Scotland’s Adoption Register Regulations 2016 [Draft]
Kinship Care Assistance (Scotland) Order 2016 [Draft]
Under item 2, we will take evidence on two pieces of subordinate legislation. I welcome Aileen Campbell, the Minister for Children and Young People, and her accompanying officials. After we have taken evidence on the instruments we will debate the motions in the name of the minister at item 3. Officials are not permitted to contribute to the formal debate.
Before I invite the minister to make some opening remarks, I must inform the committee that we will consider a petition next week that calls for kinship carers to receive the same allowances as foster carers. The draft Kinship Care Assistance (Scotland) Order 2016 should meet the petitioner’s concerns—I certainly hope that it does.
I invite the minister to make some opening remarks on both instruments.
Thank you convener. You sound as well as I do.
I think that it is going around.
Thank you for the opportunity to introduce a variety of instruments arising from the Children and Young People (Scotland) Act 2014. I will speak to all the instruments now, including those that we will come to under item 4 on the agenda, but I am happy to take questions on each of them in turn.
First, I am introducing the draft Scotland’s Adoption Register Regulations 2016, under part 14, on the adoption register, of the 2014 act. Through the 2014 act, Scotland’s adoption register has been placed on a statutory footing, and the regulations make detailed provision in connection with the operation of the register. The register provides opportunities for children to be matched with families across Scotland, if they cannot be matched locally. Scotland’s adoption register has been operating on a non-statutory basis since 2011, and in that time the register has facilitated 255 matches with adoptive families. In moving the register on to a statutory footing, adoption agencies will be required to refer children and adopters. We believe that that will increase the effectiveness of the register in assisting with the adoption process.
The regulations make provision in four main areas: the point at which children who ought to be placed for adoption are added to the register; the point at which approved prospective adopters are added to the register; the timeframe within which adoption agencies submit that information; and the circumstances in which disclosing information from the register can be authorised. They also specify what information the register is to contain and how the register will be kept up to date. We believe that by requiring all adoption agencies to use the register within defined timescales, as set out in the regulations, the delays that some children face in being matched with adoptive families will be reduced.
I move on to the draft Kinship Care Assistance (Scotland) Order 2016, which arises from part 13, on support for kinship care, of the 2014 act. Under part 13, the Scottish Government has placed a duty on local authorities to make arrangements to secure the availability of kinship care assistance for specific categories of eligible people. Those categories are: an adult who is applying for a kinship care order; an adult who is considering applying for a kinship care order; an adult with a kinship care order; a child subject to a kinship care order if the relevant eligibility test is met; and an eligible child who has reached the age of 16, but who was subject to a kinship care order immediately prior to turning 16 years old.
The order makes provision in seven main areas: the manner in which a local authority shall provide kinship care assistance; the types of kinship care assistance that local authorities must or may provide to each category of eligible person; an extension of the definition of eligible child; factors that must be considered in assessing whether a child is at risk of being looked after for the purposes of being an eligible child; the procedure that local authorities must follow when notifying a person who has applied for kinship care assistance; and the information that local authorities must publish. We believe that the order will ensure that additional support is provided that will assist kinship carers to provide safe and stable long-term care for children who might otherwise require or continue to require formal care, as well as assisting children and young people who are in kinship care.
Under agenda item 4, the committee is asked to consider two further draft orders, which are to be introduced under part 4 of the 2014 act, on the named person, and part 5 of the 2014 act, on the child’s plan.
The draft Children and Young People (Scotland) Act 2014 (Modification of Schedules 2 and 3) Order 2016 relates to the provision of information and assistance to named person service providers and to organisations exercising functions in relation to the child’s plan. The order will add the principal reporter to schedules 2 and 3 to the 2014 act, ensuring that they are subject to the duties of a relevant authority that are specified in part 4 of the act, and the duties of a listed authority as specified in part 5 of the act. The effect of those additions is that the principal reporter will be required, in appropriate circumstances, to provide information and assistance to named person service providers under part 4, and to organisations exercising child’s plan functions under part 5.
The principal reporter will also receive information from a named person service provider in respect of a child or young person, where that is likely to be relevant to the principal reporter’s function as regards that child or young person’s wellbeing. Further discussion with the relevant bodies has made it clear that the existing wording in schedules 2 and 3 to the 2014 act needs to be revised, as the principal reporter is not included in the list of persons specified as relevant and listed authorities. We have had discussions with the principal reporter, who is content to be added.
The draft Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016 covers complaints about the exercise of functions set out in parts 4 and 5 of the 2014 act, which relate to the named person and the child’s plan. The order sets out procedures for the resolution of such complaints at a local level and, complementing existing complaints procedures, allows for escalation to the Scottish Public Services Ombudsman in a consistent manner across Scotland.
