Education and Culture Committee

Meeting date: Tuesday, October 8, 2013

Official Report 524KB pdf

---

Children and Young People (Scotland) Bill: Stage 1

The next item is to continue our evidence taking on the Children and Young People (Scotland) Bill. I welcome to the meeting the Minister for Children and Young People, Aileen Campbell, and her supporting officials from the Scottish Government. Phil Raines is head of child protection; David Blair is head of looked-after children; and Gordon McNicoll is a solicitor in the solicitors communities and education division.

I place on record the committee’s thanks to the minister and officials for responding in a short timescale to a range of questions from the committee from last week. I am sure that that helpful response will be covered in the questioning. Before we ask questions, I invite the minister to make a short opening statement.

Thank you, convener. Good morning and thank you for inviting me to give evidence on the Children and Young People (Scotland) Bill.

For the past eight weeks, the committee has heard evidence on a wide range of issues in quite a complex bill. We will talk about those issues today. I want to set the tone with some remarks about what binds those issues together.

With the bill, we have set out our ambition to make Scotland the best place in the world to grow up in. I think that we all share that ambition. The bill advances the ambition by drawing on well-established policies and strategies. It takes forward our long-standing recognition that we need to make a bigger impact in our children’s early years, not least through early learning and childcare. It lifts to a new level Scotland’s unique and internationally lauded approach to helping children and young people through getting it right for every child. Over the years, the Parliament has regularly endorsed that approach. GIRFEC has already taken seed in parts of Scotland, and we believe that the time is right for its fruits to be enjoyed by all our families.

The bill advances our national determination to improve the lives of our most vulnerable children and young people. Our proposals for looked-after children are rooted in what is needed by children who are in care, by children who are at risk of going into care and by young people who have moved on from care. The bill gives our natural and deeply embedded respect for the rights of children a statutory grounding in a way that fits Scotland’s traditions and looks to our future aspirations. The bill builds on the best practice and experience of what we have already achieved in Scotland. Our proposals and our costs are drawn from extensive experience across the country.

However, the bill is not simply a series of small steps forward. It is a huge leap, not into the unknown but towards what the evidence tells us is the right thing to do for children. That is particularly true of its commitment to early intervention. We know that a light touch applied when concerns first arise can often avoid a descent into difficulties that necessitate heavy formal measures. The preventative approach usually leads to far better outcomes for the child and their family. That is why we want to set in statute the crucial principles of proportionate, preventative and child-focused support for all children. They are the principles that Parliament espouses and we have set out what we think will best achieve those principles. As we have done throughout the huge consultation on the bill, we will continue to listen and stand ready to improve the bill where necessary.

Thank you for inviting me here today. I am happy to answer any questions—I am sure that members will have many.

You will not be surprised to know that we do have many questions. The bill is very important and we want to cover a lot of important issues. Before we get into the detail of the bill, there are some wider points that members would like to hear your response on. Liz Smith will ask those questions.

Good morning, minister, and thank you for your opening remarks. The bill is complex and, as the convener said, it is a big bill, so we must get it right.

Some of the written evidence has pointed out to the committee that there are certain points of law on which there is a difference of opinion between what the Scottish Government’s advice has been and what certain groups are saying. For example, there is a difference of opinion between Scotland’s Commissioner for Children and Young People and the Scottish Government about the legal advice on whether we should incorporate the United Nations Convention on the Rights of the Child into Scots law. There has also been a difference of opinion between the Faculty of Advocates and the Scottish Government over part 4 of the bill. There have also been some questions about legislative competence from the information commissioner. Is the Scottish Government confident that the legal advice that it has been given on those points of law is accurate?

Thank you for the question. I cannot go into detail about the legal advice that we get. We know that every piece of legislation that the Government introduces is competent, and that is no less true for this bill. I cannot comment on the legal advice that the committee has been given. I am sure that it will come out in the stage 1 report that the committee publishes. The bill is competent and that is true of any legislation that the Government proposes.

I want to home in on the fact that there is a difference of interpretation of some points of law. For example, the Faculty of Advocates argues very clearly that the named person provisions in part 4 attempt to dilute the legal role of parents. That is clearly not the Government’s view. The Faculty of Advocates submission says:

“It undermines family autonomy. It provides a potential platform for interference with private and family life in a way that could violate article 8 of the European Convention on Human Rights.”

The Government believes differently; how have you come to that different conclusion?

When services intervene in a child’s life, the pendulum often has to swing between the parents’ rights and the child’s rights. The named person provisions are about providing a support network and framework for families, if they need it, and it is their right to choose to seek advice from the named person. For more complex levels of need, the named person will be there to see whether there is a cause for concern. At that point, they will seek the appropriate support to ensure that the child gets the help that they need.

On the point of law to which you point, the bill is legally competent, as is every bit of legislation that the Government introduces.

I do not think that the Faculty of Advocates is arguing about the legislative competence of that part of the bill. It is making the point that it believes that there is a dilution of the role of parents.

There is no dilution of the role of parents. The role of the named person is very different from that of the parent. We know that the parent is the most important person, and the most important educator, in a child’s life. The named person offers a framework for the provision of additional support if a family decides that it needs it or for the identification of issues that might be a cause for concern. At such a point, the named person can seek to support the child to ensure that they have better outcomes in life. There is no dilution in the role of parents, which is set out clearly in the Children (Scotland) Act 1995. That is not diluted either.

So the Scottish Government has no concerns about the issue that the Faculty of Advocates has raised.

As with any proposed piece of legislation that goes through the three parliamentary stages, we will listen carefully and closely to what people have to say, but we know that the bill is competent. The named person provisions in no way dilute the role of the parent.

An issue that is central to the bill is the UNCRC duties. Some witnesses have supported the idea of full incorporation of the UNCRC into Scots law, while others have taken a very different point of view and have said that that would not be particularly helpful or sensible. What is the Government’s view of the duties that you are placing on ministers in the bill? What practical difference will those ministerial duties make to children?

I was interested to read Kenneth Norrie’s submission and the remarks that he made to the committee.

The duty in the bill is a duty on ministers to reflect the UNCRC. That will child rights proof all our decisions. A tool will be developed to support that. We will take practical actions to increase awareness of children’s rights, whether through schools or with professionals or parents. As far as the practical impact is concerned, there will be a new duty on ministers to properly reflect the UNCRC in the policies that we take forward as a Government.

That is helpful, but what will the bill allow you to do that you could not do at the moment? What difference will it make in ensuring that ministers carry out such duties? What duties are you not carrying out at the moment that the bill will force you to carry out?

There will be a duty to ensure that the UNCRC is properly reflected in the policies that we take forward. We will have to ensure that Parliament understands that that is what we are doing. Parliament will carry out scrutiny to ensure that we have reflected the UNCRC in our policies.

The duty will child rights proof all the decisions not just of the present Government but of future Governments, so it is not just about ensuring that the present Government does all that it can to reflect the UNCRC; it is also about ensuring that, in the future, all subsequent Governments do that.

In addition, we want to ensure that we raise awareness of children’s rights not just in the work that we do in government, but right across the public sector. There needs to be an understanding of the UNCRC before we can reflect the good practice and the culture in the decisions that we take.

