The interface between permanence orders and the children's hearings system is a complex but important area that has given rise to a great deal of comment and, indeed, has been the subject of some discussion with Lord James Douglas-Hamilton, Adam Ingram and other members. I repeat my thanks to those who have contributed to the discussions on the bill's provisions in this area and I hope that we have listened carefully to all that has been said. Although what we have come up with is not our original proposal, we think that it provides the best practical way forward for the child and the process.
Amendment 124 seeks to place a duty on the children's hearing to prepare a report for the court if it proposes to make or to modify a supervision requirement, when there is a live application for a permanence order or when such an order is subject to variation or amendment. If the court is content with the proposal, it can remit the child's case back to the hearing under section 91A(3), which allows the hearing to make or to modify the requirement. Without such a remittal, the wider terms of section 91A would prevent the children's hearing from doing that.
Two principles apply to the period when the permanence order is live. First, if there is a conflict between the permanence order, which is a court order that has been made by a higher authority, and the supervision requirement, which is a broader, longer-term provision, the permanence order should prevail. Secondly, as the children's hearings system is usually responsible for providing for the welfare of children, the people who are involved in the system are, given their previous involvement in such matters, perhaps the best equipped to hold the detailed discussions that
Amendment 125 seeks to delete section 91A(2), which says that
"No supervision requirement in respect of the child may be made or varied", and to replace it with wording that takes account of the fact that, in addition to being varied, the supervision requirement might require to be modified under section 73(9)(d) of the Children (Scotland) Act 1995 to insert in the requirement any requirement that could have been imposed under section 70(3) of the 1995 act.
Amendment 49 is a tidying-up amendment that seeks to clarify the provision in section 91A.
Amendment 126 is linked to amendment 124, which seeks to introduce the new section on the duty of the children's hearing to prepare a report for the court. It seeks to make it clear that the court's power to remit cases to the children's hearing is not limited to cases in which it receives such a report. For example, proceedings during a permanence order application might bring up a matter that is best handled by the children's hearings system. Under section 91A(3), the court has the power to remit a child's case to the children's hearing on its own initiative, as well as when it receives a report from the children's hearing.
On amendment 51, in the name of Adam Ingram, the question is whether, in the period between the making of an application for and the granting of a permanence order, the court should deal with all matters relating to any existing supervision requirement to which the child may be subject. Amendment 51 suggests that, with a few specific exceptions, that should be the case. We do not agree, because we think that the expertise and experience of the hearing and the court are different. We do not think that a sheriff is the best person to decide how best to conduct a routine review of a supervision requirement or handle minor truancy or petty offending incidents. Discussions on such matters properly belong with the hearing; it would probably be of no advantage to the child or the process to have them dealt with by a court.
We accept that there is a risk that, in some cases, a children's hearing might make supervision requirements—particularly in relation to contact, which is potentially the most contentious area—that send the child in a different direction from that in which he or she will ultimately go after a permanence order is made. To remedy that, we have given the court an ability to make interim orders. Amendment 153 will ensure that if there is any conflict or inconsistency, interim orders will prevail over any supervision
Amendment 52 will ensure that the wording of section 91B(1) mirrors that of section 91A(1); it has no substantive effect. The purpose of amendment 53 is to ensure that in section 91B, as in other parts of the bill, the phrase
"variation of a permanence order" includes amendment of the order to give permission for the child to be adopted.
Amendment 153 makes it clear that if a child in respect of whom an interim order is made is subject to a supervision requirement and the provisions of the order conflict or are otherwise inconsistent, the provisions of the order prevail. If I remember rightly, that issue was dealt with in a manuscript amendment at stage 2, as a result of an accidental omission at an earlier stage. I may be wrong about that because I have lost track of which amendment is which. Amendment 153 is an important amendment, at any rate.
Amendment 54, in the name of Adam Ingram, seeks to deal with the situation in which the permanence order has been made and the children's hearing proposes to vary an existing supervision requirement or to make a fresh one. We are clear that, once a permanence order has been made in respect of a child, the child should be treated in the same way as any other child, which includes preserving their right to have any relevant issues that affect them dealt with by the children's hearing rather than by the court. As I said at stage 2, that will avoid legal aid and a panoply of other matters coming into play when that is not necessary. We do children no service if a case of minor truancy or an offending issue that arises some years after the permanence order was made leads to the involvement of a court as well as a children's hearing. We receive complaints about the difficulty that children have in following all the events that swirl round them as important decisions about their lives are made.
