Meeting of the Parliament [Draft]

Meeting date: Thursday, April 25, 2024

Official Report 932KB pdf

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Children (Care and Justice) (Scotland) Bill: Stage 3

The next item of business is a debate on motion S6M-12944, in the name of Natalie Don, on the Children (Care and Justice) (Scotland) Bill at stage 3.

As members will be aware, the Presiding Officer is required under standing orders to decide whether, in her view, any provision of a bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. ?In the Presiding Officer’s view, no provision of the Children (Care and Justice) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority in order to be passed at stage 3.?

We will move to the debate. I invite members who wish to speak to press their request-to-speak buttons.

14:56  

Should the Parliament agree to the Children (Care and Justice) (Scotland) Bill, Scotland will be taking a significant step forward in embedding the principles of the United Nations Convention on the Rights of the Child and keeping the Promise. The bill that is before us will ensure that children in Scotland are kept out of young offenders institutions and it will support safe, proven, care-based alternatives. The bill will enable children of all ages to be referred to the principal reporter so that they can access the protective framework of the hearings system.

Despite a youth justice emphasis dominating our discussions on the bill, we must emphasise that most children who need compulsory care do so due to welfare reasons, rather than as a result of offending. The bill also provides a robust package of support for victims and their families, which was strengthened at stage 2 and at stage 3. The bill will also make improvements for children who are involved in the criminal justice system, provide a better remittal framework between courts and hearings, strengthen measures around secure and residential care, including secure transport, and allow us to further regulate cross-border placements.

Those who have followed the bill’s progress will know that it received a lot of attention at stage 2. More than 220 amendments were considered in detail by the Education, Children and Young People Committee. That is not surprising; the bill is wide ranging, the reforms evoke strong reactions and the proposals are technical and intricate. I thank and commend the committee for its work, long hours and diligent consideration. I would also like to thank the stakeholders who gave evidence to the committee and shared their views to help to shape the legislation. I also thank members across all parties who have undertaken in-depth engagement and worked with me during stages 2 and 3. I believe that the bill before us demonstrates what can be achieved when there is good will.

There has been a lot of discussion on the bill’s measures to support victims. The Government is committed to supporting victims, especially child victims and their families, no matter which system—the hearings system or the criminal justice system—deals with an offence case. As members know, children’s hearings are about protecting and supporting children. It is not an adversarial or retributive system such as that in the criminal courts. We have opened up that system to the extent that we can, while respecting children’s rights and confidentiality constraints. The bill, as strengthened at stage 3, now strikes that balance.

I was delighted to work with Willie Rennie on his amendments, as agreed at stage 3, which will introduce a new national single point of contact for support services for victims and certain members of their families. The bill also enables the principal reporter to share information for safety planning purposes, not just when compulsory measures or movement restriction conditions are in place. Overall, the bill will deliver a much improved support and information package for victims, without putting the nature of the hearings system at risk.

The children’s hearings system, secure accommodation and other services already support many 16 and 17-year-olds. However, reforms to allow all under-18s access to the children’s hearings system have been a long time coming. The reforms were consulted on back in 2020, and again through the committee’s call for views, and it is heartening to see provisions come before members in the chamber today.

The integrated, welfare-based Kilbrandon ethos of our children’s hearings system is something that Scotland can rightly take pride in. All children—whether in need, at risk or in trouble—deserve our concern and support, and the bill will help to ensure that they get it.

Parliament will be aware that the original bill timetable was extended last autumn to allow the lead committee to consider updated figures and costs. Among other issues, members raised concerns about children’s panel capacity to accommodate more children. I repeat my assurances that provisions will not be commenced until systems and services are ready. Commencement plans will be co-produced with partners. An implementation and resourcing group, comprising delivery agencies and a wide range of stakeholders, continues to meet, and is already undertaking preparatory work in anticipation of this legislation.

Scotland should not be imprisoning children. That position is firmly rooted in the UNCRC, it is a key precept of keeping the Promise, and it is a principle endorsed at stage 1 in the lead committee’s report and by this Parliament. It is also a principle on which we are delivering. The number of children in young offenders institutions has dropped from 16 in 2021-22 to seven in the latest figures. Indeed, at the turn of the year, the figure was as low as one child.

The bill now ensures that no children will go to young offenders institutions. In line with our commitment to keep the Promise, our intention is to commence those particular provisions later this year. That will require secure accommodation capacity in more cases. I have listened carefully to views and concerns throughout the parliamentary scrutiny. Members can be reassured that providers, inspectors, local authorities and researchers have faith that Scotland’s highly rated secure accommodation services can care safely for all our under-18s who need that specialist support. Secure accommodation services confirmed to committee their track records in caring for Scotland’s young people most in need or at risk, and their readiness to accommodate this change.

There was a spirited and well-intentioned debate on legal aid yesterday. I reiterate to Ms Duncan-Glancy that, for jointly reported cases, legislation is not required through this bill. Regulations are under active consideration, and I am more than happy to continue to engage with her on that.

During the discussions between stage 2 and stage 3, the minister did not just say that regulations were under consideration, instead she assured me that regulations would be brought forward. Such an assurance is necessary to bring the bill in line with article 40 of the UNCRC. Will the Government take the opportunity now to put on the record that that will be the case, and to explain why it was not prepared to put such a provision in the bill yesterday?

