Children (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 27th May 2020.

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Photo of Margaret Mitchell Margaret Mitchell Conservative

As the convener of the Justice Committee, I am pleased to have the opportunity to speak in the stage 1 debate on the Children (Scotland) Bill and to thank all the organisations and individuals who gave evidence.

Although the evidence taking pre-dated the pandemic, many of the issues in the bill, including the functioning of our family courts, access to child contact centres and arrangements between separated parents, have been severely impacted by the virus.

I thank Justice Committee members for not just their work in scrutinising the bill but the very constructive way in which they helped to finalise our stage 1 report during lockdown. The entire committee wants to put on record its gratitude and thanks to the Justice Committee clerking team, who had to complete the report and have it agreed remotely by correspondence in very difficult circumstances.

The bill amends the Children (Scotland) Act 1995 and seeks to do four things: to ensure that the views of the child are heard in contact and residence cases; to further protect victims of domestic abuse and their children; to ensure that the best interests of the child are at the centre of contact and residence cases and children’s hearings; and to further compliance with the United Nations Convention on the Rights of the Child in family court cases. Overall, the committee considers that the bill is a positive step forward in achieving those policy aims.

The committee considers that it is an important principle that the views of the child or young person should, wherever possible, be heard in court and taken into account in the decisions that affect them, and that a 12-year-old child is no more able to express a view than a child one day short of his or her 12th birthday. However, consistent evidence confirms that the current presumption with regard to age has meant that, in practice, the views of younger children are not routinely heard. The committee therefore welcomes the Scottish Government’s response that it will lodge amendments at stage 2 to strengthen the provisions in sections 1 to 3, to try to avoid

“the risk of the capacity exemption being used excessively by decision makers.”

The bill and legislative change alone will not be enough to ensure that the voice of the child or young person is heard. The allocation of sufficient resources and proper processes to ask children how they wish to express their views will also be required. Will the minister therefore address the powerful evidence that was presented that the infrastructure for taking children’s views needs to be strengthened and that the necessary resources need to be put in place?

Scotland’s network of family mediation and contact centres are operated primarily by Relationships Scotland, which plays a pivotal role during family break-ups by providing mediation between separated couples and enabling parents who are separated to see their child or children. The committee considers that child contact centres must operate to high standards with a fully trained workforce. We therefore welcome and support the provisions in the bill on regulating those centres.

However, it is clear from the evidence that the committee heard that there are significant concerns about the impact of regulation on contact centres’ ability to continue to operate. In stark terms, without the provision of sufficient resources to help contact centres to upgrade and adapt, some may close. The committee therefore welcomes the Scottish Government’s commitment to tell the committee, before stage 2, how much additional resource will be made available to Relationships Scotland to take it through to the end of the financial year and to move it forward to a sustainable funding model in the long term.

Furthermore, it would be helpful if the minister would explain in summing up the debate why she and her officials cannot give the committee a response to the findings of the Care Inspectorate on how contact centres should be regulated.

Additionally, the committee recommended that the bill should be amended to ensure that all referrals are made to a regulated contact centre. Given that that has been rejected in favour of issuing guidance only, will the minister explain why that approach is favoured? Does that mean that some contacts may be referred elsewhere, and potentially to unregulated bodies?

The committee makes a number of other recommendations that are aimed at improving the law and practice relating to disputes over children. Those include the factors that a court should take into account when considering a child’s welfare. It is fair to say that the section of the bill that deals with that issue attracted little judicial support. Prior to the 1995 act, those matters were left to the judiciary. In 2006, two factors that the judiciary should take into account were introduced, and now the bill proposes the addition of two more factors. The committee considers it necessary to go one step further and expand the list of factors in section 12 to include those that have been suggested by the UN Committee on the Rights of the Child. That recommendation has not been agreed to, and it would be helpful if the minister would explain why. Quite simply, given that the Scottish Government intends to introduce another bill to incorporate the UN Convention on the Rights of the Child into Scots law, it seems sensible to incorporate relevant rights into this bill now.

The bill also regulates child welfare reporters who, through their reports, have an important role in informing the courts. The committee made a series of recommendations in that regard, and although the minister has agreed to some of them, I ask her to provide some detail regarding how she intends to ensure that child welfare reporters are appropriately trained and fairly reimbursed and how she will diversify the pool from which reporters are currently drawn.

Witnesses told the committee that courts are rarely the best place for resolving family disputes and that mediation and early resolution help to prevent people from becoming entrenched in their positions; they also help to reduce trauma. Merely signposting people to mediation will not be enough to convince a set of parents to find out more about the option. As it has done previously, the committee has unanimously recommended that mandatory mediation and information meetings should be piloted, with an exception for domestic abuse cases. Will the minister address why the recommendation was rejected? Will she acknowledge that lack of legal aid is one of the barriers to greater use of alternative dispute resolution and explain why no progress has been made since the committee published its alternative dispute resolution report in 2018?

I turn to the important issue of access by grandparents to their grandchildren. It is a sad fact that many grandparents lose contact with grandchildren when parents separate. The committee heard calls from some groups for access rights for grandparents. At present, no such presumption appears in the bill. Despite the publication in 2006 of the charter for grandchildren, members heard that it has not been effective in improving contact between grandchildren and grandparents. The committee therefore welcomes the minister’s commitment that she will do more to help promote the charter and see it used more in practice.

Committee members will speak to other issues, such as those to do with some of the bill’s terminology, shared parenting, court delays, sibling contact and the maintenance of appropriate and proportionate confidentiality for children and young people. Those issues will re-emerge at stage 2.

The committee has much pleasure in supporting the general principles of the Children (Scotland) Bill.