfare reporters will be maintained at a national level. A centralised list will ensure a consistent approach across Scotland to the making of appointments, the handling of complaints and so on. It will also ensure that there is consistency across the country in how child welfare reporters on the list are appointed to undertake those reports. I would envisage that, where possible, a local child welfare reporter would be appointed.
On the promotion of contact between looked-after children and their siblings, in March, Ms Todd—the Minister for Children and Young People—announced that she wished to put looked-after children’s contact with their brothers and sisters on the same legal footing as their contact with their parents, where that was practical and appropriate, and we aim to do that under section 10 of the bill.
If the bill is passed, I commit to proceeding with its implementation as quickly as possible. However, there are certain aspects of the bill that will take time. It is important that, on areas such as the child welfare reporters, curators ad litem, accommodation standards and training requirements for contact centres and their staff, there is full and proper consultation. If I can progress other areas more quickly, I will do so. Of course, implementation tasks for the bill will need to be reviewed in the light of the Covid-19 situation.
I believe that the bill is an important step forward in improving the family courts. During the consultation on and development of the bill, in listening to the voices of young people, one theme came through very strongly: “No one is listening to me and no one is listening to what I want.” The bill aims to change that, and I commend the general principles of the bill to Parliament.
I move,
That the Parliament agrees to the general principles of the Children (Scotland) Bill.
The Deputy Presiding Officer
Margaret Mitchell will now speak on behalf of the Justice Committee.
15:22Margaret Mitchell (Central Scotland) (Con)
As the convener of the Justice Committee, I am pleased to have the opportunity to speak in the stage 1 debate on the Children (Scotland) Bill and to thank all the organisations and individuals who gave evidence.
Although the evidence taking pre-dated the pandemic, many of the issues in the bill, including the functioning of our family courts, access to child contact centres and arrangements between separated parents, have been severely impacted by the virus.
I thank Justice Committee members for not just their work in scrutinising the bill but the very constructive way in which they helped to finalise our stage 1 report during lockdown. The entire committee wants to put on record its gratitude and thanks to the Justice Committee clerking team, who had to complete the report and have it agreed remotely by correspondence in very difficult circumstances.
The bill amends the Children (Scotland) Act 1995 and seeks to do four things: to ensure that the views of the child are heard in contact and residence cases; to further protect victims of domestic abuse and their children; to ensure that the best interests of the child are at the centre of contact and residence cases and children’s hearings; and to further compliance with the United Nations Convention on the Rights of the Child in family court cases. Overall, the committee considers that the bill is a positive step forward in achieving those policy aims.
The committee considers that it is an important principle that the views of the child or young person should, wherever possible, be heard in court and taken into account in the decisions that affect them, and that a 12-year-old child is no more able to express a view than a child one day short of his or her 12th birthday. However, consistent evidence confirms that the current presumption with regard to age has meant that, in practice, the views of younger children are not routinely heard. The committee therefore welcomes the Scottish Government’s response that it will lodge amendments at stage 2 to strengthen the provisions in sections 1 to 3, to try to avoid
“the risk of the capacity exemption being used excessively by decision makers.”
The bill and legislative change alone will not be enough to ensure that the voice of the child or young person is heard. The allocation of sufficient resources and proper processes to ask children how they wish to express their views will also be required. Will the minister therefore address the powerful evidence that was presented that the infrastructure for taking children’s views needs to be strengthened and that the necessary resources need to be put in place?
Scotland’s network of family mediation and contact centres are operated primarily by Relationships Scotland, which plays a pivotal role during family break-ups by providing mediation between separated couples and enabling parents who are separated to see their child or children. The committee considers that child contact centres must operate to high standards with a fully trained workforce. We therefore welcome and support the provisions in the bill on regulating those centres.
However, it is clear from the evidence that the committee heard that there are significant concerns about the impact of regulation on contact centres’ ability to continue to operate. In stark terms, without the provision of sufficient resources to help contact centres to upgrade and adapt, some may close. The committee therefore welcomes the Scottish Government’s commitment to tell the committee, before stage 2, how much additional resource will be made available to Relationships Scotland to take it through to the end of the financial year and to move it forward to a sustainable funding model in the long term.
Furthermore, it would be helpful if the minister would explain in summing up the debate why she and her officials cannot give the committee a response to the findings of the Care Inspectorate on how contact centres should be regulated.
Additionally, the committee recommended that the bill should be amended to ensure that all referrals are made to a regulated contact centre. Given that that has been rejected in favour of issuing guidance only, will the minister explain why that approach is favoured? Does that mean that some contacts may be referred elsewhere, and potentially to unregulated bodies?
The committee makes a number of other recommendations that are aimed at improving the law and practice relating to disputes over children. Those include the factors that a court should take into account when considering a child’s welfare. It is fair to say that the section of the bill that deals with that issue attracted little judicial support. Prior to the 1995 act, those matters were left to the judiciary. In 2006, two factors that the judiciary should take into account were introduced, and now the bill proposes the addition of two more factors. The committee considers it necessary to go one step further and expand the list of factors in section 12 to include those that have been suggested by the UN Committee on the Rights of the Child. That recommendation has not been agreed to, and it would be helpful if the minister would explain why. Quite simply, given that the Scottish Government intends to introduce another bill to incorporate the UN Convention on the Rights of the Child into Scots law, it seems sensible to incorporate relevant rights into this bill now.
The bill also regulates child welfare reporters who, through their reports, have an important role in informing the courts. The committee made a series of recommendations in that regard, and although the minister has agreed to some of them, I ask her to provide some detail regarding how she intends to ensure that child welfare reporters are appropriately trained and fairly reimbursed and how she will diversify the pool from which reporters are currently drawn.
Witnesses told the committee that courts are rarely the best place for resolving family disputes and that mediation and early resolution help to prevent people from becoming entrenched in their positions; they also help to reduce trauma. Merely signposting people to mediation will not be enough to convince a set of parents to find out more about the option. As it has done previously, the committee has unanimously recommended that mandatory mediation and information meetings should be piloted, with an exception for domestic abuse cases. Will the minister address why the recommendation was rejected? Will she acknowledge that lack of legal aid is one of the barriers to greater use of alternative dispute resolution and explain why no progress has been made since the committee published its alternative dispute resolution report in 2018?
I turn to the important issue of access by grandparents to their grandchildren. It is a sad fact that many grandparents lose contact with grandchildren when parents separate. The committee heard calls from some groups for access rights for grandparents. At present, no such presumption appears in the bill. Despite the publication in 2006 of the charter for grandchildren, members heard that it has not been effective in improving contact between grandchildren and grandparents. The committee therefore welcomes the minister’s commitment that she will do more to help promote the charter and see it used more in practice.
Committee members will speak to other issues, such as those to do with some of the bill’s terminology, shared parenting, court delays, sibling contact and the maintenance of appropriate and proportionate confidentiality for children and young people. Those issues will re-emerge at stage 2.
The committee has much pleasure in supporting the general principles of the Children (Scotland) Bill.
15:32Liam Kerr (North East Scotland) (Con)
I remind members that I am a practising solicitor holding certificates with the law societies of England and Wales, and Scotland. In opening for the Conservatives in this debate on the Children (Scotland) Bill, I confirm that we will vote in favour of the general principles of the bill.
The policy aims are to ensure that the views of the child are heard in contact and residence cases; protect victims of domestic abuse and their children; ensure that the best interests of the child are at the centre of contact and residence cases; and—note the terminology, as I will return to this later—ensure compliance with the UNCRC. We agree with the convener that the bill is a positive step forward in achieving those policy aims.
On behalf of the Scottish Conservatives, I express our thanks to those who made the bill happen: first, the committee clerks, who ensured comprehensive briefing throughout and produced a report that literally and metaphorically should carry a lot of weight; and, secondly, those who gave evidence, written and orally, and who have continued to provide information since we produced our stage 1 report.
John Finnie spoke for all of us, I think, when he said, in response to extraordinary testimony that the committee heard from Oisín King of Who Cares? Scotland:
“It means much more than the reams of paper that we have in front of us to hear directly from someone like you. That was extremely helpful.”—[Official Report, Justice Committee, 21 January 2020; c 15.]
He was right. The power of evidence that was given by the witnesses certainly helped to remind me of the deep responsibility that we all share to get this right. I hope that all the committee is proud of the report that has emerged and that all the contributors feel that they have been listened to.
The report’s conclusions and the committee’s thoughts are clear. The convener went through the key conclusions, but I will focus on areas that in my view merit further thought and consideration at stage 2. The first of those areas is confidentiality. Children 1st summarised the point well when it referred in its submission to matters being shared that involve
“family support, domestic abuse and trauma recovery and include very personal information the child has shared in the context of safe and trusting environment with a support worker.”
In evidence, Children 1st and the likes of Scottish Women’s Aid argued that the bill should include a specific provision along the lines of the one that was consulted on in 2018, whereby the court, in deciding whether confidential information should be disclosed to a party that asks for it, should disclose the information only when that is in the best interests of the child, and after the child’s views have been considered. They were supported by the young people from Yello!, who said that it would be right that, when a child provides views—for example, to a child welfare reporter—it should be a requirement that the child’s permission is obtained before those views are shared. I can see that argument.
However, I also heard the evidence that was given by the likes of Professor Elaine Sutherland and the Faculty of Advocates, who argued that such a provision could infringe parents’ rights under article 6 of the European convention on human rights and that legislating in that way would be difficult, given the balancing act that is required. I believe that guidance in that regard will be issued, or has been issued, pursuant to the family justice modernisation strategy. I am sympathetic towards the argument about confidentiality, although I am well aware of the challenges, and I hope that we can all explore the issue further at stage 2.
With regard to the balancing act that is required, during the committee’s evidence sessions I explored section 16, which deals with the situation in which a person has breached a court order. It provides that there will be a duty to establish the reasons for the failure to obey such an order. I listened carefully to what was said by the various children’s organisations that welcomed the provision, although, importantly, Children 1st and the NSPCC in Scotland noted that they hoped that any court orders would be satisfactory in the first place.
The Faculty of Advocates said that courts already consider the reasons for non-compliance. Ruth Innes QC said:
“if a court is going to find somebody in contempt of court, it will have had to investigate the reasons for that ... sheriffs and judges already carry out such investigations ... We do not see how the provision would add to what courts currently do.”—[Official Report, Justice Committee, 28 January 2020; c 30-1.]
Lady Wise stated:
“Currently, in those proceedings, there is always an opportunity for the party who is said to be in breach of the order to respond.”—[Official Report, Justice Committee, 20 February 2020; c 7.]
The Sheriffs Association suggested that section 16 could encourage parties to reopen issues that had already been determined by the court and thus prevent a robust approach to enforcement, while the senators of the College of Justice suggested that it could encourage people to disobey a court order. Tellingly, Jennifer Gallagher of the Family Law Association said:
“section 16 does not add anything.”—[Official Report, Justice Committee, 28 January 2020; c 34.]
I have got to a point at which it feels as though section 16 might more properly be amended out, as it feels unnecessary and potentially detrimental. As the debate develops, I hope to hear reasons why I might revise that view—perhaps I will hear such reasons now.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
Does the member agree that section 16 could provide a safeguard for parents who are protecting their children from domestic abuse? That can be a very good reason for failure to attend.
Liam Kerr
I do. That is an important point, and I am grateful to Rona Mackay for making it. However, on balance, the evidence that we heard leads me to believe that section 16 might not be the most effective way to deal with the issue. I am very keen to hear from members on what would be the most effective way to deal with it. Rona Mackay’s point was a good point well made.
I cannot contribute to the debate without referring to section 10, which relates to looked-after children. Section 10 provides that a local authority must
“take such steps to promote, on a regular basis, personal relations and direct contact”
between siblings
“as appear ... to be ... both practicable and appropriate.”
The context for that was the extraordinary testimony that I referred to earlier, in which Oisín King told the committee that he had looked after his sister for a total period of five years, starting when he was seven and she was six months old. He said:
“When I was taken into the care system, I was separated from my sister ... We did not see each other again until 18 months later. I took the separation as a loss; it was something like a death.”—[Official Report, Justice Committee, 21 January 2020; c 14.]
That testimony was extraordinarily powerful.
Earlier, Neil Findlay highlighted what CELCIS said. He will know that the committee heard from Duncan Dunlop of Who Cares? Scotland, who told us that the word “practicable” as a caveat to section 10 “should not be there.” Dr Hill of CELCIS stated:
“The caveat could be interpreted in such a way that it was used to inhibit children’s rights to see their brothers and sisters.”—[Official Report, Justice Committee, 21 January 2020; c 26.]
In written evidence, Stand Up For Siblings explained that there was a risk of
“conflating the two issues of whether contact is ‘appropriate’ and ‘practicable’”.
It went on to say:
“Without the removal of ‘practicable’ there is a high risk that decisions will continue to be led by resourcing issues and the proposed legal changes will be ... ineffective.”
Neil Findlay
I encourage the minister to listen to that point. I do not want to speak for other parties but, given what Liam Kerr seems to be saying, it would appear that a number of members want that word to be removed. Will the minister meet Liam Kerr, me and others who are interested to discuss how we might take it out?
The Deputy Presiding Officer (Linda Fabiani)
The minister is not on her feet and speaking just now. If Mr Kerr would like to stand up and take an intervention from the minister, that will be acceptable. I can give you the extra time, Mr Kerr.
Liam Kerr
I am grateful, Presiding Officer. I will take an intervention from the minister.
Ash Denham
I reassure Neil Findlay that I am, of course, listening to everything that is being said in the debate and making careful notes on it. He will note that the Minister for Children and Young People is sitting directly behind me, and we are listening—
The Deputy Presiding Officer
Minister, you are intervening on Mr Kerr. We can always rely on Mr Findlay to get us all confused. [Laughter.]
Ash Denham
My apologies. I will of course be happy to meet both members in order to discuss the issue further.
Liam Kerr
I am grateful for that. I am grateful to both members for their interventions, because the point is well made. However, I want to develop it slightly, because Stand Up For Siblings, Clan Childlaw and CELCIS went on to say that the financial memorandum does not set out the cost implications for local authorities of implementing the duty.
The minister will remember that, in committee, I questioned her on whether, without additional resources, it would in any event be possible to give effect to the duty in practice. Her view was that the practice should already be happening so the provision is cost neutral. Leaving aside the fact that I hope that the data to back that up will be forthcoming, I note that I pressed her on her use of the word “should”. I worry that, if that is not happening, there will logically be costs for compliance, which should be budgeted for in the financial memorandum, and that, if the resources are not there, it will offer a reason for non-compliance. The minister’s reply was brief. She said simply—
Ash Denham
Will the member take an intervention?
Liam Kerr
Do I have time, Presiding Officer?
The Deputy Presiding Officer
Yes.
Liam Kerr
Thank you. I will take the intervention.
Ash Denham
The independent care review report, which is entitled “Follow the Money”, provides reassurance that there is that money in the system. In this year’s local government settlement from the Scottish Government, there is provision for £400 million, and that is just for the area of child social work.
Liam Kerr
I am grateful to the minister, but that does not change the fact that there is nothing on the subject in the financial memorandum. I believe that my point is well made. Either it is already happening—or should be happening, as the minister suggested in committee—in which case let us have the data that shows that it is happening and that the provision in the bill therefore has no cost implication, or it is not happening, in which case there is a potential cost implication that will provide a reason for local authorities not to do it, because the money is not there.
As you have heard, Presiding Officer, I remain unpersuaded. Perhaps the provision of resources can be re-examined. The word “practicable” should probably be removed or, as a bare minimum, guidance provided that makes very clear what the word means. I look forward to meeting the minister and Neil Findlay to work on that further.
My final point is one that Fulton MacGregor explored a couple of times. It goes back to the terminology. Courts have powers to make residence orders and contact orders in order to set out things such as where children are to live, which parents they are to live with and which other family members they may have contact with. By way of further example, section 10 uses the words
“whether of the half-blood or of the whole-blood”.
It has been suggested that those terms are somewhat loaded. In addition, chartered psychologist Dr Sue Whitcombe told Mr MacGregor:
“the term ‘contact’, in particular, is quite abhorrent”.—[Official Report, Justice Committee, 14 January 2020; c 18.]
Megan Farr, representing the children’s commissioner, said:
“we do not think that the phrase ‘whether of the half-blood or of the whole-blood’ is particularly helpful.”—[Official Report, Justice Committee, 7 January 2020; c 30.]
The Scottish Government consulted on but did not include in the bill a proposal to update the terminology that is associated with the court orders. Several other countries have made changes to their terminology, including England and Wales, which talk of “child arrangements orders”.
I do not take a strong view yet, but members know that I get very exercised about semantics and the power and precision of terminology. If Fulton MacGregor chooses to explore the point, he may find that support is forthcoming.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
Will the member take an intervention?
The Deputy Presiding Officer
We do not have any more extra time. Perhaps you can contribute later, Mr MacGregor.
Liam Kerr
I came to the bill from a standing start. I had not done anything in the family courts, except for some second-hand personal experience, since the very start of my legal career some two decades ago. Having read the evidence and heard the witnesses, I will come to stage 2 steeled in my resolve to ensure that what results is the strongest possible bill. In its principles, the bill is the right start, and I look forward to working with colleagues across the Parliament to improve it as best we can.
15:44James Kelly (Glasgow) (Lab)
I thank the Justice Committee clerks for putting together the report under very difficult circumstances, particularly towards the end of the process, when the Covid-19 pandemic started to have an impact. I also thank the many witnesses who came to the committee and those who submitted written evidence. As has already been said, there are a lot of issues at stake, and people have strong and passionate views. The Justice Committee report has gone to great lengths to capture the different views and parameters that require to be explored.
People feel strongly about the issues because a young person’s formative years are very important. To end up in a family court, where perhaps access is being contested, can make a young person feel very vulnerable. It is important to ensure that they have correct protections and are properly looked after. I say at the outset that that is what the bill seeks to achieve, but in some areas it needs further discussion and improvement, so that we do what is right by children and look after them in legislation.
The bill has come about primarily because the Children (Scotland) Act 1995 needs some improvement. The 1995 act does not focus primarily on the rights of the child. As many witnesses pointed out, it needs to give more protection to children from homes where there has been domestic abuse, and it needs improvement in relation to the resolution of parental disputes. We also need to give regard to the requirement for family court cases to comply with the United Nations Convention on the Rights of the Child.
One of the main provisions of the bill abolishes the presumption that a child is able to give their view only if they are 12 or older. That objective is correct, as it is unfair to isolate and take out those who are under 12. It is logical that many young people under that age would have a view, and it is important that those views are expressed and come to the fore. However, although the bill removes the 12-plus presumption, it seeks to introduce a capacity exception, which could be interpreted as weakening the child’s right to give their view. That is one area that requires improvement.
I think that everyone would agree that children’s welfare is absolutely critical. Central to that are the relationships that children have. We have already had quite a bit of discussion around looked-after children—children in care. It is clear from the interventions by Neil Findlay and Liam Kerr that there are two issues regarding what is in the legislation. One is that the word “practicable” is open to different interpretations, which could cause difficulties in a legal setting. The second relates to the resources that are required, particularly for local authorities, to give proper support to looked-after children. As we move into stage 2, we need to produce not only correct legislation but a financial memorandum that has adequate financial resources for local authorities.
The convener mentioned contact centres in her speech. There is also an issue around funding for them. Everyone recognises the importance of contact centres in bringing together children with those with whom they have key relationships. The withdrawal of £750,000 of funding from Relationships Scotland is a real concern. I acknowledge that the Government has announced interim funding for the next quarter, but organisations such as Relationships Scotland need more funding stability, particularly in operating under the Covid-19 pandemic. I hope that the minister can outline what funding package will be in place over the next financial year and ensure that it is adequate.
Another key issue that needs to be addressed is the breaching of court orders, and particularly contact orders. It is clearly absolutely unacceptable that individuals breach decisions that courts have made. The bill seeks to address that through the introduction of section 16 to provide more clarity. As Liam Kerr has already noted, there were divided opinions on that in the evidence. Many of the children’s organisations were sympathetic, and the legal view was that the courts already took avenues to address those issues. I am sympathetic to section 16 remaining, but the Government needs to do some work to make the case for it and perhaps improve it so that it has a proper place and there is not just legislation for legislation’s sake.
Neil Findlay
Will the member take an intervention?
The Deputy Presiding Officer
You should be very quick, because we have used a lot of time.
Neil Findlay
A constituent of mine breached a court order that related to arrangements for access to a child because of the lack of health and safety provision in the contact centre. Does James Kelly agree that that is why a number of people want contact centres to be regulated?
James Kelly
That is a very good point. The committee took substantial evidence on contact centres, the importance of the right infrastructure around them, ensuring that there is proper health and safety provision, and the training of people who work in contact centres. The debate is not just about the legislation; it is also about the infrastructure.
If we are to get things right, we need to ensure that the legislation is amended to give proper protections to the child and to give clarity in the legal setting. If we are serious about achieving the ambitions that the bill sets out to achieve, we also need to ensure that appropriate funding and infrastructure are in place.
The Deputy Presiding Officer
I call John Finnie, who is joining us remotely.
15:52John Finnie (Highlands and Islands) (Green)
I join other members in thanking all those who have contributed to getting us this far. I thank those who responded to the consultation; our witnesses; our clerking staff in particular for the outstanding work that they did; the organisations for their helpful briefings; and the Scottish Government for its response.
The Justice Committee welcomed the Scottish Government’s commitment to the family justice modernisation strategy, of which the bill is part; to a child-centred approach that is based on rights; and to a move to the barnahus model, as we have seen in the criminal sphere. In that model, the intention is not that the process further traumatises those who are involved in it. I hope that that will be one of the consequences of the bill.
I want to touch on the word “presumption” and the not unreasonable presumption that the Government’s job is to put in place legislation to protect the very vulnerable. Scottish Women’s Aid has said that the Government has an obligation to create a system that protects and upholds their rights and that the presumption is that there is fair and equitable legislation that recognises competing interests. However, when it comes to children, the presumption is that the wellbeing of the child is paramount and I suggest that that also applies to the rights of the child and the views of the child.
The committee heard a lot of views, and we all approached the bill with an open mind. My colleague Liam Kerr referred to some of the compelling testimony that we heard. We heard in private compelling testimony from Yello!, which is the young expert group in the improving justice in child contact project. It said:
“Don’t dismiss us—we experienced it, and we know what we’re talking about. If we feel like we aren’t being listened to, it can make us not want to speak to people or take part in things.”
Our report discussed the real benefit of alternative dispute resolution and the view that no one wins in court. The potential to resolve disputes outside court is to be encouraged. The Justice Committee previously recommended that the Scottish Government and the Scottish Legal Aid Board should explore making legal aid available for other forms of ADR and our report expresses disappointment that that has not been the case, although we need to welcome the Scottish Government’s response to the Justice Committee’s report when it said that
“consideration will be given to the availability of funding from the legal aid fund for other forms of ADR”
as part of that process.
However, as other members have said, we know that where domestic violence is involved, mediation has no place—there should be no sitting across the table from the perpetrator, allowing the potential for controlling and coercive behaviour to continue.
I welcome the Scottish Government’s acknowledgement of that important point in its response to the Justice Committee's stage 1 report. The Government points out that, in line with its family justice modernisation strategy, it has proposed to the family law committee of the Scottish Civil Justice Council that court rules be changed to ensure that they are compliant with the Istanbul convention, which makes it very clear that the use of
“mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence”
that are covered by the scope of the convention are inappropriate.
We also heard on a number of occasions about the challenges that are faced by victims and the different levels of protection that are afforded in the criminal court and in the civil arena. The Justice Committee’s recommendation on that has been accepted by the Scottish Government, and I welcome the on-going work in that area. There must be a change; the threat level does not change just because the forum that the perpetrators are involved in changes. There are consequences and, of course, children suffer.
Mr Findlay and Mr Kelly mentioned contact centres and that is where abuse has been allowed to continue and can intensify. There must be robust multi-agency risk assessment and, of course, adequate resources to provide the amelioration measures that the risk assessments highlight. There is nothing simple; one thing that is consistent is that paramount consideration should be given to the wellbeing of the child.
I will move on to the UNCRC and the support for a positive presumption that all children are capable of forming a view. The current presumption in the Children (Scotland) Act 1995 that children are able to form a view from age 12 has created the practical situation in Scotland where the views of younger children are routinely not sought or listened to. There was considerable support for the removal of that presumption from the 1995 act, but the NSPCC said:
“However, we do not support the exception which provides that a child’s views do not have to be sought if ‘the child is not capable of forming a view’”.
As the policy memorandum explains, even very young children could be included.
Article 12 of the UNCRC says that children are not required to prove their capacity but rather that all children are presumed to be capable of forming and expressing views. The NSPCC captured that very well when it said that
“the extent to which children are ‘capable of forming a view’ is contingent upon the capacity of the adult taking their view to understand”
the varied ways, including non-verbal, in which children express their views.
In the limited time that I have left, I will touch on the issue of confidentiality and competing rights. The Children and Young People’s Commissioner—[Temporary loss of sound]—referred to article 8. Sometimes it is necessary to interfere with a right in the best interests of the child—sometimes that is necessary to ensure that a party’s right to a fair trial is realised—but any such interference with a child’s rights must be carefully considered to take account of their views.
That is not covered in the legislation and I propose to lodge an amendment to address that.
15:59Liam McArthur (Orkney Islands) (LD)
It is a pleasure to be able, like John Finnie, to take part remotely in this stage 1 debate on the Children (Scotland) Bill. The Scottish Liberal Democrats strongly support the principles of the bill, but also recognise the work that is ahead for the Justice Committee and Parliament more generally in making the improvements that will be necessary ahead of stage 3.
In that regard I am, as other members are, grateful to all those who have helped our scrutiny to date, including the clerks and, in particular, those who provided evidence—some of it was extremely powerful—that shone a light on the areas where further work is needed.
The minister has already indicated the Government’s willingness to make changes at stage 2, including removal of the remaining presumptions against children expressing their views. That is welcome. I will reflect on some other areas in which, I believe, change and improvement are similarly needed.
As we know, in cases where a relationship breakdown turns out to be difficult and traumatic, it is often the child or children involved who pay the heaviest price. Therefore, our ensuring that their views are clearly heard in the process of determining what happens about contact and residence, as well as more generally, is imperative.
Further embedding of the UNCRC in our law, through family court cases, is also a step in the right direction, ahead of the full incorporation that has been promised by the First Minister. Additional protections for victims of domestic abuse and their children are also a welcome aspect of the bill.
Given those laudable and worthwhile aims, it is worth my while to emphasise at the outset how vital it will be for ministers to ensure that the provisions of the bill are properly resourced. Simply passing into law rights and duties might make us feel good as legislators, but doing so without the necessary funding would do a disservice to those whose interests we seek to protect, and to those who work on the front line, who we would be setting up to fail.
One of the clearest examples of that relates to regulation of contact centres. I declare an interest, as my wife is due shortly to take up the post of director of Relationships Scotland Orkney. I will therefore leave it to others to develop the arguments in that area, as some members already have, except to say that, as the stage 1 report on the bill by the Justice Committee points out,
“The Financial Memorandum suggests that there could be significant costs for contact centres in meeting the new regulatory requirements, yet no additional funding is proposed.”
Regulating contact centres is the right and responsible thing to do. However, as the committee concluded, we should not be passing legislation
“if it is not clear that there are sufficient means to fund the changes proposed.”
Another example of where that appears to be a risk is in relation to child support workers. As our stage 1 report states,
“we heard powerful evidence that the infrastructure for taking children’s views needs to be strengthened. Without this, the Bill may make very little difference in practice, particularly in relation to hearing the views of younger children where specific skills and more creative methods are required.”
In cases that are covered by section 11 of the Children (Scotland) Act 1995, advocacy support is crucial to ensuring that every child has the best chance to have their views heard. Not all will require such support, but if it is not available, we risk failing those who are most in need.
Professor Kay Tisdall and others expressed strong concerns about the absence in the bill of any infrastructure for child advocacy, and of clarity in the family justice modernisation strategy. That is not good enough: the bill must be amended to provide those assurances, and ministers should set out timescales for delivery.
Of course, a child will feel comfortable in expressing their views only if they can do so in the manner that best suits them, so building trust and confidence in the process is also key. The committee heard arguments in favour of giving children a greater say in how their information can be shared with the courts. At present, it is possible for highly intimate information that is held by third sector organisations to be drawn into court proceedings, even if sharing it goes against the interests of the child. That can happen without the child even knowing about it. Both Children 1st and Scottish Women’s Aid shared examples of that in evidence, and highlighted its potential for undermining the trust and confidence of children who engage with third sector organisations.
As others have, I recognise the need to respect the rights of all those who are involved in court proceedings, but I believe that the bill provides a chance at least to clarify the guidance around the need for information sharing to be proportionate and necessary, so that consideration is given to the best interests of the child.
Another area where the bill could go further is in the promotion of greater use of alternative dispute resolution. Whatever steps we take to improve how evidence is taken, courts are the last place where we wish to see relationship disputes being settled. There is a case for extending the scope of legal aid to encourage more people to consider ADR, so I welcome the Government’s willingness to look at that.
Finally, I will touch on children’s access to members of their extended family. Some of the most powerful evidence we heard was in support of doing more to ensure that children continue to have contact with their siblings. Oisín King’s evidence was an obvious example of that. Ensuring that that happens, when it is in the interests of each child involved, can be resource intensive, but it should be prioritised so that it happens more consistently.
The committee also heard compelling evidence from grandparents, who often find themselves cut off from their grandchildren as a result of an acrimonious separation or family dispute. I have great sympathy with the case that they make. They are right to argue that grandparents and other adults, including those who do not have a parental relationship with the child, often play invaluable and enriching roles in the child’s life. That should be recognised and reflected, where appropriate, in decisions that are made in the best interests of the child. However, ultimately, decisions need to be made in the best interests of the child; anything that talks in terms of the rights of others risks diluting that.
Scottish Liberal Democrats will gladly support the general principles of the bill at decision time, while recognising the work that lies ahead if the bill is to meet the needs of children and deliver its laudable aims. I look forward to playing a part in that process. Once again, I thank those who have given the committee so much food for thought, as we embark on our stage 2 consideration.
The Deputy Presiding Officer
We move to the open debate, with speeches of six minutes, please. We have used up any spare time during the opening speeches and I do not want to cut closing speeches, so if members could stick to time, that would be useful.
16:05Rona Mackay (Strathkelvin and Bearsden) (SNP)
The bill is extremely important and I will be happy to agree to the bill’s general principles at decision time.
The bill is important on many levels, but, for me, the one overriding reason for it is that it will, finally, give children a voice within a justice system that has, historically, been structured for adults. All children should be able to give their views on decisions that affect them and their future. There is a lot of detail in the bill that will affect many areas of children’s lives.
As deputy convener of the committee, I thank the clerks and the drafting team for their invaluable help. Their attention to detail and their hard work have allowed the committee to agree to the general principles in a largely non-contentious way. I also thank all the witnesses who gave of their time to give us excellent evidence, either in person or by written submission.
The policy aims of the bill are to ensure that the views of the child are heard in contact and residence cases, to further protect victims of domestic abuse and their children, to ensure that the best interests of the child are considered in contact and residence cases, and to ensure compliance with the UNCRC in family court cases.
A hugely important part of the bill, and one that is widely supported, is the removal of the existing presumption in the 1995 act that only a child who is 12 or over is of sufficient age and maturity to form a view. We heard consistently that that presumption has meant that the views of younger children who are perfectly able to express their views are not routinely heard, in practice. As Megan Farr from the Children and Young People’s Commissioner Scotland said:
“Children’s views do not miraculously change the minute that they turn 12, but their capacity to express their views evolves over time from birth.”—[Official Report, Justice Committee, 17 December 2019; c 10.]
The Deputy Presiding Officer
Excuse me, Ms Mackay. Minister—could you resume your seat at the front bench, please?
Rona Mackay
There has been concern expressed, which I share, that the phrase “who are capable” could be misinterpreted and could lead to decision makers deciding that a child does not have the capacity to give their views. I am therefore pleased that the minister proposes to lodge an amendment at stage 2 to strengthen the provisions in sections 1 to 3 in order to avoid the risk of capacity exemption being used excessively.
Section 15 of the bill will place a duty on the court to explain decisions to children. That is where the role of child welfare reporters is crucial. The bill will extend their role and, through secondary legislation, ensure that they will get appropriate training. More than 90 per cent of child welfare reporters are lawyers, so I am pleased that more non-lawyers—for example, child psychologists—will be encouraged to train, and that a national register of reporters will be held, to protect children’s rights.
The current adult-centred infrastructure needs to be strengthened, which is why the role of children’s advocacy and support is vital. The minister has said that that will be considered in the family justice modernisation strategy, and will be looked at before stage 3. I believe that that is essential, so I am keen to see early progress on it.
If children’s views are to be heard, a system of redress and complaint for them should be considered. That is particularly important in instances of domestic abuse, which is reported in the majority of contact cases in the civil court. Children must be heard without fear of retribution; that is why confidentiality and the sharing of data must be proportional and information must not be shared unduly by courts or those who have perpetrated abuse against the child. I do not believe that the guidance is enough, so I look forward to the provisions being strengthened before stage 3.
An area that is of enormous importance is child contact centres for children and families. The committee strongly recommends regulation of those currently unregulated centres, which are run by paid staff and volunteers, some of whom have had minimal training. To be clear, I say that that is not a reflection on the many excellent people who work in them, but on the need to ensure that centres are safe for all who use them, no matter where they are in the country.
The committee heard harrowing evidence about children being made to attend under court contact orders, often when they do not want to, which causes them great distress. They have had no say in the matter. As we have heard, the committee held a private meeting with youngsters from Yello! who have experience of being ordered to attend contact centres, and their accounts were powerful and moving.
In committee, I voiced my reservations about contact centres and their purpose. I agree with Women’s Aid and Children 1st: if contact is unsafe for women and children, and contact needs to be supervised, it should not happen. I strongly support the Government working with third sector partners including Women’s Aid and Children 1st to ensure that women, children and young people who have experienced domestic abuse are protected. However, given that the centres are part of our current framework, I am pleased that they are to be regulated, and I agree that there will need to be sufficient secure funding.
Another important issue that has been discussed today—and which the committee heard about—is sibling contact, where that is appropriate and safe. As has been mentioned by Liam Kerr and others, during an evidence session we heard a powerful and moving account from a young care-experienced man who was estranged from his sister and who was allowed only structured and supervised contact with her, despite posing absolutely no risk. Allowing siblings contact would be an enormous step forward, and would be entirely in line with the care review recommendations. Section 10 of the bill says that, for looked-after children, local authorities must promote personal relations and direct contact with siblings where appropriate. I would like that to be strengthened, and to meet the minister on that.
I will end with a quotation from a young person from the Yello! group, who said:
“Adults always seem to be given more priority than children, even though it is all supposed to be about the child. We hope that this Bill will change that.”
So do I.
I ask members to please support the general principles of the bill.
16:11Gordon Lindhurst (Lothian) (Con)
Little people, as some call children, are no less people than adults; nor are they less affected. In many ways, they can be more deeply affected than adults when the law and the courts become involved in their young lives—particularly at points in time when the family situation in which they find themselves is unsettled and, often, contentious.
It is important for us always to bear in mind that the law is never a fixed thing, but develops and alters as time passes—sometimes for the better and sometimes for the worse. Of course, this Parliament is meant, after careful consideration, to deliberately change the law to improve it or, sometimes, to correct its own past errors or those of others. Those others may be thought to include judges, so I should perhaps not push that comment too far. After all, judges are there to seek to objectively and fairly apply the law as it is to the individual cases before them.
I will support the bill in principle, as will my colleagues. However, as always, cautious consideration of the bill is required, and greater detail requiring scrutiny is likely to emerge at later stages. That is especially so in relation to issues that are intended to be addressed in secondary legislation.
We should realise that judges already include in their careful considerations views expressed by children in cases before them, and that they often explain very well their reasoning and thinking to them. The impetus that the bill gives to oblige courts to do so is welcome, provided that the justice system is properly resourced to enable already-busy judges to fulfil that function as part of their duties. The question of resources has already been raised by a number of members.
As set out by my colleague Margaret Mitchell on behalf of the committee, the bill deals with important details in that area. I will make a few brief passing comments on some of those.
The removal of the assumption of competence of children over the age of 12 is intended to encourage consideration of a child’s testimony at a younger age. That should mean that the court will feel enabled to exercise its judgment more freely in considering and acting on the evidence of a child of any age, in a similar way to that in which a judge traditionally decided whether a younger child should be asked simply to promise to tell the truth or to take the oath when giving evidence in a criminal trial.
Statutory factors will now be specified in the bill. The bill will add to and adjust the factors that must formally be taken into consideration, such as sibling relationships and relationships with each parent, when determining the outcome of any case—broader consideration will be given to relevant factors. Putting this on a statutory basis should be thought to be a sensible step.
The basis for the recruitment and operation of child welfare reporters is to be made more consistent and will reform a system that features several inconsistencies. The role, training, remuneration and quality of the people so employed would—one would hope—be improved by the introduction of the Scotland-wide register. The lack of statutory regulation for such individuals has, in the past, proved controversial on occasion. The key to that work will be in its proper resourcing and administration, to seek maximum effectiveness in the interests of children, their parents and their families.
What about the possible increase in the cost related to family contact centres, which has already been mentioned? Measures that relate to that point are notable in their absence from the bill, so I look forward to further clarification from the Government on funding and to an explanation of how the resourcing issues, which I and others have identified, will be addressed—if necessary by amendments being lodged and agreed to at stage 2.
16:16Fulton MacGregor (Coatbridge and Chryston) (SNP)
I thank those who attended the Justice Committee and its clerks for the tremendous amount of work that they have put into the bill.
I speak not only as a member of the Justice Committee, but as a dad of two children. It is my son’s third birthday today, and although it is not uncommon for parents to be working on their kids’ birthdays, it is a wee bit different this year. Folk will understand that my son does not have any grandparents or other family around, so I hope that the Presiding Officer and members in the chamber will forgive me for taking the opportunity to wish him a happy birthday, on the record. [Applause.] Happy birthday, Ruan MacGregor—I am getting reminded to say his name. He will no doubt be mortified when I show him this in years to come.
This is a very good bill and I am glad to say that it has been welcomed across the board—we have heard that today in the political world and we heard it in the evidence as well. There are points for discussion, but those are on things that could be improved, rather than on the principles of the bill. We have heard from the NSPCC, Children 1st, Women’s Aid and others, and the consensus is that the bill is good.
The bill brings about important changes. We heard from John Finnie about the protection of vulnerable witnesses, building on the work on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, and we had a lot of discussion around the barnahus model.
There was also a lot of discussion on probably the most contentious—if I can call it that—area, which was child contact centres. We heard evidence of good practice there, but Women’s Aid raised some concerns around domestic violence. I welcome the minister’s response to the committee’s report and its recommendations on the matter and I look forward to hearing more ahead of stage 2, particularly around how we can improve communication between the courts and contact centres.
Hearing the views of younger children is key—it is a must. We really have to do that to get it right; it is an absolute no-brainer. The register of who can be appointed as a welfare officer is very welcome. I declare an interest as a registered social worker.
I remember a time when social workers did more of that work. As the minister said, it seems to be the case that it is mainly done by the legal profession now, but it would be good if there was a wider sphere in that regard. If social workers and psychologists were involved, I think that the child would be placed at the centre of the process. We have to make sure that that is the case, and that their interview with the child is the main one in the process.
I also welcome the advocacy or support workers suggestion, which was made by Scottish Women’s Aid and others. I hear what the minister is saying, but it is an area in which I have an interest and the suggestion would offer a lot to the debate. However, I am open minded as to whether we deal with that through legislation or through the existing framework.
On the issue of sibling contact for looked-after and accommodated children, I agree with all the points that have been made. It is absolutely crucial. Some of the evidence that the committee heard was mind blowing to say the least, but I agree with what the minister and Maree Todd have said: such contact should already be being promoted. I said at committee—I am looking at Liam Kerr, because he knows that I have said this on several occasions—that I cannot imagine a situation in which that would not happen. There is a process for looked-after and accommodated children in place, as well as a children’s hearings system. Therefore I would like to think that that has always happened. If that is not the case, is that down to resources? I ask the minister to have a look at that issue.
