Seòmar agus comataidhean

Yes.

I am grateful to Martin Whitfield. I have nothing further to add, and I wish to press amendment 34.

Amendment 34 agreed to.

Amendment 108 moved—[Roz McCall].

In relation to Jeremy Balfour’s amendments 50 and 53, the hearings for children report is clear about the importance of reporters being able to exercise professional judgment and work in a relational manner.

It is critical that the reporter is able to directly apply their skills, experience and professional discretion to the cases that they consider, in order to respond appropriately to the individual needs and circumstances of children and their families.

We must also respect the independent decision making of the principal reporter and the staff to whom that is delegated for case-specific decisions. Reporters already have a well-established system of practice guidance that informs their professional practice, and I expect that system to respond to the changes made by the bill. Regulations proposed under Mr Balfour’s amendments could tie the hands of the reporters as they seek to progress a child’s case. That would be unhelpful.

11:45

Amendment 52 will make it clear that the principal reporter should respect the child’s choice about engaging with them at an early stage, and will give the reporter the ability to be flexible and proportionate in their engagement with children and families.

Amendments 54 and 55 will make sure that, when the principal reporter needs to get a case directly to a sheriff because grounds are not likely to be accepted, that decision is based on a simple assessment of their view on the grounds. Amendment 56 will ensure that, when the principal reporter has worked with a child at an early stage, the valuable results of that work can be shared with all decision makers.

Amendments 57 to 59 will ensure that, when certain matters absolutely must be decided by a pre-hearing panel, that can be done after the principal reporter has referred the case directly to the sheriff but before the sheriff hears the case.

Amendment 69 will make sure that, when an interim compulsory supervision order is made by a hearing before a case goes to court, that order will be reviewed by a children’s hearing. That is in line with current practice and reflects our ambition to keep cases in the hearings system where possible.

Amendments 70 to 73 correct minor typographical errors in section 14.

I hope that members can support those amendments.

On Sue Webber’s amendment 116, it is vital that decisions made about a child in the children’s hearings system are well evidenced and are in the child’s best interests. It is also essential that the child and their family can participate in the decision-making process.

The 2011 act provides the overarching principle that the decision makers are

“to regard the need to safeguard and promote the welfare of the child … as the paramount consideration.”

They must

“have regard to any views expressed by the child”

when deciding to make a compulsory supervision order. They may put an order in place only where they are satisfied that it would be better for the child than if no order were in place.

Those principles are well established. Amendment 116 cuts across them by, unhelpfully, giving significant weight to the availability of alternative services. That availability may not be known to the hearing or to the sheriff, or it may not be clear that referral to those services would be in the best interests of the child. The hearing can only make decisions in relation to the child; the amendment appears to require decisions to be made about the parent or primary carer.

Under the getting it right for every child approach, a child’s plan—regardless of whether it is a non-statutory plan or a statutory looked-after child’s plan—should offer the child or young person and their family a simple planning, assessment and decision-making process that leads to the right support at the right time. The plan should reflect the voice of the child or young person at every stage and should include a clear explanation of why the plan has been created, the personalised actions to be taken and the expected improvement for the child or young person. Sue Webber’s amendment is problematic because it would effectively require the chair of a hearing or a sheriff to include an assessment of possible alternative options in that plan. That would be an inappropriate interference with their decision making and would potentially confuse the child and their family about what support would be provided.

Ultimately, the role of any child’s plan is to put support for the child first and foremost. When a plan has been put in place, children’s hearings will review it as part of their decision-making process. However, the ownership of and responsibility for creating and implementing a looked-after child’s plan rests with the local authority and multiagency partners. I hope that Sue Webber appreciates that her amendment would be problematic because it would bring into statute a non-statutory plan that is designed to create a range of supports for children.

Also, and perhaps more worryingly, her amendment would cut across the well-established principles of decision making in the hearings system, in which the child’s welfare is the paramount consideration. I encourage her not to move it.

I also encourage Jeremy Balfour not to press his amendment 50 or move his amendment 53. If he does so, I encourage members not to support them for the reasons that I have laid out.

I hope that members will support all my amendments in the group.

