Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, August 25, 2020

Official Report 1021KB pdf

---

Children (Scotland) Bill

I ask members to stop the private chatter and take their places.

The next item of business is a debate on motion S5M-22505, in the name of Ash Denham, on the Children (Scotland) Bill. I call the minister to speak to and move the motion. Minister, you have up to six minutes.

I am delighted to open the debate at this final stage of the bill, which seeks to improve our family courts and children’s hearings. I thank the Justice Committee for its careful examination of the bill and for its considered stage 1 report. I also thank parliamentary staff for their support in that process, and I commend them for rising to the challenges of Covid-19 and putting in place new processes that have enabled scrutiny of the bill to continue during the public health emergency.

Many stakeholders and individuals took the time to provide evidence on the bill to the Justice Committee. The amount of evidence that the committee received and the number of responses to our consultation in 2018 show that reforming the family courts is an important issue for many people. However, let me be clear: our work on improving the family courts is far from complete. There is much left to do, and we will do it as quickly as we can in the current circumstances.

I also thank those who have contributed to the bill. Does the minister acknowledge that, had it not been for my constituent Emma McDonald bringing the petition to the Public Petitions Committee, it is unlikely that some of the reforms that we see today would have come through?

I thank all stakeholders who engaged with the process for their considered comments, many of which have made their way into the final version of the bill.

The Children (Scotland) Act 1995 is the key legislation on contact, residence and other parental responsibilities and rights. The Children (Scotland) Bill builds on that act.

One of my key aims for the bill was to ensure that the voice of the child is heard. Ultimately, the best interests of the child are the paramount consideration in any contact or residence case. The bill as introduced—and as amended at stage 2 and, today, at stage 3—furthers the rights of children to participate in proceedings.

The presumption that a child aged 12 or over is mature enough to give their views has been replaced with a presumption that, subject to extremely limited exceptions, all children are capable of giving their views. In addition, under the bill, the courts will be required to provide children with an explanation of their decisions. The courts will also be required to seek the views of children if an order has not been complied with. Those are radical changes that will make the process more child friendly.

It is important that, when children give their views, they know what to expect and what will happen to their information. I am pleased to have worked with Liam McArthur and other stakeholders on amendments to the bill in relation to protecting children’s private information. We have prepared draft guidance for children and young people on speaking to a child welfare reporter. We have sent the draft to key stakeholders for comment, and I look forward to finalising that important guidance over the coming months.

The bill also takes important steps forward for looked-after children and their brothers and sisters. The bill requires local authorities to promote contact between a child and their brothers and sisters, just as they must promote contact with parents if that is possible. In recognition of the consultation responses from children and young people and the organisations that support them, those duties extend beyond biological brothers and sisters to people who are unrelated to the child but with whom they have built a relationship that has the character of that of a sibling.

In my stage 3 amendments, I put forward new provisions for qualifying siblings and close relatives of a child to be at the centre of a children’s hearing, so that they have the opportunity to meaningfully participate in proceedings. The aim is to ensure that those who are closest to the child can be supported to give their views in those important proceedings when they wish to do so.

The bill also further protects victims of domestic abuse by ensuring that they are protected in child welfare hearings and by introducing a prohibition on personal conduct of a case if a party has committed a relevant criminal offence.

As I said, the bill is only the start of the process of reforming family courts. Implementation of the bill will take time, but I will endeavour to commence sections as soon as possible. Some sections will require significant consultation, such as the provisions on establishing a register of child welfare reporters and the regulation of contact centres. Other sections may be capable of commencement at a slightly quicker pace.

I appreciate that, for many people experiencing the family court process, it is important that the changes are made as quickly as possible. I promise to take forward work on implementation as quickly as we can, given the challenges of Covid-19 and Brexit, and I hope that stakeholders will continue to engage with my officials as they progress the implementation work.

In addition to the bill, the family justice modernisation strategy includes a number of areas for further work that do not require primary legislation, including guidance for parties going to court and alternatives to the court process. A number of the bill’s provisions and some areas of the family justice modernisation strategy work require court rules, and my officials will work to develop policy papers on them for the family law committee of the Scottish Civil Justice Council.

