Education, Children and Young People Committee
The following changes to the Committee's membership occurred during the Committee's scrutiny:
On 26 June 2025, Paul McLennan MSP replaced Joe Fitzpatrick MSP as a member of the Committee.
On 10 December 2025, Paul O'Kane MSP replaced Pam Duncan Glancy MSP as a member of the Committee.
The Children (Care, Care Experience and Services Planning) (Scotland) Bill was introduced to the Scottish Parliament on 17 June 2025. It was supported by Natalie Don-Innes, Minister for Children, Young People and the Promise.
The Education, Children and Young People Committee was designated the lead committee for Stage 1 consideration of the Bill.
The Bill is in three parts:
Part 1, Chapter 1 extends eligibility for aftercare support for young people leaving care prior to their 16th birthday. It also extends corporate parenting duties for certain publicly funded organisations to include those leaving care prior to their 16th birthday, and puts a duty on Scottish Ministers to issue guidance in relation to care experience in order to aid understanding of their circumstances.
Part 1, Chapter 2 gives Scottish Ministers power to make regulations requiring non-local authority residential care providers to provide financial and operational information through an initial information request. It introduces a requirement for Independent Fostering Agencies (IFAs) to be registered charities, and gives Scottish Ministers powers to create a register of foster carers.
Part 1, Chapter 3 makes changes to the operation of the Children's Hearings System, including to the tests for referral to a hearing, the composition of panels, requirements around children's attendance at hearings, and terms of compulsory supervision orders (CSOs) and interim variation of CSOs.
Part 2 makes changes to planning arrangements for children's services, providing for any Integration Joint Boards (IJBs) covering an area to join local authorities and health boards on the list of bodies required to plan children's services.
Part 3 contains the final provisions for the Bill.i
The Committee issued a Call for Views on the provisions of the Bill, which ran from 27 June 2025 until 15 August 2025. There were several versions of the Call for Views, including one for individuals with care experience, one for organisations and academics, a BSL version, and an Easy Read version. The Committee received 85 responses from organisations and academics, 32 responses from individuals with care experience and those supporting them, and one response to the Easy Read version.
The Education, Children and Young People Committee took oral evidence from:
10 September 2025
Claire Burns, CELCIS
Fiona Duncan, Independent Strategic Advisor, The Promise Scotland
Maria Galli, Law Society of Scotland
Sheriff David Mackie, Hearings System Working Group
Fraser McKinlay, The Promise Scotland
Katy Nisbet, Clan Childlaw
Kate Thompson, Children and Young People's Commissioner Scotland
17 September 2025
Stephen Bermingham, Children's Hearings Scotland
Jo Derrick, Scottish Throughcare and Aftercare Forum
Duncan Dunlop
Matt Forde, NSPCC Scotland
Alistair Hogg, Scottish Children's Reporter Administration
Lynne O'Brien, Aberlour
Laura Pasternak, Who Cares? Scotland
Margaret Smith, Partners in Advocacy
Natalie Williams, The Fostering Network
8 October 2025
Maree Allison, Scottish Social Services Council
Dave Berry, Dundee Health and Social Care Partnership
Jim Savege, SOLACE
Professor Soumen Sengupta, South Lanarkshire Council
John Trainer, Social Work Scotland
Fiona Whitelock, COSLA
Charlotte Wilson, Care Inspectorate
The Committee also took evidence from the Minister and her supporting officials on 5 November 2025.
The Committee is grateful to everyone who appeared before us to share their views.
The Committee also wishes to thank the care experienced children, young people and adults who took part in the engagement event at the Scottish Parliament on 7 October 2025, which was organised in partnership with Who Cares? Scotland. The views shared in that meeting have had a huge impact on the Committee and significantly influenced the way in which Committee Members approached their scrutiny of the Bill.
The Children (Care, Care Experience and Services Planning) (Scotland) Bill comes at the half-way point towards the Promise's target of transforming the care system by 2030. As such, many of those engaging with the Committee as part of the Bill's scrutiny were reflective of the progress that has been made already and whether this was sufficient to meet the Promise on time.
Many of the people the Committee heard from spoke of the wide range of work that is underway to bring about improvements at a local level. However, it was difficult for the Committee to form a clear picture of exactly what is happening across Scotland as a whole and to gauge what that has meant for care experienced children, young people and young adults. The Committee also heard of the sector-wide challenges facing many of those charged with implementing this Bill, including in relation to workforce and wider resourcing issues.
The Committee was very aware, in scrutinising this Bill, that it mattered deeply to care experienced children, young people and adults. As a result, some stakeholders expressed disappointment about what was missing from the Bill. Where this has appeared in evidence, the Committee has sought to reflect this.
However, the main focus of this report is on the proposals set out in the Children (Care, Care Experience and Services Planning) (Scotland) Bill, and the evidence received in relation to these.
The Committee wishes to thank everyone who has engaged with this Bill, including the many care experienced children, young people and adults, and organisations supporting them, who have chosen to share their views with us.
The Committee is also grateful to those young people who contributed directly, and those who undertook workshops with groups of care experienced young people to help inform their own responses to the Committee's Call for Views.
Whilst not every individual or organisation can be quoted in this Stage 1 report, every written submission and all the evidence we heard in person was taken into account in drafting the Committee's conclusions and recommendations.
In drafting this report, the Committee was very conscious that language around care can sometimes be stigmatising and that care experienced children, young people and adults have suggested that there are some terms and expressions which should no longer be used in relation to care.
While the Independent Care Review and the Promise have stated that children and young people prefer the term 'care experienced' to describe their circumstances, the term 'looked after' has a particular meaning in law. Therefore, this report uses the term 'care experienced' where possible, but 'looked after' is used in relation to the relevant legislation and policy.
The Delegated Powers and Law Reform Committee (DPLRC) considered the Delegated Powers Memorandum for the Bill and produced its report on 8 October 2025.
It noted in its report that the Bill confers 6 powers to make subordinate legislation on the Scottish Ministers, and 1 power to issue guidance. The Scottish Government has produced a Delegated Powers Memorandum (“DPM”), which sets out the reasons for taking the delegated powers in the Bill and for the procedure chosen.
At its meeting on 9 September, the DPLR Committee agreed to write to the Scottish Government. In that letter, the Committee queried regulation-making powers in relation to section 4 (advocacy) and section 11 (single member panel children's hearings), stating that it "considers that regulations made under this power could involve the making of significant policy choices which take a different direction from the principles established on the face of the Bill."
The DPLR Committee considered the Scottish Government's response on 7 October 2025.
The Education, Children and Young People Committee notes this correspondence and the use of regulation-making powers is discussed in more detail throughout this report.
The Bill makes a number of key changes which are designed to fulfil elements of the Promise and to improve the experiences of care experienced children, young people and adults in Scotland.
These include—
Expanding eligibility for aftercare to a wider group of care-experienced children and young people by introducing a right for those who were 'looked after' but who left care before their 16th birthday to apply for aftercare from their 16th birthday up until age 26;
Introducing a right to life-long advocacy for children, young people and adults with care experience;
Producing guidance in relation to 'care experience' to raise awareness and understanding of care and care experience and provide a steer on language in and around the care system;
Taking legislative steps to tackle profit from residential care;
Strengthening the not-for-profit principle in relation to foster care, requiring all Independent Fostering Agencies to become charities;
Creating a national register of foster carers;
Making a number of changes to the Children's Hearings System;
Extending statutory responsibility to Integration Joint Boards (IJBs) in the development of Children's Services Plans.i
This report sets out the evidence the Committee heard in relation to each of these proposals. The Committee will also make a series of recommendations to the Scottish Government on the basis of that evidence.
In doing so, the Committee wishes to put on record the extent to which the detail of many of these proposals is unknown, as this will be set out in secondary legislation at a later date.
Whilst some stakeholders recognised the flexibility that regulation-making powers could bring, others suggested that the Bill itself had been introduced prematurely, and that more work should have been done ahead of its introduction to ensure that it was more fully developed. The Committee also notes the points raised by the Delegated Powers and Law Reform Committee in respect of the regulation-making powers in section 4 (advocacy) and section 11 (single panel member hearings).
These issues are explored in full throughout this report.
The Committee heard evidence to suggest that extensive consultation had not taken place in advance of the Bill's introduction. There was some divergence between the Scottish Government's view of engagement that had taken place and the experiences of key stakeholders.
Whilst there was an acknowledgement that four Scottish Government formal consultations had taken place, the Committee heard that more informal consultation had not been undertaken in the way that stakeholders would normally expect, with Fraser McKinlay of the Promise Scotland suggesting that "everyone was struck by how locked down this Bill was" and stating that, as a result, "it has landed quite cold."i
Fiona Duncan, Independent Strategic Advisor at the Promise Scotland, stated that "we have a record of all the engagement that we have had on the Bill, the conversations that we have had and the information that we have provided," noting that "with greater conversation during the process, we might have had a different product and a different Bill."i Fiona Whitelock of COSLA also observed that "we offered support around the financial memorandum and working out some of the costings, but our offer was not taken up."iii
Jim Savege of SOLACE noted that "it is relatively unusual not to have had some joint working or collaboration on the development of a Bill, in respect of how it might progress through Parliament,"iii with John Trainer of Social Work Scotland suggesting that "it would have been vastly improved if that had happened."iii
In her evidence to the Committee on 5 November 2025, the Minister noted, however, that—
The Bill has been informed by the independent care review, which reflected the voices of more than 5,500 care-experienced children, adults and families. We undertook four public consultations. A range of work has been on-going with different organisations. I have engaged with Sheriff Mackie on his report on the Children's Hearings System. Most importantly, I have met very regularly with children and young people to determine what their priorities are.vi
The Minister went on to note that "there was some frustration that the draft Bill - the specific detail on scope and exactly what what to be included in the Bill - was not shared with key stakeholders ahead of the Bill being introduced to Parliament," before stating that "that is in line with Parliamentary protocol and the Ministerial Code in relation to the introduction of legislation."vi
Social Work Scotland wrote to the Committee to dispute the points raised by the Minister in her evidence to the Committee. In that letter, John Trainer, stated that—
Ordinarily, Scottish Government officials are open and collaborative in their policy development, valuing the insight local authority social workers can offer, and understanding social workers' critical role in the implementation of policy. We never expect to see the wording of Bills before their publication in Parliament, but we do very regularly comment on the policy instructions which are to be sent to legislative drafters. Such engagement seems a routine and sensible part of ensuring draft legislative provisions are as strong as possible. With this Bill, there has been no such engagement.viii
The Minister subsequently wrote to the Committee on 14 November 2025, to "respectfully disagree that engagement throughout the Bill development process has not been undertaken," suggesting that she was "committed to ensuring that all stakeholders feel that they have the appropriate opportunity to inform the development of this important legislation."ix In this letter, the Minister also provided detailed information about the engagement that had taken place between the Scottish Government and stakeholders, both prior to and since the introduction of the Bill.
The Committee was struck by the fact that many key stakeholders felt they had not been fully engaged in the development of this Bill and that the Bill's provisions were the poorer for this.
The Committee recognises that the Ministerial Code precludes the Minister discussing the detail of the Bill ahead of introduction. However, given the scope of what is being proposed, and the resourcing implications arising from this, the Committee would have expected stakeholders to have been much more involved in the earlier stages of policy development. Stakeholders were clear that the engagement on this Bill did not fully align with their expectations.
The Committee therefore recommends that the Scottish Government reflect on the comments made by stakeholders and consider how a more collaborative approach could be taken in future.
As the Committee was considering the Bill at Stage 1, Audit Scotland published its "Improving Care Experience - Delivering the Promise" report.
Whilst the focus of the Committee's work was necessarily on the changes proposed by the Bill itself, the Committee recognised that the Bill needed to be considered in the context of wider work to fulfil the Promise. The Audit Scotland report provided some of that context, analysing the structures underpinning reform to the care system in Scotland and mechanisms for assessing progress towards fulfilling the recommendations of the Independent Care Review.
The Audit Scotland report made a number of key findings, including:
Initial planning for The Promise by the Scottish Government and COSLA did not give sufficient thought to the work that would be needed to deliver its aims over a ten-year period - including the resources required, and how success would be defined and measured.
To date, overarching plans - 'Plan 21-24' and subsequently 'Plan 24-30' - have not given the clarity needed by individual bodies and sectors. This has meant that there has not been a consistent and shared understanding of what delivering the Promise would look like, and how this could be achieved, by 2030.
The Scottish Government was slow to develop a framework to measure progress.
The absence of a clear assessment of the resources and skills required to deliver The Promise by 2030 at the outset has created a significant delivery risk.
The £500m Whole Family Wellbeing Fund, announced in 2022/23 to help deliver the Promise, has not been spent in full, with only £148m having been allocated to date.i
The report recognises that "over five years on there is still confusion about the individual and collective roles and responsibilities across organisations, sectors and new entities," suggesting that "responsibility for the Promise cuts across various sectors making it difficult to distribute accountability and ensure each sector is responsible for its role in contributing to delivering the Promise"i
Audit Scotland also acknowledges the Bill in its report, noting that "it is unclear how the Bill in its current form will address the challenges around the complex legislative landscape."i
Some of the key issues highlighted by the Audit Scotland report are explored in more detail later in this report.
The fact that the Bill sections 1 and 2 (on aftercare) and section 10 (on the register of foster carers), as currently drafted, do not fall within the scope of the compatibility duty of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 was highlighted by many stakeholders in evidence. This is because they amend the Children (Scotland) Act 1995, which pre-dates devolution.
Maria Galli of the Law Society of Scotland suggested that this contradicted the Cabinet Secretary for Education and Skills' commitment in November 2023, stating—
We were concerned that, in addition to not meeting the vision of the Promise, the provisions in the bill, particularly those that fall outwith the scope of the 2024 act, will not be met and upheld, and they will not fulfil the commitment that was made by the then cabinet secretary in November 2023i
Katy Nisbet of Clan Childlaw noted that, more broadly, there had been "an undertaking that there would be an audit of out-of-scope legislation, with a view to proposing some sort of plan to begin bringing things into scope," observing that "not only have we seen no evidence of that, but new legislation is coming through without any attempt, even on a piecemeal basis, to ensure that rights can be fully protected by keeping within the scope of the Act."i
Maria Galli went on to note that the way in which these Bill provisions had been drafted "means that children and young people do not have justiciable rights,"i a point also highlighted by the Children and Young People Commissioner Scotland (CYPCS), who suggested the issue should have been identified in the Child Rights and Wellbeing Impact Assessment accompanying the Bill.i
Together (Scottish Alliance for Children's Rights) suggested that there could also be wider implications if the issue of provisions being outside of scope of the 2024 Act was not challenged in this Bill, suggesting that "we set a precedent that risks hollowing out the UNCRC Act's protections."v
The Promise Scotland, Who Cares? Scotland, the Children and Young People's Centre for Justice (CYCJ) and CYPCS were amongst others who suggested that the provisions should be re-enacted as stand-alone provisions within this Bill,ii viii ix
Barry McCaffrey from the Scottish Government Legal Directorate explained that wider work was underway to explore the scope of the compatibility duty to UK enactments, and that—
Children who are looked after have rights and obligations that are hardwired into the 1995 Act, and there are other rights alongside that such as continuing care.
The question in relation to aftercare relates to the fact that, if you started to take those provisions out of part 2 of the 1995 Act, you would still be left with integrated rights associated with them that would not fall within scope of the compatibility duty and end up with something even more unworkable.
The register of foster care provisions does not affect the underlying provisions and duties that local authorities have in relation to foster care placements and so on. Those are hardwired into part 2 of the 1995 Act. At this stage, our judgment is that drafting and re-enacting provisions that are outwith the scope of the 1995 Act would not solve the underlying issue, which is that they no longer connect with the 1995 Act in a coherent and workable way.x
He also suggested that "wider work is being done on remedies, whether judicial or otherwise, to ensure that children can assert their rights in a way that is UNCRC compatible."x
Maria Galli of the Law Society of Scotland, however, noted the need to ensure that there were remedies available to young people of all ages, noting that "many of the people who will benefit from these new provisions and who have been involved in the whole process around the Promise will be over 18 and therefore not entitled to the protections of the UNCRC."i
The Minister for Children, Young People and the Promise stated that she understood the concerns that had been raised in respect to UNCRC Act compatibility, and that she was keen to take further advice on this.x
The Minister subsequently wrote to the Committee on 14 November 2025 to provide further information on this issue, acknowledging that—
The Children's Rights Scheme will be laid before Parliament shortly. This is a statutory requirement under 'the UNCRC Act'. Section 14 of the UNCRC Act requires Scottish Ministers to make a scheme, to be known as the Children's Rights Scheme, which sets out the arrangements that they have made, or propose to make, to ensure that they comply with the compatibility duty under section 6 of the Act and to secure better or further effect of the rights of children. [...]xiv
The Minister went on to state that "in light of the concerns raised about this approach, I am actively considering the options that may be available at Stage 2."xiv
The Committee urges the Scottish Government to explore how it might bring the outlying provisions of the Bill within scope of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
The Committee recognises the importance of children and young people being able to challenge any potential breaches to their rights via this route, and that sections 1, 2 and 10, as currently drafted, run counter to the commitment made by the Cabinet Secretary for Education and Skills to ensure that future legislation would fall within scope of the 2024 Act.
The Committee requests that the Scottish Government provides regular updates regarding progress on children's rights and compatibility with the 2024 Act as the Children's Rights Scheme evolves. In particular, the Committee would welcome further information around what action the Scottish Government plans to take in the longer term to bring other legislation affecting care experienced children and young people into scope of the 2024 Act.
The Scottish Government should also clearly set out which routes and complaints mechanisms will be available to those seeking entitlements under this Bill who can no longer benefit from the provisions of the 2024 Act due to their age, to ensure they can also challenge decisions which risk breaching their rights.
Sections 1 and 2 of the Bill deal with aftercare. Aftercare is the term used to describe advice, guidance and assistance beyond universal services provided to children who leave care on or after their 16th birthday.i
Currently, local authorities have a duty to provide aftercare support services to eligible young people leaving care under the age of 19. In addition, eligible young people aged 19-25 can also request assistance from their local authority, and the local authority must assess their support needs and provide aftercare support to meet those needs if required.i
Most recently, section 24 of the Children (Care and Justice) (Scotland) Act 2024 made provision for children remanded or sentenced in secure accommodation to be treated as 'looked after' children, with entitlements to aftercare support.i
Examples of aftercare support can include helping a young person find accommodation, assistance in accessing education and employment opportunities and/or supporting their well-being through the provision of financial support.i
The Independent Care Review recommended in the Promise that aftercare must take a "person-centred approach, with thoughtful planning so that there are no cliff edges out of care and support," noting that "Scotland should behave and act like a good parent that supports young people as they enter adulthood."i
The Bill seeks to expand the provision of aftercare to a wider group of children and young people with care experience by introducing a right for those who were 'looked after' but left care before their 16th birthday to apply for an aftercare assessment from their 16th birthday up to age 26.vi
'Looked after' is defined by sections 17(6) and 17A of the Children (Scotland) Act 1995. This includes those who were looked after at home, within foster or kinship families, or in residential care, as well as those who have been adopted and were previously looked after. vi
Eligibility for aftercare is also extended to children and young people who left secure accommodation before their 16th birthday, as well as Unaccompanied Asylum-Seeking Children who arrive in Scotland before their 16th birthday, and disabled children and young people who have received care under section 25 of the 1995 Act.vi
The Policy Memorandum suggests that the Bill's provisions will mean that—
Eligible young people who leave care prior to their 16th birthday will have the right to request advice, guidance and assistance from a local authority, and the local authority will then be under a duty to conduct an assessment of need for that young person. If the young person is found to have 'eligible needs', the local authority must provide support to meet those needs.vi
The extension to aftercare was welcomed by many responding to the Committee's Call for Views. It was perceived as righting a wrong that had persistently been raised by the care experienced community, including by Jasmin-Kasaya Pilling, who raised the issue in a petition to the Scottish Parliament between 2022 and 2024.
The Independent Care Review recommended in the Promise in 2020 that "Scotland must ensure that there is ‘no wrong door’ for care experienced young people and that Scotland’s parenting responsibilities are life-long and holistic for the young people that Scotland has cared for," suggesting that "aftercare must take a person-centred approach, with thoughtful planning so that there are no cliff edges out of care and support."x
When the Committee spoke informally to care experienced children, young people and adults as part of its work on this Bill, some of the issues raised in relation to aftercare included—
Those speaking with the Committee were generally in favour of the right to aftercare support being extended to all care experienced people and removing the current eligibility criteria (of being 16 years or older at the point of leaving care);
Where young people were taken off orders prior to turning 16, the repercussions of doing this were often not explained to them by social work. Many did not know they would not be eligible for further support;
Those with experience of kinship care described being left with no support and no access to a social worker;
Participants felt that everyone should be able to access support, regardless of background, such as adoption, at home, residential or foster care;
Housing was raised as a particular issue, with participants suggesting that without aftercare support their only option was to navigate adult services by themselves, which was a much more daunting prospect;
Participants felt that there should be advertising and publicity about aftercare - people should not be ashamed to be in receipt of it; it should be normalised.xi
Despite the warm welcome for the extension to aftercare from many stakeholders, the Committee heard a number of concerns about how the new aftercare provisions would operate in practice, with Jo Derrick of Scottish Throughcare and Aftercare Forum stating that, at present, "we have to acknowledge that aftercare is not working as well as it could and should for young people."i.
Fraser McKinlay of the Promise Scotland, suggested that the Bill's provisions went some way towards addressing one of the big issues that the Independent Care Review identified, which was the cliff edge that exists at various ages and stages of a young person's life.ii
Fiona Duncan, Independent Strategic Advisor, noted that a key issue was the fact that there are multiple systems that are operating simultaneously that are not adjacent, observing that, "housing is not an adjacent system to the care system, but children and young people often experience those systems simultaneously". She suggested that this was a key challenge for the workforce, and that "it is not just about how and when all of this is implemented; it is about ensuring that all the other parts are lined up, sequenced and organised so that the system can deliver what it wants to deliver for families in care and for care experienced adults."ii
Duncan Dunlop suggested that "to a large degree, in most local authorities, aftercare ends up being about emergency aid and care - we are literally trying to keep a kid going in respect of accommodation or food, whatever else is happening,"i with SASW noting that, in order to keep the Promise, there should instead be a focus on preventing problems rather than just responding to crises, allowing social workers to work alongside people they support as partners, and a requirement to base eligibility for services on what people need rather than on the resources available.v
Other stakeholders pointed to a "postcode lottery" of support available to those currently eligible for aftercare, with CYCJ suggesting that a key marker of the success in relation to the Bill's aftercare proposals would be the consistent and effective delivery of aftercare advice, guidance and assistance across the whole of Scotland, observing that "the current picture, unfortunately, shows inconsistency in provision and access to entitlements [with] on average less than half of young people eligible for aftercare [...] receiving aftercare services in 2024," and suggesting that there was significant variation across local authority areas.vi
Glasgow City Health and Social Care Partnership suggested that the immediate priority should be to better understand how existing rights and entitlements are, or are not, accessed by care-experienced children and young people across Scotland,vii and Scottish Throughcare and Aftercare Forum reported that a lack of consistent and comprehensive throughcare and aftercare support in remand settings contributed significantly to re-offending.viii
Fiona Duncan, Independent Strategic Advisor, also raised concerns about the use of the term 'aftercare' itself, noting that "one issue that came out of the Care Review was the use of stigmatising language," suggesting that "I would quite like us to have a think about an appropriate expression to use in the legislation, so that we are not telling young people 'this is the point after we care for you'."ii
One of the key drivers of extending aftercare to those who left care before the age of 16 was the perceived unfairness of one group of care leavers receiving significantly more support, purely on the basis of when they were taken off their Compulsory Supervision Order (CSO).
