Children (Scotland) Bill: Stage 1

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

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Photo of John Finnie John Finnie Green

I join other members in thanking all those who have contributed to getting us this far. I thank those who responded to the consultation; our witnesses; our clerking staff in particular for the outstanding work that they did; the organisations for their helpful briefings; and the Scottish Government for its response.

The Justice Committee welcomed the Scottish Government’s commitment to the family justice modernisation strategy, of which the bill is part; to a child-centred approach that is based on rights; and to a move to the barnahus model, as we have seen in the criminal sphere. In that model, the intention is not that the process further traumatises those who are involved in it. I hope that that will be one of the consequences of the bill.

I want to touch on the word “presumption” and the not unreasonable presumption that the Government’s job is to put in place legislation to protect the very vulnerable. Scottish Women’s Aid has said that the Government has an obligation to create a system that protects and upholds their rights and that the presumption is that there is fair and equitable legislation that recognises competing interests. However, when it comes to children, the presumption is that the wellbeing of the child is paramount and I suggest that that also applies to the rights of the child and the views of the child.

The committee heard a lot of views, and we all approached the bill with an open mind. My colleague Liam Kerr referred to some of the compelling testimony that we heard. We heard in private compelling testimony from Yello!, which is the young expert group in the improving justice in child contact project. It said:

“Don’t dismiss us—we experienced it, and we know what we’re talking about. If we feel like we aren’t being listened to, it can make us not want to speak to people or take part in things.”

Our report discussed the real benefit of alternative dispute resolution and the view that no one wins in court. The potential to resolve disputes outside court is to be encouraged. The Justice Committee previously recommended that the Scottish Government and the Scottish Legal Aid Board should explore making legal aid available for other forms of ADR and our report expresses disappointment that that has not been the case, although we need to welcome the Scottish Government’s response to the Justice Committee’s report when it said that

“consideration will be given to the availability of funding from the legal aid fund for other forms of ADR” as part of that process.

However, as other members have said, we know that where domestic violence is involved, mediation has no place—there should be no sitting across the table from the perpetrator allowing the potential for controlling and coercive behaviour to continue.

I welcome the Scottish Government’s acknowledgement of that important point in its response to the Justice Committee's stage 1 report. The Government points out that, in line with its family justice modernisation strategy, it has proposed to the family law committee of the Scottish Civil Justice Council that court rules be changed to ensure that they are compliant with the Istanbul convention, which makes it very clear that the use of

“mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence” that are covered by the scope of the convention are inappropriate.

We also heard on a number of occasions about the challenges that are faced by victims and the different levels of protection that are afforded in the criminal court and in the civil arena. The Justice Committee’s recommendation on that has been accepted by the Scottish Government, and I welcome the on-going work in that area. There must be a change; the threat level does not change just because the forum that the perpetrators are involved in changes. There are consequences, and of course, children suffer.

Mr Findlay and Mr Kelly mentioned contact centres and that is where abuse has been allowed to continue and can intensify. There must be robust multi-agency risk assessment and, of course, adequate resources to provide the amelioration measures that the risk assessments highlight. There is nothing simple; one thing that is consistent is that paramount consideration should be given to the wellbeing of the child.

I will move on to the UNCRC and the support for a positive presumption that all children are capable of forming a view. The current presumption in the Children (Scotland) Act 1995 that children are able to form a view from age 12 has created the practical situation in Scotland where the views of younger children are routinely not sought or listened to. There was considerable support for the removal of that presumption from the 1995 act, but the NSPCC said:

“However, we do not support the exception which provides that a child’s views do not have to be sought if ‘the child is not capable of forming a view’”.

As the policy memorandum explains, even very young children could be included.

Article 12 of the UNCRC says that children are not required to prove their capacity but rather that all children are presumed to be capable of forming and expressing views. The NSPCC captured that very well when it said that

“the extent to which children are ‘capable of forming a view’ is contingent upon the capacity of the adult taking their view to understand” the varied ways, including non-verbal, in which children express their views.

In the limited time that I have left, I will touch on the issue of confidentiality and competing rights. The Children and Young People’s Commissioner—[

Temporary loss of sound

]—referred to article 8. Sometimes it is necessary to interfere with a right in the best interests of the child—sometimes that is necessary to ensure that a party’s right to a fair trial is realised—but any such interference with a child’s rights must be carefully considered to take account of their views.

That is not covered in the legislation and I propose to lodge an amendment to address that.