Chamber and committees

The Scottish Government is clear in its commitment to keep the Promise. We have made good progress but, of course, we can always go further. Action is under way across ministerial portfolios, including progress to stage 3 of the Children (Care and Justice) (Scotland) Bill, engagement on our commitment to a £2,000 care leaver payment, and investment in prevention through whole family wellbeing.

In the past year, I have seen many great examples of transformational activity across Scotland in education, justice and children’s services. I have been clear that, where it is required, I want to see that best practice shared and replicated across Scotland.

The Scottish Government will publish a review of our Promise implementation plan this spring to update on the actions and commitments that are under way.

I thank the member for that question. Equally, I am thankful for the Who Cares? Scotland report, which highlights the areas where further work is required.

We are determined to drive forward the transformational change that is required to keep the Promise. I fully believe that the actions that the Government has taken, is taking and will take will help us to achieve that.

As well as the areas that I have already mentioned, and specifically in relation to Mr Whitfield’s points, we are seeing clear progress across a number of areas, such as an increase in the number of virtual headteachers across Scotland, which is a model that is showing real progress in reducing exclusions. We have also seen the publication of the hearings system working group’s redesign report “Hearings for Children” and I am sure that the member will be aware of the Government’s response to that. We have also seen progress on data. I am willing to discuss any areas of concern with the member.

I mentioned that I had met David Johnston MP. When I raised the issues with him, there was certainly an understanding of the capacity issues. I have said that I want to work alongside his Government, rather than forcing its hand. For the benefit of all children and young people, this is about working together to get an appropriate solution.

We are talking about exceptional circumstances, but I have said at every point that this is about what is best for the child. If a child in England needs to be deprived of their liberty and placed in a secure care setting but there is no capacity in England and it would be best for them to be placed in Scotland, that is absolutely what must happen. I have been clear at every point that that applies as long as it is best for the child.

As for the larger capacity issues, I had a helpful meeting with David Johnston, as I said. Officials have continued the conversations, and I look forward to having a plan in place for how we will work together to tackle the issue in the long run.

I will bring in officials shortly. I absolutely agree with Willie Rennie’s points. I want the offer to be taken up for as many two-year-olds as possible.

Last year was the first year that we could rely on accurate data. As Mr Rennie has pointed out, there was a decline in take-up, which is disappointing. However, a range of work is under way to encourage and increase take-up. A series of webinars have been held with local authorities to support them to access the data and make best use of it. Webinars have been held with the Improvement Service and the Village on access to funded ELC for two-year-olds with a care-experienced parent. In addition, through the Improvement Service, we are offering one-to-one support to local authorities that want to work on maximising the uptake of those funded hours.

I absolutely agree with Mr Rennie’s point about the variation. Take-up varies from 30 per cent to up to 90 per cent. I would like to understand that variation a little bit more. Obviously, it is still relatively early days as regards our having that data. I want to look into that more as we move forward, to encourage uptake and ensure that that provision is taken up.

Mr Marra will remember discussions about the Scottish Government’s policy to fund beds in secure care. The number of children who are being placed in cross-border secure care has reduced from 30 last year to 12. The payment for secure care beds has helped to support that, and it is reducing dependency on cross-border placements.

The whole way along, I have been clear that decisions in relation to the bill will be monitored. Officials are in regular discussions with secure care providers. If sustainability is becoming a concern, the policy will certainly be considered. However, as I said, the policy to support beds in secure care centres has massively reduced that dependency.

As I have stated, we sought advice on each of the bill’s provisions and on the amendments.

I will respond in due course—absolutely—but I am sure that the committee will be aware that my focus has been on the next stage of proceedings. Those matters were discussed at a previous session of the stage 2 proceedings. I am happy to consider that response at a later date, but, at the moment, I am looking at the issues in hand and the amendments in front of me.

