Review of Children (Scotland) Act 1995 consultation: analysis

16 Impact Assessment

16.1.1 The main consultation outlined the various impact assessments that had been conducted in relation to the development of policy in this area and sought comments and/or any evidence related to these.

Q53. Do you have any comments about, or evidence relevant to:

a) The partial Business and Regulatory Impact Assessment;

b) The partial Child Rights and Wellbeing Impact Assessment;

c) The partial Data Protection Impact Assessment; or

d) The partial Equality Impact Assessment?

	Number	Percentage
The partial Business and Regulatory Impact Assessment	10	4%
The partial Child Rights and Wellbeing Impact Assessment	27	11%
The partial Data Protection Impact Assessment	6	2%
The partial Equality Impact Assessment	18	7%
No response	216	85%
Total Respondents	255

Note: Multiple responses were possible at this question.

16.1.2 While most respondents (85%) provided no response to this question, 11% indicated they had comments related to the Child Rights and Wellbeing Impact Assessment, 7% had comments on the Equality Impact Assessment, 4% had comments on the Business and Regulatory Impact Assessment, and 2% had comments on the Data Protection Impact Assessment.

16.1.3 Respondents were provided with the opportunity to outline their comments and evidence in relation to each of the impact assessments.  Two provided more general comments.  One individual felt that awareness raising was required for the issues raised in the assessments, and that the needs of the child needed to be more fully considered.  Similarly, one local authority stressed the need for any changes to place the child at the centre, and said that caution was required to ensure that others’ interests were not inadvertently put ahead of those of the child. 

16.1.4 While six respondents indicated at the closed element to this question that they had comments or evidence in relation to the Data Protection Impact Assessment, none went on to provide any qualitative comments in this respect. 

16.1.5 Comments related to each of the other impact assessments are outlined in the sections below. 

16.2 Child Rights and Wellbeing Impact Assessment

16.2.1 Many who provided comments in relation to the Child Rights and Wellbeing Impact Assessment focused on the need for any changes to have the child’s best interests as the main focus:

“Any changes should continue to have the welfare and best interests of the child as the focus.”  (Legal Profession)

“Child rights are important as the adults can often make decisions in their own best interest, rather than that of the child.  This needs to be addressed.” (Family Support Organisation)

16.2.2 Similarly, it was considered important to hear the child’s voice and respect their wishes:

“A child should be heard in court if they are able to speak and know what they want, they should not be made to do things that makes them unhappy and causes complications in their lives and development.”    (Individual)

16.2.3 One public body, however, also highlighted that it was important that decisions could be revisited and arrangements changed as circumstances are likely to change over time.

16.2.4 A few individuals also took the opportunity to highlight elements of their own experiences which they felt needed to be addressed.  These issues included: courts being perceived as not serving the best interests of the child or failing to protect children; the interests of one parent or another being put above the welfare/interests of the child; courts being ‘complicit’ in one party’s abusive behaviour against the other (by allowing the case to be brought back to court many times); social workers’ views being given too much weight; a lack of understanding of parental alienation; a lack of rights for non-resident parents; and a lack of ‘reasonable’ contact time for non-resident parents and the child.

16.2.5 One family support organisation noted that the assessment lacked data concerning family court cases.

16.2.6 Further, one individual discussed the rationale for making the rebuttable presumption of 50/50 shared care of the child the default starting position in any dispute.  They argued that this was necessary due to the content of Article 2 and Article 9 of the UNCRC.  They also felt that the evidence base supported the assumption that shared care was typically favourable for a child’s wellbeing, and cited several sources to reinforce this view.

16.2.7 Finally, one children’s organisation expressed disappointment that the Child Rights and Wellbeing Impact Assessment was not more fully complete and felt this needed to be addressed as a matter of urgency.  They noted concerns about the positioning of children’s rights in some of the consultation questions and, therefore, felt it was vital that fuller assessment was undertaken in order to inform the process going forward.

16.3 Equality Impact Assessment (EQIA)

16.3.1 The two key equality impacts discussed were gender and LGBT issues.

Gender

16.3.2 One family support organisation felt that female gender bias had been built into the design of some of the consultation questions, but that this had been rectified slightly by inviting male support organisations to provide their views.

16.3.3 Others suggested that family law itself was more biased towards one gender or another.  For individuals, this was typically seen as a bias in favour of mothers, with fathers not afforded the same rights and status as mothers:  

“There is without doubt a gender based bias favouring mothers this should be re-examined due to the damage it causes children and the torturous process many good fathers have to go through to see their children again.”  (Individual)

16.3.4 However, one domestic abuse support service considered that evidence shows that family law practice typically favours fathers.  They suggested that domestic violence is often not fully considered in family cases and that the civil court process is often misused by perpetrators of domestic abuse:

“The evidence demonstrates that men’s violence in the family is frequently rendered invisible in family law practice, driven in large part by gendered assumptions within law and culture.  Indeed, empirical studies have identified a trend toward favouring fathers, in contrast to widespread assumptions that mothers are favoured in custody litigation.”  (Domestic Abuse Support Service)

16.3.5 This organisation also felt that more consideration was necessary on how other forms of gender-based violence are considered in family courts, including ‘honour’-based violence and forced marriage.  In addition, they felt that greater consideration was needed on the impacts for women without settled immigration status, and suggested that research indicates perpetrators will use child contact and the threat of child abduction to create additional difficulties and prevent both disclosure and access to support by the woman.

