Children - raising the age of referral: consultation analysis

Impact Assessment

As part of the main consultation, respondents were asked the following impact assessment questions:

• Are there any data protection related issues that you feel could arise from the proposals set out in this paper?
• Are there any children’s rights and wellbeing issues that you feel could arise from the proposals set out in this paper?
• Are there any equality related issues that you feel could arise from the proposals set out in this paper?

There were very few responses to these questions overall, and several people commented that they felt insufficiently qualified to comment. Others reiterated points already made in response to the main consultation questions, covered above.

Data Protection

The majority of respondents who answered this question either noted that existing legislation on data sharing was already adequate (and so no change was required) or expressed that any new policies and legislation should follow and adhere to existing guidelines that are in place for data protection (including GDPR). One organisation expressed that there was an assumption that that the same data protection rights and guidance in relation to those presently under 16 would automatically be expanded to include all children under 18 through the implementation of raising the age. Consent from young people to share information was also seen as key, especially with regards to information shared between service providers.

The small number of specific concerns that were raised included:

• whether young people aged 16 and 17 would have sufficient capacity to understand and provide necessary consents required to share information;
• reluctance of some young people aged 16 and 17 to allow access to key information via GPs, employers, or other agencies given their rights for data protection;
• potential challenges for health services and sharing information without consent, including health and mental health details that the young person may refuse consent to be discussed;
• the need for clarity around what information significant adults in the lives of young people are entitled to know, including their parents (including respecting the young person's right to confidentiality when parents may be attending their hearings); and
• that further thought would also be needed around what data (if any) were available to others after a young person turns 18 and, in particular, whether information about their involvement in the children’s hearings system may be shared with anyone which may hinder their adult life prospects (employment, etc.). One respondent suggested destroying any child records unless something in that record requires to be heard in a court of law.

Clear data sharing arrangements would need to be in place regarding information given to victims about young people who had perpetrated against them, as well as clear guideline on what information about the child/and or victim should be shared, for what purpose and to whom.

Others felt that there would be no major concerns as long as individual data were only ever shared or used in aggregate form, and never shared or released at an individual level or in a way that would make individuals identifiable (for example, in compiling national comparative reports).

A small number indicated that a full assessment related to data sharing and retentions would need to be undertaken, or that information sharing protocols would need to be updated in consultation with the Information Commissioner's Office, but offered no further insight.

Children’s Rights and Wellbeing

Again, many respondents who answered this question repeated earlier comments that the proposal would bring Scottish legislation and definitions of adulthood in line with the UNCRC and would improve children’s rights and wellbeing overall, with no negative consequences, as long as referrals are made in the best interests of the child:

“Fundamentally, this chance has the potential to enhance children's rights in Scotland and to create equality of provision and protection amongst all children.”

Potentially negative impacts included young people having decisions taken out of their hands, feeling patronised by the children’s hearings system, being treated less favourably than in the adult system or feeling a loss of autonomy/self-determination (compared to having previously been treated as adults). These views of young people having their rights to be treated as adults removed, were, however, expressed by only a small number of respondents.

One very specific issued raised by an organisation related to advocacy and the need to ensure that even when people have a right to access independent advocacy (e.g. through the Mental Health (Scotland) Act 2003), other barriers are also removed. Specifically, for young people (especially those with mental health challenges) this may include ensuring that there are no barriers linked to lack of knowledge and understanding about their right to advocacy, as well as ensuring that adequate funding is available for independent advocacy organisations to be able to deliver at the necessary capacity. Others similarly caveated that children’s rights and wellbeing would only be improved by the proposals if sufficient resource for additional support/services was also made available, including more young people’s advocates.

Equalities

Again, the majority of respondents either did not answer this question or felt that there would be no equalities issues to arise from the proposals.

Consistent with other consultation questions, most who did answer felt that all young people should be treated the same regardless of age, gender, disability or other protected characteristics and that the proposals would go some way to ensuring that all children (aged under 18) are treated equally.

Supportive comments were again made that the proposal would be more beneficial for young people affected by trauma, ensuring that they in particular were not disadvantaged by their past experiences.

Issues which were mentioned (by just one or two respondents) as potentially requiring further thought and attention in implementing the proposals included:

• whether some cultural/ethnic communities may regard young people as adults at aged 16 and therefore be resistant to the change (with one respondent indicating that it was important that Scottish laws not be circumvented on the grounds of different race or ethnicity);
• how existing systemic inequalities, including where they intersect, should be considered where there is disproportionate representation of groups in the youth justice system (for example, Black Asian and Minority Ethnic (BAME) groups, people with learning disabilities and mental health conditions);
• how issues such as pregnancy and sexual abuse may need to be handled differently for those aged under and over the legal age of consent;
• that issues in equality around the rights to marry and form civil partnerships may arise (although it was suggested that these may just need to be considered as part of the grounds considerations rather than via a specific equality impact assessment);
• ensuring that adolescent mental health and cognitive development is sufficiently well understood and appropriately handled so as not to discriminate against individuals;
• making the Children’s Reporter better aware that people with a learning disability may be more likely to lack capacity in some areas of decision-making capacity issues (although this is not always the case) and ensuring that people with a learning disability have the same supports or consequences as their peers providing they have capacity regarding the decision to commit the offence;
• ensuring that communications policies are reviewed in relation to specific protected characteristics including the need for increased supports to ensure that children with Speech, Language and Communication Needs (SLCN) and their families have optional access to targeted, developmentally appropriate legal advice and representation. Increased formal support being made available for children with SLCN to ensure fair and effective participation within the CHS was also raised; and
• that there may be greater impact of the change on those with disabilities and that it is important that this be monitored to ensure that there are no inequalities arising as a result.

Other comments included that training should be offered to professionals to ensure consistent practice when dealing with young people from different backgrounds and to ensure there was no unintentional discrimination. This may include general training on current equalities legislation as well as training to understand equalities issues affecting specific groups of young people, e.g. gender identity. One respondent reiterated that it would be important to ensure a balanced composition of panel members, and to manage this appropriately, in the interests of equality and representation:

“Care must be taken to respect individuality and to ensure that legal measures do not impact negatively on a young person at this stage in their lives.”

Views were expressed that a full equality and diversity impact assessment taking into account the views of young people would be important to undertake and that all proposals should be sense checked by appropriate equality experts.

Finally, a small number of comments were again made (here and elsewhere in the consultation) that equality should be considered alongside fairness in implementing the proposals:

“The care system can never be made on equality alone. It needs to be on equality and fairness. Fairness being that they are given what they need to succeed the same as everyone else. Not that they are given the same as everyone else. If they need more, professionals need to support that. If they need less professionals need to acknowledge how well they are achieving and celebrate that with the young person. Not take ownership of it.”