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Item 2 is to take evidence in our children's commissioner inquiry. This is the second of three meetings at which we are taking evidence on a wide range of issues related to the inquiry. We have received a great deal of written evidence. We also held an event in the chamber in June. We plan a further event in December, which will involve young people. Focus groups are currently taking place across Scotland.
I shall start by telling the committee briefly about the Scottish Child Law Centre. The centre has existed for 12 years. It was in Glasgow for the first 10 years and has been in Edinburgh for the past two. At present, the staff consists of Fiona Miller, the principal solicitor, and me, the acting director. We are about to employ a full-time administrator to pick up the administrative work that we generate, and we hope that that person will start in the middle of December.
Who funds your centre?
Our core funding comes from the Scottish Executive. We are trying to expand our funding from next year by applying for funding to the Calouste Gulbenkian Foundation and some local authorities. For example, we have applied for funding to help us with our telephone advice line.
So although you are funded by the Executive, you are independent of it.
Yes. We are neither instructed by nor do we have to answer to the Executive on anything other than financial matters.
Has the centre identified any children's rights issues that your services are not able to address? If so, what are those issues, and what is getting in your way? We are thinking in particular of issues that a children's commissioner might be able to address but that you might not.
As I said at the beginning, one area in which the centre would like to work is the representation of children. However, because there are only two of us in the centre, such work would be difficult to do as it consumes a lot of time and resources. However, we hope to develop that shortly and feel that it is an issue on which the centre could liaise well with the commissioner and could help to develop the commissioner's work.
Presumably, a commissioner might examine legislation to ensure that children's interests were taken into account. I was about to use the term "child proofing", but that has a double meaning. Do you think that a commissioner should be carrying out that sort of work?
Yes. I foresee that the commissioner's office will carry out work similar to that of the centre and other agencies that deal with children. It should examine consultation documents and find out whether the Executive's proposals could be improved or changed to better suit children and their rights.
What other agencies do you work with in this area?
At the moment, we are working with Children 1st on ways of reforming the current system of child witnesses. Fiona Miller is examining adoption processes and helping in the adoption policy review advisory group. We work a lot with Enquire and Children in Scotland. Indeed, because we carry out much work involving children with special educational needs, we liaise a fair bit with Enquire, and that link is ever-expanding.
I do not think that we received a written submission from you.
That is right.
In that case, maybe you could give us some information on issues that others have raised. It would be useful to hear your views on the role and primary functions of a children's commissioner.
As other written evidence has highlighted, a children's commissioner should be underpinned by the United Nations Convention on the Rights of the Child. The commissioner's remit should extend to children who are under 18. We have discussed the age limit and the commissioner's remit at some length. We believe that it would be more appropriate for the remit to apply to under-18s, rather than to under-16s, although in Scotland a young person technically becomes an adult at 16. We believe that 16-year-olds and 17-year-olds are still in a vulnerable position and that it should be part of the commissioner's remit to seek to protect them until they reach 18.
That was very comprehensive. Clearly, you believe that the remit that you have outlined would not impinge in any way on the work that is already done by the Scottish Child Law Centre.
There would be some overlap, but that would not necessarily be a bad thing. We envisage the commissioner's office working in tandem and liaising with us. The children's commissioner's office will not be an all-powerful office from the start. Obviously, it will have teething problems. We do not know how many members of staff will be allocated to the commissioner's office, if there is to be one. The work of the Scottish Child Law Centre and of the other agencies that deal with child law and child rights issues in Scotland can complement the work of the commissioner's office, which could fund us to carry out projects in areas in which we are expert and in which we have worked for years.
If we are to explain the commissioner's work to the people of Scotland, their role in relation not only to general children's issues but to the high-profile specific cases that the public read and hear about will need to be understood. I am talking about cases of abuse and so on. In your view, what role should the commissioner play in such cases? Should they play a primary role, an investigatory role or an ombudsman's role, or should they be responsible for clearing up after the event? This is a crucial question that the legislation will have to address.
The commissioner's role should not be that of an ombudsman. The position of ombudsman is reactive. Ombudsmen react to complaints about maladministration. I envisage the commissioner's office being proactive rather than reactive. As well as dealing with current problems, staff would seek the views of children and try to pre-empt problems that might arise. An ombudsman's office would be restricted to waiting for complaints to come in and then dealing with them.
That automatically creates a raft of new questions. What are those cases? What is the decision-making process and is it defined in statute or is it at the discretion of the commissioner? I am just listing the questions, which are complex; I do not expect you to respond to all of them. Where does the commissioner stand in relation to an investigation in the courts? Can individual children go to the commissioner with specific cases? There are a whole range of questions that go wider than the children's commissioner. We may be looking at a substantial legal innovation and the operation of that could cause difficulty for existing structures.
