 Shannon Good morning, everyone, and welcome to the fourth meeting of the Committee for 2019. Can I ask that all mobile devices are switched to silent please? Agenda item one is Age of Criminal Responsibility stage two consideration. Itami, consideration, we've completed parts one to three of the bill last week. And today we are looking at the remainder of the bill. Can I welcome Marie Todd, minister for children and young people and her officials? I call amendment 25, in the name of Alec Cole-Hamilton, already debated with amendment 2. I call amendment 24, in the name of Alec Cole-Hamilton, already debated with amendment 2. I call amendment 122, in the name of the minister, grouped with amendments 1, 2, 3, 60, 61, 62 and 63. Minister, to move amendment 1, 2, 2 and speak to all amendments in the group. Members have rightly taken a keen interest in the police power to take a child under 12 to a place of safety at section 23 of the bill. During stage 1, I made it absolutely clear that the place of safety provision is an emergency power and that it is restricted to a clearly articulated lawful purpose. That is to protect people from an immediate risk of significant harm or further such harm. I emphasised that a police station would only be used as a last resort and for the shortest time necessary before somewhere else could be found. I also confirmed at stage 1 that I would not object to an amendment to include the full definition of a place of safety as set out in the Children's Hearing Scotland 2011 act. To make it absolutely clear that the same range of safe places can be used for this bill's purposes. In the stage 1 report, the committee accepted that in rural areas such as the one that I represent, it might be difficult to avoid the use of police stations entirely and asked me to bring forward amendments to prohibit the use of cells in the context of place of safety provisions. I completely understand and have made very clear my views on this matter. However, I think that it would be challenging to completely prohibit this option where there is no safe alternative locally. It wouldn't be acceptable in such situations for a child to be transported in the case of my region hundreds of miles away simply on the basis of a lack of a safe place to take them. We have prevented the one possible safe place that might be available for such discrete and limited circumstances being used. I accept and I would expect that such situations will be extremely rare and that data recorded about the use of the power would bear this out. For these reasons, I think that it would be wrong to prohibit the use of cells entirely, but I do wish to place very clear limits on this. My amendment 122 therefore inserts two new subsections which make clear that a child must not be kept in a police cell where a police station is used as a place of safety unless and only for as long as it is not reasonably practical for the child to be kept elsewhere within the police station. Amendment 123 is technical and is in consequence of amendment 122. I would hope that the committee supports my amendments 122 and 123. Turning now to Alec Hall-Hamilton's amendment 60, which is intended to ensure that where a police station is used as a place of safety, the child cannot be kept in a police cell. Amendment 61 has the same effect in relation to a child under the age of 14 and was consequential in amendment 2 being agreed to in day 1. Amendment 62 has the same effect in relation to a child under the age of 16 and was consequential in amendment 1 being agreed to in day 1. I have made clear my view on an outright prohibition, but Mr Cole-Hamilton's amendment is also problematic because of its definition. In short, most police cells are not legalised police cells. Legalised police cells are cells in police stations which are far from the nearest prison and which can be used to hold individuals for longer than is normal for a police cell. The amendment would not prohibit the use of police cells except in the four cases of legalised police cells where they are still in operation. That is in Huyg, Lerwick, Kirkwall and Stornoway. I would hope, therefore, that Alec Cole-Hamilton will accept that his amendment does not quite achieve the effect that he was seeking and consider not pressing it. If Mr Cole-Hamilton decides to move amendments 60, 61 and 62, then I would respectfully ask that the committee does not support them. I had previously committed to bringing forward an amendment to provide a full list of places of safety, but I accept that Alec Cole-Hamilton's amendment 63 does so and it also re-orders that list so that a police station is named last and only if no other place of safety is available. The 23.5 already sets that out in different words. The limited circumstances in which police stations may be used as a place of safety. I may wish to reflect before stage 3 on the precise implications of that duplication. Subject to that, Alec Cole-Hamilton will be pleased to know that I am very happy to support his amendment 63 if he does move it. To speak to amendments 60 and other amendments in the group. Thank you, convener. I'm glad that we're debating this group today. I think that everyone will agree that this group of amendment stems, principally, from the testimony that we heard from Lindsay Hanvidge and the impact of her experience on the night that she was taken into care of being arrested, charged and kept overnight in a cell. As I said, in last week's proceedings, in the middle of one adverse childhood experience, this state handed her another. It seems to me that we don't have a great deal of information on what is often used, but we know that they are used. It's troubling that that is nowhere codified or understood. In terms of my amendments, I understand the semantic point around the term legalised. The legalised police cell was on advice of clerks that I put those amendments in, but I would still seek to press those and bring forward additional amendments at stage 3 to catch the rest of the cell estate. I think that this is about throwing one's cap over the wall. I think that when we hint at the idea that cells may be used in certain circumstances, then they will be, but there will always be times, even in remote and rural circumstances, where the cell estate within a police station is just out of use or not appropriate, given that there may be other offenders within that cell estate. At that point, police officers in that situation would have to come up with an alternative, better use of safety. If they are forced to, in those circumstances, come up with a better place of safety, then let's do it from the start. I don't think that we have anything to lose by ruling out and allowing our friends and the police force to think more creatively in advance of these situations and to strategise about what they would do in certain scenarios. To that end, I am keen to press my amendments. I am grateful to the minister for bringing her amendment 1 to 2. Initially, I thought that there was merit to it. I quite like the idea of stating on the face of the bill that a cell shouldn't be acceptable and shouldn't be used. My anxiety came in 5B, which is that it sets the parameters of when a cell is needed to be used. For me, I don't think that it's written anywhere in legislation that there is an appropriate time to put children in cells. It's just happened by happenstance, but by putting it in primary legislation, my anxiety is that it will act as a gravitational pull to suggest to officers in a crisis situation that a cell is, something that they might want to consider. For that reason, I am going to oppose section 1 to 2. I am very grateful to the minister for indicating her support for my amendment 63. I think that she's articulated exactly why I've done it. My anxiety, which I know was shared by the majority of the committee at stage 1, was that, because police stations were the only place of safety referred to on the face of the bill, albeit to be used in a time of last resort, they may end up just by virtue of the fact that they are the only one being referred to ending up as the default. I'm glad that amendment has been accepted. It's important to demonstrate on the face of the bill the range of places of safety that should be sought out before a police station is even considered. For those reasons, I wish to press my amendment. Oliver Mundell, you wish to go on. Thank you, convener. I'm struggling with most of the amendments in this group for a variety of different reasons. The first thing that I would say to Alex Cole-Hamilton was that, in rural communities, the idea that there is a better place isn't necessarily correct. I think that, for a lot of children looking at their best interests and what their wishes might be in these circumstances, they would rather remain within their own community than go to a residential facility or hospital that could be outwith their own community. I find it difficult to think that the use of a police cell should be ruled out altogether, probably for the same reasons as the minister. I was inclined to support amendment 122. However, when I look at the language, I'm happy to listen again to what the minister has to say and sum it up in response. When I look at the use of a cell where it's not reasonably practical for a child to be kept somewhere else, I don't know yet whether that's quite the right language. I think that I would prefer a test that looked at the child's best interests rather than just what was practical. I'm happy to hear if there's a reason for that. On amendment 63, I think that on balance, I will support that. However, I would be concerned at a suggestion that the list is set out as an order to work through of preference. Again, I think that in these difficult circumstances we should be looking at what would be best for the child rather than what's immediately available. Again, for me, the idea that a residential establishment would be preferable for a child than perhaps a dwelling house of a suitable person who would be willing to help out. Again, I don't know that that is actually correct, but I would be happy to revisit that at stage 3 and support that amendment for today. Thank you. Mary Fee. Thank you, convener. I just wanted to speak very briefly in support of the amendments in the name of Alex Cole-Hamilton. Alex Cole-Hamilton was writing his remarks that, without doubt, some of the most compelling evidence that we heard when we were taking evidence for this bill was the evidence that we heard from Lindsay. If nothing else persuades us that a child should never be held in a police station, it's the evidence that we heard from her. Initially, when I looked at the amendment 1-2-2 in the name of the minister, I was supportive. However, I am slightly conflicted because the first section of the amendment says that a child must not be kept in a cell within a police station. The second one almost gives permission for a child to be kept in a police station. I think that we need to be absolutely clear in this legislation that a police station, if to be considered at all, should only be considered when every other option has been ruled out. For that reason, I cannot support amendment 1-2-2 in the name of the minister. I hear what Mary Fee is saying, but does she recognise that, in some circumstances, where a child is at danger of harming themselves or harming others, it might be better to be in a police cell than to be physically restrained or, in the case of rural communities, for example, waiting in a police van while police officers are phoning round, looking