Petitions
Children (Scotland) Act 1995 (PE124)
The committee is not finished. We are just one hour late in reaching agenda item 4. Petition PE124, which is from Grandparents Apart Self Help, is on grandparents' right to contact with their grandchildren. I refer members to paper J1/02/43/2, which is the clerk's note on the petition. We have received several responses to the petition, from the Minister for Justice, the Sheriffs Association, Children 1st and NCH Scotland, which are attached to the note. All the correspondence has been intimated to the petitioners and the Public Petitions Committee.
In summary, all the respondents are content with the current legislation. They do not believe that the petitioners' request, which is to name grandparents in the Children (Scotland) Act 1995 as having an important role to play in the lives of their grandchildren, is the way forward. That is not to say that the respondents think that grandparents do not have an important role to play.
I ask the committee to consider the wider issues that have been raised and to consider the points that NCH Scotland made in its letter to the committee, which reads:
"we would not favour extending to grandparents the same rights and responsibilities that are accorded to parents under the Children Act. Grandparents and other family members can currently apply for contact orders and for parental responsibility and residence orders. We do appreciate the difficulties and expense that this can involve and believe that instead of a change in the law, the interests of grandparents should be more explicitly acknowledged and promoted in guidance to both Sheriffs and to social workers.
Firstly, grandparents should be notified of any applications in relation to a child/children, so that they can be represented. Secondly, guidance to social workers and others advising the courts should explicitly require that grandparents and other first degree members of the extended family should be notified of applications and their views and wishes sought and formally recorded."
I agree with the points that NCH Scotland has made. I am a grandmother and I am sure that others at the committee today are also grandparents. We appreciate the pain and anxiety that grandparents and other members of the extended family go through if they are deprived of the company of their grandchildren or do not hear about them, because they have been kept out of their grandchildren's lives.
The way forward is not to change the law, but to consider the extended family when relationships break down and the arrangements that are made for children. The concerns of the extended family should be brought to the attention of the sheriff. If recognition is given to the role that grandparents, aunts, uncles and so on play in children's lives, the means exist for that role to be recognised. What is paramount at all times is what is best for the children.
Guidelines could ensure that grandparents are considered throughout the process. If we were to consider the legislative route, I would be concerned about the confusion and emotional difficulty that could be caused to children in cases of parental separation. Legislation that ensures the rights of grandparents could make the situation even more difficult.
Petition PE124 is well meant; it was lodged as a result of genuine concern. I would like social services and other services that support children and young people during the separation process to give serious consideration to their guidelines on supporting children during what is a difficult and emotional time. I repeat that it would cause even more difficulties to add to the legislation that is already in place in relation to the direct parents.
I suggest that we should consider a change to the sheriff court rules about the requirement to intimate actions. That would not mean that someone could be part of the proceedings, but I understand that there is no requirement at present for grandparents or first-degree relatives to receive formal intimation of a case, which means that a court case can proceed without grandparents or other first-degree relatives knowing about it until well into its run.
I suggest that we write to the Sheriff Court Rules Council and the British Association of Social Workers Scotland to suggest that a procedural rather than a substantive change to the rules be made.
I agree with that suggestion and with the suggestion that we should write to the minister, who has promised that a family law bill will be introduced. The role of grandparents should be considered in that bill. We should pursue the Sheriff Court Rules Council, BASW Scotland and the Minister for Justice so that they are able to pursue the matter in their different ways.
I support that approach. Mediation is extremely important and is of growing importance in some exceedingly complex cases—it can play an invaluable role. It would be a service to consider mediation in the context of the family law bill.
Quite. Perhaps I should have declared an interest, as I was once a family law practitioner. It is better if cases are resolved by mediation that embraces as many people as possible who are involved in and who have a genuine commitment to the welfare of the child.
My experience is that things have changed. In my early years in practice, grandparents were not often involved, but that has changed over the years. I am pleased that the matter is being pursued further.
I do not think that the minister is considering changing the family law bill. The mediation process and more intervention rather than confrontation in the court process are far better ways forward.
Are members content that we write to the Sheriff Court Rules Council, BASW Scotland and the minister specifically about the mediation process?
Members indicated agreement.
It is also incumbent on the committee to write to the petitioners. We will write to Grandparents Apart Self Help and the Public Petitions Committee's clerk to advise them of our progress. We have no intention of letting the matter go.
