Official Report 404KB pdf
Good morning and welcome to the 13th meeting in 2010 of the Education, Lifelong Learning and Culture Committee. We have received apologies from Kenneth Gibson and Aileen Campbell, who are both unable to join the committee due to illness. The committee wishes them a speedy recovery.
I am pleased to be here to discuss the Children’s Hearings (Scotland) Bill. I have taken great interest in the evidence that has been heard by the committee recently, much of which has also been expressed to me and bill team officials since last summer.
Thank you for that opening statement, minister. I am sure that the committee will want to follow up a number of issues in your statement.
The core of the Kilbrandon ideal of local involvement is that local lay people make decisions for vulnerable young people within their local communities. Local people bring to those decisions a knowledge and understanding of local circumstances and a sympathy for the welfare of local children. That situation is being protected under the bill—guaranteed, cast iron.
Local authorities and COSLA seem to think that there is a real issue about the local delivery of the service. What is broken in the local organisation that only the bill can fix?
Essentially, there is a lack of accountability in the system. The children’s panel advisory committees are not accountable to anyone, and there is no mechanism in place at the moment to establish standards and monitor performance against those standards. That is what we have set out to do by introducing a national body and a national convener, which will enable us to drive up the level of performance locally.
Where and how will you introduce that new form of accountability? I would have thought that there is a degree of accountability at the moment. CPACs are resourced and supported by local authorities, which are subject to the best form of accountability in that they are democratically elected by the people who live in their areas. As far as I can see, although some structures might be in place to delineate responsibility for certain things, there will in fact be no democratic accountability in the new set-up with regard to the operation and local delivery of the children’s hearings service.
At the moment, there is no democratic accountability with CPACs, which are independent and do not account for themselves to local authorities, local authority chief executives or whatever. COSLA’s proposal to transfer responsibility to local authorities is, in our view, dangerous. If a local authority has a statutory obligation to implement panel decisions, you do not want it to appoint and support panel members. There would be a clear and outstanding conflict of interests in that respect.
But it is a very centralised form of accountability, centred as it is in the Parliament here in Edinburgh, and runs counter to the idea of local delivery and provision that was so central to the original Kilbrandon principles.
I have already laid out what the Kilbrandon principles were all about. On the one hand, lay people from the local community were to be involved in taking decisions for vulnerable young people. Those people need to be supported, and I argue that a national body and a national convener can do that much better. On the other hand, local authorities’ primary statutory responsibility is to implement children’s hearings’ decisions in the provision of local services. To my mind, an independent function needs to be maintained.
Does the Scottish Government feel that in light of the outcomes of CPACs and the local implementation of children’s hearings an effective case for the system having failed has been made and there is no other choice but to take this action?
It is certainly true that there have been attempts in the past to introduce not only national standards but a performance network to maintain them. Indeed, four or five years ago, the children’s panel advisory group had a standardisation working group tasked with that very job. However, it has been unable to implement the approach across the country, precisely because the system is local, not national, and it has been impossible to achieve a spread of best practice. In that respect, you could argue that the current system has failed to introduce best practice and drive up standards.
Did the previous work on standardisation really have no effect? Is there any evidence that the change was beginning to deliver results and drive up standards?
I have seen no evidence that that was the case.
What will be the difference in structures, responsibilities and duties between what we have now and what we will have under the bill?
The functions and tasks will be largely the same as those that we have now. However, they will be redistributed between the various bodies. The national body will take on responsibility for recruitment, training and support for panel members. Some tasks that the Scottish Government and local authorities currently carry out in support of the CPACs will be transferred to the new national body. No significant additional tasks or activities are required; what is required is a redistribution of the current activities. That means that each individual player in the system will have an independence, if you like, that is not evident in the current system. We will have children’s hearings Scotland, which will be responsible for support for panel members. We will have the Scottish Children’s Reporter Administration, which will be responsible for the professionals in the system—the reporters. Local authorities will be responsible for implementing the decisions on the provision of services. Of course, the tribunal will retain its independence.
If the functions and tasks will remain relatively unchanged, what is the purpose of the bill? What is the driver for change?
The underlying driver for change is to improve outcomes for vulnerable children and young people. We all have a duty to try to achieve that. As I have already described, the current system hinders that through the inability to drive up performance, particularly because of a lack of consistent support for panel members up and down the country. We are all aware that cases that come before panel members these days are a lot more complex and difficult than they were maybe 20 or 30 years ago. Panel members deserve the systematic support that the new body will be able to deliver for them. That is the principal thrust behind the major change of the introduction of the new body children’s hearings Scotland and the national convener.
You say that outcomes will be better. What modelling has the Scottish Government done to lead you to that conclusion and what evidence can you provide to the committee that there will be improved outcomes for children?
The committee has heard evidence from a fairly large number of players in the system that leads them to the conclusion that the support system that we are introducing is required.
I am not asking about witnesses who gave evidence to the committee, although I must say that I do not recall too many people giving us a categoric assurance or evidence that outcomes will be improved. I am asking what work the Scottish Government has done to model the outcomes for children, which we all care about, including you, minister—I have no doubt about that. What work has been done to show that the outcomes will be better as a result of the structural changes?
As you know, we set up a strategic board to consider how to change the children’s hearings system through the bill. Various working groups were established, including a training working group. They examined the issues in detail and worked through what appeared to them to be the best settlement for the children’s hearings system to provide the results and outcomes that we seek.
You set up a strategic board and it has done some work. Can you give the committee just one or possibly even two examples of how outcomes will be better?
