Children (Scotland) Bill: Stage 3

– in the Scottish Parliament on 25th August 2020.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the Children (Scotland) Bill. Members should have before them the bill as amended at stage 2, the marshalled list and the groupings. For the first division of the afternoon, the division bell will sound and proceedings will be suspended for a short technical break of five minutes or possibly slightly longer. That is the only technical break that we will have today; there will be no technical break at decision time.

The period of voting for the first division will be 30 seconds. It will be one minute for the first division in any grouping after that, but 30 seconds for most divisions.

Members should now refer to the marshalled list.

The Presiding Officer:

Group 1 is on the voice of the child. Amendment 8, in the name of the minister, is grouped with amendments 35, 12 to 16, 31 and 48.

Photo of Ash Denham Ash Denham Scottish National Party

The amendments in my name seek to strengthen the bill to ensure that the child’s views are heard in family court cases and children’s hearings. That is one of the key aims of the bill.

The amendments do two things. First, they reinstate the requirement that children must be given an opportunity to express their views in relevant proceedings. That requirement was included in the bill on introduction but was partially replaced at stage 2 with a requirement for a decision maker only to seek to make reasonable arrangements for a child to express his or her views.

Secondly, the amendments ensure that, when a child’s views are sought, the child’s preferred method of giving their views is to be used unless it is not reasonable to do so or the child has not expressed a preferred method of giving their views. The amendments cover family court cases and other proceedings under the Children (Scotland) Act 1995, children’s hearings, exclusion order proceedings and permanence and adoption cases.

I return to a point about exceptions that I made at stage 2. The Scottish Government believes that the majority of children are capable of forming a view on issues that affect them, but we recognise that that will not be true in every circumstance. For that reason, the bill provides that a decision maker is not required to seek or have regard to the view of a child if they are satisfied that the child is not capable of forming a view. However, the Government does not expect that exception to be used frequently.

There is also an exception to the requirement to take the child’s views in the child’s preferred manner, because it may not be feasible in some circumstances to use the child’s preferred method of giving their views. I would expect that exception also to be used infrequently.

I have recently published a paper on the ways in which a child can give their views, and I have committed, in the family justice modernisation strategy, to produce guidance for parties on going to court. That guidance will include information on the range of ways in which a child can give their views. We will need to reflect on how the strategy and the guidance are working in practice, so I welcome amendment 48, in the name of Liam McArthur, which requires a review of the impact of the act after five years. I ask members to agree to that amendment.

I am, however, unable to support amendment 35, in the name of Alex Cole-Hamilton. Amendment 35 would require a person who does not have parental rights and responsibilities but who is making a decision to safeguard the health, development or welfare of a child to seek and take account of the child’s views on maintaining personal relationships with family members. Even if the decision was unrelated to contact and residence—if it was about something like consent to a medical procedure—I cannot imagine that that is what the member intended. The bill makes provision requiring the views of the child to be considered in a variety of contexts, so it is entirely unclear why the member is seeking to make a change in that specific context only. Doing so would create inconsistency with the rest of the bill and inconsistency for children in how their views were obtained.

I reassure the member that the bill allows the views of children to be taken into account in a wide range of circumstances and that, where relevant to the decision or to the case in question, the child’s views of their wider family relationships will be sought and taken into account as part of the process.

In addition, the bill requires the court, when making an order under section 11(1) of the 1995 act, to have regard to the effect on the child’s important non-parental relationships. Therefore, I ask the member not to press amendment 35.

I move amendment 8.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

At stage 2, as the minister and members of the committee will recall, I did not move my amendments that sought to maintain the child’s right to maintain personal relationships with the child’s lineal ancestors. My constituents Gordon and Shonia-Maree Mason have done a lot of work on the rights of children to maintain contact with their grandparents. They and I listened to the arguments that were raised against the stage 2 amendments, including, notably, the argument that the bill does not specify grandparents in particular, as that would exclude other relationships, and the argument that the right of a child to have contact with their grandparents would have substantially the same implications as the right of a grandparent to have contact with their grandchildren.