Katy Nisbet of Clan Childlaw set out how the provisions would work for an individual young person under the current and proposed provisions—
Let us say that there is a 15 or a 15-and-a-half-year-old who has been taken off their CSO. They attempt to reconcile with their family and live at home, but that does not work out and, at the age of 16 or 17, they are not able to live in the family home. What happens then? Presently, they would have no right to aftercare at all. That child, if they did not want to be in the care system, would simply go into the adult homelessness system and be placed in adult temporary accommodation. The needs assessment for the suitability of that accommodation is very different from that of a placement under aftercare or from support that is provided through aftercare.
However, if the child was on a CSO when they were 16, and then reconciled with their family but it did not work out, they would be entitled to aftercare. The aftercare is mandatory at that point, and means that the local authority must carry out a pathways assessment. In doing so, it must consider all the needs of that child - that is, not just their accommodation needs but their health, mental health, educational and employment needs.
After the assessment is carried out, an aftercare worker should be supporting them to make that transition and ensuring that they are in accommodation that is suitable for those needs. They are then supported through that process. They are also entitled to financial help through the children and families social work provision. That assistance is covered in section 30 of the Children (Scotland) Act 1995, and changes to that section are proposed through the Bill.
What is being proposed now is that someone who is 15 and a half and is not on a CSO any more who goes home but that reconciliation does not work is then out. It is not mandatory for the local authority to conduct a pathways assessment. The young person can request that that assessment is carried out, but, for a start, they would need to know that that is something that they can do and that that support is available to them. i
This point was reflected in South Ayrshire Council and Health & Social Care Partnership's response to the Committee's Call for Views, with one member of the South Ayrshire Champions Board stating that—
I was in care for years but then left care before I was 16, so now I'm not a care leaver and have to fight a bit harder to get support, but if I was in care six months before I turned sixteen and stayed in care I'd legally be a care leaver - that can't be right.ii
The extension to aftercare proposals was widely recognised as having significant resource implications for those who would be tasked with delivering support. Local authorities responding to the Committee's Call for Views were unclear what the likely demand for support would be, given what they perceived to be broad eligibility criteria.
Aberdeen City Council noted that the removal of the minimum period of care required to qualify for aftercare could have wide-reaching implications for financial support and service planning,iii whilst Clackmannanshire Council observed that local authorities sometimes struggle to meet the demand and needs of the existing eligible group and that this would not be helped by the inclusion of what they regarded as "a very broad new cohort."iv
Glasgow City Health & Social Care Partnership was strongly supportive of extending aftercare but suggested that, rather than offering this universally, clear parameters were required in relation to the timing, nature, and duration of care, noting that broadening the criteria without these parameters in place could substantially increase the number of required needs assessments, potentially making the system unmanageable in practice.v
Scottish Borders Champions Board said that aftercare support should be available to all care experienced individuals, noting that "it doesn't matter if you were in care for a short length of time or at what point in your life you were in care, you were still in care so you should still be entitled to support after 16,"vi whilst Moray Council/Health & Social Care Moray suggested that clear guidance could avoid duplication and the unnecessary escalation of matters that can and should be responded to within universal services.vii
Gavin Henderson, Deputy Director, Keeping the Promise, at the Scottish Government suggested that "the approach is to take a proportionate response and provide support to those who need it, rather than formally look after all young people," noting that "we need to target our resources to those who will benefit most from the support."viii
HUB for SUCCESS expressed concerns about how care experience will be recognised for those without formal documentation, or whose experiences occurred in informal or unrecorded settings, noting that the Bill must provide clarity on how such individuals will be identified and supported and must avoid placing the burden of proof on those who may already face significant barriers.ix
The Law Society of Scotland pointed out that there were other groups who may be entirely unaware of their status and rights as a care experienced person, and that these young people could fall through the gaps in terms of rights protections under the new provisions, noting that this included—
Those who have been adopted, many of whom have been involved in the care system.
Children subject to voluntary measures of supervision and support (under section 25 of the Children (Scotland) Act 1995), and those who are looked after 'at home'.
Children from outside the Scottish jurisdiction, who have been placed in residential care homes, secure accommodation, mental health or detention facilities, whilst under an English Care Order, or under the inherent jurisdiction of the High Court and subject to the Deprivation of Liberty Orders.x
UNISON Scotland suggested that "in addressing one anomaly the Bill potentially creates others," noting that "a child who is in care in infancy will be entitled to request an assessment for aftercare support, while one living on the edge of care throughout childhood, [...] but considered below the threshold for social work intervention, is not eligible for the same type of support, although their need may be the same."xi
Claire Burns of CELCIS stressed the importance of young people being aware of what support was available and how to access it, suggesting that aftercare provisions should be accompanied by a communication strategy that lets children and young people know what their rights are and ensures that they understand them.i
Children's Services at Renfrewshire Council suggested that there could be an unintended consequence of this aspect of the Bill in drawing children into formal care to ensure they are able to access aftercare support, noting that this was contrary to the principles of minimum necessary intervention in the Children (Scotland) Act 1995.xiii
The challenge/stigma of accessing aftercare under current provisions was highlighted by one care experienced adult in response to the Committee's Call for Views—
I find it really hard to reach out for help as an adult with throughcare. Help comes with a side of judgement. As if the things I'm struggling with are just things I should be able to do. Asking for help also just makes you feel like a burden or attention seeking [...]. What they need to understand is that when you are in care our emotions are all over the place and you just are trying to survive so basic learning doesn't happen. They don't understand the impact of trauma, people don't understand PTSD and the impact.i
Under the proposals in the Bill, those who left care under the age of 16 would have to request and undergo an assessment of their needs in order to access aftercare. If the young person is found to have 'eligible needs', then the local authority must provide support to meet those needs.ii The Bill also amends the Children (Scotland) Act 1995 to expand local authorities' powers to provide financial assistance towards education and training expenses to include those aged between 16 and 26, who left care before their 16th birthday.ii
This disparity in approach between different cohorts of young people was recognised by many stakeholders responding to the Committee's Call for Views. A key concern was that in requiring those aged 16-19 who had left care before 16 to request an assessment of their needs, some young people would inevitably miss out on the support they needed, either through a lack of awareness, or because the burden of accessing support and proving eligibility was placed on young people themselves.iv
The Scottish Children's Reporter Administration (SCRA) recognised that "those most likely to need support may be the children who are least likely to apply for them," suggesting that instead there should be a requirement on services to proactively offer and provide appropriate support between the ages of 16 and 26, for any child who was a looked after child at an point in their childhood.v
Scottish Families Affected by Alcohol and Drugs suggested that "generally, amongst young people, there is a mistrust towards social services because of past experiences," recognising that "telling young people that they have the 'right to apply' for aftercare might create more mistrust in the system if they do not receive the support they applied for,"vi whilst Includem suggested that if young people were not aware of their rights to access services, they would not claim them and that when services were under-resourced, sharing information with young people about support available was not always prioritised.iv
Natalie Williams of the Fostering Network agreed that young people should not have to apply for aftercare, recommending instead section 1(2) should be amended to create a duty on local authorities to assess a young person's needs for aftercare up to age 26 to meet any needs identified.viii
Scottish Throughcare and Aftercare Forum cautioned against creating additional barriers to support and increasing stigma by "relying on eligibility and proof of need to access support,"ix whilst Aberdeen City Council suggested that measures set out in the Bill left questions around what constitutes 'eligible need' and how the assessment/application process would be undertaken, observing that this was likely to create additional administrative burdens.x
Laura Pasternak of Who Cares? Scotland urged clarity in who should be responsible for providing aftercare, noting that "there should be no restrictions that say, for example, 'you can't receive aftercare here because you were in care in another local authority when you were growing up.'"viii Rock Trust suggested that there must be a clear and accessible process to challenge a decision if a young person is deemed ineligible for aftercare on the proposals set out.xii
Some stakeholders highlighted the practical nature of aftercare that many young people were likely to seek, with Grandparents Apart UK noting that this could involve "opening a bank account, budgeting, getting suitable accommodation, gas/electric suppliers, paying bills, how to get a mobile phone contract, how to apply to college, university, or a job or even cooking a healthy meal."xiii This point was echoed by many of the care experienced young people and adults who engaged with the Committee.xiv
Adoption UK called for targeted support pathways for young adoptees navigating the transition to adulthood,xv and NSPCC Scotland noted the needs of young parents, suggesting that "aftercare support must pay particularly close attention to the needs of care leavers, who are, or who are likely to become, pregnant, to ensure better alignment of relevant systems."xvi
Claire Burns of CELCIS highlighted that there was also "a general concern that the costings in the Bill, which are based on assessments for children's hearings, are outdated, which leads to a real and legitimate concern about whether the right resources and finance are in place."xvii
The Minister rejected the suggestion that those leaving care before 16 would potentially still receive less support than those leaving care post-16, stating—
It is not right to generalise and say that a specific group of children will receive a lower level of support. As I said, we are enhancing and extending the right to aftercare, but, as is currently the case, each child's needs will be assessed on a case-by-case basis, and their needs will be supported in the appropriate way by that local authority.xviii
Whilst stakeholders were generally supportive of extending aftercare provisions, there were significant concerns raised in relation to how this new provision might be resourced.
UNISON Scotland stated that whilst the "case is clear on moral grounds" to extend aftercare to a wider cohort, unless this was properly funded, then it "either won't be possible to provide it, it won't be promoted to those who might benefit, or, if it is prioritised for promotion and provision within an inadequate budget, it will add to the pressure on and further erode children's services as a whole."i
CYCJ flagged that the Bill's Financial Memorandum states that the estimated costs for aftercare are 'steady state', and therefore assumes there will be no extra staff costs to deliver the extended capacity, noting that this was problematic, given the current inconsistency with aftercare provision across Scotland.ii Who Cares? Scotland also said that investment was required in order to make these rights realisable,iii with the Scottish Association of Social Work (SASW) identifying that the primary barrier to providing aftercare "has been, and continues to be, the lack of adequate and sustainable financial resource."iv
Fiona Whitelock of COSLA recognised that work was underway to revise the original costings provided in the Bill and noted this was welcome as the calculations in the Financial Memorandum around assessments were 14 years out of date and that, in other places, the Scottish Government has "used costings for the Children's Hearings System, which is not directly comparable to aftercare."v The Law Society of Scotland also questioned whether the financial consequences of the aftercare provisions had been underestimated in the Financial Memorandum.vi
Social Work Scotland described the extent and pace of change being required of the sector as 'unprecedented,' and suggested that "few organisations or systems could absorb this level of transformational change without it impacting on service delivery."vii John Trainer of Social Work Scotland also queried who would be tasked with implementing the new provisions, and querying "will mental health services or alcohol and drug recovery services start to say 'actually, that's not our responsibility - it's the responsibility of children's social work services' despite the fact that they will be part of a corporate parenting group or authority that will have that responsibility?"v
NHS Ayrshire and Arran suggested that support needed to be targeted, rather than broad brush, in order to reduce inequalities experienced by young people with care experience,ixwhilst Shetland Islands Council flagged that young people leaving care at the moment were facing a range of issues, including shortages of affordable housing, and access to adult health/mental health care and suggested that instead of the focus being on extending aftercare, it should be on "addressing the challenges for (all) adults who need access to these services."x
Other unresolved issues raised by stakeholders included whether the Scottish Government had assessed the resource implications of extending the wider entitlements that care leavers have to a larger group, such as exemptions from council tax and support at college and university,i and questions about who would have responsibility for aftercare where a young person had been looked after by a different local authority to where they were currently living.xii
Scottish Throughcare and Aftercare Forum cautioned that without additional resources being provided to implement the Bill's provisions, there would be less money available per capita to provide aftercare support, leading to a situation where "everyone is under-served and services over-stretched."xiii
The Minister acknowledged the concerns that had been raised around aspects of funding, noting that—
We know that there are instances when children and young people's care placements have broken down and they might have been returned home, which would mean that they would not be eligible for aftercare. The Bill's provisions change that. When you think about the experiences that a child or young person might have in their young years that might not be seen to impact them, but could in later life, that change is really impactful and a really positive move towards opening up support systems for more children and young people who have experienced care.xiv
Extending aftercare provisions to those who left care prior to their 16th birthday fulfils a key ask of the Promise.
However, the Committee is concerned that the way in which these provisions have been drafted means that those leaving care prior to 16 will be required to ask for an assessment before they can be considered for support. This contrasts with existing arrangements for those leaving care at 16+, who are automatically entitled to aftercare support from 16 until 19 years old, and then can be assessed as being eligible from 19 up to their 26th birthday. By requiring those leaving care prior to 16 to request and undergo an assessment before accessing aftercare, some young people are likely to miss out on the support they need.
It is also unclear how eligibility for aftercare will be determined and what guidance Local Authorities will have to ensure that they are providing support to those who should be eligible. The Committee would welcome further information on these points.
The Committee notes that, as with the provisions around lifelong advocacy, there will be a requirement for young people and young adults to prove care experience in order to benefit from these provisions. The Committee also recognises that this may be particularly challenging for those who have been out of the care system for some time or who were previously unaware that they would qualify for aftercare support. The Committee reiterates the need to ensure that the process of providing proof of care experience is as straightforward as possible and minimises stigma.
The Committee welcomes the broad and inclusive approach the Scottish Government has taken towards this issue. However, the Committee recognises that providing aftercare to a much wider cohort is likely to be resource-intensive. The Committee is clear that the Promise will only be fulfilled if young people and young adults are able to access the support that they are assessed as needing. The Committee is also concerned that without additional resources, there is a risk that existing aftercare provision may diminish, in order to try and stretch funding to cover a much greater number of care experienced young people.
Without sufficient resource, there is also a risk that local authorities will be more reluctant to publicise aftercare services to this wider cohort. The Committee believes that clear information should be provided so that young people, young adults and carers/guardians and professionals can steer young people to the support they need.
The Committee believes that further work must be carried out ahead of Stage 2 to update costings to ensure they are an accurate and true reflection of the resources likely to be required to support the extended cohort of care experienced young people and young adults. It is insufficient to rely on figures that are many years out of date and therefore these must be significantly revised ahead of Stage 2.
The Committee recognises that there are still some issues to be resolved in relation to delivery of the expanded aftercare offer. This includes considering who should undertake the lead role within a local authority for delivering aftercare, particularly if universal services (e.g. housing, mental health support) are engaged. There are workforce challenges too, which will impact on local authorities' ability to deliver. Ahead of Stage 2, the Scottish Government should provide more information about how it envisages these provisions working in practice and how it is seeking to address the workforce challenges identified in evidence to the Committee on this Bill.
The Committee is strongly supportive of bringing the aftercare provisions in the Bill within scope of the United Nations Convention on the Rights of the Child Incorporation (Scotland) Act 2024, and indeed heard calls from many stakeholders to do so. It also believes that an independent appeals process is required to allow all of those eligible for aftercare support to access it, including those who are aged 18+.
Consideration should also be given as to whether 'aftercare' continues to be the most appropriate way to describe the support being provided to care experienced young people and adults.
Section 3 of the Bill extends the Corporate Parenting duties under the Children and Young People (Scotland) Act 2014 to anyone under the age of 26 who has, at any point in their life, been looked after by a local authority.
Current statutory Guidance for corporate parents is issued by Scottish Ministers under section 63 of the Children and Young People (Scotland) Act 2014. It is deliberately broad in nature as it takes into account the wide range of corporate parents that are listed in the schedule to the 2014 Act. These include local authorities, health boards, Children's Hearings Scotland, the Scottish Children's Reporter Administration and many other public bodies.i
Laura Pasternak of Who Cares? Scotland observed that current legislative duties require corporate parents to be "alert to the matters that may or may not adversely affect the well-being of care experienced people, promoting their interests, taking action to ensure that they access opportunities, assessing their needs, which is the basis of providing support, and considering how the exercise of those functions could be improved in relation to care experienced people."ii
Stakeholders held mixed views in relation to this provision in the Bill. Some could see a clear read-across to provisions extending aftercare, whilst others questioned exactly what an extension would achieve, with Claire Burns of CELCIS querying "what problem is it trying to solve?"i
Several of those responding to the Committee's Call for Views suggested that the Bill provided a good opportunity to reflect on how existing corporate parenting duties had been working in practice, and to look at how data collection and accountability measures could be further improved in future.
Fiona Whitelock of COSLA suggested that "without having a clear national picture of how we measure progress, local areas have developed their own structures around what it means for their communities, and reporting structures and clear planning processes are in place locally."ii Social Work Scotland described the proposals as "well-intentioned, but not well thought through," suggesting that "the idea that extending corporate parenting duties will make a difference to more young people is as yet untethered from evidence."iii
Who Cares? Scotland recommended adding in legislative monitoring and accountability measures to the Bill to ensure that the provisions of the Bill were fully acted upon,iv with Aberdeen City Council noting the need for a consistent national framework in order to avoid disparities across local authorities,v and St Mary's Kenmure Secure Care Children's Centre suggested that clear national guidance, adequate resources and sustained support were what was required to allow the extended duties to be delivered.vi
Others believed that there was more work to be done in ensuring existing obligations were met, with Includem suggesting that they did not believe that corporate parenting, or corporate parenting responsibilities and their duties, were well enough understood by the sector, the general public, or the community of care experienced people.viiAberdeenshire Council suggested that there was currently a variation in how duties are interpreted and implemented, particularly in rural or remote areas, which could lead to unequal experiences.viii
Who Cares? Scotland suggested that training was essential in ensuring corporate parents fully understood their corporate parenting duties and why supporting care experienced people life-long was so important,iv recommending that there be a duty on the Minister to produce clearer guidance to ensure the regular renewal of training for corporate parents, particularly for those in senior leadership roles.x
Several stakeholders commented on the fact that extending corporate parenting duties would not only require corporate parents to take account of the needs of those accessing aftercare, but all care experienced people up to the age of 26.ii
Claire Burns of CELCIS observed that the Bill's proposals would mean that the local authority, as their corporate parent, would have to pay regard to them throughout their life, suggesting that a local authority would have to say in its corporate parenting plan how it would respond to the needs of a huge population of people.i
Many stakeholders hoped that the extension to corporate parenting duties would pay dividends for the young people and young adults they worked with, with Inspiring Scotland/Intandem noting that "those in kinship care or looked after at home - have historically been excluded from the protections and opportunities that corporate parenting can provide,"xiii whilst the Scottish Refugee Council and Guardianship Scotland stated that "in the context of Unaccompanied Asylum-Seeking Children, corporate parenting responsibilities need to be made clearer and better enforced," noting that "under the Children (Scotland) Act 2014, these responsibilities should already apply for this group of children."xiv
Others observed that proposals to extend corporate parenting duties would provide a useful opportunity to consider what progress had been made to date, with Children First suggesting that this might be a useful point to reflect on whether corporate parenting in practice is fulfilling the ambitions it set out to achieve, to reset and concentrate on further improvements to the way in which these responsibilities are acted upon.xv
Duncan Dunlop suggested that "I would get rid of the word 'corporate' and talk about 'community parenting'," noting that "we are all part of a community and, if we care about the issue, it is the community hat, rather than the corporate hat, that matters."x
The Minister for Children, Young People and the Promise stated that "corporate parenting really lies at the heart of Scotland's commitment to care-experienced children," noting that—
The extension to corporate parenting duties offers a strengthened lens through which public bodies, with an understanding of the experience and potential needs of children, can continue to provide the best trauma-informed and rights-respecting support for them and their families to ensure that they thrive.xvii
Resourcing the extended corporate parenting duties was a key concern amongst stakeholders, with South Lanarkshire Council suggesting that the additional demand created by this Bill may inadvertently lead to unmet need across the wider corporate parenting partnership, which would risk undermining the very outcomes the legislation seeks to achieve.i
The Promise Board (Highland) queried whether "the Financial Memorandum adequately and accurately projects the resource required," noting that "there is a danger this could be perceived as tokenism if not."ii
Children's Services at East Lothian Council described the proposals to extend corporate parenting duties as "both inclusive and forward-thinking," whilst noting that without corresponding increases in funding or capacity, they would find it difficult to see how those additional responsibilities, and other elements of the Bill, could be effectively delivered.iii Quarriers also highlighted the need for investment, suggesting it should be directed towards training, resources, and strategic leadership, suggesting that broadening corporate parenting duties without these, "would risk diluting impact and creating inconsistency in delivery."iv
Professor Soumen Sengupta recognised that "there are clear good intentions and a huge amount of activity around the Promise, but we need to be much clearer about the key deliverables that we are working towards while understanding that we cannot do everything at once,"v with Children's Services at Renfrewshire Council cautioning against the risk of unintentionally creating a "two-tiered system: one where corporate parents fulfil their obligations to those formally recognised as 'looked after' and another for the broader care experienced population."vi
Several of those responding to the Committee's Call for Views recognised the need to take a proportionate approach towards corporate parenting, with South Ayrshire Council and Health & Social Care Partnership recommending that there would need to be further work undertaken to understand and explore the impact of the rights in the Bill on young people who may have had little intervention and "do not want or need us to be their corporate parents," recognising "we want to enable families, rather than take a heavily interventionist approach."i
CELCIS, Social Work Scotland, and COSLA were amongst those suggesting that there was a risk of over-reach arising from the new corporate parenting arrangements, with CELCIS describing proposals as "a significant shift regarding the role of the state in family life in Scotland." CELCIS went on to point out that the state currently has no locus to intervene in family arrangements where no care and protection concerns have been identified and that suggesting that whilst this proposed extension to corporate parenting duties could helpfully offer additional support to a wider group of children and young people with experience of care, it risked infringing on the right to private and family life under Article 8 of the Human Rights Act 1997."ii
SOLACE also noted that the current approach towards corporate parenting allows a particular focus on improving experiences for identified young people with specific needs for support, stating that this allows clear focus on relevant pathways, services and entitlements to services, and suggesting that "net-widening is likely to result in loss of focus and dilution of resources."iii
The Minister noted that—
Legislation is very clear that corporate parents can act only in ways that are consistent with the proper exercise of their other public functions, such as within legal and budgetary competence and authority. For example, the provisions do not mandate compulsory reviews for non-looked-after children or force care experienced children to share their status.iv
Given that the Bill proposes extending advocacy support to care experienced people on a life-long basis, some stakeholders, including Who Cares? Scotland and the Care Inspectorate, queried whether 26 was the appropriate cut-off point for corporate parenting duties, suggesting instead that duties should apply on a life-long basis.iii
Children in Scotland recognised that some corporate parents were already extending support to care experienced over the age of 26 on a discretionary basis, suggesting that this had "been particularly evident within higher education where access to degree level study has been widened through initiatives such as minimum entry requirements, the Guaranteed Offer, and the Care Experienced Student Bursary."iii
SOLACE stated, however, it was not content with what was being proposed, suggesting that the inter-relationship between the proposed extended duty, Children’s Services Planning obligations and UNCRC should have been addressed with greater consideration in the formulation of the Bill,iv whilst Social Work Scotland believed that the proposals regarding corporate parenting sought to "address the limitations and inadequacies of the current system by expanding it, pushing further against Scotland’s core approach and stretching local authority responsibilities and social work resources ever further."v
The evidence the Committee heard in relation to corporate parenting suggested that some corporate parents are performing the role well. However, there was a significant proportion of responses to the Committee's Call for Views that suggested that existing duties were not well understood, and there was insufficient monitoring to ensure that they were being delivered appropriately and consistently across Scotland.
