Chamber and committees

I do not believe that it is incorrect. I think that we are agreeing to disagree here.

I would just say, in all honesty, that something unexpected could happen. I am talking about one example and one situation here—this will happen on a case-by-case basis, and every situation will be different. The chair might make that decision initially, but that does not mean that difficulties will not arise in the hearing that follows, based on that decision. Therefore, I do not think that it would be right to allow such decisions to be made.

Mr Kerr referred to open justice and the Scottish courts in his opening for the amendment. Yet again, I reiterate that the children’s hearings system is not a mini-court system. It is based on the welfare of the child and the outcome that would best rehabilitate that child. I am sorry, but I do not agree with the premise that what Mr Kerr is looking for would be congruent with those aims.

Children’s hearings must be conducted in accordance with article 8 of the ECHR, which requires respect for private and family life. That is why attendance should be restricted to those persons whose presence is necessary for the proper consideration of the case.

Furthermore, the UNCRC, which is supported by all parties, places obligations on children’s hearings to uphold every child’s right to privacy and says that

“No child shall be subjected to arbitrary or unlawful interference”

with their private and family life. Allowing any member of the public to attend a hearing, with no justification, would be a regression in children’s rights and would potentially be incompatible with them.

Amendment 179 fails to consider the fundamental differences between the approach of the children’s hearings system and the approach that is taken by the criminal justice system, as I have just outlined. Amendment 179 does not take account of the fact that the majority of hearings deal with highly sensitive care and protection cases, often for very young, vulnerable children. They are not simply juvenile courts dealing with young offenders.

On the basis that such an approach would disregard the child’s wellbeing, rights and best interests, as reflected in the legislation as it currently stands, I cannot support amendment 179. I ask Mr Kerr not to press the amendment to a vote, but, if he does, I strongly urge the committee to reject it.

No. We have set out our intended aim with the amendments. I think that I have spoken to that perfectly well and have explained the premise behind them. If there was any danger of that being the case, I would not be taking forward the amendments in their current form. So, no, I do not have any such concerns.

I ask members to support amendment 16 and the other amendments in the group.

I move amendment 16.

As we have heard, amendment 186 would make children’s legal aid automatically available to every child who is subject to a children’s hearing that is fixed by the children’s reporter, including all deferred hearings, irrespective of the grounds of referral. I can see that the intention behind it is to ensure that there is legal representation when it is needed and appropriate. However, that is already in place. Amendment 186 risks bringing an overly adversarial approach into the system when we have a successful national advocacy scheme, and advocates can also draw on legal advice where that is needed.

According to the Scottish Children’s Reporter Administration’s annual report, 22,341 children’s hearings took place in the year 2022-23. The operational effect of the amendment would be to require the SCRA to notify the Scottish Legal Aid Board of every hearing. SLAB would then, in turn, have to arrange for a duty solicitor to be made available to every subject child, assuming that the subject child did not already have a solicitor of choice. To establish whether every subject child already had a solicitor for every hearing taking place under the Children’s Hearings (Scotland) Act 2011 would be a logistical impossibility given the number of hearings, and it is simply unnecessary.

I absolutely agree that, if there are issues, they need to be looked at. I would certainly be happy to look into that, especially given the further work that will be done in relation to the “Hearings for Children” report. I also agree with the member that the blanket approach is not necessarily the best way forward but, if there are children falling through those gaps, that needs to be looked at.

The use of language in proceedings concerning children has been highlighted as an area that is due for modernisation. That is why the Government has proposed the amendments in this group. They do not seek to change the fundamental nature of the tests to which they apply, but to more accurately reflect what considerations should be taken into account in respect of a child’s welfare.

The new terminology of “health, safety and development” will be more readily understood by children and young people in the hearings system, rather than the previous language, which talks about “risk to moral welfare”, which is outdated and harks back to a different time.

Amendment 7 seeks to update the language of risks to welfare, including moral welfare, to that of risks to a child’s health, safety and development when referring to the test of whether a compulsory supervision order should include a movement restriction condition.

Amendment 8 proposes to make a similar change in respect of a compulsory supervision order containing a secure accommodation authorisation.

Amendment 9 does likewise in relation to medical examination orders by a children’s hearing in respect of a child.

Amendment 10 will achieve a similar outcome with reference to the test for a warrant to secure attendance in respect of a child.

Finally, for consistency, amendment 114 amends other provisions of the Children’s Hearings (Scotland) Act 2011, concerning whether or not a child should be excused from attending a children’s hearing or a court hearing to consider grounds of referral.

I move amendment 7.

Amendment 7 agreed to.

Amendment 174 not moved.

Thank you, convener. Prisons are not places for children, and we are committed to keeping them out of prison through provisions in the bill that end the placement of under-18s in young offenders institutions. The amendments in this group run contrary to that by retaining the use of young offenders institutions for children aged 16 and 17, and, indeed, extend that position to all those aged 16 to 18. They would also go against our commitment to keep the Promise, which stated:

“Scotland must recognise that 16 and 17 year olds are children in line with the UNCRC and must be accommodated within Secure Care rather than within Young Offenders Institutes and the prison estate. This must include children who are on remand and those who have been sentenced.”

