Children’s Hearings (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Children’s Hearings (Scotland) Bill. Members should have the bill as amended at stage 2, which is Scottish Parliament bill 41A, the marshalled list, the groupings, which the Presiding Officer has agreed and, this time—members should listen because there is something slightly different—a supplement to the marshalled list, containing manuscript amendments lodged today that the Presiding Officer has agreed may be taken. The supplement also provides details about which groupings those amendments fall in. The division bell will sound and proceedings will be suspended for five minutes before the first division, for a voting period of 30 seconds.
Section 1—The National Convener
We come to group 1. Amendment 1, in the name of the minister, is grouped with amendments 2, 109 and 118.
The amendments deal with the appointment of the national convener and principal reporter and ensure the involvement of children and young people in the appointment process. We had planned to involve children and young people in the appointment of the first national convener through non-legislative means, but it was clear at stage 2 that the Education, Lifelong Learning and Culture Committee favoured provision in the bill to that effect and in respect of any subsequent national convener appointments.
There were some technical issues with the amendments accepted by the committee at stage 2. For example, they would have required consultation on the appointment with every person under the age of 18 in Scotland. I have therefore sought to make alternative provision. Amendment 1 provides that ministers “must take reasonable steps” to involve children and young people up to the age of 21 in the selection of the first national convener. We have already had initial discussions with partners about how that will work in practice.
Amendment 2 is consequential to amendment 1. Amendment 109 makes the same provision as amendment 1 in respect of children’s hearings Scotland, which will have responsibility for subsequent appointments or reappointments of national conveners.
In making that provision in respect of the national convener, it is right to make the same provision in respect of the principal reporter. Amendment 118 provides for that and is supported by the Scottish Children’s Reporter Administration.
I move amendment 1.
No other member has asked to speak—[Interruption.] Suddenly members have asked to speak.
I was waiting too politely.
I thank the minister for lodging the amendments. The committee discussed the issue at stage 2 and agreed specifically on the involvement of children in the appointment of the national convener. There was a series of amendments designed to put children at the heart of the children’s hearings process. I am happy to offer Labour’s support for the minister’s revising amendments.
The minister was intending to lodge amendments on a related issue, which was to establish a reference group of children and young people. The committee discussed the matter between stage 2 and stage 3 and I believe that the minister has established a working group that can fulfil that purpose and that he intends to address those issues through regulations. I would welcome confirmation of that today.
Like Mr Macintosh, I welcome the amendments, which are based on a fundamental point that was raised consistently with the committee during its deliberations on the role of the new national convener. There has been some tension about the functions and role of the national convener. The stakeholders, who have been anxious at times, are a little more comfortable as we reach the end of our deliberations on the bill.
It is important that all stakeholders are involved in our deliberations on the setting up of the new body, children’s hearings Scotland, and, in particular, on the national convener. The involvement of children in that role is vital and sets the tone for how the bill will improve things so that we not only listen to children’s experiences but reflect their concerns.
I thank members for their support for the amendments and I confirm the points that Mr Macintosh made about a national reference group. I hope that we can take that matter forward in short course.
Amendment 1 agreed to.
Amendment 2 moved—[Adam Ingram]—and agreed to.
After section 9
We come to group 2. Amendment 3, in the name of Elizabeth Smith, is the only amendment in the group. I call Elizabeth Smith to speak to and move the amendment.
There is a simple principle behind amendment 3—namely, the assurance that there will never be any facility for any person who occupies the office of national convener or of principal reporter to intervene to direct or guide the decision-making process of a children’s hearing.
At stages 1 and 2, there was some debate around the definition of the legal advice that could be provided; in particular, about whether that could be interpreted as a facility to direct what ought to happen as opposed to a factual statement of the legal options and what could happen. There is, I suggest, a subtle difference between the two and it would not be appropriate for the national convener to be in too powerful a position when it comes to providing legal advice.
If improving legal representation for children is one of the main objectives of the bill, it must ensure that there are appropriate checks and balances. That is why the independence that is enshrined in amendment 3 is crucial. I hope that members will support the amendment.
I move amendment 3.
Throughout the committee’s deliberations on the bill, volunteers who serve on our children’s hearings panels every day told us that they thought that their independence was absolutely central to the fair and just operation of the children’s hearings system. They thought that that independence was vital in ensuring that the children and young people who appear in front of those panels had confidence in the system. Amendment 3 is a helpful addition that enshrines in statute the independence of children’s hearings panels. It is important that we put that on the record to ensure that there is confidence in the system in the years ahead.
I support amendment 3, which makes clear the parameters of the powers of the national convener and the principal reporter in respect of a hearing. It supports and protects the independence of the hearing, which is a key principle of the bill and one that is demonstrated across all its provisions.
Although the national convener has a statutory duty to provide independent advice to a hearing, the principal reporter also has the right to attend a hearing and can make submissions to the hearing. I welcome the fact that the amendment makes it clear that neither the national convener nor the principal reporter can guide or direct a hearing in the carrying out of any of its functions.
Amendment 3 agreed to.
Section 10—Power to change the National Convener’s functions
We move to group 3. Amendment 4, in the name of the minister, is grouped with amendments 122, 159, 6, 123, 160, 161, 150, 150A, 150B, 150C and 162. That includes the manuscript amendments.
This group of amendments relates to the order-making powers under sections 10 and 17. Those powers will enable the functions of the national convener, under section 10, and the principal reporter, under section 17, to be altered in the future and will enable ministers to specify the manner or period in which a function conferred on either person or party is to be carried out. The bill provides that those orders are to be subject to affirmative procedure.
As members may recall, Ken Macintosh lodged an amendment at stage 2 that would have required ministers to consult widely prior to using the powers. The amendment was withdrawn on the basis that I would work with Mr Macintosh to prepare appropriate amendments for stage 3. I have subsequently lodged amendments 4 and 6, which require consultation with children, young people and others to take place, as appropriate, prior to the functions of the national convener and the principal reporter being amended or ministers specifying how and when a function is to be carried out.
I believe that the amendments are in line with Kenneth Macintosh’s original amendment and make what I believe to be proportionate provision. I acknowledge the strength of concern about the use of the powers, particularly in relation to the national convener and the powers that could be bestowed on him or her. Karen Whitefield’s amendments 122, 123 and 150 seek to address that concern by making the powers subject to super-affirmative procedure, which would introduce a much greater level of scrutiny. I am content to accept the amendments, subject to the seven manuscript amendments, which I am grateful to the Presiding Officer for accepting for debate today. Those manuscript amendments do not change the substance of Karen Whitefield’s amendments or the parliamentary procedure that she proposes. Rather, they ensure that the pre-consultation will be proportionate. For example, amendment 150C provides for the publication of draft orders, rather than for a draft order to be sent to every person in the country under the age of 21.
I hope that the Parliament will accept my manuscript amendments along with Karen Whitefield’s amendments. If it does, there will no longer be a need for my amendments 4 and 6, and I will seek leave to withdraw them at the appropriate time.
For the moment, however, I move amendment 4.
I am grateful to the minister for the discussions that he has had with me on this subject and the fact that we have been able to get some consensus on the issue.
I lodged these amendments in an attempt to be helpful. Throughout the committee’s deliberations on the bill, there was a central concern around the role of the national convener. A number of concerns were expressed at stage 1 and stage 2. A change to the role of the convener might be necessary in the future—none of us can see into the future and, therefore, we cannot possibly envisage what might be appropriate at a later date. Equally, however, we need to ensure that all the stakeholders are confident that the changes are the right ones, that any change will be subject to full parliamentary scrutiny and that people will have an opportunity to be involved in the discussions about whether any changes are appropriate. That is why a number of panel chairs, reporters and a number of children’s organisations thought that the use of super-affirmative procedures to scrutinise any proposed changes would be appropriate. I am grateful to the minister for listening to those concerns. Labour will support my amendments and, I am happy to say, the minister’s manuscript amendments.
I welcome the minister’s comments and his acceptance of Karen Whitefield’s amendments on super-affirmative procedure, even if it has meant that we must consider even more amendments. I believe that the minister had concerns about the possibility that the introduction of the method might lead to delay and might be an excessive response to the minor changes that were proposed. However, I believe on balance that, given the difficulties that we have had throughout the progress of the bill, and some of the concerns that have been raised about the functions of the national convener and the principal reporter, it is prudent to ensure that the Parliament has the ability to properly scrutinise and amend any proposals to change the functions of those two posts and to ensure that there is proper consultation with stakeholders, including young people.
Several of the key stakeholders have had, and still retain, concerns about the provisions, and it is only right that the Parliament should undertake proper scrutiny of any changes, irrespective of who the responsible minister might be at that time.
