August 2025. We submitted evidence to the Scottish Parliament’s Education, Children and Young People’s Committee on this Bill. This Bill was previously referred to as the “Promise Bill”.
Key Points
- We welcome this Bill and the Scottish Government’s direct response to calls for improvements from care experienced children and young people.
- We particularly welcome developments in Chapter 1, related to support for persons in or with experience of the children’s care system.
- There is limited evidence that some of the proposals around children’s hearings will further the realisation of children’s rights (for example single panel member hearings or specialist panel members). Some of the proposed provisions are untested, it’s hard to know at this time if they will be positive.
- Where there is a risk of changes potentially having a negative impact on children’s rights (for example making changes to children’s attendance at their hearings), there is insufficient detail of mitigations to reduce these impacts.
- Some sections of the Bill have been drafted in a way that means they are out of scope of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
1. What are your views on the aftercare provisions set out in the Bill?
Article 20 of the UNCRC provides children who are in the care of the state with special protection and assistance. Throughcare and aftercare are some of the ways that Scotland has chosen to meet those requirements. We therefore welcome the provisions in sections 1 and 2 which address gaps in provision in the 2014 Act. They represent an important step towards keeping The Promise.
Children and care experienced young adults’ need for ongoing support as they leave care and enter adulthood is an issue our office has worked on for a considerable length of time. In 2008, we published Sweet 16? The age of leaving care in Scotland,[1] campaigning for an increase in the age of leaving care from 16 to 18. We followed this up one year later[2] highlighting the work that was needed. Despite the changes made by the Children and Young People (Scotland) Act 2014, we know that some children are still not getting the ongoing support they are entitled to.
Section 1 of the Bill extends the right to aftercare to all children who were looked after[3] at any point in their childhood. At present, children cannot access aftercare if they are not looked after on their 16th birthday – even if they were looked after for most of their childhood and even if their order ended months or even weeks before they turned 16. Section 1 not only ensures that these children have a right to ongoing support, it also addresses potential unintended consequences i.e. children being kept on an order as they approach 16 simply to ensure access to aftercare and conversely, a potential financial incentive for orders to end before 16. While the 2014 Act provided statutory rights for some children, those who left care before they were 16 are still only eligible for discretionary support.
We support section 2, which provides children and young people in Scotland who have been looked after in Northern Ireland with the same rights as those who have been in care in England and Wales.
We note that section 1, 2 and 10 of this Bill amend the Children (Scotland) Act 1995. This puts them outwith the scope of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. As a consequence, it will not be possible to challenge the exercise of any functions under these sections which are incompatible with the UNCRC. This UNCRC Act scope gap is not identified in the Bill’s supporting documents. It is important to raise awareness in Parliament and across Government that different drafting choices will be needed to ensure that the UNCRC Act meets its full potential.
We would like to see out of scope sections re-enacted as stand-alone provisions, rather than amendments to the Children (Scotland) Act 1995. Where this is not possible, out of scope sections should be clearly identified through the CRWIA process and mitigations detailed.
There remains ambiguity about whether definitions adopted from UK Acts may also be considered out of scope of the UNCRC Act. For example, the definition of “looked after” in section 7 of this Bill references the 1995 Act. Therefore, we would recommend a drafting approach moving forward which does not adopt definitions from Acts of the UK Parliament.
We understand that the Scottish Government has not amended its drafting guidance, meaning that the need to ensure new legislation is in scope of the 2024 Act is unlikely to be consistently considered and balanced against other relevant factors. When implementing policy changes, we acknowledge it may currently be considered more straightforward for an Act of the Scottish Parliament to amend the text of a UK Act rather than create new provisions. To demonstrate the effect of this; the Children (Scotland) Act 1995 is a key piece of legislation for children. Even when the Scottish Parliament is amending it to give effect to policy changes, the result is that none of these legislative provisions are subject to the operation of the UNCRC Act. Unless approaches to drafting and re-enactment are changed, there is an ongoing risk that future legislation will continue to undermine the reach of the UNCRC Act, leaving children without enforceable rights in key areas.
