Meeting date: Wednesday, May 27, 2020
Meeting of the Parliament (Hybrid) 27 May 2020
Agenda: First Minister’s Question Time, Manufacturing (Support for NHS Scotland), Children (Scotland) Bill: Stage 1, Children (Scotland) Bill: Financial Resolution, Business Motions, Parliamentary Bureau Motion, Decision Time
- First Minister’s Question Time
- Manufacturing (Support for NHS Scotland)
- Children (Scotland) Bill: Stage 1
- Children (Scotland) Bill: Financial Resolution
- Business Motions
- Parliamentary Bureau Motion
- Decision Time
Children (Scotland) Bill: Stage 1
The next item of business is a stage 1 debate on motion S5M-21834, in the name of Ash Denham, on the Children (Scotland) Bill.15:05
Presiding Officer, thank you for giving me the opportunity to address the Parliament on the general principles of the Children (Scotland) Bill. I am delighted to open the debate.
I am grateful to the Justice Committee for its careful scrutiny of the bill, and I welcome its recommendation that the Parliament agree to the bill’s general principles. I am also grateful to the organisations and individuals who gave evidence to the committee.
Before I talk about the bill, I want to mention the impact of the Covid-19 crisis on family relationships. Many members will have received correspondence from worried grandparents, parents and other family members at this time and will appreciate that it can be extremely difficult for parents to work out what is in the best interests of their children. I am grateful to the Lord President for issuing guidance on compliance. In addition, we have published information on the Parent Club website, which is aimed at helping parents to make informed decisions. The most important message is that anyone who is concerned about risk of harm to their child at any time should contact their local authority social work department or the police on 101—or the police on 999 if they think that the child is in immediate danger.
Let me move on to the Children (Scotland) Bill. Like many members, I am sure, I receive a lot of correspondence about family court proceedings, and I appreciate that, for everyone who is involved in such proceedings, it can be a difficult and stressful time. That is especially true for the child who is at the heart of the case.
Civil law does not often take centre stage; it is often overshadowed. However, it can and does have profound implications for people who are involved with it, especially in the family courts.
The bill follows a consultation on the Scottish Government’s 2018 review of the Children (Scotland) Act 1995, which is the key legislation on contact, residence and parental responsibilities and rights. The consultation specifically sought the views of children and young people, from whom we received 300 responses to the questionnaire. The views of those children and young people guided the development of the bill.
Does the minister recognise that, in that consultation, children overwhelmingly supported the right of children to have meaningful relationships with grandparents and other ancestors? Does she acknowledge that the French have passed a law that guarantees children the right to sustain a relationship with an ancestor if it is appropriate for them to do so? Does she recognise the groundswell of opinion in Scotland among people, not least my constituents Gordon and Shonia-Maree Mason, who are estranged from their grandson for reasons beyond their control and have not seen him since he was an infant, who would very much like a similar right to be afforded to children in Scotland?
I am grateful to the member for raising that issue. He will recall that I met him and his constituents so that I could hear from them at first hand about the matter. He highlights the important role that grandparents play in children’s lives. For that reason, in our “Family Justice Modernisation Strategy” I committed to further promotion of the charter for grandchildren.
I have considered the issue very carefully, but I am of the view that an automatic right of contact is not appropriate for a number of key reasons. An automatic right for children to have contact with grandparents would have substantially the same implications as an automatic right for grandparents to have contact with their grandchildren. Such an automatic right would cut across the general provisions of the bill, in which the most important thing is the interests of the child. For that reason, I do not think that it is appropriate to include that provision in the bill. However, one of the factors in the checklist that is included in the bill is that the court must take into account the relationships that are important to the child, and it is envisaged that the relationship with grandparents will be one of those. I hope that the member is reassured by that.
The main aims of the bill are to ensure that the interests of children are at the very heart of family justice modernisation and to ensure that the views of the child are heard. In particular, the bill’s provisions represent a step forward in ensuring that the child’s best interests are at the centre of all contact and residence cases, in ensuring that the views of the child are heard, in further protecting victims of domestic abuse and their children in family court proceedings, in ensuring further compliance with the United Nations Convention on the Rights of the Child, and in ensuring that relationships between brothers and sisters are promoted for children in care.
The minister mentions brothers and sisters. The Justice Committee’s recommendations on the bill include the ask that the word “practicable” be removed from section 10, which is entitled “Promotion of contact between looked after children and siblings”. During oral evidence, CELCIS agreed that the word should be removed and that it was very important, in order to overcome systematic failure, to maintain and prioritise the relationships between brothers and sisters in care. So far, the Government has been resistant to that move. I urge the minister to take up the suggestion, so will she reconsider?
The relationship between siblings is very important, and we really want the duties to be implemented in practice. We will continue to work with local authorities in order to understand whether there are any barriers to doing that.
I take Neil Findlay’s point about the inclusion of the word “practicable”. It is included specifically to give local authorities flexibility when required, because—as, I am sure, he will accept—there are a number of instances when such contact would not be practical in order to carry out the relationship. It might be that the sibling has not been in care, and we cannot force someone to have a relationship with someone else if they do not want to have one. That is why the word has been included, and it is intended to be used only on a very limited number of occasions.
I have responded to the recommendations that were made by the Justice Committee in its stage 1 report. The bill is only one part of the work on reforming the family courts. Some work is better done through secondary legislation or guidance, and that is set out in our “Family Justice Modernisation Strategy”, which was published alongside the bill in September last year.
I would like to mention four areas, in particular. The first relates to ensuring that children are able to participate in decisions that affect them. I am aware of concerns among stakeholders that the views of younger children are not being heard in family court cases, and I welcome the recently published research by Dr Fiona Morrison and Professor Kay Tisdall on children’s participation in family actions. The bill removes the legal presumption that a child aged 12 or over is mature enough to give their views in various situations. I believe that the majority of children are able to express their views, but there will be circumstances in which some children—they might be extremely young or have severe learning difficulties—will not be able to form a view. The bill requires options in those exceptional circumstances but, again, we expect those exceptions to be used infrequently.
I appreciate the concerns among stakeholders and members of the Justice Committee that the bill should be strengthened to make it clear that the starting point should be that all children are capable of forming a view. Of course, if a child does not want to give their views, I do not expect them to be made to give them.
I apologise—I am not on the Justice Committee, so I have not followed the bill all the way through. Will the minister explain how, if all children are treated equally in a different way to the current legislation, she will address the issue of coercion, especially of younger children who may feel under pressure from one parent to have a particular view? What safeguards are there to ensure that all children can express their views freely and without undue pressure?
That is part of what the bill will do. It will attempt to give all children an opportunity to express their views in a way that is suitable to them. In doing so, we will regulate child welfare reporters. That is a key way that a child might be supported and be able to give their views. We will also set up a system of training for child welfare reporters. We will expect them to be trained in issues such as coercive control, spotting unhealthy family dynamics and so on, so that those professionals are able to support the children to give their views without any pressure of the type that Jamie Greene mentions.
I appreciate the concerns that stakeholders raised about strengthening the bill in that area, and I propose to lodge an amendment at stage 2 to strengthen the provisions in sections 1 to 3 to avoid, as far as possible, the risk of the capacity exemption being used excessively by decision makers. I also propose to lodge an amendment at stage 2 to clarify that, when the court investigates the reasons for non-compliance with a court order, it should seek the views of the child concerned. The bill states that the decision maker must
“give the child an opportunity to express the child’s views in a manner suitable to the child”.
One of the aspects of the guidance for parties and courts that I have committed to in our “Family Justice Modernisation Strategy” is publication of information on the ways in which a child can give their views to the court. I have also committed to producing a public paper in advance of stage 3 that will outline the ways in which children can be supported to give their views to decision makers. It is important that, when a child has given their views to the court, the reasons for the court’s decision are explained to the child in a clear and impartial way. For that reason, the bill ensures that the outcomes and the reasons for them are explained to the child. We would not expect all decisions to be explained, as many would be procedural in nature, but we would expect the important decisions to be explained.
I understand that a number of stakeholders have suggested that the bill should include provisions around child support workers. That issue was also raised by the Justice Committee in its stage 1 report. Child support workers could play a useful role in supporting children to give their views when they are, say, completing a form or when they are speaking to a child welfare reporter or a sheriff. However, we need to ensure that minimum standards of training and experience are set out in legislation to ensure consistency of approach and that the best interests of the child are maintained. Further work is needed on that issue, to ensure a joined-up approach so that any provisions work with existing support and advocacy systems and with other proposed Scottish Government work.
When the bill was introduced, I published the “Family Justice Modernisation Strategy”, which sets out work for secondary legislation on guidance and work that requires further consideration. One action in the strategy is to further consider the role of all support workers. The paper outlines the ways in which children can be supported to give their views to decision makers, which I referred to earlier in my remarks, and will look further at child support workers.
I will briefly focus on the regulation of child welfare reporters. I am aware that that issue was also raised in the stage 1 evidence and in the Justice Committee’s report. I recognise that child welfare reporters can play an important role in ensuring that the best interests of the child are reported to the court. The bill will establish a register of child welfare reporters, and it will give them two new functions: explaining decisions and investigating reasons for non-compliance with an order. The full details of training requirements will be laid out in secondary legislation, and we will consult fully on those in due course. I am aware that children and young people who have spoken to a child welfare reporter will have views on their training and experience, so I will ensure that children and young people are fully involved in the consultation process.
At the moment, about 90 per cent of child welfare reporters are lawyers. One of the aims of the bill is to encourage more non-lawyers, such as child psychologists and social workers, to become child welfare reporters. In my response to the stage 1 report, I committed to setting out before the first stage 2 session how we propose to encourage other professionals to become child welfare reporters.
It is important to note that the list of child welfare reporters will be maintained at a national level. A centralised list will ensure a consistent approach across Scotland to the making of appointments, the handling of complaints and so on. It will also ensure that there is consistency across the country in how child welfare reporters on the list are appointed to undertake those reports. I would envisage that, where possible, a local child welfare reporter would be appointed.
On the promotion of contact between looked-after children and their siblings, in March, Ms Todd—the Minister for Children and Young People—announced that she wished to put looked-after children’s contact with their brothers and sisters on the same legal footing as their contact with their parents, where that was practical and appropriate, and we aim to do that under section 10 of the bill.
If the bill is passed, I commit to proceeding with its implementation as quickly as possible. However, there are certain aspects of the bill that will take time. It is important that, on areas such as the child welfare reporters, curators ad litem, accommodation standards and training requirements for contact centres and their staff, there is full and proper consultation. If I can progress other areas more quickly, I will do so. Of course, implementation tasks for the bill will need to be reviewed in the light of the Covid-19 situation.
I believe that the bill is an important step forward in improving the family courts. During the consultation on and development of the bill, in listening to the voices of young people, one theme came through very strongly: “No one is listening to me and no one is listening to what I want.” The bill aims to change that, and I commend the general principles of the bill to Parliament.
That the Parliament agrees to the general principles of the Children (Scotland) Bill.
Margaret Mitchell will now speak on behalf of the Justice Committee.15:22
As the convener of the Justice Committee, I am pleased to have the opportunity to speak in the stage 1 debate on the Children (Scotland) Bill and to thank all the organisations and individuals who gave evidence.
Although the evidence taking pre-dated the pandemic, many of the issues in the bill, including the functioning of our family courts, access to child contact centres and arrangements between separated parents, have been severely impacted by the virus.
I thank Justice Committee members for not just their work in scrutinising the bill but the very constructive way in which they helped to finalise our stage 1 report during lockdown. The entire committee wants to put on record its gratitude and thanks to the Justice Committee clerking team, who had to complete the report and have it agreed remotely by correspondence in very difficult circumstances.
The bill amends the Children (Scotland) Act 1995 and seeks to do four things: to ensure that the views of the child are heard in contact and residence cases; to further 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 children’s hearings; and to further compliance with the United Nations Convention on the Rights of the Child in family court cases. Overall, the committee considers that the bill is a positive step forward in achieving those policy aims.
