Chamber and committees

I am aware that some litigation cases with Glasgow City Council are going on. I am also aware that a criminal case is on-going. Obviously, I cannot comment on that because it is a live case. I have reiterated the apology that my predecessor gave. To be honest, I know that that recognition is sometimes the most important thing for people who are in that position.

On other supports, there are support networks for survivors who have been through absolutely appalling experiences. I know that some Fornethy survivors have accessed some of that support. Support is provided through Future Pathways. That support was established recognising that people will need it. Some people will want to access such support.

I cannot comment on the litigation cases. I wrote to Glasgow City Council this morning to bring to its attention the fact that the two reports exist. I know that the Fornethy survivors have made a number of demands of Glasgow City Council. Obviously, I cannot instruct Glasgow City Council on those matters, but I have drawn the reports to its attention.

The former Deputy First Minister had met Fornethy survivors, as have I. He said, in essence, what I said at the beginning today: that Fornethy survivors could apply to the redress scheme but the issue was likely to be what evidence there was before the redress scheme—the panel who have to make decisions on the basis of the evidence in front of them.

That is why I instructed Dr Fossey to do the research to establish whether the survivors could access the scheme or whether there were impediments to accessing the scheme on the basis of the parental consent issue and the lack of records to provide the evidential base for someone to submit their claim.

I have never said that either.

I am not for a second disputing what the women are saying. Let me be really clear. I believe what they are saying, but I am saying to you that Redress Scotland requires some evidence of someone having been placed in a setting, and there is no record for anybody. Potentially, thousands of people could have been placed in Fornethy-type institutions, and what we would be saying to the Redress Scotland panel? That there does not need to be any record of a person having been in a Fornethy-type institution?

You would be raising expectations in people who do not have records—because the records do not exist.

Obviously, any legal advice that anyone receives needs to be independent legal advice about potential litigation. There are some on-going litigation cases against Glasgow City Council, which I cannot comment on because they are live. Similarly, there is a live criminal case that I cannot comment on either. That route is open.

On the support that the Government provides, I have talked about the support that is provided through Future Pathways to help survivors, and I have talked about the support that is given in looking for case records. The Government provides about £2.4 million, I think, to help survivors to get records. One of the reasons we did the piece of research was to address that issue, because of the importance of records for Redress Scotland. So, there is support available to help survivors who have been in long-term care and have had difficulty in accessing records, because of the importance of having that evidence to present to Redress Scotland. That is the situation.

I am not saying that at all. I am saying that the eligibility criteria have been set with the exceptions clearly set out. Technically, those exceptions could be changed, but I have said why I do not think that it would be the right approach. As was laid out in Parliament at the time and agreed unanimously, the focus is on those who were in long-term care having been removed from parental responsibility.

The point that I am making about the independence of Redress Scotland is that it is quite right that decision making around awards is independent of the Government. It would not be right for us to interfere in Redress Scotland’s determination in individual cases. As a panel, Redress Scotland looks at individual cases on the basis of the evidence that is required, which is set out in guidance. That is the relationship.

Barry McCaffrey, do you want to come in?

Thank you, convener, and good morning to the committee and those in the gallery. I am grateful for the opportunity to provide evidence to the committee on PE1993.

Before I get into redress matters, I will begin by putting on formal record my acknowledgement of the abhorrent abuse that some children suffered while resident in Fornethy house. It should not have happened, and I am sorry to hear about what they had to endure as children and the impact that the abuse has had on their lives. The First Minister and I have met the Fornethy survivors, and I recognise and commend their courage in sharing their experiences.

Turning to the matters that are outlined in the petition, as the committee is aware, I instructed the appointment of an independent researcher to make inquiries into Fornethy house. Dr Fossey took up post on 1 August last year with a remit to investigate the circumstances by which a child would be placed in Fornethy house and to establish what records exist relating to Fornethy house. Dr Fossey has concluded her inquiries, and her full report has been shared with the committee.

