Next is our first oral evidence on the Children and Young People (Scotland) Bill, from Scottish Government officials. Because of the number of issues that are raised by the bill, we will have two panels, the first of which will deal with parts 1 to 5, which cover rights, children’s services planning and getting it right for every child. We will take further oral evidence in September and October, including from the Minister for Children and Young People. That meeting will be the opportunity for members to get ministers’ views and comments on the detailed policy decisions.
I am the bill team leader for the Children and Young People (Scotland) Bill, which my colleagues and I are grateful to be here to discuss. The provisions are fairly wide ranging, so a number of officials are present in order that we can answer your questions as fully as possible.
I think that we all agree that one of the greatest difficulties and complexities that the committee is grappling with is partly ethical and partly legal: if we extend the rights of children, there are implications for the rights of parents and other groups. The committee would welcome information on where the Government and the bill team are in seeking advice on that.
As regards the balancing of the rights and responsibilities of parents against those of children and young people, the UN convention is clear on parents having primary responsibility and taking the lead role in raising children and young people.
When could you provide us with the legal advice that you think is appropriate to the decision not to incorporate the whole convention?
I do not think that we would seek to offer any legal advice to the committee on that issue. It is a policy decision for ministers whether they wish to pursue incorporation of the convention.
We have to make a decision. If we extend the rights of children, which is part of the basis of the bill, we have to be clear about the implications for and knock-on effects on other rights. What I am driving at is that we have to make an informed decision, which depends partly on legal advice. If it is not the intention of the bill team to provide that, from where else would that advice be forthcoming prior to the start of stage 1?
It is important to recognise that we are not seeking to extend the rights that are available to children and young people. Irrespective of whether the convention is incorporated into Scots law, the Scottish ministers have a responsibility to implement the UNCRC. The duty is about increasing transparency and accountability around how ministers go about that. It requires ministers to evidence how they are considering the convention when they are taking decisions that impact on children and young people.
In some areas of the bill, particularly in respect of the named person, do the provisions not increase the rights of the child?
I apologise. Perhaps it is better for Boyd McAdam or Lynn Townsend to comment specifically on named persons. I was talking in the context of part 1 of the bill, which focuses on the UNCRC.
The named person provisions set up a framework that is made available to children but does not give children additional rights; it provides a structure for services to support children. The rights issue is very much in relation to UNCRC. Article 3 recognises the rights of parents but does not indicate precisely how they are balanced. The UNCRC applies at present and there is no intention to adjust or extend that.
So, there is no intention in the bill to extend the rights of children.
No.
I believe that a number of organisations have requested that a children’s rights impact assessment be carried out on the bill, but I understand that that has not been done. Can you tell me the reasons behind that?
Absolutely. It is essential to understand the impact of the bill on the rights of children and young people, which is why we engaged with over 2,400 of them during the bill’s development. A report on children’s views has been published on the Scottish Government website. In addition, we carried out an equality impact assessment on the bill, which looked at the impact on children and young people, based on a number of factors, including age, gender and religion. We also carried out a non-mandatory privacy impact assessment that looked at the impact on privacy factors for children and their families.
There are concerns that parts of the bill—for example, the named person aspect—could breach the UNCRC around the child’s right to privacy. Have you assessed that from a children’s rights point of view?
On the impact of the provisions on the child and the family, there is a balance to be struck, particularly with regard to article 8 of the UNCRC on respect for family life. Part of the named person provisions and the information sharing provisions that relate to getting information to named persons are couched in terms of their being proportionate, appropriate and justified. Before sharing information, a practitioner must have a reason for doing so and must share appropriate information with the right person—that is covered by the Data Protection Act 1998. We feel that, given the proportionality element, the provisions are compliant with ECHR and the UNCRC.
I understand that, before the consultation, it was proposed that “due regard” would be given to the UNCRC but that people responded in the consultation to say that that aspect should be strengthened. However, following the consultation, the bill uses the phrase “keep under consideration”. Can you tell me the reasons for that change?
