Public Petitions Committee

Meeting date: Thursday, November 23, 2017

Official Report 635KB pdf

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New Petitions

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Child Protection Services (PE1673)

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Children’s Hearings (PE1675)

Our final agenda item is consideration of two new petitions, both by James Mackie. We will take evidence from Mr Mackie, who is accompanied by Anne Speak and Maggie Mellon. I welcome you all to the meeting.

Parliamentary rules specify that we must conclude our business before business in the chamber starts, so we must finish by 20 to 12. I aim to finish taking evidence from the panel by half past 11, which would allow us a wee bit of discussion time. We have a good half hour for questions and answers, with another 10 minutes after that for the committee. I hope that that is satisfactory.

I invite James Mackie to make a brief opening statement of up to five minutes, after which members will have questions.

I thank the convener and committee members for inviting us here today. The petitions are on serious matters, and they have implications for the whole of Scotland, particularly for our children. First, I record my great thanks to the committee clerk, who has guided me through the process during an extremely difficult personal and political situation.

11:00  

I will introduce my supporters. To my right is Anne Speak, who has worked with children and adults with learning difficulties and disabilities for well over 40 years. For 20 years, she was project manager of a specific project for those types of individuals in Moray. That project finished because of a lack of funding. For the past 25 to 30 years, she has also been a volunteer with the charity Enable. On behalf of Enable, she picked up the Queen’s award for services to the voluntary sector last year.

To my left is Maggie Mellon, who is a social worker by training and profession. She has had many roles in her life. She is the former director of Children 1st. For a number of years, she was vice-chair of the British Association of Social Workers. She has communicated with the Scottish Government on many of the aspects of our petitions that we hope to cover today. She was also invited to give advice to the Isle of Man Government when it was drawing up new legislation on child protection.

I left school with six O-levels six weeks after my 16th birthday. I moved from rural Moray down to lodgings in a deprived ex-mining village in Clackmannanshire—an area where I lived for 45 years. During that time, I was a professional criminal and civil law investigator and enforcer for 43 years. I was also a researcher for a member of the Scottish Parliament in the very first session of Parliament. Through working for him, I got involved in helping families with autistic adults in psychiatric services and in helping families with children wrongly diagnosed with attention deficit hyperactivity disorder.

Like most people in the country, I realised that child protection existed and that there were children who needed to go into care. I think that the three of us still agree that, in certain circumstances, children need to be taken into care for their welfare. However, from my experience, both professionally and as a grandfather—the oldest of my grandchildren is eight—I feel that there are great deficiencies in the whole system at the moment. With the committee’s permission, I would like to look at what the aim of child protection is from a political point of view, look at some statistics that show what is actually happening and explain what the whole child protection system is.

I got involved in child protection when my grandchildren were removed from my house at half past 11 on a Friday night. I got a phone call with two hours’ notice that that was going to happen. People have been referred to me because of my personal experience of the system and my personal background. I have spoken to at least two dozen families that have gone through the system, and there is a consistency in their experiences. The purpose of child protection is to protect children but, in reality, the statistics on children taken into care show that the system is not working and that children in care are at great risk.

Government statistics show that 1.1 per cent of all children in Scotland are in care and have been taken away from home, although there might be a bit of movement regarding that figure, depending on how people discuss it. Based on that figure, the cost of having children in care to the Government and the public is between £400 million and £850 million per year.

Everyone looks at outcomes, and one striking figure is that 20 per cent of children who have been in care will not see their 25th birthday. In addition, 25 per cent of females who have been in care will be pregnant by the age of 19, 25 per cent of those who have been in care will have police convictions by the age of 25, 25 per cent are homeless between the ages of 16 and 25 and a similar percentage are unemployed. If children are being taken away from their parents and taken into care and we end up with those figures, something is far wrong with the system. Other figures show that parents with a learning difficulty are 50 times more likely to have their children taken into care.

Then there is—excuse me for stopping, but this has been a very emotional and stressful time.

The inference in the official statistics is that, over the past three, four or five years, the number of children being taken into care or reported through children’s panel hearings has remained steady. The headline figure of referrals has maybe been stable, but the number of children who are referred and stay with their parents is diving whereas the number of children who are going into care, away from their home, is accelerating. That is where the big difference is. At the same time, a higher percentage of children are being adopted against the wishes of the parent.

From my experience of my family and from speaking to others, the system is geared towards pillorying the mother. The mother is blamed for everything, but abusive fathers and partners stand on a pedestal. I know that it is difficult to understand—it took me a long time to understand it—but the whole system works like that.