The committee considers that it is an important principle that the views of the child or young person should, wherever possible, be heard in court and taken into account in the decisions that affect them, and that a 12-year-old child is no more able to express a view than a child one day short of his or her 12th birthday. However, consistent evidence confirms that the current presumption with regard to age has meant that, in practice, the views of younger children are not routinely heard. The committee therefore welcomes the Scottish Government’s response that it will lodge amendments at stage 2 to strengthen the provisions in sections 1 to 3, to try to avoid
“the risk of the capacity exemption being used excessively by decision makers.”
The bill and legislative change alone will not be enough to ensure that the voice of the child or young person is heard. The allocation of sufficient resources and proper processes to ask children how they wish to express their views will also be required. Will the minister therefore address the powerful evidence that was presented that the infrastructure for taking children’s views needs to be strengthened and that the necessary resources need to be put in place?
Scotland’s network of family mediation and contact centres are operated primarily by Relationships Scotland, which plays a pivotal role during family break-ups by providing mediation between separated couples and enabling parents who are separated to see their child or children. The committee considers that child contact centres must operate to high standards with a fully trained workforce. We therefore welcome and support the provisions in the bill on regulating those centres.
However, it is clear from the evidence that the committee heard that there are significant concerns about the impact of regulation on contact centres’ ability to continue to operate. In stark terms, without the provision of sufficient resources to help contact centres to upgrade and adapt, some may close. The committee therefore welcomes the Scottish Government’s commitment to tell the committee, before stage 2, how much additional resource will be made available to Relationships Scotland to take it through to the end of the financial year and to move it forward to a sustainable funding model in the long term.
Furthermore, it would be helpful if the minister would explain in summing up the debate why she and her officials cannot give the committee a response to the findings of the Care Inspectorate on how contact centres should be regulated.
Additionally, the committee recommended that the bill should be amended to ensure that all referrals are made to a regulated contact centre. Given that that has been rejected in favour of issuing guidance only, will the minister explain why that approach is favoured? Does that mean that some contacts may be referred elsewhere, and potentially to unregulated bodies?
The committee makes a number of other recommendations that are aimed at improving the law and practice relating to disputes over children. Those include the factors that a court should take into account when considering a child’s welfare. It is fair to say that the section of the bill that deals with that issue attracted little judicial support. Prior to the 1995 act, those matters were left to the judiciary. In 2006, two factors that the judiciary should take into account were introduced, and now the bill proposes the addition of two more factors. The committee considers it necessary to go one step further and expand the list of factors in section 12 to include those that have been suggested by the UN Committee on the Rights of the Child. That recommendation has not been agreed to, and it would be helpful if the minister would explain why. Quite simply, given that the Scottish Government intends to introduce another bill to incorporate the UN Convention on the Rights of the Child into Scots law, it seems sensible to incorporate relevant rights into this bill now.
The bill also regulates child welfare reporters who, through their reports, have an important role in informing the courts. The committee made a series of recommendations in that regard, and although the minister has agreed to some of them, I ask her to provide some detail regarding how she intends to ensure that child welfare reporters are appropriately trained and fairly reimbursed and how she will diversify the pool from which reporters are currently drawn.
Witnesses told the committee that courts are rarely the best place for resolving family disputes and that mediation and early resolution help to prevent people from becoming entrenched in their positions; they also help to reduce trauma. Merely signposting people to mediation will not be enough to convince a set of parents to find out more about the option. As it has done previously, the committee has unanimously recommended that mandatory mediation and information meetings should be piloted, with an exception for domestic abuse cases. Will the minister address why the recommendation was rejected? Will she acknowledge that lack of legal aid is one of the barriers to greater use of alternative dispute resolution and explain why no progress has been made since the committee published its alternative dispute resolution report in 2018?
I turn to the important issue of access by grandparents to their grandchildren. It is a sad fact that many grandparents lose contact with grandchildren when parents separate. The committee heard calls from some groups for access rights for grandparents. At present, no such presumption appears in the bill. Despite the publication in 2006 of the charter for grandchildren, members heard that it has not been effective in improving contact between grandchildren and grandparents. The committee therefore welcomes the minister’s commitment that she will do more to help promote the charter and see it used more in practice.
Committee members will speak to other issues, such as those to do with some of the bill’s terminology, shared parenting, court delays, sibling contact and the maintenance of appropriate and proportionate confidentiality for children and young people. Those issues will re-emerge at stage 2.
The committee has much pleasure in supporting the general principles of the Children (Scotland) Bill.15:32
I remind members that I am a practising solicitor holding certificates with the law societies of England and Wales, and Scotland. In opening for the Conservatives in this debate on the Children (Scotland) Bill, I confirm that we will vote in favour of the general principles of the bill.
The policy aims are to ensure that the views of the child are heard in contact and residence cases; protect victims of domestic abuse and their children; ensure that the best interests of the child are at the centre of contact and residence cases; and—note the terminology, as I will return to this later—ensure compliance with the UNCRC. We agree with the convener that the bill is a positive step forward in achieving those policy aims.
On behalf of the Scottish Conservatives, I express our thanks to those who made the bill happen: first, the committee clerks, who ensured comprehensive briefing throughout and produced a report that literally and metaphorically should carry a lot of weight; and, secondly, those who gave evidence, written and orally, and who have continued to provide information since we produced our stage 1 report.
John Finnie spoke for all of us, I think, when he said, in response to extraordinary testimony that the committee heard from Oisín King of Who Cares? Scotland:
“It means much more than the reams of paper that we have in front of us to hear directly from someone like you. That was extremely helpful.”—[Official Report, Justice Committee, 21 January 2020; c 15.]
He was right. 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. I hope that all the committee is proud of the report that has emerged and that all the contributors feel that they have been listened to.
The report’s conclusions and the committee’s thoughts are clear. The convener went through the key conclusions, but I will focus on areas that in my view merit further thought and consideration at stage 2. The first of those areas is confidentiality. Children 1st summarised the point well when it referred in its submission to matters being shared that involve
“family support, domestic abuse and trauma recovery and include very personal information the child has shared in the context of safe and trusting environment with a support worker.”
In evidence, Children 1st and the likes of Scottish Women’s Aid argued that the bill should include a specific provision along the lines of the one that was consulted on in 2018, whereby the court, in deciding whether confidential information should be disclosed to a party that asks for it, should disclose the information only when that is in the best interests of the child, and after the child’s views have been considered. They were supported by the young people from Yello!, who said that it would be right that, when a child provides views—for example, to a child welfare reporter—it should be a requirement that the child’s permission is obtained before those views are shared. I can see that argument.
However, I also heard the evidence that was given by the likes of Professor Elaine Sutherland and the Faculty of Advocates, who argued that such a provision could infringe parents’ rights under article 6 of the European convention on human rights and that legislating in that way would be difficult, given the balancing act that is required. I believe that guidance in that regard will be issued, or has been issued, pursuant to the family justice modernisation strategy. I am sympathetic towards the argument about confidentiality, although I am well aware of the challenges, and I hope that we can all explore the issue further at stage 2.
With regard to the balancing act that is required, during the committee’s evidence sessions I explored section 16, which deals with the situation in which a person has breached a court order. It provides that there will be a duty to establish the reasons for the failure to obey such an order. I listened carefully to what was said by the various children’s organisations that welcomed the provision, although, importantly, Children 1st and the NSPCC in Scotland noted that they hoped that any court orders would be satisfactory in the first place.
The Faculty of Advocates said that courts already consider the reasons for non-compliance. Ruth Innes QC said:
“if a court is going to find somebody in contempt of court, it will have had to investigate the reasons for that ... sheriffs and judges already carry out such investigations ... We do not see how the provision would add to what courts currently do.”—[Official Report, Justice Committee, 28 January 2020; c 30-1.]
Lady Wise stated:
“Currently, in those proceedings, there is always an opportunity for the party who is said to be in breach of the order to respond.”—[Official Report, Justice Committee, 20 February 2020; c 7.]
The Sheriffs Association suggested that section 16 could encourage parties to reopen issues that had already been determined by the court and thus prevent a robust approach to enforcement, while the senators of the College of Justice suggested that it could encourage people to disobey a court order. Tellingly, Jennifer Gallagher of the Family Law Association said:
“section 16 does not add anything.”—[Official Report, Justice Committee, 28 January 2020; c 34.]
I have got to a point at which it feels as though section 16 might more properly be amended out, as it feels unnecessary and potentially detrimental. As the debate develops, I hope to hear reasons why I might revise that view—perhaps I will hear such reasons now.
Does the member agree that section 16 could provide a safeguard for parents who are protecting their children from domestic abuse? That can be a very good reason for failure to attend.
I do. That is an important point, and I am grateful to Rona Mackay for making it. However, on balance, the evidence that we heard leads me to believe that section 16 might not be the most effective way to deal with the issue. I am very keen to hear from members on what would be the most effective way to deal with it. Rona Mackay’s point was a good point well made.
I cannot contribute to the debate without referring to section 10, which relates to looked-after children. Section 10 provides that a local authority must
“take such steps to promote, on a regular basis, personal relations and direct contact”
“as appear ... to be ... both practicable and appropriate.”
The context for that was the extraordinary testimony that I referred to earlier, in which Oisín King told the committee that he had looked after his sister for a total period of five years, starting when he was seven and she was six months old. He said:
“When I was taken into the care system, I was separated from my sister ... We did not see each other again until 18 months later. I took the separation as a loss; it was something like a death.”—[Official Report, Justice Committee, 21 January 2020; c 14.]
That testimony was extraordinarily powerful.
Earlier, Neil Findlay highlighted what CELCIS said. He will know that the committee heard from Duncan Dunlop of Who Cares? Scotland, who told us that the word “practicable” as a caveat to section 10 “should not be there.” Dr Hill of CELCIS stated:
“The caveat could be interpreted in such a way that it was used to inhibit children’s rights to see their brothers and sisters.”—[Official Report, Justice Committee, 21 January 2020; c 26.]
In written evidence, Stand Up For Siblings explained that there was a risk of
“conflating the two issues of whether contact is ‘appropriate’ and ‘practicable’”.
It went on to say:
“Without the removal of ‘practicable’ there is a high risk that decisions will continue to be led by resourcing issues and the proposed legal changes will be ... ineffective.”
I encourage the minister to listen to that point. I do not want to speak for other parties but, given what Liam Kerr seems to be saying, it would appear that a number of members want that word to be removed. Will the minister meet Liam Kerr, me and others who are interested to discuss how we might take it out?
The minister is not on her feet and speaking just now. If Mr Kerr would like to stand up and take an intervention from the minister, that will be acceptable. I can give you the extra time, Mr Kerr.
I am grateful, Presiding Officer. I will take an intervention from the minister.
I reassure Neil Findlay that I am, of course, listening to everything that is being said in the debate and making careful notes on it. He will note that the Minister for Children and Young People is sitting directly behind me, and we are listening—
Minister, you are intervening on Mr Kerr. We can always rely on Mr Findlay to get us all confused. [Laughter.]
My apologies. I will of course be happy to meet both members in order to discuss the issue further.
I am grateful for that. I am grateful to both members for their interventions, because the point is well made. However, I want to develop it slightly, because Stand Up For Siblings, Clan Childlaw and CELCIS went on to say that the financial memorandum does not set out the cost implications for local authorities of implementing the duty.
The minister will remember that, in committee, I questioned her on whether, without additional resources, it would in any event be possible to give effect to the duty in practice. Her view was that the practice should already be happening so the provision is cost neutral. Leaving aside the fact that I hope that the data to back that up will be forthcoming, I note that I pressed her on her use of the word “should”. I worry that, if that is not happening, there will logically be costs for compliance, which should be budgeted for in the financial memorandum, and that, if the resources are not there, it will offer a reason for non-compliance. The minister’s reply was brief. She said simply—
Will the member take an intervention?
