Children’s Hearings (Scotland) Bill: Stage 2
We move on to agenda item 7. We have been joined by the Minister for Children and Early Years, Adam Ingram, and his officials. I am grateful to them for scurrying down here straight after diligently watching our earlier proceedings, although I am sure that a few committee members would have been grateful if you had taken a little bit longer, minister, since it has been rather a long meeting this morning.
We move straight to consideration of amendments.
Section 123—Specifying when compulsory supervision order to be reviewed
Amendment 339, in the name of the minister, is in a group on its own.
The Minister for Children and Early Years (Adam Ingram)
Thank you, convener. I know that you have had an interesting morning, so let us hope that we can keep that going.
Amendment 339 replaces the current section 123. It does two things. First, it extends the general power of the hearing to set a review date for compulsory supervision orders so that that can be done when the order is varied or continued rather than just when it is initially made. Secondly, it requires the hearing to set a mandatory review when making or varying a compulsory supervision order with a movement restriction condition, or MRC. The purpose is to ensure that a review is carried out within the lifespan of the MRC, as it is intended that regulations will prescribe that MRCs may be for a duration of no longer than six months, as I will discuss later in relation to amendment 354.
At present, there is no mandatory requirement for the hearing to set a review of the MRC, although there are a number of routes whereby a review may be instigated. It is therefore possible for an MRC to expire without having been reviewed. Given the nature of an MRC in restricting the liberty of a young person and the conditions that may be imposed, the amendment will ensure that we have robust review procedures. The change will have a low procedural impact as, historically, only a small number of compulsory supervision orders with an MRC have been issued annually.
I move amendment 339.
Amendment 339 agreed to.
Section 123, as amended, agreed to.
Section 124—Excusal from attendance
Amendment 160 moved—[Adam Ingram]—and agreed to.
After section 124
Amendment 340, in the name of the minister, is grouped with amendments 384, 399, 367 and 368.
The amendments in the group make provisions for accommodating the rights of those who have a right of contact with the child through a contact or permanence order but who do not qualify as the child’s relevant person or deemed relevant person. That is an important issue and one that must be addressed in the bill. I hope that the committee will forgive me for taking some time to fully explain the detail.
Defining a relevant person can be a complicated issue, as we debated at the committee’s previous meeting. The amendments in the group respond to a judgment on issues surrounding relevant person status. I understand that the committee is aware of the Knox and Lawrie case, which concerns parents with contact orders and their involvement in the children’s hearings system. The case revolved around the rights of unmarried fathers with contact orders and their lack of involvement in the hearings that made rulings that affected their contact rights. In short, the court ruled that those contact rights are civil rights and are protected by the European convention on human rights. The fathers in the case could not participate in proceedings so they had no means of defending their contact rights. We therefore have a duty to ensure that those civil rights are protected in the processes of the children’s hearings system. The amendments are intended to do just that, but in a way that has a minimal impact on the system.
Given the diverse range of circumstances in which contact orders can be made, I consider it inappropriate that those with contact orders should automatically be classed as relevant persons. We know that relevant person status brings with it a range of specific rights and duties, and taking that approach could lead to a situation in which multiple adults, each with a contact order, receive relevant person status. That could lead to an imbalance. For example, the biological parents of an adopted child could be granted a contact order allowing annual access to the child. The child’s adoptive parents have full parental responsibilities and rights and would be relevant persons. It would be unfair to put the person with annual contact on the same footing as persons with full parental rights and responsibilities. We cannot put a child in a situation in which two sets of parents have a right to accept or deny grounds, take along representatives and access state-funded legal representation. That could lead to a room full of adults each of whom has conflicting views on what is in the best interests of the child.
11:45
However, it is expected that many parents who have contact with their child may be significantly involved in the child’s life and could, therefore, meet the test for assuming deemed relevant person status. That is why the bill introduces that test, as it identifies those who are most closely involved with the child and who should take on the rights and responsibilities of a relevant person. I intend, therefore, that procedural rules will place a duty on the reporter to advise those with contact or permanence orders of their right to seek deemed relevant person status in a pre-hearing. If that test is met, that person can participate in hearings with the rights and responsibilities of a relevant person.
There is still the need to ensure that persons holding contact rights will have those rights adequately protected if they are not relevant persons or deemed relevant persons. Careful consideration has been given to how best to ensure that such persons can be afforded procedural safeguards when a hearing makes a contact direction. Amendment 340 allows for such a safeguard. It applies when a hearing makes a contact direction within a compulsory supervision order, an interim compulsory supervision order or a medical examination order that lasts longer than five days. In such a circumstance, the principal reporter will be under a duty to arrange a hearing to review that contact direction. The sole purpose of that hearing is to review the contact direction, and it must take place no more than five working days after the hearing that made the disposal. That is sufficient time to allow persons to prepare for the hearing but ensures that the review is heard speedily. At that contact direction review, the individual who holds contact rights will have full rights of participation. The hearing can then either confirm the decision of the original hearing or vary the contact direction. No other element of the underlying order can be considered or varied at that hearing.
