Chamber and committees

On your first point, I have to be honest and say that what was said in the earlier session was the first time that I had heard that there was any breakdown of anything. That is just not my understanding at all. I was not at the meetings, to be fair—I have to be clear about that—but I do not get the sense that there was any difference or any changes to the report or the outcomes, which would have happened whether or not folk were attending all the meetings. I think that the report is the report and that it would have been the report no matter what. It is a good report. It is very clear in its recommendations and I think that SLARC has done a good job.

As you have alluded to, we then come to the question: what now? As Fiona Campbell said, the regulations will set the level of salary and, clearly, how that is funded has to be agreed in advance. Otherwise we would be passing regulations when folk have not agreed how that will be funded, and that is just not the order to do things in.

We have to get into sorting the how, and that has to be a compromise that is discussed through the budget process. I have said that I am open to that discussion and we should look at the art of the possible. I will have a requirement from the Government’s perspective that this is a collective decision and a collective priority.

I am certainly not dismissing that. I am saying that the lack of records means that there is no evidence of what the parental involvement was or was not. I am saying that the legislation underpinning the setting up of the redress scheme was for children who had been removed from parents through social work legislation, where there was no contact and parental responsibility had been entirely removed.

My predecessor made an apology prior to the redress scheme being established and it was made to all survivors in all settings, and I absolutely want to reiterate it fully. On the point about the evidential requirements for Redress Scotland, Scotland’s redress scheme is more broadly drawn than any other redress scheme anywhere in the world at the moment. Most of the redress schemes that have been established are far more tightly drawn than the one in Scotland. However, evidence is required for an application to be brought in front of Redress Scotland, so there have to be records showing where someone—

We have established the research project. That was my way of trying to get to the bottom of whether records exist. That could look at the barriers around parental connections and consent, and existing records that show that someone was in an establishment at a particular time. The purpose is to get to the bottom of what may or may not exist in the archives.

Beyond that, as I have said, support networks that are provided by the likes of Future Pathways can support people who have experienced abuse in any setting. They were established for that purpose. Such support might not be for everyone. Not everyone would want to access such support, but it was established so that people can provide it.

It has guidance—

Technically, yes. However, the point that I am making is that the core purpose of the scheme that has been set up—my predecessor was very clear about this—is to support those who were in long-term care because parental responsibility had been removed through social work legislation. That is the focus of the scheme, and I have tried to set out the reasons why confidence in the scheme, as established, is important. I have set out why the evidential requirements are there and the reasons why they are important. Changing the scheme is technically possible, but I have set out the reasons why it would be very difficult.

Thank you, convener, and good morning to the committee and those in the gallery. I am grateful for the opportunity to provide evidence to the committee on PE1993.

Before I get into redress matters, I will begin by putting on formal record my acknowledgement of the abhorrent abuse that some children suffered while resident in Fornethy house. It should not have happened, and I am sorry to hear about what they had to endure as children and the impact that the abuse has had on their lives. The First Minister and I have met the Fornethy survivors, and I recognise and commend their courage in sharing their experiences.

Turning to the matters that are outlined in the petition, as the committee is aware, I instructed the appointment of an independent researcher to make inquiries into Fornethy house. Dr Fossey took up post on 1 August last year with a remit to investigate the circumstances by which a child would be placed in Fornethy house and to establish what records exist relating to Fornethy house. Dr Fossey has concluded her inquiries, and her full report has been shared with the committee.

As the committee has had the opportunity to consider the report ahead of today’s evidence session, I will not repeat the findings, but I want to turn to how they affect the eligibility of Fornethy survivors to access Scotland’s redress scheme. Part 3 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 sets out the eligibility for the scheme, which includes residence in a relevant care setting in Scotland.

Section 20 of the act defines “relevant care setting” to include residence in

“a residential institution in which the day-to-day care of children was provided by or on behalf of a person other than a parent or guardian of the children”.

Moreover, “residential institution” refers to a variety of different care settings such as children’s homes, residential care facilities and school-related accommodation, which are as further defined in section 21 of the act.