As Karen Whitefield says, we do not know what changes might be made in future, but we know that, by agreeing the amendments today, the Parliament will ensure that it and stakeholders have the opportunity to give proper scrutiny to any changes that are proposed.
We will support the amendments, including the manuscript amendments.
It has been apparent, not only from what the minister said today—which was confirmed by Karen Whitefield—but from my reading of the way in which this matter has progressed, that the issue of the national convener has not been without its sensitivities or, indeed, controversy. There is sound merit in Karen Whitefield’s amendment 122 and it is pleasing that the minister recognises that. Subject to the withdrawal of amendment 4, which I am sure is forthcoming, the Scottish Conservatives will support the package of amendments.
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It appears that we agree on the way forward on this issue, and I welcome that. On the basis that members will support Karen Whitefield’s amendment and my manuscript amendments, I seek leave to withdraw amendment 4.
Amendment 4, by agreement, withdrawn.
Amendment 122 moved—[Karen Whitefield]—and agreed to.
Amendment 159 moved—[Adam Ingram]—and agreed to.
Section 11A—Monitoring and review
We move to group 4. Amendment 5, in the name of the minister, is grouped with amendments 97, 98 and 98A.
The feedback loop has been widely welcomed as a means of ensuring that panel members are better informed and better able to take decisions in the best interests of children. There has, however, been considerable discussion—including at stage 2—about exactly what it is for, what information should be gathered and what the bill should provide for.
I am clear that the feedback loop should provide information for panel members on the actions taken by local authorities to implement supervision orders, the impact of those actions on children and the type of interventions that are working well. I believe that panel members will take progressively better decisions once they have access to that kind of information.
In addition, the information should provide at a local level a tool to facilitate open and professional discussion between panel members, local authorities and area support teams. Nationally, the information will allow the national convener to plan and develop training for panel members. If it is to work effectively, we need to strike the right balance between collecting useful information and placing new burdens on local authorities.
It follows that I do not support the amendments to the feedback loop provisions that the committee accepted at stage 2. They would require the provision of quarterly feedback to all panel members on each supervision order that is put in place. We should think about that for a moment. There are around 13,000 children under compulsory supervision at present. To prepare four reports each year for each of them and to provide those reports to each of the three panel members would involve the production of more than 150,000 such reports each year, which I do not believe is proportionate.
Even if reports were brief and were to be provided on a six or 12-monthly basis, there would still be tens of thousands of them, which would have a significant impact on the workload of social work departments and the delivery of services.
Of even greater concern than the workload and bureaucracy that would be created is the amount of confidential information about children that would be flying around the system. It is clear that panel members need that information to take decisions at hearings, and there are safeguards in place to ensure that it is handled appropriately—for example, panel members leave the papers with their reporters straight after the hearings. A whole new system of safeguards would be needed if they were to get more personal information as has been suggested. It is particularly concerning if the information is not directly related to the hearings that they are about to attend.
It is worth noting that panel members do not want that information, and have expressed concern that the amendments that were accepted at stage 2 would
“place an extraordinary bureaucratic burden on local authorities and divert precious resources away from child protection”.
They recommend that the Parliament should delete those amendments, and that is what my amendment 97 proposes. In lodging it, however, I was conscious of the calls at stage 2 for the bill to contain more detail about the information to be collected through the feedback loop. I have sought to provide that through my amendment 98, which gives the national convener the power to collect information on the implementation and impact of supervision orders, to feed that information back to panel members annually on an anonymised and aggregated basis, and to lay it before the Parliament. I believe that that offers a reasonable and proportionate way forward.
Ken Macintosh’s amendment 98A seeks to make it more explicit that the information that is gathered should include outcome data—that is, data on how the wellbeing of children has been affected. I see merit in that and I am happy to support his amendment.
Amendment 5 would remove a provision that was contained in another amendment that was agreed to at stage 2. Section 11A requires children’s hearings Scotland to monitor and review the operation of the hearings system. There are clear links between that provision and the feedback loop in that both seek the gathering of information on how the system is working. Given the detail about the feedback loop that amendments 98 and 98A introduce and the information that they will allow to be collected, I do not believe that section 11A is required.
I move amendment 5.
As several witnesses and members highlighted at stages 1 and 2, the feedback loop is one of the most important innovations or reforms that the Government is introducing under the bill because it offers the opportunity to focus on outcomes for children, rather than simply on the processes for dealing with them. Children in Scotland states in its briefing to members before today’s stage 3 proceedings:
“The most valuable contribution of this Bill to the improvement of Scotland’s landmark Children’s Hearings system ... would be to enshrine in law the duty to robustly gather, analyse and report the actual impacts of its decisions on the lives, life chances and well-being of our ... children”.
At stage 2, the committee made it clear that we wanted greater clarity as to how the feedback loop would operate, and we agreed to two amendments on the issue—one that covered the gathering and dissemination of information at a national level and one that focused on feedback for individual panel members. I believe that we agreed to the latter amendment because many of us have heard from panel members who have complained about being kept in the dark as to the outcome of their decisions. I am sure that some of us have experience of cases where children have gone from one year to the next under a supposed compulsory supervision order but with no actual contact with social services.
The purpose of the amendment was to highlight and focus attention on any improvements or lack of improvements to the welfare or wellbeing of the child. It was certainly not to overburden panel members with information or to overbureaucratise the hearings system. It is clear, however, that many panel chairs and others are worried that that will be its effect. In addition, I would not claim that the amendment that we agreed to at stage 2 on the monitoring and sharing of information at a national level contained the only wording that would achieve that objective.
Having taken advantage of the minister’s offer to discuss the issue further after stage 2, I am reassured that he shares the objective of using the feedback loop to improve outcomes for children who appear before the panel. Children in Scotland, which, along with the other children’s organisations, was pivotal in drawing attention to the issue and which drafted the stage 2 amendments, has suggested, albeit reluctantly, that if we are to agree to the Government’s amendments in the group, we should further support amendment 98A to clarify that it is the wellbeing of children that is at the heart of our thinking. I welcome the minister’s comments on the Government’s support for amendment 98A.
Panel members should be kept informed of the impact that their decisions have on the lives of the children who come before them. That will allow panel members to learn from their own experiences and the shared experience of others. I believe that amendment 98A will help to achieve that aim. For those reasons, I urge members to support all the amendments in the group.
One of the most important messages that we received from many stakeholders in the children’s hearings system was about the need for better monitoring and sharing of relevant information, particularly when it comes to the implementation of compulsory supervision orders. The minister is correct to raise concerns about overburdening panel members and the possibility of sensitive information being too voluminous. The amendments in the group, particularly amendments 98 and 98A, ensure that the process will be much more transparent and rigorous and that it will provide panel members with relevant information about the circumstances of children who have been subject to compulsory supervision orders. The provision of an annual report will also be an important part of the process. We support the amendments.
The feedback loop is one of the most important features of the bill and the discussion on the issue serves to remind us that we are striving to achieve a better children’s hearings system that delivers better outcomes for children.
Throughout the process, some of us felt that panel members would benefit from more specific feedback on what actually happened to children and young people as a result of their decisions. Of course, some of those decisions have been agonised over, and panel members certainly put a great deal of time and effort into ensuring that they do the right thing. Constituents of mine who have volunteered their time to be panel members have told me that they sometimes felt that they just did not get what one would think of as reasonable feedback about the actual impact of their decisions and whether they had benefited the children and young people in question.
As a result, I have always felt that feedback was important, not only to volunteer morale as part of an on-going support system but, more important, to the development of the system and, indeed, its volunteers, who need to know the effects of their decisions and have information about services and outcomes to ensure that they learn lessons about the effectiveness of particular interventions. Like many others, I believe that such a move will lead to better decision making.
Evidence on the level of information sought differs. Some want more personalised information—I have to say that I was minded to go in that direction myself—while others are content with a more general amount of outcome data, information on whether local authorities have implemented orders and so on. However, the children’s panel chairs group is quite clear on the issue. In a letter to the minister today, it states that it remains opposed to the notion of individualised feedback for panel members and cites concerns about the impact on resources and confidentiality.
Bearing that in mind and given that, for me, one of the major driving forces has been the best interests of panel members and their feelings about the system that they will have to implement, we will, on balance, support the Government’s amendments 97 and 98 alongside Mr Macintosh’s amendment 98A. We believe that general feedback to panel members on an annual basis is a helpful and proportionate way forward that will give the national convener and panel members information to improve the system and outcomes for our children.
I call the minister to wind up.
I have nothing more to add, Presiding Officer.
Amendment 5 agreed to.
Section 17—Power to change the Principal Reporter’s functions
Amendment 6 not moved.