One example is the training of panel members. You have heard evidence from training officers and others that training is inconsistent. People’s knowledge and understanding of the system and how to deal with particular circumstances varies throughout the country. If we can address that, and drive up standards throughout the country so that the knowledge and understanding of panel members, and the support for them, is improved, we will get better quality decisions and, by inference, better outcomes for children.
Last week’s evidence from the trainers was pretty mixed on that issue. There is no guarantee that by giving responsibility for training to the national convener we will drive up standards and ensure that all panel members take part in training.
We will provide a guaranteed package of support for panel members, which cannot be done under the current system. We will also have a performance-monitoring framework, which the national convener will introduce. It is incontrovertible that outcomes will improve as a consequence of that. I disagree with your premise. To be honest, I thought that the training officers were very positive about the introduction of the national body and the national convener.
I am playing devil’s advocate here, but they had a point of view that they wanted to put forward. It is much easier for them to control and be in charge of something if they have easy access to a central person with whom they can engage. It is not as easy for them to have control or set the agenda when they have to deal with 32 different CPACs. That does not necessarily mean that standards will be better because they are dealing with only one person or one national body as opposed to 32 different CPACs.
We are going to have to agree to disagree on our interpretation.
I have a couple of questions about the finances. How much will the structural changes cost? Does the Scottish Government have a business case for the changes? What consideration have you given to the conclusions of the Finance Committee, which said in its report on the bill that it has reservations about the changes? In case anyone has not seen the Finance Committee’s report, it says:
The Finance Committee highlighted the strong opposition from COSLA. However, I argue that COSLA provided no evidence that our costs were underestimated or inaccurate. I appreciate that COSLA would find it hard to do that because our costs were largely based on a survey of local government that we undertook to put together the financial memorandum. Out of the 32 local authorities, 28 responded to the survey. I take a great deal of issue with COSLA’s criticism, which is not backed up by substance.
The Scottish Government estimates that it costs local authorities approximately £3 million to administer the children’s hearings system. How did the Government reach that figure?
As I indicated, we undertook a survey of all local authorities and asked them to spell out to us precisely what their costs were. The £3 million figure also includes an estimate of in-kind costs that are not easily quantifiable, such as costs for the provision of meeting rooms, administrative support and so on. Those are built into our estimates.
So if the bill is passed, the £3 million will be added to the concordat settlement in the future.
The additional burdens that we talked about were from the introduction of a feedback loop. We did not include detailed cost estimates for that, but I guess that asking people to provide generalised information to local panel members and the local area support teams will not be hugely expensive. I cannot see that absorbing all the resources that have been released to local authorities from being relieved of, for example, funding CPACs or paying panel member expenses. In terms of giving comfort to local authorities that they will not be imposed upon by any additional costs, I think that we can guarantee that by allowing them to retain their current level of funding.
So there will be no additional costs; they will just have to keep on meeting their current costs.
Yes.
Okay.
No—we are transferring functions from local authorities to the new body children’s hearings Scotland and the national convener. For example, local authorities are currently tasked with funding CPACs, expenses for panel members and training on a local basis. All those tasks and functions will transfer to children’s hearings Scotland, which will pick up the tab for the costs.
Okay, but if you have done all that work and had the consultation, why is COSLA still so concerned? Is it just scaremongering? Is it just moaning for the sake of it? Or does it have legitimate concerns?
COSLA might have concerns or fears, but I do not think that they are well founded. You will have to ask COSLA about that.
Therefore, if the bill is approved by the Parliament and receives royal assent, local authorities will have no need to worry. There will be more than enough money to cover any costs that they will incur as they implement the bill.
In terms of the bill’s financial implications, yes. However, you know as well as I do that we are entering a particularly difficult time in public finances, so there will be pressures on local authorities and indeed the Scottish Government in the context of public expenditure. Local authorities will suffer as a consequence of that.
Will local authorities have the resources to enable them to cover the costs of implementing the bill’s provisions?
As I said, local authorities will retain the £3 million that they currently receive from the Scottish Government, even though they will undertake fewer functions.
In its submission to the Finance Committee, COSLA referred to
I would ask COSLA where is its evidence for making such assertions. I do not see it.
That is an interesting point, which we can pursue. The Government will argue that the move to a national body will generate greater efficiency savings as well as leading to better training and so on. As I understand it, COSLA is arguing that a number of local authorities do not accept that a national body will deliver those outcomes, although some authorities think that it will. There is quite a difference of opinion between the Government and a number of local authorities. Is that a matter of concern to you?
The level of opposition from COSLA is obviously a concern for me. COSLA may have its own reasons for that. It is attracted to the notion of local control of the panel system, but I think that there are real dangers in that, as I have articulated. Perhaps COSLA believes that local authorities might be sheltered from the external imposition of costs, but the primary costs come from the obligation on them to implement hearing decisions.
Do you accept that there is a concern among some local authorities that the national structure that you intend to introduce will not deliver some of the improvements that you want? Some local authorities think that it might, but others are pretty sure that it will not. We therefore have a difficulty in being able to assess the outcomes. We all agree on what the outcomes should be and that the child should be at the centre, but there is a problem about how that can be delivered.
I argue strongly against that. We have tried alternative ways of raising performance and improving quality and they have failed—largely on the basis that there is a lack of accountability in the system. In the current system, CPACs are not accountable to anyone.
I can accept that argument for the local authorities that say that there can be improvements, but I return to the fact that we have a lot of evidence from local authorities that feel that that is not the case. They are concerned that we are creating a big structural change that will not necessarily help them because they believe fundamentally that they are delivering quite a good service. They would like some changes, but they do not believe that we need such extensive legislation to introduce them. As a committee, we have to decide whether that is an appropriate view or whether we agree with those who have argued otherwise.