It is clear to me that the amendments support a fair, transparent and simple process for accommodating the rights of those with contact orders or permanence orders, with minimal impact on children. We do not expect there to be many occasions on which the situation will arise, but it is essential that the rights of those with contact are protected when the situation requires it. The process has been discussed with Professor Norrie and the Scottish Children’s Reporter Administration, and I am grateful to them for sharing their knowledge and experience.
Amendments 367 and 368 provide the necessary definitions of “contact order” and “permanence order” that will apply to the new provisions. Amendments 384 and 399 provide for an appeal right to the sheriff and sheriff principal. I hope that the committee can support the amendments.
I move amendment 340.
Amendment 340 agreed to.
Amendment 341, in the name of the minister, is grouped with amendments 365 and 464.
Section 75B of the Children (Scotland) Act 1995 concerns the powers of the children’s hearing when a child who has been referred to the hearing has been excluded from school. If it appears that the education authority is not complying with its duties to provide education or make arrangements for an excluded pupil, the matter may be referred to the Scottish ministers. Amendment 341 carries that provision across to the bill. It also requires the national convener, rather than the principal reporter, to make the referral, to reflect the role of the national convener. It is essential that alternative provision is put in place during a school exclusion to ensure that the child has the opportunity to continue to learn; therefore, it is important that the effect of section 75B of the 1995 act is carried over to the new legislation.
Amendment 365 is consequential on amendment 341 and provides for such referrals to be “formal communications” under section 179, which means that they must be in writing. That also covers writing in electronic form such as e-mails.
Amendment 464 makes consequential repeals of two sections of the 1995 act.
I move amendment 341.
Amendment 341 agreed to.
Section 125 agreed to.
Section 126—Requirement under Antisocial Behaviour etc (Scotland) Act 2004: review of compulsory supervision order
Amendments 161 and 162 moved—[Adam Ingram]—and agreed to.
Section 126, as amended, agreed to.
After section 126
Amendment 163 moved—[Adam Ingram]—and agreed to.
Sections 127 to 129 agreed to.
Section 130—Duty to initiate a review if child to be taken out of Scotland
Amendment 342 moved—[Adam Ingram]—and agreed to.
Section 130, as amended, agreed to.
Section 131—Duty to initiate review: secure accommodation authorisation
Amendment 343 moved—[Adam Ingram]—and agreed to.
Section 131, as amended, agreed to.
Section 132 agreed to.
Section 133—Duty to arrange children’s hearing
Amendments 315 and 344 to 348 moved—[Adam Ingram]—and agreed to.
Section 133, as amended, agreed to.
Section 134—Duties on children’s hearing where review required under section 127
Amendments 349 to 352 moved—[Adam Ingram]—and agreed to.
Section 134, as amended, agreed to.
Amendment 353 moved—[Adam Ingram]—and agreed to.
Section 135—Powers of children’s hearing on review
Amendments 316 and 317 moved—[Adam Ingram]—and agreed to.
Those must be some of the fastest-moving deliberations that the committee has had on this bill at stage 2. However, we now come to some amendments by committee members as well as amendments by the minister.
Amendment 370, in the name of Ken Macintosh, is grouped with amendments 371, 376, 377, 375, 378 and 379.
I was delighted to support, in a speedy fashion, the amendments that we have just considered. I hope that the committee will forgive me for taking time over this group of amendments, because section 135 is one of the most important sections for us to amend. It addresses the key issue of a child appearing before the children’s hearings system gaining a criminal record and carrying it into adult life. It is a subject on which we took evidence at stage 1 and about which the minister and the committee have a shared concern. It is a question of agreeing the steps that we might take to remedy what we all recognise is an unfair or unsatisfactory situation.
I will start with amendment 375, in my name. Currently, children who are brought to hearings on offence grounds are automatically deemed to be offenders for the purpose of the Rehabilitation of Offenders Act 1974. Amendment 375 would result in only those children who are considered to be a risk to others being treated as offenders for the purpose of the act. In other words, the current automatic system of listing would be replaced by a decision based on the nature of the offence or the risk to others of reoffending.
Amendments 370 and 371, also in my name, would introduce a process of review at the point at which a child or young person leaves the children’s hearings system. At present, all offences committed by a child who is dealt with through the children’s hearings system will appear on a child’s criminal record and therefore on a disclosure certificate, regardless of whether the child presents an on-going risk or whether that is proportionate to the offence. The effect of the amendments would be to allow an offence to appear in the “any other relevant information” section but only if a children’s hearing refers the offence or offences to the chief officer of the relevant police force for consideration for inclusion on a disclosure certificate. As currently, the chief officer would then have to exercise their discretion under part V of the Police Act 1997.
We heard evidence on that issue at stage 1 and members will have received further correspondence on it. I have received support for the amendments from a number of sources, which I will read into the record, because it is important.
First, Scotland’s Commissioner for Children and Young People has supported my amendments. He points out that, although we have a welfare-based children’s hearings system of which we are very proud, that same system
“criminalises many hundred children as young as 8 each year. In doing so, it makes no distinction based on the gravity or frequency of a child or young person’s offending, or any assessment of whether the child or young person poses a continuing risk of significant harm to others.”
He goes on to say:
“There is evidence that criminalisation has a negative impact on children and that those with more and deeper system contact are less likely to desist from offending.”