As I said during stage 2 and stage 3, I do not feel that including it in the bill is required. I said that the regulations were under way, and I have emphasised throughout the process that I am more than happy to work with the member on that issue, as I see its importance to the bill.

The bill provides improvements in many other significant areas. Time precludes my covering them all here, but they include measures on secure transport, improvements to court procedures involving children, and powers to strengthen the regulatory framework around cross-border placements. All have the interests of children at their heart.

Should the bill be agreed to, it will make significant improvements to children’s rights, experiences and outcomes. Accordingly, I move,

That the Parliament agrees that the Children (Care and Justice) (Scotland) Bill be passed.

15:04  

My youngest daughter came to live with us when she was two years old. She was three months old when the decision was made that it was no longer safe for her to stay in the environment that she was living in, and she was moved to the first of her foster families.

When she was 18 years old, she requested her files. Those folders hold half of the information pertaining to her. The other files are still held by social services, because they contain too much information on other people, so it is impossible to provide her with a copy. There are thousands of sheets of paper in those files. Members should remember that those documents are primarily about a child who was only in care until she was two. It took a team of social workers more than a year to compile those documents for her.

Unfortunately, I could not get any files regarding my eldest daughter, because social services do not currently have the capacity to pull together those files for her. Looking at the six files that relate to my daughter who was two when she came to live with us, I can only imagine the reams of paper and documents that would need to be compiled for someone who came to live with us at the age of five—to do that would certainly be too much of a constraint on the time of our already overstretched social workers.

Social work is the first service to be blamed by society when abuse of a child goes unnoticed, but it is also the first service to be forgotten when everything is going well. Social workers look after every vulnerable person, regardless of age, in our society. They are underresourced, overutilised and stretched further than we in this Parliament accept or understand, and they are the linchpin for everything that we are trying to do.

Presiding Officer, I am sure that you are asking yourself what on earth that has to do with the bill in front of us. It has already been agreed that the Children (Care and Justice) (Scotland) Bill is primarily about adding two years—16 and 17—to the existing system of children’s hearings panels. No one in the chamber disputes that premise or goal—that is why we voted for it at stage 1. No one wants to see children in jail, and any suggestion of that is a political spin of the most opportunist kind.

The issue is not about the direction of travel but about how we get to the goal and how it is resourced. The bill in its current form is predicated on the first principle, which is that everything within the current system is working—but, unfortunately, it is not. The children’s hearings panel has to upscale: it needs to embark on a massive recruitment drive of volunteers. I think that the Government needs to set out in more detail how it will proceed with the proposals from the Mackie review, so that the process is as smooth as possible. That should be done before the bill becomes law.

We need hundreds more social workers. We have difficulty retaining the ones that we have, never mind recruiting more. The Government needs to look at the role of social workers and the conditions in which we are asking them to operate. The Government needs to find out why we have a retention problem and fix it, and that should be addressed before the bill becomes law.

We are in need of more foster carers. The latest Care Inspectorate report says:

“There were fewer new households approved ... than in any of the four preceding years”,

and that

“402 foster care households ... deregistered.”

I acknowledge all the challenges that Roz McCall is laying out, but the bill that is in front of us today has the purpose of keeping children out of prison. I am interested—are you going to vote against the bill?

Please speak through the chair.

I am looking at how the bill will operate in reality and, because of the issues that are coming forward, I do not think that we will be able to support it.

Foster families support social work and ensure that children who need respite care are suitably homed and not reliant on residential care facilities. That should have been addressed before the bill became law.

The Education, Children and Young People Committee produced an excellent report, and I commend the committee on its hard work. However, it must be said that the committee highlighted concerns about the sequencing of the bill. Those issues are not new and have not been properly addressed. Assurances that the issues will all be sorted out are not good enough. They should have been addressed before the bill is passed—as I am sure that it will today. The big worry is that we might find ourselves in a position where, for all the good intentions and warm words and the support from children’s groups, the system will simply not cope and it will be children who are let down.

Where do the victims come into this? Many of them are children themselves. In the current judicial system for 16 and 17-year-olds, for all its flaws, it is at least enshrined that the rights of the victim must be upheld. From cases detailed by the advocacy, support, safety, information and services together—ASSIST—project, we know that the current system, through the children’s panel process, does not support those rights. It leaves victims of abuse open to risk, and unable to assess the risk that they find themselves in or to get the relevant information to keep themselves safe.

I want to see a Scotland where children can be properly supported. The aims of the bill are not in dispute, and I want properly funded, fully resourced and supported teams of childcare professionals. Unfortunately, as with many things that this Government brings forward, the foundation is simply not there: the risks—that the implementation of the bill will falter, the rights of victims, particularly young victims, will not be supported, and the same pattern of law will continue—are still too prevalent.

15:10  

It is a pleasure to open the debate on behalf of Scottish Labour and, indeed, to have been involved in the passage of the bill throughout its stages.