for another alternative that the cell, for a short period of time, might be a better option than that? No, I am sorry, but I do not accept the points that you make. I think that you have to look at the psychological damage that you can do to a very troubled young person by holding them in a police cell. I would press very strongly that a police cell is not a place that you should be keeping a troubled young person. I am grateful to Mary Fee for taking the intervention. Does Mary Fee agree with me that we need to have a much larger conversation about the provision of crisis facilities for young people? One in nine children in this country will run away at some point in their life, but we do not have a refuge for young runaways in Scotland any more. It is stock like that, facilities like that, that we really need to start building in, capacity building in, right across Scotland, which could answer some of those needs. Absolutely. In agreeing Alex Cole-Hamilton's final point, I will conclude my remarks. Thank you, Mary. Fulton MacGregor in Gail Ross. I do not think that most of us in the committee need any persuasion that a police cell is not a place for a child to be held, as Mary Fee and Alex Cole-Hamilton said. Alex Cole-Hamilton's amendment is brought forward by the minister and Alex Cole-Hamilton's amendment at 63. We achieved what we talked about during the committee that it was the place that was on the face of the bill. There was possibly an indication that that would be the first place used, and I think that the amendments put in to send a clear message that it should only be used if there is no other options available and, by putting it further down the list, it takes away that anxiety. I also do not think that the legislation should be too prescriptive to local communities. Local communities, police officers, social workers and others that are working in local communities have got a better handle on resources to try and avoid situations like Oliver Mundell mentioned. I do not think that it is acceptable that a cell is the only place available for a young person to perhaps be stuck in a van. I think that the amendments are one, two, three and 63 alleviate my concerns around that. I am happy to support them. I will not be able to support them from 60 to 62. Thank you. I must say that when we started out with evidence on cells, I was of a mind that we needed to take out altogether. I did a little bit of research on my own, coming from an extremely remote and rural area of the country. We need to travel 104 miles to Inverness for nearly everything. I spoke to some people and I think that we are doing a disservice to say that just because it is on the face of the bill people are going to use it as a default. I think that we have to trust our authorities and our social work and our police as it says in the amendment. It is only as an absolute last resort. You talk about the psychological damage that you put in children in a cell. I agree that it is also extremely psychologically damaging to put them in a van and travel 104 miles away from their family and away from people that they trust. I really do think that when you balance it up the amendments from the minister do address those concerns. I really do think that that is coming from authorities locally and they have said that all options need to be kept open but they need to be trusted to make those decisions on a case-by-case basis. I will be supporting the amendments from the minister. Minister, to wind up, please. Thank you. I felt that the amendments that I had brought forward were addressing the concerns that the committees raised at stage 1 in a pragmatic way and put in place a strong presumption against the use of police cells, which I felt was helpful, making it clear that children should absolutely not be placed in a police cell unless that is the only way to keep them safe, which I would expect to be a very rare occasion. I have heard the committee's views and I am listening as I have throughout this bill process. If the committee is telling me through their concerns which I think they are, that they have misgivings about these amendments, I would seek an opportunity to explore them further with committee members ahead of stage 3, if they are agreeable, about how we might resolve the concerns to see if we can arrive at an agreed approach to defining a place of safety for the purposes of this bill. If I do not have support, I will not press my amendments at this, but I would ask the member not to press his amendments either. Minister, you would need to withdraw the amendment. I will withdraw my amendment. Is that 1, 2, 2, and 1, 2, 3? Are members agreed as in one object? Yes, agreed. Amendment 1, 2, 2 and 1, 2, 3 are withdrawn. I will call amendment 60 in the name of Alec Cole-Hamilton. The question is that amendment 60 be agreed to. Are we all agreed? No. The committee is not agreed, so there will be a division. Can I ask those in favour of amendment 60 to raise their hands? Those against. The result of the division is for the amendment 2, against the amendment 5, amendment falls. I call amendment 61 in the name of Alec Cole-Hamilton. Are you ready? Amendments 63, 1, 2, 3, 3, 4, 5 choose to meet amendment 67. Mae eich gwaith y dŵr yn cyflauwchDIm bob wgfaith, byddai chynau'r byd, ac mwy'n newid gyda'r bydd. Ieim archf funded, i'w chynau'r byd. Rwy'n cyfrifio'r byd, dwi'n cyfrifio'r byd. Rydw i'n cyfrifio'r byd pwyllwchDIm bwzgl iawn i gael hefyd i'r bydd yn cyflauwchDIm, ac rydw i'r byd, dwi'n cyfrifio'r byd. yn gweithio gyda'r cymru sydd yn ystod yn ymgyrch i gaeligolio chi'n ddegl scaling. Ac mae'n rhai ddawr, Defnyddi, yn gwneud weithio'r cymru ddisgustiantonarion ei cheeserodd fel rhai ddawr, rydyn ni'n tynnu sy'n gwneud oes i gaeligio'r cymru i gaeligio'r cymru i gaeligio'r cysylltu gwahanol i gaeligio i gaeligio'r cysylltu siaradun. Mae'n digwydd i gaeligio'r cysylltu chi'n gaeligio'r cysylltu i gaeligio'r cysylltu phethau o esoiddio i gael chi'n woith i gweithio i gyfrannu i'r ddeimlo yn y cyfnodau i gael eu gwaith o'ch parodau. Oedd gwneud hawddiaeth cyrddechrau i gael eu gweithio eich gweithio ar y ddisgwyl a i gael eu gweithio eu prifysgwr i gyfrannu ei gael i gael eich gweithio i gael i'r ddeimlo a chyfwyr coul am gwahanol ond hwnnw ar ddesgwyl have positive care in the way that we can manage the way in which places of safety are used, and in particular in what types of places are used for these places of safety for children. For that reason, it is hugely important that we have a measure of how frequently the various places that are designated as places of safety are used and by type. That is what Maen nhw gwybod aethwn i gyfredigol ar gyfer maen nhw ddaeth gydyddai'n amrywodau o'r ddqawr y mae'r cyfrifiadau cyfyrdd i ddakffaith. Rydw i ddweud bod nhw'n g舉wch rhyngwun aethwn ymgynnais, pan fy ysgrifftwyr sydd gan gydweithio mewn cael ei gwasanaeth i ddweud o bobl sy'n gweithio bod nhw'n gweithio'n gweithio. Fywordaeth, rydw i gyd wedi gael rydw i'n gweithio'r gwneud uchydig mynd arno i gyfer y cyflogol y byddai, ac mae'n rhaid o'r byd i gael'r byd. Rwy'n gael'r byd os ydym ni'n meddwl i'ch gael'r byd. Rwy'n gael'r byd i gael'r byd yn gynghwyl o'r byd i'ch gael y byd i gyflogol, ond mae'n meddwl i'ch gyflogol o'r byd, ond mae'n meddwl i'ch gael'r byd i gyflogol o'r byd i'ch gael'r byd i'ch gael'r byd i'ch nid hyn gyntafiwch gyda'r ddysgu ei hwn yw i ddim yn bwysig iddo i gael y cyfleoedd yn delad yn ystod yn r Enogol yn byw. Rydym yn mynd i ddim yn bwysig i wedi'r ddiddag i gael ddysgu. O flaen o'r ddysgu i gael, rydw i fan nid ddim yn ddysgu i'r ddysgu i bethau mewn ddysgu i ddim yn ddysgu i ddim i ddim yn ddysgu i ddim yn ddysgu i ddim yn ddysgu i ddim yn ddysgu i ddim inni soffr. Mae'r ffwrdd i'w clyw o'r ystod o'r ystod o'r cyfrifogau, a rwy'n ei ffwrdd y bydd datblygu'r ysgol. Yr ystod, mae'r gweithio'r cymaint cyngor. Rhaol i'r gweithio. Rwy'n credu i'r ddann Johnson o'r cymaint cyngor a'i gweithio'r cymaint y byth. Felly, rwy'n gweithio'r cymaint, dwi'n gweithio'r cyngor y byddai'r cymaint, oherwydd fan o'r pryd i lydw i'r cymaint, ond mae'r cymaint y byddai'r cymaint, Cysylltu'r ydynt y Cysylltu Cymru, i ddylaywg ar derystu llyfr yng Nghymddianiaeth, oedd erioedon hefyd yn gwych iawn, roedd yn gweithio'r lawr menthe. Wrth gwrs, mae duodol cyffreddau i ddiogelio'r cyfrifynau i ddim yn lleiwg ym Yngrif Weiniddiad a'u gallu gweld o gychydigau Lylith Siaraddu, ond y gymaintfyniadau Llywodraeth yn dwylo, ond mae'n mynd i hyn yn y gallu hebodol oherwydd mae cyfredu'r drwrn rwy'r cyfnyddol yn ddod y prifysgol y lluniau bod o'r hunain signaminol. Dyn ni'n fawr o'r ffordd o ddegwydd, mwy'r arddangos, a'r ffordd wedi'u cerddorol, crew i'r ffordd o'r gwaith. Felly, mae'n ddegwydd i gael amser herebyn Faddan, ac rwy'n iawn o ran yr anffam, ac nolio'r anffam i ymdreddoriaeth fel y dyma i ymddir hwnnw o'r anffam i ddiwylliannol i ddiwyllio i gael ei ddodol. gyda'r ysgrifennidau, ond rydyn ni wedi'i ei wneud yn ymwneud. Felly, rydyn ni wedi'i gweithio dan Johnson's amendment. Thank you, convener. I'm generally supportive of the amendment, because I, like other aspects of the bill, I think it's important that we have reporting information on which to base decisions. I do now obviously note that there's this issue with the legalised police cells, that I think will be a little bit odd, but I think there's no reason why that couldn't be tidied up at stage 3. I'm also conscious that the minister had made in reference to other reviewing and reporting sections of the bill a commitment to come back at stage 3 already, and I don't know whether this particular section would be better considered alongside other reporting and review mechanisms, but again, I'm interested to hear the arguments that the minister makes. Very briefly, convener, I just wanted to speak in support of amendment 100 from Daniel Johnson. If anything, this will strengthen this piece of legislation, because one of the things that we hear frequently as committee members, and I'm sure across every single committee, is that all members hear the lack of data and the lack of information, and that will strengthen this bill, because it will give us the information that we need to make sure that we have the correct support mechanisms in place and the correct places in place to keep children safe, so I'm fully supportive of this amendment. I agree. I think that we need to be gathering this information. I do agree with what Oliver Mundell said, however, about the use of the term legalised police cell, which the minister referred to in the previous amendment. Just to ask if that has any implications to this amendment and how it sits, and also about the reporting coming back at stage 3, how that would work as well. The committee already noticed that it's concerned that there's currently no requirement to monitor the use of place of safety power in section 23 of the bill, and in recommendation 298 of its stage 1 report, the committee asked the Scottish Government to amend the bill and make provision for data about the use of power to be recorded in such a way to allow appropriate analysis, and I acknowledged in my response to the committee's stage 1 response that there was a need for the use of this power to be monitored and evaluated. Daniel Johnson's amendment links to Alec Cole-Hamilton's amendments on the place of safety powers. Therefore, I believe that it would be unhelpful if Mr Johnson's amendment was to proceed, and I hope that he will not press it, but he's quite right for us to have this debate, I would say. It's important that we have