I ask you to look at the evidence that COSLA presents to justify its view, and I suggest that it does not have much evidence. A lot of it is assertion or feeling—
As I read it, COSLA thinks that there is “opacity” because too many parts of the bill are vague and unclear, so it is difficult for it, as it is for the rest of us, to establish the fundamental costs that are attached to it. That point also came through the Finance Committee.
One area in which we do not have the detail is the make-up of area support teams, and that clearly needs to be worked through. Ultimately, the national convener will have the responsibility for the membership and functions of the area support teams. I accept that there is a degree of uncertainty around the shape of them. However, we have enabled—and we continue to encourage—local authorities to get engaged in the discussions on how we put together area support teams. We are not cutting local authorities out of the loop, so I hope that some of their fears will be allayed if they get engaged with the process. The invitation is there for them to do that.
Do you accept that clarity about what we are trying to achieve and about the structures that will go along with that is crucial in determining costs, particularly at a time when local authorities are not exactly flush with money? Local authorities want to know exactly what extra costs might be put on them, but we will not know what those costs are until certain aspects of the financial memorandum are clarified.
As I have said, I do not see where extra costs would come from. The only additional activity that we are talking about is through a feedback loop. I acknowledge that there would be a huge bureaucratic burden if, for example, that feedback loop was for every individual case, but we are not advocating that; rather, we are advocating generalised feedback in order to inform panel members so that they can develop their understanding of how compulsory supervision orders are implemented and why some might not be implemented, for example. We want to broaden and deepen panel members’ knowledge and understanding. That is what is driving our proposals. I think that local authorities fear that the national convener will somehow monitor their performance and criticise or expose their failings. I note from their evidence that they seem to be afraid that there will be an extra burden of scrutiny on them, but it is not our intention to place an extra burden of scrutiny on them. The national convener will be responsible only for his own functions: scrutiny of local authorities will not be one of those functions. We want the feedback loop to help to develop panel members and give them a broader understanding of how services are provided locally.
If we pursue the national structure, what kind of person do you foresee being the national convener, given that it has been flagged up to us that the national convener might have a conflicting role in being a champion of the system and trying to monitor standards? What kind of person would that role attract?
Obviously, a person specification that will be tailored to the national convener’s functions will be developed as part of the public appointments process. I point out that the national convener will have a limited number of statutory functions. We are not talking about a jack of all trades or somebody who will dominate the whole system. The statutory functions that will be vested in the national convener will include the appointment and training of children’s panel members, the selection of members for local children’s hearings, the provision of advice to hearings, and responsibility for the functions, establishment and maintenance of the area support teams. The national convener will be responsible only for ensuring the effective performance of his own independent functions. That is it.
Good morning, minister. We have already heard about the tensions between the local and national levels, which are obviously among people’s big concerns. I would like to focus on the concerns that COSLA has expressed to the minister and the committee. Even COSLA, which opposes a national body for children’s panels, argues in favour of a national panel of safeguarders, as many of the committee’s consultees have, including the Scottish Safeguarders Association, which did so in its written and recent oral evidence to the committee. Why is it cost effective to replace the 32 children’s panels with a single national body, but not cost effective to replace the 32 safeguarders’ panels with a single national body?
We do not believe that it would be proportionate to set up a bespoke national body for the fewer than 200 safeguarders, who are involved in a tiny proportion of hearings. By comparison, we have more than 2,500 panel members, who are involved in something like 47,000 hearings a year.
That is quite welcome, minister. Apart from anything else, that answer probably saves me from having to ask my next question. I accept that the need for greater consistency was one of the main issues about safeguarders. In effect, are you saying that you intend to use the regulation-making powers in the bill to introduce, on the back of the implementation of the Gill review reforms, greater consistency in respect of safeguarders? Certainly, some confusion seems to have been caused by the fact that different parts of the country appear to deal with safeguarders and curators in different ways. That perhaps points to a lack of clarity, not so much in the bill as in the way the system currently works. Do I interpret the minister correctly as saying that it is his intention to address that lack of consistency and clarity?
Yes. As the SCRA’s principal reporter mentioned previously, some areas—such as the Western Isles, I think—do not have local safeguarder panels, so safeguarders need to be brought in from elsewhere. We need to address that.
Before moving on to more general questions on legal aid, I want just to pick up on one issue. Given that the bill will allow safeguarders to appeal decisions in their own name, it is noticeable that section 178 makes no provision for a safeguarder to be awarded legal aid to do so. Is that—dare I say it?—an accidental omission, or are there policy reasons why safeguarders should not be eligible for legal aid?
My compatriot here—Laurence Sullivan—is telling me that we will consider that for stage 2, so we obviously had not considered that point.
Having brought the point to the Government’s attention, I think that we are happy to wait until stage 2 to receive greater clarification.
If I may, I will ask my legal colleague to answer that.
Please feel free to do so.
I am afraid that legal aid is not my area of expertise.
As you will have noticed, the legal aid provisions in the bill are complicated. Essentially, because the entire system is being moved from panels of solicitors appointed by hearings and run by councils to the Scottish Legal Aid Board, we are having to hook on to the different types of legal aid that already exist: there are different types of legal aid, such as advice and assistance, advice by way of representation and children’s legal aid. Some of the complexity is necessary to hook in to the way the Scottish Legal Aid Board already runs the normal legal aid system.
So you are saying that who is eligible will not change and that the proposals will not affect children’s rights to representation. What changes, if any, are happening in respect of relevant persons or other people who are not relevant persons? I presume that some of this happens before people have a right to go to a pre-hearing to determine whether they are a relevant person and so on?