We acknowledge that, in a few cases, after a permanence order has been granted, a birth parent who has some remaining parental responsibilities and rights might seek to trigger a review of a supervision requirement, perhaps with a view to obtaining greater contact than is allowed for under the permanence order. Such cases will be rare because birth parents will often be left with no responsibilities or rights. The supervision requirement will usually be revoked when the permanence order is made, so there will be no requirement to review. That is what we anticipate will happen in most cases.
If there is a review, the hearing is likely to be wary of making a supervision requirement that would conflict with the permanence order.
However, if the hearing took a decision that the local authority or the reporter thought was misguided, remedies would be available. The local authority can appeal a procedurally flawed or clearly unreasonable decision to the sheriff and can seek to vary the permanence order, which would bring in the arrangements to do with the permanence order being live and would allow interim orders to be made that superseded the supervision requirement, if the court agreed. In addition, the local authority can seek to vary the order to remove the birth parents' remaining parental responsibilities and rights, if they are being abused to trigger vexatious reviews. There are plenty of remedies to deal with those relatively unusual circumstances.
Group 15 is a complex but important group of amendments. We take the view that during the period of activity of an application for a permanence order—or of an application to change it—the permanence order will prevail, but incidental matters will be dealt with in the usual way by the children's hearing. Once the permanence order is in place, the children's hearing comes into its own in the usual way, as it would if the children were living with their own parents. That provides a logical, philosophically acceptable and—I hope—practical framework for such matters to be dealt with.
I move amendment 124.
As Robert Brown rightly said, the amendments in group 15 address a complex area of the law and practice. The adoption policy review group was exercised by the issues with which the group deals. The key problem stems from an overlap between the children's hearings system and the courts that deal with adoption. The adoption process can be derailed if the two bodies cannot be aligned and end up making contradictory or differing decisions.
To solve that problem, the adoption policy review group made two recommendations. The first of those would govern what happens when a permanence order application is made for a child who is subject to a supervision requirement. The recommendation was that, during the period when the permanence order is being determined, any existing supervision requirement should continue in force but any changes should be made by the court rather than by the children's hearing that made the supervision requirement. In addition, any interim orders that are made by the court should supersede inconsistent conditions of the supervision requirement.
The point at issue is that the Executive's attempts to implement that recommendation in sections 91A and 91B appear not to be fit for purpose, even with the adjustment that is proposed in amendment 153. BAAF Scotland has
The upshot is that there is a fear in professional circles that, because the interface between the court and the children's hearing is not set out in line with the APRG recommendation, local authorities will not use permanence orders. If that is so, the bill's key reform mechanism will be dead in the water. That is a situation that none of us would wish to see. Amendment 51 is offered as a solution to the problem of implementing the APRG recommendation.
We are in a very unhappy predicament here. Serious questions are being asked about, essentially, the competence of the bill's draftsmanship. Last minute manuscript amendments were made to critical provisions in the bill. I do not see how the minister can convincingly rebut the detailed criticisms that are made in the BAAF briefing. Members present should be aware that the briefing and amendment 51 were prepared by the independent legal adviser to Sheriff Principal Graham Cox's adoption policy review group and that BAAF has the support of the Association of Directors of Social Work in its concerns. I urge the minister to accept amendment 51 and thereby dispel the fears of a fundamental flaw in the bill.
Amendment 54 would reinstate the APRG's second recommendation, which the Executive has decided not to implement, on the interface between the court and the children's hearing. The provisions in amendment 54 would govern what happens after a permanence order has been granted and the hearings system is still involved, or wants to become involved, with the child. The amendment would again give the court primacy for any variation of the conditions of the permanence order. The fact that such children would be treated differently in the hearings system would be offset by the consideration that there must be some limit to what a hearing may do about the residence, contact and basic welfare aspects of the life of a child who is already subject to a court order. If a permanence order is to work, it must provide a significant level of security for the child.
I intend to move amendments 51 and 54.