The Scottish Government should consider revisiting and updating the impact assessments it has carried out on the Bill, to ensure that the needs of communities currently under-served by their corporate parents are more prominently reflected and any barriers to support removed. Updated guidance should also seek to increase the visibility of these groups.
The Committee recognises that the Promise Scotland is working in partnership with a range of bodies to produce route maps, which will help organisations across Scotland understand what actions they can take to keep the Promise.vi The evidence heard by the Committee in relation to this Bill suggests that further resources are required to help corporate parents across Scotland understand and maximise the impact of their role, and acknowledges that a route map may be helpful in this regard.
The Committee also recommends that consideration should be given to mandatory training for all corporate parents, and that there should be a requirement to update this training on a regular basis.
The Committee draws the Scottish Government's attention to the concerns raised by some stakeholders about the potential for expanded corporate parenting duties to lead to overreach and state intrusion. It would welcome a response from the Scottish Government to these points in advance of Stage 2.
The Committee notes calls for corporate parenting duties to be extended on a life-long basis. Whilst the Committee acknowledges that the impact of care is life-long, it also recognises the significant resourcing concerns raised in relation to the corporate parenting provisions in the Bill. As such, the Committee believes that the approach taken in the Bill is appropriate and that corporate parenting duties should not extend beyond 26.
This section explores the evidence the Committee heard in relation to section 4 of the Bill, which relates to care experienced advocacy, and section 18, which relates to advocacy within the Children's Hearings System.
Section 4 of the Bill includes a requirement on Scottish Ministers to make arrangements by regulations for the provision of life-long independent advocacy support to those who have experience of care.i
The Independent Care Review recommended in the Promise that "care experienced children and adults must have the right and access to independent advocacy, at all stages of their experience of care and beyond."i
In 2023, Who Cares? Scotland launched its Lifelong Rights Campaign. A key element of that campaign was to ask for "independent, relationships-based lifelong advocacy for every Care Experienced person in Scotland who needs it."i
Later that same year, the Promise Scotland published a scoping document entitled "Scoping and Delivering A National Lifelong Advocacy Service for Care Experienced Children, Adults and Families."iv This set out a four phase plan for introducing such a service, suggesting that a legislative approach be taken towards this, and recommending that "access to independent advocacy for care experienced children, adults and families be a statutory right." The report went on to note that the upcoming Promise Bill could be the legislative vehicle for this.iv.
When the Committee spoke informally to care experienced children, young people and adults as part of its work on this Bill, some of the issues raised in relation to advocacy included—
If you have an advocate who works for the local authority and is paid for by the local authority, they are not independent;
An advocate needs to be someone you can trust, that you feel safe with, that understands you, your feelings, can read your body language and make sure that your voice is heard;
It is important to build up a relationship with an advocate, so that you feel more comfortable sharing information with them;
Having an advocate on side helps you understand what you should have access to as a care experienced person.
Advocacy needs to be relationships-based and trauma informed;
Care experienced people should not only have the right to an advocate, but there should be an obligation for people to let them know that they have that right;
Advocacy should be life-long so that, even when you are an adult, you know where to go to get your needs met.vi
The Committee heard strong support for extending advocacy provision. Stakeholders raised a range of issues, including the need for a clear definition of independent advocacy, which recognised the value of relationships-based practice. Others queried how proposals in the Bill would fit with existing advocacy services and what 'life-long' advocacy might look like at different stages of a care experienced person's life, including how services might best be configured, and resourced, to provide this.
Concern was expressed by a number of organisations about the detail of advocacy provision in the Bill being left to regulations, including Adoption UK Scotland, South Ayrshire Council and HSCP, Social Work Scotland, COSLA, Children First, UNISON Scotland and SOLACE.vii COSLA argued that the decision to commission advocacy services locally or nationally was too important to be left to secondary legislation, due to the potential resource implications for local authorities.vii
Who Cares? Scotland, however, recognised that regulations were easier than primary legislation to update, especially as the definition of 'care experience' continues to evolve.vii
Many stakeholders told the Committee that it was important to ensure that care experienced advocacy was independent and free from bias or conflicts of interest. Several stakeholders suggested that a definition of independent advocacy should be set out on the face of the Bill.
Laura Pasternak of Who Cares? Scotland explained that "if somebody is trying to uphold the young person's voice but at the same time is employed by the local authority - if they are, for example, a children's rights worker for the local authority - potentially, there is only so far they can go to uphold the child's rights," noting that "that is why we think that that 'independence' definition is crucial."i
Fraser McKinlay of the Promise Scotland suggested that "we have to be crystal clear about what we mean by independence, because it can be quite contested territory," noting that "independent advocacy is a very specific and important part of the system" and that "in an ideal world, you would have a person, or an organisation that could do that for you across multiple areas."ii
The Care Inspectorate also flagged the importance of a clear definition, noting that this could be misunderstood to mean a third party known to and representing the child or young person (such as a professional, carer or family member), and that such a person may believe that they are able to give an independent view on what's in the best interests of the child and represent their views.iii SOLACE, COSLA, and South Lanarkshire Council said that whilst they valued formal independent advocacy, the informal advocacy role performed for young people by social workers and other professionals was often overlooked.iv
Professor Soumen Sengupta of South Lanarkshire Council observed that "all children's social workers [...] act as vocal advocates for the young individuals they look after," suggesting, that they "are about looking after the best interests of the young person, and advocating - with a small a - for them all the time," a point also recognised by SOLACE and COSLA. Professor Sengupta went on to state that "we need to draw a distinction between advocacy with a capital A, which is about having individuals there to support formal processes, and advocacy with a small a, which involves the ongoing engagement that we have talked about."v
The Scottish Independent Advocacy Alliance welcomed the Bill's reference to "independent services of support and representation," however, felt that the lack of a clear definition of independent advocacy within the Bill created ambiguity and could risk both poor-quality provision and a lack of consistency across Scotland.vi John Trainer from Social Work Scotland observed that "if I commission that [advocacy] service as a local authority, it can be asked to a degree whether it is wholly independent."v
Laura Pasternak from Who Cares? Scotland highlighted the definition of advocacy that has been the national practice model for the Children's Hearings System since 2020, suggesting that "we have five years of a really well-established legal definition of 'independence' which is rooted in the Mental Health (Care and Treatment) (Scotland) Act 2003."i The Fostering Network was also supportive of adopting this definition in relation to care experienced advocacy.ix
Lynne O'Brien from Aberlour suggested that increasing knowledge and awareness of professionals of children's rights and entitlements could avoid a system "in which we have to outsource independent advocacy to ensure rights are upheld."i
The Minister for Children, Young People and the Promise noted that—
Independent advocacy plays an absolutely crucial role in ensuring that the views and wishes of care experienced individuals are represented. During the Bill's development, it was decided that further detail on the definition of advocacy would be set out in regulations. However, I have listened to the Committee's evidence on that, and yesterday I met with Who Cares? Scotland, which raised the issue. I understand there is a wish for the definition to be a little stronger in the Bill. [...] I am considering the issue ahead of Stage 2.xi
The Committee heard that it was important for care experienced children, young people and adults to form lasting and trusting relationships with their advocacy workers.i
Laura Pasternak of Who Cares? Scotland suggested that the Bill's advocacy provisions should include the term "relationships-based", noting that their members "trust their advocates and they want to ensure that there is a continuity of relationship and that they are not met with cliff edges in terms of age and eligibility when ageing through the services for care experienced people, and onwards into adulthood."ii
Who Cares? Scotland suggested that the life-long care experienced advocacy service should be funded in such a way as to "not impose barriers on young people who already have an advocacy worker from continuing to work with them," noting that "this is a current issue we see created by the different funding for core advocacy funded by local authorities, and Children's Hearings System advocacy funded by Scottish Government."iii
Scottish Families Affected by Alcohol and Drugs flagged that "many young people we support have experiences of long lists of services and professionals getting involved with the family on a short-term basis without building long-term relationships with young people," suggesting that "they should be able to get support from independent advocacy if they choose this option, but they should also be able to bring someone they know and trust into conversations around their care to help them advocate for themselves."iv
The Committee heard that current advocacy provision across Scotland could be patchy, with access to services often restricted to certain geographical areas, age groups or other criteria, with Margaret Smith from Partners in Advocacy noting that, as a result of this approach, "a lot of people across Scotland who need independent advocacy are not able to access it."i.
Fraser McKinlay of the Promise Scotland suggested that there was a fundamental importance in enshrining a right to advocacy in primary legislation so that people could access support regardless of where they lived, noting that "at present, provision varies enormously depending on where someone happens to live and how different local authorities and other organisations have chosen to invest, or not, in advocacy."ii
Several stakeholders highlighted the need for any expanded advocacy provision to be accessible to all, with the Scottish Refugee Council and Guardianship Scotland highlighting that many Unaccompanied Asylum-Seeking Children could struggle to have their rights met under existing provisions. iii The Care Inspectorate also suggested that advocacy workers should be able to employ a range of alternative and augmentative communication tools, including British Sign Language, to ensure that services were accessible and that all young people were being listened to.iv
Children First felt the extension to advocacy provision was important, noting that "adult voices continue to be the loudest...this is especially true in the justice, care and protection systems, where professional voices still dominate, and adult concerns often take precedence."v
Several stakeholders highlighted that the proposals in the Bill were being advanced at a time where many advocacy providers were struggling to meet existing demand.
Laura Pasternak from Who Cares? Scotland noted that "we have seen cuts to the provision of independent advocacy as opposed to investment in it," and that "in some areas there is no longer any provision of independent advocacy for care experienced people and the only provision that is provided is non-independent."i
Many of those providing evidence to the Committee suggested that a life-long offer of advocacy was an 'unknown quantity' and questioned the accuracy of what was in the Bill's Financial Memorandum.
Fiona Whitelock of COSLA suggested that further clarity on funding models would be welcome, noting that if providing a life-long advocacy service for care experienced people meant local authorities commissioning additional services, then current budgets would not allow for this and more resource would be required, whilst acknowledging that a national model similar to what is currently used for advocacy in the Children's Hearings System would also be a possibility.vii
Scottish Independent Advocacy Alliance stated that the assumptions made in the Bill's Financial Memorandum failed to take into account the current shortfall in advocacy provision across Scotland, and that the estimates provided in relation to uptake across different age groups "appear significantly lower than actual demand observed in existing schemes."viii
Children First cautioned against the creation of a "blanket advocacy offer" being viewed as "job done" in relation to listening to children, suggesting that systems and decision-makers themselves must change to become more inclusive and adaptable to children's needs and preferences, and the life-long needs of those with care experience.v
Social Work Scotland urged "exploration of other means of meeting the identified need, including the up-skilling of existing advocacy provision and awareness within universal and targeted adult services," suggesting that "pilots and testing of models would also give us a much more granular understanding of the costs, risks, issues and interdependencies,"x with Jim Savege from SOLACE suggesting that the focus should be on how to "build on the strength of existing advocacy, which we have from our professional practice, and enhance it where we need to."vii
Much of the evidence the Committee heard focused on how the 'life-long' aspect of support would work in practice. Specifically, stakeholders wanted to understand how a care experienced life-long advocacy offer would fit with existing mechanisms (e.g. within the Children's Hearings System and mental health advocacy), and what element of choice a child, young person or care experienced adult might have in who would provide that support.
Who Cares? Scotland observed that "people's lives are complex and their issues are often intertwined," suggesting that people with intersecting needs may wish to choose a particular advocacy service, such as mental health advocacy, care experienced advocacy, or social security advocacy for the specialist knowledge that service holds."xii
Fiona Whitelock of COSLA suggested that "we do not want a situation in which somebody has three or four different advocacy workers," and that what was needed was a clear model of what the process was going to look like.vii Jim Savege of SOLACE suggested, however, that finance, housing, social work and social care colleagues should be able to transcend the structures and work together in an effective way, with a focus on the young person or their family.vii
As previously stated, Section 4 of the Bill says that Scottish Ministers must, by regulations, confer rights of access to what it refers to as care experienced advocacy services.i
Moving towards a model of life-long advocacy was welcomed as fulfilling a key commitment under the Promise, and was considered by some to be a significant policy innovation. Many stakeholders recognised the importance of advocacy support to those who did not have the safety net of family support, in particular at key transition points (e.g. when leaving care and when moving from child to adult services) and when navigating complex areas such as housing or education.ii iii
However, stakeholders recognised that, in order for life-long advocacy to work well, the Bill, and subsequent regulations, should be very clear about who would exactly would be eligible. Otherwise, there was a risk that services would under-estimate demand or attempt to limit access on the basis of factors including the amount of time spent in care or the type of care-experience, which would go against the fundamental ethos of a universal, lifelong service.
The fact that the details of this provision were being left to regulations was seen as particularly concerning, with some stakeholders suggesting that this could provide an opportunity to shrink the offer in future, with Cyrenians suggesting this might limit the advocacy offer to only certain 'types' of care or by the length of time a young person had spent in care.iv The Fostering Network noted that "the proposal in section 4, subsection 4, that the regulations may 'specify circumstances in which, or descriptions of care-experienced people by whom, a right to advocacy services is exercisable' creates a concerning opportunity for these rights to be limited."v
Others warned of potential difficulties for some care experienced people in proving their eligibility for advocacy support. This included in relation to practical concerns, e.g. tracking down care records from a long time ago, as well as in relation to potential stigma, with Social Work Scotland noting that "to access advocacy individuals will be pushed to declare their care experience, and to frame their support needs in the context of their care experience."vi
Others flagged potential unintended consequences that risked re-traumatising young people and adults, including the requirement for proof of care status potentially leading to a care experienced person accessing their records prematurely and/or without adequate support.vii
Who Cares? Scotland suggested that, in order to avoid those scenarios, the eligibility process used for the Care Experienced Student Bursary could be replicated, noting that this "provides a list of professionals who can provide a letter certifying that the applicant is Care Experienced."vii
Some stakeholders queried what the provisions in the Bill would mean for those who had been on the edges of care, with Cyrenians highlighting that "many young people we work with have had a challenging childhood and home environments that might have been missed by social work and other professionals and therefore not resulted in any formal or legal social work intervention; but their experiences are similar to those of young people who have been in care and they would greatly benefit from a right to advocacy."iv
Others flagged the need for expanded advocacy provision to be properly funded, with South Lanarkshire Council also suggesting that any advocacy offered should not "inadvertently undermine efforts to promote personal independence in young adulthood."x
Many stakeholders expressed a desire for there to be clear timescales associated with the introduction of life-long advocacy for care experienced people, highlighting delays in implementing previous legislative provisions.
The Law Society of Scotland cited the "stark example" of advocacy provisions in section 122 of the Children's Hearings (Scotland) Act 2011 "which took nine and a half years or thereby to be implemented,"xi whilst Children First recognised the time it took to establish, recruit and train the national Safeguarder Panel. Children First also suggested that there needed to be more clarity about how and when the Scottish Government will develop and bring forward the secondary legislation required to set up life-long advocacy provisions.xii
Fraser McKinlay of the Promise Scotland highlighted that "various aspects of other pieces of legislation are either progressing or waiting to be commenced that will have knock-on implications for what is in this Bill,"xi citing work to bring more 16 and 17 year olds into the Children's Hearings System, as a result of the Children (Care and Justice) (Scotland) Act 2024, and suggesting that careful thought should be given to the implementation of life-long advocacy provisions, including how these might be rolled out.xi
The provisions relating to advocacy within the Children's Hearings System sit within section 18 of the Bill. The Children's Hearings System has its own distinct advocacy system, which became operational in 2020.
Under existing legislation, section 122 of the Children's Hearings (Scotland) Act 2011 requires the chairing member of the Children's Hearing to inform the child of the availability of children's advocacy services, unless the chairing member considers that it would not be appropriate to do so.i
The 'Hearings for Children' report recommended a number of changes in relation to advocacy provision within the Children's Hearings System. These included—
If a child does not already have an independent advocacy worker, there should be an immediate offer of advocacy at the point of referral to the Reporter for all children. This must be fully explained to children in ways that they understand so that they are aware of what an advocacy worker is and the role that they can play.
The Promise Scotland’s work to develop a lifelong advocacy service for care experienced children and adults should include the extension of advocacy support beyond the entry point to the Children’s Hearings System to children working voluntarily alongside local authorities and to parents and carers too.
The offer of advocacy should be repeated to children and to their families at different stages of the process.ii
Section 18 of the Bill amends the 2011 Act and places new duties on local authorities, police constables, health boards and the Reporter in the context of potential Children's Hearings referrals, to provide a child who has been informed about the referral with information about the referral and the Children's Hearings process, as well as the availability of children's advocacy services under section 122 of the 2011 Act.iii
The 'Hearings for Children' report stopped short of recommending that advocacy should be offered on an 'opt-out' basis. That is, the default assumption should be that advocacy would be provided, unless the child/young person indicated they did not want this. However, several of those responding to the Committee's Call for Views identified this as a desirable option, either for all children and young people attending a Children's Hearing or, if that could not be facilitated, for those groups with the greatest need.
Who Cares? Scotland described opt-out advocacy as absolutely essential for the protection of children and young people's rights in the Hearings system and access to justice, explaining that "when advocacy is explained by an independent advocacy worker, around 98% of eligible referrals have accepted the offer of advocacy,"iv and suggesting that this should be available to all children and young people interacting with the Children's Hearings System, but "as a bare minimum it must be established as a legal right for children and young people referred on offence grounds or subject to a secure care placement."iv
The Promise Scotland queried how the provision for advocacy in relation to Children's Hearings aligned with the changes to advocacy provision and right to advocacy described in Chapter one of the Bill, noting that "children must not be offered multiple different advocacy workers and there must be a clear alignment and transition for children as they leave the Children's Hearing System, including the option to retain their advocacy worker if they have established a relationship with them."vi
Aberlour favoured an opt-in model, suggesting that "advocacy should be consent-based and only put in place where a child wants this, rather than making it a requirement,"vii suggesting that "in many cases the best form of advocacy comes from family support workers, youth workers, social workers and others who have strong relationships with children and young people already."vii
Who Cares? Scotland highlighted the needs of children who would not benefit from traditional forms of advocacy, noting that "supported decision-making (in the form of non-instructed independent advocacy) would ensure that in situations where the child has complex communication or additional support needs, or is younger, they would have specialist support to ensure that their rights are upheld and any communicated views are respected."iv This point was echoed by Matt Forde of NSPCC Scotland, who welcomed the expansion to advocacy provision, but noted that "as the Bill stands, there is a glaring absence of any measures to provide for infants' voices and experience to be represented."x
Sheriff David Mackie highlighted the importance of advocacy being offered as early as possible in the process, citing the post-referral discussion provisions in the Bill, and suggesting that "the child should not be at a meeting with the Reporter without having had the opportunity of securing the support of children's advocacy services for that meeting." There is further detail on this in the "Post-referral Discussion" section of this report.xi
Margaret Smith from Partners in Advocacy also noted that, at present, ten providers are responsible for independent advocacy at Children's Hearings, and the management of that funding comes from the Scottish Government, suggesting that "we need to consider whether that should remain the model, or whether it should be the responsibility of the health board to commission independent advocacy services."x
Others suggested that a focus on advocacy should not take away from the fact that children and young people may also need legal representation at a Children's Hearing, with Maria Galli of the Law Society of Scotland suggesting that there "must be a greater understanding of the absolute human rights requirement for children to be able to access legal advice and representation at the right time."xiii Kate Thompson of CYPCS recognised the importance of lawyers being available to carry out legal aid work, particularly those with sufficient experience to deal with children's rights in a child-friendly manner, both in the Children's Hearings System, but also in other areas, such as housing.xiii
The Promise Scotland noted that work was ongoing in relation to producing regulations which would ensure children who were referred to the Reporter on offence grounds were automatically able to access legal representation.vi
The Minister for Children, Young People and the Promise stated—
Of course, children in the Children's Hearings System have a right to advocacy. If an advocacy worker has been provided, they will have someone there to stand up for their rights. The proportion of children in the Hearings System who take up advocacy is higher, overall, than the proportion of those in the general population of care experienced children and young people who take up advocacy. That speaks to the fact that there can be someone in the room who has the child or young person's best interests at heart. I think that is an appropriate safeguard.xvi
The Committee believes that 'independent advocacy' should be defined on the face of the Bill. Whilst the Committee recognises the value of other forms of informal advocacy, such as support provided by a teacher or social worker, it does not think that this should be a substitute for independent advocacy, where that is what is required.
In the absence of a clear definition of care experience in the Bill, it should be made explicit who will qualify for life-long advocacy and for which purposes. Advocacy should be accessible, relationships-based and designed to meet the needs of all care experienced people.
Any changes via regulations to the list of those eligible for life-long advocacy should be on the basis of a no-detriment policy, i.e. the regulations should not be used to reduce eligibility.
The Committee seeks further clarification as to who would be responsible for facilitating access to advocacy support at different stages of a care experienced person's life.
The Committee heard evidence regarding the potential benefits of opt-out advocacy. It recognises that it would not be feasible to offer this in every setting and, in general, recognises that the advocacy offer to care-experienced people should be provided on an opt-in basis. However, the Committee believes that an opt-out model should be explored in relation to advocacy within the Children's Hearings System, ideally for all children and young people, but as a minimum for those referred on offence grounds or likely to be deprived of their liberty. The Committee asks the Scottish Government to consider this point ahead of Stage 2.
