Hansard

The amendments in the name of Ken Macintosh propose changes to provisions in the bill to do with deemed relevant person status. The amendments relate to complex issues, and I hope that members will forgive me for taking the necessary time to explore those complexities in order to support the committee in making its decisions.Section 185 sets out criteria that clearly identify those who should gain automatic relevant person status. That is based on a test of legal fact. In addition, section 80 allows those who do not meet that test but have a significant involvement in a child’s life to claim that they should be deemed to be the child’s relevant person and should be able to access the same rights and duties as those who meet the legal test. It is important to keep those two tests—the factual test and the legal test—separate. I will explain further.The provisions allow the hearing to accommodate the rights of children—by ensuring that only the right people have rights and duties in association with the child’s hearing—and those whose significant relationship with a child may be affected by a decision in a hearing. Under the current legislation, there is a factual test to determine relevant person status, but the process is not clear and is not consistently applied. The provisions in the bill therefore provide a clear, consistent and transparent process for making decisions on relevant person status.As Mr Macintosh confirmed, amendment 183 centres on the terminology that is used in the bill to describe someone who is deemed to be a relevant person but does not meet the legal test that is set out in section 185. Amendments 183, 184, 187 and 203 to 206 seek to move away from the word “deemed” to the words “treated as”. In addition, amendment 216 seeks to add to the definition of “relevant person” by including a person who has received deemed relevant person status.I confess that I find those amendments at best unnecessary; at worst, they risk causing confusion about the distinction between the criteria that are set out in section 185, which rest on legal status, and those in section 80, which rest on the facts around the relationship with the child in question. In reality, a person who is deemed to be a relevant person will assume the same rights and duties as those who are automatically relevant persons have. In effect, deemed relevant persons are treated as relevant persons. Section 80(4) achieves that. It states:“the individual is to be treated as a relevant person”.There is a clear and important difference between the two tests. The question whether a person has parental rights and responsibilities in respect of a child should be a matter of legal certainty, whereas the question whether a person is significantly involved in the child’s upbringing is a question of fact that should be determined by the hearing, which will be the decision maker on that matter.10:00 In addition, a relevant person who meets the legal test will not have that status questioned or reviewed, because when their legal status changes, their status as a relevant person automatically changes. A deemed relevant person can continue to be treated as a relevant person only while they still have a significant relationship with the child, and I have lodged amendments to allow a mechanism for that factual test to be reviewed; I will speak to those shortly. I therefore suggest that amendments 183, 184, 187, 203 to 206 and 216 are unnecessary and inappropriate.Amendment 185 seeks to amend the criteria for those who should be deemed to be the child’s relevant person. It proposes a fairly nebulous test for determining which adults should be involved in discussion at a children’s hearing. The test turns on whether the individual “should ... be involved in discussion at the children’s hearing”.However, the role of relevant person extends far further than that. A deemed relevant person will assume all the rights and responsibilities of the child’s relevant person, not just in discussion at the hearing. I am not clear whether the intention is to add another group of adults who should have the right to attend a hearing and, if so, how far those rights extend. For example, will they extend to the right to accept grounds for referral, gain state-funded legal representation and appeal a decision of a hearing? Perhaps Ken Macintosh will clarify in his comments whether it is the intention to replace the current criteria for gaining deemed relevant person status.As I said earlier, in developing provisions around relevant person and deemed relevant person status, we must achieve a balance that both allows the hearing to accommodate the rights of children by ensuring that only the right people have rights and duties in association with that child’s hearing and allows those whose significant relationship with a child might be affected by a decision of the hearing to be heard. Were the amendments in the name of Ken Macintosh to be accepted, I fear that that balance would be upset and the needs of the child would be lost. That could result in multiple relatives, such as grandparents and siblings, being involved in a hearing, each of whom would have the right to attend and speak but also the duty to attend the hearing, rights of access to all the papers and rights of appeal. Let us not forget that each would also have the right to bring along a representative and to seek state-funded legal representation. A range of conflicting views could be presented and the hearing could become a circus in which the child becomes lost.The committee knows that section 77(4) sets out a duty on the chair of a hearing to ensure that the number of persons who are present at a hearing at the same time is kept to a minimum. Amendment 185 could fly in the face of a fundamental duty that panel members hold dear.Ken Macintosh made a point about the ECHR. The provisions in the bill fully address article 8 rights by applying a test that determines that the extent of the relationship is such that article 8 rights are engaged: the significant involvement test. It is appropriate that only those who have such an involvement in the child’s life should gain the status of relevant person and all the rights and responsibilities that accompany that status.On the basis of those arguments, I urge Mr Macintosh not to move amendment 185.Amendment 186 seeks to put in place provisions that would allow the review of deemed relevant person status. I know, as does the committee, that the current provisions in the bill do not allow for such a review and that there is strong and valid support for making such provision. I am, of course, very supportive of the objective of the amendment, as demonstrated by the amendments in my name. However, amendment 186 lacks detail on the process and mechanisms that need to be put in place to trigger a review and make a fresh determination of whether the test continues to be met. In short, there is no mechanism in the amendment to allow the review to be carried out. Amendment 188 is consequential on amendment 186.As Ken Macintosh acknowledged, I have lodged amendments on those points. They put in place a process for triggering