A number of organisations are involved in child protection: social workers, the police, charities, schools and different parts of the national health service, including health visitors, general practitioner services, hospitals and accident and emergency.

There is no doubt that children who are abused, such as through physical assault, need to be taken into care. However, our experience says that a very high percentage of children are taken away from their parents and into care before any serious investigation is done, if one is done at all.

I will give you a couple of examples so you can see where we are coming from. An 11-year-old child, whose school notes showed that he was believed to be autistic, stood up during a classroom discussion and said, “Last night, my mother took me by the arm and put me to bed.” The next thing to happen was that a social worker and a police officer were called. The child was interviewed on his own, away from everybody else. His mother got a phone call at half past 3 in the afternoon saying, “Your son has made a serious complaint against you. We are seriously worried about his safety and wellbeing in your house. He will not be coming home tonight. Where can he go?” It was arranged that he would go to a relative’s house, but the mother was told that she could not phone or speak to her son. That happened a year past June. No social worker or police officer has ever gone to the house to interview the mother, but after a day the child was let home.

On 1 March this year, the Supreme Court in London judged that West Lothian Council had taken actions on child protection that were purely based on opinion. I, as well as colleagues and other professionals who are interested in the issues, would extend that and say that the majority of proceedings in child protection—especially in cases where children are taken into care or put on compulsory supervision orders—are based purely, or 95 per cent, on opinion, speculation and supposition.

I am conscious that this is very personal to you, but I am worried about time. It would be useful to explore some of those issues through questions.

Fine, but I could go on for days. I will just make one point. My grandchildren were subject to a child protection order. When someone applies for a CPO, the family is never told. The first that they know about it is when the police and social worker arrive.

This big folder that I am holding shows the paperwork for one CPO. From the time the children are taken into care, the family gets 48 hours to prepare a defence for the hearing that is held by the children’s panel. This folder plus half again is part of the file for 12 months of involvement with councils, core group meetings and the children’s hearings system.

For the children’s hearings system, the family gets the social worker’s report three days before the hearing, and that includes weekends. A family can get papers on a Friday afternoon for a hearing on a Tuesday. That does not give time for them to read through it, understand it or get legal advice.

Those are just some of the points that can trigger a conversation.

Thank you. To be clear, one petition asks for the Scottish Government to create an independent Queen’s counsel-led inquiry into the whole issue of child protection, and the second one is about the specific issue of children’s hearings and the obligation of young people—

I can give you two minutes on that one, because it is short.

We will take questions on that. I just wanted to clarify that the other petition is about attendance at hearings. I thank you for the statement, and I recognise your personal involvement.

The petition is clear that some of the fundamental issues that you raise are about communication, including communication of the right to representation, whether that be legal representation or independent advocacy. Do you agree that that is one of the fundamental questions? If so, how would you like it to be addressed?

It is one of about seven or eight serious issues, but representation is the major one. Legal aid is extremely hard to get. In our case, we phoned more than 30 legal practices when we were trying to get assistance. The majority said that they did not do child protection or children’s panels. They gave two reasons for that, although I will only refer to one; the other can be kept for a later date. They said that legal aid is extremely difficult to get because of the way in which it is allocated, and if they applied for it, there was a timescale that did not fit with the timescales of the children’s hearings system. They also said that the amount of money that is given for legal aid for child protection is so low that it does not cover a lot of the costs most of the time.

The criteria for getting legal aid have been tightened up so much that few families can meet them and get legal aid. Yesterday, I had a meeting in Edinburgh with a mother who is going through the system. In child protection cases, there is a system of appeal to the sheriff. Legal aid will pay for only one appeal to the sheriff court and many cases need to go further than that—to the Supreme Court, for example. Legal aid will not pay for the follow on.

If a family who cannot get legal aid appear in the sheriff court, they have to pay for it privately, and the costs are horrendous. A defence solicitor costs an average of £200 an hour. One case that I know of had QCs involved for eight days, at about £3,000 to £5,000 per day for that team. Probably 98 per cent of families who are involved in the system cannot afford to get legal assistance. That is one major failing.

11:15  

I am curious as to why you feel that you cannot share the second reason.

It is comments from solicitors about one reason why they do not like getting involved in children’s hearings and child protection. Their blunt answer was that social workers lie. That is coming back from the legal profession.

I refer members to my entry in the register of interests. I am a member of the west of Scotland board of the National Society for the Prevention of Cruelty to Children.