Amendment 123 moved—[Karen Whitefield]—and agreed to.
Amendment 160 moved—[Adam Ingram]—and agreed to.
Section 27—Children’s hearing: pre-condition for making certain orders and warrants
We move to group 5. Amendment 124, in the name of the minister, is grouped with amendments 125 to 131, 22 to 33, 36 to 39, 143, 40, 42 to 50, 53 to 60, 62, 69 to 71, 76, 79 to 82, 86 to 90 and 108.
This is a group of 57 amendments. Members will be glad to know that I do not intend to speak to all of them.
Members: Hear, hear.
The amendments relate to three main topics: making provision for new grounds when a child is already subject to a compulsory supervision order; clarifying the powers of a review hearing when it defers a decision on a compulsory supervision order; and simplifying the bill provisions.
Members will be particularly interested in two policy changes, the first of which is made by way of amendment 70. The amendment introduces a new order called an interim variation of the compulsory supervision order, which will apply when the child is subject to a compulsory supervision order and, at a review hearing, the hearing defers a substantive decision for the purposes, perhaps, of further investigation. The interim variation contains many of the components of the interim compulsory supervision order, offering the same flexibility and protections while ensuring that the child remains subject to a single order. As a result, it is simply an adjustment to the existing compulsory supervision order.
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The second change will be made through amendment 80, which will change the policy in section 151 covering the determination of appeals. The amendment seeks to restrict the sheriff’s powers when disposing of an appeal. Currently, when a sheriff is disposing of an appeal and is either confirming or overturning a children’s hearing decision, they could make another order, including a compulsory supervision order. Amendment 80 will amend section 151(3) to provide that the sheriff may only make an interim compulsory supervision order or an interim variation of a compulsory supervision order, or grant a warrant to secure the child’s attendance. The amendment was lodged to make it crystal clear that the sheriff’s powers under section 151, which we are due to debate in the next group of amendments, do not undermine the role of the hearing. It will allow a sheriff to put in place urgent supervision measures or a warrant to secure attendance while a child waits for a hearing to review his or her changed circumstances.
The remaining amendments in the group will simplify the bill’s provisions or make consequential amendments as a result of the three issues that I mentioned. I do not propose to go through those amendments in detail, but I am happy to expand on individual amendments if members would find that useful.
Members: No.
I move amendment 124.
I thank the minister for his comments and welcome the Government’s approach of introducing interim compulsory supervision orders. It is clear that the minister wishes to address concerns and to rebalance the relationship between sheriffs and the court system and children’s panels. However, I do not think that what has been proposed goes quite far enough; I hope that we will address that matter when we consider the next group.
I will speak specifically to amendment 25, which proposes to leave out section 83, because of a concern raised by SCRA Unison members, among others. They highlighted that section 83 currently does not make much sense. It requires a hearing to review any existing supervision measures before fresh grounds are put to the child and family. To be meaningful and to reflect the child’s situation fully, fresh grounds would have to be considered in any review of current supervision measures. Section 83 does not permit that to happen. Therefore, I am pleased that the minister has agreed to remove section 83, which will address that concern.
Minister, do you wish to add anything else?
I suppose that I had better respond to Mr Macintosh’s point about amendment 25.
Under section 83, when the principal reporter arranges a children’s hearing for the purpose of deciding whether a compulsory supervision order should be made in respect of a child, and such an order in relation to the child is already in force, the hearing must review the existing order before it proceeds to determine whether to make a new order. Amendment 36 will insert a new provision to deal more fully with that complex issue. The new provision will apply where a grounds hearing is considering the child’s case and a compulsory supervision order in relation to the child is already in force. Where the new grounds are accepted, the hearing must proceed in the same way as a review hearing, and it may make interim variations as necessary.
Amendment 25 is consequential to amendment 36.
I think that that is all that I require to say.
Amendment 124 agreed to.
I remind members who is in the chair. Be warned: I am not hearing you very well.
Amendments 125 and 126 moved—[Adam Ingram]—and agreed to.
Section 28—Sheriff: pre-condition for making certain orders and warrants
We move to group 6. Amendment 155, in the name of Karen Whitefield, is grouped with amendments 157 and 158.
I am grateful to the minister and his officials for taking the time to discuss with me the motivation behind the amendments in the group, which relate to section 151, and particularly the powers of sheriffs on appeal.
Section 151 has generated considerable concerns, particularly in the past few weeks since the conclusion of stage 2. The bill provides for an extension to the role of the sheriff that is a deviation from the current provisions and the underlying ethos of the hearings system. Everyone in the Parliament would agree that children’s hearings are the best forum for any decision about a referred child. Section 151 will provide for the first time that, whether or not the sheriff is satisfied that the hearing’s decision to which the appeal relates was justified, and where he or she is satisfied that the child’s circumstances have changed since the original decision was made, he or she may substitute his or her decision.
That is a deviation from current practice and is, in my opinion, unhelpful. The primacy of children’s hearings as the key decision maker would be undermined by such an extension. The measure could lead to increased numbers of appeals and a cynical bypassing of hearings by appellants who seek an opportunity to have a child’s case reheard and a sheriff’s decision substituted. Those are not just my concerns. I have received representations from the Unison reporters section, chairs of children’s panels, children’s charities and some sheriffs, who do not think that the new power is necessary.
I am particularly keen for the minister to respond to the point that has been made to me about why sheriffs need that additional power, given that a right of appeal exists. If there is a need to overturn a decision, that could be considered on appeal. I am particularly keen to know whether the Scottish Government asked the Sheriffs Association whether it had a view on the matter, because it appears to me that there is no appetite among the judiciary for such a change. I have lodged amendments 155, 157 and 158 to respond to those concerns and to ensure that we maintain the current position on appeals.
I move amendment 155.
I listened carefully to the arguments that Karen Whitefield advanced, which certainly have some merit. She is entirely correct that the interests of the child must be paramount.
A few weeks ago, I attended, along with the minister, a function at Glasgow city chambers at which there was an opportunity to discuss with panel members—some of whom had served for in excess of 30 years—their attitudes. They expressed the view repeatedly that the system is best dealt with on the basis of informality but is becoming more formal and legalistic. That is inevitable. We all fully understand that there must be an appeals process or there will be difficulties with compliance with European legislation.
At the end of the day, we must consider how effective the overall system will be. At present, sheriffs simply have the power on appeal, if they feel that the children’s hearings system has erred in law, to remit the matter back to the particular hearing to deal with accordingly. That is the situation that Karen Whitefield’s amendments 155, 157 and 158 adhere to. However, urgent situations could arise that might be recognised by the system only during the appeals process. Therefore, we are persuaded that there is merit in the bill as it stands. We shall not support Karen Whitefield’s amendments, although I concede that the points are arguable.
This is one of the areas in which the argument is finely balanced and there is merit on both sides. It is clear that the issue has given rise to a certain amount of concern from children’s panel chairs and others. Some have suggested that, by increasing the powers of the sheriff in this way, the Government is going against the ethos, efforts and nature of the children’s hearings system. I do not believe that that is the minister’s intention. However, I accept that many will support Karen Whitefield’s amendments. I am minded to be one of them.
I believe that the right of appeal remains the best way forward, albeit that there would be no need to go through an appeals process if sheriffs were given extended powers. Like Karen Whitefield, I am not aware of the Sheriffs Association asking for that extension of powers, although I appreciate that it might have difficulty in doing that in any formal way. Most panel members and the members of the Education, Lifelong Learning and Culture Committee—I think that I can speak on behalf of us all—want to see as little court involvement as possible in the process and as much involvement as possible of the children’s hearings system. I agree with Bill Aitken in that regard.
Having met the minister to discuss this and other issues, I know that there are concerns about potential delays in reviewing decisions if the powers of the sheriff are not extended. On balance, I believe that the existing appeals process deals adequately with the situation. I find myself moving towards supporting Karen Whitefield’s amendments. As I said, the argument is finely balanced; there is merit on both sides.
I call Ken Macintosh. Please be brief, Mr Macintosh.
I simply restate my concern about the extension of powers for sheriffs to overrule decisions of the panel. As Karen Whitefield pointed out, that is both unhelpful and unwanted.
The issue was flagged up at stage 1 and stage 2, and it is being raised again at stage 3. As I suggested earlier, there is a balance between the lay justice system—the volunteer nature of the children’s panel—and the more formal procedures of the criminal justice system. I worry that this step is in danger of tipping the balance too far towards the sheriff court. Like Margaret Smith, I do not believe that that is the minister’s intention, but it could be the effect of the provisions; the process could be abused. Bill Aitken made the point strongly and well that we are already worried about an overly legalistic system. I am unsure why Mr Aitken, having made that point, did not continue the logic of his argument into support for Karen Whitefield’s amendments. I certainly think that we should support her amendments.