12:00
Professor Lesley McAra, who is professor at the centre for law and society in the school of law at the University of Edinburgh, points out that the Parliament has just passed the Criminal Justice and Licensing (Scotland) Act 2010, which bans the prosecution of children under the age of 12 in the criminal courts. Professor McAra describes the current situation under the children’s hearings system:
“Children referred to the Reporter on offence grounds between age 8-11 (as well as those aged 12 or over) and who accept the grounds for referral will be recorded as having convictions for the purposes of both the Rehabilitation of Offenders Act and the provisions for enhanced disclosure: and yet of course the evidence may not have been tested in court; the youngsters may have had no access to independent advice; and they may not understand the consequences of admitting offences. Where youngsters dispute the grounds then these will be sent to the courts for a proof hearing”,
which is in reality similar, if not identical, to a prosecution.
Professor McAra says:
“Changes to the disclosure process mean that a youngster’s ... record may stay on the Criminal History System well into adulthood”.
Currently, the 40/20 rule operates, which means that information is routinely kept for 20 years or until someone is aged 40—whichever is later. She continues:
“In some cases the information that is retained and passed on is of referral details and background information, where there has been no opportunity for the child or parent to accept or dispute the facts.
The extended period of disclosure undermines a key tenet of the Kilbrandon philosophy on which the ... System is based: namely that the system should avoid the stigmatisation and criminalisation of children. Instead it seems that children are being burdened (potentially) with a longer period of stigmatisation than adults for much lower level offences”,
sometimes
“merely on suspicion.
Importantly there is very strong evidence from the Edinburgh Study of Youth Transitions and Crime that the overwhelming majority of youngsters who have contact with the Hearings System (triggered by their offending) do not pose a risk to others in adulthood. The Edinburgh Study is a longitudinal programme of research tracking the lives of”
almost 4,500
“young people who started secondary school in the City of Edinburgh in 1998.”
I will comment briefly on the amendments in the name of the minister. The Government has lodged amendments to address the issue that I have raised, for which I am grateful. I know that Mr Ingram shares the committee’s concerns. However, I understand that, although the Government’s amendments are an improvement, they will limit the offences that could form the basis of a criminal record, so they will still use automatic listing rather than a decision-making process by the panel, in which the risk or proportionate danger of reoffending would be taken into account. That is important, because the evidence from Professor McAra and others is that it is difficult to tell simply from the nature of an offence whether a child poses a risk to others.
The amendments in my name would end the unfairness of the system discriminating against those who admit offences and are brought before hearings, unlike those who do not go before the hearings system but who pose a far greater risk of offending. Amendments 370, 371 and 375 would introduce a review process when a child left the children’s hearings system and entered adulthood. The review would decide whether that child should carry into adulthood a criminal record or a warning on the disclosure system about the risk that they pose to others or their risk of reoffending. The process would allow the hearings system to take a decision that was based on evidence and assessments, in contrast to the current blanket provision.
I move amendment 370.
As Ken Macintosh said, the group contains two sets of amendments on the impact of children accepting or having established offence grounds in the children’s hearings system. I will speak first to amendments 376 to 379, in my name, before speaking to the amendments in the name of Mr Macintosh.
At stage 1, I undertook to lodge amendments to tackle the unequal and in some cases disproportionate disclosure of offences that emanate from children’s hearings. I thank committee members for their sensitive discussion and consideration of the issues. The stage 1 report summed up the considerations at play here rather elegantly. It stated:
“On the one hand, the Committee acknowledges that it is important that, where a child has committed a serious offence and may potentially offend again and be a danger to others, it is essential that that information be disclosed to those who need to be aware of it, at the appropriate time. On the other hand, children who have committed less serious offences should have the opportunity to turn their lives around and should not necessarily have to carry a criminal record, with the potentially damaging impact on their employment prospects that it brings, into adult life.”
I believe that the amendments that I have lodged will achieve the outcomes that the committee seeks. They will ensure that the vast majority of disposals by a children’s hearing are not subject to disclosure in later life.
Importantly, the amendments change the definition of all those disposals from a conviction to an alternative to prosecution. That is right for children who are dealt with in our welfare-based children’s hearings system. For those who have already been dealt with in that way, the amendments provide a mechanism for treating their cases fairly and consistently. If you like, we are decriminalising the system—we are taking away the notion of conviction and allowing people who have been through the system to have their convictions, as it were, wiped from the record.
I agree with the committee’s position that in the interests of public safety it is right that some offences ought to appear on disclosure certificates. The problem with the current system is that it does not provide sufficient discrimination between those offences for which disclosure is a sensible measure to protect the public, and those for which it is, in the eyes of many, disproportionate. If we want to provide our young people with the best opportunities to succeed, we must end the situation whereby low-level offending follows them into adulthood.
Some children are more vulnerable than others and have differing needs that can impact on the outcome at a hearing. We want to ensure that disclosure arrangements are decided on the seriousness of the offence when it has been accepted or established, not on the outcome of the referral. We believe that that can best be achieved by prescribing a list of serious and violent offences by order that would be automatically accessible to Disclosure Scotland. We will consult with stakeholders to ensure that the agreed list of offences is proportionate to the consequences of disclosure.
