Citizen Participation and Public Petitions Committee
Meeting date: Wednesday, February 8, 2023
Official Report 633KB pdf
Contents
New Petitions
Domestic Abuse Perpetrators (Family Court Proceedings) (PE1968)
We now move to new petitions. As I normally caveat when we discuss new petitions, before the committee considers a new petition, we send the petition to the Scottish Government and request an initial view in relation to the objectives of the petition, simply so that we do not spend the first meeting agreeing to do that, which would only delay our progress and consideration.
The first new petition that we will consider is PE1968, which was lodged by Angela Evans and is on restricting the ability of perpetrators of domestic abuse to use family court proceedings to continue tormenting their victims. The petition calls on the Scottish Parliament to urge the Scottish Government to review existing legislation on family law and seek to stop perpetrators of domestic abuse causing further abuse and distress to partners and children by removing their ability to apply for contact orders under section 11 of the Children (Scotland) Act 2020.
Angela tells us that mothers and their children are being let down by the family court system, which has granted contact orders to perpetrators of domestic abuse. In her view, that forces victims of abuse, who can include the child or children, to spend time with someone who has abused them, potentially putting them at further risk.
As I said a moment ago, and as we do with all new petitions, the committee has sought an initial response from the Scottish Government. The Government states that there is no place for domestic abuse in Scotland but suggests that removing the ability of perpetrators of domestic abuse to apply for contact orders might raise questions about access to justice.
I should note that the Scottish Government response and the briefing that we have received from the Scottish Parliament information centre both highlight that applications to the court for contact orders are made under section 11 of the Children (Scotland) Act 1995, rather than the 2020 act that is referred to in the petition.
The Scottish Government’s response also notes that changes to section 11 of the 1995 act have recognised the impact of domestic abuse. There are also provisions contained in the Children (Scotland) Act 2020 that have yet to be implemented and which relate to matters such as the appointment of a child welfare reporter to gather the views of the child and report on the child’s best interests, and the use of special measures to help protect vulnerable witnesses and parties when family cases are considered. Information in the SPICe briefing suggests that it may be 2024 before those provisions are implemented, or the new systems of regulation become operational, which hardly seems ideal.
Do members have any comments or suggestions for action?
I am perplexed by this in some ways. I appreciate what the Scottish Government is saying about what it is attempting to do, but, in my view, there are still areas of responsibility that may require some clarity. I think that the time lapse on this is also stressful. I note what the petitioner says about being let down and the complexities of such issues. There is no doubt that there is exposure of individuals to potential abusers in the process.
I would seek some clarity. I would like to see more information from organisations that may be able to give us a little bit more advice and support. I suggest that we write to the Law Society of Scotland. I think that Scottish Women’s Aid, Shared Parenting Scotland and the Children and Young People’s Commissioner Scotland have a role, too.
I acknowledge what the Government is saying. In due course, things may improve, but at the present time I do not see that being the reality.
Thank you. I have to say that it was judged necessary for the protection of families in situations of domestic abuse to introduce regulations as a consequence of the 2020 act, but those are not going to be implemented until 2024. Let me anticipate that we will be told that the pandemic means that work on various things was delayed. However, to be told that it is expected that that might not happen until 2024 all sounds a bit vague and woolly to me.
In addition to Alexander Stewart’s recommendations, I propose that we go back to the Scottish Government to ask why on earth this delay involving an issue of protection—a protection that the Parliament regarded as being so necessary that we embodied it in legislation—is going to take until an unspecified date in 2024 to resolve. There seems to me to be a lack of urgency. The pandemic is now behind us, in the sense that I do not think that it is imposing a burden on the Government such that it cannot pursue the implementation of provisions in its own legislation. I think that the distress that the delay will be causing really ought to be given greater urgency than the response suggests that it has been. Are colleagues content that we proceed on that basis? Does anybody else want to comment?
I am very supportive of the comments that have been made. I would particularly support getting some feedback from organisations such as Scottish Women’s Aid, because that might give some weight to the fact that, as you say, convener, it does not seem sensible to wait for four years to implement such urgent legislation.
It is not even that we do not have the legislation. The issue is with implementing it—that is the extraordinary thing. Are we agreed that we will proceed on that basis?
Members indicated agreement.