Specifically, the order will cover the following matters: clarification around what may be the subject of a complaint; who can make a complaint; how the complaint should be made; timescales for the different stages of the complaints procedure; who should consider the complaint and how it should be considered and investigated; how information can be obtained to support any investigation; and what should be included in the determination of a complaint.
12:30Details of an improved complaints system in relation to the ombudsman’s remit are also specified. Under article 9 of the order, matters that can be the subject of complaints under the order can be investigated by the ombudsman, who will now have the power to investigate the merits of a decision taken in exercise of a function conferred under parts 4 and 5 of the 2014 act.
As part of the development of the complaints procedure, we will be developing and consulting on guidance in the coming months, with publication set for early June. We have worked closely with stakeholders—not least the ombudsman—on the development of the order.
I know that the ombudsman has written to the convener about the order. It is gratifying that Jim Martin acknowledges the level of co-operation with his office and his support for an approach to complaints that is based on the SPSO’s existing model.
Mr Martin has some reservations about the level of detail on the complaints process in the order. However, as he acknowledges and as the committee knows, the relevant sections of the 2014 act already set out what is required of the complaints process in some detail. It is for ministers to specify the process in the order, which is subject to parliamentary scrutiny.
If we had not provided such explicit detail in the order but had sought to leave that detail to guidance or to a procedure set out by someone else, we would not have been meeting the intentions of Parliament when it agreed unanimously to those sections or, indeed, the wider public’s expectations that a robust but flexible complaints process would be put in place for such an important policy area.
I thank the convener for allowing me to make some opening remarks on all the instruments that we are laying and I look forward to taking the committee’s questions on the first of those.
Thank you very much, minister. I intend to allow members to ask questions on the kinship care order first before we move to the vote. Then we will ask questions about the named person complaints procedure order and move to a vote on that.
Do members have any questions on the kinship care assistance order?
Sorry, convener, are we talking about the adoption register now as well?
Yes, sorry. We are talking about adoption and kinship first and then we will deal with named persons. Do you have a question about the register?
It is not so much a question as an acknowledgement that there appears to be a recognition of the need to work very collaboratively north and south of the border to maximise the opportunities for making matches between prospective adopters and children. I just wanted to acknowledge and welcome that recognition.
Good afternoon, minister. I will ask about the revolving door, just for clarification. If one agency says that a person can be a prospective adopter and then subsequently finds that they are not acceptable, that person could then move on to another agency, which could then presumably re-register them. What built-in checks are there to make sure that the register reflects bona fide information regarding prospective adopters?
My second question is on the security of data generally—whether it is about a child or a prospective adopter—if there is a possibility of people moving on and off the register. How is that information secured, and what penalties are proposed if somebody does not abide by the regulations?
You asked what checks are in place. This has to be a dynamic piece of kit that allows us to refresh and make amendments to who should be on or off the register. There is no evidence that the issue that you describe is a factor. We will make sure that, as always, there are strict parameters in place to protect children—these things are always robust. The register has been in place informally since 2011 and the issue that you describe has not been raised.
As regards the security and robustness of the system, the software has been in place since 2011. It is also used by the registers in England and Wales, and it has been subject to penetration testing. The security of any future amendment of the system will be subject to the same rigorous tests. Access to the data is confined to two members of staff and to agency staff who are directly involved in linking a specific child and family for adoption. Therefore, the systems that we have in place are fairly robust and fairly well tested. We have confidence that that will continue to be the case in the future. The systems are already in use across other parts of the UK.
This is not an area of policy that I am very familiar with. I seek some clarity. Like Liam McArthur, I was delighted to note that information that is contained in the register in Scotland will also appear in the adoption registers for England, Wales and Northern Ireland. Is the reverse also true? Will adoption information that appears in England, Wales and Northern Ireland also appear in Scotland?
The situation sounds highly positive, but you mentioned a figure of 255 matches, which did not seem to be very high. Is it your expectation that that figure will increase as a result of the implementation of the regulations?
In response to your first question, the information can go both ways.
Does that happen at the moment?
Yes, it does.
The figure of 255 should be seen in the context of the fact that the children on the register are harder-to-place children. It is a case of ensuring that we give those children the best possible chance of finding a match and a nurturing and loving home. Although the figure might seem low, it is not if we take account of the fact that the kids in question are a bit harder to place. We want to increase that opportunity for young people.
So you expect the regulations to result in an increase in the figure.
I hope that they will enable more children to find places and that they will give harder-to-place children the home that they deserve.