We have taken those arguments into account and I have lodged an amendment to section 6 of the 1995 act, which is entitled “Views of children”. That section has already been amended at stage 2 of the bill. The proposed amendment clearly focuses on the child. It focuses on the maintenance of personal relationships with family members and is thus not restrictive. It makes no mention of grandparents and therefore cannot be construed as giving rights to grandparents, and it states that the action has to be practicable and in the best interests of the child.

Familial relationships can be beneficial to the child’s health, development and welfare—issues that are included in section 1 of the 1995 act, which is entitled “Parental responsibilities”. Section 6 of the 1995 act says that a parent must have regard to any views expressed by the child, and the amendment is intended to cover all situations in which the child wishes to express a view on familial relationships. Under the amendment, the child could, therefore, express a view at any time, even when their parent’s relationship was continuing and there was no referral to court proceedings under, say, section 11 of the 1995 act—in relation to which, uniquely, the family law unit this month issued a memorandum on the subject of children giving views.

That is one crucial and distinctive point of the amendment. A parent or parents in an on-going relationship who, through spite or a grudge or another non-justifiable reason, would not allow a child to maintain personal relations with a particular family member or members would still have to have regard to the views expressed by the child when the maintenance of such relationships was not against the best interests of the child. It is all about the views of the child—and only the child—at any time.

I have listened to the arguments of the minister, and I will listen to the views of Parliament. If there is not a majority for the measure today, I will withdraw the amendment. However, it is an argument that I will seek to return to in this place.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As I have done throughout the committee stages of the bill, I begin by declaring an interest in that my wife is a director of Relationships Scotland Orkney. That is perhaps less relevant to this set of amendments, but I thought that it would be helpful to have it on the record at the outset.

At stage 2, I was pleased to get support from the committee for my amendment to create a duty on the Scottish ministers to ensure the availability of child advocacy services in section 11 cases. That followed powerful evidence that was heard by the committee about the need to strengthen the so-called infrastructure for taking children’s views. In their written submission, Dr Morrison, Dr Friskney and Professor Tisdall argued:

“The strongest and most consistent request from children and young people in Scotland, who have been involved in contested contact proceedings, it to have a child support worker. Without addressing this now, children’s participation throughout the legal process risks being dealt with inconsistently, on an ad hoc basis and thus marginalised. We recommend provision be put into primary legislation, with the ability to then link developments to other advocacy roles.”

That amendment was passed, but I held off pressing another amendment relating to a proposed review of children’s ability to participate in the decision-making process. Of course, reviewing legislation to check that it actually does what it is intended to do is generally a good and sensible precaution. However, given the concerns that have been expressed about the resourcing of the provisions in the bill, I think that there is a particular need to provide some reassurance to stakeholders that such a review will take place and will look specifically at whether it has facilitated the participation of children in decisions that are made about their future.

As Scottish Women’s Aid said ahead of stage 2, monitoring and review of the bill’s implementation is required to ensure that children’s rights are realised in practice. There was support for that at stage 2, although some concerns were expressed by the minister about the proposed three-year period—as opposed to a five-year period—in my amendment. I have reflected further on that and, although I remain a little concerned that five years opens up the risk of an entire session of Parliament coming and going before any assessment is made, I believe that amendment 48 provides safeguards against that happening. It is perhaps not perfect, but I am confident that colleagues in the next parliamentary session can and will keep ministers’ feet to the fire. In the meantime, I am grateful to the minister and her officials for their engagement on that issue.

Photo of Liam Kerr Liam Kerr Conservative

I remind members that I am a practising solicitor and hold current practising certificates with the Law Society of Scotland and the Law Society of England and Wales.

With the exception of amendment 35, we will vote for all the amendments in group 1. Amendment 35 is clearly well intentioned, as were Alex Cole-Hamilton’s amendments throughout stage 2. However, I am not persuaded that, in reality, it would serve a child’s interests in the way that the member believes that it would. First, a key pillar of the bill is that it seeks to improve a child’s opportunities to provide their own views whenever possible. My concern is that, by emphasising the importance of the child’s views on their

“personal relations with family members”, amendment 35 risks positioning those views as being more important than any other views that the child might wish to express. My second concern is that, as with other amendments at stage 2, I am not convinced that amendment 35 is necessary, given that section 12 of the bill already includes reference to consideration of the child’s “relationships with other people”.