I want to move on to the nub of some of the argument. As I said, there is a difference of opinion on whether the bill should incorporate the UNCRC into Scots law or whether it should incorporate the principles of the UNCRC. Why has the Government come down on the side of moving forward with some of the principles that underlie the UNCRC without going the full way and incorporating the whole convention?

The whole premise of the bill is to ensure that we make a practical difference to children’s lives. The approach that we have taken is to ensure that rights are made real for children and that there is tangible recognition that a child’s rights are important in the policy decisions that we take. That has been the premise. We believe that the balance that we have struck in the bill achieves that without getting caught up in legal wrangling. This is about making rights real.

The approach that is taken in the bill sits better with Scots law. I refer again to what Professor Kenneth Norrie said. He said:

“to incorporate the convention into the domestic legal system of Scotland would be bad policy, bad practice and bad law.”—[Official Report, Education and Culture Committee, 3 September 2013; c 2682.]

We want to ensure that this is a good move that makes rights real for children across Scotland and we believe that the bill strikes the right balance in that respect.

09:45

I have a final question before I open it up to members. You will have seen evidence that we have received about the situation in Wales, where ministers are under a duty to pay “due regard” to the UNCRC. Why did the Scottish Government change the duty from “due regard” to “keep under consideration”?

We have never had a duty to pay due regard to an international treaty. As I said at the start, our policy has not changed; we are committed to introducing legislation that requires a systematic consideration of children’s rights, which is what our initial proposals provided for and what the bill delivers.

But was the phrase “due regard” not mentioned in the consultation?

Absolutely, but we want to ensure that children’s rights are real and think that the approach in the bill strikes the right balance. Moreover, there was no consensus about the approach that was set out in the consultation process. What we have now is a bill that makes children’s rights real without our getting caught up in legal wranglings and uncertainty about how the courts might interpret that due regard duty.

I want to pursue this a little bit further. What is the difference between “due regard” and “keep under consideration”? The committee has received evidence from witnesses that a duty to pay due regard to something is stronger than a duty to keep it under consideration. Do you accept that? If not—and I presume that you do not—can you explain why?

I will ask Gordon McNicoll to comment on the more legal aspects.

There is an interesting question about what a requirement to have due regard to anything is. For example, how much regard do you have to pay to something? In the bill, the Government has set out exactly what it wants itself, its ministers and other public authorities to do. One might argue that a requirement to pay due regard to an international legal obligation means that you must comply with it, but is that actually what we want to do? The Government’s view is that it is important not to get hung up on particular words but to set out in the bill the exact scope of the duty that we want to create for ministers and other public authorities.

Children’s organisations have expressed concern that the bill does not do enough to ensure that public bodies will help to strengthen children’s rights. What action is the Scottish Government prepared to take to strengthen the duty on public bodies in the bill with regard to children’s rights?

We have a commitment to raise awareness across the public bodies and there will also be reporting to ensure that we understand where they are on children’s rights.

A number of questions have been raised about children’s rights impact assessments. What commitment will the Scottish Government give that future legislation impacting on children and young people and their families will be subject to such an assessment?

I am sorry—I did not catch the question.

There was concern about children’s rights impact assessments—

With regard to subsequent pieces of legislation?

Yes. Will the Government consider carrying out such assessments for future legislation?

We are developing a tool for a children’s rights impact assessment to enable us to understand how subsequent legislation might impact on children’s rights.

I have a few questions about the bill’s information-sharing provisions. My understanding is that we are moving from the kind of information that can be shared without consent, and I wonder whether you can explain how the bill changes the type of information that is shared and why such a move is necessary.

Good practice dictates that one should always seek the consent of the parent and, where appropriate, the child, but recent advice from the information commissioner clarified that sharing without consent information about concerns of a risk to a child’s wellbeing that might lead to harm does not breach the Data Protection Act 1998, provided that the sharing is proportionate and considered. That is the key phrase—it is a matter of ensuring that that professional judgment is proportionate and considered. The commissioner has already provided clarity that, where there is a risk of harm, information can be shared, but it is always good practice to seek consent from the parent and, where appropriate, from the child, too.

My understanding is that there is a difference between risk of harm and risk to wellbeing.

Yes. The whole premise of the bill is about early intervention. When there are concerns about a child’s wellbeing, the information should be proportionately shared, and at an appropriate time. Those are the trigger points, and a professional would be able to make a judgment about the appropriateness of sharing the information.

Is there not a danger that some individual information holders, such as teachers or health visitors, will have to decide on their own whether sharing information about wellbeing would breach ECHR article 8?

There is a lot of room for ensuring clarity in the guidance that we will produce to accompany the bill so as to enable and empower professionals to make the appropriate judgment on the information that they share. Aside from the bill, the information commissioner’s letter provided useful clarity that will empower professionals to make the correct judgment. However, that needs to be strengthened and made robust in the guidance accompanying the bill, recognising the issues and concerns that have been raised with the committee. We will work with stakeholders to develop that guidance.

Bill Alexander’s evidence to you indicated that, before GIRFEC, there was “a scatter-gun approach” to sharing some information, but the approach under the bill allows that to be done in a much better way—in a much more systematic and coherent way—so that the appropriate services are provided to the child for their long-term wellbeing.

When will we see the guidance?

The guidance will be developed alongside the bill. I ask Phil Raines to elaborate on that.

Quite a lot of work has been done by the responsible teams in the Scottish Government to develop the guidance in consultation with a wide range of stakeholders. A lot of that has been done through the GIRFEC programme board, which you are probably aware of. The board has general oversight for the development of the guidance. My understanding is that the guidance has now reached the draft stage, and I think that consultation will begin over the coming months. The intention is for the guidance and the whole range of duties with respect to GIRFEC to be well in place before the commencement of any provisions.

LGBT Youth Scotland raised the specific concern that young people’s privacy could be compromised by information sharing. Perhaps teachers sharing information—with the best of intentions—about a young person’s sexuality would breach that person’s privacy. Can you give any reassurance to LGBT Youth Scotland that the privacy of young people will be protected?

The whole premise of the bill is to work with the whole child and to ensure that best practice is adhered to. That involves consulting and speaking with the child. I am absolutely able to give that confirmation, and I can work with those groups as we develop guidance in the course of the bill’s progression.

Apologies for my delayed arrival, which was due to flight problems.

I wish to follow up the concerns that Joan McAlpine has raised. Earlier, minister, you prayed in aid Professor Norrie in relation to the incorporation of the UNCRC. The professor’s evidence to the committee was equally lurid in relation to sections 26 and 27, and he encouraged us to remove section 27 entirely, as that would serve the public very well.

I would not necessarily go that far, but we have now had evidence from a range of witnesses who have expressed concerns about the breadth of the provisions in section 27 in respect of how far they go on information sharing and the absence of consent for that information sharing in areas where the issue is wellbeing as opposed to welfare. Are you prepared to look at that again?

We are happy to look at the evidence that the committee has received and that has been presented in the evidence sessions on the bill. We are absolutely happy to listen to people such as Ken Norrie, who has a huge wealth of knowledge on the issues that we are considering.