There has been intense lobbying on the issue over the past week or so. My view is that that has generated rather more heat than light. I do not understand the scale of resistance to the provisions. They are entirely intended to support the best interests of the child, to ensure the maximum protection for children and, in particular, to avoid undue and potentially harmful delays in getting children the type of supervision that they need. Those values are my priority.
I understand that decisions around this issue require a careful balancing act. Two distinct points of view are before the chamber for consideration today. For my part, I whole-heartedly stand by the provisions in the bill. They allow the sheriff to serve the best interests of the child if he is satisfied that the child’s circumstances have changed since the hearing made its decision. Indeed, the decision could have been made several weeks or months before the sheriff considers the matter. Although the sheriff may consider that the decision of the hearing was right and justified at the time that it was made, it may be clear to him, having heard several days of representations from all parties, including the child, that the compulsory supervision order or directions within it no longer meet the needs of the child.
Karen Whitefield’s amendments in the group take us back to the current position. The sheriff would be powerless to take any action to ensure that the child had immediate access to more appropriate support, and he would not be able to refer the child to a hearing for a review of the compulsory supervision order. He would even be prevented from using the no-order principle, which is a fundamental tenet of Kilbrandon and the children’s hearings system.
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The child would have the right to seek a review of the compulsory supervision order, as would the relevant person, but they would need to wait three months to do so. It is rare for a child to seek a review of a compulsory supervision order; a child is dependent on the relevant person doing so on his or her behalf. What if the parenting skills of that relevant person were the reason for the child’s being referred to a hearing? Is it right that the child should have to depend on that person to seek a review or that they should have to wait for three months for a hearing to reconsider the circumstances of their life?
Even more disturbing is the fact that a child could have to wait for up to 10 months for the annual review of their compulsory supervision order, if the relevant person did not seek a review on their behalf. Would it not be better to allow the sheriff to refer the child to a hearing to review the order, as the bill allows? Under the provisions of the bill as it stands, such a review could be available to a child within weeks of a decision by a hearing, but only if the sheriff has the power to refer the child to a hearing.
There are reasons why I stand by the provisions in the bill. I have lodged amendments that restrict the power of the sheriff to making only an interim compulsory supervision order, an interim variation of such an order or a warrant to secure attendance at a hearing. Amendment 80 in the previous group removes the sheriff’s power to make a compulsory supervision order under section 151.
To make the short-term orders to which I have referred, the sheriff needs to have the power to vary or terminate any order that is in force, to avoid the highly unsatisfactory situation of a child being subject to two orders at the same time. My amendments serve to limit the lifespan of the power to 22 days, after which a hearing will review the order and make its own decision. A hearing has always had the power, under section 151(4), to overturn a sheriff’s decision. There is no question of undermining the position of the hearing as the primary decision maker.
I have said all along that use of the power will be rare. I know from current practice that sheriffs respect the hearing’s position as the primary decision maker. The number of children whom the power would affect would be minimal, but the impact on the individual child who benefited from its use could be significant. Without such a provision, a child could be left in limbo for too long, subject to a compulsory supervision order that did not provide the support that the child needed. Decisions around such provisions send a clear message to children about whether they are at the centre of the hearings system, as they always should be. I argue that the provisions of the bill demonstrate clearly that children are at the centre.
In their contributions to the debate on this group, members have indicated that there are concerns about the issue to which it relates. All of us recognise the importance of getting the balance right, but concerns about the new provisions that extend the sheriff’s powers have persisted since day 1. Despite the best efforts of Government ministers and officials to convince them to the contrary, key stakeholders such as our reporters and children’s panel chairs have been unable to accept their arguments. The minister’s commitment or intentions are not in dispute, but today we are voting not on intentions but on legislation—on what the extended powers actually do.
The minister has restated his arguments but, in my opinion, he did not address my central question: if children have the right to request an appeal, why would they not use that right? Why would an appeal not be a more appropriate vehicle for bringing about a change of decision if that was appropriate?
Later today we will vote on amendments concerning advocacy. Children will not be solely reliant on parents or responsible adults, and I would like to think that they will have access to greater advocacy and support. They should have access to social work staff, who could also be present to represent them. It is overstating things to say that we are leaving the children concerned to the whim of parents who might have poor parenting skills.
For those reasons, I press amendment 155.
The question is, that amendment 155 be agreed to. Are we agreed?
Members: No.
There will be a division. As it is the first division today, there will be a five-minute suspension.
16:51
Meeting suspended.
16:56
On resuming—
We come to the division on amendment 155.
For
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Elaine (Dumfries) (Lab)
O’Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
MacDonald, Margo (Lothians) (Ind)
The result of the division is: For 60, Against 62, Abstentions 1.
Amendment 155 disagreed to.
Amendments 127 to 129 moved—[Adam Ingram]—and agreed to.
I use my power under rule 9.8.4A(c) to extend the time limit for debate on the next two groups, to prevent the debate from being unreasonably curtailed.
We move on to group 7. Amendment 7, in the name of the minister, is grouped with amendments 14, 17 to 19, 135, 137 to 142, 34, 35, 72, 77, 84, 85, 89, 95, 151 and 152. I draw members’ attention to the pre-emption information in the groupings paper.
The amendments will make minor technical and drafting changes to the bill; none will alter the policy. They seek to achieve consistent terminology and to clarify existing provision in the bill. For those reasons I do not propose to go into the amendments individually, but I will be happy to provide more detail should members require it.
I move amendment 7.
Amendment 7 agreed to.
Amendments 130 and 131 moved—[Adam Ingram]—and agreed to.
Section 29—Children’s hearing: duty to consider appointing safeguarder
We move on to group 8. Amendment 8, in the name of the minister, is grouped with amendments 9 to 11, 11A, 13, 15, 156, 16, 16A, 21, 41 and 78.
The amendments in group 8 relate to safeguarder policy. I have proposed minor changes to the bill to provide greater consistency on the appointment of safeguarders. Safeguarders will be able to be appointed under three separate provisions: by a children’s hearing, by a pre-hearing panel, and by a sheriff. Appointment by a pre-hearing panel is new. The approach is very much welcomed by safeguarders and other partners and will introduce flexibility and efficiency into the system.
I made a commitment during stage 2 to review the role of the safeguarder, particularly in court proceedings, through secondary legislation. With that in mind, I have lodged amendments that will introduce more flexibility into the safeguarder provisions in the bill to complement the work that is planned for developing the role of the safeguarder through the implementation process. I have also proposed minor changes to the bill to provide better consistency on when safeguarders may be appointed.
17:00
I turn now to Ken Macintosh’s amendments. I believe that we both share the same goal, which is to work out the optimal solution on safeguarders through secondary legislation. His amendments 156 and 16A relate to the termination of safeguarder appointments and will, in effect, remove such consideration from the bill and provide for it to be developed later through secondary legislation. Amendment 11A seeks to extend the scope of my amendment 11 in relation to court-appointed safeguarders and will enable the appointment to continue when a sheriff remits consideration of a child’s case back to the children’s hearing. Those amendments are helpful.
I urge members to support all of the amendments in the group, except amendment 15, which I do not intend to move as it is superseded by Ken Macintosh’s amendment 156.
I move amendment 8.
I thank the minister for his comments. The purpose of amendments 11A, 156 and 16A is to allow safeguarders to continue in post, protecting the interests of the child no matter who appeals the decision of the children’s hearing to the sheriff court. We discussed the issue at stage 2, and we agreed that a safeguarder has the right to lodge an appeal against a panel decision and to accompany the child throughout the process. Unfortunately—I apologise for this—I picked up the issue wrongly from the minister’s reply at stage 2, and we did not extend the right to cover situations in which it is the child, parent or relevant person who appeals.
I remind members of the evidence that we received. At present, an arrangement is practised in some sheriff courts whereby the safeguarder concerned continues to safeguard the interests of the child by following them into the appeal and participating in the process. In other words, the hearing appointment continues into the appeal and beyond, until the hearing reaches a substantive decision. However, the procedure does not appear in the current legislation. Safeguarders have argued that it is absurd to deprive a child of the protection of a safeguarder at the very time when he or she needs it most. It makes equal sense, if the appeal is successful, for the safeguarder to follow the child back into the reconvened children’s hearing. Of course, if the appeal is unsuccessful, the safeguarder’s appointment terminates.
Amendments 11A, 156 and 16A will achieve that objective by amending the way in which a sheriff appoints a safeguarder by removing section 32, which covers termination of a safeguarder’s appointment, and replacing it with a ministerial power to make regulations covering the termination. It leaves up to the minister the decision on how far through the process a safeguarder’s appointment will last, but I hope that he accepts the argument behind that.