16.3.6 One family support organisation felt that single parents would be affected by many of the consultation proposals, but were disappointed that the EQIA did not consider them as a separate category.  They considered this important as there would likely be a gender dimension to this:

“As single parents are mainly women there is a significant gender dimension to how the law deals with the already existing power imbalance between mothers and fathers.”   (Family Support Organisation)

LGBT

16.3.7 Two LGBT organisations provided comments in respect of the impacts on LGBT groups.  One noted the inappropriate terminology used within the EQIA.  In particular, the references to “trans women who father children” and “trans men giving birth” were seen as being inappropriate and insensitive, and it was suggested that transgender people would prefer to be referred to in-line with their gender identity, or simply as parents (without the inclusion of any gendered reference).  They also noted that these descriptions failed to recognise that non-binary people with the protected characteristic of gender reassignment can also be parents.

16.3.8 The second LGBT organisation also felt that the EQIA failed to sufficiently consider the experiences and needs of the range of LGBT communities:

“…the current EQIA does not take into account the experiences of non-binary parents, as well as not fully assessing the needs of trans parents. We also feel the partial EQIA does not take into account the potential of these reforms to benefit same-sex parents, particularly female couples, or the impact of sharing information on LGBT young people...”  (LGBT Organisation)

16.3.9 Both LGBT organisations suggested that further analysis in this respect was needed, with one suggesting that LGBT organisations should be included in future EQIA exercises to ensure that they are done in a robust manner. 

16.3.10 Similarly, one individual felt that little to no consultation had taken place with LGBT family groups.

16.3.11 One representative from the legal profession also highlighted that same sex and transgender cases were likely to become more prevalent in the future and so provision for this should be built in to any changes.

16.3.12 With reference to a specific consultation question, one local authority felt that Q14 (Should the presumption that the husband of a mother is the father of her child be retained in Scots law?) did not take into account same sex couples or the implications of the change on them.

Other Impacts

16.3.13 Similar to comments in relation to the Child Rights and Wellbeing Impact Assessment, the issues for and against the presumption of 50/50 shared care of a child was discussed.

16.3.14 Again, one individual argued that a rebuttable presumption of 50/50 care of children after parental separation was the most sensible option.  They indicated that this was the only way to comply with both the UNCRC and the Equality Act, and that this position was supported by evidence:

“The only solution in law compatible with the Equality Act and UNCRC is a rebuttable presumption of 50/50 care of children after parental separation. The only reason to deviate from this is if it were not in the overall best interests of children. The available evidence overwhelmingly supports 50/50 care as the care arrangement associated with the best outcomes for children.”  (Individual)

16.3.15 One domestic abuse support service disagreed, however, suggesting that the evidence shows that children’s best interests and wellbeing are served by the quality of the parenting they receive rather than the amount of time spent with a parent.  They felt that the EQIA did not take into account research which showed shared care can be harmful to children, for example, where there is abuse, coercion or parental conflict:  

“The EQIA’s data and evidence gathering does not sufficiently take into account research which shows that shared care is harmful for children where there is abuse, coercion or parental conflict.  There is evidence to show that shared care in such cases is a significant source of psychological strain on children [and] that children who are forced into contact with fathers against their will are less likely to have positive relationships with them in later life.”  (Domestic Abuse Support Service)

16.3.16 Finally, one legal professional outlined age related impacts of the legal aid system, both for children and older people (i.e. grandparents).  They suggested that the legal aid process for children is “unduly onerous and burdensome” (Legal Profession), and that it requires information from the parents, who they may be in conflict with.  Also, they noted that grandparents with care of a child can be reluctant to formalise arrangements via a court order due to the complexities of the legal aid process and therefore continue to be involved in the Children’s Hearing System.

16.4 Business and Regulatory Impact Assessment

16.4.1 One legal professional felt that over regulation should be avoided as they felt it was unnecessary and costly.  They also felt that increased use of modern technology should be encouraged as this would be more efficient and provide cost savings.

16.4.2 Two public bodies identified additional necessary elements which they felt had not been included/considered within the costings, these being:

• advocacy service provision;
• an intermediary service provision;
• additional required training in respect of vulnerable witnesses; and
• increased costs that would be incurred by other agencies, such as SCTS.

16.4.3 One of these public bodies, while supportive of the proposals to modernise family law, felt the changes may have profound consequences for the legislation currently operating to support vulnerable children and families through the Children’s Hearings System.  They urged that consideration was needed from the outset of how the changes to family law could be similarly implemented in Children’s Hearing legislation “so that Children’s Hearing legislation does not fall behind” (Public Body).

16.4.4 One family support organisation outlined alternatives to the creation/use of child support workers and the regulation of child welfare reporters and curators ad litem.  They suggested that a pilot could be conducted to test Parenting Co-ordinators, which could replace some or all of the work undertaken by support workers and child welfare reporters.  While they acknowledged this would also have start-up and ongoing costs, they considered this could also provide an overall cost saving (when taking into account the costs to SCTS and SLAB as well as the Scottish Government) due to a reduction in court actions.

16.4.5 This respondent also discussed the introduction of family Sheriffs who would conduct all hearings on an inquisitorial basis, which they anticipated would reduce the length of time cases spend in court.  They felt that this approach, alongside existing case management proposals, had potential to generate cost savings.  It was suggested that Australia and various jurisdictions in the USA may offer examples where litigants have been offered a choice in procedure types.

16.4.6 Finally, one individual felt that the proposals were promising and felt that changes should be implemented as soon as possible.  They suggested however, that case management and training for Sheriffs, solicitors, curators, etc. were required as priorities.