Public Petitions Committee

Meeting date: Thursday, March 2, 2017

Official Report 490KB pdf

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New Petitions

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Child Welfare Hearings (PE1631)

Agenda item 2 is new petitions. The first new petition that we will consider is PE1631, by Maureen McVey, on child welfare hearings. We are joined by Maureen McVey and June Loudon, the secretary of Grandparents Apart UK, as well as by Scott McVey. I welcome you to the meeting and invite Maureen to make an opening statement of not more than five minutes, after which we will ask questions.

I thank the Public Petitions Committee for giving me the opportunity to discuss my petition. I am calling on the Scottish Parliament to urge the Scottish Government to change the laws that govern the recording of discussions at child welfare hearings so that presiding sheriffs have access to such records. My petition is lodged under the auspices of Grandparents Apart, of which I am a member and who, at their heart, want what is best for our children in family disputes.

Although the child welfare system has its merits, the recording of the hearings would benefit all users. I mean no disregard, but it may be that not everybody here knows that a child welfare hearing is different from a children’s hearing, and our comments are on child welfare hearings. Grandparents Apart has seen how families are affected by how the child welfare hearings system works and how others have been affected by their experience of it. We see how the system could be improved for children and how time and costs could be reduced for the benefit of all concerned. It is important to note that only 2 per cent of contact cases go to court.

It is evident that changes are progressing in the Scottish justice system, and that is positive. Changes take time, and the members of Grandparents Apart welcome change. The recording of minutes in the child welfare hearings system, which my petition calls for, should be part of the change. At present, there is no method of documenting what has been discussed at a child welfare hearing.

I will give a few examples of how court costs and court time would be reduced and how children would benefit from the recording of child welfare hearings. In many cases, what has been discussed during a previous child welfare hearing becomes an issue for the sheriff, and he or she then has to discuss the points with the relevant parent again. If hearings were minuted or recorded, the information would be available.

Also, without recording, there could be a pattern of false information being presented or of obstructive behaviour that could continue unchecked. The sheriff may note that one parent has been obstructive and that their behaviour has encroached on the court’s time, and they may suggest that there will be serious repercussions if it happens again. Sadly, however, in our experience, the behaviour is allowed to continue when, at a following hearing, a different sheriff is unaware of what took place at the previous hearing. If hearings were minuted or recorded, the information would be available to the sheriff.

A parent’s legal team may try to discredit the other parent through erroneous information provided by their client, and the presiding sheriff may inform their legal representative that they have a duty of care to their client. However, the next child welfare hearing may have a new legal representative and a new sheriff who is unaware of what has gone on before. Again, if there was a note of that, it would promote expediency and the child welfare hearing would not take so long.

If a legally aided parent who had been granted a motion failed to turn up to court or their legal representative was late and then deviated from the motion, that would be highlighted in the minutes. Any pattern of obstructive behaviour in the past would be shown in the minutes or recording. That would happen according to article 3 of the United Nations Convention on the Rights of the Child, in the child’s best interests and in order to have the best possible system.

In another scenario, a client might move from one sheriffdom to another, and the only information that would be available to the sheriff would be about contact via the interlocutor, which is all that you get after a child welfare hearing. The new sheriff would have to elicit why the person had moved court and what the circumstances were, and the new legal rep would take up valuable time that could be used to discuss contact issues. Again, that pattern of obstructive behaviour would be shown in the minutes or the recording.

Each of those scenarios has a detrimental effect on court time, court costs and—most important—the child. As decisions get delayed, the legal costs for parents increase, and that can have a ripple effect on children. Those scenarios have been experienced by both our legally aided and self-funded members. As I have said, having minutes or recordings that show what had been discussed would, I think, be an important way of letting people know what has happened before.

On 26 January, I was informed by Mrs Anne Hampson, policy officer at the Scottish Civil Justice Council—some of you might know her—that the SCJC family law committee had been actively considering case management in sheriff courts with regard to family cases and that its findings would be considered shortly. Indeed, just the other day, the present secretary of the family law committee, David Ross, informed me that the committee is moving forward with this.

Many big departments in the justice system are looking to move forward and bring innovative practices into Scotland’s legal system. All of that takes time, but I hope that all those departments will continue to enhance the court system and ensure that it encompasses best practice in all forms of law, especially the field of family law, of which child welfare is a part. I know that any change to civil court procedures requires a policy decision by the Scottish Government and a subsequent change in legislation. As the wish expressed by Lord Gill and the present Lord President, Lord Carloway, for a fairer and more effective justice system is taken forward, I hope that that review will look at the use of digital innovations in the child welfare hearing system in order to support children and families better.

