Children (Scotland) Bill

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s 31st meeting of 2019. We have received apologies from Jenny Gilruth. Bill Kidd is attending as a substitute and I welcome him to the meeting.

Agenda item 1 is consideration of the Children (Scotland) Bill. We have two evidence sessions, the first of which is a round-table evidence session that will focus on the participation of children in contact disputes. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. I welcome all the witnesses attending the round table. Perhaps it would be good if we went round the table introducing ourselves—we will go round anti-clockwise, for a wee change.

I am the convener of the Justice Committee.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I am the deputy convener of the Justice Committee.

Susie Dalton (Scottish Women’s Aid)

I am the children and young people’s worker at Scottish Women’s Aid.

James Kelly (Glasgow) (Lab)

I am an MSP and a member of the committee.

Sue McKellar (Scottish Women’s Aid)

I am the improving justice in child contact co-ordinator at Scottish Women’s Aid.

Shona Robison (Dundee City East) (SNP)

I am an MSP on the committee.

Megan Farr (Office of the Children and Young People’s Commissioner Scotland)

I am a policy officer at the office of the Children and Young People’s Commissioner Scotland.

Liam Kerr (North East Scotland) (Con)

Good morning. I am an MSP on the committee.

Sarah Harvie-Clark (Scottish Parliament)

I am from the Scottish Parliament information centre.

Liam McArthur (Orkney Islands) (LD)

I am the MSP for Orkney.

Professor Kay Tisdall (University of Edinburgh)

I am from the childhood and youth studies research group at the University of Edinburgh.

John Finnie (Highlands and Islands) (Green)

I am an MSP.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I am an MSP.

Dr Fiona Morrison (University of Stirling)

I am a lecturer at the centre for child wellbeing and protection at the University of Stirling.

Bill Kidd (Glasgow Anniesland) (SNP)

I am an MSP and a substitute member of the committee.

Diane Barr (Clerk)

I am one of the clerks to the committee.

Gael Scott (Clerk)

I am one of the clerks to the committee.

The Convener

The reason for the round-table format is that it is a good way to encourage discussion, to give you an opportunity to respond to each other’s questions and to be more free flowing in your responses. It would be helpful if you indicate when you wish to speak. It is like magic—you do not have to worry about switching on your microphone; it will come on automatically when I call you to speak.

Let us start with a general question. We know that there have been quite a few projects hearing directly from children that have tended to involve domestic abuse cases. Given that a key aspect of the bill is the views of children being heard, it seemed good to take evidence first from those with experience of research on hearing directly from children. I will ask a question of the two academics who have been involved in some of that research. I see that your research was wide ranging. Did it involve anyone who was not involved in a domestic abuse case? More generally, there are open questions on the age of the children and how they were selected. We will start with those things: the types of cases, the age of the children, and the selection.

Dr Morrison

The research that Kay Tisdall and I have been doing with Clan Childlaw has looked more broadly at children’s participation in family actions, and at how compliant current law, policy and practice are with the United Nations Convention on the Rights of the Child. As part of that, we involved a group of young children who advised our research and helped us to determine the priorities for the project. That was a very small group of children who had all experienced domestic abuse, which reflected the fact that many of the cases that go to the family court involve domestic abuse or child welfare concerns. However, our research was broader than that. We also looked at what other jurisdictions are doing in relation to children’s participation in family actions and we interviewed members of the judiciary and legal professionals in Scotland about their experiences of children’s participation. We looked at the UNCRC and used it as a lens to see how compliant current policy and practice are around children’s participation.

The group of children we spoke to at the beginning talked to us about the difficulty of giving views in disputed contact cases. They spoke about how they felt kept out of the legal process, which was not positive for them, and about their confusion and frustration in trying to understand how much their views had been listened to in the legal process and how much weight had been given to them. Those were the three priority areas that they had for our research, which fed into our project as we went on.

The Convener

What age were the children?

Dr Morrison

I think that the youngest was seven and the oldest was about 12.

Professor Tisdall

In Scotland, we have an accumulation of evidence from studies that are relatively small-scale but which have very consistent findings. Social scientists call that triangulation—we now have clear messages from different stakeholders through different methods. We are glad to share that evidence with you, but we can be reliant on those studies.

There are two groups who have not really been heard from. We have not heard from children who are involved in cases that are not contested, which means that they never go to court, and we have not heard from children who are not supported when they go to court. Those are two gaps but, from the children we spoke to and the issues that they raised, there are clear messages that we can be confident about.

The Convener

I will take the witnesses in reverse order so, before I go to Scottish Women’s Aid, I ask Megan Farr to comment.

Megan Farr

You mentioned at the beginning of your question the particular focus on domestic abuse. Our first piece of work on the issue was to commission research from Kirsteen Mackay, which was published back in 2013. That research raises a fundamental point as to why domestic abuse is an important issue. In Kirsteen Mackay’s analysis, although she writes that only 5 per cent of parents who do not live together take a dispute to court—which means that the vast majority of cases where parents break up do not reach court—the evidence is consistent in Scotland and in similar jurisdictions that around half or more of the cases that reach the court include an element of domestic abuse. From our office’s point of view, the issue of domestic abuse was raised by children and young people back when the previous commissioner did his initial consultation with them. There is also the issue of the disproportionate percentage of the cases reaching court that include domestic abuse.

The Convener

Was that proven allegations or allegations?

Megan Farr

It was allegations that were written in the initial writ in defences or where there was police involvement. It was more than an anecdotal accusation; it was where there was in effect a statement as part of the court proceedings.

The Convener

Are there statistics about how many of those allegations were proven at the end of the day?

Megan Farr

Not that I am aware of. However, we know that, as was discussed a lot in the committee when the Domestic Abuse (Scotland) Bill was passing through Parliament, under the domestic abuse legislation that we had in place historically before that bill became an act and came into force, conviction rates were very low. That was because our understanding of domestic abuse was focused on incidents rather than courses of behaviour.

The Convener

Is that because we would expect cases in which there was an element of domestic abuse to be contested? That would explain why there was such a high proportion of such cases among the 5 per cent of parents who go to court.

Megan Farr

My understanding is that the 5 per cent relates to cases in which there is the highest degree of conflict between parents. Domestic abuse is often a factor in such cases. At times, it involves the non-abusive parent fighting very hard to protect their children from the impact of such abuse.

The Convener

That was evidence from Kirsteen Mackay. When was the survey done?

Megan Farr

She did an analysis of data, which was published in December 2013.

The Convener

Do we have any more up-to-date evidence anywhere in Scotland?

Megan Farr

We did some follow-up work. I am due back here on 7 January, so I can find out whether further similar analysis has been carried out.

The Convener

That would be lovely.

Susie Dalton

I will give a bit of background on the work that we have been doing over the past few years directly with children and young people and the justice system. I will then talk about a project that we have going on at the moment involving a young expert group, which Sue McKellar leads on.

The first project that we undertook in this area began in 2016 and was called power up/power down, which is a very hard project to say with a Northern Irish accent, so bear with me. Twenty-seven children and young people between the ages of six and 17 took part in the project. We worked with them through three Women’s Aid groups and presented them with a story that was based on what we had heard in the network about children and young people’s experiences in civil courts and contact cases. The story was about two young people—Zayne and Mia—going through court-ordered contact. By working on concepts of power and concepts of children’s rights and participation, the children and young people who were involved rewrote the story and made recommendations based on what they had gone through in court-ordered contact. The project took an explicitly children’s rights-based approach and aimed to build the capacity of the children who were taking part and of the workers, as duty bearers. The project, which we undertook with the Children and Young People’s Commissioner Scotland, also had an explicit focus on the UNCRC.

In 2017, we began a project called Everyday Heroes, which linked directly to the equally safe delivery plan. The Scottish Government commissioned the project to hear the views of children and young people on what needed to change in three areas of the delivery plan—justice, services, and gender equality and societal attitudes. Forty-seven children and young people aged six to 25 took part in the justice report. Scottish Women’s Aid led on that report, but it was a joint project between Scottish Women’s Aid, Rape Crisis Scotland, Dr Claire Houghton at the University of Edinburgh, the Scottish Youth Parliament and Barnardo’s. The power up/power down project had an explicit focus on domestic abuse, but the Everyday Heroes programme had a wider scope and looked at a range of gender-based violence. Eight organisations—Angus Women’s Aid, ASSIST, Children 1st, Glasgow Women’s Aid, Polmont young offenders institution, the Rosey Project in Glasgow, Shakti Women’s Aid and the Rape and Sexual Abuse Centre in Perth and Kinross—were involved in recruiting and working with the young people.

The recommendations that came from both reports were closely aligned, unsurprisingly. I think that we will have a chance to discuss the recommendations later in the session, but I will highlight the main areas that the Children (Scotland) Bill goes some way to addressing. I will also mention the areas that are covered by the recommendations that have been omitted or are not present in the bill. The bill gives consideration to hearing more from all children and young people, to how to facilitate that, to what participation looks like and to how to make the process safer for children and young people. Some consideration is also given to the communication of decisions to children and young people and to improvements in the roles that come into contact with children and young people both in the court system, such as child welfare reporters and sheriffs, and outwith it in contact centres.

However, some of the recommendations of children and young people are not present in the bill, the most obvious ones being the presence of support and advocacy workers in courts and the protection of confidentiality.

10:15  

The Convener

I will stop you there because you are getting into the recommendations. We were just looking for a rough idea and you have given us the age of the children and how they were selected, which is good. Would Sue McKellar like to add anything?

Sue McKellar

Yes. The young people in the expert group who responded on the bill—Yello!—were involved in the power up/power down and Everyday Heroes projects. That was four years ago when they were nine or 10 and they are now young people. The fact that they are still involved is probably good evidence of how well the projects have been done and how participation in them has supported the children and young people and feels empowering for them—they have specifically asked to come here to give evidence and they have spoken directly to Ash Denham about the bill and their feelings about it. As well as supporting Scottish Women’s Aid and our policy, they are expert advisers to four other countries in Europe that want to implement projects similar to power up/power down and Everyday Heroes.

The Convener

How were their views gathered?

Sue McKellar

For the response to the bill?

The Convener

For the research.

Sue McKellar

The power up/power down research?

The Convener

Yes, or any other research.

Sue McKellar

That was done with the Children and Young People’s Commissioner. The Yello! group of children and young people who responded to the bill have been involved in previous participation projects and they are a well-established group. For power up/power down they attended different types of sessions, but they were with their support workers from Scottish Women’s Aid so they had established relationships within the group.

Susie Dalton

The Women’s Aid workers selected the participants in those sessions by looking for children and young people who they thought would get the most out of it with a wide range of ages and experiences. As Sue McKellar said, there was already an established trusting relationship between the Women’s Aid workers and the children and young people. The sessions explored concepts of power such as who has power, what power looks like and whether it is a good or a bad thing. They used the story of two young people going through court-ordered contact, which was based on experiences from the Women’s Aid network, looking at what was happening to them and opportunities for things to have been different. In discussions, the children and young people were asked to step in and say, “This could be different,” or, “Here is where I would want to share my views,” or, “Why did that happen to those young people?” Based on what the children and young people said, views were gathered by the Women’s Aid workers allowing Women’s Aid and the Children and Young People’s Commissioner to create an alternative story.

The Convener

Would that include things such as views on power?

Susie Dalton

Yes. It explored power as a concept in terms of what we in the network hear again and again from children, which is that they feel powerless. We looked at what that means and how power can be restored to children and young people in the civil courts and the justice system in general.

Sue McKellar

The children rewrote the story and gave their opinions about what should have happened. Stories had been taken from the Women’s Aid workers’ experiences of many different children and young people who had experienced the justice and contact systems. In the power up/power down project, the children wrote the story of two young children going though that experience, saying how they thought it should have gone. That involved listening to children and gathering their views.

The Convener

That is a very powerful way of recording it.

Sue McKellar

Yes.

Megan Farr

The methodology that we used for power up/power down was important. Because the children and young people were working through the characters of Zayne and Mia, they were not talking directly about their own experiences and we were not asking them directly about those. That is very important when young children are participating. They need to be able to speak in that way. It was a good project, because it captured how the children and young people wanted things to be different for other children. Given the talk about participation, particularly in relation to the current bill, we want to see more of that, particularly as the children have carried on to be involved through Yello!, Everyday Heroes and other groups. They found it empowering to feed into a system that they felt was not right for them and could be better.

Sue McKellar

Part of that was that the children and young people came to Parliament to present their thoughts to Nicola Sturgeon, and they got feedback on the decisions that were made about the information that they had given. It was not just a consultation where they were left and never got feedback.

The Convener

How were the views recorded in the research by Kay Tisdall and Fiona Morrison? I think that you mentioned that you worked with other countries. How were views recorded there? We have heard about one way in which views were recorded, but I want to get an idea of whether there are any different ways.

Professor Tisdall

Fiona Morrison might want to talk about that, because she did the international work.

Dr Morrison

I am not sure what the question is. Are you asking how other countries facilitate children’s views?

The Convener

It was about how the views were recorded in your project, and then perhaps whether you know what happens elsewhere.

Dr Morrison

Our research project was not a huge empirical one with children. We started off with children to try to set the priorities for the research, because they were seen as experts who could tell us what our research should focus on. We had a workshop with children in which we looked at the mechanisms through which children can currently participate in family actions. We asked about the pros and cons of those mechanisms and what adults needed to know about participating in family actions. The children’s thoughts were then distilled into the three priority areas that we kept to throughout our research project. In interviewing sheriffs, solicitors and advocacy specialists, we picked up the priorities that children told us were important to them and asked those people to reflect on them.

The Convener

So you gathered information on the children’s priorities and that was passed on.

Dr Morrison

Yes, and that fed into the rest of our research. It set the parameters of what we were doing.

The Convener

Professor Tisdall, would you like to add anything? Do you know how other countries gathered information?

Professor Tisdall

There is a distinction between how children’s views are ascertained in research and how they are ascertained in the family law system, on which we have accumulated information, as Fiona Morrison said. If we look at research in general, there are a variety of ways of doing that. Obviously, all of us who are here have tried to develop approaches that are sensitive to the issues. Many of the approaches are qualitative and ensure that support systems are there.

Rona Mackay

I want to ask a bit more about the power up/power down project. To clarify, did you say that the work was done four years ago?

Susie Dalton

It began in 2016.

Rona Mackay

Sorry—I picked that up wrongly. I thought that you said that it was four years ago.

Was there anything in the children’s accounts that you found surprising or that you had not realised was the case? Were the overall findings simply that they wanted to be listened to and to have more participation or did anything else come out?

Susie Dalton

I do not think that there was anything surprising, given what we hear from the network. That was why we were so keen to take stories from the network and to create a template for the children and young people involved to work from.

Sue McKellar

As a children’s support worker who has been involved in participation, one surprising thing is how keen children and young people are to speak to power. We often assume that children will be shy and intimidated by the circumstances but, actually, when the children we have worked with have been given the opportunity to express their views on larger stages, they have been keen to do so.

Susie Dalton

Also, seeing some of the outcomes for the children and young people and what they have gone on to be involved in as a result has been perhaps not surprising but heartening or exciting. Young people who were involved in power up/power down and Everyday Heroes have got involved in Yello!, which is the young expert group that Sue McKellar leads on. There has been continued participation over the past few years.

Rona Mackay

Since that work was done, the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 has been passed. In your professional opinion, has there been any improvement or difference in the way in which children interact with courts since then?

Susie Dalton

In terms of some of the recommendations from the Everyday Heroes programme around special measures for vulnerable witnesses, there has been improvement. Matters are set to improve for women especially, as well for as children and young people, through the bill. With regard to the participation of children and young people, we have not seen much change since the work began.

Rona Mackay

Are you hopeful that the bill will improve the situation?

Susie Dalton

Yes.

Sue McKellar

The feedback is that when special measures have worked, they have worked really well; however, the picture is not consistent and not every child has a positive experience.

Megan Farr

I have been reflecting on the work that we did five or so years ago. As Kate Tisdall said, there is real consistency between what was found through the research that Kirsteen Mackay did for us and what we find in power up/power down, where we are finding the same theories.

We hear about examples of good practice, although I am not convinced that certain good practice, such as sheriffs writing to children, is what we should be aiming for. It is better than a lot of practice at present, but I think that we could do a lot better in relation to feeding back to children, which is another element of the bill.

We are hearing a lot of consistency—we have an inquiries line, and we continue to hear similar stories. People are saying the same things that Kirsteen Mackay wrote about for us in 2013, such as young children not having their views heard or taken into account. We still hear of families in which a child under the age of 12 is not having their views taken into account, yet older siblings’ views are. Somehow, as soon as the child reaches 12, their views are taken into account, and in some cases, the contact order is revoked as a result.

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. However, we are still hearing about the same issues around children’s views not being heard and not being given due weight. There is a lot of consistency across the evidence, as well as in what we hear through our inquiries line and from other professionals in the sector.

Dr Morrison

I will say a bit about what we found when we looked at other jurisdictions. We were really hopeful that would find promising practice that we could maybe promote as something that Scotland could do, but we found that, in other jurisdictions, courts and families are struggling with a lot of the same issues. We saw people worrying about upsetting or traumatising children. We saw questions being raised about how child friendly some mechanisms really are and whether they are more suited to the courts’ purposes rather than the child’s purposes. With the bill, when it comes to children’s views, I would encourage the committee to think more about where the children are at, rather than what a court needs, and how that practice can be extended.

Across jurisdictions, we saw that domestic abuse is a particularly difficult and thorny issue for courts to deal with. As Megan Farr said, there are allegations of domestic abuse in almost half the cases that come to court. If we cannot get participation right for that group of children, we will struggle to get it right for other children. Therefore, I encourage the committee to think more about the extended approaches for children who are particularly vulnerable and about cases that are particularly complex, because those are the cases that come to court.

Liam McArthur

As I listen to the discussions about how the child or young person’s voice is heard, it occurs to me, from my experience of bringing up my own children, that as well as listening to what they say, we need to manage their expectations about what is realistic. That is not unique to children; adults often have expectations that seem to run directly contrary to one another. Through the research that you have been undertaking, how do we manage expectations, rather than giving the child the impression that anything and everything that they wish to see can be made manifest, whether by the justice system or more broadly?

10:30  

Megan Farr

There are two aspects to that, and the first is that participation is a process, not an event. Children need to be supported properly when they are participating and giving their views. They also need to be supported properly to understand what their rights are and to understand what giving their views, and those views being given due weight, means. That includes giving reasons why sometimes the decision that is made will not be the one that they wanted.

The second aspect is that children should be given proper feedback that explains decisions, as well as support to understand those decisions. They should also be able to ask questions during that feedback. I go back to the example of writing a letter. In that situation, a child cannot ask what certain parts of the letter actually mean. It is important to make sure that that whole process is in place for a child, because inevitably there will be cases in which a decision that is made on the basis of a child’s best interests does not align with the child’s views.

Liam McArthur

As you say, participation is a process rather than simply an event. Based on your experience, does that shape the way in which the child then expresses their views? Do they moderate what they are saying on the basis of their expectations?

Megan Farr

It could go either way. Part of that support is about helping a child to understand their rights, and a child who understands their rights may ask for them to be realised. In Scotland we have a commitment to incorporate the UNCRC. The system has to be compliant with children’s rights under the UNCRC, and those include giving them an understanding that their views are part of the decision-making process and an understanding of their right to participate in that process and to be properly supported in doing so.

Professor Tisdall

That confirms something that I wanted to say earlier. The power up/power down videos are mesmerising. One of the strongest things that comes out is the child support worker, along with the “Are you a Super Listener?” card. The improving justice in child contact project has been able to produce the card in combination with power up/power down. That is overwhelmingly strong. We are concerned about it not being included in the bill and about whether we can make it stronger if that is the biggest demand.

The other thing that has come from power up/power down—it is not a surprise, because we knew it already—is that people often get worried that they are asking children to choose between their parents. Sometimes children want to choose and we have to respect that, but this is about hearing children’s views. The power up/power down videos show a family with a pet, and we know from other research that children often want to give their views about where their pet should be. They do not want to choose between their parents, but their views are wider than that. That is an important point when decisions are being made on what is in a child’s best interests. We need a system that allows for that and does not put children in a position of choosing if they do not want to.

Rona Mackay

I will pick up on something that Megan Farr said about children not always having decisions go in their favour. Can you talk about an instance when a child has said that they do not want to see their father, and explain why that view may not be listened to? Does that happen a lot?

Megan Farr

Scottish Women’s Aid probably hears that a lot, and I think that it happens a lot. Possibly, the child’s views have not been given the weight that they need to be given in those instances. We also hear about cases—there have been a couple of high-profile ones—where children have point-blank refused to attend a contact session, and there have been consequences for the parent with residence from those cases. That is an example of the risks that arise when those views are not given due weight. Decisions can be made that are not the child’s views. I go back to the example of things that are important to a child but which cannot happen for an adult reason, such as having a say over where their pet should stay. The important point is that when such things happen, they are explained to them and they understand why, because that might go some way towards addressing some of their concerns.

I am not giving this next example in a domestic abuse context. A child might say that they do not want to go and see their dad, but, if the reason for that is explored and discussed with the child, they might change their mind. I stress that domestic abuse is a different situation and needs to be dealt with by people who have appropriate training and understanding of it.

Another example of something that cannot be agreed to because of an adult reason is a situation in which a child says that they want to live with each parent 50 per cent of the time, but, because the parents live some distance apart, that is not practical.

Fulton MacGregor

The issue of children potentially being traumatised through the court process and through the information-gathering process has been raised by a few people today. The committee can identify with that, because today’s evidence session has come out of our attempts to balance how we get views in that area.

You do not all need to answer this question, but do you think that the bill can help to get that balance right? Of course, it might be that that is one of those things that we will never be able to get totally right. Can you give the committee advice, based on your research projects, about how we can best gather information so that, at the end of the bill process, we are not looking back and saying that, even though this is a bill about children, we feel that children were not consulted?

Susie Dalton

The considerations around the retraumatisation of children are well intentioned, but they can often be quite unhelpful from the point of view of ensuring that the views of children and young people are listened to, believed and used in a way that impacts the decisions that are made about them.

We completely understand those considerations and the issues with the court process. It is interesting to hear what you say about consideration in this space closely mirroring what children and young people experience in courts, where they are kept out of things because there is a concern about retraumatisation. Some of the children and young people in our young expert group have clearly said that certain things have happened to them and that, therefore, they need to be involved in the discussions about them, because they know best and it is those discussions that will inform the decisions that impact them and it is important to ensure that those decisions are in their best interests.

It is also important to remember that participation is a fundamental part of recovery for children and young people who have experienced domestic abuse. Excluding children from participation can mirror and compound some of the effects of domestic abuse, which involve children being silenced and having their views dismissed while the views of the perpetrator are seen as being more important.

In terms of recovery, ensuring that children are listened to and believed and have information fed back to them is a fundamental part of regaining some sense of power and autonomy. When it comes to getting that right in the bill and in the civil courts, our experience of creating safe and meaningful participation in the projects that we have undertaken suggests that it is important to have support all the way through—before, during and after—and that information must be made available to the children and young people who are taking part at all stages in the process. Further, there must be confidentiality around children’s views and an explicit child’s-rights focus in the work. The bill must contain all those things in order to ensure that children and young people can share their views in court in a safe and meaningful way that ensures that those views influence the decisions that impact them.

Dr Morrison

The UNCRC and the general comments on it say that the important issue is how children are supported throughout the process. That includes the support that they get before going to court, while they are in court and after they have given their views. That expanded view of participation points to a great way to think about how we support children to take part in decisions about family actions, contact disputes or residence disputes.

We have heard anecdotal evidence of poor practice around how children’s views are taken with regard to the questions that they are asked by child welfare reporters not always being the most appropriate questions to ask. We could certainly think more about that and the way in which we consider how to think about children’s views in the broadest sense, as Kay Tisdall said. By that, I mean for example not asking children to choose between parents and instead finding out their views more generally about their family and what they want to happen.

It is also important to bear in mind that children’s best interests and children’s participation rights are not in conflict with one another. We will not achieve an outcome that is in children’s best interests unless children are able to participate. Rather than seeing those rights as competing, they should be viewed as being complementary.

John Finnie

I want to pick up on a number of the comments. Megan Farr laid out the UNCRC position and the participation rights throughout the legal process. The findings were that children were not given the option and the court decided whether and how they would participate. Would sheriffs ordinarily give feedback about why they did not allow participation in the process? Does that tie up with the confidentiality aspect? Do they feel that they are sparing the children something retraumatising, to put it in layman’s terms? Surely children have the right to have as much information as possible. Will you comment on the link between non-participation and confidentiality?

Megan Farr

It is becoming an outdated attitude, but someone told me that children could not hear about what had happened because they were not a party, when they were, in fact, the subject. That attitude is changing but there are still some attitudes about children’s participation that are somewhat outdated. We are pleased to see the presumption around 12 being removed, and the current law would be strengthened if there was a presumption that all children can participate in decisions, with their views given due weight.

On the potential for retraumatising, we have talked a lot about vulnerable witnesses and how they can be retraumatised, and the same applies to children. We have accepted that we need to change how the courts work and to change the culture so that people are not retraumatised. That is particularly important for children, and it requires a culture change to the way in which the system works.

I do not think that I have answered your question, but I hope that I have gone some way towards doing so.

John Finnie

It was helpful. The question was wide ranging and there seem to be a number of overlapping issues. I was not condoning the approach of sparing the child by not giving them information; the act of participation is important. What is your comment on the extent to which people hide behind confidentiality?

Megan Farr

There is a lot of evidence in the work that those who are around the table today and others have done that shows that, rather than being traumatising, it is an empowering experience for children, and that what can be traumatising is having their views heard and not being given due weight, and their not understanding that. There are cases in which a decision might be made that goes against a child’s views but, if they have an understanding of that, that is one of the important ways that their experience can be mitigated.

Susie Dalton

Was the question explicitly about feeding back decisions to children and young people?

John Finnie

Yes, including decisions on their non-participation.

Susie Dalton

From what we hear in the network, that does not often happen. Whether that is based on not wanting to complicate things or retraumatise people, we hear from children and young people that it is disempowering not to hear what decisions have been made and why they have been made without their views or, if they have given their views, what has happened as a result of the decisions being taken. The UNCRC lists feedback as an essential part of participation but, crucially, it is often missing from the experiences of children and young people in the Women’s Aid network.

The bill does not really provide a clear mechanism for feedback in a lot of cases. Section 16 is on decisions being communicated to children and young people. However, there is not enough protection to ensure that children and young people are the ones who set the bar for how much and what kind of information comes back to them. That seems to be left up to the adults who are in power, and we ask the committee to consider that that does not really take a children’s rights-based approach and does not take into account what meaningful participation looks like.

Not all children and young people will want to hear all the information about all the decisions that involve them in courts, but they, rather than the adults, should set the limits on that.

10:45  

Liam McArthur

I will pick up on the issue of confidentiality, but will approach it from a slightly different perspective.

Children 1st has raised concerns about information—quite personal, intimate information—being made available to the courts. So far, we have been talking about the empowering process of giving the child or young person a voice, where they are in control of the information that is communicated about them. Children 1st has expressed concerns about children having a lack of control over files that may have built up over time and have been made available to the courts. Are those concerns legitimate? Do you share those concerns and are there things in the bill that we need to tighten up to provide a degree of protection around that set of information?

Susie Dalton

Absolutely—that is a major concern, from our perspective and in what children and young people have consistently shared. Children and young people need to know what kind of information they are being asked for and why, what that information is being used for and what could happen as a result of that information being shared. That is missing at the moment.

We completely support Children 1st’s call for confidentiality to be dealt with in the bill. The issue is addressed in the family justice modernisation strategy but, in order to be compliant with the UNCRC and the European convention on human rights, the bill needs to afford much more protection for children’s confidentiality.

One of the young experts recently shared an example with us that gives an overview of how some elements of participation are met while others are not. When she was going through a contact order, the child welfare reporter came to her house and—in line with her wishes—asked her to write her thoughts and experiences in a diary, rather than sharing those face to face. She chose to do that, and was glad that that had been taken into account. However, when she gave the diary to the child welfare reporter, she did not see it again and did not hear anything more about it at any point in the rest of the process. She has no idea whether her dad saw that diary. Again and again, children and young people have said that that kind of thing is missing. The bill could address those concerns.

The Convener

Megan Farr and Kay Tisdall have both indicated that they want to come in. We will then move on to Shona Robison so that we can get through all of our questions.

Megan Farr

We addressed that in our response to the Scottish Government’s consultation, because Children 1st had shared its experience.

Children have a right to privacy under the ECHR. That is already enshrined in Scots law, and it will be strengthened when the UNCRC is incorporated. Although there are situations in which that right can be interfered with in the case of court proceedings, that needs to be proportionate. Our view is that any requests for information need to be justified and narrowly drawn. There should not be a situation in which a support worker’s entire file can be released without extremely careful consideration of whether the child’s right to privacy is respected.

The big risk is that children’s confidence in the people who support them can be negatively affected in situations such as the example that Susie Dalton shared. Thankfully, it does not appear to be a commonplace occurrence, but our view is that, in terms of commission and diligence, any information that is being sought needs to be properly and narrowly defined. Otherwise, young people must have the confidence that they can seek support. As service providers, none of us can give children an absolute guarantee of confidence, and that is because, for child protection reasons, if we hear something that makes us feel that a child is at risk, we are under an obligation to report that. Nevertheless, children should have reasonable confidence that their privacy rights will be protected.

Professor Tisdall

I can see that we are in agreement. Obviously, if you are taking a children’s perspective, confidentiality and privacy are terribly important to them—we know that. When the Children (Scotland) Act 1995 first came out, we were doing research in the area and saw a difference when children were supported. Children were anxious, but once they were with a supportive person who worked with them, they were comfortable with some things being shared. Again, it comes back to the issue of support.

Shona Robison

I want to drill down a bit more into the improving justice in child contact project. We have touched on the work of the Yello! group, but I would like to look in more detail at the two models. The project is a year in with a year to go, and the models are the power up/power down model, which we have talked about, and the domestic abuse children’s rights officer model—I would like to hear a bit more about that. A year in, have any findings emerged from the project? Are the findings likely to be published at the end, or will findings emerge as the project develops?

Professor Tisdall

That question is probably for me, and Sue McKellar can also come in. The project will be in two countries; a commitment to having a worker has been made by Cyprus and either Romania or Bulgaria. In short, therefore, we do not have the findings but we have their interest in the model and doing the project. We have evidence from the successful pilot in Scotland, which Scottish Women’s Aid can talk about.

Sue McKellar

The children’s rights officer model is a West Lothian project. The officer dealt specifically with children who were going through the contact system and had experienced domestic abuse, to take their views, work through the views that had been heard in the court system and feed back. In the model, the officer is a social worker with a background of specific training in supporting children and young people who have domestic abuse experience and who have the knowledge of the justice system and the contact system.

Shona Robison

Will the two models be evaluated to find which is the most effective, or are they both options that are available and may have merits? I guess that it may be a bit early to say, given how early on the project is, although the work has gone on for some time.

Sue McKellar

In the IJCC project, those two models have been successful in Scotland and are established. The power up/power down model was proved in 2016 and 2017. They are being replicated in Europe because of their successes, due to the feedback from children and young people and from services. Four countries in Europe want to replicate the projects, as much as they can in their contexts. The young people are advising them on how best to involve children and young people to fit in with those countries’ specific contexts.

Shona Robison

From our point of view in Scotland, therefore, the evidence about the application here is already available. Although the application in other countries may be useful, I guess that, given the differences in justice systems and in services and infrastructure, the best evidence is already here for Scottish purposes.

Professor Tisdall

It is an example of how Scotland is leading the way with some of these ideas, and the issue is whether and how the model can be adapted in different systems.

Shona Robison

That is helpful.

Liam McArthur

Susie Dalton touched on this topic in response to the convener’s questions, but I would be interested to know—particularly from the two academic witnesses—whether, based on the emerging research, there are gaps in the provisions of the bill, which has generally secured broad support.

Dr Morrison

We are a bit disappointed that advocacy support for children is not in the bill, with regard to child welfare. It is in the modernisation strategy, but that feels a bit far away. There is no advocacy service for children that would allow them to claim their rights to participate. At the moment, it is at the discretion of the court. It would be brilliant to have something that was squarely there to support children before, during and after the legal process.

The introduction of the concept of capability in the bill is concerning. We are not sure what capability means. Is that a higher bar than already exists in the legislation around practicability?

Unfortunately, there is nothing about complaints or redress for children, which is one of the directions from the UNCRC. If children feel that their rights have not been upheld, there is no way for them easily to complain. If we are looking towards compliance with the UNCRC, that needs to be in the bill. Those are my key concerns.

Professor Tisdall

Fiona Morrison and I work together a lot. You will have gathered from what we have said that routine data on children’s participation in courts—and their satisfaction with it—is not available. We need to monitor that and accumulate the data.

Liam McArthur

Would that point be captured in legislation? It tends to be a policy intent for Government to monitor in order to facilitate further research, but do you want that written in as a provision in the bill?

Professor Tisdall

I am always interested in levers. I am interested because I sit on the board that worked on the minimum unit pricing of alcohol. The review—and the research that was set up after the measure was put into legislation—was powerful. It is focusing minds.

The Convener

James Kelly was interested in that issue. Do you want to chip in, James?

James Kelly

No, it has been covered.

Dr Morrison

It is great to see things in the bill around children being able to choose their mode of participation, so that they would be able to decide which way to express their views to the court. My concern is that there is no infrastructure to support that. Without an infrastructure whereby children have options to choose ways to convey their views to the court, I have little faith that it will make much difference to what happens now. Without something like an advocacy service specifically for children, which supports them throughout the process, I am not sure how that will change what happens now in courts.

Megan Farr

Generally speaking, we are supportive of the provisions in the bill, but we feel that they need to be strengthened. In some cases that have been discussed by colleagues today, legislation needs to go further, whether that be in the current bill or a future bill under the strategy.

Some things are missing. There should be an explicit presumption regarding all children to replace the existing presumption about the age of 12. That would send a clear message that there is no age at which a child becomes capable of forming a view. They develop that ability over time, and we should always approach the situation assuming that the child can form a view. We are also concerned that there is still the odd exception or exemption around children’s age and capacity, and, as Fiona Morrison said, around capability.

Liam McArthur

Would you wish to see the presumption in relation to instructing a solicitor removed entirely?

Megan Farr

It exists in the Age of Legal Capacity (Scotland) Act 1991. It does not serve a useful purpose in the bill. The risk is that it suggests a continuation of the existing presumption around 12. Through our casework, we see inquiries about cases in which children have not been permitted to give their views until they are 12, or of children’s views not being taken into account until they are 12. Therefore, we would like that presumption to go. It is not necessary in the bill. We have views on the Age of Legal Capacity (Scotland) Act 1991, which are for another time. However, the provision on that in the bill is not useful and could lessen the impact of the change that we are trying to achieve.

We are meeting and have fed back to the Scottish Government on making the language of the bill more UNCRC compliant and, given incorporation, taking a rights-based approach.

Susie Dalton

I will add a couple of other recommendations from the power up/power down research and the children and young people who took part in the Everyday Heroes programme, which we do not see so much in the bill. There are explicit recommendations around training on speaking to children and young people and for that training to happen with sheriffs, which is not currently provided for in the bill.

Training on diverse children and young people’s experiences and in particular on understanding black and minority ethnic children’s experiences was recommended. In addition—this is directly linked to the point that Fiona Morrison made on advocacy and support workers—young people have said that they would like justice professionals to be able to speak to adults whom they trust and who know their views.

11:00  

As we have said, many of the cases that we are speaking about will involve domestic abuse. Many of the children will be in contact with Scottish Women’s Aid services, and the support that is available from the Scottish Women’s Aid network across Scotland is not really being utilised. There is inconsistency in how Scottish Women’s Aid workers and children’s support and advocacy workers are asked to give evidence or support children’s views and submissions to courts. We would like full advantage to be taken of that form of support, which already exists, and for it to be taken a lot more seriously.

Professor Tisdall

We have found that the presumption of age 12 has not worked as intended. I was around when the Children (Scotland) Act 1995 went through. The presumption was intended to increase children’s participation. However, as I said, we have had an accumulation of evidence that, instead, it is a bar to it. That is why we support the presumption of age 12 being taken out of the bill.

The Convener

The final question is from Fulton MacGregor.

Fulton MacGregor

Are there any issues concerning the bill that relate to children’s participation that have not already been covered as we have gone along? That goes back to my earlier question about whether any advice can be given to the committee on how to ensure that children’s views are heard as we develop a bill that is, in essence, about their views.

The Convener

That is a catch-all question.

Professor Tisdall

As I said, the members of Yello! want to speak to the committee. That wish comes from a place of support. From working with CIaire Houghton, Susie Dalton and Sue McKellar, I really appreciate that they have developed mechanisms that make sure that children are supported. I am sure that the committee has done so as well, but we would be glad to share ours, so that the consultation experience can be constructive.

Sue McKellar

One reason why we are lucky to have Yello! is because its members have had positive experiences of participation and are willing to share those. They clearly see themselves as speaking not only on behalf of their younger siblings but for other children who have had the same experiences as them. As Kay Tisdall said, they want to come and speak to you. They are more than willing to share their expertise with the committee, if you want it.

The Convener

Does anyone else have anything to add? This is your final opportunity.

Megan Farr

I echo Sue McKellar’s comments concerning Yello! I add that we have talked about the way that courts can do participation differently, so this might be an opportunity for Parliament to engage differently with young people. That would be fantastic.

Susie Dalton

Both in terms of the development of the bill and what it sets out to do, again and again, children and young people have said that the most important thing for them is that they are listened to and believed, and, as Sue McKellar said, this is an opportunity to see that acknowledged more in the development of the bill.

The Convener

That concludes this session, which has been very worth while. I am sure that the evidence that we have heard can go forward to make the bill better. I thank you all for your contributions.

11:03 Meeting suspended.  

11:10 On resuming—  

The Convener

I welcome this morning’s second panel of witnesses on the Children (Scotland) Bill. They are Professor Elaine Sutherland, University of Stirling, and Dr Richard Whitecross, Edinburgh Napier University. I thank both the witnesses for their written submissions; it is always helpful to get those in advance of hearing evidence.

I refer members to paper 3. We will move straight to questions. Do you support the proposal in the bill to remove the 12-plus presumption in relation to the child’s views and, if so, why?

Professor Elaine Sutherland (University of Stirling)

My first reaction to that provision was that I did not think that it was necessary, because the provision in the current legislation that a child of 12 is capable of forming a view in no way denies the capacity of younger children to form a view. Like one of the earlier witnesses, I am old enough to remember the passage of the Children (Scotland) Act 1995. It was seen as an enabling provision that was intended to make it clear that it is definitely appropriate for 12-year-olds to express a view; the provision was not intended to disempower younger children. It appears that that has been misunderstood subsequently. If that is the case, we might as well clear up the misunderstanding and, in that respect, I welcome the provision in the bill.

I would like something a little clearer that reinforces the idea that younger children should be presumed to be capable of expressing a view. The United Nations Committee on the Rights of the Child has been clear that it is the responsibility of the adult legal system—all of us—to find a way to let children express their views and it is not up to children to navigate their way through an adult system. We have to be imaginative and proactive. I would like the provision to be made stronger in that respect.

The Convener

Would you be in favour of a presumption that all children have the capacity to present a view?

Professor Sutherland

I would support that approach.

Dr Richard Whitecross (Edinburgh Napier University)

I agree fully with what Elaine Sutherland has said. The idea should not be that a person suddenly becomes capable at 12. I have interviewed children who were younger than 12 and who had their own views that were not being taken into account. We have to remember that, although the legislation sets out a framework, it has to be understood and implemented by the practitioners, whether they are legal professionals or the judiciary. We do not want them to think that the child’s view becomes important only when the child is 12. The bill is not just about cases reaching court; it is about legal professionals giving advice in matters around the family, before the matter even reaches court. We should signal that they should be including the children in those discussions, too.

The Convener

That is nice and clear. Let us move on to the proposed exceptions to the duty on the court to let the child express a view, which relate to the child’s capacity and the child’s location being unknown. Do you have a view on that?

11:15  

Professor Sutherland

Yes. The Adoption and Children (Scotland) Act 2007 contains a provision about a person’s whereabouts not being known. In that context, courts have made it clear that every avenue must be pursued in order to locate a person—no stone is to be left unturned. As long as the same approach is taken to those words in this bill—we can reasonably expect that courts will take the same approach—not being able to find a child is, perhaps, not terribly worrying. However, it is to be hoped that courts will be quite proactive in that, while they are waiting for every stone to be turned over to locate a child, they can continue the case.

The situation of a child not being found will not occur in many cases. I am rather more worried by the idea that a child is not capable of forming a view and what is meant by that. That area of the bill lacks clarity and should be re-examined.

The Convener

So if we have a presumption in favour of every child having the capacity, you would want there to be something explicit to explain why there would be an exception to that.

Professor Sutherland

Yes.

Dr Whitecross

Yes. There has to be something to guide the courts in making that decision and to make sure that the decision is recorded properly. What makes a child unable to give a view? The word “capability” is worrying. I know that a number of people have raised that point, but we need to come back to it and consider it more carefully.

The Convener

It is always good to hear suggestions, if you have any.

I want to ask about whether children should have a say in how their views are conveyed to the court, and, more generally, whether they are mature enough to instruct a solicitor. That is, do you have a view on the bill’s retaining the 12-plus presumption relating to when a child has the maturity to instruct a solicitor?

Professor Sutherland

In so far as it will be the solicitor who assesses whether the child has the capacity to instruct them, the first stage of that decision will be determined when the child is attempting to instruct a solicitor. The solicitor must be satisfied that the child is capable of doing that. I would hope that solicitors would understand the provision properly and realise that it is not, and was never intended as, a disempowering provision.

I would hope that it would be less dangerous in the context of solicitors, whom we could expect to understand the law, than more generally in the community. Perhaps it is less dangerous to leave in that provision but, if it is capable of being misunderstood in other contexts, perhaps it should be removed.

I believe that the thinking behind leaving that provision in the bill was that it would keep the internal coherence of the Age of Legal Capacity (Scotland) Act 1991, in which the age of 12 appears in other contexts. A previous witness talked about whether we should revisit the whole business of the age of legal capacity. The answer to that is yes, but that is not what we are doing in the bill. That might be why the provision is being left.

Dr Whitecross

That is one of those issues to do with reading different pieces of legislation and ensuring that there is coherence among them. We would hope that lawyers would understand what we were doing.

There is a question about how often lawyers see the children. It is usually the mother who goes into their office, assuming that it is the mother who looks after the children. Are lawyers meeting the children and assessing their capability to inform the lawyers of what they would like? As a researcher, I am not entirely convinced that that happens regularly. It is usually the mother who instructs the lawyer.

There is still a gap between a child’s capability to instruct and how a child finds the mechanism to have their voice heard. Would they know to go to a lawyer? Maybe something needs to be done to educate lawyers to apply that principle when they meet clients and to say, “We should meet your children to take their views.” That would give the lawyers a wider picture. Legislation simply creates the framework—that is the law—but there is then everyday legal practice. It can be difficult for a busy lawyer to find time to see children around school times.

I have a slight reservation about the issue. We need to think beyond the bill and consider how the legislation will be implemented. There has been discussion about evaluating the act. We need to monitor how it is working but, unfortunately, we have limited statistics and information on civil justice. That is partly because, since fairly recently, we are no longer allowed to review old cases to see what happened and how the law is working in practice. Without that information, we rely on either research or anecdote.

The Convener

Why are you no longer able to do that?

Dr Whitecross

Previously, I did research on the use of bar reports, which are now called child welfare reports. I looked at how those were used in three courts over a historical period. I understand from the Scottish Government that I would not now be given permission to do similar research in the courts. We could give all the caveats about confidentiality and about the protections that are required but, without that information, we do not know what is going to the courts and what decisions are being made. Our jurisdiction is unusual in that regard—colleagues in England can do such research.

The Convener

We would like to get an answer on that, so perhaps we can write to the Cabinet Secretary for Justice to ask why that is the case. I agree that it would be worth while to still be able to do that and learn for the future.

Dr Whitecross

There are many areas that we do not know about. Many of the lawyers who I have spoken to are great and really open but, to understand how the system works, we need to look into how it works in the courts.

The Convener

I have a final question on hearing children’s views. Should children have a say on the actual method of conveying their views? From your experience, does the bill do enough to ensure children’s participation in court actions in practice? I think that we know the answer to that, but can you think of anything that could be added to the bill in that regard?

Dr Whitecross

I fully support what Fiona Morrison and Kay Tisdall said on that earlier. We have not found success on that in other jurisdictions, where there are still issues around getting children’s views. Children should have the right to say how their views are taken and delivered, and not just at the court. That should happen earlier, to inform the lawyers on both sides as to how to move forward, working with mum and dad.

Professor Sutherland

Before we move on from listening to the child’s views, I should like to highlight a couple of aspects of the bill, one positive and one negative.

I shall start positively. The bill puts some new language into the Children (Scotland) Act 1995, in that it talks about the child being given

“an opportunity to express the child’s views”—

this is the new bit—

“in a manner suitable to the child”.

The addition of those words is wonderful and will make the legislation incredibly child centred. It is clear that that is the focus. The child is not fitting in with the adult system; the system is working round the child. That is the plus.

The minus is that, in the current legislation, there is reference to whether the child wants to express those views. Those words do not appear in the bill, which I think is a mistake, because we need to be absolutely clear. The United Nations convention makes that point in its general comments, where it says:

“Expressing views is a choice for the child, not an obligation.”

That is saying that it is clearly the child’s choice as to whether to express a view. That is in the existing legislation and we should not lose it. It would not be difficult just to pop those words back in.

Those are a couple of points on the child’s views.

The Convener

That is helpful.

John Finnie

The Scottish Government consulted on the possible inclusion of a specific proposal in the bill relating to the confidentiality of the information that children provide to the court.

Clearly, as with many issues, things are not as straightforward as they might seem and there might be tensions between individual rights and the system of disclosure. Will you comment on the proposal and say which side you come down on, if, indeed, you come down on any side? Clearly, if we want to encourage children to be as frank as possible, it might help if they understand that that information will not be shared.

Professor Sutherland

A truly child-friendly world would give children that guarantee of confidentiality. We have to understand that children are coming from a family setting in which they are the least powerful people. They could be a lot more honest if they felt that there would be some confidentiality. However, that has to be balanced against the rights of their parents. If a decision that affects you is being taken on the basis of certain information, you have a right to have that information put to you so that you can correct it or dispute it if you think that it is wrong. That is an inescapable consideration. Although, in a perfect world, there might be full confidentiality for children, the adults cannot be denied their right to discuss the truth or otherwise of important things that are said about them.

Those two considerations are perhaps irreconcilable. Given that the right to know of the allegations and be aware of the information on which the decisions are based is enshrined in the European convention on human rights, I do not see a way around the issue, short of possibly giving parents the opportunity to surrender that right in individual cases by saying that they are happy not to know what the child has said to the sheriff. However, as a general approach, I do not think that a guarantee of confidentiality for children is terribly workable. I do not think that we can guarantee absolute confidentiality to children any more than we can guarantee it to any other witness or participant.

John Finnie

I see that Dr Whitecross is nodding.

Dr Whitecross

I agree with Professor Sutherland. When I was doing my research on the bar reports, there were F9 letters to the sheriff that were sealed and which we were not permitted to look at. However, absolute confidentiality cannot be guaranteed because, if an allegation is made or something is said that affects one of the parents, they need to know what it is. That is simply one of the tensions. A sheriff who is interviewing a child will usually say, “I may need to talk to your mum or dad about this.” When they say that, they are really saying, “You can tell me in private, but I might have to discuss in general terms what you say with someone else,” which means that there is no complete confidentiality.

The other important consideration is the rights that the parents have, particularly in the court setting.

Liam McArthur

Children 1st and other organisations have touched on the issue of information that has been accumulated on a confidential basis over a period of time being revealed to the court. In that situation, there is not necessarily an opportunity for the child to be informed that that information might ultimately be revealed to the court. That is different from the sheriff’s interaction with the child that Dr Whitecross talked about. Do you see a way of managing that? Clearly, there is a view that some information should not be made available to the court.

Dr Whitecross

The question is: who is collecting the information and why? At present, when a sheriff orders that a court welfare report be prepared, they indicate what they are looking for information about. With regard to the diary that was mentioned earlier, there should have been a statement that it would be handed to the sheriff or simply be used to inform a report and that it would then be destroyed or returned to the child. There should have been some follow-up with the child in that case. The people who are taking the information should speak to the child and tell them what will happen with the information. However, we do not have that detail. We do not know how the process will work.

If a child is capable of giving their views, they are capable of understanding that their diary will perhaps be returned to them, or we might have to say, “We will discuss this with this person.” There should be a bit more clarity. We have to remember that the people who quite often collect the information are lawyers, who are quite busy and might not ask all the questions that we would ask a child. They might even just take back the information and leave it in their office. At the end of the day, where is it going to go?

11:30  

Liam McArthur

How do you see that squaring with the right of privacy, to which the earlier panel referred?

Dr Whitecross

That comes back to the national system. The person who is appointed to gather the views of the child—the child welfare reporter—should have a way of communicating with the child and updating them about any information that is gathered. Quite often, the child is not updated about what is happening with the report. Quite often, the report is produced the day before the child welfare hearing, so parties see it only as they go into court. If documents have been taken or things have been done with the child, that needs to be reported back. There needs to be some form of training for child welfare reporters.

We should flag up the need to think through the confidentiality of what is going on, particularly if we are asking for a diary. What will be done with it at the end of the process? Will it just go into an archive?

The Convener

Given that we have moved on to discussing child welfare reporters, James Kelly can ask his questions.

James Kelly

It is important that there is proper regulation of child welfare reporters and curators to ensure that children’s rights are at the centre of the process. What are the key factors in regulating child welfare reporters?

Dr Whitecross

The reports are really important: I know from my research that the courts rely on them. At present, reporters are appointed by the sheriff court and are primarily lawyers. I know that there is opposition to there being a register and to more regulation being put in place—we do not have the detail, because that is to be left to the Scottish ministers—but the reports are so important for decision making by the sheriffs that regulation is needed.

Training also needs to be provided to cover wider issues such as how to look after documents from a child; it should not just be about when the reporter meets the child.

I would welcome regulation, but I would also like a broader range of people to be involved as report writers. A person can know the law and be legally qualified but not be trained in how to interview a child. That is particularly important, if we are moving away from the presumption that 12 is the age at which people can make decisions, in respect of a child of eight or nine who is being interviewed. As someone said to me, being a parent does not mean that a person knows how to do that. There is a need to think about child psychology. How do we get children to open up? How do we make them feel relaxed? That cannot be done at the first meeting.

The proposal is good, but until we see the detail of how it will be implemented and how it will operate, I will be quite cautious. I am happy to give a longer answer, but I do not want to wander off.

James Kelly

That was very helpful.

Professor Sutherland

I endorse what Richard Whitecross has said. The child welfare report is immensely important in the process, and we have a number of excellent child welfare reporters in Scotland who are very experienced in the job. That said, there is every reason to put in place a better, more comprehensive and consistent system of training and fees. All the things that the committee has been hearing about what matters to children could feed into that system.

It is to do largely with practice, which can be done through training. I expect that there would be some resistance—possibly from people who have been doing the job for a long time—to a requirement for training. We must be a bit careful that we do not, with training, regulation and payment, cause the supply of child welfare reporters to dry up. We need them to be part of the system, so we cannot afford to put too many obstacles in people’s way.

The issue of fees feeds back into the whole system of legal aid lawyers who are available to do family law work, which is another problem in the system. If you do not pay people well enough to make a living, you will not have the supply: people will not be there to do the job.

My goodness! I never thought that I would find myself sitting here saying that we have to worry about paying lawyers. That is not typically what you would expect an academic lawyer to be saying. However, we have to be realistic: people will only do the job if they can afford to pay their bills through doing it.

Dr Whitecross

I agree with Elaine Sutherland about payment. This is a side point, but I feel that I have to emphasise it. I have done research in which only three out of 20 women had legal aid, and the others who were paying were not very well off. There is a big issue about how people find a lawyer who will do the work through legal aid.

John Finnie

We have moved on a bit, but I will come back and ask you about child welfare reports. We talk about the quality of child welfare reports. Surely it is important, and an indication of fairness to all the participants, that they do not only get sight of the report—if I have understood you correctly—just as they are going into the court. Surely advance sight should be a fundamental principle.

Dr Whitecross

Having done research with people who prepare the reports, I know how hard it can be to get time to meet the parties to whom they need to speak, to prepare evidence and then to prepare the report. I have also spoken to people who are involved in child welfare hearings, and if they receive the report only on the morning of, or the day before, the hearing, it wrong-foots them. That is especially the case if an individual feels that the report does not represent what they told the person who prepared the report. I did research around domestic abuse and found that quite often domestic abuse is not included in child welfare reports, for a variety of reasons.

I read welfare reports for the research that informed recent changes, and their quality was very good—only one or two were excessively long, in my opinion. Invariably, the recommendations in the reports became the orders that were made by the court. The problem is timing, which should be such that a child welfare hearing happens a week after getting the report, although that is difficult for the court to juggle because timing of hearings can be complicated.

Another practical issue is how to time things so that information arrives in time to inform both parties. That is about a person’s fundamental right to know what they are dealing with when they go into court. Child welfare hearings are fairly informal to the lawyers and the judge, but they are not informal to the other parties, who feel quite awkward and often feel disadvantaged—especially women who have been in abusive relationships.

Rona Mackay

Before I ask my main question of Professor Sutherland, I will pick up on something that Dr Whitecross said about domestic abuse sometimes not being included in reports. What is the reason for that?

Dr Whitecross

Section 11(7A) to (7E) of the Children (Scotland) Act 1995 was introduced in 2005. At the time, it was not discussed with many lawyers; in fact, before it was introduced, Professor Eric Clive appeared before the committee and said that we did not need the provisions for domestic abuse, because abuse is already taken into account when making a section 11 order. It was seen at the time of its introduction as a potential avenue for women to deny contact with children.

Ten years after the provision came in, I did some research on it with members of the profession, and found that people who had been in practice beforehand said that it did not make any difference, but few of them had mentioned to their clients that the court has to take into account abuse or potential abuse, so their clients were not aware of it. Many lawyers suggest that their client should not raise domestic abuse in a child welfare hearing because, “You’ll just be seen as being difficult”.

Megan Farr used the word “culture” earlier. That is one of the things that we are trying to change. We need a deeper and better understanding of domestic abuse and what it means. Although the report is about the child, it is also about the wider circumstances in which that child is living—even if they are separated from the perpetrator.

One of the problems that I have with the bill is that, although we have provisions for parties and vulnerable witnesses, women do not always recognise that they are being abused. There are issues about raising the matter and seeking support: for example, lawyers might not want to raise abuse because it is difficult to evidence. Despite recent criminal legislation—the Domestic Abuse (Scotland) Act 2018—we still have the idea that domestic abuse is an incident, rather than a pattern of behaviour. We need to see it as a pattern of behaviour that impacts on the mother and the children. I should say that I am aware that there are men who are victims of domestic abuse, but we know that in Scotland the majority of victims are female.

I spoke to 20 women who had major struggles getting lawyers to accept and present evidence of domestic abuse. That might be why such evidence is not included in welfare reports. I have just been given research money to study child welfare reports and domestic abuse. Hearing anecdotal evidence from people whom I have interviewed is not quite the same as looking at the welfare reports in a case in which there has been domestic abuse. I do not like just to accept one particular perspective, so I will look at the issue in time to inform what is happening with the new regulation of child welfare reporters.

Rona Mackay

That is interesting: it seems that there is a surprising disconnect in relation to something fundamental.

Dr Whitecross

The disconnect is quite broad. I am working with Professor Jane Mair and Dr Alan Brown from the University of Glasgow to examine the disconnection between domestic abuse in the criminal court and contact with children.

Rona Mackay

I will ask Professor Sutherland about delays in court cases and the new duty on the courts to have regard to

“any risk of prejudice to the child’s welfare that delay in proceedings would pose”.

In your submission, you say that

“Any lawyer worth his or her salt knows that delay can have an adverse impact of child welfare and ... That suggests that this provision is unnecessary.”

Can you expand on that a wee bit?

Professor Sutherland

Certainly. For quite some time there has been growing concern about delays in such cases. We must step back a little and look from a perspective that considers the child’s sense of time, which might be different to an adult’s—although many of the cases, even from an adult’s perspective, drag on interminably. Undoubtedly there is a problem with delays that has been highlighted by courts time and again. A particularly high-profile case that went on for an especially long time finally reached the Supreme Court.

