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The Children’s Hearings (Scotland) Act 2011 contains a range of existing child assessment and child protection measures to enable the placement and keeping of a child in a place of safety when that is necessary to protect the child from serious-harm risks. It has always been possible for a child to be taken or removed to, and kept in, secure accommodation, by virtue of those emergency measures. However, in practice, the use of secure accommodation for that purpose has been rare and, at times, the ability to do so has been contested between agencies. A small number of local authorities have raised that issue with the Scottish Government.

On further consideration, the Government considers that more explicit reference should be made to the secure accommodation criteria and appropriate procedural safeguards, should such measures be used to take, or remove to, and keep a child in secure accommodation. Therefore, first, amendment 1 promotes legal certainty about when such measures can be used for the purposes of taking a child to, and placing and keeping them in, secure accommodation.

Secondly, amendment 1 promotes consistency with the considerations that are needed for other routes to secure accommodation, such as a compulsory supervision order by a children’s hearing containing a secure accommodation authorisation.

Thirdly, amendment 1 ensures that any placement is subject to appropriate legal safeguards to uphold the rights of the child where a child is being deprived of their liberty by virtue of any placement in secure accommodation.

Proposed new section 57A of the 2011 act makes it clear that, in those situations, as well as a requirement for a child to meet the criteria for a particular child assessment or protection measure, the child can be taken to, placed in and kept in secure accommodation, but only subject to two important safeguards. First, that should happen only where the child meets the secure accommodation criteria that are set out in proposed new section 57A(4), which reflects the criteria for secure accommodation authorisations as amended by section 5 of the bill. Secondly, the relevant decision maker must, having considered the other options available, be satisfied that it is necessary for the child to be taken or removed to, or kept in, secure accommodation.

Proposed new section 57B in the 2011 act will enable further provision to be made in regulations, which will be subject to affirmative procedure, in respect of children who are placed in secure accommodation by virtue of the provisions. That could, for example, enable provision to be made to ensure that any placement in such accommodation would require the consent or agreement of the head of the unit of accommodation or, as the case may be, a chief social worker of the relevant local authority, as well as provision to protect the welfare of a child who is placed and kept in such accommodation. That will ensure consistency with regulation of other placements in secure accommodation.

I therefore ask members to support amendment 1.

I move amendment 1.

Yes, absolutely. Obviously, that issue was picked up on, as I said, and we absolutely need to monitor the situation in the future.

Amendment 1 agreed to.

As we understand it, amendment 3 seeks to prohibit the principal reporter from referring a child aged 16 or over to a children’s hearing when it is alleged that a child has committed an offence that can only be tried on indictment. Moreover, amendment 19 seeks to compel the Lord Advocate to instruct the prosecution of such a child in relation to such an offence, rather than referring the child to a children’s hearing.

Amendment 18 seeks to compel the Lord Advocate to prosecute any child in respect of an alleged offence where there is a “high” risk of “physical or psychological harm” to the alleged victim of that offence if prosecution is not pursued, rather than referring the child to a children’s hearing. It is not clear what level of risk is “high” in this context, or how prosecuting the child, rather than dealing with the child through the children’s hearings system, would have an impact on that.

In any case, the risk of harm if the Lord Advocate chooses prosecution at that stage can be dealt with through consideration of whether the accused is granted bail or is remanded in custody, as was made clear recently in the Bail and Release from Custody (Scotland) Act 2023, which put public safety, including the safety of victims, at the heart of decisions on bail and remand.

Taken together, those amendments aim to restrict the ability of all children under 18 to have their cases dealt with by the children’s hearings system where that is appropriate. That is a fundamental principle of the bill as endorsed by the Parliament at stage 1. It is interesting that the Conservatives are making their proposals only a week after the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 received royal assent, following cross-party support in the Parliament. I am surprised at their turnaround on children’s rights. As such, amendment 18 goes against the general direction and principles of the bill.

Amendment 189 compels the Lord Advocate to

“inform any person who is or appears to be a victim”

when a child, instead of being prosecuted, is referred to the principal reporter under the decision-making process governing joint referral for offences. However, it is not clear how such a victim is to be determined, given that there has not been any determination of the case, whether by the children’s hearing or a court. There is significant ambiguity in the drafting there.

Amendment 190 allows

“any person who is or appears”—

I am opposing it—for clarity.

Before I come to a close, I will address the issue that Mr Kerr raised in relation to Victim Support Scotland’s position. I have already spoken about the changes that the Government has proposed in that regard, and I have offered to work with members on further changes. I do not think that compelling the Lord Advocate in the way that the Conservatives propose, or preventing 16 and 17-year-olds from being able to have their liberty deprived in a secure care setting rather than in a young offenders institution is the best way to proceed. As I have said, that goes against the general principles of the bill.

The Government cannot support amendments 3, 18, 19, 189 or 190. I urge Ms McCall not to press amendment 3, and I urge her and Mr Kerr not to move the other amendments in the group. If amendment 3 is pressed and the other amendments are moved, I urge the committee to reject them.

A key function of the children’s hearings system is ensuring effective participation from those in the room. That means that the hearing has to be very carefully managed, as reflected in the current rules under sections 76 to 78 of the Children’s Hearings (Scotland) Act 2011.

The chairing member has a duty to minimise the number of people in the room at any one time to create a more child-friendly setting that is conducive to the business of the hearing. Amendment 179 would severely obstruct the chairing member’s ability to manage a hearing. Indeed, it has the potential to create extraordinarily challenging situations in the management and operation of hearings, and it would be extremely detrimental to the rights and wellbeing of children and their families.

To correct the member, I did not say that I did not agree with the premise. I said that I did not agree with the premise in relation to the children’s hearings system, which is not a mini-court.

Sections 12 and 13 already make a range of provisions in respect of reporting restrictions in cases involving children, whether as victims, witnesses or suspects. Such cases often attract high levels of media and public interest, and the implications of breaching reporting restrictions for the children involved can be significant.

This group of Government amendments makes further provision for offences and penalties in response to breaches of reporting restrictions in relation to both the children’s hearings system and the criminal justice system.

Amendment 16 increases the maximum penalties for a breach of a reporting restriction in relation to a children’s hearings case. It increases the maximum penalty on summary conviction to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both. On conviction on indictment, the maximum penalty is increased to imprisonment for a term not exceeding two years or a fine or both.

Amendment 16 is for consistency with the changes made by amendments 43 and 84, which cover breaches of reporting restrictions before court or during or after court proceedings respectively. Those amendments make the same increase to maximum penalties for breaches of reporting restrictions in the criminal justice system as amendment 16 does for the hearings system.

Breaching reporting restrictions is an offence. Therefore, increasing the maximum penalties for breaching such restrictions recognises the severity of that. It also reflects stakeholders’ stage 1 evidence that the current level of penalty does not serve as a sufficient deterrent, given the potential gains from doing so, which can be significant.

I am just closing. I will be happy to take one after that.

The “Hearings for Children” redesign report recommended further exploration of the mechanisms for children to access legal aid. That work will be undertaken by the responsible statutory bodies and overseen by the children’s hearings redesign board during the course of 2024. It is anticipated that that will entail significant further work with social work, local authorities, SLAB and the wider legal profession’s representatives, including the Law Society of Scotland.

I urge the member not to press amendments 185 and 186 and, if they are pressed, I urge the committee to reject them, given the reasons that I have outlined.

I do not agree with Mr Kerr, because, as I outlined, children already have the ability to access legal aid. The amendment would create unnecessary duplication of work for those organisations, so I do not think that it is required.