Given those points, it appears that, at best, amendment 35 is unnecessary and, at worst, it risks creating what Children 1st and Scottish Women’s Aid described as

“an inappropriate ‘hierarchy’ of views” that any given child might like to express. Therefore, I encourage Alex Cole-Hamilton to withdraw amendment 35. If he does not, we shall vote against amendment 35 but for the other amendments in the group.

Photo of James Kelly James Kelly Labour

Scottish Labour will support all the amendments in group 1.

The Government amendments, lodged by Ash Denham, build on amendments that I lodged at stage 2 in order to give voice to the child’s views in a court hearing. The bill, as originally drafted, was a bit loose. The stage 2 and 3 amendments give more consistency, ensure that a child’s view can be heard and give weight to the mechanism that enables the child to express that view. Therefore, the amendments improve the bill overall.

With regard to Alex Cole-Hamilton’s amendment 35, throughout the process, some campaigners have argued for presumptions in favour of grandparents and shared parenting. I have not supported that approach throughout, but I recognise that the argument that Alex Cole-Hamilton makes in amendment 35 about the child’s views on which family members they wish to maintain contact with. We also support Liam McArthur’s amendment 48, because we believe that a review of children’s participation is essential. Five years is a reasonable timescale.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I support the Government’s amendments 8 and 12 to 16 and Liam McArthur’s amendment 48. As a member of the Justice Committee, I was clear from the get-go that the bill’s purpose was to put the interests and views of the child at the centre. The minister has listened to concerns that were raised in the committee, and most of the amendments tighten the bill up and—I hope—make it better legislation.

Alex Cole-Hamilton’s amendment 35 is well placed. We heard evidence on the issue during committee meetings. However, the minister’s amendments supersede it and take away any concerns that there might have been in that area, so I respectfully ask him not to press amendment 35.

Photo of John Finnie John Finnie Green

I join other members in supporting all the amendments in the group, except for Mr Cole-Hamilton’s amendment 35, for many of the reasons that have been outlined. I recognise that refinement of the amendment has taken place between stages 2 and 3, but I align myself with the Scottish Women’s Aid and Children 1st briefing that has been alluded to, which speaks of the danger of establishing an “inappropriate hierarchy”, not least because, as the briefing tells us, many children have

“important relationships with other people outside their families” and the amendment does not define a “family member”. It is important that all the views of the child are taken on board, and for that reason we will not support amendment 35.

Photo of Ash Denham Ash Denham Scottish National Party

The bill already makes provision for the views of the child to be sought in a range of contexts, and it requires the court to take account of “the child’s important relationships” with people other than parents. That provision has been specifically designed so that it includes people such as grandparents. Alex Cole-Hamilton and I have discussed the issue at length, and I have no doubt that his proposal is well intentioned. However, I do not think that amendment 35 does what Alex Cole-Hamilton thinks it does. Therefore, I recommend that members do not support amendment 35. I note that that seems to be the consensus that has emerged during the debate.

Amendment 8 agreed to.

Amendment 35 not moved.

The Presiding Officer:

Group 2 is on matters to be considered in making an order under section 11(1) of the Children (Scotland) Act 1995. Amendment 9, in the name of Rhoda Grant, is grouped with amendments 10, 11 and 26.

Photo of Rhoda Grant Rhoda Grant Labour

Amendment 9 is a technical amendment, which would remove a definition that is no longer required in the bill.

Amendment 10 would amend new section 11ZA(3)(e) of the 1995 act. Instead of providing that the court should have regard to

“the effect of the fact that two or more persons would be required to co-operate with one another with regard to matters affecting the child”, the section would instead require it to have regard to

“whether it is, or would be, appropriate for an order to require that two or more persons co-operate with one another with regard to matters affecting the child.”

The amendments relate to the protections under new section 11ZA, ensuring that, when making an order under section 11(1) of the 1995 act in the context of domestic abuse, the court must have regard to the impact of making an order requiring two or more persons to co-operate. My reason for promoting the amendments is that domestic abuse can continue to be perpetrated through the use of contact. The court must consider that before asking a survivor to co-operate with an abuser.