My point is that we all know perfectly well that cases are delayed and that it is a bad thing. It makes me worry when we express things in statute, almost to make ourselves feel better: “There. Now that we’ve put it in the act we can stop worrying about it.” Simply saying to a court that delay could have an adverse effect is problematic because it does not do anything to address the root causes of the delay. Like many of the issues that are raised by the bill, it is part of the bigger picture. The law, practice and court rules are separate, but need to be co-ordinated.

My concern is that simply articulating the problem in statute does nothing to solve it. Judges are well enough aware of the problem without being told about it through an act: they are the people who keep publicising concern about the problem. That is one difficulty with the provision.

11:45  

The other difficulty that I have with the provision is that for cases that are incredibly complex I would be reluctant to create a climate in which there might be pressure for undue haste, when we really need properly to consider a child’s life and what is going on it, and to take time to reach the best decision. Delay in itself is undesirable, but there are occasions when we need to take time to make the best possible decision for the individual child.

I know that there is separate work under way in the courts on case management and making the process more efficient. I become concerned when I see in statutes things that do nothing to solve a problem, but just make us feel better because we have acknowledged the problem.

On that point, another provision that will be in the bill—despite points that were raised in the consultation—stems from a problem in the Children (Scotland) Act 1995, which states that if judges are making an order that will require two people to co-operate, the judge must think about that. That is designed to address unco-operative parents in cases in which it has been flagged up that the people are not going to co-operate with each other because they have not done so thus far.

The provision tells judges that if they make an order, they must think about whether that is feasible or workable. I like to think that our judges would think about that anyway—I am absolutely convinced that they do. It is another provision that makes us all feel better because it says that we should think about a problem, but it does not tell the judges what to do with it. One of the most intractable problems is the very small number of high-conflict cases in which the parents—or one of them—will not co-operate.

Rona Mackay

I understand what you are saying, but could one argue, conversely, that the provision is in the bill as a sort of safety net that highlights the fact that delays adversely affect children? If so, what would be the harm in leaving it in the bill?

Professor Sutherland

You are right—the same could be said in respect of judges having to consider whether something is feasible. The provisions might not do any direct harm, but does it do harm for us to feel as though we have addressed something when we have not? I would not, however, go to the wire saying that the provision must go.

The Convener

Liam Kerr wants to ask a question about the enforcement of court orders.

Liam Kerr

Professor Sutherland, sometimes a parent will disobey a court order. In those cases, section 16 of the bill would impose a new duty on the court to discover why there has been that disobedience. Some of the evidence that we have says that that is a very important provision, although others would say that it does not add to the current powers or practice. I want to pick up on Rona Mackay’s point. What is your view? Is there a risk that the provision has just been put in the bill and will be forgotten about? I think that you said that it does not add anything or do anything to solve the problem. Is it the right way to go?

Professor Sutherland

The courts already have extensive powers to deal with parents ignoring and disobeying court orders. I would like to believe that any judge who deals with such a case will not just say that there is an allegation that somebody has ignored the order for contact, let us say, but that they will inquire a bit more fully into the reason. That would be part of the ordinary way of dealing with such issues in court. To tell the judges to inquire about it would be to instruct them to do something that one would hope that they are already doing—to ask about the reasons for the non-compliance.

Non-compliance can vary. Cases can involve a small misunderstanding over timing or something else that is genuinely quite innocent right through to ones in which someone has consistently been deliberately obstructive. There is a big range of non-compliance cases. Telling judges that they must look into the reason would do no harm, but I think that that is something that they do anyway. I rather like the idea of getting a child welfare report to explore the matter more fully. That at least would make a constructive suggestion to judges about how they should inquire further, beyond simply asking the parties and hearing evidence about how the non-compliance occurred.

My first point is to ask whether we need the provision, given that judges are doing that anyway. Moving on from that, I note that they have a battery of things that they can do over contempt of court. They can already fine or imprison parents—although, quite sensibly, the courts do not use the power to imprison lightly. It is very much a last resort, as it should be.

I am a little concerned about seeing in a statute the threat that the determination might be varied and residence might be changed because of non-compliance. We need to step back and say that the original decision about the child’s residence and contact was made on the basis of welfare. Assuming that nothing has changed in terms of welfare, are we going to flip that decision and do something different with residence in order to punish a non-compliant parent? That would not really give paramouncy to the child’s welfare, which was the foundation of the original decision.

I realise that, when courts talk to people about non-compliance, they sometimes threaten that they might change residence as a way of trying to make people more compliant, so that they do not then have to do something draconian, such as imprison the resident parent. At the end of the day, if the court imprisons the parent with residence, it will undermine the entire residence order, because the child—obviously—will no longer be able to live with that parent.

On non-compliance, I absolutely acknowledge that there are a small number of parents out there who are, for no particularly good reason, stubbornly ignoring what the court has decreed. However, we need to be aware that there might well be good reasons. That brings us back to something that Richard Whitecross alluded to. We should not suppose that domestic abuse is not occurring just because there is not a police report about it. An awful lot of the time, domestic abuse is not reported, and sometimes it is not even recognised by the victim. There might be good reasons for non-compliance on which it is difficult to provide evidence.

The other thing that gets missed is the big part of the puzzle about why children say that they do not want to go for contact visits. It is always assumed that it is because the parent with residence has put them up to it, but there is research that shows that, in times of family crisis—if we look at it from the child’s perspective, we can see that a lot is changing in their life, because the family is breaking up and the child is feeling very out of control—children may refuse to participate in contact simply as a way of exerting control in a world in which they feel powerless, and it is nothing to do with the parent putting them up to it.

The Convener

Dr Whitecross, I see you nodding vigorously.

Dr Whitecross

I am sitting here nodding because I fully agree with what Elaine Sutherland is saying. The issue that we are discussing is an old one that sheriffs find it difficult to deal with. Having child welfare reporters going out to interview the child is a good move, because it might be the child who is saying that they do not want to go. I think that the number of adults who are not complying with the court orders is actually quite small. However, if we are not getting the information about abuse or other issues into the court at the first hearing or in the period leading up to the decision, the court will not make a fully informed decision. We need to ensure that the court is fully informed when the order is being prepared.

I think that imprisonment of the resident parent harms the child. It might seem to be fair, because the parent is not complying with the court order, but imprisoning the parent overlooks the needs of the child, and the child is the whole focus of the bill and should be the focus of the decision. It is a good idea for the court to investigate why there has been no compliance.

Liam Kerr

I am grateful for the detailed explanation. I believe that the Scottish Government consulted on the issue and has suggested possible sanctions for breaches, but no sanctions appear in the bill. Does either of you have a view on that issue? Would it be preferable if the bill explicitly said that imprisonment or a change of residence should not be used as a sanction for a breach of section 16?

Professor Sutherland

I would not put that in the bill explicitly. Imprisonment in that circumstance is not desirable, but it is part of the court’s set of responses—its bag of tricks, as it were. It is sometimes more effective to threaten imprisonment than to use it in relation to non-compliance. In the very worst and most extreme cases—of which there will be a tiny number, years apart—it seems appropriate that courts should have all the powers that they would ordinarily have to deal with contempt. We can only hope that they do not find themselves using that particular sanction.

In the background papers, there are examples of other ways of dealing with non-compliance, such as community service orders. The problem with that solution is the issue of how it will work in practice. How will the resident parent, who might not have a lot of money, find the time to do that community service? Will the state pay for babysitting while they are doing it? A lot of the solutions are likely to have a disproportionate impact on people who are already financially struggling. Fining the resident parent is out, because taking money out of the household is not going to do the child any good, and requiring the parent to do unpaid work is difficult. How would they fit that in alongside the job that they already have, if they have one, and how would they get childcare to cover the time when they are doing that unpaid work?

One suggestion that is sometimes thrown out is that, if a parent has not complied with the court order, they should be sent to parenting classes to impress upon them why compliance is important. My concern with that is that I would like to see parenting classes as a positive thing that parents choose to do and which good parents go to because they want to become even better parents. I would not like parenting classes to be stigmatised as things that bad parents get sent to. I think that that would undermine the point of them.

The Convener

Would mediation be appropriate as a way through the impasse? Do you have any statistics on how many people have been imprisoned for non-compliance?

Professor Sutherland

I do not have systematic statistics. I was looking at that issue for a footnote for something that I was writing, and I came up with three or four cases over the past 10 years or so. Those were only reported cases, and not all cases are reported. However, because imprisonment is so unusual in that context, the imprisonment cases tend to get reported perhaps more than ordinary, run-of-the-mill ones. I cannot guarantee that this is correct, but I would speculate that perhaps there has been a handful of such cases over the past five to 10 years.

12:00  

Dr Whitecross

I agree with that. Unfortunately, our civil justice statistics are not very broad or detailed. However, there is one of those cases every few years, and they make the media and are always reported.

To go back to the convener’s question, the family law committee of the Scottish Civil Justice Council might be a more appropriate forum for making rules on that, rather than putting rules into the legislation. That committee could give guidance and advice to sheriffs.

The Convener

What about the question of mediation and ruling it out where there has been domestic abuse?

Dr Whitecross

For instances of a lack of co-operation, we would need to investigate the background. If there had been domestic abuse, mediation would not be appropriate. It should not be ruled out, but we need to understand why there is no co-operation. The cases that go to court usually involve a hodgepodge of different things not being explained and maybe someone not understanding what the court is saying to them. That is one of the big issues. If a sheriff is talking to a layperson, they may not fully understand what they are saying and its implications, particularly if they are self-represented.

The Convener

Is finance likely to come into it quite a bit? For instance, there might be resentment because someone is not paying enough or because someone is paying too much, and it might be taken out on the other parent in various ways. Mediation might be useful in such situations.

Dr Whitecross

It depends on the circumstances. Mediation can work where parents are separating but getting on quite well. However, when there is a high level of conflict, mediation becomes highly problematic.

Professor Sutherland

I agree with that. Aside from the fact that domestic abuse might be the reason behind the non-compliance—that would put it beyond mediation—they might be the worst cases to try with mediation and the ones in which mediation is least likely to succeed because the individuals are so entrenched in their positions or the conflict has risen to such a level that it is almost too late for mediation-type solutions.

Dr Whitecross

There is also the question of who is mediating. If the child does not want to go for contact and the mother feels that she cannot make the child go, do we try to mediate between the non-resident parent and the child? The situation can become quite complicated. I feel that we always come back to the adults on that, but it is really the children whom we are talking about. We should look at why a child is not going for contact, rather than speaking to and maybe blaming the mum.

The Convener

I suppose that the idea would be to bring the child into the mediation so that they, rather than the differences between the parents, become the focus.

Dr Whitecross

One of the things that we have been talking about in Scotland for 13 or 14 years is collaborative law, whereby a range of different specialists come in to help to find a solution that works for a child and there is not just a focus on the adult relationship.

The Convener

Absolutely. Fulton MacGregor has a supplementary question. Is Liam Kerr finished?

Liam Kerr

Yes.

Fulton MacGregor

I have a scenario to put to the witnesses. I agree with everything that they have said so far on the issue. I feel that criminal justice responses to the situations that we have discussed are not appropriate, particularly the more punitive responses such as imprisonment. My question is almost a devil’s advocate one. A situation that would be very rare but not impossible would be one in which the investigative work had been done on why there had been non-compliance with the court order but no domestic abuse or other circumstances had been identified, and the children wanted to see both the resident parent and the contact parent, but one parent said no to contact because their relationship with the other parent was so bad.

What would the best response be in such situations? Where can we go in such situations, other than making a criminal justice response? Should there be a duty to report to the children’s hearings system or something like that?

Professor Sutherland

In the scenario that you described, in which there is no domestic abuse and the children want to see the contact parent, it is undoubtedly the resident parent who is obstructing the process and being dreadful about it for no good reason. That is the paradigm case that makes courts throw their hands up in horror. I am paraphrasing this, but an English judge said, “We can fine them, we can imprison them or we can just give up.” She was expressing judicial horror at how hopeless that small number of really ghastly cases turn out to be. There just does not appear to be a solution in the case of a thoroughly stubborn person who is not putting the best interests of their child first. In such cases, it might be time to go back to court and try again, and to throw out the threat of changing residence or threats of prison and hope that the parent sees sense. However, I do not have a solution to those cases because, frankly, I am not sure that there is one.

Dr Whitecross

It is the sort of case that a sheriff hates to have to deal with. Let us say that it is the father who is the contact parent. There is a section 11 order and the contact parent is asking his lawyer to move the case forward. It has to go back to the court, a new child welfare hearing has to be opened and the case has to be set out before the sheriff. The sheriff can only do as Elaine Sutherland outlined. Such cases are a minority. Maybe it is for the sheriff to explain by saying, “I think it’s best that your children have contact with their father. I’m therefore going to make the following order”. What would civil imprisonment achieve?

I am also concerned about the effect on the reputation of our legal system if we start imprisoning such people. There will always be intractable people—we have all met people like that—but the court can do only so much. It might be that there has to be a new order giving contact to the other parent. If no abuse or harm is going to happen, that is fine. Unfortunately, though, these cases do arise, and they are the cases that sheriffs find really difficult to deal with. I am not sure that legislation will necessarily help. We perhaps need more guidance on it. Also, the lawyer of the mother who is not giving contact perhaps needs to explain things to her by saying, “You really should be giving contact. You should be obeying the contact order.” The parties involved also have a duty to the court.

Fulton MacGregor

That is what I was trying to get at. Given the low number of such cases, such situations are maybe going to need a wee bit of out-of-the-box thinking. As I said at the start, I do not think that imprisonment or any punitive criminal justice response is appropriate in those cases either.

Dr Whitecross

I would be worried that having something in the legislation to deal with such a tiny number of cases would skew things in practice.

Shona Robison

I want to get the panel’s views on whether the statutory regulation of child contact centres is desirable. If it is, what should its key features be?

Professor Sutherland

Child contact centres have the capacity to serve an incredibly valuable function. By providing for supervised contact and a safe place for the handover of children, they have a lot to offer.

My concern is that, the way that things are operating at the moment, we seem to be hoping that that resource will provide many things without being funded properly. Resources and regulation go hand in hand.

The centres should be regulated to ensure that they are safe places for everyone using them, that the level of supervision is adequate, and that the people who are working there are properly trained. All of that is important, and it can be done by regulation, but we will continue to have that resource only if we fund it. Again, we come back to the subject of money. It is desirable that the centres are a high-quality resource. There are places where they are provided; they are just not provided comprehensively, right across the country, as they need to be.

It is not enough just to put regulations in place. We have to put resources in place so that the regulations can be met. In that sense, regulation is a good thing, because it sets the standard for what is expected. The negative thing that could come out of it is that, if we put regulations in place but not resources, we will find that contact centres start to close and are not available all over the country. So, I say yes to regulation and yes to ensuring really rigorous standards, but only if we can provide the resources that go with that.

Dr Whitecross

In my interviews, parents raised quite a large number of concerns about the running of a contact centre that had been nominated for contact with the non-resident parent. Regulation is important, but I totally agree with Professor Sutherland: provision must be fully funded and, more importantly, evenly available across the country—it is a bit of a postcode lottery. Regulation would be really good—it needs to be brought in, but it also needs to be a bit more coherent in terms of provision and financial support.

Women who have spoken to me have raised concerns about behaviours and about the security of going to a contact centre, particularly when they have been victims of domestic abuse. They raised concerns about taking their child or children there and encountering the perpetrator as they leave or enter the building. A range of things need to be considered, and regulation might help to ensure standard practice.

Shona Robison

You mentioned behaviours. Will you say a little more about that, and give examples?

Dr Whitecross

That point came up in a number of the interviews with women—although I could not follow it up and check it. They described being in a room, waiting to pick up their child at the end of contact, and hearing their child screaming and crying. When they asked someone to go and make sure that their child was okay, they were told “no”, and that staff’s role was not to interfere. For a woman who was quite distressed and was feeling quite anxious, that was quite hard to hear. I cannot verify that that happened, but it was the woman’s impression, and I did not want to say that I did not quite believe her. That issue came up in a number of interviews with people from different parts of Scotland. The impression that they were getting from the staff was that they were just there to provide the service and the space and that they could not intervene. So, maybe regulation and some clarity over staff’s roles and function would be useful.

Shona Robison

Given what you are describing, I think that there are elements that could be captured by regulation of qualifications and training. Some of that sounds a bit like practice, though—there might be issues of practice that need to be addressed.

Dr Whitecross

I think it is about that, as it is with a number of things in the bill. We are looking to what will be implemented after the act has been brought in, around such things as child welfare reporters and contact centres. There is other work to be done on practice and implementation.

12:15  

The Convener

Who provides the bulk of the contact centres now? Is it local authorities or the voluntary sector?

Dr Whitecross

I think it is a mix. I have to admit that I do not really know.

The Convener

We know that Relationships Scotland does a lot of work.

Professor Sutherland

I was about to say that my understanding is that the bulk of the work is done by Relationships Scotland. My understanding is also that there is an issue about its funding at the moment, which is particularly worrying if it is providing most of those places.

The Convener

As part of its pre-budget scrutiny, the committee has looked at the funding of third sector and voluntary sector organisations, and here the issue is popping up again. Let us move on.

Fulton MacGregor

I want to ask the panel about the issue of vulnerable witnesses, given that the Parliament recently passed the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019. Do you agree with the measures in sections 4 to 7 of the act for vulnerable people in the courtroom, both in principle and in the detail?

Professor Sutherland

There was a gap there and there is a need to provide protection for vulnerable witnesses in that particular setting. Broadly, yes, I support what the act provides for. Similarly, I support the expansion to child welfare hearings to hopefully provide some protection there, too. If we acknowledge that there is the need to protect vulnerable witnesses in the criminal setting, why would we not do it in this setting as well, where emotions might run particularly high?

Dr Whitecross

I welcome the measures. They are important, but it is about “vulnerable parties” and “vulnerable witnesses”. My only concern is for the child welfare hearing. If, at present, the general practice is not to raise concerns over domestic abuse, at what point do we raise it and does it then lead to special measures being introduced? That is my one concern, because I have heard from too many women that they have not been able to raise their concerns on domestic abuse at their first child welfare hearing, whether because of advice from the lawyer or because they are not being told by the lawyer that domestic abuse can be taken into account when making an order. That is an issue. Yes, the court can then take steps if the issue is raised, but that is why I said that we need that cultural shift, so that lawyers flag up concerns before the first child welfare hearing. It should not be about whether there have been prosecutions or whether people have been found guilty. Those allegations are often hard to demonstrate.

One of the problems is that we do not tend to get to proof in those cases, for a variety of reasons, so what evidence would the court need to implement the special measures? A bit more thought needs to be given to how that can be brought in in those cases that require it. The legislation is going in the right direction, but we need more there to protect not just the child but the mother.

Fulton MacGregor

What do you think about the argument for extending those provisions to the children’s hearings themselves? That has been argued for by Children’s Hearings Scotland.

Dr Whitecross

I fully support that.

Liam McArthur

I declare an interest, as my wife is a mediator at Relationships Scotland. That does not touch on the question that I am about to ask, but it has come up in the evidence. I presume that you have seen the report that Dr Barnes Macfarlane prepared for the Justice Committee. One of the points that she made, in looking across the legal landscape at the moment, was that unmarried fathers’ rights are unfinished business. She also made that point in her oral evidence; she suggested that the current law is outdated and said that she had hoped that the bill would have picked the issue up.

You might also be aware of the bill team’s evidence and its justification for taking the view that, on balance, no changes should be proposed in that regard. The statistics show that the number of single-parent registrations in 2018 was 2,178, which is a relatively small number, as the bill team pointed out. Do the witnesses have a view on whether there was a missed opportunity or whether there were more downsides than upsides in trying to redress the balance in the bill?

Professor Sutherland

First, I should say that I have read Dr Barnes Macfarlane’s excellent report—the committee is lucky to be so well resourced. Of course, I should also mention Sarah Harvie-Clark’s briefing papers and the supporting documents, which show that the committee is particularly well informed.

To address the issue of the non-marital father, in about 4 per cent of cases the father does not register his paternity and therefore does not have automatic parental responsibilities and rights. We are therefore looking at a fairly small number of cases. I think that the bill team was correct not to simply give automatic responsibilities and rights to anybody who claimed to be the father, which would be very dangerous. For example, what about the fellow who is naive and mistaken? Even worse, what about the guy who is malicious? We surely cannot hand out responsibilities and rights on the basis of claims to paternity.

That brings us on to the evidence of paternity. I think that the bill could have done a bit more in relation to the power of the court to order DNA testing where paternity is disputed. As things stand, the court can order DNA testing of a child in the parentage area only when there is no one with the authority to deal with that or when such a person is unwilling to take the responsibility. That means that, where there are unmarried parents and the mother is the only person who has responsibilities and rights, because the father has not registered, she can refuse consent to the child being tested. She does not have to give any reasons but can just flat-out refuse. As things stand, the court has no power to overrule that mother and require testing. Reform on those lines has been mooted for quite some time and it is possible for the court in some jurisdictions simply to look at the circumstances and order testing in the face of the mother’s opposition. The decision was taken not to include in our statutes a provision along those lines, but I think that that was a missed opportunity and that such a provision could have been helpful.

I should say that, when the court is considering its decision about the child’s paternity, given that it does not have the best evidence that it could have—their DNA test results—it can draw an inference from the mother’s refusal. Make of that what you will, but the court could say that she was refusing consent because she had something to hide. However, that whole area is kind of uncomfortable and fluffy. The simple solution would have been to say that, in the circumstances that I have described, a court can order DNA testing because the information is knowable and we should ensure that it is known and that we can be clear about the child’s paternity. Thereafter, we can look quite separately at the whole issue of registration and parental responsibilities and rights—that is the other way to go about it.

I should have said that this is not just about the parents’ dispute; it is about a child’s right to know about their identity, as guaranteed by the UN Convention on the Rights of the Child. We should have just simply put that into the bill.

Liam McArthur

Thank you for putting on the record our long overdue thanks to Sarah Harvie-Clark for the support that she gives to the committee—I will not spare her blushes.

Dr Whitecross, do you accept that although an automatic right might take the balance too far the other way, for the reasons that Professor Sutherland identified, the right of the child to know about their identity demands that the bill has a measure to address that anomaly?

Dr Whitecross

We are talking about the child in the bill, after all, so that should be included. I accept that there should be no automatic right. It would involve only a very small number, but the child will want to know about their identity, so I think that not having provision in the bill for that is a missed opportunity.

The Convener

Should there have been provision in the bill for greater use of specialist family sheriffs or for the creation of a specialist family court or tribunal system?

Professor Sutherland

I think that a dedicated family court would be wonderful and very doable. In fact, that is what happens in practice to some extent in the central belt, where there is a fairly dense population. A family court would be very workable, but the problem is that the number of cases in the more rural areas of Scotland might not be sufficient to justify having it there. However, it would be possible to have a floating family court, with specialist judiciary travelling around rural areas. The problem would be that it would not always be available for emergency cases. However, a mobile, specialist court could still deal with the bulk of the family work.

As the law gets more complex, it is desirable to have judges working in specialist fields where they have the opportunity to develop their expertise, as they do in Glasgow, Edinburgh and some other places, because they would be doing so much of that work. However, that is subject to the caveat that the judges doing that work must want to do it because they have a passion for family law, not because they have just got stuck in that area. I think, though, that we would have no trouble in finding enough of those judges.

Dr Whitecross

I did research for the Scottish Civil Justice Council a while ago on case management in sheriff courts for a section 11 order, and it was clear from the lawyers to whom I spoke that they like it when they have an experienced family law practitioner as the sheriff, because that person will know the legislation. I am not saying that other sheriffs do not know it, but it is about the quality of engagement.

We are a small country and, although the specialist courts in Glasgow, Edinburgh and—I think—Livingston are very good, how do we take that approach in rural areas, which often have quite complicated cases? The idea of a floating court is good, but if we are concerned about the delay in making decisions, how do we have a floating court going round often enough to make decisions?

There is a problem for family courts in the run-up to Christmas and new year because it is often one of the busiest times for the courts as people try to make arrangements for access over Christmas and new year. That activity peaks before Christmas, then goes down and peaks again after new year, so there are all sorts of practical issues. Having specialist judges is very helpful. I know from reading reports and research from North America that specialist family judges have been influential in the understanding of wider research on domestic abuse and in the promotion of its use for making better decisions in domestic abuse cases. They can develop that expertise that would help to change the culture and practice. I would be for it, but there are practical issues to do with having specialist judges.

Rona Mackay

I have a brief question. Should we be developing a way to do that remotely? Could we use technology to have the specialists go remotely to outlying areas? That must be in the pipeline.

Professor Sutherland

I am sure that it is the way of the future. There are examples of it being used in other jurisdictions. It is something to follow up on. It would be premature to go down that road now, because we do not have the infrastructure and we would have to be sure that the individuals who used the system remotely were well enough supported, that they had good technical support and other support, while they were attempting to log in. People find that situation fraught enough without having to worry whether they are pressing the right buttons and whether they will cut the whole thing off.

The Convener

That concludes our evidence session, which has been excellent. I thank Professor Elaine Sutherland and Dr Richard Whitecross for attending.

12:31 Meeting suspended.  

12:32 On resuming—  

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s first meeting of the new year. I wish everyone a happy and healthy 2020.

We have apologies from James Kelly and Jenny Gilruth. I welcome Bill Kidd, who is attending as Jenny’s substitute.

Agenda item 1 is consideration of the Children (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and papers 2 and 3, which are private papers.

We will have two evidence sessions this morning. I welcome the first panel of witnesses: Chloe Riddell, policy manager, Children 1st; Megan Farr, policy officer, office of the Children and Young People’s Commissioner Scotland; and Joanna Barrett, policy and public affairs manager, NSPCC Scotland.

I thank the witnesses for their written submissions. It is always immensely helpful for us to receive such submissions in advance of our taking formal evidence.

We will move straight to questions.

John Finnie (Highlands and Islands) (Green)

Good morning, panel, and thank you for your submissions.

I want to talk about children’s participation in the decision-making process and, in particular, the proposal in section 1 of the bill to remove the 12-plus presumption in relation to children’s views. Will you comment on that, please?

Megan Farr (Children and Young People’s Commissioner Scotland)

We are very pleased that that presumption will be removed, because we have definitely heard concerns. Instances have come through to us via our advice line in which the approach has been misinterpreted as suggesting that children under the age of 12 are not able to express their views and have them taken into account. We would prefer the existing presumption to be replaced by the positive presumption that all children have the ability to express their views, with those views given due weight in line with the child’s age, maturity and evolving capacities.

Chloe Riddell (Children 1st)

Thank you very much for the opportunity to share our views.

In line with what Megan Farr said, the view of Children 1st is that a rights-based approach should be taken to the provisions in the bill, and we support removing the presumption. We are concerned—Megan Farr mentioned this—that the complete removal of the presumption might inadvertently lead to fewer children being asked for their views. The impact on children’s lives of not listening to them cannot be overestimated. We have heard about many children who have been extremely distressed and whose mental health has deteriorated as a result of feeling forced into establishing, building and maintaining relationships with important people in their lives at a pace that they do not feel comfortable with and which is detrimental to the relationship. We could give more consideration to how we could take a rights-based approach to removing the presumption and what we could possibly replace it with to ensure that even very young children are able to share their views with the court in a way that is, we understand, not currently happening.

Joanna Barrett (NSPCC Scotland)

Thank you very much for allowing us to give evidence.

Most of what I will say from the perspective of NSPCC Scotland, with our expertise in working with children and families, will relate to very young children—those aged zero to five. The removal of the presumption is really important for those children because they are the children who are least asked about their opinions and are least expected to give them. The removal of the presumption will help to clarify that children who are younger than 12 are capable of offering a view or experience.

We also support a positive presumption to make it explicitly clear that all children should be entitled to give their view and should be asked to do so. We are concerned about how that will be operationalised and who will take those views, because eliciting the views and experiences of very young children requires a specific skill set. We need to ensure that those who do that are appropriately trained.

John Finnie

I will maybe pick up that issue with another question. However, before I move on to that, I take it that you all disagree with the Family Law Association’s view, which is that the existing presumption does not prevent the views of children who are younger than 12 from being taken on board.

Chloe Riddell

Our services have numerous examples of children who have not been asked to give their views or whose views have not been taken into account. We know that that has an impact. We know of cases in which children have explicitly asked for their views to be taken into account but that has not taken place. We also know of children who have been advised to instruct their own lawyers once they reach the age of 12 because they have not been listened to up to that point.

If all children’s views were being taken into account in the way that you have described, we would not have the number of children in our services who do not feel listened to, who are unhappy with their contact arrangements and for whom the arrangements to ensure that the relationships that they wish to establish are safe are unsatisfactory.

Megan Farr

Regarding the existing presumption, like Chloe Riddell, we have heard of instances in which the presumption has been misinterpreted and children’s views have not been taken into account.

Notwithstanding that, general comment 12 of the United Nations Committee on the Rights of the Child makes it very clear that states should have a presumption that all children have the ability to form their own views and the right to express them, and that children should not have to prove that they have that capability.

Going further, the Council of Europe issued guidelines on child-friendly justice that state that

“children have the right to express their views and opinion on any issue or case that involves or affects them. They should be able to do so regardless of their age, in a safe environment, respectful of their person.”

The existing presumption goes against that, in that it sets an age. The impact of setting an age results in the opposite presumption being possible and, in some cases, being followed. That is why we support a presumption that every child has the ability to express their views and that those views should be given due weight.

John Finnie

As you may have anticipated, I support that position, too. What would that mean in practice, though? What would substantially change? Is everything in place to facilitate that? It is all very well changing the legislation, but the infrastructure needs to be in place to support any proposed change.

Joanna Barrett

As I said earlier, what is not in place at the minute is the skill set that is needed specifically to deal with very young children. We need individuals who are highly skilled and trained in child development to pick up on a very young child’s inner world and experience. Such skills are not particularly prevalent among our child welfare reporters and in our legal system.

There is also a cultural issue. In preparation for giving evidence on the bill, we spoke to our Childline counsellors, who were very clear that tension in family relationships is one of the biggest issues that comes to Childline. Children repeatedly talk about not being listened to and not being heard. It amounts to an assumption on the part of adults that children—particularly younger children—are unable to form or express a view. We need not only to have the framework provided by the legislation and the training to implement the framework, but to address what kind of biases might exist in our systems.

Chloe Riddell

The committee will probably be aware that Children 1st and Scottish Women’s Aid submitted evidence on the financial memorandum. One of the things that we are worried about is the level of resource to be allocated to the issues that have been mentioned. It is really important to note that removing the presumption does not require the courts to do anything different, because they should already be asking for the views of children; all that is needed is a change to ensure that what should already be happening actually happens.

For us, the positive presumption would help to enforce the message that all children’s views, including those of very young children, should be taken into account. However, we believe that there needs to be a strategic review of how that happens, because we know that there are significant barriers. Resource has been allocated to child welfare reporters, and I think that there is something about resource being allocated to allow children to speak to the sheriff, but we know that there are a number of other ways in which children might wish to give their views. We have already spoken a bit about the importance of the relationship with a skilled professional and the level of skill required, especially when it comes to sharing with the court the views of very young children who might not be verbal or who might wish to communicate in a different way.

Professor Elaine Sutherland spoke about being innovative and imaginative, and said that we should think further about what the current barriers to allowing children to share their views look like in practice.

Megan Farr

That is absolutely right. There needs to be more resourcing. In general comment 12, the UN Committee on the Rights of the Child says that it is important for children to be able to participate and to understand their rights, and for them to be supported in expressing their views. That experience will be different depending on the age and maturity of the child and on other aspects of their life.

There has been some important discussion about support workers. I am pleased that the Scottish Government has committed to looking at that issue further, and that work needs to be taken forward. As Joanna Barrett said, work also needs to be done to improve the capacity of the courts, including in relation to child welfare reporters. That will involve seeking the views of children, and it will require a particular skill set. We are pleased with the proposal on the registration of child welfare reporters, because that will go some way towards ensuring consistency in skills and training for that cohort of people.

More work definitely needs to be done to improve the system’s capacity. We know that children are able to express their views, and the system needs to be able to hear them in a way that is not harmful to children and which supports them properly.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Following on from John Finnie’s questions, I want to ask about your views on the decision to retain the presumption that children of 12 years or older are mature enough to instruct a solicitor. Should there be a wider review of the law in relation to age and capacity?

Megan Farr

There are definitely issues relating to the Age of Legal Capacity (Scotland) Act 1991, which is not surprising, given that it is almost 30 years old. In some ways, it is not particularly compatible with general comment 12. There are the same issues in relation to the presumption. However, that is a much broader issue. It does not relate only to the type of hearings that we are discussing; it extends to other areas, including medical capacity and education, which is an aspect that is missing from the debate on the age of legal capacity.

There is definitely a need for the issue to be looked at more broadly, but I do not think that that should be done in the bill. There is a tiny mention of it in the bill, but we recommend that that should be removed, because it could cause confusion between the notion of legal capacity in relation to understanding a court action and being able to instruct a solicitor to pursue one, and the ability to express views. Those are very different concepts that develop separately and on very different timescales.

Rona Mackay

To clarify, are you in favour of having no presumption at all, so that a child could instruct a solicitor if they felt mature enough to do so?

Megan Farr

We do not have a position on that at present. Work is not being done on that, although it has been acknowledged that there are issues in relation to the matter. It is being operated differently. However, it is not a topic for the bill, because the issue is much broader.

The interesting point is that a solicitor has an obligation to assess capacity when their client is instructing them, and we know that children under the age of 12 are, at times, assessed as having that capacity. We would welcome a Scottish Government review of the issue.

Chloe Riddell

In our evidence, Children 1st is clear that it seems to be a bit of an anomaly to leave in a presumption that children need to be 12 in order to instruct a solicitor. Our view is that it would be better to remove the presumption and, in line with the rest of the bill, to enable children to determine for themselves whether they wish to engage with a solicitor.

The committee heard evidence from Professor Sutherland, who talked about the role of solicitors in that process. It is important to look at whether solicitors have the ability to determine whether a child is mature enough or has the evolving capacity to instruct a solicitor and to know what that looks like in practice.

We have a 12-year-old in our services who is working well with a solicitor and who is represented and feels empowered by that. He feels that his voice is being heard much better as a result of having a solicitor and representing himself.

10:15  

Joanna Barrett

We did not comment extensively on that in our written evidence. There is a potential conflict with the removal of the presumption in relation to giving views but, as Megan Farr says, the two issues are very different. The age of 12 seems arbitrary, especially given that our knowledge of child development and how children behave and mature has grown since the 1991 act was passed. The issue should be reconsidered, but perhaps in a separate forum.

Megan Farr

If there is further consideration of the issue, we should approach it from the point of view of the child’s rights and incorporation of the UN Convention on the Rights of the Child. I assume that something that was child’s rights compliant in that respect would look at how children could be further empowered and supported.

Rona Mackay

Do you agree with the findings of Dr Barnes Macfarlane’s research report—that the bill should set out a non-exhaustive list of the different ways in which children’s views can be given to the court, and should give the child a say in which method is used in each individual case? Chloe Riddell touched on the issue in an earlier answer. Could you expand on that?

Chloe Riddell

The primary point is that we know that children want to give their views in a variety of ways, so we are concerned that a prescriptive list would limit the ways in which they could give their views, particularly as technologies evolve and children can share their views in ways that perhaps have not even been invented yet. It is important to have the review that I mentioned in order that we consider the current blocks and barriers to children giving their views.

It is important to ask the children: we need to check with them what they would like to do and how they want to give their views. The bill says that views should be given

“in a manner suitable to the child”,

but it does not mention asking the child what that manner might be. We know from our services that children like to draw pictures, make videos and speak to the sheriff directly. As I mentioned, one of the children we know has their own lawyer.

The child welfare reporter is an extremely valuable role, so it is important that there is adequate training for those really skilled professionals.

To answer the question, I suggest that we need to think a bit more about the detail of such a list. We are cautious about having something that is too prescriptive that would not allow children to express and share their views as they want, or to say that they do not want to share their views. We need to allow flexibility so that children can say that they do not want to express their views, where their doing so would not be appropriate or safe.

Rona Mackay

I was struck by the comment in Children 1st’s written submission that

“Children are not robots—we cannot expect them to be passive bystanders, going along with decisions made by adults in a system designed for adults without considering the impact”.

That is a powerful way of putting the point.

Chloe Riddell

Thank you.

Megan Farr

On whether children’s views should be sought, part of children’s participation should be about understanding how they wish to participate—the courts should take that into account. In any situation in which a child’s views are taken, it might be that we cannot do exactly what they want, but their views should definitely be taken into account and given due weight.

A list of examples of ways of taking views does not feel like something that belongs in primary legislation, but there is possibly a place for such a list in guidance, which would give it the opportunity to evolve. The risk of a list is that it can become interpreted as being prescriptive rather than as being something that will develop over time. The courts’ abilities to take views will develop over time, as practice evolves, so there should always be flexibility. At some points for some children, creative approaches might need to be taken and different expertise might need to be brought in.

A list does not feel like something that is appropriate for legislation, but the Scottish Government should certainly consider including a list in guidance. Overprescription is not likely to be useful for children.

Joanna Barrett

As Chloe Riddell and Megan Farr have said, a prescriptive list would not offer the flexibility that we need, although I think that there needs to be a minimum standard with regard to what children could expect, and with regard to what sheriffs, court welfare reporters and others might be able to offer. It is not only a question of how the views are given to the court: by whom views are given is also an important consideration.

Chloe Riddell

I remind the committee of the upcoming incorporation of the UNCRC through a bill that we will, I hope, see this year. If we are looking to make sure that the current bill is compatible with the UNCRC, and if we introduce the entitlements around best interests and children’s voices that we mentioned in our submission, I do not think that there will be a need for a prescriptive list. The flexibility and the safeguards relating to children’s best interests and their voices would be built in because those entitlements would be on the face of the bill, which would enable children to decide for themselves the best way to share their views.

Bill Kidd (Glasgow Anniesland) (SNP)

The way in which you have developed the discussion on children’s interests has been extremely interesting. I will ask about a different area of the bill.

Section 15 creates a new duty to explain court decisions to children—although there will be variations and the duty will be subject to various exceptions, such as if the child is not able to understand the court decision, or if explaining the decision might cause distress to the child, under certain circumstances. Do you have a view on how the new duty to explain court decisions to children will develop? Who would do it and how would they present decisions?

Joanna Barrett

The arguments around the issue are analogous to the arguments around the voice of the child. Who does the explaining will be really important: those people need to have the right skills. It will be done on a case-by-case basis. The ability to explain decisions will rely on the adult knowing how to communicate well with a child, and on their delivering appropriately and sensitively the messages that they must deliver.

We need to reframe our approach to the voice of the child, and to explanation of decisions to children. This is not necessarily about the capacity of the child to give views or to understand; much of the time it is about the capacity of adults to listen and explain. Maybe we need to think about it differently.

Megan Farr

I absolutely agree that we need to look at the capacity of the adults and of the system to work with children. There is a lot to be done in that regard. We are really pleased to see that the duty has been included in the bill. We hear often that children do not understand and it is left to a parent to explain, which can put that relationship in a very difficult position—in particular, if the child is not happy with the decision.

Work will have to be done to build the courts’ capacity to deliver on the obligation to explain decisions. Children will often need some support in understanding and coming to terms with a decision, especially if the decision is not in line with the views that the child expressed. We hope that explanation of decisions will help with understanding of, for example, why contact orders are not always followed. The duty will ensure that the child hears, in a neutral way, exactly why the court has made its decisions. That is good progress, but we feel strongly that there needs to be more research in order that we understand how best to deliver on the courts’ obligations. The courts will have to develop their capacity to do that.

I spoke earlier about the UN Committee’s general comment 12. The child hearing the outcome of having given his or her views, the extent to which their views were taken into account, or that they were not taken into account and why, are important parts of the participation process. Section 15 is very welcome, but work will need to be done to develop how obligations will be delivered. However, the obligations are the child’s right, so delivery is not optional.

Bill Kidd

Is it about the child having trust and confidence in the person who is explaining the decision to them? That person would have to follow the process from an early stage and not just come in at the end.

Chloe Riddell

That question draws on wider issues around support workers. As Megan Farr mentioned, Children 1st is very pleased that the Government will be considering the issue of support workers. From providing our services, we know that having a trusted professional or skilled person build a relationship with the child makes a significant difference to their recovery from what they have experienced—in particular, if domestic abuse has been involved.

We welcome provisions on feedback on decisions to children being in the bill, but the matter needs further consideration. We know that, at the moment, such feedback is not happening consistently or satisfactorily for children, and that they often feel quite lost and confused about what is happening, especially in an on-going court process that lasts for a number of years.

We would welcome consideration of how courts can regularly keep children up to date. Decisions need to be made about how that should happen and who should do it, and it will need resources. Reference to our response to the financial memorandum will be helpful because some resource has already been allocated. However, the task being given to a child welfare reporter is a significant responsibility for them to take on. I wonder whether there are other ways for decisions to be explained to children, and to take into account their views about how they want to be informed. Some children might want to be informed every step of the way, whereas others might not.

It is important to remember that cases do not all involve one-off hearings; there could be several decisions made that could change frequently over a number of years. It is really down to what the child wants and the ability of the court to build a relationship with the child so that it can find out what will be in his or her best interests. I believe that power up/power down, which is a project that is being conducted by the Children and Young People’s Commissioner Scotland and Scottish Women’s Aid, has talked about integrating a system of providing feedback on decisions and ensuring that children are involved in all parts of the process. How that would work in practice requires further consideration.

Megan Farr

We are concerned about the enabling of the court not to comply where complying might not be in the best interests of the child. We would be really concerned if that power were to be used in anything other than exceptionally rare circumstances. We would welcome such decisions being monitored in order to ensure that excessive caution is not being applied.

The Convener

Two areas that you have covered will be worth examining at stage 2. We will need a lot more information on them, especially as the judiciary has real concerns about how it will deliver its duty.

Liam McArthur (Orkney Islands) (LD)

I turn to confidentiality of information. I know that Children 1st, among others, has expressed concerns about that. The Scottish Government consulted in 2018 on a legislative provision and asked whether confidential information should be made available to a litigant who is asking for it. That should be done only when to do so is in the best interests of the child, and after the child’s views have been taken into consideration. We have heard, however, concern from Professor Sutherland, in a meeting before Christmas, about how that might come into conflict with rights that are protected by the European convention on human rights that relate to adults. Could the panel talk us through where their concerns lie and how we might be able to navigate a situation in which there is a potential conflict between the interests and rights of adults and the interests and rights of children?

Megan Farr

A balance needs to be struck between the right to a fair trial—which is what Professor Sutherland was referring to—and the right to privacy for children and anyone else who is discussed in, for example, a service provider’s report or notes. We have been concerned by cases of entire case notes being made open to the court. The child’s right to privacy is very important; the child’s best interests should also be a factor. There are concerns that a child’s welfare might be at risk if an entire set of case notes were to be made available to all the parties. A balance needs to be struck, but we would be concerned if there were more such instances; I know that there have been examples of that happening. When information is sought, what is being sought should be tightly specified, and there should not be a request for an entire file.

10:30  

Liam McArthur

It is about relevance and proportionality.

Megan Farr

Yes.

Chloe Riddell

The committee will be aware that Children 1st has been keen to address the issue for a number of years. Our view is that primary legislation is needed and that the bill should be amended to ensure that it is compliant with the UNCRC. For us, this stems from a real case—not from a hypothetical situation. It will not be helpful to go into the detail of the case, but I will say that confidential information about children that was held by a third sector organisation—Children 1st—was revealed to the court in its entirety. Our concern was that the rules that were in place did not prevent that from happening, and in the future there is potential for such files containing personal and private information to be released not only to the court, but to a perpetrator. We are therefore in a situation in which private and personal information about abuse or about children’s thoughts, feelings and views could be shared with the perpetrator of the abuse.

We are absolutely not seeking a blanket prohibition or inadmissibility of information that is sought by the courts—we know that third sector statutory organisations often hold important information that we need to share with the courts to help them to make decisions. We are talking about ensuring that tests and balances are in place so that such sharing of information is proportionate.

We also want children to be involved in those decisions, when that is appropriate and safe. The committee has already heard about instances of children willingly sharing information without being aware of where that information was going or what would happen to it. We are concerned that we cannot guarantee to children with whom our domestic abuse services, for example, are working, that information that they share and which is not relevant to a particular court decision will not be shared. We are worried that that will have a detrimental impact on the service that we provide by limiting our ability to have full and frank conversations, and to help children to recover. It is a significant issue and it is important to include it in the bill. We would welcome an amendment being lodged at stage 2.

Finally, I want to make a short comment on court rules. There are already court rules in this area, and the Government has talked about further rules. The advice that we have had from solicitors who worked with us on the initial case is that practice notes do not have the same level of protection as primary legislation, so there is a greater risk that a court practice note would not be followed. Some respondents to the initial consultation argued that the rules in the sheriff court and the Court of Session address that concern, but we believe that a clear framework in primary legislation would avoid doubt and put children’s best interests and their voices at the centre of decisions, in line with the original intentions for the bill.

Liam McArthur

That is helpful. It is entirely understandable that that would mean that a child—of any age—would likely be more relaxed and willing to be forthcoming with their views, particularly on more sensitive issues relating to abuse.

At the same time, it is not hard to imagine that some sensitive detail about abuse would be entirely relevant to a case. How is that managed, with the child? I suppose that their expectations are managed through the process so that their voice is heard, but some of the information will have to be revealed to the court at some point.

Chloe Riddell

No service is able to guarantee complete confidentiality to a child or a family. The existing law that sets out our child protection duties includes a duty to share information where that is required in order to keep children safe.

As I have said, we do not mean that no information at all should be revealed; rather, the approach should ensure that what is revealed to or shared with a court is proportionate. Where information and case files are relevant, they absolutely should be shared. The voices of relevant people, such as support workers, should be also be heard by the court. In fact, we very much welcome the inclusion of the voices and views of such workers in the court setting so that they can share their experiences of working with families.

We are concerned about situations in which an entire case file that contains information that is not relevant is released. A service provider would not necessarily make the decision to share such a file, but perhaps the court would. Information that has been deemed to be not relevant should not be shared with other people, for whom it is not necessary. In my example, the file that was shared contained details about the child’s dreams and information about what was happening at school, which we did not consider to be relevant to their case.

The approach should be proportionate. We would encourage lodging of amendments that would ensure that the safety and welfare of children were the paramount considerations, and that their views would be sought. The effect should not be that children should have the final say in what happens to their information, but that they are informed about what happens to information and are part of the decision-making process. If a decision is made to share their information, the child should be informed of that and should know what will happen to it after it has been shared.

We know that the information that we hold is important and relevant, but if we were to operate on the basis that any information, case files or other documents that we hold could be shared with the court in a blanket fashion, without checks and balances, that would be really detrimental to how our services operate.

Liam McArthur

Perhaps an amendment could be framed in such a way as to make the bill comply with the ECHR as well as the UNCRC, as you have said.

Chloe Riddell

I think so. We can make a really strong argument that such instances of information disclosure do not, at the moment, comply with either the ECHR or the UNCRC.

The Convener

I would like to explore sections 1 and 12 of the bill with members of the panel.

Section 1 seems to repeat what the Family Law (Scotland) Act 2006 said. The courts must consider two factors: the prospect of parental co-operation and the need to protect a child from the risk of abuse. Section 12 will introduce two further statutory factors that they must consider: the effect that a court order might have on a parent’s involvement in bringing up a child and the effect that a court order might have on the child’s important relationships with other people. Will you comment on those provisions? What do you think of the idea of having what is almost a list of factors set out in the bill?

I noticed that Megan Farr said that the Children and Young People’s Commissioner Scotland was supportive of the idea of the right to contact with the extended family, although he did make a distinction between having that as a statutory factor and relying more on the child’s perspective.

Megan Farr

Our view is that where presumptions exist they should always be centred on the child rather than on adults. The one exception is where the child in question has siblings, which means that the best interests of more than one child need to be balanced against each other.

Such issues have arisen in discussions on involving other key people, such as children’s grandparents. However, it is important to remember that a range of adults—who may or may not be biologically related to them—might be important to children. Our view is that a child should have the right to continued contact with their extended family if that is safe and in their best interests. We have not gone into great detail on that particular aspect, but our view is that any presumption should be centred on the child and their right to continued contact with their extended family, rather than focusing on any specific adults who might be in their life. Grandparents are often mentioned in this context, but children might have aunts and uncles, godparents or other adults who have played a significant part in their lives.

By concentrating on children, we will keep them as our main focus. The situation should not become one in which adults might be seen as having rights to a child; rather, the focus should be on the child’s rights to have the relationships that I have mentioned.

The Convener

Could there be a danger of just ticking off a checklist, as opposed to looking at whether something is appropriate in an individual case?

Megan Farr

Indeed. The general risk with lists is that although what is on the list can help people to think about specific factors, it can also limit what is considered. We have spoken about that risk in another context.

Joanna Barrett

We do not support a presumption, de facto or otherwise, of maintenance of relationships with anyone. The issue has to be what is in the best interests of each child. The relationships around every child will be different and, in each case, will either be beneficial or otherwise. Of course, contact with the extended family is important, but we would not support any presumption in favour of it in primary legislation.

Chloe Riddell

Children 1st has similar views. The court’s primary concern must be the best interests of the children. Clan Childlaw, among other organisations, has done a lot of work about sibling contact, and I would usually defer to its expertise on that issue.

The Convener

Does the panel think that the bill more or less has the provisions right? Does the issue need to be clarified in any way?

Joanna Barrett

We support the intention with regard to sibling contact; sibling relationships are massively important to us all—where we have them. However, the question is how the provisions will work in practice. A possible situation might involve two children and two competing best interests, in which contact with a sibling may be in the best interests of one child but not the other. In resolving and managing such situations, what is in the best interests of each and every child would have to be assessed on a case-by-case basis. Who would make that assessment about what is in the best interests of siblings? Ultimately, we support the general principle of the provision, but we have concerns about how it will be implemented.

Chloe Riddell

I go back to our broader discussion on training and support for listening to children’s views and making sure that there is enough time to establish and build relationships so that children feel comfortable about sharing their thoughts about their relationships with the important people in their lives, regardless of who they are. A lot of considerations have to be taken into account. What is important is ensuring resource for the training, so that children are able to fully and clearly express their views in a way that reflects the reality of the situation for them without fearing any repercussions of what they say. There needs to be a trusted relationship so that they can share their views and so that decisions can be made in their best interests.

The Convener

Shared Parenting Scotland said that the bill is a “missed opportunity” to give sheriffs more guidance. Is it fair to say that a comprehensive checklist covering the issues would be too prescriptive and that the bill’s wording does not stop any of those relevant issues being looked at in a case, if that is suitable for the individual child?

Megan Farr

We said in our submission that new sections 11ZA and 11ZB would benefit from being reframed from a child’s rights perspective in their entirety; we discussed that specific matter with the Scottish Government. Extending the checklist would be overly prescriptive; I do not think that the bill is a missed opportunity in that respect. There would be a missed opportunity if the bill were not made as UNCRC compliant as possible—that would really strengthen it.

The Convener

If you were to seek to amend the bill, what would that look like?

Megan Farr

I do not have specific examples to hand. Rather than scrabble around in my papers, I will borrow Chloe Riddell’s copy of the bill.

We would frame it according to the child’s right to be protected from abuse, rather than the need to protect the child from abuse. We would frame it using the language of rights—the right of children to be cared for and, in section 11ZB, their right to give their views. The same would apply to children’s right to maintain relationships with their family members, instead of talking about individual members of the family.

10:45  

The Convener

So it is just turning it round so that child’s welfare is absolutely at the heart of this.

Megan Farr

Yes, so that the focus is on the child.

The Convener

That is helpful.

Chloe Riddell

Scottish Women’s Aid and ASSIST—the advocacy, support, safety, information and services together service—will give evidence after this session, but it is important to remind the committee now that we must also view any changes to the legislation through the lens of domestic abuse victims. If we get it right for those most vulnerable people, we will get it right for everybody. When domestic abuse is involved, there are significant factors related to safety and children’s best interests that should be taken into account when the bill is being amended.

Megan Farr

Although domestic abuse occurs in a minority of families—and that is a good thing—they are not the minority of cases that reach the court.

The Convener

Do the provisions cover sufficiently cases where there is no domestic abuse, but there is a dispute about parenting orders?

Megan Farr

My understanding is that that is roughly half of cases that reach court. That is a fairly consistent research finding across jurisdictions and over time.

As long as they are centred on the child’s rights, the answer is yes. Article 18 of the UNCRC has as a principle the involvement of both parents in a child’s upbringing. The caveats to that are the best interests of and welfare of the child, but I think that the bill adequately covers those.

The Convener

Thank you.

Shona Robison (Dundee City East) (SNP)

Good morning. I have two questions. The first is on the child welfare reporters and curators ad litem. Sections 8 and 13 of the bill propose regulation of both. We know that you are supportive of that principle, but it would be helpful if you could tell us what you think are the key features of any regulatory regime that should be brought in, such as qualifications or training requirements, as well as any concerns that you have about how any regime would operate in practice.

Joanna Barrett

We support the regulation of court welfare reporters. The policy memorandum says that 90 per cent of court welfare reporters are lawyers. We pose the question whether that skill set is conducive to best practice in engaging with children and fulfilling UNCRC obligations. It is not that lawyers cannot engage with children, but it is arguable that those in other professional disciplines are more skilled at doing so.

We support moves to widen the professionalism of court welfare reporters, to encourage psychologists, social workers and others to be court welfare reporters. However, we are concerned—and our experience in the children’s hearings system is—that there are professional biases in our legal system whereby lawyers are deemed to present arguments in a better or more compelling way, and social workers and others feel less confident in legal forums.

We need to consider which is more important: that court welfare reporters have a skill set that fits into an existing legal system or that they have the ability to work effectively with children. We would argue that it is the latter. Therefore, any regulation has to contain minimum standards for training, and that training ultimately has to provide a fundamental understanding of child development and how to engage with and relate to children.

Megan Farr

We also support the proposals for regulation. As Joanna Barrett says, the legislation has been developed in a way that provides flexibility, in that it is not prescriptive about who a child welfare reporter is in terms of their specific qualifications. We would like to see the development of requirements for training and qualification that recognise the importance of human rights, and particularly children’s rights; of child welfare reporters having an understanding of child development; and of seeking the views of children and knowing how to support them when they are expressing their views, particularly if they choose to do so in person.

The legislation is framed in such a way that there is flexibility as to an individual’s professional qualifications. That is a good thing. The area will evolve over time. We are not likely to see a quick change in who a court welfare reporter is. However, it is good that that flexibility is built into the legislation.

Chloe Riddell

As the committee might be aware, Children 1st currently operates the safeguarders panel for the children’s hearings. Our learning from that is that it has been an important process. It has taken a lot of time for us to establish procedures and processes to streamline practice, but it has been worth while. We can take a lot of lessons from that in relation to the operationalisation and administration of the panel.

With regard to what is being achieved, we have heard many times from the children and families in our services of very good experiences of working with child welfare reporters. There have been good examples of children feeling listened to and heard and of the reports being of a high quality. On the flipside, we have heard examples of children feeling traumatised by the experience of repeated questions. We have heard of three or four occasions on which different child welfare reporters have gone back to the same child over a number of years.

The intention behind that part of the bill is important. We strongly support the findings of the research and the work that the Scottish Government has done on that. The child welfare reporter can play a vital role in the civil court process. The report can often be the deciding factor in what contact arrangements look like. Therefore, we need to make sure that we invest in the role and that a significant amount of training is undertaken. If contact arrangements are unsafe for children, because a child welfare reporter has not understood the dynamics of domestic abuse or the realities of family life, that can significantly impact on a child.

We do not want a postcode lottery of provisions. Therefore, it is important to make sure that training is streamlined. The training should be not just on domestic abuse but on trauma, attachment, and—as Joanna Barrett was talking about—child development and how children communicate in non-verbal ways.

Our experience with the safeguarders panel is that putting safeguards in place can be complex. It requires a significant amount of investment and time, but there are advantages in terms of advancing children’s rights. If we get the reports right—where it is safe and appropriate for a child welfare reporter to be in place—and make sure that contact arrangements are more stable and that children, families and women are happier with the arrangements that are in place, that can prevent us from repeatedly going back to court, which is what happens when unsatisfactory arrangements are in place.

Megan Farr

We agree that that could be the major benefit from it. We welcome the Scottish Government’s commitment to fund court welfare reporters. Effectively, discrimination existed in that situation, because if one of the parents was in a financial position to pay for a court welfare reporter, or if one of the parents was legally aided, the child had one, but for the children who fell in between those two groups, access to justice was impeded by financial considerations. Therefore, the commitments around funding are welcome.