The bill is a significant change in improving family courts. However, it is only a starting point. Implementation of the bill and the family justice modernisation strategy will be the next step.

I move,

That the Parliament agrees that the Children (Scotland) Bill be passed.

18:42  

I remind members that I am a practising solicitor holding certificates with the Law Society of England and Wales and the Law Society of Scotland.

In opening for the Conservatives in the debate on the Children (Scotland) Bill, I confirm that we will vote in favour of passing the bill at decision time.

The bill’s stated aims are to ensure that the views of the child are heard in contact and residence cases; to protect victims of domestic abuse and their children; to ensure that the best interests of the child are at the centre of contact and residence cases; and to ensure compliance with the United Nations Convention on the Rights of the Child, which I think that we have achieved.

The process to get to this stage has been long, productive and collaborative. It has been good to work on a cross-party basis on so many of the issues. It is notable that, throughout the consultation, evidence taking and amendment stages, we have moved from a strong start to a finished product that I think that we can all be proud of. That has been possible only because of those who gave written and oral evidence throughout the process. With reference to today’s proceedings, that applies especially to the many organisations and individuals who provided us with informed and informative briefings on amendments and the bill overall. Those have been hugely helpful; as colleagues and those viewing our proceedings will have noted this afternoon, they certainly helped to clarify my thoughts on various amendments, and no doubt those of colleagues across the chamber.

At stage 1, I said:

“The power of evidence that was given by the witnesses certainly helped to remind me of the deep responsibility that we all share to get this right.”—[Official Report, 27 May 2020; c 49.]

I believe that we have got it right, and I hope that, throughout the passage of the bill, including today, the debate has enabled all the contributors to feel that they have been listened to. I think that we have all been listening: the fact that so many amendments have been proposed and agreed to suggests that that is the case. I know that several votes today were swung by the quality of the submissions that we have been given, and by the quality of the contributions that we have heard this afternoon.

In particular, I remember an unlikely alliance arising following the stage 1 debate, when Neil Findlay and I asked the minister to remove the word “practicable” from section 10, on the basis of some extraordinary testimony from CELCIS, Who Cares? Scotland and Oisín King, among others. To her credit, the minister met us after the debate and lodged an amendment. On a similar note, Rona Mackay’s amendment on the term “whole-blood”, which I had indicated during the evidence taking that I was also concerned with, was also agreed to.

However, having struck that note of consensus, I will gently and briefly make a point about amendments. By way of example, I cite John Finnie’s amendment 47, which we debated at the end of stage 3 and which I consider was a key amendment. Although I know that it is perfectly permissible to lodge novel amendments at stage 3, I do not think that it is prudent to do so. I do not like it, because there is a risk of ending up with bad or incomplete law. Clan Childlaw notes that although the amendment would be a step in the right direction, it did not seem to include a right of appeal. Had the amendment been lodged earlier, we might have dealt with that issue.

Does the member not see the danger in what he is saying? I want to steer discussions so that they are about the merits of individual amendments. There is a real danger in saying that an amendment should not be lodged at stage 3, particularly given our unicameral set-up.

I am grateful for the intervention. I am not saying that members should not lodge amendments at stage 3, although I will refer to the unicameral set-up to which he refers. There is a process, and because we have a unicameral set-up, the importance of stages 1 and 2 is elevated such that, when we have issues that are as important as the one in the stage 3 amendment that he lodged, they must be tested at stage 2, subjected to evidence taking and fully considered.

Can we take it from that response that that will become a point of principle for Mr Kerr and the Conservatives, and that if anyone lodges an amendment at stage 3, they will object to and oppose it, because it has not gone through that scrutiny process? I think that Mr Kerr must make himself very clear on that issue.

I ask that you answer that and then wind up, Mr Kerr.

I think that Mr Findlay is well aware that I will consider everything on its merits. I stick to the point that I made to Mr Finnie: how this Parliament is set up merits our looking at issues in full detail at stage 2.

In conclusion—[Interruption.] We are very late, Mr Findlay, and the Presiding Officer is not terribly chuffed. [Interruption.]

