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Will the member give way?

The use of language in proceedings concerning children has been highlighted as an area that is due for modernisation. That is why the Government has proposed the amendments in this group. They do not seek to change the fundamental nature of the tests to which they apply, but to more accurately reflect what considerations should be taken into account in respect of a child’s welfare.

The new terminology of “health, safety and development” will be more readily understood by children and young people in the hearings system, rather than the previous language, which talks about “risk to moral welfare”, which is outdated and harks back to a different time.

Amendment 7 seeks to update the language of risks to welfare, including moral welfare, to that of risks to a child’s health, safety and development when referring to the test of whether a compulsory supervision order should include a movement restriction condition.

Amendment 8 proposes to make a similar change in respect of a compulsory supervision order containing a secure accommodation authorisation.

Amendment 9 does likewise in relation to medical examination orders by a children’s hearing in respect of a child.

Amendment 10 will achieve a similar outcome with reference to the test for a warrant to secure attendance in respect of a child.

Finally, for consistency, amendment 114 amends other provisions of the Children’s Hearings (Scotland) Act 2011, concerning whether or not a child should be excused from attending a children’s hearing or a court hearing to consider grounds of referral.

I move amendment 7.

Amendment 7 agreed to.

Amendment 174 not moved.

Thank you, convener. Prisons are not places for children, and we are committed to keeping them out of prison through provisions in the bill that end the placement of under-18s in young offenders institutions. The amendments in this group run contrary to that by retaining the use of young offenders institutions for children aged 16 and 17, and, indeed, extend that position to all those aged 16 to 18. They would also go against our commitment to keep the Promise, which stated:

“Scotland must recognise that 16 and 17 year olds are children in line with the UNCRC and must be accommodated within Secure Care rather than within Young Offenders Institutes and the prison estate. This must include children who are on remand and those who have been sentenced.”

It also stated that

“Young Offenders Institutions are not appropriate places for children and only serve to perpetuate the pain that many of them have experienced”,

and the incorporation of the UNCRC reinforces that position.

I appreciate that Ms McCall will not press or move her amendments. It would have been more productive for her to come to me with her concerns about the provision of secure care and those other areas, so that we could have discussed them ahead of stage 2. However, I am willing to have those discussions as we move forward.

There has been cross-party support in the Parliament for keeping the Promise and the incorporation of the UNCRC. Support for a progressive approach to children’s rights was evidenced by many of the consultation responses on the bill and during stage 1 evidence. That was echoed in the committee’s stage 1 report, which supported ending the use of YOIs for under-18s.

There is a view, shared by stakeholders including HM Chief Inspector of Prisons for Scotland, the Children and Young People’s Centre for Justice and the office of the Children and Young People’s Commissioner for Scotland, regarding the need for urgency in bringing about the legislative changes necessary to end the imprisonment of children in Scotland.

On the detail of the amendments, amendment 11 would add to the powers of a children’s hearing on reviewing an order under section 138 of the Children’s Hearings (Scotland) Act 2011 to enable certain children to be moved from secure accommodation to a YOI. The amendment conflates aspects of the children’s hearings system and the criminal justice system by providing that some children could be referred by a children’s hearing for detention in a YOI.

As we have already discussed, the children’s hearings system is a welfare-based tribunal rather than a court, and a children’s hearing cannot determine that a child should be placed in a YOI. That can be a decision only for a court. In addition, a child referred to a hearing on offence grounds and placed in secure accommodation might be placed there without offence grounds having been established at court.

Amendment 11 also includes that, where a children’s hearing considers that it would be appropriate for the child to be transferred from secure accommodation to a YOI, it must refer the matter to the Scottish ministers. The Scottish ministers have powers to direct the place and conditions only for children who have been convicted on indictment in a court of law and where they have been sentenced to detention by the court. The Scottish ministers do not have authority to direct the placement of any other child.

Amendment 93 would provide that, where a child aged over 16 years has been charged with or convicted of an offence on indictment, the courts would be compelled to commit them to a YOI. That removes the option that a 16 to 18-year-old who has been charged with or convicted of an offence on indictment and remanded could be detained in secure accommodation, should the court require a suitable place of safety chosen by the local authority, and would provide that they can be detained only in a YOI.

Amendments 94, 96 and 102 would extend existing regulation-making powers to provide the circumstances in which children can be transferred to YOIs at the age of 16. That would include children who are convicted and sentenced to detention under summary procedure, but it is not possible for a child to be sentenced to detention in a YOI in summary proceedings.