There are other areas that I think are important, and which have been raised by, for example, Shared Parenting Scotland. I should say that I am the convener of the Parliament’s shared parenting cross-party group. Shared Parenting Scotland has suggested some amendments, as well as some general debating points.
Liam Kerr did not misquote me when he talked about my concerns around the terms “residence” and “contact”. I do not think that they are helpful. When I was a social worker, I and many others would get into trouble if we used the language of the profession. We might inadvertently say “contact” to a child and the child’s reaction would often be to say, “Contact? That’s my mum and dad we are talking about.” We need to listen to such concerns, but I am open minded as to whether they need to be dealt with in the bill or by way of guidance that is given to local authorities and workers across the board. We were always discouraged from using those phrases, but because they are the legal terms, we sometimes got into the habit of doing so.
On the issue of contact, there is a suggestion that an amendment could be lodged to include grandparents and other relatives. Just now, I think that all parents are experiencing the loss of the contact that our children have with their grandparents, and we are seeing the impact that it is having on our children. Therefore, I think that we need to look at the issue in the round. Often, grandparents feel that they have a vital relationship with a child, and that the child has a vital relationship with them, and perhaps the contact with the child is lost as a result of the actions of the parents. I welcome what the minister said about the charter, but perhaps she could provide more detail of that before stage 2.
I can see that the Presiding Officer is asking me to wind up, so I will do so. I had so much more to say, but I will leave it at that.
16:23Alex Rowley (Mid Scotland and Fife) (Lab)
Scottish Labour supports the general principles of the Children (Scotland) Bill and welcomes the progress that it marks in the promotion and production of children’s rights as set out in the United Nations Convention on the Rights of the Child.
Scottish Labour affirms the need to place the best interests of the child at the heart of decisions that affect them, and agrees that supporting children’s participation in such decisions is essential. We welcome the protection that the new provisions will afford to vulnerable persons in section 11 parenting dispute cases, and believe that consistency in the treatment of vulnerable witnesses should be facilitated across all legal proceedings.
There are concerns about the current safety of child contact centres, as other members have said. Regulation is a necessary step, but the Scottish Government must ensure that centres have sufficient funding to meet demand and any new regulatory requirements.
Scottish Women’s Aid has written about the role that the Children (Scotland) Bill must play in protecting women, children and young people who have experienced domestic violence. These are the key points that Scottish Women’s Aid raised:
“Children who have experienced domestic abuse are at the centre of the majority of family court cases and also the most vulnerable parties in them; the government has an obligation to create a system that protects and upholds their rights.
Omitting children’s views from proceedings is disempowering and dangerous: the Bill must be amended to ensure meaningful participation, including a child-friendly system of redress and complaint.
Children have consistently stressed the importance of support and advocacy workers. The Bill must be amended to reflect the Scottish Government’s commitment to providing specialist, trauma-informed support in facilitating children’s meaningful participation.
Children who have experienced domestic abuse must be able to express their views safely, without fear of retribution. The Bill must be amended to provide further protection for children’s confidentiality.
Understanding of the dynamics of abuse and control must be reflected at every stage of civil court processes, including in the language used, the training of legal professionals, the provisions of special measures for vulnerable witnesses, and referrals to contact centres.”
Many organisations have written similar points.
Although the bill is an important step forward, there remain areas that Scottish Labour wishes to see addressed and tightened up at stage 2, including the provision that would enhance the right of a child to express a view during proceedings. It is a positive provision, but a number of additions could improve it further still. There was some concern that, as drafted, simply removing the presumption of competence for children over the age of 12 could mean that more children would be deemed to fall into the exception of not having capacity and fewer children would have their views considered. To counter that, as James Kelly said, the bill could be strengthened to include an explicit requirement that a court ensures that a child, regardless of age, has the opportunity to express their views.
Provision could also be made for a child to refuse to make their views known, so that they are not placed under pressure to make what might feel like a decision or choice. Children should be given the opportunity to indicate the manner in which they wish to express their views, rather than the way that is considered to be suitable being mandated to them.
Although the bill removes the age limit presumption with regard to the expression of a child’s views, it retains the presumption in the 1995 act that children aged 12 and over should have capacity to instruct a solicitor. That is inconsistent with the approach of the bill and the presumption in relation to legal capacity that exists in other legislation. That section of the bill should be removed, and the Scottish Government has indicated to the Justice Committee its intention to do so.
The section on the duty to investigate non-compliance with contact orders was subject to debate, namely as to whether it adds anything to existing practice. However, as the bill stands, there is no explicit provision for a child’s view to be sought, which should be rectified if the provision remains.
As I stated previously, there is broad support for the bill across all organisations in Scotland that work with children and families, and positive views have been submitted on how to improve the bill further, including the excellent report by the committee. I look forward to stage 2 of the bill.
16:29Shona Robison (Dundee City East) (SNP)
I support the general principles of the bill. As others have done, I thank the Justice Committee clerks and the witnesses, who provided very powerful and important evidence.
The bill will substantially amend the law that applies when parents are in dispute with each other over some aspect of their children’s lives. I think that we can all think of constituency cases that have concerned disputes that have impacted very much on the children concerned. After parents separate or divorce, disputes can arise about where a child should live and the arrangements for a parent to have contact with a child he or she does not live with.
The bill’s key proposal, through sections 1 to 3, is to make changes to help children to participate in decisions about them, including court decisions. Rona Mackay put it very well when she said that the overarching thing that the bill does is to give children a voice. A key aim is to encourage the courts to hear the views of younger children before reaching a decision.
The bill also proposes the statutory regulation of several key aspects of what could be called the machinery associated with the 1995 act. That includes child welfare reporters and child contact centres, which I will come back to. The bill aims to improve the experience in the courtroom, in family cases, of vulnerable people such as those who are affected by domestic abuse.
Having looked at the bill in great detail, the Justice Committee made a number of recommendations in its report. Overall, the committee considers that the bill is “a positive step forward” in achieving the policy aims. It very much welcomes the removal of the existing presumption in the 1995 act that a child aged 12 or over is of sufficient age and maturity to form a view, having heard consistent evidence that the presumption has meant that the views of younger children are not routinely heard in practice. The committee asked the Scottish Government to respond to the concerns that were raised by various stakeholders that the current drafting of the bill does not go far enough in ensuring that the views of all children, particularly younger children, are heard.
The committee also supports provisions in the bill that would regulate child contact centres. That is very important, given some of the evidence that we heard about differing practices, and concerns about the quality of provision. Bringing standardisation and regulation to that is very important. That raises the issue of potentially significant costs for contact centres in meeting the new regulatory requirements, so the committee asked the Scottish Government to provide details on how it will ensure that sufficient funding is made available for contact centres for their existing level of provision and the new regulatory requirements.
I welcome the Scottish Government’s response so far to the committee’s report. On the issue of children’s participation in decisions that affect them, the Justice Committee asked the Scottish Government to bring forward amendments at stage 2 to address the committee’s concerns and ensure that the views of all children, regardless of age, are heard. I welcome the Scottish Government’s response in recognising that
“the concerns raised by the Committee and stakeholders during the stage 1 oral and written evidence about the risk that the provisions ... could be misinterpreted and lead to decision makers deciding a child does not have capacity to give their views.”
I welcome the Scottish Government’s acceptance of the recommendations, and its proposal to bring forward an amendment at stage 2 to strengthen the provisions in sections 1 to 3 to avoid, if possible,
“the risk of the capacity exemption being used excessively by decision makers.”
As I have said, the regulation of child contact centres has been looked at in some detail. The vast majority of stakeholders agreed that they should be regulated—to ensure, as I have said, more consistency in the quality of provision. However, the issue of funding has arisen and, like others, I welcome the fact that the Scottish Government gave interim funding to contact centres, which provided a level of stability. However, I welcome the commitment to provide, before stage 2, further details on funding for contact centres in the context of not just the existing service but, importantly, the new regulatory requirements that I think we all agree will arise from the bill.
Scottish Women’s Aid asked that, where possible, the approach to children and vulnerable individuals should be the same across all criminal and civil proceedings, including children’s hearings. The committee agreed, and I welcome the Scottish Government’s acceptance of our recommendation, albeit that it said that that will involve
“a longer-term piece of work”.
I understand that some of that work is or will be under way through the victims task force.
The Government’s response on many issues that were raised at stage 1 shows that it has been listening. I look forward to stage 2, when this important bill can be improved, and I give the bill’s general principles my support.
16:35Donald Cameron (Highlands and Islands) (Con)
I refer members to my entry in the register of members’ interests: I am a member of the Faculty of Advocates. I am aware that the faculty gave evidence on the bill to the Justice Committee.
I welcome the opportunity to contribute to the debate on this important bill at stage 1. I thank members of the Justice Committee for their scrutiny of the bill so far and for their helpful report.
I have listened carefully to the comments that members have made this afternoon. As members have noted, the bill seeks to enact changes to the landmark 1995 act and the Family Law (Scotland) Act 2006, to meet new challenges and reflect recommendations from various organisations and charities on improving the process of resolving disputes about children.
As Liam Kerr said, the Scottish Conservatives are broadly supportive of the intent of the bill and, as such, will support it at stage 1, with a view to improving it at stage 2.
I run the risk of repeating what other members have said, so I will use my time to focus on two elements of this extensive bill and consider the views of the Justice Committee and the organisations that presented evidence to it.
First, I note the proposals to improve children’s participation in the court process. In particular, sections 1 to 3 seek to remove the presumption that only a child who is aged 12 or over is of sufficient maturity to form a view. The bill provides that all children should be able to give their view if they wish to do so and are capable of doing so. During the call for evidence, that change was welcomed by charities such as Who Cares? Scotland, which went on to say:
“the removal of the presumption must come alongside new resources and approaches to facilitate participation from those under 12 to engage meaningfully with the court process and should not result in young children being expected to fit into a system designed for adults.”
I note that the Justice Committee and stakeholders took the view that the wording in the bill might lead to misinterpretation and that decision makers might therefore come to a view that a child did not have capacity to give their view. I therefore welcome the Scottish Government’s commitment to address that issue by amendment at stage 2, which I hope will strengthen that provision.
Section 15 is important, as it will ensure that any decision that is taken by the court has to be explained to the child, where possible. Many courts and judges do that already, of course, but it seems important to place the approach on a statutory footing. Given that it is not currently a requirement for a court to explain decisions to children in a manner that they can understand, the provision will ensure that decisions have to be explained either by the court or by a child welfare reporter. I think that, in the financial memorandum to the bill, it is suggested that the latter method will be used in the vast majority of cases. The committee’s report highlights the view of the Children and Young People’s Commissioner Scotland that explaining decisions to children is
“An important part of the participation of a child”.
Concerns have been expressed about section 15, including by the Faculty of Advocates, and the committee recommended:
“The Scottish Government should before Stage 2 set out how it will address the practical issues raised about the duty in section 15”.
I note that the Government has indicated that it will address the matter.
The second element that I want to talk about relates to the potential failure to obey a court order. In that regard, I highlight section 16, which relates to how courts should respond to a situation in which one parent breaches a court order in favour of another parent or relative. At present, parents who are found in contempt of court may be fined or imprisoned, but the bill would introduce powers to investigate why a breach of a court order took place and whether special circumstances led to the breach. That would allow courts to decide whether finding a parent in contempt of court would truly be in the child’s best interests and, instead, to consider alternative courses of action, such as adjusting the court order.
I note the conflicting views on the provision. For example, Scottish Women’s Aid states:
“We know from our services that women who ‘fail to comply’ with contact orders are often, in reality, protecting their children from abuse, and have been subject to criminal proceedings as a result.”
On the other hand, the senators of the College of Justice—the most senior judges in Scotland—argue that the provision is unnecessary. In their written submission, they state:
“The nature of contempt of court proceedings already ensures that the court must take into account the reasons for any failure to obey an order. There is a risk that its introduction would encourage parties to disobey a court order in order to draw attention to what they perceive to be its injustice, and so indirectly seek to bring about its variation or discharge.”
I acknowledge that the Justice Committee’s report recommends that,
“If section 16 of the Bill is retained, the ... Government should amend it at Stage 2 to make it clear that, as part of any investigation, the views of the child or children involved should be sought, where they wish to give their views.”
That appears to be in keeping with the general theme of the bill and, again, I welcome the fact that the Government will make proposals at stage 2.
The bill is extensive, thorough and important, and I concur that it is needed not only to change existing legislation in the area but to comply further with the UNCRC in relation to family court cases. As I have said, the Scottish Conservatives are content to support the bill at stage 1, but we will continue to scrutinise it at stage 2. Children who end up going through the pain and stress of entering the court system as a result of parental dispute should always be at the forefront of our decision making—they come first. Although I look forward to the bill progressing, I encourage anyone to make positive amendments as it goes through Parliament.
16:42Kenneth Gibson (Cunninghame North) (SNP)
I am pleased to speak in this stage 1 debate on the Children (Scotland) Bill. It is another example of getting on with what matters, even as the pandemic continues.
Tempting as it is to start with the words “As a father”, I do not think that that would be fair, nor does any of my young scamps have a birthday today. The purpose and benefits of the bill will be clear to everyone, whether or not they have children. After all, it does not take being a parent to understand that we must always seek to protect and nurture children in all that we do. Further enshrining children’s rights in legislation to help them to weather traumatic experiences is part of that work.
This year, we celebrate the 30th anniversary of the UN Convention on the Rights of the Child. As is set out in the 2020 programme for government, the Scottish Government is stepping up its
“awareness-raising programme for children’s rights”
and placing them at the heart of decision making. We seek to better the lives of children now and ensure that those who come after us are not subjected to the same inequalities that people of older generations were. That is why the Scottish ministers are committed to the policy of getting it right for every child, which includes giving all children the best start in life, working to close the attainment gap, extending free childcare provision and much more. Indeed, those aspirations are shared by members across the chamber.
Presiding Officer, 2018 was Scotland’s year of young people, during which their voices were heard louder than ever and their achievements were celebrated. Important as it is to support children under all circumstances, we need to give them extra support during times of trauma and when kids are not all right. As we continue to learn more about the impact of adverse childhood experiences on the rest of our lives, such experiences are increasingly recognised and must be acted on. The Scottish Government’s decision to incorporate the UN Convention on the Rights of the Child into Scots law, which made Scotland the only United Kingdom nation to incorporate it, was the right one.
The UN Committee on the Rights of the Child considers that the elements that should be taken into account when assessing and determining a child’s best interests should include their views and identity, “Preservation of the family environment and maintaining relations”, “Care, protection and safety”, “Situation of vulnerability”, and the child’s right to health and education. That is what the bill is all about.
I want to elaborate on two factors that particularly spoke to me as I examined the bill: maintaining family relations and vulnerability. Regarding the former, I will home in on the unique relationship between siblings—particularly as addressed in section 10 of the bill, which amends section 17 of the 1995 act such that the local authority must
“take such steps to promote ... personal relations and direct contact between the child and any person mentioned in subsection (1A) as appear to them to be, having regard to their duty to the child under paragraph (a), both practicable and appropriate.”
The Scottish ministers consider that a sibling relationship can extend beyond a biological brother or sister, and I fully support that view. Duties will extend to full, half, step and adopted siblings and will include sibling-like relationships.
My sister and I grew up in a home that was often very disruptive. We relied on each other, and I am convinced that our shared experiences and being there for each other is a big reason why we are so close—as is the fact that we are twins. I am sure that I speak for many when I say that being separated from my sister in childhood for whatever reason would have been the worst thing that could have happened to either of us. I can only begin to imagine how difficult such a loss of contact would be for a child who has had to be placed not with one parent after a split but in the care of a local authority because staying with a parent was not deemed to be safe. That in itself is difficult for any child who is likely to be dealing with severe trauma. Adding to that the loss of contact with their trusted sibling must lead to extra stress and feelings of isolation—not to mention exacerbated concerns about the wellbeing of their brother or sister.
For those who do not have any sibling bonds, the facilitation of contact with grandparents may fulfil a bigger role. Therefore, I would like to see further details of the steps that ministers intend to take to promote the charter for grandchildren during stage 2. Although I appreciate that asking councils to facilitate and promote sibling and grandparental contact can add extra practical and financial pressures, we must do all that we can to help councils to do so rather than just bestow pressures on them. I am certain that the Convention of Scottish Local Authorities, the charity Stand Up for Siblings and other children’s rights organisations will provide clear and workable input reflecting such needs, and I look forward to seeing more detail as the bill progresses through stage 2.
Looking at vulnerability, it is important that we take a moment to acknowledge that some children already live with conditions and disabilities and may also go through difficult family situations. Children’s hospitals across Scotland represent children who live with life-shortening conditions and help children who may require further support to enable their participation in proceedings, given their increased vulnerability. Pressures leading to difficult situations can occur in every family, and children who already have other challenges to deal with are sadly not exempt from added pressures in their family life. Some children may be non-verbal or have other communication challenges, so inclusive communication means and support are crucial if we want children’s voices to be heard loud and clear.
There are situations in which a court may consider that a child may not be capable of understanding decisions. In the light of that, I am pleased that the bill will have a positive impact in relation to the protected characteristic of disability, as it contains provisions allowing the courts to authorise the use of special measures to protect vulnerable parties.
I thank the Justice Committee for looking at the bill and, as always, the civil servants who worked on it and all others who contributed so heartily. I look forward to voting in favour of the bill at decision time, and I trust that colleagues across the chamber will do likewise.
16:48Pauline McNeill (Glasgow) (Lab)
I, too, thank the Justice Committee for its excellent work and note that there have been many excellent speeches in the debate. I agreed with the minister when she said in her opening speech that civil law is often overshadowed in the Parliament. The debate is testament to the fact that it has been overshadowed, because the speeches in this stage 1 debate have been high quality—I am not saying that that is rare, just that the debate has been of high quality, and that I welcome that.
I thought that it would have been more appropriate if the bill had had the idea of children’s rights in its title, because, as I have been hearing all afternoon, the aim of the bill is about broadening and protecting the rights of children in relation to their views, reviewing the 1995 legislation and applying the UN Convention on the Rights of the Child.
Omitting children’s views is disempowering and leads to poorer outcomes, according to some of the evidence that we have heard. It is fundamental in all decision making that affects children’s lives that their views are established. That we have taken this long to bring the issue to this point is, perhaps, an omission on our part. Scottish Labour supports the general principles of the bill and I support the removal of the existing presumption in the 1995 act that only a child aged 12 or over is of sufficient age and maturity to form a view, although I accept that, in some cases, courts seek the views of children under the age of 12. I also agree with the view expressed in the committee’s report that a 12-year-old child is no more able to express a view than a child who is one day short of his or her 12th birthday. It is concerning to read that the committee
“heard consistent evidence that ... the views of younger children are not routinely heard in practice.”
The removal of that nominal minimum age is an important step in rectifying that.
There are a couple of areas that are worthy of further exploration. The first has been addressed by others. It is about ensuring a consistency of approach, given that no minimum age will be set in the legislation. The question is, how low in age will the courts go when hearing from children? I suppose that the courts will have to judge that for themselves. It will be done on a case-by-case basis but we need to ensure that there is a consistency of approach, otherwise we could end up with an uneven and unwanted situation.
It is important to ensure that the actual views of the child are sought—that is critically important. I think that Jamie Greene made that point in an intervention. There is no point in changing the law if the law is not changed to such a degree that the views of the child are heard. I say that because, during my time as convener of the Justice 1 Committee many years ago—Margaret Mitchell also served on that committee—there was a substantial appeal case that was well known at the time that involved a situation in which, it transpired, a child was sitting on their mother’s knee and answering questions led by the mother in a court case that led to a criminal conviction. That would never happen now but it is important to recognise that the views of the child must be sought and not the views of the parent leading the child. Otherwise, there would be no point in doing this.
I also want to address the question of failure to obey a contact order. That is a really important area of the legislation, notwithstanding Neil Findlay’s point about the need to regulate contact centres and Donald Cameron’s excellent contribution, and I want to talk separately about the Scottish Women’s Aid briefing and the issue of domestic violence. I have seen up to 15 cases where domestic violence has not been involved, but the other parent has not complied with a contact order. That has been going on for years and I think that it is wrong. At stages 2 and 3, ministers and the committee should fix that aspect.
On the question of what is in the welfare interests of the child, there must be a presumption that everyone who has previously been in a child’s life—their parents, grandparents and siblings—should maintain contact. To do otherwise would not be in the welfare interests of the child.
I might be recalling this wrongly but I am sure that, around 2006, members of this Parliament, including Kenny Gibson, were involved in the establishment of the grandparents charter. The question keeps arising about whether to give grandparents rights. That question is going to keep coming back until, perhaps, there is a presumption by the courts when making a decision about the welfare interests of the child that contact with both parents, where there is no violence involved, and with grandparents and siblings is absolutely a requirement for the welfare interests of the child.
I am pleased that one of the stated aims of the bill is to
“further protect victims of domestic abuse and their children”.
I was particularly concerned to read that Children 1st has said that, within its services, there are reports that the courts are used in a way that allows domestic abuse to continue to be perpetrated and that children feel that no one is listening to them. The stage 1 report sets out that
“For those cases that do go to court, research published in 2012 suggests that domestic abuse is alleged in just under half (47%) of court actions over contact. The Committee heard arguments from stakeholders including Scottish Women's Aid and ASSIST that, given the percentage of court cases affected by allegations of domestic abuse, it is important to design the law and court system around the most vulnerable adults and children.”
The issue is about balancing the interests of everyone involved and recognising that our system must recognise the views of children and must protect women and children from domestic violence, but must also ensure that parents are well served by the courts when the views of children are given, and that it is the children’s views that really matter in drawing those conclusions.
16:54Bob Doris (Glasgow Maryhill and Springburn) (SNP)
I start by thanking the constituents of mine whose experiences of contact centres and the family court system have powerfully informed me of the need for reform. Before I speak about contact centres, I give the disclaimer that there are many good ones out there doing wonderful jobs. However, constituents never contact members to say that a contact centre has done a good job; they tell us when a contact centre has got it wrong. I have had a cluster of cases around one particular contact centre, although obviously I will not name it.
I am strongly in favour of the regulation and inspection of contact centres. I will begin with minimum standards of accommodation. A constituent of mine who is a father has not seen his disabled son for three years. The most recent central reason for that has been that there was no disabled toilet with a hoist. Currently, there are no requirements for centres to have such facilities. The courts use a list of contact centres, but it appears that those centres do not have to comply with disability requirements and nor do the courts seem to take that issue into account. As recently as April, my constituent told me that the contact centre in question now has a disabled toilet and a hoist, but his lawyer is still trying to secure funds for a changing mat and a trained member of staff to use the hoist. That is simply ridiculous and unacceptable.
I therefore welcome the provisions in section 9(3) on minimum standards of accommodation, but that does not specifically mention disabled access. Perhaps that needs to be specifically in the legislation. Nor does the bill place requirements on courts to ensure that the contact centres that are on their lists are compliant. When I contacted the sheriff principal in my area, I was left in no doubt about the independence of the courts, and I was referred back to the lawyer. I get that, but surely courts should ensure that their lists of contact centres are accessible as a matter of statute and not just as a matter of discretion, good will and independence. I ask the minister to say whether the bill can deal with that issue.
I want to ensure that there is regulation of all contact centres. Just because a contact centre is not mentioned on the interlocutor, that does not mean that it should not be regulated and inspected, so we have to look at that, too.
Another of my constituency cases relates to the robustness, professionalism and accuracy of reports that are compiled by contact centres to go to the courts. A constituent of mine was concerned about the underlying weighting that some courts give to those reports. To be fair to those who draft such reports, given that there are no clear national standards, guidance or training for their authors, the situation is perhaps unsurprising. When a new contact centre was appointed for my constituent and the contact was observed, a report to the court transformed her experience with her child and with the courts.
In the time that I have left, I want to talk about an exceptional young woman who is a constituent of mine and who has been let down by the current system. She has fought adversity to protect her son and her family. I will not name her, although I thank the minister for taking the time to meet her and hear her story. Instead, I will call her Elle—she asked to be called that because, frankly, her life has been hell. I also pay tribute to Gay in my office, who has worked closely with Elle and her family every step of the way.
When Elle first contacted my office, she was hugely anxious that her abusive ex-partner was using the court system and her child to continue to exercise power and control over her. With the support of my office and Police Scotland, who I thank, a conviction was secured for previous domestic abuse. However, Elle remained hugely worried that the courts were keen to accelerate contact between the ex-partner and her child without taking full account of all the court reports—I will say a little more about that in a moment. Elle was concerned about the weight that was placed on the contact centre report that went to the court and she had concerns relating to partiality and inaccuracies. It seemed that the requirement for the ex-partner to engage in anger management was ignored.
Neil Findlay
The member mentions a situation that is similar to one that a constituent of mine was in. I want to put on record that my constituent was forced to bring a petition before Parliament after she had gone round the houses getting no answers, including through the courts. Indeed, she was threatened with jail for contempt of court for refusing to comply with an order that would have put her children in an unsafe situation. That is the sort of situation that we have to remedy with the bill.
Bob Doris
I thank Mr Findlay for putting that situation on the record. I absolutely agree with him.
I know that time is tight, Presiding Officer, but I want to get some more testimony on the record this afternoon.
When Elle’s child was unwell, the sheriff would not accept general practitioner evidence that that was the case. The GP would have to take the stand for it to be accepted, but that was not possible. Elle was fined £1,000 and some of the money went to her ex-partner as compensation. When Elle was ill and in hospital following the birth of her new baby, who is a joy in the new life that she is getting on with, she asked her grandmother to take her child to the contact centre. Elle was named on the court order to take the child there, and her ex-partner threatened her again with contempt of court. Only by changing her lawyer with 24 hours’ notice of appearing in court did Elle get it dropped. She was threatened with jail by an abusive ex-partner.
The reason I am saying this is because the people who are making the case for section 16 to be removed are simply wrong. There are many reasons for a failure to obey an order, and courts do not always have time to consider them. Section 16 must stay; it must be central to the bill’s provisions. If it has to be amended, let us do that, but it must stay.
Section 16 will protect people like my constituent Elle, and it will also protect non-resident parents. As members have said, some people will play the system—let us be honest about it. Courts—I mean here sheriffs and lawyers—quite frankly do not always look at all the reports or read all the paperwork, perhaps because of time constraints. Having that brake on the system to inquire about why contact has not taken place is vitally important, rather than threatening an abused woman—a victim—with jail for trying to protect her child. I am putting that on record here this afternoon.
I have asked for a couple of amendments to the bill. I want the legislation to be clear about the role of reports from contact centres that go to the sheriff and the weight that the sheriff should place on them. Without regulation, details and consistency, I think that they have undue influence on sheriffs and I do not think that that is acceptable.
17:02Keith Brown (Clackmannanshire and Dunblane) (SNP)
I start by wishing Ruan MacGregor a happy birthday.
I am grateful for the opportunity to speak in support of the bill at stage 1. The bill is of particular interest to me, although I am not a member of the committee, and to many of my constituents. It is also of great importance to many parents and children across Scotland.
We all acknowledge that family separation is, even at the best of times, a painful and difficult process. Trying to legislate on it can sometimes be even more difficult. Many constituents have contacted me over the years to express continued concern about the way in which family law operates in Scotland, but I am very cautious of the ability of Government to provide simple solutions for the deeply complicated family situations that can often surround separation.
Notwithstanding those points, it is clear that the law and legal frameworks need updating. There are fundamental values over which there can be no disagreement. The law must protect women and children, and indeed everyone, from domestic abuse and ensure that abusers do not have continued access to the people whom they have abused. It is also very important to protect people from malicious accusations of abuse—an accusation of abuse can often be used to strengthen someone’s legal position or in a vindictive way. That is why I welcome, as others have, the further measures that the bill introduces to protect abuse survivors and vulnerable witnesses.
Some of my constituents believe that the bill represents a missed opportunity when it comes to updating the law, and that it does not address some of the difficulties that they face. An issue that has been continually raised with me is that of shared parenting. Countries such as the Netherlands and New Zealand have a presumption of shared parenting. However, we do not have that in Scotland, which often results in what many feel to be a tiered system of parenting, in which those who live with the child are able to dictate access to the parent who does not. I was recently contacted by a constituent who alleges that her ex-partner is using the Covid-19 crisis as an excuse to prevent her from seeing her child. Although there are many legitimate reasons to reduce contact with a child, I am sure that many members will agree that it is not reasonable that parents are able to prevent responsible ex-partners from accessing their children in that manner.
Attempts to address such concerns through the standard system of mediation are often not productive. Parents with residence may not attend, with an adversarial court process the only remedy for parents without residence, bringing with it conflict and financial and emotional costs.
Contact orders that have been issued by the courts may not be complied with, with seemingly little recourse for parents who have been deprived of time with their children. I take on board what Bob Doris and others have said about contact centres and some of the issues that arise in relation to non-compliance with contact orders, but sometimes such things are used by one parent against another.
Although the proposed improvements with regard to child welfare reporters are positive—
Bob Doris
I take on board the point that Keith Brown makes. We must ensure that the system is fair to all parties and, most important of all, to the child. I am not totally convinced by the idea of a presumption of shared parenting, but does Mr Brown think that we should make it clear in legislation that there should be a duty on courts to consider shared parenting, which might not be up front at the start of the process?
Keith Brown
On the face of it, I have a lot of sympathy for that idea. It would certainly meet with the approval of those people who have contacted me on the issue.
More widely, Shared Parenting Scotland, which I know that the minister has met—I am grateful that she has met me, too, to discuss these matters—has raised concerns about the lack of reform in the language that is used in the bill. I expect that we will return to that issue as the bill develops.
In my view, the bill—especially the measures to ensure that the views of children are more effectively heard—represents a substantial improvement to family law in Scotland. However, it also represents an opportunity to introduce a measure of equity into our family law and to remove some of the historical inequalities that continue to overshadow it, which prevent parents from contacting and spending invaluable time with their children. Incidentally, I agree with what the minister said in response to Alex Cole-Hamilton on the rights of grandparents, which is an important issue on which we have all had representations. However, I do not think that such rights should cut across the rights of the children or, in some cases, the parents.
To go back to Bob Doris’s point, introducing a presumption of shared parenting, in line with the situation that exists in the jurisdictions of many of our European neighbours, would help to address—although, of itself, would not fix—many of the concerns that my constituents have raised. Such a presumption is in keeping with the spirit of the Scottish Government’s position on parenting and, crucially, is in the spirit of being in the best interests of children.
In my view, it is right that the Government believes that the best interests of the child must always be at the heart of family justice modernisation. Children’s wellbeing and their futures must be our priority. Ensuring that the family law system is just and fit for the challenges of the 21st century is a key part of that effort.
As I said, I am very grateful to the minister for meeting me to discuss the concerns of my constituents and the organisations that have been in touch with me, and I ask that, in continuation of that collaborative spirit, the issues that I and others have raised today be considered at future stages of the bill’s consideration.
The Deputy Presiding Officer
We move to the closing speeches.
17:07James Kelly
As Pauline McNeill pointed out, it has been a very high-quality stage 1 debate. Members have come to the chamber after looking not just at the Government’s bill, the general principles of which everyone agrees with, but at the evidence and the Justice Committee’s stage 1 report. There have been many good speeches and interventions, and there has been good interaction and an exchange of ideas across the chamber. I am sure that the minister will have listened carefully to what has been said and that it will inform not just the Government’s thinking as it goes into stage 2 but that of different members and different political parties, which can only help to improve the bill overall.
As Liam McArthur pointed out, we do not want to find ourselves in a situation in which we just pass a piece of legislation that we all feel good about because we all agree with legislation that is about improving the rights of the child. The bill that we pass must work in practice. That is where the parliamentary process can play an important role as we move through stage 2 and stage 3.
I welcome the fact that the minister has indicated that the Government will lodge amendments on the removal of the 12-plus presumption and that it will ensure that the rights of children are consistent across all age groups. I welcome, too, the fact that the issue of non-compliance with contact orders is to be addressed.
As we enter another month of the pandemic, the issue of delays in the court system is very current, although we had not heard of Covid-19 when the committee took evidence on the bill. The Government has sought to address the issue through section 21, which says that
“the court is to have regard to”
any adverse effects that delays in the court system may have on children. However, the requirement to “have regard to” might not be strong enough. That will need further debate and perhaps amendment at stage 2.
Members made a number of important points about confidentiality. Alex Rowley and Rona Mackay were right to emphasise the important point about children who live in a situation where there has been domestic abuse in the house. In that regard, confidentiality has to be balanced out and the issues of domestic abuse victims have to be taken into account by the courts.
John Finnie and Liam McArthur brought up the important issue of alternative dispute resolution. A lot of parenting disputes end up in court, but if such disputes can be resolved outwith court, it is to the benefit of not only the court system but the individuals who are involved. John Finnie made an important point about legal aid, which also came up in the committee evidence. Many people cannot afford the access to legal aid that is required, and the Government needs to take that on board.
A big issue that has run through our discussions this afternoon is contact centres. As a number of members said, there are examples of good practice and good contact centres, but it is clear that, given members’ experiences of cases that have been brought to them, they have concerns about the operation of contact centres. There is a strong case for looking at the regulation of contact centres in amendments.
As I said in my opening speech, if we are to get the legislation to work properly, there needs to be proper financing. Contact centres are an example of that, with the initial Relationships Scotland funding being withdrawn, and there is a need for proper support and funding for child welfare reporters. Margaret Mitchell raised that in her opening speech.
There has been a lot of lobbying of MSPs on behalf of grandparents who are looking for a presumption in favour of grandparents’ rights to be included in the bill. We heard an intervention on that from Alex Cole-Hamilton. As Pauline McNeill pointed out, it is important that the rights of the child are central to the bill. However, Kenny Gibson was right to point out the importance of more promotion of the grandchildren’s charter as a way forward.
Pauline McNeill
Does James Kelly agree that it is important that the Government does a wee bit more work on the issue of grandparents? Given the work that I have done and what I have heard anecdotally, it concerns me that the grandparents who do not have contact are often those who are on the side of the family members who do not have residence. If that is a recurring theme, does the member agree that ministers should look at it more closely?
James Kelly
The Government has drafted the bill in such a way as to emphasise the rights of the child, which is correct. However, given the number of members who addressed the subject and the amount of correspondence that we have received on it, it is clear that there are issues to do with grandparents’ rights, and the Government needs to examine the subject closely.
We support the general principles of the bill. It represents a good start and I think that, with a bit more work, we can produce a bill that will serve the rights of children properly.
17:14Jamie Greene (West Scotland) (Con)
I thank all members for their very thoughtful contributions. As Kenneth Gibson said, it is good to see the chamber resume some form of normality in looking at very important and quite sombre legislation.
Rona Mackay opened her comments with something that sticks in my mind about why the bill is so important. The bill, and the debate that we are having around it, finally gives children a voice in a system that is designed to listen to adults. That perfectly sums up the premise of the bill—what it is about and why it is necessary—and what should lie at the heart of the debate around it.
Pauline McNeill backed that up when she said that, although we talk about child protection, we are also talking about children’s rights. We are reviving a 25-year-old piece of legislation, and so much has happened in the 25 years since it was passed. There is clearly a much more prominent focus on giving a children a voice in the conversation today.
I would say that everyone has a voice: children themselves, unmarried fathers, siblings, grandparents, and third-party agencies that have been in touch with us. The law also has a voice.
Custody is complex. It is not as simple a matter as it was perhaps presented to be in the 1995 act, with two parents fighting over access or custody. These days, no two families are alike, so the balance between consistency in the application of the law and flexibility will be a recurring theme.
I turn to some of the comments that were made today. The minister started by talking about the consultation process, and I was quite struck by that. She mentioned the sheer scale of the engagement in the consultation with children and young people themselves. It marks progress for the Parliament that young people have been included at such an early stage of a bill, to allow us to make informed decisions. Including and listening to a wider diversity of voices in the legislative process, including those of young children, is difficult, but the tone of the debate has been good. It feels more inclusive and it feels as though this legislation will be more inclusive.
I made an intervention about how we listen to children’s voices. We do so in a context that protects them from coercion by either parent. That is important. I welcome the minister’s response to that intervention: child welfare reporters will receive more training to spot such behaviour but, as other members have raised, that requires resources and training.
That theme has cropped up a few times in the debate. It is all very well legislating for something, but the financial memorandum needs to back that up with resource. If contact centres are not fulfilling their obligations because they do not have the infrastructure that they need to deliver for the people who use them, there is a problem. There is an opportunity here to fix that—in legislation or otherwise.
Many people talked about grandparents. I can speak personally about this, because when my parents were shouting and bawling at each other, it was my grandmother whom I often went to visit, because that was a safe space for me. The same is true for many children across Scotland, even today. Balancing the rights of grandparents is tremendously difficult, just as it is difficult to balance the rights of siblings, parents or any other people with whom a child has a relationship. However, we have to strike that balance as we go through this process.
The experiences that Bob Doris shared put a human face on what is largely technical legislation. The anecdotal stories that he gave us about the realities of shared parenting made a forceful argument in support of section 16. I know that committee members and others who are in the chamber or participating virtually would have been listening to those stories. They remind us how complex, blanket legislation does not always address the needs of individual circumstances. Again, that is a difficult balance.
Pauline McNeill
I ask Jamie Greene the same question that I put to James Kelly. I do not know the answer to this. If it were shown that grandparents from the side of the family that does not have residence were getting less contact with their grandchildren, would that suggest that there was something wrong that might need to be fixed?
Jamie Greene
Absolutely. Just as children are on the receiving end when two adults are having a dispute that is no fault of the child, it is equally no fault of the grandparents, who are in the middle of it. Whether it is possible to legislate to meet those needs, I am not sure. I think that Liam Kerr touched on that. I know that the committee will look carefully at that at stage 2 and with a positive and open mind. However, that throws up the issue that the legislation cannot take into account every scenario. Does apportioning rights to grandparents or siblings detract from the rights of any other party in the discussion? The disputes and negotiations are often complex. As Gordon Lindhurst said, the judge has the freedom and independence to make the decision on the evidence that has been presented to him.
I wish that I had more time. I thought that I would struggle for content because I am not a member of the Justice Committee, but a lot has been said today.
The issue of mediation and early resolution is very important. It is always better if people do not get to court. Signposting is not always good enough for many parents, but there were suggestions that mandatory mediation could be piloted. That seems sensible, but it might not always be appropriate, especially in the circumstances of domestic abuse.
Issues to do with confidentiality, sharing information, conflicts of interest between parents, section 10 and the weakening of language around the rights of siblings have been raised. Those are all valid technical points to be debated at stage 2.
Let us not forget that, as James Kelly said, it is important that, in a dispute between parents, it is the children who are at the centre. It is the children who are caught in the middle of that.
I wish Fulton MacGregor’s son a happy birthday—I promise not to sing. Fulton MacGregor made an important point. His experiences as a social worker remind us that disputes are legal, but they are also human. People are at the heart of law, and people—even little people—should be at the heart of the legislation.
17:21Ash Denham
I am very grateful to members who have contributed to the debate, and I agree with Pauline McNeill about the quality of the speeches that we have heard.
A key point from the debate is that the bill is only one part of the work on reforming family courts. However, I note, as other members have, that Rona Mackay summed things up very well when she said that the bill gives children a voice.
I am very pleased that there is so much consensus across the chamber. It is agreed that the bill is a step forward, and I am glad of the support for the bill’s general principles. I have listened very carefully to what has been said about the many detailed issues that have been raised, and I will address as many of them as I can in the time that I have available. I also reiterate that I am always happy to look at proposals that will improve the bill.
On looked-after children, I reiterate that we want the duties relating to siblings and funding—that issue was raised by a number of members, including Liam Kerr and James Kelly—to be implemented. The Government is absolutely determined to make progress and will work with local authorities and other partners to assist with implementation.