We envisage that those serious offences will continue to be disclosed on standard and enhanced disclosures and in records held under the protecting vulnerable groups scheme. That will occur only when an individual is seeking employment that involves being in a position of trust or working with vulnerable groups. An amendment will also have to be made to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 to fully deliver that policy intention. That will be done as part of the implementation of the new system.
It is important to explain the potential future employment consequences of accepting serious and violent offence grounds. By making changes to the procedural rules, that will become the responsibility of the reporter, who will inform the child of the consequences in advance of a grounds hearing. The hearing will also have a responsibility to ensure that the child has been informed before proceeding with the hearing; it is best placed to do that in a child-friendly way. Providing an explanation in that manner ensures that the child and relevant persons will understand what they are agreeing to.
The amendments strike the correct balance between the rehabilitation of individuals who may have offended as children, and the protection and safety of children and vulnerable adults. By ending the criminalisation of children through disposals from the children’s hearings system, and making proportionate the circumstances in which behaviour that is displayed in childhood impacts on an individual’s later life, I am confident that the amendments will mark a real step forward.
Although, of course, I support the intentions behind on the impact of children accepting or having established offence grounds in the children’s hearings system, I suggest that there are two key issues to be addressed in any changes to the bill: the criminalising of children and ensuring public safety. In addressing the first issue, we cannot compromise the second. It is possible to address both issues in a measured, consistent and proportionate way, but I am of the view that the amendments in the name of Ken Macintosh do not achieve that balance. I will explain my reasons for that view.
On the decriminalisation of children in the hearings system, Ken Macintosh was very keen to see changes that would remove any hint of criminalisation when a child accepted, or had established, offence grounds for referral in the system. Concerns centred on the current provisions in the Rehabilitation of Offenders Act 1974, which states that all offence grounds that lead to a compulsory supervision order should be classed as a conviction. In most cases, as Ken Macintosh has indicated, that conviction leads to the retention of the information on disclosure certificates until the child is 40 years old. Quite clearly, that is unacceptable and most often entirely disproportionate to the offence.
Under Ken Macintosh’s amendments, a hearing would have the duty to consider whether an offence ground should be classed as a conviction. It would seem that, if a hearing were to consider it appropriate, an offence ground would continue to be classed as a conviction under the 1974 act, retaining the real option of offence grounds in the children’s hearings system continuing to be classed as convictions. Is Ken Macintosh clear that his amendments go far enough in addressing the issue of criminalisation of children in the children’s hearings system? I am not clear that they do, particularly when compared with my suggested approach, and I ask him to confirm his view in that respect.
The amendments in my name seek to remove any possibility of an accepted or established offence ground ever being classed as a conviction, because they include the repeal of section 3 of the 1974 act. As the entire provision would be removed, children whose offending behaviour is dealt with through the children’s hearings system would not be criminalised. My proposals also centre on the disclosure arrangements that will be applied when a child commits an offence that could suggest a risk to public safety and put in place proportionate arrangements for that without the need to class the offence as a conviction.
That brings us to the second consideration, which is the need to maintain public safety. The amendments in the name of Ken Macintosh seek to place additional duties on the hearing to consider whether the child or young person should be treated as a rehabilitated person. However, they do not provide any criteria or list of factors by which the children’s hearing would make that assessment; as a result, it would be left to its own devices without any assistance from the legislation. I have a number of concerns about the proposal, not least the expectations that would be placed on panel members and what seems to be the introduction of a punitive element to the hearing’s decisions. That is entirely contrary to the ethos of the children’s hearings system and to the key principle of the hearing, which is to operate in the best interests of the child.
As great store has been set by stakeholder consultation and engagement during the development and scrutiny of this bill, I have to wonder whether the views of stakeholders, most pertinently panel members and panel chairs, were sought before these proposals were brought forward. I ask the question, because I know that panel members are very conscious of their fundamental purpose, which is to consider the child’s best interests. Asking them to make a decision on whether a child represents such a risk to public safety that their offence should be classed as a conviction, with the disclosure implications that follow, is to ask them to consider wider issues of public safety—and not only public safety at the time of the hearing, but the risk that the child might continue to pose well into adulthood. On what criteria should the hearing base such a decision? The amendments from Ken Macintosh do not provide any guidance. I would be very surprised if panel members were comfortable with or happy to implement such a change in their role. Perhaps Ken Macintosh could provide reassurance that panel members have been consulted on the proposals and have agreed to take on such a duty. I wonder also whether public safety can truly be consistently protected under such a scheme.
12:15
The purpose of the amendments in the name of Ken Macintosh appears to be for the hearing to make a decision about disclosure arrangements in each and every case, including where a serious sexual or violent offence has been committed. Is it appropriate for a child who has committed a serious sexual offence, for example, to go on to be employed—perhaps just a couple of years later—working with vulnerable groups without the employer being aware of that offence?
I am also surprised to see that the trigger for the new decision-making power of the hearing would remain the point at which a hearing makes a compulsory supervision order. That is despite many views being expressed about the unfairness of that trigger, particularly when we consider the circumstances of two children being involved in the same offence but only one of them being made subject to a compulsory supervision order. That has not been addressed by Ken Macintosh’s amendments, and I wonder whether that issue was considered when they were being developed.
