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My amendment 105 aims to ensure that children and young people with a mental disorder who have been convicted on indictment and sentenced to detention are provided with the most appropriate level of care and treatment at the right time.

Currently, although a court can make a hospital direction in respect of some 16 and 17-year-olds—those who are not subject to a compulsory supervision order—a court cannot make a hospital direction in respect of a child who is under the age of 16 or someone who is aged between 16 and 18 years old who is subject to a CSO. The Scottish Government considers that that issue should be addressed, given the clear benefits to the child of going straight to hospital for mental health care and treatment as opposed to their being transferred to a hospital from another detention setting. Hospital directions are very rarely used for 16 to 17-year-olds. However, ensuring that they may be applied for in exceptional, defined circumstances for children is both desirable and necessary.

The inception of specialised facilities at Foxgrove, which is the first medium-secure national secure adolescent in-patient service in Scotland, changes the backdrop of how the complex mental health needs of children and young people are met in Scotland. The opening of Foxgrove later this year means that there will be age-appropriate forensic mental health provision for adolescents in Scotland, including those who are subject to hospital directions.

Amendment 105 makes no change to the nature of hospital directions or to the conditions that must be satisfied for them to be applied, other than by making them available to all children with a mental disorder aged 12 to 17 who are convicted on indictment and sentenced to detention.

Although I understand the intention behind Martin Whitfield’s amendments 207 to 209, I do not support them.

Amendment 207 would place a duty on the Scottish ministers to promote the use of alternatives to the detention of children who are convicted of an offence and to report annually on the steps taken to achieve that. It is not entirely clear whether that is a general duty to promote alternatives to detention or whether Mr Whitfield wants ministers to promote alternatives in specific cases of individual children who have been convicted of an offence. If the amendment is intended to be general, which we assume to be the case, there is already provision in that regard. If the amendment is intended to be specific to an individual case, that would undermine the independence of the judiciary, and I am sure that Mr Whitfield does not intend that.

Except in respect of punishment for murder, the decision to deprive a child of their liberty on conviction is an independent decision of the courts. In doing so, the court is required to comply with the ECHR. For children convicted on indictment under section 208 of the 1995 act, there is a presumption against detention, ensuring that the court can impose a period of detention only if it considers that no other method of dealing with the individual is appropriate.

For those children convicted summarily under section 44 of the 1995 act, the court may order that the child be detained in residential accommodation for a period not exceeding one year. A presumption against detention is set out in guidance, including that published by the Scottish ministers. That is in line with the UNCRC, which says that deprivation of a child’s liberty should be

“used only as a measure of last resort and for the shortest appropriate period of time”.

Indeed, the use of alternatives to deprivation of liberty for children is a cornerstone of the Scottish Government’s whole-system approach, in which alternatives to detention are already promoted. In practice, local authorities have available to them a range of alternatives to depriving a child of their liberty that they can put to the court as options instead of detention.

The Scottish Government’s vision for youth justice and the standards for those working with children in conflict with the law, which were both published in 2011, represent a foundation shared between the Scottish Government and partners to continue to support an approach that keeps children out of the criminal justice system and promotes the use of alternatives to detention. Data on the use of alternatives to detention for under-21s is published annually on the criminal proceedings in Scotland statistics page of the Scottish Government’s website.

On amendment 208, restorative justice is a voluntary supported process of contact between someone who has been harmed and the person who has caused that harm. Both parties can withdraw consent at any time.

Section 5 of the Victims and Witnesses (Scotland) Act 2014 already gives Scottish ministers powers to issue guidance about the provision of restorative justice services. Guidance, which is aimed at service providers and facilitators, was published in 2017. It outlines the key principles of restorative justice to ensure that, where restorative justice processes are available, they are delivered in a coherent, consistent and victim-focused manner across Scotland. That approach includes children who are the victim or the alleged perpetrator.

In addition, the Restorative Justice (Prescribed Persons) (Scotland) Order 2021 was made under the 2014 act and provides a list of prescribed persons who must have regard to the guidance. The list includes

“the Scottish Ministers ... a local authority”

and

“any person who provides restorative justice services”.

The Scottish Government is committed to ensuring that restorative justice services are available across Scotland, with the needs and voices of persons harmed being central to the process. Such services must be available at a time that is appropriate to the people and the cases that are involved, and they must be consistent, evidence led, trauma informed and of a high standard.

The Scottish Government has been working in partnership with Community Justice Scotland and the Children and Young People’s Centre for Justice to deliver on that commitment. Information about restorative justice and the work that is being undertaken to achieve the vision is already published on the Community Justice Scotland website, which provides a means of reporting. In addition, the Scottish Government has committed to exploring or consulting on the recommendations in respect of restorative justice in the “Hearings for Children” report.

On amendment 209, measures in the bill already aim to enhance the rehabilitation and reintegration of children by ensuring that they can, when required, access age and stage-appropriate welfare-based systems, supports and services—namely, the children’s hearings system and secure accommodation. They also enhance the safeguards that are available to children who need to go through the criminal justice system, including in respect of reporting restrictions.

