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Chamber and committees

Education, Children and Young People Committee

Meeting date: Wednesday, May 18, 2022


Subordinate Legislation

Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 [Draft]

The Convener

Welcome back. The next item on our agenda is an evidence session on the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022. This morning we will take evidence from officials from the Children and Young People’s Commissioner Scotland’s office. I welcome Nick Hobbs, who is the head of advice and investigations, and Maria Galli, who is the legal officer. Good morning.

The regulations that we are considering are described by the Scottish Government thus:

“The current process of placing authorities petitioning the Court of Session to recognise DOL orders cannot be sustained. It does not serve the interests of the child or young person at the heart of each application, and it places a burden on Local Authorities and on the court itself, when resources could be better directed elsewhere.”

You do not support the measure. Tell us why.

Nick Hobbs (Children and Young People’s Commissioner Scotland)

It is probably important to start by saying that the problem that the regulations are directed at solving is, we recognise, not of the Scottish Government’s creation. We are sympathetic about the complexity of the issue that it is trying to address; we have seen that complexity ourselves through interventions in a number of cases that have come before the Court of Session and the United Kingdom Supreme Court on cross-border placements and on use of inherent jurisdiction to deprive children of their liberty.

The complexity of the issue is why it is so important that we get the measure right—and that we get it right the first time. Our view is that we need a coherent package of regulations that could span a number of different areas of law including children’s hearings, mental health and education. That is to ensure that placements are made only in exceptional circumstances, that they are made where they are in the best interests of the child, that they are temporary and that they provide clear parity of legal protection around deprivation of liberty and around children’s rights to health and education in domestic law. Our concern is that the regulations as drafted provide insufficient certainty.

Are you looking for a more permanent solution?

Nick Hobbs

We are looking for the regulations to be significantly strengthened. You will see that in the appendix to the evidence that we have provided to the committee, where we set out a number of ways in which that could be achieved.

Yes—but the Government is saying that the measure is temporary to meet the objectives that I just read to you. Is that not reasonable?

Nick Hobbs

It is absolutely reasonable to try to put in place something temporary with a view to the proposed children’s care and justice bill addressing it on a permanent footing, but implementation of the proposed children’s care and justice bill is a couple of years away. Although the measure is a temporary fix, it is a fairly long-term temporary fix, so it needs to be robust, and it needs to be compliant with Scotland’s obligations under the European convention on human rights, the United Nations Convention on the Rights of the Child and other international law. The package of regulations needs to be significantly strengthened if it is to achieve that objective.

Ross Greer

If you do not mind, I will start with a daft question, because I am certainly not a lawyer. What do you recommend? Is it that the High Court should be able to make orders only for a maximum of 22 days and then a couple of subsequent—potentially, three months—extensions? That is not directly relevant to the regulations, though, is it? That is either for the proposed bill or more directly for the UK Government and UK-wide legislation.


Nick Hobbs

We think it can be ensured that the orders could be made for a shorter period through the regulations. You are right that a number of the issues are outwith the direct control of the Scottish Government. One thing that I think we need is assurance from UK Government ministers that they are doing something to resolve the root of the problem, which is the lack of secure and appropriate provision for children in England and Wales.

We can provide, through regulations in Scotland, significant additional protections for children’s rights in respect of the length of time for which an initial order can be made lawful in Scotland, the units that can accept a placement and the undertakings that can be provided by an English local authority. The Government has some levers that it can pull to significantly strengthen the protections in Scotland.

Ross Greer

I recognise that there are ways in which the regulations can be strengthened. However, particularly on restricting the High Court’s ability in terms of the length of orders, it seems to me to be questionable whether we would be able to do that through regulation in Scotland. I assume that any English authority that was seeking to challenge that would at least have a pretty strong case, given that the matter is not in primary legislation in Scotland and is not relevant to the UK-wide legislation—the English legislation, specifically—that applies.