That is a matter that we need to address. The deeming of a relevant person at a pre-hearing is certainly an issue. Legal aid would come in if the person who is applying to be deemed a relevant person is knocked back. They would have recourse to an appeal to the sheriff court and could, I think, apply for legal aid. Is that right?
Yes.
The bill suggests at section 28(1) that at emergency hearings, for example after the granting of a child protection order that will remove a child from their home, legal aid is automatically available for the child but not for the relevant person. From where is the relevant person to get funded representation to argue that their child should be returned home and should not be kept from them? Is it via ABWOR or do you intend to extend the rules on emergency legal aid to cover such a situation?
Some of that provision would not be covered in the bill because it would be provided for by the ABWOR rules under the Legal Aid (Scotland) Act 1986. The intention is that ABWOR would be the usual aid type for funding proceedings before a hearing, and that the automatic children’s legal aid to which you refer in relation to a child at a child protection order hearing would be used to cover such an emergency situation when ABWOR would not suffice.
As far as I understand it, there is a failure to provide for legal aid at sheriff court hearings that deal with child protection orders. Is that a policy decision or an oversight?
That is an oversight. We propose to lodge a stage 2 amendment to add a couple of sections on sheriff court hearings in consequence of child protection orders. Children’s hearings in consequence of CPOs are provided for.
My colleague Ken Macintosh will ask further questions about legal aid. Given that we have already pulled out a couple of omissions and that you intend to make changes, it might be useful if you sent to the committee as early as possible a note to give us the greatest clarification about, and the greatest time to consider, what we all agree is a complicated issue.
The financial memorandum includes estimates for legal representation that are much higher than current costs, so we believe that we have taken on board the need to address the fees issue.
SLAB considered that emergency legal aid might be needed in more emergency hearings or in more types of hearing than the bill indicates. The different figures that SLAB has provided encompass more emergency hearings than we envisage.
So you still disagree with SLAB’s interpretation.
We based the figures on SCRA information about hearings that have taken place—we adjusted that information.
One concern that has been flagged up is that using the Legal Aid Board to determine the payment of legal representatives could add delay to the system. What mechanism will you use to prevent such delay?
After consultation with SLAB, we do not think that that will be a problem. In the legal aid system for civil and criminal cases, SLAB is well used to providing legal representation at short notice when necessary. Hooking into SLAB’s existing processes and procedures will mean that legal representation and the appointment of legal representatives are more standardised and consistent than at present, when decisions are made by panels throughout the country.
If the system has no delays, how long does SLAB take to make decisions about legal aid?
In emergencies, legal aid is automatic, is it not?
Yes.
We hope that such situations are addressed.
One reason why ABWOR was selected is that solicitors make decisions on criteria, and cases do not need to be referred to the Scottish Legal Aid Board, which minimises delays. As the minister said, emergency hearings will not require an eligibility test—the entitlement will be automatic.
When a child has a solicitor, legal aid will be governed by ABWOR rules, but when a child does not have a solicitor, the decision will be for the Legal Aid Board. Do you suggest that the decision in every such case will be made under emergency legal aid rules rather than children’s legal aid rules?
My understanding is that in that sort of situation a list of approved solicitors will be provided to the child or relevant person and they will be able to choose which solicitor they want.
That is helpful, but there are a number of concerns. The argument that putting all the decisions to the Legal Aid Board could introduce an element of consistency is quite a strong one, but there are a number of other problems. The issue is incredibly complex to follow. We are talking about changing the Legal Aid (Scotland) Act 1986 and using the ABWOR scheme, emergency legal aid and children’s legal aid—it is not immediately clear in each case. At present, children’s legal aid is a means tested scheme but most children going through the scheme, and most families in the children’s panel system, will qualify automatically. Why is means testing being kept in place?
Again, I will refer to Laurence Sullivan.
At the moment, the normal SLAB rules about eligibility criteria and contributions do not apply to children’s hearings because they are not within the SLAB system. In the future, they will do so. For children’s hearings, for example, children’s legal aid will automatically be available a couple of days after a child protection order has been granted, usually at the instigation of the local authority. In other circumstances, under ABWOR, the normal eligibility and contributions rules will apply. That is, obviously, of substantially more relevance to relevant persons than to children. Nothing bespoke or different is being done with regard to how those normal legal aid rules will apply to children’s hearings compared with how they apply to the rest of the legal aid system.
My concern is this. If legal aid is means tested, will a means test be conducted before a decision is made on legal aid or will it be conducted retrospectively and the money claimed back?
It will continue to be done as it is at present. The current system is that a solicitor usually makes that assessment when someone comes to see him or her. The solicitor deals with SLAB as to whether any contributions come from the client. That will still be done, but with the extra provision for circumstances where a child must have legal representation, such as if a hearing is considering a secure accommodation authorisation. In a situation like that or in a hearing subsequent to a CPO, children’s legal aid would automatically be given to the child so that he or she would be legally represented at a hearing that was making a decision of that nature.
Am I right in thinking that most of those decisions would be taken at a pre-hearing? My understanding is that there will be a pre-hearing at which the question whether either the child or a relevant person should have legal representation will be decided. Is that the case?