Thank you very much. I appreciate your explanation.

Do I understand from what you say that a child welfare hearing can take place and there will be no evidence of what was discussed? What does the sheriff get? Do they just get a note that the meeting took place?

Yes. They get a piece of paper called the interlocutor, which discusses only the decision made by the sheriff about contact. It will say, for example, that one parent gets this number of days, the other gets that number and so on. A note can be appended to the interlocutor if someone asks for it, but that does not always happen. Whatever has been discussed at the child welfare hearings is not mentioned on that piece of paper; it just sets out the contact issues, times and all the rest of it.

There is nothing about patterns of behaviour that might be perceived as blocking or whatever.

No.

Do you know whether other types of hearings—say, tribunal hearings—are minuted or recorded as a matter of routine? Is that unusual? Are child welfare hearings different from other tribunals, or is that just the norm?

I think that they are different in that they are heard in a closed court and only the parents, their legal representatives and the sheriff are present. No one else is there. Children’s hearings are slightly different in that they are held somewhere else, and there is a table with everyone present. I assume that they are minuted, but I am not certain. I am not aware of any other hearing in which the proceedings are not minuted.

Is it the case that the hearing takes place in a closed court because it is dealing with a child?

Yes, that is my understanding.

Good morning. Coming back to that last point, I have to admit that I am a former member of the children’s panel, and I know that the children’s reporter takes a note of everything that happens and that after each hearing all the notes are thoroughly written up. A record is always kept.

As a result, I am really surprised to hear what you have said. What method do you think should be used to record the hearing? Should it be video or audio?

I think that it should just be recorded using information technology.

So even a digital audio recording would do.

Yes. I do not know whether it would be more beneficial to have it videoed. However, I know that there was an adoption case where a videolink to Melbourne was used, and Lord Gill suggested that, if that could be done, videolinks and recordings could surely be used in Scotland.

10:15  

In your experience of dealing with court staff, has any of them mentioned that it would be good to have a record in that way, or is it just accepted practice that it does not happen?

It is just accepted practice. I know that our members and Grandparents Apart have mentioned recording, but I have never heard anybody in the legal profession or any court staff mention it at all.

You said that somebody can make a request for a note to be attached to an interlocutor. Who would make that request?

June Loudon can speak about that, as she had experience of it with one of the members.

If someone has a particular concern, they can ask for it to be noted. However, if they do not ask for it to be noted or do not know who to ask, it is not noted and the concern bypasses whoever is new in the next child welfare hearing. So, the same information is gone over constantly, which wastes time in the meetings. It is a cost and time issue that delays decisions being made about a child.

Good morning. Why do you think child welfare hearings are not currently minuted or recorded?

It is probably because of confidentiality, but I am not sure. The sheriff usually takes the views of both parents, but they sometimes do not—it depends. I think that recordings are not used because of confidentiality, but I think that nowadays recording should be used and that confidentiality could be covered by names not being used. If minutes were taken, names and so on could be redacted. I do not see why confidentiality or data protection should prevent recordings being made or minutes being taken.

Are you calling for minutes to be publicly available? Or should they be available just in the justice system?

They should be available just in the court system.

So that there is a continuous information stream.

So that the sheriff is aware. Some members of Grandparents Apart have dealt with five or six different sheriffs when going to court. A sheriff who is continuing a case does not know what has happened before, apart from what is in the interlocutor. Perhaps sheriffs write some notes as a record, but we are not party to that. As far as I am aware, the only record is the interlocutor. I know of a case where a family moved to a different sheriffdom and the sheriff had no explanation of what had happened in the case previously and there was nothing in front of him about it. I think that minutes would be helpful to sheriffs and helpful all round in the interests of being open and transparent.

Good morning. Your petition notes that the sheriff court ordinary cause rules address issues of confidentiality. Can you explain more about what confidentiality issues might arise as a result of the action that you are seeking?

The confidentiality issue might be around what might happen when a child gets older. We do not know what will happen in the future with contact cases, because they go on so long. A child in the future might want to discover what happened when they were younger and might request notes of the case for that reason. I am not 100 per cent certain, but I think that that is the basis for the confidentiality.

After you raised the point about the ordinary cause rules, the SCJC suggested that you should seek an update from the Scottish Government. Did you do that?