Child Protection (Public Bodies) (PE1979)
Our next new petition is PE1979, regarding the establishment of an independent inquiry and an independent national whistleblowing officer to investigate concerns about the alleged mishandling of child safeguarding enquiries by public bodies. The petition has been lodged by Neil McLennan, Christine Scott, Alison Dickie and Bill Cook. I see that some of the petitioners have joined us in the public gallery to observe our consideration of the petition today and, as far as they are all here, we welcome them to our proceedings.
The petition calls on the Scottish Parliament to urge the Scottish Government to launch an independent inquiry to examine concerns that allegations about child protection, child abuse, safeguarding and children’s rights have been mishandled by public bodies, including local authorities and the General Teaching Council Scotland, and concerns that there are gaps in the Scottish child abuse inquiry; and to establish an independent national whistleblowing office for education and children’s services in Scotland to handle those enquiries in the future.
The petitioners tell us that they have supported whistleblowers in raising historical and current allegations about child protection, child abuse, safeguarding and children’s rights and, while acknowledging the work of the Scottish child abuse inquiry, the petitioners believe that a separate and wider inquiry into safeguarding is required.
In responding to the requests of the petition, the Minister for Children and Young People states that learning from the Scottish child abuse inquiry, the independent inquiry into child sexual abuse in England and actions such as implementation of the revised national child protection guidance, mean that the Scottish Government does not consider that there is a need to extend the scope of the SCAI or to establish a separate inquiry to explore concerns that allegations about safeguarding have been mishandled by public bodies.
Although the petitioners have welcomed comments about improving systems as a result of the inquiries into cases of non-recent child abuse, they have restated the call for a distinct inquiry into wider allegations and whistleblower concerns about unresolved child protection issues that relate to organised criminal child exploitation and trafficking. The petitioners also highlight in their response that national child protection guidance is non-statutory, and they consider the guidance to be confusing, complex and somewhat contradictory.
The committee has also received a number of written submissions in support of the petition. Colleagues will recall our consideration of the eligibility criteria around some of the submissions that we have received and previously considered, many of which share details of families’ experiences in pursuing child protection and safeguarding concerns, and the difficulties that they encountered in trying to resolve concerns with a variety of public bodies.
Do members have any comments or suggestions for action? I am certainly not inclined to follow the Scottish Government’s initial response that it does not see any further merit in this.
Like, I assume, most of the committee, I would like to keep the petition open and gather more evidence on what the petition asks for. I would like to write to several stakeholders, including the Children and Young People’s Commissioner Scotland, the Convention of Scottish Local Authorities, the Educational Institute of Scotland, Unison, the General Teaching Council for Scotland and the Scottish Social Services Council.
I agree with that. I think that the petitioners have found that there is a gap, and there is no doubt that the process is confusing and complex. A whistleblower might well be what is required. By getting information from those organisations, we will get a better flavour of how the process is working. There is guidance in place but, as I said, I think that there is a gap in the process, which that action might help us to understand. Also, we should ask the Government how it plans to progress the issue, if the gap is perceived to be real, and we should ask to what extent it is focused on addressing it.
I agree with all the comments thus far. I do not think that the Scottish Government’s reply is adequate or sufficient by any means. I note that several MSPs from all parties have raised individual cases, which I think is an indication that the matter is not being sufficiently well dealt with at the moment.
I make a plea to the petitioners who are present here today and who have an interest. Without further evidence from petitioners or others who have specific concerns, it is a little difficult for us to move forward and identify solutions, although suggestions have been made that are worthy of serious consideration. So, I make a plea that further information be provided. Of course, it would be required that information about particular cases be kept confidential.
11:15The last point that I will make is that people in such circumstances probably feel that they are in a kind of David and Goliath situation—where they are David and the public authorities are Goliath—and feel very lonely, isolated, disempowered, hopeless and powerless to act, and often believe that the public authorities are not really listening. That is what I gather from experience over many years as an MSP. We need to give David the sling in order to be able to take on Goliath.
We could also draw Mr Ewing’s comments to the attention of colleagues in the Scottish Parliament who have raised the issues, to see whether there is anything more that they might be able to offer the committee by way of a testimony or consideration. That would be helpful.