As the committee has had the opportunity to consider the report ahead of today’s evidence session, I will not repeat the findings, but I want to turn to how they affect the eligibility of Fornethy survivors to access Scotland’s redress scheme. Part 3 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 sets out the eligibility for the scheme, which includes residence in a relevant care setting in Scotland.

Section 20 of the act defines “relevant care setting” to include residence in

“a residential institution in which the day-to-day care of children was provided by or on behalf of a person other than a parent or guardian of the children”.

Moreover, “residential institution” refers to a variety of different care settings such as children’s homes, residential care facilities and school-related accommodation, which are as further defined in section 21 of the act.

Section 23 of the act, however, allows the Scottish ministers to make regulations to create exceptions to eligibility. The Redress for Survivors (Historical Child Abuse in Care) (Exceptions to Eligibility) (Scotland) Regulations 2021, as approved by Parliament before the scheme opened, provide that an application for redress may not be made

“by or in respect of a person to the extent that it relates to abuse that occurred when that person was resident in a relevant care setting—

(a) for the purpose of being provided with short-term respite or holiday care, and

(b) under arrangements made between a parent or guardian of that person and another person.”

Where the exceptions apply, a key point in assessing eligibility is the purpose of the stay in the relevant care setting and whether it had been made under arrangements with a child’s parent or guardian. Although records from the period are limited, the report is clear that children attended Fornethy house primarily short term for convalescence or a recuperative holiday under arrangements involving their parent or guardian and another person. Those circumstances, as agreed by Parliament, are excluded from the scheme.

It is important to acknowledge at this point that, in the absence of individual records, it is not possible to say with certainty that parents gave their informed consent to their child attending Fornethy house. We can only speak to what was supposed to happen. The legislation speaks of arrangements made with a child’s parent or guardian, and that is what is relevant for redress purposes.

The redress scheme is primarily designed for those children who were in long-term care and the exceptions are in keeping with that purpose. That rationale was supported by 79 per cent of respondents to a public consultation that was issued in advance of the legislation being drafted. In addition, there is the key issue of the absence of records relating to Fornethy house. Every applicant to the redress scheme is required to provide evidence that they were in a relevant care setting at a particular time. Unfortunately, the absence of records means that, even if the eligibility criteria were to be changed, Fornethy survivors are unlikely to meet the evidential requirements of the scheme.

For all those reasons, I do not intend to change the eligibility criteria for the scheme. I recognise that the outcome of the inquiries will be disappointing to the survivors who seek redress. The report’s findings are in no way intended to diminish the experiences of the survivors or to suggest that the parents of those children were in any way responsible for the experiences that their children had during their time in Fornethy house.

I am very grateful to the committee for its on-going support of the Fornethy survivors and Scotland’s redress scheme. I am happy to answer any questions that you have.

I recognise very much the point that you make about the unequal nature of that relationship. I am not disputing that at all. The point that I am making is that, when the bill was taken through by my predecessor, the distinction that was made was that the scheme would be for those who were in long-term care and who had essentially been removed from their parents through, primarily, social work legislation. Fornethy was established through education legislation. I am not disputing the opaqueness over whether parental consent was given. I am saying what was supposed to happen, rather than necessarily what the individual experiences were.

No one is disbelieving anyone—let me be clear about that—but the core aim of the scheme, as set up by my predecessor, was very clear in that it was to focus on those who had been in long-term care who had been removed from parental responsibility. That was the core purpose of the scheme. It was unanimously agreed by Parliament and a line was drawn in recognition of the priority given to those children.

That is not to deny the experience of anyone else, whether it was in short-term convalescent care or in a boarding school, for that matter, but that was the core aim of the scheme, as my predecessor was very clear about and as was agreed by Parliament—and, of course, in the public consultation, 79 per cent of people agreed with that being the purpose of the scheme. That is absolutely not to question the experience of anyone else, and I will be really clear that everyone should be believed. However, that was the core purpose of the redress scheme, for all the reasons that my predecessor set out, and that was accepted and agreed by Parliament for all the reasons that were debated at the time.