Shona Robison

Thank you. My second question relates to those contact arrangements. Is regulation of child contact centres desirable? If so, what should the key features of that regulatory regime be? What type of regulation would improve safety, while ensuring that people can still access a centre that is local to them? Not everyone will use a contact centre, but it will be an important part of the process.

Megan Farr

We have also welcomed the regulation of child contact centres, and note that Relationships Scotland, which operates the vast majority of contact centres in Scotland, has also done so. In the long term, this area potentially needs to be developed to define the most appropriate situation for children. We hope that as a result of regulation, there will be improved understanding of what the child contact centres are and why they exist. Over the years, we have heard of instances in which they have been used inappropriately.

In line with the regulation of welfare reporters, we think that there is a real opportunity to raise standards in training on requirements for staff to ensure that facilities are safe, but we recognise that there are significant concerns about resourcing. The welfare reporting service is not funded by Government. It is often funded by the parties involved, some of whom have particular resourcing issues. Therefore, we would be disappointed if regulation were to be so stringent that it restricted the number of contact centres. However, we believe that the Government’s current proposal is for inspection to be undertaken by the Care Inspectorate, which probably has the ability to take a proportionate approach to an inspection regime to ensure that standards are improved.

Training for contact centres needs to cover similar issues to training for welfare reporters, including domestic abuse, because, again, disproportionately, those are the cases that reach court, and even more disproportionately, they are the cases that end in contact centre usage. We need to ensure that contact centre staff have an understanding of their role in keeping the child and the non-abusing parent safe.

We are also concerned that in some instances contact is ordered at a contact centre when there is very little potential for that contact to progress to unsupported or unsupervised contact. We are not convinced that contact in the contact centre is always in the best interest of the child, in cases in which, at that point in time, it does not seem that the parent who is having contact will progress to a point at which it will be safe for them to have their child outwith the centre.

Joanna Barrett

I endorse those comments. I do not have much to add.

Chloe Riddell

When we talk about contact arrangements, the starting point needs to be children’s right to safe and positive relationships. It is not always appropriate—or indeed safe—for a child to be at a contact centre. When making those decisions, we must be really clear that they are in the best interests of the child and consider what arrangements are safe for them.

In our view, contact centres can play an important role in facilitating safe contact arrangements, and there is potential for them to be part of a rights-based approach to civil justice. There is scope for contact centres to develop into welcoming places where children and families want to go, but that would require resource. We mentioned that in our response to the financial memorandum on the bill, so I will not go over that in too much detail. However, we talked about provisions, for example, for those children who live in island or rural communities. As Megan Farr mentioned, it is also really important to reflect the importance of training in the financial memorandum.

We also know that contact arrangements are often used to perpetuate domestic abuse, and it is vital that that is not allowed to continue and that the staff or professionals who are supervising the contact are alert to that possibility and that the courts are alert to the way that such abuse can happen.

For us, the training must also include child development, communication and trauma. We know from Relationships Scotland’s submission to the bill consultation that in recent years there has been an increase in the complexity of issues faced by families that use contact centres, including mental health and addiction. We are therefore keen to see what the practical considerations might be for children whose parents are experiencing some of those challenges and for what contact centre staff should do if they are concerned about what they see happening in the centre, who they should report to, what happens when contact arrangements are no longer suitable, how that can be remedied and the children’s views on how the contact is happening.

The broad answer to your question is that we think that regulating the contact centres is important and training is vital, but a lot of discussion is needed to ensure that the approach is safe, appropriate and in a child’s best interests.

Shona Robison

Megan Farr referred earlier to examples of good practice and examples of not so good practice. It would be helpful if they could be presented in an appropriate way in a follow-up letter to get a bit more detail on that.

11:00  

Rona Mackay

I have a short supplementary question on that issue. We know that there has been concern about children being ordered to have contact with a parent when they have said that they do not want that, whether the case is domestic abuse related or not. How confident are you that sheriffs and the other people taking the decisions will take into account the views of the child, which are obviously paramount? We have talked about giving children a greater voice, but do you think that the judicial system is ready to accept that and make the decision based on it?

Megan Farr

There is very good practice out there, but there are probably some sheriffs who could benefit from further training on that. It is one of the benefits of the bill and one of the reasons why we are pleased to see the improvements that the bill represents around seeking a child’s views. In particular, there needs to be a better broad understanding of the child’s evolving capacities. Dr Gerison Lansdown’s work on that for the United Nations Children’s Fund some years ago is a particularly useful resource. There is undoubtedly a need for training, given the telling examples that we hear about. For example, there could be a family with several children for whom contact is ordered when the children are under 12. When the children reach 12, they are suddenly heard and contact is no longer ordered, but the contact order remains in place for the younger sibling, who is perhaps 10 and is saying exactly the same thing. The continuing number of cases that come to us or we hear about from colleagues in other organisations that are dealing with similar cases suggests that there is a need for better training and awareness. We hope that the bill will be a catalyst for that happening.

Joanna Barrett

That is another area where the needs and behaviours of very young children can be overlooked in a way that is detrimental to their welfare. We work with many young children who are in contact situations that are distressing but who cannot articulate that it is distressing. They come home and their behaviour, toileting and sleep all change—demonstrable behavioural signs that contact is not in that child’s best interest. I do not know the extent to which that feeds into contact decisions.

The other thing that I will highlight is the interplay between our various legal systems. I do not think that that happens enough. We have instances where contact is being decided in the children’s hearings system, but there is also a civil action or even a criminal action against an individual for domestic abuse or a sexual offence or something else. We have had instances where someone is accused of a schedule 1 offence but contact has continued via the children’s hearings system. There needs to be much more integration between our legal systems, particularly on contact, to make sure that it all makes sense and that children are kept safe.

Megan Farr

There needs to be a better awareness that, although children have a right to grow up in an environment in which they have contact with both parents, that is only if it is safe and in their best interests to do so—there are absolutely cases where it is not.

Chloe Riddell

One of the most important provisions in the bill for the families we support is on investigation into non-compliance. That has an important role in understanding why some arrangements have not been complied with.

The Convener

We will cover that issue separately, so if you could hold your fire on that just now.

Chloe Riddell

I just wanted to say that the thing that is missing, which we have all talked about, is the ability for children to feed back when a decision has been made. Although there is the measure for investigation into non-compliance, there is not provision for discussions about what a child thinks about the decisions made, or even a chance to review contact arrangements after a particular time.

Megan Farr

The other thing that is often missing is an understanding of the impact on the child when one parent is in the position of having to force them to attend contact. That puts that parent and especially the child in an extremely difficult position. Although the child absolutely does not wish to attend contact, the court order means that the resident parent has forced them to do so, and that ends up damaging that relationship as well.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Good morning. Thank you for the informative evidence that you have provided so far. I would like to hear your views on sections 4 to 6, which are on vulnerable witnesses and the cases that go to proof. Do you support the extension of those provisions to children’s hearings?

Joanna Barrett

We support the measures in the bill, and we think that they should be extended to the children’s hearings system.

The fundamental point that I would like to make is that the committee should have in mind as part of its wider consideration of the bill, rather than in the context of amendments, how our legal systems interact. It has become accepted that how we treat vulnerable witnesses in our criminal system is not good enough and must fundamentally change. We are looking at the barnahus, or child house, model and we are trying to get children out of the criminal system.

The bill is attempting to introduce in the civil system measures to enable children and other vulnerable witnesses to give their views in a way that is safe without their having to attend fora directly, but in our children’s hearings system children are compelled to attend. I read with interest Children’s Hearings Scotland’s submission, in which it says that child victims, adult victims and perpetrators of abuse are entitled to and must attend hearings. There is a complete lack of synergy in what our expectations are and what our protections are as regards the interests of children in our various legal systems.

We are trying to get children out of the criminal system altogether, whereas in our hearings system we are making children be in the same room as people who, it could be argued, have harmed them. In our experience of the children’s hearings system, very young children are being forced to attend hearings in a way that is detrimental to their welfare. Therefore, we absolutely support what is proposed, but we think that it is also necessary to think about what the protections are and what our expectations are for children in the children’s hearings system.

Fulton MacGregor

On that point, the Scottish Children’s Reporter Administration has said that it thinks that children’s evidence in family cases should be treated in the same way that it is treated in criminal cases—in other words, it should be taken in advance, where that is practical. That would mean that sections 4 to 6 would not be required for children. What do you think about the SCRA’s views on that? I would also like to hear what other members of the panel think about that.

Joanna Barrett

I think that I am right in saying that the SCRA is talking about proceedings in front of the sheriff that relate to hearings.

Fulton MacGregor

Yes.

Joanna Barrett

It is absolutely the case that there must be protections—we are talking about children who are in the children’s hearings system, so we are talking about extremely vulnerable children.

The point that I am making goes beyond that; it is about what happens in individual hearings in our children’s hearings system. We have experience of very young children—18-month-old or two-year-old children—being forced to sit across from someone who has caused them harm. Our practitioners are regularly distressed by attending hearings at which children are distressed and are showing attachment behaviours.

I absolutely support what is in the bill, and I support what the SCRA has said about extension of the provisions to children’s hearings, but I think that we also need to look at our hearings system. We rightly uphold our children’s hearings system. The Kilbrandon principles are to be admired and advocated, but the operationalisation of them falls short of our expectations. It could be argued that we champion the children’s hearings system to such an extent that we are quite complacent about it. We need to think about the protections that exist in our hearings system, our civil system and our criminal system and to what extent they are coherent.

Megan Farr

Article 2 of the UNCRC states:

“States ... shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind”.

That is the non-discrimination principle. A child is a child is a child: they are just as much a child in the children’s hearings system as they are in the criminal courts, and they should be afforded the same protections across all forms of proceedings.

Chloe Riddell

I agree completely with my colleagues. We cannot have a situation in which we try to establish a gold standard of a child house model in the criminal courts at the same time as having a system in which children feel as though their rights are being violated in civil courts and children’s hearings.

My understanding is that children will rarely attend the civil courts, but the provisions in the bill are important for victims of domestic abuse. Much of the bill comes down to implementation. The special measures are very important but will only work if there is consideration of the whole experience, particularly for a victim of domestic abuse. For example, if a victim of domestic abuse walks through the court doors at the same time as a potential perpetrator and then has to sit for three hours in a waiting room that that perpetrator may walk past, they are using the same space and that will be a fairly distressing experience, even if the victim then goes into a court where there is a curtain or screen between them. We must ensure that the special measures are implemented in a way that makes sense for the whole experience. It is important that perpetrators of domestic abuse are not able to continue to perpetrate abuse through the courts. We welcome those provisions.

I imagine that the witnesses from Scottish Women’s Aid and ASSIST will talk later about how a victim will be determined and links with criminal court proceedings. Those are important considerations when the committee is looking at the sections of the bill on vulnerable witnesses.

We welcome the provisions on ensuring that special measures are taken to enable people to cross-examine or question a victim but, as my colleague has said, we must ensure that we streamline the process across the different proceedings, bearing in mind that a lot of the time we are talking about the same children. Many children go through the criminal courts, civil courts and children’s hearings at the same time and experience three different proceedings.

Megan Farr

It is important to remember that, although the system experiences that as three different sets of proceedings, that is not how children experience their interaction with the court system.

Fulton MacGregor

Following on from your last point, I wanted to ask the panel for their views on section 7, which would allow the sheriff court, for the first time, to order the use of special measures in court hearings where formal evidence is not being taken. I know that Children 1st and Scottish Women’s Aid have criticised that aspect of the bill and that ASSIST has also referred to it, but are there other views on section 7 that the panel would like to put on record?

Chloe Riddell

Sorry, but which section are you referring to?

The Convener

It is section 7, on child welfare hearings.

Chloe Riddell

I do not have any comments further to our written response, which was in line with the comments that I have just made about ensuring that the implementation is well thought out and is not just focused on being in court but considers the whole court building and the whole process. As I mentioned, there are some concerns about how victims will be identified, particularly if there are no criminal proceedings, and how the special measures will be applied.

Our submission mentions that there is a need to ensure that the measures apply to all children; although we understand that it would be very rare that a child would be physically present in court and so would require the special measures, we need to ensure that, if they are in court, those measures are applied. Does that answer your question?

Fulton MacGregor

I fully appreciate that you had already started to talk about your views on that subject in the last line of questioning. If no one else on the panel wishes to comment, I will leave it there.

11:15  

Liam Kerr (North East Scotland) (Con)

I would like to move on to something that was touched on earlier: situations in which someone fails to comply with a court order. Section 16 seeks to impose a new duty on the court to investigate the underlying reasons for such a failure. The investigation could be done by the court itself or by a court-appointed child welfare reporter.

The committee has received mixed views on that proposal. Some have been supportive, whereas others say that the proposal adds nothing, because courts are already able to carry out such investigations.

I seek the panel’s views on that. Are you supportive of the proposal?

Chloe Riddell

The proposal is one of the things—I think that I said this before—that the families who use our services are quite relieved about. I know that there has been some discussion that such investigation already happens, but, anecdotally, we are hearing that it is not happening as consistently as it should be.

There are often very good reasons for non-compliance with contact orders. Often, they come down to the child. It is extremely difficult to get a screaming three-year-old into the car, but I imagine that it is even more difficult to get a screaming 15-year-old into the car. Aside from that, it is extremely distressing. Giving courts the ability to think a little bit more about the reasons behind non-compliance and bottom them out is really welcome.

The situation can be extremely distressing for both sides of a relationship. If a child is being forced to attend contacts, that can be distressing for the child and it can damage the relationship with both parents.

We strongly welcome the proposal, but, as I mentioned before, we would prefer to be in a position where non-compliance does not happen because the court order and the contact arrangements are satisfactory and allow the flexibility for children to change their minds. Without having to go through formal proceedings, children should be able to say that they have been invited to the cinema on a particular day and that, therefore, they do not want to attend contact and would prefer to change it to a different date. Giving children the ability to respond when a decision is made is also really important.

The level of anxiety that we have heard about in our services from families who are concerned about not complying with contact arrangements that they feel are unsafe or unsatisfactory but that they feel they have to comply with is significant. Parents having the ability to discuss and address those concerns about contact arrangements with somebody who will investigate them is really welcome.

Megan Farr

We agree, and we welcome the proposal. It is an area where there has been mixed practice. We have also heard of cases in which the reasons behind contact not happening were not properly investigated.

It is an area in which the explanation of decisions has evolved. It may assist a child if they understand why contact has been ordered, particularly if they do not want it.

Our biggest concern is that, when a parent has failed to comply with an order, there is a risk that sanctions could be applied without the court understanding the reasons why the order has not been complied with—which could be genuine reasons, such as a child having been sick on a particular day. There needs to be a proper understanding of those reasons. The anecdotal evidence that we have heard of differing practice is such that we think that it is useful to have the provision in the bill as a reminder to courts that, when contact orders are not obeyed, they need to properly investigate that rather than progress further down a legal route. Courts need to understand the views of the child as well.

Joanna Barrett

We support the measure. As Chloe Riddell said, we would hope that court orders would be satisfactory in the first place. The elements of the bill that require properly hearing the voice of the child and taking it into account, properly explaining decisions and reading across different legal systems should go some way to ensuring that an order is satisfactory in the first place and more likely to be complied with.

Liam Kerr

If you support either the court or a child welfare reporter doing the investigation, a question occurs to me: are the extra resource requirements adequately provided for in the bill?

Chloe Riddell

I refer the committee again to our response to the financial memorandum, in which we were clear about the importance of properly resourcing each of those areas. Our sense is that we will eventually save money if we invest properly in ensuring that people are trained and qualified in making sure that children are able to determine for themselves the best way for them to interact with the process. That is because we will not have repetitive, lengthy court proceedings going on, and we will not have vast numbers of traumatised children and adults who are unable to establish and maintain relationships with the important people in their lives because of decisions that are made in the courts.

I suspect that the answer to your question is that we have called for more resources to be put in place and for more consideration of how such things will work in practice.

Liam Kerr

Megan Farr mentioned sanctions being applied. In 2018, the Scottish Government consulted on alternative sanctions for non-compliance; however, there is nothing specific in the bill. The committee heard evidence that there might be alternative ways to address the issue, such as alternative dispute resolution or—as some people have suggested—a parenting co-ordinator. I seek the panel’s views on sanctions, alternative sanctions and alternatives to sanctions.

Megan Farr

We are concerned that, in some instances, sanctions have undoubtedly not worked in the best interests of a child. There have been cases in which a primary care giver has been imprisoned for a short period. The imprisonment of the primary care giver of a child on a short sentence is always a matter of concern. Where sanctions are imposed, there should be consideration of the best interests of the child. That should be the case in all instances of sanctions being applied against primary care givers.

It is important to consider forms of alternative dispute resolution such as family group decision making and mediation, among others, as it may well improve outcomes for children. However, we recognise that many cases that reach the courts involve domestic abuse and that, in those situations, where there is a significant power imbalance, it may not be the right answer. Even in situations where alternative dispute resolution is appropriate, there needs to be good understanding among the professionals of issues such as domestic abuse and child development. A skilled professional facilitator or mediator has a role to play in those instances.

Liam Kerr

Thank you.

Megan Farr

Does that answer your question?

Liam Kerr

It does.

If the convener will forgive me, I will ask—briefly—about something else that is buzzing in my mind. In that answer, you said that many cases that reach the courts involve domestic abuse. Do you have any statistics on that, which you can share with the committee?

Megan Farr

There are a range of statistics, some of which were included in the research that we did with Kirsteen Mackay. I have some statistics that I can forward to the committee. My understanding, from speaking to a lot of the academics who are involved in the work, is that the statistics are fairly consistent in that they are around the 50 per cent figure or greater. It is not an easy area to deal with. When I was here before Christmas, I mentioned that we recognise that conviction rates for domestic abuse are historically low. That is why we have a new act that seeks a better understanding of domestic abuse. Scottish Women’s Aid and ASSIST may also have statistics that can help.

On the basis of my consideration of the international evidence, I note that the statistics are fairly consistent in showing that around half of cases that reach the courts involve domestic abuse. That is not surprising when we consider the fact that, simply by their nature, the cases that reach the courts are the ones involving the highest degree of conflict. Parents who can agree do so before they get to court.

The Convener

We should probably point out that Sarah Harvie-Clark provided us with a very good report on some of the statistics. Nonetheless, it is always good to hear other comments. I apologise to Liam Kerr, whom I stopped mid-flow.

Liam Kerr

No—I think that Chloe Riddell was going to answer.

Chloe Riddell

It is also worth noting that those statistics will, hopefully, change with the new domestic abuse legislation. We work with a number of women who do not recognise themselves as victims of domestic abuse; who are encouraged by, for example, solicitors not to report in the civil courts; who do not feel comfortable or confident or that the abuse is relevant; or who are not going through criminal proceedings. That is a note of caution on the research, because there are probably a number of unreported instances as well.

Megan Farr

That knowledge of domestic abuse—particularly of coercive control—concerning people who are involved in alternative dispute resolution and mediation is really important, because that may be the point at which professionals first come into contact with an abuse situation. As Chloe Riddell said, the person may not actually be aware that what they are experiencing is domestic abuse.

Rona Mackay

Section 10 of the bill requires local authorities to promote personal relations and direct contact between looked-after children and their siblings to an appropriate extent. Could I have your views on that and on whether you have any concerns about that section of the bill?

Megan Farr

We are really pleased to see that in the bill, as the commissioner’s office and a number of other organisations have been campaigning for it for some time. Our concerns are not around the provisions that are in the bill; they are around the other people to whom the provisions do not extend. My understanding is that they extend to children who are currently looked after but not to children who were formerly looked after.

We think that the bill could be strengthened by a better understanding of whom children see as their siblings, but we are careful about discussing types of relationship. Whom children understand as being their siblings can be quite complex, as families can be quite complex. A family can include step and foster siblings as well as half and full siblings. Although we are aware that it exists in other Scottish legislation, we do not think that the phrase

“whether of the half-blood or of the whole-blood”

is particularly helpful. It is not how we understand families today, and I think that the inclusion of that phrase potentially places a restriction on who those children are.

Our other concern is around ensuring that local authorities have adequate resources to facilitate contact between siblings.

Rona Mackay

Would you be concerned that those decisions should be made by suitably skilled people with the right training?

Megan Farr

That continues to be an issue across all aspects of the bill. Joanna Barrett touched on the fact that we must act in the best interests of the children concerned and consider their views, and, when multiple siblings are involved, their relationships do not necessarily align with what is in the bill.

Presumptions are rebuttable; nonetheless, we support a presumption that it is important to maintain relationships between siblings, as young people—particularly looked-after young people—tell us that that is important.

Joanna Barrett

I jumped the gun and answered the question earlier, so I will repeat what I said then. NSPCC Scotland is supportive of measures to promote sibling contact when that is in the best interests of children, but we are not in favour of a presumption. We have concerns about how parental contact decisions are made, and de facto presumptions are not helpful there. It is the same with sibling contact, which has to be supported on a case-by-case basis. It must be a very skilled person who assesses whether contact is in the best interests of all the children and how to resolve situations in which it is in the best interests of one child but not of another.

Also, how will sibling contact be supported? We have talked about contact centres and concerns about how we support parental contact. There is nothing in the bill, the policy memorandum or the supporting documents about how sibling contact would be supported in our system or about what skills and resources are required.

We support the ambition to promote such contact, but we caution that it must be in the best interests of all the children.

Chloe Riddell

Children 1st similarly supports the bill’s intentions and would encourage real consideration of resources and of training for its implementation. We would also encourage the committee to explore the matter further with our colleagues in Who Cares? Scotland and Clan Childlaw, who have done a lot of work on it. It is not an area in which Children 1st has a lot of expertise, but I know that those organisations have done a lot of work on how the provision would work.

The Convener

Thank you. That concludes our evidence session. It has been very detailed and very helpful. I suspend the meeting to allow for a change of witnesses and a comfort break.

11:29 Meeting suspended.  

11:34 On resuming—  

The Convener

I welcome the witnesses for our second panel this morning. Fiona McMullen is operations manager at ASSIST, and Dr Marsha Scott is chief executive of Scottish Women’s Aid. I thank the witnesses for their written submissions, which are always helpful.

We will move straight to questions, starting with John Finnie.

John Finnie

Good morning, panel, and thank you for your submissions. I know that you have been present throughout, so I will join some of my questions together. I started off earlier on children’s participation in decision making and the proposal in the bill to remove the 12-plus presumption. Could I have your initial thoughts on that and on what the new presumption should look like? A recurring theme of interest to the committee is whether you feel that there is sufficient infrastructure at the moment, or whether the bill proposes additional resources. I would like you to cover that area, please.

Dr Marsha Scott (Scottish Women’s Aid)

Thank you for the opportunity to be here, to see you all, and to speak about the bill, which we feel strongly about, and about which children and young people have spoken eloquently.

I have personal experience of working with people who have given evidence to sheriffs in contact cases with children as young as four. It is a problem to put in presumptions that are not evidence based about particular chronological milestones for when children have the capacity to engage with the system. It also implies that their right to participate is somehow abrogated by age. We are definitely in favour of a presumption that children will participate and we want to see the burden put on to the courts to explain why they do not engage with the children rather than a presumption of an age at which they should.

I agree with the comment that was passed on from the Law Society of Scotland or Family Law Scotland—I am not sure which—about the fact that solicitors already do assessments. We have a case study of a young woman in the north-east who was represented by a solicitor whom she got through our service; the solicitor had a meeting with the child to assess whether they were capable of instructing her and decided that they were. The system already works somewhat like that, but it does not work with any protections for children or presumptions that they should be involved. We would therefore like to see the current presumption removed, but we would also like to see a presumption that children will be engaged.

Infrastructure is a terrible problem. The issue, which was woven through the previous panel’s evidence, and is in all our submissions, is that our society is not particularly competent on children’s rights, and that is reflected in our criminal and civil justice systems. The implementation of the bill will only be as good as the understanding of children’s rights and domestic abuse in our world is among the professionals who are supposed to be making the decisions.

I understand that, for any of this to be implemented competently, people will need to look at professional competence around children and understand the dynamics of domestic abuse.

Fiona McMullen (Advocacy, Support, Safety, Information and Services Together)

To provide a bit of context for those of you who do not know, I say that ASSIST is a large domestic abuse advocacy project that supports victims and children through the criminal court process. We cover 42 per cent of Scotland’s population.

We often find that the criminal court process runs alongside, or is closely followed by, civil court proceedings. If we are thinking about domestic abuse and coercive control, we are talking about tactics such as isolation, exhaustion, degradation and threats that are new and bespoke to individual families and often involve children and child contact. We see children who cannot understand why in one area, if they have court advocacy available, they will be proactively offered support all the way through the process to risk assess and safety plan, because the process will be fluid and depend on the decisions made by the court, but when they come out of that and go into the civil court, there is nothing. Victims say to me that they find the civil court more adversarial than the criminal court. They may not have a lawyer representing them and they find that bar reporters and sheriffs can be adversarial.

Going back to the point about children giving their views, I note that we routinely support child witnesses to give their evidence in court, and with the new offence and the new presumption in favour of non-harassment orders for every child in relation to domestic abuse, we routinely ask children for their views, either directly or through the parent, depending on what our contact is and what is appropriate.

I echo what Marsha Scott has said about children as young as three saying, “No daddy—I don’t want daddy.” Recently, a 14-year-old wrote a four-page letter to the civil court following criminal proceedings in which he gave evidence to say that he did not want contact. However, that boy has been supported by default rather than by design, because it just happened that we supported him through the criminal court. Many other children do not have access to that. Marsha Scott and I have spoken about this, and I think that there is a need for court-based advocacy that is not a postcode lottery for children who are involved in civil court processes.

Dr Scott

The infrastructure question is not only about competence but about availability. Both ASSIST and Scottish Women’s Aid provide children’s advocacy services. Ours are not limited by court processes, so people can come through our services who have not been in a court process. However, the availability of such services is absolutely inadequate even in the best-resourced communities. The west of Scotland and Glasgow have ASSIST, and there are services in Edinburgh, but we need to consider what services exist in the most remote and rural areas in Scotland.

Access to advocacy should be a human right for every child who is involved in court processes, especially those who are survivors of domestic abuse, but it is just not a physical reality. We hope that somebody somewhere—we hope that you will do this—will take that on as a critical element and turn access to justice from something that exists on paper into something that children really experience.

Fiona McMullen

I totally agree. Both of our services support children through the civil courts, but they do so almost by default. That is certainly the case for our service. It happens through someone knowing that they can come and ask us to provide it, rather than it being something that is offered proactively.

John Finnie

The committee has frequently heard about the tension between criminal and civil processes. I did not take it that you were both saying that everything is fine in the criminal—

Fiona McMullen

Not completely, but things are better.

John Finnie

Yes, indeed. Is there a growing gap in provision? If so, is the bill a vehicle that can address that, perhaps by amendment—you know how legislation works—or are there shortcomings in resources in general? I think that both Dr Scott and I have used the term “infrastructure”.

Dr Scott

The answer is, sadly, that we need all of the above. I do not think that the bill, even if it is crafted perfectly, will solve the gap between the criminal and civil courts. I am a bit less optimistic about what is happening in the criminal courts, because I do not think that we have, as a country, adjusted well to the provisions in the Domestic Abuse (Scotland) Act 2018 that create a criminal element around the child aggravator, and figured out what that means for children and what their role should be in the courts.

Some of you may remember that we, along with a number of the children’s organisations, argued when the 2018 act was in development that children should be considered as co-victims. Our concern was that, as Fiona McMullen has described, when cases went from criminal courts to civil courts, people who had been convicted of being abusers in families were then seen as being good-enough parents.

The gap will potentially get wider, but it is already very wide. Ensuring that there are adequate advocacy services is the best first action that we can take to address the problems that are caused by that gap. There are things that should happen around how we describe children as victims in relation to domestic abuse, but we have no evidence at this point that the aggravator is working adequately to allow us to do that.

11:45  

Rona Mackay

I suspect that you will be able to answer my question quite briefly. Should the bill retain the presumption that children of 12 years or older are mature enough to instruct a solicitor? Should there be a wider review?

Dr Scott

In our view, and based on the evidence, there is no benefit of identifying an age. The presumption should be that children should have a voice unless it can be demonstrated that they cannot have one.

Fiona McMullen

The solicitor will not always be the person who can best represent a child’s views in a court process.

Rona Mackay

Should there be a non-exhaustive list of ways in which children can give their views? Should a child have a say in which method is used in their case?

Fiona McMullen

I do not agree with there being a list because, as others have said, it becomes prescriptive. I will keep that brief. In order to get views, skilled professionals can use creative age and stage-appropriate ways of engaging and communicating with children.

Dr Scott

I might disagree a little bit. One of the things that have worked really well in the Domestic Abuse (Scotland) Act 2018 is the extensive guidance notes, which state clearly some of the effects of abuse and what abuse can look like, but the list is not exhaustive. The guidance notes help to inform people’s understanding.

Fiona McMullen

The issue is whether that is put in the bill or whether guidance notes are provided.

Dr Scott

Such guidance can be a signal that an F9 form is not going to do it and that there need to be options. The core principle needs to be the outcome, which is that we have done everything that we can do to honour children’s human rights and to allow them to input into decisions that affect their lives. That might be done through a video, a painting or—as one four-year-old provided—a picture of the rooms in their house and where they felt safe. We should do whatever works.

Rona Mackay

Should the bill be a bit stronger on that specific point and emphasise it more?

Dr Scott

As Megan Farr said in the previous session, a number of things in the bill are not framed from a children’s rights perspective. We should put that up front and in bold, and say what the outcomes are that we are trying to get to. We should outline, as Fiona McMullen said, the many creative and well-evidenced mechanisms that can be used, and we are looking for proof that people have engaged in them.

Fiona McMullen

It is also about how risk manifests and how safety is managed throughout the whole process, in allowing children to give their views. Some children will be terrified to give their views, because they will not know where they will be shared or the consequences of giving them. The process should be no different from a criminal court process, and we should manage risk and safety all the way through it and beyond. Potentially, it will need to be managed for a longer period, given that criminal proceedings can be incidental and very quick and can result in one appearance, whereas multiple appearances can be needed for special measures for victims in a civil court. There should be an absolute emphasis on risk and safety.

Dr Scott

Children and young people have told us about what they need in order to give good evidence and to express what they need and want. In our experience, they have told us that it is a process, not an event. It is not about thinking that, because the right form was used and the child did not want to speak, the child does not want to be involved. We have looked at many cases.

I can talk about the need for children to have a relationship with a trusted advocate or supporter in order to give good evidence, just as in any evidence process. However, we need to set up the process so that it is clearly defined as a process and so that, if it does not deliver safety and wellbeing for children, they can have redress and a way to ask for a review.

Bill Kidd

Thank you for the interesting conversation so far. I want to ask about section 15 and explaining decisions to children. The exceptions to the new duty include where

“the child would not be capable of understanding an explanation”

and where

“it is not in the best interests of the child to give an explanation”.

The Sheriffs Association thinks that section 15 is unworkable in practice because of the burden that it would place on the judiciary. Others, such as the Children and Young People’s Commissioner Scotland, are concerned about those caveats being introduced, because they believe that it will mostly not be in children’s best interests that they should be used. Therefore, there would have to be someone whom the child has confidence in and trusts in order to be able to explain things only if necessary. Are you concerned about that one way or the other?

Fiona McMullen

ASSIST would be concerned by those caveats; we would be concerned that not needing to explain would almost become the norm. In criminal processes currently, we absolutely give the child the court outcome and debrief them after they have given their evidence. That is not dissimilar to giving views, and there is a consequence from that in relation to risk and safety that is then explored.

There is also the issue of believing and validating what the child has been through and done. That would be built up with a person with whom the child has a trusting relationship. If the outcome is not necessarily what the child wants, there should potentially be redress, and there should be acknowledgement of how well they have done to be involved in the process and an emphasis on the safety of the outcome of the decision making.

Dr Scott

I agree with what Megan Farr said in the previous evidence session. The circumstances and the number of cases in which it would not be appropriate to share the court’s decisions with the child or young person are very rare and tiny. Obviously, matters are likely to be addressed on a case-by-case basis, and involving a trusted supporter is always one of the alternatives that we would want. However, I cannot imagine that we would want to put such a get-out clause in a bill—that is what it seems to be to me.

Bill Kidd

Does what both of you have said counter the judiciary’s concerns about the burden on its resources, as that is already being addressed in other circumstances? Do you not really have that concern? Are we talking about something that has been put in place because the judiciary does not really want to have to deal with the matter?

Fiona McMullen

It might depend on the outcome. I was involved in supporting children years ago when the procurator fiscal’s outcome in a criminal case was to not go ahead with their charges and drop them and to go ahead with the mother’s charges. That was a poor outcome for the child, who absolutely wanted to speak to the procurator fiscal about that as opposed to me as an advocacy worker. I can still see times when it might be appropriate for the child to have information given to them by someone other than an advocacy worker, supporter or child welfare reporter. They might prefer that information to come from the judiciary. However, I would not see that needing to happen all the time.

Bill Kidd

So it is always about what is in the child’s best interests, which can vary.

Dr Scott

Although I have some sympathy in respect of the burdens on the judiciary, my first thought is that that issue should be solved in other ways as opposed to minimising the rights of children to hear outcomes.

Liam McArthur

You will have heard the earlier exchange on the confidentiality of information. We have also discussed the sensitivity of such information and the balance, which Professor Sutherland talked about in an earlier session, that exists between adults’ ECHR rights to fair trial and to privacy and a child’s best interests in giving evidence and having their views heard. How should the bill strike such a balance? Should it contain a provision on confidentiality? If so, how should that be framed?

Dr Scott

We support Children 1st’s call for an amendment on confidentiality. For a long time, we have been aware of the difficulties that exist in providing support and becoming a trusted source when there is a possibility that information that a woman or a child has shared with us might be used against them in court. I cannot imagine anything more soul destroying—for either children or service workers—than seeing the work that the service workers have done, under what are sometimes incredibly difficult circumstances, to help children to feel more confident that the system is there to protect them turned around on them in the way that can and has been done by the Scottish courts.

Although our approach should always be proportionate, my concern is that we should also do what it says on the tin: children’s interests should be paramount. When other people’s interests are involved in a case, they will obviously have to be weighed, but we must always act on the basis that the wellbeing and interests of children should be paramount.

Fiona McMullen

I do not have a lot to add to that. I echo what Marsha Scott has said. However, I always go back to the question of how such issues should be managed. A child’s ability to have a trusted support worker with them throughout the process would undoubtedly help. We must be able to manage children’s expectations about the release of information. In situations in which we cannot address risk unless we share information, we will have to do so. However, we must consider issues such as transparency and consent, and that can be done in a more robust way if one person consistently oversees the process.

Liam McArthur

Any provision should be framed so that it does not move away from the fact that sensitive or difficult information might have to be shared in the interests of providing clarity to the court. However, the management of expectations would need to be handled carefully throughout the process and any information that is shared should be proportionate and directly relevant to the case.

Dr Scott

Some of our existing practice in that area is pretty good. Recently, I was speaking to a sheriff who said that, after taking children’s views, she was very careful to ensure that such information was not replicated in court proceedings unless it needed to be used to answer a child protection question.

All the panel members here have worked in an environment in which child protection trumps pretty much any promise of confidentiality that we can give, so that is not a new one for us. The reality is that we can express that to children and then uphold their rights in such a situation. That is not a new concept for the system.

Liam McArthur

Are problems arising at the moment because it is easier to say that all of a particular file or body of information should be made available, rather than because there is a lack of understanding that some of it will be directly relevant while the rest might not?

Fiona McMullen

As Marsha Scott has said, we do that now—bar reporters regularly ask us for information that will go into civil court proceedings, as do victims’ lawyers, and we make decisions on how much of that information would be proportionate and relevant to share. For example, it might be the themes of risk, rather than the intimate details of it, that are really required.

12:00  

The Convener

I know that you were both in the room when we discussed with the previous panel sections 1 and 12, which include various statutory factors that are intended to guide the courts when they are making decisions about the welfare of a child in an individual case. What are your views on the idea of approving a checklist of factors in principle? What do you think about Parenting Scotland’s view that this might be a missed opportunity to have a comprehensive list of factors that might include certain groups of people?

Dr Scott

As you will know from our submission, we are quite concerned about the existence of a checklist. We think that what is on it is pretty random. There are some things that are not on there that we would want to be on it as an absolute principle, such as the views of the child being listened to. We view as problematic the idea of the participation of others—or even both parents—in the life of the child, when the evidence is that that is sometimes not in the interests of children.

I think that the intention, which is to remind the courts of the issues that they should be considering when they make decisions, is good. However, that needs to be expressed strongly throughout the bill. That is a better approach than providing a checklist, which is a sort of shorthand approach that means that people do not have to understand the principles.

If there was a checklist, we would want it to be much more rigorously examined, and we think that it should express the principle of the interests and wellbeing of the child being paramount.

I cannot defend the existing checklist. I think that it could only possibly lead to people supporting decisions that are not supported by the evidence in the case.

On Parenting Scotland’s consultation response, I am concerned that it is really trying to protect the rights of parents rather than those of children.

Fiona McMullen

I will not labour that point, but I agree that, at the moment, the rights of the perpetrator—often, in these circumstances, the father—absolutely outweigh any consideration of the rights and the voice of the child. That is what we have found; that is what victims regularly tell us. We do not want anything that would further that situation.

The Convener

I think that that point has been strongly made.

The Scottish Women’s Aid submission mentioned that the definition of domestic abuse should be updated to include coercive behaviour. Should that be addressed at stage 2?

Dr Scott

We are concerned that the language in the bill does not seem to reflect the language of the Domestic Abuse (Scotland) Act 2018. In particular, a discussion of coercive control and the impact that it has on children, which we discussed a lot during the passage of the 2018 act, has been completely absent.

I exist in a bubble—one that, possibly, I share with the people in this room—in which, because of the debates around that domestic abuse legislation, everyone understands the mechanisms, dynamics and impact of coercive control. However, it would be a mistake to assume that everyone understands those issues and I would be concerned if the bill that we are discussing today did not demonstrate policy coherence with the 2018 act.

Children and women often do not seek services, report to the police or otherwise engage with our systems because the fear that they have experienced and the harm that has been done to them have been minimised for many years as they do not involve physical assault. We need to understand that those are the same people who will be coming into our civil courts. Many of those people will not have been involved in a formal criminal case. As was mentioned in your discussion with the previous panel, we constantly hear stories from women about lawyers who have told them not to talk about their domestic abuse, for a variety of reasons. We must not be so naive as to assume that people will understand the issue of coercive control and talk about it from the beginning of a case, or that the court will reflect it appropriately.

Fiona McMullen

I echo that view. Anything that makes our court systems and processes more compatible with and complementary to one another would help. We have already heard that there are vast differences in responses, so anything that mitigates those differences would be helpful.

The Convener

That message has been heard loud and clear this morning.

Shona Robison

I have a question on child welfare reporters and curators ad litem. I understand that you are supportive of the proposal to regulate those roles, and it would be helpful to hear a bit more about the features of such a regulatory regime that you think would be necessary, for example, qualification and training. Similarly, should there be statutory regulation of child contact centres? What should the key features of any regulatory regime be?

Fiona McMullen

I will start with contact centres. My comments are based on discussions with victims over the years. I say this not to be flippant, but one victim recently said to me that using a contact centre was not much different from handing a child over in McDonalds. She would expect the same intervention should she be assaulted, but that would be as much as staff in the contact centre would notice. They would not notice if secrets were being shared, photographs were being taken, the parent was being undermined or something similar was going on. They would not notice the dynamics of abuse. That speaks to me about the training, regulation and complaints procedures, but we should also think about whether we should be using contact centres in the first place and how we use them.

We are talking about domestic abuse and coercive control. The perpetrators are very clever. They turn up at contact centres and look and play the part, so the contact very quickly moves to being unregulated and no longer supervised. Therefore, we have to consider our use of contact centres when reviewing risk and safety through the whole process.

We also hear victims talk about paying for contact centres, either in order to travel to them or to pay for sessions. I worked with a victim who paid more to get to the contact centre than the £6-a-week maintenance that she got from her ex-partner. In managing contact, there is something fundamentally wrong with victims, who will have experienced significant financial control as part of their abuse, being further financially abused by the processes that we have put in place.

Dr Scott

I cannot state too strongly how welcome the regulation of and the required training for child welfare reporters would be. We hear stories about them every week. A week before Christmas I heard that a bar reporter told a woman that she should not take too seriously the threat to kill her, because people say things in the heat of the moment. Such attitudes are not uncommon in our communities and we must take responsibility for making sure that the people who are dealing with the most vulnerable and at-risk people in our society have the tools that they need in order to do so.

I really welcome the proposal. The training needs to be good. It needs to be looked at through an implementation lens. We have had such discussions with the Judicial Institute for Scotland about the training of sheriffs and judges on the new domestic abuse legislation. We have a tendency to say that we have checked the box because people have attended the training. We may even do a pre and post-training review to make sure that they understand what was said in the training. However, we do not then put in the infrastructure that is needed to make sure that they use the training. We must therefore take a robust approach to the training of child welfare reporters, which would be welcome.

As I said when the Public Petitions Committee discussed a petition to do with a contact centre case, if the first principle of contact is that it cannot and should not be ordered unless we are absolutely clear that it is safe for the mother and the child—or the victim and other victims who are children—and in the child’s best interests, why do we need an industry of contact centres to protect children? If we have any concerns about their safety, why are we allowing contact?

If contact is safe, it can happen in a lot of places that are probably more conducive to children’s health and wellbeing and that connect them and their parents with community services. For example, we have a network of family centres in Scotland that provide lots of services for children and parents. I do not understand why family centres and community centres are not also appropriate places for contact to happen.

If we are going to have contact centres—obviously, I come at this from the perspective of domestic abuse; maybe there are other functions and other circumstances in which we need to have contact centres—they need to be designed and delivered with those outcomes in mind. However, as far as I am concerned, on issues to do with domestic abuse, we have heard few stories about contact centres increasing safety, although we hear stories all the time about children in contact centres.

I had a case in which a children’s worker approached a contact centre when a very dangerous perpetrator was being released from prison, so there was a conviction and evidence all over the place. Contact had been ordered, so the children’s worker went to the contact centre and said, “We should work together on this, because we have been supporting the three children, so can we make some safety plans?” The response from the contact centre was, “Listen—there are two sides to every story, you know.” We must not underestimate the harm that happens in contact centres when services are inappropriate and the people who provide them, with the best will in the world, are unable to provide safety and in fact therefore provide danger.

Fiona McMullen

To go back to the issue of bar reporters, over the 15 years that I have been at ASSIST, I have fairly routinely heard victims talk about feeling that bar reporters come from a position of disbelief and that they have to convince the bar reporters that it is not a tit-for-tat situation, which follows on from some of the issues around contact centres. It is not just a fight to win residency; domestic abuse and coercive control are at the heart of it. The bar reporter is meant to be the professional who has more understanding than the victim’s lawyer or the sheriff and who will convey that to the sheriff, but they sometimes have less understanding.

I have worked with excellent bar reporters, including some who have been honest enough to say after an hour of looking at a case that they missed issues in other cases because they did not notice the risk indicators and what was going on.

I absolutely echo what was said earlier about the quality of bar reporters, or child welfare reporters, and about the need to look outside the legal profession for people. I echo the point that those reporters do not come with the same credibility as others in the system, which I suppose applies to people from ASSIST and Women’s Aid in court at times. That needs to shift. There needs to be an acknowledgement of the experience, skill and professional judgments of other professionals who are involved in that work.

Dr Scott

I must echo that. For children experiencing domestic abuse, the vast majority of children’s supporters and advocates in Scotland work for Scottish Women’s Aid or ASSIST. The fact that it is difficult to get courts to listen to the advice from those professionals is a huge waste of what are mostly public pounds and of the trust that children have finally built up in a system that will listen to them.

Shona Robison

Thank you. You touched on some examples but, if there are further examples or more detail that you want to share with the committee, it would be helpful if you gave us that follow-up in writing.

Dr Scott

I am happy to do that.

12:15  

The Convener

That is always worth while, as it kind of brings the issue alive.

Fulton MacGregor

I want to discuss the same issues as I did with the previous panel. I would like your overall views on sections 4 to 6 of the bill with regard to vulnerable witnesses. Your written submissions suggest that you agree with sections 4 to 6 but, in particular, should the protections for vulnerable individuals be the same across civil and criminal proceedings? If so, do those sections achieve that goal?

Fiona McMullen

I believe that the protections should be the same across both processes. Victims just now are incredulous that one week they can be in a criminal court giving evidence at a brand-new site in Glasgow, especially if it involves children, who do not come into any contact with the perpetrator because there are screens in the court and they have safe entry and exit; and the next week they are sitting across a table from their abuser and have to do so for multiple appearances. That is distressing for victims.

I have been around long enough to remember when we did not have automatic measures for children, let alone for adults, and I know how changes in that have removed some of the trauma of going to court for children and adults. I suggest that the civil court should have available something that is not dissimilar to the criminal court’s default position when it is not known what is required: the use of screens and a supporter for vulnerable witnesses. It is easy to remove that kind of support when it is not required. Again, it is about how we contact people to get their views about what is required for them at court. That all needs to be considered as part of the process.

Dr Scott

I agree with that. The only thing that I would add is that there is good work in Scotland around the bairn’s hoose and the development of responses to children in our system. The principles underlying that work should be integrated with the way in which we protect children in court proceedings.

Fiona McMullen

The difficulty will be around how we determine whether someone requires protection. In the criminal court, the case is about a domestic abuse incident. However, we need to appreciate that the civil court proceedings might be based not on such incidents and convictions but on reports from the victim. If someone wants special measures in court, there is a reason for that. Very few people would ask for them if they did not want them. Indeed, some victims say, “No, I need my abuser to know that I can actually do this without those special measures.” The measures are therefore considered on a case-by-case basis.

Dr Scott

Absolutely. Given that we have ample evidence over many years and from many countries that many victims of domestic abuse never report it to the police and that therefore there is no criminal case, we need to include in the bill language that would allow allegations of domestic abuse or abuse generally to define the situation, rather than just a conviction or a criminal case.

Fiona McMullen

I would call them reports because, when we hear of “allegations” in the civil court, that sometimes suggests disbelief. We should call them reports of abuse.

Dr Scott

Exactly.

Fulton MacGregor

Do you agree with the previous panel about supporting the extension of the provisions of sections 4 to 6 to children’s hearings?

Fiona McMullen

To be fair, ASSIST does not have a huge amount of involvement in children’s hearings. What the previous panel said on that issue made sense to me, but we are not routinely involved in children’s hearings. We might have young victims at children’s hearings, rather than have a number of children going through that process.

Marsha Scott might want to comment further on that.

Dr Scott

I will follow up a bit on what the witnesses on the previous panel said, although they were pretty clear about children’s hearings. We have been working with the children’s hearings system to provide training and we are now rolling out a service to provide advocacy for children. It comes back to the point about whether children who are already being supported by a supporter or advocate should then have to switch to somebody else with different credentials, such as a bar reporter. The children’s hearings system is moving in the right direction in ensuring that children have advocates and in a way that provides the most appropriate support from the lowest level. From the very beginning, in the power up/power down project and our young experts group, children and young people have told us that, from their perspective, the presence of an adult with whom they have a trusted relationship is the most important thing for justice.

Fulton MacGregor

I have one final question. I asked the previous panel about section 7, and I know that Scottish Women’s Aid has been critical of that provision. Dr Scott, do you want to put some of those thoughts on the record?

Dr Scott

I am going to plead holiday brain. I am looking for section 7 but, because of adrenaline, I might not find it easily. Can you explain?

Fulton MacGregor

Section 7 will allow the sheriff court, for the first time, to order the use of special measures in court hearings where formal evidence is not being taken, including child welfare hearings. Unlike under sections 4 to 6, nobody will be deemed vulnerable in that context and an individual’s vulnerability will have to be established before the court in each case.

Dr Scott

We want to go on record as saying that we should think about everything that we do—whether in a children’s hearing, a civil court or even a criminal court—from the perspective of what is in the interests of the child’s wellbeing as well as the interests of good evidence. Happily, the answer to both those aspects is often the same: a default assumption about protections such as those that are in place for vulnerable witnesses.

Our experience is that access to special measures is good in some places and not so good in others, and courts are less than consistent about ensuring that such measures are available. The move to take evidence from children off-site, remotely and by video is a great place for us to begin to think about how we could actually provide protection, rather than use a screen and a supporter, which is an obvious easy answer but probably does not deliver the outcome that we all want.

The Convener

Liam McArthur has a brief supplementary.

Liam McArthur

I appreciate that there are issues around the management of risk. I was struck by the suggestion about setting as a threshold a simple report of domestic abuse, and not even an allegation. That might have the potential to provide incentives for individuals to respond accordingly in marital or relationship breakdowns where emotions are running high. Would setting such a threshold be a sensible approach?

Dr Scott

It is evidence, which needs to be taken on board as a signal that fear and potentially coercion are involved. It is only sensible that the processes that fall out of that report—I agree that “report” is a better word than “allegation”—are there in order to make robust decisions to ensure that all precautions can be put in place. There are few other situations in which a person could say that they were afraid of someone and we would not respond appropriately, but would minimise the issue and say that it was an allegation that might be self-serving. The courts are able to understand those situations if they ask the right questions.

Liam Kerr

I have the same questions that I put to the earlier panel about what happens when someone fails to follow a court order. Section 16 would impose a new duty on the court to investigate the underlying reason for that. What are the panel’s views on whether that section is good or adds anything new?

Fiona McMullen

Recently, we have seen stories in the press about non-compliance and the consequences for victims who are afraid. For me, the issue is the reason for non-compliance, whether it is about safety and who determines that—it needs to be someone who is skilled and understands the dynamics of abuse. It is really tricky. Non-compliance can be used by abusers to change arrangements to ensure that the victim is further isolated, perhaps by ensuring that they cannot go out because the abuser is only taking one of the children. Non-compliance can mean several different things.

I would be horrified to think that a victim of domestic abuse who is in fear of her or his life and fears for the safety of their children would face extreme consequences for non-compliance.

Dr Scott

We have so much evidence that there are complex stories behind compliance issues and our system does not address that. There is a significant power imbalance between a sheriff or a judge and a victim of domestic abuse who perceives that she has a choice between protecting her child and breaking the law—I have so many messages about that in my inbox. In reality, that will not always be the case and I am sure that there are many other explanations for non-compliance that are less defensible. However, until we have evidence that our child contact system is working the way that it is supposed to, particularly in the context of domestic abuse, we have to include some safeguards. Assuming that a contact order was the right thing and that lack of compliance is the wrong thing is not useful in such situations.

Liam Kerr

That boils down to your saying that section 16 is a good provision.

Earlier, we discussed sanctions in the event of a breach of an order. What is your view on the alternative sanctions that were discussed previously but which do not appear in the bill, such as ADR?

Dr Scott

I echo what the previous panel said on that. In the context of domestic abuse, where there is an inbuilt power imbalance, mediation is not a good idea. We were involved in a panel with officials some years ago and it might have been the only time that Families Need Fathers and Scottish Women’s Aid agreed about something, which was that prison sentences are not a particularly good response to non-compliance with contact orders. Alternatives need to be in place, but the most important intervention that we can have at that point is for there to be a good exploration of why compliance is not happening.

Fiona McMullen

As was said earlier, to go back further, if we put appropriate contact arrangements in place, there should be less room for non-compliance.

The Convener

That concludes our questions. I thank you both for attending the committee and giving very worthwhile evidence.

The Convener (Margaret Mitchell)

Good morning, and welcome to the Justice Committee’s second meeting in 2020. We have no apologies, but Liam McArthur might be late.

We begin with consideration of the Children (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and papers 2 and 3, which are private papers.

We will have two evidence sessions this morning. I welcome our first panel of witnesses. June Loudoun is from Grandparents Apart UK; Ian Maxwell is national manager at Shared Parenting Scotland; and Dr Sue Whitcombe is a chartered psychologist. I thank the witnesses for their written submissions. Such submissions are always valuable to the committee in advance of hearing from witnesses in person.

We will move straight to questions.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Good morning to the panel. I will start with a couple of questions about children’s participation in decisions that are made about them. Shared Parenting Scotland’s written submission states:

“Children are likely to feel they are under pressure. Sometimes parents and other family members may attempt to influence the child during the time views are being obtained”

in the decision-making process. I think that that is also highlighted in Dr Whitcombe’s submission. Will you say a wee bit more about why that challenge exists and say what you think might be done to overcome it?

Ian Maxwell (Shared Parenting Scotland)

Children who are in the middle of a parental conflict have divided loyalties. Usually, they have loyalty to both parents and, when they are stuck between conflicted parents, they find things difficult. Sometimes they will say different things to each parent because they will want to say what they think the parent wants to hear. That is why it is very important that children’s views are taken in a way that is separate from their parents’ influence and they are allowed a bit of time.

If somebody strange is taking evidence from a child, the child needs to build up confidence and know that that person is really on their side. For instance, the Avenue service in Aberdeen, which deals with mediation and child contact, says that it wants to see the child three times because the first time, the child will tell a person what they think the person wants to hear, and possibly what they have been told to tell them, the second time, they will relax a bit, and the third time, the person might get closer to the child’s real feelings.

Children will often say something very negative about the parent whom they are not seeing, but that needs to be taken carefully. Dr Kirk Weir did some work a number of years ago. He was instructed to speak to children who had completely rejected one parent—that was both mothers and fathers—in a large number of court cases in England once it had been established that domestic abuse was not involved. He found that, in many of the cases that he dealt with—not all of them—in a few minutes or maybe over the course of a meeting or two, the child who had previously completely rejected a parent would unwind and be happy to meet the parent, and enjoyed that meeting.

Children’s views are incredibly important, but they have to be taken very carefully in that situation.

Dr Sue Whitcombe

Everybody—adults as well as children—is influenced by the people around them in forming their views and opinions. That is not just in relation to parental separation. We are well versed now in the issues of child sexual exploitation and grooming and religious radicalisation, all of which involve to a certain degree the influence of people—adults and peer groups around children and young people.

I think that what Ian Maxwell is saying is right. I have often heard a child express views in the presence of one parent that are different from the views that they express in the presence of another parent. A child might vehemently say that they hate a parent and never want to see them again, yet, within 10 or 15 minutes of being in that parent’s company, they are very much enjoying themselves, they are playing with that parent and they are comfortable with them.

We need to understand what is going on with the child—not just what the child is saying but where their views come from. We need to notice when those views differ from what their body language might be and come to an understanding of why they are saying what they are saying, in light of their entire experience with their parents.

Often, you will see children who have not necessarily been overtly coached by a parent to say that they do not like the other parent but who have picked up on that parent’s feelings. From a young age, children are attuned to their parents’ feelings, so a child can learn from an extremely young age that it might not be acceptable to talk about one parent, because the other parent gets upset or angry when they do. They tune into their parents’ body language at handover. If a parent is anxious or is giving messages to the child in a way that is not overt, the child will pick up on that, and their behaviour and their expressed views will change.

In England and Wales, the Children and Family Court Advisory and Support Service—Cafcass in England, and Cafcass Cymru in Wales—looks at the ascertainable wishes and feelings of a child, not just their expressed wishes. We need to understand that all children and adults sometimes say things that they do not mean, and there are reasons behind that. If a child is expressing quite strongly that they do not wish to see a parent, my first question is, why? That is an unusual behaviour. It is normally a sign of psychological distress, and we need to understand why the child is saying that.

June Loudoun (Grandparents Apart UK)

I agree with the points that have been made. I have personal experience in my family of the situation that Sue Whitcombe has described.

Jenny Gilruth

The National Society for the Prevention of Cruelty to Children Scotland has said that it thinks that very young children can offer a view, provided that the appropriate infrastructure is in place for them to do so. How might the process for taking evidence from very young children differ from the process for other children?

Dr Whitcombe

When we are working with very young children, we do not ask direct questions. We do a lot of play work—using games and other creative means—to try to understand the child’s world view and experiences. We do a lot of observation of the child. We are looking not only at what a child says verbally and what they produce in creative work but at their body language when they are with a particular carer or person.

As you have heard from Chloe Riddell, Joanna Barrett and Dr Whitecross at previous evidence sessions, there is a need for skilled professionals with a different skill set from that of solicitors who are child welfare reporters. A different professional framework is involved, too. As professionals who regularly work with children, we are trained in child development issues and have an understanding of the associated processes. Our professional framework involves clinical supervision. If we are unsure about something or want to check something out, or we have an implicit bias that we are not aware of, that is thrashed out through professional supervision. That does not necessarily happen with child welfare reporters who are solicitor trained.