Do you accept Ken Norrie’s assessment that, at the moment, section 27 is potentially too open-ended with regard to how people who are exercising their professional judgment may come to the right decisions? Is the way that the section is phrased at the moment too open and vague—

As I say, we want to make the bill the best that it can be, so we need to listen to the evidence that you have received. No doubt, the committee’s stage 1 report will enable us to ensure that the bill is the best that it can be. People such as Ken Norrie, who have given of their time and knowledge to enable you to prepare that report, are well worth listening to and we give you a commitment that we will look at the evidence in detail.

I want to follow up Liam McArthur’s line of questioning. I quote Ken Macdonald, the assistant commissioner for Scotland and Northern Ireland at the Information Commissioner’s Office, in the light of Professor Norrie’s comments, which we have just been discussing. In his written supplementary evidence, talking about section 27, he states:

“As written, the section would override all statutory bars on the disclosure of information, many of which have been enacted in order to give children protection and it may also have implications for the independence of the judiciary where court orders prohibit disclosure. We would therefore urge that the content of this section is reconsidered.”

That is quite strong language from the assistant commissioner for Scotland and Northern Ireland. What are the Government’s views on both Professor Norrie’s comments and Ken Macdonald’s supplementary evidence to the committee?

Gordon McNicoll can respond to those questions.

It is important to remember, as a starting point in addressing the question in more detail, that the provision—like any other provision—must be read in accordance with the ECHR. There can be no question of the provision overriding the ECHR; neither can it override data protection, as that would be outwith competence. As for any legislation that is passed by the Scottish Parliament, any powers conferred must be read as being constrained by the ECHR and reserved legislation such as the Data Protection Act 1998. Therefore, although in principle the power to disclose information appears relatively wide, it must be read in that context. In the Government’s view, read in that way, it is not as broad as might be suggested.

I accept what you say. I am, therefore, slightly surprised that the assistant commissioner wrote to us as he did. He says that the issue has been reconsidered in the light of Professor Norrie’s comments. I will not read out his supplementary evidence again, but he takes a very different view from the one that you have just stated. Perhaps we could get some clarity on the matter from the Government in writing, if that would be helpful to the committee. Clearly, there is a difference of opinion.

Absolutely. We can get back to you on anything in writing. However, I make the point again that we are listening to the evidence that the committee is receiving and will use that evidence to make the bill the best that it can be.

It would help the committee in writing its stage 1 report to have that clarity.

Absolutely. I give that commitment. I am just making the point that we are listening to what you are being told and taking any issues seriously.

Let us move on briefly to section 26. Professor Norrie told the committee that there are

“huge ambiguities in the drafting of the bill, which, if passed in its current form, will lead only to lots and lots of litigation.”—[Official Report, Education and Culture Committee, 3 September 2013; c 2691.]

He went on to talk about the section in not the most shining light. His concern with section 26, among others, seems to relate particularly to section 26(1), which uses the phrase “must provide”; section 26(2)(a), which uses the phrase “might be relevant”; and section 26(2)(b), which uses the phrase “ought to be provided”. He said that he had some difficulty with the clarity of those phrases. What is the Government’s view of Professor Norrie’s evidence to the committee on section 26?

We will listen to the points that he raises but the bill is drafted to enable the appropriate, proportionate and timely information-sharing to happen.

10:00

I accept that and I do not want to labour this point but Professor Norrie, some other witnesses and some who provided written evidence were concerned about the lack of clarity for those who will have to share information around the phrases, “must provide”, “might be relevant” and “ought to be provided”.

I would like clarity on whether there is room for improvement here or whether the Government’s view is that the provision is correct as it is drafted. Will the individuals who will have to take the practical decision on the ground about what they should or should not share be clear about what those three phrases mean?

It is worth while remembering that guidance will be developed in consultation with the folk who know best, who will be the people who work on the ground, to ensure that, alongside the bill, the guidance is robust enough to empower the practitioners and professionals who make these decisions.

There is always room to study the bill and, if there are real concerns, again we can listen to the comments that the committee has received. Along with that, we will have guidance to enable practitioners and professionals to make the best judgments in the interests of the child with whom they are dealing.

Thank you very much for that.

I would like to ask further questions about the named person. The matter has been covered and you, minister, have been quite robust in stating that you do not see any tensions between the named person and the rights and responsibilities of the parents as set out in the Children (Scotland) Act 1995. Where disputes between parents, young people and the named person arise about what is best for a child or young person, what method will be used to resolve those conflicts?

As I say, there is often a pendulum that swings between the parent and the child. The aim is to make sure that the best interests of the child and family are at the heart of the decisions taken. We want to make sure that the process is absolutely right.

Would you like to come in on that, Phil?

There are three ways to think about the named person. First, the premise of the named person is the idea of establishing a good, trusted relationship between the individual and someone whom, based on the evidence that you have heard, the family know and see reasonably regularly. The structure is predicated on the idea that there are good communications and relationships, but that will not work in all circumstances. There exist mechanisms to raise grievances and challenge issues that arise from many of the roles that these people provide. We have talked about the named person being a teacher, health visitor or what have you.

At the moment we are considering whether it makes sense to use those mechanisms or whether there is a need for a more bespoke mechanism. We are in listening mode and are conscious that we do not want to clutter the landscape further with regard to how people can challenge the decisions or conduct of those in this kind of role in the public service.

Thank you. During the consultation there was a considerable amount of support: 72 per cent of respondents were in favour of having a named person role in the bill. The bill states that the named person would be responsible for support and advice to parents. How do you envisage that that will happen? What kind of support and advice will be available? What implications will that have for the capacity and the role of the named person at any particular time?

The support and advice to parents could take several different forms, for instance for the health visitor it could be about toilet training or it could be as simple as signposting to an appropriate service within the local area. In school, it could be about identifying whether there is a need for assistance with homework. It could be as light touch as that.

Of course, where there is greater need there will be a real bonus in having the named person to co-ordinate services appropriately and enable the child at a timely moment to get the best support that they can get in a co-ordinated way. There are a number of ways in which the named person can help a child and can direct and advise a family as appropriate, if the family decides that they need to seek that advice and help.

One issue raised with us is the anxiety that has developed because of a confusion between the roles of the lead professional, who is traditionally a social worker, and the named person. Do you agree that the role of the named person must be clearly defined and differentiated from that of the lead professional?

The named person will have a statutory footing in the bill. There will also be a need to develop robust guidance to go along with the bill, to give greater clarity to professionals working with children and families across the country.

Can I follow up on something that struck me as you were answering that question about the difference between a lead professional and a named person? Who ultimately is responsible when things go wrong? Does the named person have some sort of legal responsibility?

No, it will be the service provider. We need to ensure that the named person is supported, but it is the department, health board or local authority that they come from that is responsible. The named person is not to be held legally to account for things that go wrong, but we want to ensure that the named person is empowered to make decisions at an early stage, to avoid things going wrong in the first place. That is the whole point of preventative spending and of early and effective intervention.