As I said when I intervened on Liam Kerr, my view is that the care review report reassures us all that the money is in the system. It is, possibly, how the money is being spent that is the issue. The First Minister has committed the Government and local authorities to working with all focus to make the care review changes as fast and as safely as possible, so I am determined that we will see progress on that.
Use of the word “practicable” was mentioned a number of times. I am listening to what is being said on the matter, and will consider it further ahead of stage 2.
The theme of contact centres has run throughout the debate. The issue was raised by Margaret Mitchell, James Kelly, Rona Mackay and Bob Doris, who gave anecdotes about contact centres in relation to which he has constituency cases. I appreciate members’ comments about contact centre regulation; I am sure that all members agree that, in all cases, contact must be safe for the child and must be in their best interests. Members will agree that minimum standards for training and accommodation will help to ensure that all contact centres are safe locations for children.
I accept members’ suggestion that regulation should cover solicitor referrals—Bob Doris, I think, made that point—and self-referrals. I agree with that, but it is not possible, because there is no obvious sanction for lawyers or individuals for not ordering contact at a regulated centre. I hope to do all that I can to encourage use of regulated centres for self-referrals and solicitor referrals.
The subject of funding for contact centres was also raised. Members will recognise the need for sustainable funding arrangements to be in place. The Scottish Government currently provides funding to Relationships Scotland, which is the organisation that runs the majority of contact centres. As is set out in the bill’s financial memorandum, we will provide funding to cover the additional costs that will be involved in regulation. Members might also be aware that Relationships Scotland’s National Lottery Community Fund funding came to an end in March. Consequently, we have provided it with an interim grant and an assurance that an appropriate level of funding will be made available for contact centre services until 31 March next year.
Jamie Greene
If, as the Scottish Conservatives have, the minister has received anecdotal evidence that some contact centres are simply not working for those who need them to work, will she ask her agencies to intervene to ensure that such places fulfil their necessary obligations?
Ash Denham
Of course I will. The bill says that we will appoint a body to oversee regulation of contact centres. That deals with Jamie Greene’s point.
I am sympathetic to the arguments on confidentiality that Liam Kerr and others made. As members would acknowledge, that involves the need to balance competing rights. That said, I am considering lodging an amendment at stage 2 so that, in cases under section 11 of the 1995 act, in which the court is considering whether to disclose confidential documents, the welfare of the child who provided the documents would be a primary consideration.
Margaret Mitchell raised the timing of the Government’s response to the Care Inspectorate’s feasibility study. I will endeavour to prepare a detailed response to the Justice Committee in advance of stage 2. However, I point out that in order to do so we are having to work with the Care Inspectorate, which of course is currently very taken up with the response to Covid-19. If there is further delay in the response process, I will let the committee know forthwith.
Grandparents’ rights came up repeatedly, from members across the chamber.
Liam Kerr
I want to ask this question to ensure that it can be addressed before we run out of time. However, I appreciate that the point about grandparents’ rights is also very important.
In my speech I asked members for reasons why I should revise my preliminary view that section 16 might not be needed. Bob Doris took me up on that and spoke about the issue extremely persuasively and powerfully. Will the minister take this opportunity to encourage those who expressed the opposite view to the committee to respond to that evidence before stage 2 if they remain unpersuaded?
Ash Denham
I will. I will come on to address section 16 in a moment, because it has been raised several times during the debate.
A number of members—among them Margaret Mitchell, Fulton MacGregor and Kenny Gibson—asked me to explain a bit more how I intend to promote further the charter for grandchildren. One of the actions of the family justice modernisation strategy will be promotion of that charter. A key aim of the strategy is to ensure that bodies such as local authorities, Social Work Scotland and organisations that represent family lawyers are fully aware of it. I will write to those key bodies to draw their attention to the charter.
I also intend, if the bill is passed, to issue circulars on implementing the legislation and on related matters. The Government will ensure that one such circular will specifically cover the charter. I will also ensure that information on the charter is made more prominent on the Scottish Government’s mygov.scot website, and on associated platforms. Furthermore, I commit to engaging with key stakeholders—including Grandparents Apart, which I have met previously, but would be happy to meet again—to discuss steps that they think the Government could take to raise awareness even further.
I turn to section 16, on non-compliance with court orders, which Liam Kerr has just raised and was mentioned earlier by a number of members. From the consultation’s events and the responses that were received through it, I am aware that that is a very complex area, as, I am sure, all members accept. We have heard concerns from resident parents that they are not complying with orders because of fears about children’s safety. Some non-resident parents have raised concerns that resident parents are deliberately not complying with court orders, but without good reason. I am also aware that the judiciary is already investigating non-compliance in some cases. The bill’s provisions are therefore extremely important, because they will create consistency across Scotland on that significant issue. They will ensure that in every case in which non-compliance with an order is raised, it will be investigated, either by the court or by a child welfare reporter. The bill will also ensure that the child’s views will be sought during that process. I hope that everyone in the chamber would agree that that is progress.
In conclusion, I say that throughout the development of the bill, in the conversations that I have had with children who have been through the family court system, their descriptions of what had happened to them, how it had impacted on their lives and how they felt the system had let them down, stayed with me: they affected me very deeply. The experiences of those children have guided me, so I wanted the bill to put the voice of the child at the very heart of the process.
I wanted the bill to better protect victims of domestic abuse and their families. I wanted more information on what should be expected to be available. I wanted important decisions to be communicated in simple language to the children involved. I wanted children’s welfare to be paramount. I also wanted consistency to reach across the whole of Scotland, so that a child in Galashiels could expect exactly the same as a child in Inverness. I hope that Parliament will agree that I have achieved those aims.
One girl told me:
“I have a voice, and I want to have a say in the decisions that affect my life, but no one is listening to me.”
The bill aims to change that. If it is passed at stage 1 this evening, it will be setting out to ensure that the experiences that were shared with me by those children will not be the experience of a new generation of young people going through the family court system.
Presiding Officer, I commend the motion to Parliament.
The Deputy Presiding Officer
That concludes the stage 1 debate on the Children (Scotland) Bill.
27 May 2020
Vote at Stage 1
Vote at Stage 1 transcript
The Deputy Presiding Officer (Linda Fabiani)
There are three questions to be put. The first question is, that motion S5M-21834, in the name of Ash Denham, on the Children (Scotland) Bill, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Children (Scotland) Bill.
The Deputy Presiding Officer
The next question is, that motion S5M-20712, in the name of Kate Forbes, on the Children (Scotland) Bill’s financial resolution, be agreed to.
Motion agreed to,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Children (Scotland) Bill, agrees to—
(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and
(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.
The Deputy Presiding Officer
The final question today is, that motion S5M-21849, in the name of Graeme Dey, on approval of a Scottish statutory instrument, be agreed to. Are we agreed?
Members: No.
The Deputy Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Findlay, Neil (Lothian) (Lab)
Gibson, Kenneth (Cunninghame North) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gray, Iain (East Lothian) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wightman, Andy (Lothian) (Green)
Abstentions
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Deputy Presiding Officer
The result of the vote is: For 47, Against 0, Abstentions 11.
Motion agreed to,
That the Parliament agrees that the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/138) be approved.
Meeting closed at 17:35.27 May 2020
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
Meeting on amendments
Documents with the amendments considered at the meeting that was held on the 23 June 2020:First meeting on amendments transcript
The Convener
We move to our main item of business. Agenda item 4 is stage 2 proceedings on the Children (Scotland) Bill. I welcome back the Minister for Community Safety, Ash Denham, and her officials. I also welcome a number of members of the Scottish Parliament who are not members of the Justice Committee but who have lodged amendments to the bill.
We have a lot of amendments to consider this morning, and the process will work well if we take it slowly and steadily. When I call a member to speak, they should take a moment to allow their microphone to be switched on.
There will be one debate on each group of amendments. I will call the member who lodged the first amendment in that group to speak to and move that amendment, and to speak to all the other amendments in the group.
I remind members who have not lodged amendments in the group but who wish to speak to request to speak by typing “R” in the BlueJeans chat box function. I ask members to do that as soon as I have called the relevant group and to speak only when their name is called.
I will invite the minister to contribute to the debate just before I move to the winding-up speech. The debate on the group will be concluded by me inviting the member who moved the first amendment in the group to wind up.
Only committee members are eligible to vote, and voting will take place using the BlueJeans chat function. Once I have read out the result of the vote, if any member considers that their vote has been incorrectly recorded, I ask them to let me know as soon as possible. I will pause to provide time for that.
Depending on how long proceedings take, I will suspend the meeting for five-minute comfort breaks at suitable points. Given the time constraints, I encourage everyone who speaks today to make short, succinct contributions.
Section 1—Proceedings under Children (Scotland) Act 1995
The Convener
Group 1 is on having regard to the voice of the child. Amendment 1, in the name of the minister, is grouped with amendments 47, 2 to 4, 48, 5, 6, 49, 7, 8, 50, 9, 51, 10, 37 and 38. I point out that if amendment 47 is agreed to, I will not be able to call amendment 2.
Ash Denham
The amendments in my name seek to strengthen the bill to ensure that a child’s views are heard in family court cases and children’s hearings. That is one of the key aims of the bill.
Amendments 1, 3, 5, 7, 9 and 10 give effect to the recommendation in the committee’s stage 1 report that the provisions in sections 1 to 3 of the bill should be strengthened to ensure that all children who are capable and who wish to do so have the right to give their views about important matters that affect their lives.
Amendment 4 removes from section 11 of the Children (Scotland) Act 1995 the presumption that a child who is aged 12 or over is mature enough to make a decision as to whether to instruct a lawyer. That was called for by the committee in its stage 1 report. It was not the intention in the 1995 act that the presumption should operate as a barrier to children who are under the age of 12 making decisions on legal representation but, as the committee has heard, there is a perception that it has had that effect.
Amendments 37 and 38 will ensure that the views of the child are heard when the court is investigating the reasons for non-compliance with an order under section 11 of the 1995 act, such as a contact or residence order. The Scottish Government’s intention is that all children who are capable and who wish to do so should be able to give their views on matters such as who they live with or have contact with. I stress that there will, of course, be circumstances in which a child does not want to give their views on those issues, and they should not be forced to do so.
09:15The Scottish Government’s view is that the majority of children are capable of forming a view, but there may be exceptions to that—for instance, if a child is very young or has severe learning difficulties. For that reason, the bill provides that decision makers are not required to seek or have regard to the views of a child if the decision maker is satisfied that the child is not capable of forming a view. We would expect that exception to be used very infrequently.
I listened carefully to the arguments that were put forward about those provisions at stage 1. The amendments address concerns that the capacity exception may be used excessively, by making the starting point for decision makers that all children are to be presumed to be capable of forming a view.
I cannot support amendments 47 to 51, in the name of James Kelly, but I would be willing to work with him ahead of stage 3. The intention behind his amendments is to ensure that children can, where practicable, express their views in their preferred manner. As Mr Kelly’s amendments go some way towards recognising, it will not be reasonable in every case to allow a child to express views in their preferred manner—for example, where that would significantly delay proceedings to the detriment of the child’s best interests.
The difficulty that I have with Mr Kelly’s amendments is that, in order to achieve their result, they would remove the text from the bill that says that the court must
“give the child an opportunity to express the child’s views”
and replace it with the weaker requirement that courts merely
“seek to make reasonable arrangement for the child to express the child’s views”.
I am sure that Mr Kelly does not want to weaken the duty on courts to have regard to children’s views, and I hope that he will agree not to press his amendments 47 to 51, so that we can work together on amendments that would not have that effect.
I move amendment 1.
James Kelly (Glasgow) (Lab)
I will speak to my amendments 47 to 51.
Section 1 deals with proceedings in court and in children’s hearings. The bill’s primary objective is to place the child’s views at the centre of those proceedings.
The bill as introduced is not strong enough, in that it seeks to give children “an opportunity” to express their views. My amendments are stronger, because they are more specific in two regards. They seek to set out arrangements for the child to give their views; they also have regard to the manner in which the child will want to put their views across. We should bear it in mind that that will be a pressured experience for children, and many children in that situation will be vulnerable. It is important that proper regard is given to the arrangements for children to give their views and the manner in which they will give them. The objective of the amendments is to place a duty on the court to do that. The amendments have to be aligned with proper resources to ensure that that can happen.
The amendments, which seek to strengthen the bill, have the support of Children 1st and Scottish Women’s Aid.
Ash Denham
I do not agree with James Kelly’s argument, but my offer stands: I am happy to work with him ahead of stage 3 if he thinks that that would help to address his concerns. I reiterate that the bill’s drafting follows the wording of article 12 of the United Nations Convention on the Rights of the Child by providing that decision makers must
“give the child an opportunity to express the child’s views in a manner suitable to the child”.
Amendment 1 agreed to.
The Convener
We move to group 2. Amendment 60, in the name of Rhoda Grant, is grouped with amendments 61, 62, 45, 46, 63, 79 and 81 to 83.
Rhoda Grant (Highlands and Islands) (Lab)
I will speak to amendments 60 to 63. Amendment 61 makes it clear that abuse does not stop with the breakdown of a relationship. Abusive partners will try to continue to control and abuse, and they will use every avenue that is available to them to do that. Therefore, abuse can continue from a relationship into the arrangements that are put in place for children after a relationship has broken down.
Amendments 60, 61 and 63 do not introduce something new; rather, they reunite a list that was split by the bill. Scottish Women’s Aid tells us that the reunification of the list is important for the protection of survivors of domestic abuse. When the list was introduced, the Parliament’s intention was that it should be considered as a whole to ensure adequate protection of women, children and young people who have experienced domestic abuse. It places a duty on the court to consider the wider impact of continuing abuse that can be perpetrated as a result of enforced parental co-operation. That consideration is required for the protection of women, children and young people who have experienced domestic abuse.
Children often experience abuse through the abuse of their mother, and that has a huge effect on their wellbeing, resilience and self-esteem. In turn, that can impact on their life chances. The law must recognise that in such cases an order for parental co-operation is likely to have a hugely negative impact on a child’s welfare as well as on that of their mother. In my casework, I constantly see cases in which contact and shared parenting are used to continue to perpetrate abuse. That can sometimes have devastating consequences.
Taking the subsection to which my amendment 62 relates out of the context of domestic abuse does not underline to the court that the issue impacts on the safety and welfare of the child. A perpetrator of abuse could continue to use coercive control over financial issues and the health and nutrition of a child by making unrealistic demands. All those things compromise the child’s wellbeing. There is a risk to the care, protection and safety of the child by the perpetrator misusing child contact or residence as a means of coercively controlling the other parent. In turn, that disrupts the child’s enjoyment and the security of their home and family life. That is not covered by sections 11(7B) or 11(7C) of the 1995 act, which is why the Parliament introduced section 11(7D) to the list. I seek the committee’s support for continuing that connection.
I move amendment 60.
Jeremy Balfour (Lothian) (Con)
I will speak to amendments 45 and 46, which are in my name. We have started the meeting very helpfully by putting children at the centre of what we are trying to achieve and ensuring that the child’s voice is heard when proceedings go to court.
My amendments deal with grandparents’ rights and where grandparents fit into contact with their grandchildren. I know that the committee took evidence on that at stage 1 and that a debate has been going on for a number of years on what should happen with regard to grandparents. I believe that grandparents often have an important role in their grandchildren’s lives, and amendment 45 states that clearly. Grandparents often offer stability when a marriage or relationship is breaking down, and many of them offer childcare.
Under amendment 45, when sheriffs are considering such matters, there would be a presumption that grandparents should have access to their grandchildren. The amendment would not give that as an absolute right. Clearly, as we have heard from the minister, the child’s rights should always be taken into account and should be heard by the court. My amendment would simply say to sheriffs that the presumption is that grandparents should have the right and that sheriffs would need to give a reason for going against that in any judgment.
Amendment 46 would simply mean that a definition of the term “grandparents” would be set out in regulations at another time.
Amendment 45 would be a positive step forward. It recognises that grandparents have a different role from that of other relatives in a child’s life, and I hope that the committee will support it.
The Convener
I call Alex Cole-Hamilton to speak to amendment 79 and the other amendments in the group.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Thank you for the opportunity to speak to the committee—it is a great pleasure to join you today.
My remarks will cover amendments 79, 81 and 82, which are in my name, as well as amendment 76, which is a consequential amendment that will be dealt with later. I am grateful to Liam McArthur, who will move the amendments for me when we reach that point, because I have been called away by unavoidable business in another part of the Parliament.
I pay tribute to Gordon and Shonia-Maree Mason, who are constituents of mine and who came to see me soon after I was elected to tell me about their estrangement from their son and, by extension, from their grandson, which was not through any fault of theirs; it was through a coercive relationship. They have worked hard to re-establish contact and they have done a lot of work on the rights of grandchildren to maintain contact with their grandparents.
It does the Masons credit that that is the perspective that they have chosen. It would be very easy for them to try to fight for a legal right for grandparents to see their grandchildren. They have that to an extent through a contact resolution through the courts, but their work is more about children’s rights. In their argument for why we need to make the proposed amendments to the bill, they point first to the consultation on the review of the Children (Scotland) Act 1995, in which 97 per cent of 225 children who responded came out in support of grandchildren having contact with their grandparents.
What the Masons propose, which I have given voice to in my amendments 79, 81 and 82, has great synergy with what the French have already done. Article 371-4 of the French civil code states that the child has the right to maintain personal relationships with his ancestors and that only the interests of the child can hinder that right. The right is enshrined for children, although the best interests principle under the UNCRC exerts its pre-eminence.
In this country, the non-statutory charter for grandchildren states that grandchildren can expect
“To know and maintain relationships with their family (except in very exceptional circumstances) and other people who are important to them”,
and
“To know that their grandparents still love them, even if they are not able to see them at the present time.”
Children in this country have a right to inheritance from their grandparents if their parent predeceases their grandparents, but they have no right to have contact with them. That can have a mental health impact on children who discover the existence of grandparents.
The intentions of my amendments are severalfold. First, they intend to create a basic right to have contact with grandparents and other lineal ancestors, as defined in the text of my amendments, at any time and in any circumstances in their joint lifetimes. The child should have that right whether or not their parents’ marriage or relationship still exists, there has been any break-up, the child is in care and so on.
09:30The right of the child should override any coercion by parents—I hope that we would all agree on that. If the child is afforded that right by the act, parents could deny it only by going to court to justify why the right should not be exercised, with justifiable reasons that the court would accept for why it would not be in the child’s best interests to have contact with their lineal ancestors. The court would not accept mere whims or bias.
Fundamentally, my amendment 79 would give children a right to access their lineal ancestors, subject to their best interests. It reflects what the French have already enacted, and it represents international good practice.
Liam McArthur (Orkney Islands) (LD)
First, I remind the committee of my interest in this area, as my wife works for Relationships Scotland Orkney and will be taking on a director role next month. I appreciate that that is not so relevant to my amendment 83 or to this group of amendments, but it is certainly relevant to other groups of amendments and to the bill as a whole.
Given the time available, I will speak only to my amendment 83. It seeks to make equally shared parenting the starting basis for custody orders, from which courts can move towards the most appropriate split. The intention is not to make shared parenting mandatory or to be prescriptive with regard to any particular arithmetical share of time. It is simply to tell the court to start with that option when one of the parents requests it, and then to consider any reasons why a different pattern is better for the child or children who are involved.
The general benefits for children of shared parenting are reflected in international research, whether that relates to their social and psychological wellbeing, educational attainment or avoidance of adverse experiences. Those benefits apply not only in the short term but well into adulthood.
I recognise—indeed, I went so far as to state explicitly during the stage 1 debate—that care should be taken to do nothing that might dilute the primacy of the consideration of the best interests of the child. That firmly remains my view. However, the presumption of shared parenting need not cut across that. In countries where such a presumption already exists, the best interests of the child are no less central to the process of deciding residency and contact.
It may well be that a shared parenting arrangement is neither desirable nor practical. The reasons for that could be many and varied, and the court must be left to make that decision, based on the views of the child and relevant expert advice. However, given how rarely courts appear to rule in favour of an equal split in parenting responsibility, it would seem that there is already a presumption inherent in the system. Our society rightly expects more of a shared parenting model in relationships in general, recognising the benefits for the child or children involved. Why should we not work from a similar starting point in the event that a relationship breaks down? I therefore intend to move amendment 83.
The Convener
We move to contributions from members on this group of amendments, starting with Liam Kerr.
Liam Kerr
I have a brief question for Rhoda Grant on her amendment 63. The wording broadly looks fine, but I do not quite understand the motivation behind the amendment. What is the practical impact of setting up a definition for one subsection? Can she reassure me on that point?
The Convener
I call Rhoda Grant.
Rhoda Grant
Thank you, convener—will I get a chance to sum up after I respond to Liam Kerr’s question?
The Convener
Yes, you will.
Rhoda Grant
Okay—thank you. The wording of amendment 63 is lifted from what was split away from the original section when it was replicated in the bill. The bill replicates section 11(7A) and (7B) of the Children (Scotland) Act 1995 but leaves out (7D). Basically, I have lifted that subsection from the original legislation. It was obviously seen as important to define what a “person” is, and that has worked well; there have been no concerns about that. Amendment 63 therefore seeks to include that definition and not make any change to a law that has worked well.
The Convener
Does that answer Liam Kerr’s question?
Liam Kerr
Yes. I am grateful to Rhoda Grant for that explanation.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
I will not support amendments 45 and 46 or Alex Cole-Hamilton’s amendments on grandparents’ rights. Of course I agree with the members that grandparents play a hugely important part in a child’s life and that that bond is special. I think that we all understand that; as a grandparent, I certainly do, and every effort should be made to nurture that relationship.
However, I do not consider that including such a presumption in the bill would be correct or desirable. The circumstances surrounding family break-ups are different and individual to each case, and it might not always be in the child’s best interests to have court-ordered contact with their grandparents. The child may not want that contact, or may not feel particularly close to the grandparents. They may feel vulnerable, particularly in instances where domestic abuse has played a part in the break-up. Contact could cause added stress to the child at a particularly difficult time in their life. If the child wants contact with their grandparents, each family should be able to facilitate that without court intervention.
By their very nature, such cases will be high conflict, and the child could be stuck in the middle. Furthermore, by specifying grandparents only, the legislation could exclude other adults who are important to the child.
The minister said that she will promote the grandparents charter heavily. That is a good thing, and I look forward to that.
In essence, I will not support those amendments because they fundamentally cut across the rights of the child.
I will not support Liam McArthur’s amendment 83 on shared parenting, because I think that that could have adverse consequences for a child’s safety. Of course it is preferable for a child to have a happy relationship with both parents where possible—in an ideal world, that is how it would always be. However, putting that provision in the bill would be unwise and possibly dangerous for a number of children.
I will highlight the key points against amendment 83. The majority of contact cases that end up in court concern reports of domestic abuse; even those cases that do not are still likely to involve high conflict. All research on the matter suggests that a presumption of shared parenting in any high-conflict case is likely to be harmful to the child. Being caught between warring parents is without doubt an adverse childhood experience, which we would risk causing if the provision were to be included in the bill.
Inclusion in the bill of any presumption of shared parenting could have harmful consequences for children and young people who are experiencing domestic abuse, and for their mothers. A presumption along those lines would, in effect, prioritise the interests of the adults, thereby weakening the child rights-based approach, which is entirely contrary to the purpose of the bill.
Recent research showed that children and young people who have experienced domestic abuse did not fare well under the discussed shared parenting arrangements or imposed contact.
Dr Sue Whitcombe has suggested that, when safeguarding concerns are raised, contact should continue while they are investigated. I consider that to be a deeply dangerous approach, and there are many case histories to highlight that that is the case.
Scottish Women’s Aid and children’s organisations are strongly opposed to the amendment. “Parental alienation” is a term that is often used to mitigate allegations of domestic abuse that cannot be excused, and any effort to justify the use of that theory undermines the safety of children.
To conclude, I consider that inclusion in the bill of provisions on shared parenting is a risk that is definitely not worth taking.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I offer my support for Rhoda Grant’s amendments 60, 62 and 63.
Like Rona Mackay, I have considerable sympathy with the amendments on grandparents’ rights. I am a parent, and I think that other parents will agree that, during this period more than ever, we have understood the true value of grandparents. I have a lot of sympathy with the approach in those amendments, which recognise the special relationship between children and grandparents. However, I think that it runs the risk of prioritising that relationship over other relationships in modern Scotland. We need to be careful about that.
I have heard the arguments for and against the proposed approach and I will be interested to hear what the minister says about the grandparents charter, which Rona Mackay mentioned. The minister talked about the charter during the stage 1 debate, and if she makes a similar argument at this stage, I will be inclined not to vote for the amendments on grandparents’ rights. However, let us hear out the debate.
I have looked closely at amendment 83, on shared parenting, and I have a lot of sympathy with what is proposed. As Rona Mackay said, the potential for domestic violence and coercive control is a real issue. Again, we need to be careful.
In general, there are similarities between what is proposed in amendment 83 and the campaign, in which I have long been involved, to encourage more fathers to take parental leave. It is about breaking down gender stereotypes that see it as the woman’s job to be the primary carer and do all the childcare. That, along with what is proposed in amendment 83, is all part of a package that might not be deliverable in the bill, because it is about the cultural and societal change that is needed if we are to break down the gender stereotypes that still exist.
Again, it depends on how the rest of the debate goes and what the minister says, but at this point in stage 2, I think that voting for amendment 83 carries too much risk.
Liam McArthur
I thank Rona Mackay and Fulton MacGregor for their comments, and I particularly thank Fulton for his comments about shared parental leave. In my earlier comments I tried to make the link with our expectations of a shared parenting model in relationships.
Rona Mackay is absolutely right about issues of high conflict. Where there is any suggestion of domestic abuse, the courts absolutely should take that into consideration and act accordingly. However, we surely cannot start from an assumption that there is domestic abuse if there is a conflict and matters are brought before the court.
There are many examples of fathers finding that there is simply an assumption that it is best for the child to spend more time with the mother. A presumption of shared parenting as a starting point, from which the court can move away very quickly, particularly if there are concerns about domestic abuse, seems a more equitable basis on which to proceed. As I said, I entirely recognise the concerns that Rona Mackay expressed, but we need to move away from an automatic assumption that if a case is brought before the court there is a risk of domestic abuse.
The Convener
No other member wants to speak, so I will bring in the minister to comment on the amendments in this group. In doing so, minister, will you say how the Scottish Government will promote the grandparents charter, which I think you undertook to do when we debated the bill at stage 1?
Ash Denham
I am pleased to support amendments 60, 62 and 63, in the name of Rhoda Grant, subject to some minor issues being addressed before stage 3. The amendments will ensure that the requirement to consider the risk of abuse before making an order remains positioned in the 1995 act next to the requirement to consider the ability of parties to co-operate. As has been discussed today, it is important that victims of domestic abuse who have children are protected in family court cases, and it is a main aim of the bill.
09:45However, although I agree with the intention behind amendment 61, I cannot support it because it would require the court to consider the need to protect the child from “continuing abuse” when making a section 11 order. The court is already required to consider the need to protect a child from “abuse” and from “the risk of abuse”. I am in no doubt that that includes continuing abuse, in particular the offence of an abusive course of behaviour under section 1 of the Domestic Abuse (Scotland) Act 2018. The amendment suggests that “abuse” generally does not include continuing abuse. I do not agree with that and I hope that the member will agree not to press amendment 61.
Amendments 45 and 46, in Jeremy Balfour’s name, and amendments 79 and 81, in Alex Cole-Hamilton’s name, seek to do broadly the same thing and I do not support them. I assure members that I agree that grandparents and great-grandparents can often play an important part in children’s lives. In my response to the Justice Committee’s stage 1 report, I committed to further promoting the charter for grandchildren. I have also had a conversation in the past week or so with stakeholders in the grandparent area, who have given good suggestions about how to do that. I will work with them to make sure that we cover as much ground as possible with the promotion.
The bill requires the court to take account of the child’s important relationships with people other than the parents, which certainly includes grandparents and great-grandparents in many cases. Grandparents can currently apply to the court for contact rights, and a decision will be made taking account of the child’s views and according to the best interests of the child. I believe that that is the correct position.
The amendments are problematic for a number of reasons. The relationships that are important must be assessed for each child individually. One size does not fit all, so requiring the court in every case to consider grandparents in particular could be inappropriate and unnecessary, or cause delay or devalue other relationships.
There is no explanation of how the amendments are intended to work in the current system, based on responsibilities that are owed by adults towards children and accompanying rights to fulfil those responsibilities. Is the court required to grant contact rights to grandparents in every case, or only where it has been requested by the child? What happens if the contact is not requested or it is not in the child’s best interests?
What the amendments describe as a “child’s right” appears to amount to a right for grandparents. An automatic right would give grandparents greater legal rights than many other family members, including parents, have. That risks the focus on the wellbeing of the child being lost among the competing rights of different adults. The UNCRC avoids rights to relationships with particular family members for that reason.
Instead of ranking the importance of family members, the focus should be on the welfare of the child and the views of the child. That is the approach in the UNCRC, the 1995 act and the bill, but, unfortunately, it is not the approach that has been taken in the amendments. I hope for the reasons that I have put forward that the members will not push the amendments further.
For similar reasons, I do not support amendment 81, in Alex Cole-Hamilton’s name. The amendment would require the court in every case to identify every lineal ancestor and to assess the implications of a contact and residence order on those relationships. That applies where nothing would point towards those relationships being important to the child, where contact between child and grandparent does not exist, where it is not wanted by either side and where contact may not be in the best interests of the child. That could elongate the court process, which is unlikely to be in the child’s best interests.
The amendment goes further still, instructing the court to treat relationships with lineal ancestors as important in every case, and that would be regardless of the nature of those relationships or anything that the child has to say on the subject. General rules determining what is important in every case do not allow the court to simply consider the child’s best interests in the individual circumstances of each case, taking the views of the child into account. The better approach is that taken in the bill, in which the relationships that are important to a child must be assessed individually for each child and not decided here by us.
As I have said, I recognise the important role that grandparents can play. I am committed to further work in relation to children’s contact with grandparents. However, for the reasons given, I am unable to support amendment 81 and I ask the member not to press it.
On amendment 83, in the name of Liam McArthur, I can reassure members that my view is that both parents should be fully involved in their child’s upbringing, as long as that is in the best interests of the child concerned. Parents can currently ask the court for residence on an equal basis. A decision will be made in which the welfare of the child is paramount. That will take account of the views of the child and full consideration will be given to the arguments for and against shared residence, with regard to the particular circumstances of that case.
Amendment 83 would turn that process on its head by proposing residence on an equal basis as the answer in every case and before the question of the child’s best interests has even been considered. Amendment 83 does not advance the child’s interests. The amendment refers only to parents. Although most cases of this nature are between parents, they do not have to be. An application for an order under section 11 could be made by others, for example by grandparents.
The courts already apply a general principle that it will normally be beneficial for children to have an on-going relationship with both parents. The bill strengthens that position by requiring the court to consider, in every case, the effect of an order on the involvement of the child’s parents in bringing up the child.
Therefore, I do not consider that amendment 83 is desirable, as the amendment would cut across the general principle of section 11 of the 1995 act that the welfare of the child is the paramount consideration.
For the reasons given, I ask the member not to press amendment 83.
The Convener
I ask Rhoda Grant to wind up, and to press or withdraw amendment 60.
Rhoda Grant
I wish to press amendment 60.
I am grateful for the minister’s support for amendments 60, 62 and 63. I hear what she says about amendment 61. Many parents come to me with their concern that the courts are being used to continue abuse. The parents feel that they have to choose between contempt of court, which threatens their liberty, and the safety of their child, because there is a court order forcing them to send a child to an abusive partner. That is continuing abuse.
I listened to what the minister said about that, and I take her assurance, so I do not think that I will move amendment 61 at this stage. I will consider whether I should bring it back at stage 3, or whether there is sufficient protection in what the minister has said in her response.
Amendment 60 agreed to.
Amendment 61 not moved.
Amendment 62 moved—[Rhoda Grant]—and agreed to.
Amendments 45 and 46 not moved.
Amendment 63 moved—[Rhoda Grant]—and agreed to.
Amendment 47 moved—[James Kelly].
The Convener
The question is, that amendment 47 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
The Convener
I regret to say that I may have voted incorrectly, but perhaps that will not matter because my casting vote will be in favour. We could also retake the vote. I apologise as I had meant to vote in favour of amendment 47.
Stephen Imrie (Clerk)
Convener, could we suspend briefly so that I can telephone you?
The Convener
Yes.
09:59 Meeting suspended.10:01 On resuming—
The Convener
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 47 disagreed to.
Amendments 2 to 4 moved—[Ash Denham]—and agreed to.
Amendment 48 moved—[James Kelly].
The Convener
The question is, that amendment 48 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 48 agreed to.
Amendment 5 moved—[Ash Denham]—and agreed to.
Section 1, as amended, agreed to.
After section 1
The Convener
Group 3 is on disclosure of information. Amendment 64, in the name of Liam McArthur, is grouped with amendments 33 and 33A.
Liam McArthur
My amendment 64 deals with an issue that we wrestled with quite a bit during our stage 1 evidence gathering. A number of colleagues have taken a close interest in it, and I am grateful to John Finnie for adding his name to my amendment, and to James Kelly and Liam Kerr, who raised their concerns during the stage 1 debate.
As colleagues will recall, intimate and highly sensitive information that is shared by a child with a third sector organisation can, at present, be drawn into court proceedings, even if doing so goes against the interests of that child. More concerning still is that there are occasions when that happens without the child even knowing.
I am grateful to Children 1st and Scottish Women’s Aid for the work that they have done, not just in highlighting the issue and providing examples of how and where such things are happening, but in helping to draft amendment 64, in the hope of improving the situation.
The loophole has the potential to undermine the trust and confidence of children who engage with third-party organisations. At the same time, in seeking to amend the bill, we need to bear in mind the rights of others who are involved in court process. Various witnesses explained robustly and fairly the risks in preventing sharing of information that is relevant to proceedings.
We need to tread carefully in balancing the various rights. I believe that that can be done, and that my amendment 64 would do it. It would do so by making disclosure of such information possible, but only when doing so is necessary and proportionate, and in cases in which the court had given consideration to the welfare and—which is important—to the best interests of the child.
The child should also, as far as is practicable, have the opportunity to express their views about such disclosure. The two latter points are the distinguishing feature between my amendment and the amendments in the names of the minister and Rona Mackay which, although I welcome them, do not go far enough.
I appreciate that the minister might have some concerns about use of the word “paramount” in subsection (2)(a) of proposed new section 11ZC of the Children (Scotland) Act 1995. I am happy to discuss with her how that might be phrased in order to address those concerns. However, I believe that amendment 64 will help to strengthen the bill’s ability to safeguard the best interests of the child, and I look forward to hearing the views of colleagues and the minister.
I move amendment 64.
Ash Denham
Amendment 33, in my name, provides that
“where the court
(a) is considering making an order under section 11(1), and
(b) has to decide whether a person should have access to ... information relating to a child”,
the court
“must regard the welfare of that child as a primary consideration”.
Amendment 64, in the name of Liam McArthur and supported by John Finnie, is on the same issue, as is amendment 33A, which is in the name of Rona Mackay. In some respects, the Scottish Government and Liam, John and Rona are not far apart. If amendment 33 is agreed to, I will work with them to come to an agreed position ahead of stage 3, and to agree whether any further amendments are required.
The issue is that the court might hold sensitive information about a child. For example, the child at the centre of a section 11 case might have provided views on how the case should be decided. In other instances, a party to the case might argue that a document that is generated outwith the court case should be disclosed because the contents have a direct bearing on the case.
First, a child has a protected right to privacy. However, that cannot be absolute because it would not be possible to guarantee to a child that their views will remain confidential. For example, their views might turn a case, and parties to that case might expect to understand the reasons behind a decision that will affect their family life.
Secondly, people other than the child who is at the centre of a section 11 case might have a legitimate interest in a document and in whether it should be disclosed. If, for example, a document has been generated outwith the court case, it might contain information about another child. The aim of amendment 33 is to ensure that the welfare of the child is taken into account in all cases.
Amendment 64 differs from mine in a couple of areas. It would require the court, in deciding whether to allow disclosure of information, to have regard to the welfare of the child as its “paramount consideration”, which, as a matter of law, goes too far. The word “paramount” has a clear meaning in the 1995 act and, although it is appropriate in other contexts, cannot be applied to decisions about disclosure of information, because to do so would not allow the court to take account adequately of the human rights of other people, including those of other children. One person’s interests cannot be made to prevail over those of others in every case.
Let me give the committee an example of how that would work. One child could provide information that could identify a risk of abuse of a second child, but protection of that second child from abuse cannot depend entirely on whether the first child agrees to the information being used, or on it being in the first child’s interests.
Information might also need to be disclosed because people, including children, have the right to understand the reasons behind court decisions. How else could they be challenged? That is particularly important for decisions that alter the parent-child relationship, and is why amendment 33 will make a child’s welfare a “primary consideration” rather than a “paramount consideration”. That difference is important, because “primary consideration” is the wording that the Supreme Court has set down.
Amendment 64 refers to the “best interests” of the child as well as to their “welfare”, which appears to be duplication. I do not consider the choice of the word to be a major issue, but I prefer “welfare” because that is the language that is generally used in the 1995 act and it is understood well. More important is that the issue cannot be determined according to the best interests of one person alone.
Amendment 64 would protect only the child who is at the centre of section 11 proceedings, but provides no protection to any other child whose information might be used, such as a sibling. By contrast, amendment 33 would protect children more widely.
10:15Amendment 64 also refers to obtaining the child’s views on whether the information should be disclosed. I have two concerns in relation to that, the first of which is practical, in that the child might already have expressed views when providing information to the court about how, for example, the case should be decided. We should, of course, wish to avoid the child being asked the same question twice.
My second concern is that others may have a legitimate interest in some documents, and the court might need to ask them for views, as well as asking the child. It is therefore best, in this case, to leave the detail of how children are consulted to the rules of court.
On amendment 33A, I recognise the need to consult the child in appropriate cases. However, that should also be dealt with through the rules of court.
More fundamentally, the court must be able to balance the rights of all the people who would be affected. Such issues cannot be determined purely by the consent, or according to the interests, of just one person. We need to ensure that any amendment in that area would strike the appropriate balance of rights.
If amendment 33 is agreed to, I will work with key stakeholders on preparing a policy paper on the rule changes for the family law committee of the Scottish Civil Justice Council.
Rona Mackay
I lodged amendment 33A because, during evidence, we heard a very moving account about—I think—a youngster’s diary that had been shared around officials without her knowledge. As you can imagine, the distress that she suffered was terrible. I want to highlight what can happen when the best interests of the child are overlooked or disregarded.
However, I will not move amendment 33A, because I have since thought about the unintended consequences that it could have on individual cases, including causing delays and causing a lack of information that would be necessary for the correct decision to be made. That might also put extra pressure on the child when they are feeling at their most vulnerable.
I am also content that the minister’s amendment 33 will protect children more widely, prevent unnecessary sharing, and promote court awareness, which has previously often been lacking around the matter. I am therefore happy to support the minister’s amendment 33.
I will not support Liam McArthur’s amendment 64, which is supported by John Finnie. Although it is well intentioned and I agree with its principles, the reasons why I will not support it are similar to the reasons why I will not move my amendment 33A: the Government amendment 33 covers the matter without placing restrictions on court procedure and without the unintended consequences that could result for the child.
In addition to that, I believe that a policy paper for the family law committee of the Scottish Civil Justice Council will be produced, and I note that the Government has committed to working with Children 1st and Scottish Women’s Aid on that, which I am pleased about. Guidance on information sharing and confidentiality for everyone involved in the court procedure has been proposed, which could be done in advance.
For those reasons, I will not support amendment 64. I am perfectly content with the minister’s amendment 33.
John Finnie (Highlands and Islands) (Green)
First and foremost, I thank my colleague Liam McArthur for lodging amendment 64. He was quicker off the mark than I was.
From what we have heard throughout the debate—and I hear exactly what the minister is saying—I do not think that anyone disputes the intentions regarding where we all want to go. It is important that the decisions that are made about those who are often the most vulnerable people are informed decisions, and that will, on occasion, require the disclosure of information. The issue is about access to that information.