Section 23 of the act, however, allows the Scottish ministers to make regulations to create exceptions to eligibility. The Redress for Survivors (Historical Child Abuse in Care) (Exceptions to Eligibility) (Scotland) Regulations 2021, as approved by Parliament before the scheme opened, provide that an application for redress may not be made

“by or in respect of a person to the extent that it relates to abuse that occurred when that person was resident in a relevant care setting—

(a) for the purpose of being provided with short-term respite or holiday care, and

(b) under arrangements made between a parent or guardian of that person and another person.”

Where the exceptions apply, a key point in assessing eligibility is the purpose of the stay in the relevant care setting and whether it had been made under arrangements with a child’s parent or guardian. Although records from the period are limited, the report is clear that children attended Fornethy house primarily short term for convalescence or a recuperative holiday under arrangements involving their parent or guardian and another person. Those circumstances, as agreed by Parliament, are excluded from the scheme.

It is important to acknowledge at this point that, in the absence of individual records, it is not possible to say with certainty that parents gave their informed consent to their child attending Fornethy house. We can only speak to what was supposed to happen. The legislation speaks of arrangements made with a child’s parent or guardian, and that is what is relevant for redress purposes.

The redress scheme is primarily designed for those children who were in long-term care and the exceptions are in keeping with that purpose. That rationale was supported by 79 per cent of respondents to a public consultation that was issued in advance of the legislation being drafted. In addition, there is the key issue of the absence of records relating to Fornethy house. Every applicant to the redress scheme is required to provide evidence that they were in a relevant care setting at a particular time. Unfortunately, the absence of records means that, even if the eligibility criteria were to be changed, Fornethy survivors are unlikely to meet the evidential requirements of the scheme.

For all those reasons, I do not intend to change the eligibility criteria for the scheme. I recognise that the outcome of the inquiries will be disappointing to the survivors who seek redress. The report’s findings are in no way intended to diminish the experiences of the survivors or to suggest that the parents of those children were in any way responsible for the experiences that their children had during their time in Fornethy house.

I am very grateful to the committee for its on-going support of the Fornethy survivors and Scotland’s redress scheme. I am happy to answer any questions that you have.

I recognise very much the point that you make about the unequal nature of that relationship. I am not disputing that at all. The point that I am making is that, when the bill was taken through by my predecessor, the distinction that was made was that the scheme would be for those who were in long-term care and who had essentially been removed from their parents through, primarily, social work legislation. Fornethy was established through education legislation. I am not disputing the opaqueness over whether parental consent was given. I am saying what was supposed to happen, rather than necessarily what the individual experiences were.

No one is disbelieving anyone—let me be clear about that—but the core aim of the scheme, as set up by my predecessor, was very clear in that it was to focus on those who had been in long-term care who had been removed from parental responsibility. That was the core purpose of the scheme. It was unanimously agreed by Parliament and a line was drawn in recognition of the priority given to those children.

That is not to deny the experience of anyone else, whether it was in short-term convalescent care or in a boarding school, for that matter, but that was the core aim of the scheme, as my predecessor was very clear about and as was agreed by Parliament—and, of course, in the public consultation, 79 per cent of people agreed with that being the purpose of the scheme. That is absolutely not to question the experience of anyone else, and I will be really clear that everyone should be believed. However, that was the core purpose of the redress scheme, for all the reasons that my predecessor set out, and that was accepted and agreed by Parliament for all the reasons that were debated at the time.

The same principle was looked at when the former Deputy First Minister was in front of the Education, Children and Young People Committee. I think that you and Oliver Mundell were members of that committee. Those were exactly the issues that were debated.

You can go back and look at the record yourself, Mr Ewing.

On the situation now, I have outlined why the eligibility criteria were established as they were. The scheme is far broader than any other scheme. I have said that it is focused and is working hard to deliver for those who were in long-term care and removed from parental responsibility. I have also outlined the difficulties of Redress Scotland’s evidential requirements.

There are no records not just for Fornethy but for the many other schools that people were in for very short terms—for a number of weeks. There are no records for them because the system at the time, rightly or wrongly, did not require those records to be retained. It would be very difficult to ask Redress Scotland to take on thousands of cases in which no evidential material exists and to try to work through those cases when it is focused on the core purpose of the scheme.

As I said at the beginning, Scotland’s redress scheme is far broader than any other scheme anywhere else in the world that I am aware of.