A projected number of panel members is hoped to be in place, just as there is a projected number of hearings that could take place. However, I do not feel that it is necessary to prescribe those matters on a fixed basis. Tying the commencement of the bill to that is not necessary, given the on-going engagement with the relevant bodies such as Children’s Hearings Scotland and its efforts to increase the numbers of panel members. Equally, other issues are being considered in relation to the redesign of the children’s hearings system, including in relation to the panel and panel members.

There are changes that could take place and other things to be considered, so I would not want to tie the bill’s commencement to reaching specific numbers of panel members. However, to give assurance to the committee, my officials and I will keep up regular meetings with Children’s Hearings Scotland. I would not agree to commencement if I felt that the system was essentially not ready.

Under the Looked After Children (Scotland) Regulations 2009, there is an obligation on local authorities to assess children’s needs and prepare a child’s plan to meet them. I hear concerns from the committee that that is not always happening, and I have already made a commitment to investigate or consider that further. I am sure that members will understand that I cannot commit to lodging an amendment at this time, but I am happy to consider that further.

On amendment 160, steps may be taken by a variety of people to reduce the need for and the duration of a child’s placement in secure accommodation. In line with obligations under the European convention on human rights and the United Nations Convention on the Rights of the Child, that will be the case for all children, not just those with learning difficulties or disabilities and complex needs.

Local authorities are not always responsible for the decision to place a child in secure accommodation. They will be involved in the child’s case but, for children who are placed in secure accommodation through the courts, they will have a limited role in the decision making or the duration of the placement. Imposing a duty on them to explain how they have tried to avoid or minimise the use of secure accommodation, therefore, does not necessarily seem appropriate.

I agree with the need to collect data, as is outlined in amendment 161, but I do not think that it is necessary to go as far as the amendment proposes. All local authorities currently collect data on the number of children who are in secure accommodation; that is published annually as part of the children’s social work statistics. As there are only four secure accommodation centres in Scotland, with a relatively small number of children in them, the more specific that published data becomes, the higher the likelihood is that individual children could be identified. Publishing information at the level of specificity that is outlined in Mr Briggs’s amendment could lead us into that territory, which would not necessarily be lawful under the general data protection regulation and would breach the child’s right to private life under article 8 of the ECHR. However, I appreciate the thinking behind the amendment, and, if there are areas that could be progressed without leading to a breach of data protection or the identification of a child, I would be happy to consider that further.

In summary, I invite members to support amendments 110 and 111, and I urge Roz McCall, Sue Webber, Miles Briggs and Martin Whitfield not to press or move their amendments in the group. If they do so, I urge the committee to reject those amendments.

The bill enables the Scottish ministers to further regulate cross-border placements in Scotland of children and young people from other parts of the United Kingdom in a way that reflects our key policy principle, which is that such placements should occur only in exceptional circumstances and that, when they do, the child’s safety and wellbeing and the upholding of their rights must be paramount.

My amendments 112 and 113 will ensure that ministers have the powers that they need to robustly regulate cross-border placements when they need to occur. We know from recent evidence gathering that cross-border placements are being made in Scotland from other UK jurisdictions and that they are legally underpinned by a variety of court orders. We also know from our evidence gathering that, at present, about a quarter of all cross-border placements in Scotland are done through a route where there are legislative provisions to allow them to happen, but they are not underpinned by a court order from the relevant jurisdiction—for example, in a case of a child being placed in the care of a relevant local authority and accommodated through a voluntary arrangement.

The powers that are available to ministers in the bill as drafted extend only to regulating cross-border placements that are underpinned by a non-Scottish court order, but, given the proportion of placements that occur through alternative routes, it is vital that we recognise all cross-border placements in Scotland, whether they are made via a court order or other legislative provisions.

Amendments 112 and 113 will ensure that all cross-border placements with a legal basis in the home jurisdiction can be effectively regulated here. In particular, they will allow ministers to impose appropriate conditions on the placing of children in Scotland, to establish a process for monitoring adherence to those conditions, and to set out consequences in law if they are not adhered to. That will help to safeguard the wellbeing of placed children and to uphold their rights throughout the duration of their placement. I consider the amendments to be essential in building a regulatory framework that is fit for purpose and that will enable ministers to proactively manage known and emerging or evolving risks regarding cross-border placements.

