Chamber and committees

Sorry, convener—I will just finish if I can.

I have made it clear that I am more than happy to work with the committee and other members on the issue and that I am open to considering further legislative opportunities for the matter to be addressed. That is not to say that stage 3 of this bill is not the place to do that; I am simply saying that there are options to consider in that regard.

I am happy to.

I would be grateful, convener.

The judiciary’s response to the consultation is already publicly available, but I am more than happy to share it after the meeting. As for the comments about the balancing of rights and the words “welfare and rights” not being included, I would point out that the rights of the child are currently enshrined in the ECHR and the UNCRC—and I know that the member is aware of that—but the courts have a duty to act on those and I am confident that that is what they will do. It will be for the courts to look on a case-by-case basis at these cases, acting on their responsibilities under the UNCRC and the ECHR.

Yes.

My thoughts about that go back to the idea that the victim impact statement challenges the whole ethos of the children’s hearings system. I really do not think that I can be any clearer about that.

I thank Ms McCall for her explanation of her amendments.

The remittal of a child’s case to the hearings system provides the opportunity for them to be afforded more age-and-stage-appropriate, welfare-based and holistic support to meet their needs. In the consultation on the bill, the majority of respondents supported further exploration of the proposal to enable all children under the age of 18 to be remitted from a court to the principal reporter. The rationale was that it would lead to improved outcomes for children in recognition of the trauma, abuse and other adversities experienced by so many children who are in conflict with the law.

Respondents also recognised that reform in this area would allow the rehabilitative potential of the children’s hearings system to be maximised. Fundamentally, amendments 85 to 88 would remove the ability of 16 and 17-year-olds in solemn proceedings to have their case remitted to the PR to arrange for the disposal of the case by a children’s hearing. I understand that Ms McCall intends to withdraw or not move those amendments.

Turning to Russell Findlay’s amendment 206, I note that there are parallels with amendments debated last week that sought to take and have regard to views of the person who has been affected by the child’s offence or behaviour in the children’s hearings system. I note in particular that amendment 168 was not supported in the vote of the committee. I do not believe that amendment 206 is appropriate.

The legislative framework for victim impact statements, which concerns the criminal justice system, provides that they can be made in certain courts and in relation to certain prescribed offences only. In cases in which it would be possible for such a statement to be provided, as we have heard, the statement might have already been received and considered by the court ahead of the case being remitted.

Amendment 206 does not specify which offences it is intended to apply to. If it is all offences, it would go even wider than the existing measures in the criminal justice system. In addition, the purpose of victim impact statements is to inform sentencing and, as the committee is aware, remittal to the children’s hearings system does not constitute a sentence, and nor does the hearing impose a sentence.

I could certainly explore that. The impact of the child’s behaviour on a victim is currently a consideration in the hearings system. As the member noted, as the amendment is currently drafted, the victim impact statement risks disproportionately influencing panel members’ decision making. As we have said, the central plank of the hearings system is that decisions are taken in the best interests of the referred child. However, I could certainly explore that more.

Last week, I spoke about not turning hearings into a mini-court setting. We must be careful not to transform the ethos of the hearings system. The children’s panel must consider which compulsory measures are necessary to safeguard and promote the welfare of the referred child and, in so doing, prevent the child from causing further harm to others. The impact of behaviour on victims can already be taken into account.

Amendments 89 and 91—

Of course.

Because, as I said, the impact on the victim is already taken into consideration and because I believe that the option to have a victim impact statement in the setting of a children’s hearing is not necessarily in keeping with the ethos of the hearings system. I have made that quite clear.

Mr Kerr asked about types of cases. The type of case is not exactly specified.

I have not finished talking about my amendments, convener. I was just dealing with interventions.

On amendments 89 and 91, the Scottish Government is absolutely committed to tackling domestic abuse. Our approach to the bill has been to ensure that children who are in conflict with the law can access the age-appropriate hearings system where possible, in line with children’s rights.

The remittal framework in the bill covers specific instances in which courts have levers that are not replicated in the hearings system. At stage 1, we listened to testimony from victims organisations. The point has been made that enabling more 16 and 17-year-olds to access the hearings system may mean that, because people in that age group are more likely to be in a relationship, that brings into consideration possible offending around domestic abuse. The Lord Advocate’s guidelines will, however, determine the cases that can be referred, and the procurator fiscal will obviously retain the discretion to prosecute. The joint referral framework and guidelines will be updated and published after the bill is passed, as they would be following any act of Parliament.

Amendments 89 and 91 will enable courts to make a non-harassment order when the court is satisfied, on a balance of probabilities, that it is appropriate to do so to prevent a victim from harassment or, when the child has been convicted of an offence under domestic abuse legislation, to protect the victim of that offence, and to thereafter be able to remit the case for disposal at a children’s hearing if that is considered appropriate.

Remittal in that case would not affect the non-harassment order, which would remain in place—for example, breach of a non-harassment order would still be a criminal offence that would be dealt with by the court. The briefing to the committee from the Children and Young People’s Commissioner Scotland stated:

“Our view is that this will ensure that the child receives the support they need to comply with the NHO and will therefore strengthen protections for victims.”