Scottish Legal Aid Board (PE200)
Petition PE200 from Mr Andrew Watt calls on the Scottish Parliament to review the working methods of the Scottish Legal Aid Board, particularly in relation to the collection and disbursement of compensation moneys. I refer members to paper J1/02/43/3. The petition is supported by Patricia Ferguson.
We have received various items of correspondence. The committee may wish to consider whether the issuing of guidance to practitioners and the effect of senior counsel's opinion address the petitioner's concerns about delays in the disbursement of moneys. The committee may wish to write to SLAB to establish time scales for the production of guidance aimed at applicants on property recovered and preserved and may also wish to write to the Executive.
Options are contained in the paper and I do not want to trail through them. I am open to the committee's views on the matter. I should declare that I have also been a legal aid practitioner, so I have personal views on moneys preserved or recovered.
I think that I have a page missing.
I am sorry. It will take a moment to pass papers to Maureen Macmillan. In the meantime, I will read out some options.
As I said, the committee could write to SLAB to establish time scales for the production of guidance aimed at applicants on property recovered and preserved; it could write to the Executive to ask whether it has any proposals to change the law in the area in question to allow SLAB to disburse compensation moneys faster; it could take the opportunity to pursue SLAB procedures and possible changes in the law relating to property recovered or preserved in the context of the follow-up to its legal aid report, which we will discuss later; or it could write to the petitioner to inform him that SLAB has reviewed its procedures and taken steps to ensure that the regulations are understood and applied correctly and efficiently, and to advise him that the committee has concluded its consideration of the petition.
I invite members' views.
We should strongly support the petitioner. It is important that compensation be paid speedily—that is a matter of justice. We should support the options that have been outlined.
But which of the four options?
I do not think that they are mutually exclusive.
That does not apply to the last of them, which is to
"write to the petitioner … advising that the Committee has concluded its consideration of the petition."
I am sorry. I think that the first three out of the four options are acceptable.
Are there any other views?
There are two conflicting principles. First, if the taxpayer has paid for legal aid, then the taxpayer has to be reimbursed before the person who received the legal aid gets any compensation. Am I right about that?
Yes.
The other principle is that, if somebody is told by a sheriff that they will get £X of compensation, they will not wish to wait for five or six years, for example, before that money is paid over.
I am guilty of saying this with judicial knowledge—as they used to say—but, if someone has received legal aid from the Scottish Legal Aid Board, the account is lodged by the solicitor and the money recovered goes straight to the board in the first instance. The board is entitled to take the costs of the case—not the expenses recovered, but the costs, which usually amount to more—first, from the judicial expenses awarded, secondly, from the individual's contributions and, if there is still a deficit, from the money recovered itself. There is a duty towards the public purse.
There are steps whereby a solicitor can release funds in stages. In other words, they indemnify the board. If a solicitor were to release funds and then find that there was not enough money left to pay the bill, they would have to write off the money or pay it themselves.
There is some awkwardness about cases such as that covered by the petition; each case will be different. There are various reasons for payments being paid in stages, in the case of a reparation action, for example. The note mentions
"the production of guidance on property recovered and preserved aimed at applicants".
As well as guidance to solicitors, it is important that applicants know where they are. Sometimes applicants do not understand why they leave the courtroom with an award of £5,000 but are not simply handed the cheque. That is understandable.
In reading the papers on the petition, I noted that the person who is supposed to pay the compensation might not in fact pay it, and might have to be pursued through the courts. That can cause complications. Often, people are not pursued terribly rigorously, perhaps because the cost of pursuing them would outweigh the amount of money that is being reclaimed.
As I said, individual cases differ widely. The solicitor may not be sufficiently au fait with the procedures to ensure that money is paid in stages, and the money might never be recovered at all. This is a complex area, which individuals often do not understand. To be blunt, some solicitors do not understand how payments authorised by them can be made in stages.
I think that the first option, to
"write to SLAB to establish timescales for the production of guidance on property recovered and preserved aimed at applicants",
is fine. The second option is to
"write to the Executive asking if it has any proposals to change the law in this area to allow SLAB to disburse compensation monies faster".
I think that that is worth exploring.
As Donald Gorrie and James Douglas-Hamilton suggested, we could agree to the first three of the four options that are set out in the note. Shall we do that?
Members indicated agreement.
But we are not agreeing to the last of the four options.
Okay.
Meeting continued in private until 16:38.