2. What are your views on the corporate parenting provisions set out in the Bill?
Section 3 extends the corporate parenting duties along the same lines as section 1 and 2 extends the right to aftercare. We support this provision.
3. What are your views on the advocacy proposals set out in the Bill?
The importance of advocacy for care experienced people has been highlighted by those with experience of care both in The Promise and by Who Cares? Scotland, with both recommending expansion of advocacy services. This would build on the provision of advocacy within Children’s Hearings, which has had a positive impact on children’s right to participate in their hearings (Article 12 UNCRC).
We support the principle of extending advocacy services, both within the children’s hearings and to support children and young people with wider issues such as education, housing, benefits etc, particularly as they transition to adult services. Care experience appears to be broadly defined for the purposes of this section, which could maximise the children to whom this service is made available.
We note that the UNCRC only covers children under the age of 18. Our statutory remit only extends to care experienced young people under the age of 21.[4] On that basis we cannot comment on proposals for lifelong advocacy, save that where a care experienced person has a child, that child has a right for their parent(s) to receive “appropriate assistance” from the state should they need it (UNCRC Article 18(1)) and advocacy services could be one way of meeting this obligation.
This section provides the framework within which the Scottish Government can make regulations, including outlining who must be consulted when such regulations are made. We are pleased to see the inclusion of “care experienced persons”, however there is no explicit requirement to include care experienced children and young people. Whilst they are a subset of “care experienced persons”, if they are not listed separately, the duty to consult could be met without including them.
4. What are your views on the proposals for guidance in relation to care experience?
Children and young people, through the Independent Care Review and the work of Our Hearings Our Voices have very clearly expressed the importance they place on professionals using less stigmatising language.[5] As a response to this, the term care experience is widely used in policy, though legal terms such as looked after remain in use where needed. At present there is no single, standard or legal definition of care experience.
In our response to the Scottish Government’s consultation on Developing a universal definition of ‘care experience’, we said it was unclear whether such a definition would provide direct benefit to children and young people. We drew attention to the varied definitions currently in use to determine access to different types of support (i.e. SAAS bursaries, throughcare/aftercare and universal credit) and questioned whether the intention of this proposal was to bring these into line.[6]
This Bill does not create a universal definition. Indeed, it uses different criteria for access to aftercare, corporate parenting duties and advocacy services. By contrast, any future definition must be linked to entitlements. In the absence of such a link, there is a risk that a statutory definition would increase confusion and result in expectations from children and young people which cannot be fulfilled.
Our view is that if work is undertaken to develop a universal definition via guidance, it should aim to align the definition with eligibility criteria for support, at the very least in devolved services. Children and young people should be active participants in this process. Care must be taken to ensure that any universal definition doesn’t remove existing entitlements for any children or young people (i.e. where there is currently a very broad definition of care experience or scope for discretion). A children’s rights impact assessment must be undertaken to ensure any definition is compliant with children’s rights in the UNCRC.
Section 5 requires Scottish Government to issue guidance to promote understanding of care experienced people and their experiences. We welcome this but reiterate that care experienced children and young people must participate in this process.
Section 5(2) outlines what must be included in this guidance. We have serious concerns about the compatibility of subsection 5(2)(a), which potentially places a proactive duty on public authorities to identify care experienced people. Our view is that this is not compatible with care experienced people’s right to privacy and family life in Article 8 of the ECHR (and in the case of children, Article 16 of the UNCRC). Attempts to comply with this could result in a register of care experienced people being created and this risks increasing stigma. Care experienced people have the right not to identify themselves as care experienced if they wish. This can be easily addressed via an amendment to remove the words “identifying and” from the start of section 5(2)(a).