A particular issue that you raised relates to the evidence that is presented to a sheriff in relation to an application for a child protection order and whether there is, or should be, an opportunity for the family of the child concerned to have input into that process. The counterargument to that would be that the safety of a child is in question, and action to protect that child should be taken without delay. How would you respond to that argument?

I will ask Maggie Mellon to respond to that, after which I might add a few comments from personal experience.

When a child protection order is pursued, the social worker or police officer presents a prima facie case to a sheriff, in which certain allegations about the safety of a child are made such that they are at risk of significant harm. If the sheriff agrees—and they rarely do not, because they do not like to be in that position—parents will only know about it when police officers and social workers arrive at their door to take their children away. In most cases that I have been aware of, it would have been absolutely right to inform parents that such a measure would be taken and to allow parents to be present, to challenge and to be able to say what they understood of the situation.

I can understand that there are cases where a child would be in peril if anybody knew that they were going to be rescued, but they are a minority. Single mothers are the subject of the orders in the majority of cases. They are not in any sense threatening to the police and the children are not at imminent risk of serious injury. Like Mr Mackie, the reason that I am here is that I have independently helped to support parents in these cases through my professional work. I am contacted two or three times a week by parents who have experienced removal in such traumatic circumstances—as have their children.

I provided some statistics because I would like the committee to be aware that the rate of removal in Scotland is significantly higher than it is anywhere else in the UK. I included some PowerPoint slides that show that. It is important for the committee to be aware that the situation in Scotland is much more extreme than it is anywhere else in the UK and that no other factor explains that, other than problems in our processes. We do not have enough safeguards.

I know of a case where children were removed late on a Friday night by the police and social workers and taken into care. What happens in such cases is that an interim compulsory supervision order is then made by the next children’s hearing, so the reason that those children were removed might never be put to a sheriff in court, and the evidence might not be heard, for up to a year—or sometimes longer. Members might find that unbelievable, but it can happen. I know of one case where the evidence was not tested in court for a year. Meanwhile, the children remain separated from their parents, and that is hugely harmful. If you do not get it right, the removal of children in emergency circumstances with the police present can be a huge emotional trauma for a child. They can be separated from their siblings without any plan in place and without them knowing why they are being removed, so it is something that should be avoided. We are obviously not avoiding it enough in Scotland because the rate of removal is so extreme. The number of children being taken into care has almost doubled since 2004.

Good morning, panel. Mr Mackie, your petition indicates that you have raised issues with a number of organisations in relation to the current operation of child protection services. What response have you had?

They do not want to touch it with a bargepole. I wrote to the Scottish Social Services Council and sent copied files of what was going on. The answer that came back was that, basically, I was disagreeing with a social worker’s opinion. It also set out what the Scottish Social Services Council could investigate, and one of those things was dishonesty. I wrote back and said that it was dishonest of social workers to submit false information to a sheriff to obtain a child protection order. I got absolutely no response and it went dead.

I wrote to the Care Commission, again with copies of our personal files. I said that I knew that it would not look at that one case specifically, but that it should be aware that that was what was happening in general, and that it should look at the issue. The response that I got from the chief executive officer was that they could not touch it because it was a single case, and that I should be glad that my grandchildren were now under the protection of the children’s hearings system. My response was that they were only in that system because false information had been put in.

The children were taken out of the house and we got them back four days later through a children’s hearing in Stirling. After the trauma of that, it took me about a week to get my head back on my shoulders and to be able to look at the papers that were put in for the CPO. At the time that the papers were served to us, we were led to believe that an affidavit—

I appreciate that very much. If I can just—

I will answer the question. The paperwork that we sent to Police Scotland—

I just want to say that we will not deal with individual cases.

I appreciate that, but I was giving you examples.

However, we are sympathetic to the fact that a petition has emerged out of individual circumstances. We are trying to deal with the themes that the petitions committee can address with the Government, but that is not to disrespect anything that you have to say. Given the time constraints, after reflecting on the meeting, if there are things that you want to say but did not get the chance to say, you have the opportunity to write to the committee again, and that will be circulated.

I did not appreciate that, but thank you.

In respect to the children’s hearings system, you seem to show concerns in your petition about the requirement of vulnerable children to appear before a panel; age and learning disabilities are mentioned in particular. Are you of the view that children below a certain age or those with a learning disability or other vulnerability should never be required to attend a meeting?

If the panel feels that they should be there, the panel should have the power to explain why it wants those children to be there. At the moment, any notification for a children’s panel hearing says in bold letters that the children must appear—it does not matter what age the children are, their understanding of procedures or how scared they will be. If you do not think that the children should be there, you have to apply to the panel for a pre-hearing meeting to explain that.