Amendment 11 would remove the definition of “person” in new section 11ZA(5), for the purposes of section 11ZA(3)(e). The effect of removing the definition is to require the court to consider whether it is appropriate to require any persons to co-operate with one another as part of an order under section 11 of the 1995 act, rather than consider only co-operation between the types of person mentioned in the definition. That would reflect that the parties to the case who are required by the order to co-operate may not necessarily be the parents. Removal of the definition of “person” in the context of amendment 11 would ensure wider judicial scrutiny of the order’s impact, beyond actions involving only those who are parents of the child in question, or who have parental rights and responsibilities.

We know from those using our specialist domestic abuse services that contact arrangements with family members such as grandparents can often be exploited by perpetrators of domestic abuse to further their abuse. Therefore, placing a duty on the courts to consider the appropriateness of co-operation beyond parents, in order to ensure that children and non-abusing parents are kept safe, would increase the protection afforded to survivors of domestic abuse.

I move amendment 9.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Amendment 26 seeks to make equally shared parenting the starting basis for custody orders, but it would not prevent courts from then deciding on the most appropriate split based on the circumstances of each case and, crucially, the best interests of the child.

The intention of amendment 26, which mirrors an amendment that I lodged at stage 2, is certainly not to make shared parenting mandatory; rather, it would require the court to start with that option if one of the parents requests it, before going on to consider any reasons why a different pattern is better for the child or children in question.

I remain firmly of the view that the legislation should do nothing that might dilute the primacy of the best interests of the child in any decisions that are taken on residency and access or on other considerations. I do not understand how requiring the courts to work from the presumption set out in amendment 26 would do that, as the court would still be free to reject that option, either immediately or in due course, depending on the circumstances and facts relevant to the case. Moreover, the presumption of shared parenting is one that exists in other countries that share our determination to prioritise the child’s best interests.

My amendment reflects the general benefits for children of shared parenting shown by international research, be that in terms of their social and psychological wellbeing, educational attainment or the avoidance of adverse experiences.

Of course such shared arrangements may not be practical or desirable, but given how rarely courts appear to rule in favour of an equal split in parenting responsibilities, it seems reasonable to ask whether there is already a presumption inherent in the system.

Photo of John Finnie John Finnie Green

The member will be aware of the position that was adopted in relation to other matters in which it would be unhelpful to have a list. Is what he seeks to do not just part of a list? If we are acting exclusively in the best interests of the child, there would be no need to include that provision, because what applies will already depend on what is in their best interests.

Photo of Liam McArthur Liam McArthur Liberal Democrat

John Finnie is right to point to the evidence that we took and some of the considerations that we weighed up during stages 1 and 2.

As I said, given how rarely courts appear to rule in favour of an equal split of parenting responsibility, it seems reasonable to ask whether there are already presumptions in the system that have a bearing. If that is the case, we should acknowledge that, and satisfy ourselves as to whether that is any less detrimental to the principle of acting in a child’s best interests than starting from a presumption of shared parenting.

I am sure that, over recent weeks, we have all been contacted by constituents and others wanting to share the details of the fallout from their relationship breakdowns. None of that is pleasant—it can often be heartbreaking—but nor is it a matter on which we can safely take a definitive view. We cannot be sure that we have all the facts. Therefore, it must be left to the courts, supported by expert advice, with access to all the facts, to make a determination in the best interests of the child. However, why should those facts not be applied after starting from a presumption of shared parenting?

Society quite rightly expects relationships to be based on a more joined and shared parenting model than may have been the case in the past. That recognises not least the benefits to the child or children that come from such an approach. Why should it not be that we work from a similar starting point in the event of that relationship breaking down? Amendment 26 would allow that to happen.

Photo of Liam Kerr Liam Kerr Conservative

I am happy to vote for all the amendments in the group, with the exception of Liam McArthur’s amendment 26.