appropriate data about the use of this power. I've already acknowledged the need for the bill to have provisions that allow much wider monitoring, as Oliver Mundell said, review and reporting of its measures and their operation, and I've already undertaken to bring forward a suitable amendment in this regard at stage 3. If Mr Johnson agrees to withdraw amendment 100, I give my firm commitment to address this matter in such an amendment and work with him and the committee on that. If he insists upon it being pressed, I would hope that the committee wouldn't support it and allow me to bring forward an appropriate amendment at stage 3. Amendment 100 also requires the reasons for the use of the place of safety power in each case to be included in the report, which would be laid before Parliament and would be a public document. Given what I've already said about the importance of not revealing information about individual cases, I've serious concerns about whether it might be possible for some members of the public to link these details to an individual child, and I think that we'd all agree that that would be very unhelpful. So, while I understand the intentions behind Daniel Johnson's amendment for the reasons that I've just set out, I cannot support amendment 100 as it's currently drafted. I would ask Daniel Johnson to withdraw amendment 100. If he agrees to withdraw amendment 100, I give my firm commitment to address this matter in such an amendment and to work with him and the committee on that. If he insists on it being pressed, I would hope that the committee wouldn't support it and allow me to bring forward an appropriate amendment at stage 3. Daniel Johnson, to wind up and press or withdraw amendment 100. I hear the concerns that have been laid out. In the first regard, the technical point around the terminology of a legalised police cell—I believe that that is something that could be tidied up in stage 3—would still have some use, but there is a technical definition that has come from the clerks. Those cells do exist. Really what this would be a point is about making sure that that definition captured the full range of police cells, as is intended, and it has been discussed. As regards the other issues, there are a broad range of data that is collected that potentially—if it was interpreted and implemented in such a way—potentially reveal individual details. In those other regards, we have ways of categorising those and wrapping those up in categories in such a way that those individual details are not revealed. I do not believe that it is beyond the width of the Scottish Government in order to come up with such a data collection and reporting mechanism. Indeed, the data protection laws are in place and this does nothing to overturn that. For those reasons, I believe that this amendment is important in the absence of any other proposals in front of us. If the Government did come forward with alternative proposals, it would be perfectly possible for my amendment to be overturned and I would accept that at that point. In the absence of any alternative proposals in front of us, I am going to press my amendment. The question is whether amendment 100 is agreed to. Are we all agreed? A committee is not agreed. There will be a division. Can I ask those in favour of amendment 100 to raise their hands? Those against the amendment. And any abstentions? The result of the division is for the amendment 2, against the amendment 3. There were two abstentions. The amendment falls. I call amendment 27 in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton to move or not move? Not moved. I call amendment 26 in the name of Alec Cole-Hamilton. Already debated with amendment 2. Alec Cole-Hamilton to move or not move? Not moved. I call amendment 28 in the name of Alec Cole-Hamilton, already debated with amendment 22. Alec Cole-Hamilton to move or not move? Not moved. I call amendment 28 in the name of Alec Cole-Hamilton, already debated with amendment 22. Not moved. I call amendment 31 in the name of Alec Cole-Hamilton. Alec Cole-Hamilton to move or not move? Not moved. I call amendment 30 in the name of Alec Cole-Hamilton. Alec Cole-Hamilton to move or not move? Not moved. The question is that section 25 be agreed to. Are we all agreed? amendment 33, in the name of Alec Cole-Hamilton, already debated with amendment 2. I'll let Cole-Hamilton to move or not move. Not moved. I'll amendment 32, in the name of Alec Cole-Hamilton, already debated with amendment 2. I'll let Cole-Hamilton to move or not move. Not moved. The question is that section 26 be agreed to. Are we all agreed? Best. The question is that sections 27 to 30 be agreed to. Are we all agreed? Agreed. I call amendment 124 in the name of Gail Ross, grouped with amendments 125, 127, 128 and 129. I would point out that if amendment 127 is agreed to, I cannot call amendments 35 and 34 in group further increase in the age of criminal responsibility and of prosecution, age and timescales for increase. Gail Ross to move amendment 124 and speak to all amendments in the group. Thank you, convener, and in putting forward these amendments, I'm conscious that every day across Scotland police officers play an important role in keeping our children and our young people safe, including those who, often because of their own adverse childhood experiences, can unfortunately become involved in harmful and occasionally serious harmful behaviour. It is police officers who can be the first point of contact out of hours when other professionals are not available, whose engagement with vulnerable children and young people is about initiating conversations and encouraging them to desist from immediately potentially harmful situations and, in the longer term, encouraging different choices to be made, helping to bring children into contact with other agencies and professionals and helping to divert them into more positive choices. I would hope that we can all agree on the committee that it is important that this work and these conversations can continue with children below the age of criminal responsibility, particularly where there are concerns about potential involvement in a serious incident. The changes that my amendment makes to section 31 are designed to ensure that police officers working in our communities to keep children and everyone else safe can be confident that they can still have such conversations. However, it still remains the case that where a child is believed to have been involved in a serious harmful behaviour, as set out in amendment 124, an investigative interview can only be conducted with a child interview order, where, for example, there has been a loss of life. If the minister's amendments are accepted, where a child and a parent have agreed to an investigative interview and that is what amendment 125 seeks to make clearer. My amendments are therefore designed to make it absolutely clear that the police may ask a child under 12 questions in relation to a serious incident at any time prior to the constable reasonably suspecting that it was the child who carried out the harmful behaviour. I think that it provides an appropriate and proportionate approach, which will ensure that children are not unnecessarily being caught up in a formal process, which, as we have heard, can be quite traumatising, but allows the police to carry out their functions and does not place undue burden on resources. I hope that the committee will support amendments 124, 125 and 127. Turning now to the minister's amendments 128 and 129, my understanding is that both of those amendments seek to provide clarity and ensure further safeguards for children. I hope that that is the case. I welcome that, but I will look forward to the minister explaining that further. Minister to speak to amendment 128 and other amendments in the group. Thank you, convener. Amendment 128 is a technical amendment designed to remove an apparent contradiction between the definition of an investigative interview contained at section 31 and the terms of section 362 of the bill. It clarifies that the police planning of an investigative interview should always involve the relevant local authority rather than allowing it to be planned solely by the constable. I know that the committee will welcome that clarity on the policy intention. Similarly, amendment 129 seeks to provide greater clarity on the provisions about conducting an investigative interview. The purpose is to close a potential loop hole that would allow the police to plan an interview and then ask a social worker to question the child below the age of criminal responsibility, thus avoiding restrictions on police questioning of child below the age of criminal responsibility contained in section 1. Given that the policy intention behind those amendments is to provide greater clarification, I would hope that the committee will support them. Gail Ross's amendments 124, 125 and 127 are also in this vein of seeking to provide more clarity. It is important that the bill is unambiguous and that the bill's measures are implemented in a way that limits when children may be brought into contact with authorities. That would also provide clarity for police officers that they can continue to engage with children to help to get them safe and to initiate initial conversations to try to establish if an incident of serious harm involving a child under the age of criminal responsibility has taken place. In every aspect of this bill, we should be seeking to give agencies and professionals confidence about how to act when the age is raised, what we continue to expect of them in their engagement with children and young people and, crucially, do all we can to limit the circumstances in which children will be expected to engage with formal process of investigation. I hope that the committee will support Gail Ross's amendments. Can any other members wish to come in? Thanks, convener. I think that the amendments brought forward by Gail Ross and the minister are good amendments. There is a lot of good work going on in our communities by police officers. I had a good example the other day, driving by a large group of young people with a couple of community police officers, and they all seemed to be having a really good chat, and it was very jovial. I think that we want to allow our officers to continue that work, and I think that those amendments allow those conversations to continue to happen. Okay, thank you. Gail Ross to wind up and press to withdraw your amendments. I think that everything that has been said, so I will press. The question is that amendment 124 be agreed to. Are we all agreed? I call amendment 125 in the name of Gail Ross, already debated with amendment 124. Gail Ross to move or not move? Move. The question is that amendment 125 be agreed to. Are we all agreed? Yeah. I call amendment 126 in the name of the minister. Groups with amendments as shown in the groupings. Minister to move amendment 126, and speak to all amendments in the group. Please. Moved. I have no more to say. I spoke with us. Group 4. So that was accepted without a vote. Okay, thank you. Sorry, just confused myself. Apologies that they were confusing things here. So you are moving amendment 126. Thank you. Thank you. You spoken to it. Apologise. The question is that amendment 126 be agreed to. Are we all agreed? Yes. It's just one second. I think I've become confused with the process. That's not debated yet. 26 has to be debated now. We have to debate. I hadn't appreciated that the last amendment passed without a vote. Sorry. Is that? Yes. Yeah. Okay, I think