Absolutely. I could not agree more and I support that philosophy and direction of travel in policy, but I am trying to clarify for those who might be in that position what their level of responsibility is. If they fail, for whatever reason, to share vital information, what level of responsibility does that named person have? We are adding a level of responsibility to the role of the named person, whether they be a headteacher or a health visitor; that is the purpose at the core of the proposal. Therefore, it seems to follow logically that they must have some sort of responsibility for the actions that they take or do not take.

That is still true regardless of the bill. People have a duty of care for the child that they are looking out for. As you will have seen from the tragic incidents in other parts of the United Kingdom, when information is not shared stock must be taken of the situation to figure out what to do and how to improve systems. The named person provides a framework for sharing information in a much more co-ordinated and appropriate way, to enable the right services to intervene at the appropriate time to stop and avoid the sort of horrible things that we have seen recently happening to children.

Phil Raines will answer the convener’s specific point about responsibility lying squarely with the named person.

I might distinguish it in two ways. The bill makes it clear that the legal responsibility for the named person duties lies with what we call the named person service provider. Therefore, for teachers or what have you in respect of kids in schools, it would lie with the local authority. In the case of health visitors, it would lie with the health service. So it is clear that it is a corporate responsibility.

I suspect that what you are getting at, convener, is more to do with the sense of responsibility for day-to-day business and conduct, and that must be thought of in terms of the existing mechanisms for setting standards of professional conduct and—linking back to an earlier point—for grievance or redress.

Building on what the minister said, I think that one of the ways to think about it is to say that there is already a sense of responsibility in place. Many individuals are carrying out these functions already, and they are managed within the existing architecture in terms of how their roles are defined and how they are held to account. We are building on good practice and on the architecture that is already out there.

The committee should remember that Bill Alexander said:

“Teachers ... and midwives tell me that it does not change what they do but it changes how they are regarded ... they feel that it has empowered them.”—[Official Report, Education and Culture Committee, 24 September 2013; c 2861-2.]

That is an important message as well.

That is helpful. Thank you, minister.

The Finance Committee produced its report on the financial memorandum on the bill last week. It begins by saying that there are significant concerns about the robustness of the methodology and the forecasting that have been used for the financial memorandum. Will you comment on that quite severe criticism, minister?

In developing any financial memorandum, we have to engage with the experts and base the memorandum on the research and the discussions that we have had. That is the way in which the financial memorandum was produced—in close dialogue with people who know best.

Will you provide the committee with information on the methodology for compiling the statistics? Why do you consider that what the Government has produced is a satisfactory basis for estimating the financial implications of the bill?

As I said, the financial memorandum was drafted after close dialogue and close working with the people who know best—the experts around the country who work in the day-to-day lives of children. The financial memorandum is robust and it is there for the committees to scrutinise.

There are lots of different elements to the bill, so it would be interesting to know which areas concern you in particular. Do you have an issue around one element and the methodology behind it? If so, it would be interesting to know what that is in specific terms.

Yes, I do. At last week’s meeting of the Finance Committee, there were questions from John Mason, Michael McMahon, Kenny Gibson, Malcolm Chisholm and Gavin Brown, all of whom asked for specific figures to support certain policies. They said, to varying degrees, that what the Scottish Government has put forward is based on best estimates and on committee evidence that is not particularly robust. They said that, because figures are patchy in some areas and non-existent in others, it is difficult for the Finance Committee to understand what the Government believes are the statistics that make the bill financially viable.

Are you asking me to tell you the methodology that we used for a particular part of the bill?

At the Finance Committee, the bill team was repeatedly asked to come up with the figures that would support the Government’s implementation of the policy, but the information appeared not to be forthcoming. I wonder whether you can give those to us now.

On early learning and childcare, for example, there were discussions with the Convention of Scottish Local Authorities to agree the appropriate figures in the financial memorandum, which we believe will enable us to increase provision to 600 hours.

I am sorry, minister, but on some aspects of this, I really want to get at what the Finance Committee has asked for. It asked for specific evidence on training and costs. It is clear that—

Training and costs. You talked about the bill in general, but there are many different elements to it, and many different discussions have been held with many different stakeholders to enable us to come up with the best financial memorandum that we can have. I gave as an example the discussions that we had to deliver 600 hours. If you are asking about training—

The financial memorandum looks at the costs that underpin the bill. It is clear that Lothian NHS Board, the Royal College of Nursing and the City of Edinburgh Council feel that the Scottish Government is not providing sufficient money to support the ambitions of the bill. Do you agree with their concerns?

I take it that you are homing in on the GIRFEC side of the bill as opposed to any other part of it.

Well, in part, but there are other issues as well.

Okay. I just wanted to find out which part of the bill you want to examine. Again, we liaised closely with the relevant people to ensure that the financial memorandum that we provided to accompany the bill is as good as it can be. We take on board all the different views and opinions that are going around about the financial memorandum, but we believe that we have produced the right costings to cope adequately with the implementation of the GIRFEC provisions in the bill.

Would Phil Raines like to comment further?

10:15

I will comment specifically on training issues. There is clearly a different answer for different sets of costs. I am happy to provide the costs for any specific issues, but with respect to training—Liz Smith mentioned health—as the minister said, the people whom we consulted are the people who have the most experience of designing a training course, implementing it and establishing how it may develop over time.

Specific groups that we spoke to about health training include a group of managers designated by each health board who have dedicated responsibility for implementing GIRFEC in their own health board. As you will be aware, GIRFEC is not something new for health boards; it has been around as a result of chief executive letter 29 and Hall 4—“Health for All Children 4”. There is therefore quite a lot of experience of thinking about how this might roll out. We also spoke to the children, young people and families nursing advisory group. It is quite difficult to remember all these complicated acronyms and names.

There are a different set of issues with regard to local authorities, some of which perhaps have made the same criticisms about training. As you would expect, again we spoke to the people who have quite a lot of experience of putting these things into practice rather than considering the issues in the abstract. We spoke to Highland Council, the City of Edinburgh Council, South Ayrshire Council, East Lothian Council, Midlothian Council, Falkirk Council and Angus Council, which are at different stages of implementing GIRFEC.

You will notice from the evidence submitted to the committee by councils who are well advanced in implementing GIRFEC, not least the City of Edinburgh Council and South Ayrshire Council, that they have no problems with the assumptions that have been made about GIRFEC costs.

Forgive me for saying so, but the Finance Committee has a problem and so do some other witnesses, who say that they believe that the money that is being put forward for GIRFEC may support it in the first instance but is not nearly enough to support it on an on-going basis. Several submissions make the same comment.

Secondly, when it comes to the provision of health visitors, the RCN has made it clear that to implement the named person provision in full would require another 450 health visitors across Scotland. It claims that there is not sufficient money to fund that. Are you absolutely confident that the research that you have done is sufficiently robust to ensure that the bill has the right amount of money behind it to support the costs?

We have been very clear about what we believe is required of health boards to fulfil the GIRFEC duties. We have worked out the additional hours required. Phil Raines has talked about the discussions that we have had with expert groups who have expertise and knowledge of implementing GIRFEC. It is about ensuring that it is not an additional thing that people and services do but is hard-wired into the daily practice of the services, which is how we expect GIRFEC to be carried out.