I think that we are all agreed that we will keep the petition open and that there are serious issues underpinning it that need to be properly examined and pursued. We have outlined a number of open workstreams that we will pursue ahead of our next consideration of the petition. Are colleagues content with that?
Members indicated agreement.
Thank you. That might not have felt like a long period of consideration, but I hope that the petitioners see that we are taking practical steps forward.
Domestic Abuse Perpetrators (Sale of Matrimonial Home) (PE1981)
We move to petition PE1981, which is on ensuring that perpetrators of domestic abuse who have been excluded from the matrimonial home cannot force sale of the property. The petition has been lodged by Caroline Gourlay, and calls on the Scottish Parliament to urge the Scottish Government to strengthen legislation to stop perpetrators of domestic abuse, who have been excluded from the matrimonial home by a court order, being able to cause further trauma and distress to their victims by trying to force the sale of the property.
Caroline Gourlay highlights a potential loophole in existing legislation that enables perpetrators of domestic abuse to contact their victims through a third party to force the sale of a property. In responding to the petition, the Scottish Government notes that section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 provides protection to a spouse or children who are at risk of physical or mental injury because of the other spouse’s conduct. That is achieved by applying to the court for an exclusion order. The Scottish Government also notes that, where a court action has been raised in relation to the division and sale of the matrimonial home, the 1981 act also includes provisions for the court to refuse to grant the decree or to postpone its being done for a period that it considers to be reasonable. The court may also grant a decree subject to conditions.
Although the Scottish Government has indicated that it has, at present, no plans to reform the 1981 act or equivalent provisions for civil partners, it is expected that phase 2 of the Scottish Law Commission’s review of aspects of family law will focus on civil remedies for domestic abuse. Following the Scottish Government’s response, we have also received a submission from the petitioner, which highlights that being contacted by a third party, such as a solicitor, can be a distressing and traumatic experience for victims, even where exclusion orders and interdicts are in place.
It is for that reason that Caroline Gourlay believes that individuals who are subject to interdict and exclusion orders should not be permitted to contact their victim directly or indirectly while the court order remains in place. It is a technical legal thing. Are there any suggestions?
Could the committee write first to the Scottish Law Commission to ask whether the issues that are raised in the petition will be looked at in phase 2 of its review of aspects of family law?
Are there any other suggestions, colleagues?
It would be also useful to gather more information from organisations that you have talked about in the past. The Law Society of Scotland has a role, as do the Family Law Association and Shared Parenting Scotland. Their views and opinions would be useful, in addition to what David Torrance said we should ask the Scottish Law Commission.
I note that the Scottish Government says in its response that if a couple who are married or cohabiting own a home together both must agree to its sale, otherwise the party who wants to sell the property will need to raise a court action seeking an order for division and sale. Under section 19 of the 1981 act, where a spouse has raised an action of division and sale involving the matrimonial home, the court may refuse to grant the decree or postpone doing so for a period that it considers to be reasonable, or it may grant the degree subject to conditions. You are a lawyer, Mr Ewing. Are you able to add any nuance to all this?
I hesitate to opine because I have not really given the matter sufficient consideration, but I will just make a couple of remarks. In not every case is title held in joint names. In many cases title is solely in the name of the excluded person, who is usually—almost always—the husband or partner.
Where title is solely in the name of the person who has been excluded, the argument that has rightly been put forward by the Scottish Government—that an action for division and sale would be required—will not apply because such action applies only where there is joint title. That would normally be the case, but title is not infrequently solely in the name of the husband. It could be that the property was acquired by him before the marriage or it could be that it was taken only in his name, perhaps because he was the wage earner and so on.
There is a loophole. If it is right to exclude a male for violent behaviour towards his wife—an exclusion order will not readily be granted unless there is real substance and evidence—I do not see how it can be right and permissible for that person to be allowed to sell the property from underneath the wife’s feet. That seems to be plainly wrong. Therefore, in the interests of female rights and justice, the loophole should be closed. That is just an off-the-cuff personal view, but I hope that it helps.
That does help. I think that we agree to write to various organisations, in the first instance. That wee synopsis is good context for us when we consider the issue as we proceed. Are members content to proceed on that basis?
Members indicated agreement.