As members have no further questions on the adoption register regulations, I will ask a couple of questions about the draft Kinship Care Assistance (Scotland) Order 2016. Can you confirm the figures on who will be eligible to receive support? Are we talking about formal kinship carers?
What are you asking for? Do you want to know the number of people whom we anticipate—
During the passage of the Children and Young People (Scotland) Bill, the Government said that there were 3,917 children who were living in formal kinship care. However, the Scottish kinship care alliance says that informal kinship care relationships are in place for many thousands more children. I am just trying to establish whether what the order seeks to do relates to children who are in formal kinship care. Is that correct?
The order will allow those who are in informal kinship care settings—
Did you say “in formal” rather than “in informal”?
The order will allow children who are outwith formal kinship care arrangements to access the support that they require, because that is where the difficulty has been. Some children who have been placed informally have not always had access to the support that they need, even though their needs are the same as those of children who have been formally placed in kinship care.
The order is also about avoiding the situation in which those children end up in the looked-after system, where outcomes are poorer. We want to act in a preventative way, which is the hallmark of the Children and Young People (Scotland) Act 2014.
So the order is aimed at those children who are in informal kinship care.
Yes. The eligibility is broad. If there is a risk of a child becoming looked after, the family could access the provisions of the order. Our approach is based on the needs of the child—it is about trying to be as enabling as possible to allow local authorities to determine whether a family needs support in meeting the child’s needs. That is why the eligibility is broad.
That was very helpful.
I would also like to know how the order interacts with the benefits system. Will the allowances in question be disregarded as income by the benefits system?
We are in discussions with the Department for Work and Pensions. The difference with informal kinship carers is that they can be eligible and they can access benefits in a far easier way. We want that to be as clear as possible for families who are on the margins and who require a seamless way to access the support that they need. We are in discussions with the DWP to ensure that that is the case.
Are you hopeful that there will be a successful conclusion to those discussions?
Yes.
As there are no other questions, we move to the formal debate on the motions under item 3. I invite the minister to move motions S4M-15462 and S4M-15454.
Motions moved,
That the Education and Culture Committee recommends that the Scotland’s Adoption Register Regulations 2016 [draft] be approved.
That the Education and Culture Committee recommends that the Kinship Care Assistance (Scotland) Order 2016 [draft] be approved.—[Aileen Campbell.]
Motions agreed to.
12:41 Meeting suspended.Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016 [Draft]
Children and Young People (Scotland) Act 2014 (Modification of Schedules 2 and 3) Order 2016 [Draft]
Agenda item 4 is an evidence-taking session on two further pieces of subordinate legislation. I welcome back Aileen Campbell, the Minister for Children and Young People, and her accompanying officials. After taking evidence on the orders, we will move to agenda item 5 and debate the motions, which are in the minister’s name. I should also note officials are not permitted to contribute to the formal debate.
The orders under discussion were covered in the minister’s remarks on the previous subordinate legislation. Do members have any questions?
I was not on the committee during the passage of the Children and Young People (Scotland) Bill. However, my colleague Liz Smith was, and at the time, she raised some concerns about the implementation of the part of the bill under discussion.
We cannot ignore the SPSO’s concerns. The previous pieces of subordinate legislation will be implemented in 30 days; however, as the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016 will be implemented in August, we seem to have a six-month window of opportunity that I hope can be used to make changes that deal with the ombudsman’s concerns.
I am sure that the minister is familiar with the ombudsman’s concerns. He asks for a “simpler approach”—the approach that is currently being used to modernise social work complaints—to be adopted, and he says that if the order were to go through, it could take up to eight years for it to be changed by Parliament, which is something that he probably knows from previous experience. It is therefore obviously better to try to change it within the next six months.
I note, too, that the ombudsman says:
“it would be remiss of me not to note that this particular legislative approach of creating the detail of complaints processes through regulations is now out of line with other areas”.
He also emphasises his
“support for the Government’s aim of aligning the complaints procedure in this order with the model CHP in operation across the public sector.”
I am simply asking the minister to take into account the concerns that the ombudsman has raised in his letter of 23 February to the convener. Given that we have six months until the order will be implemented, such a request does not seem unreasonable. The ombudsman also suggests bringing the procedures in line with other procedures that are already out there, which seems a very sensible approach. Can the order be delayed so that we can look at it again and use the time prior to implementation to take on board what appears to be a very reasonable request by the ombudsman, who has more experience of complaints procedures than anyone around this table?
12:45
We have been working closely with the SPSO since the passage of the 2014 act. At the time, all parties agreed to amendments that I moved that left it to ministers to set out these measures in secondary legislation, and we have been working hard to ensure alignment with current complaints policies.