Again, I understand the motivation behind the amendment—of course we do—and the scenarios that Mr McArthur sets out. However, the welfare of the child is the key consideration. Therefore, in decisions regarding parental responsibilities, the only criterion should be what is in the best interests of that child. Having carefully listened to Mr McArthur’s comments, I know that he gets that. However, acting in the best interests of the child is the thread that weaves through the bill. The committee heard from representatives of Yello!, who said:

“Adults always seem to be given more priority than children, even though it is all supposed to be about the child. We hope that this Bill will change that.”

I worry that amendment 26 will move us away from that basic premise.

I also note the submissions from Children 1st and Scottish Women’s Aid, which are strongly opposed to amendment 26.

For those reasons, I will vote against the amendment.

Photo of James Kelly James Kelly Labour

I support Rhoda Grant’s sensible amendments, which would bring more consistency to the bill as amended at stage 2. I, too, oppose Liam McArthur’s amendment 26. I understand why he lodged it. However, the issue for me is that, when having regard to a shared parenting order, what he proposes would potentially override the views of the child and what is best for them. We will not support the amendment.

Photo of Rona Mackay Rona Mackay Scottish National Party

I do not support amendment 26, because I consider that it could have adverse consequences for child safety.

In an ideal world, it is preferable for a child to have a happy relationship with both parents, where possible. However, we do not live in an ideal world, and including the provision in the bill would be unwise and possibly dangerous for a number of children.

All research on the matter suggests that a presumption of shared parenting in any high-conflict case is likely to be harmful to the child. A large number of contact cases that end up in court concern reports of domestic abuse, and even those that do not are still likely to be high-conflict cases, given the very fact that the court is involved.

The amendment proposes residence on an “equal basis” as the default solution in every case, unless otherwise agreed. I believe that that would cut across the rights of the child, and I do not believe that it would be in their best interest. We heard powerful evidence in committee from children on their experience of imposed contact, which was harrowing and distressing. Amendment 26 would mean that, on request from any parent, even one who might not be a party to a case, the court must consider ordering residence on an equal basis.

Of course parents should have an equal part in a child’s life, but we cannot prescribe a one-size-fits-all approach, which is the effect that the amendment would have. Every circumstance is different, and child protection is far too important to take risks with.

Photo of John Mason John Mason Scottish National Party

I want to express my sympathy for Liam McArthur’s amendment 26. Over the years, I have had many constituents and, in fact, others from outwith my constituency, one of whom worked at the Scottish Parliament at the time—mainly fathers, but occasionally mothers—tell me their story about how the courts had decided, and the children decided, that the children should have contact with both parents, but that contact had not actually happened.

It seems to me that there has been an imbalance in the court system. Although I have not been heavily involved in the bill, I believe that something has to change. I look to the minister to give us a reassurance that we are moving forward, that we will continue to move forward after the bill is passed and that we will see more cases where both parents have real input in the lives of their children.

Photo of Ash Denham Ash Denham Scottish National Party

I support amendments 9, 10 and 11, and I am grateful to Rhoda Grant for the constructive engagement that we have had on the subject. Those amendments make technical changes to the provisions that she inserted at stage 2.

Where the court is considering making an order that requires two or more persons to co-operate, amendment 10 will require the court to consider

“whether it is, or would be, appropriate” to require co-operation. That is wider than sections 11(7D) and (7E) of the 1995 act, and new section 11ZA(3) of that act, which was added at stage 2 of the bill. It meets one of the aims of the bill, which is to

“further protect victims of domestic abuse”, including children.

Turning to amendment 26 in the name of Liam McArthur, I reassure members that my view is that both parents should be fully involved in a child’s upbringing, as long as that is in the best interests of the child concerned. Currently, parents can ask the court for residence on an equal basis, and a decision will be made in which the welfare of the child is paramount, taking into consideration the views of the child, and with full consideration being given to arguments for and against shared parenting in the particular circumstances of the case.

Amendment 26 proposes residence on an equal basis where requested as the starting point for the court to work from. In my view, that cuts across the approach of the 1995 act, which encourages the court to arrive at a solution that best promotes the welfare of each child, according to their individual circumstances.