You mentioned a couple of other concerns that I am interested in getting into in a little bit more detail. One of them—it seems to be very reasonable—is that under the regulations the Care Inspectorate will not be obliged to inspect facilities. There is an obligation to notify the inspectorate, but it is not obliged to take any particular action. Given that the regulations are a temporary solution, would you be satisfied if the Care Inspectorate simply made a commitment to inspect, although it would not be required to by regulations, given that what we are talking about will—we hope—be in place for two years? If the Care Inspectorate simply made a commitment to inspect facilities, would that address that specific concern?

Nick Hobbs

That is about two things. The first is the distinction between a policy commitment and holding units and public authorities—including Scottish public authorities—accountable against particular legal duties and obligations.

It is also about how effective the regulations will be in securing the rights and protections for children that we think are necessary. It is not just about inspection itself; it is about the standards against which units are inspected and providing parity of legal protection that a child would get if they were a Scottish child being placed in a secure unit. It is about trying to provide parity in respect of secure care standards and the additional requirements that are in place for Scottish units that are authorised to deprive children of their liberty.

Broadly, I think that the concern is that we should try to ensure that as much as possible is placed in statute. A Care Inspectorate report was published this morning at 10 am; I appreciate that committee members will not have seen it yet. It very helpfully lays out a number of concerns about the Care Inspectorate’s own powers: issues that it has found through consultation and a survey of its inspectors on what they have seen already, and about the ability of the inspectorate and other agencies to hold providers accountable. Our view is that wherever possible that needs to be a statutory duty—a requirement—because that is what gives children the best protection.

Ross Greer

The concerns in the Care Inspectorate report are widespread; I am certainly not disagreeing with you in principle. I am trying to figure out whether we are in danger of letting the perfect be the enemy of the good, especially given that the measure will be temporary. There are a couple more specific points that you raised that I am interested in getting clarity on. You mentioned that

“There is a real risk that without sufficient legal restrictions, Scotland is opening the door to significant numbers of cross-border placements, and to the possibility that this will be exploited by private, profit-making providers.”

My understanding is that that is exactly what is happening now, and that the regulations do not go far enough—which I think the Scottish Government itself would admit. That is why proposals on a children’s justice bill are out for consultation at the moment. Surely what is proposed in the regulations would not incentivise further use of cross-border placements. It might not reduce them by as much as we want, but it would reduce them.

For example—I recognise that you have specific concerns on this point—the regulations will give the Scottish Government the ability, through the sheriff court, to take action against a placing authority. To me, that is a disincentive. If I was an English local authority seeking to place a young person with a private provider that is based in Scotland, the potential for the Scottish Government to pursue me through the sheriff court would be a disincentive rather than an incentive.

Do you recognise that although perhaps the regulations do not go far enough, they do not incentivise further cross-border placements, but instead disincentivise them?

Nick Hobbs

On your first point about the perfect being the enemy of the good, we absolutely agree with that. The concern is that we cannot apply the appellation “good” to the regulations—they are not good enough at present. We are not looking to create some sort of utopian legal position; we are trying to make sure that the regulations do the minimum that is necessary in order that Scotland can discharge its obligations in international law.

On your second question, I will let Maria Galli answer on the legal element. I will say that there are questions about how that would work legally and how effective it would be.

Maria Galli (Children and Young People’s Commissioner Scotland)

One of the main issues that we have a concern about is children’s access to justice and the right of children to an effective remedy and to challenge such decisions—to challenge their being removed from their families and, as is often the case, placed many hundreds of miles away, in an entirely different system, and then being deprived of their liberty and having to face all the rights restrictions that happen there.

There is nothing in the regulations that we consider would be good enough to allow such children to challenge that, so it is immaterial whether the Scottish ministers would seek to uphold the commitment made by the placing authority from England. I think that there is a real difficulty as regards the rule of law with the Scottish ministers taking public authorities in England to court. We might enter into a bit of a debate about constitutional law on that particular remedy. It is the absolute absence of the child’s voice in any of this that is of most significant concern.

A lot more must be done. The regulations are not good enough, as Nick Hobbs said. It is absolutely the case that the minimum standards need to be achieved. Scotland has incorporated the UNCRC into its law, so we should at least be taking the maximalist approach that we can take on rights protections in the regulations. We should not be making new law that allows children’s rights to suffer in this way, and that is our principal argument against the regulations as they stand.