We envisage the children's commissioner having an investigatory role similar to that of a fatal accident inquiry. In a high-profile case of sexual abuse in a children's home, the children's commissioner would not necessarily take on the role of representing individual children, but would investigate what could be remedied and what could be done to make the situation better for children of the future. The individual children could have their rights protected by being represented by solicitors whom the children's commissioner might accredit as child law representatives.
Let us take a specific case and see where the children's commissioner would fit into that. I refer to the Orkney child abuse case. At what point in the process would the children's commissioner have been involved? What would the function of the commissioner have been? How would that have altered the process and the outcomes?
In such a case, the commissioner's office would recognise that there was a problem and would then institute an investigation.
How would the commissioner have recognised that there was a problem in that specific case in which children were removed from home by a social work department operating within the law—we know now that it was outwith the law, but it was within the law at that stage? How would the children's commissioner become involved in such a case? That is a genuine question. We have to consider those issues to understand the process.
I feel that the commissioner's office needs to be an office to which children can comment. That might be through an open page on a website, or via a telephone helpline.
Hang on a second. I am sorry to draw you down, but let us look at the specific case. At what stage and how would the children's commissioner have become involved in such a case? The children are taken into care away from their families and it is not known whether they have unsupervised or unmediated access to the web. How would the children's commissioner become involved in such circumstances?
The children's commissioner becomes involved when a problem arises. The centre believes that the children's commissioner's office should be open for parents to get information as well. If parents are concerned about aspects of what is going on in their child's life, they should be able to contact the commissioner's office for advice.
The children's commissioner in a case such as the Orkney case might be contacted by the parents who say that the social work department has removed their children and that they want the commissioner to become involved. Would the children's commissioner then undertake an investigation of that? Would his office have undertaken an investigation of Orkney Islands Council? Would the children's commissioner, in those circumstances, be able to determine that the council had acted against the interests of the children? How would that sit with the continuing investigation into an alleged crime in that case? Those are webs that we have to pull apart.
I do not have specific answers to those questions. The matter is a grey area on which we have not come to a conclusion. I suggest that the children's commissioner would adopt an investigative role. The children's commissioner would not decide to investigate Orkney Islands Council on the basis of one or two calls. He would investigate what was going on and realise that something was happening that needed to be investigated further before he took on a major investigation of the council. The children's commissioner could certainly be involved in that. I do not know whether he would be involved only in gathering information.
My problem with that is that one can argue quite convincingly that, to safeguard children's rights and to comply with the UN Convention on the Rights of the Child, it is necessary to have an advocate for children, but we run into a minefield when we get into the role of the children's commissioner in particular cases, which is what many members of the public will think the commissioner's work will be about. That has not yet been thought through.
You have a valid point. We have not thought the matter through to that extent. I imagine that the role of the children's commissioner would be to gather information. I do not know how that would tie in with the courts. I understand your concern about the commissioner possibly being in contempt of court.
Surely, in the instance that Mike Russell has brought up to try to tease out a better idea of your suggestion, the commissioner would no longer be a children's commissioner but would be a parents' commissioner. Surely Mike Russell's suggestion is that if the children's commissioner were to take up parents' interests when those parents were under criminal investigation, it would be arguable whose rights the commissioner would be looking after. Is that the dilemma that has to be resolved?
I do not consider that to be a dilemma, to be honest. Parents and society have a duty to protect children. If a call comes from a parent who says that he or she is concerned about children, that is a matter not of representing the parent's rights but of protecting the children.
I understand that point of view. The difficulty is that, if a criminal investigation is going on—this was Mike Russell's point—and, to all intents and purposes, the jury is out on the parents, it is difficult for another Government body to become involved in what could be called a counter-investigation. That creates a dilemma. It may be proper that investigations are made at some stage, but they may be made after the event. Competing forces are at work. We are trying to resolve them and want the benefit of your view.
Yes. The commissioner's office needs to be open to every type of call from children. It cannot restrict calls by saying, "Sorry, we don't deal with problems with parents. We only deal with a certain category of problem." It would not be in the commissioner's interests to restrict the trade to one area of child law.
I follow that answer and I understand the idea of the children's commissioner becoming a conduit to direct children to some form of justice. Given your earlier comments, do you think that the commissioner should reserve the right to take up a case which, in the light of the evidence, is seen as being of ground-breaking significance? You talked about that situation in relation to institutions. Do you envisage the children's commissioner having a similar role in cases involving individuals?
I do not rule that out. Interventions by the commissioner would have to be strategic and be done because of the high-profile nature of a case. Such a case would influence children's law and children's rights throughout Scotland and become, as you said, a ground-breaking case or a case that would influence other areas of law. I am not talking about small cases in which children need representation—nothing major would come of them—but major, ground-breaking cases that would influence strategically the position in Scotland.
