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It has guidance—

Technically, yes. However, the point that I am making is that the core purpose of the scheme that has been set up—my predecessor was very clear about this—is to support those who were in long-term care because parental responsibility had been removed through social work legislation. That is the focus of the scheme, and I have tried to set out the reasons why confidence in the scheme, as established, is important. I have set out why the evidential requirements are there and the reasons why they are important. Changing the scheme is technically possible, but I have set out the reasons why it would be very difficult.

Thank you, convener, and good morning to the committee and those in the gallery. I am grateful for the opportunity to provide evidence to the committee on PE1993.

Before I get into redress matters, I will begin by putting on formal record my acknowledgement of the abhorrent abuse that some children suffered while resident in Fornethy house. It should not have happened, and I am sorry to hear about what they had to endure as children and the impact that the abuse has had on their lives. The First Minister and I have met the Fornethy survivors, and I recognise and commend their courage in sharing their experiences.

Turning to the matters that are outlined in the petition, as the committee is aware, I instructed the appointment of an independent researcher to make inquiries into Fornethy house. Dr Fossey took up post on 1 August last year with a remit to investigate the circumstances by which a child would be placed in Fornethy house and to establish what records exist relating to Fornethy house. Dr Fossey has concluded her inquiries, and her full report has been shared with the committee.

As the committee has had the opportunity to consider the report ahead of today’s evidence session, I will not repeat the findings, but I want to turn to how they affect the eligibility of Fornethy survivors to access Scotland’s redress scheme. Part 3 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 sets out the eligibility for the scheme, which includes residence in a relevant care setting in Scotland.

Section 20 of the act defines “relevant care setting” to include residence in

“a residential institution in which the day-to-day care of children was provided by or on behalf of a person other than a parent or guardian of the children”.

Moreover, “residential institution” refers to a variety of different care settings such as children’s homes, residential care facilities and school-related accommodation, which are as further defined in section 21 of the act.

Section 23 of the act, however, allows the Scottish ministers to make regulations to create exceptions to eligibility. The Redress for Survivors (Historical Child Abuse in Care) (Exceptions to Eligibility) (Scotland) Regulations 2021, as approved by Parliament before the scheme opened, provide that an application for redress may not be made

“by or in respect of a person to the extent that it relates to abuse that occurred when that person was resident in a relevant care setting—

(a) for the purpose of being provided with short-term respite or holiday care, and

(b) under arrangements made between a parent or guardian of that person and another person.”

Where the exceptions apply, a key point in assessing eligibility is the purpose of the stay in the relevant care setting and whether it had been made under arrangements with a child’s parent or guardian. Although records from the period are limited, the report is clear that children attended Fornethy house primarily short term for convalescence or a recuperative holiday under arrangements involving their parent or guardian and another person. Those circumstances, as agreed by Parliament, are excluded from the scheme.

It is important to acknowledge at this point that, in the absence of individual records, it is not possible to say with certainty that parents gave their informed consent to their child attending Fornethy house. We can only speak to what was supposed to happen. The legislation speaks of arrangements made with a child’s parent or guardian, and that is what is relevant for redress purposes.

The redress scheme is primarily designed for those children who were in long-term care and the exceptions are in keeping with that purpose. That rationale was supported by 79 per cent of respondents to a public consultation that was issued in advance of the legislation being drafted. In addition, there is the key issue of the absence of records relating to Fornethy house. Every applicant to the redress scheme is required to provide evidence that they were in a relevant care setting at a particular time. Unfortunately, the absence of records means that, even if the eligibility criteria were to be changed, Fornethy survivors are unlikely to meet the evidential requirements of the scheme.

For all those reasons, I do not intend to change the eligibility criteria for the scheme. I recognise that the outcome of the inquiries will be disappointing to the survivors who seek redress. The report’s findings are in no way intended to diminish the experiences of the survivors or to suggest that the parents of those children were in any way responsible for the experiences that their children had during their time in Fornethy house.

I am very grateful to the committee for its on-going support of the Fornethy survivors and Scotland’s redress scheme. I am happy to answer any questions that you have.

I recognise very much the point that you make about the unequal nature of that relationship. I am not disputing that at all. The point that I am making is that, when the bill was taken through by my predecessor, the distinction that was made was that the scheme would be for those who were in long-term care and who had essentially been removed from their parents through, primarily, social work legislation. Fornethy was established through education legislation. I am not disputing the opaqueness over whether parental consent was given. I am saying what was supposed to happen, rather than necessarily what the individual experiences were.

No one is disbelieving anyone—let me be clear about that—but the core aim of the scheme, as set up by my predecessor, was very clear in that it was to focus on those who had been in long-term care who had been removed from parental responsibility. That was the core purpose of the scheme. It was unanimously agreed by Parliament and a line was drawn in recognition of the priority given to those children.

That is not to deny the experience of anyone else, whether it was in short-term convalescent care or in a boarding school, for that matter, but that was the core aim of the scheme, as my predecessor was very clear about and as was agreed by Parliament—and, of course, in the public consultation, 79 per cent of people agreed with that being the purpose of the scheme. That is absolutely not to question the experience of anyone else, and I will be really clear that everyone should be believed. However, that was the core purpose of the redress scheme, for all the reasons that my predecessor set out, and that was accepted and agreed by Parliament for all the reasons that were debated at the time.

The same principle was looked at when the former Deputy First Minister was in front of the Education, Children and Young People Committee. I think that you and Oliver Mundell were members of that committee. Those were exactly the issues that were debated.

You can go back and look at the record yourself, Mr Ewing.

On the situation now, I have outlined why the eligibility criteria were established as they were. The scheme is far broader than any other scheme. I have said that it is focused and is working hard to deliver for those who were in long-term care and removed from parental responsibility. I have also outlined the difficulties of Redress Scotland’s evidential requirements.

There are no records not just for Fornethy but for the many other schools that people were in for very short terms—for a number of weeks. There are no records for them because the system at the time, rightly or wrongly, did not require those records to be retained. It would be very difficult to ask Redress Scotland to take on thousands of cases in which no evidential material exists and to try to work through those cases when it is focused on the core purpose of the scheme.

As I said at the beginning, Scotland’s redress scheme is far broader than any other scheme anywhere else in the world that I am aware of.

I said earlier—I want to emphasise it again—that I accept that the issue of parental consent was an issue of power and relationships. I accept that whether or not someone was clear about it, was given a consent form and gave their consent explicitly is opaque, to say the least, and that the experiences of the women and their recollections make it clear that parents may have been encouraged—you said coerced. The evidence is not there either way, but I do not for a second dispute what the women have said about that matter.

The issue comes down to this. In terms of what the former Deputy First Minister said and what I am saying, in looking at applications, the redress panel would need to have some level of evidential requirement in order to process a case. That might be possible. If someone from Fornethy had various placements in other settings as well, they could potentially bring a case—

I totally accept that it is nobody’s fault—certainly not the survivors’ fault—that those records do not exist. I also absolutely accept what you are saying about survivors coming together. However, the way Redress Scotland operates requires someone who has—

People need to have confidence in the scheme. Someone who has been in institutional care for many years and brings a claim to Redress Scotland must provide a level of evidence. Survivors find that quite difficult. I acknowledge their difficulty, but they have to provide that level of evidence.