Many concerns have been expressed across the legal profession on remedies and so on, and the Supreme Court raised an interesting and important point. Such placements are inadequate, but they are happening and children are being exported out of England into Scotland. That is not being done through our system. There is a mechanism whereby it could be done through our system, but English authorities are choosing not to use that mechanism; they are choosing to do it through the inherent jurisdiction of the High Court. Such placements are happening because of the lack of suitable placements in England. Scotland will be able to provide a better care service for English children, but it must be the same better care service that our Scottish children are entitled to.

There must be parity, and the regulations and the process and procedure of what has been happening for two and a half years give no parity or consistency for such children from England, who are being discriminated against. There needs to be a much more robust understanding of the fact that the child must be involved in the decision-making processes. Although we are aware that cases have gone to the Court of Session to have the authorisation from the English High Court, many cases have not been taken to the Court of Session. In that sense, the regulations would prevent an incentive if you want such placements to continue.

We must remember that many of the children are placed before any legal action is taken, without any planning. Many of them are placed on an emergency basis. The difficulty that we have seen with the Court of Session cases is that no children have been represented since the initial case. No child is represented in the court, so the court does not hear the voice of the child. That cannot be right when we are incorporating the UNCRC into Scots law. The rights to an effective remedy and to participation are probably fundamental here.

Ross Greer

I am sorry to interrupt. I have huge sympathy with so much of what you have said, but I am trying to drill down and identify each point of concern. Am I right in understanding from what you have just said that you do not believe that the regulations would provide a further incentive?

Part of the question here—not all of it—is whether we will end up in a position in which, for the next two and a half years, we will continue to see a significant increase in the number of placements. Do you believe that the regulations make it more likely that we will continue to see such an increase? That is the bit that I am struggling with here. I accept that it is questionable and that we will end up facing a question of constitutional law, but given the provision that allows the Scottish Government to pursue the placing authority, in my view that is a pretty clear disincentive to an English local authority to try for a placement in Scotland. I am still trying to understand why you think that the process incentivises placement in Scotland.

Nick Hobbs

There are two elements to that. The first one is—if we think about what the current process is—that it is necessary to make an application to the Court of Session. It is necessary to instruct counsel and to find Scottish solicitors, and there is significant expense and legal complexity involved in that process. If we create a route whereby such orders would, in effect, be automatically recognised and transferred into a Scottish order, that would be much simpler and more straightforward.

The question about whether the role of Scottish ministers provides a disincentive relates to the question of how effective the regulations are in providing a route through which English local authorities could be held to account against their legal duties. We have the undertaking in there, but it is drafted pretty vaguely. As you will have seen, we have made a number of suggestions as to how that might be strengthened.

As Maria Galli pointed out, the right of access to remedy and redress is removed from the child, which is where it should be, because the child is the one who knows best whether their rights are being respected and whether their needs are being met, and vested with the Scottish ministers. There are real questions of practicality about how the Scottish ministers will become aware of a child whose rights are not being respected in this place. Despite the best of intentions, how is a child expected to communicate that to a faceless group of individuals in Victoria Quay? How will the Government assess whether those needs have been met? That is before we even get into the practical question of what order a sheriff court could make against an English local authority, which is where we come to the constitutional issue that Maria Galli talked about.

That probably goes to the nub of one of the major concerns that we have about the regulations, which we talk about in our submission. They provide what appear to be significant rights protections but, once we drill down and start to ask questions about how the process will work in practical terms, we are left with a lot more questions than answers. Such protection can appear quite illusory, and that is the case in this instance.

Graeme Dey

My question is about the interaction and relationship between the office of the commissioner and the Scottish Government. From what you have said, there seems to be quite a lot of blue water between your position and that of the Government. Was there any discussion between the office of the commissioner and the Scottish Government while the regulations were being put together?