Ian Maxwell

In Scotland, we already have joint investigative interviews that are conducted between the police and social work in cases that involve allegations of child sexual abuse or other serious offences. Although that is perhaps not quite the format for some of the discussions with children, there are lessons that can be taken from that for how you frame questions and how you avoid leading a child into particular areas. There is already a lot of experience in that field. The people who are doing the work with children, particularly in the more difficult and sensitive cases, need to have that training. That is why one of the key recommendations of the bar reporters working group in Scotland a few years ago was that there should be training for the people who are doing this work. That was scuppered by the judiciary, who were not keen on having it imposed on the system.

We welcome the fact that the bill mentions training and supervision of child welfare reporters, but we do not agree that they are necessarily the best people to do that work. We feel that it could be done by professionals who have a wider skill set or lawyers who are trained and have sufficient experience. It is a difficult job and it requires a lot of understanding. As you say, very young children need to give their views, but getting those views is not an easy job.

June Loudoun

The adversarial nature of the legal system sometimes creates greater animosity between couples who have separated. The parent who is the main carer for the children can inflict their opinions and their fears and anger, even when they are talking to other people and the children are in the room. As has been said, children pick up on that and form their opinions based on it. If the legal system were not so adversarial and better negotiation techniques were used to find out what was happening rather than there being a competition, that would go a long way to minimising the issues. It would not prevent issues in every case, but it would certainly minimise them.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to go back to Jenny Gilruth’s first question and draw your attention to a letter that the committee has seen from a large number of academics, children’s organisations and women’s organisations. The writers of the letter were concerned that parental alienation would be included in the bill. They suggested that that would have

“the potential to divert the focus from children’s welfare as the paramount consideration in contested child contact cases and to disregard children’s views and associated participation rights.”

The letter also noted research in England that showed that the existence of

“parents who were implacably hostile”—

that is, where there was parental alienation—

“was a factor in very few contact cases.”

What is your view on the point that the approach that you have set out in your written submissions could cast doubt on domestic abuse allegations?

Ian Maxwell

Just to give the committee some context about the letter that was submitted yesterday, the medical and scientific committee of the World Health Organization, which produces the “International Classification of Diseases” took that into account alongside a lot of other submissions that were pro and against the inclusion of parental alienation. The WHO has concluded that parental alienation is a type of relationship problem between children and caregivers or parents and that it is primarily relevant in forensic settings. It is not a disease or disorder and is therefore located in chapter 24 of the ICD, which is on “Factors influencing health status or contact with health services”. I can give the committee the full details of the conclusion.

It is a controversial point, but the working group on bar reporters, which I referred to and of which I was a member, as was Scottish Women’s Aid, agreed that parental alienation should be among the topics that are on the training list for anyone who works with children in the area. I refute the suggestion that that would divert from allegations of domestic abuse. Both are serious issues and both need to be taken seriously when we are dealing with children in such situations.

Parental alienation is a very severe form of influence, and there are now diagnostic characteristics. We tell people who come to us that they should not assume that there is parental alienation just because their child was a bit unhappy the last time they saw them. We tell people that they should not diagnose it themselves but should talk to the experts.

Sue Whitcombe can tell you a lot more about that.

Dr Whitcombe

As a practitioner who works in the field, I am concerned that there is a lack of awareness and understanding of what might be alienating behaviours on the part of an adult who does not want a child to see another parent. We are well versed in domestic abuse and domestic violence; there has been a massive increase in our knowledge and understanding of them and the provisions that are put in place to cope with domestic violence. The definition of parental alienation is the unwarranted rejection of a parent—of a good enough parent, where there is an absence of abuse and an absence of harm to that child from that parent.

10:15  

We are looking at situations where there is a good enough parent, there is a history of that parent having a good enough loving relationship with their child, and there is no evidence of abuse or harm to the child from that parent. In a case where a child is rejecting such a parent, we need to understand why, in the absence of domestic abuse or harm.

In reality, cases can be very complex. Cafcass and Women’s Aid prepared a report in which they looked at a number of cases—I think that it was 66 cases—relating to allegations of domestic abuse in the family court. They found that about 62 per cent of those cases in the family court involved allegations of domestic violence and abuse. I know that previous committee witnesses have talked about maybe 50 per cent of cases including allegations of domestic abuse when they come to the family court.

We do not know how many verifiable cases of domestic abuse or violence there are. We have to accept that, in the final state of affairs, not all those allegations will have been well founded. Some people lie, some people manipulate the system and some people are manipulative. That applies to people who come into court and claim domestic violence when that might not be the case. Some people do that intentionally, but some people do it because of their psychological functioning. They may have a perception that they have been in an abusive relationship that does not accord with objective reality.

To give an example—this has been playing on my mind—I flew up here yesterday in the wake of storm Brendan. It was a slightly bumpy flight and my anxiety was slightly higher than it would normally be. If you checked on the anxiety of everybody on that plane, they would all have rated it differently. We all experienced the same flight but our perception of what that did to us was different. Sometimes that can happen in our relationships with other people, too. Some people are naturally cautious in relationships and feel that, in every interaction that they have, other people are being belligerent or are picking on them, which can eventually lead to them making allegations of domestic abuse or violence.

Many of the cases that come before the courts are therefore quite complex. In the majority of those cases covered in the report that was produced by Cafcass and Women’s Aid, more than one factor was involved, including allegations of domestic violence, substance misuse or parental mental ill health. Increasingly, more complex cases are coming before the courts. To say that a case does or does not involve domestic violence or parental alienation is not helpful. We need to understand a child’s world view from the situation that they are in, with all the many complicated factors that are going on around them. In order to do that, we need to understand that some parents might be manipulative, some might be overprotective towards their children and some might be domestically abusive. We need to have a full picture of what is going on for each child.

Ian Maxwell

It has been assessed that 50 per cent of family court cases in Scotland involve allegations of domestic abuse. However, no matter how we might work out how many of those allegations are substantial, that still leaves a large number of worthy parents who go to court in order to see their children. The bill is about those parents as much as it is about those who are trying to deal with the impact of domestic abuse. It is very important that the bill acknowledges that.

Rona Mackay

Excuse me, Mr Maxwell. May I stop you there? I was under the impression that the bill is about children and not parents.

Ian Maxwell

It is very important for a child to see a worthwhile parent. The bill will become the Children (Scotland) Act. A child who is prevented from seeing a worthy parent is just as important as a child who is protected. Lady Hale, who has just retired as head of the Supreme Court, made that comment in one of her judgments. It is just as important for a child to know that they have not been abused, if they have not been abused, as it is for a child to know that they have been abused. I am sorry—I have not got the quotation quite right, but the point that Lady Hale made is in my submission. If the bill was concerned only with the processes for protecting children from domestic abuse, it would be a different bill. The bill is not concerned only with that.

The judges and sheriffs in the courts have to do a very complicated job in trying to unravel all the factors. One judge recently said that it is, now that there is no longer capital punishment, one of the most difficult jobs that the judiciary has to do because judges have to make very important decisions about the long-term position of children in relation to their parents.

June Loudoun

I find it very difficult to understand why so much argument focuses mainly on female victims of domestic abuse, because there are many male victims of domestic abuse, who seem to have been forgotten. My fear in relation to children is that there is, on television in particular, a lot of promotion and highlighting of domestic abuse in order to raise awareness, but in which the victim is always female. Children see those adverts in their homes and understand that such situations are difficult, but it is in their heads that the mother is being abused. For a child whose father is being abused by their mother, there is nothing on the television to say that that is unusual or unacceptable behaviour. What do those children do? Where to they go for support? I noticed from Scottish Women’s Aid’s submission that it has in place support to help children of abused mothers, but there is nothing for children of abused fathers.

Rona Mackay

Can I disagree with you, please? Children’s organisations are there for children. It does not matter whether the child is abused by their father or their mother: abuse is wrong at all levels.

June Loudoun

Absolutely.

Rona Mackay

Children’s organisations do not discriminate on that basis.

June Loudoun

Scottish Women’s Aid has a particular support system for children. No abused males support group has been consulted on the bill, but they are fathers of children, too. Children are affected by such behaviour, but there is not such a good support system for them, and there is not so much promotion of the fact that such abuse happens. The courts and the police find it difficult to deal with the issue. An awful lot of assumptions are made about females being the victim when abuse happens in day-to-day life.

The older people here will remember Erin Pizzi, who set up the original women’s refuge. In November, she wrote an article—I have a copy of it with me that I can show to the committee—in which she said that 62 of the first 100 women who came to her refuge were more violent than the men from whom they were escaping. It is not as simple as thinking only about domestic abuse; there are a range of situations within family separations, including family fall-outs and the death of a parent. The bill seems to focus on women’s aid and abuse, instead of encompassing the whole lot, and how children are affected by such situations.

Rona Mackay

I am quite speechless, to be perfectly honest with you. You say that domestic abuse is just part of it, but surely that is paramount. If a child is being abused, that is what matters.

June Loudoun

That is absolutely right.

Rona Mackay

I have not heard your response on whether your approach would cast doubt on domestic abuse cases—

June Loudoun

I do not think that it would cast doubt at all.

Rona Mackay

Your evidence is disputed by many women’s organisations and academics who deal with such issues every single day.

June Loudoun

Cast your mind back to the 1960s and 1970s when domestic abuse was not so out in the open, and there was not so much support for women. That is where we are now with men. Men are still frightened to speak out, there is shame associated with the fact that they have been abused by a woman, and there is a lack of support systems. It is not a one-size-fits-all situation. We need to get it right for every child, whether or not they have been in a situation of abuse.

The Convener

If I understand you correctly, you are trying to get over, first, that we should not overlook that there are many cases in which domestic abuse is not a factor and, secondly, that although the majority of the perpetrators of domestic abuse are male, not all are.

June Loudoun

Yes. Not all cases go to court, and alienation happens in such situations.

John Finnie (Highlands and Islands) (Green)

I thank the panel members for their contributions, As ever, they are very helpful. Clearly, this is an emotive subject, with strong views on both sides. The committee took evidence on the Domestic Abuse (Scotland) Bill from a range of people, including victims, regardless of their gender. We have also looked at the issue of elder abuse. I assure you that the committee takes all aspects of abuse seriously.

I have a question for Dr Whitcombe. There have been a lot of references to academic research. In your written submission, you state:

“It is evident in court paperwork, that there is often a preference for the subjective narrative of one parent. In particular, assumptions are regularly made that the parent who currently”

cares for the

“child is the better parent, and likely to be more ‘truthful’.”

Can you direct the committee to the academic research that supports that statement?

Dr Whitcombe

I cannot do that off the top of my head, but I will send you the information, if I can find it. That is obviously about my professional practice and what we see in professional practice. Sometimes, people who are working with families have an implicit bias and give more time to the parent who is seen to care for the child at a particular time, and more weight is sometimes given to their views than to those of the parent who is not seeing the child at the time.

John Finnie

Do you acknowledge that, for a great number of women—invariably and statistically, it is more likely to be women—that is not their experience of the civil courts?

Dr Whitcombe

Obviously, I can speak only about the cases on which I work; I acknowledge that the tens of such cases on which I am called to work are at one extreme of the scale.

Ian Maxwell

I will send a reference to the committee on a bit of research that I know of that deals with how social work services relate to the parent who is caring for the children and to the parent who is not. It definitely shows that social work services are less interested in taking up or supporting that second parent, especially male parents. There is a reasonable amount of evidence of that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

By way of a declaration of interests, I welcome Ian Maxwell, who is in the secretariat to the cross-party group on shared parenting, which I chair.

The crux of the matter in relation to the bill is domestic abuse and potential alienation. I think that everybody round the table and anybody watching the proceedings would agree that both those things are wrong, and that we want to stop them from happening.

The committee recently considered the Domestic Abuse (Scotland) Bill, which was passed. We have talked a lot about 50 per cent of cases not involving domestic violence. I find it difficult to understand how we could prove that to be the case, because there could be undisclosed domestic violence—in particular, emotional abuse, when there is no physical abuse—so I am slightly uncomfortable with that. However, I am aware that alienation is a major issue, too. How do we make that right and address that dilemma? How do we get to the bottom of that?

I think that agencies, services and politicians—I certainly fit in the category—probably implement the precautionary principle. I would prefer that until we find a suitable solution we avoid children being exposed in domestic violence cases. I am sure that most people would agree with that. Do you agree that the precautionary principle is being implemented? How can we bridge the gap?

10:30  

Dr Whitcombe

We need to be aware that, by working according to the precautionary principle, we will be leaving children with parents who are harming and abusing them. In some cases the level of abuse and harm that is experienced by children who are alienated is very significant.

There are ways of differentiating between domestic abuse and parental alienation. Cafcass in England has brought in a child impact assessment framework and is examining alienating behaviours in parents.

We also look at the symptomatic behaviours in children. Of the children whom we are working with to try to understand their experiences, the vast majority are very ambivalent about their relationships with their parents. A child who has been physically or sexually abused by a parent still wants to see that parent. They might feel a little bit frightened, or they might be quite cautious or anxious, but they still want a relationship with that parent. We need to protect those children and still allow them to have a safe relationship, if that is appropriate.

It is very different with the child who is alienated, whose thinking is very black and white. They are very strident and might say that they hate their parent and never want to see them again. That can be in direct contrast with a child’s experience of the parent: there is much evidence of such children having had a loving normal relationship with that parent. When children are challenged with that evidence, they come up with very frivolous reasons for not wanting to see the parent. They will not say that the parent has hurt them, but will say things like, “They force me to eat broccoli”, “They made me go to the park”, or “They bribe me with chocolate.” Children give such reasons for not wanting to see the parent, and can appear to be very anxious about seeing them.

There is idealisation of one parent and devaluation of the other. In our assessments, children give a range of responses: they like their mother because of this and their father because of that; this is what they do not like about their mum and that is what they do not like about their dad. All children normally have good and bad feelings about their parents.

The feelings of the alienated child are, on the other hand, very black and white. One parent is the source of all their positive feelings, and they can say nothing negative about that parent. The other parent is the source of all their negative feelings, and they can say nothing positive about that parent, even when they are probed. Please bear it in mind that we are talking about children’s situations in which there is an absence of abuse. That is a very unusual response. That is how we start to look at what might be going on in that child’s world.

Regarding alienating behaviours on the part of a parent, it is never right to tell a child that the other parent does not love them. It is never right to tell a child to stop calling their other parent Mum or Dad. It is never right to suggest that a parent is a danger where there is no evidence to suggest that there is any danger at all. It is never appropriate to prevent or discourage a child from talking about their parent. In such families, the child is not allowed to talk about their other parent because the parent whom they live with becomes angry or distressed. It is not right to stop a child having a photograph of their other parent if they want one, but that happens in such families. It is never right to reward a child for not having contact with the other parent. Those are some of the alienating behaviours that we look for.

Fulton MacGregor

That was a very detailed and interesting response that seems to be based on research. How can that information be dispersed to the agencies that deal with those situations? I was a children and families social worker for eight years, but I had no specific training on what you have described, so clearly there is a gap. Most agencies and politicians would be keen to stay on the side of caution when it comes to domestic abuse, because we know the well-researched and well-documented negative effects of domestic abuse on children.

Dr Whitcombe

We do not know what we do not know. If we are faced with a situation, and we have no knowledge of what alienation is, of alienating behaviour or of the symptoms in a child, we will try to fit the child’s response into the framework that we have, which might be a framework on abuse and violence. We will not understand.

We are, with alienation, where we were with domestic abuse and violence 20 or 30 years ago, in that there is a great lack of understanding and knowledge. I was invited last year by Children in Scotland to deliver training on parental alienation. There was significant lobbying by Scottish Women’s Aid to prevent me from delivering that training. I find that quite worrying.

John Finnie

I will go back to the bill. Do the witnesses think that there should be a list of the different ways in which children’s views can be given to the court, and should the child be given a say in the method that is used in their case?

Ian Maxwell

Cafcass in England has done a lot of work on that. There are lots of ways in which children could give views; for example, children might be more familiar these days with social media and online things than they are with pencil and paper. It is important that it is open to children to give their evidence. The Scottish Courts and Tribunal Service’s submission, and possibly one of the other submissions, states some of the practical problems that might exist. Unfortunately, our Scottish courts are not nearly as computer savvy as they could be, but they are getting there. Things are changing.

There is a range of ways to give evidence. When the Scottish Civil Justice Council’s family law committee, which I was on, determined how best to revise the old form F9—a horrible thing with capital letters and unfriendly language—we worked with children’s organisations to find out what would work best. It took us nearly three years to redesign that form. I hope that we can move a bit faster than that, because children cannot wait. Children want to be able to give evidence in different ways.

The emphases in the bill on involving children and on feeding back to children are important. Members will note, however, that those emphases have produced quite a reaction from the legal profession, in particular from the judiciary. I am afraid that the judiciary are almost frightened of having to do that. Partly, they are saying that they do not want the extra work and that they are already overburdened—although I have other answers for that. However, they also do not like the idea of having to feed back information to children. I strongly support that part of the bill, because it is part of the compliance that we are aiming for under the United Nations Convention on the Rights of the Child.

John Finnie

Do other panel members have views on whether there should be an exhaustive list? Would you like to cite any innovative ways in which children could—

Dr Whitcombe

A list would be unhelpful. Professionals who work with children all the time know how to elicit their views. One of the issues might be that we are trying to encourage people who do not understand children very well—perhaps a specific group, such as welfare reporters or sheriffs—to hear their views in a way that is very much adult oriented. Social workers, psychologists, children’s mental health professionals and teachers know how to take children’s views. To restrict that using an artificial list would be unhelpful.

I could not believe the old F9 form when I first saw it. I do not think that I have seen the new F9. I was astounded that we were trying to take children’s views in that manner. I thought that it was very unhelpful.

June Loudoun

A list is only helpful if you do not know what you are looking for. People who have been trained properly in how to work with, to speak to and to communicate with children of various ages do not need a list in order to find out how children feel and what they want.

Knowing what to look for should also be included in education and training for families, as well as professionals.

Liam Kerr (North East Scotland) (Con)

Good morning. I want to ask about confidentiality. In 2018, the Scottish Government consulted on a provision that said that if a litigant asked for confidential information it should be provided, but only if doing so was in the best interests of the child and if the views of the child had been considered. That provision is not in the bill, and representations have been made to the committee that that is a significant omission and that such a provision should be included. However, we have also heard the opposing view: that it could be prejudicial and could breach parents’ human rights. I throw the question out to the panel: what is your view on whether there should be such a provision in the bill?

Ian Maxwell

I am familiar with the case that is often referred to with regard to that matter. Obviously, I cannot say anything about the detail of the case, but, as I pointed out to a member of the panel that was before the committee last week, there was a lot of concern that the children’s view in that case was given to a domestic abuse service and then revealed through the court. Subsequent to that happening, there was a proof in which the sheriff concluded that the children had not been abused and, furthermore, sent a letter to the children effectively saying that to them.

This is an area in which the checks and balances—the rights of both parents and children—need to be dealt with. If we have an allegation of abuse, we have to be clear that it is an allegation. If we get it wrong and tell children that they have been abused when they have not been, we are doing just as much damage as we would do if we did not react to their reports of abuse. The bill as it is at the moment is probably okay, because it allows for that extra stage of checking.

Liam Kerr

Dr Whitcombe wants to come in, but first I want to press you on that. When you say that the bill is currently okay, you are comfortable that no such provision is incorporated in the bill.

Ian Maxwell

Yes.

Dr Whitcombe

Confidentiality is always close to my work. On disclosing to the court information that has been given in a therapeutic setting, when we contract with all the people we work with—children and adults—we are clear that there is a limit to confidentiality in relation to the information that they give us and that, if we have concerns that a child might be at risk of harm, or if we are required to disclose the information by the court, we will have to disclose that information. That needs to be made explicit to adults and children at the beginning of any therapeutic process, so that they are clear that there are situations in which confidentiality may need to be broken.

To return to your point about the issue being one of the rights of the child against the rights of the parents, I see the matter very differently: I see it as a safeguarding issue for children. Sometimes, children are taken to a service by one parent for therapeutic input—that seems to be what happened in the case that Ian Maxwell referred to—and the service only takes information from one parent. It has a one-sided view of the issue that might be going on for the children. The work that then begins with the children is framed around the narrative that one parent has presented, and those children may well be being harmed by the therapy that they receive. That then becomes a safeguarding issue.

In my work as an expert witness, I will sometimes ask for notes of therapeutic sessions when I think that that is appropriate because I feel that inappropriate therapy may be happening with an adult or a child, or that the information may point to other safeguarding issues. In England and Wales, that information is often disclosed to me but not to the litigants. I will include in my report the bits of the information that I feel are relevant, but the litigants are not provided with all the information.

Liam Kerr

Thank you. I want to press the same question that I asked Mr Maxwell: is it right that the provision that was consulted on is not in the bill, or would you prefer to see it there?

Dr Whitcombe

I do not think that we can ever guarantee confidentiality.

Liam Kerr

Should such a provision be in the bill or not?

Dr Whitcombe

I am not a lawyer—I am a psychologist.

10:45  

Liam Kerr

Does June Loudoun want to answer that question?

June Loudoun

I do not have enough experience in relation to confidentiality to comment, other than to say that confidentiality should be broken if doing so is in the interests of the child. Whether that provision should be in the bill is a technical question.

Liam Kerr

Thank you.

The Convener

John Finnie has a supplementary.

John Finnie

Mr Maxwell, I have a question about your organisation’s response to question 10 in the committee’s call for views, regarding parental rights. I hope that I am picking this up right. Your response says that parental responsibilities and rights should be awarded indiscriminately. In particular, it says that, in cases of rape or incest, an application could be made to the court to have the parental rights of the rapist or abuser withdrawn, if that is deemed to be to the benefit of the child.

Can you clarify that? Such views would be abhorrent to many people and would be seen as an attack on fundamental human rights, not least when we are taking a child’s rights-based approach to legislation.

Ian Maxwell

I think that I am taking a child’s rights-based approach, too. As you saw in the information that was provided by the civil servants, about 2,000 fathers per year are not included on their child’s birth certificate. Among that group will be some who are not worthy, and we need to find processes that will quickly and accurately prevent that parent from having any further involvement with the child, but—

John Finnie

I am sorry to interrupt, but “worthy” is a rather peculiar term. Who would make that assessment, and what would it be based on?

Ian Maxwell

It might be a social work assessment, a children’s hearing assessment or a court assessment—it depends on which process a case goes through.

Plenty of other countries give parental rights based on genetic linkages rather than on marriage. In Scotland, we give every married parent parental rights automatically, but more than half our children are born to unmarried parents, and—

John Finnie

Please focus your reply on the issue of rape and incest, which you refer to in your response to question 10.

Ian Maxwell

I quite agree that a child who is conceived through rape or incest should not have a parent imposed on them. However, I wonder how many of the 2,000 cases that I referred to are the result of rape or incest. How do we protect those parents whose name is not on the birth certificate but whose children should still have knowledge of and involvement with them?

It is a balancing act. Different countries have done different things. The law in England, which is similar to the law in Scotland, was changed to make the registration of both parents on birth certificates compulsory. That change to the law was passed, but it has not been implemented. However, as I said, in other countries, both genetic parents are given parental responsibilities and rights automatically.

You will note that Dr Barnes Macfarlane’s report, which the committee commissioned, raises the issue as one of UNCRC compliance. It is about the right of a child to know about their origins and their parents. It was queried when the 2006 act—

John Finnie

I am sorry to interrupt again. I am asking about parental rights, not children’s rights. I understand that people might want to know who their biological father is, but granting parental rights to perpetrators of rape—

Ian Maxwell

No—please understand: I am not trying to grant parental rights to rapists. That is very clear—I am fully in agreement with you on that. I am concerned about those non-raping, perfectly worthy parents who have to go through extraordinarily complex and sometimes expensive court procedures in order to have any impact on their child. That child loses the potential to have the involvement of a perfectly good parent.

There is obviously a gender aspect to this, because every mother is automatically given parental responsibilities and rights, but an unmarried father will be given parental responsibilities and rights only if their name is on the birth certificate. We come across a lot of fathers who are finding it very difficult to progress their contact and involvement with their children because of that. Yes, there needs to be protection in cases of rape and incest; there also needs to be protection for the children of the fathers who are losing out at the moment.

Fulton MacGregor

Will the panel give its thoughts on some of the terms that are used in the legislation and whether they have implications for practice? I am thinking about the terms “residence order” and “contact order”, in particular. I am aware that other countries, including England and Wales, use other terms. Do the terms matter, and, if they do, in what respect? How do they impact on practice?

Ian Maxwell

Yes, they matter. We come across many cases in which a parent who gets a residence order considers, quite wrongly, that that gives them complete control over the child. There is also a lot of confusion on the part of health and education services, which tend to take the same wrong view.

The terms “contact order” and “residence order” were removed from the legislation in England in 2014, as the briefing from the Scottish Parliament information centre says. In 2019, Canada made the change, which will be implemented in the middle of this year.

Our feeling is that names and nomenclature are important. It is far better to have a term for a court order that does not imply that someone has rights or control that they do not have.

Fulton MacGregor

May I explore that point a wee bit? I hear where you are coming from; as I have said, I have worked in the field, so I absolutely understand what you said about the weight that is given to the term “residence order”. Will you explain why that is necessarily a negative thing?

Ian Maxwell

It is a negative thing if a parent wrongly assumes that they have complete control over the choice of the child’s school and over the child’s health, and therefore excludes the other parent from those aspects of the child’s life—or if a parent assumes, “I can move where I want, and I can do what I want with this child.”

We are very disappointed that the bill does not address the issue. It could be done fairly simply. We are keen to propose an amendment, with a simple approach that I do not think has many downsides and which could have a positive impact, because what we call things is important.

Fulton MacGregor

Does anyone else have a view?

Dr Whitcombe

I think that the term “contact”, in particular, is quite abhorrent when we are trying to define the relationship that a child has with a parent. Would any member of the committee define their relationship with their child simply as “contact”? It is much more than that.

Children have a right to an on-going relationship with both parents, and these days children are not in situations in which mothers are typically the primary carers and take care of them all the time. I live on a housing estate, and 40 per cent of the children I see being taken to school are taken by a male carer. The world today is very different from how it used to be.

It is a complex situation for a child when their parents separate. The idea that a child lives with one parent but just spends time with another parent or is just babysat by them is quite an abhorrent concept. Wherever possible, and wherever it is safe, children need an on-going and substantial relationship with both parents. A child lives with both parents; they have bedrooms at both parents’ homes. It is not about “contact”.

Fulton MacGregor

I quite agree with the principle of your argument, and I will ask you a similar question to one that I asked Ian Maxwell. What suggestions do you have for changing that? In England in Wales, it is called a “child arrangement order”, but I suppose that we could ask ourselves the same question about that, because we would not call our contact with our kids an arrangement. I do not particularly like the word “contact”. Can you suggest an alternative?

Dr Whitcombe

I tend to refer to “parenting time” or “a quantum of parenting time”. There is no easy solution, but a hierarchy can be inferred from the use of the terms “residency” and “contact” that is unrealistic and not valid in today’s society.

Fulton MacGregor

I would agree with that.

June Loudoun

The word “parenting” should be used somewhere, whatever the term.

Dr Whitcombe said that the child lives with both parents, but that is only practicable when the parents live in the same geographical area. If one parent lives outwith the school catchment area, or even in a different region from the other parent, a completely shared parenting experience is difficult, time-wise. However, that is not to say that parents should not have contact through all the ways that new technology allows them to keep the relationship going and to spend a good bit of time with their children.

Again, it is an age thing, because younger children can spend all day with their parents, but teenagers do not want to do that. “Contact” is not a good word, because it implies that you are only visiting, whereas “parenting time” is equally valuable for both younger children and teenagers. They had parenting time with each parent when their parents lived together. To differentiate between the parents because they have separated is not good for the child.

Ian Maxwell

Canada is going for “parenting order”. Our suggestion, which was intended to reflect the fact that we already have specific orders, is that it should be called a “general order”. That would make it more a legal term; there would be specific issue orders for particular things to supplement that.

Rona Mackay

Dr Whitcombe, I may have misunderstood your evidence, but you seem to suggest that while one parent is being investigated, contact should continue. Is that not a deeply dangerous suggestion?

Dr Whitcombe

We have to understand that sometimes allegations are unfounded. We have heard about that today, and we know that from criminal, civil and family cases. Your colleague asked whether we should err on the side of caution. I am not saying that there should be unfettered contact and relationships in such situations, but we recognise that it is important for children to have a relationship with their parents—even parents who have been abusive. In terms of public law cases, in England and Wales there is a statutory responsibility, even when a parent has been found to be an abusive parent, to maintain that relationship if at all possible, because we recognise the importance of a child making sense of their experience of the relationship.

Rona Mackay

I could not disagree with you more.

The Convener

Sections 1 and 12 describe statutory factors that are intended to guide the court when it makes decisions about the welfare of children in cases. At present, two main factors are considered: the prospect of parental co-operation and the need to protect the child from abuse or the risk of abuse.

Section 12 will add two further statutory factors to those, both of which relate to court orders. One is the effect that a court order might have on

“the involvement of the child’s parents in bringing the child up”,

and the other is the effect of a court order on

“the child’s important relationships with other people.”

Can you comment on those provisions?

Ian Maxwell

The Children (Scotland) Act 1995 was a very clean and better-composed piece of legislation. It had no lists; it simply had three key principles. Certain things were added in 2006, and some concern was raised when the committee did its post-legislative scrutiny of the Family Law (Scotland) Act 2006.

11:00  

Dr Barnes Macfarlane has also raised the issue of checklists. The United Nations Convention on the Rights of the Child and, particularly, general comment 14 contain quite a lot about that. Dr Barnes Macfarlane noted:

“if there is to be a checklist, getting it right is crucial.”

Currently, we have a partial checklist. The UNCRC suggests things that could be included in the checklist, and it makes the very important point that the checklist has to be expressed in terms of what is in the best interests of the child.

We would argue, for instance, that a rebuttable presumption of shared care should be added to the checklist, as has been done in quite a lot of countries—not in the interests of the parents, but as a guide or a starting point for the judiciary. If we asked the judges in Belgium, which changed the law in 2006, about including a rebuttable presumption of shared care, they would say that that is useful, because it gives them a starting point. It does not force them to award shared care: they award that in only maybe around half the cases that come before the courts. Currently, the starting point in Scottish courts tends to be a tiny amount of care, which builds up, meaning that the court sometimes needs the case to come back again and again to enhance the amount of care. If Scottish sheriffs were given a starting point of shared care, they would be completely free from the evidence that the parties have presented to make a contact award that is either nothing or whatever is most appropriate.

We think that we currently have a very messy piece of legislation that has a partial checklist. If the Scottish Government is going to implement the UNCRC, it needs to take account of what it says about checklists, and we need to get it right.

Dr Whitcombe

I do not have the bill in front of me, and I do not think that I made a submission on that point. In England and Wales, there is a welfare checklist, which Cafcass and Cafcass Cymru use in considering what might be in the best interests of the child. The welfare of the child is paramount. We need to ensure that the child is safe and that the relationships that the child has with anybody are safe. A proper assessment of the welfare of the child is needed.

There is too much emphasis on private law proceedings when there are safeguarding issues that would be better dealt with in public law proceedings. We should not make decisions in private proceedings on what is harmful for a child. If there is a risk to a child, that risk should be properly evaluated and explored by the statutory agencies that are supposed to make assessments of those risks, which are normally local authorities. Too often, we rely on parents to protect their children when the safeguarding authorities should be protecting them. They should step up and say that there is a risk and what should happen, and that parenting time with a parent is not safe. Too often, we rely on private proceedings when there should be public proceedings.

The Convener

Ms Loudon, I think that Grandparents Apart UK’s submission refers to a right for grandparents rather than a presumption. Is that correct?

June Loudoun

No—it refers to a right for the child, and definitely not for the grandparents, because it is the child who is the important person in the bill and in life. The child is a future adult, so we need to get it right for them.

My concern is not necessarily to do with the extreme cases that go to court, which involve domestic abuse and so on; I am concerned with less extreme cases involving parents who separate. In those cases, often—but not always—the dad’s contact is reduced, which means that the paternal grandparents’ contact is reduced, too. Those grandparents might have been picking the child up from school or dropping them off at school every day, or they might have had them at the weekends. However, all of a sudden, because the parents have separated, the children do not have contact with their grandparents. It is true that those grandparents are hurt by that, but how must the child feel when, for no reason, they are taken away from people they love, have spent time with and trust? Why should the child be traumatised in that way? It is traumatic for them. A week is a long time for a child—particularly a young child—not to see an adult they love and care about.

The idea of engaging in months of court processes is not practical and is not in the interests of anyone, least of all the child. There needs to be some kind of protection that enables those children to maintain relationships with family members they have previously had relationships with. I am talking about cases in which there has not been domestic abuse or violence—that is a separate issue entirely, and there are protections in place to address that. I am interested in maintaining the love and support that those children receive from family members.

The Convener

In shared parenting—I understand that that involves the parenting point of view—there is a presumption, but your submission is phrased in terms of the right of the child. Would it be more proportionate to have a presumption that there would be contact but for that to be properly explored? As you have explained, there can sometimes be good reasons why there should not be contact.

June Loudoun

Can you explain what the difference would be to the child between a presumption and a right?

The Convener

I can see the difference between a right and a presumption in legal terms. In my view—I could be wrong—a presumption allows for more of an investigation to take place and for the circumstances of the individual case to be considered, rather than a one-size-fits-all approach being taken.

June Loudoun

One of the reasons for the requirement for a right, as we see it, concerns the involvement of social work with families. During 20 years of dealing with families with contact problems, we have seen huge problems arise when social work becomes involved in families, especially with regard to grandparents. Whether the social worker supports the relationship between the child and the grandparents depends on the area and the individual social worker, and on whether a grandparent raises a concern. All too often, when a grandparent raises a concern it involves the fact that they are being excluded from meetings and are not being told that meetings are happening. There is no proper investigation of what is being said or of what a social worker puts in a report. If something is in a report and is presented to a hearing or a court, there is no opportunity to question that or have it changed if it is wrong. We see the approach as a protection from practices that are not as good as they should be.

The Convener

Would another way to look at it be to look at what happens in court and to see whether that right is not being given—

June Loudoun

That is part of the problem, as well.

The Convener

That might be better than legislating to deal with bad practice in one part of the country.

June Loudoun

Absolutely.

The Convener

Okay. That is an interesting contribution.

Shona Robison (Dundee City East) (SNP)

We have touched on the issue of child welfare reporters and curators ad litem. You might be aware that sections 8 and 13 propose to regulate child welfare reporters and curators ad litem. Do you think that better training for child welfare reporters will be sufficient to address current issues?

Dr Whitcombe said that she believes a wider skill mix would be beneficial, and I could see other panel members nodding. Do you believe that child welfare reporters having the appropriate professional background should be the focus of the reforms? Do you think that the changes that have been made in England and Wales have delivered what they were intended to deliver? Some stakeholders have suggested that the courts south of the border do not sufficiently prioritise safety concerns in their decision making.

Dr Whitcombe

The role that is played by a child welfare reporter in Scotland is typically played by Cafcass practitioners in England and Cafcass Cymru practitioners in Wales, who are all qualified social workers. In my opinion, that is a better skill set for taking children’s views and performing that role. The majority of my work is in England and Wales, but I have done some work in Scotland, and the child welfare reports that I have seen here have caused me significant concern. The majority of those reports have been made by solicitor child welfare reporters.

I am concerned about child welfare reporters not understanding issues of coercive control, domestic violence, alienating behaviours, the influence of a parent and how to take the views of a child. I am also concerned about a failure to identify possible safeguarding issues and to refer them on soon enough. I am concerned, too, about recommendations on appropriate action not being made. I find it difficult to understand why somebody who in their core practice does not deal with family relationships and the welfare and development of children should be making recommendations on what should happen. Maybe that is because the majority of my work is in England and Wales, where social workers perform that role.

In a significant number of cases that I have seen in Scotland, recommendations by child welfare reporters have meant that the case has become entrenched and has stayed in the court system for a long time. Inappropriate recommendations lead to an exacerbation of the difficulties for the child and poorer outcomes for them. I have asked whether I could make some suitably redacted bar reports available to the committee so that members can see what my concerns are.

Shona Robison

Can I just clarify that you would prefer the child welfare reporter to have the right professional background to training being made available for those who perform the role despite not having the appropriate professional background?

Dr Whitcombe

As a base level, yes.

Shona Robison

What about the concerns that I mentioned about what is happening south of the border?

Dr Whitcombe

Safety concerns will sometimes be raised about the decisions that are made by social workers in their role as family court advisers. What is important is that there is a regulatory process whereby such complaints and concerns can be dealt with. I think that there are similar concerns in Scotland, where solicitors do the work of the child welfare reporter.

Shona Robison

So, the issue is less about professional background and more about decision making.

Dr Whitcombe

That is right. It is also about ensuring that we have sufficient processes in place to deal with that.

Ian Maxwell

I have a comment to make about the English process. In English family court cases, there is a fact-finding process right at the start, which is an early test for things such as domestic abuse. That is not present in the Scottish court system. Shared Parenting Scotland and Scottish Women’s Aid were interested in such a change being made, but that relates more to court procedures.

I, too, have had the chance to see quite a large number of child welfare reports. I have seen some very good ones and some very bad ones. We do not want to throw the baby out with the bath water. We have some good child welfare reporters operating in Scotland, but we have no effective oversight of them. Nobody looks at a sample of a child welfare reporter’s reports—that should happen particularly when they are starting out but also when they are established—with a view to working out whether what they are doing is good. There is very little control over how much they report.

11:15  

The changes that we made as a result of the working group on bar reporters have been good, because they mean that the court specifies in far more detail what it wants from the reporter. However, I feel that there is a need to look wider. We should preserve what works well in Scotland and try to build from that towards a better process in which we introduce the skills of child psychologists, parenting therapists and social workers alongside the evidence-finding abilities of lawyers. We have changed in Scotland. Almost all the work used to be done by social workers; now, it is almost all done by lawyers. I do not think that either is good.

We want training and proper oversight. I do not care whether that is done by the Scottish Government or the judiciary, as long as it is done properly.

What is missing from the bill is the potential to recognise that there are other key posts. You have heard mention in various submissions of child rights officers—of which we have a few in Scotland—and of parenting co-ordinators. Both those categories of professionals could play a very useful role, and they could take some of the load off the court. At the moment, when cases go back again and again for child welfare hearings in the Scottish courts, a vast amount of court time is taken up with micromanaging disputes between parents. A parenting co-ordinator or a child rights officer could work with the parents when the problems happen, not six to eight weeks after the problems, when the case finally comes to court. They could try to solve some of those problems, which would save us a lot of court time.

The statistics that we have on the Scottish courts are very poor at the moment, but I reckon that we have about 3,000 cases a year in the family courts, about 10,000 child welfare hearings, 500 case-management hearings and about 1,000 child welfare reports. I do not think all that should be happening in the court: some of it should be happening with professionals outside court. There is a significant cost saving to be achieved, which is not recognised in the papers accompanying the bill.

I hope that the bill leads to effective training and supervision of child welfare reporters but also opens up the potential for Scotland to experiment with far more use both of child rights officers and of parenting co-ordinators, which are the missing link here. You may need to put the powers for that in the primary legislation even if you are going to work out the detail at a secondary or an administrative stage. You need the powers to be in the legislation so that you can have those people working under the remit of the court. The key decisions are made by sheriffs and judges, but the implementation can be passed down the line.

I am not sure whether I have answered all your questions.

Shona Robison

Yes, I think so.

June Loudoun

There is a huge need for better training and understanding. We need to look at the people who are writing reports or who are dealing with children within the legal system as a whole. A lot of people who are in those roles are trying to glean information and find out what is happening because they do not have the experience or the knowledge to do the job. I do not mind whether it is legal people or social workers who do it, but those people need to know what they are looking for so that they can get the correct information.

The Convener

Fulton MacGregor has a supplementary question. I ask him to be brief, as we are already well over our time.

Fulton MacGregor

In relation to June Loudon’s point, I do not fully recognise the description of social work in that regard, because grandparents are often life-savers in situations of high stress for families. However, she makes a good point overall. As I know from having two kids, the right to contact with grandparents is very important for young people, yet it is sometimes lost as a by-product of another matter.

If the child is involved in the children’s hearings system, there will be assessment, more work will be done and the grandparents might be invited to the children’s hearings, so there will be more safeguards. I think that you are talking about cases in which kids are not in those systems. Should part of the child welfare reporter’s job be to look at the extended family and at where important relationships for the child lie?

June Loudoun

There should definitely be an evaluation of the whole situation. The biggest volume of our calls comes from grandparents who are not involved in the legal position other than through their child having separated from their partner. A child has a right to claim on a grandparent’s estate when they die, should the child’s parent have predeceased the grandparent, but the child does not have a right of contact when the grandparent is living. Is money more important than time? Is a grandparent’s estate of more value to their grandchild than their time during their life? There needs to be some equality in that regard. Is it good for a child to have contact with a grandparent, or not? That decision needs to be made. If it is in the best interests of the child in one way, it will be in their best interests in the other way.

Rona Mackay

I ask for brief answers to my question, because we are really short of time. Child contact centres are covered by section 9 of the bill. As a matter of principle, should courts order contact in contact centres where the nature of cases suggests that supervision is necessary and that contact might not be particularly safe for the child? Would it be reasonable for courts to do that?

June Loudoun

Contact centres can be good if contact has been broken for quite a while due to the slowness of the court process. There are sometimes accusations that a child does not want to see the parent or does not get on with them. In a contact centre, there is an independent person to monitor the contact. Such contact can be positive for the child if it takes place in the right setting, with the right regulation of the contact centre.

Ian Maxwell

We hear a lot about contact centres. We hear some very positive things, but we also hear some complaints. We can think about it from the child’s point of view. If we tell a child that they cannot see a parent, given that half of the child’s genetic make-up comes from that parent, we are telling them that half of them is a problem. We need safeguards and protection for children, and we want to ensure that they are not exposed to harm. However, to cut a child off completely is a difficult decision, and it must be made on absolutely clear grounds.

As June Loudoun said, contact centres are sometimes a good way of protecting a child and allowing them to see a parent in situations where it would otherwise not be at all safe for the child. I have read some of the evidence that has been submitted to the committee about problems with contact centres. I see only one side to the issue but, from our point of view, contact centres are a really important resource. We should develop them, build them up and make them better.

Dr Whitcombe

In my experience, child contact centres are used for several reasons in both public and private law cases where space is needed to allow contact to take place between children and parents, grandparents or siblings. In some cases that involve private law proceedings, there has been disruption to the contact—the time that a child spends with a parent—but there is no evidence of abuse, and the contact centre is used to build up the relationship with the parent again in a safe space.

Sometimes, the court orders supervised contact. It may be that there are concerns about a parent, or that concerns have not yet been evaluated and there is supervised contact in order to maintain the relationship while the evaluation is going on. I know that you disagreed earlier, but there are situations where allegations are unfounded, and it is important to maintain a relationship with the child in a safe manner. Child contact centres offer a safe environment in which contact can happen.

Liam Kerr

I have a question about the enforcement of court orders. When a court order is breached, section 16 of the bill would impose a new duty on the court to investigate why that has occurred. In evidence to the committee, some people suggested that that would add little, but others have told us that an investigation does not happen as standard so the provision is absolutely required. What are your views? If such a duty is introduced, should the child’s views always be sought?

Ian Maxwell

We have proposed a range of ways in which court orders could be enforced. The suggestion in the bill that the circumstances be examined is a good one, but the sheriffs need a lot more than that. I was interested to read that the Sheriffs Association would

“welcome a statutory scheme for simpler regulation of contempt cases”

with

“a fast track minute and answers”

to establish why things have happened. The Sheriffs Association suggests that that would mean that we could find out the position right away, rather than sending off the child welfare reporter and taking weeks, if not months, to determine that. It also suggests

“a framework for a social work report”,

if necessary, to find out the circumstances of the contempt and why the court order has not been carried out, and it proposes sentencing powers including

“a community payback order”,

“a requirement to attend parenting classes”

and, most important,

“deferral of sentence”.

I have been involved in cases in which the mere fact that contempt has been established has been enough to restart the contact, because the parent has realised that the court order is serious and that the child should see the other parent. Sheriffs often use that approach, and they are—quite rightly—reluctant to imprison parents. I agree with the comment that Marsha Scott made last week about contact in relation to a parent who has been imprisoned. Community service orders and parenting classes are positive measures that might improve the situation.

Dr Whitcombe

Breaches of court orders should always be investigated and the child’s view should be taken into consideration.

In the evidence that has been provided by Professor Sutherland and Dr Whitecross, mention is made of particularly intractable cases that keep going back to court for no reason other than that one parent keeps refusing to abide by the court order. They commented that there is no solution to such problems and that the court can only do so much. My concern is that there is a failure to identify the harm that that behaviour has on the child. If a parent continually causes disruption and, for no reason, prevents the child from having a relationship with a good-enough loving parent, that is harmful to the child and it can be considered to be abusive. That needs to be taken into consideration.

June Loudoun

There definitely needs to be investigation when contact does not happen. It may be that there has been abuse that has not been raised before, but that would need to be confirmed. There could be a multitude of reasons why the contact has not happened. It could be vindictiveness, it could be anger that has not been dealt with or it could just be to get at the other parent. Parents might not realise the harm that that does to the child, and in some cases it needs to be explained that the person is getting at not the husband or the wife, but the child. Investigation is important.

The Convener

Our last question is from James Kelly.

James Kelly (Glasgow) (Lab)

Section 21 of the bill says that, if there is court delay, the court should have regard to the welfare of the child and take action to ensure that the case is speeded up. Does any member of the panel feel that that provision does not go far enough and that it should be strengthened somewhat?

Ian Maxwell

I agree that it needs to be strengthened. We have had Supreme Court decisions and pronouncements from judges in appeal cases in the inner house about reducing delay. For example, Lord Glennie has said that decisions on contact should take place within weeks or at most months. However, I have been in court in front of sheriffs to whom I have quoted those decisions and they have disregarded them, ordered a report that would take around two months to produce and not put in any provision for contact in the meantime. I am afraid that urgency is important in hearing cases.

In our submission, we quote the work of Judge Rudolph in Cochem in Germany. He instituted a scheme in his local court whereby, if an issue was raised, each side could submit only a paper of one page and there had to be a hearing within a week, or at most two weeks, to consider the issue in court. Any further hearing that was necessary had to be held within another two weeks. That model worked there, and it progressed a lot of cases in a way that benefited children, rather than the parties having to wait for months for a decision on a fundamental aspect of their lives.

In cases in Scotland, there is a problem with delay, simply because that is the way in which the courts work. If a court is dealing with a fraud case or something of that nature, it might not matter that it is taking a long time. However, in a family case, it is important that the court sits early on to consider whether it is safe for the child to see the parent and whether an arrangement should be made to that effect. That should be done quickly, and not after a delay.

I was involved with a group on the family law committee of the Scottish Civil Justice Council that looked at case management, and I know that changes are being considered in that area. However, my feeling is that we need a much more fundamental emphasis on speed in family court cases now, because it is important for the children concerned.

Dr Whitcombe

Delay is extremely damaging for children. In the life of a young child, a week is an extremely long time and a month seems much longer. In England and Wales, guidelines were introduced to the effect that cases in private law proceedings should be heard and dealt with within 18 weeks and those in public law proceedings within 26 weeks, although I am not saying that those guidelines are always adhered to. I am conscious that cases that I am brought into have usually been in the courts for a year or two, or even three or four. Sometimes, the parties have been back and forward to court over a period of 10 years, which is an extremely damaging process for the children.

The Convener

Do panel members have any further points to make?

June Loudoun

For the same reason that Dr Whitcombe mentioned, I believe that the court process needs to be speeded up. A week is a long time for a child, never mind a month or six months. We need cases to be looked at in depth and properly investigated, and then we need decisions to be made that are in the best interests of children.

The Convener

That concludes our questioning. Our session has gone on for much longer than was anticipated, but it was important that we heard all your views fully and that you had the opportunity to express them. They have been very helpful. During your evidence, you suggested that you could provide the committee with further information, and we very much look forward to receiving that. In the meantime, I thank you all very much for attending.

I will suspend the meeting for a change of witnesses and a five-minute comfort break.

11:34 Meeting suspended.  

11:39 On resuming—  

The Convener

I welcome the witnesses for our second panel this morning: Stuart Valentine, chief executive of Relationships Scotland, and Isobel Bilsland, manager of Relationships Scotland Borders. I thank the witnesses for their written submissions, which are very helpful. I also take the opportunity to thank them for hosting the committee when we had our away day in September.

We will move straight to questions from members.

Jenny Gilruth

Good morning to the panel. You will be aware that section 1 would remove the 12-plus presumption for taking evidence or views from a child. You noted in your written evidence:

“Our concern with removing the age presumption was that children’s views would be less likely to be taken.”

Does Relationships Scotland now support the removal of the 12-plus presumption?

Stuart Valentine (Relationships Scotland)

We are very supportive of children having the opportunity to give their views. We know from the children who come to our centres that they are very keen to be heard. However, it is helpful for them to know that they are not going to be the decision makers in the matter. The responsibility for the final outcome will rest with others, but children have the opportunity to be heard and listened to as part of the process—that is vital. We hope that the bill that is passed will include details of the different ways in which that could be done. About half our network’s mediators are trained to consult children through the mediation process, and there may also be many other ways in which it could be done in the future—it would be helpful if the bill would specify them. In our Borders area, where my colleague Isobel Bilsland works, and in Aberdeen, we have developed more work on that, which it would be helpful to hear from her about.

Isobel Bilsland (Relationships Scotland Borders)

We hear children’s views in a variety of ways, not just when their parents are in mediation. Most referrals are court ordered, and we are asked to try to ascertain what children feel about their family situation and what they want to happen in future. We tend to see children over time; it is a process, not just a one-off meeting, because children—especially younger children—have to feel comfortable about who they are speaking with. We do a variety of activities with young children to try to ascertain their views, which might start with games, such as card games.

The court asks us to pass on the views in lots of ways. We might support children to write letters or to speak with the sheriff or a solicitor, or the court might ask us to try to ascertain their views and write a report for the court. We do that work in all manner of ways, which is important

Stuart Valentine

If the work is with children who are younger than the age of 12, any method that is used to take their views will of course be age appropriate to ensure that it is done in a reasonable way. The family justice modernisation strategy indicated that the Scottish Government was considering a system of child support workers; we would support that approach if they were specially trained to take the views of children.

Jenny Gilruth

In your written evidence, you mentioned the importance of child consultant mediators and child support workers. Are those roles distinct and separate? Could a child consultant mediator ever become a child support worker? The context for the question is the Scottish Government’s desire that there should not be duplication and that a child should see just one individual and not lots of different individuals. How might it work in that context?

Stuart Valentine

Our mediators could contribute to that. As I said, about half our mediators are trained in consulting children and our network would certainly be open to being more involved in that work.

Jenny Gilruth

However, their role is quite distinct from that of a child support worker, for example.

Stuart Valentine

Yes, that is so.

Jenny Gilruth

With the previous panel, we considered the issue of taking evidence from very young children—Isobel Bilsland alluded to that in her earlier answer to my question. Are there any other views on how that evidence can be best gathered from very young children in particular?

Isobel Bilsland

How evidence is gathered has to be determined on a case-by-case basis. For example, we are working now with a boy who is a teenager but who has a very young outlook on life. We cannot say that a child of 10 will be able to do X or Y, so we would not support a prescriptive list. As I said, we always ask the child how they feel most comfortable in reporting their views, and we tend to go along with that. As I said, it can start off with games. Sometimes, if they get distressed when we get into the nitty-gritty with children about how things have been for them and what difficulties they face, we pull back to a more generic game with them, rather than a game to find out their views.

11:45  

John Finnie

Good morning, panel, and thanks for your written evidence, from which we know that you have voluntary and paid staff in the contact centres. What is a typical mixture? How do the roles differ between the two categories of volunteers and paid staff?

Stuart Valentine

According to our most recent figures, we have 152 paid staff and 128 volunteers in our child contact centres. The direction of travel is towards more paid staff; proportionately, we had more volunteers in the past. There are many roles in our child contact centres. For example, there are people who are involved in the intake process, who make the initial assessments and gather all the case information. There are volunteers, there are child contact centre managers and there are overall service managers, such as Isobel Bilsland. There is a range of roles in the centres and there are different levels of experience and training depending on the roles.

John Finnie

I will ask about training. If you were present for the first evidence session this morning, you will have heard many references to domestic abuse. An important element of the domestic abuse legislation that was passed is controlling and coercive behaviour. Are your staff aware of that and do they have training on it?

Isobel Bilsland

On a rolling programme, we send our workers—staff and volunteers—to the local authority domestic abuse training. We also do that training in house. We update the training as we go. Everyone who works for us welcomes the training.

John Finnie

I am sure that they do. Having received that training, are your staff aware of anyone in the centres seeking to use controlling and coercive behaviour in the process of contact?

Isobel Bilsland

The short answer is yes, they are. In the case of supported and supervised contact, we keep the parents separate in our contact centres. The parents should never meet there. Staff are aware that somebody might try to pull the strings or control what is going on, but that does not happen in the contact centres, because parents are kept apart. We have separate arrival and departure times, and the parents often use separate entrances. If not, one parent is kept somewhere else while the other is coming in. They should never catch sight of each other. We get situations in which one parent will say, “Can you pass this on?” A contact centre is not an appropriate setting to pass bits and pieces on, unless it is something such as one parent asking us to let the other know that the child has had a cold that week and therefore might need something. That would be the only sort of message that we would pass on in a contact centre.

We have become aware of examples such as someone trying to put something in a child’s bag before the child is taken back to the resident parent. We caught that before it went through, because we do not know what is in it. It could be an abusive letter. We try to be careful.

Stuart Valentine

Perhaps we will come on to this, but there is a linked issue in that, in addition to the decision of the courts when contact is ordered, we make our own risk assessment. The courts of course make an assessment, but our centres make their own independent risk assessment of whether cases are safe to progress. Many of the issues that Mr Finnie raises will, we hope, be picked up in the risk assessment. It is worth saying that there are cases in which the court orders contact but our centres judge that it is not right and proper to go ahead with that. That is not routine, but there are cases in which we say that, in our view, we cannot safely facilitate contact, so we will not go ahead with it.

John Finnie

What is the prevalence of cases involving domestic abuse or other serious welfare considerations as a proportion of your workload?

Stuart Valentine

In general, in around half the cases, that may be mentioned as an element. Clearly, it is vital for the courts to make a judgment on that, and for our centres to do so. Scotland continues to have a serious and significant problem of violence and coercive control, predominantly but not exclusively by men against women. That issue is vital to the running of our child contact centres. It is in no one’s interest for unsafe contact to happen and we do not want it to happen in our child contact centres. The safety of everyone involved is our first and main priority.

John Finnie

How does the source of your referrals affect the characteristics of the families involved and the work that takes place?

Stuart Valentine

Across the country, about 2,500 children come to our contact centres each year and we facilitate more than 32,000 separate contact sessions. About 80 per cent of our referrals come from the Scottish courts and solicitors, but we also have referrals from social work as well as self-referrals. The vast majority of referrals come from the courts and the legal profession.

John Finnie

I am sure that each case is individual but, in general, does the source substantially affect the range of work that you are required to undertake?

Isobel Bilsland

We have very few self-referrals that involve significant concerns such as mental health issues or a history of substance abuse or domestic abuse. Most of those types of referrals come from the courts. Do you agree with that, Stuart?

Stuart Valentine

Yes.

Isobel Bilsland

We get some referrals from social work that involve things such as mental health issues or substance misuse.

Stuart Valentine

A key theme over the years—certainly in the past five to 10 years—has been the increasing complexity of the issues that people present with, such as drug and alcohol misuse and mental health issues such as self-harm and suicidal ideation. A range of issues now come into our services for us to deal with, and there has been a big increase in that. Those other issues that families are experiencing can present an additional challenge to us in arranging and facilitating contact and making sure that good and positive contact takes place.

The Convener

Liam McArthur has a supplementary question.

Liam McArthur (Orkney Islands) (LD)

I should declare an interest, as my wife is a mediator with Relationships Scotland Orkney.

To follow up on John Finnie’s line of questioning, I note that you said that, on rare occasions, you consider that engagement through the contact centre would not be appropriate or safe. What tends to happen in those cases? If contact is not possible under supervised conditions in a contact centre, it is difficult to imagine that there would be any way of facilitating that contact safely. Does the court simply accept the view from Relationships Scotland that contact in those cases simply cannot be facilitated safely?