I welcome the opportunity to speak to this group of amendments. I thank Ross Greer for explaining the intent of his amendments, and I look forward to hearing from other members on the intent of their amendments in the group.

I have considered amendment 109 in the name of Roz McCall, amendment 189 in the name of Ross Greer and amendments 200, 202 to 204 and 206, in the name of Martin Whitfield, all of which seek to require and impose on the child an opt-out model of referral to children’s advocacy services. I have also reflected on the discussions that we had on advocacy matters at last week’s meeting, which included a sensible examination of what a balanced model of access to advocacy should look like. We agreed that that balance involved the consideration of child-centred planning and practice and of power dynamics and risks, and respecting children’s rights and privacy.

The core concern that I still have about developing an opt-out model of children’s hearing advocacy provision is how it would impact on children, some of whom might move in and out of care during their childhood as a result of interactions with the hearings system. The Government is also concerned that the opt-out approach does not match up with encouraging genuine relationship-based practice. The current children’s hearings scheme, which is co-designed with advocacy providers, has operated successfully for more than five years, and independent evaluation in November 2024 confirmed its effectiveness. That independent research said:

“Many said that they felt in charge of the relationship, and in control of how the advocacy worker supported them and represented them. Some said that this was a very different relationship than they had with other adults in their lives”,

with one young person commenting:

“I’m basically the boss because I tell you what to say and then you tell others.”

Advocacy should deliver agency and empowerment to children, but that will not be the case from the outset when the state has assigned a worker to them or imposed one on them. In an opt-out model, children will not feel, as they should, that they are the boss. Hearings-experienced young people from the Our Hearings, Our Voice board also gave their views on and experiences of advocacy. One person said that children should be able to say yes or no to an advocate if they do not like them or get on with them.

I do not support upending the current needs-led and demand-led, child-centred model that has operated in Scotland since 2020. That approach emerged from almost nine years of testing, options appraisal and modelling. Opt-out would necessitate advocacy provision being made for each child who is referred and would entail the recruitment of a standing army of advocacy workers that evidence shows is not needed or wanted.

Children should be able to choose whether independent advocacy is what they want and need, and we should respect that they might have other trusted adults whom they choose to support them. In some cases, for children who cannot so easily express their view, the authorisation of those trusted adults to refer children for independent advocacy, as needed, is equally important.

Cost is not the determining consideration; putting children’s needs and wishes first is.

However, it is important to record that an opt-out scheme in the hearings system would increase costs to the public purse at least fivefold compared with the current scheme. When the clear evidence and experience show that there is nothing approaching that level of demand from children, we can agree that it is not necessarily needed. Creating an opt-out model could require children to move from existing trusted advocacy relationships to new ones at critical points in their care journey. The approach risks overriding children’s wishes to fit with a state-imposed scheme and disrupting the individualised and person-centred approach that we have agreed that we wish to see.

12:00

Current advocacy provision under the national scheme is not simply opt-in. There is also an important demand-led and evidence-led dimension. The current advocacy scheme supports around 18 per cent of children’s cases at an annual cost of £2.1 million. Since its introduction in 2020, when the scheme supported an initial 10 per cent of cases, provision and resourcing have steadily risen, with ministers successively releasing more funds in response to recorded and identified demand from providers. There is no current evidence of unmet need for children’s hearings advocacy. Around one in five children say that they want advocacy for their hearings. There is a current functioning mechanism that matches the presenting demand. I believe that an organic and child-led approach is the right one.

Throughout the bill process, members have been concerned about imposed or unintended power imbalances. We should not paternalistically assign an advocacy worker to every child, leaving the child with the burden, pressure and expectation of rejecting a powerful professional figure.

Other bill provisions and non-legislative efforts will do more to promote advocacy and increase uptake. I recognise the statistic that Mr Greer has pointed out in relation to the uptake of advocacy. We have proven that we will respond positively to demand where it is needed.

I agree with members that there needs to be a balance, and I am open to working with members on developing the right course to achieve that. More should be done to positively encourage and inform children at every opportunity about their rights to independent advocacy and to be supported by trusted adults and the professionals around them at the right time. An early and on-going effort is where the focus should be, instead of imposing an opt-out approach.