Okay, minister. Why then was the Finance Committee—which has members from all parties—so strong in its criticism of the financial memorandum?

A number of different people provided evidence to the Finance Committee and it has reflected that in its report. As I say, we will listen to and look at the evidence that has been provided to you as the lead committee and ensure that, at the end of the process, we have a bill of which we can all be proud. As Phil Raines said, our approach to the financial memorandum has been to engage with the people who know best and to reflect on what they have told us in order to develop a robust methodology.

I will finish on this point: do you believe that the bill has sufficient money behind it or will it need to have more behind it?

We have a financial memorandum that we believe sets out the way in which we can deliver the bill’s aspirations.

Clare Adamson has a question.

Sorry, convener—I was listening to the minister and have lost my train of thought.

Do you want me to come back to you?

Yes, please. Thank you.

Good morning. We are asking questions about the financial memorandum. The process that you have gone through is basically the same process that would be gone through with any bill. You work with partner organisations to ensure that they are given the opportunity to provide some input to the bill and to work out how to make the bill work out there in the real world.

Absolutely. The financial memorandum takes the same approach that is taken by any financial memorandum. It is about ensuring that we engage with the experts who know best so that we get the right information to develop something that will work alongside a bill that is being developed in policy terms.

The Finance Committee’s report picked up on savings that are planned through the implementation of GIRFEC. Will you give us a bit more information about the evidence that the local authorities have given on those savings?

There has been real evidence from the Highland pathfinder of not only cost savings, but savings in time in relation to meetings and all the different things that can perhaps impede the getting it right for every child service. Even after a short period of time, clear benefits have been generated from the GIRFEC approach. There is a lot of evidence to show that it has worked with respect to inappropriate referrals to the children’s panel and such like, and that local authorities have had real benefits and savings.

Okay. There has also been evidence that questions whether the front-loaded additional moneys for year one are sufficient. Does the evidence from the roll-out in the Highland area suggest that those moneys will be enough to get the approach embedded in the normal working practices and job descriptions of the people involved so that it becomes part of their professional development?

Yes. The evidence that the committee received from Bill Alexander was quite compelling. We are not starting from a static standpoint. A lot of work has been done through the GIRFEC implementation board and by the Government to finance greater awareness of the GIRFEC approach and its implementation. Now that we have the accompanying financial memorandum, we will have the transitional training and thereafter professionals will have that as part of their on-going training and continuing professional development. Discussions with the City of Edinburgh Council and South Ayrshire Council about the roll-out of that have been useful in helping us to develop the financial memorandum and the approach that we have outlined in the bill.

I want to follow up on the issue of resources. You are saying that you believe that there are adequate resources in the financial memorandum. However, given the concerns that the Finance Committee has raised and other concerns that the committee has heard that relate to resources, would you consider reviewing the associated costs in the financial memorandum? Concerns have been raised about the named person element of the bill and training, administration and support issues.

We always monitor what is going on with a bill. It is important for members to realise that there is continual engagement between health boards and the Cabinet Secretary for Health and Wellbeing, for instance on ensuring that people have the capacity to deliver the aspirations that we have set out in the bill.

I would like to follow up on one or two questions. You have talked about the money that is required to deal with some of the issues, such as the costs of training. I want to ask about the profile of the additional hours. You have mentioned the Highland area several times. Highland Council has talked about “green shoots”, which suggests that it is still early days in relation to financial savings. Given the current profile of the additional hours, the assumption in the financial memorandum about reduced training hours after the first year in relation to the named person provisions certainly seemed to a number of people who have spoken and written to us to be overly optimistic. What is your response to that?

I have outlined some of the benefits that are already being experienced over quite a short period of time, which have been evidenced in the research on the Highland pathfinder. We have also done our own bespoke economic modelling. Every pound that is invested in the early years saves £9 in cures. A number of bits of research show us that we will see financial benefits after the initial investment in the early years has been made.

I ask Phil Raines to comment on the specific points that the convener has raised.

There are different ways of thinking about this, depending on whether you are thinking more about the local authority side or the health side. It might be helpful to start with the health side. It is noticeable that there is an on-going cost associated with the role of health in implementing the GIRFEC provisions in the bill. We recognise that if we really want to make a difference in a child’s life we must do so in the first couple of years of their life. It is assumed that that kind of major impact and the fact that it will be there year on year going forward will be reflected in their lives later. We therefore expect a tapering effect. We expect that, as the GIRFEC role beds down universally, there will be efficiencies and economies of scale from people getting better at doing their jobs. For example, midwives will get better at doing pre-birth screening, conferencing and handing over to health visitors, who will get very good at being able to do things in the first year of a child’s life. We therefore expect that, in the second, third and fourth years of the child’s life, there will be less need to support families—in particular, some of the crisis families.

When responsibility is handed over to local authorities in their role as the named person for education, we expect the early work to bear fruit and perhaps kick in quite early. The additional work that is done in the first year of a child’s life should start to bear fruit in subsequent years.

That is interesting. Obviously, we all hope that early intervention will have a knock-on effect. My top priority would not be financial savings in particular; it would be the impact on the individual’s life. I am sure that we share that view.

I want to drill down a bit into how early on financial savings can be achieved from GIRFEC. Can you give us specific examples of the savings that we are talking about? Are we talking about bureaucratic savings in relation to the amount of paperwork? Are we talking about the expectation that we will not have to intervene in the child’s life to the same extent in future years? How exactly will the savings be made? Will they be financial savings, time savings, or both? Are we really confident that, having made interventions in year one, we will almost immediately get savings in years two and three? That is pretty quick.

Yes. The benefits for families should be greater clarity about which professionals to contact and earlier support to prevent problems from getting worse. There should therefore be a cost saving in terms of meetings and bureaucracy, and professionals should benefit because they should be able to free up more of their time to work with more vulnerable families. Therefore, by implementing GIRFEC, there should be clear benefits for families as well as savings in costs and professionals’ time. For example, family nurse partnerships are being rolled out across the country for first-time teenage mothers and some of the evidence from that has shown that the mothers do not have subsequent children quickly after their first child. That is a quick saving, and the mothers feel empowered and are much better at being a parent. There are therefore real savings for the child and their mother. I hope that that information is helpful.

Before we move on to another section of the bill, I have a final question, which is on health visitors. We have touched on the issue already, but can you provide the committee with some detail around the workforce planning that the Scottish Government is undertaking on health visitors? It has come up repeatedly in evidence that the bill and its various accompanying documents do not provide for sufficient health visitor cover for successful implementation of the bill’s provisions—the Government might agree or disagree with that evidence. What workforce planning is being undertaken to ensure that we have the correct number of health visitors? Never mind midwives and others; let us focus on health visitors for a moment.

In a lot of the work that we do, we inform health boards about their responsibilities with regard to workforce planning. Nurse directors and chief executives of national health service boards will make the appropriate provision in light of the fact that there is a new bill on the landscape. There will also be regular discussions with the cabinet secretary through his regular contact with NHS boards.