Isobel Bilsland

That mostly happens when the court sends people to us for supported contact but then, having done a risk assessment or seen other pieces of the jigsaw puzzle through the MARAC—multi-agency risk assessment conference—system or whatever, we feel that that would not be safe. In that situation, we go back to the court and say that, at least in the interim until other things are sorted out by the courts, we are willing only to do supervised contact. That is rare, but the courts have accepted it.

Liam McArthur

That is helpful.

Fulton MacGregor

I want to follow up on Liam McArthur’s question and on Stuart Valentine’s point that the court and Relationships Scotland make decisions on contact. Can you give an example of how that might work in practice when a court order comes in and you begin to assess the family dynamics and circumstances?

Isobel Bilsland

Normally, when we get a court referral, we get some information from the court. Usually, both solicitors phone us up. If not, we will phone the solicitors and try to get a bit more information. Sometimes, it does not sound as if we are dealing with the same family, because we get two different stories, but it gives us something to start with. Sometimes, we are already aware of the family because they are working with us through other routes, or through the MARAC system.

We then do initial assessment interviews with people to take their views and tell them how the system works. At that point, both parties usually give us lots of information. We do a simple trawl to see whether there are any domestic abuse issues, health issues or child protection issues. If anything is flagged up by anybody—the parents, solicitors or the court, for example—a senior person from the service will do a much more in-depth risk assessment. In our case, that will probably be our family support worker. They will go into things in much more detail and perhaps phone agencies such as Children 1st, the social work department or the child protection unit. That person will ensure that we have ticked as many boxes as possible.

It is not always possible to get everything down in black and white because, if the court is not told that there is a problem, not everything will be flagged up. We do as much as we can.

Fulton MacGregor

How prescriptive do court orders tend to be? If you are confronted with a situation in which a court order says X, Y and Z and, from your expertise, you see immediate warning signs but you do not have time to get back to the court because it is the weekend or whatever, does that mean a referral to the statutory agencies or do you deal with it yourself?

Isobel Bilsland

The order that we get from the court—the interlocutor—is usually pretty slow in coming through, but the sheriff’s clerk or the solicitors will get in touch with us that day or the day after, so we will have lots of warning. However, there are times when they say that they need three supervised contacts done and they need the report by whenever, and we just say that we cannot do it, so they continue the case or sist it and move it forward. It is more important to the court that all the boxes are ticked and everything is done. There is no point in just going back to the court with one contact if that will not be good enough.

Does that answer your question?

Fulton MacGregor

Yes.

Stuart Valentine

There are sometimes gaps in the information that our contact centres get from the court. They often do not get the full picture and are faced with the task of making sure that they get as much information as possible. There is certainly a weakness in the process in that the courts do not give a full picture of all the circumstances that it would be best for us to be aware of before we go ahead with contact. That is a gap in the process and it could be improved.

Isobel Bilsland

That happens more in some areas than in others. Some court areas seem to be happier than others to give information. There is a problem with that in some parts of Scotland.

Fulton MacGregor

I would like to think that there is a degree of flexibility, given that you are dealing with families who are in difficult circumstances, so you need to be flexible to react to that.

You talked earlier about the staff set-up in the contact centres and you mentioned paid staff and volunteer staff. Is a different status of staff required for different types of contact or certain situations, or does everybody operate in the same fashion?

12:00  

Stuart Valentine

People are appropriately trained for the task that is being undertaken. For example, people have additional specialist training to undertake supervised contact, which involves more intensive oversight of what is happening. There is training on the contact itself, writing reports for the court and the range of issues that are dealt with. Some activities that we do are more intense and require more training than others.

Fulton MacGregor

Is it more likely to be the paid staff who do that?

Stuart Valentine

Yes. Only paid staff provide supervised contact.

Isobel Bilsland

There is always a paid member of staff who takes responsibility on the day for the contact centres.

Stuart Valentine

One gap that our network sees is that specialist risk assessments should be available to the courts in making decisions on contact, so that they can make a determination on issues such as domestic abuse or coercive control. At the moment, the courts do not have access to that specialist knowledge, so we would be keen for those to be made available. A very small number of specialist risk assessments have been done in Scotland, and a number of people are trained in that. That is another gap in the process. As I said, we do not want unsafe referrals to be made to our contact centres from the courts. Specialist risk assessments could greatly assist the court in making its decisions about when it is safe or not safe for contact to progress.

John Finnie

Reference was made earlier to MARAC, which is the multi-agency risk assessment system. Would that suggestion meet the terms of that system? Where does your suggestion fit in the scheme of things?

Isobel Bilsland

Relationships Scotland’s services do not work within the MARAC process in every part of Scotland. The type of agencies that are included in the MARAC process depends on the local authority in the area.

John Finnie

I presume that a local authority that does not include you in its multi-agency risk assessment process would not make a referral to you through its social work department that was not supported by a risk assessment, if someone was the subject of a MARAC assessment.

Stuart Valentine

I am not sure of the best answer to that. Referrals to our contact centres come directly from the courts and they might or might not include that link to the MARAC system in certain parts of the country.

John Finnie

But you said that you also got referrals from social work services.

Isobel Bilsland

Yes. We get some in that way, but those are rarely for supervised contact and are really only for supported contact. In my experience, the referrals for supervised contact that come through that route are either for looked-after children, who are maybe with foster carers, or for a child with Asperger’s or something like that. It happens when there is a special need to use the contact centre.

John Finnie

The reason why I ask is to understand whether there are shortcomings in the bill that the committee needs to pick up on. Everyone wants to give a high profile to safety. If there is something that you feel that we should pick up on, perhaps you could write after the meeting to give examples.

Stuart Valentine

Absolutely. We will provide more information on our thoughts around specialist risk assessments that could be available to the courts.

The Convener

That would be helpful.

Rona Mackay

In light of your responses so far, can you clarify who is actually responsible for the children? In your written submission, you say that one of the principles of contact at your centres is that parents and not staff are responsible, and that the contact centre’s staff have a general duty of care in respect of its premises and users. Will you clear up that matter? We have heard that you take a lot of responsibility for safety measures, but perhaps you could elaborate on that.

Stuart Valentine

I will cover the general points, and Isobel Bilsland can fill in some of the detail.

It partly depends on how the contact process is done. We have a range of types of contact in our centres. For example, with handover, which is basically when one parent brings the child to the centre and the child goes through staff members to the other parent, with the first parent perhaps leaving the centre for a number of hours, the responsibility for the child clearly remains with the other parent. Supported contact is dealt with similarly.

There is much greater oversight with supervised contact. The work involves observing and taking great care at all times during the contact, which clearly involves a lot of responsibility. There is oversight at all times when families and children are in our centre, but the facility is for children to spend time with their parents, and if that contact has been deemed safe and goes ahead in the knowledge that the process is safe, the parent is also responsible for their child during the contact. That is in the confines of our centres, where staff are present.

Rona Mackay

Are you confident that, should an incident become of concern during contact, your staff can intervene and that there is a process that will keep the child safe? Do such incidents happen often?

Isobel Bilsland

Such incidents happen. They can happen at a very low level, in which case a member of staff might say, “We want you to come out of the corner, because we can’t see what’s happening,” or, “Do you really think that it’s appropriate to speak with your child like that?” or, “You can’t take photos like that because it’s intrusive.”

However, clients in contact centres have also behaved in a totally inappropriate way such as threatening staff, and staff have had to intervene, call the police and actually take the child away from the parent. In such cases, staff have to take responsibility for the child until the other parent can be brought back to collect the child.

Staff have also had to intervene when we have had sad incidents in which a mother who has mental health issues comes to see her child and is not handling the child appropriately or is force-feeding it or something such as that.

Rona Mackay

Very roughly, has that happened a few times or does it happen 20 per cent of the time?

Isobel Bilsland

The number of such incidents is growing all the time. Ten years ago, it happened once every six months. I can only speak for my contact centres, but I would say that such incidents now happen once a month.

The Convener

My final question is the same as one that I posed to the previous panel. If contact has to be supervised, that suggests that there is a safety risk, so should the courts be ordering contact at all?

Stuart Valentine

That goes back to the central dilemma, which is about whether parents are and should be able to continue to have a relationship with their children. From research, we know that between a quarter and a third of children lose contact with their non-resident parent after separation and divorce. In the vast majority of those cases, there is no good reason for that but, clearly, in cases in which there is domestic abuse, coercive control or such issues, a judgment has to be made.

As I mentioned, we are calling for special risk assessments, but we are also trying to ensure that courts and others make the best decisions possible. However, it requires the wisdom of Solomon to decide whether contact should go ahead. You have heard a range of views from organisations about where the balance should lie. It is enormously difficult for the courts and others to make those decisions. It is for all of us—all the organisations that work with those families—to try to make the best judgment that we can to achieve the best outcome for children. It is a massive loss in a child’s life not to have a relationship with one of their parents but, in a significant number of cases, that may be the best outcome. However, it is an enormously difficult decision. That is clearly the challenge before us.

Isobel Bilsland

It is important to say that supervised contact happens for a variety of reasons and not just because the court feels that unsupervised contact could be unsafe.

Rona Mackay

What would those reasons be?

Isobel Bilsland

There are a lot of reasons. Quite often, it is because a child has not seen a parent for a long time. About three weeks ago, a child came into the contact centre who had not seen his parent for two and a half years because he had refused point-blank to do so. Even outside the door of the contact centre, he was saying that he did not want to see his parent and that he would not go in. All of a sudden, he said, “I’ll go in, but I’ll tell him I don’t want to see him.” As soon as he went through the door, he ran straight to his parent. The contact lasted for two hours and it was very positive. Viewing it from where we were, we had no concerns.

Another issue is when a parent has changed significantly, perhaps because they have been in the army. We have had cases in which a parent has been badly disfigured in Afghanistan and it has not been possible to reintroduce them to the child in a family setting because the parents are separated. We have worked with the child and tried to say, “This is still daddy, but he isn’t able to hold you any more.”

Rona Mackay

You talked about the child not wanting to go into the room. Did that not concern you? Did you feel obliged to take the child into contact—

Isobel Bilsland

No. We would never force a child into contact—

Rona Mackay

But he was saying that he did not want to go in.

Isobel Bilsland

He arrived outside and his mother said, “Why don’t you just go in for five minutes and see?” Nobody was saying that there was, at that point, any reason why the child should not see their father.

Rona Mackay

Does that not go back to the core purpose of listening to children’s views? Surely, if they say that, you have to believe them.

Isobel Bilsland

I agree. This was the first time that we had met this child. He had not been in our service and we had not been speaking to him. The mother was very encouraging. She was saying, “I think you should go in and see your dad—just go in for five minutes.” We would have been saying, “If you want to come in, this is what will happen. This is where your dad will be sitting. This is where you’ll see him. We’ll be with you all the time. Your mum will be waiting in another room, and if you want to see your mum at any time, we’ll take you right through.”

If a child wants to, they can give us safe words or a safe action, so that we would know to take them out of the room. In that instance, the mum seemed to be sure that the child wanted to see the parent, but I reassure the committee that we would never ever try to force a child. We have read things that say that a child was dragged away screaming. We do not recognise that—it is not something that we do.

James Kelly

I want to touch on funding. One of the challenges that you face is that the Big Lottery funding of £750,000 a year will be withdrawn in March 2020. How do you envisage that you will overcome that challenge?

Stuart Valentine

That is a very good question. The Big Lottery Fund has provided excellent support to our child contact centres over the past five years, and we have been very grateful for that support. The Big Lottery has less funds than it used to have and has advised us that, from the end of March, it will no longer be able to fund us. Very few funders in Scotland can provide that level of support; it is only really the Big Lottery and the Scottish Government that can do that.

12:15  

We have been in discussions with Scottish Government ministers for a number of years in which we have highlighted the issue that will come up at the end of March. We were very pleased to get the news just before Christmas that interim funding of £200,000 will be provided for three months—from 1 April until the end of June—to support our child contact centres during that period. That will also give us time to continue to speak to ministers and officials about the longer-term sustainable funding of child contact centres that needs to be in place.

It is perhaps stating the obvious, but we need funding to run our child contact centres across Scotland. As I said, we have 32,000 individual contact sessions a year that need to be supported through the provision of staff, premises and other support. In the light of the loss of the Big Lottery funding, the provision by the Scottish Government of the majority of that support is the main route that we are looking to for the future, and those conversations are on-going.

James Kelly

Have you been able to investigate any other sources of funding, separate from the Scottish Government?

Stuart Valentine

Absolutely. A funding jigsaw is in place across the country. We already receive funding from the Scottish Legal Aid Board and charitable trusts, and from donations and charges that can be made. We get our funding from a range of different sources; we recently provided the Scottish Government with very detailed information on that. There are, and will continue to be, a range of funding sources for our contact centres.

However, we would not be able to make up the loss of £750,000 in Big Lottery funding through, for example, a range of applications to other charitable trusts across Scotland—it would simply not be feasible to bring in that level of funding. We have made the Scottish Government aware of that, we continue to do so in our discussions with it, and we hope to find a way forward that will ensure that we have sustainable funding for our services.

Shona Robison

I will touch on referrals to contact centres from sources other than the courts. Earlier, Isobel Bilsland mentioned that there can sometimes be referrals from social work and that referrals involving issues to do with substance misuse or mental health will not necessarily come through the court system. The bill requires court referrals to be to a regulated centre; however, with referrals from other sources, that would not be the case. In its submission, Relationships Scotland states that it thinks that it would be “impractical” for Relationships Scotland contact centres to operate in that way. It would be useful to hear a bit more about why you think that.

Stuart Valentine

We would not support a two-tier system of child contact centres. We operate and support 42 child contact centres across the country, which operate in an integrated way with other services. We try to have as great a geographical spread across the country as possible, which is key so that families do not have to travel too far to access contact. It would not be practical to work to two different standards.

Over the past 30 years, in order to aim for the best practice everywhere that we operate, we have worked to develop very strong standards, policies and practice across the country. We want to continue to do that, so it would not be practical to have two types of child contact centres across the country, with one network that met good, high standards of regulation and another that did not. All centres should try to attain the best standards possible.

The Convener

Relationships Scotland’s submission refers to a “gold standard” for accommodation for contact centres. Could you elaborate on that?

Stuart Valentine

Our contact centres operate in different places. We operate centres from our own offices. In addition, in Hamilton, for example, we run a child contact centre from the Burnbank family centre, which is an already-established family centre whose premises we use for part of the week.

Across the country, we use church halls and community centres. In the Highlands and Islands, we use ad hoc centres now and again when contact is required. We use a range of premises. We are keen to avoid a situation in which regulation prevents us from using some of the centres that we currently use from time to time.

We hope that a sensible, flexible approach will be taken. Of course, all the centres that we use should be safe and fit for purpose, but, for example, we would not expect every centre that we use to have to have wheelchair access. We do not think that that would be necessary. What we could guarantee is that, in any cases in which families come to us with those needs, we would find a tailored solution. That approach would not be detrimental to anyone, but it would mean that not every centre had to have, for example, full wheelchair access.

Isobel Bilsland

I agree. I think that problems are more likely to arise in more rural and island situations. We would not want regulation to stop access to children who are living on a remote island somewhere. Stuart Valentine covered everything that I would say in that regard.

The Convener

The considerations—multiple entries, disabled access, modern play facilities, waiting spaces and so on—are almost like a wish list, but the reality is that, sometimes, a facility might fall short of that standard but will still do the job. Ensuring that all the facilities can meet those considerations would have huge resource implications, which would have to be addressed in the financial memorandum. Is that more or less your point?

Stuart Valentine

Yes. If the standards were set at a significantly higher level than the level of our current facilities across the country, that would require investment. The other issue is that, as I mentioned, we do not own all the premises; we might be renting space in those premises at the weekend, and it would not be in our gift to start knocking down walls and making various changes.

Liam Kerr

You might have heard me ask earlier about the enforcement of court orders, which is covered in section 16. You and others have suggested a range of interventions—mediation, family therapy and so on—that would help to resolve the issues that families experience in relation to breaches of court orders. Do you have a view on whether those interventions should appear in the bill? How can courts and service providers such as yourselves ensure that those interventions are used only in suitable cases? We have had some representations that they might not be appropriate in situations in which there is domestic abuse, for example.

Isobel Bilsland

We are fully aware that mediation, for example, is not always in the best interests of the parties involved, in a strict sense. Sometimes, we get court referrals involving cases in which there has been domestic abuse, and we have to take a different approach.

The first thing to say is that we always begin by seeing people individually. If they are not comfortable with mediation, we write to the court to say that we do not feel that that is appropriate. Secondly, more and more mediation is being done using an approach that we call shuttle mediation, which involves the two people not being in the same room. There is a debate that goes on all the time within Relationships Scotland about whether shuttle mediation provides outcomes that are as positive as those that are provided by face-to-face mediation, but it is one of the things that we can do. It is more expensive, because you need two mediators for shuttle mediation.

I do not know whether I have explained this fully but, basically, with shuttle mediation, the parties do not meet. They are in the same building, but they arrive and leave at different times, so they never meet. There are two mediators, and one mediator goes between the parties. That is a possibility.

Stuart Valentine

That is part of it. Also, the investment from the Big Lottery helped us to employ and develop a range of family support workers across the country. They have been very successful in helping families in situations in which the contact is safe and can go ahead. Those workers help families move towards contact in cases in which there might be issues arising from the fallout from a couple’s break-up. As you will know, when people break up, although there might not be domestic abuse issues, there might be a range of other issues that lead to former partners having very strong feelings against each another. Our family support workers have proven to be very successful in working with families in those situations to help to break down some of the concerns about contact, and they have facilitated good and positive contact in a range of cases in which contact would not otherwise have taken place.

As others have said, we would never support punitive measures against resident parents. We try to understand why there has not been contact and to work through those issues with the families.

The Convener

For the avoidance of doubt, is there an understanding that mediation would not be appropriate in cases in which there is domestic abuse?

Stuart Valentine

In many cases, there is a judgment to be made. Again, there is a range of debate about that. Some would say that it should automatically be the case that no one should be allowed to go through mediation in such a situation, but there might be some cases in which the person who has been subjected to domestic abuse might wish to go through, and can be supported through, mediation. However, in the majority of cases, mediation would not be deemed appropriate where there is domestic abuse.

John Finnie

There are strong views on that subject, as you know. On that specific point, what would you use to establish that no coercive control was being exerted on the person who agreed to undertake mediation in those circumstances? That is the very nature of such behaviour.

Stuart Valentine

That is a key part of the training that we provide to our family mediators. All our family mediators go through extensive training, of which dealing with cases in which there has been domestic abuse is a key part. We asked Scottish Women’s Aid to look at the training that we provide to our family mediators to say whether it appropriately covers the issue of domestic abuse and it confirmed to us that, in its view, the training does so. For the families we work with, such issues are central.

There is a range of mechanisms that we can use in cases in which people wish to go ahead with mediation—for example, Isobel Bilsland mentioned shuttle mediation, where the people do not even meet each other. We understand that it is a sensitive and difficult area and, in the majority of cases, mediation would not be viewed as appropriate where there has been domestic abuse.

The Convener

That concludes our questioning. Thank you very much for what has been a helpful session. We look forward to receiving the additional information that you have indicated that you will provide.

The Convener (Margaret Mitchell)

Good morning and welcome to the third meeting in 2020 of the Justice Committee. We have received no apologies. Our delayed start is due to the Cabinet Secretary for Justice, Humza Yousaf, having been unavoidably detained, so the committee has used the opportunity to discuss item 9—our work programme—in full.

In order to make best use of our time, we will go straight to agenda item 6, which is consideration of the Children (Scotland) Bill. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper. We will have two evidence sessions this morning. I welcome the witnesses on our first panel. Dr Louise Hill is the evidence and policy lead with CELSIS; Ben Farrugia is the director of Social Work Scotland; Duncan Dunlop is chief executive, and Oisín King is a member, of Who Cares? Scotland. I thank the witnesses for their recent submissions, which the committee always finds helpful. Let us move straight to questions.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

As the panel will be aware, sections 1 to 3 of the bill will remove the existing presumption that only children over 12 have the capacity to express a view on a decision that affects them. We have explored the matter in two previous evidence sessions, at which witnesses from the office of the Children and Young People’s Commissioner Scotland and other witnesses—I know that some of today’s panel agree—have expressed that all children should have that facility. Can the panel inform us why?

Ben Farrugia (Social Work Scotland)

Social Work Scotland fully supports the removal of that presumption. The basis of our position is the understanding that some children under 12 are very able to form and give their views, so that should be reflected in the law. Although the current law does not prevent children under 12 from doing so, our understanding is that, in practice, 12 has become the age threshold, so we would like to see its removal.

The Convener

Witnesses do not have to touch the microphones. They will come on automatically, as if by magic, when you are going to speak.

Duncan Dunlop (Who Cares? Scotland)

Who Cares? Scotland does uninstructed advocacy even for babies and toddlers; we give opinions or points of view from children’s perspective from birth onwards. We do that from the position of an independent relationship, considering what is going on for a child in any instance and what matters to that child.

When that is done as a transaction, and someone from a court has a very brief conversation with a child or uses a form, as is currently the way of doing things, children can feel under pressure to give an opinion that a parent might hear, thereby potentially giving a side to the argument that is not a true reflection of what they want. That is not a good process.

As the committee will hear later, there are children from the ages of five to seven who can almost parent their brothers and sisters, so the matter of why they cannot have an opinion on what should happen to them, on their childhood, on where they should live or whatever is just down to the process through which we illustrate their views. The court must deal with that via someone who is independent of families—it must be someone who is in a relationship-based position, as far as possible. We can then see a true depiction of what the child feels most comfortable with.

10:30  

Dr Louise Hill (CELCIS)

The United Nations Committee on the Rights of the Child has always been clear that there should not be an age limit, because children have evolving capacity and ability to share their views. The CRC has made some clear comments to the United Kingdom Government about removal of a specific age limit. We refer to evolving capacity, which makes a real difference. That is a critical point.

When the Children (Scotland) Act 1995 was passed, using the age of 12 was seen as being almost progressive, because children below the age of 16 were not at that time having their views sought. For some sheriffs, the change to lowering the age might have been really positive.

In the current climate, in which there is recognition that children are independent rights holders with agency, we are in a different space from when the 1995 act was going through. There is a recognition that the age of 12 has become a sticking point, and there is an assumption that children below the age of 12 cannot express their views. That was never the intention. Many rulings have been clear that children who are younger than 12 can, of course, express views.

There is probably still a challenge regarding clarity in the Children (Scotland) Bill and the gap that exists on the right of children to instruct a solicitor, which remains applicable at 12. There are still issues about compatibility with other legislation in Scots law, so quite a lot of work will probably be needed on that.

We can put other things in the proposed legislation, but the critical aspects are implementation and the culture change that will be required in the court system so that it recognises the place of children and their individual right to have their views heard on matters that directly impact on their lives.

Jenny Gilruth

On the practicalities of taking evidence from very young children, I heard Duncan Dunlop talk about taking the views of toddlers. In its submission, CELSIS talks about

“the views of babies and very young children, as well as children with special communication needs”.

In its submission, Who Cares? Scotland says that there could be merit in the

“suggestion to bring the court to the child”.

Do members of the panel have any views on how that should be done for very young children, in particular? It is a potentially difficult area. Social Work Scotland goes on to discuss potential challenges regarding the increased number of staff that might be required, including play therapists, for example.

Dr Hill

There has been some really interesting research on that. Work has been done with very young children on how their views can be sought—I am thinking of the work of Professor Priscilla Alderson. There are some lovely approaches, including what is called the mosaic approach. There is lots of stuff that we can share about how it can be done effectively.

It is important to note that individual children have evolving capacity to express their views. I have a two-year-old and a five-year-old: I certainly know that they have the ability to express their views to me regularly. They do that about different things at different times.

We now understand, from a research perspective, that children have much higher levels of understanding, appreciation and competency regarding their own family lives and the situations that they are in. When it comes to the experiences of children who are in some of the most difficult circumstances, we know of some good skilled practice and some sensitive ways in which we can work with them to find out what their views are on relationships with parents, or on seeing their wider family. It is more a question of how the information can be shared appropriately, sensitively and ethically with the court, as part of representing the child’s view.

We are not talking about having children crawling around a courtroom, which none of us would think was appropriate. There is something about the culture of our courts and changing the system so that it is more open and reflects how children’s views might be shared. There are many different ideas about how we can do that in developmentally appropriate ways, as children grow up through the system.

Ben Farrugia

I do not have much to add to that, other than the observation that this is not about breaking new ground on a map that has not been filled in: this is about bringing courts in Scotland up to the standards of best practice.

Organisations deploy every day the kind of mechanisms that have already been referred to—play therapy, skilled advocates, psychologists, and regular people including social workers and others—to ascertain the views of children under 12, even of those as young as toddlers, to feed in to other processes. If we wanted to, we could incorporate such practice into the courts.

Social Work Scotland made a point about resources, to which I will probably return: that we should never assume that, because something happens elsewhere, we can easily incorporate it into the court system. What we are discussing is complex work that requires skilled professionals who have undertaken specific education, and who have specific support and supervision, which is important in order to avoid their bias being brought into the process. The introduction of that practice needs to be thought through in respect of implementation, as Louise Hill said earlier; it needs to be considered carefully and then followed through. We cannot have a good implementation plan and just hope that it happens; we have to make it happen, over time.

Duncan Dunlop

When people actually use some of the processes to understand what a child thinks, wants and needs, they find out other things that have made the child feel secure and stable, beyond the relationship. Those might include wider family relationships, neighbours, and even physical places like playgrounds, nurseries and primary schools. All the network and infrastructure around the child are suddenly brought to life, rather than there just being a focus on the relationship. That has to be done in a child-centred way, however, and it takes time, because it relies on the child being able to trust the relationship in order to be able to express their point of view.

Oisín King (Who Cares? Scotland)

While people are taking the opinions and views of infants, especially, they really have to keep in mind that it is not about manipulating them in order to get their views; it is about building the trust that the infant deserves.

Jenny Gilruth

On that point, you will be aware that, under the children’s hearings system, the rules state that the child must be able to express their view in their own preferred manner. Legislation does not currently make provision for how the methods should be set in place for taking evidence from very young children. Witnesses have spoken about building trust; that could be difficult when taking evidence from a child in a court. Should the legislation be more specific about how views are taken from children? Does it need to be spelled out in primary legislation? Should the bill be prescriptive?

Ben Farrugia

I am instinctively nervous about the bill being too prescriptive, because things will evolve, and then we would be back with the committee again, discussing how the list needs to change. I hope that we are confident that sheriffs and their officials will have sufficient understanding of the mechanisms and processes, and will be able to create spaces for them, so that they can be used by the court.

Dr Hill

I agree with Ben Farrugia about not being too prescriptive. Legislation serves a particular purpose, but this issue is more about culture change and what goes on around that. We should think about good-quality guidance and then about a suite of implementation measures to support that practice. It is unfair to put on the statute books things that no one has any idea how to do. It needs to be carefully thought through.

A lot of our implementation work at CELCIS has taught us that there are no quick fixes, and that things take time. They require leadership, buy-in, resources and an approach and vision that involve thinking in the long term about how we will get to a particular position that we are not currently in.

To speak more optimistically, I note that some sheriffs’ rulings show what they have done to seek children’s views, but they might be the outliers and the more unusual cases, rather than the norm. We need to think about what the barriers and the enablers are.

I hope that the eventual legislation will be scrutinised by Parliament, in line with the commitment that the Government has made for full incorporation of the United Nations Convention on the Rights of the Child. A consequence will be that that will open up many more debates about how the views of children are heard in other processes. That will be a positive part of the culture change. The “how to” bit will involve a lot of support, as well as careful thinking and buy-in. There is an opportunity to consider the challenges and barriers: rather than just assume that sheriffs do not want to change their approach, we can consider what the practical issues are and how we work on and get round those.

Duncan Dunlop

The only thing that I would add is that the person who is getting the views from the child must be independent of the family. Child welfare reporters are normally solicitors. It is important that they have the skills to do the work but, at present, some reporters do not even ask the child for their point of view. It is a big shift to start to consider where the skill set will fit into court proceedings and who has the mandate from the court to do the work.

The Convener

Last week, the committee heard from a witness from Grandparents Apart UK, who suggested that grandchildren should have the right to see their grandparents. When pressed about why there should be a right rather than a presumption, she said that social workers’ involvement with families has not always been positive for relationships between grandparents and children. More specifically and worryingly, in talking about the reason why Grandparents Apart wants such a right, the witness said:

“There is no proper investigation of what is being said or of what a social worker puts in a report. If something is in a report and is presented to a hearing or a court, there is no opportunity to question that or have it changed if it is wrong.”—[Official Report, Justice Committee, 14 January 2020; c 22.]

Will the panel comment on that? Mr Farrugia, would you like to comment?

Ben Farrugia

I was just pausing to cogitate on that.

My starting point is that we do not support the suggestion that there be a right for grandparents to be included. That is informed by the fact that a social work assessment of a child’s best interests should be a dynamic process. At the time, a relationship and contact with a grandparent might be seen not to be helpful, although it might become so in the future. It is a highly complex issue and the process involves balancing many factors. If we assumed a right to contact and a relationship with a grandparent, the process would be made more complicated and it could be argued that other factors could be prejudiced.

If a social worker is trying to secure the child in a placement that will be secure and stable—especially a young child who might be moved through to permanence and adoption—there are extremely difficult considerations that involve balancing many legitimate interests. I would never imply that the issue is in any way simple; it is extremely complex and there are things that have to give when a social worker is trying to assess the child’s best interests.

I do not have a direct response to the evidence that the committee has received, but I suppose that my reflection would be that, at the moment, social workers try to ensure that positive and nurturing relationships for children are maintained wherever possible, within the capacity to do so. That point is reflected in our written evidence, and I concede that it is a limiting factor. However, within what is possible, social workers will try to maintain relationships.

The Convener

The substantive point that the witness from Grandparents Apart was making was that, if something in a report is factually wrong, or it seems that what is being suggested might not be in the child’s best interests, there is no right of reply for grandparents. There seems to be a bit of a gap and some unfairness there, which is why Grandparents Apart has asked for a right rather than a presumption. Should consideration be given to introducing a right for grandparents to say that something did not happen, to provide proof or to set out the circumstances surrounding an issue?

Ben Farrugia

Without assuming that there should be a right, I will happily say that SWS would be part of a conversation on that. I am sure that my colleagues on the next panel from Children’s Hearings Scotland and the Scottish Children’s Reporter Administration will have views on that and on the mechanisms in the current system for ascertaining whether social work assessments are valid and correct. The system is always evolving, and necessarily so, and we are always open to being part of a conversation about how it should change.

The Convener

Do the other witnesses have views?

10:45  

Dr Hill

I look at the matter through a slightly different lens. The next panel can speak about the opportunity for people to be identified as relevant persons in hearings procedures, but I was thinking more about the specific role of family group decision making and how useful it can be to create spaces prior to court proceedings that involve children.

The Children and Young People (Scotland) Act 2014 provided for family group decision making for children who are at risk of becoming looked after. In those kinds of proceedings—I am thinking particularly about kinship carers, around whom we have done a lot of work—that approach would create incredibly relevant and appropriate private family spaces for all views to be heard, using a strength-space model. The reports from children going through those processes have been positive, and grandparents are an absolutely critical part of that. Obviously, that sort of process happens prior to court proceedings—although not necessarily in the case of kinship care orders, which we could discuss later.

What happens in private court proceedings with grandparents, not related to children in the care system, is outside my sphere of knowledge, so I do not have a view on that.

Duncan Dunlop

My view is similar to Dr Hill’s, because my organisation is involved only with children who are in the care system. Our view is that children should be placed as close as possible to their community or the network of people whom they know, and that there ought to be good justification—which is repeatedly reviewed—for removing them from those relationships, because moving a child into a stranger’s care or a strange place has a significant negative impact on them. Their natural place would not be only with grandparents; it could be with neighbours or members of their community. It is sometimes presumed that we should try to place them with blood relatives, but we should bear it in mind that there might be other people in the community who might have just as strong a bond and who could be supported to take up the caring role. We would consider placing a child with someone they know and with whom they have a relationship and who can be individually assessed, and that person need not be part of the family.

The Convener

It certainly seemed to be that what Grandparents Apart is looking for is proper investigation of what is said by social work teams in reports. What you are suggesting would facilitate that.

Liam McArthur (Orkney Islands) (LD)

I will take a slight tangent. Shared Parenting Scotland has drawn attention to examples in parts of Scandinavia where there is a presumption of shared parenting, which, again, always has to be informed by a consideration of the best interests of the child. In a sense, that approach levels the playing field at the outset and can avoid conflict that can end up in court. Is a presumption of shared parenting a positive model that might be pursued, through either the bill or some other means?

Ben Farrugia

I do not have a great deal of knowledge about that, but others on the panel might have a view.

Dr Hill

Shared parenting is not my area of expertise. I know that there is a lot of debate about that theme.

When it comes to the right to family life and support for children and families, we must recognise the importance of children’s relationships with different family members and whoever has a caring relationship with them. From our research, we now know more about the diversity of families and who matters to children. In recognising the diversity of sibling relationships, the legislation acknowledges that there is not really a homogeneous family unit, and that things are much more fluid and relationship based. There are real strengths in considering that.

Is the question about the transfer of parental rights and responsibilities so that they are shared?

Liam McArthur

One would presume that the concern arises from the fact that, because there is an assumption that, in any break-up, the child will be resident with the mother, there is an imbalance in the discussions around how contact and relationships are maintained.

Dr Hill

We have been doing some evaluations of a programme called lifelong links, which involves children in care maintaining relationships with the people who matter to them. Early findings have shown that children who enter the care system can quite quickly lose contact with their dads and the paternal side of the family. There is certainly some work to be done in that regard. The focus can be very much on mums and their parenting abilities, and other relationships might not be supported. I am not sure that that approach goes as far as sharing the various parental rights and responsibilities, but it involves thinking about which relationships are focused on. Children have said that they do not want their relationships with their dads and the paternal side of the family to be lost but that they are not supported. Later, we might talk about whether we frame it as contact or family time and how we ensure that we continue to support good, strong, loving and nurturing relationships that keep children in a safe place.

I am sorry, but I do not have a strong view on the question. It is probably more a question for the next panel.

Duncan Dunlop

I will come at the issue from a slightly different angle. We should be far more open minded to shared parenting, particularly for children who are in the care system. Often, the parental rights are with the birth family, but the child does not live with the birth family. That can cause big issues such as whether the child has a passport and can go on holiday somewhere. There are also huge issues in whether such children can come to give evidence in Parliament. A child might not live with their mother, yet the mother would hold rights over the child. We need to think about how we can have a different concept of shared parenting, so that, as well as the birth family, other people who live with a child at a certain stage can have parental rights over the child. That would make life much easier for a lot of children in the care system.

Oisín King

As someone who is in the care system, I know that there was a lot of uncertainty about me coming to Parliament to give evidence to the committee due to the fact that I do not live with my birth parents or any members of my blood family. I am transitioning into kinship care and, because it is considered a voluntary arrangement under the legislation, my mother still has parental rights over me. That affected my ability to come here and give the committee my views and opinions.

The Convener

We are very pleased that you are here today.

Oisín King

Thank you.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I thank the witnesses for coming and for that last input.

Earlier, we talked about last week’s evidence from Grandparents Apart. I agree entirely with what the panel has said. I do not think that such access should be a right; having a presumption is the better way forward. The complications have been discussed and, although grandparents are vital to many kids, other relatives are equally important in different situations.

I would like to hear the panel’s views on my belief, which I explored last week, that there is almost a two-tier system. The lady from Grandparents Apart made a good point about where grandparents fit into the overall process. However, if social work or the children’s hearings system is involved in the case, a full assessment is made in relation to grandparents, aunts, uncles and other people who are important. From being a social worker, I know that they will be taken into account. The issue is that there are no statutory services or children’s hearings services for young people who go through the family court system. Have you any views on that? How can we ensure that children in that position get the services that children who are involved in the hearings process might get?

Dr Hill

I just want to make sure that we are on the same page. Are you talking about the recognition of grandparents for children who are not part of the children’s hearings system?

Fulton MacGregor

Yes. I am talking about children who are going through the family courts.

Dr Hill

Right—that is a good question. My initial thought is that we should share some of our learning from our mediation work, the work that we do with Relationships Scotland and the work that is creating spaces for families to avoid their having to go into the courts, for example if the dispute involves grandparents’ views. We would look at the opportunities through mediation and our work with families in acknowledging the relevant persons, in order to come up with good and safe plans for nurturing childhoods. I am sorry, but the question is a bit outwith my area.

Fulton MacGregor

Are you saying that that work is not being done in the family court system?

Dr Hill

It would be unfair for me to comment, because that is not my area of expertise.

Ben Farrugia

I have certainly heard examples of where that is the case. Your observation is spot on. In the child court system, in private matters, it is highly possible that there are situations in which grandparents and other significant relationships are not taken sufficiently into account. I think that that can be the default analysis sometimes; the idea has come up in the evidence that you have taken that social work should be imposed in those situations to overcome that, but I do not think that that would be the right approach. I think that this is about—the committee sessions are allowing us to do this—having a tighter focus on how courts operate and thinking about how we support courts to ensure that, through that process, all those relationships are heard.

I do not have an answer to how we do that, although I think that some things have been suggested even this morning in that regard. I think that some grandparents probably have reasonable cases, and there are examples of that. Our job should now be about thinking about how we can ensure in those private matters that their voices are heard, without imposing statutory services into the mix.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Before we leave that topic, will you pin down what mechanisms would be used to explore the wider relationships that a child might have for the purposes of court and social work decisions? As a former children’s panel member, I know that there are a lot of kinship carers and that a lot of grandparents are the primary carers. Obviously, the best interests of the child are paramount. Beyond that, when looking for a solution, how far do you go to find out what the child’s relationship is with other family members?

Duncan Dunlop

Our view is that you should start with the child and look at their network. You can look at who, from a very young age, they have had a relationship with, who they feel secure with and where the stability is. Obviously, other formal services will be involved, such as nurseries or schools, and you look at that network, too. Teachers will know who comes to pick them up and who they have a friendship with at school. There is also a whole wider network—are other relations or neighbours involved?

Fairly intense work has to be done to map the network of support and the community around the child. A lot of that is already part of family group conferencing principles. However, the support is not exclusive to the family. This is about who cares about the child. Where the semblance of a loving relationship is present, it may well be that that can be invested in, so that the individual or family can give the support to the child, with support from others.

It is also about where a child feels secure and safe, because that is the best place for us to start from, rather than who ought to have a right to a family relationship because they have a birthright.

Rona Mackay

Does that approach happen enough? Is that the generally accepted practice, or does it not happen in some cases?

Duncan Dunlop

As it stands, there are probably a lot of barriers to that happening. If a person were to play such a role, what support would they get? How understanding is their wider community and workplace in supporting them to look after a child? How in-depth are the assessments that they are given? What suite of options do we have to enable them to do that? A lot of work needs to be done in those areas in the care sector.

Dr Hill

I suppose that I would agree with that. I have seen some amazing social work practice with children and young people. That high-quality work puts them at its heart; it looks at who matters to them, as well as the places and pets that matter to them. That is in order to build up a picture, which is known as mobility mapping.

We can also look at a family tree and share, as it were, family folklore and community folklore. That creates pictures. We know of one social work team that built up more of a relationship tree, because this is not just to do with a child’s family, as Duncan Dunlop said; it is to do with all the different people who matter.

The challenge is that that work is incredibly time intensive. Sometimes, a lot of time is spent with children and young people to identify places, carers, neighbours, the good teacher and the paternal grandmother, but that very high-quality, skilled work needs to be done.

It was asked whether all children across Scotland are getting that support. With the numbers that we have, I think that we would struggle for that to happen.

We are learning more about and growing that practice. The challenge is making sure that that approach is not the exception. We should not be saying, “There are a couple of children here who have this amazing life story work, family tree and mobility mapping, and we’ve done all that great work with them,” when, for many, that would not be the case. That is a resource challenge.

11:00  

Rona Mackay

Does that same work go into adoption and permanence cases, or is there a different process?

Dr Hill

From a research perspective, some of the most advanced life story work is done on adoption. Obviously, children’s experiences can differ across Scotland, but I have heard some amazing examples of good-quality work that is done with children and young people.

There is probably more of a focus on adults than older children who matter to children. We will hear later about how important brothers and sisters are—they have probably not been given the level of importance that they should have. Life story work has focused very much on adults in the birth family.

I also make a plug for the importance of friendships. Children’s friendships matter, but they often get overlooked. When children get moved around a lot, there is nothing that protects the important friendships that they have had in residential children’s homes or foster care settings—it might have been a friendship with the neighbour next door. The work that we do around that is important.

It starts with knowing the child and spending time with the child to understand their life story. Good-quality work can be done.

Ben Farrugia

I would like to come back to how complex and sensitive this work is. Individuals can respond to a decision in a way that shapes their thought about the assessment. An excellent assessment may have been done but, because it suggests a certain course of travel with which some are not happy, they feel that their views have not been taken into account sufficiently. That happens every day, but it does not mean that good-quality work has not been done.

Duncan Dunlop

Even if a child is not going to live with someone from their birth family and their primary carer is somebody else, they still want to know about their birth family. Knowing who you belong to and where you come from matters, and sometimes in our culture we are poor at understanding that. If you are a Dunlop, where are you from? Where is your family? Where are your roots? What is your history?

Knowing that would matter to a child, particularly if they are entering care and experiencing a fracture in what could be seen as the natural way in which someone would grow up—in their birth family. They still need to have a connection with their birth family. The child needs to feel in control of the relationship with their birth family and understand who they belong to, whether that is a grandparent or the community that they are part of.

John Finnie (Highlands and Islands) (Green)

I will move on from grandparents to siblings, which you have touched on a bit. Section 10 will impose a new duty on local authorities. I know, Mr Farrugia, that that will be on top of the existing statutory duty to safeguard and promote the welfare of looked-after children, which is of paramount concern. Why do siblings find themselves being separated? Could changing the existing arrangements and implementing the new duty prove to be problematic?

Oisín King

Before I answer that, I will give you a bit of context about me and my life. My name is Oisín King. It is pronounced “Osh-een”, but I know—it has already happened in this conversation—that some people will call me “Ocean”—probably Duncan Dunlop. [Laughter.] That is totally fine.

I am 15 years old and was accommodated when I was 12. I have been residing in what I call a residential unit, but members would know it as a children’s home. Since going into care, I have lived in two residential units, and have been back and forth between the family home and the care system.

I was taken into care because circumstances at home were not what they were supposed to be. In those circumstances, I had to step up and become a parent for my younger sister, and had to care for her over long periods. I was only seven years old when I had to step up to that role, and she was six months old. I performed the role of parent for the next five years of our lives. When I was taken into the care system, I was separated from my sister after having looked after her for so long and building a really close and vital relationship with her. We did not see each other again until 18 months later.

I took the separation as a loss; it was something like a death. I went through a grieving process, but it never ended—I was stuck in a constant loop of blaming myself and thinking that it was my fault that we were separated, and that it was my fault that I was not good enough for her. But what seven-year-old would be a good parent? I was so confused, frustrated and angry about the fact that I had been taken into care without her. I was left feeling isolated and I was managing my emotions alone.

I would like to thank the committee for having me here today to express my opinions and views. I hope that you understand why the proposed changes to the law are so important to me. My experiences are similar to those of many other care-experienced people whom I know of. I have come here to help you to understand that we are just children who love our brothers and sisters.

To go back to the question, I would say that brothers and sisters are separated, especially in the care system, just because of resources, which is wrong. Brothers and sisters should be absolutely prioritised, because brothers and sisters in the care system have a relationship that means that they depend on one another. That relationship could be the result of the parenting of their parents, who should have known what to do.

John Finnie

Thank you for that powerful testimony. 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. Thank you for sharing that.

Duncan Dunlop

Was the question about whether the system can deliver?

John Finnie

We have heard graphically from Oisín King how siblings find themselves being separated. Are there other examples of that? How manageable will the new duty to be imposed on top of existing requirements be?

Duncan Dunlop

The severity of the problem is clear. Up to 70 per cent of children in care are split up from brothers or sisters when they enter care.

We take children into care for their care and protection. As you heard from Oisín, when a child and his or her sibling are surviving in a house, that child is the care and protection. Being removed from that relationship adds to a child’s trauma.

There are occasional examples in which separation is for safeguarding reasons, but in the majority of cases it is not. Children in different age groups and at different levels of maturity have different needs. I can get adoption or permanence for a baby; that is more difficult for older children, so siblings get split up.

Sometimes families are complicated. Oisín is one of five half-brothers and half-sisters, which is not unusual for a family that is entering care. It is difficult to keep siblings together, but it is absolutely vital.

Last week, the Care Inspectorate produced a report listing the deaths since 2012 of people who had recently left care. In many cases, a common factor was that they had been split from their brothers and sisters. We see it time and again: the care system fails to deliver what it intends to deliver, which is to provide the child with the loving stability and security that they require so that they can thrive.

Does the system deliver that? No, it does not; it does not take into consideration enough what would make the child content and feeling stable and secure. Whether the system can deliver that is another question. In its current state, I do not think that it can deliver for all the children for whom it ought to deliver.

John Finnie

Will the current challenges be compounded by the further requirement that will be imposed by section 10?

Ben Farrugia

The new requirements in section 10 are about contact between children rather than placement together, although that is, appropriately, a live conversation. It was a strong theme throughout the independent care review, and it is overshadowing the conversation on the bill slightly, because in a few weeks we will have a new vision for Scotland’s care system and I suspect—and hope—that the subject will be a strong part of it.

In my time working with Louise Hill and Duncan Dunlop and at Social Work Scotland, I have not spoken to social workers who do not want to place siblings together when it is safe and appropriate to do so, and who do not, when it comes to contact, want to maintain good, positive and nurturing contact between siblings when they must be separated. Whether our system can accommodate that is an issue.

Whether the statistics are from the Care Inspectorate or from somewhere else, in most cases the reason why children are not being placed together and why contact can be difficult is that we have to find the most appropriate placement for each individual child, which means that they cannot always be placed together. We also do not have many foster carers who are assessed as being able to take five children. That is a big ask and, under statute, people need particular skills and infrastructure in their house to do that.

To come back to my theme, I say that the situation is complex and dynamic. The interests of children also change. What is right for a child today when we take them into care will not be right for them in six months, let alone in three years. There is a constant need to consider what is appropriate, safe and best for the child so that they grow up nurtured and loved.

Dr Hill

I echo those sentiments. The international research is very clear on how important relationships with brothers and sisters are. They create love, nurture, security, stability and belonging. We have a huge amount of evidence to show how important they are.

I credit the Parliament for considering that, because it is important: it has been overlooked and has not had the level of attention that it deserves. I particularly recognise the Stand Up For Siblings coalition, and Dr Christine Jones from the University of Strathclyde for her work on developing a research base on that for Scotland.

There are challenges with what is proposed in the bill and in the proposed amendments to the Looked After Children (Scotland) Regulations 2009. The challenges include co-placement. Implementation is also a challenge, as is the reality of our system and the infrastructure that we have in place at the moment. There is, however, a vision in the bill.

We will soon hear from the independent care review. At the moment there is a huge mismatch between what we hope to achieve and how we can create that. We need bold and creative thinking about developing a very different system that can support and nurture loving relationships between siblings. That is an important step, although it is but one part of the jigsaw. We have to achieve many other things.

Ben Farrugia

One of my least favourite phrases, which I hear a lot in our work, is “It’s not rocket science”. Children need relationships with their brothers and sisters, but I cannot think of anything more complex than making a decision about a group of siblings and where they can safely go. Social workers, children’s panel members and the rest of the system have to make that decision. I cannot think of a more complex task than that, particularly when the interests of all the children are not aligned; we cannot assume that the interests of one child are aligned with those of their siblings. We try to make decisions that are best for all, while also having to take individuals’ needs into account.

If we are making changes to the system in the interests of children—many of the proposals in the bill go in that direction and are to be welcomed—the implementation point will be very important. How will we ensure that, where possible, we maintain safe contact when we have to consider all the competing interests? Do we have the necessary social worker time to ensure that it is done properly?

Duncan Dunlop

It is possible; we just need the ambition to do it. We must involve all Scotland and we must look at the matter very differently. The results of the independent care review will be announced in a couple of weeks, but we can and must do it. We are not yet there in our thinking, practice and culture. It is up to Parliament and the committee to set the ambition that the change must be realised. It will be difficult, but it must happen.

Oisín King

I cannot stress that enough. It was 18 months after my younger sister and I were separated before I saw her again. That happened in a thing called “contact”; I want the committee to have it in mind that I did not see my sister until contact became a thing for us. I did not see her on family-oriented holidays—Christmas, birthdays, Halloween or Easter. That was because of lack of resources, but resources should not come between brothers and sisters. Sometimes I would be given hope that I might see my sister on her birthday, which was massive for me because birthdays were always very important in our family, but that hope was cut away from me due to lack of resources.

11:15  

On the days when contact went ahead, the first thing that I would do when I woke up was go to the office in my unit and a staff member would inform me that I would have contact with my younger sister that day. Again, however, that contact was possible only when a driver and a room where the contact could be facilitated were available.

If that worked out, staff would drop me off at the place where the contact would take place, and I would wait in the waiting room for my sister to arrive. In that time, I would be given a run-through of the agenda, which outlined what my sister and I would do that day. It would usually involve sitting in a small room, either drawing or playing with Barbies and a doll’s house. Neither my sister nor I were given a choice about what to do, and the day was very structured, which made natural conversation difficult.

While we were playing, a supervisor wrote down every interaction and word spoken. When I say “every”, I mean just that—they wrote down everything. After contact, my sister would leave and I would be brought in by the supervisor, who would proceed to question the interaction that my sister and I had just had. It was as though I was a threat to my sister and should not know anything about her, so I should not even ask simple questions. The supervisor instructed me not to ask such questions again.

For me, contact was stifling. Love was crowded out by process, concern and uncertainty. I know of other care-experienced people who have just one hour of contact a month, which works out as half a day in a year—12 hours. How can you build a relationship in 12 hours? That amount of time is completely unfair. The only thing that happens in your relationship in that one hour is that you watch you and your sister or brother grow further and further apart.

I think that contact, as we currently understand it, does not create the vital space for the love between brothers and sisters to flourish and develop.

John Finnie

Thank you for that, Oisín. It is helpful.

Mr Farrugia, we have heard from the Convention of Scottish Local Authorities about the cost implications of the financial memorandum for local authorities. I understand that Social Work Scotland does not disagree with the principles that have been talked about today but says that,

“without significant, more fundamental changes in the structure and resourcing of the care system, realising the policy aim may be difficult.”

What is it about the structure that makes the proposal challenging?

Ben Farrugia

I have already mentioned the independent care review, a fundamental plank of whose work has involved considering whether the current formulation of the components of the care system enables or inhibits the kind of loving and positive spaces for every child that Oisín King spoke about. That is what we need to do. I admit that our comment was ambiguous, but it was informed by the view of some members of Social Work Scotland—which they have fed into the independent care review, too—that, currently, the care system contains barriers to that goal and has created perverse incentives. There are situations in which we have children placed in residential units with highly skilled, highly experienced and incredibly nurturing and loving members of staff, but it is also true that we have children in places that perhaps do not have such a culture.

That comes back to the fact that, in children’s services in general, and in looked-after children’s services in particular, the coat is cut to match the cloth. That is understandable—that is how public services work—but, largely, we get what we pay for. In that context, decisions are taken to ensure that we can deliver the service that we are required to deliver, and the thing that sometimes gives is quality. The kind of experience that Oisín King described is not the kind of experience that people are aspiring to provide, but it is sometimes the reality. We want to move away from that reality to one that meets every individual’s need.

On that point, I stress that it is critically important that the considerations around contact and relationships are different for every child. We have necessarily developed a utilitarian system that says, “This is the model of contact that you will experience.” If we do not want that and instead want a system that is highly individualised and person centred, we must recognise that that is a completely different system, which would also need to have a different structure. The system would have to be able to accommodate much more autonomy for social workers and to manage that risk.

I am excited and also a little nervous. I will learn about what is coming in two weeks. If we want to achieve the best outcomes for looked-after children and children more generally, some fundamental points will have to be made about Scotland changing its attitude to how it funds, resources and supports children’s services in general. That picks up on Duncan Dunlop’s point from before. Politicians are important agents in that, but it is for Scottish society to own and welcome that change.

Liam McArthur

I accept the complexity of many of those decisions, but I want to come back to the overarching principle of what is in the best interests of the child. We have heard from Oisín King very vividly how the best interests of those two children were failed by the way in which those decisions were taken. I accept the point around resources—with more resources, more can be achieved. However, even in that case, being able to make clear to the individuals involved that those supporting them aspire to do something different would at least give a degree of confidence that the situation is just for now and that it might develop in ways that are more nurturing and supportive of that sibling relationship. It seems that the decisions are more transactional; that is, they are based on someone saying, “We can get this child placed, but this one is going to be more problematic.” That means that it is not really about the interests of either child in respect of their relationship but is a calculation that is made. Leaving aside what will come out of the bill, I think that that is a worrying message to be transmitting to the Parliament.

Ben Farrugia

I will own it. It is not a situation that I want to say is the reality, but I am not going to defend some current social work practice. I am keen for the committee to gain a deep understanding—and so far, the bill process and attendant activities have not satisfied this—of how these things have come about. People often tell me that there is a culture, but that is meaningless: cultures emerge and are sets of learned and adapted behaviours among workers, which have come about because of their environment. People have to adapt to their situation. If we really want to change culture, we have to attend to the things that create the culture. Having really large case loads and having limited spaces to facilitate contact arrangements and so on all inform how we work. Unfortunately, that means that, in some cases, it becomes transactional. We have to remember that we are talking about a minority of cases—I hope—and that, in the main, it is done really well by skilled and empathetic professionals.

I will not pretend; in some cases it has become episodic and we are looking at the situation as we see it in front of us and trying to make the best judgment right there, rather than taking a long-term, life-course approach, in which we are constantly thinking, evolving, adapting and building around the individual. We are asking a system to perform in a way that we do not resource and empower it to—and those two things are related, but different.

Duncan Dunlop

Who Cares? Scotland and its members called for the care review several years ago. One of the main reasons—and I remember this well—was that our number 1 advocacy issue on contact for those in care was that people wanted to see their brothers and sisters. Oisín King talked about the feeling of anxiousness about being to blame and thinking, “It is my fault that my sister is not okay,” or, “It is my fault that I am not with my sister.” One of the main reasons why we called for the review was our understanding that the outcomes for care-experienced people are among the worst in our society; we are looking at the biggest home-grown human rights violations happening in our country today—they are hidden in plain sight.

I will never forget going to Polmont young offenders institution about 10 years ago when Governor McGill was in charge. About 1.5 per cent of the Scottish population is care experienced, but Governor McGill reckoned that 80 per cent of the young offenders in Polmont YOI had had experience of care. Officially, they say that it is about 40 per cent at the moment. Official statistics do not even track what is going on for that care-experienced population. The indicators are that contact with siblings is the biggest issue for people in the care-experienced community, who are saying, “Please let us be with our brothers and sisters.” They do not want that for 12 hours a year or an hour every month; they want to live with and be with their brothers and sisters and have a natural lived experience with them that is combative but absolutely understanding.

A key indicator of whether a care system is working as the sort of natural process that our children might have had or that we might have had in our childhoods is whether children get to have that organic space. It is not a process like going to hospital to have a procedure; it is about having a relationship with a brother or sister, with ups and downs. It is about sharing experiences and the highs and lows of emotions along with those so that, when you grow into an adult, you are not left with a void.

Members might have heard Theighan on a Radio 4 documentary last Tuesday night. Theighan had a little sister and was parentified, but they were split up. She wrote to her sister every birthday with a card or letter to say, “I still care for you.” The little sister, who was only four when they went into care, had made Theighan into an imaginary friend and did not realise that she existed but, later on, her mother told her that she had a biological sister. They were apart for 12 years.

What we are doing is adding trauma to children. That is only one example of sibling separation, and it just does not work. That is a clear indicator that there has to be wholesale reform in this space. It is key for the committee, the Parliament and the Government to consider how we are progressing on that issue. If siblings are together as much as possible—or, for those who are 10 years apart, if they have contact with their 18, 19 or 20-year-old brother or sister—that is a key indicator of the health of a care system, so we should scrutinise that.

We were in the Parliament in 2014 when it passed a bill that raised the care leaving age to 21. However, six years on, the average age of leaving care is still 17, people who work in the system still do not know that children should be allowed to stay in care until they are 21 and children do not know that they have that right.