Yes. A couple points arise from that. First, I will focus on stakeholders’ views of our proposals. When we consulted last year on proposals to legislate on children’s rights, about 70 per cent of respondents to the consultation agreed that our proposals would help to strengthen transparency and accountability around ministers’ approach to the UNCRC, but only about 15 per cent felt that the proposals did not go far enough and that they would like to see incorporation of the UNCRC. That suggests to us that we have got the focus about right on the nature of the duties that we seek to place on ministers through the bill.
Liam McArthur has a question. Is it a supplementary on this area?
Yes. I acknowledge what you said, Mr Wood, in relation to the non-incorporation in the bill of the UNCRC, and I think that I am right in saying that you reflected that one of the potential benefits of the bill will be cultural change. We have heard from the minister this morning, in relation to improving outcomes for looked-after children, about the importance of cultural change, so I do not think that it is terribly helpful to downgrade the importance of that cultural change.
Absolutely not.
Therefore, I am still trying to get my head round why ministers have decided not to incorporate, but instead, in a sense, to cherry pick the elements of the UNCRC that they see a need to implement through the bill.
One factor is that limited evidence has been presented to ministers that suggests that incorporation provides benefits in terms of culture change and improved awareness and understanding. It would be beneficial to have a more robust evidence base on which to form any future view about incorporation.
If you were to put the rights in legislation, I presume that there would still be a risk that the issue would ultimately end up in the courts anyway, in terms of testing the legal status of whatever the rights were.
That would depend on the focus of the duty that was being introduced. Gordon will add something on that.
It is certainly correct that if you impose any duty on anybody—on ministers in particular—there is a risk of litigation, because someone will argue that ministers have failed to fulfil whatever duty has been imposed on them.
You have identified potential benefits—albeit not necessarily on as robust an evidence base as you may have wished for—so is it fair to say that, through the evidence process that the committee is embarking on now, there is still willingness among ministers to look again at the issue if such evidence were to be put forward?
It would be premature of us to say what ministers’ future views might be in the light of emerging evidence. However, I can certainly state that based on the evidence that ministers have seen to date, their view is that incorporation does not represent the best way to progress the agenda at this time.
It is always dangerous to ask a question that you do not know the answer to, but I will anyway. What other countries have carried out full incorporation?
We do not have an exhaustive list. I know that Ireland has recently made changes to its constitution to embed rights more effectively within that constitution. The United Nations Children’s Fund undertook some research last year that looked at the approach to legal implementation of the convention in 12 countries in total. Three of those 12 countries had taken the step of incorporating the convention into law. We do not have an exhaustive list of the range of countries that have progressed the issue, but I am certainly happy to share the UNICEF report with committee members if that would be helpful, so that you can see the range of different approaches that have been adopted in progressing the issue.
That would be helpful. Liz, did you have a question?
I was just going to say that it would be very helpful to see that report.
Yes, I am sure that it would be.
I can certainly talk a bit about the process that led to the development of the provisions in the bill. When ministers first proposed to legislate on children’s rights, they did not propose to extend the powers that are available to the children’s commissioner. Even without the question being asked, a significant number of stakeholders came back to us to suggest that we should actively consider including in the bill a provision on that.
That would be helpful.
Absolutely. We will be happy to share them as and when they become available.
The Finance Committee will look at the bill’s financial memorandum. However, if there is an agreed understanding of the level of activity, and therefore of the cost implications, that would be very helpful to us.
The estimate that we set out in the financial memorandum was based on the premise that the commissioner would undertake a fairly small number of investigations—the assumption was that there would be between one and four—each year. We have shared that assumption with the commissioner and it has been the basis for our discussions until now.
The bill looks to put GIRFEC—a policy that has been in place since 2006—on a statutory footing. We heard earlier from the minister about the value that she could see in a number of cases of that move to provide a consistent approach. Can you explain where to date there have been inconsistencies? Are there geographic areas in which best practice has not been applied as it might have been? That is relevant to the committee’s inquiry, which we are drawing to a conclusion, as well as to the bill that we are about to embark on.