what we'll do is we'll suspend briefly and organise ourselves. Yeah, thank you. Okay, welcome back. I call amendment 126 in the name of the minister, grouped with amendments as shown in the groupings. Minister, to move amendment 126 and speak to all amendments in the group. Thank you. Convener, this group of amendments create additional measures which would allow investigative interview by agreement. I want to assure the committee that I've given very careful consideration to this and my overarching aim with this legislation is to ensure that we are doing all we can to raise the age of criminal responsibility in principle and in practice. And that where we still need to investigate serious harmful behaviour, we do so in a way that puts the child's needs and interests at the centre of that process. The legislation currently provides for a detailed formal process to be adhered to in order to investigate and interview a child suspected of being involved in serious harmful behaviour. This option would still be available. This group of amendments sets out how such an interview might take place if both the child and at least one of the child's parents agree to such an interview. And that would be consistent with the advisory group's recommendation that in the most serious circumstances it's important to provide the child with the opportunity to provide their account of events and to identify all relevant risks and needs. A power should be created to allow for the interview of children with appropriate safeguards including where the support of a parent or carer is not forthcoming. Those safeguards should be based on the principles of child protection procedures and joint investigative interviews. There are very sound reasons to allow for interviews to proceed if the child and their parent agree to them. A child who is involved in harmful behaviour is very likely to be traumatised by that. A formal process involving court proceedings might increase that trauma. Research also tells us that when a child suffers any kind of distress, early intervention is helpful in promoting understanding and allowing the focus to turn to restorative action. Given that these events in these serious cases may well have already caused the child's significant trauma, having this route available could be very beneficial to them. Where agreements clearly established then these amendments facilitate a less cumbersome approach enabling the child to move readily to tell their story in an appropriately supportive setting without the need for a court process first. This will be helpful in understanding what happened and informing the next steps in addressing any harmful behaviour as soon as possible. It could also prevent the additional stress associated with a formal court order process being placed upon the child and their family. Of course, the safeguards provided through sections 36 to 42 in relation to the planning and conduct of interviews would still apply whichever route is taken. Turning to the amendments. Amendment 130 clarifies the limited circumstances in which an investigative interview by agreement should be undertaken and that crucially both the child and parents must agree. It then seeks to provide for details around the withdrawal of agreement either the child or their parent. Amendment 131 places an obligation on the police to provide a range of information to the child and parent following their agreement to an investigative interview and to provide a copy of the written information to the advocacy worker as soon as it is reasonably practicable. This provision seeks to ensure that where the agreement is given, the child and the parent understand what the agreement does and they have the information setting out what they have agreed to. Amendment 138 clarifies that a child has the right not to answer questions irrespective of whether the interview is conducted by agreement or under a child interview order. Amendments 143 and 144 respectively provide further clarification that, in the case of an interview by agreement, the supporter in that interview must be the parent who gave their agreement and if the person conducting the interview does not consider them to be an appropriate person, then that agreement is withdrawn. Amendment 158 tidies up the layout of provisions. Amendment 159 then provides for the guidance to cover the obtaining and withdrawal of agreement relating to investigative interviews. The other amendments are all consequential in various ways on the introduction of interviews by agreement. Taken together, those amendments enable an additional approach to carrying out interviews to investigate serious harmful behaviour. The key aim is to benefit children by providing for a process by agreement with important safeguards to protect and promote their interests and rights in such a process. I urge the committee to support the amendments. Do any committee members wish to speak to this amendment? The question is that amendment 126 be agreed to. Are we all agreed? Call amendment 127 in the name of Gail Ross, already debated with amendment 124. If amendment 127 is agreed to, I cannot call amendments 35 and 34. Gail Ross to move or not move. The question is that amendment 127 be agreed to. Are we all agreed? Call amendment 128 in the name of the minister, already debated with amendment 124. Formally agreed. The question is that amendment 128 be agreed to. Are we all agreed? Yes. Call amendment 129 in the name of the minister, already debated with amendment 124. Minister to move. Formally moved. 1. Amendment 329 Agade 2 1. Ab logging aribon ariolaани shoulders is the matter of who you should work for if you want to tell anyone that you want to be involved in a similar project or existing approach to 2—Alec Cole-Hamilton, to move or not move? Not moved. Cymru 36, in the name of Alec Cole-Hamilton, has already debated with amendment 2—Alec Cole-Hamilton, to move or not move? Not moved. The question is that section 34 be agreed to, are we all agreed? The question is that section 35 be agreed to, are we all agreed? Cymru 1, 3, 2, 1, 3, 3, 1, 3, 4, 1, 3, 5 and 1, 3, 6—all in the name of the minister, and all previously debated. Can I invite the minister to move amendments 1, 3, 2 to 1, 3, 6 on block? Do any members object to a single question being put on amendments 1, 3, 2 to 1, 3, 6? The question is that amendments 1, 3, 2 to 1, 3, 6 are agreed to, are we all agreed? The question is that section 36 be agreed to, are we all agreed? I call amendment 1, 3, 7 in the name of the minister, already debated with amendment 1, 2, 6, minister to move formally. The question is that amendment 1, 3, 7 be agreed to, are we all agreed? The question is that section 37 be agreed to, are we all agreed? I call amendment 1, 3, 8 in the name of the minister, already debated with amendment 1, 2, 6, minister to move formally. The question is that amendment 1, 3, 8 be agreed to, are we all agreed? I call amendment 64 in the name of Alec Cole-Hamilton in a group of its own. I'll let Cole-Hamilton to move and speak to amendment 64, please. Thank you, convener. It may seem like a semantic point to extend the existing section on the right not to answer questions to a right to silence, but I do so for several reasons in amendment 64, which I move in my name. I think it's fair to say that we had a lot of discussion around this at stage 1. A number of stakeholders suggested that they would like to see an equalisation of rights between children who are being interviewed in a formal context and adults, and that amendment does exactly that. Simply put, the difference between a right to silence and a right not to answer questions is tell me what happened is an instruction, it is not a question, and interpretation is very important in any legislation, and this is how that might be interpreted so. Similarly, the minister in her last comment speaking to the last set of amendments, she moved to reference the fact that those interviews happened at times of great trauma, that there may well be in the midst of an adverse childhood experience, and we know that there is much empirical evidence to say that distilling in granular detail of the retelling of events can have the effect of re-traumatising children and young people. That simplifies things to be on an equal footing with adult rights in a similar situation and extends the right not to answer questions to right to silence, which I believe carries the support of stakeholders who we interviewed at stage 1. I think that it goes away to making this act all the more progressive. I move the amendments. Thank you. Do any other members wish to speak? Minister. I have listened very carefully to the concerns about this, and I have tried to be clear during stage 1 on it and why I think that amendment 64 to change the language is unhelpful and also unnecessary. The right not to answer questions in section 38 has the same meaning and effect as the right to silence, and I wish to be absolutely clear that we are not watering down children's rights here. The intention behind the wording is to remove the language of criminal law. We are removing these children from the criminal justice system, and the language which is used by the police to come into contact with these children should reflect that. We don't want to increase the anxiety and distress of children who have already experienced a large amount of trauma before they find themselves in this situation. We want them to be engaged with as children, which is fought sections 35, 36 and 42, and amendment 131 and the previous group already deliver in requiring information to be provided in a way that is appropriate to the child's age and maturity at different points in the interview process. There are also technical issues with amendment 64. It refers to section 34 of the Criminal Justice Act 2016, which applies only where a person has been arrested and is in police custody. Neither condition will be met for a child under the age of criminal responsibility. I hope that that explains why the wording in section 38 is drafted as it is, and why this amendment is neither helpful nor necessary. Accordingly, I hope that Mr Cole Hamilton might withdraw his amendment. Throughout the development of this law, we have sought not just to technically decriminalise children but to entirely change their experience of contact with the criminal justice system and to decriminalise them in practice as well. I believe that introducing the language rather than the plain English child appropriate version is a retrograde step. I believe that it will provoke behavioural responses in those involved, which will effectively recriminalise children. If Mr Cole Hamilton insists on pressing it, I appreciate that some members of the committee may feel very strongly about this. If the committee wishes to vote for this amendment, I will accept that decision reluctantly, and I will consider whether an amendment is required at stage 3 to make it technically sound. However, I, for one, am not comfortable with an amendment that inserts language from the criminal law into a bill that decriminalises children, which this bill, that has been the aim to look at children under the age of criminal responsibility. I wonder whether the minister would reflect on the fact that there is a big difference between removing criminal provisions that are punitive to children and removing matters of criminal procedure that are long established in the Scottish legal system, which might make children feel more able to exercise their rights. Is it perhaps clumsy in the wording, but is there a