If an opt-out model is adopted in the Children's Hearings System, the Committee is clear that children and young people should be able to change their mind at any point. If a child or a young person does not initially take up the advocacy offer, advocacy should still be offered to them at regular intervals. Similarly, if a young person no longer wishes to work with an advocate, then that should be respected.
The Committee believes that advocacy support should be delivered alongside legal representation, not be a replacement for it. Where legal advice and/or representation is required to safeguard rights, that should be provided.
The Committee recognises the concerns highlighted in relation to how care experienced individuals will prove eligibility for life-long advocacy. The Committee urges the Scottish Government to develop a system that allows care experienced people to evidence their time in care in a straightforward and non-stigmatising way, avoiding any risk of full care records being accessed before the person is ready to see them.
The Committee believes that provision of advocacy support should be built around the needs of the individual, rather than the systems they are attempting to navigate. The Scottish Government should explore how life-long care experienced advocacy could be configured to allow positive working relationships with advocates to continue across different age groups and policy areas, avoiding care experienced individuals being allocated multiple advocates to deal with different issues.
The Scottish Government should also clearly set out its expectations in relation to life-long advocacy provision for those who may no longer be living in the area in which they first became care experienced. This should provide clarity around financial responsibilities and details of how care experienced people will be able to access support in their own local communities.
Sections 5 and 6 of the Bill deal with guidance for public authorities and organisations exercising public functions in relation to care experience, including putting a requirement on Ministers to issue guidance relating to care experienced people and their experiences, in order to promote understanding.
In October 2024, the Scottish Government launched a public consultation entitled "Developing a Universal Definition of 'Care Experience'."i
The consultation sought to explore:
Whether there should be a universal definition of 'care experience';
Who should be included in such a definition; and
What impact having a universal definition might have.i
The consultation also sought to explore issues around the language of care, and to gather information about existing good practice in this area.i
The Policy Memorandum acknowledges the Independent Care Review's findings in the Promise that the term 'care experience' has meaning for many people and it can be helpful as an understanding of personal identity and in understanding shared experiences,i recognising that there are existing supports and entitlements available specifically to people with care experience, however the definition and eligibility criteria for these supports can vary across different organisations.i
The Bill, however, stops short of creating a single definition of care experience. Instead, section 5 of the Bill requires Scottish Ministers to publish guidance in relation to 'care experience.' i
The Scottish Government suggests that the purpose of the guidance will be to develop a better understanding and awareness of care experience and the care system, in order to help reduce stigma associated with individuals who have care experience. It goes on to state that the guidance is designed to apply to all public authorities including Scottish Ministers, local authorities and wider corporate parents.i
When the Committee spoke informally to care experienced children, young people and adults as part of its work on this Bill, some of the issues raised in relation to a potential definition of care experience included—
Participants said it was a big problem that organisations don't know what care experienced means;
There needs to be more education in school so that there is more understanding about what it means and that being care experienced isn't the fault of the child;
There should be measures to reduce stigma - as one person the Committee talked to was scared to admit that she was in foster care when she was asked about her parents/guardians in hospital; she was scared that she would be made fun of.viii
The Committee heard mixed views on the guidance provisions in the Bill. Some acknowledged potential benefits and noted that guidance was a step forward. However, the fact that the Bill did not settle on a definition was met with some disappointment by many stakeholders. There was a sense that the Scottish Government was not starting with a blank page, given the extensive work and consultation that had taken place to date. The Committee recognised, however, that, even amongst the evidence it received, stakeholders struggled to agree on one, clear definition.
Fraser McKinlay of the Promise Scotland suggested that "the consultation that the Government did on definitions probably gave it the answer that we would have expected, which is that lots of people have lots of different views on the matter," suggesting that "I am not surprised that it found it difficult to pin down a definition in the Bill."i
However, a CELCIS consultant with lived experience of care suggested that a clear definition should be possible—
Pretty much every minority group in history has been able to define itself, and it sits deeply uncomfortably with me that the Scottish Government are consulting on it, rather than co-producing it, or better yet, let the community define themselves.ii
However, another individual responding to the Committee's Call for Views suggested that—
There is a fine balance between recognising the disadvantages that care leavers face on a range of measures but not stigmatising them through eligibility for extra support. In my experience, this is all about individual relationships rather than rules and I am intrigued to know how this will be dealt with through guidance.iii
CYPCS were clear that the Bill did not create a universal definition, suggesting that instead, it used different criteria for access to aftercare, corporate parenting duties and advocacy services.iv Children in Scotland suggested that the lack of shared understanding of what constitutes care experience at present creates barriers for children and young people accessing support.v
COSLA noted that "the Bill itself outlines that those who are looked after and those on kinship care order should be included, however, it then leaves it open to include anyone ‘cared for or otherwise supported in such circumstances as are specified in the guidance’," suggesting that "this could potentially cover a very wide range of experiences." vi
Scottish Borders Champions Board told the Committee that "it can be detrimental to people's mental health and ruin confidence if they are told they are not care experienced when trying to access support and means they miss out on support they should be entitled to."vii Rock Trust noted that guidance on care experience had been long-awaited, saying that "two thirds of the young people we spoke with said that they had personally experienced situations where they were either made to feel uncomfortable about their care experience or did not feel that they received the support that they were entitled to, due to a lack of understanding from staff and organisations who were supporting them." viii
Scottish Families Affected by Alcohol and Drugs suggested that a definition could bring consistency to how care experienced young people were supported, noting that it was "not about replacing person-centred practice with a one-size-fits-all approach, but rather, making sure that young people can expect a particular standard of how their care experience will be viewed,"ix with SASW suggesting that "our priority must be to enhance and expand support for those who need it, while being careful not to extend entitlements unnecessarily to those who don't." x
Others queried why the Scottish Government had been so reluctant to bring forward a definition in the Bill, saying that the evidence base for this had already been provided via work carried out by the Independent Care Review, the Care Leavers' Covenant, and the Promise. Scottish Throughcare and Aftercare Forum suggested that these initiatives had already comprehensively covered the conceptual groundwork for a universal definition of care experience, and that what was missing "were tangible signs of implementation of these existing, well-articulated principles." xi
Who Cares? Scotland said, rather than producing more guidance, the Bill should include a duty to develop regulations that define care experience. These regulations could contain a 'due regard' on public bodies, to promote rights-based practice and be inclusive of all care types.xii
CYPCS raised concerns that the proposals in the Bill might place a proactive duty on public authorities to identify care experienced people, citing section 5(2)(a) and stating their view that that this was not compatible with care experienced people’s right to privacy and family life in Article 8 of the ECHR (and in the case of children, Article 16 of the UNCRC), and warning that attempts to comply with this could result in a register of care experienced people being created, which would risk increasing stigma.iv CYPCS goes on to note that care experienced people have the right not to identify themselves as care experienced if they wish, and that the issue "can be easily addressed via an amendment to remove the words “identifying and” from the start of section 5(2)(a)."iv
Others felt that a clear definition of care experience was already in existence, with South Lanarkshire Council suggesting that section 17(6) Children (Scotland) Act 1995 provides the legal circumstances in which a person is considered 'looked after' by a local authority, suggesting that "this, along with the accompanying statutory guidance on Looked After Children and the Adoption and Children (Scotland) Act 2007 provides an adequate definition in clear legal terms."xv
Includem suggested that "if the desire is to genuinely create a universal definition that applies to the wide range of care experience, previous legislation should be amended to create consistency, rather than confusing the current landscape further by introducing additional guidance, which does not have legal standing."xvi
In her evidence to the Committee on 5 November 2025, the Minister stated—
I believe that there could be a downside to defining 'care experience' in the Bill. We have already discussed [...] the issue of different groups, or certain young people, feeling that they might be left out, and so having a clear and rigid definition on the face of the Bill could cause problems in the future. Working that through in guidance, as we propose to do for a number of other areas in the Bill, would allow for the issue to be considered and worked on with children and young people [....] it would also allow us to have the appropriate time and flexibility to get to the heart of what we are trying to do.xvii
Whilst recognising that there is a wide range of initiatives already underway at a local level to address issues around language, the Policy Memorandum states that the inclusion of language in national guidance is designed to “set a national and consistent direction for the language used in and around the care system.”i
As CELCIS highlighted in its written evidence—
For some care experienced people, the language used to write or speak about them and their care can contribute to stigma and discrimination felt across generations...At times, language can continue to focus on the deficits of people with care experience and reinforce negative stereotypes about what people with care experience are like or what they can achieve.ii
A focus group with care experienced young people in Aberdeen highlighted the stigma and misunderstanding surrounding care experience young people experienced, with the young people saying that they supported clearer guidance and language.iii North Ayrshire Council suggested that the guidance "will assist shifting perceptions from deficit-based labels such as "looked-after child" to more empowering identities."iv Who Cares? Scotland noted that "almost 50% of Care Experienced adults reported during our Lifelong Rights campaign that they feel stigmatised when receiving support,"v and therefore voiced support for the Bill's proposals around language.
Clackmannanshire Council observed that stigmatising language in relation to care experience was often borne out of language contained in legislation, providing the example of the term looked after children, and suggesting that legislators should consider how to rectify this. vi
Others felt that, whilst language was an important component, wider cultural change was also required, with HUB for SUCCESS suggesting that "a superficial approach - in which policies change but behaviours do not - will fail to deliver the meaningful shift in awareness and support that care experienced people deserve."vii Children's Services at Renfrewshire Council suggested it would also be important for the guidance to clearly set out what constitutes success, and how this will be measured.viii
Children in Scotland suggested that, to be truly impactful, the guidance should also be co-produced with people who have care experience, and suggesting that this should be a specific requirement within the Bill.ix
Moray Council/Health and Social Care Moray suggested that individual children will have different views of the language within their reports and assessments, and therefore any national guidance should be based on the principle of allowing children themselves to determine the language they would like to see in their records, assessments and reports.x
Cyrenians noted that whilst work to combat stigmatising language was welcome, their view was that a shared, universal definition would have done more to clarify the rights of young people with different experiences of care.xi
The Committee recognises the value in creating guidance to help improve the experiences of care experienced children, young people and adults, however, it believes that the lack of a clear definition of care experience in the Bill is unhelpful.
The Committee is supportive of Who Cares? Scotland's proposal that the Bill should include a duty to develop regulations that define care experience, with public bodies having to pay 'due regard' to this duty, in order to promote rights-based practice and be inclusive of all care types. The Committee asks the Scottish Government to respond to this proposal, ahead of Stage 2.
The Scottish Government should set out how it plans to involve the care community in shaping this duty, and producing associated guidance. The Scottish Government should also provide clear timescales for its production. This should include details of how it will be reviewed in future, to ensure that any guidance keeps pace with the changing care landscape and remains fit for purpose.
The Committee draws the Scottish Government's attention to the concerns raised by CYPCS about the provisions in section 5(2)(a) of the Bill regarding the duty on public authorities to proactively identify care experienced people and seeks its views on how this issue might best be resolved.
The Committee recognises how damaging and stigmatising language in relation to care can be. The Committee recognises that guidance is an important first step in tackling this stigma. However, the Committee believes that there is also merit in the Scottish Government reviewing current legislative terms used in relation to care experience, with a view to further reducing stigma in future.
Section 8 of the Bill deals with profit limitation in relation to children's residential care services. This introduces regulation-making powers which are designed to enhance financial transparency by requiring certain residential care providers to provide financial and other relevant information about the operation of their services. This includes information that would help the Scottish Government understand the fees charged for placements and the final costs paid by local authorities.i
Any imposed profit limitation requirement would be paired with a continuing information requirement. This would be used to determine whether the profit limitation requirement should be adjusted or removed over time. Before any such measures could be introduced or changed, Scottish Ministers must consult with local authorities, representatives of service providers, and any other stakeholders they consider appropriate. Scottish Ministers could also make regulations enabling them to impose financial penalties for failure to comply with a profit limitation or information requirement.ii
Under section 8, Scottish Ministers would be able to impose or change a profit limitation requirement only if:
1. It is necessary in the public interest, specifically to ensure that the residential care providers offer services that represent value for money.
2. Scottish Ministers have considered: ◦ initial information from providers (if it is the first time the requirement is being imposed) ◦ ongoing information (if the requirement is being modified or reimposed).
3. Scottish Ministers must also take into account: ◦ the well-being of children looked after by local authorities ◦ the interests of local authorities ◦ the interests of care providers, including their ability to make a profitii
The Independent Care Review stated in the Promise that—
There is no place for profit in how Scotland cares for its children. Regulatory bodies must scrutinise any presence of profit to ensure that funds are properly directed to the care and support of children.iv
When the Committee spoke informally to care experienced children, young people and adults as part of it work on this Bill, some of the issues raised in relation to profit included—
We shouldn't be profiting from vulnerable children who have been through so much trauma and experiences that have never been their fault in the first place;
I think profit is not necessarily a bad thing depending on who it is benefiting - e.g. if it's going back into services for children and young people, not the shareholders;
This [Bill] needs to make sure it doesn't affect current people - who are settled in a placement where they feel secure - but it should affect newer placements.v
The Committee notes that the Bill's proposals are being considered in the context of wider reforms are taking place across the UK, designed to limit profit in residential childcare. This includes the Health and Social Care (Wales) Act 2025, which legislated to end private profit in children's residential and foster care by 2030. vi In England, the Children's Wellbeing and Schools Bill is currently making its way through Westminster, and is designed to enhance financial transparency in the sector and bolster Ofsted's powers to tackle excessive profit.
The Committee notes that the proposals relating to profit limitation were not consulted on prior to the introduction of the Bill.
A public consultation by the Scottish Government was subsequently launched in August 2025, closing on 6 October 2025. At the point of drafting this report, the analysis of that consultation was not yet available.
This was a matter of concern for several stakeholders, with the Law Society of Scotland describing the inclusion of the provisions around profit limitation in residential care as "premature"i Social Work Scotland suggested that the provisions in the Bill constituted "a plan to have a plan", believing that it would have been more effective to plan, fully consider and mitigate for any unintended consequences before framing anything into legislation.ii
The Minister suggested that there was insufficient time to consult ahead of time, stating that "I had to consider a range of factors in relation to what would be in the Bill and the appropriate timescales for those," before going on to say that "I am very clear that the timescales would not have allowed for a consultation to have been undertaken prior to the introduction of the Bill."iii
Whilst supportive of the ambition to limit profit in residential child care, many stakeholders queried exactly how this would work in practice, including how 'excessive profit' itself would be defined. The vast majority of those responding to the Committee's Call for Views recognised that 'profit' should be dealt with separately to 'surplus,' which was money that would be reinvested into services.
Fiona Duncan, Independent Strategic Advisor at the Promise Scotland, stated that the Independent Care Review concluded in the Promise that "all of the money that the state dedicates to the wellbeing of a child, family or care-experienced adult should be dedicated to them" and that using that money to pay dividends was not the best use of those funds.i
Several stakeholders responding to the Committee's Call for Views highlighted a lack of information in relation to current levels of profit-making across Scotland, suggesting it would have been more helpful to have a clear picture of this before legislation was drafted.
Others felt it was particularly unhelpful for the detail of these proposals to be left to secondary legislation, with Claire Burns of CELCIS suggesting that "the Government does not know enough and is making provision so that it can act if it feels that is necessary after the work has been done."i
There were mixed views on how 'profit' should be calculated, with many noting that private residential care providers and third sector providers often re-invest profits into services for young people. If profit were to be calculated purely on the basis of money made in excess of the costs of providing a placement, then the ability to re-invest in services, and therefore improve the experiences of young people, could potentially be curbed.
Quarriers suggested that it was vital to distinguish between profit and reasonable surplus generation, noting that for Quarriers and similar organisations, the ability to reinvest was essential to maintain quality, develop staff, and improve outcomes.iii Scotland Excel recognised that a service may be best placed to meet individual needs and may be lower cost, despite generation of profit, in comparison with an alternative provider operating on a not-for-profit basis.iv
Lynne O'Brien from Aberlour pointed out that organisations that provide care and support for children need to be financially stable and sustainable in order to do that, suggesting that "we must not conflate two issues: the level of profit and/or surplus, and profiteering," and that "we do not want to get into a situation in which organisations are heavily scrutinised and restricted, because that will reduce their ability to respond in the best way to provide children's care and support."v
Some stakeholders supported going further than the provisions in the Bill, with Natalie Williams of the Fostering Network suggesting that Scotland should follow the lead of Wales and require residential care to become not-for-profit,v with other stakeholders, including COSLA, suggesting that residential care services should be required to register as charities, aligning with IFAs.vii
The Minister stated that she could not yet define what might constitute "excessive profits," saying that "there is a complexity here, because we know that there could be an element of reinvestment, whether it be in the estate, a centre or whatever," and suggesting "giving ourselves more time to develop this area further is, I think, very appropriate because we want to get it right."viii
Whilst appreciating the impetus for change in this area, stakeholders also recognised the potential for this proposal to bring about unintended consequences, both for individuals currently in the care system and across the sector more widely. This included the risk that some private providers may withdraw from the market, and the potential for individual placements to be disrupted, meaning young people might have to move on from settings in which they were happy and settled.
COSLA, Glasgow City HSCP, SOLACE, and SSSC were all concerned that the Bill could impact negatively on the availability of residential care placements for children and young people, with the risk being that providers could leave the sector, or diversify into other areas. Dundee IJB and South Lanarkshire Council highlighted the potential for further destabilisation to the sector, given that profit in adult care would be allowed to continue.i
COSLA also expressed surprise that the option of strengthening local authority residential care capacity had not been explored in the context of the Bill, despite this being a core part of the approach in Wales."ii Charlotte Wilson of the Care Inspectorate suggested that Scotland could learn from Wales, specifically in relation to managing risks around providers leaving the market, given their proposals were further advanced.iii
In considering the proposals around profit limitation, stakeholders pointed out that the placements most likely to attract profit were often those that were very specialist in nature. This might include, for example, placements for young people with complex needs. As such, the potential for these providers to withdraw from the market carried significant additional risk.
Professor Soumen Sengupta acknowledged that "when we commission independent or private sector provision for high-cost placements, we do that not as a policy preference, but out of necessity," noting that "...we are talking about the provision of support to very complicated individuals, the interventions for whom need a high degree of specificity and a high level of staffing input which is not readily available in most local authority areas" and that "most areas cannot provide that kind of service on their own."iii
Social Work Scotland noted that public sector services face unique pressures, as they cannot decline to provide care to children with complex needs, unlike private and voluntary providers.i
Gavin Henderson from the Scottish Government highlighted that "many children who receive such services have additional needs and there is complexity around the tailored support package that they need," recognising that "that is part of the challenge, because a range of families rely on quite intensive and supportive services in children's homes in Scotland," and suggesting "we need to ensure that, as we move towards the zero-profit system in order to keep the Promise, we do not create disincentives for current private sector providers [...] we do not want those providers to remove themselves from the market, because that will mean that families will not get the support that they currently receive."vi
The Committee also explored whether profit limitation could bring additional benefits in respect of improving the quality of care available. However, evidence on this topic was limited. Charlotte Wilson spoke of the gradings that were provided by the Care Inspectorate and suggested that "broadly speaking, the voluntary sector is performing slightly better than the private sector and, in turn, the private sector is performing slightly better than the public sector," before noting that "the gap has been closing over the past few years so, at the moment, there is not a huge difference."iii
When asked about the risk of new measures potentially disrupting existing care arrangements, the Minister stated—
We absolutely must strike a balance. There will be consequences, but I hope that we would all agree that there should be no excessive profiteering from the care of children and young people. If we do take that stance because we think that it is necessary to delivering on the Promise by 2030, we must take steps towards that. The steps that we are taking are timeous and proportionate and will give us time to develop the work and get it right, which, [....] is my priority.vi
The Committee recognises the intention behind these provisions is to address the issues highlighted in the Promise around excessive profit being made from the provision of care. However, the Committee is concerned that the Bill, as currently drafted, seeks information from providers to form a picture of the sector which should have been formed ahead of the provisions in the Bill being introduced.
The Committee notes that there is a significant difference between care providers generating a surplus that is then reinvested into improving and supporting services, versus generating large profits which are used to bolster the finances of private individuals.
The Committee is disappointed to note that, as much of the detail of these proposals is still to be worked out in secondary legislation, it is not yet clear how the Scottish Government would seek to determine what constitutes "excessive profit" and how often this figure might be revisited. The Committee agrees with the points raised by stakeholders in relation to this issue, and believes that an understanding of this approach will be key to assessing whether these proposals are workable, or whether they risk disrupting an already fragile market.
The Committee notes the issues raised in relation to specialist provision, and the potential impact of these services closing or diversifying into other areas. The Committee seeks further clarity from the Scottish Government as to how it proposes to mitigate that risk.
The Committee also seeks further information around any work the Scottish Government may have undertaken to gauge the potential for tackling excessive profit in the sector by bolstering local authority provision, and how this might link into the proposals set out in the Bill.
The Committee notes that the issue of profit limitation in residential care was not consulted upon prior to the introduction of the Bill. The Committee is therefore not convinced that these provisions are sufficiently thought through and that, as currently worded, may have negative implications for provision in the sector. The Committee believes that this section of the Bill should be heavily amended, once the analysis of the Scottish Government's consultation on this topic is available.
The Committee would also appreciate further information about how the Scottish Government intends to factor in the findings of its consultation into its Stage 2 amendments.