Irrespective of the bill and the roll-out of family nurse partnerships, there has been comment to this committee and in the press that we have an insufficient number of health visitors, on whom there is already pressure. In what way will the bill and the roll-out of family nurse partnerships impact on individual health visitors? Are we sure that we have sufficient numbers to achieve the ends that we all want?

10:30

I go back to what Bill Alexander said. Health visitors in Highland feel empowered and much more highly regarded for their professional work. We are already seeing growth in the profession. There are other issues. The ratio of health visitors to the children they deal with is quite healthy in Scotland. Phil Raines might like to comment on that.

Some specific things are going on. The financial memorandum sets out a cost but it does not set out the funding required. As you would expect, it does not say how the work that will be generated through the bill will be taken forward by individual health boards. That is something that health boards have to reflect on and bring into discussion as part of the natural process of budget negotiations.

It is important to recognise that the bill sits among a number of other issues with regard to health visitors, their workload and our expectations of them. A lot of work has been going on with the children, young people and families nursing advisory group, which I mentioned earlier, to develop tools that will enable health boards, given all the possible demands in future with regard to health visitors, to assess much more quickly what demand might look like and how it might translate into the numbers that are needed. As you would expect, that work will feed into future budget negotiations. Clearly, given the commencement of the duties that we are talking about, those budgets are not envisaged at the moment.

Workforce planning is going on. To be honest, health boards have been well aware of the need to do that. Ever since Hall 4 and CEL 29, they have known that GIRFEC was coming and they have been putting mechanisms in place to think about what GIRFEC might look like locally.

I would like to ask about early education and care. The minister talked about the 600 hours of nursery care that the Government is offering, which will give parents greater flexibility. In evidence to the committee, Lori Summers said that childcare

“needs to be more flexible so that a place is available not just in the morning or afternoon”.—[Official Report, Education and Culture Committee, 10 September 2013; c 2751.]

Do you believe that what you have put in place offers that flexibility to people such as Lori Summers?

The reason for increasing the hours is to help families who are struggling to balance work and life. The flexibility should help families, and they will be able to have an input in the way in which the local authority configures services, which will enable parents to enter work or training. That is why that flexibility and the way in which the additional hours are delivered will be crucial. This is an important part of the bill. It is not just about adding on extra hours; it is about changing the way in which services are delivered.

I want to ask another question, just so that we have your answer on the record. Obviously, you will have to work with partner organisations to deliver on this part of the bill. You have had conversations with COSLA. Are things at a reasonable stage so that it will be delivered?

Yes, absolutely. There has been close working with COSLA to develop the figures.

Aside from work on the bill, there is the early years task force, of which COSLA is part and parcel. In fact, COSLA co-chairs it with me and the chief medical officer. An enormous amount of work has been done on the delivery of early learning and childcare and to develop the financial memorandum. This is about close working. We have to recognise that COSLA is a big partner in delivering the aspiration to increase both hours and flexibility.

Another point that has been made is that the scheme will offer children more access to qualified teachers. At the same time, not just qualified teachers will be involved. Can you explain some of that thinking?

The other reason for making sure that we deliver this in a good way is that we recognise that it has to be a quality offering to children during their earliest years. Teachers are part of the workforce, but those who have a BA in childhood practice and nursery managers are also a crucial part of the mix of professionals who work with children. A lot of work is being done to make sure that those professionals have the appropriate skills to allow us to be confident that children are being offered a quality service.

Last year, Education Scotland published a report that showed the positive benefits of upskilling the workforce. It also showed how good progress is being made with the delivery of something that will be good for the development of three and four-year-olds.

You are saying that, regardless of the make-up of nursery staff, the quality of the service that is being delivered on the ground is the most important thing.

Absolutely. We have talked about how we want to deliver the service in a flexible way for families, but what is being provided has to be of a quality that will respond to the real needs of children of that age. Last year’s Education Scotland report was useful because it showed that the work that has been on-going in Scotland for a number of years to make sure that the workforce is appropriately trained is paying dividends. It also showed that there is a real need for a mix of abilities within the workforce—a mix of professionals—so that we can have confidence that we are delivering a quality offering for three and four-year-olds, as well as being flexible and meeting the needs of parents and carers.

I want to follow up the point about quality. As Liz Smith and Neil Bibby have indicated, the Finance Committee’s assessment of the financial memorandum raises some very serious questions. I cannot remember seeing a Finance Committee report that raised quite so many serious concerns about a bill.

One of those concerns is about funding for partner providers, which I presume is linked to the issue of the quality of provision to which George Adam referred. In its evidence to the Finance Committee and to this committee, the National Day Nurseries Association highlighted fairly significant discrepancies in the rates that are paid. The average is £3.28 per child per hour, but it goes from £4.09 per hour at the top end to £2.72 per hour—which Glasgow pays—at the low end. Given that the uprating process is based on assumptions about payments made, what is the status of those presumed rates? Does more need to be done to ensure that adequate payments are being made to allow for provision of the quality that we want to see?

It is up to local authorities to decide fair and sustainable settlements with partner providers. The budget that is associated with the bill covers an uplift for the additional 125 hours that local authorities will pay partner providers.

But you are making assumptions about the funding that is required, and there is an assumed rationale behind the figures on payments to partner providers. Ought there to be more consistency in what is paid? There might not need to be payment at a specific rate, but there should not be discrepancies between payments of £4.09 per child per hour and £2.72 per child per hour.

It is for local authorities to decide with their partner providers what the settlement will look like. From my point of view, the settlement must be fair and sustainable, and it is in the best interests of the child for the local authority to secure good-quality provision. The financial memorandum covers the uplift for the additional 125 hours.

Another issue that has been flagged up with the Finance Committee and which I think raises concerns about the assumptions made in the financial memorandum is the provision for looked-after two-year-olds.

Last month, you announced that funding for that provision was being increased from £1.1 million to £4.5 million. Although that is welcome as it addresses concerns that had been raised with you directly about the costs of providing for this group, a witness told the Finance Committee:

“If one element of costs can go up fourfold after they have been thought about more, can other elements of costs do the same? If they could, the shortfall would be significant.”—[Official Report, Finance Committee, 18 September 2013; c 2956.]

Can you explain the thinking or the process that resulted in a fourfold increase in the funding for this element of the bill?

I set out our reasons for reaching that decision in my letter to the Finance Committee. We are integrating money as well as providing additional new money, which would ordinarily be recognised as a good thing.

I do not dispute that—and it is better that it is done now than at some point hence. However, as you will understand, it has raised concerns about the adequacy of the assumptions that were made when the bill and its financial memorandum were put together. You have indicated that the £3.4 million increase is additional funding rather than a realignment of funding through the early years change fund. Is that correct?

Again, I would have thought people would welcome our putting in additional money to ensure that we can deliver for our looked-after two-year-olds something that we are proud of. I made it clear in my letter to the Finance Committee that it is to be read alongside the financial memorandum, and we have developed many of these figures in conjunction with COSLA.

That is fine.

Mr Raines suggested that to make a major impact you need to intervene in the first couple of years of a child’s life. Clearly that is being addressed with regard to looked-after two-year-olds, but it will be no secret to the minister that, on the basis of the evidence that we have received, I believe that we ought to go further—

This is Liam’s party piece.