distinction between those two things? I think that I have made clear what my views are, but I am comfortable with the committee making a decision on this. I, for one, would say that we need to always be looking at these children through a wellbeing lens, not a criminal lens. I think that she makes the point well that this is about language, and she is right, but I also think that she is mischaracterisation for where this language is important. The right to silence is not a matter purely of criminal law. It is actually a fundamental point of human rights, and what is important here is that we embed human rights right the way through laws. Indeed, I think that the Scottish Government accepts. The right to silence is one that is well understood throughout society and is not just purely a matter of criminal law. Therefore, by using different language, we run the risk of creating confusion as to the distinction between the right to silence in this situation and in others. I was just wondering if the minister might reflect on that point. As I said, I disagree with this amendment, but I am content for the committee to make its own decision. Alex Cole-Hamilton, to wind up a pressure or withdrawal amendment 64. Thank you, convener. I hear what the minister says about wanting to remove any semblance of criminality from this bill for children. If that was truly the intent of the Government in this, we would have outlawed the use of cells, because that is far more criminalising than the form of words that we use to communicate the rights of a person in an interview. Similarly, if we wanted to remove criminalisation of children, we would listen to the United Nations and lift it beyond 12 or the European Council for that matter. Language is important. I absolutely accept that. Language is especially important in terms of procedures like this. When we talk about extending language that is found in adult criminal law to children, we are not talking about reading children, effectively, their Miranda rights or whatever that is called in Scotland. We are talking about re-establishing a power imbalance whereby children feel in that moment of heat and trauma that they really have to do what they are told, whereas that assures to them that they have rights themselves. I think that, as Dan very eloquently said, the right to silence is integral to the human rights within our justice system, and that should apply to children as it should apply to adults. I wish to move my amendment. The question is that amendment 64 be agreed to. Are we all agreed? No. The committee is not agreed, so there will be a division. Can I ask those in favour of amendment 64 to raise their hands please? Those against the amendment. The result of the division is for the amendment 4, against the amendment 3, the amendment carries. Call amendment 139, in the name of the minister, already debated with amendment 126. Minister, to move formally. The question is that amendment 139 be agreed to. Are we all agreed? The question is that section 38 be agreed to. Are we all agreed? No. I call amendments 140, 141, 142, 143 and 144, all in the name of the minister and all previously debated. I invite the minister to move amendments 140. We will just suspend briefly again. Welcome back everyone. We should be back on track. Can I call amendment 140, already debated? The question is that amendment 140 be agreed to. Are we all agreed? I call amendment 141, already debated. The question is that amendment 141 be agreed to. Are we all agreed? I call amendment 142, in the name of the minister, grouped with amendments 147 and 153. Minister, to move amendment 142 and speak to all amendments in the group. Is that me? Not at all. Amendment 153 is the substantive amendment in this group and seeks to address concerns that section 41 as currently drafted could be interpreted to mean that both the supporter and the advocacy worker need to be present in the room when a child is being interviewed. While section 39, 4 and 45 will ensure that the supporter and advocacy worker will certainly not be denied access to the child at any time during the interview, it's sometimes not in the interests of the child for both to be present in the room. For example, a child may wish to be open about the circumstances surrounding an incident involving sexual behaviour but not comfortable in doing so with their parent in the room. It's also important to ensure that the legislation allows for this flexibility and for children to be supported to take part in an interview to meet their needs and interests. Amendment 153 therefore makes it absolutely clear in the face of a bill that a child can only be interviewed as long as both their supporter and the advocacy worker are in attendance at the location of the interview but that the presence of one or other in the room before the interview is being conducted is sufficient. Amendments 142 and 147 simply make the technical changes which flow from amendment 153 to ensure consistency throughout the bill and I would urge the committee to support those amendments. Thank you. Do any other members wish to contribute? Oliver Mundell. Thank you. I was just interested to ask the minister, obviously, with a child under the age of 12, what the sort of mechanism would be for deciding which one of those two people wouldn't be there and what the sort of parental rights, for example, would be. If a parent was concerned about their child being with just the advocacy worker, for example, and if there was a dispute or a concern on how that would be sorted out, it was, but it's not. I understand the principle. It's just what would happen in practice in that sort of circumstance. Certainly the parent would never be denied access to the child. We need to discuss and we're certainly open to discussing how we develop the guidance around this issue, but I've set out in my opening remarks why it's sometimes just not in the interests of the child for both of the supporter and the advocacy worker to be present in the room. What's important here is that the child is able to give their version of events in a way that puts them at ease, so I would hope that you would accept that that's the intention of it. It's just working out who would be deciding what was in the child's best interests, because at the moment this general idea in Scots law, not just criminal law, is that a child under the age of 12 might not always, in all circumstances, be able to weigh up and make those decisions, so it's just who would be deciding in those circumstances. As I said, we're going to make that clear in guidance who makes the decision and what factors are to be considered, but the voice of the child is very important in this. Thank you. Do any other members wish to come in? Minister, to wind up and press her withdrawal, the amendment. I hope that the whole committee would agree with me on this amendment and support these amendments 1, 4, 2, 1, 4, 7 and 1, 5, 3. The question is that amendment 142 be agreed to. Are we all agreed? We are. I call amendment 143 already debated. The question is that 143 be agreed to. Are we all agreed? I call amendment 144 already debated. The question is that amendment 144 be agreed to. Are we all agreed? The question is that section 39 be agreed to. Are we all agreed? I call amendments 145, 146, 147, 148, 149 and 150, all in the name of the minister and all previously debated, and invite the minister to move amendments 145 to 150 on block. Do any members object to a single question being put? The question is that amendments 145 to 150 are agreed to. Are we all agreed? Are we all agreed? The question is that section 40 be agreed to. Are we all agreed? I call amendments 151, 152 and 153, all in the name of the minister and all previously debated. Invite the minister to move amendments 151 to 153 on block. Do any members object to a single question being put? The question is that amendments 151 to 153 are agreed to. Are we all agreed? The question is that section 41 be agreed to. Are we all agreed? I call amendments 154, 155, 156 and 157, all in the name of the minister and all previously debated. Invite the minister to move amendments 154 to 157 on block. Do any members object to a single question being put? The question is that amendments 154 to 157 are agreed to. Are we all agreed? The question is that section 42 be agreed to. Are we all agreed? I call amendment 158 in the name of the minister, all ready debated with amendment 126. Minister to move formally. Formally moved. The question is that amendment 158 be agreed to. Are we all agreed? Yes. The question is that section 43 be agreed to. Are we all agreed? Agreed. I call amendment 39 in the name of Alec Cole-Hamilton, all ready debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved. I call amendment 38 in the name of Alec Cole-Hamilton, all ready debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved. I call amendment 41 in the name of Alec Cole-Hamilton, all ready debated with amendment 2. Alec Cole-Hamilton to move or not move. I call amendment 40, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved. The question is that section 44 be agreed to. Are we all agreed? The question is that section 45 be agreed to. Are we all agreed? I call amendment 159, in the name of the minister, already debated with amendment 126. Minister to move formally please. Moved. The question is that amendment 159 be agreed to. Are we all agreed? I call amendment 160, in the name of the minister, already debated with amendment 126. Minister to move formally please. Moved. The question is that amendment 160 be agreed to. Are we all agreed? Agreed. The question is that section 46 be agreed to. Are we all agreed? Yes. I call amendment 43, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved, convener. I call amendment 42, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved. I call amendment 45, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved. I call amendment 44, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton to move or not move. Not moved. I call amendment 161, in the name of the minister, grouped with amendments 162 and 163. Minister to move amendment 161 and speak to all amendments in the group please. Convener, it's important that our legislation to raise the age of criminal responsibility does all it can to safeguard the interests and rights of children. Section 47 of the bill sets out the circumstances in which the police can take a sample and makes clear that the limits and requirements under section 52, section 57 or any other enactment applies. It makes clear that those requirements do not apply where a child is a victim of an offence or seriously harmful behaviour. Amendment 161 seeks to clarify the use that can be made of samples taken from a child under the age of criminal responsibility on the basis that they are a victim of an offence or of seriously harmful behaviour by another child. Amendment 161 clarifies that a sample taken from a child under the age of 12 on the basis that they are thought to be a victim cannot be used for the purposes of investigating any suspected serious harmful behaviour by that child. Amendment 161 further allows for the use of that sample of a child's agreed that a sample can be taken previously, can be used to investigate an incident where the child is now 12 years of age or older. This amendment doesn't affect the ability of the police to apply for a section 52 order or in urgent cases to use the emergency power in section 57 to obtain a new sample. Section 55 of the bill provides for a destruction of samples taken under section 