Seòmar agus comataidhean

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.

Good morning. In this group, I will talk predominantly to amendment 127, as amendment 128 is consequential to it. In doing so, I look to the minister, who has an amendment to move in this group and a speaking slot, to find out where the Government sits on a lacuna that exists within the law that circulates around the 16th birthday.

If a young person sails off out of the care system before their 16th birthday, they have far fewer rights to advice, assistance and support than those who travel out of it on their 16th birthday or, indeed, the day after. Having spoken to people, my understanding is that the issue arose in the various original legislative slots because, when people talked about children under 16, rather than contemplating teenagers who bring their unique characteristics to the world, their thoughts were more of babies who might spend a short period of time in care then go back to families. The position seems not really to have been considered until this bill, which is very specifically drafted in that the difference occurs on the 16th birthday, which is inconsistent and unhelpful—and, frankly, I am sure, not what anyone expected until the reading of the bill was done.

The purpose of my amendments is to clarify that problem. Amendment 128 would be needed as a consequential amendment. It will be interesting to hear from the minister any other proposals that the Government may have to solve that problem, and I look forward to doing so.

The amendments in my name in this group fall into two categories. There are a substantial number that run from 178, and there is one that sits—and stands—on its own.

Before getting into my contribution, I point out that it is incredibly beneficial, although sad, that we have a group of amendments that again address the UNCRC act—in this case, in relation to restatement and application. On numerous occasions, First Ministers, the Scottish Government, ministers and this Parliament have undertaken to ensure that the UNCRC act, which we struggled to get on to the statute book, would be respected and that opportunities would be taken to bring Scottish law into its scope.

Let me make that more meaningful. Bringing Scottish law into the scope of the 2024 act would open up a vehicle for all our young people if they feel that their human rights have been challenged or taken away from them and would give them what I genuinely believe the people of Scotland want, which is a country, a legislature and a society in which young people’s rights are respected. As that has not happened in the drafting of the bill, I lodged amendments 178 to 184, using the process that the Scottish Government has adopted in relation to the UNCRC act. I refer to the ability to restate the law and bring the provisions on fostering into the bill to give young people who feel that their rights have been challenged or not fulfilled the right, should they wish to exercise it, to pursue that without the challenges and difficulties that exist at the moment and have existed for a substantial period of time. This is about restating various aspects relating to the register so that the UNCRC act would apply.

Roz McCall asked about amendment 181 and whether it seeks a new board. The amendment would provide for an appropriate board to hold the register if necessary in the future. We will all have been approached by individual fosterers and groups that represent the fostering community about the challenge that they feel in terms of parity not only with regard to whether fostering is or is not employment and whether it is paid or unpaid, but the postcode lottery—that is, where the fostering family lives in relation to where young people coming into fostering go. The purpose behind amendment 181 is to allow for something that is akin to the teaching register—I am thinking of a register that would be held by a non-Government body that would represent and speak on behalf of foster carers. It would also guide entry and retention in, and departure from, the register. It is a founding amendment that seeks to ensure compliance with the UNCRC act.

Amendment 217 allows me to wear two hats, the first of which relates to post-legislative scrutiny, which is important. During this session, we have started to recognise its importance for the first time in the Scottish Parliament’s history and we have started to build it into legislation.

I will put my UNCRC hat back on. I hope that amendment 217, which is effectively a sunset clause, will create an impetus. There is strong agreement—I hope that there is still universal agreement—that we seek to comply with the Promise by 2030. Amendment 217 is a gentle indicator that that should happen or else challenges will be made at that time. If acting on such a sunset clause is required, Scotland will be in a sad and disappointing place, but for reasons of clarity and to act as an incentive, it should appear in the bill.

That is not what I am proposing. I am proposing that individuals should have the right to return to the environmental system that we call “care”. Returning to that system might involve someone returning to a foster family that they were previously with. In an emergency, it might involve a door being opened to them and a cup of tea being given while contact is made. Different situations could arise. In any situation, it is impossible for someone to return to exactly the same support as they had previously. If you redecorate your child’s bedroom when they go away, they might say that they do not like the wallpaper when they come back, but they are not entitled to have their old wallpaper back.

However, that is not what these individuals are seeking, and it is not the purpose of all the amendments in this group. It is about having a system that says to individuals that they will not be abandoned or thrown away because they are care experienced and that they have a right to return to care. They do not have an absolute right to return to the exact care package or care environment that they had before they left, because they might have been much younger, for example.

If we talk about 20 years’ difference, we could be talking about a child who leaves the care system at the age of six or seven. However, they would have a right to return to the system that we call “care”, which is being redefined by that which underpins the Promise. As we have talked about, that would actually affect a very small number of children, but they should have the same expectation of support from their parent, albeit a corporate parent, that individuals have from their own parents.

To echo Roz McCall, who is perhaps on the other end of the debate, this has been a very interesting area to discuss. I am glad that the Government has accepted at stage 2 that we need to discuss including in the bill the right to return to care and continuing care. It is perhaps late in the day, but I welcome the Government’s confirmation on where it stands on the matter. It is important to include amendments to the bill at stage 2 that can then be worked on.

I have some concerns about the extent of the amendments that the Government has agreed to support and with regard to—I always have concerns about this—with regard to the UNCRC. However, given the minister’s assurance that discussions will continue, and on the basis that the bill will be amended today, I seek to withdraw amendment 129, and I will not move amendment 130.

Amendment 129, by agreement, withdrawn.

Amendment 130 not moved.

Amendments 131 to 134 moved—[Nicola Sturgeon]—and agreed to.

Amendment 135 not moved.

Section 3—Corporate parenting duties in relation to persons looked after before age 16