Section 9 of the Bill introduces a requirement for all IFAs to be registered charities within the United Kingdom before being authorised to provide fostering services in Scotland.i
A young person from the South Ayrshire Champions Board set out their thoughts on the proposal in response to the Committee's Call for Views—
The thought of something being a charity and not a business makes it feel more like it cares, so then I suppose I'd feel more like I'm cared for. Really when it comes down to it, it's the people that you see every day that matter, we should be looking at how they behave.ii
At present, Section 59(3) of the Public Services Reform (Scotland) Act 2010 requires that IFAs be voluntary organisations.i
Currently, 16 of Scotland's 25 IFAs are operating as registered charities, and the remainder operate under private or corporate structures, with some linked to parent companies which are not subject to the not-for-profit requirement. The Policy Memorandum suggests that this has led to concerns about financial transparency, public value, and the reinvestment of public funds.i
The Scottish Government suggests that the provisions in the Bill will address concerns, raised by the Competition and Markets Authority's 2022 market study into children's social care provision in Scotland, England and Wales,v that some IFAs "may be transferring funds to parent companies through mechanisms such as unsecured loans, undermining the not-for-profit principle."i
The Fostering Network and Children in Scotland voiced support for changes, including their phased introduction, as this would avoid disrupting placements. The Fostering Network suggested that any change should be accompanied by clear information for foster carers to help them understand the reasons behind this.vii
Children in Scotland also sought clarification as to how compliance will be monitored and whether there will be consequences for those who are unable to meet new requirements within the given time frame.viii Children's Services at East Lothian Council queried whether IFAs could remain registered in England and continue using Scottish resources to place English children and young people, and suggested that this raised important questions about cross-border regulation and accountability.ix
Common Weal was supportive of proposals, suggesting they would allow the loopholes allowing ostensibly not-for-profit organisations to transfer monies accrued from local authority payments to profit-making parent companies to be closed.x
Others, however, felt there would be limited gains from implementing the Bill's proposals, with the Nationwide Association of Fostering Providers suggesting that as IFAs in Scotland are already not-for-profit, regulated by the Care Inspectorate, and commissioned and monitored by local authorities for outcomes and cost and, as such, there is already sufficient accountability and transparency in the system.xi
Includem highlighted existing recruitment difficulties for foster carers, suggesting that a move to charitable status for all IFAs could negatively impact upon that.xii Polaris Community suggested that there was insufficient evidence to suggest that the proposals would improve the quality of provision and outcomes for young people, and suggested that instead the existing model should be retained, with increased financial transparency, as a less disruptive way of achieving the same aims.xiii Scottish Throughcare and Aftercare Forum stressed that the priority should be the stability and quality of placements for young people, rather than the charitable status itself.xiv
Charlotte Wilson stated that it was important for the Financial Memorandum to reflect that asking fostering agencies to re-register would have implications for the Care Inspectorate, as would any role for the Inspectorate in relation to financial transparency or profit limitation in residential childcare.xv
The Fostering Network and COSLA expressed concern that potential loopholes may still exist despite stronger reporting requirements for charities under section 9.xvi
The Committee was interested to explore why the Scottish Government had chosen to take a different approach towards tackling profit in IFAs than that employed for residential care providers.
The Minister suggested that if she had taken the same approach towards IFAs and residential care providers then this would have created a much greater risk of destabilising the market, given that all IFAs already operate on a not-for-profit basis and the vast majority have charitable status, noting—
At the moment, 48 per cent of residential services are run by private providers so, if those two measures were applied in the same way immediately, there would be a higher risk of losing placements or providers exiting the market. The proposal reflects a more balanced approach. I think that we could still get there with the residential side, but that approach reflects a more timely and safer way of doing so, to ensure that we do not lose out on placements.xvii
The Committee heard that stakeholders were broadly supportive of requiring IFAs to register as charities, as long as there was sufficient lead-in time to allow for a smooth transition period, which would avoid disruption to the market.
The Committee recognises that a move to charity status is likely to alleviate concerns around profits being diverted away from not-for-profit organisations. It recommends that, should these proposals go ahead, the focus should be on ensuring that existing placements are protected, to provide stability for children and young people.
The Committee seeks further clarity from the Scottish Government in relation to how the Bill's proposals will affect IFAs registered in England, who may also seek to place children and young people in Scotland.
Section 10 of the Bill amends the Children (Scotland) Act 1995 (the 1995 Act) to give Scottish Ministers the power to 'make arrangements for the establishment and maintenance of a register of foster carers' in order to facilitate approval of carers and placement of children at a local level.i
The Scottish Government notes that proposals will not change the approval process of foster carers and placement of looked after children and that its objectives in creating a register are to enhance safeguarding, support the professional recognition of foster carers, support the mobility of foster carers, support better respite arrangements, provide robust national data on foster carers to inform recruitment and policy development, improve matching in care and provide a national platform to support and inform foster carer training and professional development.i
A register had previously been mooted as part of a Foster Care Review in 2013, but was rejected on the grounds of cost, administrative burdens and data security.i However, the issue was raised once again via the Independent Care Review, which concluded in the Promise in 2020 that a national register should be created.iv
The Committee heard a range of views on these proposals. Some stakeholders were supportive, recognising the potential benefits a register could bring. However, this support was often caveated with the fact that the detail of these proposals will sit in future regulations, with Claire Burns of CELCIS, suggesting "it would be helpful for the Scottish Government to be clearer about the problems that it is trying to solve with the register."v. Others voiced concerns about what the register would mean in practice for children and young people, foster carers, and those working alongside them.
A care experienced young person, participating in a focus group at Aberdeen City Council stated—
I think it is really important for there to be a register for foster carers. It helps reassure us that they have been checked properly and can look after us well.vi
A key concern for some stakeholders responding to the Committee's Call for Views, however, was whether a new register would lead to duplication of effort.
Scottish Borders Children and Young People's Partnership noted that foster care is already heavily regulated in terms of assessment, registration and de-registration of carers, and suggested that information around foster carer numbers was readily available through the Care Inspectorate.vii COSLA raised similar points, suggesting that a national register could further complicate existing processes or duplicate recording.viii Shetland Islands Council highlighted that there are already robust processes in place for the recruitment, training and supervision of foster carers, noting "it is not clear what the rationale behind a national register is, or what it is intended to replace."ix
Aberdeen City Council voiced significant reservations about the proposals, viewing the register "as an unnecessary layer of bureaucracy with limited practical benefit for fostering services."x
The Minister stated that "there are two key ideas at the heart of the proposal for a register: promoting a positive experience, and the safety of children," noting that "a national register will work to strengthen safeguarding and transparency so that we do not repeat the mistakes of the past."xi
The Minister went on to note that "the Scottish child abuse inquiry has heard about the need for more consistent and joined-up protection for children," suggesting that "at present, we have no national mechanism for tracking who has been approved as a foster carer, what their history is and whether their current status is active, suspended or withdrawn," and that "a national register would help to support consistent oversight of foster carers across Scotland and to ensure that fostering services have access to accurate, up-to-date information so that decisions can be made in the best interests of children and young people."xi
One of the key benefits cited by the Scottish Government in creating and maintaining a register of foster carers was to improve safeguarding, namely that the register would make it easier to track those individuals who had been de-registered, or about whom there were significant concerns.
South Lanarkshire Council recognised the potential benefits a register could bring in that regard, noting that the current absence of a centralised register creates a vulnerability whereby individuals de-registered due to concerns may re-enter the system through another provider without full disclosure.i Children and Young People's Commissioner Scotland (CYPCS) also recognised that the register was likely to have significant benefits in terms of safeguarding.ii
Quarriers suggested that if the register was designed well, it could prevent unsuitable carers moving between agencies undetected, reduce duplication for carers transferring between services and provide better national data to inform recruitment and planning. However, their support was conditional on the register being clearly defined in scope and purpose, designed to complement existing regulatory frameworks, developed in partnership with foster carers and sector stakeholders, including robust data protection and consent mechanisms and adequately resourced. iii iii
CELCIS, however, warned against a national register being viewed as "a panacea for all safeguarding concerns" or regarded as a replacement for the robust safeguarding checks already undertaken at present. CELCIS also queried whether the register would record other types of information, such as a foster carer who resigned after allegations had been made against them but were not proven, rather than someone who was de-registered.v
Whilst Social Work Scotland members acknowledged the improved safeguarding benefits offered by the register, they questioned whether a 'de-registered carer/not progressed' register may be more effective.vi This point was also raised by Glasgow City Health and Social Care Partnership who suggested that a register of de-registered carers could be more valuable than what is proposed in the Bill, and that this register could be managed via Scottish Social Services Council/Care Inspectorate or PVG/Disclosure Scotland processes.vii
Several stakeholders identified potential opportunities for the register to go further than what is envisaged in the Bill, or to be used in a slightly different way.
South Ayrshire Council and Health and Social Care Partnership recognised the potential for a register to encourage greater collaboration, and promote greater understanding of the foster care resource geographically,i whilst North Ayrshire Council suggested that a register could elevate the status of foster carers and help standardise training, qualifications and vetting procedures, ensuring high-quality care across the country.ii Scottish Adoption and Fostering also highlighted this as a potential benefit, recognising that having a central record of foster carers would support an accredited pre- and post-approval training framework and robust national standards of practice, potentially improving the quality of care for children and the status of foster carers too.iii
Who Cares? Scotland suggested that the register could also "record complaints and concerns made about a foster carer by a child, young person or other relevant person to help identify concerning patterns in behaviour."iv This point was echoed by other stakeholders, including Children in Scotland. v
The Promise Scotland identified opportunities in relation to workforce planning, suggesting that the register could bring the foster care role in line with other roles that have significant daily contact with children and require national registration.vi
Another potential benefit identified by the Scottish Government in progressing a national register of foster carers was that it would "enable local authorities to find and commission placements more effectively, improving matching for children in care."i
The Highland Council suggested that it was broadly supportive of a national foster care register if it enables better matching of children to carers, before going on to note that "children from the more urban local authorities, who are part of a cluster of local authorities such as those in the central belt, are more likely to be beneficiaries."ii
Many stakeholders remained unconvinced that the register would lead to such improvements, voicing concerns that instead it may lead to children and young people being placed outwith their local area.
Social Work Scotland suggested that the proposals went against local drives to keep children local, close to their family and community,iii whilst Barnardo's Scotland suggested that a national register should not result in an unintentional increase in out of area placements.iv COSLA described the potential matching benefits as "counter-intuitive," noting that the Promise clearly stated that where children and young people cannot live with their parents or family members, they should remain within their communities.v
Many of those responding to the Committee's Call for Views highlighted the precarious nature of the current foster care workforce. Some saw that the register could help improve this situation (e.g. in relation to workforce planning, recruitment and retention), whilst others flagged potential risks with asking a workforce that is already intensely scrutinised to undergo further scrutiny.
COSLA suggested that the most pressing concern currently was the crisis in retention and recruitment of foster carers, suggesting that a national fostering register would not resolve this and instead it would distract attention and vital resources away from meaningful work to address this.i
Social Work Scotland highlighted that their members had concerns that a national register may be a means to monitor what agencies are doing, and who is approved, and suggesting that this could impact negatively on recruitment and retention.ii
Aberdeen City Council suggested that the register should have a clear purpose, noting that foster carers are self-employed and not employees and that there are concerns both about the potential inclusion of sensitive financial information on the register and the risk of oversimplifying the complex process of matching children with carers.iii
SSSC recognised that a register could potentially contribute to workforce planning and development, noting that their data on the SSSC registered workforce supported national workforce planning and had played a key role in policy initiatives, such as helping to shape and inform the national expansion of funded early learning and childcare.iv
Given that the detail of these provisions will be set out via regulations, those responding to the Committee's Call for Views had a number of unanswered questions. These included queries about how the information in the register would be collected, whether foster carers would be compelled to supply this, and whether there would be penalties for non-compliance.
A key issue raised was who should manage the register once it was created, and specifically how this would fit with existing regulatory processes. There was recognition that the register would need to be regularly updated to remain current, a task which could potentially be administratively burdensome.i
Moray Council/Health and Social Care Moray suggested, however, that the benefits of a register, including improved safeguarding for children and data collection for workforce planning, outweighed any additional administrative burden associated with the establishment and maintenance of a register.ii
Scottish Borders Children and Young People's Planning Partnership wondered who would meet the costs of maintaining the register, whether family details would be required and what impact the register might have on foster care recruitment and retention. iii The potential inclusion of wider information on the register was also raised by Social Work Scotland, who were concerned about the inclusion of information about a carer's family members, suggesting that their members felt this was overly intrusive.iv Social Work Scotland also flagged that including the position of children adopted or in permanent care with a carer in the register could raise other wider privacy issues.iv
CELCIS queried whether registration would be voluntary or compulsory, if a fostering agency would be compelled to provide a foster carer's details for such a register if that foster carer did not want to provide their details and whether a foster agency would be determined to be at fault if incorrect information were inadvertently provided.vi Renfrewshire Council also queried who will be able to view or update the register and under what conditions.vii
Aberdeenshire Council wondered how the register would record circumstances in which someone withdrew from being a foster carer due to personal reasons such as ill health or a change in circumstances and whether they would then be added to the register, or if the register would only record concerns that had been raised.viii Scottish Adoption and Fostering wondered whether there would be an annual cost to foster carers for registration, suggesting that this might provide a "disincentive to foster".ix
SSSC, alongside several other stakeholders, suggested it was important to consider how the register aligns with the Care Inspectorate's regulatory role and the role of local authorities,x whilst Maree Allison of the SSSC addressed previous suggestions that SSSC could potentially maintain the register,iexplaining that—
We register groups of professionals, and we require them to comply with consistent national standards, to be qualified and to undertake continuous professional learning. However, we also make independent decisions on their suitability to practice and look at any concerns about their ability to practice while they are on the register, and there were differing views amongst foster carers on that concept forming a professional identity and being a professionally regulated workforce.i
When asked who might be responsible for maintaining the register, the Minister stated—
I do not have a straight answer at the moment, but the register will be created by secondary legislation, which will allow us time to consider the points about having an independent holder for the register, as well as other matters.xiii
The Committee is in principle supportive of the creation of a register of foster carers, but suggests that there is work to be done by the Scottish Government to ensure that there is greater clarity around the purpose of such a register, what information would be contained within it and who would bear responsibility for and the costs associated with maintaining it.
The Committee recognises that, if proposals to create a register go ahead, this should take place in close collaboration with the foster carer workforce to ensure it fits with their aspirations for improved training and consistency, and alleviates concerns about potential over-reach in terms of the information collected. The Committee calls on the Scottish Government to provide further information in relation to this point ahead of Stage 2.
The most positive elements arising from a register appear to be in relation to safeguarding, and in particular the ability to monitor the movement of foster carers who may be of concern, as they move between agencies or areas. The Committee remains unconvinced that a register will provide similar benefits for matching and asks the Scottish Government to set out how the register could improve matching, whilst keeping children and young people as close to their own families and communities as possible (where it is in their best interests to do so).
The Committee draws the Scottish Government's attention to the suggestion made by several stakeholders, that a register which captures only those who have been de-registered as foster carers, rather than a wider register of all foster carers, may be desirable. The Committee asks the Scottish Government to set out its views on this proposal, including in relation to how this might interact with existing child protection mechanisms, including the Protecting Vulnerable Groups scheme. If such an approach is taken, the Committee would encourage the Minister to set out a clear plan for how the other perceived benefits of a register, in relation to the opportunity to further professionalise foster care, offer training and workforce planning, could be progressed through other means.
The Committee draws the Scottish Government's attention to the other information that foster carers, and those supporting them, are seeking in relation to the register, and seeks a response to these issues ahead of Stage 2.
The Bill makes a number of significant changes to the operation of the Children's Hearings System, including to the test for referral to a Hearing, the composition of panels, requirements around children's attendance at Hearings, and terms of compulsory supervision orders (CSOs) and interim variation of CSOs.i
A CSO is a legal order that means the local authority is responsible for implementing the child's care plan and promoting their welfare. Section 83 of the Children's Hearings (Scotland) Act 2011 sets out the meaning of CSOs and the conditions they contain. These include conditions of residence stating where the child must live, in addition to other conditions such as contact with family members. Where a Hearing defers a decision regarding a child not already subject to a CSO, an interim compulsory supervision order (ICSO) may be made.i
The Promise Scotland set out what the Promise said was required for meaningful change in this area—
the focus of the Children's Hearings System must be the children and families who appear before it, where their rights are upheld and protected;
there must be particular attention paid to the rights of brothers and sisters to ensure that they have all their legal rights upheld;
Scotland must comprehensively assess and consider the role of volunteers in the decision-making structure of Hearings;
The Children's Hearings System must plan to shrink and specialise;
Everyone involved in the Children's Hearings System must be properly trained in the impact of trauma, childhood development, neurodiversity and children's rights.iii
One of the key methods in progressing the change envisaged by the Promise was the creation of the Hearings System Working Group, chaired by Sheriff David Mackie, which brought together a wide range of organisations and care-experienced children and young people to establish exactly what was required to bring the Children's Hearings System into line with the Promise.
The group published its report 'Hearings for Children' in May 2023. The key recommendations arising from that report were:
Ensuring equitable availability of, and access to, early and ongoing help and support for children and for their families. In particular, ensuring all children and families are able to access the help and support that they need, when they need it, in the way that they need it, for as long as they need it. This includes access to holistic, whole family support in line with the conclusions of the Independent Care Review and the Scottish Government’s Blueprint.
Actioning the Scottish Government’s commitment to spending at least 5% of all community based health and social care on preventative whole family support measures by 2030.
Urgently addressing the challenges relating to the recruitment, retention and resourcing of child and family social work teams.
Paying serious and sustained attention to maintaining and supporting the children and families’ workforce so that they are best placed to undertake the complex work required of them in a way that is characterised by a rights-respecting, trauma informed approach. This includes the third sector workforce.
Ensuring consistent, high-quality provision of Family Group Decision Making and Restorative Justice services across Scotland.
Addressing the pervasive impact of child poverty, the links between poverty and the Children’s Hearings System and ensuring these recommendations are linked to the national work to reduce poverty and meet the child poverty targets.iv
The Scottish Government published a response to the report, and the specific recommendations of the Hearings System Working Group, and of the recommendations, the Scottish Government accepted 63, accepted 26 with conditions, declined 7 and sought to further explore or consult on 42.iii
A Redesign Board (jointly Chaired by the Scottish Government and COSLA) has also been established and Sheriff David Mackie has also been appointed as Independent Adviser on Children's Hearings Redesign by the Minister for Children, Young People and the Promise. Sheriff Mackie is not a member of the Redesign Board itself.iii
Many stakeholders acknowledged the need for transformational change within the Children's Hearings System (CHS), recognising that there was a need to modernise processes to both fulfil the Promise and to take account of legislative and societal changes, which meant that the cases the Children's Hearings System was dealing with were more complex.
Social Work Scotland suggested that "we ask a huge amount of volunteer panel members and panel chairs, who are often unable to manage the complexities of trauma, need and challenges they face, including complex legislation." Social Work Scotland also stated that their members felt Hearings ran better and were more child centred prior to the 2011 Act, when Reporters routinely attended hearings ensuring that both process and legislation were followed and suggested that a return to this approach would be welcome.i
The Law Society of Scotland suggested that whilst some of the proposed changes were to be welcomed, others risked undermining the whole ethos of the Children's Hearings System, noting that "rather than providing a comprehensive revision of the Children's Hearings Scotland, these reforms do an incomplete job."ii
The Promise Scotland suggested that the provisions in this Bill go only part-way towards making the significant changes demanded by the Independent Care Review in the Promise and reflected in the 'Hearings for Children' report, noting that there were some significant omissions from the Bill which will prevent the aspirations set out in 'Hearings for Children' and the Independent Care Review from being realised.iii
Some stakeholders noted that, over time, the Children's Hearings System had become more adversarial in nature, and that this was negatively impacting on the experience of children and young people, those supporting them and panel members themselves.
Sheriff David Mackie noted the 'Hearings for Children' report called for the Children's Hearings System to return to the values of the original concept devised by the Kilbrandon Committee,i suggesting that a declaratory provision on the face of the Bill identifying the Children's Hearings System as an inquisitorial, non-adversarial process would "provide the chairs of Children's Hearings with a foundation of authority that they could use to administer Hearings and which would allow them to take a rights-based approach that would give them strength in the Hearings."ii
At present, Children's Hearings are comprised of three panel members. This includes a Chairing Member and two other panel members. All three are currently volunteers.
The 'Hearings for Children' report suggested that there were a number of procedural decisions about a Hearing that could and should be made by the Chair alone, in order to reduce the delays caused by Hearings being deferred for procedural decisions and allow for a Hearing to focus solely on the best interests of the child.i
The Policy Memorandum states that section 111 of the Bill provides the National Convener with the authority to convene Children's Hearings composed of a single panel member for certain defined preliminary decisions, and, in narrow circumstances, Interim Compulsory Supervision Orders (ICSOs) where necessary.ii
These preliminary decisions include a pre-hearing panel, decisions on relevant person status, decisions about appointing safeguarders, attendance excusal, whether people can attend by electronic means and urgent interim compulsory supervision orders to move a child to a place of safety.iii
Any single member panel decisions would be taken by the Chairing Member, without the need for a full three panel hearing to be convened.ii The Bill also maintains current appeal elements for certain preliminary decisions made via a single panel member. The rationale behind the changes is that this would release capacity into the system and allow more time for volunteer panel members to make key decisions.ii
The Scottish Government's own consultation on the issue received mixed results, with 47% of those responding suggesting single member panels should be able to make certain procedural decisions and 53% suggesting they should not. ii
Whilst the Committee heard some support for these proposals, it also heard that the circumstances in which a single member panel could be convened would need to be carefully prescribed. Others suggested that this was an untested approach and it was therefore difficult to judge its effectiveness. Several stakeholders highlighted the perceived benefits of continuing with the current three member panel, particularly in relation to fairness and balanced decision-making.
Sheriff David Mackie, Chair of the Hearings System Working Group, was sceptical of the proposals in the Bill for single member Hearings, noting that, rather than reducing the number of times children and young people may have to attend, this proposal could potentially add to this—
The Bill provisions will facilitate the growing challenge of management of a diminishing resource of volunteer panel members and the fixing of Hearings by not requiring three members each time. This gives the impression of making it easier for the system but does little to improve the lot of children or their parents or other relevant persons. On the contrary, if the single member considers that compulsory measures of care are required, they are not empowered to make a Compulsory Supervision Order and must adjourn for a three-person panel to be convened which can make a Compulsory Supervision Order. This will surely happen in most cases. For the child, their parents and other relevant persons they will be obliged to attend an additional hearing.vii
John Trainer of Social Work Scotland described the issue of single member panels as "incredibly challenging" and therefore difficult for him to give unqualified support to, noting that these proposals will mean a single member being charged with making an incredibly powerful decision about intrusion into a child's life.viii Alistair Hogg of the Scottish Children's Reporter Administration suggested that "we have not tested the single-member panel proposal, so I guess we are in the dark as to what benefits it will bring."iii
Children's Hearings Scotland highlighted the number of infants, children and young people who are currently on Compulsory Supervision Orders and who have been on orders for more than two years and suggested having single Chairing Member hearings for procedural matters could alleviate drift and delay.x Children in Scotland also identified the potential for these measures to tackle any backlog in the system and suggested that it would also allow children to engage with the Hearings System in a more consistent manner.xi
Includem expressed concern, however, suggesting that a move to single member panels was primarily driven by resourcing issues rather than the best interests of a child or young person, and noting that it was not clear from the Child Rights and Well-being Impact Assessment whether this change has genuinely been considered in detail.xii
Kate Thompson of CYPCS, was cautious of the potential rights implications of single member panels, suggesting that the provision should be drafted in a narrow way to ensure fairness, and that use of single member panels should be decided "on a case by case basis" to take account of the individual circumstances of each child or young person."xiii
Katy Nisbet of Clan Childlaw suggested that "although we see potential benefits [...] for us, there is a question mark over the types of decision making that could be left to a single member panel," noting that "this is an example of the detail being left to regulation," and stating that "without that detail and without fully understanding the nature and scope of the decisions that could be made, we find it difficult to come to a conclusive view."xiii The Law Society of Scotland recognised the potential value of single member panels in respect of decisions that are wholly administrative in nature, suggesting that having a legally qualified chair would be helpful in identifying what is purely administrative and what is substantive.xv
In written evidence to the Committee, CELCIS consultants with lived experience talked about the importance of protecting the collaborative approach in three person panels, and the need to ensure accountability which may help to mitigate any conscious or unconscious bias panel members could have.xvi Social Work Scotland noted that "three person panels provide a level of check and balance which would not be available in a single person panel."xvii
Some stakeholders flagged that what could look like a straightforward procedural decision could potentially have significant consequences for a child or young person, particularly if offence grounds were engaged.