52, which applies to children under the age of criminal responsibility. However, section 55 doesn't currently specify what should happen to samples that were taken under the authority of a section 52 order which is appealed. The purpose of amendment 162 is therefore to specify that if the appeal is successful in the section 52 order is either quashed or altered, meaning that any of the samples originally taken would no longer be authorised, then those samples and all information associated with them must be destroyed as soon as possible. That prevents authorities from keeping hold of samples in these circumstances of children under the age of criminal responsibility. Amendment 162 enables samples obtained before the appeal is lodged or before the police are informed of it to be retained until the outcome of the appeal is known, although no use can be made of them until the appeal is decided. That in turn means that the sample could then be used for the purposes of the investigation of the appeal as unsuccessful and thereafter destroyed in accordance with section 55 or the new section inserted by amendment 163, which I will talk to shortly. Crucially, that avoids the need for a sample to be taken from the child twice if there is an appeal against the order, but that proves unsuccessful. Again, the amendment seeks to make clear the process to be followed and to ensure that the interests of the child are at the core of that process. Section 48, 1B of the bill, already provides that samples may be taken with consent from a child aged 12 or over in relation to suspected seriously harmful behaviour by that child when aged under 12. However, at present, the bill does not provide for the destruction of samples taken on this basis. Amendment 163 applies the same requirements for destruction as are contained in section 55 to those cases. That is the samples, and all information derived from them will be destroyed if a decision is made not to pass information to the principal reporter about the case or following the conclusion of a children's hearing proceedings in connection with the case. As I mentioned, they are technical, but they are very important amendments, and I think that they need to be done. I am happy to go into more detail if required, but I think that those measures are important to protect children's rights. Thank you. Do any other members wish to say anything on those amendments? Thank you. I think that, as I said, those are important to protect the amendments designed to protect the rights of the child by clearly setting out the processes for retention and disposal requirements, and I would hope that the whole committee would support me and support the amendments. The question is that amendment 161 be agreed to. Are we all agreed? The question is that section 47 be agreed to. Are we all agreed? Agreed. Calave 47 yn y cwrnwyr Cymru fel Y Llywodraeth Cymru er ddeg yn y dalygiad Oireミ之, אז cir pob dweud Hetff, alech Colehamilton yn gaf tu o gyneddot oedd hynny. Calave 41 yn y cwrnwyr Cymru, argofod yn Eilid Ddeg yn y dyl lap teileydd Gwneide playground. Calave 48 yn y cwrnwyr Calave 41 yn y dyl lap trewaldת oedd bone gear dim yn gaf tu deil, with amendment 2. I'll let Cole-Hamilton to move or not move. The question is that section 48 to be agreed to, are we all agreed? The question is that sections 49 to 56 be agreed to, are we all agreed? Call amendment 162, in the name of the minister, already debated with amendment 161, minister to move formally please. The question is that amendment 162 be agreed to, are we all agreed? The question is that sections 57 and 58 be agreed to, are we all agreed? Call amendment 163, in the name of the minister, already debated with amendment 161, minister to move formally please. The question is that amendment 163 be agreed to, are we all agreed? The question is that sections 59 and 60 be agreed to, are we all agreed? Call amendment 51, in the name of Alec Cole-Hamilton, already debated with amendment 2, Alec Cole-Hamilton to move or not move. Call amendment 50, in the name of Alec Cole-Hamilton, already debated with amendment 2, Alec Cole-Hamilton to move or not move. Call amendment 53, in the name of Alec Cole-Hamilton, already debated with amendment 2, Alec Cole-Hamilton to move or not move. Call amendment 52, in the name of Alec Cole-Hamilton already debated with amendment 2, Aallwch chi'n gwybod i'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r The question is that section 62 be agreed to, are we all agreed? I call amendment 164 in the name of the minister already debated with amendment 126. Minister to move formally please. Moveed. The question is that amendment 164 be agreed to, are we all agreed? I will suspend briefly to change officials for the minister. Welcome back. Can I call amendment 119, in the name of Mary Fee, in a group of its own? Mary Fee, to move and speak to amendment 119, please. Thank you, convener. I submitted amendment 119 following the evidence that we received while scrutinising the legislation, both here in committee and through the written evidence that we have received. We heard evidence from a number of experts who discussed the different stages of child and young adult development. Psychologists argue that the part of the brain that focuses on rationality does not fully develop until young adults are in their late teens or early twenties. In other words, whilst all children develop simultaneously, they develop at different rates. That means that children will each have a different age of capacity for understanding the consequences of their actions. Capacity is usually understood to have a cognitive and a cognitive component, which translates to the need to prove, firstly, the presence of an understanding of wrongfulness, and secondly, an ability to control one's behaviour in accordance with such an understanding. The law commission takes the view that anyone who completely lacks criminal capacity should not be found criminally responsible, and it draws out three particular capacities needed for the fair imposition of responsibility—the ability to rationally form a judgment, the ability to understand wrongfulness, and the ability to control one's physical actions. Children and young people may not be able to conform to some or all of these requirements because of immaturity, and it is in such situations that my proposed amendment could be used. In order to assess if the child has full capacity, a report must be obtained from an approved medical practitioner or psychologist. This assessment would provide further information for both the courts and the children's hearing system when determining what course of action to take when dealing with a young person. If we are serious about dealing with young people from a compassionate perspective and providing them with the support that they need to move on from the acts that they may or may not have committed, it is important that we fully understand their capacity to understand the consequences of their actions. I understand that there may be nervousness about using the term diminished responsibility, and my amendment seeks to differentiate between abnormality of the mind and developmental immaturity. However, we have a duty to ensure that children who are developmentally immature and do not have the capacity to understand the consequences of their actions are supported. I move the amendment in my name, and I urge the committee to support it. Do any other members wish to come in? I would like to offer my support to the amendment in the name of Mary Fee. Given the amendments in my name have fallen previously to increase age of criminal responsibility, that strengthens the bill in terms of a progressive angle and recognises that children may have a range of things going on in their lives that can contribute to their actions beyond their control sometimes. That also speaks to those arguments that we have had already about equalising the rights of children and the rights of adults. If you had an adult suspect who was on trial, who had a mental age of 14, they would be dealt with differently than an adult with a mental age of their peers. We also recognise that there is a science to this—adverse childhood experiences, which we have heard in stage 1 at great detail as being responsible for the offending or harmful behaviour as a reaction to adverse childhood experiences. Those aces can alter child brains at a molecular and genetic level in terms of the ability to process joy and understanding and indeed intellect. For that reason, it is a vital tool that, if we are still going to deal with 13-year-olds, 14-year-olds and 15-year-olds in the children's hearing system on an offending basis and potentially give them criminal records, it is vital in terms of equalising their rights that we recognise that they may have diminished responsibility as a result of their own mental capacity. I support amendments in Mary Fee's name. I have quite serious reservations about this amendment. I can see where Mary Fee and Alex Cole-Harmill are coming from in the way that they have approached the whole bill in terms of a progressive approach to use Alex's words. However, I think that this amendment is a retrograde step. I say that for a few reasons. Currently, if any child presents to the children's hearing system, the reporter would issue a report to social work. Part of that, there is a specific section on health. Part of that is a judgment then about what health services are asked for information. Not every child would need direct psychological support or have that input. The reporter can also make that request. I also think that I have real concerns over a psychological assessment being used in every instance because, as Alex Cole-Harmill rightly pointed out, the vast majority, if not all children who become involved in offending behaviour to call it that or harmful behaviour, are likely to be traumatised. The psychological assessment process in itself has the potential to be traumatised. Using my previous experience as a social worker, even the introduction of psychological input had to be managed very carefully with young people. I am grateful to Fulton MacGregor for taking intervention. Does he agree with me that if we are to get the proper comprehensive suite of interventions for which the children's hearing system in Scotland is rightly celebrated to a young person who is exhibiting harmful behaviour that we need to understand the full picture of what is going on with that child? An understanding of mental capacity is absolutely part of that. I know who you are coming from with this, but I do not think that this amendment will have the effect that you are looking for. We do not take any evidence on it as such, but a lot of the children's organisations who have been supportive of some of the stuff that you have put forward. I am not sure what they would think about a standardised psychological assessment in this, and I would request if Mary Fee does not press her button that it gives the minister—the minister is also going to give us some time to bring something back—that it can perhaps be a compromised position, but I have serious concerns about this amendment, and I will not be a couple of members who want to come in. Gil Ross, then Oliver Mundell. Two things. The minister will outline what actually happens at the present moment with the children's hearing system and what Fulton MacGregor was saying that if it is deemed to be necessary, then those assessments are routinely carried out, and the whole child circumstance, I believe, is already being taken into account. I