Chamber and committees

That is me told already.

I was going to say, “I rise to speak to my amendments”, but I will not be rising. I will speak to amendments 38 to 44 and 46, all of which are in my name and all of which are supported by Jackson Carlaw.

The intention of the amendments is to ensure that, before applying, 16 and 17-year-olds have made use of the opportunity to take advice or guidance or to receive support in making their decision, including considering the implications of getting a GRC. That also relates to an amendment that I will come to later on what the registrar general for Scotland must publish.

The provision, which would be mandatory but is not overly restrictive, would require the person to confirm to the registrar general that they had discussed the issue, either with an adult whom they knew personally—for example, a supportive family member or friend of the family—or someone who had a role that involved giving guidance, advice or support to young people, such as a teacher, counsellor, doctor, guardian or LGBT youth worker. There is a whole range of people. In order to allow for flexibility in individual circumstances, amendment 39 would not restrict the form of the consultation—I am not setting out a list here.

The cabinet secretary has already undertaken to ensure that 16 and 17-year-olds will be offered and encouraged to take up a conversation with National Records of Scotland about the process and effect of a GRC. It is important that, wherever possible, the confirmation should be part of such a conversation, which would take place during the reflection period. I invite the cabinet secretary to confirm whether she agrees with that approach and, indeed, with my amendment.

The offence in the bill of making a false application does not apply to the proposed confirmation. There is no desire to criminalise 16 and 17-year-olds or require them to provide proof.

Carol Mochan’s amendment 117 tries to do much the same thing as my amendments, but it is rather heavy handed. It would put in law a requirement for support services for those applying, but that is unnecessary, as all those services exist just now. In any case, when it came to the registrar general, it would still have to be confirmed that the person had actually taken advice; that would be mandatory, and the onus would be on the person in question. After all, this is a big decision. In short, given that the advice and support are already there—and I hope that Carol Mochan forgives me for saying this—I do not think that amendment 117 is necessary, and I think that mine is better. Of course, I would say that.

The intention behind amendments 42 and 43 is to extend from three to six months the minimum period of living in the acquired gender before an application can be made. I understand Rachael Hamilton’s concerns, which is why I am putting in other precautions for this particular age range—specifically, for 16 and 17-year-old applicants. However, the time period that I have set out would be the very least; they might take longer than that, and so might 18-year-olds.

The amendments would introduce two options into the required statutory declaration: either an applicant must state that they are 18 or over and have lived in their acquired gender for at least three months; or that they are 16 or 17 and have lived in their acquired gender for at least six months. That will provide additional assurance that applicants have had the time to fully understand the change that they are making and that they are confident that they really do want to live the rest of their lives in their acquired gender.

Such a measure will not introduce an additional delay for anyone who has already been living in their acquired gender for at least six months. They will have been doing so, well ahead of turning 16, so they could still apply on their 16th birthday and, after the three-month reflection period—which we must not forget—obtain a GRC.

I will make passing reference to Martin Whitfield’s amendments 120 and 124. Amendment 120 is just a consequential amendment, as are my other amendments. I should point out that we are not in collusion, by the way; we are just sitting next to each other—by mistake. [Laughter.]

If I can be modest, my amendments are better, as they put the onus on the young person to specifically confirm that they have discussed and understand their application. It is a big decision for them, so we need to ensure that the onus is on them to have done all that. I believe that that is a better approach than that in Martin Whitfield’s amendments, which put the onus on the registrar general to be satisfied that the applicant has the “capacity” to understand. The word “capacity” is difficult in law; for a start, I do not know whether Mr Whitfield means legal capacity or some other kind.

A discussion with the registrar general will take place, whether face to face, online or whatever, and at that time, they can decide whether the person really understands what they are doing. As I have said, the word “capacity” is a difficult word to use in law. Perhaps Martin Whitfield should have said “fully understand what they are proceeding to do”, instead. However, he did not, and that is why I do not like his amendment.

I think that I have spoken to all my amendments, have I not?

I remind Rachael Hamilton that Jackson Carlaw supported my amendment. That is cross-party consideration; we considered the issue and came together on it, so it is unfair to say that there has not been cross-party consideration, certainly on my amendment.

Forgive me—you will know this if you were listening to the early part of our proceedings—but amendment 39, which has been agreed to by the committee, is on additional guidance, advice and support for young applicants prior to their making an application. That amendment sets out that the applicant must confirm to the registrar general that they have

“discussed the implications for the applicant of obtaining a gender recognition certificate with an individual who—

(a) has a role which involves giving guidance, advice or support to young people”.

Therefore, that is there at the beginning.

I thought you might have done.

Convener, I think that I will be in touch with Mrs Carlaw on that one.

Could the committee get in touch with the Scottish Animal Welfare Commission to see whether it has a more specific timetable? What is in your briefing suggests that it is rather casual in what it is saying just now.

Yes. I would like to add a bit, because there is a distinction to be made from dogs being microchipped, which happens for a variety of reasons—it is compulsory and makes it easier to impose dog control notices and so on. Cats are a different kettle of fish. I do not know why I mention fish with cats, but there we are. The issues are welfare of cats and responsible ownership.