Do I have time, Presiding Officer?
Thank you. I will take the intervention.
The independent care review report, which is entitled “Follow the Money”, provides reassurance that there is that money in the system. In this year’s local government settlement from the Scottish Government, there is provision for £400 million, and that is just for the area of child social work.
I am grateful to the minister, but that does not change the fact that there is nothing on the subject in the financial memorandum. I believe that my point is well made. Either it is already happening—or should be happening, as the minister suggested in committee—in which case let us have the data that shows that it is happening and that the provision in the bill therefore has no cost implication, or it is not happening, in which case there is a potential cost implication that will provide a reason for local authorities not to do it, because the money is not there.
As you have heard, Presiding Officer, I remain unpersuaded. Perhaps the provision of resources can be re-examined. The word “practicable” should probably be removed or, as a bare minimum, guidance provided that makes very clear what the word means. I look forward to meeting the minister and Neil Findlay to work on that further.
My final point is one that Fulton MacGregor explored a couple of times. It goes back to the terminology. Courts have powers to make residence orders and contact orders in order to set out things such as where children are to live, which parents they are to live with and which other family members they may have contact with. By way of further example, section 10 uses the words
“whether of the half-blood or of the whole-blood”.
It has been suggested that those terms are somewhat loaded. In addition, chartered psychologist Dr Sue Whitcombe told Mr MacGregor:
“the term ‘contact’, in particular, is quite abhorrent”.—[Official Report, Justice Committee, 14 January 2020; c 18.]
Megan Farr, representing the children’s commissioner, said:
“we do not think that the phrase ‘whether of the half-blood or of the whole-blood’ is particularly helpful.”—[Official Report, Justice Committee, 7 January 2020; c 30.]
The Scottish Government consulted on but did not include in the bill a proposal to update the terminology that is associated with the court orders. Several other countries have made changes to their terminology, including England and Wales, which talk of “child arrangements orders”.
I do not take a strong view yet, but members know that I get very exercised about semantics and the power and precision of terminology. If Fulton MacGregor chooses to explore the point, he may find that support is forthcoming.
Will the member take an intervention?
We do not have any more extra time. Perhaps you can contribute later, Mr MacGregor.
I came to the bill from a standing start. I had not done anything in the family courts, except for some second-hand personal experience, since the very start of my legal career some two decades ago. Having read the evidence and heard the witnesses, I will come to stage 2 steeled in my resolve to ensure that what results is the strongest possible bill. In its principles, the bill is the right start, and I look forward to working with colleagues across the Parliament to improve it as best we can.15:44
I thank the Justice Committee clerks for putting together the report under very difficult circumstances, particularly towards the end of the process, when the Covid-19 pandemic started to have an impact. I also thank the many witnesses who came to the committee and those who submitted written evidence. As has already been said, there are a lot of issues at stake, and people have strong and passionate views. The Justice Committee report has gone to great lengths to capture the different views and parameters that require to be explored.
People feel strongly about the issues because a young person’s formative years are very important. To end up in a family court, where perhaps access is being contested, can make a young person feel very vulnerable. It is important to ensure that they have correct protections and are properly looked after. I say at the outset that that is what the bill seeks to achieve, but in some areas it needs further discussion and improvement, so that we do what is right by children and look after them in legislation.
The bill has come about primarily because the Children (Scotland) Act 1995 needs some improvement. The 1995 act does not focus primarily on the rights of the child. As many witnesses pointed out, it needs to give more protection to children from homes where there has been domestic abuse, and it needs improvement in relation to the resolution of parental disputes. We also need to give regard to the requirement for family court cases to comply with the United Nations Convention on the Rights of the Child.
One of the main provisions of the bill abolishes the presumption that a child is able to give their view only if they are 12 or older. That objective is correct, as it is unfair to isolate and take out those who are under 12. It is logical that many young people under that age would have a view, and it is important that those views are expressed and come to the fore. However, although the bill removes the 12-plus presumption, it seeks to introduce a capacity exception, which could be interpreted as weakening the child’s right to give their view. That is one area that requires improvement.
I think that everyone would agree that children’s welfare is absolutely critical. Central to that are the relationships that children have. We have already had quite a bit of discussion around looked-after children—children in care. It is clear from the interventions by Neil Findlay and Liam Kerr that there are two issues regarding what is in the legislation. One is that the word “practicable” is open to different interpretations, which could cause difficulties in a legal setting. The second relates to the resources that are required, particularly for local authorities, to give proper support to looked-after children. As we move into stage 2, we need to produce not only correct legislation but a financial memorandum that has adequate financial resources for local authorities.
The convener mentioned contact centres in her speech. There is also an issue around funding for them. Everyone recognises the importance of contact centres in bringing together children with those with whom they have key relationships. The withdrawal of £750,000 of funding from Relationships Scotland is a real concern. I acknowledge that the Government has announced interim funding for the next quarter, but organisations such as Relationships Scotland need more funding stability, particularly in operating under the Covid-19 pandemic. I hope that the minister can outline what funding package will be in place over the next financial year and ensure that it is adequate.
Another key issue that needs to be addressed is the breaching of court orders, and particularly contact orders. It is clearly absolutely unacceptable that individuals breach decisions that courts have made. The bill seeks to address that through the introduction of section 16 to provide more clarity. As Liam Kerr has already noted, there were divided opinions on that in the evidence. Many of the children’s organisations were sympathetic, and the legal view was that the courts already took avenues to address those issues. I am sympathetic to section 16 remaining, but the Government needs to do some work to make the case for it and perhaps improve it so that it has a proper place and there is not just legislation for legislation’s sake.
Will the member take an intervention?
You should be very quick, because we have used a lot of time.
A constituent of mine breached a court order that related to arrangements for access to a child because of the lack of health and safety provision in the contact centre. Does James Kelly agree that that is why a number of people want contact centres to be regulated?
That is a very good point. The committee took substantial evidence on contact centres, the importance of the right infrastructure around them, ensuring that there is proper health and safety provision, and the training of people who work in contact centres. The debate is not just about the legislation; it is also about the infrastructure.
If we are to get things right, we need to ensure that the legislation is amended to give proper protections to the child and to give clarity in the legal setting. If we are serious about achieving the ambitions that the bill sets out to achieve, we also need to ensure that appropriate funding and infrastructure are in place.
I call John Finnie, who is joining us remotely.15:52
I join other members in thanking all those who have contributed to getting us this far. I thank those who responded to the consultation; our witnesses; our clerking staff in particular for the outstanding work that they did; the organisations for their helpful briefings; and the Scottish Government for its response.
The Justice Committee welcomed the Scottish Government’s commitment to the family justice modernisation strategy, of which the bill is part; to a child-centred approach that is based on rights; and to a move to the barnahus model, as we have seen in the criminal sphere. In that model, the intention is not that the process further traumatises those who are involved in it. I hope that that will be one of the consequences of the bill.
I want to touch on the word “presumption” and the not unreasonable presumption that the Government’s job is to put in place legislation to protect the very vulnerable. Scottish Women’s Aid has said that the Government has an obligation to create a system that protects and upholds their rights and that the presumption is that there is fair and equitable legislation that recognises competing interests. However, when it comes to children, the presumption is that the wellbeing of the child is paramount and I suggest that that also applies to the rights of the child and the views of the child.
The committee heard a lot of views, and we all approached the bill with an open mind. My colleague Liam Kerr referred to some of the compelling testimony that we heard. We heard in private compelling testimony from Yello!, which is the young expert group in the improving justice in child contact project. It said:
“Don’t dismiss us—we experienced it, and we know what we’re talking about. If we feel like we aren’t being listened to, it can make us not want to speak to people or take part in things.”
Our report discussed the real benefit of alternative dispute resolution and the view that no one wins in court. The potential to resolve disputes outside court is to be encouraged. The Justice Committee previously recommended that the Scottish Government and the Scottish Legal Aid Board should explore making legal aid available for other forms of ADR and our report expresses disappointment that that has not been the case, although we need to welcome the Scottish Government’s response to the Justice Committee’s report when it said that
“consideration will be given to the availability of funding from the legal aid fund for other forms of ADR”
as part of that process.
However, as other members have said, we know that where domestic violence is involved, mediation has no place—there should be no sitting across the table from the perpetrator, allowing the potential for controlling and coercive behaviour to continue.
I welcome the Scottish Government’s acknowledgement of that important point in its response to the Justice Committee's stage 1 report. The Government points out that, in line with its family justice modernisation strategy, it has proposed to the family law committee of the Scottish Civil Justice Council that court rules be changed to ensure that they are compliant with the Istanbul convention, which makes it very clear that the use of
“mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence”
that are covered by the scope of the convention are inappropriate.
We also heard on a number of occasions about the challenges that are faced by victims and the different levels of protection that are afforded in the criminal court and in the civil arena. The Justice Committee’s recommendation on that has been accepted by the Scottish Government, and I welcome the on-going work in that area. There must be a change; the threat level does not change just because the forum that the perpetrators are involved in changes. There are consequences and, of course, children suffer.
Mr Findlay and Mr Kelly mentioned contact centres and that is where abuse has been allowed to continue and can intensify. There must be robust multi-agency risk assessment and, of course, adequate resources to provide the amelioration measures that the risk assessments highlight. There is nothing simple; one thing that is consistent is that paramount consideration should be given to the wellbeing of the child.
I will move on to the UNCRC and the support for a positive presumption that all children are capable of forming a view. The current presumption in the Children (Scotland) Act 1995 that children are able to form a view from age 12 has created the practical situation in Scotland where the views of younger children are routinely not sought or listened to. There was considerable support for the removal of that presumption from the 1995 act, but the NSPCC said:
“However, we do not support the exception which provides that a child’s views do not have to be sought if ‘the child is not capable of forming a view’”.
As the policy memorandum explains, even very young children could be included.
Article 12 of the UNCRC says that children are not required to prove their capacity but rather that all children are presumed to be capable of forming and expressing views. The NSPCC captured that very well when it said that
“the extent to which children are ‘capable of forming a view’ is contingent upon the capacity of the adult taking their view to understand”
the varied ways, including non-verbal, in which children express their views.
In the limited time that I have left, I will touch on the issue of confidentiality and competing rights. The Children and Young People’s Commissioner—[Temporary loss of sound]—referred to article 8. Sometimes it is necessary to interfere with a right in the best interests of the child—sometimes that is necessary to ensure that a party’s right to a fair trial is realised—but any such interference with a child’s rights must be carefully considered to take account of their views.
That is not covered in the legislation and I propose to lodge an amendment to address that.15:59
It is a pleasure to be able, like John Finnie, to take part remotely in this stage 1 debate on the Children (Scotland) Bill. The Scottish Liberal Democrats strongly support the principles of the bill, but also recognise the work that is ahead for the Justice Committee and Parliament more generally in making the improvements that will be necessary ahead of stage 3.
In that regard I am, as other members are, grateful to all those who have helped our scrutiny to date, including the clerks and, in particular, those who provided evidence—some of it was extremely powerful—that shone a light on the areas where further work is needed.
The minister has already indicated the Government’s willingness to make changes at stage 2, including removal of the remaining presumptions against children expressing their views. That is welcome. I will reflect on some other areas in which, I believe, change and improvement are similarly needed.
As we know, in cases where a relationship breakdown turns out to be difficult and traumatic, it is often the child or children involved who pay the heaviest price. Therefore, our ensuring that their views are clearly heard in the process of determining what happens about contact and residence, as well as more generally, is imperative.
Further embedding of the UNCRC in our law, through family court cases, is also a step in the right direction, ahead of the full incorporation that has been promised by the First Minister. Additional protections for victims of domestic abuse and their children are also a welcome aspect of the bill.