The amendment refers only to parents. Although most cases of this nature are between parents, they do not have to be; for example, grandparents may apply for an order. Amendment 26 does not take account of the full range of circumstances that exist in these types of cases. It does not address the stage in the proceedings at which any request must be made, whether the parent requires to be a party to the proceedings or whether it might be open to parents to make repeated requests. In the absence of any attempt to govern the procedure by which such requests might be made, there is a considerable risk of delay in court proceedings with issues arising at a late stage.

A section 11 case might be about contact or about administration of a child’s property and not about residence. Therefore, it might not be appropriate for the court to consider residence in every case, as the court might not have the information necessary to allow it to decide on such questions. The courts already apply a general principle that it will be normally beneficial for children to have an on-going relationship with both parents. The bill strengthens this position by requiring the court to consider in every case the effect of an order on the involvement of the child’s parents in bringing the child up.

I do not consider that amendment 26 is desirable. It cuts across the general principle of section 11 of the 1995 act that the welfare of the child is the paramount consideration. Given those reasons, I ask Liam McArthur not to move amendment 26.

Photo of Rhoda Grant Rhoda Grant Labour

Members will all have dealt with cases in which contact has been used to perpetrate abuse, with disastrous consequences for the abused partner and their children. Even when the child is not abused, their experience of abuse is an adverse childhood experience that impacts on their mental health and self-esteem and damages their life chances. Therefore, there should be a presumption against contact of any kind with an abusive partner when we are looking at child contact.

I will press amendment 9, and I urge Liam McArthur not to move his amendment 26.

Amendment 9 agreed to.

Amendments 10 and 11 moved—[Rhoda Grant]—and agreed to.

Amendments 12 and 13 moved—[Ash Denham]—and agreed to.

The Presiding Officer:

Group 3 is on the disclosure of information. Amendment 36, in the name of Liam McArthur, is grouped with amendment 46.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Amendment 36 and my more substantive amendment 46 respond to concerns that were raised with the committee at stage 1 that, at present, intimate and highly sensitive information that is shared by a child with a third sector organisation can be drawn into court proceedings. That appears to happen even when sharing such information goes against the interests of the child in question, and often without the child even knowing. It is not hard to see how that could fundamentally undermine the trust and confidence of children who engage with third-party organisations at a time when they are feeling vulnerable.

At stage 2, I successfully moved an amendment to address the concern, as did the minister. I am grateful to Ash Denham and her officials for the constructive way in which they have engaged with me since stage 2 to tidy up the provisions and make further necessary changes. The area is sensitive, and I recognise the concerns that the Government had in relation to my amendment at stage 2, notably around the use of the term “paramount consideration” and even some potential ambiguity over which child was being referred to.

I believe that my amendment 46 addresses those concerns, while retaining the core principles and protection that I and other committee colleagues sought to have enshrined in the bill. In particular, those are the inclusion of specific reference to

“the best interests of the child as a primary consideration”, which is in line with the United Nations Convention on the Rights of the Child, and ensuring that a child has the opportunity to express their views to the court, which then needs to take those views into account when decisions are made about sharing their information.

In response to those who are anxious about the potential impact on the rights of others involved in any court process, I repeat the assurance from Children 1st and Scottish Women’s Aid that the changes

“will not prevent information from being shared where it is proportionate and relevant to the court.”

They went on:

“Indeed, our organisations strongly believe that proportionate and relevant information-sharing is in a child’s best interests to keep them safe and ensure the courts are equipped with all the details at their disposal to make informed decisions.”

I thank committee colleagues, the minister and of course Children 1st and Scottish Women’s Aid for helping to get us to this point. I hope that the changes will give children the confidence that they need and should have in their conversations with third sector organisations, which often take place at times of real vulnerability.

I move amendment 36.

Photo of Liam Kerr Liam Kerr Conservative

We will vote against both amendments in the group. Amendment 36 is a function of amendment 46, so I will deal with the latter in depth. Our vote against amendment 46 will be based on a semantic point, which may be much more than that. The language used in the amendment is about considering the child’s “best interests”, as opposed to their welfare.