That would happen in some cases. Because we are moving to the legal aid system there will be various chances for children and relevant persons to get legal aid. If it looks as if a secure accommodation authorisation might be in prospect, or if it is obvious that the relevant person is not capable of effectively participating themselves, that is something that will be known to the social workers dealing with the families. A social worker or children’s reporter should suggest that the child or relevant person gets a lawyer. If they get to a pre-hearing and still do not have a lawyer, the pre-hearing would suggest it. Indeed, if an individual ends up getting to a hearing without a lawyer and it is obvious that they need one to participate effectively, possibly because they have limited capacities, the hearing would also be able to ensure that the person got a lawyer. It is intended that there would be various steps along the way to ensure that someone who should have legal representation would be given repeated opportunities to get it.
The opportunities for a child to get legal representation are relatively clear. However, the opportunities for a relevant person to get it are not in the bill at all. That is why we are waiting for regulations. When is a decision taken about a relevant person and who takes it? Will a delay be built into the system if the relevant person is then means tested for legal aid? That is not clear to me at all. It could introduce an extra layer of delay, cost and legalisation to the system.
The criteria for when a relevant person would get legal aid would, in essence, be the same as under the Children’s Hearings (Legal Representation) (Scotland) Amendment Rules 2009 and as set out in proposed new section 28K that section 178 of the bill would insert into the Legal Aid (Scotland) Act 1986 and which sets out similar criteria. Those are based on the nature of the decision that is made, especially when it engages the relevant person’s article 8 ECHR rights in relation to their relationship with the child and when legal representation would be necessary to ensure that relevant person’s effective participation at the hearing.
I want to clarify that, because I might have got it wrong. Are you saying that new section 28K, which the bill will insert into the 1986 act, covers the rules of eligibility for relevant persons and adults?
New sections 28K(3) and (4) set out the criteria but, as I said, there are distinctions between the different existing categories of legal aid, ABWOR and children’s legal aid. In addition to new section 28K, there are already regulation powers in the Legal Aid (Scotland) Act 1986, such as section 9, that would set the same criteria for the different categories of legal aid.
I am sorry to interrupt but I want to rewind a moment. Does new section 28K apply to relevant persons or does it just apply to children?
It applies to children’s legal aid but children’s legal aid is not only for children.
It applies to relevant persons.
Yes.
Will the interim arrangements that the 2009 rules put in place be written into statute? Will they remain as agreed to last year or will they be revised?
The provisions in new sections 28K(3) and (4) are identical to new rules 3A and 3B that the 2009 amendment rules inserted into the Children’s Hearings (Legal Representation) (Scotland) Rules 2002. The 2009 rules would not be revoked until full provision was in place in relation to ABWOR and children’s legal aid to mirror exactly the criteria for appointment that are set out in the 2002 rules as amended by the 2009 rules.
So the 2009 rules will not be revoked until other rules are in place, but will the other rules be put in place by the bill or by regulation?
They will be put in place using a mixture of the provisions in the bill and existing legislation. Section 178 of the bill inserts 15 new sections into the 1986 act, so they are not standalone provisions at all. As well as those 15 new sections, the 1986 act contains existing provision on ABWOR that will also be used.
I understand that you do not want the bill substantially to change the numbers of people who qualify for legal aid and assistance. Is that right?
Yes.
However, the eligibility tests for legal aid and assistance are changing. The main change is that you are replacing the test of the best interests of the child with a simple reasonableness test. Why are you doing that? Will the change mean that the numbers change, too?
We need to address such issues and I am grateful to the committee for raising them. We need to respond to all your detailed questions.
No.
Thank you.
You are not wrong, but Mr Macintosh was asking about legal aid for a child who comes before the court and I think that you were talking about legal representation at a children’s hearing. The two systems are different.
That demonstrates the difficulty of asking questions on the subject—never mind answering them.
It might be best if we tried to clarify the matter in the letter that we have agreed to send to the committee.
That would be helpful. I have one more question about the broader area of paid representation and the appointment of curators as opposed to safeguarders. The original draft of the bill contained a section that said that sheriffs could not appoint curators and should always appoint safeguarders, but that is no longer in the bill. That implies that it is still up to sheriffs to decide whether they appoint safeguarders or curators, who are paid at different rates and do similar but slightly different jobs. It will introduce inconsistency yet again. Was there a reason for taking that section out of the bill?
You are correct that there was a provision in the draft bill to remove curators from the system. Our understanding is that sheriffs would appoint curators only in particular areas of the country. We are not entirely clear why that should be, and we would like to move towards a position where safeguarders are appointed in such circumstances. The draft bill last June sought to achieve that by prohibiting the appointment of curators, but some stakeholders did not like that and raised some issues from their perspective about the quality of safeguarders. In light of that, and of Lord Gill’s review, the long-term aim is to use the powers that we have taken in the bill for the operation, management and training of safeguarders to ensure that the quality of safeguarders is increased to such a level that the appointment of curators by some sheriffs in some parts of the country would no longer be thought necessary.
Convener, if I may, I will summarise my thoughts. We have spent some time discussing what will happen, so we have not really had the chance to discuss whether it should happen or concerns about what might follow because we are not entirely sure of the process.
The overall intention is to ensure that those who need legal representation get it. I agree with your sentiments entirely: we do not want to expand the criteria that we established last year for who should get state-funded legal representation and we do not want the system to be inundated with legal representatives. I shall undertake to respond to Mr Macintosh and the rest of the committee on not just the points of detail but the points that he raised latterly.
Good morning, minister. I want to move away from legal aid and on to grounds for referral and the age of criminal responsibility. You will understand that I have been following that line throughout the evidence that we have taken on the bill. Section 65 sets out a list of grounds for referral. Some of the evidence that we have taken suggests that there should be a change, and that the grounds should be made a bit simpler. One suggestion, which a number of people made, was that there should be one general ground, which could be something along the lines of “the child is in need of compulsory measures of protection, guidance, treatment or control.” Would the Government consider that suggestion?
