Chamber and committees

My thoughts about that go back to the idea that the victim impact statement challenges the whole ethos of the children’s hearings system. I really do not think that I can be any clearer about that.

I thank Ms McCall for her explanation of her amendments.

The remittal of a child’s case to the hearings system provides the opportunity for them to be afforded more age-and-stage-appropriate, welfare-based and holistic support to meet their needs. In the consultation on the bill, the majority of respondents supported further exploration of the proposal to enable all children under the age of 18 to be remitted from a court to the principal reporter. The rationale was that it would lead to improved outcomes for children in recognition of the trauma, abuse and other adversities experienced by so many children who are in conflict with the law.

Respondents also recognised that reform in this area would allow the rehabilitative potential of the children’s hearings system to be maximised. Fundamentally, amendments 85 to 88 would remove the ability of 16 and 17-year-olds in solemn proceedings to have their case remitted to the PR to arrange for the disposal of the case by a children’s hearing. I understand that Ms McCall intends to withdraw or not move those amendments.

Turning to Russell Findlay’s amendment 206, I note that there are parallels with amendments debated last week that sought to take and have regard to views of the person who has been affected by the child’s offence or behaviour in the children’s hearings system. I note in particular that amendment 168 was not supported in the vote of the committee. I do not believe that amendment 206 is appropriate.

The legislative framework for victim impact statements, which concerns the criminal justice system, provides that they can be made in certain courts and in relation to certain prescribed offences only. In cases in which it would be possible for such a statement to be provided, as we have heard, the statement might have already been received and considered by the court ahead of the case being remitted.

Amendment 206 does not specify which offences it is intended to apply to. If it is all offences, it would go even wider than the existing measures in the criminal justice system. In addition, the purpose of victim impact statements is to inform sentencing and, as the committee is aware, remittal to the children’s hearings system does not constitute a sentence, and nor does the hearing impose a sentence.

I could certainly explore that. The impact of the child’s behaviour on a victim is currently a consideration in the hearings system. As the member noted, as the amendment is currently drafted, the victim impact statement risks disproportionately influencing panel members’ decision making. As we have said, the central plank of the hearings system is that decisions are taken in the best interests of the referred child. However, I could certainly explore that more.

Last week, I spoke about not turning hearings into a mini-court setting. We must be careful not to transform the ethos of the hearings system. The children’s panel must consider which compulsory measures are necessary to safeguard and promote the welfare of the referred child and, in so doing, prevent the child from causing further harm to others. The impact of behaviour on victims can already be taken into account.

Amendments 89 and 91—

Of course.

Because, as I said, the impact on the victim is already taken into consideration and because I believe that the option to have a victim impact statement in the setting of a children’s hearing is not necessarily in keeping with the ethos of the hearings system. I have made that quite clear.

Mr Kerr asked about types of cases. The type of case is not exactly specified.

I have not finished talking about my amendments, convener. I was just dealing with interventions.

On amendments 89 and 91, the Scottish Government is absolutely committed to tackling domestic abuse. Our approach to the bill has been to ensure that children who are in conflict with the law can access the age-appropriate hearings system where possible, in line with children’s rights.

The remittal framework in the bill covers specific instances in which courts have levers that are not replicated in the hearings system. At stage 1, we listened to testimony from victims organisations. The point has been made that enabling more 16 and 17-year-olds to access the hearings system may mean that, because people in that age group are more likely to be in a relationship, that brings into consideration possible offending around domestic abuse. The Lord Advocate’s guidelines will, however, determine the cases that can be referred, and the procurator fiscal will obviously retain the discretion to prosecute. The joint referral framework and guidelines will be updated and published after the bill is passed, as they would be following any act of Parliament.

Amendments 89 and 91 will enable courts to make a non-harassment order when the court is satisfied, on a balance of probabilities, that it is appropriate to do so to prevent a victim from harassment or, when the child has been convicted of an offence under domestic abuse legislation, to protect the victim of that offence, and to thereafter be able to remit the case for disposal at a children’s hearing if that is considered appropriate.