It is crucial that we get the interface between the court system and the children's hearings system right if we are to move forward with permanence orders. As members may or may not be aware, tensions have always existed since the Boarding Out and Fostering of Children (Scotland) Regulations 1985 (SSI 1985/1799) made it difficult to talk about adoption when, under the Social Work (Scotland) Act 1968,
We need to be careful that we get the interface between the children's hearings system and the court system right. If we fail to do that, the concern among some people is that the permanence order will not be used. There are too many good ideas in child care legislation that have never been properly implemented—although the idea was sound, the legal framework in which it was to be enshrined became too difficult and people shied away from it. Today, we have to ensure that we have that right and that we have a piece of legislation that is fit for purpose.
Our difficulty is with the different roles and responsibilities of the two systems. We have to be careful to ensure that a supervision requirement from a children's hearing can in no way impede the process of the permanence order. That goes to the crux of the matter that we are discussing. When the court is considering making an interim or full permanence order, there should be nothing in any supervision requirement that might still be in place that could be used to subvert the order. Because of the way in which reviews can be called—albeit that it might be the annual review—several people, including the young person, can request a review under the 1995 act. That means that several people have the opportunity to interfere with the process.
I listened carefully to the minister and he seemed to be quite clear that that would not be allowed to happen. However, I would be interested if he could expand on that during his summing up; it strikes at the heart of what we are discussing. If the supervision requirement that a children's hearing makes on a child and the court are going in slightly different directions, and the two do not properly interface, we could end up with a piece of legislation that does not just confuse but acts in a contradictory way for the young person. I want to hear from the minister a very clear exposition of how, when the court is deciding on the interim order and granting the permanence order, we can be sure that supervision requirements that are made by a children's hearing will not interfere with that in any way.
It is important that we have a proper debate on this issue today and that members should not forget that the bill is about considerably more than what we debated this morning. The point about the interface between the children's
In our stage 1 report, we said:
"Concerns were expressed about the lack of detail over how permanence orders and the Children's Hearings system will interact. Despite the fact that both systems put the interests of children first, the two systems serve very different functions. The adoption system (of which permanence orders will form part) creates a permanent new family for a child within a legal framework of rights and responsibilities. The Children's Hearing system addresses temporary problems than can be handled within the existing family and involves lay members of the community."
In our recommendation, we welcomed the minister's commitment to address the need for clarity about the interaction between permanence orders and the children's hearings system, and the fact that he stressed the need for guidance to be issued on the subject. We also considered the matter at stage 2 and here we are talking about it again at stage 3.
It concerns me that this is a complex area and stage 3 is not the best time to try to sort out such issues. I am concerned about the system that we end up with, whatever Parliament approves. There are two approaches: Adam Ingram's approach, which comes from BAAF Scotland, and the one that the minister presented. Neither the committee nor the Parliament has had the opportunity to interrogate the two systems to find out which is the right one to adopt.
I agree with the member's comments. Given that the ADSW, which will have ultimate responsibility for so many of these children, supports the amendments in the name of Adam Ingram, does he not think that we should pause for reflection and go with the ADSW? It will have to apply the legislation and it is telling us that it wants the amendments in the name of Adam Ingram.
That is part of the debate that we are having. It is difficult to consider these issues at stage 3, especially when there is such a divergence of views on such a crucial matter. It is very difficult for members who have not been involved in this process. Robert Brown talked about the Deputy Presiding Officer's eyes glazing over this morning, but I think that everyone's eyes will glaze over. I should say that Mr Brown was not talking about the Deputy Presiding Officer who is in the chair just now—I just want to make that clear. It is understandable when we are dealing with a complex technical issue. No one can know how the interfaces will work until they are applied. It worries me slightly that if the professionals have decided that the interfaces will not work, they will not even try to apply them in order to find out whether they do. That cannot be allowed to happen.
I am not saying that the Executive's amendments are wrong or that the amendments from BAAF are wrong. I am saying that, whatever approach we adopt today, we must try to ensure that it works and that everyone buckles down to that task. I am not a legal expert and have never been involved in the children's hearings system. The comments of Scott Barrie, who has been involved in child social work, were valuable, but it is difficult for us to make decisions on the issue today.