My understanding of this area of law is that what is referred to in, for example, the Children’s Hearings (Scotland) Act 2011 and the Adoption and Children (Scotland) Act 2007, what is commonly understood and what has had cases decided around it is the welfare of the child. Hitherto, welfare has been the touchstone, so why the change of language? I am grateful to Mr McArthur for his confirmation that the reason relates to the fact that the UNCRC talks about the best interests of the child, to which I shall return.

In any event, we risk importing new terminology without debate, scrutiny and test. Perhaps I am making a mere semantic point. There might be no difference between the best interests and the welfare of a child but, if that is right, we should not introduce new wording. We should stick with the current wording, because a change at least opens the door to the argument. That cannot be desirable.

On the other hand, what if the terms mean something different? What if “best interests” and the “welfare of a child” are different in law and in practice? We need to be very careful to understand what those changes would mean on a practical level before codifying that in black-letter law.

The safest path is to vote against amendments 36 and 46. I plead, as further authority, that minister Maree Todd confirmed on 4 May that the Government still intends to introduce the UNCRC bill this year. No doubt there will be consultation on the bill and, I presume, on the meaning of “best interests”. Let us take the precautionary principle and wait until then. I shall vote against amendment 46.

Photo of Ash Denham Ash Denham Scottish National Party

I support amendments 36 and 46. I am grateful to Liam McArthur for the constructive engagement that we have had on the subject, and I am pleased that a consensus position has been reached. I hope that members will join me in supporting the amendments today.

Two competing amendments were lodged to the bill at stage 2. Amendments 36 and 46 remedy the issue by removing sections 1A and 13A from the bill and inserting a new section in their place. The amendments retain elements from, and improve on, each of the sections that were added to the bill at stage 2.

Amendment 46 provides that when the court

“has to decide whether a person should have access to anything in which private information about a child is recorded”, it

“must regard the best interests of the child as a primary consideration.”

As Mr Kerr noted, the references to “best interests” and “primary consideration” reflect the language of article 3.1 of the UNCRC and the approach that is taken in general comment 15. The use of the words “primary consideration”, as is proposed, achieves a more appropriate balance of rights than was achieved by section 1A.

The amendments go further than section 13A by requiring that the views of the child should be sought using the manner that is preferred by the child. I appreciate that there might be some cases in which that will not be possible in the best interests of the child, although I expect the exemptions to be used only infrequently.

The amendments offer wider protection than was offered by section 1A, which appeared to protect only the child at the centre of the section 11 proceedings. I reassure members that I am already progressing work to ensure that children are informed of how the information that they disclose to a child welfare reporter might be used. Earlier this summer, I shared with key stakeholders a draft of the guidance for children on speaking to child welfare reporters. Once I have a finalised version of the guidance, I will publish it and make it available to children and young people.

I hope that members will join me in supporting amendments 36 and 46, which constitute an important protection for the rights of children whose private information may be used in contact and residence proceedings.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I thank the minister for her support and her explanation of the basis for it. I thank Liam Kerr for his comments and for engaging in debate on my amendments. I would never accuse him of semantics. To some extent, the language that is used in my amendments is similar to the language that was used in the amendment that I lodged at stage 2. I do not recall his concerns being raised at that stage. The minister has set out the consistency of approach that has been taken. It is difficult to see how a child’s best interests would not be observed by any measure that adhered to the child’s welfare. The language is embedded in the UNCRC.

I take the point that a fuller integration of the UNCRC into Scots law is proposed, but that is not a justification for kicking the can down the road where there is an opportunity to embed the provision in this bill. Those who gave evidence to the committee were clear about the importance of doing so, not least—as I said earlier—to safeguard the confidence of children and young people in, and their engagement with, third sector organisations at a time of real vulnerability for them. For those reasons, I will press amendment 36.

The Presiding Officer:

The question is, that amendment 36 be agreed to. Are we agreed?



The Presiding Officer:

There will be a division. As this is the first division of the afternoon, I will suspend proceedings and we will have a short technical break, not only to summon members to the chamber, but to ensure that members who are participating online are on board the system in order to vote.

16:05 Meeting suspended.

16:15 On resuming—

Colleagues, we are going to resume proceedings. We are on group 3, on disclosure of information, and Liam McArthur has moved amendment 36. Members indicated that there will be a division.