As opposed to your party piece, George. Unlike you, I am trying to hold the Government to account.

Members: Oh!

Save the Children has said that it supports

“an extension to ... all two-year-olds, starting with children living in poverty”

as much as anything

“to tackle inequalities in the early years”.—[Official Report, Education and Culture Committee, 10 September 2013; c 2752.]

That is in recognition of the fact that many two-year-olds from better-off backgrounds already enjoy early education and nursery provision.

Are you prepared to concede any ground in this area? I ask that not least given Claire Telfer’s subsequent comment:

“we support priority being given to children living in poverty. We want to see that taken forward immediately, looking at how and whether that is possible ... in this session of Parliament”.—[Official Report, Education and Culture Committee, 10 September 2013; c 2755.]

As I have said to George Adam, I am keen to deliver something with quality as its hallmark to the children whom we are dealing with—in other words, three and four-year-olds and looked-after two-year-olds, who are the most vulnerable two-year-olds in society—and to ensure that we can do so in a sustainable and manageable way. I am not prepared to announce something that we cannot deliver on later, as has been the case in other parts of the UK, where announcements have been made, only for the sectors then to say that they cannot deliver on them and that they are beyond capacity.

To be honest and with all due respect, minister, I think that you are guilty of doing that. You published a bill and a financial memorandum in which the funding for provision to looked-after two-year-olds was a quarter of what was actually required.

We are putting forward a bill with a financial memorandum. I have announced extra money to go into that, which COSLA is content with—we have worked in conjunction with COSLA. In the bill, I have announced a system of childcare that will deliver for three and four-year-olds, which is not contrary to the capacity that we have in the country and which will ensure that, at the end of the bill, 600 hours will be delivered in a quality way to three and four-year-olds and looked-after two-year-olds.

There is provision in the bill to extend that coverage at a later date, if we need to, but this is a first step in transforming childcare. Making sure that we make that step in a sustainable way is important, because we do not want to say something that we cannot deliver on when the bill is enacted.

This is your last question, Liam.

I have to say that on the basis that the announcement was made without the adequate funding—

No; we have made this financial memorandum—

I am going to interrupt you, minister. Liam McArthur can ask his question, and then you can come back briefly.

Okay. I apologise.

10:45

I appreciate that any bill of this nature is likely to introduce something in a phased way. Save the Children is telling us that part of the phased introduction of early learning and childcare can be done by extending it to two-year-olds living in poverty over the course of this parliamentary session. Therefore, I am trying to ascertain whether you are in any way open—as you demonstrated or indicated that you are in relation to other parts of the bill—to listening to those arguments and looking to review whether the bill in its current form can be extended to include such support.

It can be extended with secondary legislation.

So you are not prepared to do that as part—

What I am doing is making sure that what we deliver for three and four-year-olds and looked-after two-year-olds is done in a manageable way. What I do not want is to see headlines in the paper like we have seen in other parts of the UK, where the sector has said that the capacity is not there. We have seen arguments over ratios and uncertainty there. I am not prepared to allow that when we are delivering childcare for three and four-year-olds. We want it to be a quality offering, done in a manageable and sustainable way, and that is what we are achieving through the provisions in the bill and the funding that goes along with it.

Okay. In a country where the issues are higher—

I am sorry, Liam. I interrupted the minister and I am going to interrupt you. We will conclude it there and move on to the next area of questioning. We are running out of time, and I want to get through some important issues.

Good morning. Will the minister support the proposal by Who Cares? Scotland, Aberlour Child Care Trust and Barnardo’s Scotland to rename “aftercare” as “continuing care services” for the purpose of part 8? The bill seeks to align part 8 with part 7’s corporate parenting duties, which place a continued duty on corporate parents towards young care leavers to 26 years of age.

I have been listening with real interest to the discussions that you have had with the providers of the information that you have. I have looked with real interest at and valued the committee’s input in terms of looked-after children as well—particularly the issue of throughcare and aftercare, because that is crucial. We want to get things right, based on the needs of the child, and provide throughcare and aftercare at a point that is relevant to that child.

We can look at and discuss amendments at stage 2. We would welcome the committee’s views in its stage 1 report and will continue to take a real interest in the on-going discussions on that issue.

The minister will be aware that birth parents have a legal duty to care for their children up to the age of 18, even if that child leaves at the age of 16 and decides to return home for further support. Why does the corporate parent’s duty of care to looked-after children finish when those children turn 16?

As I said, we want to make sure that decisions taken about when a child leaves care are made in the child’s best interests and are sensitive to the child’s needs. It is not our policy to encourage young people to leave care before they are ready, and that is reflected in all our current regulations and guidance.

Would the minister agree therefore that part 8, as it is currently proposed, places an unnecessary responsibility on vulnerable young people to seek the help that they need? Do you think that it would be better for them to be consistently, routinely and appropriately assessed, rather than for them to have to seek out the help they need on an on-going basis?

The point at which a young person makes the transition into independent living is a time when they are very vulnerable and need to be supported. If they want that help, they can get it. We want to make sure that, when they make the transition to independence at that very vulnerable point in their lives, they have the necessary support that they want, to enable them to flourish.

Do you agree that they might need additional support to know what facilities and resources are available to them? Should it be up to them to go and find them? Should someone be looking out for them?

If there is a need for support at the point they transition to independence, that need should be met. There are provisions throughout the bill—in terms of the named person and other elements and areas of the bill—to make sure that that support is provided to the young person.

I am interested in the dialogue and discussions that the committee has been having with the likes of Who Cares? Scotland and others about how we can ensure that we get part 8 of the bill absolutely right. Far too often, we hear stories in which support has not always been there. We need to ensure that support is in place.

I am also interested in the discussions that the committee is having about support being provided until someone is 26 years old to ensure that the support that we have in place is adequate and allows the young folk in question to have outcomes that are no different from those of their peers who are not looked after.

The eligibility criteria are fundamental to that. The criteria for aftercare set the qualifying threshold for support as being in care on the day that the child can legally leave school. Do you agree that the qualifying threshold for aftercare support should recognise the impact of a child’s journey through the care system, regardless of when they cease to be looked after?

Yet again, I am sympathetic to some of the views that are coming through as the bill makes its way through Parliament. I stress my keen interest in the discussions that the committee has been having on that area, which we need to get right if we are to enable those young people who leave care to get the right support and to go on and have the outcomes that they deserve.

Liam McArthur has a brief supplementary question.

I echo the sentiments of Jayne Baxter, and I am grateful for the willingness that the minister has shown to take them on board.

I have a follow-up question on the role that local authorities have in, and the decisions that they take about, the care that is provided. Some concern has been expressed about the scope for appealing decisions by local authorities. It has been suggested that steps need to be taken to address that and that, as part of that, consideration should perhaps be given to advocacy support so that such cases can be prosecuted as effectively as possible. Are those areas in which work is being done, or would you be prepared to look at them at stages 2 and 3?

Work has been done on advocacy. During the summer, there was a consultation on it, which we will reflect on.

I go back to the point that we want to make the bill work. If there are gaps in the provisions that we have laid out, we will listen to what the committee has been told and to what it says in its report.