In any other legal system, the age of criminal responsibility was raised from eight to 12 a number of years—or decades—ago because children do not understand the proceedings. When very young children or those who have learning disabilities are taken in, they do not understand, they are extremely scared and they have to sit in a meeting at which their parent is being decried for bad parenting. It is a whole mix of things that the child is not of an age to understand. Once they get to 12, they can start making decisions and they can understand but, below that age, it is extremely stressful for the child and it makes their situation worse.

I agree that the child, or somebody independent who is able to represent the child’s view, their state and what they are thinking, should be at the hearing. After the Orkney inquiry, it was laid down as a principle that the children’s panel must see the children at the hearing because, in Orkney, the children had very strong opinions that they should not have been taken away, but they were not produced.

There are very variable rates around Scotland for children appearing at hearings. It has been my experience that children are not produced and that they are excused when they are likely to say that they do not want to be in care and that they want to go home, and their independent view is not properly represented. I know that the Children and Young People’s Commissioner Scotland is doing work on that broader issue, rather than looking at individual cases. He is looking at how children can be represented at hearings without being upset in the way that Mr Mackie described.

Children’s hearings used to be for older children and usually involved issues of truancy and delinquency. However, children’s hearings are now completely different. The majority of children whose cases are heard at children’s hearings are not just under 11 but probably under five. However, their attendance is often excused because they would obviously not understand what was going on.

There is a question mark around children’s hearings and whether they can properly hear cases involving child protection issues. The focus of children’s hearings has moved away from including a young person and talking to them about their role in their life regarding making decisions and being responsible. The work of hearings is now quite different, in that a hearing has half an hour or 40 minutes to make major decisions about contact with parents and children remaining in care, often without a good, independent look at the child’s stake. In some ways, the issue is not about whether a child should attend a hearing but about whether that is the right forum in which to discuss those issues and make decisions on them.

I have been to children’s panels when preschool children and children with additional support needs were taken in, and it was terrifying for them. With my working hat on, I have had to report children to a social worker, but I know that a mother’s abuse is sometimes a cry for help. If we have the right input at the beginning, a case does not need to go as far as the children’s panel.

I was called by Mr Mackie when he heard that the social workers were coming round to take the children. I never want to see again two children, one of six and the other of preschool age, being woken up at half-past eleven at night and taken from their bed, with their mother and both grandparents being really upset. It was absolutely horrendous. I know that the social work department and the police were trying to be kind, but at the end of the day the law meant that the children were taken away. Why could they have not waited until the next morning to do that? Why could there have not been more preparation? The children were taken away to a strange house where the people had probably just found out about the children coming and had not done much preparation for receiving them. It was a horrendous situation.

Obviously, you have thought about the importance of ensuring that the child’s voice is heard; I can hear it in some of your statements. You are painting a picture of something that is not very good. I declare an interest in that I used to head up a service that worked with children and I have attended children’s panels as an advocate for children. There are mixed experiences, without a doubt. Is what you are bringing to us related to geography? Are there good areas and bad areas or are the problems evenly spread across the country? You are making significant suggestions here.

It is serious. As I said, I got involved through a personal experience. However, if someone has a background in investigation, they go and look for information. A lot of that information has come from Government web pages, but it has also come from speaking to families around the whole of Scotland. Various organisations have a culture that is inward looking and self-preserving. From my experience of identifying problem areas, I believe that the organisations in the child protection service are untouchable, because nobody will take a complaint against them. I have gone to two councils, including Falkirk, and my complaint has been washed out.

11:30  

I have a legal and police investigation background and immediately I looked through the paperwork for the CPO I saw that there were downright damn lies in it. We were told that it was an affidavit. To me, an affidavit is made under oath. Police Scotland, 15 months down the line, does not want to handle it. It just keeps ignoring it. The whole system has major, major problems. There are constant reviews of different parts of the system, but they are done by people who have an interest in it.

There has never been a complete overview of the whole system and certainly, in any review of any part of the system, the parents—the mothers—are never, ever interviewed. The attitude is that the mothers are the bad people; they are there to harm children and we cannot speak to them. The views and experiences of the family are never taken into account. You cannot run a system that ignores the views of the main players within it.

Also, I cannot understand politicians and others. The figures that have been produced on child protection and children in care show such horrendous outcomes for children who are taken into care. How can that be better? What is happening to them is just a nightmare.

For clarity, though—

Sorry, Michelle—we have to get the last couple of questions in. We have under 10 minutes left. I have also afforded people the opportunity to come back later. I will take questions from Rona Mackay and Brian Whittle and then we need to conclude—my apologies.