Who Cares? Scotland raised specific concerns in relation to the proposal that where there is no clear agreement of the grounds, in particular offence grounds, a Hearing with a single Chairing Member can resolve any disputed elements of the grounds, noting that section 89C(3) and (4) allow the grounds hearing to be satisfied if the child does not accept all of the supporting facts in relation to a ground but "the child accepts sufficient of the supporting facts to support the conclusion that the ground applies."xviii
Maree Allison of the SSSC noted that there were some potential parallels with work that SSSC had carried out in relation to their fitness to practice panels, which allow for legally qualified chairs to make procedural decisions early in the process and suggested that there may be some learning from that work which could be helpful in respect of the Children's Hearings System. viii
Tom McNamara, Head of Youth Justice and Children's Hearings at the Scottish Government explained—
The intention is to release capacity in the system so that a broader group of children can benefit from swifter processing and more consistency and continuity in relation to personnel.
There is a fair bit of debate to be had on what is appropriate for a single member tribunal to be able to decide, but it is also fair to observe that such an approach is deemed appropriate elsewhere - for example, in the mental health tribunal and other comparator tribunals in Scotland - and that it is okay, and is already well-established practice, for tribunal members to decide certain matters on their own, while recognising that, for other matters, it is essential for the full tribunal to be convened.xx
On the issue of single member panels more broadly, the Minister stated that—
We are very mindful that there is a wide range of views on the subject of single member panel decision making. We have kept in place appropriate safeguards in relation to appeals and reviews of such decisions, and the single member panel will have full recourse to a panel, should that be deemed necessary or appropriate. However, having taken into account the questions that the Committee has raised and some of the evidence that has been provided, I am considering what further safeguards could be implemented.xx
One of the areas in which most concern was expressed regarding single member panels was in relation to their ability to issue Interim Compulsory Supervision Orders (ICSOs), in some circumstances. The suggestion from some stakeholders was that this went well beyond the definition of a "procedural decision", given the potential impact it could have on a child or young person's life, with Alistair Hogg of the Scottish Children's Reporter Administration noting that "those are some of the most challenging and impactful decisions that a Hearing can make." He suggested that more considered and detailed thought and development was required in relation to these proposals, as well as testing and evaluation.i
Section 19 of the Bill amends the maximum duration of an ICSO once the first order is made. The first ICSO, put in place as a matter of urgency, will remain at a maximum of 22 days with subsequent orders and non-urgent extensions moving to a maximum of 44 days. Similarly, where an interim variation of a Compulsory Supervision Order requires to be made urgently, it will apply for a maximum of 22 days, but 44 days will become the maximum period in less urgent cases. These changes are designed to increase flexibility within the system and better accommodate geographic variations in court capacity and scheduling.ii
Sheriff David Mackie noted that "the s.11 (13) provision for Interim Compulsory Supervision order continuations to be decided by a single member is a welcome and progressive measure."iii
He went on to note that "the extension of Interim Compulsory Supervision Orders to 44 not 22 days is also welcome," suggesting that "there will be flexibility within the 44 days to continue to specific Court or hearing dates," and that "it is right that an Interim Compulsory Supervision Order should be reviewed anyway if nothing is to happen or has happened at Court or the Hearing for as long as 44 days," observing that "there would be merit in including a specific provision that an Interim Compulsory Supervision Order can be continued to the next Hearing or court date so as to avoid unnecessary callings or Hearings simply to continue Interim Supervision Orders."iii
Social Work Scotland suggested that their members were generally supportive of the proposed changes to timescales for ICSOs, but cautioned that this felt like an adjustment to the Children's Hearings System to cope with issues in the justice system. Social Work Scotland suggested that a more child-centred approach would be to have timescales applied to grounds hearings in the court.v
Includem did not support the proposed changes to the duration of ICSOs and interim variations of ICSOs, suggesting that this may mean that "children and young people are placed on longer interim orders to alleviate pressure on the system, not because it is in their best interests."vi
Who Cares? Scotland voiced concerns, suggesting that "the ability for single panel members to be able to make or extend an ICSO may affect a child's right to a fair trial under Article 6 ECHR and Article 40 UNCRC," noting that ICSOs can have serious consequences on a young person's life, and that whilst they may only last for a set period of days, an ICSO can make provisions that may require a child to move to a new home, be unable to speak to their parent or attend school and see their friends, or cause other significant disruption to a child's life.vii
Dr Alyson Evans also noted that an ICSO "can establish a status quo that future Children's Hearings or Sheriffs may not be willing to disrupt until grounds are established, " suggesting that whilst significant decisions are made by single members of the judiciary in other contexts, the judiciary receive a different level of training and professional qualifications.viii
In correspondence to the Committee on 14 November 2025, the Minister provided further clarity on the issues raised in relation to single member panels and ICSOs, stating that "it is the Government's view that a Chairing Member should be able to consider the child and family's view on the grounds of referral, and to record the grounds as accepted or not accepted," and that "a single Chairing Member should be able to make an ICSO for the urgent protection of the child," noting that "whilst these are significant matters, they are within the competence of a single decision maker who has been appropriately trained and supported."ix
It is clear that the use of single member panels has the potential to expedite some procedural aspects of the Children's Hearings System. However, the Committee is concerned that the role for single member panels described in the Bill goes beyond what was originally envisaged by the 'Hearings for Children' report.
The Committee is conscious that the three person panel model is valued by many and perceived to contribute to fairness and good decision-making. The Committee believes that substantive decision-making should therefore always sit with a three person panel.
The Committee is undecided as to whether single member panels should be able to make initial Interim Compulsory Supervision Orders. The Committee asks the Scottish Government to reflect on the evidence it has received from stakeholders on this topic, and to respond to these points ahead of Stage 2.
The Committee also draws the Scottish Government's attention to the concerns raised in evidence in relation to disputed grounds (specifically in relation to Sections 89C(3) and (4)). These sections suggest that grounds can apply if a child accepts sufficient of the supporting facts and does not have to accept them all. This raises important concerns about the need for advocacy and legal representation, in these circumstances to ensure that the child's rights are protected.
The Committee is, however, broadly content with the proposals for ICSOs to be extended as set out in the Bill and for these extensions to be authorised by single member panels where required. However, this support is qualified by the understanding that such extensions should only be used when it is in the best interests of the child to do so, rather than simply to manage procedural delays. The Committee's preference would always be to convene a three member panel hearing as soon as possible to consider the need for substantive compulsory supervision measures.
The Committee believes that the list of issues capable of being dealt with by a single member hearing should be revisited ahead of Stage 2. It encourages the Scottish Government to review the evidence received by the Committee and provide an update ahead of Stage 2 proceedings.
Section 112 of the Bill amends schedule 2 of the 2011 Act, to enable the National Convener of Children's Hearings Scotland to remunerate certain children's panel members to fulfil identified chairing member roles within the redesigned Children's Hearings System. i
The Hearings System Working Group concluded that paying certain panel members to chair meetings would bring benefits not only in relation to who might be attracted to the role, but would also reduce delays by allowing paid Chairs to take certain procedural decisions that would otherwise require a 3 member hearing.ii Further details on this topic are available in the Single Member Panels section of this report.
A key benefit from the perspective of children and young people would be for them to be able to build a relationship with the Chair, who could understand the context in which a Hearing was taking place, avoiding the child/young person having to repeatedly tell their life story and ensure consistency of decision-making.ii
The 'Hearings for Children' report suggested that, in future—
The decision-making model must consist of a salaried, consistent and highly qualified professional Chair accompanied by two Panel Members, remunerated at a daily rate.
As far as possible the Chair must be the same Chair each time a child and their family attend a Hearing. This should also apply to Panel Members where possible and desirable.ii
Sheriff Mackie set out the Hearings System Working Group's thinking on Chairs in Children's Hearings—
At the heart of our work in the working group and in considering the Bill was listening to the voices of young care-experienced people. We really did listen to them, which led us to develop an imagined role for the Chair of a Children's Hearing that would be much greater and more weighty than it is now. We imagined a Chair conspicuously avoiding any suggestion that they should be a member of any particular profession, but a Chair who is nonetheless legally competent, especially in relation to human rights. We imagined a Chair who can understand the impact of decisions of the Children's Hearing not only on the child but on the parents and other relevant persons and who has the confidence to say to those people "We have heard from you and understand your concerns, but we now want to hear from the child on their own."v
Sheriff Mackie went on to explain that in devising an expanded role for Chairs, it "led us to recognise that, especially if the Chair was going to be a consistent presence in that child's journey through the Hearings System, it would be difficult for that role to be fulfilled by somebody who was not doing it as a job," before outlining that "what is lost in the bill is the cohesive structure of the Chair's role in particular and the issues around grounds hearings, which would have produced the transformational change that we imagined."v
Stephen Bermingham said that children and young people regularly told Children's Hearings Scotland that they did not want to meet a new panel every time that they attended a Children's Hearing and to have to retell their stories to three strangers. He suggested that the provisions on the enhanced role for the Chair will therefore bring continuity to the Hearings System.vii
Our Hearings, Our Voice agreed—
It would be best to have the same Chair at every hearing but the other two are not so important. The Chair has the final decision and should be paid as this is a crucial decision that can change a whole child's life. Having the same Chair gives the child consistency, they know the child and family, they know the child's history, and it is more efficient as they don't need to keep reading new reports for different children.viii
Many stakeholders recognised that the Children's Hearings System has markedly changed over the years, and that volunteers are now being asked to deal with cases of significant complexity. At the same time, the pool of available volunteers has diminished and attempts to ensure that the make up of panels reflects the diversity of families involved in the system have also been unsuccessful.
Children's Hearings Scotland welcomed the enhanced role of the Chairing Member set out in the Bill, suggesting this recognised the significant demands, responsibilities and expectations of this role, while also providing additional support and resilience to the volunteer model, something it believed would remain a mainstay of the Children's Panel.ix
The Promise Scotland welcomed the creation of a clear distinction between ordinary and Chairing Members in the Bill, however, thought that the Bill could have been clearer about the distinction between the two roles. The Promise Scotland also suggested that there should be an amendment at Stage 2, to introduce a duty on the face of the Bill to ensure that, wherever safe and practicable, the Chair of a Hearing should be consistent.x
TACT Fostering believed that a paid chair would bring increased experience and expertise for panel members, and suggested that having either senior lawyers and/or those with extensive professional/lived experience as Panel leads (or running sole panels) would be very welcome.xi
The Law Society of Scotland suggested that the proposal to embed the distinction between ordinary and Chairing Members and for individuals to be appointed as such seemed sensible, but noting that "it may be argued that the proposal undermines the ethos of decisions being taken by a group of equals, however, panel members bring different skills to the process."xii
The 'Hearings for Children' report recommended remuneration for all panel members. Some stakeholders queried why it should just be Chairs who should be financially compensated, with CELCIS noting that if remuneration is introduced, then all panel members should receive appropriate financial recompense given the time and commitment they bring to the role, recognising that keeping the role as unpaid may act as a barrier to some individuals coming forward to volunteer.xiii
The Minister commented on calls for the Chair to provide continuity, noting that—
We have heard and tried to respectfully respond to voices in relation to continuity in panel Chairs and members and their ability to build a relationship throughout a child's journey through the Hearings System, while trading those things off against the tribunal being genuinely independent and impartial and not getting too tangled up in a child's overall care journey and the implementation of the tribunal's own orders.xiv
The Committee is supportive of the creation of the paid Chair role and believes that it is likely to be beneficial to the Children's Hearings System. It should also create opportunities to provide for the continuity in Hearings which children and young people have said is particularly important to them. The Committee also recognises that having a paid Chair offers additional flexibility in relation to certain procedural decisions being taken via a single member panel Hearing.
The Committee remains unclear as to whether the vision is for existing Chairing Members to transfer into this role, whether a completely new cohort is likely to be sought. In either scenario, this transition will require to be carefully managed to avoid disruption to the operation of the Children's Hearings System, and any delay and detriment to children and young people accessing it.
The Committee is cognisant of the Promise Scotland's calls for further details about the role of the paid Chair to appear on the face of the Bill, and asks the Scottish Government to set out its views in relation to this point ahead of Stage 2.
Sections (11) and (12) of the Bill provides powers to appoint and remunerate 'specialist' children's panel members.i
The Policy Memorandum suggests that 'specialist' roles could include those with a particular expertise in child services or healthcare, or an additional Chairing Member for a Children's Hearing whose particular legal competence is required in the event of an acutely complex case. It suggests that the use of specialist panel members is intended to be limited and that it would be the decision of the National Convener as to whether or not a specialist should be appointed.i
The proposal is in line with the 'Hearings for Children' report, which recommended that "the potential value of specialist panels or panel members with specialist training should be considered."iii
The report suggested that further thought should be given to the possibility of specialist panel members with "additional training and expertise in the developmental needs of infants and babies or with a special focus on children in conflict with the law." However, it recognised that it might be hard to implement this in remote or rural areas or it might not be desirable for other reasons.iii
Some of those responding to the Committee's Call for Views struggled to see the added value in having specialist panel members, with Social Work Scotland recognising that Hearings can already call for specialist reports when required, and that Hearings routinely have input from a range of specialists including social workers, educationalists and health professionals.v Others expressed concern about how specialist panel members could affect the dynamics of a hearing and/or skew the focus towards one aspect of the child or young person's care.
Dr Alyson Evans suggested that it was dangerous to reduce a child or young person's issues down to one specialism, noting that "one of the many strengths of the Children's Hearings System is its purpose to look at the child holistically regardless of the reasons why they are attending," suggesting that there was a danger that if 'specialist members' were created, then this strength could be lost, with the risk being that the child would be considered on the basis of a single issue such as 'child who has committed an offence', 'a child who has a disability' or 'a child who needs permanent care away from home' when the reality is the child will likely have multiple issues that require consideration by the Children's Hearing.vi
Others cautioned of the dangers of leaving certain topic areas to specialist panel members, with Scottish Women's Aid suggesting that "we would not want to see a situation where domestic abuse was designated as the responsibility only of specialist panel members," noting that "due to the large number of cases involving domestic abuse, all panel members must be competent in handing these."vii
The Law Society of Scotland raised the issue of fairness and the right to a fair trial, noting that, unlike in a court setting, if a single specialist is having an input at a Hearing, there is no opportunity for anyone to challenge the specialist's view. It noted that the child and their family may also not be aware that there are different expert views.viii
Social Work Scotland also raised the potential for specialist members to come into conflict with the chair or other panel members, with the danger that specialist members introduced an unhelpful power dynamic which could impact on attempts to create a more collegiate and respectful culture within the panel system,v a point that was also raised by Children in Scotland.x
CELCIS suggested that it would be helpful to have more information around the qualifications, skills, and knowledge required to be considered a specialist, as well as information about how their work would be supervised to ensure that all specialist members offer high-quality support for decision-making that upholds children's rights.xi
Matt Forde of NSPCC Scotland suggested that the introduction of specialist members could provide the opportunity for a trial of a safe-baby approach, suggesting that in getting it right in the early years, the Promise would be kept for older children. He noted that "we found out 20 years ago that the persistent young offenders that we were concerned about at that time where children who had first been known to the system when they were under five."xii
Stephen Bermingham of Children's Hearings Scotland stated, however, that specialist members were likely to be "used sparingly," suggesting that this would be less than 5 per cent of the time, given the existing options available to panels to bring in external expertise. xii
The Committee notes the intention to create paid specialist panel member roles within the Children's Hearings System. The Committee is open-minded to the possibility of their introduction, but not certain what these roles would add beyond the CHS' existing abilities to draw in specialist input, where required.
The Committee also recognises the danger that appointing a particular specialist could potentially skew the focus of a Hearing away from the child/young person's needs as whole, towards one aspect of their care. This moves away from the premise that Children's Hearings should look at children and young people's needs in a holistic way.
The Committee also recognises the potential for power imbalances, should a specialist member sit alongside a panel chair and a volunteer panel member. As such, it would be helpful to understand if the Scottish Government is envisaging the specialist panel member sitting on the main panel (i.e. as one of three panel members) or attending in a separate capacity.
Ahead of Stage 2, the Committee would welcome further clarity from the Scottish Government on the points below:
the proposed role of specialist panel members and how they might be recruited;
the scenarios in which it believes a specialist panel member may be appropriate and the criteria used to assign them to a particular case;
how it would seek to address any power imbalances arising from the creation of specialist panel member roles; and
timescales for when specialist panel members are likely to be introduced to the Children's Hearings System.
Section 13 of the Bill removes the existing obligation on a child to attend their hearing.i
The Law Society of Scotland notes that under current legislation "the circumstances in which the child's attendance may be excused cover the obvious practical situations (child being incapable of understanding what is happening) and those where there is a welfare concern (placing the child's physical, mental or moral welfare at risk.)"ii
The 'Hearings for Children' report recommended that "children should be supported to participate in the Hearing in a way that meets their needs, upholds their rights and enables them to fully express their views. However, this should not mean that there is a requirement to attend. This must be replaced with a presumption for attendance with clear mechanisms in place to support a child to share their views. This presumption should not be in place for babies and infants."iii
The Policy Memorandum states that this section, whilst removing the obligation to attend, also allows a Children's Hearing to require the child's attendance at the Hearing, or a part of the Hearing, where it is necessary for a fair hearing, or to assist the Children's Hearing in making any decision relating to the child.i In doing so, the Hearing must have regard to whether the child would have the capacity to understand proceedings and whether their attendance would place their health, safety or development at risk as well as their general duties under sections 25 and 26 of the 2011 Act.i
The Policy Memorandum goes on to note that consideration was given to including a presumption that the child would attend, however, this approach was not progressed as it would, in effect, replicate the current approach of an obligation which can be disregarded in some circumstances, and therefore would risk the law's meaning becoming unclear.i
One key area of contention in relation to these proposals was the suggestion that, regardless of the removal of the obligation to attend, in some circumstances children and young people might still be compelled to attend, and this could potentially be against their wishes. The examples provided in the Policy Memorandum of when this might happen include a child or a young person referred on offence grounds or circumstances in which a child or young person is likely to be deprived of their liberty.i
Sheriff David Mackie stated that "the child's attendance at Children's Hearings and Hearings before a Sheriff is addressed in s. 13 of the Bill which removes the current regime of compulsory attendance unless excused with a requirement to attend if ordered to do so," noting that "this is a welcome provision that reflects the recommendations of the 'Hearings for Children' report, but only partially." He went on to note that "the recommendation of the 'Hearings for Children' report was to substitute a presumption that the child would attend and, crucially, would receive advice and support in how to do so," suggesting that this should be addressed in the Bill.viii
Children's Hearings Scotland highlighted that "data currently shows that of the total hearings in 24/25, less than half of the 21,313 hearings were attended by children."ix
The Promise Scotland suggested that the Bill should provide for a presumption that a child will attend, and that it should also clearly set out the alternative ways that a child can share their views with their Hearing, stating that "as it stands, we are concerned that the removal of the duty in the absence of anything further about obtaining a child's views is not compatible with the United Nations Convention on the Rights of the Child."x
Social Work Scotland welcomed the removal of the obligation to attend a Hearing, suggesting that its members did not consider this to be a controversial proposal and given that the highest proportion of Hearings involve younger children, this approach would be helpful for them.xi Inspiring Scotland/Intandem were also strongly supportive of the proposals, stating that "many young people shared deeply distressing memories of attending Hearings, which have left lasting emotional impacts."xii
The Law Society of Scotland noted the possibility that a young person may make the decision not to attend based on what he or she sees as a short-term benefit (e.g. avoiding something unfamiliar or daunting) rather than considering the longer-term benefits (e.g. understanding the whole picture and having an input into the decision.)ii
Stephen Bermingham of Children's Hearings Scotland highlighted the potential unintended consequences of these provisions, noting that "we do not want to sleepwalk into a position in which children do not routinely attend their Hearings." He went on to state that "we know from feedback by panel members and children that there is much better decision making and that there are better outcomes for children when they attend and participate and when they are supported to participate."xiv
Sheriff Mackie suggested that, even with the removal of the obligation to attend, the Children's Hearings System should continue to recognise the importance of the child's attendance where possible, because "if the child does not attend, their voice will not be heard - it will be lost."xv Dr Alyson Evans, however, stressed the importance of not equating physical attendance at a Children's Hearing with effective participation, and noted that these are two entirely different things. She suggested that the child's participation should still be strongly encouraged, to ensure that their voice is not lost in the proceedings.xvi
Children's Hearings Scotland stated that panel members consistently told them that the level of engagement and their ability to fully take on board the views of children and young people was better achieved when they are in attendance, and proposed that Section 14 of the Bill should include "provision for the Chairing Member to work with the Reporter, on an equal legislative footing, to arrange and schedule a hearing in a way that works best for a child."ix
CYCJ suggested that, if a child chose not to attend their hearing, then other means of encouraging attendance, including alternative formats, such as video, written accounts, pre-recorded statements, or support from a trusted adult or peer, should be considered.xviii CELCIS highlighted that "infants and very young children require bespoke arrangements to have their needs articulated to ensure that their rights are upheld and that they are always kept at the centre of all decision-making,"xix a point also echoed by NSPCC Scotland.xx The Promise Scotland stated that non-legislative work to improve participation and involvement of children in their hearings was underway and was being led by the Redesign Board and the Scottish Children's Reporter Administration.x
CYCJ voiced concerns about the continued power to require a child to attend their Hearing in some circumstances, suggesting that this risked the creation of a two-tier approach which could undermine the fundamental ethos of the Hearings System.xviii
Kate Thompson of CYPCS was, however, supportive of children referred on offence grounds or facing a potential deprivation of liberty still being required to attend their Hearing, stating that "we do not think that it would be rights compliant for such scenarios to involve an excusal of attendance of a child."xv
Katy Nisbet of Clan Childlaw stated that children and young people referred on offence grounds should be automatically provided with a lawyer, noting that "acceptance of those charges can have an impact on someone in their future life - it is in effect treated like a conviction, and there are disclosure implications - and you are now saying that a child who has offence grounds does not even need to turn up, regardless of whether they have a lawyer. In our view, that cannot happen."xv
Aberdeenshire Council also observed that many of those attending Children's Hearings on offence grounds would be over 16, querying what arrangements would be put in place to support these young people to attend, as well as what would happen if they did not.xxv Who Cares? Scotland suggested that if a young person were to be compelled to attend against their wishes, this "would only be possible by involving the police to forcibly remove them from their home," suggesting that this would be at complete odds with a child-friendly and trauma informed redesigned Children's Hearings System.xxvi
The Law Society of Scotland also highlighted the "danger that publicity surrounding non-attendance of an accused, particularly by an older young person, would discredit the system in the youth justice context."ii
Tom McNamara, Head of Youth Justice and Children's Hearings at the Scottish Government, stated that—
The pre-existing test for excusing children from attending Hearings has a high threshold: it looks at physical, mental and moral welfare and is almost a life-course-changing test. We are not clear that human, empathetic and motivated tribunal members always apply that test. A level of damage needs to be done before we excuse children from attending Hearings.