Given those laudable and worthwhile aims, it is worth my while to emphasise at the outset how vital it will be for ministers to ensure that the provisions of the bill are properly resourced. Simply passing into law rights and duties might make us feel good as legislators, but doing so without the necessary funding would do a disservice to those whose interests we seek to protect, and to those who work on the front line, who we would be setting up to fail.
One of the clearest examples of that relates to regulation of contact centres. I declare an interest, as my wife is due shortly to take up the post of director of Relationships Scotland Orkney. I will therefore leave it to others to develop the arguments in that area, as some members already have, except to say that, as the stage 1 report on the bill by the Justice Committee points out,
“The Financial Memorandum suggests that there could be significant costs for contact centres in meeting the new regulatory requirements, yet no additional funding is proposed.”
Regulating contact centres is the right and responsible thing to do. However, as the committee concluded, we should not be passing legislation
“if it is not clear that there are sufficient means to fund the changes proposed.”
Another example of where that appears to be a risk is in relation to child support workers. As our stage 1 report states,
“we heard powerful evidence that the infrastructure for taking children’s views needs to be strengthened. Without this, the Bill may make very little difference in practice, particularly in relation to hearing the views of younger children where specific skills and more creative methods are required.”
In cases that are covered by section 11 of the Children (Scotland) Act 1995, advocacy support is crucial to ensuring that every child has the best chance to have their views heard. Not all will require such support, but if it is not available, we risk failing those who are most in need.
Professor Kay Tisdall and others expressed strong concerns about the absence in the bill of any infrastructure for child advocacy, and of clarity in the family justice modernisation strategy. That is not good enough: the bill must be amended to provide those assurances, and ministers should set out timescales for delivery.
Of course, a child will feel comfortable in expressing their views only if they can do so in the manner that best suits them, so building trust and confidence in the process is also key. The committee heard arguments in favour of giving children a greater say in how their information can be shared with the courts. At present, it is possible for highly intimate information that is held by third sector organisations to be drawn into court proceedings, even if sharing it goes against the interests of the child. That can happen without the child even knowing about it. Both Children 1st and Scottish Women’s Aid shared examples of that in evidence, and highlighted its potential for undermining the trust and confidence of children who engage with third sector organisations.
As others have, I recognise the need to respect the rights of all those who are involved in court proceedings, but I believe that the bill provides a chance at least to clarify the guidance around the need for information sharing to be proportionate and necessary, so that consideration is given to the best interests of the child.
Another area where the bill could go further is in the promotion of greater use of alternative dispute resolution. Whatever steps we take to improve how evidence is taken, courts are the last place where we wish to see relationship disputes being settled. There is a case for extending the scope of legal aid to encourage more people to consider ADR, so I welcome the Government’s willingness to look at that.
Finally, I will touch on children’s access to members of their extended family. Some of the most powerful evidence we heard was in support of doing more to ensure that children continue to have contact with their siblings. Oisín King’s evidence was an obvious example of that. Ensuring that that happens, when it is in the interests of each child involved, can be resource intensive, but it should be prioritised so that it happens more consistently.
The committee also heard compelling evidence from grandparents, who often find themselves cut off from their grandchildren as a result of an acrimonious separation or family dispute. I have great sympathy with the case that they make. They are right to argue that grandparents and other adults, including those who do not have a parental relationship with the child, often play invaluable and enriching roles in the child’s life. That should be recognised and reflected, where appropriate, in decisions that are made in the best interests of the child. However, ultimately, decisions need to be made in the best interests of the child; anything that talks in terms of the rights of others risks diluting that.
Scottish Liberal Democrats will gladly support the general principles of the bill at decision time, while recognising the work that lies ahead if the bill is to meet the needs of children and deliver its laudable aims. I look forward to playing a part in that process. Once again, I thank those who have given the committee so much food for thought, as we embark on our stage 2 consideration.
We move to the open debate, with speeches of six minutes, please. We have used up any spare time during the opening speeches and I do not want to cut closing speeches, so if members could stick to time, that would be useful.16:05
The bill is extremely important and I will be happy to agree to the bill’s general principles at decision time.
The bill is important on many levels, but, for me, the one overriding reason for it is that it will, finally, give children a voice within a justice system that has, historically, been structured for adults. All children should be able to give their views on decisions that affect them and their future. There is a lot of detail in the bill that will affect many areas of children’s lives.
As deputy convener of the committee, I thank the clerks and the drafting team for their invaluable help. Their attention to detail and their hard work have allowed the committee to agree to the general principles in a largely non-contentious way. I also thank all the witnesses who gave of their time to give us excellent evidence, either in person or by written submission.
The policy aims of the bill are to ensure that the views of the child are heard in contact and residence cases, to further protect victims of domestic abuse and their children, to ensure that the best interests of the child are considered in contact and residence cases, and to ensure compliance with the UNCRC in family court cases.
A hugely important part of the bill, and one that is widely supported, is the removal of the existing presumption in the 1995 act that only a child who is 12 or over is of sufficient age and maturity to form a view. We heard consistently that that presumption has meant that the views of younger children who are perfectly able to express their views are not routinely heard, in practice. As Megan Farr from the Children and Young People’s Commissioner Scotland said:
“Children’s views do not miraculously change the minute that they turn 12, but their capacity to express their views evolves over time from birth.”—[Official Report, Justice Committee, 17 December 2019; c 10.]
Excuse me, Ms Mackay. Minister—could you resume your seat at the front bench, please?
There has been concern expressed, which I share, that the phrase “who are capable” could be misinterpreted and could lead to decision makers deciding that a child does not have the capacity to give their views. I am therefore pleased that the minister proposes to lodge an amendment at stage 2 to strengthen the provisions in sections 1 to 3 in order to avoid the risk of capacity exemption being used excessively.
Section 15 of the bill will place a duty on the court to explain decisions to children. That is where the role of child welfare reporters is crucial. The bill will extend their role and, through secondary legislation, ensure that they will get appropriate training. More than 90 per cent of child welfare reporters are lawyers, so I am pleased that more non-lawyers—for example, child psychologists—will be encouraged to train, and that a national register of reporters will be held, to protect children’s rights.
The current adult-centred infrastructure needs to be strengthened, which is why the role of children’s advocacy and support is vital. The minister has said that that will be considered in the family justice modernisation strategy, and will be looked at before stage 3. I believe that that is essential, so I am keen to see early progress on it.
If children’s views are to be heard, a system of redress and complaint for them should be considered. That is particularly important in instances of domestic abuse, which is reported in the majority of contact cases in the civil court. Children must be heard without fear of retribution; that is why confidentiality and the sharing of data must be proportional and information must not be shared unduly by courts or those who have perpetrated abuse against the child. I do not believe that the guidance is enough, so I look forward to the provisions being strengthened before stage 3.
An area that is of enormous importance is child contact centres for children and families. The committee strongly recommends regulation of those currently unregulated centres, which are run by paid staff and volunteers, some of whom have had minimal training. To be clear, I say that that is not a reflection on the many excellent people who work in them, but on the need to ensure that centres are safe for all who use them, no matter where they are in the country.
The committee heard harrowing evidence about children being made to attend under court contact orders, often when they do not want to, which causes them great distress. They have had no say in the matter. As we have heard, the committee held a private meeting with youngsters from Yello! who have experience of being ordered to attend contact centres, and their accounts were powerful and moving.
In committee, I voiced my reservations about contact centres and their purpose. I agree with Women’s Aid and Children 1st: if contact is unsafe for women and children, and contact needs to be supervised, it should not happen. I strongly support the Government working with third sector partners including Women’s Aid and Children 1st to ensure that women, children and young people who have experienced domestic abuse are protected. However, given that the centres are part of our current framework, I am pleased that they are to be regulated, and I agree that there will need to be sufficient secure funding.
Another important issue that has been discussed today—and which the committee heard about—is sibling contact, where that is appropriate and safe. As has been mentioned by Liam Kerr and others, during an evidence session we heard a powerful and moving account from a young care-experienced man who was estranged from his sister and who was allowed only structured and supervised contact with her, despite posing absolutely no risk. Allowing siblings contact would be an enormous step forward, and would be entirely in line with the care review recommendations. Section 10 of the bill says that, for looked-after children, local authorities must promote personal relations and direct contact with siblings where appropriate. I would like that to be strengthened, and to meet the minister on that.
I will end with a quotation from a young person from the Yello! group, who said:
“Adults always seem to be given more priority than children, even though it is all supposed to be about the child. We hope that this Bill will change that.”
So do I.
I ask members to please support the general principles of the bill.16:11
Little people, as some call children, are no less people than adults; nor are they less affected. In many ways, they can be more deeply affected than adults when the law and the courts become involved in their young lives—particularly at points in time when the family situation in which they find themselves is unsettled and, often, contentious.
It is important for us always to bear in mind that the law is never a fixed thing, but develops and alters as time passes—sometimes for the better and sometimes for the worse. Of course, this Parliament is meant, after careful consideration, to deliberately change the law to improve it or, sometimes, to correct its own past errors or those of others. Those others may be thought to include judges, so I should perhaps not push that comment too far. After all, judges are there to seek to objectively and fairly apply the law as it is to the individual cases before them.
I will support the bill in principle, as will my colleagues. However, as always, cautious consideration of the bill is required, and greater detail requiring scrutiny is likely to emerge at later stages. That is especially so in relation to issues that are intended to be addressed in secondary legislation.
We should realise that judges already include in their careful considerations views expressed by children in cases before them, and that they often explain very well their reasoning and thinking to them. The impetus that the bill gives to oblige courts to do so is welcome, provided that the justice system is properly resourced to enable already-busy judges to fulfil that function as part of their duties. The question of resources has already been raised by a number of members.
As set out by my colleague Margaret Mitchell on behalf of the committee, the bill deals with important details in that area. I will make a few brief passing comments on some of those.
The removal of the assumption of competence of children over the age of 12 is intended to encourage consideration of a child’s testimony at a younger age. That should mean that the court will feel enabled to exercise its judgment more freely in considering and acting on the evidence of a child of any age, in a similar way to that in which a judge traditionally decided whether a younger child should be asked simply to promise to tell the truth or to take the oath when giving evidence in a criminal trial.
Statutory factors will now be specified in the bill. The bill will add to and adjust the factors that must formally be taken into consideration, such as sibling relationships and relationships with each parent, when determining the outcome of any case—broader consideration will be given to relevant factors. Putting this on a statutory basis should be thought to be a sensible step.
The basis for the recruitment and operation of child welfare reporters is to be made more consistent and will reform a system that features several inconsistencies. The role, training, remuneration and quality of the people so employed would—one would hope—be improved by the introduction of the Scotland-wide register. The lack of statutory regulation for such individuals has, in the past, proved controversial on occasion. The key to that work will be in its proper resourcing and administration, to seek maximum effectiveness in the interests of children, their parents and their families.
What about the possible increase in the cost related to family contact centres, which has already been mentioned? Measures that relate to that point are notable in their absence from the bill, so I look forward to further clarification from the Government on funding and to an explanation of how the resourcing issues, which I and others have identified, will be addressed—if necessary by amendments being lodged and agreed to at stage 2.16:16
I thank those who attended the Justice Committee and its clerks for the tremendous amount of work that they have put into the bill.
I speak not only as a member of the Justice Committee, but as a dad of two children. It is my son’s third birthday today, and although it is not uncommon for parents to be working on their kids’ birthdays, it is a wee bit different this year. Folk will understand that my son does not have any grandparents or other family around, so I hope that the Presiding Officer and members in the chamber will forgive me for taking the opportunity to wish him a happy birthday, on the record. [Applause.] Happy birthday, Ruan MacGregor—I am getting reminded to say his name. He will no doubt be mortified when I show him this in years to come.
This is a very good bill and I am glad to say that it has been welcomed across the board—we have heard that today in the political world and we heard it in the evidence as well. There are points for discussion, but those are on things that could be improved, rather than on the principles of the bill. We have heard from the NSPCC, Children 1st, Women’s Aid and others, and the consensus is that the bill is good.