Nothing is more important to our society than caring for the safety and wellbeing of our children and young people. I know that as a former primary school teacher and as a parent; I hope that people know that as human beings. We have an absolute obligation to support our next generation, because it is in the world that we give them that they have to grow.

The sad truth is that, in too many ways, Scotland’s young people are still being failed. The bill came with so much promise and so many good intentions. It came with a goal that—to echo the previous contribution—it is hard for anyone to disagree with. However, with the bill that is before us, shame is where we are now.

Scottish Labour supports young people, which also means that we support those professionals, adults and experts, and those charities, groups and families that stand around them. No one wants to see a young person end up losing their liberty; when that happens, it is a failing of what surrounds them. When that occurs, we need to ensure that the young person’s journey and experience is the very best that it can be, because an interaction with the judicial system or the children’s hearings system and the removal of liberty is a failure of what has gone before.

In the short time that I have, I want to pick up one element of what happened at stage 3—no doubt this will not come as a shock to the minister or, indeed, the Cabinet Secretary for Justice and Home Affairs, who is here today—which is the amendment regarding the UNCRC. We heard again in the minister’s opening speech today the powerful rhetoric about believing in children’s rights, believing in human rights and believing that the UNCRC should underpin decision making. Indeed, if we were only a few months from now, along with the statement that you made, Deputy Presiding Officer, at the start of the debate, about the Presiding Officer’s decision, potentially there would have been a statement about compliance with the UNCRC. All of that would be welcome.

When debating that amendment yesterday, I quoted the First Minister, who spoke about the dangers of lodging substantial amendments at stage 3 that would have

“a significant impact on legislation”.

That is what we saw yesterday—at very short notice, given the narrow period for lodging an amendment—with an amendment that immediately sought to alter the effect of the UNCRC, which had arisen because of Government research that highlighted a challenge and a risk with regard to prosecutions.

I do not want to be taken as undermining the importance of the discovery that the Scottish Government made. However, the UNCRC has been around for an incredibly long time, even if not in legislation, and we have had reassurances of the on-going work that is being done with regard to children and young people’s rights. Yet, it was only following stage 2—a few days prior to the stage 3 debate—that a fundamental change had to be brought forward because of a challenge and a risk of potential conflict between two human rights.

It disappoints me incredibly that the cabinet secretary said:

“The amendments recognise the uncertain and far-reaching impact of the UNCRC requirements on decisions to prosecute. They strike a fair and proportionate balance between protecting victims, serving justice in the public interest and upholding the rights of children who are involved in criminal proceedings. In doing so, they afford the prosecutor an opportunity to remedy”.—[Official Report, 24 April 2024; c 129.]

That is a fundamental shift in who is taking decisions with regard to human rights, and in particular, young people’s rights. It should be the responsibility of the court, not the Executive, in the widest sense, to take those decisions.

I realise that time is short, so I seek your indulgence, Presiding Officer, because I want to finish with a question.

I hear Mr Whitfield’s concerns very loudly, and I put that on record. Does he recognise that, in holding up the rights of victims, who could be children, it is imperative that we have an appropriate mechanism for the court to allow prosecutors one chance at a remedy to prevent cases from being deserted, which would not be in the public interest?

Of course, we are always challenged by the conflict between individual human rights, be it in relation to housing, healthcare, education or justice. We have a method of dealing with that, which has been used successfully for more than 20 years.

To finish, I ask a question that I think goes to the heart of the challenges that I find with the bill. We talk about the importance of care experience. We talk about the importance of children being around the table and being part of the discussions about the crucial issues. I ask the Government: how many children were involved in the consultation regarding taking away one of their rights?

15:16  

We will vote for the bill at stage 3 at decision time. We have reservations, some of which Martin Whitfield has eloquently set out, but I want to first talk about the experiences that drive me in relation to the bill. One was my visit to Polmont young offenders institution. It is basically a prison. The smell is overpowering, the doors are big and heavy with big locks and the guards have uniforms. It is no place for a child. I know that there are only small numbers of children there now, but we should end the placing of children there as quickly as possible. The experience was quite striking.

The second experience was just a few weeks ago, when I, along with the Education, Children and Young People Committee, met care-experienced children. They are frustrated and angry, and they feel that not much has changed. They want the Promise delivered, and they want it delivered yesterday.

The urgency of my commitment when I was party leader to abide by the Promise is my third experience in the area. That is why I am going to vote for the bill at decision time. We should have care, not prison. We should have hearings, not courts. We should be treating children as children.

The reservations are clear. Martin Whitfield set out the process for getting there. I would rather have tested other legal opinion about what Martin Whitfield expressed. I am grateful that the cabinet secretary took time out to make contributions yesterday to give us some reassurance. I am unhappy about the change, and I think that she knows that we are all unhappy about that, which is why I voted against those amendments yesterday.

I am also concerned about the shortage of money throughout the system, which is already under pressure. The minister was initially heavily criticised for the financial memorandum, and it was improved later on. However, we are also short of social workers, as Roz McCall set out. The system is under strain, and we need to ensure that we have some resolution to that before we have effective implementation.

Will the member take an intervention?

I have only four minutes, so I cannot take John Swinney’s intervention, if he does not mind.