After hearing all that has been said, I certainly take some reassurance from the amendment’s wording for subparagraph (2)(b)(i) of the proposed new section to be inserted in the 1995 act, which specifically alludes to competing rights and how they are weighed against each other. It says:
“the likely benefit to the welfare of the child arising in consequence of disclosing the information outweighs any likely adverse effect on any other person arising from disclosure”.
As is often the case with rights, there are competing rights in this area. Privacy is important—Rona Mackay referred to the evidence that the committee took in camera from young people, which included the compelling and harrowing story of the young girl whose diary was disclosed to someone with whom she most certainly would not have wished that information to be shared.
I hear what the minister says about all cases and individual cases. In some respects, members wrestle with confidentiality in our daily work with constituents. Confidentiality applies except if there are adverse effects on other people, or if we are disclosing a crime.
I hear a lot of consensus on the issue. Although the decision on whether to press amendment 64 is for my colleague Liam McArthur, I think that we all want the best possible outcome, which would ensure that there is informed decision making. I would hope that discussions would continue, but—as I said—I do not hear any conflict, as I think that we want to get to the same place.
Liam Kerr
John Finnie made a good point. The minister’s amendment 33 is a good one, but I am also minded to support Liam McArthur’s amendment 64 if he chooses to press it.
As Liam McArthur will know from our committee sessions and the stage 1 debate, I was concerned about this area, as I think we all were, and I was glad that he decided to lodge amendment 64. However, he will also know that I—along with the rest of the committee, I am sure—found the evidence to which the minister alluded, on the rights of others in this area, pretty persuasive and just as important. It would be helpful if Liam McArthur could, in summing up, reassure me on the balance that has been struck. He did so to some extent in his opening comments, but I would like a bit more reassurance.
Given that the minister set up a legal argument in favour of her wording—members will know that I immensely enjoy listening to such arguments—can Liam McArthur respond specifically to that and tell me whether he has any legal advice that would persuade me to favour his wording rather than the minister’s wording?
The Convener
No other members have indicated that they want to speak, but I will comment briefly. There is a fundamental issue of trust here, and the potential for betrayal of a young person’s trust. That came through loud and clear when the committee heard evidence from young people.
Confidentiality could obviously be proportionate, but any abuse in that regard—as per the example that Rona Mackay quoted, in which a young person’s diary was handed over—must be avoided at all costs. I am minded to support Liam McArthur’s amendment 64. I look forward to his winding-up comments, and ask him whether he intends to press or withdraw his amendment.
Liam McArthur
I am minded to clip John Finnie’s contribution and share it with all those with whom I have played football over the years, who will be astonished to hear that I am somehow quicker off the mark. I am grateful to him for his support. As I acknowledged previously, there is an issue that a number of members sought to address at stage 2. I am grateful to Rona Mackay, Liam Kerr and the convener for their contributions to the discussion. I am also grateful to the minister, who was right to say that our amendments are not very far apart.
In addressing Liam Kerr’s specific point on the legalities, I am tempted to adopt the minister’s approach and say that I cannot share any legal advice with him. What I can do is quote from a briefing that has been provided to members by Children 1st and Scottish Women’s Aid. Liam Kerr is absolutely right that the issue was a real concern, and those of us who wanted to see the bill amended needed to square it away. Children 1st and Scottish Women’s Aid say:
“This amendment will not prevent information from being shared where it is proportionate and relevant to the court. Indeed, our organisations strongly believe that proportionate and relevant information-sharing is in a child’s best interests to keep them safe and ensure the courts are equipped with all the details at their disposal to make informed decisions.”
In terms of distinguishing between the amendments, I listened carefully to what the minister said and I appreciate that Rona Mackay shares some of her concerns, but Children 1st and Scottish Women’s Aid have suggested that my amendment is stronger precisely because it
“Includes specific reference to the ‘best interests’ of the child, in line with the UNCRC”,
and
“Ensures that children’s views are taken into account when decisions are made about sharing their information.”
For those two reasons, I urge the committee to support my amendment instead of the Government’s amendment. I acknowledge the minister’s concern about the use of the word “paramount”, although the word “paramountcy” is used in the bill, so it would appear to be consistent with that. Taking on board that concern, if the committee supports amendment 64, I will be happy to work with the minister and her officials ahead of stage 3 to address her concerns.
The Convener
The question is, that amendment 64 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 64 agreed to.
Section 2—Proceedings under Adoption and Children (Scotland) Act 2007
10:30Amendment 6 moved—[Ash Denham]—and agreed to.
Amendment 49 moved—[James Kelly].
The Convener
The question is, that amendment 49 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 49 agreed to.
Amendments 7 and 8 moved—[Ash Denham]—and agreed to.
Amendment 50 moved—[James Kelly].
The Convener
The question is, that amendment 50 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 50 agreed to.
Amendment 9 moved—[Ash Denham]—and agreed to.
Section 2, as amended, agreed to.
Section 3—Proceedings under Children’s Hearings (Scotland) Act 2011
Amendment 51 moved—[James Kelly].
The Convener
The question is, that amendment 51 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 51 agreed to.
Amendment 10 moved—[Ash Denham]—and agreed to.
Section 3, as amended, agreed to.
Section 4—Vulnerable witnesses: prohibition of personal conduct of case
The Convener
Group 4 is on vulnerable witnesses: relevant offences and special measures. Amendment 11, in the name of the minister, is grouped with amendments 12 to 14.
Ash Denham
Amendments 11 to 14 strengthen the provision that section 4 makes on the prohibition of personal conduct of a case.
One of the aims of the bill is to further protect victims of abuse and domestic abuse in family court cases and children’s hearings. The prohibition of personal conduct of a case is one of the bill’s key provisions on that.
The bill creates a presumption that a party who is convicted or prosecuted for committing certain offences against a witness should not be able to conduct their case themselves. Amendments 11 to 13 expand the offences that trigger that protection.
At the moment, the list of offences includes sexual offences, domestic abuse offences and other serious violent offences. Those are the same offences that trigger the prohibition on personal conduct in the criminal context. The amendments strengthen the provision by adding the following offences: an offence of female genital mutilation, as set out in sections 1(1) and 3(1) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005; an offence of stalking, as set out under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010; and forced marriage offences under section 122 of the Anti-social Behaviour, Crime and Policing Act 2014. That last offence will include a forced civil partnership if the Civil Partnership (Scotland) Bill is enacted.
In many cases, the offences that I have mentioned would already be covered if there was an accompanying domestic abuse aggravation, or the witness might already be protected as a child witness. In cases in which the presumption does not apply, the court still has a broad discretion to authorise the prohibition of personal conduct when that is the most appropriate way to hear the evidence of a vulnerable witness. However, I am keen to ensure that, in all cases in which a party has committed the offences that I have mentioned against a witness, there is a presumption in favour of prohibition of personal conduct of a case.
Amendment 14 aims to ensure that, in children’s hearings court proceedings in which there is a child witness, there should be a mandatory prohibition of personal conduct of the case by a party. The bill inserts a new special measure into the Vulnerable Witnesses (Scotland) Act 2004. Section 12(1)(b) of that act provides that the court may make an order that a child witness is to give evidence without the benefit of any special measure. If there is a child witness, the bill requires the court to assume that the prohibition of personal conduct of a case is the most appropriate special measure. Amendment 14 will mean that, in all children’s hearings court proceedings, if a child is attending as a vulnerable witness, there will be a mandatory prohibition of personal conduct of the case by a party.
I move amendment 11.
Amendment 11 agreed to.
Amendments 12 to 14 moved—[Ash Denham]—and agreed to.
Section 4, as amended, agreed to.
Sections 5 to 7 agreed to.
Section 8—Establishment of register
The Convener
Group 5 is on child welfare reporters: qualifications and experience. Amendment 65, in the name of Liam McArthur, is grouped with amendments 66 and 67.
Liam McArthur
Amendment 65 would ensure that, as in other parts of the United Kingdom, the role of the child welfare reporter is carried out by appropriately qualified and registered social workers. As we heard during stage 1 evidence, the role is performed by lawyers in 90 per cent of cases. However, if we were constructing a system from first principles with the intention of putting the welfare of the child at the centre of the process, can we honestly say that we would envisage lawyers taking on such a key role?
If the welfare of the child is paramount, we must begin with the obvious question of whether the child is at risk of harm. It is not simply about living arrangements or rules about contact time. Planning reports often requires assessment of child protection, development and mental health. Although social workers are trained, qualified and statutorily regulated in matters of child welfare and risk, lawyers are not, nor do they have any associated professional duties to report risk.
10:45As the committee heard, many lawyers have built up a wealth of experience in this area, and I have no doubt that they provide a good service to those whom they support. Certainly in the gathering of evidence and in having an understanding of the court process, they will be more than adequately skilled. However, the assessment of a child’s welfare is complex and requires different skills. Dr Sue Whitcombe and Dr Nick Child have noted that other professionals who work with children are required to undertake several years of training. Children 1st and Scottish Women’s Aid also suggest that four days of training, which is what the financial memorandum makes allowance for, is insufficient.
In the past, the minister has expressed concerns about the capacity of qualified social workers to take on the role and the potential for increased delays if they do. On the first concern, it is important to stress that this is not about just council social work departments. Dr Whitcombe has set out figures that suggest that there will be ample capacity across the sector in Scotland. As for delays, cases that involve more specialist input can take longer; that is a reflection of complexity. The evidence from elsewhere in the UK rebuts any notion of delay—it is quite the reverse. We need to acknowledge that there are professionals who already have the training that child welfare reporters need and who already work within a regulatory regime that develops and maintains the right skill set.
I look forward to hearing comments from the minister and other committee members, and I urge members to support amendment 65.
I move amendment 65.
The Convener
I call Neil Findlay to speak to amendment 66 and the other amendments in the group.
Neil Findlay (Lothian) (Lab)
I welcome the opportunity to speak to the committee. First, I pay tribute to my former constituent Emma McDonald, who lodged petition PE1635 with the Public Petitions Committee. That petition was very powerful, and I do not think that we would be where we are today in relation to contact centres had it not been lodged.
With regard to amendments 65, 66 and 67, it is important that the person who writes child welfare reports knows the child and the circumstances that the child has experienced, so that they can write reports in an informed way. It is not acceptable for people to write reports if they do not know, or barely know, or have not met the child involved. Child welfare reports should be done by professionals with appropriate training and qualifications.
If we want to change a system, it is important to establish what is wrong with it in the first place. Speaking to those who have experienced the worst of the system can offer a way forward and show how far we have to go to make improvements. We have to consider it from the perspective of the people who are involved in the system, particularly the children and the parents.
Children often offer real clarity about what is going on. Their perspective can be overlooked and dismissed because of their age and inexperience but, as we know, they are very perceptive. They know what and who they like and what and who they do not like, and they know who and what scares and upsets them. It is essential that children and adults who have experienced domestic abuse and court-ordered contact are involved at all stages in drawing up regulations, to ensure that the system is made as user friendly and child friendly as possible for all who use it and that it does not continue to persecute or punish parents or cause fear and alarm to those who use contact centres.
I think that we all agree that the child should be at the centre of the system. The three amendments in the group absolutely follow that principle.
Fulton MacGregor
This would seem an appropriate time to make my declaration of interests, in relation to the group of amendments and for the rest of today’s debate on the bill. I am a registered social worker. It will therefore be no surprise to members that I have significant sympathy with amendment 65 and that I considered it when Dr Whitcombe got in touch with the committee.
I agree with the overall principle and the direction that the Government is taking on the issue, and I will be interested to hear what the minister says. If we were starting from scratch and the bill was addressing an area that had not already been covered, the amendment might be exactly what we would do.
However, there are two major issues that we did not take enough evidence on, and that concerns me. The first is the impact on social work services. Liam McArthur addressed that a bit, but I can say from personal experience that, as we would expect, the reports that we are talking about are not easy bits of work. They can involve several visits as well as hours of phone calls and follow-up work. We need to take that into account. We might believe that the work could be spread across the board, but a lot of it would fall to local authority social workers to undertake. I am not against the idea by any means, but we need to consider its impact. As the Government has outlined, the proposals could end up having an unintended consequence in other areas of social work, including the reports, that would not be in the interests of children.
The second area in which we would need to have more understanding of the impact is the legal profession, where there might be an impact on jobs. We need to understand exactly what skills lawyers bring to the table. It is unfair to say that there are no lawyers who are particularly skilled in the area. In my experience, I had good working relationships with many lawyers who were very child centred. We need a wee bit more understanding of that.
As I said, I agree with the general principle, which will not come as a surprise to anyone. However, I am interested to hear what the minister says about the direction that the Government is moving in. Although I am not inclined to vote for amendment 65, it will be interesting to see whether it can be brought back at stage 3 when the issues have been worked through a bit more.
Rona Mackay
I agree with Fulton MacGregor in many ways and I have great sympathy with all the amendments in the group. However, amendment 65 is just a bit too narrow. We should consider psychologists and other people who have relevant skills and experience and who could be trained to do the job of child welfare reporter. Lawyers primarily do it at present, so the amendment would undoubtedly be detrimental to them, although that is not my primary concern. Amendment 65 is too narrow and could prevent other professionals who have good skills in the area from coming forward. Also, some social workers are not trained in dealing and engaging with children and young people and are more focused on older age groups. For those reasons, I do not support amendment 65.
I have huge sympathy with Neil Findlay’s amendments 66 and 67. I agree with him on many aspects, and I have expressed my concerns about contact centres previously. However, Neil Findlay’s amendments are a bit too vague and restrictive. I am confident that, after stage 3, the bill will address the issues with contact centres relating to welfare reports and so on. I hope that the bill is tightened up at stage 3 in that respect, but I cannot support Mr Findlay’s amendments today.
John Finnie
I am supportive of my colleague Neil Findlay’s amendments 66 and 67—he has outlined the rationale for them very well. However, I will not support Liam McArthur’s amendment 65, because it approaches things from entirely the wrong direction. We need to look clinically and systematically at things such as post and person specifications and a skills profile. There is undoubtedly a requirement for child welfare reporters to have an understanding of child protection issues—that is absolutely fundamental—and likewise there will be benefits in their understanding child development.
However, my concern is about losing a level of expertise from the legal profession and the potential to harness relevant expertise in the third sector. We know from the committee’s visit and consideration of the barnahus model, for example, that the issue is the skills, not the professional designation of the individual involved.
For those reasons, I will not support amendment 65 but will support amendment 66.
The Convener
Thank you. No other member has indicated that they wish to contribute to the debate on the amendments.
I appreciate the sentiment and motivation behind amendment 65, but I am concerned about the vagueness of its proposal, so I look forward to the minister’s comments. Amendment 66 appears to be overly restrictive but, again, I will be interested to hear the minister’s view.
Ash Denham
The Scottish Government does not support the amendments in this group. Section 8 establishes a register of child welfare reporters, and individuals would be eligible to apply to be on the register if they met the relevant training and qualification requirements, which will be set down in regulations. There will be a full public consultation on them, which will be developed by keeping in mind that the welfare of the child is at the heart of the proceedings.
Amendment 65 would allow only social workers to be child welfare reporters. I understand where the member is coming from with that proposal, as approximately 90 per cent of child welfare reporters are lawyers, but I am not convinced that there is a justification for losing that pool of expertise by limiting the role to only social workers. My view is that the most important factor for a child welfare reporter is that they meet the required standards regardless of their professional background.
Liam McArthur attempted to address the point about capacity, but I am not clear whether there is sufficient capacity in the social work sector to take on the role of child welfare reporter. There might be such capacity, but we do not know that for certain at this point, so that would require further detailed consideration. Obviously, not having enough capacity to undertake the necessary number of reports would put us in a bad situation.
I am keen to encourage non-lawyers to become child welfare reporters because I believe that diverse experience in the role of child welfare reporter would be beneficial for the process. Rona Mackay, John Finnie and Fulton MacGregor made good points about that. What we are looking for, which I think sums up what those members said, is not necessarily a job title but people who have the right skills, experience and expertise. Such people might be social workers, but they could equally be child psychologists or lawyers. In my response to the Justice Committee in advance of stage 2, I set out how I plan to encourage social workers to apply to be child welfare reporters. For all those reasons, I hope that Liam McArthur will not press amendment 65.
When I first looked at Neil Findlay’s amendment 66, I was not entirely clear what it was intended to do. Section 8 already says that if a person has the requisite skills and experience to allow them to be included on the register, they can apply to be included. I am therefore not entirely clear how a person’s professional knowledge of a particular child would be relevant to the general question of whether the person could be on the register.
I take Neil Findlay’s point that a professional person might have already worked with a certain child and could be in a good position to write a child welfare report on them. However, section 8 does not deal with who will write a report on a specific child; it is much wider than that. I would be happy to discuss the matter further with Neil Findlay before stage 3 to ensure that I have understood his concerns about the issue. However, I ask him not to move amendment 66.
I see the point of amendment 67. When drafting regulations, we need to ensure that people with personal experience give us their views. I agree that people who have experienced court-ordered contact and domestic abuse have valuable insights. I assure the member that we will obtain views from people in those categories, as I have done throughout the bill process, which has taken place over the past couple of years. We will do that through the formal consultation process or by meetings and discussions, or by both. Given that assurance, I ask Neil Findlay not to move amendment 67.
11:00The Convener
Thank you. Neil Findlay has a question for the minister.
Neil Findlay
Thank you, convener. In the phone discussions about the bill that Liam Kerr was party to, the minister said that establishing any system would take three years. Is that still the case? It seems an extraordinary length of time to bring forward regulations and set up a system. We were recently told that we could set up a new state in 18 months, yet we cannot set up such a system in three years.
Ash Denham
The projected timeline for when parts of the bill will be enacted has already been set out to the committee. I undertook to Neil Findlay that I would ask officials to look at it again to see whether there was a possibility of things being done more quickly. He and the committee will have to accept that, with the health pandemic and Covid-19, we have had to move staff from various directorates to the health department, so I would not be confident that the system could be delivered more quickly, but I have undertaken to ask officials to see whether there is that possibility.
The Convener
Is Neil Findlay content?
Neil Findlay
I am not content at all, convener. [Laughter.]
The Convener
I appreciate that.
I ask Liam McArthur to wind up and to press or withdraw amendment 65.
Liam McArthur
I thank the convener, Rona Mackay, Fulton MacGregor, John Finnie and the minister for their contributions on amendment 65. I remind the committee that, until changes in legislation in 1984, social workers predominantly carried out welfare reports.
I understand the capacity issue, on which Fulton MacGregor speaks with particular insight. Dr Whitcombe is clear that capacity should not be a problem, if people who are no longer active in practice are drawn on and put themselves forward as welfare reporters. Therefore, there appears to be a wider pool from which to draw; it would not simply be council social work departments that would shoulder the responsibility.
I understand the anxieties that colleagues have expressed about limiting the role solely to social workers. I am not calling into question the skills that lawyers bring to bear, as some of them have become specialists in the field. However, it seems excessive that 90 per cent of the work is carried out by lawyers. The complexity of the work of putting together welfare reports and the judgments that need to be made in the assessments means that the role is likely to fall far more readily into social workers’ skill set and training and social work regulations.
I will reflect on the concerns that have been raised, specifically in relation to the amendment being overly restrictive, and I will look at bringing something back at stage 3 that will take those concerns into consideration. For the time being, I will seek to withdraw amendment 65.
Amendment 65, by agreement, withdrawn.
Amendment 66 moved—[Neil Findlay].
The Convener
The question is, that amendment 66 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 66 disagreed to.
Amendment 67 moved—[Neil Findlay].
The Convener
The question is, that amendment 67 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 67 disagreed to.
Section 8 agreed to.
Section 9—Regulation of provision of contact services
The Convener
Group 6 is on responsibility of contact centres. Amendment 68, in the name of Neil Findlay, is grouped with amendment 69. If amendment 15, which is in the next group, on regulation of contact services, is agreed to, I cannot call amendment 69.
Neil Findlay
Contact centres currently do not assume responsibility for children on their premises; that responsibility always lies with the parent. That begs the question: how can it be reasonable or, indeed, safe for that responsibility to lie with a parent who might themselves be subject to supervision? My view is that those who run the contact centre and their staff must be responsible for a child’s safety at all times when the child is on the premises and that that should be a condition of a child being in a contact centre. If a court requires a child to attend a contact centre, the staff of the contact centre and the company or organisation that runs it must take responsibility.
My former constituent who lodged the initial petition on contact centres was told that a contact centre could not guarantee her safety or that of her children while on the premises. She was told that the contact centre was not responsible for her children because the other parent, who was subject to a supervision order, was there. That does not make any sense, and it appears to be a way of passing the buck and avoiding liability should something happen. My amendments would make contact centre staff and the company or organisation that runs a contact centre responsible for the health, safety and wellbeing of any child on the premises.
I move amendment 68.
John Finnie
Will Neil Findlay outline how that squares with the obligation on every property owner to have regard to the welfare of people on their premises, not least because we would imagine that their liabilities would have had to be underpinned by a risk assessment anyway?
Neil Findlay
Mr Finnie raises a very good point. However, that was certainly not the experience of my constituent Emma McDonald when she raised serious concerns about her children being left in the premises. The contact centre could not ensure that the children were safe, and there were obvious risks to the children—for example, there was no closed-circuit television on the premises, and there was a low window that was open at a height that meant that a child could easily have climbed out and fallen. Those issues were raised with the person and the company running the contact centre, but Emma was told that the safety and wellbeing of children in a contact centre are the responsibility of the parent. As I mentioned, that parent can often be subject to supervision. That was a domestic violence case, which in itself raises serious concerns.
The Convener
Is John Finnie content with that?
John Finnie
Yes.
The Convener
On the face of it, amendment 68 seems entirely reasonable, but I would be interested in the minister’s comments.
Ash Denham
I want to ensure that all cases of contact at a contact centre are facilitated safely and appropriately. That is why section 9 of the bill gives the Scottish ministers powers to set minimum standards for contact centres in regulations.
I cannot support amendments 68 and 69, and I urge members to vote against them if Mr Findlay chooses to press them, because it is entirely unclear which responsibilities they seek to impose on contact centres. Do they deal with responsibility as a matter of the law of delict? Contact centres already have liability on their premises under the normal mechanism of the law. That was John Finnie’s point. It is also not clear what the intended effect of the amendments would be on those with parental rights and responsibilities in relation to a child.
The amendments contain quite vague and unspecified legal duties. I urge Mr Findlay not to press them, but if he wants to discuss the issue further with a view to bringing the amendments back at stage 3, I would be happy to work with him so that he is able to do that.
Neil Findlay
I would normally press my amendments but, given the minister’s offer, I will engage with her. If we do not make progress, I will bring them back at stage 3. I will wait for the minister’s office to make contact with me, so that we can have a discussion.
Amendment 68, by agreement, withdrawn.
The Convener
This is an opportune time for a comfort break. I suspend the meeting for five minutes.
11:15 Meeting suspended.11:22 On resuming—
The Convener
We move to the seventh group of amendments. Amendment 15, in the name of the minister, is grouped with amendments 52, 53, 16, 17, 70, 18 to 21, 71, 22, 72, 23 to 25, 73, 26 to 28 and 74.
If amendment 15 is agreed to, it will pre-empt amendment 69, which was debated in the previous group, and amendments 52 and 53 in this group.
Ash Denham
I recognise the important role that child contact centre services play, and I want to ensure that, in all cases, contact at such centres is safe and appropriate for children. Section 9 gives ministers the power to set, by regulations, minimum standards for contact service providers that they must meet, and continue to meet, in order to be registered as a provider entitled to take court referrals.
The point has been raised with the Government that a provider can operate multiple centres and so deregistering the provider for a failure to meet the minimum standards at one centre may be a disproportionate response. If the other centres are operating well, there is no reason why their work should be interrupted. Amendments 15 to 28 address the point by providing for individual contact centres, as well as service providers, to be registered so that, if there is a problem with an individual centre, it can be deregistered without affecting the work of any other centre that is operated by the same provider. However, if the problems encountered at one centre indicate a problem that is endemic to everything that a particular provider does, the option of deregistering the provider entirely will still be available.
In order to facilitate contact for families in remote areas where there are no permanent contact centres, rural service providers use alternative premises on an ad hoc basis. In that context, requiring the registration of premises would not be practicable. The amendments therefore also allow for regulations to specify circumstances in which a provider may use unregistered premises, subject to those premises still meeting the minimum standards that are laid down in the regulations. There will be a full public consultation on the detail of the standards as the secondary legislation is developed.
Amendments 52 and 53, in the name of James Kelly, would require that all referrals to a contact centre would be to a regulated centre. That would include solicitors who refer clients, social workers and other agencies that refer families, and individuals who self-refer.
Currently, the bill provides that court-ordered contact must take place at a contact centre that is operated by a regulated contact service provider. I would expect that, once regulations are in place for court referrals, solicitors and others would, in practice, refer families to a regulated contact centre. However, concerns were raised at stage 1, and the committee recommended that the Scottish Government should amend the bill at stage 2 so that referrals to contact centres from solicitors and others must be made to a regulated centre.
I am not inclined to introduce mandatory measures that might impose a duty or require enforcement measures if that is unnecessary. For that reason, I made a commitment in the “Family Justice Modernisation Strategy” to discuss with the Law Society of Scotland and the Faculty of Advocates whether guidance could be issued to encourage solicitors to refer clients to regulated contact centres.
However, in light of concerns that have been raised by my officials, we are now engaging with the Law Society to consider whether we can go further in relation to solicitor referrals and whether a legislative duty could work in practice. If our conclusion is that such a duty would be workable, I will lodge amendments to that effect at stage 3, and I would be willing to work with James Kelly on that.
On referrals made to contact centres from other persons, including individual parents who self-refer, I still have a concern about how a duty or a mandatory provision in that area would work out in practical terms. However, given the commitment that I have made to look further at solicitor referrals in advance of stage 3, I ask James Kelly not to press that amendment.
Amendment 70 would require contact centre regulations to include provision for staff to be trained and to hold recognised professional qualifications in relation to issues that concern children. I agree that staff who work in contact centres should have the right professional qualifications. The bill already provides an appropriate mechanism for addressing staff training and qualifications in regulations, so amendment 70 is not necessary.
Because of the way in which amendment 70 is framed, it could place an undue burden on services by requiring them to ensure that all their staff and their volunteers have those professional qualifications, irrespective of their individual roles. For example, some staff might work in reception and not have direct contact with the children.
I would be happy to discuss staff training and qualifications further with Neil Findlay as the regulations are developed, but I cannot support amendment 70, and I ask him not to press it.
Amendment 71 would require contact centre regulations to make provision about access to, and facilities at, contact centres for disabled children. I assure Bob Doris that I fully recognise the seriousness of that issue. I want to ensure that all children have access to a contact centre service and that all contact is facilitated safely.
The bill already provides a mechanism for addressing accommodation and staff training issues. Addressing those by regulation allows us time to consider in more detail what standards are required and how to undertake a full assessment of the existing laws on issues such as disability access.
In this instance, we need to ensure that we do not cut across or duplicate existing provision. There may also be implications for the law on equal opportunities that would require detailed consideration. We will explore those issues fully as part of the process for developing the regulations.
There will be a full public consultation on the draft regulations next year. I give my commitment to Bob Doris that the issue of disabled access will be considered as part of the consultation, and I am happy to discuss that further with him at any time. We will also ensure that the consultation includes disability organisations and the Equality and Human Rights Commission.
In short, I understand Bob Doris’s concerns and the intentions behind amendment 71, but I cannot support it at this point for the reasons that I have given, so I ask him not to press it.
I would like to touch on a couple of other amendments, if that is okay.
Amendment 72, in the name of Neil Findlay, would add a function for the body appointed to oversee contact centre regulation to undertake risk assessments, and for those to be carried out by staff who are trained in undertaking such assessments.
11:30I expect that the body that is appointed to oversee contact centres will undertake risk assessments as part of the inspection process, and I also expect persons who carry out the risk assessments to have the necessary training. The functions of the regulatory body will be set out in regulations, and I will work with the Care Inspectorate to consider the matters that it has set out in its feasibility study report as the regulations are developed.
Although I understand the intention behind amendment 72, I do not think that it is necessary, for the reasons that I have set out, so I ask Neil Findlay not to move it.
On amendment 73, I agree with Neil Findlay that we need to ensure that people with relevant lived experience give us their views when we consult. I have done that throughout the bill process, and I intend to continue to do that, so I ask Neil Findlay not to move amendment 73.
Amendment 74 would require regulated contact centres to be
“publicly provided and accountable to the Scottish Ministers”.
I am not clear what the amendment is supposed to cover, and I have concerns that it could exclude third sector organisations, public sector bodies, private sector bodies and even local authorities. If the intention behind the amendment is to address concerns that were raised at stage 1, including by the committee, about the long-term funding of contact centres, I point out that I have lodged an amendment to allow the Scottish ministers to enter into arrangements for the provision of contact services. That would pave the way for the Scottish ministers to let a contract for contact services and ensure that contact services are funded on a secure and sustainable footing.
For the reasons that I have stated, I cannot support amendment 74, so I ask Neil Findlay not to move it.
I move amendment 15.
James Kelly
I will speak to amendments 52 and 53, in my name. The committee heard substantial evidence about the conditions at contact centres. There were concerns that children are being placed in unsafe situations because of the conditions and the lack of training of those who work in contact centres. Those concerns were also raised in the stage 1 debate. If we are serious about ensuring that a child is properly safe in such situations, we need to achieve that by having strong regulations in the bill.
Amendments 52 and 53 seek to ensure that, when a referral is made to a contact centre, that contact centre should be regulated by a recognised service provider. I note the minister’s caution about making such provisions mandatory but, if we are to take on board the evidence that we heard and the comments in the stage 1 debate, we need them to be mandatory. That would ensure the safety of the child, give parents confidence when they bring their children to contact centres and address the shortcomings that we have heard.
Amendments 52 and 53, in combination with amendments 70 and 72 to 74, in the name of Neil Findlay, would provide a stronger network around contact centres, which would give greater primacy to the safety of the child and give parents greater confidence when they take their children to those centres.
Neil Findlay
When dealing with vulnerable children, it must be in the child’s best interests to surround them with people who are competent, knowledgeable and professionally qualified, and who are able to understand and react to a child’s response to any situation and record it based on their professional experience and knowledge. Without such training and qualifications, the work is left to well-meaning individuals—often volunteers—who do not know how best to respond to different situations and behaviours that might arise in contact centres. If people are not basing their observations on training, qualifications and experience in a role, what are decisions being based on? The matter needs to be dealt with urgently.
No volunteer without the appropriate qualification or training and/or relevant experience should be involved with vulnerable children in such a situation. Court reports often come from notes that were taken at the time by unqualified volunteers and collated into a report by someone else working for the organisation at a later date. That surely makes them open to interpretation and mistakes.
Amendment 70 seeks to remedy that situation by ensuring that staff are trained and hold recognised professional qualifications. The minister put forward a red herring when she said that other staff, such as the plumber unblocking the toilet, would need to be qualified on issues relating to children if they were working at the contact centre. That is simply not the case.
On amendment 72, it must be best practice to employ the services of someone who is suitably qualified to carry out a risk assessment of the danger to children of other adults on the premises, including staff. Some of the people attending contact centres may have serious criminal convictions, which could be for violence or domestic abuse. Given the inherent risk that some individuals may bring to a situation involving children, it is best practice for someone with specific risk assessment qualifications and knowledge of the criminal justice system in relation to domestic abuse, coercion and control to make such a risk assessment. It is currently done by contact centre staff, whereas qualifications and professional knowledge should inform such decision making.
On amendment 73, it is essential that we include people with lived experience, because they bring a unique perspective to the situation. They must be listened to prior to the implementation of any regulations. To take the example of a former constituent of mine, her sons’ lived experience of contact centres was that they were places where they were forced to go against their will, and where the staff would not listen to them and coaxed them into seeing someone they did not want to see. They were scared, and a physical change in their behaviour was noted by their school. They felt physically sick before going and would struggle and undress so as not to have to leave the house on days when contact took place. That is real lived experience that we should listen to.
On amendment 74, if the state, via the court, requires a safe environment for children to attend the contact centre, the service has to retain public confidence. Children must come first, not finance. Therefore, it is my view that such a system should be publicly run and publicly accountable. We can see what has happened in the asylum system, in which organisations such as Serco and Capita have won tenders for providing services. Those services do not retain public confidence and have been pretty disastrous.
We are reforming the current system of contact centres, which is already a tendered system, because of the failings within it, yet we want to repeat that failure by putting the service out to tender again. Amendment 74 is based on practicality and accountability. When we first raised the issue of contact centres, we found it very difficult to find out who was accountable for them and oversaw them to get answers about their practices.
A publicly run and accountable service has to be the way to go in such a vital area of children’s welfare. It is not just about funding but about the whole ethos underpinning the system. We are at this stage only because of the failings of the existing system, so my final amendment in the group would provide a robust foundation for a system in which people can have confidence. I hope that members will support all my amendments.
Bob Doris (Glasgow Maryhill and Springburn) (SNP)
In speaking to amendment 71, I want to outline a situation that constituents of mine found themselves in. They have a teenage son with cerebral palsy, and around two years ago they were awarded supervised contact with their son by the court. However, the contact centre did not have a suitably adapted disabled toilet. Over a number of months, adaptations were made.
Subsequently, a hoist was deemed to be required, and funding was secured for it. After that, bizarrely, it was decided that a changing mat was not available, so one had to be purchased. Then, just as my constituent thought that contact would go ahead imminently, they were advised that staff would have to be identified and trained to operate the hoist and that funding would have to be found for that. I spoke to my constituent yesterday and, thankfully, that now appears to have been done. They are hopeful that they will see their son soon, post-lockdown. However, it is two years since the initial contact was awarded by a court.
In the stage 1 debate on the bill, I raised the matter of disabled children at contact centres. I have corresponded with the minister on the matter, and I welcome her comments today. I have also raised the matter at First Minister’s question time and with the contact centre in question on several occasions. I have raised it with the Glasgow sheriff principal and the Lord Advocate, in the hope that the court system would ensure that, where a court orders contact with a young person who has a disability, any contact centre that is used is suitably adapted. None of those representations bore any fruit or had any success.
The current situation is surely a scandal and amendment 71 can start to address that. I hope that, by placing in the bill a requirement for contact centres to make
“the relevant adjustments necessary for a disabled child to access a contact centre and use its facilities including toilets”,
we can drive the required change, and quickly.
The amendment states:
“‘relevant adjustments’ means, in relation to a disabled child, alterations or additions which are likely to avoid a substantial disadvantage to which the disabled child is put in using the contact centre in comparison with children who are not disabled”.
That is surely the right thing to do. In using the expressions “relevant adjustments” and “substantial disadvantage”, I have sought to give legal consistency, as that is the language that is used in the Equality Act 2010. Likewise, the amendment defines “disabled child” as
“a child with a disability within the meaning of section 6 of the Equality Act 2010.”
Again, that offers consistency and certainty.
I know that the minister wishes the matter to be dealt with in guidance. The details of the delivery of ensuring adequate disabled access can of course be placed in guidance, but guidance can be ignored or can be open to interpretation. Placing the disability requirements in the bill would give any subsequent guidance teeth. I am concerned that, if the requirements are not in the bill, little may change for disabled children and for non-resident parents. Their rights could be enshrined in the bill.
I listened carefully to the reassurances that the minister gave, which were substantial and welcome, but I have to know the direct connection between those reassurances and what will eventually end up in guidance. On the issue of a crossover with minimum standards for accommodation and training and other things that are going on, I suspect that there would be little overlap, given that, from what I can see, those standards currently simply do not exist.
I welcome the reassurances that have been given, but I need to know that it is a bottom line for the Scottish Government in consulting on the guidance that the guidance will enshrine mandatory and enforceable guarantees in relation to access for disabled people to buildings and training of staff to use items such as hoists. That will mean that other constituents do not have to wait for two years to see their child, as my constituent has done. That is unacceptable.
I will wait to hear what the minister says, but I want to work with her to get the reassurances that I desire. I would rather work in partnership with the Government.
Ash Denham
I agree with what James Kelly seeks to achieve with amendments 52 and 53, regarding non-court referrals, and I am exploring how that can be done. The Law Society of Scotland is consulting its practitioners, and we are looking into the issue. It is not entirely straightforward, and the enforcement part needs to be worked out in detail. I am sure that the committee will agree that there is no point in enacting something and putting it into law if it cannot be enforced. I am exploring that issue and I agree with the intention behind the amendments.
I honestly think that many of Neil Findlay’s points are already addressed by the bill with the ability to set training standards for the staff of contact centres and to regulate them. I am seeking to regulate contact centres because, obviously, they are not currently regulated; I am seeking to regulate them to ensure that they meet certain standards, which will be fully consulted on publicly.
11:45On Bob Doris’s amendment, the legal situation needs to be considered. We need to consider that amendment further. Contact centres may already be required to make those minimum adjustments for disabled persons to access their facilities under the public sector equality duty in the Equality Act 2010. Making provision on that could relate to an equal opportunities reserved matter. We need to further consider the legal situation. I ask Bob Doris to work with me on the issue while I take some further legal advice. Obviously, he will be able to bring the amendment back at stage 3.
The Convener
The question is, that amendment 15 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Finnie, John (Highlands and Islands) (Green)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Against
Kelly, James (Glasgow) (Lab)
The Convener
The result of the division is: For 7, Against 1, Abstentions 0.
Amendment 15 agreed to.
Amendments 16 and 17 moved—[Ash Denham]—and agreed to.
Amendment 70 moved—[Neil Findlay].
The Convener
The question is, that amendment 70 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Kerr, Liam (North East Scotland) (Con)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 70 disagreed to.
Amendments 18 to 21 moved—[Ash Denham]—and agreed to.
The Convener
Amendment 71, in the name of Bob Doris, has already been debated with amendment 15. I call Bob Doris to move or not move the amendment.
Bob Doris
During the minister’s summing up, I lost internet connectivity, so I am not absolutely clear on the reassurances that were given. I think that, when addressing my amendment, the minister promised to look at the matter again and to try and give legal certainty about how it might interact with the reserved aspects of the Equalities Act 2010. I think that she also said that she would take the views of her officials and that we might return to it at stage 3. However, I could be wrong in that. That was certainly said in relation to one of the amendments, but I lost internet connectivity. I therefore want to put that on the record before I say that I will not move amendment 71, but I will hold my position ahead of stage 3.
The Convener
Minister, can you give Mr Doris the reassurance that he seeks?
Ash Denham
I can. He summarised quite well what I said. I am looking at the issue, but I need a little more time to consider the legal implications.
The Convener
That is great.
Amendment 71 not moved.
Amendment 22 moved—[Ash Denham]—and agreed to.
Amendment 72 moved—[Neil Findlay].
The Convener
The question is, that amendment 72 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 72 agreed to.
Amendments 23 to 25 moved—[Ash Denham]—and agreed to.
The Convener
I invite Mr Findlay to move or not move amendment 73.
Neil Findlay
I am on a roll, so I will move it.
Amendment 73 moved—[Neil Findlay].
The Convener
The question is, that amendment 73 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the vote is: For 3, Against 6, Abstentions 0.
Amendment 73 disagreed to.
12:00Amendments 26 to 28 moved—[Ash Denham]—and agreed to.
Amendment 74 moved—[Neil Findlay].
The Convener
The question is, that amendment 74 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 74 disagreed to.
The Convener
Group 8 consists of minor and technical amendments. Amendment 29, in the name of Ash Denham, is grouped with amendments 34 to 36 and 40 to 42.
Ash Denham
The amendments in my name in group 8 make minor adjustments to ensure consistency of expression across the statute book. I prefer not to take up members’ time by going through each amendment, but if anyone has any questions, I would be happy to answer them.
I move amendment 29.
The Convener
I presume that you do not wish to wind up.
Ash Denham
I am content.
Amendment 29 agreed to.
Section 9, as amended, agreed to.
After section 9
The Convener
Group 9 is on arrangements for contact centres. Amendment 30, in the name of Ash Denham, is the only amendment in the group.