I noticed that that point arose in your evidence sessions. I do not think that what you suggest would necessarily be a good idea from the perspective of the child and relevant persons. I think that they deserve a clear exposition of why they are being called before a children’s hearing. I do not think that one general catch-all ground for referral would provide the transparency and clarity that children and relevant persons need. On that basis, I would need a great deal of convincing that we should move to that kind of approach.
Do you think that the grounds as a whole distinguish sufficiently between children who need state intervention and children for whom state intervention would not be appropriate?
We believe so. Obviously, there are a couple of additional categories such as close connection and domestic violence that we have already discussed. We think that those grounds are an improvement on current grounds in allowing for situations in which people who are not only co-resident with a child but closely associated with them might give sufficient cause for concern—with regard, for example, to sexual offences and the like—to constitute grounds for referral. As for the domestic violence ground, there is a bit of a gap in that respect at the moment. After all, it is probably rather unfair for a parent who is a victim of domestic abuse to be called to a children’s hearing on grounds of lack of care or whatever. It is important that such grounds are introduced.
Evidence suggests that there might be a lack of understanding among panel members of how to apply the new close connection and domestic abuse grounds. What guidance will you give panel members on distinguishing between abuse and domestic abuse and on how those grounds might be applied?
Well, I think that reporters would do that.
It is important to note that a child who does not need state intervention will not necessarily be called to a hearing. Before a child is referred to a hearing, two tests need to be met: first, that there are sufficient grounds for referral; and, secondly, that the child needs compulsory supervision measures. The reporter determines whether there are sufficient grounds for referral. Detailed practice guidance on frameworks for decision making in that respect is already in place and would, in any case, be produced for new legislation.
Section 65(3) sets out when a child is to be regarded as having a close connection with a person. The general point about the grounds for referral, which we considered in great detail, is that overlaps are not a problem but gaps are a big problem. We have therefore erred on the side of having overlaps and ensuring that there are no gaps.
I have just asked whether the list of grounds could be simplified but, believe it or not, it has been suggested in evidence that the ground of forced marriage should be added. Could that be included in the bill?
That could be considered for stage 2.
It was suggested that that gap has been missed and that, although the issue might not have been relevant in the past, it is certainly becoming more so now.
Do we know why that ground was not included in the bill?
We can look at it for stage 2. There might be a good argument that some of the other grounds, especially with regard to conduct such that
Given that we are working on the basis that overlap is better than gap, we should perhaps consider the matter.
Absolutely. That is welcome.
The committee has had sight of my letter to the convener on that topic. The proposal to raise the age of criminal prosecution is under parliamentary discussion as part of the Criminal Justice and Licensing (Scotland) Bill. If it is approved, children under 8 will continue conclusively to be presumed not to be guilty of an offence, so they will be referred to the children’s hearings system only on welfare grounds. Children aged between 8 and 12 will be dealt with for offending only through the children’s hearings system, but referral on an offence ground will still be competent. Children aged between 12 and 16 will be prosecuted if the offence is serious enough to be dealt with on indictment. The Lord Advocate issues guidance on that. Otherwise, they will be dealt with by the children’s hearings system. Children aged 16 or 17 who remain on supervision through the children’s hearings system will continue to be managed in the system or can be prosecuted. The decision on that will be made between the procurator fiscal and the reporter.
The consequences that a child’s acceptance of an offence at a hearing can have for their future plans and career have been a big topic in the evidence that we have taken. I have a copy of your letter and I welcome the fact that the Government is examining how the disclosure system affects people who accepted an offence when they were young and what impact that has later in life. Can you give the committee a further update on how that is progressing?
We propose to introduce the new ground that the child’s conduct has had or is likely to have a serious, adverse effect on the health, safety or development of the child or another person. That includes behaviour that might previously have been thought of as criminal. We expect that the new ground, rather than the existing offence ground, will be used for minor offending behaviour. I know that the issue has concerned the committee.
I was going to ask about appeals to the sheriff, but can I continue Christina McKelvie’s line of questioning for a moment? I welcome the minister’s letter and his comments this morning. However, I want to clarify something. Children will still be referred on offence grounds, although you hope that the new grounds will be used for more minor matters. Whose decision will it be to refer a child on offence grounds or on the new criteria?
Normally the reporter makes such decisions.
Another issue is whether a child, when an adult, can appeal against a childhood offence whose grounds they accepted at the time but which is now on their disclosure record. At the moment, I believe that it is very difficult for such a person to have that considered. Will you look into it?
The Children (Scotland) Act 1995 provides that a child, even when they are an adult, can challenge the grounds of referral that were established or accepted by them when they were a child—for example, if new evidence comes to light. That ability to review the grounds of determination is carried over into the Children’s Hearings (Scotland) Bill.
Assuming that no new evidence comes to light, we are talking about children who accepted grounds five or six years previously without realising the implications of what they were doing. I know of one case in which a young man accepted grounds that described his offence as a sexual assault, but it was actually at the relatively less serious end of the scale of such assaults. Sexual assault is a serious term and issue, but this was not quite on that scale. That offence is on his record, yet there are no grounds on which he can appeal it. Would you look at that kind of issue?
Yes. Perhaps Laurence Sullivan will say more on that.