would hope that those powers are already there, but not making it a necessity to have every single child psychologically assessed. I also have concerns about the use of the term diminished responsibility, because, as far as I am aware, that is a special defence in criminal law for the crimes of murder or culpable homicide. I just wondered about the language around that as well. Oliver Mundell. I hear the points that Gil Ross is making about the language. Again, there may be other things that are not perfect with the amendment as drafted, but I support Mary Fee in pressing this amendment, because I think that it will focus the minds of ministers to try to come up with a substantive amendment in this area at stage C. I think that this is a practical step that is about looking at the full facts and circumstances. I think that, although professionals or other people are trying their best—and I think that they are very often looking to the best answers to the child—I think that either having a system where this is required or where it can be requested and delivered to the child or their representatives as an automatic right is important. It will help to make sure that, when it comes to disposal or how individual cases are being handled, that we find the right solution. As we know from evidence, we often get a little bit of evidence around this area, around special defences and about the previous situation in England where there was a defensive infancy there. I think that it is an area that is worth exploring. I think that it is about children's rights fundamentally. I have some grave concerns about amendment 119, which conflates the plea of diminished responsibility and criminal proceedings with the broader concept of developmental immaturity. It is therefore important to say up front that amendment 119 cannot be supported on account of creating a new definition for a concept that is very narrowly defined in Scots criminal law at the moment and would create great uncertainty in law. This amendment seeks to introduce a new section on diminished responsibility. Diminished responsibility is defined in statute and only available as a plea to a charge of murder, reducing the charge to one of culpable homicide. The amendment seeks to expand the presently available plea used in criminal proceedings Scotland and making it applicable to all cases in the children's hearing system and expanding on its understood definition and use in our legal system by including developmental immaturity. It appears to describe diminished responsibility as a condition of either abnormality of the mind or of developmental immaturity. In Scots law, this plea can only be used in circumstances where the following criteria have been established. There has been an aberration or weakness of mind. There must be some form of mental insoundness. There must be a state of mind that is bordering on, though not amounting to insanity. There must be a mind so affected. Does the minister not recognise that putting the further specifications into statute is just a case of expanding that defence? Saying that there is an existing defence does not really mean that a defence cannot be changed or expanded. Obviously, Scots law in this area has expanded and changed over the centuries. My understanding is that diminished responsibility was a common law defence before it was one in statute. The statute has already defined and changed what diminished responsibility is. The defence of diminished responsibility is only used in the situation of murder. I think that it is unhelpful to introduce it in this case. Those children are not charged. Children under the age of 12 were all agreed that there is a bright line. Those children are not held criminally responsible. The statute would not hold them criminally responsible. In fact, it would potentially allow for their actions to be fully explained and properly understood so that the best assessment could be made. I think that it is unhelpful to mix the two things. I think that it is mischaracterising. Can I just ask everyone to speak through the chair? I know that there is a lot of debate to be had, but let us just speak through the chair, please. I agree that it is unhelpful to mix the two categories, but I think that that amendment does that. Those factors that we are discussing here today at this committee are not the same. The factors relating to diminished responsibility, as it is defined in Scots law, are not the same as the more general concern to ensure that the maturity and development of children is understood and taken account of when we are thinking about how best to respond to an incident of harmful behaviour that meets their needs. I think that it is deeply unhelpful to conflate the two. I sympathise, of course, with what is the intention behind the amendment, which is to ensure that all the children who come into contact with the hearing system have their specific needs understood and addressed. When that does not happen, it absolutely is a failing of our systems, but I do not think that this amendment is a way to address it. The amendment requires that a psychological assessment has to be carried out in all cases, regardless of the ground, whether it be on account of the child's own offending behaviour or whether they themselves have been harmed against. That is absolutely not appropriate in all cases. A psychological assessment, as I have already alluded to, could potentially be a damaging experience for that child, forcing the child to immediately confront their acts in order to analyse their capacity to understand the consequences. It is also very likely to result in unnecessary delays, which will only serve to increase the distress and anxiety of that child. The Solicitor General, in her stage 2 evidence, made the point that children are different and need to be looked at as individuals in individual circumstances. She said that it depends on the background, the circumstances of the child. I absolutely agree with the law officers on that point. I think that a universal psychological assessment of every child in the hearing system would simply be more damaging than beneficial. Thank you. I am grateful to the Minister for giving away. I heard that evidence from the Solicitor General as well. I think that what she was asking us to do was to get a picture in the round of every child that comes before the children's hearings panel. I think that mental capacity and their judgment in their age of maturity should be part of that picture. It will be different for every child, but that is why we need to assess it. I think that we already do assess it. I think that our cases where it is necessary and the children's hearing at 2011 provides that children's hearing can defer making a decision and make a medical examination order for the purpose of obtaining any further information or carry out further investigation that is needed before the subsequent children's hearing. We also heard from the law officers at stage 2 that the Crown will carry out a psychological assessment in appropriate cases. I believe to answer Gil Ross's question that where this type of assessment is considered helpful, the facility already exists. I would like to reassure the member on the broader issue of children's mental health. A specific task force on this was launched in the summer of last year and that was on the back of the Audit Scotland report on children and adolescent mental health services, which reported that a step change is required to improve children and young people's mental health. That report indicated that there is a strong indication of a gap in services for children and young people who do not meet the criteria for the most specialist help. To me, it is this unacceptable gap in how our public services respond to children and young people with additional support needs that the member is seeking to address through her amendment. I would like to reassure the member that this work has begun. There is a specific work stream within the children and young people's mental health task force looking at asking at risk young people, including those young people who are involved in offending behaviour, and that group is expected to make recommendations to the task force on how at risk people can receive improved access to mental health. I respectfully suggest that this amendment may not deliver what the member intends and that specific concentrated work is under way already to address the gaps that currently exist for young people accessing appropriate specialist services. My other concern with this amendment is one that my colleague Fulton touched on already. It is the possibility for introducing the concept that might lead to entirely unintended consequences. My concern is whether psychological testing can be used to show that older children are too developmentally immature to understand the consequences of their action. It could also potentially be used to establish that younger children are mature enough to do so, and that causes me really, really grave concern. It opens up the possibility of children under 12 being considered fit to stand trial. The amendment as drafted applies to all children, so those of any age—a three-year-old, for example—would fall within the scope of this amendment. It would apply for all grounds of referral, whether the decision is about the child's conduct or not at all. The effect of that is unknowable and with respect as drafted, the purpose is unclear. The amendment currently does not give any clarity as to how that medical report would affect the outcomes of the hearing nor indeed what the hearing is to do with the report. The amendment would suggest that it is possible for children of any age, no matter how young, to be assessed, as I said, already of a sufficient maturity to determine or control their conduct. It appears to introduce an approach for children under the age of criminal responsibility to be assessed as having capacity to understand the consequences of their actions, so what then? To sum up, this amendment imports a concept from murder charges to a child centre process. It could undermine the key principle of decriminalisation of the bill, and it obscures the clarity of approach and its meaning and intent are unclear its consequences that are unknowable. We all wish to ensure that in taking decisions about children the best information is available. If there are concerns regarding a child's understanding, developmental and maturity or mental health, it should absolutely be the case that the right information is available at the right time. Medicalising all children is not an appropriate response to those challenges. I am more than happy to sit down with Mary Fee and with my officials to tease out exactly what the intent of this amendment is and to seek to bring something back at stage 3, which delivers on that intent. However, at present, I would urge the member to withdraw this amendment, and if she does not, I ask for the amendment to be resisted by the committee. Mary Fee to wind up and press or withdraw amendment 119, please. Thank you, convener. I have listened very carefully to all of the comments from my committee colleagues and from the minister. At the outset, I absolutely understand the concerns that have been raised by some members and by the minister, but notwithstanding that, I still am of the belief that we need to put into place a system that fully supports the welfare approach that we are taking to all children. The minister made the point about the gap in mental health services. There is a gap in mental health services. Our