The bill brings about important changes. We heard from John Finnie about the protection of vulnerable witnesses, building on the work on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, and we had a lot of discussion around the barnahus model.
There was also a lot of discussion on probably the most contentious—if I can call it that—area, which was child contact centres. We heard evidence of good practice there, but Women’s Aid raised some concerns around domestic violence. I welcome the minister’s response to the committee’s report and its recommendations on the matter and I look forward to hearing more ahead of stage 2, particularly around how we can improve communication between the courts and contact centres.
Hearing the views of younger children is key—it is a must. We really have to do that to get it right; it is an absolute no-brainer. The register of who can be appointed as a welfare officer is very welcome. I declare an interest as a registered social worker.
I remember a time when social workers did more of that work. As the minister said, it seems to be the case that it is mainly done by the legal profession now, but it would be good if there was a wider sphere in that regard. If social workers and psychologists were involved, I think that the child would be placed at the centre of the process. We have to make sure that that is the case, and that their interview with the child is the main one in the process.
I also welcome the advocacy or support workers suggestion, which was made by Scottish Women’s Aid and others. I hear what the minister is saying, but it is an area in which I have an interest and the suggestion would offer a lot to the debate. However, I am open minded as to whether we deal with that through legislation or through the existing framework.
On the issue of sibling contact for looked-after and accommodated children, I agree with all the points that have been made. It is absolutely crucial. Some of the evidence that the committee heard was mind blowing to say the least, but I agree with what the minister and Maree Todd have said: such contact should already be being promoted. I said at committee—I am looking at Liam Kerr, because he knows that I have said this on several occasions—that I cannot imagine a situation in which that would not happen. There is a process for looked-after and accommodated children in place, as well as a children’s hearings system. Therefore I would like to think that that has always happened. If that is not the case, is that down to resources? I ask the minister to have a look at that issue.
There are other areas that I think are important, and which have been raised by, for example, Shared Parenting Scotland. I should say that I am the convener of the Parliament’s shared parenting cross-party group. Shared Parenting Scotland has suggested some amendments, as well as some general debating points.
Liam Kerr did not misquote me when he talked about my concerns around the terms “residence” and “contact”. I do not think that they are helpful. When I was a social worker, I and many others would get into trouble if we used the language of the profession. We might inadvertently say “contact” to a child and the child’s reaction would often be to say, “Contact? That’s my mum and dad we are talking about.” We need to listen to such concerns, but I am open minded as to whether they need to be dealt with in the bill or by way of guidance that is given to local authorities and workers across the board. We were always discouraged from using those phrases, but because they are the legal terms, we sometimes got into the habit of doing so.
On the issue of contact, there is a suggestion that an amendment could be lodged to include grandparents and other relatives. Just now, I think that all parents are experiencing the loss of the contact that our children have with their grandparents, and we are seeing the impact that it is having on our children. Therefore, I think that we need to look at the issue in the round. Often, grandparents feel that they have a vital relationship with a child, and that the child has a vital relationship with them, and perhaps the contact with the child is lost as a result of the actions of the parents. I welcome what the minister said about the charter, but perhaps she could provide more detail of that before stage 2.
I can see that the Presiding Officer is asking me to wind up, so I will do so. I had so much more to say, but I will leave it at that.16:23
Scottish Labour supports the general principles of the Children (Scotland) Bill and welcomes the progress that it marks in the promotion and production of children’s rights as set out in the United Nations Convention on the Rights of the Child.
Scottish Labour affirms the need to place the best interests of the child at the heart of decisions that affect them, and agrees that supporting children’s participation in such decisions is essential. We welcome the protection that the new provisions will afford to vulnerable persons in section 11 parenting dispute cases, and believe that consistency in the treatment of vulnerable witnesses should be facilitated across all legal proceedings.
There are concerns about the current safety of child contact centres, as other members have said. Regulation is a necessary step, but the Scottish Government must ensure that centres have sufficient funding to meet demand and any new regulatory requirements.
Scottish Women’s Aid has written about the role that the Children (Scotland) Bill must play in protecting women, children and young people who have experienced domestic violence. These are the key points that Scottish Women’s Aid raised:
“Children who have experienced domestic abuse are at the centre of the majority of family court cases and also the most vulnerable parties in them; the government has an obligation to create a system that protects and upholds their rights.
Omitting children’s views from proceedings is disempowering and dangerous: the Bill must be amended to ensure meaningful participation, including a child-friendly system of redress and complaint.
Children have consistently stressed the importance of support and advocacy workers. The Bill must be amended to reflect the Scottish Government’s commitment to providing specialist, trauma-informed support in facilitating children’s meaningful participation.
Children who have experienced domestic abuse must be able to express their views safely, without fear of retribution. The Bill must be amended to provide further protection for children’s confidentiality.
Understanding of the dynamics of abuse and control must be reflected at every stage of civil court processes, including in the language used, the training of legal professionals, the provisions of special measures for vulnerable witnesses, and referrals to contact centres.”
Many organisations have written similar points.
Although the bill is an important step forward, there remain areas that Scottish Labour wishes to see addressed and tightened up at stage 2, including the provision that would enhance the right of a child to express a view during proceedings. It is a positive provision, but a number of additions could improve it further still. There was some concern that, as drafted, simply removing the presumption of competence for children over the age of 12 could mean that more children would be deemed to fall into the exception of not having capacity and fewer children would have their views considered. To counter that, as James Kelly said, the bill could be strengthened to include an explicit requirement that a court ensures that a child, regardless of age, has the opportunity to express their views.
Provision could also be made for a child to refuse to make their views known, so that they are not placed under pressure to make what might feel like a decision or choice. Children should be given the opportunity to indicate the manner in which they wish to express their views, rather than the way that is considered to be suitable being mandated to them.
Although the bill removes the age limit presumption with regard to the expression of a child’s views, it retains the presumption in the 1995 act that children aged 12 and over should have capacity to instruct a solicitor. That is inconsistent with the approach of the bill and the presumption in relation to legal capacity that exists in other legislation. That section of the bill should be removed, and the Scottish Government has indicated to the Justice Committee its intention to do so.
The section on the duty to investigate non-compliance with contact orders was subject to debate, namely as to whether it adds anything to existing practice. However, as the bill stands, there is no explicit provision for a child’s view to be sought, which should be rectified if the provision remains.
As I stated previously, there is broad support for the bill across all organisations in Scotland that work with children and families, and positive views have been submitted on how to improve the bill further, including the excellent report by the committee. I look forward to stage 2 of the bill.16:29
I support the general principles of the bill. As others have done, I thank the Justice Committee clerks and the witnesses, who provided very powerful and important evidence.
The bill will substantially amend the law that applies when parents are in dispute with each other over some aspect of their children’s lives. I think that we can all think of constituency cases that have concerned disputes that have impacted very much on the children concerned. After parents separate or divorce, disputes can arise about where a child should live and the arrangements for a parent to have contact with a child he or she does not live with.
The bill’s key proposal, through sections 1 to 3, is to make changes to help children to participate in decisions about them, including court decisions. Rona Mackay put it very well when she said that the overarching thing that the bill does is to give children a voice. A key aim is to encourage the courts to hear the views of younger children before reaching a decision.
The bill also proposes the statutory regulation of several key aspects of what could be called the machinery associated with the 1995 act. That includes child welfare reporters and child contact centres, which I will come back to. The bill aims to improve the experience in the courtroom, in family cases, of vulnerable people such as those who are affected by domestic abuse.
Having looked at the bill in great detail, the Justice Committee made a number of recommendations in its report. Overall, the committee considers that the bill is “a positive step forward” in achieving the policy aims. It very much welcomes the removal of the existing presumption in the 1995 act that a child aged 12 or over is of sufficient age and maturity to form a view, having heard consistent evidence that the presumption has meant that the views of younger children are not routinely heard in practice. The committee asked the Scottish Government to respond to the concerns that were raised by various stakeholders that the current drafting of the bill does not go far enough in ensuring that the views of all children, particularly younger children, are heard.
The committee also supports provisions in the bill that would regulate child contact centres. That is very important, given some of the evidence that we heard about differing practices, and concerns about the quality of provision. Bringing standardisation and regulation to that is very important. That raises the issue of potentially significant costs for contact centres in meeting the new regulatory requirements, so the committee asked the Scottish Government to provide details on how it will ensure that sufficient funding is made available for contact centres for their existing level of provision and the new regulatory requirements.
I welcome the Scottish Government’s response so far to the committee’s report. On the issue of children’s participation in decisions that affect them, the Justice Committee asked the Scottish Government to bring forward amendments at stage 2 to address the committee’s concerns and ensure that the views of all children, regardless of age, are heard. I welcome the Scottish Government’s response in recognising that
“the concerns raised by the Committee and stakeholders during the stage 1 oral and written evidence about the risk that the provisions ... could be misinterpreted and lead to decision makers deciding a child does not have capacity to give their views.”
I welcome the Scottish Government’s acceptance of the recommendations, and its proposal to bring forward an amendment at stage 2 to strengthen the provisions in sections 1 to 3 to avoid, if possible,
“the risk of the capacity exemption being used excessively by decision makers.”
As I have said, the regulation of child contact centres has been looked at in some detail. The vast majority of stakeholders agreed that they should be regulated—to ensure, as I have said, more consistency in the quality of provision. However, the issue of funding has arisen and, like others, I welcome the fact that the Scottish Government gave interim funding to contact centres, which provided a level of stability. However, I welcome the commitment to provide, before stage 2, further details on funding for contact centres in the context of not just the existing service but, importantly, the new regulatory requirements that I think we all agree will arise from the bill.
Scottish Women’s Aid asked that, where possible, the approach to children and vulnerable individuals should be the same across all criminal and civil proceedings, including children’s hearings. The committee agreed, and I welcome the Scottish Government’s acceptance of our recommendation, albeit that it said that that will involve
“a longer-term piece of work”.
I understand that some of that work is or will be under way through the victims task force.
The Government’s response on many issues that were raised at stage 1 shows that it has been listening. I look forward to stage 2, when this important bill can be improved, and I give the bill’s general principles my support.16:35
I refer members to my entry in the register of members’ interests: I am a member of the Faculty of Advocates. I am aware that the faculty gave evidence on the bill to the Justice Committee.
I welcome the opportunity to contribute to the debate on this important bill at stage 1. I thank members of the Justice Committee for their scrutiny of the bill so far and for their helpful report.
I have listened carefully to the comments that members have made this afternoon. As members have noted, the bill seeks to enact changes to the landmark 1995 act and the Family Law (Scotland) Act 2006, to meet new challenges and reflect recommendations from various organisations and charities on improving the process of resolving disputes about children.
As Liam Kerr said, the Scottish Conservatives are broadly supportive of the intent of the bill and, as such, will support it at stage 1, with a view to improving it at stage 2.
I run the risk of repeating what other members have said, so I will use my time to focus on two elements of this extensive bill and consider the views of the Justice Committee and the organisations that presented evidence to it.
First, I note the proposals to improve children’s participation in the court process. In particular, sections 1 to 3 seek to remove the presumption that only a child who is aged 12 or over is of sufficient maturity to form a view. The bill provides that all children should be able to give their view if they wish to do so and are capable of doing so. During the call for evidence, that change was welcomed by charities such as Who Cares? Scotland, which went on to say:
“the removal of the presumption must come alongside new resources and approaches to facilitate participation from those under 12 to engage meaningfully with the court process and should not result in young children being expected to fit into a system designed for adults.”
I note that the Justice Committee and stakeholders took the view that the wording in the bill might lead to misinterpretation and that decision makers might therefore come to a view that a child did not have capacity to give their view. I therefore welcome the Scottish Government’s commitment to address that issue by amendment at stage 2, which I hope will strengthen that provision.