My amendments are an important part of my contribution to the bill. The single point of contact for victim information to allow for information to be shared and for safety planning purposes is very important to ensuring that the provisions that are available in the children’s hearings system are broadly the same as those in the adult criminal justice system. Because that extends to all children in the children’s hearings system, it goes beyond the cohort of 16 and 17-year-olds. It goes beyond compulsory supervision orders and movement restriction conditions.

That is quite a significant step, and the minister was not in favour of it at the start. However, I am grateful for the fact that she moved and that she was persuaded by her colleagues Stephanie Callaghan, Ruth Maguire, Michelle Thomson and others. Their, I must say, careful exercise of power made sure that the minister moved and negotiated with me to come up with what I think is quite a satisfactory solution, which is supported by Victim Support Scotland and the other organisations, as well. It is consistent with the Kilbrandon principles, which I was keen to adhere to.

When it comes to information sharing just now, only 14 per cent of victims access that very limited information. We need to ramp that right up to ensure that many more people access the information that they need for safety planning purposes. I am really pleased that those amendments were agreed to, and I think that an important piece of law will be forthcoming.

However, implementation is what it is all about. The minister knows that, and I hope that she has got the commitment from her Cabinet colleagues for financing it, because it will need time, sequencing and a lot of money. Everybody is watching. The social workers are watching, the children’s hearings system is watching and, most important of all, the care-experienced people are watching. There is great expectation that it will work—and work effectively—and that is why the minister needs to ensure that it does work.

15:21  

I acknowledge the work of committee colleagues. Their willingness to work across party lines for the benefit of our young citizens was powerful and has brought about positive changes to legislation that will be meaningful to those whom we are here to serve.

As I did yesterday, I thank the minister for the distance that she travelled on the issues that the committee raised, for listening generously and for providing me and colleagues with amendments to the bill that helped to achieve the changes that we wished to see.

I give sincere thanks to all those who provided the committee with evidence, expertise and experience. In particular, I thank Victim Support Scotland, Scottish Women’s Aid, the ASSIST project and others who highlighted with clarity those whom we would be letting down if we did not think of all children and young people and not just those who are involved in the system because of their harmful behaviour.

One of the voices that has stayed, and will stay, with me is that of the parents who had lost a child to murder and asked for anonymity for their child. I am sorry that the bill was not the place to get change, but I welcome the Scottish Government’s commitment to consult on the matter. I will not forget their voice, and I promise that I will do all that I can to further their ask that the surviving siblings of murdered children can grow up free from the significant impact of continuing traumatising press and social media coverage.

The Children (Care and Justice) (Scotland) Bill will uphold the Promise by improving outcomes for children and young people who are navigating care and justice, ensuring that children who come into contact with care and justice services or come into conflict with the law do so in an age-appropriate system and setting.

The deprivation of liberty of a child should be a last resort and should be used only for the shortest period of time. It is true that children in secure accommodation and custody continue to be some of our most disadvantaged and excluded children in society. Many have already faced multiple adverse experiences, including abuse, neglect, household dysfunction, instability, community violence, deprivation, loss or bereavement, each of which brings associated trauma. Many such children have significant mental health, emotional or wellbeing needs, which are often undiagnosed, and they do not have the access to support that they require. Where appropriate care and support are provided, that can encourage healthy development and improve current and future outcomes and opportunities to live a fulfilling life in the community.

Although secure accommodation and young offenders institutions can both deprive children of liberty, the environments are distinctly different. Safe and trusting relationships are the cornerstone of promoting children’s healthy development, but those are extremely difficult, if not impossible, to develop in a custodial environment such as a young offenders institution.

Children should not be in prison. The bill ends the imprisonment of children in Scotland. Evidence, as well as common decency, shows us that, when children come into conflict with the law, providing them with the best support to address the causes of their behaviour helps them to reintegrate, to rehabilitate and, importantly, to desist from harmful behaviour. That, in turn, prevents further harm in our communities.

I think that it is fair to say that the balance of the bill on the rights of all children has been greatly improved through the committee process. Significant improvements have been made to the information-sharing provisions for victims, and provisions have been included on the provision of support for victims in the children’s hearings system, on the establishment of a single point of contact service and on reporting duties, which will ensure that there is accountability and an opportunity for scrutiny. The bill represents significant progress in realising children’s rights, and I will be proud to vote for it tonight.

15:25  

Andrew was aged 14 when he was abducted and held in a disused building by four teenagers whom he did not know. The gang tied him to a chair and bound his wrists. They struck him with a stick and pressed it against his throat. Andrew, which is not his real name, was ordered to apologise for his sexuality. He was told that, in Iran, he would get his head cut off for being gay. His friend was told, “You’re next,” and a container of flammable liquid in the room added to Andrew’s distress.

That terrifying ordeal was filmed and shared, and it ended only when the gang fled at the sound of sirens. That incident happened in the west of Scotland last June. Police Scotland, to its credit, apprehended the four suspects, and Andrew’s parents were informed that they would appear in court. However, that did not happen. The Crown Office decided that they would instead be referred to the children’s reporter. Nobody told Andrew and nobody told his parents. They had no say.