The GIRFEC programme board has set up an implementation working group, which is engaging with community planning partnerships to get a better feel of where each area is on implementing GIRFEC. We are at a level at which everyone has corporate buy-in. Most areas are implementing the new processes into their key business areas, and two or three believe that they have progressed implementation to the point at which they are comfortable that they could comply with the proposed duties in the bill.
What you describe would not necessarily require legislation, although I appreciate that it is a response to the legislation. Can you explain the rationale for going down the legislative route rather than for buttressing the policy guidance, the training and all the rest of it?
Among the feedback that we have received as we have progressed to implementation is that people are looking for a structure within which all the activity will take place. Ministers were concerned that progress on implementation was not happening as fast as might have been anticipated. As Liam McArthur said, the GIRFEC policy has been around since 2005-06, although the actual GIRFEC approach was finalised only in 2009-10, following the pathfinder work in Highland and the learning partnerships.
Concerns were expressed earlier about the UNCRC not being integrated wholesale into the legislation. I think that I am right in saying that we are not seeing wholesale integration of GIRFEC into legislation either. The absence of legislation for the lead professional to take over from the named person in complex cases is one example that has been cited. Given that some of GIRFEC will have a statutory underpinning and some of it will not, is there a potential problem in providing the consistency to which the minister—given her evidence this morning—clearly attaches considerable value?
We describe the provisions in the bill as the key elements of GIRFEC and they are the elements on which we can legislate. A combination of practice change, systems change and culture change is required.
I am sorry for interrupting, but the phrase
The rationale is that the named person is located within the universal services of health and education and we can place a statutory responsibility on those bodies to make arrangements to provide a named person. The lead professional will be the person who is best placed to address the needs and risk of the child, and so can be drawn from any service; they will not necessarily be located within health or education. It is therefore difficult to place a duty on an individual body to make the arrangements for the lead professional. We believe that how that system will work will best be sorted out by protocols across agencies in a community planning partnership.
Is there not a risk that you will create a two-tier dimension to GIRFEC, because some of it will have a statutory underpinning and some will not? There will always be a gravitational pull to the statutory elements, and inconsistencies will arise in relation to the non-statutory elements, whether it be in respect of the lead professional or other aspects?
The guidance groups that are being developed are working with stakeholders from across all the services to ensure that what emerges is something that they are confident in, that will make a difference and that will deliver consistency. Lynn Townsend might want to say a bit more about the guidance; there is a combination of statute and guidance.
The policy view on the provisions in the bill that cover a child’s plan and the named person was that the role of the lead professional follows from both those duties. Interestingly, in terms of implementation, most areas are already quite happy with the lead professional role, because that role has been around in practice for a number of years where an integrated assessment has been in place. The guidance will address management of the plan and the lead professional role will feature in how we frame the guidance.
Part 13 of the bill introduces a statutory definition of wellbeing. Given that welfare is already included in the Children (Scotland) Act 1995, will you explain the differences between welfare and wellbeing and say why a statutory definition of wellbeing is required?
Part of the challenge that has been faced over the past 15 years or so is that welfare as provided for in the legislation has been interpreted around vulnerability and child protection. It was recognised in the 2001 report, “For Scotland’s Children” and in “It’s everyone’s job to make sure I’m alright” that practice was operating with thresholds and that children and young people were not getting the service that they required until that threshold had been reached. Part of what we are seeking to achieve with the bill is the promotion of early intervention and prevention. Adopting the concept of wellbeing and taking a more holistic approach should encourage people to identify concerns at an earlier stage. It is about trying to shift the mindset.
Do you want to move on to the issue of the named person, Clare?
Certainly, convener. The named person role has been mentioned already. It is one of the things that has hit the headlines and there is perhaps a bit of confusion about what it means. Will you give us a brief definition of the named person and what their duties will be?