Ash Denham
Amendment 30 paves the way for the Scottish Government to contract for contact services across Scotland. I recognise the important role that is played by child contact centre services and I want to ensure that the funding of contact services is put on to a secure and sustainable footing. I have considered carefully the concerns that stakeholders and MSPs raised during stage 1 as well as the comments that the committee made in its stage 1 report about the funding of contact centres.
I consider that the most effective way to meet the objective of securing long-term funding for contact services would be to carry out a tendering exercise for the provision of child contact centre services through an open and transparent competition process. Amendment 30 paves the way for that.
I move amendment 30.
The Convener
Liam Kerr, would you like to ask any questions?
Liam Kerr
No, I would not. My point in the chat box was a separate one. However, as you have brought me in, I will say that I was interested in amendment 30 and I have listened to the minister’s points. Unless I hear anything different, I am inclined to vote in favour of the amendment.
The Convener
No other member has indicated that they wish to speak. Minister, do you have anything more to say in winding up?
Ash Denham
No, I am content not to wind up.
Amendment 30 agreed to.
The Convener
Group 10 is on renaming residence and contact orders. Amendment 75, in the name of Fulton MacGregor, is in the only amendment in the group.
Fulton MacGregor
Amendment 75 seeks to address an area that members will recall was subject to substantial discussion throughout stage 1: the renaming of the terms “residence” and “contact”. There has been broad agreement that how we word things is important and that that can impact on the practice of professionals and others working in the sector. I am grateful to the minister and to other organisations that have submitted briefings for acknowledging the intention behind the amendment.
As the minister is aware, I am happy to say from the outset that this is a probing amendment and I will be interested to hear what the minister and other members have to contribute to the overall debate. I have not made alternative suggestions to those terms, because it is a probing amendment and I do not think that I, as one person, should do that.
I think that there should be a collaborative approach among young people, organisations and practitioners to address what terms might work best for Scotland. In England and Wales, those terms were replaced relatively recently with simply “child arrangement orders”, and I believe that that is working pretty well. I am also aware that the family justice review recommended using the term “child arrangements orders”,
“which would set out arrangements for the upbringing of a child when court determination of disputes related to the care of children is required.”
I am grateful for the input from other organisations, which offer broad agreement. The Children and Young People’s Commissioner’s briefing to the committee says:
“We agree that the terms contact and residence are not child-friendly and do not necessarily reflect modern living arrangements, however this amendment does not present any alternatives. We would welcome continued discussion on this, outwith consideration of the current bill.”
The joint briefing by Scottish Women’s Aid and Children 1st says:
“Our organisations have often shared concerns about language and terminology used by the courts when speaking about children and the relationships that they have with the important people in their lives. While we recognise the limitations of the existing terminology, this amendment does not appear to offer a viable alternative.”
It goes on to say that there should be
“further consultation ... undertaken on more appropriate terminology.”
Therefore, there is general consensus that the terms that are being used are not optimal, but there is a debate over what the terms should be. I fully agree, and that is why I am happy for amendment 75 to be a probing amendment that further airs the issue so that we might come back with a more agreeable solution before stage 3, whether or not it would need to be put in the bill—I am open minded about that. A solution could involve setting up a group or forum, which would include the organisations that I have mentioned, to discuss the best options.
I know from my own practice that those terms are not deemed acceptable by our young people, and we need to listen to them as well. It may well be that they are reasonably well understood by practitioners, but the bill is about young people and children. I feel that they should be involved in any discussions. At the end of the day, practitioners will adapt to new terminology—that is nothing new, as new guidance and legislation are presented all the time. However, misplaced words, said at the wrong time, could have a much greater impact on a child who is going through difficult circumstances, and that has to be the key consideration.
I look forward to the discussion. As I have said, I do not expect to press the amendment at this stage, for the reason that I have not offered any alternative wording, and I have given my reasons for that.
I move amendment 75.
The Convener
No member has indicated that they wish to speak, so I invite the minister to comment.
Ash Denham
On amendment 75, I appreciate the point that Shared Parenting Scotland raised in its submission about the use of the terms “contact” and “residence” wrongly implying that one parent has a closer relationship with the child or more decision-making powers than the other parent.
However, I am unable to support the amendment for a number of reasons. The first is that the terms “contact” and “residence” have been in use for some time. They have gradually gained acceptance and they are widely understood. The terms can be seen as useful descriptors of the types of order that can be made under section 11 of the 1995 act. In addition, the amendment does not seek to remove all references to “contact” from section 11 of the 1995 act.
The court can make a range of different orders under section 11, so such an order might have nothing to do with contact between children and their parents or the child’s residence; therefore, the term “section 11 order” would not really tell anyone what an order was about.
Also, continued use of the terms would seem to be likely in any event. I still receive correspondence relating to the terms “custody” and “access”, as I am sure many other MSPs do, and those terms were replaced in the 1995 act.
I have committed to producing guidance to parties on what it is like to go to court. I am willing to include text in that guidance to emphasise that those terms do not mean that one parent has a closer relationship with the child. I hope that that would go some way to addressing the member’s concerns.
The Convener
I ask Fulton MacGregor to wind up and say whether he will press or withdraw amendment 75.
12:15Fulton MacGregor
I thank the minister for her comments. The point about terminology from previous legislation still being used is the point that I am making. There is no doubt that the terminology would continue to be used by people who have used it for a long time, but we need to start somewhere to change mindsets. For example, the word “custody ” is much less used in this context than it was 10 or 20 years ago, so I do not agree that terminology should not be changed because it has long been in use.
I accept the point that a lot of change has to be made in practice rather than in the law. Councils and third sector organisations, in considering the needs of young people, should consider whether terms could be changed at the practice level.
I have a question for the minister. Given that many briefings for the committee make the same point that the terminology is not great and given that the issue will require further discussion, is the minister open to having a discussion ahead of stage 3 on what terms to use, and could that involve young people?
Ash Denham
I am open to discussing with Fulton MacGregor ahead of stage 3 other terms that he would like us to consider for an amendment. However, I am content at the moment that the terms in use are meant to be descriptors, not pejorative terms. They are well understood in practice, and I am concerned about changing them and people not understanding any new terms for some years to come. However, I am happy to meet the member to discuss the matter further.
Fulton MacGregor
Given that response, I will not press amendment 75 but will have further discussion with the minister ahead of stage 3. Several other committee members have expressed a keen interest in this area, but I politely ask them to support me in not pressing amendment 75 at this stage.
Amendment 75, by agreement, withdrawn.
Section 10—Promotion of contact between looked after children and siblings
The Convener
We move to group 11, on promotion of contact between child and others. Amendment 54, in the name of the minister, is grouped with amendments 76, 77, 55, 78 and 31. I ask the minister to speak to and move amendment 54 and speak to all amendments in the group.
Ash Denham
On amendment 54, the committee recommended in the stage 1 report that the word “practicable” be removed from section 10. The section highlights the importance that the Government places on the need to promote relationships between siblings for children requiring care away from home. Removing the word “practicable” from section 10 will remove the concern that has been raised that practicalities could be inappropriately used to prevent contact from happening.
Amendment 55 will remove unnecessary wording to ensure that the focus is on those who the child might not otherwise have contact with.
On amendments 76 and 78, I fully understand that a child’s continued link with key people from their childhood can be beneficial to them. In relation to Mr Cole-Hamilton’s amendment 76, though, “lineal ancestors” is an unclear expression. It could involve a large number of people, which would not be in the best interests of children and could create a disproportionate burden on local authorities. The Scottish Government recognises the important role that grandparents play in the lives of many young people. As we discussed earlier in the meeting, I am committed to promoting further the charter for grandchildren.
I also have much admiration for the role that foster carers play in the lives of many care-experienced young people. However, the variety of people who can be part of a child’s life cannot be covered by amendment 78, and I cannot support it.
First, the aim of our policy is to focus on the needs of the child and not on those of the adults with whom they may come into contact. Just over a third of Scotland’s looked-after population is in foster care. Although many foster placements offer long-term stability for a young person, some offer short-term solutions. In relation to former foster carers, amendment 78 makes no distinction between the different types of care that a young person may experience. Therefore, to impose a duty on local authorities to promote contact with all foster carers would be disproportionate and would not serve the best interests of children, as it would take resources and focus away from the child’s core relationships.
Secondly, I am supportive of efforts to sustain contact with those who have had a positive impact in a child’s life. However, I would expect local authorities already to be assessing the needs of a child in their care and making decisions on an individual basis about who the child stays in touch with—with those decisions led by the child and their views.
Many local authorities are involved in family group conferences. Programmes such as lifelong links focus on the needs of the young person by building relationships and long-term social connections with family members, as well as with other adults such as former foster carers.
The Scottish Government will take forward work to update the guidance for looked-after children. Input from the Fostering Network and others would be beneficial in ensuring that the crucial role that foster carers play is adequately reflected.
Therefore, I ask the member not to press amendments 76 and 78.
On amendment 77, and on the language used in section 10 to define siblings, I understand the concerns that Rona Mackay has raised. I offer to engage with her to explore an appropriate replacement for those terms and to lodge an amendment at stage 3. I cannot support amendment 77 at this stage.
On amendment 31, one of the asks in the Stand Up For Siblings pledge for siblings is to introduce a duty on children’s hearings to consider contact between a child and their siblings. Amendment 31 does that. It also requires the hearing to specifically consider contact with the child’s relevant persons. That will most often be a parent.
Panel members across the country make considered legal decisions for children daily. They are best placed to consider—in addition to their decisions as to where a child stays—what level of contact a child should have with their parents and siblings. Panel members could also decide to make a measure of no contact, for example when it is not in the best interests of the child to see an abusive parent.
Amendment 31 allows children’s hearings to take a bespoke approach to the relationship between siblings. That is in line with the decision of the Supreme Court last week in the cases of ABC and XY. As the committee is aware, those cases considered siblings’ participative rights in children’s hearings. The Supreme Court’s decision recognises that the legislative scheme behind Scotland’s children’s hearings is compatible with children’s article 8 rights.
As we have previously indicated, ministers want Scotland’s care system to move from compliance into excellence. It remains our ambition to bring in procedural and practical improvements that will better support children in care to maintain relations with their brothers and sisters. My intention is to bring any necessary amendments at stage 3 to further address any gaps. That will also enable the Government to honour the independent care review promise on siblings.
I move amendment 54.
The Convener
Amendment 76 is in the name of Alex Cole-Hamilton. As he indicated earlier, Liam McArthur will speak to and will move or not move any amendments in Alex Cole-Hamilton’s name.
I invite Liam McArthur to speak to amendment 76.
Liam McArthur
I also have an amendment in my own name in this grouping, convener. To be clear, do you want me to speak to that amendment too at this stage?
The Convener
No—you can speak to amendment 76 now, and I will call you later to speak to your own amendment separately.
Liam McArthur
That is fine, convener. Suffice it to say that, given the pressures of time and given that Alex Cole-Hamilton was not planning to move these amendments on the basis of the earlier debate on the substantive amendments, I do not have much to add. As Alex Cole-Hamilton has requested, I will not be moving the amendments in his name.
The Convener
I call Rona Mackay to speak to amendment 77 and other amendments in the group.
Rona Mackay
I can be brief here. The terminology of “whole-blood” and “half-blood” in the bill struck me as incredibly archaic—it has a real Harry Potter ring about it. I could not see how such language could still have a place in 21st century legislation, and I would have liked the phrase “biological or non-biological” to replace it.
However, I do not now intend to move my amendment 77. The minister said that she will enter into discussion about the terminology before stage 3 to ensure that there is a consistent approach and compatibility across UK and domestic legislation, and I am content with that. I have not changed my view on the language, but I am content to discuss the issue in advance of stage 3.
I will not speak to the amendment supported by Fulton MacGregor, because he encapsulated everything that needed to be said on the matter previously.
The Convener
I call Liam McArthur to speak to amendment 78 and other amendments in the group.
Liam McArthur
I start by acknowledging the support of Jeremy Balfour and Fulton MacGregor for my amendment 78.
I am indebted to the Fostering Network for its advice and support in framing the proposed changes to the bill. As the Fostering Network reminds us in its briefing, foster care allows children to develop valuable relationships. Keeping in touch with the people they love and trust is important for children and young people as they move through or even out of the care system.
Sadly, for many, the relationships that they have developed with their foster carers are not prioritised or supported. In some cases, children and foster carers are even prevented from maintaining contact, due to an outdated belief that children must break their attachments in order to make new ones. Abruptly ending relationships can be damaging to children, who can be left feeling abandoned or rejected and less able to make future relationships.
As I said earlier, I realise that decisions need to be based on the best interests of the child. The bill is not, and nor should it be, about embedding or prioritising the rights of any adult. However, the evidence suggests that the interests and the voice of children and young people are not being taken into account when it comes to foster carers. In that respect, I disagree with the assurances that the minister provided earlier.
As one foster carer explained to the Fostering Network:
“I believe it’s important for fostered children to have contact with previous carers if they want it. They are entitled to have an extended family circle that can offer support or just friendship if they choose this. Most of the time this is discouraged by our local authority as they believe it may be unsettling and confusing for them. I don’t believe this to be true. Many of the children we have fostered who have contacted us themselves when they have left care, just want to keep in touch.”
In a UK-wide survey of young people, around one third of children and young people in care said that they had been prevented from keeping in touch with their former foster carers. Of those foster carers who had been prevented from maintaining contact with young people, 56 per cent said that it was the local authority that had prevented them from doing so. Those statistics make the case—they should certainly make the case to the minister—for pushing local authorities to do more to support those relationships where that is in the interests of the child. They also make the case for amendment 78 in my name and the names of Jeremy Balfour and Fulton MacGregor.
Given what the minister had to say earlier, I am minded not to press my amendment 78 at this stage, with a view to refining it and bringing it back at stage 3. Nonetheless, I am conscious of the support that Jeremy Balfour and Fulton MacGregor have expressed for the amendment, and I would be interested to hear their comments before I take a final decision on what to do at this stage.
The Convener
The following members have indicated that they would like to speak: Liam Kerr, Jeremy Balfour and Fulton MacGregor.
Liam Kerr
I want to express my support briefly for the minister’s amendment 54 and the attendant removal of the word “practicable”. Several MSPs spoke about the matter at stage 1, and I appreciate that the minister has listened to and met Neil Findlay and me to discuss the issue, and ultimately has conceded the point. I am therefore very much in favour of amendment 54.
As I said at stage 1, I think that there is merit in dealing with the issue in Rona Mackay’s amendment 77. She said that she is minded to not move the amendment today, and I understand why, but I am pleased that she will be developing the issue as the bill process progresses.
12:30Jeremy Balfour
I will be brief. We have to recognise two things. A lot of work has been done recently on how attachment issues affect children’s lives, particularly those who have had long-term relationships with a foster carer. Losing that contact can damage a child’s life.
As Liam McArthur said, the issue is not about giving foster carers individual rights; it is about protecting children. The evidence that I have seen, including from the emails and the post that I have received, is that local authorities do not always pursue such matters. I therefore ask the minister to reflect on comments that she has made.
I have had contact with people who have been through the system and with foster parents. It is often the case that local authorities do not prioritise that contact. In fact, they do the opposite and make it difficult for that to happen.
We have to look at what is in the best interests of the child. If Liam McArthur does not move amendment 78 this morning, I hope that the minister will look at the issue and lodge an amendment to deal with it at stage 3.
Fulton MacGregor
I will start with amendment 54.
Like Liam Kerr, I welcome the amendment; it is a good addition. The minister has demonstrated the Government’s willingness to work with other people. During the committee’s stage 1 evidence gathering, I said that the approach that it provides for should be being taken anyway through the looked-after and accommodated review process. However, removing the word “practicable” takes away the doubt, and I think that that is reassuring for everyone. I offer my full support for amendment 54.
My name is attached in support of Liam McArthur’s amendment 78. I thank the Fostering Network for the briefing that it has provided and for the brief discussion that I had with it.
Too often in this and other debates, when it comes to what is in the interests of the child, one side of the coin is taken more than the other side of the coin, as it were. I think that it is probably better to start from a place in which everyone should be putting the interests of the child first, no matter the point that they are arguing.
I would like to think that colleagues from all parties would respect that, after working for eight years on the front line of child protection, I would always think in that way. It is not great that I even need to say that. Even though another individual, grandparent, foster carer or whomever may be involved, it should always be the interests of the child that come first.
It would be a wee bit naive to think that long-term foster carers not having an on-going relationship with the child after they leave would not be an issue, or could have no impact on the child. Often, that relationship is an afterthought, so amendment 78 is relevant.
I hear what the minister has said, and I think that there are various issues to do with the amendment, because it does not take into account whether, for example, the foster care relationship has broken down for negative reasons for the child. The minister said that any such contact would have to apply to relationships that have been positive, and that on-going relationships would have to be positive for the child. That could be done simply through the guidance on the looked-after and accommodated review process for children who are coming out of care and will no longer be in that process and have other care plans in place. I agree with the minister’s view that the issue is not one for the face of the bill.
My name is on the amendment for probing reasons, and in that respect I agree with Liam McArthur’s stance. I would be interested to hear what the minister’s thinking is ahead of stage 3. There is no doubt that this is a complicated issue, but it is definitely one worth airing. It needs to be looked at, because children who have long-term relationships with foster carers can suddenly be removed and, because of other pressures, and other relationships, those foster carer relationships might not be prioritised.
Ash Denham
I think that I am right in saying that Liam McArthur said that he was not going to move amendment 78. I was going to say that it was opposed by Social Work Scotland, CELCIS—the Centre for Excellence for Children’s Care and Protection—Adoption and Fostering Alliance Scotland, Adoption UK and the Children and Young People’s Commissioner Scotland. The issue has some significant complications—it is not at all straightforward—and I cannot support amendment 78 as currently drafted.
The debate is an interesting one, though, and I take on board the point that members have raised about children wanting to maintain contact with certain foster carers, and local authorities making it difficult for them to do that. I am very sympathetic to that issue.
There might be a way to reflect the spirit of amendment 78 in a stage 3 amendment, or it may be that legislation is not the way to address the issue and that it is better addressed in guidance. I would be happy to speak to members who have an interest in the issue to see whether we can find a way forward that respects the spirit of the amendment.
Amendment 54 agreed to.
Amendments 76 and 77 not moved.
Amendment 55 moved—[Ash Denham]—and agreed to.
The Convener
Amendment 78, in the name of Liam McArthur, has already been debated with amendment 54.
Liam McArthur
On the basis of the comments from my co-signatories and the offer from the minister, I will not move amendment 78, and look to develop something ahead of stage 3.
Amendment 78 not moved.
Section 10, as amended, agreed to.
After section 10
Amendment 31 moved—[Ash Denham]—and agreed to.
Amendment 79 not moved.
Section 11 agreed to.
After section 11
The Convener
Group 12 is on alternative methods of dispute resolution. Amendment 57, in my name, is grouped with amendments 58 and 80.
On amendments 57 and 58, during the committee’s stage 1 scrutiny of the bill, various stakeholders stressed that an early resolution to family disputes reduced stress and trauma, stated that it helped to prevent views and positions becoming entrenched, and acknowledged that courts are rarely the best place to resolve family disputes. The committee heard that alternative dispute resolution could allow more bespoke and family-focused solutions to parenting disputes. However, witnesses also identified the lack of legal aid as one of the barriers to greater use of ADR.
Amendments 57 and 58 therefore aim to encourage greater use of alternative dispute resolution and to help prevent children from experiencing the ordeal of a case coming to court. Furthermore, the amendments reflect the recommendations on ADR that the Justice Committee made at stage 1, which are in its report and reflect the committee’s previous recommendations in its 2018 report, “I won't see you in court: alternative dispute resolution in Scotland”. Those recommendations were that the Scottish Government and the Scottish Legal Aid Board should explore
“making legal aid available for other forms of alternative dispute resolution”
and that
“mandatory dispute resolution information meetings should be piloted”,
with an exception for domestic abuse cases.
More specifically, amendment 57 would make provision for legal aid under section 11 not just for mediation but for other types of ADR, including arbitration, collaborative law and family group conferencing. The amendment reflects SLAB’s current procedure for the funding of mediation costs, which is that a solicitor must be involved before the commencement of mediation and which provides the definitions of both advice and assistance and civil legal aid from the Legal Aid (Scotland) Act 1986.
Liam McArthur’s amendment 80 seems to aim at getting us to the same place, but states that regulations should be laid within 12 months of royal assent. However, given that a process is in place to provide limited legal aid for mediation, it seems reasonable for Scottish ministers to be able to lay regulations within six months of royal assent.
I turn to amendment 58, which would make provision for Scottish ministers to introduce a pilot scheme for mandatory mediation information meetings. Under the pilot, before an order was made under section 11, the parties would be required
“to attend a mediation information meeting”
to discuss
“the options available to resolve the dispute”.
It is important to understand that the parties would thereafter decide whether to progress with ADR or to continue with court proceedings.
I stress again that only the information meeting about ADR or mediation would be mandatory. The hope is that, with that opportunity to get the information, the parties would decide to go ahead with ADR; if they chose not to use ADR, they would continue to court proceedings to resolve their family dispute. Importantly, the amendment makes it clear—for the avoidance of doubt—that cases involving domestic abuse would be exempt.
In addition, amendment 58 would provide judicial discretion in the determination of whether parties should be required—the mandatory aspect—to attend the mediation information meeting, should the court consider that there were reasons why that would not be appropriate.
Amendments 57 and 58 together represent a positive and comprehensive way forward to ensure that families can benefit from alternative dispute resolution in order to reach an early resolution to potentially damaging disputes and to avoid children being traumatised.
I move amendment 57.
I call Liam McArthur to speak to amendment 80 and other amendments in the group.
12:45Liam McArthur
As the convener says, amendment 80 would place a duty on Scottish ministers to make regulations on providing legal aid for funding ADR within 12 months of royal assent, and would require ministers to consult SLAB before making the regulations. As the convener outlined, it follows a very similar approach to that set out in amendment 57.
Two recent Justice Committee reports have made it clear that ADR is being underutilised, and that legal aid should be available for forms of ADR other than mediation. That was the consensus—if not the unanimous view—of those who participated in the round table that we held at the start of the parliamentary session.
The benefits of the various forms of ADR, compared with going to court, are well established, particularly in cases that involve children or anyone who might be considered vulnerable. As Children 1st pointed out:
“Courts are rarely the best place for resolving family disputes ... families should be given early help and support to resolve problems and disputes, where it is safe and appropriate to do so, before these issues reach the Courts. In particular we highlight the value of Family Group Decision Making (FGDM) as an important option to help resolve conflict and reduce stress.”
Without access to legal aid, however, going down the ADR route may not be an option for some who might benefit from it.
Limiting legal aid to mediation also unnecessarily limits the cases in which ADR might safely and successfully be used. I appreciate that ADR may not be a sensible option in some cases; however, surely we should be doing more, particularly if our interest is in the best interests of the child, to encourage its greater use in the resolution of family disputes.
Whether it is in the form of my amendment 80 or the convener’s amendment 57, I hope that committee colleagues will back the recommendation in our earlier reports and ensure that more forms of ADR become a realistic option for many of the people who—[Inaudible.]
The Convener
Shona Robison would like to contribute.
Shona Robison (Dundee City East) (SNP)
I have some concerns about amendments 57 and 58.
First, as I understand it—perhaps the minister can clarify this—work is already under way to reform the legal aid system. That should be done in a strategic way rather than piecemeal. I am therefore concerned about the process.
On a more fundamental point, anyone who has read the Scottish Women’s Aid briefing will have noted its concerns. Scottish Women’s Aid is very clear that
“alternative methods of dispute resolution (ADR) are not appropriate for cases involving domestic abuse.”
I heard the convener say that ADR would not be appropriate for such cases, and that they would be exempt. However, Scottish Women’s Aid has made a couple of points about that.
Scottish Women’s Aid said that domestic abuse is not always disclosed to the authorities, whether the police, the courts or social work. It also had concerns
“about the practical implementation”
of the amendments in their current form, as it said that they
“would not protect or safeguard children’s rights”.
It made the point that it lacks confidence that the existing system could always
“identify where domestic abuse is taking place.”
We have to take on board very carefully the concerns that Scottish Women’s Aid has expressed.
John Finnie
I will pick up on some of the points that Shona Robison has raised. For a long time, we have been hearing about the reform of the legal aid system—there are significant frustrations about that, not least among those who are involved in dealing with domestic violence—and about the difference in the support that is given for criminal and civil matters, which we have often touched on.
The convener made clear the position that is replicated in the reports that have been mentioned, which is that there is no place for the approach to be adopted in cases in which domestic abuse is a factor.
I understand Shona Robison’s point that domestic abuse is not always disclosed to the authorities. It is rare that I find myself taking issue with anything that Scottish Women’s Aid says, but a key word that both the convener and Liam McArthur used was “support”, and we need to move things on. If everyone agrees—I understand that everyone does—that the resolution of a dispute is not best located in a courtroom, we must encourage the proposed approach.
It seems to me that there is no insurmountable problem here. The concerns that Scottish Women’s Aid has outlined are understandable and I share them. However, there are reasons why I and others are always going on about the judicial process and the need for awareness of the pernicious nature of domestic violence. We must encourage the use of alternative dispute resolution.
Liam McArthur
Earlier, John Finnie suggested that I was quicker out of the blocks than he was. He has now returned the favour, as he has outlined the views that I was going to express.
I absolutely accept the concerns raised by Shona Robison, Scottish Women’s Aid and others about the deployment of ADR in the context of domestic abuse cases. Those concerns must remain a consideration for us, but they should not prevent us from opening up the option of a wider range of alternative dispute resolution processes where no domestic abuse is at play.
As John Finnie said, we have been round the houses on this a number of times. The suggestion that either the convener’s amendment 57 or my amendment 80 would constitute a piecemeal adaptation of legal aid seems to ignore the point that it has been piecemeal all along and we have been waiting for far too long for a more fundamental review to open up access to ADR. With the bill, there is an opportunity to resolve that to some extent, and further reforms may come in due course.
Notwithstanding the reasonable and legitimate concerns that Shona Robison raised, I think that they are addressed in the way that amendments 57 and 80 are structured. I therefore encourage committee colleagues to back one or the other.
Ash Denham
Amendments 57 and 80 would direct Scottish ministers to make regulations to provide for legal aid to be available for parties to participate in ADR forums.
As has been discussed, we are undertaking a root-and-branch review of the legal aid system, although it is slightly delayed in relation to where it might have been. The legal aid payment advisory panel, which I am sure the committee is aware of, was due to have its final meeting in March, but that did not go ahead as a result of the coronavirus. We are slightly behind on that work, but the committee has my commitment that we are still pushing ahead with it.
A common criticism of the existing system is that it has developed in an ad hoc way, reacting to changes in the law with no proper systemic and strategic review. However, that criticism and the issues about costs can be addressed by the strategic review that is being undertaken.
Although the Scottish Government welcomes the roles that both arbitration and collaborative law can play in resolving disputes, they are unlikely to be cheap options given the likely need for very senior lawyers to take part. The content of any regulations under amendments 57 and 80 is unclear, but simply to direct that legal aid should be available would not guarantee that it could be accessed, because civil legal aid is subject to the statutory tests of probable cause, reasonableness and financial eligibility, and advice and assistance is subject to prescribed financial eligibility criteria.
As well as our review of legal aid, we are continuing our review of mediation and wider dispute resolution in co-operation with key stakeholders. That review is aimed at improving access to justice by enabling access to a range of dispute resolution mechanisms in appropriate cases.
On amendment 58, the Government recognises the valuable role that ADR, including mediation, can play. We provide funding to the Relationships Scotland network, and part of that funding is for mediation and couple counselling. In addition, legal aid resources are used to support mediation.
In 2018, the Scottish Government relaunched the parenting plan, which is designed to help separating parents, and the “Family Justice Modernisation Strategy” commits us to improving signposting to and information on alternatives to court. The convener is right that court can end up being an unpleasant experience at times, especially in areas of high conflict. If it is possible to signpost people to other ways of resolving such disputes where that is appropriate, that could be a good thing.
However, we cannot support amendment 58, because we do not consider it to be necessary. An existing court rule empowers the courts to send a section 11 case to mediation, so that is already in place. The Scottish Government has just sent a policy paper to the family law committee of the Scottish Civil Justice Council that aims to strengthen that rule. We propose that the rule be extended to cover other family cases, such as financial provision on divorce cases, and that the rule should not be used when there has been domestic abuse.
There are practical problems with the amendments. They assume that it can be known at the outset whether a case will ultimately end up with a section 11 order being made, but that is not the case. Court proceedings might not begin as section 11 proceedings but may become so where the court considers making an order under section 11, which could be at a later stage in the proceedings. Therefore, the proposed requirement to provide funding for ADR might arise only midway through a court case or even after a section 11 order is made.
Given those issues and the Scottish Government’s commitment to do further work on ADR and to promote it in appropriate family cases, I ask members not to press amendments 57, 58 and 80.
The Convener
I want to address the issue of piecemeal reform, which has been referred to. We have been looking at the issue since 2018 and a consultation has been promised for a considerable time, but we have failed to make any progress.
Amendment 57 would move us on and would include other forms of dispute resolution in the provisions that are already in place for mediation to be legally aided. The amendment does so by making available legal aid under section 11 not just for mediation but for all forms of alternative dispute resolution. The amendment reflects the current procedure and funding, but a solicitor would have to be involved before the parties moved forward. Therefore, I do not think that the minister’s fears about section 11 are justified.
Amendment 58 makes it absolutely clear, in a stand-alone avoidance-of-doubt provision, that the mandatory mediation information meeting would not apply in domestic abuse cases. Indeed, mediation would not apply in such cases. The requirement to have an information meeting is at the discretion of the judge. When the judge considers the matter, one of the parties might refer to a domestic abuse aspect or something else that can be taken into account. That is a belt-and-braces provision in the amendment.
We have an opportunity to extend ADR, which is a much more satisfactory, less traumatic and preferable solution to family disputes. On that basis, I will press amendment 57.
The question is, that amendment 57 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 57 agreed to.
13:00Amendment 58 moved—[Margaret Mitchell].
The Convener
The question is, that amendment 58 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 58 agreed to.
Liam McArthur
On the basis that I am not sure what amendment 80 would add to amendment 57, I will not move it. However, I may come back with something else at stage 3.
Amendment 80 not moved.
Section 12—Factors to be considered before making order
Amendments 81 and 82 not moved.
Liam McArthur
I will not move amendment 83 or bring it back at stage 3.
Amendment 83 not moved.
Section 12 agreed to.
The Convener
I suspend the meeting for a five-minute comfort break.
13:04 Meeting suspended.13:09 On resuming—
Section 13—Curators ad litem
The Convener
We move to consideration of group 13 amendments. Amendment 32, in the name of the minister, is grouped with amendments 43 and 44.
Before I call the minister to move amendment 32, I want to say to everyone that there is a real prospect of completing consideration of stage 2 amendments today, so I ask you to be succinct wherever possible.
Ash Denham
Section 13 requires the court to reassess the appointment of a curator ad litem every six months. The provision currently applies to curators appointed before the provisions of the bill come into force as well as to any appointments made after commencement. However, I am aware of concerns raised by the Scottish Courts and Tribunals Service during stage 1 about the workability of the requirement, in so far as it applies to appointments of curators made before the provisions come into force.
In the light of those issues, I propose to amend the provision so that the reassessment requirement will apply only to curators appointed after section 13 comes into force. That takes a practical approach to the issues raised about workability, while protecting the best interests of children by ensuring that the appointment of curators in new cases will be subject to periodic review.
As cases move on and curator appointments that predate commencement come to an end, the position will be reached whereby all curator appointments will be subject to the periodic review required by the bill.
I am also proposing a minor structural amendment to the provisions to reflect that the reassessment of the curator’s appointment will occur routinely whenever the court has appointed a curator in a section 11 case, whether or not the court is considering making an order under section 11 at the time.
I ask for the committee’s support for the amendments.
I move amendment 32.
Amendment 32 agreed to.
Section 13, as amended, agreed to.
After section 13
Amendment 33 moved—[Ash Denham].
Amendment 33A not moved.
The Convener
The question is, that amendment 33 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Robison, Shona (Dundee City East) (SNP)
Against
Finnie, John (Highlands and Islands) (Green)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 33 agreed to.
Section 14 agreed to.
13:15Section 15—Explanation of decisions to the child
Amendments 34 to 36 moved—[Ash Denham]—and agreed to.
Section 15, as amended, agreed to.
After section 15
The Convener
Group 14 is on child advocacy services. Amendment 84, in the name of Liam McArthur, is the only amendment in the group.
Liam McArthur
Amendment 84 creates a duty on the Scottish ministers to ensure the availability of child advocacy services in section 11 cases. Colleagues will recall the powerful evidence that the committee heard on the need to strengthen the so-called infrastructure for taking children’s views. That was one of the key asks in our stage 1 report.
In their written submission, Dr Morrison, Dr Friskney and Professor Tisdall argued:
“The strongest and most consistent request from children and young people in Scotland, who have been involved in contested contact proceedings, is to have a child support worker. Without addressing this now, children’s participation throughout the legal process risks being dealt with inconsistently, on an ad hoc basis and thus marginalised. We recommend provision be put into primary legislation, with the ability to then link developments to other advocacy roles.”
Similarly, Relationships Scotland—I remind the committee of my interest—suggested:
“The provision of Child Support Workers seems to be fundamental to supporting the main policy objectives of the Bill ... There would be significant benefit from including provision in relation to Child Support Workers in the Children (Scotland) Bill legislation to ensure action is taken sooner rather than later.”
A number of other organisations echoed those views, including the Scottish Child Law Centre, Partners in Advocacy and the Scottish Independent Advocacy Alliance. The amendment is not overly prescriptive; it merely adds a system-wide responsibility for a service that should already be available. However, I believe that, by creating that duty and placing it in the bill, a layer of necessary assurance would be added.
I look forward to hearing the views of others, including the minister, and I have pleasure in moving my amendment.
I move amendment 84.
Shona Robison
I have much sympathy with what Liam McArthur is trying to achieve. One of the issues that has been raised with me concerns the possibility of a number of adults involved in a child’s life. For instance, a support worker could be involved in various types of situation. It would be useful to hear Liam McArthur’s view on that. How would we avoid a plethora of adults becoming involved in various aspects of a child’s life? As I say, concerns have been raised with me on that, and it would be helpful to hear his view on that.
John Finnie
I support Liam McArthur’s comments. He talked about powerful evidence. I imagine that much of the evidence that we have heard in support of increased advocacy comes from advocacy groups, and it could be argued that there are no surprises there. However, we know that when it comes to mediation and early intervention, support can often stop situations from escalating, and we know the multiplicity of issues that can be faced. Shona Robison poses a reasonable question but, as Liam McArthur says, many believe that child advocacy services should be in place in any case. Certainly, if we are putting the focus on the interests of the child, that would seem to be a very modest proposal. It certainly draws my support.
The Convener
It seems that having access to advocacy services is certainly in the best interests of the child.
Ash Denham
I appreciate the aims of amendment 84, but I cannot support it. I am aware that a number of stakeholders have suggested that the bill should introduce a formal system of child support workers. I have therefore committed to bring forward, before stage 3, more detailed plans with timescales on the work that the Scottish Government plans to undertake to meet our commitment to ensure the availability of children’s advocacy services.
I have also committed to producing, in advance of stage 3, a public paper that sets out the ways in which children can give their views in family court cases. I trust that that will reassure Liam McArthur that I appreciate his concerns and that I am actively looking at the issue. Although I appreciate that child support workers can play an important role in ensuring that children are able to give their views, as the member and others have said, we know that some children might already have child support or advocacy workers in other contexts such as children’s hearings or criminal proceedings. There are concerns about whether it would be in the child’s best interests to introduce another adult into that mix.
Further, if we were to introduce a system of child support workers, we would need to ensure that all those individuals were meeting minimum standards, were trained appropriately and had the right type of expertise and experience. That might mean establishing a list of child support workers, in the same vein as the other lists that we are proposing to establish, which of course would take some time to work through. Consideration would also need to be given to the effects of regulation on existing child support workers. Quite a few issues would need to be worked on and, for those reasons, I ask the member not to press his amendment.
Liam McArthur
I thank the convener, Shona Robison, John Finnie and the minister for their comments. I appreciate John Finnie’s strong support and the arguments that he made. Shona Robison raises legitimate issues about the potential impact of having a multiplicity of adults being involved in supporting a child. Fundamentally, that comes back to the principle of decisions being taken in the best interests of the child. I am sure that, where there is already a support worker in place who is providing the necessary support, any court would take that into consideration if there were any concerns that adding additional support might dilute, rather than augment, that benefit.
I outlined a number of organisations that are supportive of the need for child advocacy services. I take John Finnie’s point that many of those are advocacy organisations, but a number of them are not—Children 1st and Scottish Women’s Aid are two of the organisations that support my amendment. Therefore, I will press amendment 84 to provide, as much as anything, a degree of reassurance in the bill that there is consistency in what a child has a right to expect throughout the system.
The Convener
The question is, that amendment 84 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 84 agreed to.
Section 16—Failure to obey order
Amendments 37 and 38 moved—[Ash Denham]—and agreed to.
The Convener
Group 15 is on failure to obey a section 11 order. Amendment 39, in the name of the minister, is the only amendment in the group.
Ash Denham
Amendment 39 gives the Scottish ministers power by regulations to amend the list of persons who may be appointed by the court to investigate the reasons for actual or alleged non-compliance with an order that the court has made under section 11 of the 1995 act. That paves the way for flexibility on who can investigate the reasons for actual or alleged non-compliance with a section 11 order. The bill as introduced allows the court to appoint a child welfare reporter to investigate. Amendment 39 will allow ministers to make regulations enabling other professionals to perform that investigative role. Those regulations will be subject to the affirmative procedure.
I hope that members will agree that the amendment is important to ensure that there is flexibility around the ways in which the court can investigate the reasons for non-compliance.
I move amendment 39.
Amendment 39 agreed to.
Section 16, as amended, agreed to.
After section 16
The Convener
Group 16 is on specialist judiciary. Amendment 59, in the name of Jeremy Balfour, is the only amendment in the group.
I remind members that we are near the end, the clock is ticking and succinctness would be appreciated.
Jeremy Balfour
I will be as brief as possible. Children’s best interests are at the heart of our work on the bill, and it is very rare for those best interests to end up in a sheriff court. When I worked in family law many years ago, it was always difficult to go to the sheriff court for any case, and it was particularly difficult for children when they had to appear in a sheriff court or give their views to a sheriff.
Sheriffs predominantly do criminal law—that is their bread and butter. As we have heard previously, they often simply do not have judicial training in family law and, in particular, children’s issues. Amendment 59 would simply allow sheriffs who specialise in family law to hear those types of cases. Such specialisation has already been set up for commercial actions in the Court of Session, where one judge hears all commercial cases. It seems an appropriate way forward in this area.
It might not be possible for smaller sheriffdoms to have one sheriff with that specialty, so the amendment would allow those who have it to come in to deal with those cases. It would be in the best interests of the child to have someone there with that specialty, who has that training and deals with those issues day in and day out. I hope that the committee will accept the amendment.
I move amendment 59.
13:30Ash Denham
Clearly, the deployment of the judiciary is a matter for the Lord President and the sheriffs principal.
The Scottish Government does not support amendment 59. First, we do not think that it is necessary, because there are existing powers on juridical specialisation in the Courts Reform (Scotland) Act 2014 and there is no need to legislate again in similar terms.
Secondly, the amendment specifically refers to cases brought under section 11 of the Children (Scotland) Act 1995. In practice, cases can be multicrave. The pursuer might seek a variety of outcomes in a single court action: a divorce, financial provision, a civil protection order against domestic abuse—such as an interdict—and a section 11 order. That is not just a drafting point against the amendment but a point of substance, as there would be questions as to whether any specialisation was to apply only to section 11 or to the whole case.
Cases are not always brought under section 11, as amendment 59 supposes. Courts consider and make section 11 orders in proceedings that do not start out as that and, should such a situation require the case to be transferred to a specialist sheriff, the delay, expense and negative impact on the child would be obvious at that point.