However, given the amendments that were agreed to by everyone in 2014, this particular complaints procedure starts from a different place. It is important to note that the 2014 act places responsibilities on Scottish ministers to develop and implement a complaints procedure for parts 4 and 5 of the act and sets out the issues that we might want to take forward in secondary legislation. That is what I said that we would do, and that is what I have done and what I am bringing to the committee today.
As I have said, we have worked hard with the SPSO. We have taken on board the concerns and issues that have been raised and have tried to ensure that the order that we have set before the committee aligns with other complaints procedures and puts in place something that is clear and transparent and which allows families to access redress if they need to.
I urge the committee not to delay in taking forward the order and to be cognisant of the fact that, even though there is a six-month period before implementation, such a delay would, given the parliamentary timetable, put some pressure on our meeting the August deadline.
My question is pretty much on the same point. The minister fairly reminds us of the collective will of Parliament in passing the 2014 act; in fact, it might have been remiss of the ombudsman not to highlight at that stage concerns about the process that was being adopted. Nevertheless, we have been presented with a suggestion that the complaints process that is being put through in the order is, as Mary Scanlon says, out of line with procedures in other areas of the public sector. Although six months is not an enormous amount of time, it might be prudent for the committee to at least allow some of that time to be used to establish whether there is a way of bringing the complaints process in the 2014 act into line with other practice. It might be that adhering to the views expressed in the 2014 act remains the desired outcome, but it seems to me that the ombudsman has made a fair and reasonable point and that, with the time available, we might as well explore it in a little more detail.
Do you have anything to add, minister?
Bearing in mind that what we have put before the committee today is as reflective as possible of existing complaints processes, procedures and routes, I am concerned that if we change that as per the ombudsman’s suggestion, we might have to change the act that we passed, which would put the onus on Scottish ministers to come forward with measures on the parameters within which people could make complaints. I hesitate to call that desirable. In fact, in direct contrast, I urge the committee to consider agreeing to the motion on the order, as not doing so would put in jeopardy the existing August starting date.
The SPSO has said in a recent media statement that this is a “technical” and “minor” concern. We therefore have something that aligns with existing complaints procedures, and we think that we have mitigated the ombudsman’s concerns.
The minister is being perfectly reasonable, and the ombudsman is being perfectly reasonable. Obviously, there are concerns about the volume of legislation that is introduced through secondary legislation. We have an opportunity to come back to the issue, given that there is a six-month period before implementation and that we have more committee meetings before we rise for purdah. Would it be reasonable for the committee to request further discussion between the ombudsman and the Scottish Government and for us to reconsider the matter at one of our meetings later this month?
Convener—
Hold on a second—Mr McArthur is speaking.
I am simply asking whether we have an opportunity to come back to the matter before the end of this session and agree to the order then. I do not think that the minister is being unreasonable in what she is suggesting. If it transpires that the ombudsman is correct in what he is saying but that the issue should have been raised in evidence to us during the passage of the Children and Young People (Scotland) Bill, we will just proceed as proposed by the Scottish Government. However, if we have an opportunity to align this better with the complaints processes in other areas of the public sector, it seems remiss of us not to explore that at least.
The point is that it is aligned. It has been designed and developed to be aligned with existing complaints procedures, and is—
But that is where you part company—
I am sorry, Liam, but please let the minister finish her answer.
We have endeavoured to make sure that the procedure is aligned with existing complaints procedures; it has been developed in collaboration, conversation and dialogue with the SPSO. If your substantive point is that it is not aligned, I hope that I am giving you some reassurance that what we have in place is transparent and flexible with the potential to be scrutinised by the Parliament, while fulfilling what I set out in my amendments that were agreed to during the passage of the 2014 act, which was supported by everyone in the Parliament. It is an important part of the named person procedure that we give families access to a complaints process, should they need to use it.
Mr Dornan, did you want to come in?
No, convener, that is fine. The issue has been covered.
Convener, can I just point out that I am not asking for a delay? Quite often, when we get this kind of legislation, it is already through and we get about 30 days to comment. That is fine but, in this case, we have six months; this particular order is not due to be implemented until 31 August. I want to put it on the record that I am not asking for a delay—I am asking that the six months be used to have discussions with the ombudsman.
My difficulty is that I am no expert on complaints resolution—I am not sure that any of us are. The minister tells us that what is in the order is in line with other complaints resolution processes across the public sector, while the ombudsman’s letter to the convener says that it
“is now out of line with other areas”.
Where we have such a significant difference in opinion, interpretation or whatever, I cannot hand on heart put the order through today. All I am asking is that the six months be used for reasonable negotiations and understanding to be had to ensure that this is right and fit for purpose on the day that it is implemented.