I have a further point about the amendments from Ken Macintosh and the process that would be put in place were they to be accepted by the committee. A child could accept offence grounds in a hearing without knowing whether that would result in the hearing then making a decision on whether it would be classed as a conviction. Ken Macintosh has been very interested in children being properly supported and advised prior to and during a hearing, and he has taken great interest in how children are currently advised of the implications of accepting offence grounds in respect of the Rehabilitation of Offenders Act 1974. He was concerned that they truly understood those implications. Indeed, the committee has raised cases where a lack of understanding of the implications has led to children being disturbed to find, later in their lives, what information was contained in their disclosure certificates.
The amendments that have been lodged by Ken Macintosh seem to be introducing a confused system that is subject to a number of variables regarding whether the child’s offence will be classed as a conviction and regarding the disclosure implications of such a decision. Furthermore, Ken Macintosh’s system would depend on the decisions made by a hearing at different points of the process, and it would all hinge on whether a hearing makes a compulsory supervision order, rather than on the acceptance or establishment of grounds. Can we really expect a child to understand the consequences when there are so many variables attached to them?
I am keen to hear whether Ken Macintosh is satisfied, first, that his amendments remove the criminalisation of children in the children’s hearings system, and that they address issues to do with public safety; secondly, that panel members have been consulted and have agreed to undertake the significant new duties that his amendments would entail; and thirdly, that children’s rights can be upheld if they are expected to accept offence grounds without sufficient understanding of the implications.
On the basis of the points that I have made, I urge Ken Macintosh to withdraw amendment 370 and not to move amendments 371 and 375. I will move amendments 376 to 379.
I seek a point of clarification from the minister on something that he said in relation to the amendments in his name. He mentioned the list of more serious offences. Would the provisions be applicable only where the child went on to work in a situation in which they were in close contact with members of other vulnerable groups? Is that what you said, minister? I would like that to be clarified.
When young people apply for employment in regulated work, they clearly require a disclosure certificate from their employers. In those circumstances, this type of information would be relevant.
Right, but by definition it would not be relevant in other cases when they were not applying for employment in regulated work.
What are your thoughts on the list of offences and how it will be compiled?
Clearly, that will be a matter for consultation. My thoughts are that the list would comprise only very serious violent or sexual offences and that it would be subject to affirmative procedure in Parliament, so it would come back to us for debate.
I invite Mr Macintosh to wind-up the discussion on the group and indicate whether he wishes to press or withdraw amendment 137.
I will go in reverse order and start by commenting on the two points raised by Elizabeth Smith and Margaret Smith. The list that Margaret Smith has asked the minister about covers violent and all serious sexual offences. The list has not yet been drawn up, but my understanding is that a list has been drawn up for the retention of DNA, for example. I do not think that I am giving the game away by saying that I believe that that list may be the model on which any other list is developed.
The key point for me—I will give an example later—is that the list will include not only serious sexual offences but a number of sexual offences whose seriousness may be a matter for debate. They are obviously serious at the time, but they are of a nature that means that we should consider whether such an offence committed by a 14-year-old boy rather than an adult should be seen in the same light and regarded as a serious offence when that child is an adult. The key point is that the list will be automatic and that, although the minister has used the word “serious”, it will cover all sexual offences. You might say that all sexual offences are serious, but I would say that there are degrees within that.
Elizabeth Smith asked who would see the disclosure. It is a full disclosure, so it will be seen by anybody who would see someone’s full disclosure. It is required for regulated work, but the point is that it is on your disclosure record, so anybody who is given the full information will see it. It is not a question of having to ask for the information; it is available to those who have access to all the information on the disclosure record.
I welcome the amendments in the name of the minister. I do not believe that they go far enough, but I whole-heartedly welcome the fact that the Government has brought them forward and I also whole-heartedly agree with the minister’s analysis of the balance that we have to strike between criminalisation and public safety. It is important that we assess the situation and rebalance it so that a distinction is drawn between those who are at risk of committing further offences and those who are currently disproportionately stigmatised well into adulthood, although they pose no danger to others—they have benefited from the hearings system and should be given a proper start in life.
The Government’s amendments are interesting as they take a different approach. The minister suggests that getting rid of all convictions and changing them all to alternatives to prosecutions is an improvement. That is one way of looking at the issue. As worded, my amendments neither seek to suggest that young people do not commit very serious offences nor seek to ignore the possibility that they might pose a risk to themselves and others as they get older. Their aim is to get rid of automatic blanket discrimination in the current system, which does not discriminate between the whole host of low-level offences that young people commit and those young people who are very serious offenders and are perhaps going off the rails—and will continue to go off the rails, no matter how much we try to assist them.
Although we need to discriminate between those groups, I do not think that it helps to treat all young people as if they do not have any convictions. What we need is an assessment or some form of discriminatory process that applies certain criteria to allow someone to make a judgment on each individual case. I can think of no better body to do that than the children’s panel, which considers the child’s welfare, reviews each case when the supervision orders come back to it, and is in a position to assess whether the compulsory supervision requirement has worked or whether the case needs to be flagged up as the child progresses to adulthood. As a result, I think that the minister is almost going from one extreme to another. Although he is seeking to narrow the criteria, which I welcome, the process is still automatic and does not apply any judgment or assess any risk. In many cases, before adults are sentenced, their risk of reoffending is assessed by social work. I find it odd that we do not do the same for children, and the introduction of such criteria forms the key aspect of my amendments.