Nick Hobbs

We have engaged extensively with the Scottish Government right the way through the process, going back to the very first case that we became aware of some three and a bit years ago. We have been talking to policy and legal officials as part of their consultation process. Most recently—last week—we talked to them about the regulations themselves. We have had a detailed conversation with officials about the amendments that we have proposed and our request that the minister withdraw the regulations, reconsider them, strengthen them and then bring them back to the Parliament, so that they provide the robust and effective children’s rights-respecting solution that we all agree is necessary.

You said that there seemed to be clear blue water between us and the Government. On policy intent and the principles that we want to see applied here, we are absolutely in alignment with the Government. The difference between us at the moment is about what is necessary to achieve that policy intent.

I want to be clear. Are you saying that the conversation about the proposals took place only last week, after they had become public?

Nick Hobbs

We could have a conversation about the regulations only once they were public because, until then, we did not know what they looked like.

That is my point. Were you not having a dialogue before then about what progress in this area would look like?

Nick Hobbs

Only as part of the consultation, which sat at a level above the detailed regulations.

Graeme Dey

You mentioned the opportunity for the child to challenge, but surely that challenge would lie with the placing authority. The challenge ought to be between the child and their representatives and the placing authority, so it would not lie in Scotland, would it?


Nick Hobbs

One of the questions that is raised by the regulations and the issue to which they relate concerns the complex interaction between two legal jurisdictions. The child is placed by the English local authority, which retains all its responsibilities and duties to meet that child’s needs and, under the regulations, it would have to pay for the services that the child required.

However, that is without prejudice to the existing Scots law duties that public authorities such as local authorities and health boards have to a child in their area. The requirement to conduct a child in need assessment under the Children (Scotland) Act 1995 would still apply to the Scottish local authority. We get into issues to do with additional support needs and mental health. It is a challenging and complex area. There might well be a situation in which what the child wants to challenge is the failure of a Scottish public body to respect their rights in Scots law, or they might need advice on their rights in Scots law, because those have not been respected by the English local authority.

Maybe we can talk a little about additional support needs, because that might be the area within education that is thrown into sharpest relief. I will ask Maria Galli to touch on that.

Maria Galli

Absolutely. All the children whom we are aware of are autistic; they are all teenagers who have complex experiences of trauma and adversity in their childhood. We are very well aware of the peers and counterparts of these children in Scotland. All of them, as far as we have seen, are not having their education needs met, nor are they having their additional support for learning needs met, which it is an obligation of the state in Scotland to ensure happens.

That is hugely concerning, because without having a co-ordinated support plan, a needs assessment to identify exactly who they are and where they are from, or a mental health assessment, they will not have access to mental health services here. In Scotland, the services all align in the framework for decision making and assessment—the getting it right for every child framework—which is laudable. The national practice model allows that to happen in Scotland for every Scottish child. That is not happening for the children we are talking about. They are falling between the cracks when it comes to access to services and having their needs met.

Would the element of access to advocacy services not be a step forward?

Nick Hobbs

Advocacy is certainly welcome. There is no dispute or disagreement about the value that a good advocate can bring for a child. Their having a Scottish advocate, in addition to their legal right to an English advocate, is not a concern for us. The issue is that advocates are not legal representatives. An advocate’s role is to help the child to speak, but the advocate may not have the detailed legal knowledge to let the child know what their rights are and how to secure remedy or redress when those rights are violated.

Willie Rennie

It has been an extremely helpful session. I understand the issue of equality between English children here and Scottish children here—I get that—but is there a particular issue as regards equality between English children here and English children in England? You say that the proposals are not compatible with the UNCRC or ECHR. Is that the case in England as well?

Maria Galli

It is not our place to comment on English law or its compatibility with such rights, but we can stress the significant absence of availability of suitable rights-respecting accommodation in England for such children with the highest and most complex needs. That gap or missing link in the chain of rights protections for children in England is what is causing the situation in Scotland that we are discussing. That is as far as we can comment on the English provisions and their compatibility.

The provisions that we are discussing are not compatible with those rights, nor, in many cases, is our existing system. The children in secure accommodation could argue that some of their rights are not being met, but, if we were to do a comparison between a child who is in secure accommodation in Scotland and one who is in one of the privately run children’s houses in Scotland and being deprived of their liberty, we would find that there is blue water between them. That is absolutely significant, and we want any regulations that are intended to fix the gap that exists to provide the necessary safeguards for the English children on the same level as they are provided for Scottish children.