Yes. As Boyd McAdam said earlier, the named person will be somebody within the universal services of health or education. Health boards will have responsibility for children up to the age of five and local authorities will have it for children aged between five and 18.
Having a holistic overview of the child and all the relevant information is important. We have developed a training exercise called GIRFEC Cluedo, in which people play the roles of practitioners. Interestingly, because only partial information is available, false assumptions tend to be made about what is going on in the child’s life. We need the overall picture to be able to understand what is relevant and appropriate and where to target the right help. If people’s perceptions are false, they will propose the wrong intervention and might begin to interfere with family life.
Although the financial memorandum gives some information about resources, they very much relate to time. As one of my colleagues will ask about the statutory duty on data sharing, you should perhaps steer clear of that, but one of the key issues is consistency of data collection across the country to ensure that the same decisions are being made in different local authorities. Given that health boards and education departments are likely to be dealing with this issue, do you envisage the development of a common data-storage mechanism or, at least, best practice in data storage?
We are not creating a central database for storing information. Instead, our fundamental approach is very much that agencies will continue to be responsible for the information that they hold; for example, a health professional will have information on their system and a teacher will have other information on theirs. We must ensure that the relevant bits, although not stored centrally, come together. After all, this information should be brought together for a particular purpose, either to address a concern or to help to inform professional judgment.
I have a practical question about the named person for a child from the age of five to 18 being a member of the education personnel. How do you expect education personnel, who will usually be teachers, to act as a named person during their 12 weeks’ holiday? If a child goes missing or is affected by an incident during the summer holidays, how will the teacher act as the point of contact?
As the duty in the bill is on the local authority, it will have to put arrangements in place to ensure that the named person is available. Local authorities will build on current practice during the holidays; at the moment, someone based centrally in the education service will be the point of contact if, as you have suggested, a child goes missing. People will have access to school records and that type of information and will play a role in the multi-agency response to that kind of emergency situation.
What consideration has been given to the impact on staff workload and during the holiday period? For example, what sort of ratio would you be looking at in, say, a school with 250 pupils that has only 12 members of staff during term time? I guess that, during the term, you could have one teacher per class but what would be the ratio outside term time if the local authority is expected to put someone else in place to cover that named person’s role?
That brings me back to the concept of the layered approach for the named person, which I described earlier. In a school of 250 children, the vast majority will receive all the help and support that they need from their class teacher and the other services that are available in the school. It is unlikely that the named person would have to take any action over and above their current duties. The bill is predicated on the fact that, within education, there are already statutory duties around planning and around assessing and supporting children. That work goes on currently. The bill proposes an overarching framework within which that level of assessment and support will go on.
Neil Findlay and Liz Smith have quick questions on the issue.
How many pupils would the named person in a school be responsible for?
As I said, it will be up to education authorities to decide how to make arrangements for named persons, but from the experience that we have so far, it seems likely that the headteacher will be the named person, particularly so that the outside world knows who the named person is. However, within a primary school, we would envisage that aspects of the role will be delegated to the depute and principal teacher levels, and similarly in a secondary school, as is current practice, there will be depute heads with a pupil support portfolio and pastoral care staff who know the young people and are involved in offering support. We envisage that that is how it will operate.
So the named person in a primary school will be the headteacher.
Yes, and I would imagine that that will also be the case in a secondary school, for the purposes of people knowing whom to contact.
The financial memorandum says that, after the first year, teachers will not need any extra hours to act as the named person. Knowing the current workload of headteachers, I find that absolutely remarkable.
We looked at the issues around capacity. Because the policy has been in place for a number of years and because some local authorities are already implementing, it is difficult to say definitively what the resource implications will be. However, the current workload of headteachers, depute heads and pastoral care staff is around looking after young people, assessing, working with others, putting in support, working in a multi-agency forum and going to children’s panels.
What provision is made in the private sector, which includes quite a few special schools? Obviously, no local authority is involved there.