Royal Conservatoire of Scotland (Funded Places for Scottish Ballet Dancers) (PE1982)
That brings us to PE1982, which has been lodged by Gary McKay. The petition calls on the Scottish Parliament to urge the Scottish Government to review the funding that is provided to the Royal Conservatoire of Scotland to enable more places to be made available to Scottish students pursuing ballet at that level.
The Scottish Parliament information centre briefing states that higher education institutions are autonomous bodies, although they receive significant funding from the Scottish Government. It notes that the Scottish Government does not direct how many funded places individual universities make available, and that it is unable to intervene in internal institutional matters. In 2021, funding was provided to the Royal Conservatoire of Scotland that provided 30 places for Scotland-domiciled students studying dance. The response from the Scottish Government reiterates the technical points and notes that universities are able to offer as many places to international students as they wish.
We have received a submission from the petitioner that highlights the issue of opportunity for Scottish dancers to continue in further ballet education. He shares his view that the current set-up provides a means for increased business turnover and focus on financial interests. The petitioner raises concerns about the financial burden that is faced by students who might have no choice but to study outside Scotland as a result of limited places at the Royal Conservatoire.
Do members have any comments? I appreciate the general point that the petitioner is making about international students absorbing many available places.
I have had a case from a constituent regarding their daughter, who was an accomplished dancer who had sought to obtain a place at the Royal Conservatoire. Their experience was very much in line with what is described by the petitioner; namely, that although she appeared to have the credentials and skill to earn a place, the places were being given mostly to candidates from elsewhere in the UK. There appeared to be, I think—it was a few years back—evidence that the Royal Conservatoire is very closely linked with one particular establishment in England, many candidates from which gain places at the Royal Conservatoire.
I am not in a position to make a judgment, other than to say that it seemed to me, from correspondence that I had with the Royal Conservatoire at the time, that there is a serious problem and that Scottish candidates are not getting into the Royal Conservatoire. I got a reply from the management of the Royal Conservatoire. I have to say that, in my recollection, it was quite dismissive of the concerns, which disappointed me.
At the end of the day, I am not sure that we have a locus to act, or how we could act. However, surely the situation is wrong in principle. Qualified young people in Scotland, who wish to pursue a career in the specialist area of ballet, and who in every case have devoted their childhood and adolescence to spending hundreds—if not thousands—of hours trying to get into a very limited pool of places, should at least have the chance to get into the ballet school in their own country.
Because of my experience, which I admit is anecdotal, I think that we should pursue the matter with the Royal Conservatoire of Scotland’s ballet department and ask it to provide evidence about the number of applicants from Scotland and the number who have been accepted over, say, the past 10 years, and evidence about other candidates who have been accepted and from whence they have come. There are, perhaps, a limited number of cases with only a few people involved, but I am aware that the issue caused one particular family real heartache and disappointment with the system as it operates in Scotland.
Yes. I suspect that in some ways this is the tip of the iceberg, because the current funding model, particularly for specialised disciplines, is leading to this situation. I would be quite interested to open, in as constructive a way as possible, a discussion with the Royal Conservatoire about the challenges that it thinks it faces and what its application and award of places model is. I would like to find out the extent to which it wants to be candid about allocation of places, based on the fact that some allocation creates an additional financial revenue stream, and the extent to which it accepts or acknowledges the difficulties that that might be placing on the ability of Scotland-domiciled residents to access courses at the Royal Conservatoire.
Ultimately, there is a reputational issue for the Royal Conservatoire. It enjoys a tremendous amount of public goodwill; I know that to be so. That is the case very much because it is the Royal Conservatoire of Scotland and people will imagine that talented people here in Scotland have a fair and equal opportunity to access courses in the disciplines in which it specialises.
Although I accept that that argument could be made in relation to access to other further education institutions, we are considering a petition in relation to a particular matter, so it would be reasonable for us—using the official hat of the Scottish Parliament—to seek slightly more information from the conservatoire, at least.
Can we ask, when we contact the Royal Conservatoire—I believe from the evidence that you mentioned that there are 30 funded places—whether it is filling all 30 places for Scottish students?
Yes—it would be interesting to have that information.
That brings us to the end of the public part of our proceedings. We will meet next on 22 February.
11:28 Meeting continued in private until 11:33.Air ais
Continued Petitions