I want the minister in his response to provide a clear indication of why the Executive has decided to take a different route from the one that was proposed in the APRG's report. What is the best response that it can give at this stage to the BAAF briefing that has been issued to members? I accept that it has had a short time to respond to that briefing, just as BAAF had a short time to respond to the Executive's amendments. I want to get a clear indication of why the Executive is proposing to take the route that it has chosen and how it will ensure that the system functions, if it is put in place.
As has been said, permanence orders are a crucial part of the bill. They are about changing the lives of young people who go into local authority care and about moving from the very uncertain system that we have had until now to a system that, by definition, gives young people a degree of permanence in their lives. It is important that we get the system right and that practitioners do not say that they will not use it because they think that the courts or the children's hearings system will muck it up. Let us get clarity on this important issue from the minister in his response.
Although I am a non-practising Queen's counsel, it is most unlikely that I will be involved in court proceedings on this subject. I am glad to support the amendments in the name of Adam Ingram, which would enable the court to handle all matters relating to a child during and after the application for a permanence order. It is very much in the interests of children that there is clarity and consistency of decision making about their welfare. Scott Barrie echoed that point.
The current legal structure, which allows the court and the children's hearing to make conflicting decisions, causes distress and uncertainty. Executive amendments at stage 2 alleviated the problem considerably, but not entirely, when an application for a permanence order is pending before the court. The problem has not been tackled at all in situations where a permanence order is in place, which gives rise to the particular need for amendment 54.
I understand that the minister is reluctant for cases to be referred back to court when no
This is very much a matter of balance and judgment. I believe that the two amendments in the name of Adam Ingram resolve the problem and I am happy to support them.
As has been said, this is a complex and difficult area of the law. I find it difficult to understand why, after two years of deliberation, the APRG's recommendations should be set aside. It would be helpful if the minister would explain that further. I appreciate that the recommendations were made on a majority basis, but they followed very detailed and careful consideration of the issue.
I am particularly concerned about the situation after the permanence order is made, which was the subject of the second recommendation of the APRG. There is obviously an important role for the children's hearings system but, once an order has been made and variation to that order is sought, I am not at all clear that the children's hearing is the appropriate forum for alterations to be put in place.
The detailed briefing from BAAF, particularly on amendment 54, gives cause for concern. The Executive has come forward with a ranking system, but that system appears to be dependent on an interim order. If an interim order is to be sought on the basis of a dispute, or potential dispute, how can we be clear that a court will grant that order? If, for example, an order is sought to head off a potential dispute, there may be no cause shown, so the court will not be minded to grant the interim order. Also, if local authorities are in some way deterred from seeking interim orders, because the court will not grant them, the purposes of the bill relating to permanence orders will be undermined.
It would be helpful to hear from the minister precisely why the APRG's recommendations have not been followed, and to have a clear indication from him as to why the court is not the appropriate
I thought that I had set out as clearly as I could in my introductory comments the basic outline, as well as some of the detail, of the way in which we were trying to approach the matter. To summate, because it is important that members have it in mind, we took the view that there is a difference between the period when the permanence order is live and the period when the permanence order has been granted and is in place, at which stage the function of the court is defunct. The policy has been developed on that basis.
I entirely accept that, having said initially that we were going to accept the recommendation of the majority of the adoption policy review group, we moved away from that position as we worked through the implications of that recommendation in detail. I apologise to members for that but, as I have said, it is a complex area of the law and it was important to get the bill right as the policy developed. I stand by my position that the arrangements that we have in place are both philosophically right and practical. After the bill goes through, we will certainly examine the detailed arrangements that are put in place, to consider whether there is a need for guidance or for other arrangements to reinforce that position.
I take seriously Iain Smith's point about the fact that practitioners must be confident about using the new arrangements that will be in place. At the moment, we are in the middle of a debate about that. The proposition before us is the one that the Executive is making about how that should be done, and I have explained the different functions that I envisage the children's hearing and the court having in that regard.
At stage 2, if I recall correctly, I talked about what I saw as the disadvantage to the process and to children of having to go to court for all sorts of routine issues. There will be situations in which legal aid applications must be made, there will be delays and there will be the involvement of the higher authority, which might not be necessary for many of the detailed issues that come before a children's hearing, particularly if the issue arises a number of years down the line after the permanence order has been granted, as it could be to do with something entirely different, such as offending when the child gets into the teenage years.