5. What are your views on proposals designed to limit profits for children’s residential care services?
We welcome legislative efforts to remove profit from the care of children in line with the Promise. The proposed legislation would enable Scottish Government to require care providers to share information on profits, and where it deems necessary, to set further regulations with regards to these. We are generally supportive of the approach taken, which appears intended to address excessive profits by some larger providers identified by the Competition and Markets Authority in its 2022 study, while avoiding any adverse impact on the current availability of provision and therefore protection of children. We would recommend Scottish Government ensure transparency in how these provisions are implemented, in particular by consulting with the sector and children’s rights groups on any profit limiting regulations it seeks to develop. We welcome commitment by Scottish Government in the Policy Memorandum accompanying the Bill that work to address profit in the sector will be continued through efforts to improve commissioning, workforce and monitoring/forecasting of needs and provision. Children’s rights in the care system will be best secured by well-funded, planned and regulated care provision, and we support further efforts to ensure this in Scotland.
6. What are your views on proposals to require fostering services to be charities?
As noted in response to question 5, we support efforts to remove profit from the care of children, to ensure children’s rights are the key consideration in the provision of care by the state. We understand the measures proposed at clause 9 are intended to ensure fostering services cannot exploit loopholes in previous provisions. We therefore support the proposals as a means of ensuring profits are not being made through the provision of fostering services.
7. What are your views on proposals to maintain a register of foster carers?
We support proposals to develop a national register of foster carers, consideration of which was recommended by the Promise. In our view, a national register is likely to have significant benefits in terms of safeguarding, ensuring that where, for example, concerns have been raised about a foster carer before they move local areas, these concerns would not be lost from their record and would be followed up in their new location. We agree with comments from others in response to the future of foster care consultation that a well implemented register could have benefits in terms of standardising training and support for foster cares.
8. What are your views on the proposed changes to the Children’s Hearings system?
We value the opportunity to respond to the proposed changes to the Children’s Hearing system contained within the Children (Care, Care Experience and Services Planning) (Scotland) Bill. We previously outlined our position in our response to government consultation.[7]
CRWIA Analysis[8]/ Childs Rights Analysis
When considering the provisions on Children’s Hearings redesign there are a number of relevant UNCRC rights –
- Article 3 – The best interests of the child must be a top priority in all decisions and actions that affect children.
- Article 9 – Children must not be separated from their parents against their will unless it is in their best interests.
- Article 12 – Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously.
- Article 16 – Children have the right to privacy.
- Article 18 – Both parents share responsibility for bringing up their child and should always consider what is best for the child. Governments must support parents by creating support services for children and giving parents the help they need to raise their children.
- Article 19 – Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them.
- Article 20 – If a child cannot be looked after by their immediate family, the government must give them special protection and assistance.
- Article 25 – If a child has been placed away from home for the purpose of care or protection (for example, with a foster family or in hospital), they have the right to a regular review of their treatment, the way they are cared for and their wider circumstances.
- Article 40 – A child accused or guilty of breaking the law must be treated with dignity and respect. They have the right to legal assistance and a fair trial that takes account of their age.
It is also important to consider wider human rights such as those protected by the Human Rights Act 1998, mainly Article 6 ECHR (the right to a fair trial) and Article 8 ECHR (the right to respect for private family life).
When considering the proposals for hearings redesign, we are primarily concerned with assessing whether these measures will serve to protect and promote children’s rights under the UNCRC. We want to assess whether there is evidence of improvement of children’s rights as well as whether there is any potential for a negative impact on those rights.
The Scottish Government prepared a CRIA to go alongside this Bill. The purpose of a CRIA is to help identify which rights are impacted by a policy or law and whether this impact will be positive, negative or neutral. Where there are potential negative impacts these can be identified and mitigated against.
‘CRIAs offer a proactive approach to upholding children’s rights, through consideration of children’s rights as part of decision-making processes. This supports early identification of issues and allows for preventative changes to uphold children’s rights. It also strengthens decision making, reducing the risk of breaching children’s rights and in turn needing to make further changes.’[9]
We feel that the CRIA for this Bill is lacking in this sort of critical analysis and has failed to identify the potential for a negative impact on children’s rights and sufficiently mitigate against potential breaches. There is no suggested mitigation for these nor is there any plan in place for evaluation of the measures.