If I can, I will briefly tell you a very short story, convener. Many years ago, my son went out in the garden and found a cat in the pouring rain under the bushes. We had two cats of our own at the time, and we brought it in. We kept it safe overnight, but it was obvious that the cat was very ill. We took it to the vet, who said that it was a very old cat and that it had kidney failure and was dying. My son and I burst into tears, so the vet asked, “How long have you known the cat?” We said, “Twenty-four hours.” It did not matter.

The point of the story is that the owner would never have known what happened. Cats often disappear to die. My own cat did that; it went down into the garden and I found it later. They go away from the house.

From the point of view of an owner, if a cat is injured, killed on the road or just disappears to die quietly away from its normal place, which is natural for a cat, it is very upsetting for the cat owner to never know what happened.

It is the same when cats adopt another household, which has been known to happen. They just wander off and decide, “The food’s better here; I think I’ll stay.” Again, if they were microchipped, at least the owner would know where they had gone.

I am not obsessed with cats—let me make that plain—but I think that the issue is terribly important. I commend the various cat charities. If you get a rescue cat like Mr Smokey—who is very famous, of course—the Scottish Society for Prevention of Cruelty to Animals charges you to have the cat neutered, which they usually are not, and to have the cat microchipped. It is a welfare issue and it is about responsible ownership.

From the Government’s response, I see that the Scottish Animal Welfare Commission says in its July 2021 work plan that

“potential areas of work in the medium term”

are

“to consider welfare aspects of microchipping domestic cats, compulsory neutering of cats and outdoor cat controls”

and so on. It seems to me that that is a light touch in respect of potential areas to consider. I ask the committee to consider writing to the Scottish Animal Welfare Commission to see whether it proposes anything more solid. I appreciate the other matters that the convener raised, about scanning and so on.

As I understand it, there should be no cost to the public purse. If an animal is taken to the vets and it is not known whose it is, it could be scanned and the owner found. The main thing would be that owners would have to bring details for the microchip up to date if they were to move.

Finally, if you have a cat flap—I am not advertising any manufactured devices—that identifies microchips, your cat can get in and out of the house and no other cats can come in. Mr Smokey has that protection from any invaders: only he can get in and out using the cat flap, and I am sure that he is very happy with that.

There is a range of things that I would like to see being made compulsory. Every time you talk about cats, people smile at you, but many of us love the wee devils. Thank you.

Regulation would be in the interest of any non-statutory advocacy services that is provided. It makes people sure that they are certified in and regulated for what they do. What they say would have weight and value. I do not think that it was deliberate, but in this case a narrative was brought in that could never be undone.

Parental alienation it is not unusual when spirits and passions run high in relation to contact with or residence of children. The issue between the parents becomes something that spills over and affects the children. It should not, but it does.

Regulation would be in the interests of those services. I cannot see the problem. We are regulated and must obey rules, which is just as it should be. The same thing should happen to non-statutory advocacy services.

I thank the committee.

Let me put it on the line that I support advocacy services for children. However, that is not the issue. The petition is very narrow. As you have already suggested, convener, we have non-statutory child-advocacy services in court proceedings in relation to contact and residence, but what you have not read out is that I came to the issue through a case—as many of us do—which broadened the whole issue. I hope that members will forgive me if they already know about this. I will obviously keep the case anonymous, but the experience of the intervention of such a child advocacy service caused devastation to the lives of two of my constituents.

The intervention began because of a series of unfounded allegations made against the man, but the advocacy service soon became the driver of events that multiplied allegations without their validity ever being investigated. As I know from practising as a family lawyer 20 years ago, once children have been alienated, it is practically impossible to undo.

What is the backing for that? My constituents went to proof. In her judgement, the sheriff set out in detail the systematic creation by the child advocacy service of an entirely false narrative in the minds of the children. That included practising emergency evacuation drills with them, as if the father might attack them. The service also refused to accept its role in perpetuating and amplifying the falsehoods.

There may not be many cases, but one case is one too many. I note what the convener said about the response by the minister, Ash Denham. I see a reference to the Children’s Hearings (Scotland) Act 2011 (Children’s Advocacy Services) Regulations 2020, which came into force in November last year. Those regulations only set out requirements as to qualifications, training and fees. There is no requirement for regulation.

I also note the minister’s response, which you read out. She said that regulation would be difficult and would require primary legislation. I do not care about that. If something needs to be fixed, primary legislation is neither here nor there. The minister says that advocacy services

“are not only provided by organisations or persons acting in a professional capacity”—

one might call that a quasi-professional capacity—and that, in the event of regulation being implemented,

“consideration would need to be given as to how this would be enforced”

with persons supporting in the capacity of a relative. Relatives are a completely different species. They are not disinterested parties, and neither should they be, in any proceedings regarding children with whom they are connected. We are looking at non-statutory advocacy services, which are not currently regulated. My constituents did not see what had been said. They found out only by accident. By the time the stage of proof is reached, the damage is done. The comments by the sheriff are very telling.

This is a serious issue. You talked about how petitions have been used to move on the serious issue of mesh. I would like someone such as the cabinet secretary to answer to this. It can be fixed. Some people say that relatives cause an issue, but they do not. The constituent mentioned services. We do not talk about a relative providing services. Definition is all, in this case.

That is my position. You can see that it is heartfelt because I have been following this, with my constituents, for two years. I know the misery that it has brought to their lives and the impact that it has had on their children, with whom they now have no connection whatsoever, and probably never will have again. That should not happen.