In the bill, we put parallel duties on independent and grant-aided schools. Some of the independent schools will be private schools, and it would be for the proprietor to put in place the arrangements for the named person and the child’s plan, in parallel with the duties on the local authority. Where the school is a special school, the young people will be placed by a local authority, so—
Not necessarily. Some special schools have children from both sectors.
Yes. The special school will operate a named person system and arrangements in the same way as the local authority. If the school is a private special school and the children are not placed by the local authority but they require a multi-agency approach, there will need to be a lead professional, who may well be in a public service, supporting the young people. For a special school where the local authority has made the placement, again they will hold the responsibility through the lead professional role.
My questions are about the statutory duty to share information. We have examined that subject extensively in our two inquiries into looked-after children. There seems to be a lot of confusion among professionals about when they can share information on a child. Some professionals think that that can be done only when a child is formally on the at-risk register. As Mr McAdam outlined, we need to be able to intervene earlier to nip things in the bud. However, that throws up an issue in relation to the ECHR and the rights to privacy.
The area is complex. Article 8 of the ECHR, on the right to respect for private and family life, does not give a blanket exemption from families. Irrespective of what is proposed in the bill, there are a lot of issues under the existing law in relation to the Data Protection Act 1998 and professionals feeling unable to share information because of a breach of confidentiality or because of professional practice.
Would you expect professionals to be open to legal challenge?
I do not think that we can talk about the issue in the abstract. As Boyd McAdam said, it all depends on the circumstances of the case. If there was no serious threat to the child’s wellbeing and the GP decided to tell all and sundry about his or her patient’s difficulties, there would be a serious risk of challenge—probably justifiably so.
In the GIRFEC Cluedo, I played the role of childminder. The mum had started to bring the child in late and the child seemed a bit clingy. I thought that something might not be quite right, but the mum said that she had a lot of work. Although there was a serious issue in that hypothetical case, it did not seem that the childminder would feel confident that the mum coming in late and a clingy child would necessitate sharing information and breaching the mother’s confidentiality, let alone going to the GP to find out whether the mother had a mental health problem.
In the situation that you describe, if the childminder had concerns that the child seemed clingy, I cannot see that they would disclose personal data relating to the mother or even the child; they would just observe, based on seeing the child every day, that something did not seem quite right. I do not see an article 8 issue there. The childminder would not disclose any personal information regarding the child; they would just make an observation about how the child appeared to them and possibly to those in the population at large who knew the child well enough.
I am sorry to press the case, but the whole point of the exercise is that, if the childminder went to the named person with that information, which did not seem particularly serious, the named person should then be able to go to the GP. The GP would have the crucial information that the mother had a historical mental health problem. In that example, the child’s wellbeing was at stake, but we could see how, if the named person went to the GP with the childminder’s information, that might breach privacy if they did not have the full picture. Do you see what I am getting at?
The position depends on the circumstances. It is impossible to say in abstract whether information can or cannot be shared. It depends on the circumstances and the perceived risk to the child’s wellbeing.
Is it not the case that trying to anticipate problems that might or might not exist will inevitably lead to breaches of privacy? Perhaps we should be honest about that and say that we will have breaches of privacy for quite a lot of families to protect the children who are at risk.
Part of the early intervention agenda requires people to pick up concerns earlier, but it is proposed to do that in a framework that relies on the professional making a proportionate judgment. If there is a concern that someone is not comfortable with, the data protection advice is that they should share that. That is covered under data protection law, because it is a professional judgment.
I presume that professionals have to be aware that they could be open to legal challenge.
I want to move on, because I am very aware of the time.
The bill provides for a number of additional plans and reports to be produced by a range of organisations relating to all sorts of things, such as children’s rights, corporate parenting, children’s services and early education, as well as individual child plans. Local authorities and perhaps health boards will be required to provide most of those, and other agencies will report on other things. Will that increase the bureaucracy and put more layers on top of what already exists? How will local authorities and other bodies cope with that?