All the work has been done in Scotland. Our rights-respecting approach has been fostered and promoted by children and young people themselves, and the independent care review and the Promise are being implemented in Scotland. We want to see the same thing happening for English children if they come here.

Are English children who are here worse off than English children in English facilities?

Maria Galli

You would probably have to draw such comparisons on a case-by-case basis. For example, it might be in a child’s best interests to come to Scotland and to be deprived of their liberty to receive intensive supports, but we cannot take a blanket approach. We must proceed on the basis of meeting the individual needs of the individual child.

Finally, are you optimistic that the Government will come to an agreement with you on the best way forward?

Maria Galli

We are certainly hopeful.

Nick Hobbs

It very much depends on the view that the committee takes today. We look forward to hearing the minister’s evidence next week, and I am sure that we will have further conversations with officials on the issue after our evidence session.

The Supreme Court ruled that the deprivation of liberty was in line with human rights, did it not?

Maria Galli

That was in the T case, which was the seminal case from last year. The Supreme Court criticised the fact that there was an absence of suitable provision. Essentially, it reluctantly agreed that, in England, children could be placed in alternative provision that was unregistered and that was not secure accommodation. We should bear in mind the fact that secure accommodation in England—both the enterprise and the facilities—is an entirely different thing from secure accommodation in Scotland; people sometimes think that they are the same thing.

The Supreme Court came to its decision because of the significant and horrendous absence of suitable placements. It said that the issue had to be fixed politically, that resources had to be increased and that greater protections had to be provided for children’s rights in England, but that, in the meantime, in emergency situations in which children had reached a life-threatening crisis point, placements to keep them safe could be authorised. It did that very reluctantly. It did not address the question of cross-border placements.

Ruth Maguire

Colleagues have probably covered the areas that I was thinking about. I wanted to ask about the policy intention and advocacy. I am feeling a bit confused. I care about all children in all countries, but there is an issue about how we influence what is happening in England if the standards are not being met there. With the best will in the world, if we do not make the changes that are in the regulations, children will still be placed here. The proposed changes include the addition of the advocate so that the child’s rights are better supported and their voice can be heard.

This might be a silly question, but I am going to ask it, because it feels like an important topic. How will amending the regulations help the practice in England, which you are saying does not seem to be rights based? Can you lay that out for me so that I can understand it?

Nick Hobbs

You are absolutely right that there is limited ability for the Scottish Government or the Scottish Parliament to impact on practice or law in England through regulations made and laid before this Parliament. These regulations provide for a mechanism through which an English order can lawfully be transferred into a Scottish order. You can place restrictions around the circumstances in which that can happen. For example, there could be a restriction on a Scottish residential unit that prevents it from accepting a placement except where certain criteria are met. That is what we have tried to do with the amendments that we are suggesting. We absolutely recognise that tension and that challenge, but we are trying find ways that are within the competence of the Government and the Scottish Parliament to provide some safeguards.

The restriction on which unit can accept a placement; strengthening the undertaking that the English local authority provides; providing access to legal representation in Scotland—all those things can be done with the powers that the Scottish Parliament has and will provide additional human rights protections. The Scottish Parliament cannot require the UK Government to produce more secure units or place direct obligations on the High Court to behave in particular ways, but we can restrict the route through which those orders are translated into Scotland in a way that provides additional rights protections for the children who are coming here.

What would that mean for a child in England?

Nick Hobbs

It would mean, for instance, that we, in Scotland, would have more confidence that there had been proper planning and consultation between the placing authority and the Scottish local authority. Our amendments would mean that there was a jointly agreed care planning meeting between the two local authorities, in which it was agreed what the child’s needs and rights are and who will meet them. It would mean that the child would be much clearer about what their rights are in Scotland and they would be able to contribute to the conversations and processes.

