Education and Skills Committee

Meeting date: Wednesday, January 27, 2021

Official Report 681KB pdf

---

Subordinate Legislation

---

Children’s Hearings (Provision of Information by Principal Reporter) (Specified Persons) (Scotland) Regulations 2020 (SSI 2020/449)

Agenda item 2 is consideration of a negative instrument. The details are in the meeting papers.

Do members have any comments to make on the instrument? I see no indication that anyone wishes to comment.

---

Provision of Early Learning and Childcare (Specified Children) (Scotland) Amendment Order 2020 [Draft]

The next item is consideration of a draft instrument that is subject to the affirmative procedure. The committee will have the opportunity to ask questions of the minister and will then debate the motion on the instrument. As we are meeting remotely, members should record whether they are voting yes or no in the BlueJeans chat box. I will provide more details of the voting system when we reach that point.

I welcome Maree Todd MSP, Minister for Children and Young People; Ellen Leaver, head of the parents, providers and workforce unit at the Scottish Government; and Carolyn O’Malley, principal legal officer in the Scottish Government legal directorate.

Maree Todd will make an opening statement to explain the draft order.

I know that the issue is of interest to the committee and across the Parliament, so I am pleased that we have laid an affirmative statutory instrument to introduce automatically funded early learning and childcare from August 2023 for all children whose parents defer their primary 1 start. The order will allow parents to make decisions about deferral on the basis of the needs of their child without facing uncertainty about financial barriers to ELC.

The change means that many more children will become eligible for funded ELC, so we must know that we have childcare spaces available for them. In December, we announced £3 million to support five local authorities to pilot implementation during 2021-22. We expect to include additional authorities in that pilot in 2022-23, which will further widen our evidence base. We are working with as many authorities as possible, within the funding available, and have established a deferral working group to gather and share useful information. In the interim, I expect that any decisions made by local authorities on deferral funding requests to continue to be based on the wellbeing of the individual child.

In March 2020, due to the coronavirus, we made the difficult decision to pause the planned expansion of funded ELC to 1,140 hours per child. I am pleased to say that we have now legislated to reintroduce the statutory duty to deliver that obligation by August 2021. Although that progress is welcome, we must be mindful that delivery in parallel with our deferral commitment requires a balanced approach. Given the challenges that we continue to face, it is more important than ever to ensure that the required capacity and capability are in place to avoid further delay to the expansion to 1,140 hours.

I would also like to recognise the significant achievements of the Give Them Time campaign. The data that it has collected shows that local authorities are approving more requests for funded deferral, which is testament to how incredibly hard the councils are working to deliver funded ELC to Scotland’s children.

I am happy to respond to any specific questions that the committee has.

Thank you, minister. I have indications of a couple of questions.

Good morning. The minister knows that I have been a great supporter of the Give Them Time campaign, so she will not be surprised to know that I am pleased—as is the campaign—that this legal change is going to happen. She will also not be surprised to know how disappointed I am that it is not going to happen until 2023.

The fact is that we are correcting a legal anomaly so that parents have the right to decide, without reference to anybody else, whether it is best for their son or daughter to defer. Until that change comes into force, children who defer will not have the right that every other pre-school child has to fully funded hours for—[Inaudible.]—and, in this case, five-year-olds. Surely what a legal anomaly needs is not only to be reversed, but to be reversed quickly or immediately. Parliament asked the minister to reverse it, I believe, almost two years ago.

What is more, this particular effect applies only once to any individual child. Either they have the right or they do not, and if they do not have it, they cannot receive it retrospectively, because by then they will be six, seven or eight years old. The delay has meant that many children and families have not benefited from that right. To delay it until 2023 means that many—perhaps hundreds—of families will continue not to be able to avail themselves of it.

I have two questions for the minister. First, why on earth has it taken so long to do this, and why on earth is it taking so long to come into effect? Secondly, when it comes to the pilot that she just described, the Give Them Time campaign has pointed out—she thanked it for the data—that the five local authorities that she has chosen for the pilot already agree 100 per cent of applications. The pilot is nothing but a joke. Why do we not have a pilot that forces some of the councils that do not agree to deferral funding to agree it from now on?

Thank you for your questions, Mr Gray. I agree that you have shown a great deal of interest in the campaign.

You will remember that Parliament asked us to legislate in this parliamentary session, and that is precisely what we are doing. We set a realistic timetable for the implementation of extended eligibility for all deferrals to ensure that the roll-out of 1,140 hours of funded ELC to all eligible children is not put at risk. It is just not possible for us to expect all local authorities to implement the new commitment at the same time as they are rolling out the 1,140 hours against the continued backdrop of the challenges that are imposed by the Covid-19 response. Therefore, we have set a realistic timetable for full implementation of extended eligibility for all deferrals.

It is important to note that the policy has the potential to have a significant impact on the number of new children who attend ELC. The total number of children who will become newly eligible for funded ELC in 2023 is around 20,000. Our pilot approach will help us to better understand the likely impact on numbers and to ensure that we have the space available in our ELC settings. We will work with all local authorities to consider what that means for their capacity.