That is a different issue from the review of the grounds determination. Offences such as the one that you mention would carry on to adult disclosure and under amendments that we propose to lodge at stage 2, the normal weeding rules would apply to it. Appeal would depend on the nature of the offence. The scenario that you outline in which someone accepts grounds without realising the consequences of doing so needs to be dealt with as a practice issue. I understand that the SCRA currently gives people leaflets that explain the situation and that it is also a practice matter for training panel members so that they make sure that a child is fully aware of the consequences of accepting a ground that might involve some kind of sexual offence and that the consequences of doing so might be with them for many years to come. On that basis, the child would make an informed decision about whether they wanted to accept the ground or whether they would like to go to the sheriff court to have the ground established conclusively by the sheriff.
Will the most minor sexual assaults—I am not sure whether I can use the word “minor”, but the less serious sexual assaults—be treated under the new grounds that you are talking about introducing or, by definition, will all sexual assaults be treated as serious matters?
When defining what is a minor assault, one has to look at the individual circumstances of each case. I suggest that the reporter is in the best position to do that. However, I imagine that the principal reporter will issue guidance to reporters on the decision-making process. We need to explore the issue a wee bit further and I am more than happy to do that. We plan to lodge amendments at stage 2, but I would welcome a dialogue on the matter.
That is gratefully received. The system is based on protection of the child’s welfare, so it is anomalous to burden a child with carrying a potentially serious and damaging criminal record into adulthood. We must get the balance right.
No is the short answer. The bill substantially restates the provision for the sheriff to conduct a wide review of the issues that a hearing considers in making its decision if the sheriff thinks it appropriate to do so. In practice, the power is used infrequently, so it should be regarded as a potential facility that depends on the circumstances rather than the norm. I am thinking, for example, of situations in which the circumstances of a child in residential or secure care have changed significantly. The sheriff will be able to release the child from the accommodation immediately without the child needing to wait for another hearing. I reiterate that we do not expect the power to be used frequently; nevertheless, it is appropriate for the sheriff to have that facility available to him.
When we heard evidence on the subject, we were told that there was quite strong resistance to the original power of appeal back in 1995 although the system has now grown accustomed to it. The power is rarely used, so I am interested in hearing why there is any need to extend it in the bill. Children’s panels can sit at short notice to consider cases when circumstances change. There is an underlying anxiety that the Government is extending the power because it is worried about the ECHR compliance of the tribunal system and therefore wants to involve the sheriff more.
The background to this is that there are varying interpretations of the extent of the current appeal power in section 51 of the 1995 act. As you say, the power was a matter of significant debate when that bill was before the Westminster Parliament. The children’s hearings system was set up by the Social Work (Scotland) Act 1968 and was amended by the 1995 act, which added appeal provisions with the clear and deliberate parliamentary intention of widening the scope of the review somewhat. Since then, there have been varying interpretations and some different case law on the matter. Our view—some stakeholders would not entirely agree with us—is that section 51 of the 1995 act already provides the facility for the sheriff to conduct a wide review when they consider that necessary. That argument was given significant credence in the SK v Paterson judgment last year, when the Court of Session referred specifically to the sheriff having investigatory-type powers.
That is helpful. One final point in passing is that a couple of witnesses have pointed out the anomaly that there can be an appeal to the sheriff court and to the Court of Session and that those can be pursued simultaneously by a relevant person or the child. In fact, people can claim for legal aid in both cases. Is the minister aware of that and, if so, does he intend to address it?
I was not aware of that, but we shall address it.
I had hoped that the evidence session would be finished by 12 o’clock, but we have three remaining substantive issues to cover. I suggest that we take a short comfort break. The committee will reconvene no later than 12 noon.
I reconvene the meeting and invite Claire Baker to ask her questions.
I have a couple of questions on the definition of the term “relevant person”. The bill proposes a significant change from the 1995 act in relation to who is defined as a relevant person. Concerns have been raised that the narrowing of the definition will exclude people such as long-term foster carers or grandparents who look after children. I appreciate that such people could be given the status of relevant person through the hearings process, but what is the thinking behind the changes? Is the definition being narrowed with the intention of excluding certain groups, including foster carers?
The intention is to clarify the criteria for who will automatically receive relevant person status. That is defined in section 185. As you rightly say, in addition there is to be a test to allow someone to be deemed a relevant person, which is set out in section 80. That is intended to ensure that there is a route to inclusion for those who can demonstrate that they exercise significant control over the way in which a child has been raised, rather than day-to-day control on a temporary or short-term basis. As you suggest, grandparents who look after a child for a good part of the working week or long-term foster carers would certainly come into that category.
Is there a danger that that will introduce a fairly complex mechanism for such people, when it is currently simpler for them to be identified as a relevant person? Is there a problem with those groups having that status that has led to the proposed changes?
There are problems with establishing who has relevant person status. That is why we set out to clarify exactly who should have that status automatically. However, we know that there are grey areas. A process has been put in place to clarify the situation of individuals who are in those grey areas. That is a sensible approach.
We received evidence that there should be a mechanism to review the status of relevant person, because the person’s role in the child’s life might change during the hearing process. Has the Government considered that?
That can perhaps be done through the hearing review process.
The intention is that when someone seeks to be deemed a relevant person, that will be established at the outset by a pre-hearing panel. That is obviously best for everyone, because the child, the potential relevant person and any other relevant persons will know who will be at the hearings and involved in them. It is intended that that will be an up-front one-off decision. We are considering whether it would be necessary to try to build in a provision for reviewing that decision if a new potential relevant person emerged who was not there at the start, or someone was deemed not to have relevant person status during the course of the hearing or the hearing process. That will partly depend on how long the child might be in the system. We are considering that matter to ensure that we get things right.
