Seòmar agus comataidhean

Good morning. I remind everyone of my entry in the register of members’ interests in respect of having been a teacher in a period that overlapped with this parliamentary session.

This group of amendments is entitled “Permanence”. The amendments are about the situation when young people—in particular, very young children and babies—go into care and the time that is taken for a decision to be made about what the future holds for the young person. One of the most important elements of stability for a young person is understanding what their future will hold, because having stability, even at a pre-verbal age, allows a level of security to develop; without it, the young person constantly questions the unknown that is coming down the line.

I recognise that different views are taken, not about the importance of permanence but about the time for a decision to be made and whether there should be provisions in the bill to force the system to deal with the question of permanence in an acceptable time. It is of note that, in England, decisions about permanent care are taken four and a half times faster than in Scotland.

Looking at the history of the care-experienced community, even predating the Promise, we see that there have been discussions for 20 years about the need for permanence to be discussed early on, appropriately and in the best interests of the child. Throughout that time, Governments and individuals—certainly those who support the care-experienced community—have said that this is an outstanding sore that has not been addressed. We have received promises in the past on how the system would be sped up and how we would ensure that we get it right for every child, yet we find ourselves at the tail end of this parliamentary session with, to quote Ross Greer, the “last opportunity” to deal with this crucial issue.

Different standpoints as to whether setting a time limit in primary legislation is the answer are taken by those outside of this place—and, indeed, inside of this place. If we set a time limit in primary legislation, it has to be kept to by the system. The question then arises as to what happens if, in an individual case, that time limit means that a decision is taken that perhaps will not be in the best interests of the child. I suggest that the overriding philosophy, if not quite yet the statutory provision, is that we should get it right for every child and that there would be an opportunity to make it right. However, I understand those positions.

I am grateful to have had the opportunity to speak with the minister about the matter, and I look forward to what the minister can say by way of reassurance. We should all agree that, in the right circumstances, permanence at the earliest date in a child’s life is crucially important. However, there are situations in which that is challenging. The Government, the Parliament and those that support the more formal way in relation to our cared-for community have an obligation to meet that responsibility. In the right case, permanence is the right decision, and it should not be lost because it is kicked down the line to the point at which permanence ceases to have any substantial function in supporting the development of a child. With that, I will move my amendment and I look forward to other contributions.

I move amendment 167.

Section 10 will create a register of foster carers. My amendments 172 and 173 relate to safeguarding and the information that the register needs to contain. There is a risk that any register can be misused and, indeed, on some occasions, abused. In this day and age—as perhaps it should always have been—it is important to be clear about who owns the data on the register. It is also important that corrections to the register can be sought if errors have been made. My amendments specifically relate to that. They also concern how the information about individuals who have been considered but not approved as foster carers appears on the register. The purpose of the amendments is to ensure that the right information is provided and to protect against any erroneous information being added to the register.

Amendment 173 seeks to encourage the Scottish ministers to consider and take into account foster carers’ ownership of their personal data when drafting regulations about the register. That is good practice that should, in any event, be followed.

Amendments 175 to 177 are more than probing amendments. The register would enable a developmental approach for foster carers. They are an important group but one that is, I am afraid to say, often overlooked in our care system. They often feel that they bear the brunt of difficult and challenging situations, without full and adequate support. They are also expected to go above and beyond in difficult circumstances, often late at night and over weekends.

It is time that the Parliament, the Scottish Government and, indeed, the people of Scotland recognise the incredible work that foster carers do. The register would allow a developmental approach, in that it would give professionalism to foster carers, recognise their expertise and give proper and true credit to their role in our system.

My amendments propose something that is not unlike the model that is followed by the General Teaching Council for Scotland, which governs the registration and entrance of teachers into the profession. It is governed and controlled by teachers, but other statutory bodies, including the Scottish Government, the trade union movement and COSLA, have a role to play, too.

That model has worked incredibly successfully. I absolutely admit that the model could not be adopted straight away for foster carers, but I am curious as to whether the Government would be inclined to develop the environment that would allow that to happen. We have seen the strength of non-Government and non-local authority bodies, such as the GTCS, which has worked successfully to govern entrance into the teaching profession and to monitor the skill sets of those in the profession. A similar model would ensure that the people of Scotland can be confident that foster carers are exactly the right people to deal with some of the most vulnerable children in our society.

I move amendment 172.

Not moved.

Amendment 177 not moved.