You are right that the bill contains a number of reporting and planning duties. It is important to say that stakeholders broadly supported those duties through the consultation and subsequent engagement. We have been clear throughout the bill’s development that we do not want to place extra burdens unnecessarily on agencies or other organisations and that we certainly do not want to increase bureaucracy. Therefore, for a number of the reports that will be required under the bill, we expect organisations to use current mechanisms rather than create bespoke new reporting mechanisms.
Overall, will the bill increase or reduce the burden of paperwork?
I think that that will probably balance out. Some new processes are replacing old processes, so the bill certainly should not increase bureaucracy.
I thank our witnesses for coming. We will follow up a number of issues in writing, if you do not mind.
Our second panel will answer questions on parts 6 to 13 of the bill, which deal with early learning and childcare, looked-after children, children’s hearings and schools consultation. I welcome back Elisabeth Campbell, who has stayed with us from the previous panel, and David Blair, who was with us earlier, and I also welcome from the Scottish Government Kit Wyeth, Ruth Inglis, Susan Bolt and Clare Morley. If the witnesses do not mind, we will go straight to questions.
The bill, which will set in statute and extend the number of hours of childcare that are provided for, defines the phrase “early learning and childcare”. Will service provision have to include both learning and care instead of either education or care? I think that I am right in saying that the bill amends the existing definition of school education to include early learning and childcare. It would be useful to know what will change as a result and what the expectation is.
The expectation is that provision will cover both learning and care. The bill defines early learning and childcare as a service that provides education and care and which promotes and supports
That is helpful. Another issue that has been raised and which we will probably come back to when we discuss the financial memorandum is the extent to which the statutory 600-hour allocation is fully funded. Is it your understanding that it is fully funded?
Yes.
The point about funding was made by, among others, Save the Children. Its initial submission picks up a point made by, I think, the Equal Opportunities Committee about the broader care that is required—in other words, not only early learning and childcare but out-of-school care. All committee members will have picked up the same point through different forums. What consideration has been given to putting a broader definition of care on a statutory footing?
The definition of early learning and childcare applies broadly to formal early learning and childcare provision, but we are still grappling with definitions. The Government is committed to developing and increasing early learning and childcare that covers all children of all ages and meets not only their needs but the needs of parents and families. More work is being done on that beyond the bill, and the definitions in the bill will support improvements in the quality of provision that is not necessarily covered in the bill.
Is there some budgetary rationale behind the delay over definitions or is there simply a concern that out-of-school care is not as well understood or defined as early learning and care, so more work needs to be done on the matter?
I do not think that there is such a concern. The Government’s aim is to improve and increase provision for all, but ministers have decided in the bill to focus on and prioritise building up the current high-quality universal pre-school system and to build additional hours and flexibility into it. Local authorities are being asked to make a significant change.
In terms of the age spectrum, we know that the bill makes provision for two-year-olds who are looked after or in kinship care. That is welcome, but we heard a heavy emphasis on early intervention from the minister this morning. Save the Children indicated its disappointment that the bill does not look to extend the provision for two-year-olds to those from the most disadvantaged backgrounds. Will you explain why that has not been incorporated in the bill and whether, as we take evidence at stage 1, there is an open mind to go back and look at that again?
The rationale for focusing on looked-after two-year-olds is that looked-after children have the worst outcomes—and the risk of the worst outcomes—of any group of children. The bill proposes to guarantee a minimum, sustained early learning and childcare provision for those children. The bill also focuses on two-year-olds in kinship care because they are often at risk, so we can prevent children from becoming looked after or provide a positive solution and bring them out of being looked after.
One imagines that that argument could be sustained for children from looked-after backgrounds and those in kinship care, although I appreciate that those children are particularly vulnerable; we have certainly heard enough evidence to suggest that the outcomes for them are not as good and need to be addressed. However, the definition is very tight. Quality provision is clearly needed for the two-year-olds who get access to the services, but the interventions that we make before the age of three are critical, so it seems to be a missed opportunity not to expand provision to a wider cross-section of those who are disadvantaged. As I said, that certainly concerns Save the Children.
