Seòmar agus comataidhean

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.

The use of language in proceedings concerning children has been highlighted as an area that is due for modernisation. That is why the Government has proposed the amendments in this group. They do not seek to change the fundamental nature of the tests to which they apply, but to more accurately reflect what considerations should be taken into account in respect of a child’s welfare.

The new terminology of “health, safety and development” will be more readily understood by children and young people in the hearings system, rather than the previous language, which talks about “risk to moral welfare”, which is outdated and harks back to a different time.

Amendment 7 seeks to update the language of risks to welfare, including moral welfare, to that of risks to a child’s health, safety and development when referring to the test of whether a compulsory supervision order should include a movement restriction condition.

Amendment 8 proposes to make a similar change in respect of a compulsory supervision order containing a secure accommodation authorisation.

Amendment 9 does likewise in relation to medical examination orders by a children’s hearing in respect of a child.

Amendment 10 will achieve a similar outcome with reference to the test for a warrant to secure attendance in respect of a child.

Finally, for consistency, amendment 114 amends other provisions of the Children’s Hearings (Scotland) Act 2011, concerning whether or not a child should be excused from attending a children’s hearing or a court hearing to consider grounds of referral.

I move amendment 7.

Amendment 7 agreed to.

Amendment 174 not moved.