Even more recently, the Parliament passed corporate parenting legislation, under which corporate parents have a duty to report every three years to the Parliament on what they are doing in their corporate parenting plans. However, some corporate parents do not even have a plan, far less report to the Parliament, because they are not held to account.

Recently, there was a bursary for care-experienced students to go to college or university, and we found that Who Cares? Scotland members were having the bursary taken off them as rent while they lived in residential units. That practice had to be overridden by the cabinet secretary, John Swinney, who wrote a letter saying that that was not the intention of the bursary.

We have to look at the issue differently. The current situation is one indicator of a system that does not and cannot work under the current premise and with the constraints that are put on the many good people who work in it. We have to look at it differently.

Ben Farrugia

If I may, I will end this important set of contributions on a fairly minor point, although it comes back to the bill. Although there are policy aspirations on contact with siblings, given that the financial memorandum states that there will be no impact, it seems that, so far, the bill will simply change the law. If we want things to change for children, there has to be a much deeper analysis of what the barriers are and we have to attend to removing them. Ultimately, that will require money and power and, no doubt, political capital to be spent in some difficult conversations. At present, in our opinion, the bill will possibly change only people’s expectations of what they should receive and experience, but not the reality.

Duncan Dunlop

It might change the reality if we could hold to account those who are given the duty to look after our children and if we properly look at the feedback loop. In the current system, children do not have power. They do not even have the right to access advocacy, so they do not have a voice to tell you how it is going. Oisín King is a rare example of someone who gets to speak on a platform such as this one. If we are going to do things differently and if the Parliament is going to have expectations that local authorities will use their budgets differently, we have to follow through and make sure that that happens.

Oisín King

Before we move on, I want to expand on what Duncan Dunlop said and on what Ben Farrugia said about adapting and how kids in care have to adapt to the system and to processes. The reason why the change in the law is so important to me is the protection that it can offer for brothers and sisters. The fact that, as a 15-year-old, I am sitting here in Parliament giving evidence to the committee shows that something is really wrong. It is obvious what is wrong. We have a situation in modern-day Scotland where children are having to speak up just to see their family. For many care-experienced people, compliance with the decisions that adults make is part of survival. I worry about the number of people out there who will never get to the Parliament to talk about these issues, and about the number of people who think that it is their fault, just as I did.

11:30  

In many ways, I have adapted to the care system. For example, I got used to referring to the adults who brought me up in my residential unit as “staff”. I did not call them by their names. I sign a form that explains to new staff members who come into the residential unit the types of restraints that they can use on me if I have an outburst. I use a fob key, as people do in a hotel, to get into my room. I have to ask to be let into the kitchen to get a drink of water or to be let into my living room—my own space. When I was brought into care, I was told that I would be in the unit for only 12 weeks. However, I was not told that until the second week. Four years later, I am still in the care system.

I have adapted to the care system, but I will not adapt to not being able to see my little sister. There have been occasions when it has felt like the people who look after me have also had to comply with the system processes and protocols. However, I do not believe that someone goes through all the bother of training to be a social worker, registering as a foster carer or working shifts in a children’s unit just to restrict children from doing things they love and seeing people they love. Somewhere along the line, the system and its culture have made people nervous of doing the right thing and using their natural instinct to know what is right and wrong. This law clarifies that it is right for brothers and sisters to be together and to see each other.

Rona Mackay

In response to Oisín’s experience of contact with his sister, I do not diminish the challenges of resources but, in that case, it was about process and practice. He did not want an agenda in order to play with his sister. He did not want to be interviewed after it. He just wanted normal contact. Should the professions not look at creating a fix to stop that kind of process?

Ben Farrugia

We cannot separate those things into different columns. They are all the same. They emerge and intertwine with each other. As I said earlier, the approaches are developed to deliver the best-quality service within what we can do. In the residential unit, there might not be all the people, skills and time to provide the kind of relationship time between siblings that people would want. Therefore, they cleave down to what they can offer. That is worrying and it should concern us all, but that is the context. It is not that there is poor practice. There will always be individuals in any profession who can do better, but we must view that in its entire complexity and not put issues into boxes of resources, practice or culture.

The Convener

I am allowing a lot of discussion time, but we are pressed for time. It is an important area, so I want to hear fully from all the witnesses.

Dr Hill

What has happened in social work is a risk paradigm, which is about seeing everything framed in terms of risk. Unfortunately for Oisín and his little sister, the framework was that there was risk rather than a basic issue of relationships. We are trying to have a more social model of understanding and protecting children—not seeing parents as a risk but having a more compassionate, understanding, strengths-based family support approach, so that we can work in a closer way. Sometimes, the risk paradigm for children who have experienced abuse and neglect translates into the assumption that it is the same for relationships between brothers and sisters. That is flawed and incorrect. The evidence shows that brothers and sisters are a risk to their siblings in only a small number of cases.

From a children’s rights perspective, it is an unfair position for children. The wrong theoretical model, with risk as a dominant theme, is being used around sibling relationships. We have to challenge that, unpick it and think about it in a different way; otherwise, we will have scenarios such as Oisín’s, who has to have supervised contact with his wee sister.

Duncan Dunlop

It can be very simple. There are examples of foster carers who know that they are looking after two siblings from the same birth family saying, “Hey, I’m going to the park—do you want to meet up?” and then the siblings meet in the park. That is often in the grey economy of care—is something like that allowed? Has it gone through all the formal notifications that are necessary? Not necessarily, but that is what should be happening. We should trust the person who the child lives with to make decisions that are right for the child.

The Convener

The points have been powerfully made that there needs to be a fundamental look at the system to see what is necessary and what has not even begun to be looked at, and that resources should not be the dominant factor in determining contact, as seems to have been the case in so many instances.

Shona Robison (Dundee City East) (SNP)

Dr Hill has answered my question in part. I was going to question what Mr Farrugia said about it being about resources. Oisín articulated the resource-intensive time that was spent in taking detailed notes during contact and following up afterwards, instead of staff allowing two siblings to have time together in a natural way. Dr Hill answered that by saying that it was about the risk paradigm. Is that established practice? If so, where has that come from?

Dr Hill

Is that question for me?

Shona Robison

Yes.

Dr Hill

I will not go into theoretical thinking, but some good work has been done on shifting the curve in the way we think about child protection and supporting families. The risk paradigm has come about after a number of high-profile tragedies in which children experienced the highest level of adversity possible. As a consequence of that, the professionals around children have become incredibly risk averse, which has meant a loss of the relationship base.

Shona Robison

I am sorry to interrupt, but that surely ignores any risk assessments that might have been done showing that there is no risk.

Dr Hill

For me, the paradigm can just feel like the culture that exists. It is things that might have been used to assess parents’ relationships with children. That is what we know has happened.

There is some new thinking and a social model for understanding the support of families and protection of children that flips it in a completely different way. It is incredibly helpful and looks much more at the strengths of sibling relationships. All the research about brothers and sisters tells us that they are a huge strength and resilience factor for other children. Our understanding of that has got a little distorted.

The Convener

We could have had a whole session on that subject.

Liam Kerr (North East Scotland) (Con)

I will stay on the same subject area. I echo John Finnie’s thanks to Oisín. I have found your words very powerful, Oisín, and I suspect that the committee has, too, which is why I want to drill into this a little further.

John Finnie started by asking about section 10, which provides for a new duty on local authorities to promote

“personal relations and direct contact”

between siblings. However, there is a caveat to the provision, which is about the extent to which it is “practicable and appropriate”.

I am interested in the panel’s views on that caveat. The committee had evidence from the Faculty of Advocates that said that that is a useful qualification to the duty. However, another thought is that it could be a potential threat to the policy aims, because the term “practicable” could mean that contact is prevented on resource grounds.

Duncan Dunlop

In Oisín’s experience of care—like roughly 9 per cent of children in the care system, he lives in residential care—he is looked after by people for whom doing so is their job. To a degree, those people treat it as a job, but there is also the other space in which, as staff members, they try to be quasi-parents. Whether the two positions are compatible is an interesting question.

As Oisín said, he wants to see his little sister at the weekend, when he is not at school and on Christmas day and her birthday, but there may not be as many staff on duty at those times—there may be a skeleton staff, or there may be a need to use relief workers or whatever—so the contact will not necessarily happen.

The “practicable” caveat is a problem. The only reason why it is there is that, to cover sibling contact, the Government has just copied and pasted what is in place for parental contact. The caveat should not be there.

Liam Kerr

You believe that it should be removed.

Duncan Dunlop

Yes.

Dr Hill

I echo the concern about that. The caveat could be interpreted in such a way that it was used to inhibit children’s rights to see their brothers and sisters. I return to my point that we have to do things that are implementable and provide them in such a way that the necessary supports exist for the carers.

Duncan Dunlop gave the practical example of foster carers knowing one another and children being able to see one another at the park. There are some good examples of that approach. There is an amazing service called Siblings Reunited, or STAR, which provides a space for children who are placed all over the country to come together and spend time as siblings. That is a tiny resource in the scheme of things, but such approaches can work incredibly well.

The challenge might be to do with how we interpret whether something is practicable. If children live 20 miles apart, is it practicable for them to see each other regularly? I am concerned that the distance could be reduced and reduced so that, eventually, people would say, “Well, it’s not practicable, because they live two bus rides away.” Children have the right to see each other.

Liam Kerr

Would you remove the caveat as well?

Dr Hill

Yes, but with recognition of the challenge that that poses, given the discussion that we had earlier.

Liam Kerr

Mr Farrugia, do you wish to comment on that or shall I move on?

The Convener

I ask everyone to be as brief as possible, please.

Ben Farrugia

We were consulted on the language to be used and we were comfortable with that being included, largely for the reasons that we have discussed. It reflects the reality that there will always be assessment of whether something is “practicable and appropriate”. The language reflects the reality of how these things will be addressed.

Liam Kerr

I understand that.

I have a final question. I will be brief, convener. Section 10 does not extend to children who have previously been looked after, but the Children and Young People’s Commissioner Scotland has suggested to the committee that it should extend to them. Do you take a view on that?

Dr Hill

I certainly do. We must start from what matters to children and young people. We often go down the route of discussing which legal orders exist and what their status is, but this is about children being able to see their brothers and sisters, whether they have been adopted, they are in foster care or residential care or, as will be the case for a huge number, they live in kinship care as an extended family.

I am not skilled enough as regards the technical aspects to say what is required in legislation to allow that to happen. There is a huge challenge to do with children who have been adopted being able to see their brothers and sisters, so there are real challenges around the legal stuff that needs to happen. However, we should start from the perspective of what matters to children and young people, and take a strong rights perspective. We should be providing for children no matter which type of placement they are in. As long as it is safe and in their best interests, which it will be in the vast majority of cases, there should be such contact.

Liam Kerr

So section 10 should be extended to include previously looked-after children.

Dr Hill

Yes—absolutely.

Ben Farrugia

The principle applies of ensuring that we locate the child at the centre of our planning and provide them with all the relationships that are meaningful to them, and we would fully sign up to that.

As I have said repeatedly, we are unlikely to achieve the extent of change that is hoped for and planned. Adding more things would create more expectation that we could not deliver on. That must be a priority for the committee and the Parliament. Let us not add further expectation-raising things, even though they are fundamental to good practice, without taking a proper look at why they are not happening now and what we need to put in place to achieve them.

I do not have any objection in principle to what the children’s commissioner seeks. It is absolutely right that, if there is a meaningful and powerful relationship with somebody who is no longer a looked-after child, we should try to maintain that if it is safe to do so. However, the mechanism for that is not simply to add it to the bill.

Liam Kerr

That is interesting. Mr Dunlop, do you want to comment?

11:45  

Duncan Dunlop

We started using the phrase “care experienced” about six years ago and it has been accepted globally. There is recognition that someone who has experienced the care system will require rights and opportunities throughout their life, and it is welcome that the Government has extended to people who have been in the care system, whatever age they are, the ability to get a bursary to go to college or university.

We will probably also need provisions to give people who are care experienced but technically no longer in care rights to see their brothers and sisters. Oisín’s issue is that, technically, he is on a voluntary order, so he would not necessarily be seen as a looked-after child. Some of the rights would therefore not necessarily be afforded to him, if we were to tie it around some of those definitions.

Liam Kerr

I understand. Thank you.

Shona Robison

Section 21 says:

“When considering a child’s welfare, the court is to have regard to any risk of prejudice to the child’s welfare that delay in proceedings would pose.”

Do you have any views on that new duty on the court in relation to delays in cases? Is it a satisfactory solution or are further measures required?

Dr Hill

I was really pleased to see that in the bill. In our permanence and care excellence programme, we have done a lot of work to try to reduce drift and delay in decision making for children. I think that we have now worked with 27 local authorities across Scotland.

Delays have a huge impact. We know that a six-month delay in an adult’s life is very different from a six-month delay in a child’s life, so time matters. All our research shows that we should reduce bureaucratic delays or any other unnecessary delays because they are not in the child’s best interests, so we welcome the inclusion of that provision in the bill.

However, we recommend that permanence orders be included as well. The current wording excludes permanence orders, which come under the Adoption and Children (Scotland) Act 2007. One of the strengths of permanence orders is that, because they are created for the unique set of circumstances of each child, they allow a much more positive approach to relationships with kin and siblings. The omission of those orders is a shame, and we believe that including them would tighten up the bill. That is the only addition that we would make. Otherwise, we believe that the bill is positive and can make a difference.

Ben Farrugia

In view of the time, I simply express my full support for those comments.

Duncan Dunlop

We have to end the hinterland of drift and delay for children. Oisín said that, when he came into care, he realised after two weeks that he would be there for 12 weeks, and that he has now been there for four years on various non-permanent grounds. It is very discombobulating for children who are in that situation, and they are well aware of it.

The Convener

That concludes our evidence session. It has been a powerful and helpful session and it will inform our scrutiny of the bill. Thank you all very much for coming.

I will suspend the meeting to allow a change of witnesses and a comfort break of a maximum of five minutes.

11:48 Meeting suspended.  

11:53 On resuming—  

The Convener

We move to further consideration of the Children (Scotland) Bill. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper. I welcome our second panel today: Jackie McRae is practice and partnerships lead at Children’s Hearings Scotland; and Alistair Hogg is head of practice and policy at the Scottish Children’s Reporter Administration. Thank you very much for your written submissions. I apologise for the delay in hearing your evidence. Given that we are under such time constraints, I ask for both the questions and the answers to be as succinct as possible.

We will move straight to questions.

Jenny Gilruth

As the panel will be aware, sections 1 to 3 of the bill remove the current presumption that only children over 12 are able to express a view regarding decisions that are made about them. What are the panel’s views about the removal of that presumption? Are you supportive of that change in the first instance?

Jackie McRae (Children’s Hearings Scotland)

Thank you for the opportunity to talk to the committee. Children’s Hearings Scotland is in favour of the removal of the presumption that only children aged 12 and over are sufficiently mature to give their view. The children’s hearings system is premised on children’s views being at the heart of decision making about them, and our guidance and training to children’s panel members is that they should ensure that they are aware of the views of any child or young person who is brought before the panel.

Alistair Hogg (Scottish Children’s Reporter Administration)

From an SCRA perspective, I agree with those comments. We are in favour of removing the age of presumption, because we think that it is unhelpful in the children’s hearings system. We have always operated on the basis that a child of any age is capable of giving a view; what is important is how we are able to obtain that view. Of course, those views have to be given consideration—that is a statutory requirement of a children’s hearing. The stated age of 12 is an unhelpful barrier to the collection of children’s views in other forums.

Jenny Gilruth

On the practicalities of taking views from young children in particular, we heard evidence in the previous session from a representative of CELCIS, who talked about ensuring that the views of babies and young children are listened to. We also heard from Who Cares? Scotland about the importance of listening to the views of toddlers. Do any of the witnesses have any comments on how the views of young children can be taken into account? What is the best way to go about getting that information from young children?

Jackie McRae

In respect of children’s hearings, panel members have a variety of options at their disposal. With slightly older children, there is direct communication through their attendance at hearings, and there are often direct written contributions from children and young people, although the quality of those can be variable. Children may instruct a solicitor to act as a legal representative.

A lot of new technology solutions are currently being used in the hearings system. In Midlothian, a communications app called Mind Of My Own is used—there are different versions of the app for older young people and for younger children. In Fife, Barnardo’s Scotland has also been working with technology, using avatars to enable children to provide their views to a number of different decision-making and planning forums, including children’s hearings.

Panel members are given limited training in how to talk to children in hearings, but it is fair to say that, as lay decision makers, they often rely on information from others such as skilled professionals, family members and carers. There are challenges in taking views from very young children. We were very interested to hear NSPCC Scotland’s written evidence to the committee regarding the work of its GIFT—Glasgow infant and family team—project, and the comments from Duncan Dunlop in the previous session.

For very young children, hearings currently rely on the use of appointed safeguarders. Those can be skilled professionals such as the child’s social worker, or a specialist child psychologist can be appointed in certain circumstances.

Alistair Hogg

I will keep my answer concise by saying that I associate myself with those remarks. There are a lot of new innovative and creative ways to obtain the views of children, and very young children in particular. The important thing is to recognise that a child is capable of providing a view no matter what age or level of maturity they have reached. It is just the way in which they are able to express their view that changes.

To add to the list of potential approaches, there are a variety of adults who can be involved in obtaining those views and providing them to a children’s hearing. We have heard about safeguarders such as the child’s social worker, legal representatives or family supporters. In addition, the committee will be aware of the introduction of advocacy workers from—it is hoped—April this year, which will provide another level of support and enhance the ability to project a child’s views for the hearing.

Jenny Gilruth

Can I just check something? In your written evidence, you say that the

“Court should determine the ‘best’ way to elicit the information they need—including a child’s view.”

Does that apply to sheriff court proceedings or children’s hearings?

Alistair Hogg

The comments in our written submission relate to court proceedings rather than children’s hearings.

Jenny Gilruth

As Jackie McRae will be well aware, the rules for children’s hearings state that a child must have the ability to express how their view is taken, and it must be done in the manner that the child prefers. The legislation does not currently specify how that should be done. Does it need to be more prescriptive about how views are taken and listened to, or should it be open to interpretation depending on the circumstances of each child?

Jackie McRae

We welcome provision that would enable hearings to work with the child to enable them to give their views in the way that is most effective for them. On whether there should be a prescriptive list of methods by which that should be done, I think that there are some risks in that because, the greater the level of prescription in the law, the more restrictive some approaches to implementing that might be. There would be merit in having detailed statutory guidance for professionals about the options that are available to them.

Rona Mackay

Are you supportive of the proposed measures in sections 4 to 7 to offer greater protections to vulnerable people in the courtroom? Does the bill go far enough or should something more radical be suggested?

Alistair Hogg

The court setting is probably more part of the remit of the SCRA in relation to this discussion. We welcome the proposals in sections 4 to 7, which we think are helpful. In particular, we welcome the restriction on personal cross-examination of a vulnerable person in the proceedings. We have long hoped for that power and it will be helpful.

Overall, in relation to the proposals, you will be aware of what is in our written submission. We tried to convey the point that, in looking at the vulnerability of witnesses and parties going to court, it would be helpful to look at children through a separate and different lens and to consider what supports, protections and measures might be most helpful and appropriate for children. That might be a more helpful and clearer process.

Under the Vulnerable Witnesses (Scotland) Act 2004, anyone under 18 is, by virtue of their age, considered to be a vulnerable witness, so that protection is in place. However, we think that it would be helpful and clearer to state a position in relation to children in the court process. The committee will obviously be aware that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 came into force yesterday. The SCRA would support the transfer of some of the measures relating to certain High Court proceedings to our proceedings, too. As children’s reporters, we have to appear in court under different sets of rules, depending on the grounds of referral. It would be helpful to have one clear statement in relation to children when they are involved in proceedings.

Jackie McRae

Children’s Hearings Scotland suggests that the bill has perhaps missed an opportunity to think about the child’s and family’s experience as they move through different sets of connected or sometimes related proceedings. Since 2013, there has been a real focus in the hearings system on realising the human rights of everybody involved. Some of the procedures that have been introduced are framed with a view to ensuring that the child’s and their family members’ article 8 rights are properly respected. That means that there are stringent tests, which mean that the child and their family members have rights and duties to attend hearings and that the circumstances in which relevant persons or their representatives may be excluded from hearings are limited, even when there is a concern that they may present a risk to the child or other parties in the hearing room.

In some respects, there is a need for greater protection for the child and for adult victims of abuse in the setting of children’s hearings. It is not uncommon for adult perpetrators to be brought from custody in handcuffs into a children’s hearing room, with children—sometimes very young children—present. The SCRA does an excellent job of trying to gather intelligence about risk and to consider beforehand how best to manage complex hearings and make arrangements to keep all the participants safe, but that cannot always be relied on. We cannot even necessarily rely on police presence when violence is anticipated.

In those circumstances, we consider that children’s panel members should have greater scope to manage hearings when there is evidence of risk and potential violence. That could include: providing information to the hearings in advance and greater information exchange between different court proceedings; greater participation by videolink so that the participants do not necessarily have to be in the same room together; and the capacity to enable panel members to make a decision to involve relevant persons in hearings separately. There is the possibility of excluding relevant persons, but the current test for those relates solely to the risk of distress to the child and to prevention of the child expressing a view. Those thresholds are quite high, in practice.

12:45  

Rona Mackay

Thank you. I would like to ask about more, but I know that we are short of time.

John Finnie

A lot was said about siblings in the earlier part of the meeting, and I am aware that you were present for that. A number of organisations have proposed that siblings’ rights and family places, including measures affecting the children’s hearings system, should be included. I will run those rights past you for your comments on them. They are the right to be notified of proceedings; the right to attend hearings; the right to make representations; and a right of appeal or review. What effect will the proposals have on the operation of the children’s hearings system, and what challenges could they pose?

Alistair Hogg

That is a live issue because, as committee members will be aware, a Supreme Court decision on siblings’ rights in children’s hearings is awaited. The list of rights that you outlined will be considered by the Supreme Court, and we will know fairly soon what its position is.

Your question was about the impact of the proposals on the children’s hearings system. The SCRA supports the direction of travel on the general issue of siblings’ rights. There is a gap around the involvement of siblings in proceedings but proportionality is required, because we must always remember that the most important person at a children’s hearing is the child for whom the hearing has been arranged. The rights that you listed are the equivalent of the rights that a relevant person would have during children’s hearing proceedings and the rights that the child would have.

In relation to the debate that took place in the Supreme Court, the SCRA supports the greater participation of siblings in hearing proceedings. We recognise the powerful issues that the committee heard about earlier this morning, but there needs to be a balance and that involvement needs to be proportionate. The most important person is the child who is at the centre of the hearing.

Participation could take many different forms. It does not necessarily mean attendance at the hearing, for example; it could mean that you have the opportunity to present your views to a hearing in different formats. There could also be participation and rights in the form of an ability to seek a review if the position is detrimental to your position. The granting of the full range of rights would, however, be disproportionate to the issue that we are considering.

Jackie McRae

I echo what Alistair Hogg has said. Given the focus that is emerging from research findings on the importance of contact and the relationship between siblings, Children’s Hearings Scotland has been working on additional direct and online training for panel members, to ensure that they prioritise in a hearing the consideration of relationships that are important to the child. Those go beyond the relationships with parents to the relationships with brothers, sisters and other family members. We have a test for change planned in one of our support team areas, in which panel members will ensure that they gather information about the situation of the child’s brothers and sisters and consider the impact of those relationships on the child in every hearing.

John Finnie

I would like clarification on one small point. You mentioned the wider family, including siblings. For the avoidance of doubt, would that include grandparents?

Jackie McRae

Yes, it would include grandparents.

James Kelly

I want to ask about delays in the children’s hearings system. The bill provides for the court to “have regard to” the effect that delays might have on children. Should anything specific be included in the bill about the measures that courts could take to mitigate delays that might have an adverse effect on children’s welfare?

Jackie McRae

Our focus has been on the hearings system. In general, delays in the hearings system relate to administrative problems, a lack of reports or important people not attending hearings, which often makes it difficult for panel members to make decisions as promptly as they would wish. That is why we consider it critical to retain the focus on the child’s welfare in a hearing, in the current legal tests. An additional consideration for panel members over and above that would not add anything, as panel members should already be focused on considerations around delay and its impact on the child.

Alistair Hogg

Delays in children’s hearings are always in the minds of children’s panel members. They are well aware that delays in making decisions are particularly unhelpful for the children and young people who are at the centre of the hearings.

The SCRA very much welcomes the measure in section 21 of the bill, which relates to court proceedings. It will be helpful to have it in statute, because our proceedings at court—particularly our proof proceedings—can often be delayed significantly. Cases can take several months or, sometimes, even longer than a year to conclude. There might be particular reasons why that is the case, but the impact on the child is hugely significant. A year in the life of a child is proportionately much more than a year in the life of an adult of my age, for example.

As I said, we very much welcome that measure being placed in statute. It might be helpful if some narrative or guidance around it was provided to guide the decision makers in relation to the impact of delay and how to reduce delay. It is a helpful addition that might enable and empower us to avoid delays in court.

Shona Robison

Let us turn to appeals in the children’s hearings system, which are dealt with in sections 17 and 18. Does the panel want to comment on the Law Society of Scotland’s view that the function of the principal reporter is to ensure the effective conduct of a children’s hearing and that appealing a decision on relevant person status, as is proposed in section 17, would not be consistent with that role?

Alistair Hogg

I understand that what is proposed will allow the principal reporter to appeal a sheriff’s decision on that matter rather than to appeal a decision that the hearing has made, which I agree would be inconsistent with our function. We very much welcome the ability to appeal a sheriff’s decision on deemed relevant person status because, at the moment, we see many cases in which decisions are made and in which other parties to proceedings who would have a right of appeal are unable to exercise that function for personal reasons. We are unable to pursue that and, therefore, shape the test relating to deemed relevant person status, which can have a big impact on not only individual cases but more generally if precedents are set.

Jackie McRae

I endorse Mr Hogg’s comments.

Shona Robison

Do you have any comment to make on the Faculty of Advocates’ view that, unlike what is proposed in section 18, it is important to retain a direct line of appeal from the sheriff court to the Court of Session?

Jackie McRae

No.

Alistair Hogg

No. I do not have any particular view on that.

The Convener

That concludes our questioning. However, when we review today’s evidence, members might think of further questions that they would like to ask you, and we would be very grateful if you would provide further information, if it is requested. In the meantime, I thank you for a very concise and helpful evidence session.

The Convener

Agenda item 2 is consideration of the Children (Scotland) Bill at stage 1. I refer members to paper 1, which is a note by the clerk, and papers 2 and 4, which are private papers.

We have one evidence session this morning. I welcome the witnesses: Janet Cormack, legal policy manager, Clan Childlaw; Susan Edington, Edingtons WS; Ruth Innes QC, Faculty of Advocates; Jennifer Gallagher, chair, Family Law Association; and Nadine Martin, Harper Macleod LLP. I thank the witnesses for their written submissions. Such submissions are tremendously helpful to the committee before it takes formal evidence.

We have a large panel of witnesses, so I would be grateful if members could keep their questions as short as possible. The witnesses should keep their answers as succinct as possible, and they should not feel that they have to answer the question if it does not relate to their area of expertise.

We will move straight to questions.

Will you describe the characteristics of families who settle their parenting disputes by negotiation and alternative dispute resolution techniques? We know that research from 2007 found that domestic abuse was alleged in 47 per cent of all court actions over contact raised by a parent. However, a lot of cases are settled outwith court. It would be good to have your views on the characteristics of those families.

Will you also give a general view on what changes to current law and practice would most help families who resolve, or have the potential to resolve, their cases out of court?

Who would like to start? I know that Susan Edington has a view on the issue.

Susan Edington (Edingtons WS)

We need much more holistic triaging at the very beginning. People who are entering a separation situation require a myriad of departments to help at that stage.

I do a lot of collaborative law, for which we can bring in experts in various areas. We have never had to use experts in children’s involvement. Perhaps that would be quite a good area to consider for resilience purposes, to ensure that children do not suffer from their involvement in decision making. We need to give them that opportunity; we need a more family-centred focus in relation to separation; and perhaps we need to provide family centres in which advice can be given and a more holistic view can be taken.

The Convener

Are there barriers to using alternative dispute resolution techniques?

Susan Edington

There are. No legal aid is available, so people on lower incomes cannot afford alternative dispute resolution. There is also a lack of qualified people for the work and a lack of training of people to do that work in our legal profession. Although alternative dispute resolution is available, it has to be paid for, and it is not looked at in degree courses as a separate area yet—it would be very helpful if that occurred. I feel that having a few bolt-ons is not going to help; we need to look at the matter in a completely different way.

The Convener

In your view, does the bill adequately deal with what needs to be done?

Susan Edington

I am afraid that it does not adequately deal with what we require in law to allow ADR to happen.

Jennifer Gallagher (Family Law Association)

A number of the Family Law Association’s members are collaboratively trained and they are also trained as mediators. In my personal practice, when I initially see clients, my aim is to keep them out of court if possible. If you are collaboratively trained, you have access to other professionals who can help, such as family counsellors. As Susan Edington says, at the moment, the clients who can access that service are privately funding it. There is no available funding for people on low incomes, who cannot afford to pay privately for legal services to access mediation services.

With regard to the welfare of children and dealing with cases in a way that possibly prevents them from ending up in court, I agree with Susan Edington that early intervention for those families is essential. Once families are in court, people are very entrenched in the positions that they have adopted because of the nature of the court process. Although referrals to mediation can still be helpful in some cases that are litigated, the prospect of success might be lower because of the nature of the process. If intervention for such families could happen at a much earlier stage, we might find that the outcomes are better because the cases never get to court.

Most specialist family lawyers do not consider court as the first option for their clients. Court is one of a number of dispute resolution options and one that we would generally go to last, rather than that being our first port of call.

The Convener

Would spending on such an approach really be preventative spend? There is a better outcome and an earlier resolution that everyone is satisfied with, and views have not become entrenched.

Jennifer Gallagher

Yes, that is my view—it would be helpful. For instance, mediation is a really good option for families, but we are reliant on voluntary organisations, such as Relationships Scotland, to provide mediation services. The funding for those organisations is under threat and legal aid funding for mediation is very limited. A lot of accredited solicitor mediators will undertake legal aid cases, but the rate of remuneration is very poor. There is not necessarily an incentive to offer the services if they are not adequately funded.

The Convener

Should the bill address that?

Jennifer Gallagher

I think so. If you are looking to make provision for children in the process and considering the welfare of the child, it is very important that you look at those issues.

Nadine Martin (Harper Macleod LLP)

I concur with Susan Edington and Jennifer Gallagher. I am aware that there is a separate proposal for a bill on mediation, but I had hoped to see more emphasis in the Children (Scotland) Bill on encouraging the parties to consider speaking with a mediator at an early stage in the process. In my view, signposting people does not particularly lead to more uptake.

I mediate often, and I mediate at legal aid rates for cases in which one party is not legally aided but the other party is, because I feel quite strongly that mediation helps to prevent the trauma that a litigated court process about children can bring. I think that the provision to simply signpost people to services will not lead to a real uptake in people engaging with ADR as a way to resolve issues.

The Convener

So there needs to be a court mediator to speak to at the time. Is there a patchwork of provision throughout Scotland, such that provision can vary quite a lot?

Nadine Martin

Yes, provision varies. There have been discussions in CALM Scotland, which is the lawyer mediators group, about starting a pilot duty mediator scheme. However, the scheme would very much depend on the views of sheriffs in each jurisdiction and how useful they think that mediation is. The hope is that sheriffs could be shown that, even for standalone issues, mediation can help. That applies even in the middle of litigation, but it is always better if mediation can happen at the start of the process.

Janet Cormack (Clan Childlaw)

From the child’s perspective, adequate resourcing of mediation would ensure effectiveness and that children would be valued as parties to it.

Liam McArthur (Orkney Islands) (LD)

Nadine Martin talked about signposting mediation. The committee carried out an inquiry into ADR earlier in this parliamentary session, which included discussion about whether there should be a presumption of mediation before people were able to go to court. On balance, there were stronger and more compelling arguments against going down that route. I would be interested to know whether you believe that that is the direction in which we should be going.

The inquiry also heard from the Scottish Legal Aid Board that further discussions were to be had on the extension of legal aid to other forms of ADR. That was two or three years ago, and clearly a resolution has not been reached. Have those talks been stymied? Should we go back to the Scottish Legal Aid Board to ask about the issue?

The Convener

Should mediation be court initiated, or should there be an automatic presumption of mediation without the court suggesting it?

Nadine Martin

There is an issue with such a presumption. Mediation has to be a voluntary process: people cannot be forced to mediate. However, allowing the parties to have a separate discussion with a mediator to allow them to understand how the process works and how it might benefit them would, I think, divert some cases from expensive and lengthy litigation that has both a financial and an emotional cost to the families and children who go through it. The courts try to keep the process as short as possible, but it is acrimonious and adversarial. The purpose of mediation and collaborative law is to try to steer away from that and to allow the family to come to a solution together as a family—albeit a separated family.

Liam McArthur

You said that mediation is voluntary, which everyone accepts as fundamental to the process, but we have also heard concerns that mediation is never, or rarely, an option in cases of domestic abuse, for example. What is your view?

Nadine Martin

Domestic abuse is a compelling factor. Each individual mediator would make a decision, having spoken to both parties. Initially, a mediator would meet with the parties separately. If a person comes to a mediation session and says, “I have concerns about domestic abuse. Here is my experience,” many mediators—and I, in my role as a mediator—might say that such a case is not appropriate for mediation. As with all presumptions, it would be rebuttable: if factors make a case unsuitable for mediation, it might not even be approached.

Liam McArthur

Are you aware of on-going discussions about SLAB and funding?

Nadine Martin

I have seen no increase in the mediation fees from the Legal Aid Board. There are many mediators, but, certainly in relation to collaborative law, I have never heard of anyone practise it with legal aid funding. Many solicitors are unable to do as much mediation as they would like to do, because the funding is simply not there.

Jennifer Gallagher

There is a general issue with the Legal Aid Board and funding for family cases, and particularly financial provision cases, in that the level of funding is such that, economically, most solicitors’ firms cannot undertake the work. There is an access to justice issue for a lot of families, on the basis that they cannot access legal aid solicitors to do that type of work.

Liam Kerr (North East Scotland) (Con)

I have a supplementary question on that exact point. We have had representations to the committee about legal aid rates, the attractiveness of the work and people entering the profession.

My question is for Nadine Martin. You talked about offering legal aid rates to what one might call private clients—I do not know if you would use that term. To allow the committee to fully understand the matter, roughly what do you charge as your normal standard rate, in comparison with the legal aid rate? If I were instructing you privately, what would be your costs estimate to me?

10:15  

Nadine Martin

My point relates purely to mediation cases.

If someone is legally aided, the Legal Aid Board will pay £84 per hour for mediation. In effect, that is split between the parties: if each party is legally aided, they will pay approximately £42 per hour through legal aid.

Rates vary among solicitors, but most private firms charge somewhere between £150 and £250 per hour for private work, depending on the experience level of the solicitor and the type of work involved.

As a mediator, I feel that it is unfair to penalise a party by charging them an excessive rate, if the other person is being funded through the Legal Aid Board. I simply say that my hourly rate for mediation in which one party is legally aided is the same rate—£84—so that each party feels parity.

Mediation is not profitable for solicitors when we factor in the time that is taken away from fee-earning work, which would be done at a higher rate.

Liam Kerr

If you were not charging the legal aid rate but were charging the private rate of £150 to £250 per hour, and I came to you as a client and said that I wanted to go through the process, what would be your rough cost estimate to me? How much would I need to budget for?

Nadine Martin

That is genuinely a difficult question, because mediation can run for any number of sessions; it depends on how many issues are to be resolved and how much work needs to be done. Certainly, a privately paying person who engages in mediation that involves, say, childcare and financial issues should budget at least a few thousand pounds. However, the cost is far less than the cost of litigating those issues, and agreement is usually reached more quickly, provided that the parties are able to participate meaningfully in the process.

Liam Kerr

Thank you.

The Convener

Are you happy, Mr Kerr?

Liam Kerr

Very.

John Finnie (Highlands and Islands) (Green)

Good morning.

I will ask about children’s participation in decisions that affect them. Do you support removal of the presumption that only children aged 12-plus can be asked for their views? If so, what should it be replaced by? Do you support the view of the Children and Young People’s Commissioner Scotland that there should be a new presumption that all children have capacity to form a view?

Ruth Innes QC (Faculty of Advocates)

The faculty has addressed that in our written submission: we support removal and think that there should be a presumption-free approach. Even though the presumption is in legislation at the moment, in practice sheriffs and judges take views from much younger children. The court rules have recently been changed and now refer to the age of five as being an age at which the relevant form could be sent to children.

We support removal of the presumption, so we are concerned that it remains in the section that relates to legal representation. It should be removed from there, as well, for consistency.

We are also concerned about use of the word “capable”, because its use indicates that there needs to be assessment of the capacity of the child to express a view, which is different in meaning from the current provision, in which the test is simply one of practicability. That allows the court to take a clear view on taking the views of the children in pretty much every case in which the child is there and can be found. The provision should be removed from the bill and there should be a return to the practicability test that is in the current legislation.

John Finnie

Would any other panel member like to comment?

Janet Cormack

Clan Childlaw supports removal of the presumption, because it can cause an unintended barrier. We agree with the children’s commissioner: we would support a presumption that all children can participate and that it is a matter of supporting them to give their views.

John Finnie

I was going to come on to that. We have heard about different versions of how that might be achieved. As practitioners, how comfortable are you about establishing the views of very young children?

Janet Cormack

The youngest children whom our solicitors normally work with are about 10 years old, because a child’s capacity to instruct a solicitor has to be tested in the context of the presumption. Clan Childlaw does not have experience of much younger children.

The Convener

Can anyone comment on younger children?

Ruth Innes

I work as a child welfare reporter, which relates to another issue in the bill. I see children from the age of five: in my experience, I have had no difficulty in obtaining from very young children views that I hope have been useful to the court. There is an issue about how younger non-verbal children express views. In our submission, we acknowledge the need for training of child welfare reporters, particularly in relation to how views can be obtained. However, it is certainly possible to obtain views.

Jennifer Gallagher

I do child welfare reports. I speak with school-age children, and I agree with Ruth Innes.

John Finnie

Have very young children been involved in any of Harper Macleod’s mediation cases?

Nadine Martin

In my experience, not many, if any, mediators would involve a child in a mediation. However, there are moves towards more specialised training, with a view to allowing children some involvement in mediation in particular circumstances—if both parents want it to happen and the child is comfortable with that. That requires specialist training, and such involvement would not be appropriate in every case. That would be a decision primarily for the mediator, in conjunction with the parents. There is scope for mediations to involve children, which I think happens in other jurisdictions.

An issue that shoots off from that is the need to think about how and when it is appropriate for a mediator to obtain the views of a child. That is separate from the question about a child’s involvement in the process. Some parents just cannot agree on what the child’s view is about a situation, so it is difficult for them to come up with solutions and options that must then be imposed on the children. That is a live issue in mediation, and how it will be resolved is not yet clear.

John Finnie

Ms Edington, do you have experience of the issue?

Susan Edington

Yes—I have seen children as young as five. Our faculty took the view that children can be separately advised, if that is what they want. We have done that on a pro bono basis, I have to say: we did not charge a fee. It is really about trying to give the child options. Some children have taken great pleasure in being involved—so much so that they have become quite demanding.

I finally got to the bottom of a problem about a child seeing his father with that child, who was five. I had thought that he was being influenced by his mother, but it was clear from the outcome that that was not the case. The problem was purely that the father had blamed the child for wetting the bed when he had been sleeping top-to-tail with another child; it had not been him, and he felt that his father had failed him. Once we were over that hurdle, he went on happily to have contact with his father.

However, I felt a little uncomfortable about getting that child’s views, because I felt that unqualified. I did it not by asking questions of him but by playing with him and trying to get to the bottom of what was wrong through chatting, rather than anything else. The child thoroughly enjoyed it, however, and when I finally asked him whether there was anything else that I could do for him, he said that he would not mind a choc ice, so I do not think that he was traumatised by what he went through.

However, I can envisage such experiences being traumatic for younger children, which is why I suggest that triage at the beginning could involve the whole family and provide help and support for each area. We now have specialists in that area, which is wonderful. I was speaking about a time about 20 years ago, when as a faculty we took to providing that service. We have since stopped providing it, because our sheriff does not support such work.

Janet Cormack

I refer to the work that has been done on the F9 form and on how we change the culture for younger children, which has been mentioned. The F9 form was revised with a view to improving other additional methods, and a lot of that work is interesting to look at. Younger children should be offered a range of options. As Clan Childlaw says in our written submission, we very much support the role of child support workers. They are available in some places: we would like them to be more widely available.

Liam McArthur

The Government consulted on whether the bill should include provisions on confidential children’s information being provided subject to the views of the child having been considered and to that having been deemed to be in the child’s best interests. Children 1st is particularly keen for there to be provisions on confidentiality. If the information that a child shares with a welfare worker or whoever subsequently finds its way into court proceedings, that can be traumatic for the child.

We have also heard the view that the rights of adults under the European convention on human rights need to be respected in the process. Children 1st’s view is that, at the very least, proportionality in relation to whatever information is shared needs to be better reflected in the bill. Do panel members have views on that?

Ruth Innes

That relates to ECHR article 6 rights. If a court is going to make a decision based on views that have been taken from a child, and if the court cannot tell the parents what those views are, that decision is based on information that is secret and outwith the knowledge of the parties. The parents do not have the opportunity to provide submissions and do not know the reasons for the decision, so there are serious issues with taking the views of children.

Concerns about that have been raised in cases such as the one that we mention in our written submission, in which the judge took the views of the child. The question is how those views are communicated to the parents. As a child welfare reporter, I make it very clear when I speak to children what use will be made of their views. If they have any concerns about confidentiality, they have to highlight them to me, and I have to tell the court.

Liam McArthur

That is helpful. Children 1st was trying to reflect the distinction between interviews with children in the context of court proceedings and, I suspect, mediation and—as often happens—children’s engagement with services at a much earlier stage in the process. Files of information are built up over many months, if not years; Children 1st is concerned about such information being used in court proceedings. It is not only the information that is relevant to the case that the court is hearing that is used; a volume of information is handed over as a case file. In such cases, the discussions with a child are very sensitive, and the child is not made aware at the time that what they say might be used in court and played out in front of either parent or both parents.

Could the bill safeguard against that by ensuring that appropriate information is shared with the adults, for the reasons that you have suggested, and there is not wholesale transfer of case files to the court?

10:30  

Ruth Innes

That is a difficult issue to cover. That would arise primarily in cases involving permanence and adoption, for which there is a social work file. Janet Cormack perhaps has a view on that, from the perspective of Clan Childlaw’s work.

I reiterate that all the information that has been built up is relevant to the court’s consideration of what is in the best interests of the child. It is therefore likely that the court will base its decision on that information, so there is, again, a potential clash between the parents’ rights under article 6 of the ECHR and the right of the child to confidentiality.

Janet Cormack

I do not have anything to add. I agree that there has to be a balancing of rights.

Ruth Innes

It is difficult to see how that could be formulated.

Liam McArthur

Is there no way of framing the bill to ensure that what we might call a proportionality test would be applied? I recall that when we were considering the named person scheme, one of the issues was transfer or sharing of information not being blocked. The idea was to ensure that that was done proportionately in all cases, so that information would be shared only with people who had a legitimate interest in it.

That might be an ill-starred example, but it suggests that the law can at least attempt to ensure that information is shared proportionately, rather than there being a wholesale release of information that might have no bearing on the case in hand, and which might also be highly sensitive.

Jennifer Gallagher

As I was listening to that exchange, it occurred to me that, rather than their being dealt with in primary legislation or court rules, such issues might be addressed through the procedures for recovery of evidence. The sheriff having to consider such issues, balance them and make decisions case by case might be a more appropriate way to deal with such issues. That suggestion is off the top of my head—I have not thought it through. It occurred to me that it might be an option as I was listening. As other witnesses have said, it is a very difficult matter to cover in legislation.

Liam McArthur

That is helpful. Thank you.

James Kelly (Glasgow) (Lab)

I want to touch on the role of child welfare reporters. Some witnesses have suggested that solicitors do not necessarily have the best skill set to carry out that role and that social workers or psychologists might be better placed to be child welfare reporters. What do panel members think of that view?

Susan Edington

As I have said, although solicitors require training in such areas, they are also best placed to understand where such information will be used and what will happen to it. If it is going to a court setting, they understand—in a way that is perhaps unique to a solicitor—what the court will require. However, perhaps we could have a much more holistic approach at the initial stage; we could have a form of triage in which we could see whether social work involvement is required, such as in domestic violence cases.

James Kelly

So there should be better training for solicitors but also better involvement of appropriate social workers and psychologists.

Susan Edington

Yes.

James Kelly

Does anyone else on the panel have a view on that?

Jennifer Gallagher

The FLA’s view is that training is essential for people who undertake such work. It is also important to bear in mind what the role of the child welfare reporter is. In some situations they might be asked simply to take the views of a child, which is work that need not be undertaken by a solicitor. However, a number of other issues in a case can be addressed by a child welfare reporter. Solicitors are exceptionally good at receiving information, working out what is relevant and presenting it in a manner that is helpful to the court. They have a good understanding of the legal framework and how to apply that to particular facts and circumstances. Consequently, solicitors bring a lot of experience and many good reports are produced for courts across the country.

The introduction of form F44 has addressed a number of the concerns about reports not being properly focused, because a sheriff now has to consider what he or she wants a report to address and give the reporter a proper remit to do the work. That addresses quite a number of the concerns that had been expressed previously about child welfare reports.

Ruth Innes

I agree. You will have seen from our written submission that we also agree that there should be training. Indeed, we at the Advocates Family Law Association are looking at training for advocates who also work as child welfare reporters.

We think that the provision in the bill might be disproportionate to the problem. The problem is mainly to do with training and the need to have a proper register and proper regulation of child welfare reporters. That can be managed through the current court system rather than being managed through a new administrative process.

Child welfare reporters are skilled in this area—they have a lot of experience, as Jennifer Gallagher said. The issue is about using and building on that experience and giving them appropriate training.

Janet Cormack

Our view is that child welfare reporters can have a variety of professional qualifications and backgrounds. Obviously, it is important to have an understanding of court procedures and legal tests, but equally important is having an understanding of child development and how to communicate with them. Regulation would bring consistency in standards and training, which would address that aspect, but it really does not matter what the professional background of a child welfare reporter is.

James Kelly

That is helpful in offering a practical way forward.

Is account taken of a child’s relationship with their wider family in examining the detail when reporting?

Ruth Innes

It depends on the remit that the court has provided. As Jennifer Gallagher mentioned, a form specifies what the child welfare reporter should do. A views-only report is simply related to the views of the child. If the remit is wider, the court might specify who the child welfare reporter should see, which might include the views of their wider relatives.

If the child welfare reporter has been asked to provide recommendations in relation to contact and residence, they will take into account wider relationships such as those with siblings, grandparents and wider family members. My practice as a child welfare reporter is to ask children about their wider family, so that I have a holistic picture.

James Kelly

That makes sense.

The policy memorandum sets out a number of options on fee rates for child welfare reporters. Those include hourly rates and a rate per page, which might encourage people to write longer reports. What is the best way to manage the rates?

Ruth Innes

An hourly rate would make more sense than a rate per page.

James Kelly

Yes.

Ruth Innes

There are a number of issues to do with paying a rate per page. Someone might write a long report unnecessarily, which might not necessarily help the court. Just because a report is short does not mean that a person has not spent a number of hours preparing it.

James Kelly

It is the old adage about quality, not quantity.

Ruth Innes

Yes.

Jennifer Gallagher

There are cases where a lot of work is involved in investigating the circumstances but the substance of the report does not need to go to many pages. An hourly rate would reflect the work that has been done.

James Kelly

That makes sense.

The Convener

Should the regulation of child welfare reporters and curators be managed nationally or locally? We have heard varying opinions on that.

Ruth Innes

As I alluded to, our view is that it should be managed at local level—in other words, within sheriffdoms. There is already an administration there, which can be developed. I would have thought that giving the power to have the lists to the Lord President, who would then delegate it to the sheriffs principal, would be the most sensible way of dealing with the matter.

The Convener

Although having a local element is a good thing, a lack of consistency could be a problem. A balance needs to be struck. How would you deal with that?

Ruth Innes

We recognise that there is a need for regulation and registration, so if there are standards that child welfare reporters have to meet, the issue can be addressed in that way.

The Convener

So certain things should be standardised, but there should be an ability to take account of local circumstances.

Ruth Innes

Yes.

The Convener

Is that everyone’s view? Does anyone else want to comment?

Nadine Martin

I am not a child welfare reporter, but I work across various jurisdictions. At the moment, the process for the sourcing, appointment and continuation of child welfare reporters varies widely from jurisdiction to jurisdiction. I agree with Ruth Innes: if there is still regulation at local level but there are set standards and rules that everyone must adhere to, that will give everyone some certainty about what is required for the role. At the moment, policies vary widely between jurisdictions.

The Convener

You are saying that there need to be suitable appointment rules and clear guidelines on what is required. That is helpful.

Susan, did you want to comment on that?

Susan Edington

No. I absolutely agree that the matter should be dealt with in the way that Ruth Innes has suggested.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Good morning. As members of the panel will be aware, section 15 creates a new duty to explain court decisions to children. I note that Jennifer Gallagher’s and Janet Cormack’s organisations support that, but the Sheriffs Association has said that the requirement is unworkable because of the burden that it will place on the judiciary and, in its submission, the Faculty of Advocates states:

“it is not appropriate to make the explanation of decisions to children mandatory.”

Is section 15 workable? Do you have a view on who should be responsible for explaining decisions to children? Should it be the sheriff, a child welfare reporter or somebody else?

Janet Cormack

As you will have seen, we are supportive of the court explaining the decision to the child. One of the issues is that we have an adult court system that we fit children into. If we looked at the issue from a child’s perspective and took into account the principles of the United Nations Convention on the Rights of the Child, we would have a different arrangement.

It is important that decisions are explained to the child, but we expressed concerns about the child welfare reporter doing that, because there is not a child welfare reporter in every case and they are not in court when the case is heard or the decision is made.

We are supportive of the court explaining the decision to the child. If that were to be introduced, it would be appropriate for a child support worker to perform that role. As an independent party with training in communicating with children, they would be able to do that effectively.

Jennifer Gallagher

Our membership’s view was that the principle of such decisions being explained to children is a good one. We have anecdotal evidence from our members that, a lot of the time, although court reporters come out to see children and ask them to give their views on what is happening, they never find out why the decision has been made. Often, the child might have expressed views to a reporter but, for various other reasons, the outcome of the case is quite different.

A lot of information has been gathered about the effect that that has on children. The principle of children finding out about significant decisions that affect them is important, but the practicalities of how that is done should be left to the individual decision maker. I know that a sheriff in Glasgow has written to children on that, but there are mixed views in the profession about the appropriateness of that. How these things are managed in practice must be thought about carefully. I note the comments from the Sheriffs Association about the logistics of the issue. The Scottish Courts and Tribunals Service would also probably have issues with the logistics, the funding and the availability of resources to do that properly.

10:45  

Ruth Innes

We have said that explaining decisions to children should be discretionary rather than mandatory. I agree with Jennifer Gallagher that, in principle, it is a good thing to explain decisions to children, but there is a question as to whether, practically, it can be done in every case. Obviously, the duty will include interim orders, so a number of hearings might be involved. Sheriffs will have a number of child welfare hearings in one day, so there is a question as to how, practically, they will explain the decision to the child quickly enough before the change in the arrangement takes place, which might happen the next day or the next weekend.

Do the judiciary have appropriate training to explain the decisions to children and do they feel comfortable doing it? Should it be done in writing or face to face? We are also concerned about the fact that the bill provides that the only person who can give the explanation is the sheriff or a child welfare reporter, who, as we have said, may not be present at the hearing and so would not know what the reasons are. Therefore, we think that there should be greater discretion and flexibility in relation to explaining decisions to children.

Jenny Gilruth

Would leaving the bill as it is leave a loophole, because it does not spell out who should explain the decision but leaves that open to interpretation? If we allowed greater discretion under the bill, a sheriff could in future just ignore it, which is not what we want to happen; we want children to have an understanding of the decisions. Therefore, should the bill be more prescriptive?

Ruth Innes

I do not think so. The problem is that the bill says that

“The court must ensure that the decision is explained”,

and then specifies the two ways in which that could be done. That should be opened up to give the sheriff the discretion to allow the decision to be explained by somebody else and in a way other than through those two routes.

As I said, the explanation should be discretionary rather than mandatory in every case. Potentially, there will be arguments in every case about whether and how the decision should be explained.

The Convener

Section 12 is on the statutory factors that the court should take into account when making a decision about a child in an individual case. In the current legislation, there are two factors, which are the prospect of parental co-operation and the need to protect the child from abuse or the risk of abuse. Section 12 goes a little further, and says that the court must also take into account the effect of a court order on

“the involvement of the child’s parents in bringing the child up”

and

“the child’s important relationships with other people.”

What is your view on a statutory list of factors and, if there should be such a thing, does the bill have it right? Ruth?

Ruth Innes

I hesitate to start again—sorry.

Our view is that, obviously, the welfare test is paramount and that a checklist can be unhelpful, because it lists only certain things and there are other factors that will impact on an individual child, such as mental health, physical health and addiction issues. We could end up listing a whole number of issues in a checklist. The difficulty with that is that it potentially asks the court to focus on those issues and there is a danger that other issues are excluded. Our general view is that the welfare test itself allows the court to take into account all those kinds of factors. Obviously, the factors that are listed in relation to risk of abuse, co-operation and relationships with other family members such as siblings are all important, but they are not the whole picture. That is our concern about checklists.

The Convener

Is it helpful to have that as a starting point, and to emphasise that that is what it is, or are you concerned that, in individual cases, courts might not get any further and might just say, “Well, that is what we have to look at”?

Ruth Innes

Yes, that is our concern. It suggests that those are the factors that are to be looked at, so other factors that are very important in the life of an individual child could be ignored or passed over.

Susan Edington

The word “individual” is very important in what you have just said. Every child and every case is different, and they should be looked at in that manner. The checklist suggests prescription rather than anything else.

Jennifer Gallagher

The benefit of the welfare test is that it orders the court to look at all the relevant factors in a case, so it means that the court can deal with the child on an individual basis.

Susan Edington

Exactly.

Janet Cormack

We also pointed out the risk of missing something. The bill specifies the paramountcy of the child’s welfare, and we have welcomed the reference to maintaining the relationships that are important to the child. As you will be aware, we do a lot of work to try to ensure that siblings are not separated or that they remain in contact when they are separated. We hope that that provision will have the effect of getting the courts to think about those relationships.

The Convener

We are at the stage of writing our stage 1 report. We have scrutinised the bill and we are looking for ways in which it can be improved at stage 2. Is there anything that you would suggest to add to section 12 that would cover the points that you have raised? Is there any way that it could be improved?

Ruth Innes

I suppose that you could list other factors that I have mentioned, but I am still not sure that it would be an exhaustive list. Our view is that all of it is superfluous. All of it could be deleted and the welfare test could simply remain as the paramount consideration. The court would know that it would have to take all those issues into account, because they are all relevant to an individual child.

The Convener

As a result of a policy decision, there is currently a requirement in law for courts to look at the prospect of parental co-operation and the risk of abuse. Is there an inherent danger that if we miss those out completely, let alone add anything new, aspects that we would want to be covered will be missed?

Ruth Innes

I do not think so. Courts are well aware that observation of abuse and the risk of abuse are important issues that impinge on the welfare of the child and on the orders that courts should make.

The Convener

Are you saying that removing it would almost force questions to be asked of the individual child’s circumstances?

Ruth Innes

Yes.

The Convener

Does anyone disagree with that?

Janet Cormack

No.

Susan Edington

No.

Jennifer Gallagher

No.

Nadine Martin

No.

The Convener

That is very interesting.

We have heard from various witnesses that there should be a presumption of shared parenting, and that the child should have the right to have the involvement of grandparents. Will you comment on that?

Does nobody want to start? It is your area, Ruth, and we said that we would talk to the person who is best able to speak about it.

Ruth Innes

We do not think—this is consistent with what I have already said—that there should be any presumptions in relation to the welfare tests. Courts have the ability to make an order that provides for shared parenting, if they consider that that is in the best interests of the individual child. We do not think that there should be a presumption about what the court should do.

With regard to whether there should be a right to have the involvement of grandparents, our view is that, under the legislation as currently framed, any person with an interest who wishes to obtain a court order in relation to a child can make an application to do so. We do not think that there should be a specific right, or that parental rights and responsibilities should be imposed on such persons, but people are able to make such an application at present.