I wrote to the Lord Advocate, who conceded that what took place was “clearly a serious offence”, only it was not treated as such. After nine months, Andrew’s parents were told that none of the suspects would even be subject to a panel hearing. They are deprived of basic information that they would have received had the case gone to court.

Three months ago, Andrew was attacked again. He was beaten unconscious. The assailant fled but returned to film his handiwork. Andrew’s parents have again been told that that act of sickening violence is also a matter for the children’s reporter. I truly cannot imagine the trauma suffered by Andrew, or the distress, confusion, helplessness and even rage of his parents.

Will the member take an intervention?

I am sorry, but I have only four minutes. If I have time, I will come back to the member.

The focus of the bill is on the rights, interests and welfare of young people in the criminal justice system. No one wants to unduly criminalise young people who commit youthful misdeeds. Those who make false accusations about that do themselves a disservice. However, I ask, without apology: what about the rights, interests and welfare of victims? Like Andrew, they are often young people.

The concepts of punishment and deterrence appear to have become alien. Excuses are made, no matter how heinous the crime, and mitigation often becomes justification. Criminal justice proceedings are then rebadged as welfare hearings. Some MSPs may pat themselves on the back today and applaud when the bill is passed, but they should know that its passing will result in more cases like the one that I have just described, in which children are harmed by crime only to be further harmed by the system. The Scottish National Party Government needs to be honest with the public about that.

This morning, Andrew’s mother told me:

“This has consumed us. We cannot come to terms with this happening in Scotland in 2024. Serious crime is being downgraded.”

Andrew’s parents wrote to the Lord Advocate and told her:

“The clear message to us, and to our son, is that people can do what they want to him because he just doesn’t matter enough.”

Well, Andrew does matter, and for him, for his family and for many other voiceless victims, and for the other reasons that have been set out today by my colleague Roz McCall and by Martin Whitfield, we will not vote for the bill today.

15:29  

I have had the duty and, in part, the pleasure of engaging with the bill since its outset, through the work of the Education, Children and Young People Committee and of the Finance and Public Administration Committee. Like others, I fully agree with the bill’s core and founding principle that children should not be in prison. Indeed, Willie Rennie set that out well and eloquently.

I was deeply affected by the Education, Children and Young People Committee’s visit to Polmont. There is no doubt that it is a prison. It was the first time I had ever been in a prison and it met all the television, film and literature stereotypes for how frankly terrifying a place like that can be.

I was also deeply affected by a visit to a secure care centre, which was also a moving experience, if a little different. Parts of the secure care sector still have many of the characteristics of imprisonment. Children arriving at that centre, some from far-flung places across the United Kingdom, find themselves in a holding cell—I can call it little else. I was moved to tears by seeing, in that cell, a child’s duvet and a single teddy bear. That juxtaposition showed me the level of fear and discomfort that a young person would feel going into that place with its very small comforts.

The bill is no great transformation. I believe that it will be the right thing for children not to be in prison, but secure settings are also incredibly challenging for young people. We must recognise that those centres, as other members have said, must be well resourced and appropriately supported, but we have concerns that that has not been sufficiently addressed in the bill.

Throughout the passage of the bill, I have raised the issue of cross-border placements. I did so again yesterday when I moved my amendment, and I was disappointed that the Government saw fit to vote against it, although the minister set out some reasons for doing so. I recognise those reasons; we have engaged in correspondence; and the minister has taken time to meet me.

In a briefing ahead of stage 3, The Promise Scotland stated that the existence of cross-border placements

“skews the landscape for Scotland so that there is a lack of strategic planning for children, meaning that children can be put in inappropriate settings if demand has spiked”.

I could not identify any accompanying evidence for that claim. Indeed, the Education, Children and Young People Committee heard substantial evidence that it is precisely those cross-border placements that are ensuring the financial sustainability of the sector in Scotland. The rate paid for a child on a cross-border placement is higher than the Scotland Excel framework rate, which means that the sector in Scotland is, to a very large extent, reliant on cross-border placements to keep the lights on. In the words of one professional from the secure care sector:

“Without that income subsidy, no service for Scottish children would exist.”—[Official Report, Education, Children and Young People Committee, 29 March 2023; c 12.]

I think that some progress was made yesterday when the minister spoke about making judgments on a case-by-case basis, but the prevailing policy direction, as expressed by The Promise Scotland and others, indicates that there is still a drive to take the number of such placements lower. We have not had any assurance about that process, but I find it difficult to see how the sector would not be further exposed as a result.

The sector is already grappling with significant and extreme funding and resourcing challenges. A letter that was provided to me this week by the secure care sector shows that, despite a Scottish Government commitment in September 2023 to a wage of £12 an hour for workers in that sector, the Government has failed to deliver on that assurance. The sector has no ability to plan its finances for the year ahead; it has been told that it has to meet that figure, but no funding has been delivered for that and there is no clarity about when any such delivery will actually happen. It is a precarious situation and, given where I started my speech, I do not find that acceptable.

15:34  

As a member of the Education, Children and Young People Committee, I welcome the opportunity to contribute to the stage 3 debate on the Children (Care and Justice) (Scotland) Bill. I thank the committee clerks and our witnesses for their input to the bill, and I also thank the minister for her engagement and the other committee members for keeping their focus firmly on the rights of all the children who will be impacted by the legislation. My parliamentary office backs on to the Royal Mile primary school, and hearing the pupils as they play is a lovely reminder of our duty, which is to make Scotland the best possible place for our children to grow up in.