Amendment 8 agreed to.
Amendments 9 and 10 moved—[Adam Ingram]—and agreed to.
After section 29
Amendment 11 moved—[Adam Ingram].
Amendment 11A moved—[Ken Macintosh]—and agreed to.
Amendment 11, as amended, agreed to.
Section 29A—Children’s hearing: duty to consider appointing an advocate
We move to group 9. Amendment 12, in the name of Christina McKelvie, is grouped with amendment 61.
Amendment 12 is consequential to amendment 61—if, indeed, amendment 61 is agreed to. I hope that it will be.
Amendment 12 is required to remove a contradictory part of the bill that was inserted at stage 2. As members of the Education, Lifelong Learning and Culture Committee will be aware, advocacy services have been the subject of a lot of scrutiny during the passage of the bill. I should note that Ken Macintosh did quite a bit of work in promoting the amendments, which has moved the issue forward. I lodged a probing amendment at stage 2 to see what we could do to improve the services that are available for children who are subject to the panels.
I make it clear to members who might not have had the opportunity to follow the arguments closely that advocacy is not about someone speaking on the child’s behalf but about helping the child to understand what is going on and to express their opinions to the panel. Advocacy is not about an adult thinking that they know best, but about enhancing the central idea of the children’s hearings system, which puts the child and the child’s welfare at the centre of proceedings.
In that spirit, amendment 61 will place a duty on a panel’s chair to ensure that the child knows that the advocacy service is available. That will ensure that the child has access to the help that he or she might need in order to present their case properly.
When the children’s hearings system was created, the state took on itself a duty of care for the children who would be involved in the system. Amendment 61 will enhance that duty of care by bringing support to children and helping them to express themselves to panels in the most appropriate way. Each case is different for each child and each child has different needs. It is difficult to put in legislation exactly what will be needed in each case. I hope that the amendment provides a compromise that will make it a bit easier for children to participate in hearings.
Amendment 61 is supported by Scotland’s Commissioner for Children and Young People, Children 1st, Children in Scotland and—with a note of caution—the children’s panel chairs group. I thank the minister for his considered input and I thank the other committee members for helping to frame the debate properly. I hope that we have an amendment on which we can all agree. I am pleased to bring amendments 12 and 61 to the chamber.
I move amendment 12.
Decisions that are taken at children’s hearings can shape lives, so it is important that the child’s voice and opinions are heard and that we do what is necessary to ensure that that happens. We have heard that it is important that the system does not become too judicial or too far removed from the child’s needs. Another concern that the committee heard was that children should not find themselves swamped in a room full of adults. If one adult in the room is an advocate who is there to work on the child’s behalf, that is positive. Advocacy assists us in hearing the child’s opinion and their individual needs.
Section 77 allows the child to have someone present to represent them, but amendments 12 and 61 are worth while. I accept that, although we agreed at stage 2 to an amendment that required the hearing to consider whether an advocate should be appointed, views among stakeholders differ—members will see a common theme in the bill—about how advocacy should be provided.
Christina McKelvie’s amendment 61 makes it clear that the panel’s chair
“must inform the child of the availability of children’s advocacy services”,
which are defined. The amendment also sets out the practical provisions that secondary legislation would cover, which is helpful. The amendment represents a slightly lighter touch, while retaining access to support.
We are content to accept amendments 12 and 61, which I thank Christina McKelvie for lodging. They represent another move towards assisting the child in finding their voice in the children’s hearings system.
I add my support for amendments 12 and 61, which Christina McKelvie has lodged. At stage 2, the committee had a long discussion on the subject, and particularly on achieving a balance between acting in the child’s best interests and not overburdening children’s panels with too many adults. We have addressed and returned to the theme of an overlegalised system in which the child’s voice is drowned out.
Barnardo’s proposed the amendment to which we agreed at stage 2, which was a good compromise. It left the decision to children’s panel chairs, who could assess whether a child needs an advocate. However, Christina McKelvie and the Government have come up with an alternative amendment that will allow advocacy support to be put in place before a hearing, so a child can be prepared effectively for the hearing. Amendment 61 also outlines the service that will be provided.
I am happy to support amendment 61.
I welcome amendments 12 and 61. Advocacy support for children in the hearings system is an issue that I have discussed frequently with partners during the development and parliamentary passage of the bill. There is consensus about the benefits to children of advocacy support, so I am sure that Christina McKelvie’s amendments will find favour in Parliament.
Amendment 61 offers a better way forward than section 29A does. Crucially, it will mean that help and support should be available if and when required—before, during and after a hearing and not just at the hearing.
The introduction of a regulation-making power is also a positive step. As I have said many times, and as Margaret Smith and others have acknowledged, there is still no consensus on exactly what support is needed or who should provide it. It will be important to ensure that the right support is available and that the arrangements for providing it are effective and proportionate. All that detail can be set out in the regulations once that has been decided. Our implementation working group already has a voice of the child sub-group; I am sure that it will enjoy getting its teeth into the matter.
I support amendments 12 and 61, and I hope that Parliament will do so, too.
I make it clear that the proposed measure is not about representation; it is about giving the child the support to understand what is happening to them through the panel system. I think that it will ensure that the child’s voice is not lost. I press amendment 12.
Amendment 12 agreed to.
Section 30—The Safeguarders Panels
Amendment 13 moved—[Adam Ingram]—and agreed to.
Section 31—Functions of safeguarder
Amendment 14 moved—[Adam Ingram]—and agreed to.
Section 32—Termination of appointment of safeguarder appointed by children’s hearing
Amendment 15 not moved.
Amendment 156 moved—[Ken Macintosh]—and agreed to.
After section 32
Amendment 16 moved—[Adam Ingram].
Amendment 16A moved—[Ken Macintosh]—and agreed to.
Amendment 16, as amended, agreed to.
Section 39—Contact directions
Amendments 17 and 18 moved—[Adam Ingram]—and agreed to.
Section 41—Notice of child protection order
Amendment 19 moved—[Adam Ingram]—and agreed to.
Section 50—Automatic termination of order
We move on to group 10. Amendment 132, in the name of Ken Macintosh, is the only amendment in the group.
Amendment 132 seeks to amend section 50, which provides that a child protection order should cease to have effect if the applicant for the order has not attempted to implement it by the end of a period of 24 hours from the making of the order. The amendment that we agreed to at stage 2 provides that if the child is not successfully removed to a place of safety within six days of the making of the order, the order will cease to have effect. Amendment 132 seeks to change that period from six days to 10 days.
A child protection order is an emergency order that is sought when there is an urgent need to protect a child who is deemed to be at significant risk of harm. The fact that the child is at significant risk is what prompts the urgency, so it would be concerning if there were delayed implementation. We supported the stage 2 amendment because there are potential European convention on human rights issues, and it would be inappropriate for a child protection order, which is an emergency order, to continue for a prolonged period of time.
However, it is not unheard of for families to evade the authorities by hiding in order to avoid their child being removed to safety. When that happens, professional concerns for the child’s safety are heightened. Members will recall that the issue was raised at stage 2 not just by Unison members of the Scottish Children’s Reporters Administration, but by Scotland’s Commissioner for Children and Young People.
I do not suggest that altering the timeframe from six days to 10 would entirely alleviate those concerns, but I would welcome an assurance from the minister that he is aware of them. Perhaps he could provide an outline of how he intends to address the matter and monitor the situation.
I move amendment 132.
In focusing on the timeframe after which child protection orders automatically cease to have effect when implementation has not been possible, it might be helpful to start by briefly outlining my thinking behind the introduction of such a timeframe at stage 2 and to explain the process that the Government has followed in reaching the position that is reflected in the bill.
17:15
As Mr Macintosh said, child protection orders are emergency orders that are designed to support local partners in taking quick and decisive action to protect a child who is at risk of significant harm. Such orders are made by the sheriff in the absence of the child and their parents. We believe that process to be entirely appropriate, given the serious and immediate nature of the situations that are being dealt with. That said, it is crucial that we have in place robust structures to ensure that actions such as those that are directed through child protection orders remain appropriate and proportionate to a child’s needs. We achieve that through holding regular reviews in the form of second and eighth day hearings to consider whether the emergency measures that are in place are still appropriate, and what the longer-term needs of the child might be. Both review points are linked to the implementation of a child protection order.