The question is, that amendment 36 be agreed to. Members may cast their votes now, and they should refresh their screens if they are logged out.

Division number 1 Children (Scotland) Bill: Stage 3

Aye: 86 MSPs

No: 30 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

Abstained: 1 MSP

Abstaineds: A-Z by last name

The Presiding Officer:

The result of the division is: For 86, Against 30, Abstentions 1.

Amendment 36 agreed to.

Jenny Gilruth has a point of order. [


] Can Ms Gilruth indicate to the chamber which way she voted? [


] The vote was overwhelming in favour, but Jenny Gilruth’s vote has now been noted for the record.

Photo of Clare Haughey Clare Haughey Scottish National Party

On a point of order, Presiding Officer. I was not able to vote either.

The Presiding Officer:

Would you like to indicate which way you were going to vote?



The Presiding Officer:

It is important at this stage. Let us hear Mr McMillan, please.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

It is the same situation for me. I would have voted for the amendment.

The Presiding Officer:

Thank you. That has also been noted for the record


From now on, we will not have a technical break unless there is widespread disapproval and people are not able to vote. It is important that members keep their screens open and refreshed; if the window goes away, members should log back in and refresh the screen, and it should come back on again. Members have the code and should be able to vote; it is now up to members to be able to use the system.

I will also add for the record that Rachael Hamilton, who has been joining us remotely, was unable to vote, and she wanted to vote against the amendment.

Section 2—Proceedings under Adoption and Children (Scotland) Act 2007:

Amendments 14 and 15 moved—[Ash Denham]—and agreed to.

Section 3—Proceedings under Children’s Hearings (Scotland) Act 2011:

Amendment 16 moved—[Ash Denham]—and agreed to.

The Presiding Officer:

Group 4 is on vulnerable witnesses and vulnerable parties. Amendment 37, in the name of the minister, is grouped with amendments 38 and 39.

Photo of Ash Denham Ash Denham Scottish National Party

Amendments 37 to 39 seek to provide further protection to vulnerable parties in evidential and non-evidential hearings in particular child welfare hearings, and to vulnerable witnesses when a case under section 11 of the 1995 act reaches proof.

When a person is deemed to be a vulnerable witness by virtue of section 11B of the Vulnerable Witnesses (Scotland) Act 2004 as inserted by section 4 of the bill, amendment 37 will require the court, before the proof or any other hearing at which the witness is to give evidence, to make an order authorising the use of a special measure or to make an order that the witness is to give evidence without the benefit of a special measure. That will ensure that consideration of special measures does not depend on the party lodging a vulnerable witness application or the court considering the matter of its own volition.

A party may be deemed to be a vulnerable witness if there is in force a non-harassment order, an interdict or any similar order or remedy that has been granted by a court that prohibits certain conduct towards the person by a party to the proceedings; if a “relevant offence” has been committed against the person and a party to the proceedings has been convicted of committing it; or if a party to the proceedings is being prosecuted for committing a “relevant offence” against the person.

Where a party would meet the criteria to be deemed to be a vulnerable witness if they were to give evidence, amendment 38 will require the court to order the use of any special measure that the party requests, or to order the use of a special measure that the court considers appropriate and explain why the preferred method is not being used, or give reasons for not ordering the use of special measures. Special measures can include the use of screens, giving evidence by live videolink and having a support attending with a party.

Amendment 39 is a consequential amendment to remove the now superfluous reference to

“in relation to a party” from the vulnerable party provisions.

If amendments 37 to 39 are agreed to, I propose to work with stakeholders such as Scottish Women’s Aid in preparing a policy paper for the Scottish Civil Justice Council’s family law committee on any changes to court rules that might be necessary. The amendments build on provisions in sections 4 and 5 of the bill in relation to prohibition of personal conduct of a case and vulnerable parties in child welfare hearings. I hope that members across the chamber will agree with me that it is important to ensure that vulnerable parties and witnesses are protected.

I move amendment 37.

Amendment 37 agreed to.

Section 7—Vulnerable parties:

Amendments 38 and 39 moved—[Ash Denham]—and agreed to.