There has, rightly, been strong interest shown in children and young people issues in the bill’s progress. Important context for the current group of amendments was provided in the children’s rights and wellbeing impact assessment for the bill, which noted that forensic medical examination is not relevant to many victims of child sexual abuse because offending is often not disclosed within the seven-day DNA capture window. Access to healthcare and support for recovery are, of course, vital—irrespective of when child sexual abuse is disclosed.
I listened very carefully to what Ms Mitchell said on what she seeks to achieve with her amendments, and I have sympathy with what she said. I will address those issues in a moment. First, however, I will speak to amendment 5, which is lodged in my name.
The committee recommended in its stage 1 report that the minimum age of 16 for accessing self-referral should become the subject of a delegated power, which would allow it to be varied in the future, should that become appropriate. That was a sensible recommendation from the committee, and one that I welcomed and was happy to accept. Amendment 5 delivers on that commitment.
Amendment 5 proposes that the age must be no lower than 13 and no higher than 18. Thirteen is the age under which the Sexual Offences (Scotland) Act 2009 rightly says any sex with a child is rape, which means that a child of that age is taken to lack any capacity to consent to sexual activity. Maturity among children of the same age varies, of course, but it is reasonable to think that, in general, children under 13 would not have sufficient capacity to self-refer.
At the other end of the age range, 18 is the age at which the United Nations Convention on the Rights of the Child says a child becomes an adult. I look forward to the Delegated Powers and Law Reform Committee’s scrutiny of the new power, should amendment 5 be agreed to.
I confirm that for the purposes of initial implementation of the bill next year—should the Parliament pass it—the Government intends that the minimum age for self-referral will remain at 16, as is provided for in the bill, in line with current self-referral practice in Scotland. The arrangement is referenced in the revised national child protection guidance that the Government has recently issued for consultation, which I highlighted to the committee in my letter last week.
I hope that there is consensus to support amendment 5. I encourage members and stakeholders, who strongly hold the view that a lower or higher age than 16 should be prescribed, to review and respond to the child protection consultation that I mentioned, so that a full range of voices can inform finalisation of the new national child protection guidance.
I turn to Ms Mitchell’s amendments. I welcomed her contribution in the October stage 1 debate, and know from her work as convener of the Justice Committee that she has a long-standing interest in children’s rights in the justice system. That interest includes, but is not limited to, support for the barnahus concept, which the Government also supports.
I understand the positive objectives that Ms Mitchell’s amendments aim to achieve. We all want to ensure that victims of child sexual abuse have access to age-appropriate and trauma-informed healthcare and recovery. I am conscious that the committee expressed in its stage 1 report the view that no specific amendments are required to support the Barnahus concept, or otherwise to make special provision for children and young people. I have consistently made clear the Government’s position that the bill, although it is not a barnahus bill, is in all respects barnahus ready.
Amendment 30 goes against the grain of the committee’s recommendation in paragraph 49 of its stage 1 report. The function of the proposed new delegated power is to allow a change, in the future, of the minimum age for access to self-referral from any age below the age of 16—from 13 to 15 years old—and any age above the age of 16 up to 80, but only following endorsement through affirmative regulations. Such regulations would, naturally, be consulted on widely, and a further children’s rights and wellbeing impact assessment would inform them. I am grateful for the support of the NSPCC, which has written to me and the committee to oppose amendment 30, arguing that it could put services under strain and even, potentially, put children at risk.
I am afraid that against that background I cannot support amendment 30, although nothing in my amendment 5 would prevent a reduction to 13 of the minimum age for access to self-referral, following consultation on regulations, should they ever be appropriate.
Existing health, social work and Police Scotland practices already deliver much of what amendment 31 seeks to achieve. To be of assistance to the committee, I have written to provide an advance copy of Scotland’s first-ever clinical pathway for children and young people who have experienced sexual abuse, which will be implemented in our health boards on 24 November, in advance of the formal launch in early December. As is set out in more detail in my letter, the chief medical officer’s task force developed the pathway in close collaboration with a broad range of key stakeholders, including the three regional child protection managed clinical networks across Scotland, paediatricians, Police Scotland, Social Work Scotland and, of course, our third sector partners.
The aim of the pathway is to ensure a consistent national approach to provision of child-centred and trauma-informed healthcare, following a disclosure of sexual abuse. The pathway describes the requirement for close working across all key agencies to ensure an holistic healthcare response at every step.
In that regard, the pathway, like the bill, is in keeping with the barnahus principles. I consider it to be unnecessary to legislate for work that is already in hand or which is covered by the existing child protection responsibilities of public bodies and professionals. The provisions of the bill deliberately leave the details of health board practice to guidance and the professional judgment of skilled and experienced healthcare professionals. I am grateful for the support of the NSPCC, whose view is that amendment 31 is not necessary.
Although I would never object to an amendment wholly based on technical issues, I should flag up to the committee that the proposed role of the appropriate adult, in the sense of the professionals who support the processes, would be unprecedented in the healthcare system. That could have unpredictable practical and financial effects.
The Rape Crisis Scotland national advocacy project, which is fully funded by the Scottish Government, exists to provide appropriate advocacy support to children over 13. In its briefing for the stage 1 debate, Rape Crisis Scotland acknowledged that the approach does not require a statutory underpinning. I emphasise the Government’s strong support for Rape Crisis Scotland and the advocacy project.
Nonetheless, amendment 31 has prompted me to reflect on what more the Government might do to support child victims to access services under the bill. Although I cannot support amendment 31, I undertake to give thought to how we can further support the NHS to implement the clinical pathway for children and young people, including through provision of on-going care and support for children and families, to aid recovery.
Amendment 32 proposes statutory guidance on matters that are outwith the remit of the chief medical officer’s task force. I mentioned the live consultation on the national child protection guidance, which contains specific guidance on child protection and forensic medical examinations. Guidance on confidentiality is most appropriately provided by employers and professional bodies such as the General Medical Council and the Nursing and Midwifery Council, so it would be inappropriate to give the Scottish Government a statutory role that would cut across that.
Moreover, the committee rightly sought views from the Information Commissioner’s Office on data protection matters; I fear that the proposal in amendment 32 also risks cutting across the ICO’s role. Therefore, I cannot support amendment 32.
In summary, I reiterate that I agree with the sentiments that inspired Ms Mitchell’s three amendments in the group, but I invite the committee to reject the amendments, for the reasons that I have given. I look forward to hearing comments, but I ask Ms Mitchell not to press amendment 30 and not to move amendments 31 and 32. If the amendments are pressed, I ask the committee to reject them and to support amendment 5, which specifically addresses the committee’s stage 1 recommendation.
The CMO task force is advancing preparations to implement the bill next year, should the Parliament pass it at stage 3, and I am concerned that Ms Mitchell’s amendments could have the unintended consequence of delaying commencement of the bill and of the time when the advantages of self-referral for victims can be realised.