Section 15 is important, as it will ensure that any decision that is taken by the court has to be explained to the child, where possible. Many courts and judges do that already, of course, but it seems important to place the approach on a statutory footing. Given that it is not currently a requirement for a court to explain decisions to children in a manner that they can understand, the provision will ensure that decisions have to be explained either by the court or by a child welfare reporter. I think that, in the financial memorandum to the bill, it is suggested that the latter method will be used in the vast majority of cases. The committee’s report highlights the view of the Children and Young People’s Commissioner Scotland that explaining decisions to children is
“An important part of the participation of a child”.
Concerns have been expressed about section 15, including by the Faculty of Advocates, and the committee recommended:
“The Scottish Government should before Stage 2 set out how it will address the practical issues raised about the duty in section 15”.
I note that the Government has indicated that it will address the matter.
The second element that I want to talk about relates to the potential failure to obey a court order. In that regard, I highlight section 16, which relates to how courts should respond to a situation in which one parent breaches a court order in favour of another parent or relative. At present, parents who are found in contempt of court may be fined or imprisoned, but the bill would introduce powers to investigate why a breach of a court order took place and whether special circumstances led to the breach. That would allow courts to decide whether finding a parent in contempt of court would truly be in the child’s best interests and, instead, to consider alternative courses of action, such as adjusting the court order.
I note the conflicting views on the provision. For example, Scottish Women’s Aid states:
“We know from our services that women who ‘fail to comply’ with contact orders are often, in reality, protecting their children from abuse, and have been subject to criminal proceedings as a result.”
On the other hand, the senators of the College of Justice—the most senior judges in Scotland—argue that the provision is unnecessary. In their written submission, they state:
“The nature of contempt of court proceedings already ensures that the court must take into account the reasons for any failure to obey an order. There is a risk that its introduction would encourage parties to disobey a court order in order to draw attention to what they perceive to be its injustice, and so indirectly seek to bring about its variation or discharge.”
I acknowledge that the Justice Committee’s report recommends that,
“If section 16 of the Bill is retained, the ... Government should amend it at Stage 2 to make it clear that, as part of any investigation, the views of the child or children involved should be sought, where they wish to give their views.”
That appears to be in keeping with the general theme of the bill and, again, I welcome the fact that the Government will make proposals at stage 2.
The bill is extensive, thorough and important, and I concur that it is needed not only to change existing legislation in the area but to comply further with the UNCRC in relation to family court cases. As I have said, the Scottish Conservatives are content to support the bill at stage 1, but we will continue to scrutinise it at stage 2. Children who end up going through the pain and stress of entering the court system as a result of parental dispute should always be at the forefront of our decision making—they come first. Although I look forward to the bill progressing, I encourage anyone to make positive amendments as it goes through Parliament.16:42
I am pleased to speak in this stage 1 debate on the Children (Scotland) Bill. It is another example of getting on with what matters, even as the pandemic continues.
Tempting as it is to start with the words “As a father”, I do not think that that would be fair, nor does any of my young scamps have a birthday today. The purpose and benefits of the bill will be clear to everyone, whether or not they have children. After all, it does not take being a parent to understand that we must always seek to protect and nurture children in all that we do. Further enshrining children’s rights in legislation to help them to weather traumatic experiences is part of that work.
This year, we celebrate the 30th anniversary of the UN Convention on the Rights of the Child. As is set out in the 2020 programme for government, the Scottish Government is stepping up its
“awareness-raising programme for children’s rights”
and placing them at the heart of decision making. We seek to better the lives of children now and ensure that those who come after us are not subjected to the same inequalities that people of older generations were. That is why the Scottish ministers are committed to the policy of getting it right for every child, which includes giving all children the best start in life, working to close the attainment gap, extending free childcare provision and much more. Indeed, those aspirations are shared by members across the chamber.
Presiding Officer, 2018 was Scotland’s year of young people, during which their voices were heard louder than ever and their achievements were celebrated. Important as it is to support children under all circumstances, we need to give them extra support during times of trauma and when kids are not all right. As we continue to learn more about the impact of adverse childhood experiences on the rest of our lives, such experiences are increasingly recognised and must be acted on. The Scottish Government’s decision to incorporate the UN Convention on the Rights of the Child into Scots law, which made Scotland the only United Kingdom nation to incorporate it, was the right one.
The UN Committee on the Rights of the Child considers that the elements that should be taken into account when assessing and determining a child’s best interests should include their views and identity, “Preservation of the family environment and maintaining relations”, “Care, protection and safety”, “Situation of vulnerability”, and the child’s right to health and education. That is what the bill is all about.
I want to elaborate on two factors that particularly spoke to me as I examined the bill: maintaining family relations and vulnerability. Regarding the former, I will home in on the unique relationship between siblings—particularly as addressed in section 10 of the bill, which amends section 17 of the 1995 act such that the local authority must
“take such steps to promote ... personal relations and direct contact between the child and any person mentioned in subsection (1A) as appear to them to be, having regard to their duty to the child under paragraph (a), both practicable and appropriate.”
The Scottish ministers consider that a sibling relationship can extend beyond a biological brother or sister, and I fully support that view. Duties will extend to full, half, step and adopted siblings and will include sibling-like relationships.
My sister and I grew up in a home that was often very disruptive. We relied on each other, and I am convinced that our shared experiences and being there for each other is a big reason why we are so close—as is the fact that we are twins. I am sure that I speak for many when I say that being separated from my sister in childhood for whatever reason would have been the worst thing that could have happened to either of us. I can only begin to imagine how difficult such a loss of contact would be for a child who has had to be placed not with one parent after a split but in the care of a local authority because staying with a parent was not deemed to be safe. That in itself is difficult for any child who is likely to be dealing with severe trauma. Adding to that the loss of contact with their trusted sibling must lead to extra stress and feelings of isolation—not to mention exacerbated concerns about the wellbeing of their brother or sister.
For those who do not have any sibling bonds, the facilitation of contact with grandparents may fulfil a bigger role. Therefore, I would like to see further details of the steps that ministers intend to take to promote the charter for grandchildren during stage 2. Although I appreciate that asking councils to facilitate and promote sibling and grandparental contact can add extra practical and financial pressures, we must do all that we can to help councils to do so rather than just bestow pressures on them. I am certain that the Convention of Scottish Local Authorities, the charity Stand Up for Siblings and other children’s rights organisations will provide clear and workable input reflecting such needs, and I look forward to seeing more detail as the bill progresses through stage 2.
Looking at vulnerability, it is important that we take a moment to acknowledge that some children already live with conditions and disabilities and may also go through difficult family situations. Children’s hospitals across Scotland represent children who live with life-shortening conditions and help children who may require further support to enable their participation in proceedings, given their increased vulnerability. Pressures leading to difficult situations can occur in every family, and children who already have other challenges to deal with are sadly not exempt from added pressures in their family life. Some children may be non-verbal or have other communication challenges, so inclusive communication means and support are crucial if we want children’s voices to be heard loud and clear.
There are situations in which a court may consider that a child may not be capable of understanding decisions. In the light of that, I am pleased that the bill will have a positive impact in relation to the protected characteristic of disability, as it contains provisions allowing the courts to authorise the use of special measures to protect vulnerable parties.
I thank the Justice Committee for looking at the bill and, as always, the civil servants who worked on it and all others who contributed so heartily. I look forward to voting in favour of the bill at decision time, and I trust that colleagues across the chamber will do likewise.16:48
I, too, thank the Justice Committee for its excellent work and note that there have been many excellent speeches in the debate. I agreed with the minister when she said in her opening speech that civil law is often overshadowed in the Parliament. The debate is testament to the fact that it has been overshadowed, because the speeches in this stage 1 debate have been high quality—I am not saying that that is rare, just that the debate has been of high quality, and that I welcome that.
I thought that it would have been more appropriate if the bill had had the idea of children’s rights in its title, because, as I have been hearing all afternoon, the aim of the bill is about broadening and protecting the rights of children in relation to their views, reviewing the 1995 legislation and applying the UN Convention on the Rights of the Child.
Omitting children’s views is disempowering and leads to poorer outcomes, according to some of the evidence that we have heard. It is fundamental in all decision making that affects children’s lives that their views are established. That we have taken this long to bring the issue to this point is, perhaps, an omission on our part. Scottish Labour supports the general principles of the bill and I support the removal of the existing presumption in the 1995 act that only a child aged 12 or over is of sufficient age and maturity to form a view, although I accept that, in some cases, courts seek the views of children under the age of 12. I also agree with the view expressed in the committee’s report that a 12-year-old child is no more able to express a view than a child who is one day short of his or her 12th birthday. It is concerning to read that the committee
“heard consistent evidence that ... the views of younger children are not routinely heard in practice.”
The removal of that nominal minimum age is an important step in rectifying that.
There are a couple of areas that are worthy of further exploration. The first has been addressed by others. It is about ensuring a consistency of approach, given that no minimum age will be set in the legislation. The question is, how low in age will the courts go when hearing from children? I suppose that the courts will have to judge that for themselves. It will be done on a case-by-case basis but we need to ensure that there is a consistency of approach, otherwise we could end up with an uneven and unwanted situation.
It is important to ensure that the actual views of the child are sought—that is critically important. I think that Jamie Greene made that point in an intervention. There is no point in changing the law if the law is not changed to such a degree that the views of the child are heard. I say that because, during my time as convener of the Justice 1 Committee many years ago—Margaret Mitchell also served on that committee—there was a substantial appeal case that was well known at the time that involved a situation in which, it transpired, a child was sitting on their mother’s knee and answering questions led by the mother in a court case that led to a criminal conviction. That would never happen now but it is important to recognise that the views of the child must be sought and not the views of the parent leading the child. Otherwise, there would be no point in doing this.
I also want to address the question of failure to obey a contact order. That is a really important area of the legislation, notwithstanding Neil Findlay’s point about the need to regulate contact centres and Donald Cameron’s excellent contribution, and I want to talk separately about the Scottish Women’s Aid briefing and the issue of domestic violence. I have seen up to 15 cases where domestic violence has not been involved, but the other parent has not complied with a contact order. That has been going on for years and I think that it is wrong. At stages 2 and 3, ministers and the committee should fix that aspect.
On the question of what is in the welfare interests of the child, there must be a presumption that everyone who has previously been in a child’s life—their parents, grandparents and siblings—should maintain contact. To do otherwise would not be in the welfare interests of the child.
I might be recalling this wrongly but I am sure that, around 2006, members of this Parliament, including Kenny Gibson, were involved in the establishment of the grandparents charter. The question keeps arising about whether to give grandparents rights. That question is going to keep coming back until, perhaps, there is a presumption by the courts when making a decision about the welfare interests of the child that contact with both parents, where there is no violence involved, and with grandparents and siblings is absolutely a requirement for the welfare interests of the child.
I am pleased that one of the stated aims of the bill is to
“further protect victims of domestic abuse and their children”.
I was particularly concerned to read that Children 1st has said that, within its services, there are reports that the courts are used in a way that allows domestic abuse to continue to be perpetrated and that children feel that no one is listening to them. The stage 1 report sets out that
“For those cases that do go to court, research published in 2012 suggests that domestic abuse is alleged in just under half (47%) of court actions over contact. The Committee heard arguments from stakeholders including Scottish Women's Aid and ASSIST that, given the percentage of court cases affected by allegations of domestic abuse, it is important to design the law and court system around the most vulnerable adults and children.”
The issue is about balancing the interests of everyone involved and recognising that our system must recognise the views of children and must protect women and children from domestic violence, but must also ensure that parents are well served by the courts when the views of children are given, and that it is the children’s views that really matter in drawing those conclusions.16:54
I start by thanking the constituents of mine whose experiences of contact centres and the family court system have powerfully informed me of the need for reform. Before I speak about contact centres, I give the disclaimer that there are many good ones out there doing wonderful jobs. However, constituents never contact members to say that a contact centre has done a good job; they tell us when a contact centre has got it wrong. I have had a cluster of cases around one particular contact centre, although obviously I will not name it.