David Blair might like to comment on some of the specifics. Where did you suggest that there might be a gap?

In relation to how decisions that local authorities take might be appealed when there is a lack of provision or inadequate provision.

We have been working with Who Cares? Scotland on that issue in relation to care leavers in particular. We are trying to avoid creating more and more bureaucratic systems to compensate for the existing bureaucratic systems. The whole principle of the care-leaving provisions is about normalising the care experience for young people who leave care. One of the things that we are looking at—this is not Government policy; it is about the legitimate work that we are doing to help pin down exactly what is sought—is moving in the direction of putting more emphasis on the quality of the relationship between the social worker or the relevant person in the child’s life who makes a decision and the child or young person.

What that means is another question, which requires a bit more work. It would be preferable from the point of view of what we are trying to achieve with the bill if we could move to a system more like that, because that would replicate the sort of relationship that a child in a normal family has when they ask for something from a parent. That is what we are trying to get at. We are working with Who Cares? on some of the detail in advance of stage 2 to help put some meat on the bones so that we know how to scope the issue and react.

Thank you very much—that was helpful.

I want to ask a couple of questions about kinship care. Some kinship carers—particularly the kinship carers of looked-after children—have expressed concern that they might get a lower level of support if they were to obtain a kinship care order. What is the incentive for a kinship carer of a looked-after child to apply for one of the new kinship care orders?

The kinship care order is about providing an enhanced form of permanence in kinship care. It is also about recognising the best interests of the child and the fact that they are not always best served by having the formal looked-after status. The order would allow anyone making the transition from being formally looked after into an informal kinship care setting to receive support. That recognises that there might be issues in areas where the family needs support, but without the intrusive intervention of the state, which is what being formally looked after means.

If the child is moved from looked-after to non-looked-after status, the kinship carer may gain entitlement to welfare benefits such as child tax credit and child benefit. Can you clarify whether the value of those benefits would be deducted from any transitional financial allowance paid by the local authority?

The bill contains a right to transitional support, so the package of support that existed for the child and carer continues for a period once the child leaves care. There are details on page 28 of the policy memorandum.

As regards financial support, in general, carers of looked-after children are not eligible for child benefit or child tax credit. The local authority pays allowances. Informal carers, including those with a kinship care order, are generally eligible. The kinship care order should help to shift some of the burden to the benefits system.

So the benefits gained from the Department for Work and Pensions would be deducted from any transitional financial allowance paid by the local authority.

For an informal or formal carer?

If a child is moved from looked-after to non-looked-after status through the kinship care order, the carer would be entitled to benefits, as you have said. Can you clarify whether those benefits would be deducted from the transitional financial allowance paid by the local authority?

There should not be a problem with informal kinship carers interacting with the DWP. The issue is always around the formal kinship carer. David Blair has an example.

We did not design the measures to be complicated. I refer to paragraph 121 on page 28 of the policy memorandum. Where a kinship carer has petitioned for a kinship care order and the effect of it is that a child leaves care, the carer is not currently entitled to any on-going financial support.

Let us suppose, for instance, that a carer had an allowance of about £150 a week from a local authority while the child was looked after. Once the child leaves care, we would expect the carer, if they rely on benefits, to have a cleaner relationship with the benefits system. They would claim child benefit and child tax credit in the normal course of things, which would take them up to a certain level. We modelled a top-up payment from local authorities to ensure that there was parity while the carer received transitional support. That is what the measures are designed to do.

So the benefits would be deducted.

The carers would not be entitled to the same allowance under the kinship care order. It would not make any sense to squeeze out of the benefits system people who would have an underlying entitlement.

For absolute clarity, if things were not done in the way that you have suggested, it would possibly mean that moving from looked-after status to non-looked-after status would result in an increase in payments.

Yes.

And that would be rather perverse.

Yes.

The effect is to level out the payments. That is the purpose.

Yes.

That is helpful. Thank you.

Part 5 of the bill allows for a child’s plan, should a child require targeted intervention. A number of submissions have been made to the committee, expressing concern about how that might work. In particular, there is concern about how a child’s plan would operate alongside statutory and non-statutory plans, which are also required. How would that all be brought together into one plan? Does the bill adequately address that situation?

The bill is not intended to increase any bureaucracy; it aims to ensure that what we have in the end is much more co-ordinated in its approach. The intention is not to alter the specific statutory duties to prepare a co-ordinated support plan or a plan for a child who is looked after. All those plans would be considered part of the broader framework in supporting the wellbeing of the individual or young person. Much of the detail would be included in any subordinate legislation that we make or in any guidance that we prepare.

Is it an obstacle to GIRFEC being adequately introduced if the integration that is detailed in the bill does not happen?

11:00

The bill provides a framework to ensure that adequate integration allows the child to benefit from the best possible service. Again, I point to the information that the committee has had from Bill Alexander and Highland about how the much more co-ordinated approach has reduced bureaucracy and cut out a lot of the things that prevent a child from getting the right services that they need. The bill is intended to enhance the service that children get.

Does the framework of wellbeing and the introduction of the child’s plan create a need to review the Education (Additional Support for Learning) (Scotland) Act 2004 and the Looked After Children (Scotland) Regulations 2009, as well as the guidance and assessment reporting on curriculum for excellence? Is there a knock-on effect?

GIRFEC is not something that is added on to the way in which we deal with young people and children in Scotland. We are making it part and parcel of how we do business. Cognisance will therefore need to be taken of the new legislative landscape once the bill is passed. For the child’s plan, we will need to make sure that all the different parts of the legislation properly dovetail to enable the best possible service to be given to a child.

On the financial memorandum, obviously you believe that there are sufficient resources to implement the provisions in the bill. Given the points raised by the Finance Committee and the evidence that we have heard, I urge you to review the costs as laid out in the financial memorandum. What happens if there are not sufficient resources? What is the Government’s back-up plan if extra resources are required for implementation of the bill?

We will always monitor the impact. Aside from what is set out in the financial memorandum, the Government has regular dialogue with appropriate providers about budgets.

I hear you saying that you will monitor the situation. The Scottish Government has undertaken to fully fund the implementation of the provisions in the bill, but if there is not enough money for that, what will happen? Will the costs fall to be paid by local authorities or will the Scottish Government step in? Is there a contingency plan for what will happen if there is not enough money?

The provisions in the financial memorandum sit apart from the fact that, in the new legislative landscape, there will be on-going and regular dialogue about budgets between Government and the local authorities and health boards.

Thank you, minister. That concludes our evidence taking at stage 1. I thank all the organisations and individuals who have taken the time to provide oral and written evidence to the committee. As ever, the material will assist us as we consider our stage 1 report.

Minister, before you go, I should inform you that there is a number of questions that we have been unable to cover this morning. We will write to you about them.

I understand that the bill is big and complex, so if the committee wants to raise additional issues, by all means get in contact. As I have said, the Government is in dialogue with other stakeholders and we want to keep a dialogue going with the committee to make sure that we get the bill that we want to achieve.

Thank you. I suspend the meeting while we change witnesses.

11:03 Meeting suspended.

11:06 On resuming—