We welcome the removal of the issue that has arisen around siblings in private law cases being able to apply for contact orders; previously, there was an issue with regard to children under 16 being able to do so. Janet Cormack would be able to comment more on the difference in approach in public law.

The Convener

The question was specifically about shared parenting and grandparents. When I probed a little further, the witnesses were quite happy with the presumption about shared parenting and thought that the balance was right. After a little further delving, the representative from Grandparents Apart UK said that children should have the right. They said that a welfare report presented in court might include something adverse that may go against grandparents having contact, but grandparents have no opportunity to challenge something that is untrue or is not based on evidential fact. That is why they have gone for there being a right. Should there be an opportunity for grandparents to challenge anything that they think is factually inaccurate or has not been evidenced?

Ruth Innes

The child welfare report is not the court. It is for the court to make findings in fact. The child welfare reporter simply has to narrate what the various people have said; the reporter does not, and should not, make a decision about what is true or false—that decision is for the court.

The Convener

I think that the witness felt that, once the court has been presented with the evidence, grandparents do not have an opportunity to say that something is not true or has not been evidenced properly. Has that been your experience?

Ruth Innes

Grandparents quite often give evidence if the case goes to a contested hearing, because they are the closest family members to the child and are often brought along by one parent or the other and asked about such issues. However, I have not seen the issue arising in practice.

The Convener

Is anyone else able to shed any light on this issue?

Nadine Martin

I have been instructed by grandparents separately in actions in which the parents have been unable to reach agreement and allegations have been made about grandparents. We produced sworn affidavits, which were given to the sheriff, saying, “Here is my evidence about those points.” There are already routes in the procedure by which grandparents give evidence, instruct their own representation or seek their own orders about contact. All of those can be expensive and difficult, but there are routes in the process for grandparents or anyone else who has a point to make to take legal advice.

I was involved in a case in which I produced very detailed sworn affidavits that said, “Here is our position about everything that has been said about our conduct. This is the equivalent of us giving you our evidence on that point.” I was not involved in the dispute between the parents; I represented and gave advice to the grandparents only. In that situation, they felt very much that things had been said about them and they had not been given the opportunity to answer them. At the moment, there are ways by which such a situation can be addressed.

The Convener

Would legal aid be available in that situation?

Nadine Martin

In that case, the grandparents were not legal aided. I am not certain whether the Legal Aid Board would consider that. It might say that giving affidavits is not necessary. Seeking legal aid to raise proceedings in one’s own right as a grandparent would be different, but I am not certain that the board would fund someone’s right to comment and make a point.

The Convener

Is it true to say that there could be a cost barrier to grandparents being able to present another view?

11:00  

Nadine Martin

Yes. If a grandparent could not access legal aid, they would have to weigh up whether it was worth their paying money simply to put their position to a court—which may or may not influence the decision and would not allow that person to participate in the proceedings actively. In the case that I have referred to, the grandparents felt so strongly that they were being misrepresented that they were willing to meet the cost.

Jennifer Gallagher

That brings us back to the welfare of the child. There will be cases where the grandparents have a locus to seek an order in relation to the child because they have a relationship with the child and it is of benefit to the child for that relationship to continue. As Nadine Martin said, there are options available for grandparents under the existing legislation.

Essentially, the law should relate to the welfare of the child, and it would not be appropriate in every single case for the grandparents to have some sort of automatic right, particularly if they do not have any on-going relationship with the child and have not been particularly involved in the child’s life.

The Convener

Grandparents Apart was careful to say that it was about the right of the child to have grandparents in attendance. I suppose that that applies to situations where children have had contact with grandparents. However, it can sometimes suddenly look like that contact is going to disappear because of something that is said. Given the important role that grandparents generally play, that is perhaps something that we need to consider with a view to making sure that there is not an issue with access to justice there.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I agree with what the panel is saying on this matter. We cannot be too prescriptive to the court, as that would take away from the individual, unique situation of every child. Most witnesses who have come before us have said that.

On the matter of grandparents and other significant relationships, the point that we explored during previous evidence sessions and which has been referred to by everyone on today’s panel is that the relationships with the child are the important thing to consider, whether they are positive relationships or not—hopefully they mainly are. Those relationships can often be a casualty of the process.

Nadine Martin spoke about a specific example. My feeling from constituency casework is that people might not know how to deal with significant relationships other than those of grandparents. Have you experienced that issue in your day-to-day work? If so, how can we seek to address it, so that we are always making decisions that are in the best interests of the child, as Jennifer Gallagher has said?

Jennifer Gallagher

In my experience and in my practice, I have advised grandparents who are interested in pursuing contact orders in relation to grandchildren. The advice that is given depends on the particular circumstances. If there is an on-going relationship, if it is possible for someone to demonstrate an interest in the child and if the situation can be considered from the point of view of the child’s welfare, the matter can be pursued—if that would be of benefit to the child. The availability of legal aid can sometimes be an issue in relation to the criteria that the Scottish Legal Aid Board generally applies in making legal aid available for child-related cases.

There is not a barrier to grandparents seeking advice. In practice, the parent of the child will often obtain contact and will then use their time with the child to get their own family involved with the child.

Fulton MacGregor

That is the crux of my point. If a child is involved in the children’s hearings system—we have used this example before—there would be a full assessment of their situation. If, in the context of the children’s hearings system, a young person says that they do not want to see their dad, for instance—perhaps because of things that have happened—but they do want to see other members of their paternal family, that will get captured by social workers on the children’s panel, and things can be put in place. I am sure that that can also be captured through the child welfare reporter, although it might not always be.

If there is a parental dispute, and if—to use the same example—the child says, “No, I don’t want to see dad,” there is an argument, as expressed by Grandparents Apart and others, that the relationships of grandparents are a casualty of the process when cases are dealt with solely in the court system. I know that grandparents can instruct representation, but it sounds like grandparents would have to seek that out, and some of them might not do that.

Nadine Martin

The adversarial nature of a dispute between parents that is litigated makes the situation difficult, because people take certain positions. Sometimes, if the position is taken that the child will not see their dad, that can mean that they do not see their dad’s family. That can have long-lasting consequences for the child, particularly if they had positive relationships with those family members. I do not think that there is any easy fix for that, although I often see better resolutions in an alternative dispute resolution process, in which the situation can be explored in a respectful way, with people saying that, although the relationship is not working and cannot be made better at the moment, they can accept that gran and grandpa still have a good role to play. However, it is quite difficult to explore that approach in a situation in which parents are taking positions.

There is no easy answer. Sometimes, there are positive and beneficial relationships with other family members even in situations in which the parents cannot get along or the child has a reason not to want to spend time with a particular parent, and those relationships can be lost.

It is quite hard to say what a fix for that would be. Certainly, I see these issues being handled better in processes in which there are explorations of alternative ways of resolving the dispute.

Jennifer Gallagher

I agree. I find that I can come up with much more bespoke solutions in situations in which there is the scope for doing so in the context of mediation. Services such as Relationships Scotland offer family therapy-type approaches, which can be helpful for some families and are probably a lot better than what can be done in court.

Fulton MacGregor

I do not think that there is an easy fix. Thank you very much for your frank responses.

The Convener

I suppose that what you are saying is that, by teasing out these issues, you can get people to focus on the child as opposed to their differences and their desire to score points.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I would like to ask about sibling contact and relationships. Last week, the committee heard powerful evidence from Oisín King. His personal experience went to the heart of what we should be talking about with regard to sibling contact. I know that Clan Childlaw and CELCIS have strong views on that issue. What is your reaction to the evidence that Oisín King gave us last week?

Janet Cormack

We are immensely grateful to Oisín King for giving his testimony and sharing his story. As he said, many people are affected by this issue, and we are pleased that the committee heard that evidence. In general, there is an increased awareness of the issue of siblings being separated when they enter care and of the fact that many of them do not see each other, as Oisín King so accurately described.

You will be aware that Clan Childlaw works with partners in the Stand Up For Siblings coalition, including Who Cares? Scotland, and we have submitted joint evidence to you. That evidence is worth looking at closely to see what the problems are and what the research base is in relation to the need to deal with the issue through legislation. Our submission also contains some case studies that demonstrate the problems that are faced and what the current practice is, as well as what lessons we can learn.

Rona Mackay

Should the bill include siblings’ rights, such as the right to be notified of or appear at children’s hearings, the right to make representations, a right to appeal or ask for review, and so on?

Janet Cormack

We believe so, yes. Obviously, there are various aspects of the bill that deal with siblings, and you will not be surprised to learn that we support all of them.

On participation rights, as Alistair Hogg described last week, we are awaiting the judgment in a Supreme Court case that concerns participation rights in children’s hearings. Clan Childlaw absolutely believes that siblings should have participation rights, and the six aspects of those rights that we see as inherent to article 8 rights were listed last week. We think that they are interconnected and proportionate, so we absolutely favour siblings having participation rights in the way that has been described.

Ruth Innes

We agree with that. We are aware of the case that is currently being decided by the Supreme Court. However, legislative change in relation to the provisions in the Children’s Hearings (Scotland) Act 2011 that concern the definition of “relevant person” and to section 126 of that act, which sets out the way in which a sibling can participate in a hearing and seek contact, ought to be dealt with in this bill.

Rona Mackay

You will be aware that the Scottish Children’s Reporter Administration thinks that the approach needs to be proportionate. Do you think that changes could be made in a proportionate way to focus on the child who is the subject of the hearing?

Ruth Innes

Yes, there is a way of doing that, although it is not in the bill at the moment.

Liam McArthur

I think that no one could help but have been deeply moved by Oisín King’s testimony last week. The case that he set out was compelling.

On the issue of the rights of grandparents and shared parenting rights, there is a slight concern that, in what would probably be a small number of cases, the relationship between siblings might not be positive—at least, not positive in both directions. That means that applying the right of a sibling to be heard in a hearing or whatever might not necessarily uphold the welfare interests of the child who is the focus of the hearing. If we were to institute a right of all siblings to be heard, if they so chose, how would that be balanced with those concerns?

Ruth Innes

The issue of the right of the child who is the subject of the proceedings to object to a sibling becoming involved, attending a hearing and getting information that is relevant to them is part of one of the cases that is before the Supreme Court at the moment. However, the question is about proportionality and the need to balance the competing rights. That can be done if the legislation is appropriately framed.

Liam McArthur

I know that I am burrowing down into what is probably a minute number of cases, but one can imagine a situation in which the relationship between siblings is not necessarily a positive one for the child who is the subject of a hearing but the other child is not aware of that and has an attachment to the child, therefore the child might be unlikely to object to their sibling being heard in the hearing, even though it might not be in their interests, perhaps because of the unhealthy relationship that might have developed. Is there an expectation that experts who are involved in that process would pick up on that and would be able to enter an objection or advise the hearing appropriately?

Ruth Innes

I think that the hearing would have to have regard to any issues that were raised in relation to the nature of the relationship between the siblings, whether that came to light through an expert, a parent, a carer or whoever. The situation can be managed. Obviously, the hearing has to have regard to the child’s welfare as the paramount consideration.

Janet Cormack

I agree that that would be dealt with through consideration of the welfare of the child being paramount. As you said, only in a minority of cases would that be inappropriate or unsafe. The situation can be dealt with. We need to change the system for the majority of the siblings involved.

The Convener

It may well bring in the issue of confidentiality, with the child who was the subject of the hearing saying that they felt that they were torn in two ways but that they felt that something was not right. It is an interesting point.

James Kelly

On the issue of delays in court cases, section 21 of the bill asks the court to have regard to the adverse impact that delays might have on children. Does asking the court to consider those matters go far enough, or should there be something specific that the court should be empowered to do when there is a delay in a case?

11:15  

Ruth Innes

The court has control of its own process, and the courts have been very clearly directed by the Supreme Court, in a number of cases, that delay is inimical to the interests of children and that they must appropriately case manage any actions in relation to children in order to avoid delay. Therefore, there are case management rules that relate to that.

The way in which the current provision—the amendment in proposed section 11ZA of the Children (Scotland) Act 1995—is framed seems to conflate the issue of making a decision and the proceedings themselves. The bill says:

“When considering a child’s welfare, the court is to have regard to any risk of ... delay”.

The words

“When considering a child’s welfare”

mean that the court is at the stage of making a decision about the child’s welfare, but it is more to do with case management. It is the process itself that the court should be trying to avoid delay in, and the court has substantial case management powers through which to do that. In the court structure, from the Supreme Court to the inner house, sheriffs certainly know that delay is to be avoided.

James Kelly

You are saying that there are currently adequate powers and that the provision in the bill is perhaps not worded appropriately and needs to be re-examined.

Ruth Innes

Yes.

Jennifer Gallagher

Effective case management is the way to avoid delays in court processes, and there are certainly significant case management rules in the sheriff courts for child-related cases.

Nadine Martin

Although the Scottish Legal Aid Board says that it will make legal aid available fairly quickly in those cases, I have experience from past cases of lengthy application procedures and of being asked for information that was not really relevant to the determination of whether the person should obtain legal aid. Sometimes, that approach still contributes to quite lengthy delays in our being able to effectively represent someone.

Emergency cover to attend a hearing, for example, is helpful, but there is much work to be done in disputes that involve children’s residence, or if there has not been contact for a long time. Through experience from not too far in the past, I know that there are still delays in obtaining full decisions from the Scottish Legal Aid Board, particularly when the applicant may not qualify for full legal aid and may have a contribution. Sometimes, the assessments of those financial determinations can take a significant period of time, and it is then difficult for applicants to make a decision, because they will not be certain whether they will have a legal aid certificate. In my view, that still contributes to delays.

Janet Cormack

We think that that should be in the bill. It is of sufficient importance to be put into primary legislation, and it is a way of securing procedural rights under article 8 of the European convention on human rights.

The Convener

Do you think that there are variations between how cases are treated in the criminal courts and how they are treated in the civil courts? We have heard that there are sometimes better, less-adversarial practices in the criminal courts, because that issue has been looked at more in them and there have been more rules and more discussion about case management delays, which have not necessarily been transferred to children’s involvement in civil cases.

Ruth Innes

I am not sure that that is the case. Obviously, there are case management rules in criminal cases, through the preliminary hearing system, but the same applies in child cases. I suppose that the question is whether the rules have been properly implemented.

The Convener

The same legal aid delays would be found in criminal court hearings or in criminal cases.

Ruth Innes

I think that it is much easier to get legal aid and to have matters dealt with quickly in criminal cases. In civil cases, it takes longer to apply the considerations that the Scottish Legal Aid Board has to apply in relation to financial issues and merits. That probably causes part of the delay.

The Convener

When we talk about significant delay, how long are we talking about? Can you give best and worst-case scenarios?

Nadine Martin

I have had cases in which it has taken months to get a full determination on legal aid. A party would be asked to provide a huge amount of financial information, all of which would be provided and processed, but then there would be more questions. The process can feel interminable for people. Clients have said, “This is so difficult for me that I feel like giving up. I feel that I won’t ever get legal aid, so what is the point in dragging everyone through this process?” People lose hope.

At the same time, the agent is under pressure to prepare a case and be ready to go to court. We do not want to put a child in a situation in which there is delay after delay. It is a real difficulty.

Ruth Innes is right to say that there are different rules in criminal legal aid that sometimes mean that it is awarded automatically or more quickly. In civil cases, delays are a real concern.

Fulton MacGregor

I want to ask the panel about vulnerable witnesses in the courtroom. Do you support the scope of the concept of “deemed vulnerable witnesses” as provided for in the bill?

Ruth Innes

I think that we support the scope. We certainly agree that there should be provisions prohibiting cross-examination by parties in cases that the vulnerable witnesses legislation covers.

By way of background, we raised a couple of issues. Proposed new section 22B(4) of the Vulnerable Witnesses (Scotland) Act 2004 provides that the prohibition

“does not prevent a party to whom it applies from conducting the party’s own case in person until”

the evidential hearing begins. Our concern about that provision is that a section 11 order might be sought in a divorce case in which financial provision is being sought and there are complex issues, and if a party is not going to represent themselves in a case, that needs to be known about as soon as possible and the person who acts for them needs to be involved prior to the evidential hearing, as early as possible, when it becomes apparent that an issue has arisen and the measure should be imposed.

Jennifer Gallagher

The FLA’s view is that there are practical implications of the provision. The principle is fine, but its operation might prove difficult in practice, particularly in civil cases, when the pleadings and so on have to be put in order before we get to the stage of an evidential hearing. If a solicitor has to be parachuted in at a very late stage to deal with a case in which a person has been acting for themselves, significant amendment of the pleadings might be required.

The FLA raised another, practical issue about the proposed register of solicitors, given the types of case to which solicitors might have to be appointed. That will generally happen in difficult cases, and sufficiently qualified solicitors might not want to put themselves forward for inclusion on the register if posts are not adequately funded. In particular, if the posts are funded at something like legal aid rates, I imagine that many experienced court practitioners will say, “This is not for us.” There could be a practical difficulty in that the service might not be available.

Fulton MacGregor

I was going to ask you about the register in a follow-up question. I know that the Family Law Association comments on that in its submission. Does anyone else have a view? Do other witnesses agree with Jennifer Gallagher?

Nadine Martin

I agree with Jennifer Gallagher. We would be asking solicitors who went on the register to take on potentially very difficult cases at a late stage in proceedings, when they had not had the opportunity to provide advice about potential outcomes. A solicitor would be taking on a lot of risk of being blamed by the litigant, if the outcome of the litigation was not what they wanted. Such risks are inherent in solicitors’ practice, but I do not think that it will be attractive for solicitors to come into cases at a very late stage.

Remuneration is an issue, but so is the professional risk that we take on, as solicitors, in conducting a proof and dealing with the determination from that. We also have to consider appeals. Appeal points could arise, perhaps because the solicitor was not fully prepared or the client did not agree with their argument on X, Y or Z.

There are lots of practical issues that need to be fleshed out before solicitors would feel comfortable about being included on such a register. If you want the right solicitors to deal with such cases, that will need to happen. The risk is that less-qualified people would take the positions and would not provide the fullest benefit.

Fulton MacGregor

Is that the consensus view of the panel?

Ruth Innes

We would need to ensure that the register had geographic coverage and that the remuneration was sufficient to ensure that solicitors would go on the register. Some professional practice issues would also have to be addressed. In principle, we agree that the register would be a good thing, but we point out that there are practical issues.

Fulton MacGregor

I want to go back to the scope of who are “vulnerable witnesses”. Scottish Women’s Aid raised a concern about the scope and said that the description should apply in all cases in which there are allegations of abuse in a section 11 case, regardless of whether there are other relevant civil or criminal proceedings. Has the panel read the Official Report of that evidence session? What are your views on that point?

Ruth Innes

The court still has the discretion to deploy a special measure if that is raised by the party seeking “vulnerable witness” status. As long as the court has discretion to use such measures, even in a case where there has been no conviction, the issue can be dealt with.

Rona Mackay

What do you think of child contact centres in general, and is regulation required? As a matter of principle, should such centres be used in situations where safety concerns suggest that supervision is needed?

Jennifer Gallagher

Contact centres are a very valuable resource and are often used to facilitate contact in difficult cases. In principle, we do not see any difficulty in regulation. However, regulation should be balanced to recognise that such services are offered by charities—for example, Relationships Scotland’s funding is under threat, so heavy regulation could prevent such providers from offering the service. There are difficulties regarding geographic availability of contact centres, which will have to be borne in mind in making any regulations.

Rona Mackay

Funding aside, do you think that contact centres should be regulated?

Jennifer Gallagher

Yes—there should be standards.

Janet Cormack

We suggested that there could be different tiers of centres—from those that facilitate simple handovers to those that provide guidance and assessment. That aspect should be taken into account.

Susan Edington

I feel that having centres for specific tasks would cause stigma. The profession does not send people to contact centres in the same way as the courts do. I am a chamber practitioner; it would be very rare for one of us to send people to a contact centre.

Another small point is that “contact” is the wrong word for such centres. If we called them child centres, family centres or something of that nature, people would be less likely to shy away from them. My clients would be happier to go if they did not think that they were places where only bad people go. The feeling is currently that they are places where parent couples who cannot parent are sent.

11:30  

Rona Mackay

For clarification, if you do not use contact centres, what do you use?

Susan Edington

We are negotiators: we negotiate with other members of the family to provide that service. We do not very often have domestic violence cases, but when we do, we look to other members of the families to provide that service, and we make sure of the safety of the children in that manner. I use collaborative law and other forms of dispute resolution, so we are perhaps able to explore those areas in a much wider way than the courts.

Liam Kerr

Section 16 concerns enforcement of court orders. It will impose a new duty on the court to investigate why there has been a failure to comply when a person fails to follow a court order. A number of stakeholders are supportive of that provision: the children’s commissioner and Children 1st in particular say that such investigations do not typically happen, in practice. That view contrasts with that of the Faculty of Advocates, which said that the power already exists and the courts normally investigate the circumstances anyway. The committee has also heard from the Sheriffs Association, which suggests that the new duty would prevent a robust approach to enforcement. The senators of the College of Justice say that it could encourage people to disobey a court order.

I am interested in the panel’s views on the matter, starting with Ruth Innes of the Faculty of Advocates.

Ruth Innes

Our understanding is that, if a court is going to find somebody in contempt of court, it will have had to investigate the reasons for that, because they are relevant to whether the person can be found to be in contempt. The reasons must be considered for an order to be varied or discharged under section 11 of the Children (Scotland) Act 1995. Our understanding is, therefore, that sheriffs and judges already carry out such investigations; they can appoint a child welfare reporter to investigate why something has not been obtempered. I have come across that and have reported to the court on such issues. We do not see how the provision would add to what courts currently do.

Liam Kerr

Just to be clear, would you say that the children’s commissioner and Children 1st have perhaps misunderstood the position and that, in your experience, investigations are already happening, therefore we do not need section 16?

Ruth Innes

Correct.

Liam Kerr

Thank you. Does anyone else want to comment?

Janet Cormack

You will not be surprised to hear that Clan Childlaw supports inclusion of the provision. We made the point about adding to the provision the need to have regard to the child’s views when investigations are taking place, so that that is on the face of the bill.

Liam Kerr

I understand that. Why should the committee prefer your view that there is a lacuna that we need to fill by imposing a positive duty, as opposed to the view of the Faculty of Advocates, which says that, in its experience, the provision is not necessary because such investigations already happen.

Janet Cormack

I am afraid that I cannot give any more detail on that right now. I would be happy to get back to the committee after consulting colleagues.

Liam Kerr

Thank you.

Jennifer Gallagher

It is important to note that when a court has made an order after hearing evidence, the process of dealing with contempt of court should not involve rehashing over and over again matters on which the court has already made findings in fact. One of the risks is that a party who is unhappy with the order that a court has made after hearing evidence, and who has set their face against abiding by the court order, could use the investigation element of the process as an opportunity to go back over ground that has already been determined by the court. Therefore, it has to be made clear that the investigation could not relate to those matters.

As Ruth Innes said, the existing contempt of court procedure involving the minute, answers and investigation would allow for such matters to be dealt with. Those cases will always be difficult.

That brings us back to what we talked about earlier, when we discussed early intervention with families before they get to court. When it gets to that point, and someone has set their face against abiding by a court order, there is, in practice, very little that the court can do to deal with that. Perhaps looking at the case in more detail before things get to that stage would be helpful, but that would not work in every case.

Liam Kerr

I will stick with section 16. Other evidence that the committee heard said that there could have been more problem-solving approaches or further sanctions in section 16 to deal with such situations. What other problem-solving measures should be in the bill and should they be in section 16?

Ruth Innes

Problem-solving measures are about saying, “The order isn’t working, for good reason, but the court has already determined that it is in the best interests of the child to have contact with a parent, so what can we do to resolve the issue?” Then, if the order is varied or discharged, the welfare of the child has to be looked at again, under section 11(7) of the 1995 act. We always come back to the welfare principle; the court already has the ability to solve problems using that section and by going back to the general provisions that it can make.

Liam Kerr

If we were to amend the bill to add in specific problem-solving approaches, you would argue that that would impose a restriction that is not there at the moment.

Ruth Innes

Exactly. The welfare of the child is the paramount consideration of the court. The views of the child have to be taken into account. The court has to have flexibility to deal with the case of the individual child, as has been suggested.

Liam Kerr

I understand.

Nadine Martin

In practice, many of my clients who have been on the other end of a recalcitrant parent’s failure to fulfil the obligations under an order feel as though there is nothing that can be done. There is a perception that it is difficult to resolve a situation in which one parent says, “I just won’t make this child available to you.” It is one of those situations in which there is no easy fix. There is a perception that, in some cases, the court will not do very much about it. We have proofs where the sheriff establishes that there is no reasonable excuse why contact is not taking place, but by that time contact has not taken place for a long time and you have a child who is saying, “I don’t want to go any more. It’s been a long time and I’m nervous about it.” That is a reflection on practice and what the people who come to me say—they say that they worry.

The question in the consultation paper that asked whether the court should be able to apply sanctions garnered a lot of response. Ruth Innes is correct in that the best interests of the child always have to be paramount, but sometimes imposing a sanction on the parent with whom the child lives does not benefit the child. I have many clients who have said to me that they do not feel as though they got a resolution at the end of the process—it is difficult.

Liam Kerr

Do you propose a solution to that?

Nadine Martin

That is the problem. As Ruth Innes just said, the minute you start to put in sanctions and problem-solving measures, the bigger question that arises is whether that is in the best interests of the child. Does it help the child to penalise the parent with whom the child lives? It is a difficult question, but I saw that it garnered a lot of attention in the answers to the consultation paper. Practitioners would like there to be an answer, but I am not quite sure what it is, other than reflecting on the child’s best interests.

Jennifer Gallagher

You could look at trying to address the underlying problems through avenues such as family therapy, but the problem with that is that it is not available throughout the country and it is not adequately funded. You would need a whole infrastructure of facilities if you were really serious about problem solving and trying to deal with underlying issues.

Susan Edington

I come back to the idea of a cohesive set-up, so that we can bring in all those things at a much earlier stage. The bill involves bolting things on to a system that needs a complete overhaul.

Fulton MacGregor

I have a question about the new duty at section 16. It is interesting that the majority of the panellists today—although not all of them—are giving a different view from the one that the committee has previously heard. The vast majority of the evidence, as Liam Kerr has said, has been to the opposite effect. I want to tease that out because, as a committee, we need to see where that is coming from.

Is it fair to say that not every case in which an order has not been complied with—for whatever reason—leads to proceedings for contempt of court?

Nadine Martin

That is correct. Someone has to initiate it and bring it to the court’s attention.

When a court order does not operate, the person who is supposed to get contact might say, “I cannot fund this,” or, “I do not want to go back to court—it’s not working; it’s too difficult.” Sometimes, people say, “My child is so upset when they are brought for contact that I’m not going to force the issue.” Unless the failure to obey is brought to the court’s attention, it will not independently check up and ask what is happening.

Fulton MacGregor

I understand that, if contempt of court proceedings are initiated, there will be an investigation, as Ruth Innes described. However, is it possible then that the new duty will be implemented in cases where proceedings for contempt of court have not been brought? I do not know whether you would call it a lower threshold, or whether it is just that proceedings have not been initiated, but is it possible that the court will use the new duty at an earlier stage?

Nadine Martin

Generally, in procedural terms, if a court makes an order—usually, a final order, or something approaching a final order, for example about the times when contact should take place—it may fix another hearing for everyone to come back and see how the order is working. However, if it is a final order, the case is finished unless someone comes back to the court and says that there are problems with it, that they would like changes, or that it is not happening. I am not sure how a court could, in practical terms, independently initiate an investigation into how well an order is working.

Jennifer Gallagher

I agree. My experience of dealing with such cases is that interim orders can be made at a reasonably early stage and that, where they are not complied with, that will generally be dealt with by a child welfare hearing at which the issues will be aired and the sheriff will look at what is happening and potentially make changes to what was ordered. Contempt proceedings would not necessarily be initiated at that point. As Nadine Martin says, that would be more likely for a final order that is not complied with. In such cases, when the client seeks advice, we might try to negotiate a resolution with the solicitor for the other party, but we will probably initiate a minute for failure to obtemper the court’s order, and then the whole process flows from there.

Fulton MacGregor

The majority of panel members do not see when section 16 would be used. Should the committee get more clarity on that?

Ruth Innes

As I have said, our impression is that the court is addressing the reasons for failure in those contexts. When it arises on an interim basis and a case comes before the court again because an order has not worked, the court addresses the reasons for that and considers varying the order or making a different order. When there are contempt proceedings, the court also looks at it at that stage.

As I have already said, section 16 does not add anything to what the court is already doing and has to do.

11:45  

Liam Kerr

I want to be absolutely clear about what happens in the process. Section 16 is about the court understanding why there has not been compliance. As part of that consideration, I presume that the court will hear representations from the people who are involved or their representatives. One party will say, “I didn’t comply, and my representative is going to put forward this case,” and the person on the other side will say, “You should have complied, because of X, Y and Z.” Will that not be the investigation into what has happened?

Ruth Innes

Yes—that is the process that we are talking about. On an interim basis, the person might come back to court and say that the court order is not working. For example, the individual who is acting for the person who has not been getting the contact will put a motion before the court, so the other side will have to come along and explain the failure to adhere to the order, and the court will then look at varying or discharging that order.

In relation to contempt proceedings, the person who says that there has been contempt will say that they have not got the contact that they asked for. The response to that will be the explanation as to why that has not happened, and the court will then investigate.

Liam McArthur

Earlier, I said that the Scottish Government has consulted on issues relating to confidentiality but that it chose not to include such provisions in the bill. Another issue that falls into that category relates to the rights of unmarried fathers. A consultation touched on the possibility of introducing the compulsory joint registration of births or of automatic parental rights and responsibilities being attached to unmarried fathers. Variants of those models are used in other parts of the world.

At the outset, Dr Barnes Macfarlane provided research to the committee, and she suggested that work should be done on the current law on unmarried fathers, because it is increasingly out of step in human rights terms. Does anyone on the panel take a view on the rights of unmarried fathers? Should something be done? I recognise that the number of such cases is just over 2,000—about 4 per cent—so we are not talking about vast numbers, but the issue is clearly of significance to those who fall into that category.

Ruth Innes

The issue ought to be looked at again, but the question is how that should be done. From my practice, and from looking at the rights of fathers in other jurisdictions, I am aware that such rights are narrower here than they are in other jurisdictions. The question is how we regulate that. If a father is not named on a birth certificate and then has to go to court to get parental rights and responsibilities, that seems disproportionate.

Liam McArthur

One of the previous witnesses characterised the situation by referring to the right of the child to know who their father is—in a sense, that is part of knowing who they are. However, you are right that we do not yet have a clear understanding of a route that might allow us to make some headway, and I recognise that introducing automatic joint registration or automatic PRRs might tip the balance too far.

I see that no other witnesses have a view on that issue, so we will wrestle with it on our own.

The Convener

That concludes our questioning. I thank the panel for attending. It has been a worthwhile session that has certainly given the committee an insight into the practical implications of some of the very complex issues that the bill seeks to address.

That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 4 February, when we will continue our evidence taking on the Children (Scotland) Bill.

11:49 Meeting continued in private until 12:25.  

The Deputy Convener (Rona Mackay)

Good morning, and welcome to the seventh meeting in 2020 of the Justice Committee. We have apologies from Margaret Mitchell and Fulton MacGregor. On behalf of the committee, I thank Jenny Gilruth for all her work on the committee and put on record our best wishes to her in her new role as a minister.

Agenda item 1 is 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 our witnesses for this morning’s evidence session, who are the Honourable Lady Wise, Sheriff Tait and Andrew Campbell, legal secretary to the Lord President, who is here as a supporting official. We have around 50 minutes for the evidence session, so I remind members to keep their questions brief and I ask witnesses to keep their answers succinct wherever possible.

John Finnie (Highlands and Islands) (Green)

Taking heed of your suggestion, convener, I will roll a few questions together.

I want to ask about children’s participation in decisions that affect them and, in particular, about removing the presumption that only children aged 12-plus can be asked for their views. What would be the practical consequences of that? Perhaps you could roll into that your thoughts on the possible new presumption that all children should have the right to express their views. The Children and Young People’s Commissioner Scotland believes that all children have the capacity to form a view, and Scottish Women’s Aid believes that there should be a right for all children to express their views. What would be the implications of that?

The Hon Lady Wise

I thank the committee for inviting us to give evidence. I am sure that the committee appreciates that, for constitutional reasons and due to practical and programming problems, it is quite difficult for sitting members of the judiciary to appear before a committee in this role. I am grateful to our administrations for releasing us to do this. Given the importance of the bill, we have made an exception on this occasion, as we would like to assist you as much as we can.

John Finnie

It is much appreciated.

Lady Wise

My answers will obviously be limited to my experiences as an individual judge, although I am familiar with and supportive of the written submission that the committee received from the senators of the College of Justice.

I am supportive of the removal of the legal presumption in relation to children aged 12 and over. The response of the senators was supportive of that, too.

On a practical level, we already elicit views from children who are younger than 12 and, sometimes, from those who are as young as seven, eight or nine. The concern about the presumption in relation to age and maturity at the age of 12 is that it could be interpreted as a disincentive to elicit views from children who are younger than 12. We have not had a practical problem with that, but we welcome the removal of the presumption, in that it would clarify that a case-by-case approach should be taken. Every child case is different, as is every child, because their circumstances and level of maturity are different.

We already take a case-by-case approach, and we intimate cases to all children unless we consider that they are too young or immature to understand or that they lack legal capacity. Removing the existing presumption would not have much of a practical effect, as far as the Court of Session is concerned—I will let Sheriff Tait speak about the practice in the sheriff court—so, for us, the practical implications would be few.

Changing to a positive presumption might be considered a matter of drafting, in which the judiciary should not be involved. There are various ways of expressing such things. A provision could say that, unless a child is insufficiently mature or lacks capacity, they should have the opportunity to express a view. Alternatively, it could be expressed as a positive presumption. Concerns have been raised about the difficulty of having such a presumption, because it would encompass all children—from babies onwards—unless they were made exempt. I will let Sheriff Tait speak to this in more detail but, if all children were to be encompassed by a positive presumption, there is a view—others might have already expressed it to the committee—that there would then need to be some form of capacity examination in every case, rather than simply leaving that to the discretion of the court, as happens in the current situation.

Sheriff Fiona Tait

I echo what Lady Wise has said. The existing presumption was put in place when the Children (Scotland) Act 1995 came into force, and since then we have moved on by some way. Sheriffs are now much more mindful of the ability of children who are younger than 12 to express their views. The committee might be aware that, recently, a lot of work has been done on the use of form F9. The whole purpose of that, and the message from the training provided by the Judicial Institute for Scotland at the time, was to remind sheriffs that much younger children can express their views, and can do so in different ways. That has raised awareness of the ability of younger children to give views.

I have no difficulty with removal of the existing presumption, but having one to the effect that all children are able to give their views would not necessarily be of benefit. Because of the statutory test, sheriffs are mindful always to give consideration to children’s views being taken where that is practicable.

John Finnie

I would like to follow up on one aspect. I do not mean this in any pejorative way but, for those on the bench, what training is provided on engaging with children whose views they are to elicit? The suggestion is that a one-to-one approach should be taken with such children, many of whom might have suffered adverse childhood experiences or might find the whole process traumatic. Sheriff Tait has mentioned the training associated with the use of form F9, but could, or should, more be done in that regard?

Sheriff Tait

In my experience, it happens fairly infrequently that sheriffs meet children to take their views. On training more widely, I point out that the Judicial Institute for Scotland runs a regular programme on aspects of child law, a key feature of which is consideration of various ways in which children’s views can be taken.

Would the committee like me to expand on the difficulties involved in sheriffs meeting children to take their views, compared with other methods of eliciting those views? There might be questions on that process later.

John Finnie

Perhaps you could do so briefly. You have rightly identified that children are all individuals with their own circumstances and set-ups.

Sheriff Tait

The important point is that each case is looked at individually. Quite a lot of information is available to the court from the written pleadings and the submissions of parties’ representatives. Also, the parties themselves are often present at hearings when we explore how such views should be taken. Therefore quite a lot of information is available about any individual child.

The concern about sheriffs or judges meeting children is not necessarily limited to the aspect of training. If the judge is to meet the child and take their views, there might be a tension because, ultimately, it is the judge who has to make the decision, and that is based on a number of views—the child’s views are not the sole factor and not necessarily determinative.

There could also be an issue in relation to transparency, because it is important that the child’s views are available to parties so that submissions relating to those views can be made. There is always the possibility of a challenge to the judge’s representation of the child’s views, which could result in a difficult position.

Lady Wise

I will add to that, although we might be straying into questions that you have on child welfare reporters.

John Finnie

Yes—there will be questions on child welfare reporters.

Lady Wise

We can deal with those later. The important message is that, in our experience, it is very much for the individual judge to decide the method for seeking the child’s views, in conjunction with the representatives who make submissions about that.

In the Court of Session, we deal with a number of types of child cases. We have international child abduction cases in which children have allegedly been removed from their country of habitual residence and might have a convention-relevant objection to return to the other country. We deal with cases in which a parent wishes to move across the world—to Australia, for example—and the children’s views on that are elicited. We also have domestic cases in which there might be allegations of abuse and in which the children have to be questioned carefully.

In every individual case, our experience is that what works best is for the judge who is presiding over the case to decide whether someone with expertise in speaking to children, such as a child psychologist, requires to be instructed; whether a member of the bar is best placed to elicit the views because of the acrimonious nature of the dispute; or—this happens extremely rarely and is not something that we tend to do in the Court of Session—whether they should speak to the child themselves.

There are different ways in which to elicit children’s views, but we can come back to that when we talk about child welfare reporters, the use of whom is one of the most common methods to elicit the views of children, as well as to look at other matters. The important point is that there should not be a one-size-fits-all approach; we have to have the discretion to choose how best to elicit those views.

The Deputy Convener

Section 15 of the bill is about explaining decisions to children. How would that work in practice? We received a submission from the Sheriffs Association, which said that the duty could be “unduly onerous”. What is your opinion on that?

Sheriff Tait

It is important to think about how it would work from the child’s perspective. A number of decisions in relation to a child are made in the course of an action. Rarely—although it is possible—some of those might be pre-service; for example, emergency orders might be made before the action has been served. Orders might be made on an interim basis at an early child welfare hearing while further information is obtained. A number of decisions might be taken, so there could well be a concern about a child’s ability to cope with the regular meetings that would be necessary for those decisions to be explained. You will appreciate that children are not typically present at those hearings, so there would necessarily be a time delay before a decision could be explained to a child, and it is likely that, before that, the child would meet a parent who would indicate what was going to happen.

From the child’s perspective, there would be a concern about how exactly it would work. It is very much down to the individual child; some children might welcome it, but others might find the situation intimidating and possibly unwelcome.

The Deputy Convener

Who would be best placed to explain those decisions? You said that actions can be quite complicated and have different stages. You mentioned a parent, but what if the parent did not understand?

Sheriff Tait

If there is a concern that, because of the dispute, the parents are not able to safeguard the child, that is the type of situation in which a curator might already be appointed to the child.

09:15  

The Deputy Convener

However, in principle, you agree that the child should know why the decision has been made and how it has been made.

Sheriff Tait

Yes, but I would have concerns about a situation in which a report is made to a child on a regular basis. It depends on the individual child. We must be careful not to pull the child too much into the proceedings. That could be a burden for the child.

We must also remember that not all the information that informs the court’s decisions is apt to share with a child. For instance, there might be separate criminal proceedings or allegations, and we should carefully consider whether it is appropriate to share that information with the child.

Lady Wise

I echo that. The concern of the senators of the College of Justice is the mandatory nature of the provision as drafted. At present, if there is a concern that a decision of the court would be inappropriately conveyed to the child or that it would not be explained properly in the adversarial process, parties can bring that to the court’s attention. Where there is a child welfare reporter, the reporter might highlight that and be instructed to convey the decision to the child. Only in the rarest of cases would a parent with on-going responsibility for a child not be in a position to convey the decision to the child. Parental responsibilities stretch to having to guide the child through difficult situations, such as the outcome of a court process. If the court was to take on that new responsibility, a number of practical problems and challenges would arise but, at the moment, we do not perceive problems that have to be addressed. We do not have reports of children not having decisions explained to them in a way that allows them to move on after a litigation.

Liam McArthur (Orkney Islands) (LD)

I will stick with the sharing of information. The Scottish Government originally consulted on potential legal provisions for the sharing of confidential information where that was seen to be in the best interests of the child and where the child had an opportunity to express a view. Those provisions were not taken forward. We have heard concerns from some stakeholders that highly sensitive information that a child provided in the expectation that it would not go out of the room could now be brought into scope. How is that confidential information currently managed? Are there concerns that the bill does not go further to protect the confidentiality of sensitive interactions with adults in the system?

Sheriff Tait

In a case where there are sensitive issues, we anticipate that a child welfare reporter or curator would have been appointed. When a child welfare reporter is appointed, a detailed form F44 gives careful directions to the reporter. One section of the form deals with the issue, in the first instance, of whether the children’s views should be reported separately to the court and therefore held as confidential. At the child welfare hearing, when that report is available and the views are separately available to the court, there will require to be a discussion in relation to the status of the views. Where appropriate, the views must be shared in a way that is in the best interests of the child and, in so far as possible, mindful of the issue of confidentiality. You will appreciate that the court is making a decision that is based on information, so it has to give some indication of the factors that have informed that decision.

Liam McArthur

One concern was about the proportionality of the information that is shared. Rather than handing over case files lock, stock and barrel, the information that is relevant to a particular case could be extracted and shared appropriately, but other sensitive information that has no bearing on the case could remain confidential.

Sheriff Tait

That is going beyond simply the views of the child.

Liam McArthur

Yes.

Sheriff Tait

The recovery of documents would be by court order. There would be an application involving a specification of documents and the court would give careful consideration to the information that is being sought and how it would assist. Mechanisms for confidentiality are in place for document recovery for disclosure, and that is managed by the court.

Lady Wise

Liam McArthur mentioned recovery of files and their being handed over lock, stock and barrel. That does not happen under the current system, because—unless the child is a party to the proceedings, which is very rare—documents are recovered for the process and are dealt with sensitively and appropriately by the representatives, the judge and everyone in the courtroom. We also anonymise children’s cases. Therefore, when we reach the stage of a court decision or determination, there is nothing to identify the child, and sensitive or confidential information is treated in a way that means that there is no identification of the child.

Liam Kerr (North East Scotland) (Con)

Good morning. If a court order has been disobeyed and the court is considering a finding of contempt or a variation of that order in response, section 16 of the bill imposes a new duty to investigate the circumstances behind the breach of the order. Some of the evidence that has been submitted to the committee has supported that duty and suggested that that does not currently happen in an investigation. On the other hand, the Faculty of Advocates has suggested that that investigation will happen anyway. We have received other evidence that suggests that such an investigation could prevent robust enforcement and encourage people to disobey the initial order. What is your view? Can you help the committee to understand what currently happens?

Lady Wise

We have recent experience of contempt of court orders that relate to children, whereby the courts have made orders and they have not been adhered to. If a child has not been handed over from one parent to the other or from one jurisdiction to the other, we would deal with that case in the Court of Session. Currently, in those proceedings, there is always an opportunity for the party who is said to be in breach of the order to respond. It is important that the defence that is typically stated is that the breach of the order was not wilful—that it had perhaps been too difficult to encourage, persuade or direct a 12-year-old child to go along with the order that the court had made. If the concern is that the current procedures do not take into account that there might be circumstances outwith a parent’s control that mean that an order could not be obtempered or complied with, that consideration is already built into the current way that we look at alleged breaches of orders.

The provision, as currently drafted, could read as an invitation to a person who does not wish to comply with an order to raise the question of variation or discharge of that order as an answer to an allegation that they had breached it. I reassure the committee that cases in which it is said that someone has failed to obey an order or has breached an order are dealt with carefully. There is an opportunity for the person against whom the allegation has been made to be heard, to be represented and to address the allegation fully. The court would never impose any sort of punishment without being satisfied that it had conducted a fact-finding exercise.

Sheriff Tait

I echo that. It is clear that the court will make a decision in the best interests of the child, so it must be of concern if a parent is not prepared to observe that order. If a parent considers that the decision is not in the best interests of the child for whatever reason, they have the right to appeal the order. It is important that a proposed section of the bill does not confuse an appeal against a decision with the proceedings that look at the failure to obtemper.

Liam Kerr

I appreciate that you might not want to answer this question directly, but is it your view that section 16 might be unnecessary and that the committee should consider not agreeing to it?

Lady Wise

The view of the senators of the College of Justice, as expressed in their submission, was that the provision is unnecessary. That was for the reasons that I have explained.

Liam Kerr

I am grateful for that response.

In 2018, the Scottish Government consulted on alternative sanctions, but they do not appear in the bill. Do you have a view on the sanctions that are available and the process behind the sanctions? Could those problem-solving approaches have been in the bill?

Lady Wise

It follows from the answer that I have just given that our experience is that the current procedures, with the opportunity to be heard and the court’s wide discretion to impose whatever sanction is appropriate, are adequate.

Sheriff Tait

Again, I echo what has Lady Wise has said.

Liam McArthur

Thank you very much.

Shona Robison (Dundee City East) (SNP)

I return to the issue of child welfare reporters, which we touched on earlier. I have a number of areas to explore, the first of which is the local or national lists. You will be aware of the discussion about them. There are concerns about the lack of consistency across the country and issues around training requirements, skills and experience, and the quality and costs of child welfare reports. Is there merit in changing the approach? If you think that management of the lists should remain local, how could those issues be addressed?

Sheriff Tait

Currently, we have a local system, and my experience of that system is that it works well. We have a number of experienced child welfare reporters, and the quality of reports that they produce is high. It is accepted that training would be of benefit, and the focus should be on training rather than on changing the type of person who is appointed. When we look at individual cases, it is helpful to know the local skills and who the reporters are, and to have the discretion and flexibility to appoint a reporter who has skills that would be of benefit in a particular case. The flexibility that we currently have is of value, but training is, of course, always to be welcomed.

09:30  

Shona Robison

Could those without a legal background—a psychologist, for example—have that set of skills, as long as there was training?

Sheriff Tait

Yes. Currently, the court considers who is the most suitable person. In more complex cases or in light of the needs of a specific child, that might be a child psychologist. We have that flexibility. In some—although relatively few—circumstances, a report might be sought from the social work department. We do not appoint only solicitors as child welfare reporters; other parties can be appointed in appropriate cases.

Shona Robison

Issues have been raised about the scope of the reports that courts request. Could a court routinely ask a child welfare reporter to consider a child’s relationship with other family members, such as siblings or grandparents? Such issues have been raised in the evidence that we have heard.

Sheriff Tait

When a decision is made to appoint a child welfare reporter, the pleadings for both sides are available to the court, which also hears oral submissions. The court will be aware what the issues are before the hearing. It would know if there was an issue to do with maintaining contact with the wider family and whether that would benefit the child. If that is a specific issue, the court can direct the child welfare reporter to interview the relevant parties and report on that. In my experience, reporters look holistically at the child’s situation, so we tend to know about the significant roles of other family members.

Shona Robison

The bill’s policy memorandum suggests that fee rates for child welfare reports

“could be set in a variety of ways such as by using an hourly rate; by report ... or by page”.

Do you have a view on the setting of fees?

Sheriff Tait

I do not think that it would be appropriate for me to comment on that. I am not involved in the fees.

Shona Robison

You said earlier that, in your experience, the system works reasonably well. Do you accept that that is not necessarily the case elsewhere? In the evidence that we have heard, concerns have been raised about consistency, training and quality. Although your experience has been different from that, do you accept that that is not the case elsewhere?

Sheriff Tait

Again, it is difficult to comment on that. I have sat in a number of sheriff courts in Scotland, and I have not found a problem with the quality of the reports.

Lady Wise

A number of issues arise from the proposals on child welfare reporters. A child welfare reporter will normally be instructed or appointed at a relatively early stage in a case, before the court has conducted the ultimate fact-finding exercise. In my experience, the purpose of the child welfare reporter is to assist the court with an interim situation, pending final resolution of the case.

It might seem curious to some people that we send lawyers out to speak to children and to investigate the circumstances in which they live, but the lawyers in the case understand the backdrop to the dispute and that they have to deal in a particular way with allegations that have been made but which are, as yet, untested. They also understand that they cannot usurp the function of the court. It is not for them to tell the court what to do or even, in most cases, to recommend what the court should do; they provide information that the court cannot get for itself. It is for that reason that the current system, in which there is in the court a list of those who are willing and able to carry out that function and have the necessary protecting vulnerable groups certification, is a helpful method of being able to regulate whom we send out for a particular exercise.

I will not repeat what I said earlier about the very different types of case for which we might have to do that. It is, of course, helpful that there is a variety of people on the list, whether or not they are solicitors—or advocates, as they usually are in the Court of Session—and it is helpful that the court maintains the list, because there would be practical difficulties if that were not within the court’s remit. That works well at the moment.

The judiciary has repeatedly raised the training issue. It is important that all those who are sent out to examine the circumstances in which children live, whether or not they also elicit the views of the child, are properly trained. In the Court of Session, we have the benefit of the very active Advocates Family Law Association, which has provided training for its members—I understand that it is willing to continue to do so. There is a good relationship between bench and bar, such that the court is satisfied that those who are currently on the list are suitable and appropriate. I am not quite sure how that would work if the list was not maintained and regulated by the court.

I absolutely agree with Sheriff Tait that the judiciary cannot comment on financial matters or their implications. However, in the Court of Session in particular, it is less likely that the parties will qualify for legal aid. In our system, the default position in our court rules is that one party or the other bears the burden of the cost of a child welfare reporter in the first instance, and the court then has the power to regulate that later on in dealing with the expenses of the case.

Shona Robison

For absolute clarity, you talked about trying to match the appropriate person to the case. Are you saying that they do not necessarily need to have a legal background, as long as they have the skill levels and qualifications and checks are in place?

Lady Wise

Yes. We find that having legally qualified child welfare reporters works well for the reasons that I have explained—their understanding of the backdrop, and the nature of untested allegations and the adversarial process. They will be lawyers who already conduct cases in the Court of Session, but they would be independent for that role. Like Sheriff Tait, I have no difficulty in principle with somebody who is not legally qualified in a suitable case. I gave the example of appointing child psychologists in appropriate cases. There have been situations in which that particular expertise has been of great assistance to the court.

Shona Robison

Okay. Thank you.

The Deputy Convener

I remind members and witnesses that we are up against the clock, so we should keep our questions and answers succinct.

Liam McArthur has a supplementary question.

Liam McArthur

Panel members might have seen additional evidence that has come from Dr Sue Whitcombe, through the British Psychological Society. She said:

“The Law Society of Scotland Standards of Conduct Rule B1.10 ... clearly states that”

solicitors

“must only act in those matters where they are competent to do so.

For many years, solicitors have been drawing conclusions and making recommendations on matters of child welfare when they do not have the appropriate professional skills, nor competence, to do so.”

Although the understanding of the legal process and the backdrop is very much the preserve of solicitors, the point that is being made is that their strengths do not necessarily lie in matters of welfare and getting to the understanding of such issues as attachment, and that may call into question their competence to do it. I would welcome any comments from the panel on those statements.

Sheriff Tait

It is my experience that, in more complex cases, for instance involving issues of attachment or psychological issues, child welfare reporters do not seek to reach a conclusion that is outwith their competence but signpost to further investigation. That goes back to the issue of a child welfare reporter normally being appointed at a very early stage. There might be certain factual disputes that a court needs further information about. In providing that further information, the child welfare reporter might take the position that there should be the instruction of a child psychologist or another form of therapist, or family therapy. In my experience, that is often reported back to the court. If a reporter were to seek to reach a conclusion that was outwith their competence, the court would be aware of that and concerned about it.

Lady Wise

It is not the role of the child welfare reporter to make recommendations about what should happen in the case overall. It is very much for the court to decide, through applying the legal test, what is in the best interests of the child. All that matters in child cases is what is best for the child. The child’s welfare is the paramount consideration for the court. The purpose of any reporter—whether they are a trained child psychologist or a member of the bar—is to assist the court in having all relevant material and information before it so that it can make a decision. It is primarily an information-gathering exercise.

The Deputy Convener

I want to ask about contact centres, which are covered in section 9. In evidence to the committee, domestic abuse organisations and several children’s organisations have questioned whether the courts should authorise contact between a parent and child that would, without professional supervision, be unsafe. Why are people referred to contact centres, particularly for supervised contact?

Sheriff Tait

I cannot imagine a situation in which a court would consider that it was in the child’s best interests to order contact if there was concern about risk to the safety of the child, so—

The Deputy Convener

I am sorry to interrupt, but do you accept that that happens? Supervised contact is regularly ordered at contact centres.

Sheriff Tait

I am sorry, but I am not certain about the circumstances that you are referring to, so it is difficult for me to answer that question. Contact centres are used regularly. Members will be aware that there are two forms of contact: supported contact and supervised contact. It is difficult to envisage that a court would order contact if it considered that that was not safe for the child.

The Deputy Convener

Okay. I want to ask about the regulation of contact centres. The submission from the Summary Sheriffs Association says that contact centres

“should not be disadvantaged by regulation”,

but the Sheriffs Association says in its submission that

“Regulation of contact centres is welcomed in principle”,

so there seems to be a bit of a disconnect there. We have heard some concerning evidence about contact centres from children who have experienced them and from women’s and children’s organisations. In the evidence that we have received, there is the almost unanimous view that there should be some sort of regulation of contact centres. Are you prepared to comment on that?

Sheriff Tait

I am afraid that I do not have direct experience of those concerns, so I do not think that I can assist further with that question. I am sorry.

Lady Wise

I do not have direct experience of contact centres, but I understand that they are a valued resource. In the sheriff courts in particular, orders will be made for contact to take place at contact centres. I suppose that the only concern about regulation would be about whether it would reduce the number of available contact centres. However, I do not have experience of them.

The Deputy Convener

Relationships Scotland, which provides the service in contact centres, as you know, said that there are sometimes gaps in the information that the contact centre gets from the court and the contact centre does not get as full a picture as it would wish of the family concerned. Do you agree that there is a gap there that should be addressed? Are you aware of any issues there?

09:45  

Sheriff Tait

Again, that has not been fed back to us. I had one case where the contact centre reported a concern—before the contact started, at the point of the intake appointments—that it may not be suitable. That information was fed back and there were further inquiries. By that point, there had been some developments with the social work department and the contact took place under its supervision. That was a dynamic situation and the position had changed from the point when the court made the order.

That has been my only experience where a concern has been relayed from a centre, and it was relayed appropriately. It was not because of anything that happened there, as the contact did not start in the centre. There was a development and there was social work involvement after the order was made. The concerns that the centre raised were taken on board and alternative arrangements were made.

The Deputy Convener

I think that the concern is that, without regulation, there is no framework for standards throughout the country, so they can be different. People in one area will have one experience and people in another area can have a different experience. Given that we have heard some concerning evidence on the matter, do you think that the courts should have access to specialist risk assessments before they refer to a contact centre? Relationships Scotland has suggested that that might help.

Sheriff Tait

There are cases where risk assessments are undertaken. They are not undertaken routinely, but they can be undertaken where the facts in the case indicate that that would be appropriate.

Lady Wise

I do not have anything to add.

The Deputy Convener

Thank you.

James Kelly (Glasgow) (Lab)

I have some questions on sections 4 to 7, which deal with support for vulnerable witnesses, and their practical impact on court time. Sections 4 to 6 concentrate in particular on the proof in cases and section 7 concentrates more on child welfare in family cases. Obviously, it is a concern if there are delays in court cases. Do you think that sufficient resources and infrastructure will be in place to provide the additional assistance without causing additional delays?

Sheriff Tait

We are used to a similar provision operating in the criminal courts, and it seems to operate without too much difficulty. The provision in relation to representation so that, where there are allegations of domestic abuse, a party is not questioned by the alleged perpetrator are certainly to be welcomed. Issues might arise in relation to child welfare hearings, which are important hearings before the court can come to a proof.

At present, when the court, normally though court staff, is made aware that there may be difficulties with parties being in the same room because of bail conditions or other factors, we can make arrangements for there to be separate waiting areas, for the parties to arrive at the hearing at different times or, perhaps, for there to be a shuttle hearing. Thus far, requests for such things have been made relatively infrequently, but we have been able to accommodate them.

James Kelly

Section 7 is about special measures that could be introduced. There has been a suggestion that the measures could affect problem solving. Can the measures be progressed without there being delays to the timescale for the resolution of cases?

Sheriff Tait

Witness support services will be important, so their availability will be an issue. The special measures will become an integral part of timetabling and the conduct of proofs, in the same way that they are an integral part of the conduct of criminal trials. They should not occasion delays.

