Chamber and committees

I have set out how far the Government amendments go and I have agreed that there is scope for us to go further. It would be prudent for the member and I to discuss any areas of concern that he still has, such as those that he has just mentioned, ahead of stage 3. As I said, we can certainly look at that instead of pressing on with the amendments in their current form.

I say at the outset that I appreciate the intentions behind the amendments that have been lodged by Mr Whitfield and Ms Duncan-Glancy.

On the training of panel members, which is addressed in amendment 187 and is clearly an important area, measures have already been put in place by the national convener to ensure necessary and proportionate training. However, it is not clear why the particular subjects in this amendment would need to be legislated for above others in this way.

As Children’s Hearings Scotland is a listed public authority under section 15 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, it is required not only to comply with the UNCRC but to report on action that it has taken, or which it intends to take, to ensure compliance and

“secure better or further effect of the rights of children.”

Given that children’s rights training for panel members is already offered and will form an integral part of the reporting requirement, that aspect appears to have already been covered appropriately by other legislation.

Establishing a good understanding of child development is part of panel members’ existing training and can be a key consideration in how a child effectively participates in their hearing. However, the Children’s Hearings Scotland guidance that is issued to panel members states that

“Panel Members are not, and should not attempt to be seen as, child development specialists.”

Similarly, all panel members receive training on domestic abuse as part of their wider training on trauma. Panel members must know how to approach cases in which domestic abuse is one of the grounds of the referral but also those in which domestic abuse is intertwined with other issues that need to be addressed by a hearing. However, domestic abuse is one of many child welfare concerns that might come before a panel and will not be a relevant consideration in all cases.

Therefore, I am not clear why domestic abuse and child development would need to be specifically elevated in status under schedule 2 to the 2011 act. I am comfortable that they form a proportionate part of the comprehensive training that is already offered to panel members and that children’s rights training is appropriately covered by other legislative requirements. On that basis, I do not support amendment 187.

I probably will not be able to go into specifics on every amendment on which I give such a commitment today.

I have had extensive engagement with committee members between stages 1 and 2, and a lot of what they have raised with me has been formulated into the Government amendments that we have lodged. I hope that that emphasises my willingness to work with members and my willingness to listen to them, because, as I have said before, my priority is to get this right for Scotland’s children and young people. Although I cannot tell Pam Duncan-Glancy exactly what will be detailed in the discussions, I am willing to have them, and I am willing to have as many of them as needed until we get to a point at which it is workable.

Fundamentally, at the root of our position is the fact that the Conservatives’ amendments in this group would interfere with the constitutional independence of the Lord Advocate in relation to prosecutorial decision making. Just as the Parliament cannot undermine that, I, as a minister, cannot undermine that.

Members will be aware that, following the committee’s stage 1 report, in which a recommendation was made concerning the Lord Advocate’s prosecution guidelines, the Lord Advocate wrote to the committee, stating:

“It is a fundamental principle of Scots constitutional law that, as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate takes decisions independently of any other person.”

That same principle is being breached by the amendments in this group. Should the committee be minded to agree to them, it would seem very likely that similar representation would be made, and action needed by the Parliament, at stage 3.

I will come on to some of the difficulties around this, but I agree with a lot of what the member says about social media. There are gaps across a range of issues to do with social media. The issue that the member raises might need to be monitored and looked at in the future, as would other difficulties with social media.

I will move on. Amendment 16 increases the maximum penalties for a breach of a reporting restriction in relation to a children’s hearings case. It increases the maximum penalty on summary conviction to imprisonment for a term not exceeding 12 months—

Oh, I am sorry—I am repeating myself. I lost my place. Apologies for that.

Breaching reporting restrictions is an offence. Therefore, increasing the maximum penalties for breaching such restrictions recognises the severity of that and reflects stakeholders’ stage 1 evidence.

Amendments 43 and 84 also provide appropriate statutory defences for breaches of reporting restrictions. That is to avoid unfairly criminalising individuals or publishers for the sharing of already published information when they had no reason to know or suspect that the original publication was done unlawfully or did not know that it included relevant information.

Again, those concerns were raised by stakeholders at stage 1. The amendments reflect the realities of social media and bring greater consistency with existing children’s hearings legislation and provisions in other United Kingdom jurisdictions in respect of court proceedings. However, as I have already stated, Mr Whitfield, I think that we need to continue to monitor that.