The minister suggested that, for some reason, my amendments would introduce a punitive element into the children’s hearings system. Far from it; in fact, that element already exists if you regard a criminal record as something punitive. I am simply seeking to introduce the option of removing the punitive element, which, in any case, is not how I would regard a criminal record. In my view, it is simply a rather heavy-handed and unfair way of passing on information which, in covering everyone, does not target those young people about whom we need to maintain information.
I accept that my amendments do not refer to guidance, which would undoubtedly have to be drawn up and issued. I point out, though, that guidance exists elsewhere in the criminal justice system, never mind in the children’s hearings system. Children’s panels exist to take decisions on a child’s future welfare and to treat children according to their needs, not their deeds. That is their very essence, and asking them to judge whether children should be labelled and given a criminal record that will be carried into adulthood is not asking much more than is already asked of them. In fact, I am fairly confident that most panel members would prefer to be given the option of assessing whether a child needs to have an offence on their record and have the matter left to their discretion.
In response to the minister’s question whether I had consulted panel members on these amendments, I have to say that I have not. Has he consulted panel members on his amendments? I doubt that he has consulted anyone on any of his stage 2 amendments. As it happens, Professor McAra and others have held a number of sessions, including one at which members of the minister’s team, the SCRA and others were present and made contributions. The decision is for the committee to make, but this concept is not one that our society is used to discussing in the papers, the media and elsewhere.
On the minister’s question whether it is acceptable for a child convicted of a serious sexual offence to work in a protected position, I am reminded of a particular case that illuminated the whole issue for me. I will not go into all the details, but it involved a young man who, at the age of 14, was brought before a children’s hearing because he had been guilty of slapping some adult women on the behind. I mention the case not to approve of or in any way condone that activity. I suggest that such behaviour by a 14-year-old boy should be picked up on, and that is what the children’s hearings system did. The boy had been adopted into a good family and was well brought up. He admitted the offence because his parents had taught him to own up when he had done something wrong. He went to a children’s hearing and admitted the offence but did not discover until he was 23 or 24 that it was on his record. He admitted the offence, so it is on his disclosure record as a sexual assault. He did not even know that it was on his disclosure record until he applied for a job. That raises lots of issues. He should have known about that—the information should have been made available to him.
The boy went through the children’s hearings system and was dealt with successfully by a children’s hearing. He was placed under a supervision order, which was lifted because the incident in question was seen to be something that had happened at a particular point in his teenage years and his subsequent behaviour showed no signs of such a tendency. The minister’s amendments would not address that situation. I am not saying that we should frame legislation around one case. Because the boy admitted what was classed as a sexual assault, that is on his record. In future, anyone in such a situation will have that on their record for the rest of their life.
However, I suspect that there are some children and young people who never get picked up for any serious offences but who will pose a risk to others throughout their adult lives. In other words, all that they will have against their name is a series of mild infractions of the law, because they never commit a serious offence when they are young. They will go into adulthood with nothing against their name, even though they might have committed hundreds of offences. I think that a system that allows those children to be treated as entirely innocent, if I may use that term, in adulthood but which treats someone who makes a one-off mistake as guilty is wrong. I believe that my amendments would address that. The whole point is that they would allow discretion and judgment to be brought to bear on the issue of risk. They are truly proportionate and would end automatic treatment in an automatic system that does not allow for judgment.
I urge members to support my amendments and, if they do not, to support the minister’s.
We should move straight to the question on amendment 370, but I am conscious of what a sensitive issue we are dealing with. There is no obligation on the minister to say anything further, but I do not want him not to have the opportunity to do so before the committee comes to a vote.
I will briefly summarise what I hope is an elegant solution to a question that the committee posed in an elegant way.
Children’s hearings disposals will no longer be defined as convictions. Essentially, they will become alternatives to prosecution. In that way, we will decriminalise the system. That will apply retrospectively, so people who have been affected by the issue in the past will have the problems that Ken Macintosh and others have described addressed.
In addition, we are not placing the burden of responsibility for public safety on children’s panel members. They should make decisions that are for the benefit of the child who is in front of them. I suggest that they are not best placed to make decisions about public safety. Prescribing the list of offences that will continue to be disclosed is an important judgment.
At the end of the day, the reporter is the person within the system who brings forward the grounds for consideration by the children’s panel. The other important aspect of amendments 376 to 379 is to ensure that the child is aware of the consequences of accepting grounds.
That is my position, and I hope that the committee will support it.
I will press amendment 370.
The question is, that amendment 370 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Macintosh, Ken (Eastwood) (Lab)
Against
Allan, Alasdair (Western Isles) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Gibson, Kenneth (Cunninghame North) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Margaret (Edinburgh West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Amendment 370 disagreed to.
Amendments 318 and 164 moved—[Adam Ingram]—and agreed to.
Section 135, as amended, agreed to.
Section 136—Powers of children’s hearing on deferral under section 135
Amendments 165 and 166 moved—[Adam Ingram]—and agreed to.
Section 136, as amended, agreed to.