Section 21 includes provisions to ensure that those detained in secure accommodation are treated as looked after for the purposes of sections 29, 30 and 31 of the Children (Scotland) Act 1995, and those provisions include aftercare up to the age of 19—and 26 in certain circumstances—to aid a child’s transition to adulthood.

As is detailed in the bill’s policy memorandum, the “Sentencing young people” guideline states:

“Rehabilitation is a primary consideration when sentencing a young person.”

That is in line with article 40 of the UNCRC, which provides that all children under 18 who have been accused of committing a crime have the right

“to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

The rehabilitation and reintegration of children who have committed an offence is already a key tenet of the Scottish Government’s whole-system approach to preventing offending by children and young people. A package of support should be detailed in a child’s plan to help them to successfully integrate back into their community, and that is incorporated into the standards for those working with children in conflict with the law. Adding a duty for the Scottish ministers to report on something that is led by local authorities does not appear to fit with the role that the Scottish ministers play.

In summary, therefore, I cannot support the other amendments in this group and ask members not to move them.

I move amendment 105.

I thank Mr Macpherson for that contribution. I do not believe that I have had sight of that submission as yet, but I will certainly look at that ahead of stage 3. I appreciate Mr Macpherson’s support for the amendments.

Amendment 20 agreed to.

This is quite a lengthy group of amendments. I will take the intervention, but I may respond in relation to all the amendments in the group.

Convener, I have gone against my aim of taking interventions after I speak to all the amendments in a group—I will return to that approach, but I am happy to take this one.

I am urging the committee to get it right. The bill, as it stands, makes provisions for victims and witnesses, but, as I said, deceased victims are not covered. We need to have further discussion on that, and there are vehicles in which we could make progress on it. I have been quite clear.

As far as I know, the round table is happening in late February, and I cannot confirm that stage 3 will be completed by then. There are other avenues for looking at reporting restrictions; that sort of thing would not necessarily be restricted to this bill, although it could be done in it.

I am not sure what the member is getting at. What I am laying out is that I want to have as much discussion and consultation as possible on this important issue, and the round table is a key part of that. If it seems right that that would be in time for stage 3, then it could be.

The Victims, Witnesses, and Justice Reform (Scotland) Bill is one, and, as I said, there could be other vehicles for it.

Before I take any further interventions, I will highlight one account that perhaps emphasises the importance of getting this right. During the passage of a bill on the issue in Ireland, senators highlighted the negative impact that a related Court of Appeal judgment had had on bereaved families and why a bill was required to rectify the situation. Senator Fiona O’Loughlin explained:

“The mother of an 11-year-old boy who had been murdered was compelled recently to disguise her identity on television as though she was some type of criminal who could not be identified on the news. By revealing her identity, the identity of her dead child would also have been revealed. It is manifestly unfair to the families of deceased children that the law operates as it does.”

That account demonstrates the complexities involved in legislating on anonymity and the need to understand how it will impact those who are affected. Although something might seem like the right thing to do, it is absolutely essential that it is done in the right way. It is not about kicking it into the long grass, but about ensuring that we get it right for the families concerned.

Of course. The round table has been organised and it is going ahead. I am not talking about it this morning simply in order to delay things. As I said, organisations and stakeholders have been contacted. The round table is the result of a series of engagements between the cabinet secretary, ministers and the associated organisations and stakeholders.

The round table is on 20 February. I have been clear, both today and last week, that there are a number of different issues outside this one alone that I need to discuss with members with regard to further amendments or positions for stage 3. I want to ensure that we can consider issues in good time ahead of stage 3. I am not able to confirm the timings for that just now, but I will make efforts to ensure that we are able to discuss these matters prior to stage 3.

I am happy to write to the committee with any further information on the timeline for how things are going to go ahead.

I have already outlined the fact that I am not the person who is arranging the round table. It is the result of a series of discussions between the cabinet secretary, stakeholders and other organisations. I believe that they are positive about the fact that the round table is to take place. There might be a number of reasons for its not taking place until 20 February, but I am not able to go into those at the moment.

Provisions in sections 12 and 13 set out the “relevant information” that would be within the scope of reporting restrictions, whether prior to or during any criminal proceedings, respectively. That includes information about a person’s name and address, the identity of any school or other educational establishment that they attend, and any still or moving picture of the person.

The amendments in this group would ensure that information identifying the place at which the person works would be within the types of information included in reporting restrictions. Amendment 23 amends section 12 in that regard, and amendment 47 does likewise in relation to section 13. The two amendments ensure that a fuller range of identifying information is included in the “relevant information”, which is important in ensuring maximum benefit from the reporting restriction safeguards for children.

That change is also important given that the bill contains provisions enabling reporting restrictions to apply or be extended beyond the age of 18 for a child suspect or accused and, by virtue of amendments that have already been debated in group 13 and that will be debated in group 17, for child victims and witnesses. It is likely that individuals of that age will be in employment. That is consistent with the reporting restrictions that have been included in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of certain offences listed within that bill.

I move amendment 23, and I ask members to support the other amendment in this group, amendment 47.

Amendment 23 agreed to.

Amendment 24 moved—[Natalie Don]—and agreed to.

Amendments 126 and 125 not moved.

Amendment 25 moved—[Natalie Don]—and agreed to.