I can confirm that the Presiding Officer is not terribly chuffed. Please wind up, Mr Kerr.

I came to the bill from a standing start—I had not done anything in the family courts, except for gaining some second-hand personal experience, since the start of my legal career two decades ago. By working together on the bill, politicians from all parties have been able to contribute to a piece of legislation that I really believe will better protect the interests of children in the Scottish legal system and ensure that they are able to contribute to it, whenever they wish to do so.

Inevitably, different parties have different viewpoints and interests and will consider that the bill leans too far in certain directions or not far enough in others. For legislation of this kind, the best solution is always to be found through an approach that allows compromise. It is precisely thanks to that compromise that I believe that the bill will achieve its intended purpose. We will vote for it at decision time.

I draw members’ attention to it being unlikely that decision time will be at 7 o’clock, even if speeches are drastically cut.

18:47  

I will bear that in mind, Presiding Officer, and will try to curtail my remarks.

Scottish Labour will support the bill at decision time. The number of expressions of interest, the number of briefings that we have received and the number of representations from stakeholders throughout the three stages of the bill are a mark of its importance.

The bill was introduced primarily because it was recognised that the current legislation was not adequate in representing children. It brings in key reforms, including doing away with the presumption that a child must be older than 12 to have a view. The importance of the need for that change came across powerfully at committee.

It is important to ensure that, in the court setting, the voice of the child is placed as a priority. That element has been strengthened through amendments to the bill. Protection for vulnerable witnesses is another important addition.

One big area that we concentrated on throughout the debate and which featured today is child contact centres. It is clear from the evidence that we received and from representations from members that there are real issues with contact centres. I hope that when this legislation is implemented, it will—[Interruption.]

Excuse me, but it is terribly noisy in the back row.

Please continue, Mr Kelly.

The bill will strengthen the position of regulated contact centres. It will ensure the safety of children in contact centres and it properly sets out the responsibilities and accountability of those who are responsible for those children.

I believe that this is an important piece of legislation. There has been strong engagement from stakeholders and genuine working on the issues across parties, which I think sets a good example for legislation in future. It is strong legislation, and I hope that it will serve the interests of the child well.

18:50  

Like others, I thank everyone who has been involved in the process, including those who have given evidence and parliamentary staff for their assistance. It is very clear that a lot of consideration has gone into the bill, as we have heard from everyone. The amount of engagement is a credit to the minister. Clearly, one cannot engage early enough.

It is clear that we want to make good legislation and we want to address concerns that have been articulated by members across the chamber, who are familiar with them from personal experiences and through the constituency mailbag.

There was a series of amendments relating to the voice of the child. The voice of the child will be listened to differently now, because there will not be an arbitrary cut-off point at which someone says, “You are now in a position to express your views on your entire life”. The issue is also about the quality of people who are taking those views, of course. I look forward to the on-going engagement on child welfare reporters, because that will be absolutely pivotal in this process.

Often problems come about because people are misunderstood and not listened to. I make no apology for mentioning for maybe the third time the survivors’ group Yello! telling us—I will put my specs on, to make sure that I get this right—about a child who said:

“Think about what you are writing. You changed what I said.”

Someone’s future was going to be shaped by a misunderstanding—it was probably that, rather than a misrepresentation.

I appreciate, and the minister has alluded to the fact, that there is a family justice modernisation strategy and that there will be on-going review. Many of the issues that we have touched on in the debate, such as those relating to grandparents, foster parents and estranged siblings, are brought together if the interests of the child are at the forefront of all the deliberations.

For me, one of the important aspects of the legislation is the requirement for the court to explain its decisions to the child in a way that a child can understand. As I said when I was speaking on amendment 47, the approach is often to keep the children out of it—that is a phrase that we have all heard—even though the children are front and centre of the most important decisions that affect them.

As my colleague James Kelly said, the work on this bill could well be a model of how to do things: with a lot of engagement and a lot of consensus. I look forward to the continued development of legislation that brings children’s rights to the forefront, and to the Scottish Government moving for full incorporation of the UN Convention on the Rights of the Child.