I will be as brief as possible. I should say at the outset that I was a children’s panel member for six years, until last year, and Mr Mackie has said a lot of things about the system that I do not recognise. I am sorry that you have had a bad personal experience, Mr Mackie.

Regarding children being at the hearing, it is extremely important for a panel to see a child, because reading about a child’s wellbeing is not the same as seeing the child sitting in front of you. We regularly excuse children who will be traumatised or who are far too young. That has been happening more regularly, in my experience. The majority of the cases that we see are not child protection orders. They are for truancy or child supervision orders, not to take children away from their parents.

Maggie Mellon spoke about the time that is spent. I have sat in hearings about one child for four hours; the time taken is not just half an hour or 40 minutes, it is a lot more than that. I just wanted to put on the record that that is not my experience of the children’s hearings system. I am not saying that it is perfect and I am really sorry that you have had bad experiences, but that is not my experience of it.

In a response to the Education and Skills Committee in June this year, the Scottish Government indicated that it would consider the case for legislative change, including the requirement for physical attendance,

“by reviewing whether the existing rules inhibit partners taking a more child-centred, child-led approach.”

What changes to the rules do you consider would enable a more child-centred and child-led approach to be taken?

Do you want to answer that, Maggie?

There is always a difficulty when people talk about a child-centred or child-led approach and do not include within that an understanding that children live in and come from families. There is a huge tendency nowadays for children to be considered absolutely separately from the conditions of their family.

For instance, neglect is one of the rising reasons why a child might be brought to a hearing, yet there is such a huge connection between neglect and poverty and the conditions that people are living in. People dispute that, but a recent study has absolutely demonstrated that poverty is associated, for obvious reasons, with neglect. It is not because people who are poor are worse than people who are well-off. It is just that it is hard to decide what is neglect and what is just an absence of money or absence of time or whatever.

It is important to say that there should be a child-centred approach. However, the question is what a child-centred approach would be. Rona Mackay said that she did not recognise the hearings as we described them, but the research on parents says that they find it all incredibly difficult and unpleasant. That is not because they are abusing their children; it is because they do not have a voice. They feel that the social worker is always believed.

For example, a panel could decide to excuse a child from a hearing because they would be traumatised, but who told the panel that the child would be traumatised? In the cases that I know of there has been a pre-meeting that the parents know nothing about in which a social worker has gone along and said that the child would be traumatised if they were to attend.

As Mr Mackie suggests, we should have a proper approach to respecting parents and their views. Parents should be included and their experiences should be identified. If we did that, panel members would be surprised by what came back to them from the parents who have been through the proceedings.

A family-centred approach would be much more relevant and reasonable, rather than an approach that leads to the separation of children from their families. When we separate children and take them into care, the outcomes are not good. The outcomes from being in care are much worse than they are from being with a family.

Some children need to come into care, but in general—

We would need to establish a causal link. It is an issue about what the young child takes into the system.

I am very alive to the time—we have under five minutes left. I will let Brian in, and then I will afford Mr Mackie the opportunity to make the last comments. The committee will then need a minute at the end. I think that it would be fair to say that, at the very least, we will write to the Scottish Government about the issues.

I need to get to the chamber; I have no more questions, convener.

In that case, do you have any final comments, Mr Mackie?

Originally, I had four petitions on child protection services. With Catherine Fergusson’s help, that was cut down to one.

Rona Mackay is to be applauded for being a children’s panel member. I have been to five hearings in the past year and not experienced what she has experienced. In my experience, and the experience of families and lawyers, there has been insufficient time. Paperwork that is put into the panels comes only from the social workers. The information, which is dated chronologically and includes their opinions and suppositions, goes on files. The input of families is totally ignored. Our experience is ignored; other people’s experiences are ignored.

I would like to sit down with you and talk you through our experiences. It is a massive issue. You would need to delve further into it. I will write to you about it.

Please do. The conclusion that we need to draw is whether your experience is specific to you or whether it applies more generally and is something that we want to explore with the Scottish Government.

I think that it is fair to say that we want to write to the Scottish Government to ask for a response to today’s evidence. Do members agree to bring together both petitions in order that we can consider them together in future? Subsequent to the Scottish Government’s response, we will look at how we might progress the petitions.

Members indicated agreement.

I thank you for attending, Mr Mackie. I appreciate that it is that bit more difficult to discuss such a personal matter, particularly given the impact that it has had on you. I appreciate the time that you, Anne Speak and Maggie Mellon have taken to be here.

Meeting closed at 11:37.