Amendments 98 and 100 would make provision compelling the Scottish ministers to direct that a sentenced child is detained in a YOI. As I have said, the Scottish ministers currently have the power to direct the place and conditions of detention of children under the age of 16, those between 16 and 18 who are subject to a compulsory supervision order, where convicted on indictment and sentenced to detention, and under-18s who are convicted of murder. Where practicable and appropriate, that will be in secure accommodation. However, the option of secure accommodation would be removed by the amendments, meaning that, as I have outlined, the amendments are regressive from the situation at present and would remove the option of secure accommodation for some children.

The amendments would undoubtedly be a backward step, turning on its head years of progress in Scotland’s approach to youth justice. As I said, I am glad that Ms McCall is not pressing or moving her amendments. On her other concerns, I would be happy to have a discussion with her ahead of stage 3. I ask Ms McCall not to press or move her amendments. If they are pressed and moved, I strongly urge the committee not to reject them—I mean to reject them.

I thank the member for the intervention. I am highlighting some relevant examples, but I have already made it clear that, because of the way in which the amendment is worded, it is not workable. There is too much ambiguity.

Recognising that all children must be treated differently while still ensuring fair treatment and the upholding of their rights is essential to a child-centred, tailored experience that supports children of different ages in the right ways. I believe that that is what the member intended. I hope that I have served some reassurance that current law and practice is sufficient to achieve that already. Decision makers are trained in equalities, discrimination and rights as part of their extensive practice requirements.

In any event, amendment 167 potentially raises legislative competence issues, given that it relates to the reserved matter of equal opportunities and may impermissibly modify the Equality Act 2010. For all those reasons, I cannot support amendment 167.

On amendment 166, members will be aware that the recent “Hearings for Children” report included a recommendation to commence section 3 of the Children (Scotland) Act 2020 and that the Government accepted that recommendation without qualification. Although there have been obstacles to its implementation, I am advised that a request to consider what is required in court rules is now with the rules council in relation to UNCRC incorporation. That will remove a key barrier to the implementation of the provision in the 2020 act. In essence, the requirements envisioned by section 3 will become an obligation under the UNCRC.

In practical terms, the provision covers the good practice that is already well established in the children’s hearings system, and discussions have taken place with the system about formalising its training and resourcing requirements. It was essential that the Government was able to do that preparatory work to ensure that the responsible agencies are ready.

I hope that that assures the member and the committee that that work is being expedited. Our intention is to commence the section within the timescales that are set out in amendment 166. I am happy to provide Parliament and the committee with an update on progress ahead of stage 3, if that would be desirable.

I am, therefore, opposed to amendment 166. I do not think that it would be helpful or necessary for us to tie in the commencement of an entirely separate piece of legislation in that manner. By tying the duty to commence section 3 of the 2020 act to royal assent for this bill, the amendment would probably be unworkable in practice.

I appreciate the intention of amendment 170, but we must be clear that all children who are referred to the children’s reporter are, in some way or other, vulnerable and that it is unhelpful to attempt a definition in this way. Taking into account the whole circumstances of a child’s life is at the heart of the welfare-based approach adopted by the system. By labelling some children as inherently vulnerable by virtue of certain characteristics, we risk creating a two-tier approach. Amendment 170 risks minimising consideration of other factors that might make a child vulnerable while legislating for certain characteristics that may not.

Furthermore, the amendment does not take account of the fact that children’s hearings in the courts are decision-making forums. It is not their role to provide support services—that is the responsibility of public authorities. When particular on-going support services are required, panel members may make a compulsory supervision order that requires that others provide those services to the child, but that is a decision for the panel as an independent tribunal. The amendment would cut across that independence by enforcing provision of enhanced support to certain children, whether or not it was deemed necessary.

When additional support is required to enable a child to attend and effectively participate in their hearing, the Scottish Children’s Reporters Administration enables that support to be in place. For example, the SCRA has a network of neurodiversity champions working across all front-line localities. Members of the network are available to assist staff in ensuring that arrangements for hearings in court are tailored to suit individual needs, and they can arrange for translation and interpretation services when those are required. All children’s reporters receive training on domestic abuse, which is delivered in conjunction with Scottish Women’s Aid, and the SCRA is in the process of training all staff in trauma-informed practice.

It should also be noted that, in 2020, the Scottish Government introduced independent advocacy services that are available to any child who needs to attend a hearing. Advocacy workers can enable a child’s effective participation in a hearing and ensure that their views are communicated to decision makers. Although it is not the role of the hearing to provide support services, I understand the sentiment behind the amendment. Again, if Mr Whitfield does not move amendment 170, I am more than happy to engage with him on the matter ahead of stage 3.

The children’s hearing would not be the first point of contact for services for somebody who is in trouble or who is experiencing that situation. That would be others, whether it was social work or the local authority. As with the comments that I made on amendment 170, it is just not the role of the principal reporter to assign someone to those services. Instead, the key requirement is to ensure that appropriate support services are available and accessible, and, as I said, that is not necessarily within the gift of the principal reporter. It is also unclear how we would define specialist services or the consistency of provision required. I therefore ask the committee not to support amendment 172.