There could be cost implications as well were sheriffs asked to specialise only in section 11 cases, because that might reduce flexibility in relation to deployment and lead to a need to appoint more sheriffs.
In summary, I recognise that there is a legitimate debate to be had on specialisation, but there are existing powers on it in the Courts Reform (Scotland) Act 2014, so I ask the member not to press amendment 59.
Jeremy Balfour
That power is already used in certain sheriffdoms. The minister said that the power was there but then came around and said that we should not use it. There is a slight contradiction in that. I think that the amendment would be a way forward, because section 11 deals with children in particular, who need sheriffs to have that special training.
I press amendment 59.
The Convener
The question is, that amendment 59 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Finnie, John (Highlands and Islands) (Green)
Kelly, James (Glasgow) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
The Convener
The result of the division is: For 2; Against 7; Abstentions 0.
Amendment 59 disagreed to.
Sections 17 to 20 agreed to.
Section 21—Delay in proceedings likely to prejudice child’s welfare
Amendment 40 moved—[Ash Denham]—and agreed to.
The Convener
Group 17 is on delay in proceedings. Amendment 85, in the name of Fulton MacGregor, is the only amendment in the group.
Fulton MacGregor
Amendment 85 seeks to deal with an issue on which the committee took considerable evidence at stage 1: delays in proceedings. I am grateful to all the organisations that submitted briefings on the matter, and to the minister for discussing it with me. It is clear that there is a majority of opinion that long unnecessary delays are not in a child’s best interests. They need to know whether and in what circumstances they can have meetings with their other parent, or indeed whether a court feels that that would not be safe. Children need to know.
The children’s hearings system is renowned for bringing about quick and decisive action. Therefore, children who are subject to its proceedings often have issues relating to spending time with their parents dealt with swiftly, and the situation is fully explained to them. However, as MSPs, we have all heard of cases that have lasted months and even years. It is no one’s fault that that is the case, but it is not acceptable, and we have a duty to consider how the system can work better. Much evidence was given on that at stage 1.
I appreciate that the minister may indicate that she agrees with the premise of my amendment, and I am grateful for the input from Shared Parenting Scotland, the Children and Young People’s Commissioner Scotland and, jointly, Woman’s Aid and Children 1st. In their joint briefing for today, those latter two organisations state that there is recognition of the intention behind the amendment. That is unsurprising, given that, like many of us, those organisations have witnessed first hand the impact of huge delays on children, young people and their families.
I reiterate that amendment 85 seeks to address the best interests of children, not of the organisations that work within the system to deliver results. I recognise that the timescale puts in place some restrictions and, clearly, the provisions would not factor in those situations when it may be in the best interests of a child for the period to exceed 60 days.
I am also aware of concerns that, if the amendment were to be agreed to today, courts might become more inclined to make cautious orders in the first instance, rather than wanting to commit. To give the committee a bit of background on that, my initial version of the amendment did not include a timescale. When it was being drafted with the legislation team, however, I took advice and decided to include one.
On that basis, I am content for amendment 85 to serve as a probing amendment. I have already expressed that to the minister. I would be grateful if something could be worked up and brought back to us at stage 3, either as an amendment to the bill or otherwise—I am open minded on that. However, it should capture the intent of my amendment while taking into account the need for some delay, but only when that is in the child’s best interests.
I look forward to hearing any contributions from other members and from the minister.
I move amendment 85.
Liam Kerr
I thank Mr MacGregor for his comments. He is right: the premise of the amendment is good, of course. The question that I would be interested to know about, had he sought to press the amendment, is what would happen if the dispute was not resolved within 60 days after commencement. Is there some kind of sanction or something else in the proposed legislation that I am missing?
I will also pick up the point that Mr MacGregor quite rightly made about what would happen if it was not in the best interests of the child to complete the proceedings within 60 days. Presumably, as he is not pressing the amendment, those are the sorts of questions that might inform the discussion as he pursues the matter.
Ash Denham
Lengthy court proceedings and undue delays in cases relating to children are not in a child’s best interests, which is why section 21 provides that
“the court is to have regard to any risk of prejudice to the child’s welfare that delay in proceedings would pose.”
That complements work that it is being done on case management by the family law committee of the Scottish Civil Justice Council.
Liam Kerr is right to raise questions—there are questions about what would happen if the deadline in the amendment is missed. Cases can be very complex, and courts will need to consider all aspects, which may be time consuming. Forcing a court to make a decision to a timeframe could have a number of unintended consequences. Although I share the member’s concern about delay in cases, I cannot support the amendment. The right approach is the one that is taken in the bill, combined with the case management work that I referred to.
The member has indicated that he will not press the amendment, but if he had not done so, I would have advised him not to press it.
Fulton MacGregor
I was pretty clear in my opening remarks that I was not overly keen on suggesting a timescale. I took further advice on putting in a timescale, which is what ultimately led to amendment 85 being a probing amendment. Like Liam Kerr and the minister, I have issues with tight timescales. I hear what the minister is saying and I am not minded to press the amendment at this stage. I will perhaps come back at stage 3 with a more manageable amendment that is in line with the legislation.
Amendment 85, by agreement, withdrawn.
Amendments 41 and 42 moved—[Ash Denham]—and agreed to.
Section 21, as amended, agreed to.
Before section 22
The Convener
Our last group is on a review of the effect of the act. Amendment 86, in the name of Liam McArthur, is the only amendment in the group.
Liam McArthur
I will try to be brief. Amendment 86 provides for a review of the act to be completed within three years of royal assent and a report to be published and laid before Parliament.
The report should include the steps, if any, that the Scottish ministers propose to take to further improve the participation of children in court processes. As with my earlier amendment 84, amendment 86 reflects the committee’s recommendation that the Scottish Government should amend the bill to provide for a review of the impact of the bill on children’s participation after three years following commencement.
As I said previously, Dr Fiona Morrison, Dr Ruth Friskney and Professor Kay Tisdall expressed concern that the financial memorandum makes no provision for an infrastructure to support children to express their views. That was supported by Scottish Women’s Aid, which suggested that monitoring and review of the bill’s implementation are required to ensure that children’s rights are realised in practice. In order to provide greater confidence that children’s rights will be realised in practice, I hope that colleagues will support amendment 86.
I move amendment 86.
The Convener
Liam Kerr, did you indicate that you wanted to speak to amendment 86, or was it the previous amendment?
Liam Kerr
It was the previous amendment, but I am sure that what Mr McArthur said was very important.
13:45The Convener
I am very supportive of amendment 86 and I look forward to hearing from the minister.
Ash Denham
I understand the point behind amendment 86, but I am not convinced that three years after royal assent is the right timetable. The committee will understand that it will take time to implement some of the measures in the bill. The financial memorandum to the bill indicates that the regulation of child welfare reporters and contact centres may not be in place in advance of 2023, given the need, and the commitment that we have made, to carry out thorough consultations in those areas. I do not think that three years is the right timetable. However, if Liam McArthur were to lodge amendment 86 at a later stage with a different, more appropriate timetable that would allow the operation of the bill to be more accurately assessed, I would potentially support that.
Liam McArthur
Thank you to the convener for her support, to Liam Kerr for his inadvertent support and to the minister for her offer. I recognise that the timeframes for these things can sometimes be arbitrary and I take her concerns on board about pre-empting some of the work that will need to be taken forward after the bill has been given royal assent. On that basis, I will not press amendment 86 now. I will lodge it at stage 3 with something that is perhaps more in keeping with the timeframes that we need to see.
Amendment 86, by agreement, withdrawn.
Section 22—Power to replace descriptions with actual dates
Amendment 43 and 44 moved—[Ash Denham]—and agreed to.
Section 22, as amended, agreed to.
Sections 23 to 25 agreed to.
Long title agreed to.
The Convener
That ends our consideration of the Children (Scotland) Bill at stage 2. The next meeting of the committee will be scheduled at an appropriate date, which will be notified in the Business Bulletin and on the committee’s social media pages. Any follow-up scrutiny issues will be dealt with by way of correspondence, which is published on our website. Our last item of business will also be dealt with by way of correspondence. I thank all members for their attendance today.
That concludes the 16th meeting of the Justice Committee in 2020.
Meeting closed at 13:48.23 June 2020
Additional related information from the Scottish Government on the Bill
More information on how much the Bill is likely to cost (Supplementary Financial Memorandum)
Revised explanation of the Bill (Revised Explanatory Notes)
More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)
Stage 3 - Final amendments and vote
MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law
Debate on the proposed amendments
MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.
Documents with the amendments considered at the meeting that was held on 25 August 2020:
Debate on proposed amendments transcript
The Presiding Officer (Ken Macintosh)
The next item of business is stage 3 proceedings on the Children (Scotland) Bill. Members should have before them the bill as amended at stage 2, the marshalled list and the groupings. For the first division of the afternoon, the division bell will sound and proceedings will be suspended for a short technical break of five minutes or possibly slightly longer. That is the only technical break that we will have today; there will be no technical break at decision time.
The period of voting for the first division will be 30 seconds. It will be one minute for the first division in any grouping after that, but 30 seconds for most divisions.
Members should now refer to the marshalled list.
Section 1—Proceedings under Children (Scotland) Act 1995
The Presiding Officer
Group 1 is on the voice of the child. Amendment 8, in the name of the minister, is grouped with amendments 35, 12 to 16, 31 and 48.
The Minister for Community Safety (Ash Denham)
The amendments in my name seek to strengthen the bill to ensure that the child’s views are heard in family court cases and children’s hearings. That is one of the key aims of the bill.
The amendments do two things. First, they reinstate the requirement that children must be given an opportunity to express their views in relevant proceedings. That requirement was included in the bill on introduction but was partially replaced at stage 2 with a requirement for a decision maker only to seek to make reasonable arrangements for a child to express his or her views.
Secondly, the amendments ensure that, when a child’s views are sought, the child’s preferred method of giving their views is to be used unless it is not reasonable to do so or the child has not expressed a preferred method of giving their views. The amendments cover family court cases and other proceedings under the Children (Scotland) Act 1995, children’s hearings, exclusion order proceedings and permanence and adoption cases.
I return to a point about exceptions that I made at stage 2. The Scottish Government believes that the majority of children are capable of forming a view on issues that affect them, but we recognise that that will not be true in every circumstance. For that reason, the bill provides that a decision maker is not required to seek or have regard to the view of a child if they are satisfied that the child is not capable of forming a view. However, the Government does not expect that exception to be used frequently.
There is also an exception to the requirement to take the child’s views in the child’s preferred manner, because it may not be feasible in some circumstances to use the child’s preferred method of giving their views. I would expect that exception also to be used infrequently.
I have recently published a paper on the ways in which a child can give their views, and I have committed, in the family justice modernisation strategy, to produce guidance for parties on going to court. That guidance will include information on the range of ways in which a child can give their views. We will need to reflect on how the strategy and the guidance are working in practice, so I welcome amendment 48, in the name of Liam McArthur, which requires a review of the impact of the act after five years. I ask members to agree to that amendment.
I am, however, unable to support amendment 35, in the name of Alex Cole-Hamilton. Amendment 35 would require a person who does not have parental rights and responsibilities but who is making a decision to safeguard the health, development or welfare of a child to seek and take account of the child’s views on maintaining personal relationships with family members. Even if the decision was unrelated to contact and residence—if it was about something like consent to a medical procedure—I cannot imagine that that is what the member intended. The bill makes provision requiring the views of the child to be considered in a variety of contexts, so it is entirely unclear why the member is seeking to make a change in that specific context only. Doing so would create inconsistency with the rest of the bill and inconsistency for children in how their views were obtained.
I reassure the member that the bill allows the views of children to be taken into account in a wide range of circumstances and that, where relevant to the decision or to the case in question, the child’s views of their wider family relationships will be sought and taken into account as part of the process. In addition, the bill requires the court, when making an order under section 11(1) of the 1995 act, to have regard to the effect on the child’s important non-parental relationships. Therefore, I ask the member not to press amendment 35.
I move amendment 8.
15:30Alex Cole-Hamilton (Edinburgh Western) (LD)
At stage 2, as the minister and members of the committee will recall, I did not move my amendments that sought to maintain the child’s right to maintain personal relationships with the child’s lineal ancestors. My constituents Gordon and Shonia-Maree Mason have done a lot of work on the rights of children to maintain contact with their grandparents. They and I listened to the arguments that were raised against the stage 2 amendments, including, notably, the argument that the bill does not specify grandparents in particular, as that would exclude other relationships, and the argument that the right of a child to have contact with their grandparents would have substantially the same implications as the right of a grandparent to have contact with their grandchildren.
We have taken those arguments into account and I have lodged an amendment to section 6 of the 1995 act, which is entitled “Views of children”. That section has already been amended at stage 2 of the bill. The proposed amendment clearly focuses on the child. It focuses on the maintenance of personal relationships with family members and is thus not restrictive. It makes no mention of grandparents and therefore cannot be construed as giving rights to grandparents, and it states that the action has to be practicable and in the best interests of the child.
Familial relationships can be beneficial to the child’s health, development and welfare—issues that are included in section 1 of the 1995 act, which is entitled “Parental responsibilities”. Section 6 of the 1995 act says that a parent must have regard to any views expressed by the child, and the amendment is intended to cover all situations in which the child wishes to express a view on familial relationships. Under the amendment, the child could, therefore, express a view at any time, even when their parents’ relationship was continuing and there was no referral to court proceedings under, say, section 11 of the 1995 act—in relation to which, uniquely, the family law unit this month issued a memorandum on the subject of children giving views.
That is one crucial and distinctive point of the amendment. A parent or parents in an on-going relationship who, through spite or a grudge or another non-justifiable reason, would not allow a child to maintain personal relations with a particular family member or members would still have to have regard to the views expressed by the child when the maintenance of such relationships was not against the best interests of the child. It is all about the views of the child—and only the child—at any time.
I have listened to the arguments of the minister, and I will listen to the views of Parliament. If there is not a majority for the measure today, I will withdraw the amendment. However, it is an argument that I will seek to return to in this place.
Liam McArthur (Orkney Islands) (LD)
As I have done throughout the committee stages of the bill, I begin by declaring an interest in that my wife is a director of Relationships Scotland Orkney. That is perhaps less relevant to this set of amendments, but I thought that it would be helpful to have it on the record at the outset.
At stage 2, I was pleased to get support from the committee for my amendment to create a duty on the Scottish ministers to ensure the availability of child advocacy services in section 11 cases. That followed powerful evidence that was heard by the committee about the need to strengthen the so-called infrastructure for taking children’s views. In their written submission, Dr Morrison, Dr Friskney and Professor Tisdall argued:
“The strongest and most consistent request from children and young people in Scotland, who have been involved in contested contact proceedings, it to have a child support worker. Without addressing this now, children’s participation throughout the legal process risks being dealt with inconsistently, on an ad hoc basis and thus marginalised. We recommend provision be put into primary legislation, with the ability to then link developments to other advocacy roles.”
That amendment was passed, but I held off pressing another amendment relating to a proposed review of children’s ability to participate in the decision-making process. Of course, reviewing legislation to check that it actually does what it is intended to do is generally a good and sensible precaution. However, given the concerns that have been expressed about the resourcing of the provisions in the bill, I think that there is a particular need to provide some reassurance to stakeholders that such a review will take place and will look specifically at whether it has facilitated the participation of children in decisions that are made about their future.
As Scottish Women’s Aid said ahead of stage 2, monitoring and review of the bill’s implementation is required to ensure that children’s rights are realised in practice. There was support for that at stage 2, although some concerns were expressed by the minister about the proposed three-year period—as opposed to a five-year period—in my amendment. I have reflected further on that and, although I remain a little concerned that five years opens up the risk of an entire session of Parliament coming and going before any assessment is made, I believe that amendment 48 provides safeguards against that happening. It is perhaps not perfect, but I am confident that colleagues in the next parliamentary session can and will keep ministers’ feet to the fire. In the meantime, I am grateful to the minister and her officials for their engagement on that issue.
Liam Kerr (North East Scotland) (Con)
I remind members that I am a practising solicitor and hold current practising certificates with the Law Society of Scotland and the Law Society of England and Wales.
With the exception of amendment 35, we will vote for all the amendments in group 1. Amendment 35 is clearly well intentioned, as were Alex Cole-Hamilton’s amendments throughout stage 2. However, I am not persuaded that, in reality, it would serve a child’s interests in the way that the member believes that it would. First, a key pillar of the bill is that it seeks to improve a child’s opportunities to provide their own views whenever possible. My concern is that, by emphasising the importance of the child’s views on their
“personal relations with family members”,
amendment 35 risks positioning those views as being more important than any other views that the child might wish to express. My second concern is that, as with other amendments at stage 2, I am not convinced that amendment 35 is necessary, given that section 12 of the bill already includes reference to consideration of the child’s “relationships with other people”.
Given those points, it appears that, at best, amendment 35 is unnecessary and, at worst, it risks creating what Children 1st and Scottish Women’s Aid described as
“an inappropriate ‘hierarchy’ of views”
that any given child might like to express. Therefore, I encourage Alex Cole-Hamilton to withdraw amendment 35. If he does not, we shall vote against amendment 35 but for the other amendments in the group.
James Kelly (Glasgow) (Lab)
Scottish Labour will support all the amendments in group 1.
The Government amendments, lodged by Ash Denham, build on amendments that I lodged at stage 2 in order to give voice to the child’s views in a court hearing. The bill, as originally drafted, was a bit loose. The stage 2 and 3 amendments give more consistency, ensure that a child’s view can be heard and give weight to the mechanism that enables the child to express that view. Therefore, the amendments improve the bill overall.
With regard to Alex Cole-Hamilton’s amendment 35, throughout the process, some campaigners have argued for presumptions in favour of grandparents and shared parenting. I have not supported that approach throughout, but I recognise that the argument that Alex Cole-Hamilton makes in amendment 35 about the child’s views on which family members they wish to maintain contact with. We also support Liam McArthur’s amendment 48, because we believe that a review of children’s participation is essential. Five years is a reasonable timescale.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I support the Government’s amendments 8 and 12 to 16 and Liam McArthur’s amendment 48. As a member of the Justice Committee, I was clear from the get-go that the bill’s purpose was to put the interests and views of the child at the centre. The minister has listened to concerns that were raised in the committee, and most of the amendments tighten the bill up and—I hope—make it better legislation.
Alex Cole-Hamilton’s amendment 35 is well placed. We heard evidence on the issue during committee meetings. However, the minister’s amendments supersede it and take away any concerns that there might have been in that area, so I respectfully ask him not to press amendment 35.
John Finnie (Highlands and Islands) (Green)
I join other members in supporting all the amendments in the group, except for Mr Cole-Hamilton’s amendment 35, for many of the reasons that have been outlined. I recognise that refinement of the amendment has taken place between stages 2 and 3, but I align myself with the Scottish Women’s Aid and Children 1st briefing that has been alluded to, which speaks of the danger of establishing an “inappropriate hierarchy”, not least because, as the briefing tells us, many children have
“important relationships with other people outside their families”
and the amendment does not define a “family member”. It is important that all the views of the child are taken on board, and for that reason we will not support amendment 35.
Ash Denham
The bill already makes provision for the views of the child to be sought in a range of contexts, and it requires the court to take account of “the child’s important relationships” with people other than parents. That provision has been specifically designed so that it includes people such as grandparents. Alex Cole-Hamilton and I have discussed the issue at length, and I have no doubt that his proposal is well intentioned. However, I do not think that amendment 35 does what Alex Cole-Hamilton thinks it does. Therefore, I recommend that members do not support amendment 35. I note that that seems to be the consensus that has emerged during the debate.
Amendment 8 agreed to.
Amendment 35 not moved.
The Presiding Officer
Group 2 is on matters to be considered in making an order under section 11(1) of the Children (Scotland) Act 1995. Amendment 9, in the name of Rhoda Grant, is grouped with amendments 10, 11 and 26.
Rhoda Grant (Highlands and Islands) (Lab)
Amendment 9 is a technical amendment, which would remove a definition that is no longer required in the bill.
Amendment 10 would amend new section 11ZA(3)(e) of the 1995 act. Instead of providing that the court should have regard to
“the effect of the fact that two or more persons would be required to co-operate with one another with regard to matters affecting the child”,
the section would instead require it to have regard to
“whether it is, or would be, appropriate for an order to require that two or more persons co-operate with one another with regard to matters affecting the child.”
The amendments relate to the protections under new section 11ZA, ensuring that, when making an order under section 11(1) of the 1995 act in the context of domestic abuse, the court must have regard to the impact of making an order requiring two or more persons to co-operate. My reason for promoting the amendments is that domestic abuse can continue to be perpetrated through the use of contact. The court must consider that before asking a survivor to co-operate with an abuser.
Amendment 11 would remove the definition of “person” in new section 11ZA(5), for the purposes of section 11ZA(3)(e). The effect of removing the definition is to require the court to consider whether it is appropriate to require any persons to co-operate with one another as part of an order under section 11 of the 1995 act, rather than consider only co-operation between the types of person mentioned in the definition. That would reflect that the parties to the case who are required by the order to co-operate may not necessarily be the parents. Removal of the definition of “person” in the context of amendment 11 would ensure wider judicial scrutiny of the order’s impact, beyond actions involving only those who are parents of the child in question, or who have parental rights and responsibilities.
We know from those using our specialist domestic abuse services that contact arrangements with family members such as grandparents can often be exploited by perpetrators of domestic abuse to further their abuse. Therefore, placing a duty on the courts to consider the appropriateness of co-operation beyond parents, in order to ensure that children and non-abusing parents are kept safe, would increase the protection afforded to survivors of domestic abuse.
I move amendment 9.
Liam McArthur
Amendment 26 seeks to make equally shared parenting the starting basis for custody orders, but it would not prevent courts from then deciding on the most appropriate split based on the circumstances of each case and, crucially, the best interests of the child.
The intention of amendment 26, which mirrors an amendment that I lodged at stage 2, is certainly not to make shared parenting mandatory; rather, it would require the court to start with that option if one of the parents requests it, before going on to consider any reasons why a different pattern is better for the child or children in question.
I remain firmly of the view that the legislation should do nothing that might dilute the primacy of the best interests of the child in any decisions that are taken on residency and access or on other considerations. I do not understand how requiring the courts to work from the presumption set out in amendment 26 would do that, as the court would still be free to reject that option, either immediately or in due course, depending on the circumstances and facts relevant to the case. Moreover, the presumption of shared parenting is one that exists in other countries that share our determination to prioritise the child’s best interests.
15:45My amendment reflects the general benefits for children of shared parenting shown by international research, be that in terms of their social and psychological wellbeing, educational attainment or the avoidance of adverse experiences.
Of course such shared arrangements may not be practical or desirable, but given how rarely courts appear to rule in favour of an equal split in parenting responsibilities, it seems reasonable to ask whether there is already a presumption inherent in the system.
John Finnie
The member will be aware of the position that was adopted in relation to other matters in which it would be unhelpful to have a list. Is what he seeks to do not just part of a list? If we are acting exclusively in the best interests of the child, there would be no need to include that provision, because what applies will already depend on what is in their best interests.
Liam McArthur
John Finnie is right to point to the evidence that we took and some of the considerations that we weighed up during stages 1 and 2.
As I said, given how rarely courts appear to rule in favour of an equal split of parenting responsibility, it seems reasonable to ask whether there are already presumptions in the system that have a bearing. If that is the case, we should acknowledge that, and satisfy ourselves as to whether that is any less detrimental to the principle of acting in a child’s best interests than starting from a presumption of shared parenting.
I am sure that, over recent weeks, we have all been contacted by constituents and others wanting to share the details of the fallout from their relationship breakdowns. None of that is pleasant—it can often be heartbreaking—but nor is it a matter on which we can safely take a definitive view. We cannot be sure that we have all the facts. Therefore, it must be left to the courts, supported by expert advice, with access to all the facts, to make a determination in the best interests of the child. However, why should those facts not be applied after starting from a presumption of shared parenting?
Society quite rightly expects relationships to be based on a more joined and shared parenting model than may have been the case in the past. That recognises not least the benefits to the child or children that come from such an approach. Why should it not be that we work from a similar starting point in the event of that relationship breaking down? Amendment 26 would allow that to happen.
Liam Kerr
I am happy to vote for all the amendments in the group, with the exception of Liam McArthur’s amendment 26.
Again, I understand the motivation behind the amendment—of course we do—and the scenarios that Mr McArthur sets out. However, the welfare of the child is the key consideration. Therefore, in decisions regarding parental responsibilities, the only criterion should be what is in the best interests of that child. Having carefully listened to Mr McArthur’s comments, I know that he gets that. However, acting in the best interests of the child is the thread that weaves through the bill. The committee heard from representatives of Yello!, who said:
“Adults always seem to be given more priority than children, even though it is all supposed to be about the child. We hope that this Bill will change that.”
I worry that amendment 26 will move us away from that basic premise.
I also note the submissions from Children 1st and Scottish Women’s Aid, which are strongly opposed to amendment 26.
For those reasons, I will vote against the amendment.
James Kelly
I support Rhoda Grant’s sensible amendments, which would bring more consistency to the bill as amended at stage 2. I, too, oppose Liam McArthur’s amendment 26. I understand why he lodged it. However, the issue for me is that, when having regard to a shared parenting order, what he proposes would potentially override the views of the child and what is best for them. We will not support the amendment.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
I do not support amendment 26, because I consider that it could have adverse consequences for child safety.
In an ideal world, it is preferable for a child to have a happy relationship with both parents, where possible. However, we do not live in an ideal world, and including the provision in the bill would be unwise and possibly dangerous for a number of children.
All research on the matter suggests that a presumption of shared parenting in any high-conflict case is likely to be harmful to the child. A large number of contact cases that end up in court concern reports of domestic abuse, and even those that do not are still likely to be high-conflict cases, given the very fact that the court is involved.
The amendment proposes residence on an “equal basis” as the default solution in every case, unless otherwise agreed. I believe that that would cut across the rights of the child, and I do not believe that it would be in their best interest. We heard powerful evidence in committee from children on their experience of imposed contact, which was harrowing and distressing. Amendment 26 would mean that, on request from any parent, even one who might not be a party to a case, the court must consider ordering residence on an equal basis.
Of course parents should have an equal part in a child’s life, but we cannot prescribe a one-size-fits-all approach, which is the effect that the amendment would have. Every circumstance is different, and child protection is far too important to take risks with.
John Mason (Glasgow Shettleston) (SNP)
I want to express my sympathy for Liam McArthur’s amendment 26. Over the years, I have had many constituents and, in fact, others from outwith my constituency, one of whom worked at the Scottish Parliament at the time—mainly fathers, but occasionally mothers—tell me their story about how the courts had decided, and the children decided, that the children should have contact with both parents, but that contact had not actually happened.
It seems to me that there has been an imbalance in the court system. Although I have not been heavily involved in the bill, I believe that something has to change. I look to the minister to give us a reassurance that we are moving forward, that we will continue to move forward after the bill is passed and that we will see more cases where both parents have real input in the lives of their children.
Ash Denham
I support amendments 9, 10 and 11, and I am grateful to Rhoda Grant for the constructive engagement that we have had on the subject. Those amendments make technical changes to the provisions that she inserted at stage 2.
Where the court is considering making an order that requires two or more persons to co-operate, amendment 10 will require the court to consider
“whether it is, or would be, appropriate”
to require co-operation. That is wider than sections 11(7D) and (7E) of the 1995 act, and new section 11ZA(3) of that act, which was added at stage 2 of the bill. It meets one of the aims of the bill, which is to
“further protect victims of domestic abuse”,
including children.
Turning to amendment 26 in the name of Liam McArthur, I reassure members that my view is that both parents should be fully involved in a child’s upbringing, as long as that is in the best interests of the child concerned. Currently, parents can ask the court for residence on an equal basis, and a decision will be made in which the welfare of the child is paramount, taking into consideration the views of the child, and with full consideration being given to arguments for and against shared parenting in the particular circumstances of the case.
Amendment 26 proposes residence on an equal basis where requested as the starting point for the court to work from. In my view, that cuts across the approach of the 1995 act, which encourages the court to arrive at a solution that best promotes the welfare of each child, according to their individual circumstances.
The amendment refers only to parents. Although most cases of this nature are between parents, they do not have to be; for example, grandparents may apply for an order. Amendment 26 does not take account of the full range of circumstances that exist in these types of cases. It does not address the stage in the proceedings at which any request must be made, whether the parent requires to be a party to the proceedings or whether it might be open to parents to make repeated requests. In the absence of any attempt to govern the procedure by which such requests might be made, there is a considerable risk of delay in court proceedings with issues arising at a late stage.
A section 11 case might be about contact or about administration of a child’s property and not about residence. Therefore, it might not be appropriate for the court to consider residence in every case, as the court might not have the information necessary to allow it to decide on such questions. The courts already apply a general principle that it will be normally beneficial for children to have an on-going relationship with both parents. The bill strengthens this position by requiring the court to consider in every case the effect of an order on the involvement of the child’s parents in bringing the child up.
I do not consider that amendment 26 is desirable. It cuts across the general principle of section 11 of the 1995 act that the welfare of the child is the paramount consideration. Given those reasons, I ask Liam McArthur not to move amendment 26.
Rhoda Grant
Members will all have dealt with cases in which contact has been used to perpetrate abuse, with disastrous consequences for the abused partner and their children. Even when the child is not abused, their experience of abuse is an adverse childhood experience that impacts on their mental health and self-esteem and damages their life chances. Therefore, there should be a presumption against contact of any kind with an abusive partner when we are looking at child contact.
I will press amendment 9, and I urge Liam McArthur not to move his amendment 26.
Amendment 9 agreed to.
Amendments 10 and 11 moved—[Rhoda Grant]—and agreed to.
Amendments 12 and 13 moved—[Ash Denham]—and agreed to.
Section 1A—Disclosure of information
The Presiding Officer
Group 3 is on the disclosure of information. Amendment 36, in the name of Liam McArthur, is grouped with amendment 46.
Liam McArthur
Amendment 36 and my more substantive amendment 46 respond to concerns that were raised with the committee at stage 1 that, at present, intimate and highly sensitive information that is shared by a child with a third sector organisation can be drawn into court proceedings. That appears to happen even when sharing such information goes against the interests of the child in question, and often without the child even knowing. It is not hard to see how that could fundamentally undermine the trust and confidence of children who engage with third-party organisations at a time when they are feeling vulnerable.
At stage 2, I successfully moved an amendment to address the concern, as did the minister. I am grateful to Ash Denham and her officials for the constructive way in which they have engaged with me since stage 2 to tidy up the provisions and make further necessary changes. The area is sensitive, and I recognise the concerns that the Government had in relation to my amendment at stage 2, notably around the use of the term “paramount consideration” and even some potential ambiguity over which child was being referred to.
I believe that my amendment 46 addresses those concerns, while retaining the core principles and protection that I and other committee colleagues sought to have enshrined in the bill. In particular, those are the inclusion of specific reference to
“the best interests of the child as a primary consideration”,
which is in line with the United Nations Convention on the Rights of the Child, and ensuring that a child has the opportunity to express their views to the court, which then needs to take those views into account when decisions are made about sharing their information.
In response to those who are anxious about the potential impact on the rights of others involved in any court process, I repeat the assurance from Children 1st and Scottish Women’s Aid that the changes
“will not prevent information from being shared where it is proportionate and relevant to the court.”
They went on:
“Indeed, our organisations strongly believe that proportionate and relevant information-sharing is in a child’s best interests to keep them safe and ensure the courts are equipped with all the details at their disposal to make informed decisions.”
I thank committee colleagues, the minister and of course Children 1st and Scottish Women’s Aid for helping to get us to this point. I hope that the changes will give children the confidence that they need and should have in their conversations with third sector organisations, which often take place at times of real vulnerability.
I move amendment 36.
Liam Kerr
We will vote against both amendments in the group. Amendment 36 is a function of amendment 46, so I will deal with the latter in depth. Our vote against amendment 46 will be based on a semantic point, which may be much more than that. The language used in the amendment is about considering the child’s “best interests”, as opposed to their welfare.
16:00My understanding of this area of law is that what is referred to in, for example, the Children’s Hearings (Scotland) Act 2011 and the Adoption and Children (Scotland) Act 2007, what is commonly understood and what has had cases decided around it is the welfare of the child. Hitherto, welfare has been the touchstone, so why the change of language? I am grateful to Mr McArthur for his confirmation that the reason relates to the fact that the UNCRC talks about the best interests of the child, to which I shall return.
In any event, we risk importing new terminology without debate, scrutiny and test. Perhaps I am making a mere semantic point. There might be no difference between the best interests and the welfare of a child but, if that is right, we should not introduce new wording. We should stick with the current wording, because a change at least opens the door to the argument. That cannot be desirable.
On the other hand, what if the terms mean something different? What if “best interests” and the “welfare of a child” are different in law and in practice? We need to be very careful to understand what those changes would mean on a practical level before codifying that in black-letter law.
The safest path is to vote against amendments 36 and 46. I plead, as further authority, that minister Maree Todd confirmed on 4 May that the Government still intends to introduce the UNCRC bill this year. No doubt there will be consultation on the bill and, I presume, on the meaning of “best interests”. Let us take the precautionary principle and wait until then. I shall vote against amendment 46.
Ash Denham
I support amendments 36 and 46. I am grateful to Liam McArthur for the constructive engagement that we have had on the subject, and I am pleased that a consensus position has been reached. I hope that members will join me in supporting the amendments today.
Two competing amendments were lodged to the bill at stage 2. Amendments 36 and 46 remedy the issue by removing sections 1A and 13A from the bill and inserting a new section in their place. The amendments retain elements from, and improve on, each of the sections that were added to the bill at stage 2.
Amendment 46 provides that when the court
“has to decide whether a person should have access to anything in which private information about a child is recorded”,
it
“must regard the best interests of the child as a primary consideration.”
As Mr Kerr noted, the references to “best interests” and “primary consideration” reflect the language of article 3.1 of the UNCRC and the approach that is taken in general comment 15. The use of the words “primary consideration”, as is proposed, achieves a more appropriate balance of rights than was achieved by section 1A.
The amendments go further than section 13A by requiring that the views of the child should be sought using the manner that is preferred by the child. I appreciate that there might be some cases in which that will not be possible in the best interests of the child, although I expect the exemptions to be used only infrequently.
The amendments offer wider protection than was offered by section 1A, which appeared to protect only the child at the centre of the section 11 proceedings. I reassure members that I am already progressing work to ensure that children are informed of how the information that they disclose to a child welfare reporter might be used. Earlier this summer, I shared with key stakeholders a draft of the guidance for children on speaking to child welfare reporters. Once I have a finalised version of the guidance, I will publish it and make it available to children and young people.
I hope that members will join me in supporting amendments 36 and 46, which constitute an important protection for the rights of children whose private information may be used in contact and residence proceedings.
Liam McArthur
I thank the minister for her support and her explanation of the basis for it. I thank Liam Kerr for his comments and for engaging in debate on my amendments. I would never accuse him of semantics. To some extent, the language that is used in my amendments is similar to the language that was used in the amendment that I lodged at stage 2. I do not recall his concerns being raised at that stage. The minister has set out the consistency of approach that has been taken. It is difficult to see how a child’s best interests would not be observed by any measure that adhered to the child’s welfare. The language is embedded in the UNCRC.
I take the point that a fuller integration of the UNCRC into Scots law is proposed, but that is not a justification for kicking the can down the road where there is an opportunity to embed the provision in this bill. Those who gave evidence to the committee were clear about the importance of doing so, not least—as I said earlier—to safeguard the confidence of children and young people in, and their engagement with, third sector organisations at a time of real vulnerability for them. For those reasons, I will press amendment 36.
The Presiding Officer
The question is, that amendment 36 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division. As this is the first division of the afternoon, I will suspend proceedings and we will have a short technical break, not only to summon members to the chamber, but to ensure that members who are participating online are on board the system in order to vote.
16:05 Meeting suspended.16:15 On resuming—
The Presiding Officer
Colleagues, we are going to resume proceedings. We are on group 3, on disclosure of information, and Liam McArthur has moved amendment 36. Members indicated that there will be a division.
The question is, that amendment 36 be agreed to. Members may cast their votes now, and they should refresh their screens if they are logged out.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Abstentions
McDonald, Mark (Aberdeen Donside) (Ind)
The Presiding Officer
The result of the division is: For 86, Against 30, Abstentions 1.
Amendment 36 agreed to.
The Minister for Europe and International Development (Jenny Gilruth)
On a point of order, Presiding Officer. I was not able to vote.
The Presiding Officer
Can you indicate to the chamber which way you were going to vote?
Jenny Gilruth
For the amendment.
The Presiding Officer
The vote was overwhelming in favour, but Jenny Gilruth’s vote has now been noted for the record.
The Minister for Mental Health (Clare Haughey)
On a point of order, Presiding Officer. I was not able to vote either.
The Presiding Officer
Would you like to indicate which way you were going to vote?
Clare Haughey
I was going to vote in favour of the amendment.
The Presiding Officer
Clare Haughey also voted yes.
Stuart McMillan (Greenock and Inverclyde) (SNP)
On a point of order, Presiding Officer.
Members: Oh!
The Presiding Officer
It is important at this stage. Let us hear Mr McMillan, please.
Stuart McMillan
It is the same situation for me. I would have voted for the amendment.
The Presiding Officer
Thank you. That has also been noted for the record.
From now on, we will not have a technical break unless there is widespread disapproval and people are not able to vote. It is important that members keep their screens open and refreshed; if the window goes away, members should log back in and refresh the screen, and it should come back on again. Members have the code and should be able to vote; it is now up to members to be able to use the system.
I will also add for the record that Rachael Hamilton, who has been joining us remotely, was unable to vote, and she wanted to vote against the amendment.
Section 2—Proceedings under Adoption and Children (Scotland) Act 2007
Amendments 14 and 15 moved—[Ash Denham]—and agreed to.
Section 3—Proceedings under Children’s Hearings (Scotland) Act 2011
Amendment 16 moved—[Ash Denham]—and agreed to.
After section 4
The Presiding Officer
Group 4 is on vulnerable witnesses and vulnerable parties. Amendment 37, in the name of the minister, is grouped with amendments 38 and 39.
Ash Denham
Amendments 37 to 39 seek to provide further protection to vulnerable parties in evidential and non-evidential hearings in particular child welfare hearings, and to vulnerable witnesses when a case under section 11 of the 1995 act reaches proof.
When a person is deemed to be a vulnerable witness by virtue of section 11B of the Vulnerable Witnesses (Scotland) Act 2004 as inserted by section 4 of the bill, amendment 37 will require the court, before the proof or any other hearing at which the witness is to give evidence, to make an order authorising the use of a special measure or to make an order that the witness is to give evidence without the benefit of a special measure. That will ensure that consideration of special measures does not depend on the party lodging a vulnerable witness application or the court considering the matter of its own volition.
A party may be deemed to be a vulnerable witness if there is in force a non-harassment order, an interdict or any similar order or remedy that has been granted by a court that prohibits certain conduct towards the person by a party to the proceedings; if a “relevant offence” has been committed against the person and a party to the proceedings has been convicted of committing it; or if a party to the proceedings is being prosecuted for committing a “relevant offence” against the person.
Where a party would meet the criteria to be deemed to be a vulnerable witness if they were to give evidence, amendment 38 will require the court to order the use of any special measure that the party requests, or to order the use of a special measure that the court considers appropriate and explain why the preferred method is not being used, or give reasons for not ordering the use of special measures. Special measures can include the use of screens, giving evidence by live videolink and having a support attending with a party.
Amendment 39 is a consequential amendment to remove the now superfluous reference to
“in relation to a party”
from the vulnerable party provisions.
If amendments 37 to 39 are agreed to, I propose to work with stakeholders such as Scottish Women’s Aid in preparing a policy paper for the Scottish Civil Justice Council’s family law committee on any changes to court rules that might be necessary. The amendments build on provisions in sections 4 and 5 of the bill in relation to prohibition of personal conduct of a case and vulnerable parties in child welfare hearings. I hope that members across the chamber will agree with me that it is important to ensure that vulnerable parties and witnesses are protected.