It is clear that, without the additional powers to legally recognise and properly regulate such placements, the best interests of placed children would be at risk of becoming secondary to financial and capacity challenges being managed by placing authorities, which we know have been a cause for concern, particularly in England. That would inevitably have a detrimental impact on the rights and welfare of children and young people and on the quality of care that they receive while on placement.

I recognise that there is a degree of overlap between the amended power under section 190 of the Children’s Hearings (Scotland) Act 2011 and the power in proposed new section 33A of the Children (Scotland) Act 1995. However, that is appropriate given the complexity involved in cross-border placements and the number of different legal routes by which a child may be placed here. Having tailor-made powers on the statute book will provide the flexibility that is needed to regulate all lawful placements in Scotland effectively and to safeguard and promote the welfare of all placed children.

Before I address Mr Marra’s amendments, I highlight that I am very conscious that I have not had a discussion with Mr Marra on some of the issues. I am aware that Mr Marra raised some concerns at stage 1, and I would very much like to meet him to discuss whether he feels that any areas still need to be addressed following the Government’s amendments.

I also highlight to the committee that, in December, I had a very productive meeting with David Johnston MP, the Minister for Children, Families and Wellbeing, at which we committed to collaborative working on cross-border placements.

I turn to Mr Marra’s amendments. Amendment 214 would enable ministers to provide in regulations that a non-Scottish order underpinning a cross-border placement may have effect only if it is in the best interests of the child. I think that we would all agree that the placing of a child or young person in Scotland on a cross-border placement should be done with their best interests at heart. However, the Scottish ministers have no locus to interfere with the decision-making process of a court in another jurisdiction. The making of a court order in England, Wales or Northern Ireland will include due consideration of whether that placement is in the child’s best interests. That is appropriately a matter for, and a decision to be made by, the relevant court.

The key to securing the best interests of the child in such a placement is to ensure that any such decision is made only following an appropriate planning and assessment process. Of course, the child or young person should be fully involved in that process. I understand that that is already provided for through existing care planning legislation elsewhere in the UK, and Scottish Government officials are working with their counterparts in other Administrations to explore ways of bolstering those processes before, during and after placements in an effort to best support children.

Although the Scottish ministers cannot interfere with courts determining that a cross-border placement in Scotland is in the best interests of a child or young person, they can look to robustly regulate those placements where they occur. That is the purpose of the bill’s cross-border provisions and the Government amendments in this group, which I urge the committee to support. I am unable to support amendment 214.

Amendment 215 seeks to strengthen the rights of children from other UK jurisdictions to access the services that best meet their needs and to ensure that they are appropriately supported. Although I appreciate the sentiment here, the amendment is not clear on a number of fronts. First, it is unclear how ministers should ensure that a child receives “appropriate support”, and it is unclear what that support should entail for a child.

In addition, the amendment does not define what is meant by “a non-Scottish order”. That term is defined in section 190 of the Children’s Hearings (Scotland) Act 2011, but, even if we assume that that is what is meant, the amendment is still unworkable. It would appear to mean that the Scottish ministers would have a duty to ensure that any child who was subject to an order made by a court in England and Wales or Northern Ireland had access to appropriate support on the range of matters mentioned, regardless of whether they were on a cross-border placement in Scotland. As the committee will be aware, the competence of this Parliament extends only to the conferring of functions that are exercisable in or as regards Scotland, and amendment 215 would appear to go further than that.

Legislation already exists whereby, in certain circumstances and with the agreement of the receiving local authority, children and young people from England, Wales and Northern Ireland can be placed in Scotland on a permanent basis. In such instances, the child will be—in layperson’s terms—“brought into the Scottish system” and a Scottish local authority will assume the responsibility for that child’s needs in relation to matters such as education and health. Amendment 215 would risk interfering with the local authority’s role in that regard.