To capture the last part of the minister’s contribution in respect of the amendments that I have lodged, it is about understanding not only the capacity, but the reality of the situation. At present, there is conflicting guidance and support as to whose voice will be heard and taken forward, and that is a challenge.

The purpose of my amendments was, in part, to be provocative. There are five-year-olds who certainly have a great deal of understanding of some things and less understanding of others, and if we are talking about five months or 12 months, those are very different scenarios.

Indeed, to revert to some of our earlier discussions, there will be a challenge around decisions that are taken, and on whose authority evidence was taken, with regard to young infants in particular. There needs to be scope to explore that, because there will come a time when either a single chairing member or a panel will be confronted with conflicting evidence that is brought before them as to what is in the best interests of a young child. One of the obligations that we already place on the children’s hearings system is to make a decision in that situation. The panel will need support and guidance to take that decision—that is crucial to avoid conflict or tension or the wrong decision being made.

If the minister is open to further discussion in respect of UNCRC and human rights and how those issues can be articulated—not necessarily in the bill, because there are other vehicles that might be helpful—and if that can be placed on the record, I certainly will not pursue these two amendments today.

The purpose behind amendment 188 is not—to refer to the minister’s contribution—to mandate a requirement for the child to be at every hearing; it is a provision whereby, in order to comply with UNCRC rights, human rights and general accepted jurisprudence in proving that a fair trial has taken place, whoever is the subject of the hearing, irrespective of their age, should have the right to attend, as the minister has articulated, and, in situations where the tribunal or group has decided that they should not attend, the right questions are asked. A failure to do that will render the decision questionable, for a full tribunal, or appellable, if there is a single chair—or perhaps otherwise.

The purpose that sits behind my amendment is to ensure that the UNCRC article 40 right to a fair trial is not only seen to occur but can be objectively proved to have occurred. It is unfair to describe amendment 188 as requiring the attendance of young person. My amendment would ensure that the correct questions are asked, so that the young person, where they are able, or those who represent them or advocate on their behalf, understand what has occurred, by way of deciding whether the young person’s attendance is needed or not.

I am not saying that this point in the bill is the sole place where this matter could be rectified, but the bill as introduced could rightly be challenged with regard to human rights. Both in this place and before I came here, I have always advocated for human rights. It is not a case of trying to force things in the most wrong situation, where, for instance, the young person may be retraumatised or indeed traumatised if they attend; the aim is to ensure not only that their rights are seen to be upheld but that that can be openly proved.

The purpose behind amendment 188 is to ensure that, when very serious questions are asked of a tribunal that a young person has not attended, it can satisfactorily answer them by pointing to a piece of legislation allowing it to go through a series of questions to reach its decision.

This has been an interesting debate so far. We have two extreme positions, in essence. We either have an opt-in model or an opt-out model. The Scottish Government’s preferred option is for an opt-in model, whereas substantial amounts of evidence and argument point to the benefits of an opt-out model, starting with the data that is already there about how successful the services are when properly introduced.

We have already had a debate on the matter, and we will consider what “independent” means. That is a crucial aspect of this element of the bill, although I see that we are much further apart on this matter than we are on the definition of “independent”.

I found some of the minister’s remarks a little challenging. It is unfair to describe my proposal as imposing services on the child; I think that an opt-out model imposes it on the system.

The minister has talked about the importance of relationships.

That is no problem.

I move amendment 190.

I will look to the minister for safety in an intervention, and I can then move amendment 190 to allow the discussion to happen.

I extend my apologies to my colleague Roz McCall for trying to defeat her debate on her amendment. I will now read from the next bit of my script. Following the assurance given by the minister, I seek to withdraw amendment 190.

Amendment 190, by agreement, withdrawn.

Amendments 54 to 59 moved—[Natalie Don-Innes]—and agreed to.

Amendments 191 and 192 not moved.

Amendments 60 to 73 moved—[Natalie Don-Innes]—and agreed to.

Section 14, as amended, agreed to.

Section 15 agreed to.

After section 15

As the minister has indicated, amendments 193 and 194 relate to article 16 of the UNCRC, which provides for the right of children not to be subjected to unlawful interference in their private or family life. The amendments would ensure that, when considering whether to prevent a relevant person from attending a hearing, the UNCRC would be considered on the same basis as article 8 of the ECHR, which is the right to private and family life. As I have argued on many occasions, that right embeds the UNCRC into Scots law and gives further routes for children and young people to challenge decisions. I welcome the Government’s support for the amendments.