What happens when the CPO cannot be implemented? We know that the majority of child protection orders, including all CPOs to prevent the removal of a child from a place of safety, are implemented immediately. However, it is simply not appropriate to ignore the fact that that is not the case for every CPO. Allowing an emergency order, such as a CPO, to run for an extended period of time is not acceptable or appropriate. It was with that in mind that we lodged a stage 2 amendment, which introduced a six-day timeframe, after which a CPO that had not been implemented would fall. At the same time, Mr Macintosh lodged and subsequently withdrew a similar amendment that proposed a timeframe of 72 hours. I was therefore surprised to see that he had lodged another amendment in advance of today’s proceedings that proposed a significantly longer timeframe than that to which he and the committee agreed at stage 2.
On the timeframe, the six-day period has been identified with the clear support of the Association of Directors of Social Work and the Association of Chief Police Officers in Scotland. That is particularly important as local authorities will have responsibility for implementation of the majority of CPOs. Similarly, the police will have the power to take decisive action to protect a child when a CPO is not in place. The ADSW and ACPOS felt that the stage 2 amendment struck the right balance by allowing sufficient time for agencies to exhaust all necessary avenues when they seek to implement a CPO, while ensuring that a robust and rigorous structure is in place for considering the changing circumstances of a child when it has not been possible to implement an order for an extended period of time.
I understand that concerns have been raised with Mr Macintosh about the impact that such a timeframe could have on the ability of front-line practitioners to offer the necessary protection to children, particularly when they have absconded to another jurisdiction, for example. I see no reason why the process that we have set out for the protection of children should not be implementable and effective in such circumstances. When a child or family has absconded, whether in Scotland or another jurisdiction, we expect local services to engage with partners, irrespective of the areas in which they operate, so that emergency action can be taken to ensure the immediate care and protection of that child.
The critical point is that a CPO need not be in place for such action to be taken. Instead, agencies may involve the use of alternative emergency powers on an interim basis, while a Scottish CPO is being sought, if that is appropriate. It is entirely feasible that that process should be applied, especially given our intention to replicate current practice by arranging for CPOs that have been made in Scotland to have effect elsewhere in the United Kingdom.
I have seen no evidence that suggests that a 10-day timeframe would offer any more protection than the six-day period that was identified by stakeholders and accepted by the committee at stage 2. We need to be able to respond to children’s needs in a way that is proportionate and appropriate. The suggested extension of the timeframe would in no way help us to achieve that: on the contrary, it would increase the potential for CPOs to be implemented in circumstances that may bear no resemblance to those that were considered by the sheriff at the point at which the order was made. That, compounded by the lack of involvement of either the child or their family in a decision that has a significant impact on them over a potentially prolonged period, causes me real concern.
I recognise that this is a challenging issue and that a balance has to be struck, but I am entirely confident that the bill will best achieve that as it is currently set out. I therefore ask Ken Macintosh to seek to withdraw amendment 132.
I thank the minister for his comments. As I indicated, I do not think that 10 days is the solution to the problem; I simply wanted to re-emphasise the concerns that have been raised by more than one body about the issue. The minister mentioned the second and eighth day hearings review system and the alternative powers that are open to local authorities. I accept that it is a challenging issue and one that we need to keep an eye on. On that basis, I seek leave to withdraw amendment 132.
Amendment 132, by agreement, withdrawn.
Section 58—Local authority’s duty to provide information to Principal Reporter
We come to group 11. Amendment 133, in the name of Ken Macintosh, is grouped with amendment 134.
Amendments 133 and 134 amend the threshold at which cases are referred to the children’s reporter. From its inception, one of the fundamental features of the children’s hearings system has been that the reporter should act as an independent gatekeeper to the system and should take the decision whether a child should be referred to a hearing. That is on a dual test of whether a ground is present and whether compulsory measures are necessary.
The proposed change in the bill is quite radical because it removes the role from the reporter by imposing a prior filter. No longer will all children to whom a ground relates be referred to the reporter for the exercise of independent judgment on whether compulsory measures are necessary. That will be decided instead by the local authority. That potentially allows a local authority to hold on to cases where there should have been a referral and compulsory help for children. It is worth highlighting that, in these days of constrained budgets, there will be great temptation for local authorities to save money and not to refer children.
In fact, the minister argued at stage 2 that his intention is to reduce the number of cases going to the hearings system. My worry is that the bill compromises the independence of the reporter and essentially reduces the reporter’s role from that of gatekeeper to one of a processor, who automatically passes on all cases.
I move amendment 133.
I think that I understand the motivation behind Mr Macintosh’s amendments. We all know that there are children who are slipping through gaps in the system, so if the grounds for referral were widened, more children might benefit. I can totally understand that the financial difficulties that local authorities find themselves in give an added impetus to his motivation.
What Mr Macintosh is suggesting is that we take away the current two tests to be met for referral to a hearing, which are that
“the child in is need of protection, guidance, treatment or control”
and that
“it might be necessary for a compulsory supervision order”
to apply, and instead extend referral to cases where a section 65 ground applies. I am not sure whether that would not risk overloading the hearings system. Does he have any information about the extra number of children and potential costs associated with the amendments if the lower test were to apply? Does he feel that there might be potential delays in the system as a result?
We remain very much committed to the children’s hearings system being there for the most vulnerable of Scotland’s children. I certainly hope that, in taking forward the getting it right for every child agenda, there will continue to be a reduction in the number of children being dealt with by hearings, their need for support having been met without recourse to a panel. I am a little unsure whether we would continue to see such a reduction in the number of children being dealt with if we opened up the grounds in the way that Mr Macintosh suggests in these amendments.
The amendments are similar to amendments that were lodged by Ken Macintosh at stage 2, which sought to lower the threshold for referral to the reporter from that in the bill as introduced. As Margaret Smith said, the amendments would remove the two conditions for making a referral that are set out in the bill, as amended at stage 2: that the child is in need of protection, guidance, treatment or control; and that the child might be in need of compulsory measures of supervision. It is important that that two-pronged test remains.
What Ken Macintosh proposes is that local authorities and police need be satisfied only that a section 65 ground applies before they refer a child to the reporter. It removes the responsibility on them also to consider whether compulsory measures of supervision might be required, which is a responsibility that local authorities currently have. Such a change would undoubtedly lead to a significant increase in the number of inappropriate and unnecessary referrals and would cut across the principles of the getting it right for every child approach and the work on early and effective intervention.
We have seen a reduction in the number of referrals to the reporter in recent years as a result of the growing practice of multi-agency pre-referral partnerships, which have grown in number under GIRFEC. Children are being helped and supported more quickly and effectively without the need for referral. We do not want a return to the days when a child had to wait for the investigation by a reporter and then, perhaps, for the decision of a hearing before she or he had access to the support that was needed. That is what would happen if amendment 133 were agreed to.
I reassure colleagues that there is no suggestion that children who should be referred are being missed—that is not the case. The number of children who are being referred to hearings is increasing, which indicates that the right children are being referred to the reporter for the right reasons.
I strongly believe that the provisions in the bill strike the right balance. They support the exercise of professional judgment at the local level and ensure that children are provided with fast and effective support. They support the role of the reporter in making decisions on who should be referred to a hearing, they fit with GIRFEC and they will ensure that the number of inappropriate referrals is kept to a minimum. More important, practice shows that to be so. Research that was published by the SCRA in April supports the positive impact of pre-referral screening in reducing the number of inappropriate referrals to the reporter.
On that basis, I ask Ken Macintosh to withdraw amendment 133 and not to move amendment 134.
I welcome the comments from Margaret Smith and the minister. In response to Margaret Smith’s points, it is worth emphasising that it is the bill that is changing the current system. In other words, the criteria that currently apply are being amended. What we are introducing through the bill is a filter—a pre-screening mechanism—for the local authorities. If the system is currently in danger of being overloaded, we should introduce other ways of handling the numbers. The reporter will have to investigate all cases that come to them, and it is very important that the balance of the decision making rests with the reporter. I would argue that giving the reporter the responsibility for making the decisions is far more in keeping with the GIRFEC principles than is allowing the local authority to decide, on its own grounds, not to refer cases. If we want to hold local authorities accountable for the service that they provide, it would be better to have an independent mechanism. I believe that we should go back to using the original procedure—which has always been the case—whereby all cases are referred to the reporter, who then makes the decisions on whether they should go to hearings.
I press amendment 133.
The question is, that amendment 133 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
O’Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 39, Against 75, Abstentions 0.
Amendment 133 disagreed to.
Section 59—Constable’s duty to provide information to Principal Reporter
Amendment 134 not moved.
Section 65—Meaning of “section 65 ground”
Amendment 135 moved—[Adam Ingram]—and agreed to.
Section 66—Determination under section 64: no referral to children’s hearing
17:30
We now come to group 12. I am using my power under rule 9.8.4A(c) to extend the time limit for the next group to prevent the debate from being curtailed. Amendment 136, in the name of Kenneth Macintosh, is the only amendment in the group.
