Hansard

The amendments in group 2 speak to the need for a balance to be struck between ensuring that a sufficiently robust process is in place and avoiding imposing undue burdens on parents, pupils and schools.

As we heard, amendment 21, in the name of Tess White, would require schools to provide parents with written information on how the withdrawal process will be handled. That is a proportionate and practical measure. Although schools are already required to include that information in handbooks, anecdotal evidence suggests that parents are often not aware of their right to withdraw their child from RO or RME. Providing that written guidance when a withdrawal request is made would help parents to understand their rights and, potentially, also help to reduce disputes. It would not introduce significant costs or complexity as there could be a standard form that was included in and supported by the guidance accompanying the bill, as has been mentioned. I am therefore happy to support amendment 21.

Amendment 22 would require operators to notify all persons with parental rights and responsibilities when informing the pupil about a withdrawal request. The amendment is unnecessary and unhelpful, as the language used is not consistent with the 1980 act, which already provides a broad definition of a parent that includes guardians and others with parental responsibilities. Including a different and narrower definition risks confusion and inconsistency.

The duty in amendment 22 would also apply regardless of family circumstances, which means that unnecessary notifications would be made when both parents live together. In other circumstances, including where parents are separated and there is conflict about the child’s upbringing, the school’s operator would be required to notify the other parent regardless of any relevant agreements or court orders relating to the child’s upbringing. I hope that members will see how unhelpful such a provision could be.

Amendments 23 and 24 would add a requirement to consider the pupil’s emotional wellbeing when having regard to their views. Although that is an important consideration, the amendments would introduce subjective and undefined criteria that are at odds with the existing duties, which are covered by the wellbeing principles under getting it right for every child—GIRFEC—to ensure pupils’ welfare. Adding that requirement is therefore unnecessary.

Amendment 25 seeks to prevent operators from expressing or implying a view about whether a pupil should object to withdrawal. Teachers are already bound by professional standards to act with integrity and to avoid bias, so the amendment is unnecessary and could undermine respect for teachers’ professionalism. I mentioned in my stage 1 evidence that guidance will accompany the bill. I suggest that that guidance could usefully reinforce the importance of objectivity without suggesting that teachers would act counter to their professional standards. I hope that that reassures Tess White that she should not move amendment 25 on behalf of Stephen Kerr.

As we have heard, Pam Gosal’s amendment 5 would replace the presumption that a pupil is capable of forming a view unless the contrary is shown with a test requiring the operator to judge whether the pupil can meaningfully express a view on the request,

“having regard to their age, stage of development and understanding”.

The wording is quite unclear, and it introduces a higher assessment threshold and greater complexity for schools, which could encourage inconsistency across schools.

I tried to intervene when amendment 6 was being spoken to earlier. The amendment seeks to replace the current bill provision under which a pupil’s objection will prevent withdrawal with a best interests test, and it would create an additional barrier to the pupil’s decision being respected. It would mean that, when a pupil objects, their decision would be respected only if the operator judged that their withdrawal would be contrary to their best interests. The new test would seem to create further complexity for schools, would risk inconsistency and would increase workload because of mediating between pupil and parent. We have already heard some of the challenges associated with that from Mr O’Kane.

Amendments 26 and 27 seek to introduce a presumption of capacity at 16 and a presumption of incapacity below 16 for the pupil’s right to have their views considered. That does not align with the UNCRC and recent domestic legislative precedents, and it is far removed from the capacity-based approach in the bill, which was supported by a majority of committee members. Ms Chapman made a point on that in an intervention. It would exclude the vast majority of school-age pupils, given the presumption of incapacity below 16.

Amendments 31 to 33 would introduce significant administrative complexity. Amendment 31 would require written confirmation from the parent and the pupil before withdrawal could proceed. Amendment 32 would impose a 14-day waiting period; it provides that, if the child expresses further views during the 14-day period, those views must be treated in the same way as their initially expressed views. Amendment 33 would require decisions to be made by a panel, which would include the director of education, headteacher and, as we have heard, an independent advocate. Those changes would create delays, introduce unnecessary barriers for parents and pupils, increase costs and add disproportionate burdens on schools and local authorities. Larger local authorities, in particular, might find that provision impossible to deliver.

Amendments 28 to 30 would make technical and consequential changes linked to amendments 31 to 33, which would introduce new conditions and processes. As the substantive amendments are not supported by the Government, I urge members to resist amendments 28 to 30.

Amendment 34 would provide that nothing in proposed new section 9A of the 1980 act would affect the responsibility of parents for the upbringing, moral education and welfare of their children. The amendment seeks to make an unnecessary and inappropriate provision relating to parental responsibilities, and it restates a principle that is already well established in Scots law. There is a risk that the inclusion of the provision might imply that section 1 casts doubt over the principle that parents have primary responsibility for their children’s upbringing, which it does not. The amendment would not create new rights or duties and would add no substantive value to the bill’s provisions.

Finally, amendment 42 would introduce a statutory obligation to provide legal aid for disputes between pupils and their parents about withdrawal from religious observance. The amendment would undermine the fact that schools and teachers are experienced in having complex and sensitive discussions with parents and pupils on a regular basis and that they already have well-established processes for resolving disagreements. It would also result in significant financial and administrative burdens, and it could create an expectation of formal legal involvement in discussions that are intended to be carried out at school level.

In summary, I encourage members to support amendment 21 and vote against all the other amendments in the group.