After section 136
Amendment 319 moved—[Adam Ingram]—and agreed to.
Amendment 371 not moved.
Sections 137 to 139 agreed to.
Section 140—Breach of duties imposed by sections 138 and 139
Amendment 320 moved—[Adam Ingram]—and agreed to.
Section 140, as amended, agreed to.
Sections 141 to 143 agreed to.
Section 144—Movement restriction conditions: regulations etc
Amendment 354, in the name of the minister, is grouped with amendment 355.
These amendments are about movement restriction conditions—MRCs.
Section 144 provides for a regulation-making power for MRCs. The Intensive Support and Monitoring (Scotland) Regulations 2008 currently specify the conditions for an MRC, which include the period and duration of the restrictions. The regulations prescribe that an MRC should endure for no longer than six months.
The intention is to replicate those conditions, as they are a fundamental part of an MRC. To that end, we wish to strengthen the bill to ensure that regulations are clear on the matter. Therefore, amendment 354 makes it explicit that the regulations can limit the duration of each measure within the MRC.
Amendment 355 meets a commitment that I made to the Subordinate Legislation Committee to change the regulation-making power in section 144 from the negative to the affirmative procedure.
I move amendment 354.
Amendment 354 agreed to.
Amendment 355 moved—[Adam Ingram]—and agreed to.
Section 144, as amended, agreed to.
Section 145—Implementation of secure accommodation authorisations
Amendment 356, in the name of the minister, is grouped with amendments 357 to 360, 372 to 374 and 366. I invite the minister to move amendment 356 and to speak to all the amendments in the group.
The most significant amendment in the group is amendment 366, which seeks to amend the general definition of “chief social work officer” to incorporate reference to both implementation authorities and relevant authorities. That is because a secure accommodation authorisation can be included in things other than compulsory supervision orders and interim orders, meaning that an implementation authority will not always be specified.
Amendments 356 to 360 and 372 to 374 are consequential to amendment 366. This series of amendments will ensure that the powers and duties provided by the affected sections are conferred on the chief social work officer for the local authority that is responsible for implementation in each case.
I move amendment 356.
Amendment 356 agreed to.
Amendments 357 to 360 moved—[Adam Ingram]—and agreed to.
Section 145, as amended, agreed to.
Section 146—Secure accommodation: placement in other circumstances
Amendment 361 moved—[Adam Ingram]—and agreed to.
Section 146, as amended, agreed to.
Section 147—Secure accommodation: regulations
Amendments 362 to 364 moved—[Adam Ingram]—and agreed to.
Section 147, as amended, agreed to.
Sections 148 and 149 agreed to.
Section 150—Procedure
Amendment 372 moved—[Adam Ingram]—and agreed to.
Section 150, as amended, agreed to.
Section 151—Determination of appeal
Amendment 380, in the name of the minister, is grouped with amendments 381, 202 and 382. I invite the minister to move amendment 380 and to speak to all the amendments in the group.
12:45
This group of amendments relates to the sheriff’s powers in the event of an appeal against the hearing’s decision. Amendment 380 relates to section 151(3)(a), which allows the sheriff to refer the matter back to the hearing for consideration of whether a compulsory supervision order is necessary. On reflection, that power might have the effect of narrowing the issues that the hearing could consider, and it does not allow for a hearing to be arranged. Amendment 380 therefore replaces subsection (3)(a) with a power to
“require the Principal Reporter to arrange a children’s hearing for any purpose for which a hearing can be arranged under this Act”.
That reflects the fact that such cases may be at different stages in the process, such as a grounds hearing, a subsequent hearing or a review hearing.
Amendment 381 makes provision for a power that is available under the 1995 act but which has been omitted from the bill. It allows the sheriff to discharge the child from any further hearings or proceedings in relation to the grounds of referral that stimulated the referral to the children’s hearing. Amendment 382 is consequential to amendment 381. It ensures that, when a child is discharged under that power, all existing orders and warrants that are in effect in relation to the child also terminate at that point.
I turn to Ken Macintosh’s amendment 202, which I understand was driven by the Law Society. The amendment seeks to extend the sheriff’s powers under section 151(3). That provision sets out the sheriff’s powers at the conclusion of his appeal decision and allows him to take one of four steps, including to
“make an order (other than a medical examination order) or grant a warrant which a children’s hearing may make in relation to the child in the circumstances.”
Essentially, the sheriff has the power to put in place a compulsory supervision order of the kind that is set out in section 97. I suggest that Ken Macintosh’s amendment is intended to achieve the same aim and is therefore unnecessary. I therefore ask him not to move amendment 202.
I move amendment 380.
As the minister said, I lodged amendment 202 for the Law Society. It is a probing amendment to ensure that the issue was aired at committee. Unless any member indicates otherwise, I will certainly not move it. In fact, I do not agree with it myself, but sometimes it is important to have issues raised.
Just to explain, the amendment adds to the steps that the sheriff would take if an appeal under section 148 is successful. It provides that the sheriff may
“substitute for the disposal by the children’s hearing any requirements that could have been imposed by the hearing.”