For example, when discussing the new measures regarding children’s attendance at the hearing – there is no discussion on the potential downfalls of this or breaches of rights. This lack of consideration of potential defects or critical analysis of the provisions is not child’s rights compliant and leaves us concerned about the potential implications of the new proposals.
Single Member Panels
We are cautious but not opposed to the introduction of authority to convene children’s hearings composed of a single member for certain defined preliminary decisions and for some narrow circumstances in ICSO’s. However, we feel that caution should be exercised as to how this is used and think the application of this should be narrow to ensure fairness.
The appropriateness of using such a panel must be determined on a case-to-case basis to ensure that EHRC Article 6 rights and UNCRC Article 40 rights are protected – it would be impossible to make a certain type of decision appropriate for single member panels in every case.
The deeming or ‘undeeming’ a Relevant Person is a decision of fact and law which has a potentially significant impact on the rights of the child and other participants. Similarly, excusing a child’s attendance requires robust assessment and scrutiny of how, in their absence, a child’s rights to participate in decision making and express their views will be upheld.
ICSO’s can have serious consequences for a child or young person’s life, including imposing secure conditions on them or requiring removal of a child from their current home.
While there is potential to free up capacity in the system, consideration should be given to the process by which a decision of whether to use a single member panel is made. The legislation gives this role to the National Convener but they will require case sensitive information to make the decision. This can only be provided by the Reporter which means that it will create another layer in process for them to undertake. There are also considerations around privacy – a child’s rights under UNCRC Article 16 and ECHR Article 8, information should only be shared if it is for a legitimate purpose.
Appointment and Remuneration of Children’s Panel Members
In relation to the introduction of paid chairing members of the Children’s Panel we recognise that offering a ‘level of remuneration in recognition of the expanded scope and complexity of the Chairing Member role’ may be appropriate.
At this stage we do not see strong evidence for creating additional specialist Panel Members. There is a potential for this to have a positive impact on the Hearing’s System leading to better experiences and outcomes for children and young people however, this is speculative. If there had been some form of pilot, then there might be a way to demonstrate a positive impact, but it is hard to know what benefits it could bring. We are concerned about the cost and operational implications of such a change when we do not know if this would ensure a more children’s rights-based approach.
It is important to consider the balance of power across the three panel members when considering changing roles. There is a risk that panels become three person in name only with decision making in reality driven by members who are paid, specialist in some way or full time. Specific training could help to address these imbalances.
The Child’s Attendance at their Hearing
The proposed legislation would remove the duty placed and instead allow for the hearing to require the child to attend where it is necessary. While we agree that a new approach to managing a child’s participation and attendance at the hearing should be considered, we are cautious about supporting the new proposals.
General Comment No. 12 specifically explores and gives guidance on the right of the child to be heard – it importantly highlights that the right to be heard encompasses the right not to exercise this right as ‘expressing views is a choice for the child, not an obligation.’[10]
It goes on to state that;
‘After the child has decided to be heard, he or she will have to decide how to be heard: “either directly, or through a representative or appropriate body”. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings.’
While we are sensitive to concerns about requiring children to attend hearings when they do not wish to, we do see some issues with completely removing the obligation and serious concerns that in some cases this will negatively impact a child’s right to be heard rather than serve to promote this. While we see that the proposal could better promote a child’s right to be heard it equally could undermine this by completely losing their voice within the hearing. There are serious possibilities for infringement of Article 6 ECHR rights.
At this stage we have not seen a critical analysis of the proposal and the fact this could create a disadvantage for some children. We are particularly concerned about how this may impact disabled children including those with developmental delays or neurodevelopmental disorders or disabilities (for example, autism spectrum disorders, foetal alcohol spectrum disorders or acquired brain injuries). This could include children who are generally disengaged from professional support services.