Lady Wise

In family actions in the Court of Session, I have recent experience of using the provisions of the Vulnerable Witnesses (Scotland) Act 2004 to adopt the same sorts of special measures that we routinely use in the High Court—such as the use of screens, the presence of a supporter and evidence being given through a live link. We already look at those considerations. The prohibition on questioning by a party if there are allegations of the type that is mentioned in the bill is a useful addition to that.

James Kelly

Section 21 looks at child welfare when there are delays in court cases. Is that a helpful provision?

Lady Wise

A body of case law already directs us that any delay or protraction in proceedings relating to children is likely to be detrimental to their welfare. Therefore, the courts and the judiciary are already aware of that.

James Kelly

Is section 21 helpful in that regard, or is it not required?

Lady Wise

From my perspective, as a judge who hears such cases, I would not regard it as a necessary provision. It does not add anything to the existing position, which is that we are all well aware that delay can be disadvantageous to children. Children are at the centre of what we do in the courts. I do not know whether it would assist in resourcing, if it was felt that there were not enough courts or judges available. That might be more important in the sheriff court than in the Court of Session, where we have two dedicated family law judges, which works well. Unless there is a feeling that delays are being caused because there are insufficient judicial resources, I would say that at the moment this is a factor that is uppermost in our minds when we deal with child cases.

James Kelly

Is there a case for prioritising parenting dispute cases over criminal and civil cases?

Lady Wise

In the High Court and the Court of Session, criminal matters generally take precedence over civil matters. In the Court of Session, we are fortunate to have good administrative arrangements, and the keeper—the person who allocates the cases—always gives priority to a child’s case. Other types of family cases are also given reasonable priority but not so much priority if they do not involve children. To avoid the delays that might have happened in the past, we already give priority to children’s cases.

James Kelly

Thank you.

The Deputy Convener

In the few minutes that we have left, I will go back to the question of judicial training. Do you agree with several stakeholders who suggested that there needs to be greater judicial training on topics such as domestic abuse, child development and effective communication with children? What is your view on specialist family sheriffs or the creation of specialist family courts? Would that be helpful to address some of the issues with regard to delays that the courts are facing?

Sheriff Tait

Again, judicial training is managed by the Judicial Institute for Scotland. I am not certain whether it has given evidence in the current consultation, but I can say that it holds annual child and family law training sessions. In addition, in the past 18 months or so, all members of the judiciary—at every level—have undergone specific training on domestic abuse. I think that that training programme is now complete.

I am aware that the sheriffs principal and the Lord President have responded on the issue of specialist courts. The organisation of business is clearly within the remit—

The Deputy Convener

I am sorry to interrupt, but I want to clarify a point. Is the training that you mentioned mandatory or voluntary?

Sheriff Tait

The training on domestic abuse was mandatory and was undertaken by all members of the judiciary. It was a one-day course that was run with considerable input from Scottish Women’s Aid and various other organisations. We attended in person and carried out various exercises, and there was also around five hours of distance learning in advance of that day.

Lady Wise

I go back to the issue of specialisation and having dedicated family courts and family judges. As I have already mentioned, in the Court of Session we have two specialist family judges, of whom I am one. In large sheriff courts—such as Edinburgh, where Sheriff Tait sits—there is a similar regime.

In rural courts and those with fewer sitting sheriffs, it is more difficult to have absolute rules about specialisation. However, sheriffs are, of course, trained to deal with a wide range of civil and criminal matters. As Sheriff Tait has mentioned, additional training is carried out through the Judicial Institute for Scotland, on behalf of the Lord President, which works well.

The Deputy Convener

Thank you very much. That concludes our evidence session, which has been very helpful for the committee.

I suspend the meeting briefly, to allow our witnesses to leave.

09:57 Meeting suspended.  

09:58 On resuming—  

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s eighth meeting in 2020. We have received no apologies.

Agenda item 1 is 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 Ash Denham, the Minister for Community Safety, and her Scottish Government officials. Simon Stockwell is head of the family law unit, Shona Spence is from the looked-after children team, and Jamie Bowman and Victoria Morton are from the legal directorate.

I understand that the minister wants to make a short opening statement.

The Minister for Community Safety (Ash Denham)

I do. Good morning and thank you for inviting me to give evidence on the Children (Scotland) Bill. I have been watching the committee’s evidence sessions with great interest and I am very interested in some of the things that have been raised during the process.

The bill aims to improve the family courts for children, balancing the interests of those who are affected—in what can often be difficult times for them personally—in an effective court system. We believe that 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, that the views of the child are heard, that we further protect victims of domestic abuse and their children in family court proceedings and that we have further compliance with the United Nations Convention on the Rights of the Child. I am happy to consider any ways in which the bill can be improved to meet those goals, and I look forward to receiving the committee’s views in due course.

I will mention three areas on which stakeholders have commented. The first is to do with ensuring that the child’s views are heard. I am aware of the suggestions that there should be a positive presumption that all children are capable of giving their views. Of course, the majority of children are able to express their views, but there will be circumstances involving extremely young children and children with severe learning difficulties who are not able to form views, and the legislation needs to include options for those exceptional circumstances. I would expect such exceptions to be used only infrequently, but the bill provides for them. To strengthen the provisions, we are removing the presumption that a child aged 12 or over will be mature enough to give their views, which has in some cases worked against that outcome.

Secondly, I understand that a number of stakeholders have suggested that the bill should include provisions on child support workers. Such workers may play a useful role in supporting children to give their views. However, we would need to ensure that minimum standards of training and experience were set out in legislation in order to ensure that there was a consistent approach and the best interests of the child were maintained. Further work would be needed to ensure that there was a joined-up approach so that any provisions would work with existing support and advocacy systems and other proposed Scottish Government work. As the committee will be aware, we have committed in the family justice modernisation strategy to consider that.

Finally, I would like to focus briefly on the comments that stakeholders have made on the regulation of child welfare reporters and contact centres—

The Convener

Minister, I will stop you there. You are going into territory on which we will be questioning you in some detail, so, in the interests of time and the best scrutiny of the bill, we will move straight to questions.

John Finnie (Highlands and Islands) (Green)

Good morning. My question is on that issue. We have heard that even very young children are able to offer views on issues that affect them. Given the comments that you have made, do sections 1 to 3 of the bill as they are presently configured suggest that some children are not capable of giving their views?

Ash Denham

With appropriate support, even really quite young children can express views on matters that affect them, if they are approached in the right way and they can express their views in a way that suits them. The bill removes the presumption that a child aged 12 or older is mature enough to decide whether they wish to give their views. The removal of that presumption is proposed because of concerns that it has led to the views of younger children not being taken, which was obviously not the intention when the provision was introduced.

The bill provides for all children, including younger children, to have an opportunity to give their views. As I said in my opening statement, there are a number of very limited exceptions, such as when

“the location of the child is not known”

or

“the child is not capable of forming a view”.

An exception might apply if the child has a severe learning disability. As I said, however, I would expect those exceptions to be used extremely infrequently. We have set it out in that way because we are seeking to take a practical approach and ensure that the provisions are workable.

John Finnie

Does that not inevitably lead to a position that the bill should be framed in such a way that there is a presumption that all children will be capable of forming a view? That is the position of the Children and Young People’s Commissioner Scotland, for example. You could take the view of Scottish Women’s Aid, which is that every child has a right to express their views.

Ash Denham

I am aware that some of the stakeholders have made that case. The right for children’s views to be heard in matters that affect them is protected by the UNCRC, article 12 of which states that a

“child who is capable of forming his or her own views”

has

“the right to express those views”.

The provisions in the bill follow the UNCRC wording. The bill requires the court and other decision makers to give all children who are

“capable of forming a view”

the

“opportunity to express”

that view. The right of children to express their views is built into the bill. It just contains the limited exception to cover the cases that I have set out. The starting point is that all children are capable of forming a view, and that is the provision in the bill.

John Finnie

We have heard various ages being quoted. An arbitrary figure such as 12, as it was, is not seen as being fit for purpose. Will the bill bring sufficient clarity when it comes to how practitioners operate? We have heard different views from practitioners, which are often associated with an age bracket rather than necessarily with a capability. That is how I understood what they said, anyway.

Ash Denham

The bill seeks to create significant change in the area. We want sheriffs and the courts to find ways to engage with children—even young children—if they want to express a view, and to enable children to express views in a manner that is suitable for them. I hope that there is enough clarity there for the courts. We want to give them guidance, but we also want to give them flexibility so that they can decide in each individual circumstance what is appropriate.

John Finnie

You talk about flexibility, minister, yet the financial memorandum includes cost estimates only for child welfare reporters and judges speaking directly to children. We have heard from various witnesses—and, indeed, you have acknowledged—that there are a range of ways in which it could be achieved. Should we be concerned that the financial memorandum specifically mentions only two methods? Is it not the case that there could be additional costs if other people are involved in acquiring children’s views?

Ash Denham

The bill makes it clear that there are a number of methods that could be used, but it is not intended to be an exhaustive list. We know that there will be costs associated with that, and the financial memorandum is quite detailed on that point. It represents our best estimate of what the costs will be. If other methods are used to obtain the child’s views, the associated costs could be higher or lower. We have costed child welfare reporters speaking to the child. If the sheriff was to write a letter instead, there could be a cost associated with that. Perhaps Simon Stockwell can give a little more detail on that.

Simon Stockwell (Scottish Government)

What the minister says is right. The financial memorandum looks at two ways in which the child’s views could be taken. The two most likely ways are via child welfare reporters and via the court speaking directly to the child. As Mr Finnie said, there could be other methods of getting the child’s views, and decisions could be explained by letter or through the use of material that is picture based rather than word based.

In essence, there is a balancing act on costs. If higher costs are associated with other methods, lower costs might be associated with using child welfare reporters and using the court directly. To an extent, it is swings and roundabouts when it comes to costs.

Shona Robison (Dundee City East) (SNP)

As you are aware, section 15 provides that the court must explain to the child court decisions that will affect them, and the financial memorandum says that most decisions will be explained by child welfare reporters. The committee has heard evidence on the proposed approach, and some stakeholders said that there might be practical issues, for example because a child welfare reporter might not be in court when a decision is made. It has been argued that the court might not have the resources to ensure that decisions are properly explained to children before the new arrangements take effect or before the parents have provided an explanation to the child.

Are you aware that those concerns have been expressed? Do you accept that there might be issues in that regard? If so, what legislative or non-legislative solutions might there be to overcome people’s concerns?

Ash Denham

I am aware of the concerns about how the provisions will work in practice. The starting point is that a child deserves to receive an impartial explanation of decisions that affect their life. It has been suggested that the parents should explain such decisions, but I think that the committee understands that, in what is often quite an adversarial setting, it can be demanding to expect a parent to explain a difficult situation to a child in an impartial way. Not providing the information could be detrimental to the child’s best interests.

We do not expect the court to explain every single decision to the child. We would certainly not expect the court to explain procedural decisions and so on; the provision is about explaining to the child important decisions that will affect them. We are trying to take a balanced approach: we are asking the court to consider how decisions can be explained impartially to the child, but we are building flexibility into the approach so that, if the court thinks that it would not be in the child’s best interests to explain a decision, it can take a different course of action.

There are a number of routes whereby a court can explain a decision, so there could be practical solutions in that regard. For example, an explanation will not have to be given face to face, although I am sure that some sheriffs will take that route. An explanation could be given electronically or in writing.

We anticipate that many such explanations will be provided by the child welfare reporter, who might not be in court. I think that we envisage a slight change in the role of the child welfare reporter, whereby we expect reporters to become more involved in cases. However, even if the reporter is not in court, they will be able to receive a copy of the written judgment, with an explanation of the reasoning behind it, so that they can deliver the information to the child.

Shona Robison

Some of that might hinge on there being an expansion in the professional training of child welfare reporters in order to enable a wider pool of people to do the job. Do you envisage growth in the pool of child welfare reporters so that children may have decisions explained in each case?

Ash Denham

Sure. It will need to grow. Obviously, we will need to keep an eye on the situation in order to ensure that enough professionals are available to do the job. We are looking at bringing in other professionals who can deliver the best service to the child. That might well include lawyers who have worked as child welfare reporters; equally, it might include social workers and psychologists.

The Convener

I have a question about whether there should be local or national lists of reporters. The Faculty of Advocates and members of the judiciary told us that there are benefits to retaining lists of reporters and curators ad litem at a local level. For example, such an approach would allow a sheriff to use their local knowledge to appoint the person who was best suited to an individual case. Do you agree?

10:15  

Ash Denham

I am aware that that evidence has been given to the committee. Child welfare reporters play an extremely important role in supporting children and ensuring that their views are heard during the court process. However, points have been raised about a need for greater consistency across the country in how that works. The bill is therefore aimed at ensuring that child welfare reporters are, in the first instance, suitable and that they have a consistent level of training and qualifications and are subject to a Scotland-wide appointment process. I consider that a centralised list of child welfare reporters is the best way to achieve that consistency across Scotland.

The Convener

Have you considered the compromise option that the Faculty of Advocates has proposed, which seems to give the best of both worlds? The faculty suggested that the regulatory regime could set national standards for certain issues such as training, but some local discretion could be retained, perhaps in relation to appointments. We would therefore be clear that those who were appointed would adhere to national standards, but there would be the added value of having local knowledge.

Ash Denham

We have considered that. We should bear in mind that there will be economies of scale from operating the list centrally. If, as you suggest, the lists were to be maintained by the courts at local level, there might be additional resource requirements. We are keeping an eye on that.

The Convener

Might there be advantages to having a local list, such as benefits relating to travel and people being available? Court business can change quickly. A case might not go ahead and the next case might be heard. That could present issues if there is a national database. Have you considered the logistical practicalities?

Ash Denham

You raise a fair point. We certainly would not expect somebody from the Highlands to produce a child welfare report in the Scottish Borders, for instance. All those issues will be considered. However, it is important that we move towards consistency in quality and training and that we provide the ability to complain about a child welfare reporter, and a centralised list is the way to achieve that.

The Convener

Will there be flexibility in the centralised list? Will account be taken of the geography and the logistics? We know that court business is unpredictable, so I would have thought that having flexibility and responsiveness could save money and make for more efficient running of the courts. The suggestion seems to be worth considering, and it would not compromise the national standards that you are keen to ensure are in place.

Ash Denham

We absolutely would not want to compromise the standards. We will consider all those issues.

I ask Simon Stockwell whether he wants to add anything on that.

Simon Stockwell

As the minister said, we will consider the fact that, for instance, it might be difficult for a child welfare reporter who is based in the Highlands to work on a case that is based in the Borders. We will consider whether the list can set out that child welfare reporters will operate only in certain parts of the country.

Another reason for having a national list is that we have found—and research has suggested—that the ways in which child welfare reporters are appointed are not as transparent as we might like. Although in some cases the court might appoint somebody because of their particular expertise, there might be other reasons that explain why certain persons are appointed. We want to introduce greater transparency in relation to who is on the list and why they are on it, and providing a centralised system enables us to work to do that.

Like the minister, I would have concerns about the resource implications for the Scottish Courts and Tribunals Service of running lists at local level. At the most recent meeting of the family law committee of the Scottish Civil Justice Council, which is chaired by Lady Wise and on which the Faculty of Advocates is represented, there was discussion about running lists at local level. I asked what the cost implications would be for the Scottish Courts and Tribunals Service, but there was not really an answer to that.

The Convener

Now that we have had the discussion in public, we can address the matter more fully and, perhaps, return to it at stage 2.

Shona Robison

The financial memorandum provides for four days of training for child welfare reporters. Given the importance of consistency and the fact that people with different professional backgrounds might be brought in, will that be sufficient?

Ash Denham

I know that that issue has come up quite a bit in the committee’s evidence. I will reflect carefully on what the implications might be. We will set the training requirements and qualifications through secondary legislation, which will be developed after the bill is enacted. We will consult stakeholders on how we should develop the requirements. I envisage that the training will cover domestic abuse, coercive control and other areas that witnesses have mentioned in the evidence sessions. Four days of training a year might not be sufficient in some cases, but it might be more than sufficient for child welfare reporters who have been working in the field for many years. We will certainly listen carefully to what the committee says on the issue as we develop the training requirements.

Shona Robison

That is helpful. Other professionals such as social workers and psychologists might be included as child welfare reports. Have you looked at how that will be done? Will there be a recruitment campaign? What mechanisms will be put in place to encourage a wider set of professionals to become child welfare reporters?

While you answer that, will you address the concerns of the legal stakeholders and members of the judiciary who have said that there are important benefits from having solicitors as child welfare reporters? Obviously, solicitors will remain as child welfare reporters, but those stakeholders said that solicitors’ legal training is very important and they cast some doubt on the inclusion of other professionals. It would be helpful to have your response to those concerns.

Ash Denham

At the moment, about 90 per cent of child welfare reporters are solicitors. Of course, lawyers bring to the role a range of skills that are extremely beneficial and welcome. The committee probably recognises that other professionals—such as social workers, who also act as child welfare reporters currently, and psychologists—will also bring skills and experience that will be very useful to the process. There is nothing unusual in using other professionals. Until quite recently, it was quite normal for people to have a choice about whether to go with a social worker or a lawyer—in fact, quite a lot of social workers were used to produce reports.

Eligibility criteria for being a child welfare reporter will be set out. We think that the criteria will be based on competence and could be met by a variety of professionals, as we have described. The key point is that we want to have the right professionals who will give the best service to the child. That is what we are looking to achieve.

Shona Robison

Judgments about which professionals are used will be made on a case-by-case basis.

The policy memorandum suggests that fee rates for child welfare reports could be set in a variety of ways, including by an hourly rate, by report or by page of the report, although there is an acknowledgment that we should not encourage people to write long reports. What system for setting fee rates will attract good-quality professionals to become child welfare reporters and ensure an efficient use of public resources?

Ash Denham

That is quite right; we want to set fee rates to ensure that the job is attractive, so that, as we have just discussed, we can get the best professionals to do it. The bill gives the Scottish ministers the power to set those rates, and we will consult fully on the regulations on that in due course.

As you have outlined, there are a variety of ways in which we could set the rates. I agree that we probably do not want to encourage the production of extremely long reports—that is probably not in anyone’s interests. We have not finalised exactly how we would set fee rates. I have heard some of the evidence that has been given to your committee, and I am considering how we can move forward. We will come back to the committee in due course on the matter.

Liam McArthur (Orkney Islands) (LD)

Before I start, I apologise for my late arrival, which was due to flight disruption this morning.

Shona Robison asked about the mix of child welfare reporters, around 90 per cent of whom currently are lawyers. In many cases, social work input or the input of those with psychology training will be more relevant than the input of lawyers—in fact, in some cases it will be fundamental. To your mind, does that 90:10 split appear right, or do you envisage the bill presenting an opportunity to alter the mix so that it includes more people with other skills and expertise?

Ash Denham

As I said, we are not interested in the title that someone holds; we are looking for the best professionals who are able to deliver the best service for the child. I envisage that there will be a mix, but I cannot say at this point how the mix will split.

Liam McArthur

Clearly, it is the skills that are important rather than the job title, but people’s skills will vary enormously depending on what their job titles are. I am interested to know what input those who are involved in social work and the psychology profession have had to this aspect of the bill. How much consultation has been done with them? What views have been expressed to you and your officials about where that balance ought to lie?

Ash Denham

I do not think that we will be taking a prescriptive view on the issue or saying that we want 40 per cent of the mix to be made up of certain people or whatever. Clearly, many people who are currently working in this area are extremely skilled, and there are many social workers who are equally skilled with regard to the issues in this area. However, I agree that we are looking for a mix of skills and that we want to get people who are able to bring experience to the role.

We must also bear in mind that the bill makes provision for training. We expect that training to be developed. At the moment, we are looking at four days a year of training for child welfare reporters, which will increase the skill set that is there at the moment.

Simon Stockwell

We have met the Society of Local Authority Lawyers and Administrators in Scotland, which involves local authority social workers and people such as that, to discuss what sort of reports are produced at the moment and to seek the input of those professionals.

In the past, a good number of the reports were done by social workers. When you look back at the older research, you can see that more reports were done by social workers than is the case now, when the situation seems to have moved much more towards lawyers producing reports, possibly as family law has grown as a profession and there have been increased pressures on social work. However, social workers produce some of the reports, and we understand that they tend to do the reports in the Western Isles and Dumfries and Galloway, too.

As the minister was saying, there is a mixture of people. We have spoken to the authorities on the issue, and I know that there have been some representations from child psychologists, too.

The Convener

Section 13 requires the courts to appoint curators ad litem only where necessary, to give reasons for that appointment and to reassess the appointment every six months. Do you consider that that current wording might result in a reduced role for curators in future?

Ash Denham

No. That section is pretty clear on what we are trying to achieve. It makes it clear that if the court wants to appoint a person to act as a curator ad litem, and the court is satisfied that it is necessary to do that to protect the child’s interests, it should go ahead and do that. The assessment is to check whether the curator is still needed and, if it is, the court can continue with the appointment.

10:30  

The Convener

The Faculty of Advocates has been critical of the requirement that the appointment of a curator to a case is reviewed every six months. The Sheriffs Association said that the requirement was “arbitrary and pointless”, as curators become involved in a case only when there is a need for them to perform a distinct role and they carry out bespoke work for the court. The Summary Sheriffs Association describes the provision as “somewhat unrealistic”. Would you like to comment?

Ash Denham

I do not think that that is the case. I will ask Simon Stockwell to give some further information on that.

Simon Stockwell

In past children’s cases and elsewhere, we have had complaints about curators ad litem being appointed by the court when they are not needed and about them getting in the way of parties to a case. I do not want to go into details, because they relate to a specific case that was raised with us.

The point is to check that the courts are appointing a curator when the curator is needed and that the need for the curator is continuously assessed. As the minister said earlier, we want to ensure that there is consistency across the courts where we can. Although some courts might indeed be appointing curators on the basis that they are needed and assessing that need, we cannot absolutely say that that is true in all courts across the country. The point of the provision is to make sure that it is.

The Convener

It is always dangerous to make law on the basis of one case or one adverse experience. What has to be weighed against that, and what I hope the minister will take into account, are the comments from, for example, the Family Law Association, which regards a legal qualification for curators as essential. On the role of curators, the Sheriffs Association comments:

“Curators are worth their weight in gold to family courts where a very large and increasing number of cases are conducted by party litigants. In such cases, the parents rarely present their case in a child-centred way or give the court the relevant information needed to resolve matters in the best interests of the child.”

That is fundamental to the bill. The association goes on to say:

“It is vital that those interests are protected and that decisions are made in a child centred way. Curators also speak to children, explain the process to them, see them in their home and at school, support contact and mediate outcomes.”

Are we absolutely sure that, on the basis of one case and anecdotal evidence that curators are not always being appointed only when needed, the wording that is in the bill about the appointment of a curator and the review of that appointment is in the child’s best interests, particularly in cases in which parents represent themselves in court?

Ash Denham

It is not on the basis of one case; we just used that as an example of why the provision would be useful in future.

There is nothing in the question that you just asked that I disagree with. Of course, curators play a vital role, and we are not suggesting that any change be made to that. They would be legally trained; that is the point of the provision. All we are saying is that, when a court needs to appoint a curator, it should review the cases to make sure that they continue to be needed. That is all.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Issues around contact centres have been an important part of the evidence that we have heard. Does the role of contact centres need to be clarified? To give you an example, some stakeholders have expressed concern that, if supervised contact is ordered, that necessarily means that the contact might be unsafe. What is your impression of where we are going with that and with the regulation of contact centres?

Ash Denham

I am aware of the comments about contact centres that you have referred to. Contact centres can play an important role in facilitating contact, specifically where contact has not taken place for a long time, or where the contact is new. What is of absolute importance is that contact should take place only in a safe environment, and the bill achieves that by introducing the regulation of contact centres. That will make sure that we have consistent standards in things such as training and accommodation to help ensure that all contact centres are the safe spaces that we would expect for children.

Rona Mackay

Have you considered having a publicly funded network of centres? Regulation would have an impact on cost in that regard, and I am sure that that has been considered.

Ash Denham

The Scottish Government funds contact centres. Relationships Scotland has received £6.5 million over the past four years from the Scottish Government. In 2019-20, it was awarded £1.53 million from the Scottish Government’s children, young people and families early intervention fund. However, I accept what Rona Mackay is saying. We need to look at the on-going sustainability of funding for contact centres. I am actively looking at that, but the committee will understand that I cannot speak at this point about any future funding decisions.

Rona Mackay

Section 9 requires referrals from a court to a contact centre to be to a regulated centre, but it does not impose such a requirement in relation to referrals from other sources, for example from solicitors. Relationships Scotland said that it would be “impractical” for contact centres to operate in such a way. Could the section be amended at stage 2 so that, regardless of source, children should be sent to a regulated centre?

Ash Denham

I agree with that completely. The member is talking about provisions in the bill that refer to court-ordered contact. When the bill is enacted, all contact centres will be regulated; that is something to bear in mind. I am not sure how we would enforce where solicitors make referrals to, but I agree that all contact referrals should be made to a regulated contact centre.

Rona Mackay

Would regulation mean greater training for practitioners in the centres?

Ash Denham

Absolutely, yes.

Rona Mackay

The committee has heard a number of concerns about that.

Ash Denham

Yes, I have heard those concerns as well, and that is why it is a feature of the bill to ensure that we have consistency around the country. We want to ensure that contact centres are safe places for children, that the accommodation is up to the standard that we would expect and that the staff are fully trained.

Rona Mackay

Finally, I want to ask about domestic abuse risk assessments, for which the bill does not provide. Some stakeholders have advised that it would be preferable for the bill to provide for risk assessments in the context of family cases involving domestic abuse, with all the complexities that that throws up. Could that be looked at at stage 2?

Ash Denham

I am aware of the issue that Rona Mackay raises. I am not totally clear on what would be laid down in the bill. We need to look into that and consider what we might do in that area.

Rona Mackay

Thank you.

The Convener

Shona Robison has a supplementary question.

Shona Robison

My question is about practice—I guess that this would be captured in the regulatory guidance.

Last week, on a very helpful visit to my local contact centre, an issue was raised around the need for greater flexibility. Let me give an example. Staff are required to record contact going ahead. However, at a certain point, it is clear that that level of supervision is not required any more, and it might be helpful to have a clear process for bringing supervised contact to a conclusion to allow more natural engagement to take place between parent and child. At the moment, the feeling is that the process is often quite arduous. Will that be looked at in terms of the practice in contact centres? The safety of the child is clearly absolutely paramount, but mechanisms have to be brought in whereby there is more flexibility and an appropriate use of that level of supervision.

Ash Denham

Do you mean in relation to supervised contact?

Shona Robison

Yes. I guess that my question is whether every modification of supervised contact requires to go back to the courts so that the order can be adjusted. If so, a set of triggers might need to be put in place. The point may be reached whereby the contact centre staff feel that that level of supervision is no longer required, but the process of making any changes seems quite arduous.

Ash Denham

Contact centres do different types of contact: they do drop-offs, pick-ups, supervised contact and unsupervised contact. Supervised contact is court ordered, so any changes to that would have to be done by the court. The staff provide reports to the court. In the circumstances that you describe, where the staff feel that a person is handling supervised contact well and could progress to unsupervised contact, the staff could provide a report to that effect. However, the matter would have to go back to the court for it to decide whether such a change was appropriate and whether the time was right for that person to move on to unsupervised contact.

Shona Robison

There might be a need for clarity within the guidance about trigger points. Perhaps it could happen more speedily, and there could be a mechanism that staff were clear about for supervised contact to go back to the court. Could that be clarified in the guidance? The feeling is that the process sometimes goes on far longer than it needs to, because of the time that the court takes to look at the order again.

Ash Denham

I hear what Shona Robison says, and we can certainly look at that issue. My understanding is that the child’s safety is paramount.

Shona Robison

Of course.

Ash Denham

If the court has ordered that supervised contact should take place, I would want that contact to be supervised. Some contact centres have volunteer staff, but not in the case of supervised contact, which is undertaken only by trained staff, who feed information back to the court. However, I would not want to rush those situations. If supervised contact was undertaken by the pursuer in a contact and residence case, it would be up to them to go back to court to seek to vary the order. That is what happens in the majority of cases.

John Finnie

I want to pick up on the points made by Rona Mackay and Shona Robison. I urge extreme caution in relation to the matter. It is important that any risk assessment, as well as any training, picks up on the most recent legislation on controlling and coercive behaviour. We heard that extremely manipulative people—invariably, we are talking about men—conduct themselves very well in the presence of third parties. However, there are concerns that people move from the criminal court, where special measures are put in place, to civil court, where nothing similar is done and children are chaperoned by third parties in the presence of a perpetrator of domestic violence. I hope that the matter will be given a thorough examination.

Ash Denham

I assure John Finnie that we will give the matter due consideration.

The Convener

We turn to the secondary legislation, which will create the regulatory regimes. Given the importance of secondary legislation in the context of sections 8 and 13, which cover child welfare reporters and curators ad litem, and section 9, which covers family centres, is the minister minded to consult on the details of the regulatory regimes? In particular, will she commit to a full public consultation?

10:45  

Ash Denham

I will. We will hold a full public consultation, in which we will consult on the detail of the three areas that you mentioned.

The Convener

Do you still think that the negative procedure is the appropriate procedure to use for scrutiny of secondary legislation that is made in relation to sections 8 and 13, which are on child welfare reporters and curators ad litem, respectively?

Ash Denham

I do. We set out the rationale for our approach in the delegated powers memorandum, and the Delegated Powers and Law Reform Committee said that it was content—it did not raise any concerns with us about that approach to scrutiny. Therefore, I think that the use of the negative procedure is appropriate.

As we are to consult on the key areas, we will have an opportunity to listen carefully to all stakeholders, but I think that the proposed procedure is appropriate.

The Convener

I suppose that I am thinking about the fear that was expressed that fewer curators ad litem would be approached. If the matter is dealt with in secondary legislation that is subject to the negative procedure, that issue might not be discussed fully. However, it is welcome that there is to be consultation.

Rona Mackay

I turn to shared parenting, on which the committee received important evidence. Have you been persuaded by any of the evidence that we received that the bill should include a presumption in favour of shared parenting?

Ash Denham

I have not. The Scottish Government believes strongly that both parents should be fully involved in their child’s upbringing as long as that is in the best interests of the child. The courts already apply the general principle that it will normally be beneficial for children to maintain an on-going relationship with both their parents.

However, as we are all very aware, there are circumstances in which shared parenting is not in the best interests of the child. In such cases, the court must make a decision. My opinion is that a presumption in favour of shared parenting would cut right across that, so I do not think that that is the right approach here.

Rona Mackay

So you want to uphold the principle of getting it right for the child and the child coming first.

Ash Denham

Absolutely.

Rona Mackay

Do you think that there should be a presumption in favour of a child having contact with his or her grandparents? Should there be such a right of contact?

Ash Denham

The situation here is very similar. I appreciate that the very important role that many grandparents play in children’s lives has been highlighted in written evidence. We recognise that in the family justice modernisation strategy, and we have something called the charter for grandchildren, which I have committed to promoting more widely.

In addition, the bill includes a list of factors that the court must consider in every case, one of which is the child’s important relationships with other people. That would, of course, include relationships with grandparents.

I do not think that it would be appropriate for there to be an automatic right of contact with grandparents or a presumption in favour of such contact, for the reason that we have discussed, which is that that would cut across what was in the best interests of the child. I think that we are all aware that, in some cases, an automatic right to contact with grandparents would not be appropriate and, indeed, might not even be safe for the child.

Rona Mackay

If the child expressed the view that they wanted to see their grandparents, that wish would be granted.

Ash Denham

It would be. Obviously, grandparents can apply to the court for contact. In making that decision, the court would take the child’s views into account.

Rona Mackay

We have heard some compelling and powerful evidence on the benefits of sibling contact. Why does the financial memorandum not set out any cost implications for local authorities in implementing the new duty under section 10? Do you agree with the stakeholders who say that, to implement the new duty, more resources will be required?

Ash Denham

Section 10 strengthens a piece of practice that should already be happening, and we indicated in the financial memorandum that we do not consider that to be a new burden. Local authorities have to act in support of the welfare of the children they have responsibility for. We know that practitioners already recognise the protection of relationships between brothers and sisters as something that is necessary for the welfare of children who are in care. Glasgow health and social care partnership said in evidence to the committee that it is already doing that, and the City of Edinburgh Council has said that it also fully supports the practice. It is essential that local authorities implement the duty. The provision is designed to reinforce that responsibility for maintaining sibling relationships. We know that local authorities have signed up to the care review’s promise to deliver the changes to the system that are needed. If they have difficulties implementing the measure, we stand ready to work with them.

Liam McArthur

I absolutely accept the fundamental importance of keeping the interests of the child at the centre of any decision that is taken by the court. The argument around shared parenting, unlike that in relation to contact with grandparents or other members of the wider family, is based more on a concern that, when it comes to contact or residence, there is often a presumption that the mother’s rights will prevail over those of the father. A presumption of shared parenting is not about cutting across the interests of the child; it is more about the way in which the courts arrive at decisions when there are perhaps competing interests between both parents. The question is whether a presumption puts a greater equilibrium into that assessment, while, as you rightly say, keeping the interests of the child firmly at the centre of whatever decision the court arrives at.

Ash Denham

I return to my previous answer. We have to keep in mind that we are taking a child welfare approach here and that the welfare of the child is paramount, and it is up to the court to decide how it implements that. The presumption of shared parenting could cut across that.

The bill is compliant with the European convention on human rights and the UNCRC. I am comfortable with where the bill is and the direction in which we are heading, which I think is an appropriate one.

Shona Robison

I will go back to the issue of siblings for a second. We heard some harrowing evidence on people’s experience, which I am sure you will have looked at. Having previously worked in social work, I appreciate that the practical difficulties of maintaining sibling contact can be very challenging.

In the case that we heard about, the nature of the contact between the siblings was very difficult, but we have to be wary of assuming that practice is the same everywhere. You will have seen that the contact took place in a contact centre, it was supervised and a note taker was present. It was a relationship in which the sibling in question had played a very strong part in their sibling’s life until the point of family break-up.

It comes back to the risk assessment. Presumably, every effort needs to be made to ensure that that contact is as natural as possible. Although we do not know the background in the case that I mentioned, it seemed to me that that did not happen—in fact, both children were probably failed in that situation. How can we ensure that contact is made as natural as possible under the bill and, indeed, in the guidance and in practice around contact centres, if that is where sibling contact takes place?

Ash Denham

Such contact would not have to take place at a contact centre. I am aware of the example that you gave, and I agree that it does not sound as though the experience would have been good for the children concerned.

As you said, we want such contact to take place in as natural a way as possible. We have heard from young people’s organisations that sometimes they do not want contact to be limited to their natural brothers and sisters. Often, the relationships that are important to them are with other children with whom they have grown up and who might not be their natural siblings. We have therefore drafted the legislation quite broadly so that it is able to capture and respect those other relationships.

However, we must also recognise that, sometimes, keeping in contact with siblings might not be practical. For example, a child might have a much older step-sibling whom they have never met, who lives at the other end of the country—perhaps in the south of England—and who is not interested in maintaining that relationship. I think that we have to have the flexibility to maintain the relationships that are important to the child, but also recognise that it will not necessarily be practical to do so in every single case.

Shona Robison

I do not think that anyone would argue that that is wrong. However, going back to the views of the child, if, in a particular case, we see that they want to maintain a relationship, surely every attempt should be made to facilitate that? Some of the concerns that we have heard about the practicalities of doing so, and the resources required to facilitate it, have been quite challenging, but it is very important.

Ash Denham

That is quite right. Shona Spence will be able to give you a bit more detail on that.

Shona Spence (Scottish Government)

The intention is for contact between brothers and sisters to be as natural as possible. If that happens, it should not cost too much.

There will always be a minority of siblings who will need specialist therapeutic work to ensure that their relationship can be maintained in a positive way. The care review report has been clear about that and, as the committee will be aware, that review is concentrating on the future of care being based on loving, long-lasting relationships. In the Parliament, the First Minister has committed to supporting the aims of the care review, as have ministers in committees. Section 10 makes a start on that process and tries to get us moving in the right direction. I think that everyone is supportive of that. As the minister has indicated, local authorities have also signed up to fulfilling that promise.

I hope that if we work together we can make improvements so that we will not see situations such as the one that the young man whom you mentioned described in his evidence to the committee—in quite heart-rending detail.

The Convener

We have two more supplementaries. Before we hear those, and before we leave the subject of contact centres, I ask the minister to clarify whether the £6.5 million that she mentioned relates to funding of such centres only or of all Relationships Scotland’s services.

Ash Denham

That money is for Relationships Scotland.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I want to ask a quick supplementary question about contact with grandparents, which is a line of inquiry that I have been following in our previous sessions. However, before I do so I want to put on the record my appreciation for the provisions on sibling contact, which are the highlight of the bill for me. As someone who has worked in social work, I can say that nothing is more frustrating than cases in which children cannot have contact with their siblings because of resources rather than the outcome of a risk assessment, which is an issue that we have discussed.

I know that contact with grandparents has also been discussed. For the record, I say that I agree with the bill’s provisions and the Government’s position on the rights of grandparents. We should not have a limitation there; the important point is for a child to be able to maintain contact with the significant adults in their life, who are not always their grandparents.

11:00  

From my experience—it is probably not hard for the people around this table to understand this scenario—grandparents are often seen almost as collateral. If I might use the example that John Finnie gave, the right decision might be that it is not appropriate for a child to have contact with the man in the relationship, but the man’s family could be left out, which might not be in the child’s best interests if they have had significant contact with the family. I think that all members will have come across examples of people looking for support in that regard. I certainly encountered many such examples when I was a social worker.

At various points during our evidence gathering, I have argued that, if the children’s hearings system is involved with such situations, there is a much stronger likelihood that the panel and the people around the family will find a solution. There will be more consideration of whether the grandparents are in a good position to maintain contact, even if the father—in the example that I gave—does not do so. Families who are going through the court system might not have access to such an approach.

I know that you said in answer to Rona Mackay that grandparents can apply for access, but there are funding implications in doing that. Also, people need to know that they can do that, and they might not be willing to do it. Have you any thoughts on the issue? Have you seen the evidence that the committee received?

Ash Denham

I have. I think that your assessment is right, in that sometimes grandparents are not aware that they have the right to go to court to seek contact. You are also right to say that some people worry about their financial situation—although I suspect that many people in such a situation would be eligible for legal aid.

That is where the list of factors to be considered comes into play. The bill provides that one factor is

“the child’s important relationships with other people.”

That will include grandparents, and the court will have to take account of such relationships. Clearly, there will be situations in which grandparents live with the child in question and provide day-to-day care and so on. I imagine that the court will take that into consideration.

On the status of grandparents, we are looking at how we can further promote the charter for grandchildren. We will speak to a number of stakeholders in the area, to find out what more the Government can do to raise awareness in that regard. Simon Stockwell can tell you a little about that.

Simon Stockwell

We certainly want to speak to social work departments, which are key stakeholders, given that there are particular issues to do with kinship care and so on. We also want to speak to family lawyers who are involved in such cases in practice, and to grandparents organisations, such as Grandparents Apart UK, about what more we can do in the area. We will have a bit of discussion with key organisations and then work out how best to promote the charter without making legislative change.

Liam Kerr (North East Scotland) (Con)

Minister, may I press you on the siblings issue that we talked about earlier? In your view, I think, what the new duty in section 10 provides for is being done anyway, so section 10 will change nothing for local authorities. The committee heard from CELCIS that resources are the main reason why siblings are separated. Is it your view that compliance with section 10 will have no cost implications for local authorities? Is that absolutely your position?

Ash Denham

What I am saying is that section 10 will strengthen practice that should already be happening. I will ask Shona Spence to give you more detail.

Liam Kerr

It should already be happening. However, if it is not happening, the local authority will incur costs if it complies with the new duty, will it not? Therefore, the approach should have been budgeted for in the financial memorandum.

Ash Denham

We do not consider this to be a new burden.

Shona Spence

As the minister said earlier, section 10 will add the duty to the provisions of section 17 of the Children (Scotland) Act 1995, which has as its overall principle that local authorities should promote the welfare of the children in their care. From that point of view, we do not consider that protecting and promoting the sibling relationship is a new thing for local authorities. If it is in the interests of a child, they should already be doing it.

Liam Kerr

But if a local authority is not doing it, and feels obliged to do it as a result of section 10, costs will be incurred by that local authority, will they not?

Shona Spence

If a local authority does not currently consider that that is a welfare issue for children, it would be a new situation for that local authority. However, it should be aware that promoting sibling relationships is in the welfare of children. There may be more awareness of the importance of that relationship now, and that is perhaps where the difference is.

Fulton MacGregor

I want to ask about vulnerable witnesses in the courtroom. We have heard concerns from the Summary Sheriffs Association and the sheriffs principal about the practical implications of sections 4 to 7. They are concerned that some courts around the country might not have the infrastructure to implement the provisions in those sections, which may cause additional delays. Do you have any views on that?

Ash Denham

In many respects, what we are doing here is replicating a provision that is already in place in the criminal justice system. We will of course listen to the detailed points that have been made to the committee by the Scottish Courts and Tribunals Service on resources and infrastructure, but generally the infrastructure and knowledge should already be in place.

Fulton MacGregor

On the approach that is taken to different types of court cases, we have heard quite strong evidence from the Scottish Children’s Reporter Administration that it would like children’s evidence in family cases to be treated in the same way as it is treated in criminal cases, for example by being taken in advance where possible. That would mean that sections 4 and 6 would not be required for children. Do you have any views on that in relation to sections 4 to 7?

Ash Denham

I understand where you are coming from. The bill, certainly in part, is trying to ensure that the civil system is in line with the criminal system when it comes to protecting vulnerable individuals. I will ask Simon Stockwell to provide you with a bit more detail on that.

Simon Stockwell

Was your question specifically about the children’s hearings system?

Fulton MacGregor

The Scottish Children’s Reporter Administration gave us quite a strong view on that, but I suppose that the question is more whether you think that there needs to be a review of special provisions relating to sections 4 to 7 in order to align criminal and civil cases.

Simon Stockwell

I do not think that we could commit to doing a full review now, given workload pressures. As the minister said, we recognise the point about consistency. I have occasionally seen issues more widely with the protection of vulnerable witnesses—not in children’s hearings but in civil cases more generally—and I could see that there might be a need to look at that occasionally.

On children’s hearings, Shona Spence is the expert rather than me, but I understand that we are planning to do some work, which we might do by way of secondary legislation rather than primary legislation.

Shona Spence

It depends what the question is about. Is it in relation to the court proceedings for children’s hearings, or the children’s hearings themselves?

Fulton MacGregor

The court proceedings.

Shona Spence

These provisions add to the protections that were already available to the criminal courts. Previously, witnesses in the criminal courts had protection through the ban on personal cross-examination. We were in a situation where criminal cases and civil cases were not aligned, so this is already an improvement on that.

Further measures have been introduced more recently. Last year’s Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 allows the criminal courts to deal with children prior to going to court. I think that that might be where the SCRA is coming from. Dealing with witnesses prior to going to court is very much recognised as the direction of travel, but I think that it is quite restricted so far in the criminal courts. We certainly support the measures going as far as they can go in the future.

In the meantime, child witnesses could use the existing provisions in the Vulnerable Witnesses (Scotland) Act 2004 to allow evidence on commission—which avoids children going into court and involves questions that are prepared in advance—because that option is already available for children’s cases.

Fulton MacGregor

My final question for the minister is about her response to views about how the register of solicitors might work in practice for people who are subject to the ban on personal cross-examination. We have heard some stakeholders say that good-quality solicitors might not come forward to take complex cases at the last minute. Has she considered that issue while we have been taking evidence on it?

Ash Denham

I heard the view that you have outlined expressed during the evidence session. I am sure that the committee agrees that the ban on personal cross-examination is an extremely important provision. The bill includes that Scottish ministers will establish a register of solicitors who would be willing to act for a party who has been prohibited from conducting their own case or who is unable or unwilling to apply for legal aid or to fund their own lawyer.

I do not envisage the register being used very often. So far as we can tell from the data, there could be between 10 and 20 cases per year—we do not have an exact number. We would have the power to set fee rates for the lawyers who are appointed to the list, which we would do by secondary legislation. I recognise that lawyers taking on cases at a late stage might be a challenge. However, I think that the legal profession will recognise the need to protect vulnerable parties and I expect some solicitors to welcome the challenge and be willing to join the list.

Liam McArthur

You have addressed the concerns that solicitors have expressed. There are also concerns about where the threshold for exclusion from cross-examination has been set. If it is based solely on an allegation rather than something more substantive having been established, that would appear to be too low a threshold and to cut across the human rights of people who find themselves subject to an accusation. Can you address that issue?

Ash Denham

How you have described it is correct. It would not apply to allegations, but only to convictions.

Liam Kerr

Section 16 is about failure to comply with a court order. If a court order has been disobeyed and the court is considering a finding of contempt or a variation of the court order in response, section 16 will impose a duty on the court to investigate the circumstances behind the breach of the court order. Some stakeholders have told the committee that that would be a good thing and would be welcomed. However, others have expressed more caution and said that it is unnecessary, because the court already has such a power and is already using it. What is your view?

Ash Denham

Liam Kerr has made a good point. Courts have the power to investigate already and do so in some cases. It comes back to the argument about consistency and variation across the country. We looked at the possibility of additional or alternative sanctions to see whether there could be a better way forward, but there was no clear consensus about what might be a better option. This area is not straightforward. The courts have a range of sanctions available now, such as contempt of court, fines and the threat of imprisonment. Section 16 has been put into the bill so that there is a clear duty on courts to establish exactly why an order has not been complied with. I would expect them to seek the views of the child if they thought that that was appropriate.

11:15  

Liam Kerr

You moved on and spoke about additional sanctions. I was asking about the investigation of the circumstances. However, as you have brought up sanctions, I will ask a question on those. The Sheriffs Association told the committee that the bill should state which additional sanctions are available to the courts when court orders—for example, community payback orders—are breached in family cases. Do you agree that the bill should make specific reference to those?

Ash Denham

I referred to that in my previous answer because, when courts are looking to see why orders have not been complied with—the committee will recognise that that happens in some cases—they also need to work out which approaches might mean that orders are complied with. There are some instances when an order is not complied with because of fear for the safety of the child. We had the opportunity to consider what sanctions are available and appropriate. We considered additional ones, but the court has a range of sanctions available to it that are rarely used but which are appropriate. It is incumbent on the court—especially in cases like the one I have described—to investigate why a court order has not been complied with.

Liam Kerr

An idea that was consulted on was that problem-solving approaches, rather than sanctions, could be used, and that those could be contained in the bill. They are not in the bill. Given what you just said, are you sympathetic to the proposition that they should have been included in the bill?

Ash Denham

Can you explain what you mean by “problem-solving approaches”?

Liam Kerr

Sure. Some people say that the range of problem-solving approaches that you have just spoken about—alternative dispute resolution, counselling and family therapy—could reasonably have been put in the bill. I think that that was consulted on in 2018. However, they have not made an appearance in the bill. In cases that do not involve domestic abuse, is it your view that the bill could introduce more problem-solving approaches?

Ash Denham

Okay—I see what you are saying. I did not quite understand where you were going with your question.

There is a question about whether it is better to put that in the bill, as you have suggested, or whether a more general, signposting approach might be a better option. There is a wide variety of options and legislating is probably not the best approach. Signposting to those problem-solving options might be better. You probably know that the family justice modernisation strategy commits us to issue public-facing guidance on alternatives to going to court.

James Kelly (Glasgow) (Lab)

In our evidence sessions, we heard concerns about the impact that delays in the court system have on children. Section 21 attempts to deal with that. Can you give us some detail on the practical effect that you think section 21 would have in dealing with delays in the court system and giving priority to children?

Ash Denham

Section 21 is not going to solve that by itself, but it will send a clear signal across the country that delays in family cases can prejudice children’s welfare. We are working through the family law committee of the Scottish Civil Justice Council to introduce new court rules, and there is on-going work on case management that will look at the more technical aspects of delays in the court system.

James Kelly

You mentioned the work on case management. New rules have been drafted on that, but they have not been agreed yet. When are they likely to be finalised and agreed?

Ash Denham

That is not a matter for the Scottish Government, but a matter for the Scottish Civil Justice Council. I believe that it will be quite soon. Simon, do you have an update on that?

Simon Stockwell

Yes. I am a member of the family law committee of the SCJC—I represent the Government on it. We considered a draft of the rules at our meeting at, I think, the end of January. There was a quite lengthy discussion on some detailed procedural points.

As I understand it, the intention is that a further draft of the rules will go to the next meeting of that committee. Last time I checked, we did not have a date for that, but it will probably be at the end of March or the beginning of April. I hope—but, as the minister said, I cannot guarantee—that the family law committee will sign off the rules at that meeting. The process is that they will then go to the full Scottish Civil Justice Council to be approved, and an act of sederunt will be laid before Parliament after that.

If all goes well, the rules will be in place by the end of the calendar year. As the minister said, however, we cannot guarantee that, because it is ultimately not in our hands but in those of the Scottish Civil Justice Council.

James Kelly

I appreciate that it is a matter for the Scottish Civil Justice Council. If there is an update in the coming weeks, it would be helpful if you could write to the committee about that. We need to consider the matter alongside section 21, on delays in court cases, and it would be useful to know what the new case management rules are.

Simon Stockwell

We can certainly send you a letter outlining what has been discussed at the family law committee, the current position, and an expected timetable. I can certainly agree that with the secretariat of the family law committee, and the minister or I can write to you accordingly.

James Kelly

Okay. Minister, do you think that there is a role for family sheriffs or specialist family courts in dealing with cases that involve children?

Ash Denham

There is already a degree of specialisation, particularly across the central belt, but you will recognise that decisions on how sheriffs are deployed and how courts are set up are a matter for the Lord President and the sheriffs principal.

Fulton MacGregor

I want to ask about some of the terminology in the bill. We know how important language is. Why have you decided not to change some of the language, given the responses to the committee from stakeholders, which I assume have also been made available to the Government? For example, we heard some strong representations about the use of the word “contact” from people who have been involved in the system. They asked the committee how we would like our relationships with our children to be described as “contact”. There have also been representations about the term “residence” and its implications. For example, if someone is referred to as a “non-resident parent”, there might be unconscious bias in the system. Have you given any thought to the words that are used in the bill and whether amendments might be lodged in that respect at stage 2?

Ash Denham

I saw that evidence and I have given the matter some thought. We are not saying that the term “contact” sums up the entirety of the relationship between a parent and their child—of course that is not the case. The terms are not meant to be pejorative in any way. They have been in use for some time. The terms “contact” and “residence” have gradually gained acceptance and I think that they are well understood. I am not sure that there are useful alternatives that could be brought in, so I think I am quite comfortable with keeping them as they stand at present.

The Convener

Rona Mackay has a supplementary question.

Rona Mackay

On the point that Fulton MacGregor made, I note that the term “parental alienation” has huge implications. Do you think that it would be appropriate not to use it in the bill?

Ash Denham

That term does not appear in the bill. As part of the factors that we are asking the court to consider, we are asking it to consider in every case that comes before it the impact of its decision on both parents. However, the term “parental alienation” does not appear in the bill.

Liam McArthur

I will raise a couple of issues, which are not linked. First, the Government sought views in the original consultation on the potential for putting in place legislative provisions that confidential information may be shared with parties who request it only where the child’s views have been taken account of, and on the basis that it is in the child’s interests. However, that is not in the bill. You will be aware of the concerns that a number of stakeholders have raised, including Children 1st, about the absence of such provisions and, therefore, the potential for confidential case files to be requested by the court and shared with other parties, including potentially with abusers.

We have had exchanges on that with the bill team and other witnesses who have expressed concerns about the implications for the human rights of other parties in cases. However, the concern remains. With regard to retaining the confidence of the child or young person, who might be imparting highly sensitive and deeply personal information, the notion that that information could in due course be shared with others cuts across that. What further thought has been given to that? The bill team suggested that, if such provisions are not included in the bill, clearer guidance on the sharing of confidential information could follow from the passing of the bill.

Ash Denham

That provision is not in the bill. Children already have rights to confidentiality, which is protected. It is a complicated area because, as you pointed out, a number of rights are at play, and a number of welfare issues. For example, a child who provides confidential information might be a different child from the one that the court proceedings are about, so we need to ensure that we can protect the welfare of multiple children. As you mentioned, there is also a balance of rights to be struck between the child and their parents.

The committee will probably be aware that the Supreme Court has made it clear that the rights of the different parties have to be balanced when issues of disclosure are considered, and that includes the rights of different children. If there was an amendment to the bill along the lines that have been suggested, the court could be forced into a position where it had to prioritise that confidentiality above everything else. If that happened, my concern would be that the welfare of the child was not the most important priority, which it should be.

I do not know whether Simon Stockwell has any technical detail to add to that.

Simon Stockwell

The minister has made the point. As Mr McArthur said, we could consider issuing some guidance on the subject for family law practitioners in order to try to make the law clear. However, I think that, as the minister said, we would be nervous about putting any such provisions into the bill.

Liam McArthur

One suggestion was that we should play up the importance of proportionality in relation to information that is shared. In a case file, there will be a wealth of information. Some parts will be more sensitive than others, and some will be less relevant to the case. Could a provision on that usefully be inserted into the bill in a way that did not cut across the balance of rights that are at play?

Simon Stockwell

It might be difficult to lay that out in primary legislation, because the issues that are faced in a specific case will depend on what happens in that case. If various people have rights over a document, the court has to strike a balance, looking at the rights of everybody who has an interest in it. I would have thought that putting that into primary legislation would be quite complicated. My inclination is that it is best to leave it to the individual court to determine what to do based on the facts of the case that is in front of it.

Liam McArthur

I turn to a different issue. You will be aware of the research that Dr Barnes Macfarlane carried out for the committee before we embarked on our scrutiny of the bill. In that research, attention was drawn to a feeling that we need to play catch-up in relation to the law on the rights of unmarried fathers, which has been deemed to be outdated. However, there are no proposals in the bill to strengthen those rights.

We heard evidence that a blanket, automatic registration of unmarried fathers brings attendant problems, partly to do with the rights of unmarried fathers, but also to do with the rights of individual children and young people to know about their identities, for want of a better expression. That suggests that further work has to be done. Although the percentage and the absolute numbers that are involved are relatively small, the impression that we got from the evidence that we received was that there is still some work to be done. That was certainly the strong message from Dr Barnes Macfarlane in the research that she provided to the committee.

Ash Denham

Are you talking about parental rights and responsibilities?

Liam McArthur

Yes. The evidence that we received highlighted a number of potential difficulties with going down the route of automatic registration. Short of that option, however, is the Government prepared to look further at ways in which those rights could be enhanced, not least because of the way that they potentially interlink with the rights of the child?

Ash Denham

For a number of reasons, I am not proposing to give automatic PRRs to all fathers. As you pointed out, only a very small number of unmarried fathers do not get PRRs. In some of those cases, there might a good reason why the mother decided not to jointly register the birth of her child. She might be a victim of domestic abuse or the father might have no interest in helping to bring up the child. The situation was part of the consultation work that we did, and there were very mixed responses on it. On balance, and bearing in mind the reasons that I have laid out, I decided to keep the status quo.

Liam McArthur

As I understand it, there are different rules in England and Wales around DNA testing and where it may be requested and required. While respecting the potential issues and rights issues that you identified that cut across that, could further options in that area not be explored? Even if that resulted in changes in only a small number of cases, it would go a small way towards addressing the issues that Dr Barnes Macfarlane identified.

Ash Denham

As I said, we consulted on that and we noted the arguments for and against it. It might interest the committee to know that, under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, the court may draw an adverse conclusion from a refusal or failure to give consent to the taking of a DNA sample. On balance, that seems appropriate here. I think you will agree that there would be a number of practical difficulties with taking things more in the direction of automatic rights, as you mentioned.

The Convener

I want to return briefly to confidentiality and the proportionality proposal. As part of our evidence, we heard from young people a strong message that there can, at times, be dreadful breaches of confidence and trust. It would mean a lot to the young people that we heard from if you could look again at proportionality. It can mean the difference between handing over a whole case file and selecting just the relevant information, or the difference between handing over a child’s complete diary, with everything that they have written, and selecting only something that is relevant.

Ash Denham

I absolutely recognise the issue that you mention and I undertake to look further at that area.

The Convener

That is very welcome—thank you.

That concludes our questions. I thank the minister and her officials for attending. I will suspend the meeting to allow them to leave, and for a five-minute comfort break.

11:34 Meeting suspended.  

11:40 On resuming—