young people are being failed by the mental health services that are available to them. The very fact that there is a failure and a gap in our mental health services supports the inclusion of the amendment. I accept that social work assessments are carried out on children when they are going through the children's hearing system. For any means that is intended to diminish the importance of assessments that are done by social workers, they are not psychological assessments. They would not determine the behaviour and the capacity issues that I am trying to rectify with this amendment. All psychological assessments would be done, the child would be at the centre of them, the age of the child would be taken into account and there would be a child-centred approach to those assessments. They would not be a standard form of psychological assessment that would be done in the same format for every single child, regardless of their age. They would be tailored around that child. That is about equalisation of rights. If we truly want to take a welfare-based approach to all of our children and fully use the powers that we have with GERFEC—GERFEC is something that we talk about all the time—we have to get it right for every child, we have a responsibility as parliamentarians to make sure that we properly support all of our children. I think that the minister made a good offer, because, as I said earlier when I spoke on your amendment earlier, I know what you are trying to achieve. I have to repeat again using my previous experience in social work with real concerns that it will not achieve that. The minister has offered to get something to achieve what you are looking for at stage 3. I am even trying to think that, just now, our report comes in to social work to go back to the reporter, but if this was to pass now, there would be a psychological assessment. What about professionals are saying now? That child is not suitable for a psychological assessment, and this child has suffered far too much trauma. Where does that leave the psychological assessment? I have real concerns about it. I hope that you will take the minister's offer, because I think that you could probably find a way forward to get the effect that you want without the potentially damaging consequences. Thank you. I appreciate the member's intervention, but if you allow me to continue. I mean, as I have said, I do have the greatest sympathy for the concerns that you have raised, but I go back to the point that I made about taking that welfare-based approach, about using GERFEC, and I would, in closing, convener, make the point that we are a guarantor of human rights. That is everyone's human rights. It does not matter what age they are. This Parliament has a responsibility to ensure that the human rights of every individual are protected. I am just about to close, minister. This amendment would ensure that those human rights are taken into account, and I move the amendment in my name. The question is that amendment 119 be agreed to. Are we all agreed? No. We are not all agreed. There will be a division. Can I ask that those in favour of the amendment raise their hands now, please? Those against the amendment. The result of the division is for the amendment 4, against the amendment 3, amendment carries. Call amendment 120 in the name of Daniel Johnston in a group of its own. Daniel Johnston to move and speak to the amendment, please. Thank you, convener. I mean, I think at the heart of both this bill and indeed all the comments that we've heard this morning and indeed throughout the course of this bill from this committee, the importance of treating children with the care and the respect that they need, upholding their rights, is absolutely central, but I think at root, I think there is a consensus that we have history in Scotland of taking a progressive approach to the treatment of children, especially when they come into contact with the authorities and the justice system. That is long established. It was in 1960 that Lord Kilbrandon convened his committee and his work to look at whether or not Scotland could take a different approach. It was in 1971 that the children's reporter first convened and undertook their work. My concern is that both through this work and indeed the work that I've been involved with and other committees, we do a large number of things that impact on the work of the children's reporter. It's effectiveness and, more importantly, the intent that was originally set out by Kilbrandon over 50 years ago. I think that it is important to make the changes to the law and our approach, that we also take cognisance of the impact that those measures have, whether it is here regarding the age of criminal responsibility or the work that is currently being undertaken by the Justice Committee looking at vulnerable witnesses, that we look at the impacts that those measures have on the reporter system. Malcolm Shaffer, in his evidence to the Justice Committee on vulnerable witnesses, in particular drew attention to the consequential impacts that that might have and really questioned whether or not thought, due thought, had been given to the reporter system through that. Likewise, the Education and Skills Committee did a very thorough report and there was a great deal of concern that the reporter system was becoming particularly litigious and legalistic in nature. That is the purpose of this amendment. The matter is whether the Children's Reporter Administration continues to perform its role to a satisfactory standard and consequence of the additional responsibilities conferred upon it. That is the central premise. This is a probing amendment. I recognise that the Government cannot accept reviews and reports in every single bill and perhaps as widely stated as this one, but I urge the Government to take the points that I am making seriously and think about conducting a full and proper review, both in terms of the functioning of the reporter but also the resources that it has available in order to do its very important work. The very foundation of the approach that we take to children in the justice system in Scotland. I appreciate the thinking behind this amendment, as I did with Mr Mundell's amendment at 118. I agree that it is crucial to monitor the changes that this bill brings and to ensure that the information is collated in order to properly evaluate the impact that this bill has on the lives of the children at effects. There are clear and established mechanisms to analyse cases involving children reported to the children's reported reporter, including on offence grounds and the investigations and decisions that flow from that. SCRAP publishes its annual report at the end of every October, and the principal reporter provides this report to Parliament. Online and published statistical analysis is also available, setting out data on children and cases referred to the children's report and decisions taken. An online statistical dashboard also provides further accessible information. However, focusing on the role of just one agency when there are others involved in supporting children would not cover the full picture. As I said on day 1 of stage 2, we need a strategic approach to collating, monitoring and reporting on measures in this bill, one that takes into account all of the public services involved. I have already indicated my willingness to bring forward appropriate amendments in that regard at stage 3, so I hope that Mr Johnson would agree with that approach and not press this amendment if press it, I would ask members to resist. I thank her for giving way. I accept the point that there is on-going information, but this is rather a more holistic look at the role and functioning of the report system as a whole and whether or not it is still upholding the purpose that was set out to deliver. I do not believe that statistics would really provide that picture. I think that with regard to this bill, we need to be taking a wider, more strategic look at what information we collate. Possibly that is a slightly separate issue that you are raising there. I am more than happy to discuss it and see if we can find a way forward before stage 3. I agree that there is a need to understand very well what is happening in the children's hearing system, what decisions are being made and how we can further improve our approach to responding to the needs of children, not just their deeds. Daniel Johnson, to wind up and press or withdraw his amendment, please. I think that I set out my case at length when I opened. I do not really have anything further to add, but I believe that the children's support system is a cherished part of our justice system and needs to be examined, but I will be withdrawing my amendment. The member has agreed that Mr Johnson can withdraw his amendment. The question is that sections 64 and 65 be agreed to. Are we all agreed? Call amendment 98, in the name of the minister, already debated with amendment 82. Minister, to move formally, please. Moved. The question is that amendment 98 be agreed to. Are we all agreed? Call amendment 74, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton, to move or not move. Not moved. Call amendment 73, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton, to move or not move. Not moved. Call amendment 121, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton, to move or not move. Not moved. Call amendment 76, in the name of Alec Cole-Hamilton, already debated with amendment 2, Alex Cole-Hamilton to move or not move? Not moved. Amendment 75, in the name of Alex Cole-Hamilton, already debated with amendment 2, Alex Cole-Hamilton to move or not move. Not moved. The question is that section 66 be agreed to. Are we all agreed? Amendment 99, in the name of the minister, in a group of its own. Minister to move and speak to the amendment, please. Amendment 99 is a minor technical amendment and corrects an admission highlighted by the Delegated Powers and Law Reform Committee. The amendment inserts the words, give full effect to into section 67 of the bill, so that the power is consistent with other and certainly the provisions of this type and ensures that the power provides Scottish ministers with the necessary flexibility to give full effect to the bill and provisions made under it. Any members wish to comment? No. Content to move or not move. The question is that amendment 99 be agreed to. Are we all agreed? Yes. The question is that section 67 be agreed to. Are we all agreed? Amendment 78, in the name of Alex Cole-Hamilton, already debated with amendment 2, Alex Cole-Hamilton to move or not move. Not moved. Amendment 77, in the name of Alex Cole-Hamilton, already debated with amendment 2, Alex Cole-Hamilton to move or not move. Not moved. Amendment 79, in the name of Alex Cole-Hamilton, already debated with amendment 2, Alex Cole-Hamilton advice i'r Felict Beamish mae ddim wedi gwasanaeth ac yn dynig gan ddoll. Diolch yn ddannu wrth cyfan. to, rwy'n gweithio'n gweithio. Amendment 59, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton, to move or not move. Not moved. Amendment 58, in the name of Alec Cole-Hamilton, already debated with amendment 2. Alec Cole-Hamilton, to move or not move. Not moved. The question is that the long title be agreed to, are we all agreed? Yes. That ends stage 2 consideration of this bill. Can I thank the minister and her officials for attending? The committee will next meet on Thursday, the 28th of February, when we will begin oral evidence on the children equal protection from assault Scotland bill. Thank you. I close.