The bill is important. It supports children’s rights in line with the principles of the UNCRC and the ethos of getting it right for every child, and it represents a step forward in the Scottish Parliament’s commitment to keeping the Promise.

The journey to stage 3 has sometimes been challenging, but the bill represents a big step in advancing children’s rights and fostering a justice system that truly serves our youth. Like others, I want to mention our committee visit to Polmont prison. It was painfully clear that such facilities are entirely unsuitable for children. These young individuals need comprehensive support for their wellbeing, not harmful environments that fail to meet their developmental and emotional needs.

I want to spend the rest of my time talking about the victims and about safeguarding their rights. It is crucial to prioritise the fulfilment of children’s rights, whether they have caused harm, whether they have been harmed, or both. Achieving that delicate balance was certainly a focal point of our committee’s scrutiny, and I think that the bill gets the balance right.

Access to information is vital for victims as it allows them to plan for their safety and helps them recover from traumatic experiences. I am grateful to Willie Rennie for working hard to reach agreement and for lodging his amendments, which will empower the principal reporter to share information that is so critical for victims. What is more, the changes will ensure that victims have on-going access to information without the need for repeated requests, which will provide them with the consistent support that they deserve. The establishment of a single point of contact will make it easier for children and young people to access the information that they need to safety plan. It will also enable them to exercise their right to recovery, allowing them to reclaim their agency and make informed decisions, and paving the way to healing and justice.

It is imperative that we hold ourselves accountable. I thank my colleague Ruth Maguire for her amendment that will place a duty on ministers to conduct thorough assessments of the services’ effectiveness in collaboration with key agencies that are involved in the children’s hearings system. By actively listening to the experiences of those who use the support services, we can genuinely ensure that we get it right for every child.

The advancement of victims’ rights could not have been achieved without the tireless efforts of stakeholders such as Victim Support Scotland, Children 1st, Scottish Women’s Aid and young people themselves. I am grateful for the engagement on and unwavering advocacy for the safeguarding of victims throughout the bill’s journey. Delivering for our children through the legislation will have its challenges. We have heard different views from across the chamber, but the dedication to placing children and young people at the forefront of our efforts has endured.

I whole-heartedly stand behind the bill.

We move to the closing speeches.

15:38  

Scottish Labour whole-heartedly supports the intentions to improve children and young people’s experiences and outcomes, to strengthen their rights, and to stop putting children in prisons. That is why we voted for the bill at stage 1. However, in considering a bill at stage 3, we must be driven not only by intentions but by the bill’s detail and its ability to deliver on those intentions. It is not enough to stop locking children up; we also have to give them a fighting chance to thrive in this world, with all the scaffolding that they need to do that. The bill does not include enough measures to guarantee that, and it is on that basis that Scottish Labour cannot support it today.

Legislation drives action and resource. It provides leadership on what Parliament expects to be delivered. In this case, I believe that we all expect improved child rights and wellbeing, joined-up agency working, a focus on victims’ rights, access to justice and a fully supported workforce to deliver that. When the going gets tough on the front line—in many ways, as we all know, it is tough right now—the letter of the law matters. I have seen too many good intentions, strategies and plans not being delivered. The letter of the law matters, and I make no apology for working hard to make sure that the bill included all that it needed to.

During yesterday’s debates on amendments to the bill, and also in today’s debate, members including Ruth Maguire and Willie Rennie and the minister have highlighted the importance of the Kilbrandon principles. They assert that the best interests of the child, their wellbeing and support for them must be central to the system. Sadly, however, attempts from MSPs across the chamber to add to the bill mechanisms to ensure that that is the case were rejected.

The failure to back amendments on training means that such training will not be there for the front-line professionals who deliver the new and nuanced support that is necessary to address the complex needs of the children whom they work with.

The bill does not go far enough to address Sheriff Mackie’s recommendation that more must be done to uphold the rights of children and young people to legal support. That was another area that the Government could have addressed by supporting one of my amendments yesterday. Without changes to ensure access to legal aid for all, the bill falls short of UNCRC compliance. Anything short of automatic access is a dereliction of the duty to abide by article 40. The figures are clear that the current notification method is not working. My amendments could have addressed that. We are clear that every bill that is brought forward that relates to children and young people should have rights compliance at its heart, and such a glaring omission to address compliance issues in this piece of legislation calls into question whether the Government will deliver the UNCRC in relation to that.

Lastly, I will talk about the capacity that is needed to get this right. The whole system—social work, secure care, justice advocacy and all—must be better resourced in staff, support and training. It does not yet have the capacity to deliver on the aims of the bill, and many stakeholders have said that that could set back progress. Social Work Scotland said that, if there is not enough capacity,

“the bill will not achieve its purpose and risks placing further pressure and stress on an already stretched workforce, impacting further on recruitment and retention and capacity to meet the goals of Promise”.