I want to separate out two issues. The minister is talking about a situation that arises after the granting of a permanence order, but the major concern is about a situation in which a permanence order is pending. That is when the court should have paramouncy. As I understood it, the Executive accepted the APRG's
In fairness, a number of points have been made in relation to both the provenance of the permanence order and what happens once it is in place. I will deal with both those situations.
We have considered the practical implications on the ground of having to work these things through. We can visualise a number of situations that may arise. A permanence order may be applied for while a supervision order is in existence. Obviously, there is a potential for conflict, but we try to deal with that issue in the amendments. The court is able to make interim orders to bring that conflict to an immediate end if it sees fit. It has been suggested that the court might not have all the information, might not see fit to do that and might not take the matter forward but, as I understand it, interim orders are available at various stages and can be brought back if necessary at a later stage. Therefore, that is not an overriding concern. When, during that period, there is a conflict between a children's hearing order and a permanence order, the permanence order will rule, as we have already said in—I think—section 91. That is an important overarching principle, regardless of the practical details of how it works its way through.
There might be no supervision order. In that case the situation is more straightforward and there is not the same complexity.
I refer also to the powers that the children's hearing has in this situation. As we indicated previously, while a permanence order is pending—while it is live before the court—the children's hearing can go through the routine processes to continue a supervision order or it can get rid of the supervision order. However, it cannot vary the supervision order, impose new conditions on it or do things of that sort that might cause conflict with the permanence order. I do not see that there is practical conflict between the potential of the supervision order, the actions of the children's hearing and the reality of the permanence order in the way that some members have made out. In any event, such a situation will arise in only a limited number of cases.
I must deal with the situation after the permanence order is granted. At that point, in the
In that situation, a new supervision order issue might come forward; something new might come before the children's hearing for determination. In that event, the children's hearing can take matters forward as if it were coming to the matter afresh, but remedies are available. If various people think that the hearing has gone off the rails, the court can be brought in on the matter, either by an appeal against the determination of the hearing or by bringing back the permanence order, varying it or applying to vary it and thus bringing on board all the other arrangements in relation to interim orders and so on.
To cut a long story short, I think that the procedure is understandable and workable and that it is better than one in which everything must go to the court, which is the alternative proposal. I say that because, as we have discussed and determined already, the children's hearing and the court have different functions. Children's hearings are better equipped to deal with the shorter-term issues that arise and are potentially more expeditious than the court, as there is no need to apply for legal aid or to deal with the complexities that go with that.
To summarise, we must satisfy people that the permanence orders should be used, are worth while and do not bring complications. I do not think that they do and I think that that will become clear when the legislation goes through and is seen as a whole. We will certainly take on board the comments that have been made and I am more than happy to consider other arrangements that we can make to encourage good practice, explain the outcome of the legislation to people and ensure that practitioners are comfortable with and confident about the ways of taking matters forward. In the light of observations from members, the Executive will have to take that on board, perhaps with greater urgency than I had anticipated when I proposed the arrangements.
I hope that that has dealt with all the issues that have arisen on the matter. I would propose that the Executive's basic approach in this regard is correct, as is the way forward for the arrangements. The Executive's approach avoids that of amendments 51 and 54, which would clutter up matters and cause all sorts of other confusions. This is a complex matter. I am sorry to have to explain it at stage 3. The basic framework was there at stage 2, and what we are doing, after
Amendment 124 agreed to.
Amendments 48, 125, 49, 126 and 50 moved—[Robert Brown]—and agreed to.
Amendment 51 moved—[Mr Adam Ingram].
Division number 8
For: Adam, Brian, Byrne, Ms Rosemary, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Douglas-Hamilton, Lord James, Fabiani, Linda, Fox, Colin, Gallie, Phil, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Petrie, Dave, Scott, John, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Tosh, Murray, Turner, Dr Jean, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
Against: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Baird, Shiona, Ballance, Chris, Ballard, Mark, Harper, Robin, Harvie, Patrick, Ruskell, Mr Mark, Scott, Eleanor