The provisions in the bill reflect certain priorities and go as far as they can within the current economic constraints. We are asking for significant changes from local authorities and we want those changes to be achievable, sustainable and affordable. Ministers have taken certain decisions about what to prioritise in order to deliver what they can, given the economic constraints within which they are working.
Early years education is funded through the pre-school education grant, which I understand does not currently cover childcare. Will the additional hours for early learning and care be funded in the same way?
Yes, they will be funded in the same way, so it will be for local authorities to secure provision, either through their own services or through partner providers. Local authorities will deliver that directly, under their education duties.
Will there be designated elements of funding for early learning and for childcare?
No. Those are seen as indivisible. There will be the same standards of high-quality, consistent early learning and childcare that we have already defined, so it will be for local authorities to ensure that those are provided, either through their own services or through partner providers, as I said.
On flexibility, what do you envisage parents being given if, for example, they wanted their 15 hours over two days? Do you also envisage them having that time on the days of the week that they want?
There is a wide range of ways in which you could cut the 600 hours, or around 16 hours a week, and it will be for local authorities to consult local populations on what their needs and preferences are. There is a minimum framework: sessions should be no less than two and a half hours a day, no more than eight hours a day, and delivered over no fewer than 38 weeks in a year, although that does not need to be confined to term times. Within those broad parameters, local authorities are free to reconfigure services to provide a range of choices. It is up to them to decide: it could be two eight-hour days a week, or five two-and-a-half-hour sessions, with additional sessions in non-term time. It really depends on the needs that parents identify, and local authorities will make decisions about what to reconfigure and what choices to offer on that basis.
Has any consideration been given to partner nurseries that may have financial difficulties if parents elect to take all their childcare time in nursery funded places, leaving no wraparound time for which the nursery can charge?
Whether they are in the public or private sector, nurseries can charge for wraparound care. They are free to do that.
I have a supplementary question to Mr McArthur’s point about extending provision. You mentioned the financial constraints. I know that in Scotland we have a higher ratio of carers to children in pre-school and that that has been diluted in England and Wales. Will you say something about the importance of the ratio in Scotland?
There were proposals to change the ratio in England, but I do not think that they have gone ahead. In Scotland, we have checked with stakeholders and there is certainly no appetite for changing staff ratios here from what they are. That is another key thing to remember when we talk about the economic constraints. In all the changes that we put in place, we do not want to compromise on quality at all. Any increase must be in parallel with improved quality—that is fundamental to any changes that happen.
I want to ask about kinship care and kinship care orders. I have had some experience of kinship carers, in constituency matters and as a councillor. The bill provides for residence orders that are kinship care orders. Paragraph 119 of the financial memorandum states:
The answer is fairly straightforward. The policy comes from the quite extensive feedback that we have had from kinship carers, who will apply for the kinship care order because it will provide much more specific support than they are accustomed to. Currently, the support that is provided to a formal kinship carer is very much at the discretion of their local authority. Kinship carers find that difficult.
Okay.
There is nothing that I can share at this point, although I can tell the committee that we have had to review the timetable owing to the complexity of the modelling that we have had to do. We are exploring a number of options based on the work that we have done to date. We have done quite a bit of detailed modelling, which is being considered at the moment. I am happy to come back to the committee and advise members as to when we can share some information about that.
The Children Act 1975, the Children (Scotland) Act 1995, and the Looked After Children (Scotland) Regulations 2009 have an impact on kinship carers and local authority support. Why did you decide to include additional provisions on kinship care? Is it not already covered in existing legislation? Could you not allow local authorities to apply for residence orders for kinship carers under existing legislation?
Local authorities cannot apply for residence orders. They are petitioned for by kinship carers or by a range of people in different circumstances. We felt that there was a need for the kinship care order based on the feedback that we had from kinship carers and local authorities. Neither group seemed particularly happy with the status quo—part of that was to do with the continuing growth in formal kinship care, which, based on the feedback that we had, did not seem to represent people’s needs particularly well.