Amendments 43 and 84 also clarify individual culpability where an organisation commits an offence for breaches of reporting restrictions pre-court and during and after court proceedings respectively. The provisions provide a further disincentive to committing the offence of breaching reporting restrictions.

Amendment 43 also has the effect that the Crown cannot be found criminally liable for the offence created by section 106BB(1). However, through the mechanism in subsection (2), any unlawful conduct on the part of Crown bodies can be declared unlawful by the Court of Session. That is consistent with existing legal provision and usual practice.

The changes also seek to bring greater consistency and reflect the proposals in the Victims, Witnesses, and Justice Reform (Scotland) Bill that is progressing through Parliament, noting the committee’s comments in the stage 1 report regarding alignment between provisions in the two bills as well as with penalties under contempt of court legislation. The changes are also important because the bill provisions will also apply to a broader range of potential publishers, including publishers that operate outside frameworks of professional regulation such as the editors’ code or Ofcom regulations.

Amendments 25 and 52 are consequential amendments.

I would be grateful if I could continue with my speaking note, because there is a lot of technical information in here. I am happy to answer any questions at the end.

Automatic provision of legal aid has been targeted to circumstances where hearings are convened in certain circumstances or proceed before a sheriff. Otherwise, a type of legal aid known as assistance by way of representation—ABWOR—is available for every child subject to a children’s hearing, subject to an application to SLAB that addresses a means and merits test.

As a child is unlikely to have any financial resources, the means test is nearly always met. Likewise, the merits test, which is one of “effective participation”, is also nearly always met. SLAB reports a high grant rate for ABWOR applications on behalf of children, at 99 per cent over the past 12 months. A child’s social worker or advocacy worker can assist the child with securing contact with a solicitor to make an application for ABWOR, and every child who is subject has a right to advocacy support.

It should be borne in mind that children’s hearings adopt a welfarist approach that aims to be non-adversarial in nature. Although a children’s panel takes legally binding decisions, it is not an appropriate forum for detailed legal argument and instead is centred around the needs of the child who has been referred to the hearing. It is therefore not expected or desirable that publicly funded legal representation be automatically available in every hearing, and nor would it necessarily be required.

Amendment 185 also seeks to extend the availability of automatic children’s legal aid to any occasion when a referral ground includes an offence allegedly being committed. Although I accept that it is narrower in scope than amendment 186, I am again concerned about the need for such a blanket provision when there is adequate scope under the current rules for children to have access to legal aid when required.

As I mentioned, ABWOR is already available for all hearings to the subject child, by way of application to SLAB, with a very high grant rate. Moreover, paragraph 28C(1)(d) of the Legal Aid (Scotland) Act 1986 already allows for automatic children’s legal aid to be provided for children’s hearings to which subsection 69(3) of the 2011 act applies. That is where a hearing is arranged by the children’s reporter in relation to a child who is being kept in a place of safety having allegedly committed a criminal offence.

The amendment would also result in automatic children’s legal aid for any hearing in which there was a minor offence as a ground of referral—there may be a number of grounds. It is understood that, last year, 2,637 children were referred to the reporter on offence grounds, although not all of those referrals will have resulted in hearings.

Operationally, the amendment would also result in a significant number of duty appointments being required to be put in place by SLAB, along with a knock-on effect for the solicitors currently on the duty list.

Am I able to get the time back, Presiding Officer?

As Mr Whitfield will be aware, the Promise bill will be introduced by the end of the current parliamentary session, and we will take all considerations on board.

The Promise oversight board recently wrote to the Minister for Housing and the Minister for Social Care, Mental Wellbeing and Sport in relation to homelessness and suicide prevention. We really appreciate the board’s feedback on those issues and the continued oversight, and I understand that the two ministers are responding respectfully to that.

Before coming to a conclusion, I pick up on the point that Rona Mackay raised about the definition of “care experienced”. We will undertake a consultation on the definition in spring 2024 to inform the Promise bill, which could be used to legislate to introduce a universal and inclusive definition.

I acknowledge the number of children and young people who are in care in Scotland. It is falling, which is positive news. It is up to all of us to continue our work to ensure that, where it is safe for them to do so, children and young people will stay with their families and that those families can access the support that they need at the right time and in the right way. For our young people who are transitioning out of care, we have a package of support available to help them into adulthood. For our care-experienced adults, we acknowledge across our services that being care experienced is lifelong.