There are significant privacy considerations, such as where the child is too young to consent to having their personal information shared, or where parents and carers have not given their prior consent to approaches being made. The Children and Young People’s Commissioner Scotland has commented specifically on that in regard to children’s hearings advocacy amendments, saying:

“We believe that access to independent advocacy should be on an opt-in basis. While we understand the issues suggestions of automatic referral to advocacy seeks to address, we believe opt-out approaches may represent a disproportionate interference with children’s privacy rights. We are concerned that amendments 189, 109 may do this.”

I respectfully disagree with Mr Mason. It is not a one-time-only offer. If a child has had bad relationships with adults and distrusts services, they very well might not accept advocacy in the first instance, but they will most likely have trusted relationships around them. As I have just laid out, I believe that the offer and encouragement of advocacy should be stepped up. In an instance in which a child distrusts services, they will be educated about what advocacy does in providing and standing up for their views, and they will be encouraged to use it.

I do not think that an opt-out model would effectively tackle the problem that Mr Mason set out. Even if someone is referred to such services, that distrust will still be present and might be harder to remove if an advocate is in place. Therefore, I respectfully disagree with Mr Mason’s comments. I hope that that provides a bit of clarity.

Amendments 51 and 79 are connected. Amendment 79 will replace provisions in section 14 of the bill on notification of hearings in proposed new section 69A(7) of the 2011 act by inserting, after section 18 of the bill, a new duty into the 2011 act. The new duty will require that a child’s advocacy workers be notified in a timely manner by the principal reporter of the hearing’s time and location in order to enable them to represent the child’s views at the hearing.

On amendment 80, in the name of Jeremy Balfour, section 18 of the bill already includes new duties on local authorities, police constables, health boards, the principal reporter and others to provide information to a child about the availability of children’s advocacy services prior to a referral to a children’s hearing. At the point of giving the principal reporter information about the child, they must also provide the child with information about the availability of children’s advocacy services. Although we support the intention behind the amendment—that advocacy services should be signposted to children at “the earliest possible opportunity” in order to enable their effective uptake—the amendment would increase the duty on the chairing member of the hearing in section 122 of the 2011 act, and it would not improve earlier access to advocacy for the child. That is because the point at which a hearing is convened and a chair is in conversation with a child is far too late for a child to be informed for the first time about the availability of advocacy—that should have already happened, as is recognised in the code of practice that underpins the scheme, which has run successfully for the past five years.

I highlight the point that our proposed policy is not just the Government’s position regarding the power imbalance. The Children and Young People’s Commissioner Scotland had very clear views on that. If an advocate is assigned to a child or young person, they may feel forced into taking that advocate on, rather than it being a choice for them. I am interested to hear Mr Whitfield’s reflections on that.

I am sorry, Mr Whitfield. I did not catch exactly what you wanted me to say.

I want to provide some information, and if there is anything further, we can pick that up later. I recognise that Martin Whitfield, with his amendment 190, seeks to address an issue of common concern. He is right that much of what I said on a previous group of amendments is relevant to this group. However, work is under way to improve timeframes, so I want to provide a little context around that.

Continuous system-wide multi-agency action is being taken to reduce the time to establish grounds and, more broadly, to deal with drift and delay in the system. Much of that is covered in the bill, but wider work is also being done. The time interval standards, which were established in 2001, are being revised by a multi-agency group in order to continue driving efficiencies. Between 2022 and 2025, the Scottish Children Reporters Administration has increased the proportion of cases with a first hearing arranged within 20 working days from 50 to 70 per cent.

Not only do the core system partners recognise the need to address the delay in the system, they have an established and effective mechanism for doing so. The courts and judiciary, the SCRA and other partners are working together with a view to ensuring that the existing system works more efficiently. Indeed, the approach has been successfully tested in Glasgow and Strathkelvin, and in that sheriffdom, the average time that is taken to complete referral proceedings has reduced from 89 to 66 days.

12:30

The sheriffs principal are currently considering the introduction of a national children’s referrals practice note to ensure a consistent approach to the processing and management of children’s referral cases across Scotland, so that cases are concluded efficiently and within optimum timescales. I would be happy to provide the member and the committee with more information on the non-statutory work in that area, if it would be helpful. We have also sought to eliminate drift and delay through the proposals that we have put into the bill, particularly to expedite processes around grounds for referral.