There is a really interesting point of comparison, which is that, if an English local authority is placing a child into another English local authority, there is a legal obligation on it to conduct a consultation and a meeting within five days of doing that, so that they can agree exactly those issues. There is no legal obligation on it to do that when it is placing into Scotland, but the regulations could be drafted in a way that makes sure that that meeting happens, and that is the kind of amendment that we are suggesting.

Ruth Maguire

I appreciate that you have already said that the proposed children’s care and justice bill is the place to properly sort this out, and I think that we all agree that the use of deprivation of liberty orders should be reduced to a bare minimum and that they should be used only in cases where they are absolutely essential.

This question follows on from what Ross Greer asked, and I ask it to have the issue clear in my mind. The status quo will not to stop cross-border placements from happening. Do you agree that it will not decelerate their use either?

Maria Galli

An important thing to remember is that this has happened before, with secure accommodation cross-border placements. In 2017, there had to be an agreement between the UK Government and the Scottish Government that English children could be placed within secure accommodation in accordance with our statutory framework. That was a temporary fix to resolve the situation that was happening down south, with an increasing lack of placements and resources. It was exactly the same as what has happened now, but we are now in a much worse position.

When that happened, there was an agreement that the orders from England would convert into compulsory supervision orders in Scotland with authorisation for secure accommodation. That meant that, in Scots law, children who were deprived of their liberty could be placed only in secure accommodation. That is the existing situation.

What has happened since then and what we are hugely concerned about is the sunset clause. There was supposed to be a review of those placements from 2017, but, as far as we know, that has not happened. We have seen an exponential rise in the number of English children being placed in our secure accommodation, and that has had devastating consequences for Scottish children in Scotland, who have not been able to access secure beds. That is an entirely separate issue, but we must learn from the difficulties that happen, because as soon as we authorise and condone the practice of moving children far from their families and communities, we could absolutely see more of it.

The disincentive that is required is to say that Scots law does not allow those types of placements to operate at all, and, if you want to comply with Scots law, you must raise the standards up to what we expect for Scottish children.


Graeme Dey has a question.

Graeme Dey

Thank you for indulging me, convener.

I am looking at the proposed amendments from the commissioner’s office, many of which make perfect sense in the context of the legislation that is coming down the track. However, I want to pick up on one practical point—this is not a hostile question. You say that any care home that accepts young people must be

“registered, regulated and inspected by the Care Inspectorate as a care home for children and young people”,

and must have

“a recent ‘adequate’ inspection report.”

We would all agree that that is fundamental, but it is not practical at the moment, because we are still in the pandemic and there will probably be a backlog of inspections. In fact, what you propose, with the best of intentions, could make the situation worse because, if insufficient numbers of homes met that particular criterion, there would be an issue about where to place the children, full stop, would there not?

Nick Hobbs

With that suggested provision, we are trying to avoid the situation that we have seen in England and Wales. In the care system there, many local authorities have divested themselves of their care homes, a lot of private providers have moved into that space, and children in care are very much seen as a commodified resource. Because the area is seen as one for people to secure profit, over the past few years in England and Wales, care homes have been popping up like mushrooms, being inspected six to nine months later and then being immediately closed down—frankly, the inspection reports would give you nightmares. At that point, a child might have been there for a significant period and might have had a quite horrendous experience.

Our suggestion aims to mitigate the risk of that and ensure that we can be confident that we are placing children only into provision that can meet their needs. We would welcome a further conversation with the Scottish Government about that. We can talk about what “recent” means and what time period we are talking about but, when we are authorising and allowing children to be placed in residential units in Scotland and being deprived of their liberty—it is the most significant human rights interference that the state can make in the life of a child—we need to have a level of confidence that those units are of a minimum standard.

You are absolutely right about that, but do you recognise the risk that, if the proposal was accepted, we could have fewer opportunities than are required to place the children now?

Nick Hobbs

It certainly might restrict the supply, but we would argue that the balance of risk is a necessary consideration in taking a rights-respecting approach.

Maria Galli

Nick Hobbs mentioned the report that the Care Inspectorate has published, which is hugely welcome and answers that question. The inspectorate has undertaken an inspection and review of the placements over the past two and a half years, and it has made a number of recommendations and proposals to the Government, and to itself, as to how to improve the inspection processes.