However, the Government is clear on roles and responsibilities relating to cross-border placements that are intended to be temporary and that arise due to issues with capacity in the care system elsewhere in the UK, such as issues relating to deprivation of liberty orders, which have caused us all a great deal of concern in recent times. I am strongly of the view that, in such cases, the provision of services to the child ought to sit with, and best sits with, the placing authority, which knows the child, is responsible for their care planning and will, ultimately, maintain a relationship with the child when they cease their placement in Scotland.

I think that we would all agree that we would not wish to take any action that could have the unintended effect of incentivising cross-border placements, given our position that such a placement should only ever be made in exceptional circumstances and when it is in the best interests of the child. For those reasons, I am unable to support amendment 215.

In relation to amendment 216, it is unclear what the proposed cross-border placement plan should cover, beyond the illustrations that the amendment provides, which relate to information sharing about children’s needs and measures that secure accommodation providers would take to support them.

Cross-border placements into secure accommodation are primarily a matter for the placing local authority and the independent secure accommodation provider. There are already clear expectations and frameworks for such placements, and, as I have mentioned, the Scottish Government is working with other UK Administrations to consider how existing regulation and practice can be optimised to improve experiences for children.

Regarding the enhanced powers conferred by the bill, if passed, to better regulate and manage cross-border placements, I anticipate that arrangements for information sharing will be set out in those regulations, so requiring that to be set out in a report could result in unnecessary duplication.

Further, the amendment proceeds on the basis that ministers should report on the measures that secure accommodation services are taking to support the specific needs of children on cross-border placements there. Although I agree that those needs should be met, the role of meeting a child’s needs should, in most cases, remain with the local authority that has placed the child into Scotland.

It would also seem inappropriate for ministers to report on practices within secure accommodation provision when there is an established approval, registration and inspection regime in operation. Such existing oversight ensures that secure accommodation services operate effectively in a way that upholds children’s rights and respects their needs.

Secure accommodation services in Scotland are approved by Scottish ministers and are then regulated and inspected by Social Care and Social Work Improvement Scotland—known as the Care Inspectorate—under the Public Services Reform (Scotland) Act 2010. The inspection process does not differentiate between the care of those children who are placed in secure accommodation in Scotland from outside of Scotland and the care of the other children who are placed there. Therefore, cross-border placements into secure accommodation are covered by the inspection process.

As I have mentioned, secure care pathways and standards were published in 2020 to set out what all children in, or on the edge of, secure care in Scotland should expect across the continuum of intensive supports and services. That includes children placed in Scotland from elsewhere.

It is also worth highlighting that section 24 of the bill further provides for additional standards and registration and regulatory requirements to be put in place specifically for those care services that accommodate cross-border placements, including secure accommodation services.

For the reasons outlined, I cannot support amendment 216.

On amendment 217, although I recognise the sentiment behind it, it would be rare for a child who is subject to a secure accommodation authorisation in a compulsory supervision order to be placed into secure accommodation outwith Scotland. Where a child is subject to a secure accommodation authorisation in a compulsory supervision order, it would be the decision of the chief social work officer of the child’s home local authority, in consultation with the head of the secure unit, whether that authorisation should be implemented.

The duties here are enshrined in regulations and supported by good practice guidance. Those include requirements that any placement must be appropriate to the child’s needs and that the child’s views must be taken into account. The Scottish ministers have no role in those placements. That is because the duties lie with the local authority that is responsible for the implementation of the relevant CSO. Therefore, I would not be able to support amendment 217. It would make Scottish ministers responsible for operational matters, where responsibilities of local authorities in relation to looked-after children are well established. It could interfere with those responsibilities and create confusion and unnecessary duplication, which could be to the detriment of the welfare of children who require secure care.

In summary, I ask members to support the Government amendments. I have made clear an offer to have further discussions with Mr Marra. I ask Mr Marra not to move amendments 214, 215, 216 and 217. If they are moved, I would ask the committee to reject them.

I move amendment 112.