I am aware that there are laws against abuse and incest but I am not aware of ground-breaking areas. Given your proximity to legal cases, I presume that you are aware of them. Will you outline, either now or in written evidence, the areas in which there could be ground-breaking cases? I realise that I am springing the issue on you, but such an outline would be useful and would give shape to your suggestion about interventions by the commissioner. We are trying to tease out some of the hypothetical or abstract possibilities, but we must also consider practicalities, which is why Mike Russell mentioned Orkney.
An example—which is perhaps not ground breaking—is the centre's experience of local authorities taking away funded places for children with special needs on a large scale. I do not think that the children's commissioner should take up that issue alone, but it might be one issue on which the commissioner could assist other accredited child law representatives.
That is an interesting point. You are talking not only about individual cases but about an institution's disregard of children's rights, or the infringement of children's rights.
Yes. A primary role for the children's commissioner would be to carry out such inquiries and investigations in the circumstances in which there had been a breach of children's rights or people had failed children.
In cases like the Orkney case, the commissioner might come in—regrettably, at the end of the inquiry—saying, "Look, things have gone wrong here." The office of the commissioner would be the court of last resort for the public in such cases.
I explained earlier that such inquiries would be similar to fatal accident inquiries. If something went wrong, the children's commissioner would investigate to identify ways of preventing the recurrence of those circumstances.
The children's commissioner's office would have to let the law take its natural course. It might say at the end of an inquiry, "Let's amend these practices—let's look at them, see what has gone on and change them so that the rights of children come first," without interfering in the natural course of justice. Perhaps that is what its role should be.
May I ask a final question on an issue that we have not yet touched on?
You may ask only one more question, Ian, as a lot of members wish to ask questions.
Sorry.
Carry on.
Let us go back to first principles. In what ways do you envisage young people accessing the commissioner's office? We asked the youngsters that question last week. What do you think their relationship with the commissioner will be? How will the commissioner's work be informed by youngsters' views?
Young people will access the commissioner's office in several ways. We believe that the commissioner's office will be of most use to children if it listens to their views. That may involve a team of people going out and listening to children's views, but that is the way in which the commissioner should do the bulk of his or her work with children. The fact that children want to be listened to came across loudly and strongly from the evidence that I have read and from the Children in Scotland video about the commissioner. Children in Scotland thought that the primary function of the commissioner should be to listen to children, rather than disregarding their views, to take note of workable views and to try to incorporate those views into existing practices in Scotland. Our view is that that should be the primary way in which children access the commissioner's office.
I will pick up on the issues that were addressed by Mike Russell and Ian Jenkins. I assume that you agree that the children's commissioner would not have a role in children's individual cases and that instead he or she would work directly with organisations.
Do you mean should the children's commissioner be involved in individual cases?
Yes.
We do not think that the commissioner's job should primarily be to take on individual cases, although I know that other written evidence has supported that. It might take away from the resources for doing other things. We understand that the commissioner's office will not have a huge staff, especially at the start. We do not know what the proposals for staffing might be. In Norway, the office of ombudsman has been in operation for about 20 years and has a staff of 11 full-time members. I cannot envisage the Scottish children's commissioner having much more than that at the start. If the commissioner's office took on the individual cases of children it would use up staff and turn the office into a private practice for children. That is not the best use of resources. The commissioner's office should have a network of solicitors and give out the names of solicitors that it knows are good child representatives. A child could go to see a solicitor, but the office itself would not take on the role of legal representative for children in individual cases.
How would the children's commissioner's office link in to agencies such as yours?
We see that as very positive. The Scottish Child Law Centre welcomes the prospect of working with the children's commissioner's office. We expect agencies such as ours, Children 1st and Who Cares? Scotland, which exist for the welfare of children and the promotion of their rights, to work in tandem with the commissioner's office. We at the Scottish Child Law Centre would take on any kind of project work that the commissioner's office would like to give us. We are experts in our field and are happy to work with the commissioner's office. We would be happy if the commissioner's office chose to fund a project that we could carry out, liaise with us about statistics that we keep or liaise with any agency about what it knows in its area of expertise.
Specifically, we would be keen to take on the representation and education of children and the question of their being informed of their rights. We would hope to do that in tandem with the children's commissioner.
This is no criticism of you, as you have been very helpful, but the more evidence we take on this the more confusing it becomes.
I agree.