A number of members want to come in, so I ask everyone to be succinct as we have a very full agenda. First, Iain Gray has a quick supplementary question.

I ask the minister whether she understands that, although Parliament asked her to introduce the change in this session and although we may be legislating for it in this session, it will not be introduced until the middle of the next session. Frankly, that is just sophistry.

I am not sure whether there was a question there. We have certainly done as Parliament asked. We are legislating in this session of Parliament and I have explained the reason for the delay. I cannot implement the legislation now because it would put at risk the expansion to 1,140 hours.

My colleague Fulton MacGregor has been very involved with the Give Them Time campaign. He apologises for not being here—he is at another committee meeting—but he asked me to put some questions that are similar Iain Gray’s questions. Will more pilots be considered for this year, possibly in councils that are not already funding deferrals, and will the Government work ask the Convention of Scottish Local Authorities to permit self-funding in any ELC setting, if local authority funding for deferral is refused?

This year, we are introducing only the pilots that have been announced, but we are considering expanding the pilots in the second year—next year. Our challenge is that we do not understand how the change will influence parental behaviour. We know that 20,000 children will become newly eligible, but we do not think that all parents with children in that age bracket will choose to defer. Estimating the deferral rates is really challenging, and we only have data for January and February at the moment. We cannot determine the relative importance of the offer of funded provision versus parental choice.

A further complication is that the extension of ELC—the expansion to 1,140 hours, which looks like a primary school week—will possibly influence parental choice for children who are born in January and February as deferral becomes more the norm, even though there will be no change in provision for those children. We are keen to understand the behavioural changes involved with the change before we continue the roll-out.

In terms of funding, I spoke to members of the Give Them Time campaign on 3 December. I met them, and that was one of their asks. I will certainly seek to ensure that, where possible, children are able to defer when their parents choose that. However, I refer back to the process: the child’s parents should be involved in the decision making, and the decision should be made in the best interests of the child. As things stand, the process should ensure that parents who seek deferral for their children are able to access it.

I have supported the move to a legal right to funded deferrals throughout the Give Them Time campaign, but I have grave concerns about what the Government has brought forward. The minister will know that the people working on the campaign were disappointed by the announcement that a full right to deferral will not exist across Scotland until 2023. As has already been pointed out, the pilot councils were already accepting 100 per cent of applications.

This year—of all years—children have missed out on so much because of the virus. Some will barely remember socialising with anyone outside their bubble, and we know how critical the early years are to life chances and attainment. However, this August there will be a £4,500 price tag hanging over families who want to give their children more time. Children only start school once, and those starting this year may not remember what it is like to play with other children. Playgroups and social events have not been an option and nurseries have been stop-start. The plan for 2023 fails to recognise how difficult the next group of school starts may find the adjustment. We have taken evidence on that before, but I have yet to hear a convincing justification for why 2023 is the best that we can do. Why should deferral not be available to every family that thinks that it is right for them?

08:45  

I am acutely aware that this year has been really difficult for children. It is important to note that schools and ELC settings are working really hard to support their children at this time. They know that those children who are in primary 1 this year missed part of their ELC last year and have had a completely different transition, and come August they will be ready to support the next cohort.

As I have said many times, we, in Scotland, do not think of children as being school ready; we think of schools as being child ready. When it is clearly in a child’s best interests to remain in ELC for an additional year, whether that is because of the impact of Covid-19 or otherwise, the current system of child-centred decision making should enable that to happen. It is important that decisions take into account the needs of the individual child rather than adhering to a blanket policy. Most children will be eager to start school in August, as normal, and I know that schools and ELC settings are carefully considering the needs of that cohort as they plan the transition.

Good morning, minister. I have listened with interest to the exchange thus far, but it is still unclear to me why a delay is needed. Perhaps you can clarify that, because I have not yet heard a full justification for it.

As you acknowledged, in the context of everything that has happened in the past year, some parents may not be convinced by your comment that

“the current system ... should enable”

deferral. There are no guarantees in there, and the problem for many parents is that if funding is refused, choosing to defer will come with a huge price tag for them.

I do not understand the link between the delay and the roll-out of 1,140 hours, nor the justification with regard to whether the issue is capacity or funding. My understanding is that there is capacity in the system, and that the problem is only in funding and could therefore be addressed immediately in the forthcoming budget.

I have to disagree with that. The main challenge in introducing the policy is capacity. When we confirmed the new date of August this year for the roll-out of the expansion of 1,140 hours, careful consideration was given to deciding on a date that could be reasonably met, and which would not require approaches to be taken that would provide less flexibility for families and a poorer experience for children until longer-term solutions could be delivered.

We know that a change to ELC availability, such as extending the obligation to fully fund deferrals, could impact on capacity locally, and we have therefore set a realistic timetable for full roll-out. In order to ensure that the policy is implemented smoothly, we have in the interim established a pilot scheme to monitor the impact of the policy, to better understand the likely uptake of the entitlement and to inform the wider roll-out of the legislation.

