Meeting of the Parliament (Hybrid) 25 August 2020
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.
16:00My 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.