Remittal in that case would not affect the non-harassment order, which would remain in place—for example, breach of a non-harassment order would still be a criminal offence that would be dealt with by the court. The briefing to the committee from the Children and Young People’s Commissioner Scotland stated:

“Our view is that this will ensure that the child receives the support they need to comply with the NHO and will therefore strengthen protections for victims.”

Yes, but that is because of the differences in the settings.

Yes, I have a little left.

Remittal in that case would not affect the non-harassment order, which will remain in place—for example, a breach of a non-harassment order would still be a criminal offence that would be dealt with by the court.

I am sorry—I repeated myself there.

On amendment 90, the committee will be familiar with the bill’s remittal framework concerning road traffic offences. Driving disqualifications can occur when a person accumulates 12 or more penalty points on their licence within three years—the so-called totting-up provision in section 35 of the Road Traffic Offenders Act 1988—and the amendment will extend the court’s ability so that it can impose a totting-up disqualification and still remit the case to the children’s hearing for disposal if that is felt to be appropriate.

I urge members not to press amendments 85, 86, 87, 88 and 206. If they are pressed, I urge the committee not to support them. I will move amendment 89 and the other Government amendments in the group, and I ask members to support them.

Yes, absolutely. We have been committed to exploring and consulting on the matter further, and, as I said, we considered that in relation to the children’s hearings redesign report, too.

As we have already discussed, the panel members are trained in trauma and numerous other areas in order to understand what might be best for a child at the heart of the welfare system. I am sorry, but I do not see how the views of the victim could be relevant to the welfare of the child at the heart of the system. Obviously, the views of the victim are extremely relevant in terms of their own situation, but not in terms of the decisions that are made for the child at the heart of the hearings system. I do not think that I can be any clearer than that.

Changing the ethos of the hearings system in the manner outlined in amendments 168 and 184 would undermine its principles and move it towards a court-type system. In addition, it would be difficult in practice, in the context of a children’s hearing, to seek the views of a victim without causing delay to the progress of the child’s case, as it would take the focus away from decisions being made as quickly as possible in order to safeguard and promote welfare.

On amendments 4, 5, 6, 173, 174 and 176, which relate to measures and CSOs to protect victims, the bill already includes two new prohibitions in section 3. That section, which amends section 83 of the 2011 act, gives children’s hearings greater choice when deciding on which measure—or which combination of measures—is necessary to assist the child in refraining from negative behaviours.

Amendment 6 is not necessary. Hearings are already required to consider whether a direction regulating contact is necessary. In seeking to prevent, on a blanket basis, any contact between a child and a

“person affected by”

their

“offence or behaviour”,

the amendment is not consistent with the child-centred approach of the hearings system and might not be compliant with UNCRC or ECHR in particular cases.

Likewise, amendment 173 is not necessary for the purpose of making the order specific to the circumstances of the offence or to the safety of the person affected. The children’s hearing is already required to consider the consequences of a child’s offences or behaviour, and it must in every case already consider the established facts of the grounds of referral, which, for an offence ground, would include the details of an offence. Given that the disposals that are open to a hearing range from discharging a referral to home supervision and deprivation of liberty, it is evident that hearings’ decision making already takes into account that a measure might be needed to address the safety of others in response to the circumstances of an offence.

Amendments 4 and 5 are not required either, because the section to which they relate has been worded in a general way deliberately to align with section 83 of the 2011 act and would cover victims and the places that they attend. I therefore ask that amendments 4 and 5, in the name of Ms McCall, which seem designed to clarify what is meant by “person”, not be moved, as they do not seem to add anything that is missing. Again, if Ms McCall is minded not to move her amendments, I would be happy to discuss an alternative wording or form for stage 3.