The financial impacts are not insignificant. The challenge is that we are currently unable to estimate those, so when we incorporate the additional duty, we will build that into the multi-year funding agreement that we reach with local authorities. There is real uncertainty around the uptake and therefore the annual additional revenue that is required; it could range from £33 million to £82.5 million per year. A pilot approach gives us the opportunity to monitor the likely uptake of the entitlement and improve our understanding of the consequent impact on available capacity and the financial implications.

That exhausts questions under item 3. We move to item 4, which is the formal debate on motion S5M-23665. If members wish to take part, I ask them to indicate that by putting an R in the chat box. I ask the minister to move the motion.

Motion moved,

That the Education and Skills Committee recommends that the Provision of Early Learning and Childcare (Specified Children) (Scotland) Amendment Order 2020 [draft] be approved.—[Maree Todd.]

A number of members want to come in. I will bring in Beatrice Wishart first.

Parents must immediately be given the legal right to defer primary 1 and to have it replaced with funded early learning and childcare. The only question that should be in parents’ minds is whether putting off entry into P1 is the best thing for their child. I believe that the Government has the ability to remove that extra financial barrier and to empower parents to do what they feel is right. Consequently, I cannot support the measures.

The approach that we are already taking under the existing legislation puts the best interests of the child absolutely at the centre of the decision, and that must be the top priority in the decision. That has been set out in our statutory guidance for local authorities, and that is the first and foremost thing that should be in the minds of local authorities, too. A reminder of that statutory duty was sent to directors of education when we informed them of the proposals that we are considering today. I am disappointed if Beatrice Wishart cannot support this significant improvement and future commitment.

As we are meeting remotely and it is not easy to see members on screen, we will vote on the instrument using the text box on BlueJeans. Once I ask the question on the motion, I will ask members to put a Y for yes, an N for no or an A for abstain in the text box.

The question is, that motion S5M-23665 be agreed to.

We are not agreed, so there will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)

Against

Greene, Jamie (West Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

The result of the division is: For 8, Against 3, Abstentions 0.

Motion agreed to,

That the Education and Skills Committee recommends that the Provision of Early Learning and Childcare (Specified Children) (Scotland) Amendment Order 2020 [draft] be approved.

---

Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Amendment Rules 2021 [Draft]

Agenda item 5 is consideration of further subordinate legislation. This draft Scottish statutory instrument is subject to the affirmative procedure. As members know, affirmative instruments are considered under two agenda items. The committee will first have an opportunity to question the Minister for Children and Young People, after which we will turn to agenda item 6, which is a formal debate on motion S5M-23764, on approval of the draft rules.

I again welcome the minister, Maree Todd, who will be speaking to the motion. She is joined by Tom McNamara, the head of youth justice and children’s hearings at the Scottish Government, and Margaret Main, a lawyer in the Scottish Government’s legal directorate. I invite the minister to make an opening statement.

Thank you for the opportunity to introduce this draft instrument. The central objective of the draft rules is to ensure a proper opportunity to participate for the brothers and sisters, and all those with similar relationships, of children coming before hearings. That especially applies where decisions could be made that will affect their contacts and relationships with the child who is subject to the hearing.

The draft instrument makes detailed provision for siblings around prior notification, invitation to attend and rights to make representations, to be accompanied or represented by another person and to be informed about the outcome of the hearing as it relates to their interests. That will allow a broader and more inclusive approach to be taken to siblings’ involvement in children’s hearings.

The rules follow the decision of the United Kingdom Supreme Court in the cases of ABC and XY last year. As the committee is aware, those cases considered siblings’ participative rights in children’s hearings. The Supreme Court’s decision recognised that the legislative scheme behind children’s hearings is compatible with children’s article 8 rights, but we all want Scotland’s childcare system to move from compliance towards excellence. The Government therefore lodged amendments to what became the Children (Scotland) Act 2020 to enable the changes to happen. The reform will also enable Scotland to honour important aspects of the independent care review promise on siblings.

The draft instrument refines aspects of children’s hearings procedure in important additional areas. It mainstreams the electronic authentication of signatures and introduces more flexibility in electronic participation. Both those measures were important features in last April’s emergency Coronavirus (Scotland) Act 2020. There is a shared appetite to hold on to those innovations for the benefit of families, decision makers and professionals.

The draft instrument empowers decision makers to exclude from hearings people whose conduct is dangerous, intimidating or disruptive. Exclusion may be necessary to obtain the views of a relevant person in, for example, a domestic abuse situation.

The draft instrument enables earlier sharing of independent reports and assessments among professionals. That is aimed at promoting better preparation and more informed and productive discussions at hearings.

I am happy to take questions from members.

No member has put an R in the chat box to indicate that they wish to ask the minister a question. As there are no questions, we will move to item 6, which is the formal debate on motion S5M-23764.

Motion moved,

That the Education and Skills Committee recommends that the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Amendment Rules 2021 [draft] be approved.—[Maree Todd]

Motion agreed to.

I thank the minister and her officials for attending to present the Scottish statutory instruments.