In the meantime, I thank the minister for her engagement on the bill. It is a good bit of legislation. As I think that Liam Kerr said, it started off okay, but it is better for the energy that has gone into it.

18:53  

Having participated remotely in stages 1 and 2 of the bill, it is nice for me to be in the chamber to take part in stage 3 proceedings. I join colleagues in thanking all those who helped us in our scrutiny by giving evidence, as well as committee clerks, the Scottish Parliament information centre and those who helped make remote involvement possible.

Scottish Liberal Democrats will support the bill. We recognise that in cases where a relationship breakdown turns out to be difficult or traumatic, it is invariably the child or children involved who pay the heaviest price. We recognise, too, the importance of ensuring that any decisions that are taken in those circumstances are based on what is in the best interest of the child.

For that to happen, the child’s views must be clearly heard and taken into account, and the bill will help to ensure that that happens more consistently and meaningfully. At the same time, we know that children often confide in third-party organisations and provide highly personal information that they are reluctant to see shared more widely. At present, that information can be shared without consent or indeed even consultation. I am therefore pleased that Parliament has supported the safeguards that I proposed, working with the minister, that will mean that that should happen only after the child’s views are taken into consideration and where it is proportionate.

It is also encouraging that, at stage 2, the committee backed amendments that I lodged guaranteeing the child access to advocacy support. That is fundamental if we are to have any hope of achieving the bill’s principal aims. As Dr Morrison and her colleagues told the committee,

“The strongest and most consistent request from children and young people in Scotland, who have been involved in contested contact proceedings, is to have a child support worker.”

Questions remain over the resources that have been allocated to underpin the legislation, particularly in the context of what witnesses referred to as the infrastructure for taking children’s views. That is why it is important that Parliament has put in place a review process that will, among other things, allow an assessment to be made as to whether children’s rights are realised in practice.

Another area where I must credit the minister and her officials for their constructive engagement is in relation to the issue of foster carers. The revised guidance provides reassurance that a range of relationships that are important to a child have more chance of being supported. In that context, I welcome the moves that have been made in relation to maintaining sibling contact, where appropriate, and strengthening the grandparents charter.

On expanding support for alternative dispute resolution, the regulation of child contact centres and other provisions, the bill moves us in the right direction. It has been a collaborative process, although of course there have been areas of disagreement. My amendment that would have limited the preparation of welfare reports to registered social workers excited some controversy, which is never necessarily a bad thing. That may have been a move too far for most, but it was good to have a chance to debate the issue. I acknowledge the bill’s aim of drawing on a wider pool of skills and expertise.

On the question of a presumption of shared parenting, I recognise the opposition to such a move, although I think that Parliament will have to return to that issue in due course.

For now, I thank those who have been involved in the scrutiny, and I confirm that the Liberal Democrats will vote for the bill at decision time .

We move to the open debate.

18:57  

The bill is about giving children a voice, and I am happy to have been involved in working on what I believe is an excellent and much-needed bill. As the deputy convener of the Justice Committee, I thank the clerks, the bill team, the excellent witnesses and the third sector organisations that helped us to get the bill into the good shape that it is finally in. I thank the minister, Ash Denham, for all her work on the bill and for working with members from across the chamber. I know that, from the outset, she put her heart and soul into getting it right. I also thank the former convener of the Justice Committee, Margaret Mitchell, for all the work that she put into this hugely important bill.

I can say confidently that all the amendments that were lodged at stages 2 and 3 from members from across the chamber, whether or not they were ultimately agreed to, were submitted with good intention and with the best interests of children at their core.

A widely supported aspect is the removal of the presumption in the Children (Scotland) Act 1995 that only a child aged 12 or over is capable of forming a view. The removal of that presumption through the bill will give children a voice in a justice system that is designed for and by adults. For years, adults have underestimated the ability of children to express their views, the validity of their voices and the need for them to be listened to. I am delighted that that has finally come to an end through the bill.

I am also pleased about the regulation of contact centres. One of the most memorable parts of our journey in getting the bill to stage 3 was the evidence that the committee heard in private from young people from Yello!, which was an expert group advising the improving justice in child contact project. They had experience of being ordered to attend such centres, and their accounts were powerful and moving. One by one, we heard of the traumatic and unhappy experiences of court-ordered contact in which the young people had felt powerless to express what they really wanted. I was in awe of their bravery in telling their stories to a room full of adults. They have helped to shape the bill so that future generations will not have to endure their experience.