Had the Government listened to pleas from committee members and stakeholders on the importance of sequencing, it would have addressed the Mackie recommendations on the importance of consistency in panel members and chairs, requiring more panel members before it brought the bill forward. In not doing so, it has allowed capacity to become a concern. I attempted to introduce a safeguard via amendments to delay the commencement of the legislation until support was in place, but those were voted down.

There were multiple opportunities yesterday for the Government to ensure that capacity in the system was addressed, but the reality is that it did not support that. It has failed to guarantee training for all staff, leaving them with new duties without the support to address those. It has failed to fully include a victim voice in hearings. It has failed to plug gaps in legal aid. It did not guarantee that there would be enough panel members. It did not put in place provisions to address recruitment concerns or support agencies to work together.

Worst of all—this is the bit that I find most difficult—the Government did not make it clear that the UNCRC is the driver, and it missed an opportunity to make provision for that in the bill through the amendments that we lodged. The Government then lodged an amendment that, as Martin Whitfield outlined yesterday, could undermine it.

In light of those shortcomings, sadly, we cannot support a bill that fails to give the care and justice system the legislative reform and capacity that is needed to deliver properly on its principles.

I will close, Presiding Officer. As we consider what the future of Scotland’s children might look like, we must remember that their voices must be heard, their needs must be met and their rights must be upheld. It is incumbent on us to champion and do the right thing for those who struggle to be heard. The promises that are outlined in the children’s hearings review must not be neglected—

Ms Duncan-Glancy, you need to conclude, please.

They demand concrete action. We must prioritise wellbeing and children’s rights.

15:43  

The principles of the bill are really important. What it seeks to do is key to delivering on the Promise and on our promises to young people. That is why my party—and the Parliament—voted for those principles at stage 1. However, as Roz McCall succinctly put it, the issue is not about the direction of travel but about the way in which we get there. As Martin Whitfield put it in an article today,

“this is yet another well-intentioned ... government bill that is incompatible with the situation on the ground.”

The Government has a concerning tendency to propose legislation that in principle is laudable yet in execution is utterly unworkable, is subject to legal challenge or has unintended consequences.

Yesterday, I raised the removal of sections 12 and 13. I shall not rehearse the arguments, but what is key is that the stage 1 report missed the issue. At stage 2, when I asked about restrictions on press freedom, the minister reassured the Education, Children and Young People Committee that she had “no concerns” at all. I asked whether she had taken legal advice, and she reassured us that she had taken legal advice on every section. However, yesterday, she removed sections 12 and 13, saying that she had been unaware of how prejudicial the original drafting was, because, basically, no one told her.

Leaving aside what the minister is suggesting about the legal advice that she was given, and the fact that surely the Government is responsible for thinking through the consequences of what it drafts, it is a fair point. The first report missed the fact that the Government had drafted a shocking and utterly unworkable clause, which the minister had not understood sufficiently to remove at stage 2. Had it gone through, it would have likely contravened the European convention on human rights and prevented the bill from operating.

This afternoon, we have heard that huge concerns remain about the bill and its implications, because it does not exist in a silo. Roz McCall said:

“The children’s hearings panel ... needs to embark on a massive recruitment drive of volunteers. ... Hundreds more social workers”

are also needed and

“We are in need of more foster carers.”

She told us, in powerful testimony, of the current capacity of social services.

Russell Findlay talked powerfully about the victim’s view and picked up on Victim Support Scotland’s submission that people who are harmed by 16 or 17-year-olds will have their rights to information and support removed by the bill.

We heard evidence that social workers support the principles and—like us—they want this to happen, but social work faces a huge turnover of staff. The bill will pass while providing no more money, leaving them to patch things together.

The fact is that years of Scottish National Party cuts to vital services mean that many of the changes that are proposed in the bill will not be able to be put into practice while Scotland’s local authorities and social work departments struggle with cuts to services. Michael Marra called their position “precarious”, and Pam Duncan-Glancy also picked up on that point. The finances are hugely important, and I am not convinced that any of us has confidence that they will be forthcoming—but they are not even the sole concern. Pam Duncan-Glancy also has the worry, which I share, that the system simply does not have the capacity to do what the bill aims to do, and therefore it will put more stress on the workforce.

Martin Whitfield picked up a process point. He told us that substantive amendments around the UNCRC were brought forward at stage 3. That is a fundamental change that was laid before the Parliament because something—that is, something else—seems to have been missed at an earlier stage. That worries me. What else might have been missed and not been picked up by the minister?

Parliament is supportive of the principles of the Children (Care and Justice) (Scotland) Bill. I think that I speak for us all when I say that we want those principles to be enacted. Stephanie Callaghan rightly reminded us that we all want to make Scotland the best place for young people to grow up in. However, member after member has warned Parliament, at the end of a very long process, that they do not have confidence that the bill is drafted in such a way that, as an act, it will achieve that. The minister assured us at the start that the bill that she proposes today shows what can be achieved with good will, but good will does not an effective and robust law make.

Stakeholders and speakers have made strong representations that effective and robust law is not what is being presented here, and that the bill will not achieve the principles that we all want. In fact, the unintended and negative consequences might well be considerable. Accordingly, I will not vote for what I think will prove to be an unworkable, flawed bill that will ultimately let down those who we all want to protect and that will fail to deliver the principles that we all want.