The other group that I mentioned was unmarried fathers. Unmarried fathers with children who were registered prior to the Family Law (Scotland) Act 2006 would have a status that would be different from those with children who were registered after it was passed. Do you want to make additional points about unmarried fathers? Concerns have been expressed about the status of unmarried fathers in the new system and whether the provision is ECHR compliant in respect of the right to family life.
Under the 1995 act, a contact order is not sufficient for an individual to be a relevant person. Only a parent who enjoys parental responsibilities or rights under part 1 of that act, or any person in whom parental responsibilities or rights are vested by virtue of that act, is a relevant person. There is a further category in the 1995 act: those who appear ordinarily to have charge of, or control over, the child. That is a question of fact, and the full circumstances need to be considered. As we have just discussed, the reporter will initially determine whether a person meets the test, and they can refer to that in a pre-hearing. However, a person who claims to be a relevant person has no legal right to have their case considered by a panel, and they do not have any right to attend a business meeting or pre-hearing to make their case. It is not appropriate that the reporter who is the adversary of the relevant person should have a role in deciding who is or is not a relevant person.
You recognise that the pre-hearing panel might need to make a difficult decision on whether an unmarried father should have relevant person status. I am reluctant to go back to the legal aid discussion. For clarification, however, I think that you said, when we were discussing legal aid, that a person who was going through the pre-hearing panel process would not be able to claim legal aid at that stage, but would have access to legal aid if there was an appeal to the sheriff court.
That is correct.
I would like to move on to issues relating to implementation and enforcement. The bill will slightly change the provision on a hearing’s being able to request that the reporter ask for an enforcement order against a local authority, by transferring the power from the reporter to the national convener and by removing the discretion on whether to pursue with the sheriff. Will you give us an understanding of the impact of that? Should we consider that matter further?
We are trying to ensure that the discretion belongs to the children’s hearing. Essentially, we are reinforcing the status of the children’s hearing as an independent tribunal. We have an opaque process at the moment. We have reviews, and it is remitted to the principal reporter to engage with local authorities on compulsory supervision orders. However, that process does not include the child or the relevant person in any discussions. We think that the process ought to be more transparent and open.
Currently, how many cases go as far as the sheriff for enforcement? Are issues usually resolved within the process?
The feedback that we have received from the children’s reporter service indicates that no cases have gone to the sheriff.
The policy memorandum indicates that 10 cases were reported but none reached the final stage.
The existing enforcement mechanism, under the 1995 act, was inserted by the Antisocial Behaviour etc (Scotland) Act 2004, so it has been in force for only a few years. That probably explains why the number of cases that have been reported is small. Prior to the 2004 act, the only way in which to enforce a supervision requirement from a children’s hearing was to take an action to the Court of Session, which seems somewhat disproportionate.
I re-emphasise that the national convener has no powers of enforcement over local authorities. In this instance, they will be the conduit for a decision by a children’s hearing to take a case to the sheriff court. They will not be an active player in the process.
One issue that caused the question to be explored was the fact that, in some cases, the circumstances of the child change a few weeks after the decision has been made, so there is discretion to proceed or not to proceed. Will the procedure that you have described—the two meetings—be enough to ensure that, if a child’s needs change, those changes are taken into account and the best decision for the child is taken?
In such circumstances, the local authority has a duty to instigate a review hearing, at which the circumstances should be addressed. However, the possibility that the local authority will not do that is a cause for concern. The ball is in the local authority’s court—it must ensure that it fulfils its functions. I am sure that children’s hearings will discuss any changed circumstances and make appropriate changes to the orders on which they originally agreed. With the provision, we are trying to encourage a partnership approach between children’s hearings, local authorities and others.
We heard in evidence that health, especially adolescent psychiatric services, plays a huge part in the holistic needs of a child. How will the children’s hearings system take that into account? Should health also be subject to enforcement?
It is important that there are clear lines of accountability. That is why the local authority has the statutory obligation to deliver.
In my experience, a few care plans fell down because the health element was not happening as well as it should and there was no access to services. I would welcome any exploration of that, so I might take up your offer that you would consider an amendment on the issue, if I were to lodge one.
On secure accommodation, could you clarify whether it is envisaged that the hearing’s decision and the decision of the chief social worker can be appealed against, or is the latter meant to supersede the former?
Both.
Both?
There is an additional right of appeal on the chief social worker’s decision.
I have to say that that is not particularly clear from the bill. How will the changes in secure accommodation authorisations and implementations address the ECHR concerns that have been expressed by one or two people who have provided us with evidence?
The bill makes provision for a right of appeal to a sheriff with regard to the implementation by the chief social worker of secure accommodation authorisation. That is an additional right of appeal. Given the nature of a secure accommodation placement, which involves the deprivation of a young person’s liberty, our position is that it is absolutely right that we retain the part of the process that allows for a professional judgment about whether a placement in secure accommodation is in the best interests of the child at that point in time.
Are the two things tied together? Was the right of appeal against both persons something that bothered you about ECHR compatibility, or was that a separate issue?
It was a separate issue. There was concern about the transparency of the process whereby the chief social worker and the head of the secure unit were making a decision. That concern involved the reasons for that decision—for example, whether it was cost driven. We need to make that process much more transparent, and the bill addresses those issues.
That concludes our questions to the minister today. Thank you for your attendance. We look forward to receiving your supplementary written evidence on legal aid.
I will try to ensure that it is understandable.
It would be helpful to the committee if it could be written in simplistic and easy-to-understand terms. I think that the only person around the table who truly understands the legal nature of the issues is the committee’s adviser, Professor Norrie. Of course, that is what keeps him in a job. [Laughter.] Would it not be nice if we did not have to keep too many lawyers in jobs?
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