I am strongly in favour of the regulation and inspection of contact centres. I will begin with minimum standards of accommodation. A constituent of mine who is a father has not seen his disabled son for three years. The most recent central reason for that has been that there was no disabled toilet with a hoist. Currently, there are no requirements for centres to have such facilities. The courts use a list of contact centres, but it appears that those centres do not have to comply with disability requirements and nor do the courts seem to take that issue into account. As recently as April, my constituent told me that the contact centre in question now has a disabled toilet and a hoist, but his lawyer is still trying to secure funds for a changing mat and a trained member of staff to use the hoist. That is simply ridiculous and unacceptable.
I therefore welcome the provisions in section 9(3) on minimum standards of accommodation, but that does not specifically mention disabled access. Perhaps that needs to be specifically in the legislation. Nor does the bill place requirements on courts to ensure that the contact centres that are on their lists are compliant. When I contacted the sheriff principal in my area, I was left in no doubt about the independence of the courts, and I was referred back to the lawyer. I get that, but surely courts should ensure that their lists of contact centres are accessible as a matter of statute and not just as a matter of discretion, good will and independence. I ask the minister to say whether the bill can deal with that issue.
I want to ensure that there is regulation of all contact centres. Just because a contact centre is not mentioned on the interlocutor, that does not mean that it should not be regulated and inspected, so we have to look at that, too.
Another of my constituency cases relates to the robustness, professionalism and accuracy of reports that are compiled by contact centres to go to the courts. A constituent of mine was concerned about the underlying weighting that some courts give to those reports. To be fair to those who draft such reports, given that there are no clear national standards, guidance or training for their authors, the situation is perhaps unsurprising. When a new contact centre was appointed for my constituent and the contact was observed, a report to the court transformed her experience with her child and with the courts.
In the time that I have left, I want to talk about an exceptional young woman who is a constituent of mine and who has been let down by the current system. She has fought adversity to protect her son and her family. I will not name her, although I thank the minister for taking the time to meet her and hear her story. Instead, I will call her Elle—she asked to be called that because, frankly, her life has been hell. I also pay tribute to Gay in my office, who has worked closely with Elle and her family every step of the way.
When Elle first contacted my office, she was hugely anxious that her abusive ex-partner was using the court system and her child to continue to exercise power and control over her. With the support of my office and Police Scotland, who I thank, a conviction was secured for previous domestic abuse. However, Elle remained hugely worried that the courts were keen to accelerate contact between the ex-partner and her child without taking full account of all the court reports—I will say a little more about that in a moment. Elle was concerned about the weight that was placed on the contact centre report that went to the court and she had concerns relating to partiality and inaccuracies. It seemed that the requirement for the ex-partner to engage in anger management was ignored.
The member mentions a situation that is similar to one that a constituent of mine was in. I want to put on record that my constituent was forced to bring a petition before Parliament after she had gone round the houses getting no answers, including through the courts. Indeed, she was threatened with jail for contempt of court for refusing to comply with an order that would have put her children in an unsafe situation. That is the sort of situation that we have to remedy with the bill.
I thank Mr Findlay for putting that situation on the record. I absolutely agree with him.
I know that time is tight, Presiding Officer, but I want to get some more testimony on the record this afternoon.
When Elle’s child was unwell, the sheriff would not accept general practitioner evidence that that was the case. The GP would have to take the stand for it to be accepted, but that was not possible. Elle was fined £1,000 and some of the money went to her ex-partner as compensation. When Elle was ill and in hospital following the birth of her new baby, who is a joy in the new life that she is getting on with, she asked her grandmother to take her child to the contact centre. Elle was named on the court order to take the child there, and her ex-partner threatened her again with contempt of court. Only by changing her lawyer with 24 hours’ notice of appearing in court did Elle get it dropped. She was threatened with jail by an abusive ex-partner.
The reason I am saying this is because the people who are making the case for section 16 to be removed are simply wrong. There are many reasons for a failure to obey an order, and courts do not always have time to consider them. Section 16 must stay; it must be central to the bill’s provisions. If it has to be amended, let us do that, but it must stay.
Section 16 will protect people like my constituent Elle, and it will also protect non-resident parents. As members have said, some people will play the system—let us be honest about it. Courts—I mean here sheriffs and lawyers—quite frankly do not always look at all the reports or read all the paperwork, perhaps because of time constraints. Having that brake on the system to inquire about why contact has not taken place is vitally important, rather than threatening an abused woman—a victim—with jail for trying to protect her child. I am putting that on record here this afternoon.
I have asked for a couple of amendments to the bill. I want the legislation to be clear about the role of reports from contact centres that go to the sheriff and the weight that the sheriff should place on them. Without regulation, details and consistency, I think that they have undue influence on sheriffs and I do not think that that is acceptable.17:02
I start by wishing Ruan MacGregor a happy birthday.
I am grateful for the opportunity to speak in support of the bill at stage 1. The bill is of particular interest to me, although I am not a member of the committee, and to many of my constituents. It is also of great importance to many parents and children across Scotland.
We all acknowledge that family separation is, even at the best of times, a painful and difficult process. Trying to legislate on it can sometimes be even more difficult. Many constituents have contacted me over the years to express continued concern about the way in which family law operates in Scotland, but I am very cautious of the ability of Government to provide simple solutions for the deeply complicated family situations that can often surround separation.
Notwithstanding those points, it is clear that the law and legal frameworks need updating. There are fundamental values over which there can be no disagreement. The law must protect women and children, and indeed everyone, from domestic abuse and ensure that abusers do not have continued access to the people whom they have abused. It is also very important to protect people from malicious accusations of abuse—an accusation of abuse can often be used to strengthen someone’s legal position or in a vindictive way. That is why I welcome, as others have, the further measures that the bill introduces to protect abuse survivors and vulnerable witnesses.
Some of my constituents believe that the bill represents a missed opportunity when it comes to updating the law, and that it does not address some of the difficulties that they face. An issue that has been continually raised with me is that of shared parenting. Countries such as the Netherlands and New Zealand have a presumption of shared parenting. However, we do not have that in Scotland, which often results in what many feel to be a tiered system of parenting, in which those who live with the child are able to dictate access to the parent who does not. I was recently contacted by a constituent who alleges that her ex-partner is using the Covid-19 crisis as an excuse to prevent her from seeing her child. Although there are many legitimate reasons to reduce contact with a child, I am sure that many members will agree that it is not reasonable that parents are able to prevent responsible ex-partners from accessing their children in that manner.
Attempts to address such concerns through the standard system of mediation are often not productive. Parents with residence may not attend, with an adversarial court process the only remedy for parents without residence, bringing with it conflict and financial and emotional costs.
Contact orders that have been issued by the courts may not be complied with, with seemingly little recourse for parents who have been deprived of time with their children. I take on board what Bob Doris and others have said about contact centres and some of the issues that arise in relation to non-compliance with contact orders, but sometimes such things are used by one parent against another.
Although the proposed improvements with regard to child welfare reporters are positive—
I take on board the point that Keith Brown makes. We must ensure that the system is fair to all parties and, most important of all, to the child. I am not totally convinced by the idea of a presumption of shared parenting, but does Mr Brown think that we should make it clear in legislation that there should be a duty on courts to consider shared parenting, which might not be up front at the start of the process?
On the face of it, I have a lot of sympathy for that idea. It would certainly meet with the approval of those people who have contacted me on the issue.
More widely, Shared Parenting Scotland, which I know that the minister has met—I am grateful that she has met me, too, to discuss these matters—has raised concerns about the lack of reform in the language that is used in the bill. I expect that we will return to that issue as the bill develops.
In my view, the bill—especially the measures to ensure that the views of children are more effectively heard—represents a substantial improvement to family law in Scotland. However, it also represents an opportunity to introduce a measure of equity into our family law and to remove some of the historical inequalities that continue to overshadow it, which prevent parents from contacting and spending invaluable time with their children. Incidentally, I agree with what the minister said in response to Alex Cole-Hamilton on the rights of grandparents, which is an important issue on which we have all had representations. However, I do not think that such rights should cut across the rights of the children or, in some cases, the parents.
To go back to Bob Doris’s point, introducing a presumption of shared parenting, in line with the situation that exists in the jurisdictions of many of our European neighbours, would help to address—although, of itself, would not fix—many of the concerns that my constituents have raised. Such a presumption is in keeping with the spirit of the Scottish Government’s position on parenting and, crucially, is in the spirit of being in the best interests of children.
In my view, it is right that the Government believes that the best interests of the child must always be at the heart of family justice modernisation. Children’s wellbeing and their futures must be our priority. Ensuring that the family law system is just and fit for the challenges of the 21st century is a key part of that effort.
As I said, I am very grateful to the minister for meeting me to discuss the concerns of my constituents and the organisations that have been in touch with me, and I ask that, in continuation of that collaborative spirit, the issues that I and others have raised today be considered at future stages of the bill’s consideration.
We move to the closing speeches.17:07
As Pauline McNeill pointed out, it has been a very high-quality stage 1 debate. Members have come to the chamber after looking not just at the Government’s bill, the general principles of which everyone agrees with, but at the evidence and the Justice Committee’s stage 1 report. There have been many good speeches and interventions, and there has been good interaction and an exchange of ideas across the chamber. I am sure that the minister will have listened carefully to what has been said and that it will inform not just the Government’s thinking as it goes into stage 2 but that of different members and different political parties, which can only help to improve the bill overall.
As Liam McArthur pointed out, we do not want to find ourselves in a situation in which we just pass a piece of legislation that we all feel good about because we all agree with legislation that is about improving the rights of the child. The bill that we pass must work in practice. That is where the parliamentary process can play an important role as we move through stage 2 and stage 3.
I welcome the fact that the minister has indicated that the Government will lodge amendments on the removal of the 12-plus presumption and that it will ensure that the rights of children are consistent across all age groups. I welcome, too, the fact that the issue of non-compliance with contact orders is to be addressed.
As we enter another month of the pandemic, the issue of delays in the court system is very current, although we had not heard of Covid-19 when the committee took evidence on the bill. The Government has sought to address the issue through section 21, which says that
“the court is to have regard to”
any adverse effects that delays in the court system may have on children. However, the requirement to “have regard to” might not be strong enough. That will need further debate and perhaps amendment at stage 2.
Members made a number of important points about confidentiality. Alex Rowley and Rona Mackay were right to emphasise the important point about children who live in a situation where there has been domestic abuse in the house. In that regard, confidentiality has to be balanced out and the issues of domestic abuse victims have to be taken into account by the courts.
John Finnie and Liam McArthur brought up the important issue of alternative dispute resolution. A lot of parenting disputes end up in court, but if such disputes can be resolved outwith court, it is to the benefit of not only the court system but the individuals who are involved. John Finnie made an important point about legal aid, which also came up in the committee evidence. Many people cannot afford the access to legal aid that is required, and the Government needs to take that on board.
A big issue that has run through our discussions this afternoon is contact centres. As a number of members said, there are examples of good practice and good contact centres, but it is clear that, given members’ experiences of cases that have been brought to them, they have concerns about the operation of contact centres. There is a strong case for looking at the regulation of contact centres in amendments.
As I said in my opening speech, if we are to get the legislation to work properly, there needs to be proper financing. Contact centres are an example of that, with the initial Relationships Scotland funding being withdrawn, and there is a need for proper support and funding for child welfare reporters. Margaret Mitchell raised that in her opening speech.
There has been a lot of lobbying of MSPs on behalf of grandparents who are looking for a presumption in favour of grandparents’ rights to be included in the bill. We heard an intervention on that from Alex Cole-Hamilton. As Pauline McNeill pointed out, it is important that the rights of the child are central to the bill. However, Kenny Gibson was right to point out the importance of more promotion of the grandchildren’s charter as a way forward.