I call the minister to close on behalf of the Scottish Government.

15:48  

This has proved to be a spirited and insightful debate. I have no doubt that members across the chamber have the best interests of Scotland’s children at the forefront of their minds. It is fair to say that the issues that we have debated and their effect on children’s outcomes, on victims, on communities and on services elicit strong views from members.

Some opinions that have been expressed relate to big-picture fundamental principles and concepts, while others drill down into the important detail of delivery and regulatory systems. The diversity of the issues that draw that commentary reflects the scope, scale and positive potential of the bill.

I turn to some specific issues that have been raised this afternoon. I thank Ruth Maguire for her contribution, and I agree with her entirely that children should not be in prison. Many members have talked about their difficult experiences when visiting Polmont. I know that concerns have been expressed about raising the age of referral, but I want to take a moment to emphasise how important I believe that step is.

When a child offends, we want to do everything that we can do to ensure that such behaviour is not repeated. Rehabilitation is absolutely key, but we need also to remember that there are welfare concerns about most children who commit offences. Allowing all children access to the hearings system and, equally, to secure care rather than young offenders institutions, will give our young people the most appropriate support to aid their rehabilitation, reintegration and assistance, which should prevent future harmful behaviour.

I thank Roz McCall for her personal reflections; I agree with some of her sentiments about social work. If I might, I will give a reflection of my own. I had a social worker from when I was 13 until I was about 16. She was fantastic, and she helped me when I needed it most. As proof of how much she cared, on the day after the Scottish Parliament election in 2021 I received a message of congratulation from her, nearly 17 years after I had lost contact with her. I absolutely understand, value and respect the work of social workers to the highest extent.

The Scottish Government is taking action to improve recruitment and retention of social workers and to improve their experiences. We have developed a joint workforce improvement plan, which is informed by the voices of social workers and others. We have formed a joint social care and social work services task force to deliver improvements. For rural areas, a rural workforce recruitment strategy advisory group has been set up to examine the challenges in remote and rural areas. Other work is on-going.

I put on record my thanks to the minister for sharing her personal experience, which is important for all of us to have heard. Will she also set out when she will publish the plan for the social work workforce?

I do not have that detail to hand, but I will be happy to get back to Ms Duncan-Glancy when I do.

As I advised in my opening speech, the finances have been updated in conjunction with our delivery partners. That aspect will continue to be monitored as we look towards implementation. Costs will be factored into Government budget profiling in the normal manner for any piece of legislation.

I am so sorry to hear about the specific case that Russell Findlay mentioned in his contribution. He asked about the rights of victims. I re-emphasise that the changes in the bill will strengthen such rights. I have heard loud and clear the concerns of stakeholders and committee members on victim support and victims’ rights. I emphasise again that the Government is committed to supporting victims, no matter which system deals with an offence case. Establishing the single point of contact and the other actions that we have taken during the bill’s progress will help with that.

Ruth Maguire mentioned anonymity. I want to make it clear that I have every sympathy with the suffering of families who have experienced the loss of a child. Following a round-table meeting with MSPs and stakeholders, and having met bereaved families, the cabinet secretary is now considering how a consultation could be framed and the timescale for its publication this year. As Ms Maguire noted, the bill is not the place for that, but I assure members that work is on-going in that space.

Another issue that members have raised is capacity building, which, along with system readiness, is absolutely key. We have convened a resourcing and implementation group with more than 30 delivery agencies. That group met three times in 2023 and met again in February. Its work, and that which is happening through other engagement opportunities, will help us to continue to assess the most current cost forecasts and to factor those into Scottish Government budget profiles for the coming years.

Although the bill is likely to lead to more hearings being held, the number of hearings is currently significantly lower than it was at its peak. The reforms will not take hearing numbers anywhere near the previous levels.

On panel numbers, which I touched on yesterday, we cannot rely on overall numbers to assess system readiness. They offer no useful guide to Parliament. In certain areas, some volunteers are able to dedicate more time than others are. I have trust in our implementation group, which is working on capacity building and system readiness to take the legislation forward.

I am really disappointed to hear that the Conservatives and Labour will not be voting for the bill, which really makes me question those parties’ commitment to the Promise.

Martin Whitfield rose—

The minister must conclude.

In closing, I again thank Parliament for the diligent scrutiny that the bill has undergone. I thank members of the Finance and Public Administration Committee, the Criminal Justice Committee and the Education, Children and Young People Committee. The diligent scrutiny of the bill by committee members and others has helped to shape the final form of the bill—as it should.

I thank the committee clerks, who have worked so hard to support the work of the committees, and I thank those who have supported members in scrutinising and improving the bill.

Finally, I thank my excellent officials for working so hard on what has been a demanding and challenging piece of legislation, and for introducing it to someone who was, at the time, a new minister who had little experience of some of the areas covered.

The Scottish Government is clear that the Children (Care and Justice) (Scotland) Bill makes significant and necessary improvements to further embed the UNCRC and to keep the Promise. I commend the bill to Parliament and encourage members across the chamber to support it.

That concludes the debate on the Children (Care and Justice) (Scotland) Bill at stage 3.