Minister, it is of course a matter for the Government to decide to take the order away, revise it and bring it back.
I reiterate that we have developed what is in the order to be in alignment with existing procedures. It avoids the duplication and unnecessary messiness that I think that we all want to avoid. However, the fact is that this is being driven by the 2014 act and the amendments that we moved during its passage, which means that it is being driven in a slightly different way to, say, the social work complaints procedures that others have mentioned.
Regardless of whether we pass the order now or three months down the line, the issue is what we as a Parliament agreed to take forward in the 2014 act. We have developed this to be in alignment with other existing complaints procedures to offer families the opportunity to take forward complaints, should they need to. It delivers the transparency and the commitment that I gave and which we all wanted and shared to ensuring that we deliver for families in this area of policy.
There are no further questions from members, but I would like to ask a couple myself.
During the scrutiny of the Children and Young People (Scotland) Bill, the committee corresponded with a member of the public who raised concerns about the information-sharing provisions, based on her own experience. Specifically, she wanted to ensure that information shared about a child must be relevant, proportionate and in line with the principles of the Data Protection Act 1998. She also suggested that, in her experience, teachers and healthcare professionals were not properly trained on the DPA and that there was a tendency to share everything without checking or asking whether it was relevant. She also said that professionals do not think to inform parents before sharing information about their child. In light of the correspondence that the committee has received, can you tell us whether disputes about the disproportionate sharing of information or the sharing of irrelevant information fall within the scope for making a complaint?
Yes. Information sharing will be part of the complaints procedure.
Given the comments that I have just made, how will you ensure that decision makers are properly trained to make the correct judgments about what information to share? Do you expect specific guidelines to be introduced at organisational level on the types of information that should be shared?
Part of the 2014 act is about making sure that the workforce who will be required to be named persons is properly trained in sharing information appropriately. The legislation that we passed two years ago provides a robust framework for sharing information in the most appropriate and proportionate way, avoiding the unnecessary scattergun approach that we had in the past. The legislation strengthens the complaints procedure and, if people feel that there has been a breach, they will be able to take forward a complaint, notwithstanding the local complaints procedure that they can go through before they reach that stage.
Given the concerns that have been expressed in the ombudsman’s correspondence, and which I am sure are shared by other parents, do you agree that it is important to inform parents before information about their child is shared? What more can be done to ensure that that happens? I recognise that that might not be appropriate in some particularly difficult circumstances, but what about outwith such circumstances?
The 2014 act says that parents and families should be part of the decision-making process and guidance will ensure that best practice, which is always to work with families on information sharing, is followed. The guidance and the act provide rigour to ensure that families are fully involved with regard to any information that requires to be shared.
Thank you.
We now move to the formal debate on the instruments. I invite the minister to move motion S4M-15464, on the draft Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016.
Motion moved,
That the Education and Culture Committee recommends that the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016 [draft] be approved.—[Aileen Campbell.]
The question is, that motion S4M-15464 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Adam, George (Paisley) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brodie, Chic (South Scotland) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Maxwell, Stewart (West Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Abstentions
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 7, Against 0, Abstentions 1.
Motion agreed to,
That the Education and Culture Committee recommends that the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016 [draft] be approved.
I now invite the minister to move motion S4M-15456, on the draft Children and Young People (Scotland) Act 2014 (Modifications of Schedules 2 and 3) Order 2016.
Motion moved,
That the Education and Culture Committee recommends that the Children and Young People (Scotland) Act 2014 (Modifications of Schedules 2 and 3) Order 2016 [draft] be approved.—[Aileen Campbell.]
Motion agreed to.
I suspend the meeting to allow the minister to leave the table.
12:59 Meeting suspended.Children and Young People (Scotland) Act 2014 (Relevant Services in relation to Children at Risk of Becoming Looked After etc) Order 2016 (SSI 2016/44)
Children’s Hearings (Scotland) Act 2011 (Safeguarders Panel) Amendment Regulations 2016 (SSI 2016/61)
Teachers’ Superannuation and Pension Scheme (Scotland) Amendment Regulations 2016 (SSI 2016/62)
Registration Services (Fees, etc) (Scotland) Amendment Regulations 2016 (SSI 2016/64)
Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2016 (SSI 2016/82)
Our final item is consideration of five pieces of subordinate legislation. Do members have any comments?
None at all.
And if Mary has no comments, none of us does.
Does the committee agree to make no recommendation to the Parliament on the instruments?
Members indicated agreement.
Thank you very much.
Meeting closed at 13:00.Previous
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