When you talk about qualifying kinship carers in relation to the financial support criteria, which will be determined in—or left to—regulations, are you talking about kinship carers in relation to children who are at risk of being formally looked after?
That is a consideration. We wanted to ensure that local authorities have some ability to focus support on families who need it most. That was one test that we thought about. We have put that into the documents accompanying the bill, but we think that the test really needs to be consulted on with practitioners through an extra piece of work that we are running now. There is good reason for that: we have to avoid stigmatising kinship care, but we also have to ensure that the test works and allows resources to be targeted at those who need it most, given the economic constraints.
The financial memorandum mentions savings being made through kinship care because there will be savings from children no longer being formally looked after unnecessarily. What evidence does the Scottish Government have that children are being looked after unnecessarily?
That came through in the feedback that we had through the bill consultation. Also, we have been working with Children 1st for a number of years and we funded it to work with about 43 groups around the country specifically to gather useful information about how kinship care works in practice. We used that evidence to guide our policy making in the area.
For clarity—I am confused about this—will financial support be given only to kinship carers who have a formal order in place?
Can you clarify what you mean by financial support, because the—
At present, local authorities have discretion to award kinship care payments, whether or not a residency order is in place. Does the bill remove that flexibility?
No. At present, the expectation is that the kinship carer of a looked-after child will be entitled to an allowance, which covers a multitude of things. With kinship care orders, we are making that much more specific. We have said—we agreed this with COSLA for the purposes of the bill—that the kinship care order does not automatically extend the previous commitment to allowances for formal kinship carers. The review is looking at that aspect of things.
Okay. Thank you.
Finally, Neil Bibby has some questions on the section on schools consultation.
The section seems out of place. Why has it been included in the bill?
It has been included in the bill, and it is proposed that the matter be dealt with in that way, because the bill provides an opportunity to deal with it quickly. The Government attaches importance to the area and there has been a large delay while the commission on the delivery of rural education considered the issues. Now that the commission has reported and the Government has responded to the report, we are anxious to move quickly. Also, a judicial review concluded recently and the Government wants to move to clarify the legislation. The bill is an opportunity to do that, which is not too far removed from the rest of the bill’s purpose, as it is to do with services for children.
Provisions on the matter will be added to the bill at stage 2. What consultation will there be, or has there been?
We expect to issue shortly a public consultation paper on the amendments that we will produce. There will be a shorter timescale than the Government would normally like to apply, but we feel that it is important to achieve a degree of public consultation. There will also be arrangements for meeting stakeholders during the summer to carry out as much consultation as possible. That will build on the extensive consultation that the commission on the delivery of rural education did. We feel that the issues have received some airing through that.
So that the committee can plan its work, will you clarify when the results of that consultation and the Government’s response will be available?
We expect to consult during July and August, and we expect to be in a position to respond and provide detail on the amendments that we will propose in good time for the session that we understand you have scheduled for 26 November to consider the bill after stage 1. The answer is during the autumn.
That is why I asked, I suppose, because 26 November seems a little bit late. We have to take evidence on the bill during the stage 1 part of the bill process. Although you intend to introduce the provisions at stage 2, it would be helpful if we could take relevant evidence during stage 1. I am not convinced that it would be helpful for us not to know what is going to be inserted into the bill until after stage 1.
We will want to allow as much time for the consultation as we can, and we think that that will be during July and August. I expect that ministers will be happy to write to you during September to give you as much indication as they can of what they have learned from the consultation, if that would be helpful.
It would be helpful if we could have as much information as possible from the Government as early as possible, because we have to take evidence during stage 1 in September and October. I am thinking of the clerks in particular, as they have to get witnesses in place, and we have to ensure that there is enough time for us to properly scrutinise the bill and take evidence from witnesses. It is a large bill with many different areas and there is a tight timeline for us to do that work as it is, without any additional aspects. I would be grateful if we could get information as soon as possible.
We appreciate the urgency.
Thank you for coming along this morning and giving us some additional information at this early stage of the bill.
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Taking Children into Care Inquiry