What would you consider to be “recent”?

Maria Galli

From my point of view, and looking at what the Care Inspectorate has been doing, it would have to be within the past six months. The difficulty is that places are popping up, being registered as care homes and perhaps being regulated and authorised as care homes, which is absolutely fine, but they are not meeting the standards that are required for secure accommodation.

Ross Greer

I want to bring together two points that Nick Hobbs made that are perhaps related. A couple of moments ago, you said that there is a question about the connection between the young person and Scottish ministers, if it comes to the issue of whether ministers should pursue the placing authority. The issue is about how ministers would know to do that, if the young person does not have any connection with them.

I think that that is related to the question of the role of the advocate. I completely accept your point that an advocate is not a substitute for legal representation. There are complications because, with the young people who we are talking about, if they have a lawyer in the first instance, in almost all cases, it will not be a lawyer who practises Scots law. Is there not a potential role for the advocate there?

There is a question about how to create a connection between the young person and the Scottish ministers for the use of the potential power to pursue through the sheriff court. Could that not be addressed through guidance for the independent advocates that that is part of their role in advocating for the young person? If, after discussion, the advocate and young person believe that it is necessary, part of the advocate’s role could be to create a connection with ministers and the Scottish Government to see whether the option of pursuit through the courts is viable.

Nick Hobbs

The advocate can certainly play a role in that. The advocate’s role is to elevate the child’s voice in proceedings, meetings and discussions that the child is involved in. Advocates play a hugely valuable role, but they will not necessarily know what the child’s rights are in Scots law. We keep referring to this report that I know members have not seen, which is a little unfair, but one thing that the Care Inspectorate report flags up is that children often arrive in Scotland with very little awareness of their rights in English law, let alone in Scots law. They are the most acutely vulnerable children. Therefore, although advocates can play a role, in our view it is not sufficient to rely on them to provide the appropriate level of safeguard and the link to ministers.

Kaukab Stewart

What you have said so far has been interesting. I think that we have all more or less accepted that the Scottish Government is in a difficult position. You want to keep the use of the orders to an absolute minimum and keep people as close to home as possible. Therefore, what work have you done with the UK Government? The situation is driven by underprovision in England, so have you lobbied the UK Government and, if so, how did you get on with that?

Nick Hobbs

We have been in close contact with our sister offices in England and Wales and with legal and human rights organisations in both jurisdictions. In fact, as I should have said at the start, our position on the regulations was informed strongly by a round-table discussion that we conducted shortly after the regulations were published. That involved children’s commissioner officers, advocates, solicitors from both jurisdictions and human rights organisations. The view in the round-table discussion was absolutely unanimous about what needs to change in the regulations and how strong they are.

The Scottish Government has contact with UK Government ministers and needs to make that argument for additional provision. It is outwith the mandate of the children’s commissioner in Scotland to tell the UK Government how to set up its care system. Our sister office in England has been strong on the issue in the past few years and has conducted a lot of research. The previous Children’s Commissioner for England was very vocal about the matter, and courts in England—both the High Court and the Supreme Court—have been vocal about it. In the T case, Lady Black referred to matters having been brought “repeatedly” to the attention of those whose job it is to do something about them, so the UK Government is not unaware of the issue.

We now have before us Scottish regulations that are very much within the mandate of the Scottish children’s commissioner to comment on and to affect.

You are here in front of this committee. Would the Education Committee at Westminster be a route to get to ministers, who obviously are the ones who will make the decision?

Nick Hobbs

We would be happy to provide evidence to the Education Committee at Westminster. The issue has come before the Parliament down there—as I said, it is not new. The courts and the Children’s Commissioner for England have been lobbying on the issue and advocating for change for some years.

The Convener

I am sure that my good friend Robert Halfon would be pleased to hear from you and others.

As no one wants to say anything else, I thank Nick Hobbs and Maria Galli for being with us in person to give that important evidence to the committee. We wish you a very pleasant rest of the day.

11:54 Meeting continued in private until 12:25.