Similarly, I do not consider that similar adjustments to provisions in sections 4 and 5 as a result of amendments 174 and 176, as proposed by Martin Whitfield, are necessary. The tests for an MRC and for secure accommodation authorisation are clear, in so far as they apply where a referred child

“is likely to cause physical or psychological harm to another person”,

and an ordinary reading of the word “person” undoubtedly includes any person harmed by the referred child. Again, I wonder whether Mr Whitfield would be minded to withdraw his amendments, because I am more than happy to explore the matters further in advance of stage 3.

Amendments 12 to 15, 175 and 180 concern the provision of information to victims, which I appreciate is an issue that has been highlighted throughout stage 1. Government amendments 13 and 15 extend the existing powers of the principal reporter to share information under section 179C of the 2011 act. The amendments will mean that, except in limited circumstances, a victim can receive details about relevant measures that a hearing has made in a compulsory order that has the effect of prohibiting contact between them and the referred child, including further details from review hearings when a measure is continued, varied or terminated. That will include movement restriction conditions. Similarly, if a hearing considering a child's case concerning an offence or harmful behaviour decides to make a secure care authorisation, that can be shared, too. I should say that I consider it necessary to develop regulations that will improve support for victims in understanding hearing decisions, and I will mention them shortly when I discuss amendment 17.

Amendments 12 and 14 risk information being shared with a victim that could be detrimental to the referred child or to a child other than the child victim in the case. They would also remove the reporter’s discretion not to share in other circumstances when doing so could be inappropriate—for example, where to do so would adversely affect an adult victim. The bill—and amendments 13 and 15, which I have lodged—extends the provision of information to victims, and there is no intention to restrict the sharing of information, except in the limited circumstances that are already set out in section 179C of the 2011 act and are well understood.

It is a rarely used measure, but I understand from the SCRA that it is sometimes necessary to withhold information in cases where there is a concern about the safety or welfare of any child, including the referred child, if the information is provided, and where there are concerns about how the information will be used by the victim or the victim’s family. There are examples of information being circulated through social media or in local campaigns against some children who have been subject to hearings, so those exceptions are necessary, although I would expect them to be used in extremely isolated cases.

If agreed to, the Government’s amendments 13 and 15—on which I have had very positive engagement with victims organisations—will adequately address the matters raised in Ms Duncan-Glancy's amendments 175, 178 and 180. In effect, amendments 13 and 15 ensure that, if a victim is named in a child’s order, they will be told about it; if the child is on a movement restriction condition and is not to approach them, they will be told; and if the measure is terminated at review or is varied or continued, they will be told. Once the child attains the age of 18 and the order naming them is terminated, they will be informed. That, together with the support services that I will outline shortly, will give them the information that they need to understand what measures are in place and when they will end. I therefore ask Ms Duncan-Glancy not to press her amendments at this time. However, if there are other areas that she still remains concerned about, I am more than happy to discuss them ahead of stage 3.

On Government amendment 17, I am aware that the balance of rights surrounding the children’s hearings system has been a key theme of the debate arising from scrutiny of the bill to date. The committee has heard some very powerful testimony on the effects that a child’s offending behaviour can have on those who are harmed, and the Scottish Government is committed to ensuring that victims are treated with compassion, that their trauma is recognised and that they are supported.

The consultation on the bill’s proposals before it was introduced to Parliament asked whether a single point of contact should offer support for a person who has been harmed, and the proposal was supported by 97 per cent of respondents. I am also aware that recommendation 287 of the committee’s stage 1 report endorsed provision of such a service.

The Scottish Government always intended to support provision of that kind for commencement of the legislation. It does not strictly require a statutory duty to ensure that it is provided—that can be done administratively—but I have listened carefully to the very strong views and the strength of feeling on the matter. As such, amendment 17 places a direct duty on Scottish ministers to provide, via secondary legislation, a support service that is not restricted to a single point of contact. The provision has been drafted deliberately to avoid being overly prescriptive at this point and to build in maximum flexibility for the development of the service in the future.