Meeting of the Parliament (Hybrid) 27 May 2020
I remind members that I am a practising solicitor holding certificates with the law societies of England and Wales, and Scotland. In opening for the Conservatives in this debate on the Children (Scotland) Bill, I confirm that we will vote in favour of the general principles of the bill.
The policy aims are to ensure that the views of the child are heard in contact and residence cases; protect victims of domestic abuse and their children; ensure that the best interests of the child are at the centre of contact and residence cases; and—note the terminology, as I will return to this later—ensure compliance with the UNCRC. We agree with the convener that the bill is a positive step forward in achieving those policy aims.
On behalf of the Scottish Conservatives, I express our thanks to those who made the bill happen: first, the committee clerks, who ensured comprehensive briefing throughout and produced a report that literally and metaphorically should carry a lot of weight; and, secondly, those who gave evidence, written and orally, and who have continued to provide information since we produced our stage 1 report.
John Finnie spoke for all of us, I think, when he said, in response to extraordinary testimony that the committee heard from Oisín King of Who Cares? Scotland:
“It means much more than the reams of paper that we have in front of us to hear directly from someone like you. That was extremely helpful.”—[Official Report, Justice Committee, 21 January 2020; c 15.]
He was right. The power of evidence that was given by the witnesses certainly helped to remind me of the deep responsibility that we all share to get this right. I hope that all the committee is proud of the report that has emerged and that all the contributors feel that they have been listened to.
The report’s conclusions and the committee’s thoughts are clear. The convener went through the key conclusions, but I will focus on areas that in my view merit further thought and consideration at stage 2. The first of those areas is confidentiality. Children 1st summarised the point well when it referred in its submission to matters being shared that involve
“family support, domestic abuse and trauma recovery and include very personal information the child has shared in the context of safe and trusting environment with a support worker.”
In evidence, Children 1st and the likes of Scottish Women’s Aid argued that the bill should include a specific provision along the lines of the one that was consulted on in 2018, whereby the court, in deciding whether confidential information should be disclosed to a party that asks for it, should disclose the information only when that is in the best interests of the child, and after the child’s views have been considered. They were supported by the young people from Yello!, who said that it would be right that, when a child provides views—for example, to a child welfare reporter—it should be a requirement that the child’s permission is obtained before those views are shared. I can see that argument.
However, I also heard the evidence that was given by the likes of Professor Elaine Sutherland and the Faculty of Advocates, who argued that such a provision could infringe parents’ rights under article 6 of the European convention on human rights and that legislating in that way would be difficult, given the balancing act that is required. I believe that guidance in that regard will be issued, or has been issued, pursuant to the family justice modernisation strategy. I am sympathetic towards the argument about confidentiality, although I am well aware of the challenges, and I hope that we can all explore the issue further at stage 2.
With regard to the balancing act that is required, during the committee’s evidence sessions I explored section 16, which deals with the situation in which a person has breached a court order. It provides that there will be a duty to establish the reasons for the failure to obey such an order. I listened carefully to what was said by the various children’s organisations that welcomed the provision, although, importantly, Children 1st and the NSPCC in Scotland noted that they hoped that any court orders would be satisfactory in the first place.
The Faculty of Advocates said that courts already consider the reasons for non-compliance. Ruth Innes QC said:
“if a court is going to find somebody in contempt of court, it will have had to investigate the reasons for that ... sheriffs and judges already carry out such investigations ... We do not see how the provision would add to what courts currently do.”—[Official Report, Justice Committee, 28 January 2020; c 30-1.]
Lady Wise stated:
“Currently, in those proceedings, there is always an opportunity for the party who is said to be in breach of the order to respond.”—[Official Report, Justice Committee, 20 February 2020; c 7.]
The Sheriffs Association suggested that section 16 could encourage parties to reopen issues that had already been determined by the court and thus prevent a robust approach to enforcement, while the senators of the College of Justice suggested that it could encourage people to disobey a court order. Tellingly, Jennifer Gallagher of the Family Law Association said:
“section 16 does not add anything.”—[Official Report, Justice Committee, 28 January 2020; c 34.]
I have got to a point at which it feels as though section 16 might more properly be amended out, as it feels unnecessary and potentially detrimental. As the debate develops, I hope to hear reasons why I might revise that view—perhaps I will hear such reasons now.