[...] By and large, we want to be led by children and young people and give them a level of agency. As the backstop or failsafe, when the tribunal believes it needs to see and hear from an individual child or young person on a specific day at a Hearing, they are able to reach for that lever.
[...] There is a fair debate to be had about that, but the intentions are absolutely sincere: we want to try and support children and young people to exercise their rights to how, where and in what manner they engage in the process overall, rather than soothing ourselves with the thought that obliging children to attend a Hearing is some sort of proxy for good participation.xxviii
In relation to potentially having a presumption to attend, the Minister said that—
In the conversations I have had, the general feeling has been that a presumption to attend would not necessarily have the intended outcome or make the difference that we would want it to make. I believe that the approach that we have taken in the Bill is more balanced and speaks to the recommendations [of the 'Hearings for Children' report].xxviii
The Committee welcomes the removal of the obligation for children and young people to attend their hearing, but believes that this should be replaced by a presumption that children will attend, with the exception of babies and very young children, as envisaged by the 'Hearings for Children' report.
The Committee would welcome further detail from the Scottish Government ahead of Stage 2 in relation to the circumstances in which a child or young person may still be mandated to attend a Hearing. Whilst appreciating the need for operational flexibility, the Committee believes this information should be clearly set out on the face of the Bill to ensure consistency of approach, and to guard against these provisions only being used for children/young people referred on offence grounds. This should ensure that children and young people's rights continue to be protected.
The Committee further recognises the 'Hearings for Children' recommendation that the removal of the obligation to attend should be accompanied by measures designed to increase children and young people's participation in their Hearing. The Committee would welcome further information regarding the non-legislative work that is being progressed in this regard, ahead of Stage 2. The Committee is particularly interested in the different methods that could be used to consult with and communicate with children/young people not attending their hearing, to ensure that both their views and the outcome of the Hearing are communicated in an age-appropriate way.
The Committee also seeks further clarity on whether the Bill will offer further opportunities to embed the right to legal representation to support a child or young person to attend their Hearing.
The Committee notes the concerns raised by some stakeholders in relation to how a child might be compelled to attend a Hearing and what would happen if they did not attend. The Committee seeks clarity from the Scottish Government on these points ahead of Stage 2.
Section 14 of the Bill puts in place a requirement for the Principal Reporter to offer the opportunity, where appropriate, for the child and family to discuss certain matters. The Policy Memorandum suggests that this will "support children and families to feel better prepared for a Children's Hearing."i This is known in the Bill as a post-referral discussion.
The Policy Memorandum suggests that this discussion will have a particular emphasis on the statement of grounds prepared by the Principal Reporter, stating that it is essential in a redesigned Hearings System that children and families are fully enabled to understand the grounds for referral and the supporting facts before they attend a Hearing.i These discussions may also include consideration of how to support the child's participation in their Hearing, including whether and how they will attend, and what means would be most appropriate for the child's views to be fully and effectively communicated.i
The post-referral discussion meeting is also designed to help the Principal Reporter identify any issues that may need to be considered by a pre-Hearing panel or identify sources of further information that may be required for a Hearing to make a decision.i
However, these proposals contrast heavily with the findings of the 'Hearings for Children' report, which recommended that instead of meeting with the Reporter, there should be an opportunity for a child/young person and their family "to meet their Chair at a ‘get to know me’ meeting outwith the formal setting of a Hearing." This proposal was designed to recognise "the importance of knowing, and knowing about, the adults who are making decisions in the lives of children and young people" and was something that was suggested by the young people working with the Hearings System Working Group."v
'Hearings for Children' suggested that an invitation to meet with the Chair should be voluntary and that this should be made clear to children and families. They should also understand what the purpose of the meeting is and what any alternative options might be (for example, proceeding straight to a Pre-Hearing Panel or a Hearing).v
The Committee recognises that what is proposed in the Bill is a fundamental shift away from the original recommendation of the Hearings System Working Group. The focus of the meeting risks moving away from familiarisation and exploring how a child or young person can best participate in their hearing, to primarily discussing the grounds for referral, and whether these are likely to be agreed to, with The Promise Scotland noting that "the proposed changes in the Bill appear to conflate the two issues - and underline the need for a clearer understanding, in statute, as to the role of the Chair."vii.
Several stakeholders pointed out the high stakes that could be attached to this meeting, particularly given the focus on grounds. As such, they suggested it was vital that those participating clearly understood what the meeting was for, their right to refuse a meeting and how the information from the meeting would be recorded and used.
Others highlighted the potential for children and young people to incriminate themselves in what was originally envisaged to be an informal meeting, with others questioning if a Reporter should lead the meeting, given they would potentially have a vested interest in establishing grounds. Many stakeholders suggested that advocacy support and potentially legal representation might be required to safeguard the rights of children and young people at these meetings.
Kate Thompson of CYPCS noted that the Reporter's role in a post-referral discussion—
....could be akin to that of a prosecutor. Would we want a person who, bringing grounds that might contain allegations of criminal offending against a young person, is a representative of the state, to be the person who assesses whether those grounds are understood and have been established fairly?viii
That point was echoed by Katy Nisbet of Clan Childlaw who stated that—
We are concerned about the imbalance of power, the nature of those meetings and the pressure that might be put on a child when, as far as we can see, the Bill does not provide for any access to legal representation. We could be talking about offence grounds [...] in effect that would involve the child being asked to talk to the prosecutor without having any legal representation or any real understanding of what the purpose of the meeting was. [...] The reporter also has to prepare a report, and they also have to decide which route the grounds referral should take. [...] If a child does not attend a grounds hearing, the only source for the child's view might be the report that the Reporter has drafted off the back of a meeting with them. [...] The process needs to be thought out. There are numerous layers of potential human rights breaches going on, particularly for the child, but also for others who are involved in the process.viii
Maria Galli of the Law Society of Scotland concurred with Clan Childlaw's point, that in addition to the Reporter being the person assessing the evidence, they are also the person who "midway through the process, might take on the case, on behalf of the state, against the child in a proof Hearing, and might lead evidence and so on," noting that "issues around potential incrimination abound."viii
This point was also recognised by Alistair Hogg of the Scottish Children's Reporter Administration (SCRA), noting that SCRA's starting point is that "we believe that the child requires compulsory measures of supervision and we have framed grounds that we believe are evidenced and are required, so we have a vested interest in establishing those grounds."xi
He went on to state that "we believe that, because of the sense that the meeting feels more formal, some kind of record would need to be kept, and people's rights would need to be protected in such a meeting," noting that "you would need to consider the provision of advocacy and legal representation, and how to give people the option for those."xi
Tom McNamara, Head of Youth Justice and Children's Hearings at the Scottish Government explained—
The 'Hearings for Children' report recommended that the Reporter should, while discharging their duties, work in a more relational and ongoing way with children and families. However, the process is not about accepting or establishing grounds at that point; it is about being in the early foothills and establishing the capacity, the understanding and the appetite of children and families to accept the grounds.
The important safeguard is that is then followed up, and the tribunal member takes the pre-eminent role - it is not the Reporter marking their own homework. It is important that the Hearing establishes its own jurisdiction subsequent to that conversation.xiii
CELCIS suggested there were a number of unanswered questions arising from the post-referral discussion proposal, including practical considerations such as whether separate meetings would need to be scheduled if there were domestic abuse allegations, or if there were several relevant persons.xiv
CYCJ suggested that the meeting could provide benefits for younger children who wish to attend their Hearing and who may struggle to understand legal jargon and processes, suggesting that meeting with the Reporter could potentially strengthen their understanding and ultimately their participation. CYCJ also suggested that a meeting might allow for "autonomous discretion to Reporters [in relation to] the amendment of grounds following discussion with children and families," observing that "this could reduce the litigious process significantly.xv
The Committee recognises that, under existing legislation, it is already possible for a child, young person or relevant person to meet with the Reporter ahead of a Hearing taking place.
The Committee believes that the post-referral discussion should not be tied to grounds. It is unhelpful and creates a worrying power dynamic, of which many children, young people and relevant persons may be unaware. There is also the potential for unintended consequences, including potential incrimination, should a child/young person not understand the purpose of the meeting and how the information gleaned from it will be used.
The Committee believes that the post-referral discussion created by the Bill should be more closely aligned to what is set out in the 'Hearings for Children' report. That is, the meeting should be an opportunity for the child or young person to meet with the Chair of their Hearing, so that the first time they meet is not in the Hearing itself. The meeting should be an opportunity to familiarise the child or young person with that Chair, but also to discuss how they might best participate in their Hearing. The focus of the meeting should be entirely on the needs of the child or young person.
The Committee believes that there is the potential for these post-referral discussions to introduce further delay into the system, when the focus should be on allowing children and young people to progress more swiftly towards a solution. This is particularly true when multiple post-referral discussions may have to be arranged to accommodate different family dynamics.
The Committee believes that the post-referral discussion proposals in the Bill should be revisited in light of the concerns raised in evidence. The Committee urges the Scottish Government to reflect on the evidence it received in relation to post-referral discussions, and to provide a response to the points raised ahead of Stage 2 proceedings.
Where the Reporter determines that there is a need for compulsory measures of supervision they will currently arrange a Children's Hearing and prepare a statement of grounds. This is all governed by the 2011 Act. A 'grounds hearing' must take place where the chairing panel member (of a panel consisting of three members) will explain each ground to the child and all relevant persons (except where they would not be capable of understanding - e.g. due to the child's age). They would then each be asked if they accepted the ground and the supporting facts in relation to the ground.i
Under provisions in section 14 of the Bill, rather than simply moving to arranging a grounds hearing after a decision that compulsory measures are needed for a child, Children's Reporters would be able to engage with children and family members at this stage. The process around this engagement is set out in new section 69A of the 2011 Act and includes discussion of the statement of grounds and the child's participation in any Children's Hearing or Hearing before a sheriff. The Principal Reporter must also prepare a report which can include the results of this discussion, as well as other information held by the Reporter, as set out in new section 69G of the 2011 Act.i
One of the 'Hearings for Children' report's strongest recommendations related to grounds hearings. The report suggested that—
The drafting of grounds and the Statement of Facts should be reframed to take a rights-based approach to help families to better understand why grounds are being established and recognise themselves in the drafting.
Where relevant and appropriate, the Statement of Facts should include strengths and positive elements of a child’s care in addition to the challenges in their lives.
Grounds must be established in a separate process before a child and their family attend a Children’s Hearing. There must be no more grounds hearings.
A more relational way of working to agree grounds and confirm the Statement of Facts should be encouraged, where the Reporter exercises professional judgement to determine when children and families might be able to discuss grounds.iii
Sheriff David Mackie, Chair of the Hearings System Working Group, explained the context in which these recommendations were made—
One of the strongest calls from those with experience of the Children's Hearings System was to dispense with grounds hearings and resolve the grounds before the referral reached the Children's Hearing and away from the Hearing. This was to avoid the child's and parents' first experience of the Hearing being the often demeaning, embarrassing and reductive experience of having grounds read out to all present and having to admit or deny each statement of fact. In the vast majority of cases the grounds are not disputed and are capable of being resolved without any Hearing at all with a possible qualification around offence-based grounds where the desire for accountability might counsel in favour of proof.iv
However, the approach taken in the Bill does not remove the grounds hearing in the way that was envisaged by the Hearings System Working Group. Instead it introduces the mandatory offer of a post-referral discussion and it suggests that in straightforward cases "where there is informed agreement with the grounds", that there could be a formal recording of the grounds at the beginning of a Children's Hearing, with the rest of the meeting focused on making substantive decisions.v Post-referral discussions are dealt with separately earlier in this report.
Sheriff Mackie went on to observe that—
The Bill provides an opportunity to meet the desire of the young people whom we listened to during the working groups that fed into the preparation of the 'Hearings for Children' report. We understood from them that the experience of a grounds hearing can be demeaning, embarrassing and, sometimes traumatic. We found a way of suggesting that, in the many cases in which the grounds for referral are unopposed, we could deal with the grounds without a Hearing. We displayed that ambition, but it has not been met in the Bill.
Instead, I think there has been a well-intended endeavour to modify the current process so that we will still have grounds hearings but make them easier [....] I am afraid that, as a consequence, there is some really complicated language. I am not ashamed to say, as a lawyer of many years' standing, that I find proposed new section 90 of the Children's Hearings (Scotland) Act 2011 impossible to read. There are so many double negatives and cross references that it is impossible to retain them in an ordinary reading of the provision.vi
The Policy Memorandum explains why an alternative approach was taken, stating that—
The 'Hearings for Children' recommendations envisioned an end to all grounds hearings, and an expanded administrative role for the Sheriff in determining all grounds of referral in all cases. Following extensive analysis, however, the Scottish Government has a number of concerns about this approach. It is not considered proportionate for a Sheriff to have a role in every case referred and would attach significant resourcing implications for the Scottish courts. It would lead to a significant hardening of the system, with potentially more children exposed to courts unnecessarily. In addition, the Scottish Government considered that the proposal to dispense entirely with grounds hearings would have constituted an infringement of engaged human rights such as, for example, under Articles 6 and 8 ECHR, given the grounds constitute the legal basis for a children's hearing consideration of compulsory supervision measures in relation to a child.v
Children's Hearings Scotland noted that "in cases where there is the possibility of some/all grounds being accepted, the Bill proposes that a Hearing can be convened to consider the statement of grounds (which may be composed of one or three Panel Members) under the proposed Section 69C," stating that "we are uncertain whether this would effectively be a grounds hearing as per the current system and therefore would be introducing an additional step to the current process, which could cause further unnecessary complexity."viii
However, Children's Hearings Scotland also recognised that "in cases where grounds are unlikely to be accepted (under the proposed Section 69D), the new proposals may mean that the process may be quicker in terms of having grounds established, as the Reporter will be able to make an application to the Sheriff without the need to have a Hearing first."viii
Social Work Scotland noted that their members were not in favour of having the single member panel option in relation to grounds, with a concern that this would risk delaying the grounds process further, and could result in confusion around role and remit.x
Dr Alyson Evans suggested that the provisions in the Bill to reform grounds hearings required substantial revision, noting that "as drafted, they are unnecessarily complex, do not improve the current process and in my submission make the process worse by requiring the child and relevant persons to go through the grounds process twice."xi
Sheriff David Mackie, Chair of the Hearings System Working Group noted that—
The Bill provisions around grounds aim to ameliorate the experience of children, their parents and other Relevant Persons but in fact change very little, reinforce the requirement for grounds hearings in all but the small proportion of cases in which grounds will definitely be opposed, and shows a disappointing lack of ambition and resolve.iv
This was a point recognised by Children's Hearings Scotland, who stated that there was need to ensure that the different processes/options available in relation to grounds hearings would require further clarification so they can be communicated clearly/confidently to professionals, children and their families.viii
Stephen Bermingham of Children's Hearings Scotland suggested that with 16 and 17-year olds coming more regularly into the Children's Hearing System, via the provisions of the Children (Care and Justice) (Scotland) Act 2024, this provided an opportunity to review the language around grounds and involve the views of children and young people in doing so.xiv
Sheriff Mackie suggested that "fundamentally, I think that section 90 is unnecessary," stating "I have reached the conclusion that it makes little change," noting that "it reinforces the Hearings System but introduces unnecessary complications," suggesting that "we have possibly lost sight of the level of discretion and authority that the chair of a panel already has to do what is necessary," and that "the biggest change is that of allowing reporters to refer direct to the sheriff."vi
The Promise Scotland observed that that adding additional complexity to the system ran contrary to the conclusions of the Independent Care Review.xvi However, it was extremely supportive of measures to help children and families understand the process and the grounds themselves better and to ensure that where grounds are not contested a Hearing can be immediately convened, recognising that this would reduce the current drift and delay in the Children's Hearings System.xvi It also voiced support for the ability for a Reporter to make a direct referral to a sheriff where grounds are contested, suggesting that these are "significant and transformational changes that will make a difference to children and families and all those working alongside them in the Children's Hearing System."xvi
CELCIS suggested that providing for the acceptance or otherwise of grounds to be determined solely by the views of each relevant person, when a child is not present, should be treated with caution, recognising that "all children have a right to participate and be represented in decisions affecting their lives, in line with Article 12 of the United Nations Convention on the Rights of the Child."xix
CYCJ suggested it was fully supportive of the Bill creating a power that allows the Principal Reporter to apply directly to the sheriff to establish grounds where there is no reasonable prospect of agreement or constructive discussion about the statement of grounds, suggesting that eliminating the need for unnecessary grounds hearings pending a sheriff's determination was a welcomed proposal.xx
This was a point echoed by Sheriff David Mackie, who suggested that "the only discernible, and it must be acknowledged, welcome change in relation to the establishment of grounds in this Bill is the facility for the Reporter to refer direct to the Sheriff those cases where it is clear grounds and supporting facts will not be accepted."iv
The Promise Scotland suggested that it would welcome amendments at Stage 2, designed to bring forward a statutory time limit for establishing grounds, stating that this would introduce a discipline among practitioners, relevant persons, and other participants in the proof that would have the overall effect of limiting unnecessary drift and delay.xvi
The Minister for Children, Young People and the Promise stated in relation to grounds hearings that—
We understand that, in some situations, there might have to be grounds hearings, but, given the nature of those Hearings and the fact that 86 per cent of cases result in an application for proof, we want to reduce their number. The provisions in the Bill will help to do that and to take people out of a situation that they should not really be in.xxiii
The 'Hearings for Children' report was very clear about the damaging effects grounds hearings could have on children and young people, in what is often their first experience of the Children's Hearings System. The Hearings System Working Group therefore suggested they should be removed and a different methodology used to establish whether or not grounds were accepted. Those proposals took a child-centred approach.
However, what is set out in the Bill does not deliver that. The revised procedures for establishing grounds appear significantly more complex, potentially causing issues not only for those tasked with delivering them, but also for children, young people and those supporting them.
The Committee recommends that the Scottish Government revisits the proposals in section 14 of the Bill to see if some of the complexity can be removed, retaining at its heart the desire to make the establishment of grounds as straightforward and fair as possible, and removing the potential for proceedings to cause further distress.
'Relevant persons' are defined in section 200 of the 2011 Act and are any parent of the child (whether or not they have parental rights and responsibilities) and any other person who has obtained these rights and responsibilities through the courts. It is also possible for someone to be 'deemed' a relevant person under section 81 of the 2011 Act. This is where the panel "...considers that the individual has (or has recently had) a significant involvement in the upbringing of the child."i
Section 15 of the Bill clarifies the existing powers of the Chairing Member of the Hearing to manage the attendance of relevant persons in challenging cases. It provides for decisions to exclude relevant persons to be made in advance of a hearing, where the relevant person's presence is causing, or is likely to cause, significant distress to the child.ii
Section 16 of the Bill provides a power for automatic relevant person status to be removed from an individual where they meet clearly defined criteria that form part of a high-bar test.ii
The Bill requires the Principal Reporter to refer consideration of an individual's automatic relevant person status to a Children's Hearing. Where the Hearing is satisfied that the individual's ongoing status as a relevant person is likely to cause serious harm to the child, and infringe on the child's Article 8 ECHR rights [respect for private and family life], the Hearing must refer the matter for determination by a Sheriff. Where the Sheriff is similarly satisfied, they must make an order that the individual is not a relevant person.ii
The Promise Scotland was supportive of the proposed changes to relevant person provisions in the Bill, noting that these hadn't been considered by the Hearings System Working Group, but that "in our view the proposed changes will help to add in additional protections and ensure that children's rights are upheld."v Children's Hearings Scotland also voiced support for the new provisions, suggesting that this would lead to a more trauma-informed and rights-respecting approach for infants, children and young people who experience the Children's Hearing System.vi
Scottish Women's Aid stated "we understand that the Bill proposes that the removal of [automatic] relevant person status can only take place when the relevant person (such as a father) is shown to be causing harm to the child, rather than another relevant person (such as a mother)," suggesting that "we would like to emphasise that the assumption that harm to the child is separate from behaviour harming the mother reflects a fundamental misunderstanding of how our current social arrangements protect and harm children," noting that "robust relationships with a primary caregiver are a vital protective factor in children's lives," and "what threatens that relationship, threatens the child."vii
Scottish Women's Aid also queried why the removal of automatic relevant person status would only be valid for the current referral, and would not also apply to any future referrals relating to the same child and relevant person. It noted that if proposals went ahead on this basis, then professionals involved in future referrals must be notified that the removal of relevant person status happened for the previous referral, and why.vii
Sheriff Mackie queried the subjective nature of the assessment by the panel, which would form a view on whether a child was likely to be unduly affected by a relevant person's presence. He provided the example from his own experience of a woman who was the victim of severe domestic abuse, who appeared composed before a panel, but "inside she was like jelly." He went on to note that "It is well known [...] that children will come into a room and smile at the parent who abused them," suggesting therefore that it was "a very dangerous judgement to offer the panel to make."ix
The Law Society of Scotland welcomed provisions in the Bill "to the extent that the point of excluding a relevant person is to enable the child's participation in the hearing and avoid distress to the child," cautioning, though, that "there must be adequate safeguards for the protection of a relevant person's rights, such as being given the opportunity to make representations after obtaining legal advice; and for the power to be used only in the most exceptional circumstances."x
Social Work Scotland also used the opportunity provided by the Bill to call for a more straightforward relevant person process, suggesting that the person caring for the child, e.g. a kinship carer or foster carer, should automatically be deemed a relevant person, and stating that the current practice of these carers having to apply for relevant person status when they have care of a child is "devaluing."xi
The Committee is supportive of the proposal to provide a power for automatic relevant person status to be removed in prescribed circumstances. It agrees that the process set out in the Bill is sufficient and that there are suitable safeguards in place to allow the relevant person to appeal any such decision.
The Committee is conscious of the subjective nature, however, of gauging whether a relevant person's presence is 'causing, or likely to cause, significant distress to the child' and therefore believes guidance should be provided to inform that decision-making process, which clearly sets out when these provisions might be used, recognising that a child or young person may mask their true feelings in a Hearing as a coping and/or safety mechanism.