I move amendment 37.
Amendment 37 agreed to.
Section 7—Vulnerable parties
Amendments 38 and 39 moved—[Ash Denham]—and agreed to.
Section 8—Establishment of register
The Presiding Officer
Group 5 is on child welfare reporters: qualifications and experience. Amendment 40, in the name of Liam McArthur, is grouped with amendments 1 and 2.
Liam McArthur
Amendment 40, which again reflects an amendment that I lodged at stage 2, would ensure that the role of child welfare reporter is carried out by appropriately qualified and registered social workers, reflecting practice in other parts of the United Kingdom.
I am aware of the suggestion that my lodging of amendment 40 might constitute a conflict of interests, because of my wife’s role with Relationships Scotland Orkney. I fail to see how that is the case any more than it might be a conflict of interests for those with connections to the legal profession to oppose my amendment, but I am happy to remind the chamber of that interest nonetheless.
As colleagues will be aware, at present the vast majority—around 90 per cent—of child welfare reports are carried out by lawyers. As I acknowledged at stage 2, there are many lawyers who have built up a wealth of experience in this area, and I have no doubt that they bring a range of skills and expertise to the task, not least in the gathering of evidence, and an understanding of the court process.
However, assessing a child’s welfare is complex and requires different skills. As the Scottish Association of Social Workers highlights,
“Children who are the subject of Child Welfare Reports are often the silent victims of their parents’ acrimony and inability to reach agreement about their future wellbeing, safety and security through the rest of their childhood. They will have listened to their parents argue, they will have wanted the arguing to stop, they will often have divided loyalties with both parents whom they love but may be frightened to say so, and they have often learnt that being silent is the way to cope ... The skills that are needed in helping children talk and for their views to be heard are complex and take time to develop; particularly understanding the dynamics that happen in families and between adults and children.”
The association concludes:
“We are concerned that children involved in this process are currently not getting the support they need to help them understand the court process and decisions, and are assessed by professionals who do not have the qualifications required to do this sensibly whilst also being aware of complex issues such as domestic abuse, substance misuse, trauma, parenting capacity and parental influence.”
That point is reinforced by Andrew Smith QC in a briefing circulated ahead of our debate, in which he says:
“Being a lawyer does not make you good at investigations, especially where children are involved. In fact, I suppose it is arguable that it should disqualify you, as the job of a lawyer is to plead a case from one side or the other and not to be neutral ... the most important thing from everyone’s point of view is that any person appointed to carry out a report is properly trained in child reviewing; that their reports are transparent as to why findings are reached and fact-based; that their decisions can be reviewed if necessary by complaint; and that they can be removed from the register of approved reporters for failings.”
I recognise that such a dramatic change from what is in place at present is difficult to conceive. I understand the reaction of lawyers, who may feel that amendment 40 devalues their skills or questions their motives. I certainly do neither.
I appreciate the concerns that have been expressed about how, in practice, the new burden on the social work profession might be shouldered without creating any delays in the process that could prove damaging to the welfare of a young child. Yet, can we honestly say that, if we were constructing a system from first principles and with the intention of putting the welfare of the child at the centre of that process, we would envisage such a role being taken on by lawyers rather than by those with a background in social work?
I have little expectation that amendment 40 will gain support. I have sought to manage any expectations about that. However, the issue demands consideration by the Parliament and I look forward to hearing the views of colleagues and of the minister.
I move amendment 40.
Neil Findlay (Lothian) (Lab)
I will listen carefully to what the minister has to say in response to the amendments in my name before I decide whether to press them.
A child welfare reporter can be a stranger to a child. They are often paid to carry out the role, and may only have met the child or family once. The reporter, despite their training, may not have any real experience of dealing with children, except in that role.
A child is unlikely to speak to a complete stranger about a perhaps complex and potentially frightening relationship with one of their parents. There should be a system of professional welfare reporting, carried out by those who have worked with children and who fully know the law concerning children’s rights. That could be a children’s rights officer or another named professional. A constituent of mine who brought a petition on the subject to Parliament believes that solicitors should not be the people to perform the role.
Regarding amendment 2, I think that it is important that those who have experienced the worst, and the best, of the system should have the opportunity to shape any changes to it. We must consider the changes from the perspective of the people who are involved in the system, particularly children and their parents.
Children are at the centre of the system of contact. Therefore, changes must be made with their interests at heart. The views of young people can be overlooked, and we must not allow that to happen in the bill. Children can express a view about what they do or do not like, or about what upsets or scares them. Adults who have experienced trauma or domestic abuse at the hands of a partner who is party to a court order must also be able to shape the bill and any related regulations.
All that amendment 1 seeks to do is to ensure that that happens and that, for the sake of all who use it, the system is as user friendly and child friendly as possible.
16:30Liam Kerr
We will vote against all the amendments in the group.
I will deal with amendments 1 and 2 briefly. We understand that a full consultation on child welfare reporters is planned and imminent. No doubt the minister will speak to that, but the most recent reference to the matter that I could find is a letter of 21 May 2020 from the minister, in which it is dealt with over several pages.
The substantive point that I want to make is about amendment 40, which provides that only a social worker may be appointed as a child welfare reporter. The amendment has attracted many representations, which I have taken time to consider. I understand the point that is being made and I listened carefully to Mr McArthur’s representations, but I am persuaded to vote against the amendment for several reasons.
First, I am concerned about the implications for resources and the capacity of local authorities. What impact might the approach have on timescales, progression and the impact of the work that social workers do? I am led to believe that sheriffs frequently request reports to be completed within a very short timescale, which I worry could be difficult for social workers with a heavy workload.
On that point, I note that we have been told in representations that about 90 per cent of child welfare reporters are lawyers. It would be very difficult if we lost that pool of expertise by limiting the role to social workers.
I also note the Law Society’s point that a sheriff already has the power to call for a social work report in a child welfare case. It argues that what is proposed in the amendment could reduce the sheriff’s options. My feeling is that it is consistent with the “welfare of the child” ethos to ensure that the sheriff has the most options available to them to suit individual circumstances.
I understand that the consultation on the bill did not mention restricting qualification for the role to social workers only; rather, it mentioned the intention to regulate the solicitors and other registered people who undertake the duties nationally, and standardise the qualification. I would be very reluctant to legislate in the area without hearing representations on the matter.
Social Work Scotland provided a considered submission yesterday, in which it says that it opposes amendment 40. I find that particularly persuasive, not least given its point that no detailed analysis has been done to ascertain whether the proposal is viable. On that basis, we will vote against the amendment.
Rona Mackay
I rise to speak against amendment 40. It would be far too prescriptive and, to be frank, unrealistic for all child welfare reporters to be social workers. It is true that, currently, 90 per cent of welfare reporters are lawyers, and that needs to be addressed, but to agree to the amendment would be to shift the balance entirely in the other direction and would be out of proportion with what is required and achievable.
The Government believes in getting the right balance of lawyers and non-lawyers through child-focused training for all who undertake the role, regardless of their professional background. The key aim is for reporters to have the necessary skills and experience. I know of many family court lawyers who have a wonderful understanding of working with children and are incredibly skilled. We do not want to lose that.
Some social workers may not have all the necessary qualifications and experience of engaging with young people. In addition, there is the question of capacity within the resources of social work and the pressure that would be caused on an already overworked profession.
The amendment is not supported by Social Work Scotland, the Family Law Association, Scottish Women’s Aid, Children 1st, the Children and Young People’s Commissioner Scotland, Shared Parenting Scotland or the Scottish Courts and Tribunals Service.
I support a system of enhanced training for people from a wide variety of professional backgrounds who engage with children, which is what the Government proposes.
James Kelly
I will speak against amendment 40, in the name of Liam McArthur. I support amendments 1 and 2, in the name of Neil Findlay.
The starting position in the debate on the current group of amendments on the role of child welfare reporters must be that we need to ensure that there is an adequate pool of suitably qualified individuals to best service children’s needs. Regrettably, amendment 40 would limit that pool and reduce the number of people who were available. There would be significant resource implications if the amendment was agreed to.
I place particular weight on the submission that we received yesterday from Social Work Scotland, which opposes amendment 40. I do not think that the amendment is helpful.
The approach that Neil Findlay adopts in amendments 1 and 2 is a more prudent one, in that it acknowledges the importance of opening up the role to suitable individuals and, as he said in his speech, those with lived experience. We need to get the right people who are ready to serve the child. Restricting the role only to social workers would have an adverse effect, so Scottish Labour opposes amendment 40 and supports amendments 1 and 2.
John Finnie
Likewise, Scottish Green members will not support amendment 40.
The debate has been useful. It would be wrong to characterise it as social workers versus lawyers. I have met representatives of both groups, and the Justice Committee had the pleasure of hearing from Yello!, the group of young survivors, which reported—I am sure that this will be repeated again and again—that their words were not only misunderstood, but led to the group being misrepresented.
I do not think that registration is sufficient in itself. I declare an interest, in that family members are, or have been, social workers. Undoubtedly, social workers will have the qualifications but, as others have said, some may not have the experience. For instance, I cannot imagine that a social worker who has spent an entire career dealing with adults and criminal justice would necessarily have that level of engagement—although I am not saying that they would not—but this is about listening, and understanding child development.
The development of regulations is the means by which all those people should have their input, so that the proper people, whoever they may be, are in place.
We will not support Neil Findlay’s amendment 1, but will support his amendment 2, because it is pertinent to have regard to issues such as domestic abuse and court-ordered contact, not least because of the pernicious impact that coercive control and behaviour can have on getting the correct information from a child, however talented someone is.
Fulton MacGregor
I have quite a lot of sympathy with Liam McArthur’s amendment 40, but I think that the bill takes us in the right direction. The point came up quite a lot in committee that we should make sure that more social workers do reports, rather than that all reports should be done by social workers. I think that that point has been made.
I also draw members’ attention to my entry in the register of interests.
The idea behind amendment 40 is right, but there are quite a lot of unanswered questions. Would it be every sort of social worker, or, as I think Rona Mackay suggested, would it be more likely to be child protection social workers? What pressure would that put on social work resources? It is telling that Social Work Scotland has said that it does not agree with the amendment.
We need to look at turning the tide a wee bit, to have more social workers—but not solely social workers—doing the welfare reports. Some lawyers are very good, and have spent their careers dedicated to the field and training in it.
Unfortunately, therefore, I cannot support the amendment, but I thank Liam McArthur for giving it the airing that it has received at stages 2 and 3, and for putting social work on such a forward footing in the bill. I have a lot of sympathy with the amendment.
I also have a lot of sympathy with Neil Findlay’s amendments 1 and 2, which represent a commonsense approach to things that should be done. My view, however, is that those things should be arranged through practice. For example, if a child welfare reporter does not know the child, they should do at least an introductory visit, possibly two. Those are practice issues for social work departments, legal departments and others, and I therefore think that they are not required in the bill.
Ash Denham
The Scottish Government does not support many amendments in group 5.
Amendment 40, in the name of Liam MacArthur, would allow only social workers who were registered with the Scottish Social Services Council to be child welfare reporters. My officials have spoken to a number of key organisations that have expressed concern about the amendment.
Around 90 per cent of child welfare reporters are lawyers and I remain unconvinced that there is a justification for limiting that role to social workers. In my view, the most important factor for any child welfare reporter is that they meet the required standards in training and qualifications, regardless of their professional background.
Amendment 40 would also exclude child psychologists, child psychiatrists and other family support workers—who may have the necessary qualifications and experience to be a child welfare reporter—unless they were also social workers.
It would also exclude retired social workers, who may also have the required skills to act as a child welfare reporter. It is also not clear whether the social work sector has the capacity to take the role on. Capacity issues could lead to delays in producing child welfare reports, which could, in turn, delay the case overall. That would not be in the best interests of the child concerned.
I am, however, keen to encourage more non-lawyers to become child welfare reporters, as diversity of experience in the role of child welfare reporter would be beneficial to the process. I give the member my assurance that those considerations will be taken into account as the regulations on child welfare reporters are developed.
As regards amendment 1, in the name of Neil Findlay, an identical amendment was not supported by the Justice Committee at stage 2 and it remains unclear to me what the amendment is intended to do. If a person has the requisite skills and experience to be included on the register of child welfare reporters, then they can be included on that register. I am not clear how the person’s professional knowledge of a particular child can be relevant to the question whether a person could be registered as a child welfare reporter generally.
I take the member’s point that a professional who has already worked with a child may be well placed to write a child welfare report in relation to that child, although it should not be overlooked that there might also be cases in which the child or other members of the family might have a strong preference that somebody new is brought in to do that. The issue that the legislation is dealing with is not who will write a report in relation to a specific child but who can be registered to be a child welfare reporter. It would obviously be unworkable to have a system under which, in effect, there would be a separate register of child welfare reporters for every child in relation to whom a child welfare report might ever need to be produced.
For the reasons outlined, I remain unable to support amendment 1 and urge members to reject it.
Regarding amendment 2, however, I see the point that Neil Findlay is making. When consulting on draft regulations, any Government will of course need to ensure that people with lived experience of court-ordered contact and domestic abuse give us their valuable insights. I am therefore happy to support amendment 2.
The Presiding Officer
I call Liam McArthur to wind up and to press or withdraw amendment 40.
Liam McArthur
I thank all colleagues for their contributions to the debate. Liam Kerr indicated that amendment 40 attracted many representations, which I think was delphically put. Clearly, a primary concern was resourcing and capacity, although it is fair to say, as I did at stage 2, that the proposal would not be confined to social workers in council social work departments. Evidence from elsewhere in the UK suggests that the delays that have been referred to were not necessarily experienced. In terms of the original consultation on the proposal, questions have been raised about the extent of the engagement from those in the social work sector, at the earliest stages in the bill’s development.
Both Rona Mackay and James Kelly drew on points in relation to capacity and made the important point that, however the amendment lands, we need to extend the pool of suitably qualified professionals that are available to the court to produce the reports. Fulton McGregor made the point that that needs to include a greater level of social work engagement.
I thank John Finnie particularly for reminding members that what is proposed is not about pitting social workers against lawyers; they bring different skill sets and they are both tremendously valued. However, I have to note that, given the positions taken by Social Work Scotland and the Scottish Association of Social Work, it appears that there is a disagreement between those two elements of the same sector.
John Finnie
I commend the social work representatives for coming forward, as that is what those in a workplace-representative body should do, and Social Work Scotland’s position is perhaps disappointing. Does the member consider that, given that we hope to move to a barnahus model, a wider range of people could be involved, including police officers?
Liam McArthur
John Finnie makes an entirely fair point. There is a tendency for us to focus on the legislation in front of us, but he is right that if we are to properly move towards a barnahus model, we will need to draw on a wider range of suitably qualified and trained professionals. It has been valuable that we have aired and debated the issues in the chamber and not simply at committee. However, on the basis of the responses to the amendment, I will not press it.
Amendment 40, by agreement, withdrawn.
Amendment 1 moved—[Neil Findlay].
The Presiding Officer
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division. This will be a one-minute division. I do not intend to suspend proceedings. If you have difficulty voting, put your hand up and try to refresh your screen and log back in; it is as simple as that and there is plenty of time to do so in one minute. Similarly, if members who are voting online have difficulties, please indicate that online. Members may now vote on amendment 1. [Interruption.] Give it a chance.
Put your hand up if you cannot vote.
I will temporarily suspend the meeting.
16:45 Meeting suspended.16:54 On resuming—
The Presiding Officer
Apologies for the short suspension. We think that we have resolved the technical difficulty. We were in the middle of a division on amendment 1. Members may cast their votes now.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 23, Against 98, Abstentions 0.
Amendment 1 disagreed to.
Amendment 2 moved—[Neil Findlay].
The Presiding Officer
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Presiding Officer
The result of the division is: For 91, Against 29, Abstentions 0.
Amendment 2 agreed to.
Section 9—Regulation of provision of contact services
The Presiding Officer
Group 6 is on the regulation of contact services. Amendment 3, in the name of Neil Findlay, is grouped with amendments 4, 5, 17, 18, 19, 41, 6, 42, 7 and 20.
Neil Findlay
I will try and no get carried away with the excitement of winning a vote.
The amendments deal with the regulation of contact centres. No parent should ever have to leave a child at a centre while fearing for the child’s wellbeing and where staff do not take responsibility for the child because the parent who is having contact is deemed responsible. Many children are there because there is genuine fear of harm to the child or the resident parent, and yet the resident parent is asked to sign a form to say that they will leave the child and, if they do not, they will be reported to the court and the court may find them in contempt. That happened to a constituent of mine, and it has to stop.
Who, in such a scenario, calms the fearful child if the resident parent is not there? Is it a stranger to the child? Is it a parent whom the child may well be frightened of? That could be very upsetting and damaging to the child in the long term. The contact centre must be responsible for the health, safety, welfare and wellbeing of the child when on its premises. Buildings must be up to an acceptable safety standard and there must be closed-circuit television in rooms. There should be panic rooms and panic alarms. Indoor and outdoor play areas must be safe. There should be easy access and exit, and much more. All of that should be part of the centre’s responsibilities.
17:00Further, the staff who have contact with or supervise children must be trained and hold recognised qualifications in relation to matters relating to children, their welfare and wellbeing. That does not mean that a plumber attending the centre to unblock a toilet must have a qualification in child welfare, but the person who is overseeing activity or supervising contact must have one.
We need to ensure that the system of contact centres is well run and carries the confidence of parents, children and the public. The state orders contact via court orders. We all accept that that contact must take place in a safe environment for children and those impacted by the court order. The interests of children must be at the centre, and financial considerations, however important, must be a secondary concern.
It is in everyone’s interest that such a system should be publicly run and publicly accountable. We have one chance to make this work and we should ensure that it is run as a public service, with an ethos and management reflecting that. We are reforming the system of contact centres, which is already a tendered system. We are reforming it because of the failings within it, yet we are going to repeat that failure by putting the service out to tender again. That is a wrong move. Having a publicly run and accountable service has to be the way forward. It is a vital area of children’s welfare. The issue is not just about funding; it is about the whole ethos underpinning the system. As I said, we are at this stage only because of the failings of the existing system, and amendment 7 will put contact centres on a robust foundation. I hope that all my amendments in this group will be supported.
I move amendment 3.
Ash Denham
Amendments 3 and 4, in the name of Neil Findlay, are in the same terms as amendments that he lodged at stage 2. I still cannot support them, because I remain unclear about what responsibilities they are trying to impose on contact centres. As I stated at stage 2, as a Parliament, we simply cannot make people or organisations subject to vague and unspecified legal duties. That would be bad law making, so, if Mr Findlay presses these amendments today—I hope that he will not—I urge members not to support them.
Amendment 5, which is also in the name of Neil Findlay, would require contact centre regulations to include provision for staff to be trained and to hold recognised professional qualifications in relation to issues concerning children. I agree that staff working in contact centres should have the right professional qualifications, including in recognising behaviours related to domestic abuse and coercive control and associated behaviours in children. However, as I have discussed with the member, the bill already provides for training and qualifications for contact centre staff to be set down in regulations, which is what his amendment calls for, too. As those regulations are developed, I would be happy to discuss these matters again with Neil Findlay, but I cannot support that amendment, because it is unnecessary—as I have said, the bill already provides that the regulations are to set out qualifications for contact centre staff, so it adds nothing.
Neil Findlay
It is good of the minister to offer to have discussions with me about future regulations. However, given that I am not standing at the next election and the minister has said that it will take three years for the system to be brought in, I might not be around for those discussions.
Members: Aw!
Ash Denham
I can hear that the chamber is entirely sad that Neil Findlay will not be around in the next session of Parliament. However, it is a genuine offer. We have already spoken about amendments that the member brought forward at stage 2. I have tried to support the member when I can, and I have accepted one of his amendments today. However, I cannot support the amendments in this group. The approach that I have taken involves consulting on the regulations, the training and the standard of accommodation, all of which will be covered in a new duty. Until now, contact centres have not been regulated, so that is a huge step forward. In the next few months, while Mr Findlay is still a member of the Parliament, the offer is there for him to discuss these issues with me. I am happy to do that.
Amendments 17 to 19 in my name make minor adjustments for readability to wording about contact centre risk assessments that was added at stage 2 by an amendment from Neil Findlay.
Amendment 41, in the name of Bob Doris, seeks to encourage contact centres to comply with
“their duties under the Equality Act 2010”,
in particular, in relation to duties
“to make reasonable adjustments to premises”
for disabled people.
I recognise the seriousness of that issue and the concerns that Bob Doris has voiced. I want to ensure that children who need one have access to a contact centre and that all contact is facilitated safely, so I am happy to support that amendment.
Amendment 6 is similar to, but not the same as, amendment 2, which we have already debated. Amendment 2 calls for consultation with people with lived experience of court-ordered contact and domestic abuse. As I said with regard to amendment 2, I agree with Neil Findlay that we need to ensure that, when we consult, people with relevant lived experience give us their views, so I was happy to support that amendment. However, I cannot support amendment 6, because it is drafted differently from amendment 2; it requires ministers to consult before “implementing” or “reviewing” regulations and it is unclear what that would mean for us in practice. A duty to consult, as part of carrying out a statutory review of legislation, is not unknown, but the requirement in that amendment is not linked to a statutory review, so it is ambiguous about when ministers are to be treated as reviewing regulations.
The concept of implementing is even more vague. Implementation is an on-going process, so when does the duty to consult about it start and when would it stop? It would be unclear when ministers are complying or not complying with that legal requirement. I was content to support amendment 2, because it was clear about what consultation was required and when. Unfortunately, amendment 6 is not clear, so I cannot support it.
Amendment 42 makes a minor adjustment to the power in section 9 of the bill; it is technical in nature.
Amendment 7, in the name of Neil Findlay, would require regulated contact centres to be
“publicly provided and accountable to the Scottish Ministers”.
As I said at stage 2, I am unclear about what that is supposed to cover. I am aware of concerns that contact centres should be publicly funded in the longer term and I point to amendment 30, which was agreed to at stage 2. It allows Scottish ministers to enter into arrangements for the provision of contact services; that ensures that centres are sustainably funded and subject to Government oversight and monitoring. That is in addition to the oversight and monitoring provided for by the bill’s system of regulation of contact service providers. Therefore, the bill already provides for public funding of contact centres. I assume that the reference in Mr Findlay’s amendment to centres being “publicly provided” is supposed to mean public funding, but I do not know and that is the problem with the amendment—I cannot support it, because I do not understand the effect that it would have in practice.
Amendment 20 places a duty on solicitors to refer their clients to a “regulated” contact centre. At stage 2, James Kelly lodged amendment 52 on that, which required that all referrals to a contact centre must be to a regulated centre. I agree with the intention behind Mr Kelly’s amendments, but I had concerns around how a duty of that nature could be enforced in relation to individual parents who self-refer. However, I agreed to consider further Mr Kelly’s amendment in advance of stage 3. Amendment 20 will ensure that all court and solicitor referrals to contact centres are to regulated centres. Failure by a solicitor to comply with that duty
“may be treated as professional misconduct or unsatisfactory professional conduct”
and dealt with through the normal professional regulation processes on that basis.
John Finnie
It is our intention to support amendment 20, but I wonder whether the insertion of that provision has caused an unwitting offence to the legal profession. There is already guidance on how the legal profession should conduct itself. Will the minister reflect on whether that provision was heavy-handed?
Ash Denham
In developing that amendment, I consulted all my officials and the Law Society of Scotland. The duty has been drafted in that way because I am unwilling to put into law something that I cannot enforce.
Presiding Officer, I have finished speaking on the amendments in the group.
Bob Doris (Glasgow Maryhill and Springburn) (SNP)
In speaking to amendment 41, I thank the minister for her constructive approach. At stages 1 and 2, I raised concerns about disability access to child contact centres. A constituent of mine has faced a two-year ordeal to secure a contact centre with an appropriate toilet facility—with a hoist—to enable him to see his child, who has cerebral palsy.
I thank my office staff for their persistence in pursuing the matter with the contact centre, which I understand is now fully adapted. However, it should never have taken so long, and other contact centres were similarly unsuitable. That is why I sought with an amendment at stage 2 to specify in the bill the minimum standards of accommodation with regard to disability access. The Government position was that such detail was best left to regulation, which would be consulted on. The minister also believed that my stage 2 amendment would duplicate existing duties and enforcement mechanisms. To be blunt, those existing duties did not deliver for my constituent anyway, and duplicating a duty that is not currently working may not have delivered change.
My amendment 41 will therefore take a different approach. The regulator, once appointed, will have the explicit power to issue reports
“on any failure, or possible failure, by a contact service provider to comply with the provider’s duties under the Equality Act 2010, and in particular any duty to make reasonable adjustments to premises in order to facilitate their use by disabled people”.
I hope that the provision will move beyond the existing legal duties that unregulated contact centres currently do not adhere to in the absence of enforceable minimum standards, an inspection regime or complaints mechanism. The bill will deliver such elements, and, through my amendment, we would also have a clear focus on disability access and a mechanism to report on contact centres that do not make reasonable adjustments.
I thank the minister for agreeing a workable solution, and I thank my constituent who, by sharing their experience, will hopefully secure for years to come improved access to child contact centres for those with disabilities.
Liam Kerr
We will not support amendments 3 to 7 in the name of Neil Findlay. Rather than take up time, I will simply say that it is for the reasons that were set out by the minister.
I will focus my comments on amendment 20, which is a good amendment. We will support it, and there is no problem with solicitors being required to refer people to regulated services. That aspect is supportable—no problem. However, the issue that I ask the minister to think about is the one that John Finnie quite rightly raised in his intervention. The concern comes from proposed subsection (2), relating to professional misconduct, and the issue is the background law. Section 34 of the Solicitors (Scotland) Act 1980 provides that
“If any solicitor fails to comply with any rule made under”
section 34,
“that failure may be treated as professional misconduct or unsatisfactory professional conduct.”
Practice rule B1.4.1 for solicitors is clear that a solicitor’s fundamental duty to act in the best interests of clients is subordinate to the solicitor’s duty to comply with the law. If amendment 20 is agreed to as drafted, there will be a legal requirement for the solicitor to send a person to a regulated contact centre. A failure to do so will be a breach of the practice rules, which will be treated as professional misconduct; therefore, there is a pre-existing, underlying obligation, such that subsection (2) is unnecessary.
The statue book must always be considered holistically, and we should not be adding to it with repetition of a provision that is already contained in legislation that governs the regulation of solicitors. We will vote in favour of amendment 20—let me make that absolutely clear—but, in an ideal world, there might be a manuscript amendment, perhaps with the consent of the Presiding Officer, which could rectify the issue. I will leave that to the minister to come back on.
James Kelly
I support all the amendments in this group. The regulation of contact centres was a theme in the committee’s evidence sessions on the bill, and it featured heavily in the stage 1 debate.
The main issue that the amendments seek to address is the protection of the child, by ensuring that if a child is left at a contact centre, they will be in a safe environment. As part of that, there must be clear responsibility and accountability of those who are in charge and running the contact centres, who have a duty of care to a child in that situation. Allied to that, it is important that people have appropriate qualifications in order to carry out such duties. Bob Doris’s points about disabled access were valid and they need to be addressed.
All those points strengthen the fact that referrals must be made to a regulated contact centre. I welcome the minister’s work in response to my amendment at stage 2, and for stipulating that referrals by solicitors must be made to regulated contact centres. We heard a lot of strong evidence on the issues around that. I think that that is why the new section to be inserted by amendment 20 states that it is a misconduct issue if the referral is not made to such a centre.
I support all the amendments in the group, and I particularly welcome the work that the minister has done on amendment 20.
The Presiding Officer
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division. [Interruption.] We are again having difficulty with the wi-fi. We will suspend temporarily, and then rerun the vote.
17:16 Meeting suspended.17:20 On resuming—
The Presiding Officer
We are ready to go now. In case members are unclear, I am going to run the vote on amendment 3, in the name of Neil Findlay, again. Members may vote now.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 23, Against 98, Abstentions 0.
Amendment 3 disagreed to.
Amendment 4 moved—[Neil Findlay].
The Presiding Officer
The question is, that amendment 4 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 22, Against 99, Abstentions 0.
Amendment 4 disagreed to.
Amendment 5 moved—[Neil Findlay].
The Presiding Officer
The question is, that amendment 5 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 28, Against 93, Abstentions 0.
Amendment 5 disagreed to.
Amendments 17 to 19 moved—[Ash Denham]—and agreed to.
Amendment 41 moved—[Bob Doris]—and agreed to.
Amendment 6 moved—[Neil Findlay].
The Presiding Officer
The question is, that amendment 6 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 33, Against 86, Abstentions 0.
Amendment 6 disagreed to.
Amendment 42 moved—[Ash Denham]—and agreed to.
Amendment 7 moved—[Neil Findlay].
The Presiding Officer
The question is, that amendment 7 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 28, Against 92, Abstentions 0.
Amendment 7 disagreed to.
After section 9
Amendment 20 moved—[Ash Denham]—and agreed to.
The Presiding Officer
Before we move to group 7, we will take a short comfort break. I ask members to come back to the chamber for 17:40.
17:30 Meeting suspended.17:43 On resuming—
Section 10—Promotion of contact between looked after children and siblings
The Presiding Officer
Group 7 is on the promotion of contact between children and others. Amendment 43, in the name of Rona Mackay, is grouped with amendments 22, 44 and 45.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
Amendment 43 is very straightforward. It is purely about terminology. I was astonished to see such archaic language as “half-blood” and “whole-blood” in 21st century legislation when describing family relationships. I lodged an amendment on this at stage 2, but I did not move it at the time, because the minister agreed that she and her officials would work with me to agree on more appropriate terminology. I am pleased that that has happened, and we now have a much better form of words.
The new form of words that amendment 44 introduces to replace “half-blood” and “whole-blood” is
“two people are siblings if they have at least one parent in common”.
In my view, that is a far more realistic way to reflect family relationships in 2020 and seems much less offensive than “half-blood” and “whole-blood”.
17:45Amendment 45 relates to contact with people with whom the child has an attachment. Studies have shown that children form attachments with those who have a significant caring presence in their lives. Attachments are of course crucial for the healthy development of young people. Those people can be
“a relevant person in relation to the child ... a sibling”
or
“any other person with whom the child has resided and with whom the child has an ongoing relationship”.
That relates back to amendment 44, which states that
“two people are siblings if they have at least one parent in common”.
Sibling contact, where appropriate and without risk, is crucial to maintain. During stage 1, we had enormously powerful evidence of that from a care-experienced youngster who was estranged from his sibling and had limited supervised contact. That heaped trauma on top of trauma for him, and it had to be addressed. It is important that amendment 45 also impacts positively on adoptive parents, who are, in every sense, legal parents and guardians. The new definition will help to cement relationships in extended families.
I hope that my amendments help to bring the meaning and terminology of the legislation up to date, to reflect modern family relationships without any blurring of the lines when it comes to contact and role models in a child’s life.
I move amendment 43.
Liam McArthur
I start by welcoming Rona Mackay’s amendments in this group. The issue of sibling contact, as Rona Mackay indicated, was the focus of perhaps the most emotional and powerful evidence session that the committee held on the bill, and I pay tribute to Oisín King for his personal testimony. Time will tell whether the proposed changes go far enough, but I certainly welcome them and I thank Rona Mackay for her efforts on that important issue.
Amendment 22, in my name, is again a reprise of an amendment that I moved at stage 2, on which I was supported by Jeremy Balfour and Fulton MacGregor. As I said at stage 2,
“foster care allows children to develop valuable relationships. Keeping in touch with the people they love and trust is important for children and young people as they move through or even out of the care system.”—[Official Report, Justice Committee, 23 June 2020; c 55.]
However, it is also the case that, for many, the relationships that they develop with their foster carers are not prioritised or supported. In some cases, children and foster carers are even prevented from maintaining contact due to the outdated belief that children must break their attachments in order to make new ones.
As I said earlier, I absolutely accept the centrality of taking decisions in the best interests of the child, but it seems perverse to abruptly end supportive relationships, which can only risk leaving a child feeling abandoned or rejected and perhaps less able to form those relationships in future. That seems to run wholly counter to the principles of the bill. From my discussions with the minister, I recognise that making changes to the bill could be problematic. It may therefore be more appropriate to address in guidance the concerns that have been raised by the Fostering Network and foster carers.
I am grateful to the minister for sharing with me the draft guidance that has already been prepared. I know from my discussions with the Fostering Network that it believes that that will be a very positive step in the right direction. I note in particular, the acknowledgment in the draft guidance that
“a child’s needs, including their emotional wellbeing, are the paramount consideration and relationships with former caregivers should be maintained wherever appropriate and for as long as is appropriate, tailored to the needs of the child.”
It also states that
“Keeping in touch after a child moves family should, if appropriate, be routinely considered part of the responsibility of a carer, and carers must be supported by professionals to carry this out as required.”
I appreciate that further consultation on the draft guidance will need to take place, but I very much welcome the strides that have been made and, on that basis, will not move amendment 22.
I conclude by recording my thanks to the Fostering Network for its efforts in highlighting the issue and to foster carers for the invaluable work they do, which may not always get the recognition that it deserves.
Liam Kerr
We will support the amendments in the group bar amendment 22. Rona Mackay’s points are well made and I associate myself with Liam McArthur’s thoughts on her amendments. My issue with amendment 22 is similar to my comments earlier, and I am pleased to note that Mr McArthur will not move it, but I understand why he lodged it.
Ash Denham
I am grateful to Rona Mackay for lodging amendments 43, 44 and 45, the need for which to modernise the language that is used in the bill with reference to siblings was highlighted to the Justice Committee and at stage 2. The amendments ensure that the sibling contact duties that are created by the bill will extend to half-siblings but use accessible and modern language in doing so. Instead of referring to blood, they refer to having
“at least one parent in common.”
The word “parent” encompasses biological parents, adoptive parents and those who are deemed to be parents through the law of assisted reproduction. The amendments do not change the situation of children who are not siblings but who have a sibling-like relationship, who will continue to be included within the duties.
I appreciate Liam McArthur’s reasons for lodging amendment 22. I fully understand that maintaining a child’s link with people who are important to them can be beneficial to them as they grow and develop. For that reason, my officials are engaging with stakeholders to strengthen the guidance in this area, which has already been shared in draft with key organisations for their feedback and comment. I consider that, in this instance, guidance is the best way to support children in this area, given the need for a sensitive and nuanced approach to supporting such important relationships, and I note that Mr McArthur has decided not to move amendment 22.
Amendment 43 agreed to.
Amendment 22 not moved.
Amendment 44 moved—[Rona Mackay]—and agreed to.
Section 10A—Duty to consider contact when making etc compulsory supervision order
Amendment 45 moved—[Rona Mackay]—and agreed to.
Section 11A—Alternative methods of dispute resolution
The Presiding Officer
Group 8 is on alternative methods of dispute resolution. Amendment 24, in the name of the minister, is grouped with amendments 25, 32 and 33.
Ash Denham
The amendments in this group seek to remove and replace sections 11A and 11B, on funding for alternative dispute resolution, which were added to the bill at stage 2. The new provisions will achieve the policy aims of sections 11A and 11B, but they address issues that might have caused problems in practice.
I appreciate the engagement that I have had with Margaret Mitchell on the amendments. I know that alternative dispute resolution is a subject that has been of great interest to her for many years.
Amendment 32 will require the Scottish ministers to assist people to meet the costs of alternative dispute resolution. The Scottish Government recognises the valuable role that ADR, including mediation, can play. One of the key aims of the bill is to ensure that the voice of the child at the centre of any dispute is heard. It is important that, if parties decide to use ADR, the voice of the child is not lost. Therefore, amendment 32 insists that public funding will be available only for those ADR processes that take on board the views of the child to at least the same extent as a court is required to do. We have already discussed what the bill says about those requirements for courts.
Amendment 33 will place a duty on the Scottish ministers to establish a pilot scheme, under which parties to court proceedings will be required to attend awareness meetings on alternative dispute resolution processes. I make it clear that such meetings are not themselves a form of ADR but are an opportunity for the parties to learn about the availability of alternatives to court.
Amendment 33 makes it clear that cases in which there has been domestic abuse are not to be taken under the pilot scheme; I am sure that members will agree that that would not be appropriate. I also commit to working with organisations that support victims of domestic abuse when I establish the pilot.
It is also very important for the pilot to be properly evaluated. I would expect any evaluation to look at statistics on the number of parties who attended the awareness meetings, as well as the outcome in those cases. The evaluation process will include interviews with people who have participated in the pilot and with ADR providers.
I move amendment 24.
Margaret Mitchell (Central Scotland) (Con)
I am pleased to speak in support of the amendments in this group that deal with alternative methods of dispute resolution. I thank the minister for working with me to ensure that the amendments in my name that were passed at stage 2, which provide for a mediation pilot scheme and for legal aid funding, are improved.
Amendments 32 and 33 allow for greater flexibility for ministers to provide financial assistance to parties seeking to use alternative dispute resolution. For example, it could allow the Scottish Legal Aid Board to make grant payments to relevant bodies for the provision of ADR, helping to increase the availability of services and providing value for money.
The amendments also ensure that there is a clause in the mediation process stipulating that the voice of the child or young person is heard when decisions that affect them are taken. That has been achieved by including the duty to evaluate the pilot and to analyse the outcomes for children at the centre of the dispute.
I know that Relationships Scotland and CALM Scotland have previously approached the Scottish Government about the implementation of a similar pilot scheme. I hope that the Scottish Government will draw on those organisations’ expertise in designing and implementing the pilot.
I hope that the amendments will help to lead to the early resolution of disputes, will allow for more bespoke and family-focused solutions and will prevent children from experiencing the stress and trauma of court, especially as it is widely recognised that, as the Justice Committee heard from stakeholders during stage 1, courts are rarely the best place to resolve family disputes.
James Kelly
I support the amendments in the group. Scottish Women’s Aid and Children 1st raised some issues about protection for victims of domestic abuse. The pilot is the correct way to go. I support the minister’s assurance that she will work with Scottish Women’s Aid and Children 1st to ensure that their concerns are addressed. I also pay tribute to Margaret Mitchell for the work that she has done on this and as convener of the Justice Committee.
Liam McArthur
I echo James Kelly’s comments. I moved similar amendments on ADR at stage 2. I am grateful to Margaret Mitchell for her collaborative work with the Government. The concerns that James Kelly referred to needed to be addressed and we are now in a far better position. I thank them and I confirm our support.
Amendment 24 agreed to.
Section 11B—Mandatory mediation information meeting
Amendment 25 moved—[Ash Denham]—and agreed to.
Section 12—Factors to be considered before making order
Amendment 26 not moved.
Section 13A—Duty to consider child welfare when allowing access to information
Amendment 46 moved—[Liam McArthur].
The Presiding Officer
The question is, that amendment 46 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division on amendment 46, in the name of Liam McArthur. That will be a one-minute division. Members may cast their votes.
My apologies, colleagues. There are too many members who are unable to vote. I will temporarily suspend proceedings and rerun the vote.
17:59 Meeting suspended.18:04 On resuming—
The Presiding Officer
We will proceed with the division on amendment 46. This will be a one-minute division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Presiding Officer
The result of the division is: For 89, Against 29, Abstentions 0.
Amendment 46 agreed to.
Section 15A—Duty to ensure availability of child advocacy services
The Presiding Officer
Group 9 is on the duty to ensure availability of child advocacy services. Amendment 27, in the name of Ash Denham, is grouped with amendments 28 to 30.
Ash Denham
The amendments in group 9 make minor and technical adjustments to the provision that was agreed at stage 2 that places a duty on the Scottish ministers to make child advocacy services available. Put simply, they move the place at which the bill will insert text into the 1995 act, for a better fit with that act’s structure, and they make a technical correction to the way in which section 11 cases are described.
I move amendment 27.
Amendment 27 agreed to.
Amendments 28 to 30 moved—[Ash Denham]—and agreed to.
Section 16—Failure to obey order
Amendment 31 moved—[Ash Denham]—and agreed to.
After section 16
Amendments 32 and 33 moved—[Ash Denham]—and agreed to.