I emphasise again that I will continue to listen to the voices of our care-experienced community in order to continue to progress change and ensure that we are getting it right. I thank Mr Whitfield for bringing this discussion to the chamber. I look forward to the opportunity to continue to work with him and, of course, all members as we continue our journey to deliver the change that is required.

14:15 On resuming—  

I thank members for the opportunity to close the debate and thank all members who have made considered contributions.

As has been noted, it is our ambition for all children to grow up loved, safe and respected and to reach their full potential. It is absolutely essential that we turn that ambition into a reality for all care-experienced children and young people across Scotland. It is reassuring to hear members come together in support of the ambition set out by the Promise. Although the Government absolutely must and will lead from the front, we will only achieve success if we work together to improve our policies, change how we deliver services and recognise, respect and respond to the needs of our care-experienced population. By working together, we can make transformational and sustainable change happen.

Important progress is being made. The First Minister and I met Fiona Duncan on 7 November and were heartened to hear that she believes that Scotland is on track to keep the Promise by 2030. Although that is encouraging, I absolutely understand that the pace must be continued and, in key areas, accelerated if we are to maintain that positive direction of travel.

It is, of course, not for us to judge success. It is imperative that the children, young people and adults who have experience of the care system tell us how it is for them and where we must continue improving, and I will listen to those voices. In that regard, I welcome the continued scrutiny that the Promise oversight board provides, not only of the Scottish Government but of all the organisations that share responsibility. I also welcome the engagement of our representative partners, including Who Cares? Scotland, who regularly help us to listen to the voices that matter.

This week, the First Minister wrote to Fiona Duncan to ask her to provide further detail about the areas in “Plan 21-24” where progress is required and, in so doing, to set out a proposed timeline and her ambitions for the development of “Plan 24-30”, which is something that I know Carol Mochan is very interested in. That information will help us to make connections and drive forward progress. It will help us to focus on what is next, who must deliver and by when, and I encourage all members to get behind that work.

During the eight months in which I have had the honour of holding this position, I have had the pleasure of visiting a range of projects and seeing the truly excellent progress that is underway. The virtual school in North Lanarkshire has seen a dramatic reduction in exclusions. I was truly heartened to see the efforts being made by Siblings Reunited in Fife to unite siblings, an extremely important matter that was raised by Rona Mackay, Martin Whitfield and Roz McCall. I have visited kinship carers in Airdrie and, just yesterday, I visited Aberlour’s perinatal support service in Falkirk. Those are just a few of the visits that I have made.

Members will no doubt know of other work that is under way in their own constituencies. What matters is how we move from having examples of practice to established practice. That point was echoed by those who attended the Education, Children and Young People Committee meeting yesterday. We must work together to share our learning and ensure that what works can be spread across Scotland, so that the whole care-experienced community will benefit.

I will highlight some key areas of progress. Members will be aware that the Children (Care and Justice) (Scotland) Bill is currently going through Parliament and is a key vehicle for the legislative change that is necessary for Scotland to keep the Promise. If the bill is passed, it will represent the first step in a process to reform the children’s hearings system that will include consultation on the changes proposed in the recent review by Sheriff David Mackie. As I have said before, the Scottish Government’s response to that report will be published by the end of this calendar year.

I say to members that I could list many examples of work that is under way, including the Scottish recommended allowance for foster and kinship care, which will benefit over 9,000 families, helping them to provide the standard of living and the wellbeing that the children and young people in their care deserve; and the £2,000 care leaver payment to support our young people as they move on from care, which was put to consultation earlier this month. However, I do not raise those points to be combative. I have absolutely no right to do that. Instead, I want them to help to demonstrate the seriousness with which I and this Government take the task that has been set. We absolutely must deliver the change that is required, and we will.

That is something that will be worked out, so I cannot confirm it today. I am sure that the member will appreciate that. How much funding will be available for that will be worked out as co-ordination of the strategy is developed.

Building on GIRFEC best practice, the Scottish Government is co-designing getting it right for everyone—GIRFE—with place-based pathfinder teams across Scotland for people at all stages from young adulthood to end-of-life care. Through GIRFEC and GIRFE, we are absolutely committed to improving transitions between children’s and adult services for disabled children and young people.