The Committee believes further consideration should be given as to whether this process should be repeated every time a new referral is made. Whilst the Committee recognises that this is a significant power and one that requires to be used sparingly, if the circumstances of a child or young person's case meet the high bar for removal of automatic relevant person status, then it believes there may not be the requirement to go through this process afresh each time. As a minimum, an expedited process should be available to reaffirm a previous decision to remove automatic relevant person status. This process should also ensure that safeguards, such as appeals processes, remain in place for those at risk of losing automatic relevant person status.
The Committee draws the Scottish Government's attention to the evidence it heard in relation to the removal of automatic relevant person status and seeks a response to the points raised ahead of Stage 2.
Section 17 of the Bill amends the threshold for referral to the Children's Hearings System from 'might be necessary' to 'is likely to be needed.'i This is designed to reduce the number of unnecessary referrals to the Principal Reporter and ensure that a higher proportion of referrals result in a Children's Hearing.i
Children's Hearings Scotland suggested they supported the proposed changes to strengthen the statutory referral criteria threshold for a Compulsory Supervision Order from 'might be necessary' to it being 'likely to be needed', believing that this will help ensure that infants, children and young people enter the system at a time when they most need compulsory measures of supervision.iii
Whilst recognising the rationale for proposing this change, Includem suggested that a change to the existing threshold for referral could mean that some children and young people miss out on support, noting that "in our experience, the role of the Principal Reporter in deciding whether families should be subject to the Hearings System is sufficient in ensuring families move through the system appropriately."iv The Law Society of Scotland suggested that subsections 17(2)-(5) risk altering the thresholds for referral to the Principal Reporter and weaken the local authority and Police Scotland duties to report, suggesting that, as such, they are undesirable."v
CYCJ believed that the change to referral criteria could be beneficial in reducing the adverse implications of children being inappropriately referred and kept in the Hearings System for long periods of time, but that it could also result in children who would benefit from the Children's Hearings System not being referred to the Reporter. It suggested that where an agency "lacks the required information or confidence to make an assessment of likelihood [they may choose] not to make a referral."vi
A further change is made which is to add "support" to the list of referral criteria, which are currently "protection, guidance, treatment or control". The Policy Memorandum suggests that this is a "first step" towards modernising this language and that "a detailed project exploring the language of referral and grounds will run in parallel to the primary legislative process."i
Children's Hearings Scotland supported the addition of the word 'support' and suggested that modernisation of the section 67 grounds of referral was required, acknowledging that "a carefully constructed co-designed programme could maintain the efficacy of the current wording whilst improving the language."iii
The Promise Scotland voiced support for the proposed changes to the language around referrals, noting that this is in line with recommendation 3.3 of the 'Hearings for Children' report. It suggested, however, that the report's recommendation goes further than what is proposed in the Bill, referring to the need to update the language around 'treatment and control,' and suggesting that it would welcome amendments at Stage 2 to progress this if possible.ix Who Cares? Scotland and CYCJ also suggested that these terms should be removed.xvi
The Committee recognises the motivation behind changing the test for referral to the Principal Reporter, namely to avoid inappropriate referrals and to ensure that the Children's Hearings System's resources are more appropriately targeted.
However, the Committee notes the concerns raised by stakeholders that a higher referral threshold could result in children and young people missing out on the support they need. Ahead of Stage 2, the Committee requests further detail of the actions the Scottish Government plans to take to mitigate those risks, both to allow for appropriate referrals to be made to the Children's Hearings System and to ensure that children and young people continue to be supported when a referral is no longer deemed appropriate.
The Committee welcomes the addition of 'support' to the statutory referral criteria of 'protection, guidance, treatment or control.' The Committee further notes the views of many stakeholders that 'treatment and control' are unhelpful terms and believes that the Scottish Government should be working towards their removal.
The Committee notes the Policy Memorandum's reference to work that is underway on a non-legislative basis to modernise language within the Children's Hearings System and the Committee seeks an update on that work ahead of Stage 2, including any terms of reference, working group membership details and associated timescales.
Part 2 of the Bill amends existing provisions in Part 3 of the Children and Young People (Scotland) Act 2014 (the 2014 Act) on the planning of children's services. It introduces the new term 'lead children's services planning bodies'. It also provides for any Integration Joint Boards (IJBs) covering an area to join local authorities and health boards on the list of bodies required to plan children's services.i
In the 2014 Act, IJBs are listed as an 'other service provider' for the purposes of children's services planning. This creates an unusual situation for children's services, especially where they have not been delegated to the IJB.i
Section 22 of the Bill amends Part 3 of the 2014 Act to change the status of IJBs in relation to children's services planning where there is a relevant IJB in the local authority area. This change will see IJBs join local authorities and health boards on the list of bodies required to plan children's services. Collectively, and to reflect service planning on the ground, the three bodies are to be known as 'lead children's services planning bodies.'i
The Scottish Government states that its aim in doing so is to improve outcomes for children, young people and their families by enhancing collaborative working and joining up strategic planning activities across adult and children's services.iv
There were mixed views from stakeholders about these proposals, with several stating they were unsure what added value it would bring to the planning process. Others said that there should be more of a wholesale examination of existing plans and planning processes, suggesting that if these could be streamlined, then that alone could allow for a more co-ordinated approach.
Professor Soumen Sengupta of South Lanarkshire Council talked of the need to distinguish between "operational joined-upness - that is, how things feel on the ground [...] - from the strategic commissioning and planning perspective," noting that "we need to ensure that we have the resources and the wherewithal to scale up that activity."v
Aberdeen City Council was unclear what the purpose or benefit of the proposed changes would be, suggesting that "the workforce delivering the services would remain the same, and within the same organisations."vi Fiona Whitelock of COSLA observed that IJB members already have clear duties in relation to children's services planning, and cautioned that "the provisions risk duplicating their existing duties."v
Others noted the variation between arrangements for IJBs across Scotland, with varying degrees of integration in relation to children's services.
Scottish Borders Children and Young People’s Planning Partnership suggested that placing statutory planning duties on IJBs regardless of whether they have a role in children’s services "could risk introducing unnecessary complexity and duplication in areas like Scottish Borders, where effective governance arrangements for children’s services are already in place."viii
Dave Berry of Dundee Health and Social Care Partnership noted that "across the country, around 50 per cent of our IJBs have responsibility for children's services and 50 per cent do not, so we are starting from a position of variation," noting that "on the face of it, the Bill, as introduced, provides an opportunity to have that whole-system integrated family support with regard to strategic planning of health and social care for all the family, as well as the opportunity to connect local priorities across both children and families services and adult services."v
However, he noted that "the challenge with what is set out at the moment arises with the resources that are brought to the table," suggesting that "when it comes to the planning of children's services, if I am sitting on an IJB that does not have those services delegated to it, I have no resources to bring to the table," querying how "I, through the IJB, have that focus through a children and families lens if I cannot bring any resource to the table?"v
Iona Colvin, Chief Social Work Adviser at the Scottish Government suggested that the proposals in the Bill related to—
...how the IJBs will play their lead role in relation to planning children's services [...] it is not just about children's services. It is also about making sure that drug, mental health and other services that are needed by adults and the parents of the children are lined up because, otherwise, we will end up with children in care because their parents are not getting access to rehabilitation services. That is one aspect.
Another aspect, which is even more important in the areas where children's services are not integrated and sit solely on the health side, is about how to bring together children's health services and children's social work services to best meet children's needs. We have high levels of complexity - we have children with neurodiversity and with mental health issues. The answer for those children is a combination of the expertise that exists in social work and social care and in health, and particularly the mental health approach. How do we bring those services together to support children in a better way than currently happens? [...]
If we get it right, another advantage will be in relation to children who are transitioning from children's services into adult services. That applies particularly to children with disabilities, but also to children with complex needs and additional support needs. In many areas that is not well handled, but in other areas it is very well handled.
That is the expectation, and half the country is doing it already.xi
Includem supported the changes in the Bill, stating that "increased oversight and responsibility for planning, resourcing and delivery of work intended to keep the Promise is vital to ensure progress and continued improvement." xii
Jim Savege of SOLACE suggested there was an opportunity offered by the Bill to ensure a "greater level of involvement of and engagement with young people and their families and carers in the development of the plans, a greater focus on the resourcing that will be required to achieve those."v
Children's Services at East Lothian Council suggested that "the inclusion of IJBs also has the potential to improve transitions for young people moving from children’s services into adult services," noting that "this is a critical juncture, particularly for those with disabilities or those involved in justice systems. Joint planning can help ensure these transitions are smoother, better coordinated, and more consistent—reducing service gaps and promoting continuity of care."xiv
Stakeholders in the third sector highlighted that the Bill offered an opportunity for their voices to be better heard in planning processes, with Children in Scotland suggesting that "third sector partners delivering children’s services have told us that they often feel shut out from the work of Children’s Services Planning Partnerships, in part due to their structure that complicates the ways the third sector can engage with the partnership."xv The Scottish Refugee Council and Guardianship Scotland suggested the proposals could provide an opportunity to look at and improve current data collection processes, particularly in relation to Unaccompanied Asylum-Seeking Children "to ensure their needs are visible in strategic planning."xvi
Children's Services at Renfrewshire Council, however, suggested that "the absence of explicit provisions for key sectors such as education, mental health, housing, and justice limits the scope for truly integrated planning and risks perpetuating siloed approaches."xvii
UNISON Scotland questioned the Scottish Government's motives in bringing forward proposals, describing them "as a way of centralising control and accountability for children’s services, shifting it from local government to Ministers."xviii
Children in Scotland suggested that there was scope for these proposals to streamline existing children's services planning processes and reporting mechanisms, noting that these included Children’s Services Plans, Corporate Parenting Plans, Local Child Poverty Action activity, UNCRC activity and the development of a trauma informed and responsive workforce, noting that "if we could better integrate these ‘cross cutting’ areas we would free up resource and energy, simplifying the policy landscape."xv
The Promise Scotland suggested that there would be a need for further legislation in these areas to ensure that reporting requirements around children’s services "make sense to the workforce and are not overly bureaucratic."xx
The Minister responded to concerns, noting that—
I would argue that, going forward, there is a need to further invest in the services that we are talking about. It does not necessarily involve a financial ask; it is about joining up approaches, breaking down silos and getting people to work more closely when their services are related [...] many local authority areas or IJBs already operate in that way.xi
It is clear to the Committee that further explanation of the intended purpose of these changes is required in order for there to be greater understanding of the perceived benefits, as well as any potential unintended consequences.
Some of the evidence the Committee received in respect of the Children's Services Planning aspects of the Bill suggested that stakeholders were struggling to understand the added value that these proposals could bring, but were seeking to have this resolved, particularly given that local authorities and health and social care partnerships are already part of IJBs.
The Committee recommends that the Scottish Government should look more broadly at the planning and reporting mechanisms currently in place in relation to children's services planning, to explore opportunities to streamline these. There are opportunities too to improve data collection, ameliorate transitions to adult services and to assess how children's services planning processes are taking into account the needs of wide range of children and young people.
The Committee notes that IJBs vary significantly across the country in relation to the extent to which children's services are fully integrated. This will have a potential impact on the success of these provisions.
At present, the Committee remains to be convinced that the Bill's proposals will lead to the envisaged improvements. However, it asks the Scottish Government to reflect on the evidence the Committee heard and respond to the points raised by stakeholders ahead of Stage 2.
Many of those responding to the Committee's Call for Views took the opportunity to comment not just on what was in the Bill, but what they thought was missing from it.
These comments were wide-ranging in nature, from how the Scottish Government should be approaching accountability on the Promise more generally, to calls to de-clutter the legislative landscape, tackle workforce issues, improve support for foster carers and kinship carers, extend Continuing Care and expand the use of Family Group Decision Making. The key points raised in these submissions are summarised below.
CELCIS felt that the Bill had missed an opportunity to look at the policy and legislative landscape as a whole, suggesting that instead "it will contribute to a 'layering on' of responsibilities and tasks for the workforce to take forward," at a time when there was an acute recruitment and retention crisis.i The Law Society of Scotland suggested that serious consideration must be given to codification of child law in Scotland, recognising that "there remains a need for a coherent approach regarding Scots law for children, including clarity on the disparities in the definition of the 'age' of a child, and determining 'capacity' across all sectors and services."ii
Social Work Scotland suggested that it was time for a legislative "re-set" given that it had been nearly thirty years since the Children (Scotland) Act 1995 came into force, recognising that "we currently operate within a framework of legislation built up incrementally over nearly sixty years [....] additions have not always been constructed with an eye to overall policy coherence, nor has sufficient attention been given to the system's central operating principles."iii
Who Cares? Scotland said that the Bill could provide an opportunity to gauge and communicate wider progress relating to the Promise, noting that "despite reports, statements and duty bearers insisting that change is happening, many care experienced people are not feeling enough change in their own lives."iv
The Care Inspectorate identified an opportunity for the Bill to be clearer about where it sat in relation to key policy drivers such as the UNCRC, Getting It Right for Every Child (GIRFEC) and Keeping the Promise, noting that "to achieve the ambitions set out in this Bill, we would suggest specific reference to the synergies of other policy drivers rather than this sitting in isolation."v
Children First suggested that the Bill had missed an opportunity to bring about improvements in relation to early intervention, including Family Group Decision Making. It stated that current legislation should mean that every local authority ensures a Family Group Decision Making service is provided, however, a third of local authorities still have no offer, and services in many areas are vulnerable or very small.vi It noted that the Bill only focuses on changes to the system after the care system has already been engaged, which will not help or improve the supports available to children and families to avoid the need for care in the first place.vi
Polaris Community felt that the Bill missed an opportunity to make provision for extending continuing care,viii a point with which the Fostering Network concurred. The Foster Network expressed disappointment that a national learning and development framework for foster carers and measures to improve financial support for foster carers were also missing from the Bill. ix
Children First expressed concern about "how little this Bill looks to improve kinship care," noting that this had been an opportunity to address variation between local authority areas in relation to practical and financial support, including for those caring informally or under section 11 orders.vi
Several stakeholders in their submissions highlighted that further legislation would be required in the next Parliamentary session, in order to fulfil the Promise.
Fiona Duncan, Independent Strategic Advisor, stated—
As you know, we are five years into a 10-year programme. Until the Promise is kept every day to every child, every care experienced adult and every family everywhere - until that is the situation in Scotland - the Promise will not be kept. The Bill is a step towards keeping the Promise but, as you have articulated and as you have seen in the submissions, it does not capture everything.xi
The Minister stated—
I do not know whether another Bill is necessary, [...] a future Parliament might deem that some areas will need further legislation, but I cannot comment on that [....] what I can say is that I know that the provisions in this Bill are welcomed by many and have been stated to make a difference in the lives of children and young people with care experience.xii
The Committee draws the Scottish Government's attention to the issues which stakeholders felt could have meaningfully been included in this Bill. It requests that the Scottish Government respond to these points ahead of Stage 2.
The Committee would also welcome further details from the Scottish Government as to its assessment of the areas in which further legislation is likely to be necessary in future, in order to achieve the Promise by 2030.
The Finance and Public Administration Committee issued a Call for Views on the Financial Memorandum for the Bill. This ran from 10 July 2025 until 1 September 2025 and attracted 9 responses.
The Finance and Public Administration Committee wrote to the Education, Children and Young People Committee on 30 October 2025, setting out its findings.
The letter set out a number of concerns raised by stakeholders with regard to the Financial Memorandum accompanying the Bill. These included—
Insufficient engagement with key stakeholders regarding costs;
Recruitment and capacity - specifically in relation to staff costs and the ability for the workforce to meet the objectives set out in the Bill;
Pre-existing budget pressures and service delivery - specifically, a lack of recognition by the Scottish Government of where services are already struggling to meet demand;
Inaccurate assumptions around the cost of delivering certain aspects of the Billi
The inaccurate assumptions concerns were further broken down into—
Aftercare support costs - with the concern being that the assumption for aftercare support costs was based around 2011-2012 costs, which had been uprated for inflation;
Care Inspectorate costs - with the concern being that the costs associated with re-registering fostering agencies as charities will not be 'minimal and manageable' as is stated in the Financial Memorandum;
Hidden costs following the registration of Fostering Agencies as charities - with the concern being that the risk/cost of Fostering Agencies potentially leaving the market has not been fully factored in;
Regional impact - with the concern being that the Scottish Government has not fully factored in the additional costs involved in delivering the Bill's provisions in rural and remote areas;
Uncertainty regarding advocacy costs - with the concern being that the costings for delivering lifelong advocacy are not thorough enough and that there needs to be further engagement to arrive at accurate figures for likely take up of the service;
Register of Foster Carers - with the concern being that administrative costs to update a register of foster carers had been underestimated.i
The Committee thanks the Finance and Public Administration Committee for its work on this Bill, and for drawing the specific issues raised to its attention.
The Education, Children and Young People Committee also heard evidence to suggest that the calculations in the Financial Memorandum accompanying the Bill were not a true reflection of what the Bill was likely to cost and has asked the Scottish Government to provide updated costings in advance of Stage 2.
When these concerns were put to the Minister, she said that—
I was provided with the best information that I could be given at the time, and I had to choose between progressing with a Bill under the timeline that was given to me or committing to updating that information further," before noting that "I have committed to providing any updated financial information to the Finance Committee, and I will do the same with this Committee.iii
The Committee draws the Scottish Government's attention to the concerns raised by the Finance and Public Administration Committee, in relation to the finances attached to this Bill.
It is clear that in many areas, the resources required to deliver the Bill's provisions have been significantly under-estimated. This is particularly true in relation to costs associated with extending aftercare, corporate parenting provisions and life-long advocacy. As a result, there is a danger that any improvements offered by the Bill, will not come to fruition.
The ECYP Committee urges the Scottish Government to revisit these costings without delay, to ensure that updated figures are available ahead of Stage 2.
The Committee recognises that this Bill has been long-awaited by the care community and that it offers an opportunity to bring about real and lasting change to their experiences of care.
However, it is crucial that any changes are sufficiently resourced, to ensure that care experienced children, young people and adults can receive the support they need. The Committee remains unconvinced that the costs set out in the Financial Memorandum are a true reflection of what is likely to be required to deliver on this Bill's commitments.
The Committee was also concerned to hear of the lack of engagement perceived by key stakeholders around this Bill, and the suggestion that its provisions were the poorer for this. Engagement from this point forward will be critical in ensuring that the Bill's proposals are workable and deliverable. This includes in relation to the Children's Hearings provisions of the Bill, where further work is required to ensure that they are more closely aligned to the recommendations of the 'Hearings for Children' report.
The Committee recognises concerns raised in evidence that two of the provisions in the Bill, relating to aftercare and the register of foster carers, fall outside scope of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. This Scottish Government must seek to address this ahead of Stage 2.
The Committee also notes that many of the substantive elements of this Bill are left to regulations. As such, the Committee has been unable to fully explore how many of the Bill's proposals will work in practice.
The Committee recognises that the Bill progresses a number of key elements of the Promise. Whilst it requires substantial revision in parts, the Committee is supportive of the general principles of the Bill and therefore recommends to the Parliament that the Bill should be agreed at Stage 1.
Extracts from the minutes of the Education, Children and Young People Committee and associated written and supplementary evidence.
25th Meeting, 2025 (Session 6), Wednesday 10 September 2025
Children (Care, Care Experience & Services Planning) (Scotland) Bill.
The Committee took evidence on the Bill at Stage 1 from—
Sheriff David Mackie, Chairperson, Hearings System Working Group;
Fiona Duncan, Independent Strategic Advisor;
and Fraser McKinlay, Chief Executive, The Promise Scotland;
and then from—
Claire Burns, Director, CELCIS;
Katy Nisbet, Head of Legal Policy, Clan Childlaw;
Maria Galli, Convener of the Child and Family Law Sub-Committee, Law Society of Scotland;
Kate Thompson, Policy Officer, Children and Young People's Commissioner Scotland.
Official report of the meeting
Written evidence from witnesses—
Clan Childlaw (additional submission)
26th Meeting 2025 (Session 6), Wednesday 17 September 2025
Children (Care, Care Experience & Services Planning) (Scotland) Bill.
The Committee took evidence on the Bill at Stage 1 from—
Stephen Bermingham, Senior Policy and Standards Manager, Children's Hearings Scotland;
Matt Forde, Partnerships & Development Director, NSPCC Scotland;
Margaret Smith, Services Manager, Partners in Advocacy;
Alistair Hogg, Head of Practice and Policy, Scottish Children's Reporter Administration (SCRA);
Laura Pasternak, Policy & Public Affairs Manager, Who Cares? Scotland;
and then from—
Lynne O'Brien, Chief Officer for Children and Families, Aberlour;
Duncan Dunlop;
Jo Derrick, CEO, Scottish Throughcare and Aftercare Forum (Staf);
Natalie Williams, Head of Policy and Campaigns, The Fostering Network.
Official Report of the meeting
Written evidence from witnesses—
Scottish Children's Reporter Administration
Scottish Throughcare and Aftercare Forum
29th Meeting (Session 6) 2025, Wednesday 8th October 2025
Children (Care, Care Experience and Services Planning) (Scotland) Bill
The Committee heard evidence on the Bill at Stage 1 from—
Fiona Whitelock, Policy Manager, The Promise, COSLA;
Professor Soumen Sengupta, Director Health and Social Care, South Lanarkshire Council;
Dave Berry, Director, Dundee Health and Social Care Partnership;
Jim Savege, Chief Executive, Aberdeenshire Council, representing the Society of Local Authority Chief Executives and Senior Managers (Solace Scotland);
and then from—
John Trainer, Chief Social Work Officer for Renfrewshire Council and Convener, Social Work Scotland;
Maree Allison, Chief Executive, Scottish Social Services Council (SSSC);
Charlotte Wilson, Chief Inspector (Temporary), Children and Young People, Care Inspectorate.
Official report of the meeting
Written evidence from witnesses—
Scottish Social Services Council
31st Meeting 2025 (Session 6), Wednesday 5 November 2025
Children (Care, Care Experience and Services Planning) (Scotland) Bill
The Committee took evidence on the Bill at Stage 1 from—
Natalie Don-Innes, Minister for Children, Young People and The Promise
Gavin Henderson, Deputy Director, Keeping the Promise, Scottish Government
Iona Colvin, Chief Social Work Adviser, Scottish Government
Tom McNamara, Head of Youth Justice and Children’s Hearings, Scottish Government
Barry McCaffrey, Lawyer, Scottish Government Legal Directorate
Official report of the meeting
36th Meeting 2025 (Session 6), Wednesday 10 December 2025
Children (Care, Care Experience and Services Planning) (Scotland) Bill
The Committee considered and agreed a draft Stage 1 report.
Written submissions
The Committee received a significant number of written submissions from organisations and individuals to the call for views which have been published on the website—
Engagement
The Committee agreed to speak to care experienced people to gather their views on the Bill.
The Committee met with care experienced people, aged 11 to 43, on 7 October 2025. The session was facilitated by Who Cares? Scotland.
Read the notes from the informal session. (191KB, pdf) posted 11 November 2025
Correspondence Received in relation to this Bill—