It also stated that

“Young Offenders Institutions are not appropriate places for children and only serve to perpetuate the pain that many of them have experienced”,

and the incorporation of the UNCRC reinforces that position.

I appreciate that Ms McCall will not press or move her amendments. It would have been more productive for her to come to me with her concerns about the provision of secure care and those other areas, so that we could have discussed them ahead of stage 2. However, I am willing to have those discussions as we move forward.

There has been cross-party support in the Parliament for keeping the Promise and the incorporation of the UNCRC. Support for a progressive approach to children’s rights was evidenced by many of the consultation responses on the bill and during stage 1 evidence. That was echoed in the committee’s stage 1 report, which supported ending the use of YOIs for under-18s.

There is a view, shared by stakeholders including HM Chief Inspector of Prisons for Scotland, the Children and Young People’s Centre for Justice and the office of the Children and Young People’s Commissioner for Scotland, regarding the need for urgency in bringing about the legislative changes necessary to end the imprisonment of children in Scotland.

On the detail of the amendments, amendment 11 would add to the powers of a children’s hearing on reviewing an order under section 138 of the Children’s Hearings (Scotland) Act 2011 to enable certain children to be moved from secure accommodation to a YOI. The amendment conflates aspects of the children’s hearings system and the criminal justice system by providing that some children could be referred by a children’s hearing for detention in a YOI.

As we have already discussed, the children’s hearings system is a welfare-based tribunal rather than a court, and a children’s hearing cannot determine that a child should be placed in a YOI. That can be a decision only for a court. In addition, a child referred to a hearing on offence grounds and placed in secure accommodation might be placed there without offence grounds having been established at court.

Amendment 11 also includes that, where a children’s hearing considers that it would be appropriate for the child to be transferred from secure accommodation to a YOI, it must refer the matter to the Scottish ministers. The Scottish ministers have powers to direct the place and conditions only for children who have been convicted on indictment in a court of law and where they have been sentenced to detention by the court. The Scottish ministers do not have authority to direct the placement of any other child.

Amendment 93 would provide that, where a child aged over 16 years has been charged with or convicted of an offence on indictment, the courts would be compelled to commit them to a YOI. That removes the option that a 16 to 18-year-old who has been charged with or convicted of an offence on indictment and remanded could be detained in secure accommodation, should the court require a suitable place of safety chosen by the local authority, and would provide that they can be detained only in a YOI.

Amendments 94, 96 and 102 would extend existing regulation-making powers to provide the circumstances in which children can be transferred to YOIs at the age of 16. That would include children who are convicted and sentenced to detention under summary procedure, but it is not possible for a child to be sentenced to detention in a YOI in summary proceedings.

Amendments 98 and 100 would make provision compelling the Scottish ministers to direct that a sentenced child is detained in a YOI. As I have said, the Scottish ministers currently have the power to direct the place and conditions of detention of children under the age of 16, those between 16 and 18 who are subject to a compulsory supervision order, where convicted on indictment and sentenced to detention, and under-18s who are convicted of murder. Where practicable and appropriate, that will be in secure accommodation. However, the option of secure accommodation would be removed by the amendments, meaning that, as I have outlined, the amendments are regressive from the situation at present and would remove the option of secure accommodation for some children.

The amendments would undoubtedly be a backward step, turning on its head years of progress in Scotland’s approach to youth justice. As I said, I am glad that Ms McCall is not pressing or moving her amendments. On her other concerns, I would be happy to have a discussion with her ahead of stage 3. I ask Ms McCall not to press or move her amendments. If they are pressed and moved, I strongly urge the committee not to reject them—I mean to reject them.

I thank the member for the intervention. I am highlighting some relevant examples, but I have already made it clear that, because of the way in which the amendment is worded, it is not workable. There is too much ambiguity.

Recognising that all children must be treated differently while still ensuring fair treatment and the upholding of their rights is essential to a child-centred, tailored experience that supports children of different ages in the right ways. I believe that that is what the member intended. I hope that I have served some reassurance that current law and practice is sufficient to achieve that already. Decision makers are trained in equalities, discrimination and rights as part of their extensive practice requirements.

In any event, amendment 167 potentially raises legislative competence issues, given that it relates to the reserved matter of equal opportunities and may impermissibly modify the Equality Act 2010. For all those reasons, I cannot support amendment 167.

On amendment 166, members will be aware that the recent “Hearings for Children” report included a recommendation to commence section 3 of the Children (Scotland) Act 2020 and that the Government accepted that recommendation without qualification. Although there have been obstacles to its implementation, I am advised that a request to consider what is required in court rules is now with the rules council in relation to UNCRC incorporation. That will remove a key barrier to the implementation of the provision in the 2020 act. In essence, the requirements envisioned by section 3 will become an obligation under the UNCRC.

In practical terms, the provision covers the good practice that is already well established in the children’s hearings system, and discussions have taken place with the system about formalising its training and resourcing requirements. It was essential that the Government was able to do that preparatory work to ensure that the responsible agencies are ready.