As indicated in the Government’s response to the “Hearings for Children” report, we have explored and consulted on issues. For example, we consulted on the time limit proposal in July last year through the development of the bill, and we have further explored the efficacy of introducing time limits for the establishment of grounds in our discussions on the bill with the SCRA and the Scottish Courts and Tribunals Service. It is not clear from those discussions whether imposing a flat, arbitrary time limit that could not be altered in appropriate circumstances would serve to expedite matters for children.

In fact, it is potentially significantly damaging to legislate in that way. Certain activities can take time in the hearings system for child-centred rather than system-led reasons, and there are potential rights implications arising from arbitrarily compressing timescales. At various stages, children and families need time to absorb the information that they receive, time to source—and potentially take—legal advice, and time to consider their response. Other actions might be deemed necessary in the process, and those take time, too. Appointing safeguarders, commissioning expert reports and accounting for the scheduling of hearings into families’ busy lives all contribute to decision makers arriving at an informed, defensible and sustainable decision for each child, and I think that that could be compromised by statutory timescales. There are also some cases that are, of course, extraordinarily complex.

As I have said, I recognise the intent behind Mr Whitfield’s amendment, and I appreciate his opening comments. I am happy to provide further information on the work that is under way and to discuss the matter further. Given the live dialogue and the work that is on-going on achieving the objective that the amendment sets out to achieve, I will explore lodging a child-centred and deliverable provision at stage 3, so I ask Mr Whitfield not to press his amendment.

On a similar topic, I thank Roz McCall for lodging amendment 198. She might be aware of the blueprint for the processing of children’s hearings cases—the time interval standards—which was published and adopted by hearings system partners in 1999,. An updated scheme was introduced in 2001, which extended beyond police, local authorities, reporters and hearings to include safeguarders, courts and health professionals.

Detailed performance reporting on timeliness is a regular and public feature of children’s reporter annual reporting. It also features in care inspectorate assessments of local children’s services, specifically on the preparation of social work reports for the reporter. There is also a data workstream of the children’s hearings redesign programme, and in the next session of Parliament, I expect the board to advise the new Government on how to develop and introduce an updated, extended and sustainable scheme to measure performance and assess areas for improvement.

I will speak to my amendments in the group first.

Amendment 74 was lodged in direct response to the outcome of a judicial review in which the opinion of Lady Carmichael was clear that the statutory safeguard contained within it is required. It is designed to prevent frivolous or vexatious reviews of a child’s case by relevant persons in children’s hearings. Currently, there is nothing to prevent a relevant person from repeatedly exercising their right to seek variation of an order. Lady Carmichael considered that right to be particularly problematic because of the continual state intervention in a child’s life when such a review has no prospect of changing an order. In particular, she mentioned

“The unfettered potential for calling repeated reviews where there has been a background of domestic abuse of one relevant person by another”.

Amendment 74 seeks to remedy that situation and I hope that members will support it.

Amendments 75 and 76 will remove the timescales from the proposed new sections 128B and 164A of the Children’s Hearings (Scotland) Act 2011, which had been intended as placeholders at introduction of this bill. Following engagement with the Scottish Courts and Tribunals Service and the office of the Lord President of the Court of Session, it is their preference that we work with them to produce court rules that govern the procedure for appeals on such decisions, rather than setting potentially challenging timescales in primary legislation.

It remains the Scottish ministers’ intention that such cases be dealt with as quickly as possible. That will continue to be the case as we work collaboratively on the necessary court rules on timescales. I hope that members can support those changes.

I thank Martin Whitfield for lodging amendments 193 and 194. It is potentially helpful to include consideration of children’s rights under the UNCRC in such cases, and I am content to support those amendments. However, I may need to lodge some amendments at stage 3 to tidy up the provisions.

I move amendment 74.

I have nothing further to add. I press amendment 74.

Amendment 74 agreed to.

Section 16— Removal of relevant person status

Amendments 193 and 194 moved—[Martin Whitfield]—and agreed to.

Amendments 75 and 76 moved—[Natalie Don-Innes]—and agreed to.

Section 16, as amended, agreed to.

After section 16