This is another quite lengthy group, so my speaking notes are again quite lengthy.

Since its inception, the children’s hearings system has been a welfare-based system focused on the needs of the referred child, not a criminal justice system. Any children referred to it are referred for the sole purpose of considering the necessity of compulsory state intervention in their lives to safeguard and promote their welfare throughout their childhood.

Section 1 of the bill will enable the children’s hearings system to consider the needs of any child under 18 who is referred to it. The changes under that section, which ensure consistency of approach for all children up to the age of 18, do not require any additional direction to members of the hearings system on how to make decisions. The specifics of what measures are put on a child’s compulsory order can continue to be tailored to the particular circumstances of the child.

In relation to Roz McCall’s amendment 2, the hearings system is generally focused on the welfare of the referred child. In the majority of cases, their welfare is the paramount consideration. However, section 26 of the Children’s Hearings (Scotland) Act 2011 already recognises that, in some cases, the child’s welfare has to be considered alongside other factors, specifically when a decision is necessary to protect members of the public from serious harm.

I consider that the existing law already strikes the right balance to enable a hearing to make appropriate decisions to support both the referred child and the wider public. I do not support Ms McCall’s amendment 2, which would have the effect of lowering the threshold in some cases and would, therefore, tip the balance too far from the referred child and, indeed, be in conflict with the existing tests that are carefully designed to protect members of the public.

Although disposals in such a welfare-based system are interventions with consequences for a child’s life, they are not punitive in the manner of the criminal justice system. It would be of great concern if the hearings system evolved into a criminal justice system for children. Therefore, I believe that I must resist amendments that diminish the decision-making focus on the needs of the child who has been referred.

I turn to amendments 168 and 184, regarding the views of victims in relation to children’s hearings decisions. Those amendments appear to place victim impact-type measures in the children’s hearings system and fundamentally misconstrue its welfare-based approach.

We must remember that the Lord Advocate retains responsibility for prosecutorial decisions. Any child who is referred to a hearing on offence grounds will have undergone a process in line with the Lord Advocate’s guidelines and prosecution policy. Therefore, there will already have been consideration of whether the child’s offending merits a prosecutorial or welfare-based approach. It would not be appropriate for a hearing to be required to gather the views of victims in that way and to take that into account in making the decision.

The hearing’s focus must be through the lens of considering what compulsory measures are necessary to safeguard and promote the referred child’s welfare. In so doing, it can include any measure that is necessary to prevent the child from causing harm to others.

I thank the member for that intervention. However, as I said, I feel that that is covered by other areas and I am conscious of the issue of duplication. I absolutely agree that those are very important matters, but, as I said, panel members are already trained in those areas. I am about to come on to the matter of trauma training, so maybe it is something that we can look at as a whole. However, I do not agree that amendment 187 is necessary.

Similarly, on amendment 210, although I agree with the thrust of the member’s intention that appropriate training should be in place in the context of children’s criminal justice, the amendment is not necessarily clear about who the proposed training would apply to and what the training should entail. We do not have any evidence to suggest that the kind of training that is detailed in the amendment is not currently available, and the Scottish Government funds a range of agencies that provide training that can be accessed by staff who work with children and are involved in the youth and criminal justice systems.

Further, we do not consider it to be constitutionally appropriate for the Scottish ministers to arrange training for those who must act independently from the Government, such as the police, prosecutors and judges. It is important that we do not stray into inappropriate interference in investigatory, prosecutorial and judicial functions and that we respect the ability of criminal justice authorities to determine the most appropriate training for their staff in the exercise of their roles. Therefore, I cannot support amendment 210.

Although I appreciate the intention behind amendment 169, I do not believe that it is necessary. Children’s hearings are, in many ways, ahead of the curve in trauma-informed practice, and all panel members receive mandatory trauma-informed training through a stand-alone training module that is provided by CHS. Trauma-informed practice also forms part of the pre-service training for panel members, so no panel member sits on a children’s hearing without being trained in trauma-informed practice. Beyond panel members, children’s reporters also receive training in trauma-informed practice to ensure that all the preparatory work is undertaken in a trauma-informed way.

As part of our response to the “Hearings for Children” report, we have committed to national oversight of the resourcing and provision of trauma training for everyone who works in the hearings system. That will be wider in scope than the conduct of children’s hearings and will include the judiciary and local authorities.

We will work with key stakeholders to ensure that those aspirations are met and that existing resources are fully utilised. If that work establishes the need for legislative provisions to embed trauma-informed practice across the hearings system, that would be most appropriately taken forward as part of any legislation that flows from the redesign work.