a review of deemed relevant person status, the means of undertaking that review, and the rights of those affected by the review. In developing the amendments, I again wish to thank the committee for the valuable comments in its stage 1 report. The process for review of a deemed relevant person determination has been carefully developed and is clearly demonstrated in the amendments that I have lodged. I had hoped to share those amendments with Ken Macintosh prior to today’s debate, but that did not prove possible. However, I will now talk the committee through the amendments in my name and explain how they provide a well-thought-out process for reviewing deemed relevant person status.Amendment 319 allows for a review of deemed relevant person status. It fits with the process in section 80 of determining whether a person should be deemed a relevant person. The test to be met in section 80 is whether an individual has, or has recently had, significant involvement in a child’s life. During stage 1, some witnesses raised a point that the significant involvement that was evident in the original determination could be subject to change as the child moves through the hearings process and, in that circumstance, continued deemed relevant person status would not be justified. Amendment 319 responds to those concerns by providing the hearing with a power to review deemed relevant person status. The trigger for that review process is where a hearing has reviewed a compulsory supervision order and it takes the view that the individual may no longer meet the test. It is anticipated that, during a review hearing, information may emerge that would lead to a hearing taking such a view and, therefore, deciding that the significant involvement test should be reconsidered. The hearing could either review that deemed relevant person status at the end of that hearing or defer the decision to a further hearing that will be constituted only for the purpose of reviewing the deemed relevant person status.Once a review of deemed relevant person status is triggered, the rights of those who are involved in and potentially affected by the review will mirror those that are in place for the initial deemed relevant person determination in that they can appeal that decision to the sheriff. Subsequent amendments to amendment 319 put in place provisions to facilitate those appeal rights.Amendment 321 allows for an appeal to the sheriff against a decision that reviews deemed relevant person status. It mirrors the rights that are available to the individual who appeals against the original determination regarding the deemed status.Amendment 322 removes the safeguarder’s right of appeal against a decision of a pre-hearing when it has made a deemed relevant person determination. The original provision that allowed such an appeal has been reviewed. Given that the role of the safeguarder is to safeguard the interests of the child—that has been recognised in our provisions that allow a safeguarder the independent right of appeal against a decision of a hearing—it is not necessary for the safeguarder to have an independent right of appeal against a decision regarding deemed relevant person status.Amendment 323 is consequential on amendment 322 in that it removes safeguarders from the list of those persons who can jointly appeal against a deemed relevant person determination or a review of that determination. Amendment 324 makes a technical adjustment to section 155 to clarify the powers of the sheriff when he is not satisfied that a decision around the determination of deemed relevant person status or a review of that determination is justified. The sheriff must quash the decision of the hearing.Amendment 325, which seeks to add a provision to section 155, is also a technical amendment and follows on from the powers of the sheriff on appeal. Under amendment 325, if the sheriff decides that the original determination is not justified and that the individual in question should be a deemed relevant person, that person is considered to be a deemed relevant person in the same way as if the pre-hearing had made that decision, and therefore the same rights and duties will apply. As that range of amendments provides a more robust and clearer process for reviewing deemed relevant person status, I ask Ken Macintosh not to move amendment 186.As for the rest of the amendments in my name in this group, amendments 221 and 150 seek to add strength to provisions relating to the determination of deemed relevant person status, and I am grateful to the committee for drawing the need for such amendments to my attention in its stage 1 report. Section 78 makes provision for those who have the right to seek a pre-hearing to determine deemed relevant person status. Those people are the child; the relevant person; the individual in question; and the principal reporter. Amendments 221 and 150 seek to remove the principal reporter’s discretion on whether to arrange a pre-hearing panel for a deemed relevant person determination when it has been sought by those other than the individual in question, for example by the child or relevant person. The committee’s stage 1 report expressed concern at that element of discretion, and I agree that the principal reporter should be under an obligation to arrange a pre-hearing. As a result, amendment 150 seeks to place a duty on the principal reporter to act on such requests.Amendment 222 is a technical amendment to section 80(3), which prescribes the test for determining deemed relevant person status, and removes the words“for the purposes of the children’s hearing”,which are unnecessary.Amendment 154 is consequential on changes to the legal aid provisions, which will be discussed in a later group.Amendment 155 seeks to make further provision for the rights of those who receive deemed relevant person status and to ensure that they have the right to attend further pre-hearings that have been convened after the relevant person determination is made. It is quite possible that further pre-hearings could be convened prior to a full hearing where decisions around, for example, attendance could be made, and it is important that a deemed relevant person has a statutory right of attendance at them. Following the committee’s stage 1 report, amendments 326 and 327 seek to make additions to the definition of “relevant person”, which is the legal test as set out in section 185. I am grateful to the committee for drawing these points to my attention. Amendment 326 seeks to allow for guardians who have parental responsibilities and rights in respect of the child to receive automatic relevant person status, which is a point that the committee raised in its report. As testamentary guardians may assume parental responsibilities and rights under section 7 of the 1995 act, it is right that they should be included, and the amendment seeks to rectify that omission. Finally, amendment 327 seeks to allow for the inclusion of those who have parental responsibilities and rights conferred on them when the court makes a residence order.I conclude that marathon submission by asking Ken Macintosh to withdraw amendment 183.