Children (Scotland) Bill: Stage 1

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

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Photo of Liam McArthur Liam McArthur Liberal Democrat

It is a pleasure to be able, like John Finnie, to take part remotely in this stage 1 debate on the Children (Scotland) Bill. The Scottish Liberal Democrats strongly support the principles of the bill, but also recognise the work that is ahead for the Justice Committee and Parliament more generally in making the improvements that will be necessary ahead of stage 3.

In that regard I am, as other members are, grateful to all those who have helped our scrutiny to date, including the clerks and, in particular, those who provided evidence—some of it was extremely powerful—that shone a light on the areas where further work is needed.

The minister has already indicated the Government’s willingness to make changes at stage 2, including removal of the remaining presumptions against children expressing their views. That is welcome. I will reflect on some other areas in which, I believe, change and improvement are similarly needed.

As we know, in cases where a relationship breakdown turns out to be difficult and traumatic, it is often the child or children involved who pay the heaviest price. Therefore, our ensuring that their views are clearly heard in the process of determining what happens about contact and residence, as well as more generally, is imperative.

Further embedding of the UNCRC in our law, through family court cases, is also a step in the right direction, ahead of the full incorporation that has been promised by the First Minister. Additional protections for victims of domestic abuse and their children are also a welcome aspect of the bill.

Given those laudable and worthwhile aims, it is worth my while to emphasise at the outset how vital it will be for ministers to ensure that the provisions of the bill are properly resourced. Simply passing into law rights and duties might make us feel good as legislators, but doing so without the necessary funding would do a disservice to those whose interests we seek to protect, and to those who work on the front line, who we would be setting up to fail.

One of the clearest examples of that relates to regulation of contact centres. I declare an interest, as my wife is due shortly to take up the post of director of Relationships Scotland Orkney. I will therefore leave it to others to develop the arguments in that area, as some members already have, except to say that, as the stage 1 report on the bill by the Justice Committee points out,

“The Financial Memorandum suggests that there could be significant costs for contact centres in meeting the new regulatory requirements, yet no additional funding is proposed.”

Regulating contact centres is the right and responsible thing to do. However, as the committee concluded, we should not be passing legislation

“if it is not clear that there are sufficient means to fund the changes proposed.”

Another example of where that appears to be a risk is in relation to child support workers. As our stage 1 report states,

“we heard powerful evidence that the infrastructure for taking children’s views needs to be strengthened. Without this, the Bill may make very little difference in practice, particularly in relation to hearing the views of younger children where specific skills and more creative methods are required.”

In cases that are covered by section 11 of the Children (Scotland) Act 1995, advocacy support is crucial to ensuring that every child has the best chance to have their views heard. Not all will require such support, but if it is not available, we risk failing those who are most in need.

Professor Kay Tisdall and others expressed strong concerns about the absence in the bill of any infrastructure for child advocacy, and of clarity in the family justice modernisation strategy. That is not good enough: the bill must be amended to provide those assurances, and ministers should set out timescales for delivery.

Of course, a child will feel comfortable in expressing their views only if they can do so in the manner that best suits them, so building trust and confidence in the process is also key. The committee heard arguments in favour of giving children a greater say in how their information can be shared with the courts. At present, it is possible for highly intimate information that is held by third sector organisations to be drawn in to court proceedings, even if sharing it goes against the interests of the child. That can happen without the child even knowing about it. Both Children 1st and Scottish Women’s Aid shared examples of that in evidence, and highlighted its potential for undermining the trust and confidence of children who engage with third sector organisations.

As others have, I recognise the need to respect the rights of all those who are involved in court proceedings, but I believe that the bill provides a chance at least to clarify the guidance around the need for information sharing to be proportionate and necessary, so that consideration is given to the best interests of the child.

Another area where the bill could go further is in the promotion of greater use of alternative dispute resolution. Whatever steps we take to improve how evidence is taken, courts are the last place where we wish to see relationship disputes being settled. There is a case for extending the scope of legal aid to encourage more people to consider ADR, so I welcome the Government’s willingness to look at that.

Finally, I will touch on children’s access to members of their extended family. Some of the most powerful evidence we heard was in support of doing more to ensure that children continue to have contact with their siblings. Oisín King’s evidence was an obvious example of that. Ensuring that that happens, when it is in the interests of each child involved, can be resource intensive, but it should be prioritised so that it happens more consistently.

The committee also heard compelling evidence from grandparents, who often find themselves cut off from their grandchildren as a result of an acrimonious separation or family dispute. I have great sympathy with the case that they make. They are right to argue that grandparents and other adults, including those who do not have a parental relationship with the child, often play invaluable and enriching roles in the child’s life. That should be recognised and reflected, where appropriate, in decisions that are made in the best interests of the child. However, ultimately, decisions need to be made in the best interests of the child; anything that talks in terms of the rights of others risks diluting that.

Scottish Liberal Democrats will gladly support the general principles of the bill at decision time, while recognising the work that lies ahead if the bill is to meet the needs of children and deliver its laudable aims. I look forward to playing a part in that process. Once again, I thank those who have given the committee so much food for thought, as we embark on our stage 2 consideration.