Committee
Education Committee, 04 Oct 2006
04 Oct 2006 · S2 · Education Committee
Item of business
Adoption and Children (Scotland) Bill: Stage 2
This group of amendments raises an important issue. I am considerably supportive of allowing the child's voice to be heard. I am sure that we have all talked to children who have been in care, through adoption or fostering, who feel that, at various points in the procedure or afterwards, their voice was not heard. The central point of the amendments in the group is undoubtedly correct and, as Elaine Murray has mentioned, is provided for in the provisions in section 9 on the way in which the court or adoption agency is to exercise its powers.We recognise that independent advocacy is a valuable service that can be important for children and adults. Where appropriate, it can be a way to help children and adults to make their voice stronger and to have as much control as possible over their life. We do not dispute that general principle, but amendment 168 seeks to add an additional consideration that a local authority must include in its plan for the provision of the adoption service, namely the steps that it will take to ensure the availability of independent advocacy services for children, parents, guardians and relatives, and to ensure that they have the opportunity to make use of those services. I am aware that the Education (Additional Support for Learning) (Scotland) Act 2004 and the Mental Health (Care and Treatment) (Scotland) Act 2003 contained specific provisions on access to independent advocacy services. However, amendment 168 is not quite the same. A general duty on local authorities with regard to the provision of independent advocacy services is not appropriate in the bill because adoptions occur in a wide variety of circumstances, many of which do not really raise the issue that we are discussing. As Lord James Douglas-Hamilton has mentioned, the bill contains provisions for the appointment of curators ad litem and reporting officers and provision for safeguarders. There is quite a lot in the adoption regime that requires people to consider the child's interests.Lord James Douglas-Hamilton mentioned a potential conflict of interest. I understand that the adoption policy review group considered that issue and concluded that there was no conflict or that, if there was, it could be accommodated. In any event, the rules in section 101 contain provisions that enable the curator ad litem to be a different person from the reporting officer or to be the same person if appropriate. The rules are flexible enough to cope with the emergence of problems of the kind that Lord James Douglas-Hamilton envisages.Unlike in the Education (Additional Support for Learning) (Scotland) Act 2004 and the Mental Health (Care and Treatment) (Scotland) Act 2003, advocacy is not as central as it might be in some circumstances partly for the reasons on which I have touched. There may be circumstances during the adoption process in which children and adults would benefit from advocacy, and the bill does nothing to prevent that; it is perfectly possible for such arrangements to be made. The 2004 act and the 2003 act deal with clear categories of people who consistently require advocacy. Under the Education (Additional Support for Learning) (Scotland) Act 2004 education authorities do not have a duty to provide or pay for an independent advocate. Although Lord James Douglas-Hamilton is right to say that advocacy was included in the legislation, the reference was limited. Within adoption, circumstances are extremely varied and a blanket provision in the bill is not appropriate.Amendment 173 would specify that when a court or adoption agency considers a child's ascertainable wishes and feelings in order to come to a decision about adoption, wishes and feelings expressed via an independent advocate must be considered. Amendments 174, 175 and 176 address similar points.An explicit statement that the child's views can be expressed via an independent advocate is not necessary in primary legislation, because there is no bar on that happening. Of course, children can also be represented in legal proceedings by a solicitor—or an advocate of Lord James Douglas-Hamilton's kind. Elsewhere in the bill, we make provision for the appointment of curators ad litem and reporting officers who are independent of the court and can convey the child's views and protect the child's interests, so the bill contains much provision to allow such representation. The curator ad litem cannot be an employee of the local authority, which provides an important Chinese wall. As we said, the inclusion in the bill of a general duty on the provision of independent advocacy services would not be appropriate, given the diversity of adoption cases.Amendment 4 would ensure that in the case of an application for a relevant order for a child, the child would have the right of access to independent advocacy services if the same person had been appointed curator ad litem and reporting officer. I think that I dealt with that matter in the context of the provision in section 101. Again, such a level of detail would not be appropriate in primary legislation; it is more a matter for court rules. However, I assure Lord James Douglas-Hamilton that I am more than happy to ask officials to consider the issue in the context of the guidance, which seems to be the proper place for such matters—I hope that my assurance satisfies him.Nothing that I have said is intended to downplay the importance of advocacy in a number of situations. Advocacy is important for people, but the appropriate way of dealing with it is through guidance, rather than in the bill. Therefore, I ask the committee to reject the amendments in Lord James Douglas-Hamilton's name.
In the same item of business
The Convener:
LD
There has been some progress on the railways, and I am pleased to see that Frank McAveety and Elaine Murray have been able to join us. Richard Baker is here ...
Section 1—Duty of local authority to provide adoption service
The Convener:
LD
Amendment 8, in the name of the minister, is grouped with—bear with me, as it is a long list—amendments 9, 10, 166, 11 to 15, 17 to 20, 23, 24, 169, 170, 25,...
Mr Frank McAveety (Glasgow Shettleston) (Lab):
Lab
House.
The Convener:
LD
I should point out that, if amendment 13 is agreed to, amendment 14 will be pre-empted.
Robert Brown:
LD
I do not have total confidence that I have sufficient brain cells to see my way to the end of this lot today, but I will do my best.In its stage 1 report, th...
The Convener:
LD
Thank you. Your remarks were commendably brief, given that you were introducing such a large group of amendments.
Mr Ingram:
SNP
I thank the minister for recognising the issue with which amendment 166 deals. Amendments 166 and 169 are designed to address the confusion that might be cau...
The Convener:
LD
I am not clear what you mean.
Mr Ingram:
SNP
Amendments 170 and 171 are consequential on amendment 172, which is in a later grouping.
The Convener:
LD
I am afraid that we must consider the amendments as they have been grouped.
Mr Ingram:
SNP
In that case, I will explain the purpose of amendments 170 and 171. Amendment 172 seeks to ensure that everyone covered by section 6(1) will have a right to ...
Lord James Douglas-Hamilton:
Con
I thank the minister for the reassurance that he provided in relation to amendment 13. There was confusion about what was being defined in section 1(5) becau...
The Convener:
LD
Tommy Sheridan is not here to speak to amendment 162, but other members are free to address it.
Dr Elaine Murray (Dumfries) (Lab):
Lab
Fairly late yesterday, we received a briefing from BAAF Scotland, which indicated that"BAAF Scotland is opposed to the Executive amendments 8-10, 12, 14, 15,...
Robert Brown:
LD
We have discussed amendment 166, in the name of Adam Ingram, which is a reasonably straightforward matter.The desire to have a seamless adoption support serv...
The Convener:
LD
I apologise to colleagues but, as a consequence of the transport disruption this morning, we need to examine a technical issue relating to standing orders. I...
Meeting suspended.
On resuming—
The Convener:
LD
I apologise for the suspension. We were trying to resolve from standing orders an issue relating to substitutions. The rules are that a member whose train ha...
Amendment 8 agreed to.
Amendments 9 and 10 moved—Robert Brown—and agreed to.
Amendment 166 not moved.
Amendments 11 and 12 moved—Robert Brown—and agreed to.
The Convener:
LD
I am sorry—there will be a lot of procedure today.
Amendment 13 not moved.
Amendment 14 moved—Robert Brown—and agreed to.
Section 1, as amended, agreed to.
Section 2—Local authority plans
Amendment 15 moved—Robert Brown—and agreed to.