We discussed the issue at stage 1. There was a system in place before the 1995 act, which amended it, that allowed the sheriff to replace the decisions of the children’s hearing with disposals of his own. The committee expressed concern that section 151 could undermine the powers of the children’s hearing. We asked the minister to come back to the committee before stage 2 to explain his position on section 151.
As I said, I raised the issue on behalf of the Law Society, but unless anyone indicates otherwise, I will not move it.
Perhaps it would be helpful if I refer members to section 12 of my response to the committee’s stage 1 report, which contains our response to the committee’s concerns on appeals to the sheriff.
I do not think that I need to add anything further to the debate, convener.
Amendment 380 agreed to.
Amendment 381 moved—[Adam Ingram]—and agreed to.
Amendment 202 not moved.
Amendment 382 moved—[Adam Ingram]—and agreed to.
Section 151, as amended, agreed to.
Section 152 agreed to.
Section 153—Compulsory supervision order: suspension pending appeal
Amendment 383, in the name of the minister, is in a group on its own.
Section 153 is based on elements of section 51 of the 1995 act. Under section 153, the child or relevant person who appeals against a decision of the children’s hearing imposing a compulsory supervision order may request that the principal reporter arranges a hearing to consider whether that decision should be suspended, pending the determination of the appeal.
Currently, section 153 applies only to the making of a compulsory supervision order. However, decisions to vary, continue or terminate the order, as well as decisions to make the order, may be appealed under section 148. Amendment 383 ensures that section 153 replicates all the relevant decisions of the hearing under section 148. That means that those appealing any decision that the children’s hearing makes in relation to a compulsory supervision order may request that a hearing is arranged to consider suspension of the decision, pending determination of the appeal. The amendment carries over to the bill the existing provision in the 1995 act.
I move amendment 383.
Amendment 383 agreed to.
Section 153, as amended, agreed to.
Section 154 agreed to.
Section 155—Appeal to sheriff against determination under section 80
Amendment 203 not moved.
Amendments 321 to 323 moved—[Adam Ingram]—and agreed to.
If amendment 324 is agreed to, I will not be able to call amendment 204, because it will have been pre-empted.
Amendment 324 moved—[Adam Ingram]—and agreed to.
Amendments 205 and 206 not moved.
Amendment 325 moved—[Adam Ingram]—and agreed to.
Section 155, as amended, agreed to.
After section 155
Amendment 384 moved—[Adam Ingram]—and agreed to.
Section 156—Appeal to sheriff against decision to implement secure accommodation authorisation
Amendment 373 moved—[Adam Ingram]—and agreed to.
Section 156, as amended, agreed to.
Section 157—Appeals to the sheriff principal and Court of Session: children’s hearings etc
Amendment 385, in the name of the minister, is grouped with amendments 386 to 398. I will make this the last grouping that we consider today.
These 14 amendments are mainly technical, drafting or consequential amendments that apply to appeals to the sheriff principal or Court of Session under sections 157 and 158.
Amendment 385 makes clear that appeal rights under section 157 do not apply in circumstances in which a child has pled guilty to or been convicted of a criminal offence. The appropriate course for appeal is through criminal proceedings.
Amendment 386 makes clear that appeal rights under section 157 for a review of a finding that a ground is established—that is to say, that there is proof of the ground—relate to the original finding of proof under section 114.
Amendment 387 is consequential to amendment 284, which introduces a new section to make clear that a sheriff may extend interim compulsory supervision orders as many times as they consider appropriate. Amendment 387 ensures that all extended interim orders carry the relevant appeal rights.
The bill as drafted sometimes makes reference to the determination of an appeal rather than the decision in an appeal. Amendments 388, 390, 391, 393, 394 and 396 to 398 make minor drafting changes that seek to ensure consistent use of language in the appeals process.
Amendment 389 seeks to clarify the right of appeal for a safeguarder who is appointed by a children’s hearing by providing that they may not appeal against a decision of the sheriff in relation to a grounds determination or the review of a grounds determination. It does so because the safeguarder was appointed by the children’s hearing and not by the sheriff and may not, therefore, have taken part in those court proceedings.
Amendment 392 clarifies that appeal rights under section 157 cover a review of a finding that a ground is established where that is a new ground that was originally established by the sheriff under section 119.
The bill currently provides for joint appeals by specific individuals, but no provision has been made for an individual who wishes to be deemed a relevant person to appeal jointly with any other party. Amendment 395 resolves the issue by substituting a more general power that allows any of the parties to make a joint appeal.
I move amendment 385.
Amendment 385 agreed to.
Amendments 386 to 392 moved—[Adam Ingram]—and agreed to.
Section 157, as amended, agreed to.
Section 158—Appeals to the sheriff principal and Court of Session: relevant persons
Amendments 393 to 398 moved—[Adam Ingram]—and agreed to.
Section 158, as amended, agreed to.
After section 158
Amendment 399 moved—[Adam Ingram]—and agreed to.
Since it is 1 o’clock, this is an appropriate place for us to conclude our stage 2 deliberations on the Children’s Hearings (Scotland) Bill. I remind committee members that we will return to the issue next week. The meeting will start at 9 o’clock. If we do not conclude stage 2 of the bill during our meeting on Wednesday morning, we will reconvene on Wednesday evening—I hope that that will concentrate minds. Thank you for your attendance.
Meeting closed at 13:00.