The Presiding Officer
Group 10 is on the duty to ensure system of redress. Amendment 47, in the name of John Finnie, is the only amendment in the group.
John Finnie
I do not think that anyone doubts that the bill is a positive step forward in acknowledging children’s rights and that it is a further step in enhancing compliance with the United Nations Convention on the Rights of the Child.
As we have heard, parliamentarians are very familiar with the concept that children’s views are not always heard in disputes about contact. It is certainly the view of Scottish Women’s Aid, Children 1st, the Children and Young People’s Commissioner Scotland and others that children must be active participants, not casual observers, in decisions about their future.
The problems that have been alluded to are partly the result of our adversarial legal system, which deals with disputes about contact as being between adults and tries to keep children out of the dispute, in which children rarely have any legal status and in which their rights risk being at the discretion and behest of adults—be they parents or court personnel.
All too often, children’s experiences are disempowering and distressing as cases proceed through the legal system. The bill’s real progress on children’s participation rights—the fundamental change that the bill drives—is the presumption that a child has the capacity to express a view. The bill requires the court to explain its decision. It places a duty on the Scottish ministers to ensure the availability of child advocacy services—which, children consistently tell us, would help most.
At the moment, there is a process for appeals, but it is, of course, designed by and for adults, and it is not accessible to children. It requires a parent to raise an appeal on behalf of the child or a child to become party to the dispute and to access legal aid for their own independent representation. However, becoming party to the dispute is not an easy task for a child, especially when their access to legal aid depends on parental income and when the child may be expressing views that are contrary to those of a parent.
Without an accessible system of redress, children struggle to claim their rights to participate in major decisions that affect their lives. If a child has not been given the choice to give their views, they currently find it very hard to reverse that decision. If a court report is written about a child, the child has no way to disagree with what it says—and research has shown that some children felt that their views were misrepresented or that their substance had changed in the reporting to the court. One child from whom we heard at the Justice Committee urged those tasked with taking children’s views to think about what they were writing, because they had changed what the child had said.
Of course, without an accessible mechanism for redress, children cannot challenge that. My amendment 47 has the potential to bolster children’s rights further, making them both real and accessible to children. If amendment 47 is agreed to, it will require the Scottish ministers to introduce a system of redress for children, should children feel that their participation rights have been breached.
The amendment requires the Scottish ministers to make regulations, without being prescriptive about the contents,
“as they consider necessary and expedient to establish an effective, child-sensitive redress scheme.”
For that to be meaningful, there will have to be engagement, not least with young people. I hope that the adoption of best practice—a rights-based approach to all proceedings—means that the provision in amendment 47 would rarely be used. However, I believe that it is, nonetheless, necessary.
Subsection (3) of the section that amendment 47 would introduce talks about where
“actions have been taken for the purpose of securing the child’s best interests.”
This is therefore not about a blanket approach or a grievance approach, as decisions will have to be taken that children will inevitably not agree with; it is about an evidence-based, rights-based approach to all decisions, and it will complement the other provisions in the bill.
Members will note that Scottish Women’s Aid, Children 1st, the Children and Young People’s Commissioner Scotland and others have endorsed the approach that is taken in amendment 47 and that it is cited in the widely circulated blog by academics Fiona Morrison and Kay Tisdall. It is clear that the proposal in amendment 47 would afford children’s participation rights greater status. As is stated in the UN Committee on the Rights of the Child’s general comment 5 on the implementation of rights:
“For rights to have meaning, effective remedies must be available to redress violations.”
Amendment 47 has the potential to make children’s rights real in disputes about contact and to take us a step closer to—
Liam Kerr
I know that Mr Finnie is winding up, but this is the first time that we have seen the amendment. Why did he not introduce such an amendment earlier in the bill process?
John Finnie
I think that the amendment is a reasonable intervention to make, and I was not approached to make it. All the organisations that pay attention to our bill have regard to how things formulate as we go through, and it is clear to all those eminent people, such as the children’s commissioner, that there is a gap in the bill that amendment 47 would fill. As I said earlier, the issue is not that there is not a system of appeal at the moment; the issue is that it is adult focused. If we are to make the bill entirely child focused and move towards UNCRC compliance, amendment 47 is the way to do it.
Neil Findlay
I am trying to be helpful to Mr Finnie. The argument that Liam Kerr put forward is a red herring, because we are allowed to lodge amendments at any stage. In addition, during a bill process earlier in the year, Murdo Fraser introduced an entire member’s bill at stage 3 to be inserted into the legislation, but we heard no complaints from Mr Kerr at that point.
John Finnie
I hear what Mr Findlay says, but I do not want to get involved in a dispute about anything other than the merits of amendment 47—that is what is important here. Significant people who have regard for a rights-based approach for children have commended amendment 47, and I commend it to members for their support.
I move amendment 47.
Liam Kerr
I am sympathetic to what Mr Finnie is trying to do with amendment 47, and I listened carefully to what he said. In my intervention, I was not objecting to amendment 47 but making what I think is an important point about when we introduce amendments. I accept that amendment 47 is looking to address what appears to be a gap in the bill, and, because of the amendment’s emphasis on achieving the best outcome for the child, I support its intentions. My concern is that it is a significant amendment to be introducing at this stage.
I will keep my remarks on the amendment brief. I do not see a definition in it of “redress”, and I do not think that any consultation has been done on the amendment previously. One of the representations that we received in favour of amendment 47 says that, if the Scottish Government were to meet effectively the obligations that the amendment would impose, it would need to work out how such a system would operate and it would have to involve young people. There is a whole lot of work to be done here.
Amendments of such an extent need to be subject to more consultation and scrutiny than is allowed when an amendment is lodged at this stage. I am afraid that, at this stage, my objections to amendment 47 stand.
18:15James Kelly
I support amendment 47, which is important because, although the bill is good and has been welcomed by members across the Parliament, if we pass it without agreeing to amendment 47 it will fall short of the UNCRC standards in relation to a system of redress.
Ash Denham
I point out to the member, for clarity, that a requirement for child-friendly redress is not in the UNCRC itself; it is in general comment 5.
James Kelly
The point remains that the bill should provide for a system of redress, and the Parliament would fail in its obligations if it did not take a serious look at and agree to amendment 47.
Liam Kerr
Mr Kelly makes an important point. Deep down, I would like amendment 47 to be agreed to. However, we have not scrutinised it. We have not taken the time—as we would normally do at stage 2—to take a step back and really examine the legislation that we are passing. That is why I have such a concern.
James Kelly
If we accept the arguments that the member and the minister are making, we are simply putting our heads in the sand and missing an opportunity to do our best to serve the children whom the bill sets out to look after.
I support amendment 47. It has the support of Scottish Women’s Aid, Children 1st and the children’s commissioner. There is substantial support for the proposed approach, and its inclusion in the bill at stage 3 would complete the bill and make it a lot more comprehensive. I urge members to support amendment 47.
Ash Denham
I appreciate the concerns that John Finnie has expressed. I agree with him that, if a child or young person has concerns about how their court case has been handled, those concerns need to be taken seriously and listened to. Ensuring that the views of the child are heard is a key aim of the bill.
However, I am unable to support amendment 47. It comes very late in the day, as Liam Kerr said, and we have not had the opportunity to consider it earlier in the bill process. The matter was not raised in the stage 2 debates, and a number of issues need to be clarified through consultation and parliamentary debate before such an amendment finds its way on to the statute book.
For a start, it is not clear from amendment 47 what a redress scheme would entail. What does the member think is appropriate redress if a child feels that their views have not been heard in a contact or residence case? Is it financial compensation? Is it a complaints mechanism with an apology? Does it involve reopening the decision? How does that sit alongside existing appeal processes, which amendment 47 would not affect, and the ability to vary the order?
John Finnie
I will cover a lot of those points when I sum up, but such matters are all to be flushed out in the regulations. If the concerns are being taken seriously, does the minister take issue with what I said about there being very much an adult-based approach at the moment? We are talking about a system of appeal. We can call it “redress”; the term is in common parlance—but I will come back to that. How are children’s concerns being taken seriously at the moment, when adults predominate in the system?
Ash Denham
That is a good point, but the point that I am trying to make is that amendment 47 does not define “redress” or provide clarity. It is all very well for the member to say that matters can be worked out in the regulations, but we are talking about an entirely new scheme, so I do not think that that would be appropriate.
On the member’s point about whether children’s concerns are being taken seriously and whether what we have at the moment is child friendly, I agree with him that it is not. That is why we are including child-friendly complaint mechanisms in the bill. I will talk about those in a moment. I take the member’s point; however, we are addressing that issue with this bill.
The extent to which a redress scheme might cut across existing remedies if a child is unhappy about the procedure or the outcome of the court order would need to be considered very carefully. A child can already apply to the court to vary the order, and there are organisations—such as Clan Childlaw and the Scottish Child Law Centre—that provide representation for children.
A curator ad litem could be appointed to represent a younger child’s interests, and we propose to regulate them similarly to the way in which child welfare reporters are regulated. I reassure the member and the chamber that the Government is doing work in that area. As we have discussed today, the bill will improve the ways in which children can effectively participate in section 11 cases. The Government has shared with key stakeholders guidance for children on child welfare reporters. That includes information about how a child can complain and about the conduct of a child welfare reporter, which, I believe, addresses one of the points that Mr Finnie made in his opening remarks.
The Scottish Government has plans for the regulation of child welfare reporters to ensure that there is a child-friendly complaints mechanism. I would be very happy to discuss that further with the member, and I reassure him, again, that that will be part of a full public consultation and that the eligibility criteria and standards for child welfare reporters will be part of that.
The Scottish Government will ensure that, once regulated, there is also a child-friendly complaints mechanism in place for contact centres. It will also ensure that the body that is appointed to oversee the contact centre can act on any complaints that are raised.
Section 16, which covers failure to comply with an order, will mean that if, for example, a child refuses to have contact with a parent, the court will be required to investigate the reasons for that. Section 15 requires the court to explain decisions to a child in child-friendly language as well. Section 15A requires the Scottish ministers to establish “child advocacy services” as they see necessary to facilitate participation.
Members have already voted on Liam McArthur’s amendment 48, which requires the effectiveness of the bill’s provisions in facilitating children’s participation to be reviewed in five years. That requirement for a review will ensure that any future Government will look again to see whether the reforms have worked out, and, if it finds that further improvements need to be made, it will be able to provide a prompt evidence base for starting to look seriously at the matter in a considered way.
Given the uncertainties that I have laid out about amendment 47—including what it would mean in practice, and given the work that is already under way to enhance children’s rights—I ask members to reject the amendment.
John Finnie
I thank all those who have participated in the debate. I agree with a lot of what has been said. There is a lack of definition and there has been no consultation on the regulations, but that is precisely why subsection (4) of the section that amendment 47 would introduce refers to the regulations under subsection (1) being “subject to the affirmative procedure”. There is no doubt that there would be scrutiny, and there is no doubt that there is a gap.
Of course, there is a whole load of work to be done—the minister would be wrong to construe anything that I have said as meaning otherwise. As I said, the bill is a great step forward. Nonetheless, although I accept what the minister has said about the child-friendly system, the reality is that significant children’s charities and, importantly, the children’s commissioner, have identified a gap. I hope that I was correct in saying that general comment 1 of the UNCRC is the source of the reference that I made to the shortcomings.
I do not doubt that the issue will be revisited at some future point. During this meeting, we have talked about the barnahus model, the progress that is going to be made and the child-centred approach that will be taken, but the present system has a gap. This is an opportunity to fill it, and I hope that members will take that opportunity by voting for the amendment.
The Presiding Officer
The question is, that amendment 47 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division. I encourage members to refresh their screens. If there is any difficulty, log out and log in again to refresh your screen, and that should bring the page up again.
For
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 31, Against 86, Abstentions 0.
Amendment 47 disagreed to.
The Presiding Officer
I am conscious of the fact that decision time is scheduled for half past 6 and we are almost there. I am, therefore, minded to accept a motion without notice to move decision time to 7 o’clock. Business managers have consulted, and we have agreed to shorten the debate following the amendment stage.
Motion moved,
That, under Rule 11.2.4, Decision Time be moved to 7.00 pm.—[Graeme Dey]
Motion agreed to.
Before section 17
The Presiding Officer
Group 11 is on children’s hearings: opportunity to participate. Amendment 34, in the name of the minister, is the only amendment in the group.
18:30Ash Denham
Amendment 34 will have a positive impact on children and young people who are cared for away from home. It will enable an individual to participate in a children’s hearing when they are not a “relevant person” but meet criteria as a qualifying sibling or relative.
The provisions, together with revised procedural rules, will allow such individuals certain rights, such as to be notified of a hearing, to be provided with paperwork that is relevant to them and to be able to attend and be represented. The detail on those rights will be set out in rules, which will be consulted on.
The provisions do not allow for a sibling’s right of appeal against the hearing’s decision. The United Kingdom Supreme Court, in the cases of ABC v Principal Reporter and XY v Principal Reporter in June this year, made it clear that the system is already flexible and is capable of being operated compliantly with the European convention on human rights for siblings. I hope that members agree that an appeal right would be disadvantageous overall, both to the child at the centre and to their siblings. Court proceedings are not the most appropriate forum for disputes over how long brothers and sisters should see each other for. That is better discussed in the less formal children’s hearings environment.
Instead, the amendment introduces review provisions that will have the effect of allowing a qualifying sibling or relative to request a further children’s hearing as long as three months have passed since the making of a compulsory supervision order in respect of the child. That will allow the hearing to keep the relationship between the child and their siblings under close review if needed, and it will permit quick adjustments to be made to measures in the child’s legal order. The child at the centre of the hearing and the relevant persons already have that review provision.
The independent care review made clear in its report “The Promise” that to be notified of children’s hearings and have an opportunity to participate meaningfully in decisions that affect them is crucial to brothers and sisters. I am delighted to be able to use the bill as a means to achieve that during the first year of the implementation of the promise.
I move amendment 34.
Amendment 34 agreed to.
Before section 22
Amendment 48 moved—[Liam McArthur]—and agreed to.
The Presiding Officer
That ends consideration of amendments. As members will be aware, at this stage in the proceedings, I am required under standing orders to decide whether, in my view, any provision in the bill relates to a protected subject matter—that is, whether it modifies the electoral system or the franchise for Scottish Parliament elections. As the bill does no such thing, it does not require a supermajority to be passed at stage 3.
There will be a short pause before we move on to the stage 3 debate.
25 August 2020
Final debate on the Bill
Once they've debated the amendments, the MSPs discuss the final version of the Bill.
Final debate transcript
The Deputy Presiding Officer (Linda Fabiani)
I ask members to stop the private chatter and take their places.
The next item of business is a debate on motion S5M-22505, in the name of Ash Denham, on the Children (Scotland) Bill. I call the minister to speak to and move the motion. Minister, you have up to six minutes.
The Minister for Community Safety (Ash Denham)
I am delighted to open the debate at this final stage of the bill, which seeks to improve our family courts and children’s hearings. I thank the Justice Committee for its careful examination of the bill and for its considered stage 1 report. I also thank parliamentary staff for their support in that process, and I commend them for rising to the challenges of Covid-19 and putting in place new processes that have enabled scrutiny of the bill to continue during the public health emergency.
Many stakeholders and individuals took the time to provide evidence on the bill to the Justice Committee. The amount of evidence that the committee received and the number of responses to our consultation in 2018 show that reforming the family courts is an important issue for many people. However, let me be clear: our work on improving the family courts is far from complete. There is much left to do, and we will do it as quickly as we can in the current circumstances.
Neil Findlay (Lothian) (Lab)
I also thank those who have contributed to the bill. Does the minister acknowledge that, had it not been for my constituent Emma McDonald bringing the petition to the Public Petitions Committee, it is unlikely that some of the reforms that we see today would have come through?
Ash Denham
I thank all stakeholders who engaged with the process for their considered comments, many of which have made their way into the final version of the bill.
The Children (Scotland) Act 1995 is the key legislation on contact, residence and other parental responsibilities and rights. The Children (Scotland) Bill builds on that act.
One of my key aims for the bill was to ensure that the voice of the child is heard. Ultimately, the best interests of the child are the paramount consideration in any contact or residence case. The bill as introduced—and as amended at stage 2 and, today, at stage 3—furthers the rights of children to participate in proceedings.
The presumption that a child aged 12 or over is mature enough to give their views has been replaced with a presumption that, subject to extremely limited exceptions, all children are capable of giving their views. In addition, under the bill, the courts will be required to provide children with an explanation of their decisions. The courts will also be required to seek the views of children if an order has not been complied with. Those are radical changes that will make the process more child friendly.
It is important that, when children give their views, they know what to expect and what will happen to their information. I am pleased to have worked with Liam McArthur and other stakeholders on amendments to the bill in relation to protecting children’s private information. We have prepared draft guidance for children and young people on speaking to a child welfare reporter. We have sent the draft to key stakeholders for comment, and I look forward to finalising that important guidance over the coming months.
The bill also takes important steps forward for looked-after children and their brothers and sisters. The bill requires local authorities to promote contact between a child and their brothers and sisters, just as they must promote contact with parents if that is possible. In recognition of the consultation responses from children and young people and the organisations that support them, those duties extend beyond biological brothers and sisters to people who are unrelated to the child but with whom they have built a relationship that has the character of that of a sibling.
In my stage 3 amendments, I put forward new provisions for qualifying siblings and close relatives of a child to be at the centre of a children’s hearing, so that they have the opportunity to meaningfully participate in proceedings. The aim is to ensure that those who are closest to the child can be supported to give their views in those important proceedings when they wish to do so.
The bill also further protects victims of domestic abuse by ensuring that they are protected in child welfare hearings and by introducing a prohibition on personal conduct of a case if a party has committed a relevant criminal offence.
As I said, the bill is only the start of the process of reforming family courts. Implementation of the bill will take time, but I will endeavour to commence sections as soon as possible. Some sections will require significant consultation, such as the provisions on establishing a register of child welfare reporters and the regulation of contact centres. Other sections may be capable of commencement at a slightly quicker pace.
I appreciate that, for many people experiencing the family court process, it is important that the changes are made as quickly as possible. I promise to take forward work on implementation as quickly as we can, given the challenges of Covid-19 and Brexit, and I hope that stakeholders will continue to engage with my officials as they progress the implementation work.
In addition to the bill, the family justice modernisation strategy includes a number of areas for further work that do not require primary legislation, including guidance for parties going to court and alternatives to the court process. A number of the bill’s provisions and some areas of the family justice modernisation strategy work require court rules, and my officials will work to develop policy papers on them for the family law committee of the Scottish Civil Justice Council.
The bill is a significant change in improving family courts. However, it is only a starting point. Implementation of the bill and the family justice modernisation strategy will be the next step.
I move,
That the Parliament agrees that the Children (Scotland) Bill be passed.
18:42Liam Kerr (North East Scotland) (Con)
I remind members that I am a practising solicitor holding certificates with the Law Society of England and Wales and the Law Society of Scotland.
In opening for the Conservatives in the debate on the Children (Scotland) Bill, I confirm that we will vote in favour of passing the bill at decision time.
The bill’s stated aims are to ensure that the views of the child are heard in contact and residence cases; to protect victims of domestic abuse and their children; to ensure that the best interests of the child are at the centre of contact and residence cases; and to ensure compliance with the United Nations Convention on the Rights of the Child, which I think that we have achieved.
The process to get to this stage has been long, productive and collaborative. It has been good to work on a cross-party basis on so many of the issues. It is notable that, throughout the consultation, evidence taking and amendment stages, we have moved from a strong start to a finished product that I think that we can all be proud of. That has been possible only because of those who gave written and oral evidence throughout the process. With reference to today’s proceedings, that applies especially to the many organisations and individuals who provided us with informed and informative briefings on amendments and the bill overall. Those have been hugely helpful; as colleagues and those viewing our proceedings will have noted this afternoon, they certainly helped to clarify my thoughts on various amendments, and no doubt those of colleagues across the chamber.
At stage 1, I said:
“The power of evidence that was given by the witnesses certainly helped to remind me of the deep responsibility that we all share to get this right.”—[Official Report, 27 May 2020; c 49.]
I believe that we have got it right, and I hope that, throughout the passage of the bill, including today, the debate has enabled all the contributors to feel that they have been listened to. I think that we have all been listening: the fact that so many amendments have been proposed and agreed to suggests that that is the case. I know that several votes today were swung by the quality of the submissions that we have been given, and by the quality of the contributions that we have heard this afternoon.
In particular, I remember an unlikely alliance arising following the stage 1 debate, when Neil Findlay and I asked the minister to remove the word “practicable” from section 10, on the basis of some extraordinary testimony from CELCIS, Who Cares? Scotland and Oisín King, among others. To her credit, the minister met us after the debate and lodged an amendment. On a similar note, Rona Mackay’s amendment on the term “whole-blood”, which I had indicated during the evidence taking that I was also concerned with, was also agreed to.
However, having struck that note of consensus, I will gently and briefly make a point about amendments. By way of example, I cite John Finnie’s amendment 47, which we debated at the end of stage 3 and which I consider was a key amendment. Although I know that it is perfectly permissible to lodge novel amendments at stage 3, I do not think that it is prudent to do so. I do not like it, because there is a risk of ending up with bad or incomplete law. Clan Childlaw notes that although the amendment would be a step in the right direction, it did not seem to include a right of appeal. Had the amendment been lodged earlier, we might have dealt with that issue.
John Finnie (Highlands and Islands) (Green)
Does the member not see the danger in what he is saying? I want to steer discussions so that they are about the merits of individual amendments. There is a real danger in saying that an amendment should not be lodged at stage 3, particularly given our unicameral set-up.
Liam Kerr
I am grateful for the intervention. I am not saying that members should not lodge amendments at stage 3, although I will refer to the unicameral set-up to which he refers. There is a process, and because we have a unicameral set-up, the importance of stages 1 and 2 is elevated such that, when we have issues that are as important as the one in the stage 3 amendment that he lodged, they must be tested at stage 2, subjected to evidence taking and fully considered.
Neil Findlay
Can we take it from that response that that will become a point of principle for Mr Kerr and the Conservatives, and that if anyone lodges an amendment at stage 3, they will object to and oppose it, because it has not gone through that scrutiny process? I think that Mr Kerr must make himself very clear on that issue.
The Deputy Presiding Officer
I ask that you answer that and then wind up, Mr Kerr.
Liam Kerr
I think that Mr Findlay is well aware that I will consider everything on its merits. I stick to the point that I made to Mr Finnie: how this Parliament is set up merits our looking at issues in full detail at stage 2.
In conclusion—[Interruption.] We are very late, Mr Findlay, and the Presiding Officer is not terribly chuffed. [Interruption.]
The Deputy Presiding Officer
I can confirm that the Presiding Officer is not terribly chuffed. Please wind up, Mr Kerr.
Liam Kerr
I came to the bill from a standing start—I had not done anything in the family courts, except for gaining some second-hand personal experience, since the start of my legal career two decades ago. By working together on the bill, politicians from all parties have been able to contribute to a piece of legislation that I really believe will better protect the interests of children in the Scottish legal system and ensure that they are able to contribute to it, whenever they wish to do so.
Inevitably, different parties have different viewpoints and interests and will consider that the bill leans too far in certain directions or not far enough in others. For legislation of this kind, the best solution is always to be found through an approach that allows compromise. It is precisely thanks to that compromise that I believe that the bill will achieve its intended purpose. We will vote for it at decision time.
The Deputy Presiding Officer
I draw members’ attention to it being unlikely that decision time will be at 7 o’clock, even if speeches are drastically cut.
18:47James Kelly (Glasgow) (Lab)
I will bear that in mind, Presiding Officer, and will try to curtail my remarks.
Scottish Labour will support the bill at decision time. The number of expressions of interest, the number of briefings that we have received and the number of representations from stakeholders throughout the three stages of the bill are a mark of its importance.
The bill was introduced primarily because it was recognised that the current legislation was not adequate in representing children. It brings in key reforms, including doing away with the presumption that a child must be older than 12 to have a view. The importance of the need for that change came across powerfully at committee.
It is important to ensure that, in the court setting, the voice of the child is placed as a priority. That element has been strengthened through amendments to the bill. Protection for vulnerable witnesses is another important addition.
One big area that we concentrated on throughout the debate and which featured today is child contact centres. It is clear from the evidence that we received and from representations from members that there are real issues with contact centres. I hope that when this legislation is implemented, it will—[Interruption.]
The Deputy Presiding Officer
Excuse me, but it is terribly noisy in the back row.
Please continue, Mr Kelly.
James Kelly
The bill will strengthen the position of regulated contact centres. It will ensure the safety of children in contact centres and it properly sets out the responsibilities and accountability of those who are responsible for those children.
I believe that this is an important piece of legislation. There has been strong engagement from stakeholders and genuine working on the issues across parties, which I think sets a good example for legislation in future. It is strong legislation, and I hope that it will serve the interests of the child well.
18:50John Finnie (Highlands and Islands) (Green)
Like others, I thank everyone who has been involved in the process, including those who have given evidence and parliamentary staff for their assistance. It is very clear that a lot of consideration has gone into the bill, as we have heard from everyone. The amount of engagement is a credit to the minister. Clearly, one cannot engage early enough.
It is clear that we want to make good legislation and we want to address concerns that have been articulated by members across the chamber, who are familiar with them from personal experiences and through the constituency mailbag.
There was a series of amendments relating to the voice of the child. The voice of the child will be listened to differently now, because there will not be an arbitrary cut-off point at which someone says, “You are now in a position to express your views on your entire life”. The issue is also about the quality of people who are taking those views, of course. I look forward to the on-going engagement on child welfare reporters, because that will be absolutely pivotal in this process.
Often problems come about because people are misunderstood and not listened to. I make no apology for mentioning for maybe the third time the survivors’ group Yello! telling us—I will put my specs on, to make sure that I get this right—about a child who said:
“Think about what you are writing. You changed what I said.”
Someone’s future was going to be shaped by a misunderstanding—it was probably that, rather than a misrepresentation.
I appreciate, and the minister has alluded to the fact, that there is a family justice modernisation strategy and that there will be on-going review. Many of the issues that we have touched on in the debate, such as those relating to grandparents, foster parents and estranged siblings, are brought together if the interests of the child are at the forefront of all the deliberations.
For me, one of the important aspects of the legislation is the requirement for the court to explain its decisions to the child in a way that a child can understand. As I said when I was speaking on amendment 47, the approach is often to keep the children out of it—that is a phrase that we have all heard—even though the children are front and centre of the most important decisions that affect them.
As my colleague James Kelly said, the work on this bill could well be a model of how to do things: with a lot of engagement and a lot of consensus. I look forward to the continued development of legislation that brings children’s rights to the forefront, and to the Scottish Government moving for full incorporation of the UN Convention on the Rights of the Child.
In the meantime, I thank the minister for her engagement on the bill. It is a good bit of legislation. As I think that Liam Kerr said, it started off okay, but it is better for the energy that has gone into it.
18:53Liam McArthur (Orkney Islands) (LD)
Having participated remotely in stages 1 and 2 of the bill, it is nice for me to be in the chamber to take part in stage 3 proceedings. I join colleagues in thanking all those who helped us in our scrutiny by giving evidence, as well as committee clerks, the Scottish Parliament information centre and those who helped make remote involvement possible.
Scottish Liberal Democrats will support the bill. We recognise that in cases where a relationship breakdown turns out to be difficult or traumatic, it is invariably the child or children involved who pay the heaviest price. We recognise, too, the importance of ensuring that any decisions that are taken in those circumstances are based on what is in the best interest of the child.
For that to happen, the child’s views must be clearly heard and taken into account, and the bill will help to ensure that that happens more consistently and meaningfully. At the same time, we know that children often confide in third-party organisations and provide highly personal information that they are reluctant to see shared more widely. At present, that information can be shared without consent or indeed even consultation. I am therefore pleased that Parliament has supported the safeguards that I proposed, working with the minister, that will mean that that should happen only after the child’s views are taken into consideration and where it is proportionate.
It is also encouraging that, at stage 2, the committee backed amendments that I lodged guaranteeing the child access to advocacy support. That is fundamental if we are to have any hope of achieving the bill’s principal aims. As Dr Morrison and her colleagues told the committee,
“The strongest and most consistent request from children and young people in Scotland, who have been involved in contested contact proceedings, is to have a child support worker.”
Questions remain over the resources that have been allocated to underpin the legislation, particularly in the context of what witnesses referred to as the infrastructure for taking children’s views. That is why it is important that Parliament has put in place a review process that will, among other things, allow an assessment to be made as to whether children’s rights are realised in practice.
Another area where I must credit the minister and her officials for their constructive engagement is in relation to the issue of foster carers. The revised guidance provides reassurance that a range of relationships that are important to a child have more chance of being supported. In that context, I welcome the moves that have been made in relation to maintaining sibling contact, where appropriate, and strengthening the grandparents charter.
On expanding support for alternative dispute resolution, the regulation of child contact centres and other provisions, the bill moves us in the right direction. It has been a collaborative process, although of course there have been areas of disagreement. My amendment that would have limited the preparation of welfare reports to registered social workers excited some controversy, which is never necessarily a bad thing. That may have been a move too far for most, but it was good to have a chance to debate the issue. I acknowledge the bill’s aim of drawing on a wider pool of skills and expertise.
On the question of a presumption of shared parenting, I recognise the opposition to such a move, although I think that Parliament will have to return to that issue in due course.
For now, I thank those who have been involved in the scrutiny, and I confirm that the Liberal Democrats will vote for the bill at decision time .
The Deputy Presiding Officer
We move to the open debate.
18:57Rona Mackay (Strathkelvin and Bearsden) (SNP)
The bill is about giving children a voice, and I am happy to have been involved in working on what I believe is an excellent and much-needed bill. As the deputy convener of the Justice Committee, I thank the clerks, the bill team, the excellent witnesses and the third sector organisations that helped us to get the bill into the good shape that it is finally in. I thank the minister, Ash Denham, for all her work on the bill and for working with members from across the chamber. I know that, from the outset, she put her heart and soul into getting it right. I also thank the former convener of the Justice Committee, Margaret Mitchell, for all the work that she put into this hugely important bill.
I can say confidently that all the amendments that were lodged at stages 2 and 3 from members from across the chamber, whether or not they were ultimately agreed to, were submitted with good intention and with the best interests of children at their core.
A widely supported aspect is the removal of the presumption in the Children (Scotland) Act 1995 that only a child aged 12 or over is capable of forming a view. The removal of that presumption through the bill will give children a voice in a justice system that is designed for and by adults. For years, adults have underestimated the ability of children to express their views, the validity of their voices and the need for them to be listened to. I am delighted that that has finally come to an end through the bill.
I am also pleased about the regulation of contact centres. One of the most memorable parts of our journey in getting the bill to stage 3 was the evidence that the committee heard in private from young people from Yello!, which was an expert group advising the improving justice in child contact project. They had experience of being ordered to attend such centres, and their accounts were powerful and moving. One by one, we heard of the traumatic and unhappy experiences of court-ordered contact in which the young people had felt powerless to express what they really wanted. I was in awe of their bravery in telling their stories to a room full of adults. They have helped to shape the bill so that future generations will not have to endure their experience.
Sibling contact is vital and entirely in line with the recommendations in the care review, so I am delighted that amendments relating to that issue were agreed to. A huge part of the bill deals with statutory factors relating to risk and abuse. As ever, it is important to recognise the enormous contribution that third sector organisations such as Scottish Women’s Aid, Children 1st, the Children and Young People’s Commissioner Scotland and many others have made in shaping the bill. Those professionals are at the front edge of child protection and welfare, and their input is vital and invaluable. Theorising is fine, but there is no substitute for the daily experience of protecting and making life better for children and young people. If the bill helps to do that, we should all be proud to pass it at decision time today.
19:00James Kelly
I will make three points in summing up. In his opening speech, Liam Kerr pointed to the strong interaction that there has been on the bill. I place on record my thanks to stakeholders, all the witnesses who gave evidence to the Justice Committee, the Government minister and all the MSPs who played an important part in the process that has resulted in a good bill, which will be passed by the Parliament shortly. That will be welcomed by all.
My second point is that, as the minister said, the bill being passed is, in effect, only the start of the process. The real test will be ensuring that all the good speeches and amendments come good in practice. There is an important role to be played in ensuring that guidance is strong enough, and we will have to monitor that closely. Although some of the issues that came up in evidence and in the chamber have been addressed, we must consider how children interact with the courts and the experience of children in contact centres. We will also have to monitor the register of child welfare reporters and whether that reporting process improves by better responding to the needs of children who come forward. That is important.
My final point is about the debate about lodging amendments at stage 3, which relates to John Finnie’s amendment 47. Of course, it is best for the parliamentary process if members lodge amendments and make suggestions as early as possible. However, we are failing in our duty as parliamentarians if, when someone raises a substantial issue at stage 3, we do not engage with or vote for an amendment on the basis that it has been lodged late in the process.
The reality is that the Government has a substantial number of MSPs, so getting an Opposition party amendment agreed to requires the support of all Opposition parties. That is a strong safeguard to ensure that any amendment that is agreed to is not lax. I accept that members should lodge amendments earlier in the process in order to allow scrutiny, but if a gap is identified at stage 3, as was identified by John Finnie and other stakeholders, we should address it.
The bill is a good piece of legislation. However, as the minister said, this is only the start of the journey. Let us hope that the bill is a platform to better serve the interests of children in Scotland.
19:03Margaret Mitchell (Central Scotland) (Con)
I thank all those who took the time to give evidence on the bill. I pay tribute to the Justice Committee clerks and broadcasting staff for their hard work that enabled members to agree to the stage 1 report and dispose of the stage 2 amendments virtually. I also thank all the clerks with whom I have worked over the past four years for their support and assistance, and I wish Adam Tomkins well in his new role.
The bill focuses on, among other issues, one of the most contentious aspects of family law—namely, agreeing contact arrangements for children when their parents decide to live apart and separation is not amicable. Those children and young people are often the innocent bystanders, who suffer collateral damage and are frequently hopelessly conflicted. I feared, therefore, that the discussion with key stakeholders and the wider public debate during the scrutiny process might end up being acrimonious, but the opposite has proved to be the case. Why? Quite simply, it is because the bill concentrates on the interests of children and young people and, crucially, ensures that their voices are heard.
Furthermore, during the scrutiny process the bill has been improved through the removal of age limits in relation to a child being deemed mature enough to give a view. Provisions on the voice of the child have been strengthened by making it clear that children and young people must be able to express their views in the manner that they prefer.
Section 16, on investigations into breaches of court orders, now explicitly requires “the child’s views” to be sought. The bill also includes vital confidentiality provisions, to avoid young people’s trust being undermined and ensure that the best interests of the child must now be the “primary consideration” in considering the disclosure of information—including, for example, young people’s diaries.
However, it must be stressed that legislation alone will not ensure that the voice of the child or young person is heard or that contact centres will be able to continue to play their vital role, without adequate allocation of resources.
I turn now to the amendments on alternative dispute resolution. As a result of those amendments, the bill now provides for a viable mechanism to fund a pilot scheme to raise awareness of mediation as a possible alternative to court action. Mediation and early resolution help to prevent views from becoming entrenched, and reduce trauma. More than that, in the midst of a dispute about contact, young people frequently—and irrationally—blame themselves, believing that they have somehow contributed to the break-up of the family. Through mediation, those feelings and other misunderstandings can be addressed.
The amendments that have been passed ensure that the text of the bill confirms that the child’s voice will be heard and bespoke, family-focused solutions to parenting disputes will be put in place. However, merely signposting people to where they can find out more about mediation will not be sufficient to encourage parents even to explore the option. It was for that reason that the committee unanimously agreed that mandatory mediation information meetings should be piloted, with an exception in the case of domestic abuse.
The Children (Scotland) Bill represents a significant step in ensuring that children and young people’s wellbeing is at the centre of proceedings that concern their future when parents separate, and the Scottish Conservatives will take much pleasure in voting in favour of it this evening.
19:07Ash Denham
I thank those members who contributed to the debate on the bill, and I put on record my thanks to the bill team for their hard work and unstinting support of me as we developed the legislation. The debate has shown that improving the family courts remains an important issue for a number of members, and I hope that the bill will be the start of the process of making those improvements. I will address a few of the comments from members.
Liam Kerr and a number of other members highlighted the quality of evidence that was given by those with lived experience, and how that evidence has shaped what has ended up in the bill. That included the evidence on contact centres and domestic abuse, and on Liam McArthur’s amendments on confidentiality of information. That is how it should be, and I thank Liam Kerr for his comments on the collaborative nature of the process.
John Finnie said that the voice of the child is going to be listened to differently now, and he noted the “pivotal” nature of the regulation of child welfare reporters. That point was brought to life in evidence to the committee—which John Finnie cited—from a child who said that what had appeared in a child welfare report was not what they had said. I agree on the pivotal nature of that step forward. Rona Mackay also mentioned the voice of the child in her contribution, and commented that the bill gives children a voice in a justice system that is designed for adults.
James Kelly spoke about child contact centres and emphasised how welcome the regulation of those centres would be in order to ensure the safety of children who attend them. He said that the bill is an important piece of legislation, and I agree with him whole-heartedly on that.
Rona Mackay highlighted the evidence to the committee from young people on their experiences of child contact, and how that evidence has shaped what has ultimately ended up in the legislation. I worked hard to incorporate suggestions from the committee and external stakeholders on how to improve the bill. I have worked with members across the chamber, wherever I could, on areas of concern to them.
The policy that underpins a bill is a bit like a snapshot—a moment in time. We know what we want it to look like, and we line it up as best we can. I know that this is not the end of the road for family law, but it is a step forward, and a significant one at that.
The bill puts children’s views at the centre, and children can give their views in a manner that they prefer. Then, important decisions about what is happening to them will be communicated to them in child-friendly language.
The bill also includes measures to deliver proper participation to brothers and sisters in children’s hearings cases. Victims of domestic abuse will be further protected, as those who are convicted of domestic abuse will now be prohibited from representing themselves in court. Child welfare reporters will have to meet standards of training and experience. For the first time, contact centres will be regulated, and they will have to meet minimum standards of accommodation and staff training.
With the child at the centre, the Children (Scotland) Bill allows a child’s voice to be heard at a key moment—at a time when their life might have just been turned upside down and they are worried about what is going to happen to them in the future. It is very important that we listen to what they have to say.
When I met children who had gone through the family court system, one girl said to me, memorably:
“No one is listening to me.”
This evening, I can say to her and to all the children in Scotland who are going through the family courts at the moment or who will go through them in the future: I listened, the Scottish Government listened, and the Parliament has listened.
The Presiding Officer (Ken Macintosh)
That concludes our debate on the Children (Scotland) Bill. We will shortly come to a vote on the bill. I ask all members to open their voting app if they have not already done so, ensuring that they have refreshed the page. We will not vote just yet but, if members could do that now, we will hopefully be ready when we come to the vote. When you open the app, you should see no vote currently open.
25 August 2020
Final vote on the Bill
After the final discussion of the Bill, MSPs vote on whether they think it should become law.
Final vote transcript
The Presiding Officer (Ken Macintosh)
I hope that members will now have opened their apps. [Interruption.] Patience, Mr Halcro Johnston. Before we come to the vote, we should ensure that everybody has opened their voting app. Is anybody here still waiting for their page to show? It should indicate that no vote is currently open. If anyone does not have that page, they should raise their hand.
No one has indicated that that is the case, which is excellent. Hopefully it is all working online.
The first question is, that motion S5M-22505, in the name of Ash Denham, on the Children (Scotland) Bill, be agreed to. Are we agreed?
Members: Yes.
The Presiding Officer
We will move to a vote, as this is for an act.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 113, Against 0, Abstentions 0.
Motion agreed to,
That the Parliament agrees that the Children (Scotland) Bill be passed.
The Presiding Officer
As the motion is agreed to, the Children (Scotland) Bill is passed. [Applause.]
The final question is, that motion S5M-22528, in the name of Graeme Dey, on approval of a Scottish statutory instrument, be agreed to.
Motion agreed to,
That the Parliament agrees that the Social Care Staff Support Fund (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/188) be approved.
Meeting closed at 19:15.25 August 2020