Does James Kelly agree that it is important that the Government does a wee bit more work on the issue of grandparents? Given the work that I have done and what I have heard anecdotally, it concerns me that the grandparents who do not have contact are often those who are on the side of the family members who do not have residence. If that is a recurring theme, does the member agree that ministers should look at it more closely?
The Government has drafted the bill in such a way as to emphasise the rights of the child, which is correct. However, given the number of members who addressed the subject and the amount of correspondence that we have received on it, it is clear that there are issues to do with grandparents’ rights, and the Government needs to examine the subject closely.
We support the general principles of the bill. It represents a good start and I think that, with a bit more work, we can produce a bill that will serve the rights of children properly.17:14
I thank all members for their very thoughtful contributions. As Kenneth Gibson said, it is good to see the chamber resume some form of normality in looking at very important and quite sombre legislation.
Rona Mackay opened her comments with something that sticks in my mind about why the bill is so important. The bill, and the debate that we are having around it, finally gives children a voice in a system that is designed to listen to adults. That perfectly sums up the premise of the bill—what it is about and why it is necessary—and what should lie at the heart of the debate around it.
Pauline McNeill backed that up when she said that, although we talk about child protection, we are also talking about children’s rights. We are reviving a 25-year-old piece of legislation, and so much has happened in the 25 years since it was passed. There is clearly a much more prominent focus on giving a children a voice in the conversation today.
I would say that everyone has a voice: children themselves, unmarried fathers, siblings, grandparents, and third-party agencies that have been in touch with us. The law also has a voice.
Custody is complex. It is not as simple a matter as it was perhaps presented to be in the 1995 act, with two parents fighting over access or custody. These days, no two families are alike, so the balance between consistency in the application of the law and flexibility will be a recurring theme.
I turn to some of the comments that were made today. The minister started by talking about the consultation process, and I was quite struck by that. She mentioned the sheer scale of the engagement in the consultation with children and young people themselves. It marks progress for the Parliament that young people have been included at such an early stage of a bill, to allow us to make informed decisions. Including and listening to a wider diversity of voices in the legislative process, including those of young children, is difficult, but the tone of the debate has been good. It feels more inclusive and it feels as though this legislation will be more inclusive.
I made an intervention about how we listen to children’s voices. We do so in a context that protects them from coercion by either parent. That is important. I welcome the minister’s response to that intervention: child welfare reporters will receive more training to spot such behaviour but, as other members have raised, that requires resources and training.
That theme has cropped up a few times in the debate. It is all very well legislating for something, but the financial memorandum needs to back that up with resource. If contact centres are not fulfilling their obligations because they do not have the infrastructure that they need to deliver for the people who use them, there is a problem. There is an opportunity here to fix that—in legislation or otherwise.
Many people talked about grandparents. I can speak personally about this, because when my parents were shouting and bawling at each other, it was my grandmother whom I often went to visit, because that was a safe space for me. The same is true for many children across Scotland, even today. Balancing the rights of grandparents is tremendously difficult, just as it is difficult to balance the rights of siblings, parents or any other people with whom a child has a relationship. However, we have to strike that balance as we go through this process.
The experiences that Bob Doris shared put a human face on what is largely technical legislation. The anecdotal stories that he gave us about the realities of shared parenting made a forceful argument in support of section 16. I know that committee members and others who are in the chamber or participating virtually would have been listening to those stories. They remind us how complex, blanket legislation does not always address the needs of individual circumstances. Again, that is a difficult balance.
I ask Jamie Greene the same question that I put to James Kelly. I do not know the answer to this. If it were shown that grandparents from the side of the family that does not have residence were getting less contact with their grandchildren, would that suggest that there was something wrong that might need to be fixed?
Absolutely. Just as children are on the receiving end when two adults are having a dispute that is no fault of the child, it is equally no fault of the grandparents, who are in the middle of it. Whether it is possible to legislate to meet those needs, I am not sure. I think that Liam Kerr touched on that. I know that the committee will look carefully at that at stage 2 and with a positive and open mind. However, that throws up the issue that the legislation cannot take into account every scenario. Does apportioning rights to grandparents or siblings detract from the rights of any other party in the discussion? The disputes and negotiations are often complex. As Gordon Lindhurst said, the judge has the freedom and independence to make the decision on the evidence that has been presented to him.
I wish that I had more time. I thought that I would struggle for content because I am not a member of the Justice Committee, but a lot has been said today.
The issue of mediation and early resolution is very important. It is always better if people do not get to court. Signposting is not always good enough for many parents, but there were suggestions that mandatory mediation could be piloted. That seems sensible, but it might not always be appropriate, especially in the circumstances of domestic abuse.
Issues to do with confidentiality, sharing information, conflicts of interest between parents, section 10 and the weakening of language around the rights of siblings have been raised. Those are all valid technical points to be debated at stage 2.
Let us not forget that, as James Kelly said, it is important that, in a dispute between parents, it is the children who are at the centre. It is the children who are caught in the middle of that.
I wish Fulton MacGregor’s son a happy birthday—I promise not to sing. Fulton MacGregor made an important point. His experiences as a social worker remind us that disputes are legal, but they are also human. People are at the heart of law, and people—even little people—should be at the heart of the legislation.17:21
I am very grateful to members who have contributed to the debate, and I agree with Pauline McNeill about the quality of the speeches that we have heard.
A key point from the debate is that the bill is only one part of the work on reforming family courts. However, I note, as other members have, that Rona Mackay summed things up very well when she said that the bill gives children a voice.
I am very pleased that there is so much consensus across the chamber. It is agreed that the bill is a step forward, and I am glad of the support for the bill’s general principles. I have listened very carefully to what has been said about the many detailed issues that have been raised, and I will address as many of them as I can in the time that I have available. I also reiterate that I am always happy to look at proposals that will improve the bill.
On looked-after children, I reiterate that we want the duties relating to siblings and funding—that issue was raised by a number of members, including Liam Kerr and James Kelly—to be implemented. The Government is absolutely determined to make progress and will work with local authorities and other partners to assist with implementation.
As I said when I intervened on Liam Kerr, my view is that the care review report reassures us all that the money is in the system. It is, possibly, how the money is being spent that is the issue. The First Minister has committed the Government and local authorities to working with all focus to make the care review changes as fast and as safely as possible, so I am determined that we will see progress on that.
Use of the word “practicable” was mentioned a number of times. I am listening to what is being said on the matter, and will consider it further ahead of stage 2.
The theme of contact centres has run throughout the debate. The issue was raised by Margaret Mitchell, James Kelly, Rona Mackay and Bob Doris, who gave anecdotes about contact centres in relation to which he has constituency cases. I appreciate members’ comments about contact centre regulation; I am sure that all members agree that, in all cases, contact must be safe for the child and must be in their best interests. Members will agree that minimum standards for training and accommodation will help to ensure that all contact centres are safe locations for children.
I accept members’ suggestion that regulation should cover solicitor referrals—Bob Doris, I think, made that point—and self-referrals. I agree with that, but it is not possible, because there is no obvious sanction for lawyers or individuals for not ordering contact at a regulated centre. I hope to do all that I can to encourage use of regulated centres for self-referrals and solicitor referrals.
The subject of funding for contact centres was also raised. Members will recognise the need for sustainable funding arrangements to be in place. The Scottish Government currently provides funding to Relationships Scotland, which is the organisation that runs the majority of contact centres. As is set out in the bill’s financial memorandum, we will provide funding to cover the additional costs that will be involved in regulation. Members might also be aware that Relationships Scotland’s National Lottery Community Fund funding came to an end in March. Consequently, we have provided it with an interim grant and an assurance that an appropriate level of funding will be made available for contact centre services until 31 March next year.
If, as the Scottish Conservatives have, the minister has received anecdotal evidence that some contact centres are simply not working for those who need them to work, will she ask her agencies to intervene to ensure that such places fulfil their necessary obligations?
Of course I will. The bill says that we will appoint a body to oversee regulation of contact centres. That deals with Jamie Greene’s point.
I am sympathetic to the arguments on confidentiality that Liam Kerr and others made. As members would acknowledge, that involves the need to balance competing rights. That said, I am considering lodging an amendment at stage 2 so that, in cases under section 11 of the 1995 act, in which the court is considering whether to disclose confidential documents, the welfare of the child who provided the documents would be a primary consideration.
Margaret Mitchell raised the timing of the Government’s response to the Care Inspectorate’s feasibility study. I will endeavour to prepare a detailed response to the Justice Committee in advance of stage 2. However, I point out that in order to do so we are having to work with the Care Inspectorate, which of course is currently very taken up with the response to Covid-19. If there is further delay in the response process, I will let the committee know forthwith.
Grandparents’ rights came up repeatedly, from members across the chamber.
I want to ask this question to ensure that it can be addressed before we run out of time. However, I appreciate that the point about grandparents’ rights is also very important.
In my speech I asked members for reasons why I should revise my preliminary view that section 16 might not be needed. Bob Doris took me up on that and spoke about the issue extremely persuasively and powerfully. Will the minister take this opportunity to encourage those who expressed the opposite view to the committee to respond to that evidence before stage 2 if they remain unpersuaded?
I will. I will come on to address section 16 in a moment, because it has been raised several times during the debate.
A number of members—among them Margaret Mitchell, Fulton MacGregor and Kenny Gibson—asked me to explain a bit more how I intend to promote further the charter for grandchildren. One of the actions of the family justice modernisation strategy will be promotion of that charter. A key aim of the strategy is to ensure that bodies such as local authorities, Social Work Scotland and organisations that represent family lawyers are fully aware of it. I will write to those key bodies to draw their attention to the charter.
I also intend, if the bill is passed, to issue circulars on implementing the legislation and on related matters. The Government will ensure that one such circular will specifically cover the charter. I will also ensure that information on the charter is made more prominent on the Scottish Government’s mygov.scot website, and on associated platforms. Furthermore, I commit to engaging with key stakeholders—including Grandparents Apart, which I have met previously, but would be happy to meet again—to discuss steps that they think the Government could take to raise awareness even further.
I turn to section 16, on non-compliance with court orders, which Liam Kerr has just raised and was mentioned earlier by a number of members. From the consultation’s events and the responses that were received through it, I am aware that that is a very complex area, as, I am sure, all members accept. We have heard concerns from resident parents that they are not complying with orders because of fears about children’s safety. Some non-resident parents have raised concerns that resident parents are deliberately not complying with court orders, but without good reason. I am also aware that the judiciary is already investigating non-compliance in some cases. The bill’s provisions are therefore extremely important, because they will create consistency across Scotland on that significant issue. They will ensure that in every case in which non-compliance with an order is raised, it will be investigated, either by the court or by a child welfare reporter. The bill will also ensure that the child’s views will be sought during that process. I hope that everyone in the chamber would agree that that is progress.
In conclusion, I say that throughout the development of the bill, in the conversations that I have had with children who have been through the family court system, their descriptions of what had happened to them, how it had impacted on their lives and how they felt the system had let them down, stayed with me: they affected me very deeply. The experiences of those children have guided me, so I wanted the bill to put the voice of the child at the very heart of the process.
I wanted the bill to better protect victims of domestic abuse and their families. I wanted more information on what should be expected to be available. I wanted important decisions to be communicated in simple language to the children involved. I wanted children’s welfare to be paramount. I also wanted consistency to reach across the whole of Scotland, so that a child in Galashiels could expect exactly the same as a child in Inverness. I hope that Parliament will agree that I have achieved those aims.
One girl told me:
“I have a voice, and I want to have a say in the decisions that affect my life, but no one is listening to me.”
The bill aims to change that. If it is passed at stage 1 this evening, it will be setting out to ensure that the experiences that were shared with me by those children will not be the experience of a new generation of young people going through the family court system.
Presiding Officer, I commend the motion to Parliament.
That concludes the stage 1 debate on the Children (Scotland) Bill.