We are reluctant for changes to be made without proper consideration being given to how the hearing itself could better accommodate their rights and needs, or how in their absence their views will be expressed to the hearing so that decisions can be made in their best interests. In general, there has been a large fall in attendance since the COVID pandemic and existing concerns about hearings adequately supporting participation.
The policy memo states –
‘While removing the obligation to attend could, in isolation, risk losing the child’s voice in proceedings, that risk will be mitigated through robust engagement with the Reporter at an earlier stage, enhanced offers of advocacy, and changes in practice to promote and uphold the child’s effective participation throughout, in a way that suits them.’
We do not feel that this has been addressed sufficiently to mitigate the potential negative impacts to children’s rights. The CRIA highlights that this risk can be mitigated in part by the creation of the post referral discussion with the Reporter, however, this will not take place in every case. We do not think that the Reporter is the best placed person to reflect the child’s views. There will be a limit in some cases as to whether it is appropriate to have these discussions and if they take place the nature of them is still to be determined. The increased advocacy offer is also suggested as an appropriate mitigation, and while we welcome enhanced offers, not every child will have or want an advocacy worker. There does not appear to be allocated funding for this increase to take place.
We want to see meaningful, robust and resourced plans and guidance about how the rights of all children to be heard will be upheld, to ensure the child’s voice is not lost in the process. If the child is not attending what measures are being taken to ensure their voice is heard? And what are these measures in a range of complex circumstances?
Ensuring the child has due process and a fair hearing, Article 6 ECHR and Article 40 UNCRC, are crucial considerations. Where the hearing is to consider offence grounds (s67(m)) or the potential deprivation of liberty of a child we do not think that it would be appropriate or rights compliant for the child to be absent from attending. The Bill as drafted does not explicitly cover these scenarios. Offence grounds can lead to a range of significant consequences for children, some of which can be life-long. We suggest that caution should be exercised in creating further distinctions between children who come before a hearing on offence vs non-offence grounds.
Preparation and Engagement with the Principal Reporter
We see the potential for these proposals to have a positive impact on the experiences and outcomes for children and families however, we would like to see a better analysis of the rights implications of the changes as well as a better understanding of how these provisions will work in practice.
It will not always be appropriate for the Reporter to meet with the family together, especially where there are concerns surrounding abuse. They may need to meet relevant persons (which could include more than two in a case) separately from each other and also from the child. This will create a significant resourcing issue and pressure on the Reporter.
Part of this role will be explaining the grounds and ascertaining whether or not they are likely to be understood, this is not currently a role that is undertaken by the Reporter and there must be sufficient checks on such decision making either by the panel at a grounds hearing or by a Sheriff if referred to the Sheriff Court. Where this is being considered by the panel, we would suggest that it may not be a sufficient safeguard, in terms of Article 6 ECHR rights, for this to be a single member panel.
There is the potential for undue influence on someone to accept the grounds in these scenarios and the only real way to mitigate against this is through legal representation. The presence of legal representation at these discussions has not been mentioned in the Bill or accompanying documents.
This meeting could add another layer of complexity to an already difficult process, this could have a negative impact on the experience of the child in the hearing process. We would like some of these potential negative impacts to be given sufficient consideration.
Process in Relation to Establishing Grounds
We see that there is a benefit in attempting to ‘streamline’ the process for dealing with the acceptance or non-acceptance of grounds. We note that children and families have said that they do not always understand the grounds process and that it can feel accusatory and intimidating. Where it is clear that grounds are not going to be accepted then it is in everyone’s interest that matters proceed to the Sheriff.
However, we still have some concerns regarding the process, and this largely echoes what we have said in the last section. The concerns will largely arise in the most serious and complex cases. We would like to see more analysis of what protective measures will be in place here.