I did that by speaking to David Ross. I could not see the information in the minutes on the webpage so I contacted the person who I thought was the secretary and was informed that the secretary was now David Ross. He told me that they had been discussing the child welfare issue and that he would send me some information. I think that that work is only at the second phase just now. However, that conversation was just yesterday, so I have not received that yet.

Good morning, ladies and gentlemen. We have been discussing confidentiality in the last few minutes and, in relation to that, could you explain a bit more about who you think should be able to access the meeting records?

It should just be the sheriff who is hearing the case who should access the records. Do you mean access the records to provide him with information prior to making a decision?

Yes.

It should just be the sheriff, so that he is aware of what is happening, and maybe the lawyers, too.

In a continuation, or situations like that?

Yes, but I do not think that the information should be common knowledge.

Right, so you think the confidentiality should be at that sort of level. Do you all agree with that?

Yes. The aim is to enhance the process, speed it up and make it easier for everyone concerned by reducing the repetition and lack of awareness.

Right. Mr McVey, what do you think?

Recording would be purely for continuity to assist the sheriffs in making an appropriate decision. It would also stop the groundhog day feeling that happens when you go to child welfare hearings and you go over the same accusations that have already been dealt with by a previous sheriff. All of that just delays the process and is costly for the courts. It does not help in getting the correct decision for the children.

Is the issue that there is not a proper picture of what has already been argued, so that the sheriff comes to the case and perhaps the same story is told that has already been rebutted earlier on, meaning that things are unnecessarily delayed in reaching an outcome for the young person and there is the frustration of someone arguing a line that has already been proven to be a nonsense?

It can be used as an intentional delaying tactic to hold off reaching a decision.

This may not be directly related, but, in contact cases, if contact has not been maintained over a period and is therefore broken, any delay might raise the question of whether it is in the interests of the child to try to re-establish a relationship. Is that why a delay is sometimes used?

That is right. The longer the delay goes on, the harder it is for parents and children to re-establish a relationship. If one party or another wants to prevent that contact, this system can be used to do that, making it harder for parents to maintain or re-establish a relationship.

So the fact that there is no record of the meeting creates an incentive to delay, because the same issue can be repeated, with the consequence that maintaining contact is then much more difficult. The issue involves more than just the information; it is about how the situation is used as an active strategy by some people.

Yes.

Is it your suggestion that having a record would deal with that?

I hope that it would, yes.

It would also make it easier for courts and would greatly reduce costs.

Have there been any conversations with sheriffs about whether they have a view on the issue?

No, but I contacted quite a few agencies to find out what the process was. I have not spoken personally to a sheriff. I have spoken to the Law Society and various other people.

I understand that you are connected with Grandparents Apart UK and that the organisation attended the Scottish Government’s stakeholder summit on the forthcoming family justice modernisation strategy in October 2016. Do you know whether your concerns about child welfare hearings were raised in that meeting?

Yes, they were. June Loudon can speak about that.

They were not raised specifically. The issue of the recording of hearings was brought up as potentially assisting with the issue of non-compliance with court orders, as it could create a picture for on-going court appearances and suchlike. That is just part of the bigger picture of the improvements that need to be made in order to speed up the process for the benefit of the courts and families.

June Loudon and other organisations were present at a meeting, which is available online, at which there was comment on child welfare issues. I am sorry, but I do not have information on that to hand at the moment.

We can have a look at that, as well.

As there are no further questions, I thank you very much for your evidence. I think that people would agree that there is an issue. It would be interesting to know why discussions are not recorded, whether that is unusual, and the views of the sheriffs and others who manage the process. I do not know, but there might be an issue about whether something that is recorded must be tested for proof. There is an argument that people are using the fact that the proceedings are not being recorded as a means of creating further delay. If an incentive has been created in the system for that, we should be anxious about that.

Do members have suggestions about what we might do?

Obviously, there is a certain logic to what has been said. I would be interested in the views of the Scottish Courts and Tribunals Service, the Scottish Children’s Reporter Administration and others on why the discussions are not recorded. That seems logical to me.

Yes. We should ask the Scottish Government whether the issue will be included in the family justice modernisation strategy. It is also important to write to the Scottish Courts and Tribunals Service, the Scottish Children’s Reporter Administration, the Scottish Child Law Centre and the Sheriffs Association—all the bodies that are connected to the issue—to find out their views on what has been said and to try to elicit some information.

It seems that a compelling case has been made but, equally, we might not have heard the other side of it. We could also contact the Children and Young People’s Commissioner Scotland. There is quite a bit of work that we could do. Obviously, children’s organisations and others might have an interest, too. What has been suggested will certainly give us information, and we can reflect further on the case that has been made.