Amendment 136 seeks to entrench in statute the current power and practice of reporters to refer children voluntarily for support from local authorities, health boards or voluntary organisations. We discussed this issue at stage 2 and, as I highlighted then, among the benefits of the current system of voluntary referrals that are used by reporters is the fact that it helps reporters to keep children out of the children’s hearings system and subject to compulsory supervision orders. [Interruption.]
Order. Everyone except Mr Macintosh is making rather too much noise.
Following our discussion in committee, the minister indicated his agreement with the spirit of the stage 2 amendments and his intention to lodge his own amendments at stage 3. I understand that the minister has since had reservations about that approach. In the absence of Government amendments, I have lodged an alternative amendment that addresses the same issue but will, I hope, be more palatable to the Government.
I move amendment 136.
It seems that the amendment is arguable. I understand that there were discussions at stage 2 but that, as Kenneth Macintosh said, they failed to bring about total consensus. Having examined his current wording and compared it to his previous wording, it seems that there is a significant improvement. We will listen carefully to what the minister has to say, but we are minded to support amendment 136.
We discussed this issue at stage 2. As Kenneth Macintosh said, I undertook to lodge amendments on the matter. However, as I explained in my letter to the committee of 11 November, following detailed further consideration, I decided against doing so. It is not clear to me that changing the law in the way that is proposed will make any tangible improvements to the way in which things operate at present. Things work well at the moment partly because they are voluntary. Putting things on to a statutory footing might put that at risk.
It follows that I do not believe that amendment 136 is necessary to secure appropriate voluntary interventions for children and young people. Under section 21 of the 1995 act, local authorities can already, and frequently do, ask others to help them to provide the support that children need. Section 175 of the bill also makes provision for mutual assistance in the performance of functions under the bill.
That said, I appreciate the desire to reflect existing practice in law and to formally recognise the role that others play in the provision of voluntary support for children and young people. Amendment 136 will do that, and I think that it is sufficiently flexible to provide reassurance that the statutory arrangements that it proposes will not undermine the existing arrangements.
I am, therefore, happy to support amendment 136.
Amendment 136 agreed to.
Section 80—Determination of claim that person be deemed a relevant person
Amendments 137 to 141 moved—[Adam Ingram]—and agreed to.
Amendment 20, in the name of Adam Ingram, is grouped with amendments 63 to 68, 83, 91 and 107.
Amendments 20, 63 to 68, 83, 91 and 107 deal with rights of participation in the hearings system, the right to become the child’s relevant person and the right to become involved in decisions on contact. They seek to provide flexibility in the bill so that it may respond to changing family relationships and developments in case law.
As members will know, this area of society is characterised by constantly changing relationships, and changing attitudes to those relationships. It is also expected to be under constant scrutiny by the courts, and Ken Macintosh quite rightly referred at stage 2 to the fact that it is an area of developing case law. I therefore consider it necessary for there to be some flexibility in the bill, so that we can respond to future changes without having to introduce primary legislation.
Amendment 20 allows for future changes to the criteria for deemed relevant person status that are outlined in section 80. Section 80 provides for those who do not automatically qualify as a relevant person by applying the legal test in section 185 to demonstrate that they have a “significant involvement” in a child’s life. That significant involvement will allow them to access the same rights and duties as a relevant person. The amendment allows that test to be amended if it is required in future to respond to developments in this area. I consider it appropriate that the bill should be able to accommodate any changes that may be required in the future.
Amendments 63 to 68 insert similar flexibility in those provisions that protect the rights of those who are not relevant persons or deemed relevant persons but who have a right of contact with the child. As I explained at stage 2, those amendments were lodged in response to a court judgment that confirmed that those contact rights must be afforded an appropriate level of protection. They allow an individual to enjoy rights of participation for the purposes of reviewing a contact direction made by the hearing, and amendments 63 to 68 allow that right to be extended.
A person who considers that they meet the conditions—which will be specified using an order-making power—will have the right to seek a review of the contact direction. If the hearing decides that the conditions are satisfied, it will review the contact direction.
Amendment 107 amends the definition of “relevant person” in section 185. Those who meet the legal test that is set out in that section will automatically become the child’s relevant person without the need for consideration of a pre-hearing. Amendment 107 therefore allows further categories to be added to the list of those who automatically become the child’s relevant person.
Although I am confident that the provisions in the bill accurately protect the rights of those in the children’s hearings system, these amendments are necessary to provide flexibility around this developing area of legal consideration. They will also serve to future-proof the children’s hearings system, which was one of the key objectives of the reform programme.
I move amendment 20.
One of the most difficult issues that we discussed was what could be deemed an appropriate definition of “relevant person”, bearing in mind that the representations made by such a person could be the most important factor in deciding the child’s future, and given, as the minister mentioned, the changing social trends within family structures.
Concerns were expressed about the possibility of narrowing the definition so that it might exclude those persons who previously would have had an automatic right to be present at a hearing. It was put to the committee that there would be serious cause for concern if it excluded guardians, adoptive parents, long-term foster carers or grandparents.
Concern was also expressed about how the proposed changes to section 80 would impact on the process of deciding relevancy, and whose responsibility that would be. In particular, it was noted how difficult it might be to come up with a satisfactory definition of “significant involvement”, and for how long that would have to be proven.
Some of the most technical legal aspects of the bill that we discussed relate to section 80 but, after some initial doubts, the Scottish Conservatives are satisfied that the process has been rigorously debated. Given what the minister said about improving flexibility, we are happy to support the amendments.
Amendment 20 agreed to.
Amendment 142 moved—[Adam Ingram]—and agreed to.
Section 80A—Appointment of safeguarder
Amendment 21 moved—[Adam Ingram]—and agreed to.
Section 100—Meaning of “interim compulsory supervision order”
Amendments 22 to 24 moved—[Adam Ingram]—and agreed to.
Section 83—Review to be carried out where compulsory supervision order already in force
Amendment 25 moved—[Adam Ingram]—and agreed to.
Section 85—Grounds accepted: powers of grounds hearing
Amendments 26 and 27 moved—[Adam Ingram]—and agreed to.
Section 86—Some grounds accepted
Amendment 28 moved—[Adam Ingram]—and agreed to.
Section 89—Some grounds not accepted: application to sheriff or discharge
Amendments 29 to 31 moved—[Adam Ingram]—and agreed to.
Section 90—No grounds accepted
Amendment 32 moved—[Adam Ingram]—and agreed to.
Section 95A—Child fails to attend grounds hearing
Amendment 33 moved—[Adam Ingram]—and agreed to.
Section 96—Children’s hearing to consider need for further interim compulsory supervision order
Amendments 34 and 35 moved—[Adam Ingram]—and agreed to.
After section 96
Amendment 36 moved—[Adam Ingram]—and agreed to.
Section 103—Application for extension or variation of interim compulsory supervision order
Amendment 37 moved—[Adam Ingram]—and agreed to.
Section 103A—Further extension or variation of interim compulsory supervision order
Amendment 38 moved—[Adam Ingram]—and agreed to.
Section 103B—Sheriff’s power to make interim compulsory supervision order
Amendments 39, 143 and 40 moved—[Adam Ingram]—and agreed to.
Section 108—Safeguarder
Amendment 41 moved—[Adam Ingram]—and agreed to.
Section 111—Withdrawal of application: termination of orders etc by Principal Reporter
Amendments 42 to 44 moved—[Adam Ingram]—and agreed to.
Section 112—Determination: ground not established
Amendment 45 moved—[Adam Ingram]—and agreed to.
Section 113—Determination: ground established
Amendments 46 to 49 moved—[Adam Ingram]—and agreed to.
After section 113
Amendment 50 moved—[Adam Ingram]—and agreed to.
Section 115A—Child’s duty to attend review hearing unless excused
We come to group 14. Amendment 51, in the name of the minister, is grouped with amendment 52.
Section 115A was introduced at stage 2. It requires that, where an application for a review of the grounds determination is made in relation to a person who is still a child, that child must attend the review hearing unless they are excused by the sheriff. If they are excused, the child may still attend the hearing. That places the child under the same obligations and provides the same right to attend as in relation to the original hearing to establish the grounds.
Amendment 52 inserts a new power into section 115A to provide the sheriff with the power to issue a warrant to secure the attendance of the child at any such review hearing. The power may be exercised only if the sheriff is satisfied that there is evidence that the child would not otherwise attend the hearing.
Amendment 51 makes a minor drafting change to clarify that the provisions apply only where the person involved is still a child within the meaning of the bill at the time of the review hearing.
I move amendment 51.
Amendment 51 agreed to.