Establishing grounds is a legal process with significant consequences, there does have to be some means to put the grounds to families and have a recorded statement of whether they are accepted or not. This is a formality which many have found to be uncomfortable, but if Article 6 ECHR rights are to be upheld then due process must be followed.
Participation of Relevant Persons
We are supportive of the proposed provisions, it is in the best interests of a child that relevant person status be capable of removal when it is appropriate to do so.
Test for Referral to the Principal Reporter
We broadly support the proposal to modernise language. It is important that children and young people can understand the reasons they have been referred to the Reporter, and to a Hearing. That is an important part of the ECHR Article 6 right to a fair hearing and will condition the extent to which children and young people are able to meaningfully participate in decisions, in line with UNCRC Article 12.
We would note that both the terms ‘guidance’ and ‘support’ imply interventions that are not compulsory in nature and may potentially be misleading.
We are supportive of the terms ‘treatment’ and ‘control’ staying within the legislation as interference with a child’s rights should be given a high bar.
Care should be taken not to inadvertently change the thresholds for referral without good reason. Detailed legal analysis will be necessary here to understand the potential impact of the change before moving ahead with it. We note the Hearings for Children report recommended that Scottish Government undertake a detailed legal analysis. We are therefore surprised that a consultation has been issued without it seemingly having been done.
Information and the Availability of Children’s Advocacy Services in Relation to Children’s Hearings
We are supportive of the expansion of advocacy services and see the potential for this to positively impact the rights of children within the hearings system. We must be clear that the provision of advocacy does not replace the need for legal representation. Availability of legal representation for children within the hearing system is essential for upholding Article 6 ECHR and Article 40 UNCRC rights.
Sharing of Hearings Scheduling Information with Advocacy Workers
We are supportive of such sharing where it furthers the rights of children.
Duration of ICSO’s and Interim Variations to CSO’s
We are supportive where this flexibility is in the child’s best interests.
The Reporter’s Ability to Initiate a Review We feel that SCRA will be best placed to advise on this provision. It is not clear to us under what circumstances it would be appropriate for the Reporter to call a review where the social worker does not support or request this.
[1] CYPCS, 2008. Sweet 16? The age of leaving care in Scotland. https://www.cypcs.org.uk/resources/sweet-16-the-age-of-leaving-care-in-scotland/
[2] CYPCS. 2009. Sweet 16? One year on is life any sweeter? https://www.cypcs.org.uk/resources/sweet-16-one-year-on-is-life-any-sweeter/
[3] We use the term Care Experienced wherever possible in this response. Terms such as “looked after” which have a legal meaning are only used where necessary for clarity and accuracy.
[4] Commissioner for Children and Young People (Scotland) Act 2003 section 16. https://www.legislation.gov.uk/asp/2003/17/section/16
[5] Our Hearings Our Voices. Language in the Children’s Hearings System. https://www.ohov.co.uk/about-us/projects/language-in-the-childrens-hearings-system/
[6] CYPCS, 2024. Consultation Response to Scottish Government – Developing a universal definition of ‘care experience’ https://www.cypcs.org.uk/resources/consultation-response-to-scottish-government-developing-a-universal-definition-of-care-experience/
[7] CYPCS, 2024. Children’s Hearings Redesign – Scottish Government consultation response. https://www.cypcs.org.uk/resources/childrens-hearings-redesign-scottish-government-consultation-response/
[8] Scottish Government, 2025. Child Rights and Wellbeing Impact Assessment for the Children (Care, Care Experience and Services Planning) (Scotland) Bill. https://www.gov.scot/publications/children-care-care-experience-services-planning-scotland-bill-child-rights-wellbeing-impact-assessment/
[9] Together, 2022. Child Rights Impact Assessments guide. https://www.togetherscotland.org.uk/media/3228/child-rights-impact-assessments-guide-003.pdf
[10] UN Committee on the Rights of the Child. General comment No. 12 (2009): The right of the child to be heard. https://www.refworld.org/legal/general/crc/2009/en/70207