We have been making good pace, convener, so I hope that you and committee members will forgive me if I take some time on the amendments in this group.
Amendments 18 and 25 are a proportionate response to the recommendation in the stage 1 report on section 8(6)(d), which provides that, where a sheriff is
“considering making provision in an order which would relate directly to a child”,
the sheriff must take into account
“any views of the child of which the sheriff is aware”.
In its report, the committee recommended that I
“ensure that the provisions in this Bill are consistent with the Children (Scotland) Act 2020 and other relevant legislation.”
It is important to note a fundamental difference between the 2020 act and the protective order scheme in the bill. Court proceedings affected by the 2020 act’s provisions that relate to the views of children include contact and residence disputes, adoption and permanence cases and children’s hearings cases. Proceedings of that nature are always and inevitably going to directly affect the children to whom they relate; in contrast, DAPNs and DAPOs are concerned with protecting persons aged 16 or older from the risk of domestic abuse and might or might not contain provisions that directly relate to a child. A DAPO can make provision that relates to a child, but only where that is necessary for the purpose of protecting the person who is at risk.
As members know, and as I have stressed throughout today’s meeting, DAPNs and DAPOs are short-term, emergency notices and orders. As such, I am not persuaded that adopting in its entirety the approach taken in the Children (Scotland) Act 2020 would be appropriate. In the debate on an earlier grouping, I explained that we need to strike a careful balance between acknowledging the rights of all children to be heard effectively and the constraints of a scheme that is designed to react swiftly to situations in which adults are at risk of domestic abuse.
It is important to reflect on the committee’s words. In paragraph 247 of its stage 1 report, the committee was clear:
“The legislation must work in practice if it is to be effective even if it is only used, as the police said, in exceptional circumstances. Passing legislation that cannot easily be used will not help victims of domestic abuse.”
On balance, I am persuaded that a proportionate response would be to have a duty on sheriffs to
“take such steps as are reasonable in the circumstances to give the child an opportunity to express views”
where
“the sheriff is considering making provision in an order which would directly relate to a child.”
Amendment 18 amends section 8 to provide for that.
On what steps it would be reasonable to take in the circumstances, the intention is that, where it is reasonably possible for the sheriff to give the child an opportunity to express views in the time available before making a DAPO, that should be done. However, where that cannot reasonably be done before making a DAPO, the sheriff is not prohibited from making provision directly relating to a child where that is necessary for the purpose of protecting the person at risk of domestic abuse. The sheriff is then obliged to take into account any views of the child of which they are aware, whether as a result of the steps taken to give the child an opportunity to express their views or otherwise. In taking account of the views of the child, the sheriff must take into account the child’s age and understanding.
Amendment 25 makes equivalent provision where the sheriff is considering an application to extend, vary or discharge a DAPO.
Amendment 19, in the name of Rhoda Grant, also seeks to address the concerns that were expressed by the committee about how the views of children will be considered by the court. It creates a duty for the sheriff to provide an opportunity for the child to give their views in
“(i) the manner the child prefers, or
(ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference.”
That would apply in any case where the sheriff considers that there is a child whose interests are “relevant” to the making of an order or
“where the sheriff is considering making provision in an order which would directly relate to a child.”
I have sympathy with the intent behind amendment 19 but I am deeply concerned that placing an absolute requirement on a sheriff to seek the views of the child in every case where they are considering the matters under section 8(6)(c) and (d) of the bill carries a serious risk of unintended consequences. As members will be aware, court decisions relating to, for example, child contact and residence can take a considerable amount of time to be determined by the courts. In contrast—and as supported by the committee—DAPOs are short-term, emergency orders that are intended to protect someone at immediate risk of domestic abuse, and they require to be made very quickly. The maximum time that an interim order can run for before a decision is made on a substantive order is three weeks.
Obtaining views from children on sensitive matters such as allegations of domestic abuse concerning their parents has to be done sensitively and professionally by people with expertise in doing such things. For that reason, it is important that, rather than there being the absolute requirement provided for in amendment 19, the sheriff is able to consider whether it is reasonable to seek the views of a child, as would be the case under amendment 18 in my name, taking account of all the facts and circumstances of the case before them, including the timeframe in which a decision about a DAPO has to be made. That should provide a certain level of flexibility and ensure that a DAPO can still be made where necessary for the protection of a person at risk, even if it has not been possible within the timeframe to give the child an opportunity to express their views.
Amendment 39 makes an equivalent change to the provision concerning variation, extension and discharge of DAPOs. I have the same concern about amendment 39. I prefer my amendment 25, which gives a proportionate response to the committee’s concerns.
I understand that amendments 18A and 25A in the name of Rhoda Grant have been lodged as alternatives to amendments 19 and 39. Those amendments, which would amend my amendments 18 and 25, seek to introduce a presumption that a
“child is capable of expressing a view”
in relation to the making of a DAPO. They would also give the child the opportunity to express their view
(i) the manner the child prefers, or
(ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference.
Those amendments would not place the same inflexible additional burden on the courts that amendments 19 and 39 would.
However, as I have explained, we have to balance very carefully the importance of seeking the views of children in appropriate cases with the need to ensure that the system that we put in place is flexible and manageable enough to work as a means of quickly determining applications for emergency orders.
It is not clear, for example, what would be required for the sheriff to override the statutory presumption that a
“child is capable of expressing a view”
in the making of a DAPO. We would all recognise that there will be some children who, perhaps because they are very young, would not be capable of offering a view in the making of a DAPO and, in a situation where the court requires to obtain the views of a child very quickly, it may not always be realistic to establish, for example, the child’s preferred manner of giving evidence.
To conclude, I have concerns that amendments 18A, 19, 25A and 39 would place further inflexible burdens on the court in cases that can be complex and require decisions to be made quickly. As such, while I sympathise with Rhoda Grant’s motives in lodging the amendments, I ask members to support my amendments 18 and 25 and to reject amendments 18A, 19, 25A and 39.
I move amendment 18.