We have a big task to pull this apart. There is a sense in which what you are saying today presents an interesting dichotomy for the committee. On the one hand, the children's commissioner might be viewed— unsympathetically; it is not my view—as simply adding to the professional advocacy network that already exists in Scotland. It might be viewed as another part of the quango state that is involved in the welfare of children and the promotion of their rights—that is the term Katy Macfarlane used—and as essentially assisting organisations to assist children. It may be worth while to do that, but many people will consider a children's commissioner as having a proactive role in helping children generally in society.
I do not see the two as being mutually exclusive. You refer to the fact that the children's commissioner might be seen as another layer of bureaucracy—I do not see it that way. One of the prime tasks of the children's commissioner—as for the Scottish Alliance for Children's Rights—is to promote the rights of children and knowledge of the rights of children.
That is a wide, catch-all role for the commissioner. If we do not want to keep adding to bureaucracy and the quango state, which organisations should merge into the office of the children's commissioner? This may be asking you to be self-sacrificing, but should the Scottish Child Law Centre cease to have a role once there is a children's commissioner? It may be that other organisations will accept that their roles will be subsumed into that of the children's commissioner, so that we can have a cleaner, more effective and more accessible structure, rather than a structure to which we keep adding things?
I cannot speak for the other agencies. I refer you to my previous answer about the Scottish Child Law Centre. As I have said, I do not see the two roles as mutually exclusive. I see the Scottish Child Law Centre helping with the work of the commissioner, taking a load off the commissioner and doing some of the work at which the centre is expert. For example, one of the tasks that was cited by the Scottish Alliance for Children's Rights was the promotion of the knowledge of children's rights. At the moment, we at the centre are devising a set of talks to give to children at schools—for a kind of road show—to promote the knowledge of their rights.
Could not the children's commissioner do that?
Yes—it is something that the children's commissioner could ask us to do on their behalf. That would release resources so that the commissioner could do things that they were better prepared to do.
But we can stand this on its head and say that that is the role of the children's commissioner and that, therefore, you should not be funded to do it.
No, no—it is—
But we could argue that, could we not?
Well of course you could argue that—you could argue anything.
He does.
The role of the children's commissioner could be to promote the knowledge of the rights of children. That does not necessarily mean going out and telling children that; it could mean—
But it could mean that.
It could mean that, but it could also mean using facilities that are already in existence to do that work, thus releasing resources in the office of the children's commissioner to do other things and to address other unmet needs.
The two roles are not mutually exclusive. As Katy said earlier, she and I are the only ones who work in the office. Scotland is a big place, so we see ourselves complementing the role of the children's commissioner, who would take on another part of Scotland.
Maybe we should make Katy the children's commissioner, and widen the work. I am just searching for some solutions so that we can do the work more effectively.
It would be fun.
I take that as a compliment.
I am trying to lighten the load a bit.
Our core function as an advice line is a very good way of getting information about things that we believe are not working well in Scotland or that need to be addressed. It highlights for us unmet needs and areas where more information is required. Recently we published a couple of leaflets on children and alcohol and the rights that children have with respect to alcohol.
I am not asking about that sort of information, which we could find, but about the mechanisms that you have in place to help young people shape your work. I know that in parts yours is a very technical area of work and that it may not be as appropriate for you to have such mechanisms as it is for other organisations. However, I want to know how young people will be involved in shaping and defining the service that will be provided by the children's commissioner. There is a debate about some of the more extreme situations, which need to be explored and explained; last week both Mike Russell and I asked about the Orkney case. However, I am interested in the commissioner's advocacy role—how they would represent young folk at many different levels of decision making in local authorities, the voluntary sector and so on. Their role needs to be seen as positive and proactive. How do young people's views shape the opinions expressed by the Scottish Child Law Centre? Do you have any young people on a consultative committee? Do you get any feedback? Do you evaluate the services that you provide through questionnaires?
We do not have any young people on a consultative committee. Because we have only two members of staff, it is very difficult for us to canvass children's views. We receive children's views via our phone line and via training courses that we run, some of which are directed at young people. In plenary and question sessions that we hold at the end of those courses, we ask young people what they think. Those are the ways in which we gather information. At the moment it is difficult for us to do that because we have so few staff. We could rely on the children's commissioner's office to supply us with information and to say to us, "There is a gap in the market here. We have collated children's views and we realise that they want to know about a particular subject. Could you do that work on our behalf?" We could collaborate with the children's commissioner's office on trying to fill such gaps.
Thank you very much for your interesting evidence. If from this meeting or subsequently you identify an issue that you would like to bring to our attention, you are welcome to do that in writing.
I will ensure that the Scottish Child Law Centre submits a paper on ground-breaking cases and the kind of issues in which we believe the children's commissioner could be involved.
That would be helpful. Thank you very much for your time.
Meeting adjourned until 15:34 and thereafter continued in private until 16:58.
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