I hope that that assures the member and the committee that that work is being expedited. Our intention is to commence the section within the timescales that are set out in amendment 166. I am happy to provide Parliament and the committee with an update on progress ahead of stage 3, if that would be desirable.

I am, therefore, opposed to amendment 166. I do not think that it would be helpful or necessary for us to tie in the commencement of an entirely separate piece of legislation in that manner. By tying the duty to commence section 3 of the 2020 act to royal assent for this bill, the amendment would probably be unworkable in practice.

I appreciate the intention of amendment 170, but we must be clear that all children who are referred to the children’s reporter are, in some way or other, vulnerable and that it is unhelpful to attempt a definition in this way. Taking into account the whole circumstances of a child’s life is at the heart of the welfare-based approach adopted by the system. By labelling some children as inherently vulnerable by virtue of certain characteristics, we risk creating a two-tier approach. Amendment 170 risks minimising consideration of other factors that might make a child vulnerable while legislating for certain characteristics that may not.

Furthermore, the amendment does not take account of the fact that children’s hearings in the courts are decision-making forums. It is not their role to provide support services—that is the responsibility of public authorities. When particular on-going support services are required, panel members may make a compulsory supervision order that requires that others provide those services to the child, but that is a decision for the panel as an independent tribunal. The amendment would cut across that independence by enforcing provision of enhanced support to certain children, whether or not it was deemed necessary.

When additional support is required to enable a child to attend and effectively participate in their hearing, the Scottish Children’s Reporters Administration enables that support to be in place. For example, the SCRA has a network of neurodiversity champions working across all front-line localities. Members of the network are available to assist staff in ensuring that arrangements for hearings in court are tailored to suit individual needs, and they can arrange for translation and interpretation services when those are required. All children’s reporters receive training on domestic abuse, which is delivered in conjunction with Scottish Women’s Aid, and the SCRA is in the process of training all staff in trauma-informed practice.

It should also be noted that, in 2020, the Scottish Government introduced independent advocacy services that are available to any child who needs to attend a hearing. Advocacy workers can enable a child’s effective participation in a hearing and ensure that their views are communicated to decision makers. Although it is not the role of the hearing to provide support services, I understand the sentiment behind the amendment. Again, if Mr Whitfield does not move amendment 170, I am more than happy to engage with him on the matter ahead of stage 3.

The children’s hearing would not be the first point of contact for services for somebody who is in trouble or who is experiencing that situation. That would be others, whether it was social work or the local authority. As with the comments that I made on amendment 170, it is just not the role of the principal reporter to assign someone to those services. Instead, the key requirement is to ensure that appropriate support services are available and accessible, and, as I said, that is not necessarily within the gift of the principal reporter. It is also unclear how we would define specialist services or the consistency of provision required. I therefore ask the committee not to support amendment 172.

This is another quite lengthy group, so my speaking notes are again quite lengthy.

Since its inception, the children’s hearings system has been a welfare-based system focused on the needs of the referred child, not a criminal justice system. Any children referred to it are referred for the sole purpose of considering the necessity of compulsory state intervention in their lives to safeguard and promote their welfare throughout their childhood.

Section 1 of the bill will enable the children’s hearings system to consider the needs of any child under 18 who is referred to it. The changes under that section, which ensure consistency of approach for all children up to the age of 18, do not require any additional direction to members of the hearings system on how to make decisions. The specifics of what measures are put on a child’s compulsory order can continue to be tailored to the particular circumstances of the child.

In relation to Roz McCall’s amendment 2, the hearings system is generally focused on the welfare of the referred child. In the majority of cases, their welfare is the paramount consideration. However, section 26 of the Children’s Hearings (Scotland) Act 2011 already recognises that, in some cases, the child’s welfare has to be considered alongside other factors, specifically when a decision is necessary to protect members of the public from serious harm.

I consider that the existing law already strikes the right balance to enable a hearing to make appropriate decisions to support both the referred child and the wider public. I do not support Ms McCall’s amendment 2, which would have the effect of lowering the threshold in some cases and would, therefore, tip the balance too far from the referred child and, indeed, be in conflict with the existing tests that are carefully designed to protect members of the public.

Although disposals in such a welfare-based system are interventions with consequences for a child’s life, they are not punitive in the manner of the criminal justice system. It would be of great concern if the hearings system evolved into a criminal justice system for children. Therefore, I believe that I must resist amendments that diminish the decision-making focus on the needs of the child who has been referred.

I turn to amendments 168 and 184, regarding the views of victims in relation to children’s hearings decisions. Those amendments appear to place victim impact-type measures in the children’s hearings system and fundamentally misconstrue its welfare-based approach.

We must remember that the Lord Advocate retains responsibility for prosecutorial decisions. Any child who is referred to a hearing on offence grounds will have undergone a process in line with the Lord Advocate’s guidelines and prosecution policy. Therefore, there will already have been consideration of whether the child’s offending merits a prosecutorial or welfare-based approach. It would not be appropriate for a hearing to be required to gather the views of victims in that way and to take that into account in making the decision.

The hearing’s focus must be through the lens of considering what compulsory measures are necessary to safeguard and promote the referred child’s welfare. In so doing, it can include any measure that is necessary to prevent the child from causing harm to others.