Sibling contact is vital and entirely in line with the recommendations in the care review, so I am delighted that amendments relating to that issue were agreed to. A huge part of the bill deals with statutory factors relating to risk and abuse. As ever, it is important to recognise the enormous contribution that third sector organisations such as Scottish Women’s Aid, Children 1st, the Children and Young People’s Commissioner Scotland and many others have made in shaping the bill. Those professionals are at the front edge of child protection and welfare, and their input is vital and invaluable. Theorising is fine, but there is no substitute for the daily experience of protecting and making life better for children and young people. If the bill helps to do that, we should all be proud to pass it at decision time today.

19:00  

I will make three points in summing up. In his opening speech, Liam Kerr pointed to the strong interaction that there has been on the bill. I place on record my thanks to stakeholders, all the witnesses who gave evidence to the Justice Committee, the Government minister and all the MSPs who played an important part in the process that has resulted in a good bill, which will be passed by the Parliament shortly. That will be welcomed by all.

My second point is that, as the minister said, the bill being passed is, in effect, only the start of the process. The real test will be ensuring that all the good speeches and amendments come good in practice. There is an important role to be played in ensuring that guidance is strong enough, and we will have to monitor that closely. Although some of the issues that came up in evidence and in the chamber have been addressed, we must consider how children interact with the courts and the experience of children in contact centres. We will also have to monitor the register of child welfare reporters and whether that reporting process improves by better responding to the needs of children who come forward. That is important.

My final point is about the debate about lodging amendments at stage 3, which relates to John Finnie’s amendment 47. Of course, it is best for the parliamentary process if members lodge amendments and make suggestions as early as possible. However, we are failing in our duty as parliamentarians if, when someone raises a substantial issue at stage 3, we do not engage with or vote for an amendment on the basis that it has been lodged late in the process.

The reality is that the Government has a substantial number of MSPs, so getting an Opposition party amendment agreed to requires the support of all Opposition parties. That is a strong safeguard to ensure that any amendment that is agreed to is not lax. I accept that members should lodge amendments earlier in the process in order to allow scrutiny, but if a gap is identified at stage 3, as was identified by John Finnie and other stakeholders, we should address it.

The bill is a good piece of legislation. However, as the minister said, this is only the start of the journey. Let us hope that the bill is a platform to better serve the interests of children in Scotland.

19:03  

I thank all those who took the time to give evidence on the bill. I pay tribute to the Justice Committee clerks and broadcasting staff for their hard work that enabled members to agree to the stage 1 report and dispose of the stage 2 amendments virtually. I also thank all the clerks with whom I have worked over the past four years for their support and assistance, and I wish Adam Tomkins well in his new role.

The bill focuses on, among other issues, one of the most contentious aspects of family law—namely, agreeing contact arrangements for children when their parents decide to live apart and separation is not amicable. Those children and young people are often the innocent bystanders, who suffer collateral damage and are frequently hopelessly conflicted. I feared, therefore, that the discussion with key stakeholders and the wider public debate during the scrutiny process might end up being acrimonious, but the opposite has proved to be the case. Why? Quite simply, it is because the bill concentrates on the interests of children and young people and, crucially, ensures that their voices are heard.

Furthermore, during the scrutiny process the bill has been improved through the removal of age limits in relation to a child being deemed mature enough to give a view. Provisions on the voice of the child have been strengthened by making it clear that children and young people must be able to express their views in the manner that they prefer.

Section 16, on investigations into breaches of court orders, now explicitly requires “the child’s views” to be sought. The bill also includes vital confidentiality provisions, to avoid young people’s trust being undermined and ensure that the best interests of the child must now be the “primary consideration” in considering the disclosure of information—including, for example, young people’s diaries.

However, it must be stressed that legislation alone will not ensure that the voice of the child or young person is heard or that contact centres will be able to continue to play their vital role, without adequate allocation of resources.