I thank the witnesses very much for their attendance. We really appreciate your taking time to give us evidence on your petition.

I suspend the meeting briefly to allow the witnesses to leave the table before we consider the next petition.

10:27 Meeting suspended.  

10:28 On resuming—  

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Concessionary Transport (Carers) (PE1632)

The second new petition that we will consider is PE1632, by Amanda Macdonald, on concessionary transport for carers. Members have a note by the clerk and a Scottish Parliament information centre briefing.

The petition calls for free concessionary transport for carers, and the petitioner has highlighted the financial difficulties that many carers face, the limits that are placed on their social lives, and the impact that that has on mental health.

Members will see from the SPICe briefing that it is estimated that in Scotland there are 759,000 adult carers aged 16 and over and 29,000 carers under the age of 16. The SPICe briefing also explains that the existing concessionary travel scheme is available to people aged 60 and over, and to disabled people.

There is, of course, provision for so-called companion cards, which eligible companions can use when they assist a person who is eligible for concessionary travel. Those cards can be used for journeys that commence and terminate at the same locations that the eligible person who is being assisted will be at.

Do members have any comments or suggestions for action to take on the petition?

10:30  

Last year, I attended a young carers event that included a round-table discussion at which it was highlighted that young carers have to pay out of their own pocket while they are working for the person who is being cared for—for example, if they have to get on a bus to go and collect a prescription. It seems to me that it would be a logical, and not costly, step, in those circumstances, to allow them free transport. I understand that it would be really difficult to apply that across the whole of the care system.

We know that some carers have to give up work in order to look after the person whom they care for, so their financial and emotional wellbeing is affected by being a carer. We also know that some young people take on caring roles. Would there be an issue about identification of those carers?

I think that there would be, but that does not negate the real-life problems for people in that situation. Identification should not prevent our looking at the problem, especially in the case of young carers. If someone who is on welfare payments has to pay out a few pounds here and there every time they have to go out and pick up a prescription or accompany the person whom they care for, that will have an impact. That should not happen.

Okay. Are there any other views?

I note that, in 2015, the then Minister for Transport and Islands, Derek Mackay stated that

“over 153,000 cardholders aged 16-18 and young full time volunteers (up to age 25)”

were

“entitled to concessionary bus and rail travel throughout Scotland.”

That is important. I am not saying that it means that we should not inquire again and ask for an update on the situation for young carers or carers in general, but that was quite a robust response from the minister two years ago.

It is worth bearing in mind that the Scottish Government has made a commitment to increase the rate of carers allowance to the same rate as jobseekers allowance. That said, if that extra money was just to go on bus fares, it would not be long before it was used up. There is clearly a strong argument here that we should put to the Government and ask for its view.

I agree with Angus MacDonald, but we also need to consider the impact on local authorities, given that bus passes come out of local authority budgets, so we will have to include the Convention of Scottish Local Authorities in the discussion. That proposal is included in the recommendations, and I support it. We have talked about rurality and different places and distances, but this is a much more local issue.

I think that we want to contact the Scottish Government and COSLA. We also know from our papers that Enable Scotland has highlighted the issue of concessionary travel for people with learning disabilities. There are distinctions depending on the level of disability allowance that people are entitled to, so there are a lot of complexities. I suppose that, as an initial cut, we are interested in what those organisations think and whether the matter is a priority.

I think that it would be worth our while to meet the petitioner informally to discuss the motive behind the petition and to get a better understanding of the need, from their point of view, that they believe the suggestion would address. I think that Brian Whittle identified some of it. We should probably also write to carers organisations. That includes Carers UK, but there are also Scotland-based organisations that might have a view, including the Coalition of Carers in Scotland.

If we are writing to the Scottish Government, I wonder whether it would be presumptuous—I hope not—to ask it to provide a costing, given that it is estimated that there are 759,000 adult carers over 16 and 29,000 under 16. A rough costing would be helpful.

Okay. I think we are saying that this is an interesting petition. We want to explore further the motives for it, what it is intended to address and whether the issues have been addressed in other ways in other places.

One thing to add is that we are also getting down to the realms of integration joint boards, because there would be an impact on them. Even the NHS is involved, so there is a compendium of organisations to contact before we can come to a decision.

There is the issue of access to transport as well. The petition opens a number of issues that we have flagged up in other places. We will write to the Scottish Government, to COSLA and to the carers’ organisations, and we will meet the petitioner to give her an opportunity to give her perspective. Do members agree?

Members indicated agreement.