Although amendment 169 appears not to be needed, because, as I said, what it sets out already happens in practice and we are working to go wider and further as part of our work to redesign the hearings system, if Ms Duncan-Glancy is willing to withdraw the amendment, I would be more than happy to work with her ahead of stage 3 to see whether something such as a handout amendment would be desirable.

On amendments 188 and 211, I recognise, understand and value the importance of providing all children and young people, including those who are referred to a children’s hearing or are involved in criminal proceedings, with the right support, at the right time, from the right people. The Scottish Government has concerns that creating a legal duty on promoting a multi-agency approach to planning support, as well as the reporting requirements that would accompany that duty, would undermine the existing and embedded shared responsibility for implementing the GIRFEC—getting it right for every child—approach. It would also create duplication in existing statutory reporting requirements for local authorities and the Scottish ministers relating to children’s services planning.

GIRFEC promotes an integrated and co-ordinated approach to multi-agency assessment and planning support for children and young people. It is locally embedded and positively embraced by organisations, services and practitioners across children’s services planning partnerships, with a focus on changing culture, systems and practice to improve outcomes for babies, infants, children, young people and their families.

Existing statutory measures are in place to ensure that local authorities produce annual children’s services plans under criteria that are outlined in part 3 of the Children and Young People (Scotland) Act 2014, which includes provisions on incorporating a multi-agency practice approach. The Scottish ministers also have a statutory requirement to publish a review of such plans every three years.

I thank the member for that intervention, but I have numerous other points to make on the amendments in the group.

Since 2011, in Scotland, we have promoted a multi-agency, whole-system partnership approach to preventing offending by children, which responds to the needs of children who are involved in, or are on the cusp of being involved in, conflict with the law. Creating an additional legal duty in the bill for the Scottish ministers to promote a multi-agency approach and, crucially, to produce a report that outlines what support has been provided would risk undermining the shared responsibility of implementing the GIRFEC multi-agency approach at all levels of the system.

As part of our response to the hearings system redesign report, we have committed to undertaking a national review of potentially multiple child protection, care and support processes and meetings, including review meetings. That will help to identify and then minimise unnecessary duplication for the benefit of children and families. Preparatory work for the review is already under way, and I look forward to progressing that work in early 2024, with input from the children’s hearings redesign board and other key partners.

In summary, the Government does not support amendments 169, 187, 188, 210 and 211, and I urge members not to press or move them. If they do, I urge the committee to reject the amendments.

The Children’s Hearings (Scotland) Act 2011 contains a range of existing child assessment and child protection measures to enable the placement and keeping of a child in a place of safety when that is necessary to protect the child from serious-harm risks. It has always been possible for a child to be taken or removed to, and kept in, secure accommodation, by virtue of those emergency measures. However, in practice, the use of secure accommodation for that purpose has been rare and, at times, the ability to do so has been contested between agencies. A small number of local authorities have raised that issue with the Scottish Government.

On further consideration, the Government considers that more explicit reference should be made to the secure accommodation criteria and appropriate procedural safeguards, should such measures be used to take, or remove to, and keep a child in secure accommodation. Therefore, first, amendment 1 promotes legal certainty about when such measures can be used for the purposes of taking a child to, and placing and keeping them in, secure accommodation.

Secondly, amendment 1 promotes consistency with the considerations that are needed for other routes to secure accommodation, such as a compulsory supervision order by a children’s hearing containing a secure accommodation authorisation.

Thirdly, amendment 1 ensures that any placement is subject to appropriate legal safeguards to uphold the rights of the child where a child is being deprived of their liberty by virtue of any placement in secure accommodation.

Proposed new section 57A of the 2011 act makes it clear that, in those situations, as well as a requirement for a child to meet the criteria for a particular child assessment or protection measure, the child can be taken to, placed in and kept in secure accommodation, but only subject to two important safeguards. First, that should happen only where the child meets the secure accommodation criteria that are set out in proposed new section 57A(4), which reflects the criteria for secure accommodation authorisations as amended by section 5 of the bill. Secondly, the relevant decision maker must, having considered the other options available, be satisfied that it is necessary for the child to be taken or removed to, or kept in, secure accommodation.

Proposed new section 57B in the 2011 act will enable further provision to be made in regulations, which will be subject to affirmative procedure, in respect of children who are placed in secure accommodation by virtue of the provisions. That could, for example, enable provision to be made to ensure that any placement in such accommodation would require the consent or agreement of the head of the unit of accommodation or, as the case may be, a chief social worker of the relevant local authority, as well as provision to protect the welfare of a child who is placed and kept in such accommodation. That will ensure consistency with regulation of other placements in secure accommodation.

I therefore ask members to support amendment 1.

I move amendment 1.

Yes, absolutely. Obviously, that issue was picked up on, as I said, and we absolutely need to monitor the situation in the future.

Amendment 1 agreed to.