Amendment 52 moved—[Adam Ingram]—and agreed to.
Section 117—Recall of grounds determination: sheriff’s power to refer other grounds to children’s hearing
Amendment 53 moved—[Adam Ingram]—and agreed to.
Section 118—Recall of grounds determination: sheriff’s powers where no section 65 grounds accepted or established
Amendments 54 and 55 moved—[Adam Ingram]—and agreed to.
Section 119—New section 65 ground established: sheriff to refer to children’s hearing
Amendment 56 moved—[Adam Ingram]—and agreed to.
After section 119
Amendment 57 moved—[Adam Ingram]—and agreed to.
Section 120—Children’s hearing following deferral or proceedings under Part 10
Amendment 58 moved—[Adam Ingram]—and agreed to.
Section 121—Powers of children’s hearing on deferral under section 120
Amendments 59 and 60 moved—[Adam Ingram]—and agreed to.
After section 122A
Amendment 61 moved—[Christina McKelvie]—and agreed to.
Section 124A—Review of contact direction
Amendments 62 to 68 moved—[Adam Ingram]—and agreed to.
Section 133—Duty to arrange children’s hearing
Amendment 69 moved—[Adam Ingram]—and agreed to.
Section 136—Powers of children’s hearing on deferral under section 135
Amendment 70 moved—[Adam Ingram]—and agreed to.
After section 136
Amendment 71 moved—[Adam Ingram]—and agreed to.
Section 140—Breach of duties imposed by sections 138 and 139
Amendment 72 moved—[Adam Ingram]—and agreed to.
Section 146—Secure accommodation: placement in other circumstances
We come to group 15. Amendment 73, in the name of the minister, is grouped with amendments 74 and 75.
Section 146 provides a regulation-making power to place a child in secure accommodation in circumstances where the child is subject to a compulsory supervision order that does not itself include a secure accommodation authorisation. The bill contains powers to make other orders, including an interim compulsory supervision order, a medical examination order and a warrant to secure attendance. Taken together, amendments 73 to 75 ensure that regulations under section 146 can make provision for the emergency placement of a child in secure accommodation when they are the subject of any of those other orders but a secure accommodation authorisation was not contained in the order.
I move amendment 73.
Amendment 73 agreed to.
Amendments 74 and 75 moved—[Adam Ingram]—and agreed to.
Section 148—Appeal to sheriff against decision of children’s hearing
Amendments 76 and 77 moved—[Adam Ingram]—and agreed to.
Section 149—Safeguarder
Amendment 78 moved—[Adam Ingram]—and agreed to.
Section 151—Determination of appeal
Amendment 157 not moved.
Amendments 79 and 80 moved—[Adam Ingram]—and agreed to.
Amendment 158 not moved.
Section 152—Time limit for disposal of appeal against certain decisions
Amendments 81 and 82 moved—[Adam Ingram]—and agreed to.
Section 155A—Appeal to the sheriff against decision affecting contact or permanence order
Amendments 83 to 85 moved—[Adam Ingram]—and agreed to.
Section 157—Appeals to sheriff principal and Court of Session: children’s hearings etc
Amendments 86 to 90 moved—[Adam Ingram]—and agreed to.
Section 158A—Appeals to sheriff principal and Court of Session: contact and permanence orders
Amendment 91 moved—[Adam Ingram]—and agreed to.
17:45
Section 159—Review of requirement imposed on local authority
We come to group 16. Amendment 144, in the name of Ken Macintosh, is grouped with amendment 145.
Amendments 144 and 145 seek to amend sections 159 and 160, both of which provide for the procedure to be followed where a local authority disputes that it is the relevant local authority for a child. However, the bill does not provide a child or relevant person with either a right of appeal or the right to give evidence to the sheriff on the identity of the relevant local authority. That failure to recognise the right of the child or the relevant person to be heard in relation to such a significant issue as who will service the compulsory supervision order is worrying.
However, the problem can be very simply addressed if we agree to amendments 144 and 145, which seek to include the child and the relevant person among those from whom the sheriff may hear evidence and to extend to the child and relevant person the right of appeal against the sheriff’s decision.
I move amendment 144.
As Ken Macintosh has confirmed, these amendments to sections 159 and 160 have been lodged to continue the theme of trying to ensure that children are involved in the hearings system instead of simply having the process happen to them. The bill provides that the duties under a compulsory supervision order, interim order or medical examination order should be borne by the relevant local authority, which must implement or pay for the measures in such orders. Section 159 applies where such a duty is imposed on a local authority by a children’s hearing or sheriff. If the local authority is satisfied that it is not the relevant one for that child, it might apply to the sheriff for a review of the decision to impose the duty on it. Section 160 provides for a right of appeal against the sheriff’s decision in such circumstances.
Broadly speaking, the relevant local authority for the child is the one in which they predominantly live or, if that criterion does not apply, the one to which the child has the closest connection. The determination of the relevant local authority does not take account of a period of residence in a residential establishment or any connection with an area that relates to such a period of residence. Although ministers have powers to adjust the provision further to ensure that changes of residence as a result of compulsory intervention do not result in an inappropriate shift of responsibility for the child between local authorities, the child’s relevant local authority might legitimately change during the child’s involvement in the children’s hearings system.
As we have heard, amendment 144 seeks to add to the list of those from whom the sheriff may hear evidence in determining the relevant local authority for a particular child. Currently the bill states that evidence may be heard from any local authority or the national convener. Amendment 145 seeks to allow the additional people set out in amendment 144 to have a right of appeal to the sheriff under section 160.
Although I agree with the principle of Ken Macintosh’s endeavours to make the process inclusive for children, I do not agree with these amendments because the test of determining a child’s relevant local authority is one of fact, not of opinion, and does not require a child, a person representing the child, a relevant person or relevant person’s representative to have any say—and rightly so—for the purposes of these provisions. Nor should the determination of a relevant local authority matter to the persons introduced by amendment 144. Compulsory supervision orders are made independently of resource and need and the relevant local authority, regardless of which it turns out to be, must implement them.
Finally, the amendments are not clear about the nature of the evidence that the persons listed in amendment 144 would be required to give. Perhaps Mr Macintosh can share his thinking on this, but it is not clear to me why the representatives of the child or relevant person should have a right of appeal that is independent from that of the child or relevant person. The amendments seem to set up a rather odd situation in which, even if the child or relevant person does not wish to appeal a decision, their respective representatives could still do so.
I urge Ken Macintosh to withdraw amendment 144 and not to move amendment 145.
I appreciate the minister’s response, but am not entirely convinced by his fundamental argument. He suggests that the test of the relevant authority is one of fact, not opinion. If that were the case, why are we asking local authorities to give evidence? It is clear that the test is not one of fact, otherwise that would be established. We are asking the relevant local authorities to give their opinion. If we are asking them to do that, we should certainly ask the child for his or her opinion, and we should also ask the relevant person for their opinion. That would be the nature of the evidence. We are asking that the sheriff can call on them, whereas they are currently not allowed to be called. Such decisions are vital for children. The child certainly has an interest in which local authority looks after them and the decisions that they take. As the minister said, we should put the interests of the child at the centre of things.
The question is, that amendment 144 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
O’Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Margo (Lothians) (Ind)
The result of the division is: For 60, Against 58, Abstentions 3.
Amendment 144 agreed to.
Section 160—Appeals to sheriff principal: section 159
Amendment 145 moved—[Ken Macintosh].
The question is, that amendment 145 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Margo (Lothians) (Ind)
The result of the division is: For 60, Against 59, Abstentions 3.
Amendment 145 agreed to.
Section 161—Enforcement of orders
We come to group 17. Amendment 92, in the name of the minister, is grouped with amendments 93 and 94.
Amendments 92 to 94 relate to the enforcement of orders. The bill currently provides for the police to intervene in the enforcement of compulsory supervision orders, interim compulsory supervision orders and medical orders where required. That is not a new policy; the police already have similar powers under the Children (Scotland) Act 1995. Taken together, my three amendments seek to ensure that children under any order contained in the bill may benefit from the same protection by making child protection orders, child assessment orders and orders that are made by a justice of the peace under section 53 subject to law enforcement. That brings the bill’s provisions fully into line with the 1995 act.
I move amendment 92.
Amendment 92 agreed to.
Amendments 93 and 94 moved—[Adam Ingram]—and agreed to.
Section 169—Amendment of Vulnerable Witnesses (Scotland) Act 2004
Amendment 95 moved—[Adam Ingram]—and agreed to.
That is as far as we are able to go with consideration of the bill this afternoon. Therefore, I am left with no choice but to suspend the meeting until 6 o’clock.
17:54
Meeting suspended.
18:00
On resuming—