Children (Scotland) Bill: Stage 1

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

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Photo of Pauline McNeill Pauline McNeill Labour

I, too, thank the Justice Committee for its excellent work and note that there have been many excellent speeches in the debate. I agreed with the minister when she said in her opening speech that civil law is often overshadowed in the Parliament. The debate is testament to the fact that it has been overshadowed, because the speeches in this stage 1 debate have been high quality—I am not saying that that is rare, just that the debate has been of high quality, and that I welcome that.

I thought that it would have been more appropriate if the bill had had the idea of children’s rights in its title, because, as I have been hearing all afternoon, the aim of the bill is about broadening and protecting the rights of children in relation to their views, reviewing the 1995 legislation and applying the UN Convention on the Rights of the Child.

Omitting children’s views is disempowering and leads to poorer outcomes, according to some of the evidence that we have heard. It is fundamental in all decision making that affects children’s lives that their views are established. That we have taken this long to bring the issue to this point is, perhaps, an omission on our part. Scottish Labour supports the general principles of the bill and I support the removal of the existing presumption in the 1995 act that only a child aged 12 or over is of sufficient age and maturity to form a view, although I accept that, in some cases, courts seek the views of children under the age of 12. I also agree with the view expressed in the committee’s report that a 12-year-old child is no more able to express a view than a child who is one day short of his or her 12th birthday. It is concerning to read that the committee

“heard consistent evidence that ... the views of younger children are not routinely heard in practice.”

The removal of that nominal minimum age is an important step in rectifying that.

There are a couple of areas that are worthy of further exploration. The first has been addressed by others. It is about ensuring a consistency of approach, given that no minimum age will be set in the legislation. The question is, how low in age will the courts go when hearing from children? I suppose that the courts will have to judge that for themselves. It will be done on a case-by-case basis but we need to ensure that there is a consistency of approach, otherwise we could end up with an uneven and unwanted situation.

It is important to ensure that the actual views of the child are sought—that is critically important. I think that Jamie Greene made that point in an intervention. There is no point in changing the law if the law is not changed to such a degree that the views of the child are heard. I say that because, during my time as convener of the Justice 1 Committee many years ago—Margaret Mitchell also served on that committee—there was a substantial appeal case that was well known at the time that involved a situation in which, it transpired, a child was sitting on their mother’s knee and answering questions led by the mother in a court case that led to a criminal conviction. That would never happen now but it is important to recognise that the views of the child must be sought and not the views of the parent leading the child. Otherwise, there would be no point in doing this.

I also want to address the question of failure to obey a contact order. That is a really important area of the legislation, notwithstanding Neil Findlay’s point about the need to regulate contact centres and Donald Cameron’s excellent contribution, and I want to talk separately about the Scottish Women’s Aid briefing and the issue of domestic violence. I have seen up to 15 cases where domestic violence has not been involved, but the other parent has not complied with a contact order. That has been going on for years and I think that it is wrong. At stages 2 and 3, ministers and the committee should fix that aspect.

On the question of what is in the welfare interests of the child, there must be a presumption that everyone who has previously been in a child’s life—their parents, grandparents and siblings—should maintain contact. To do otherwise would not be in the welfare interests of the child.

I might be recalling this wrongly but I am sure that, around 2006, members of this Parliament, including Kenny Gibson, were involved in the establishment of the grandparents charter. The question keeps arising about whether to give grandparents rights. That question is going to keep coming back until, perhaps, there is a presumption by the courts when making a decision about the welfare interests of the child that contact with both parents, where there is no violence involved, and with grandparents and siblings is absolutely a requirement for the welfare interests of the child.

I am pleased that one of the stated aims of the bill is to

“further protect victims of domestic abuse and their children”.

I was particularly concerned to read that Children 1st has said that, within its services, there are reports that the courts are used in a way that allows domestic abuse to continue to be perpetrated and that children feel that no one is listening to them. The stage 1 report sets out that

“For those cases that do go to court, research published in 2012 suggests that domestic abuse is alleged in just under half (47%) of court actions over contact. The Committee heard arguments from stakeholders including Scottish Women's Aid and ASSIST that, given the percentage of court cases affected by allegations of domestic abuse, it is important to design the law and court system around the most vulnerable adults and children.”

The issue is about balancing the interests of everyone involved and recognising that our system must recognise the views of children and must protect women and children from domestic violence, but must also ensure that parents are well served by the courts when the views of children are given, and that it is the children’s views that really matter in drawing those conclusions.