I turn now to the amendments on alternative dispute resolution. As a result of those amendments, the bill now provides for a viable mechanism to fund a pilot scheme to raise awareness of mediation as a possible alternative to court action. Mediation and early resolution help to prevent views from becoming entrenched, and reduce trauma. More than that, in the midst of a dispute about contact, young people frequently—and irrationally—blame themselves, believing that they have somehow contributed to the break-up of the family. Through mediation, those feelings and other misunderstandings can be addressed.

The amendments that have been passed ensure that the text of the bill confirms that the child’s voice will be heard and bespoke, family-focused solutions to parenting disputes will be put in place. However, merely signposting people to where they can find out more about mediation will not be sufficient to encourage parents even to explore the option. It was for that reason that the committee unanimously agreed that mandatory mediation information meetings should be piloted, with an exception in the case of domestic abuse.

The Children (Scotland) Bill represents a significant step in ensuring that children and young people’s wellbeing is at the centre of proceedings that concern their future when parents separate, and the Scottish Conservatives will take much pleasure in voting in favour of it this evening.

19:07  

I thank those members who contributed to the debate on the bill, and I put on record my thanks to the bill team for their hard work and unstinting support of me as we developed the legislation. The debate has shown that improving the family courts remains an important issue for a number of members, and I hope that the bill will be the start of the process of making those improvements. I will address a few of the comments from members.

Liam Kerr and a number of other members highlighted the quality of evidence that was given by those with lived experience, and how that evidence has shaped what has ended up in the bill. That included the evidence on contact centres and domestic abuse, and on Liam McArthur’s amendments on confidentiality of information. That is how it should be, and I thank Liam Kerr for his comments on the collaborative nature of the process.

John Finnie said that the voice of the child is going to be listened to differently now, and he noted the “pivotal” nature of the regulation of child welfare reporters. That point was brought to life in evidence to the committee—which John Finnie cited—from a child who said that what had appeared in a child welfare report was not what they had said. I agree on the pivotal nature of that step forward. Rona Mackay also mentioned the voice of the child in her contribution, and commented that the bill gives children a voice in a justice system that is designed for adults.

James Kelly spoke about child contact centres and emphasised how welcome the regulation of those centres would be in order to ensure the safety of children who attend them. He said that the bill is an important piece of legislation, and I agree with him whole-heartedly on that.

Rona Mackay highlighted the evidence to the committee from young people on their experiences of child contact, and how that evidence has shaped what has ultimately ended up in the legislation. I worked hard to incorporate suggestions from the committee and external stakeholders on how to improve the bill. I have worked with members across the chamber, wherever I could, on areas of concern to them.

The policy that underpins a bill is a bit like a snapshot—a moment in time. We know what we want it to look like, and we line it up as best we can. I know that this is not the end of the road for family law, but it is a step forward, and a significant one at that.

The bill puts children’s views at the centre, and children can give their views in a manner that they prefer. Then, important decisions about what is happening to them will be communicated to them in child-friendly language.

The bill also includes measures to deliver proper participation to brothers and sisters in children’s hearings cases. Victims of domestic abuse will be further protected, as those who are convicted of domestic abuse will now be prohibited from representing themselves in court. Child welfare reporters will have to meet standards of training and experience. For the first time, contact centres will be regulated, and they will have to meet minimum standards of accommodation and staff training.

With the child at the centre, the Children (Scotland) Bill allows a child’s voice to be heard at a key moment—at a time when their life might have just been turned upside down and they are worried about what is going to happen to them in the future. It is very important that we listen to what they have to say.

When I met children who had gone through the family court system, one girl said to me, memorably:

“No one is listening to me.”

This evening, I can say to her and to all the children in Scotland who are going through the family courts at the moment or who will go through them in the future: I listened, the Scottish Government listened, and the Parliament has listened.

That concludes our debate on the Children (Scotland) Bill. We will shortly come to a vote on the bill. I ask all members to open their voting app if they have not already done so, ensuring that they have refreshed the page. We will not vote just yet but, if members could do that now, we will hopefully be ready when we come to the vote. When you open the app, you should see no vote currently open.