Children (Scotland) Act 2020 - registers of child welfare reporters, curators ad litem and solicitors: consultation

Annex G: Draft Child Rights and Wellbeing Impact Assessment

CRWIA Stage 1

1. Name the policy, and describe its overall aims.

Establishment of registers of child welfare reporters, curators ad litem and solicitors appointed where a party has been prohibited from personally conducting a case themselves.

The key policy aim of the registers of child welfare reporters and curators ad litem is to ensure that the best interests of the child are at the centre of any case under section 11 of the Children (Scotland) Act 1995 (the 1995 Act). Establishing these registers will ensure that child welfare reporters and curators ad litem are subject to suitable and consistent qualifications and training requirements.

The policy aim of the register of solicitors appointed where a party has been prohibited from personally conducting a case themselves is to protect vulnerable parties by introducing a special measure of prohibition of personal conduct. The register ensures the right to a fair trial. The prohibition of personal conduct of a case in certain circumstances protects victims of offences, including victims of domestic abuse, and vulnerable witnesses in Children's Hearings court proceedings and in cases under section 11 of the 1995 Act.

2. What aspects of the policy/measure will affect children and young people up to the age of 18?

The Scottish Government expects that all three registers will affect children and young people as all three registers are applicable in cases under section 11 of the 1995 Act. In relation to the register of solicitors where a person has been prohibited from personally conducting a case themselves Children's Hearings court proceedings are covered as well.

3. What likely impact – direct or indirect – will the policy/measure have on children and young people?

The Scottish Government expects that the registers of child welfare reporters and curators ad litem would have direct impact on children and young people as both child welfare reporters and curators ad litem engage directly with children. The Scottish Government expects there to be a positive impact on children as, for example, establishing the registers will ensure that all child welfare reporters and curators ad litem are fully trained.

The register of solicitors appointed where a party has been prohibited from personally conducting a case themselves will have an indirect impact on children and young people. Prohibition of personal conduct of a case will ensure that vulnerable witnesses are able to feel more confident in giving their evidence in cases involving children – both in Children's Hearings court cases and in cases under section 11 of the 1995 Act. This could impact on the quality of the evidence that the vulnerable witness is providing.

4. Which groups of children and young people will be affected?

The registers will potentially affect children and young people of all ages and from all backgrounds. The registers are likely to have more of an impact on children who have experienced domestic abuse; those involved in court proceedings about arrangements for their upbringing and children involved in Children's Hearings court proceedings. Court proceedings about arrangements for the upbringing of children (ie cases under section 11 of the 1995 Act) relate to children under 16.

5. Will this require a CRWIA?

Explain your reasons.

Yes all three of the registers will either directly or indirectly affect children.

CRWIA Declaration

CRWIA required: Yes

CRWIA not required

Authorisation

Policy lead:

Name, title, division (or equivalent)

To be completed in Final Version

Date

Deputy Director or equivalent:

Name, title, division (or equivalent)

To be completed in Final Version

Date

CRWIA Stage 2

The CRWIA – key questions

1. Which UNCRC Articles are relevant to the policy/measure?

All UNCRC rights are underpinned by the four general principles: non-discrimination; the best interests of the child; the right to life, survival and development; and the child's right to have their views given due weight.

The establishment of registers of child welfare reporters, curators ad litem and solicitors appointed where a party has been prohibited from personally conducting a case themselves will affect children's rights. The Scottish Government has listed below the articles of the UNCRC that the Scottish Government considers are relevant to the registers.

Article 1

Is relevant because the registers of child welfare reporters and curators at litem directly affects children and young people who are at the centre of a case under section 11 of the Children (Scotland) Act 1995 (the 1995 Act). The 1995 Act provides in relation to parental responsibilities and rights (PRRs) that these generally relate to children under 16 although the parental responsibility to provide guidance, in a manner appropriate to the stage of development of the child, lasts until the age of 18.

Article 3

Is relevant to the register of child welfare reporters and of curators ad litem. One of the key aims of establishing these registers is to ensure that the best interests of the child remain at the heart of every case under section 11 of the 1995 Act.

Establishing registers of child welfare reporters and of curators ad litem will ensure that child welfare reporters and curators ad litem are subject to suitable and consistent qualification and training requirements. The consultation suggests that this should include the impact of domestic abuse on a child, how to obtain the views of the child and the ways in which a parent can influence a child.

Article 6

Is relevant in relation to further protection of children and young people from domestic abuse. One of the proposed eligibility requirements for child welfare reporters and curators ad litem is an understanding of domestic abuse, in particular coercive control. There will also be ongoing training requirements for child welfare reporters and curators ad litem in this area.

Article 7

Is relevant in relation to the register of child welfare reporters and curators ad litem because one of the proposed eligibility requirements and also ongoing training requirements is an understanding the ways adults can influence a child. This understanding could be useful when a child welfare reporter is preparing a report for the court or a curator ad litem is representing the best interests of the child.

Article 8

Is relevant in relation to the register of child welfare reporters and curators ad litem because one of the proposed eligibility requirements and also ongoing training requirements is an understanding of how an adult can influence a child. This understanding could be useful when a child welfare reporter is preparing a report for the court or a curator ad litem is representing the best interests of the child.

Article 9

Article 9(1) is relevant in relation to the register of child welfare reporters and curators ad litem because two of the proposed eligibility requirements and also ongoing training requirements are an understanding domestic abuse, particularly the dynamic of coercive control and an understanding the ways adults can influence a child.

Article 9(1) is also relevant in relation to the register of solicitors who may be appointed if a person is prohibited from personally conducting a case themselves as this could protect a vulnerable witness and ensure they are able to give full evidence.

Article 9(2) is relevant in relation to the register of child welfare reporters as they can be appointed to obtain the views of the child. One of the proposed eligibility requirements for child welfare reporters is being able to communicate with children. It is also relevant for the register of curators ad litem as a curator ad litem can be appointed to represent the best interests of a child. One of the proposed eligibility requirements for curators ad litem is being able to communicate with children in order to understand what is in their best interests.

Article 9(3) is relevant in relation to the registers of child welfare reporters and curators ad litem because two of the proposed eligibility criteria and also ongoing training requirements are an understanding domestic abuse, particularly the dynamic of coercive control and an understanding the ways adults can influence a child

Article 9(3) is also relevant in relation to the register of solicitors who may be appointed if a person is prohibited from personally conducting a case themselves as this could protect a vulnerable witness and ensure they are able to give full evidence.

Article 12

Article 12 is relevant in relation to the register of child welfare reporters as they can be appointed to obtain the views of the child. One of the proposed eligibility requirements for child welfare reporters is being able to communicate with children. A curator ad litem can be appointed to represent the best interests of a child. One of the proposed eligibility requirements for curators ad litem is being able to communicate with children in order to understand what is in their best interests. The complaints procedure for both child welfare reporters and curators ad litem are intended to be child friendly.

Article 12 is also relevant in relation to the register of solicitors who can be appointed if a person is prohibited from personally conducting a case themselves. A person would be prohibited from personally conducting a case themselves if there is a vulnerable witness. A child could be a witness in a section 11 case or a Children's Hearing court proceeding. Prohibiting a person from conducting a case themselves could help the vulnerable child witness to give their views.

Article 16

Article 16 is relevant in relation to the register of child welfare reporters because the establishment of eligibility requirements will ensure that child welfare reporters are subject to suitable and consistent qualifications and training requirements. The consultation also sets out a proposed complaints procedure if individuals are unhappy with a child welfare reporter.

Article 19

Article 19 is relevant in relation to the registers of child welfare reporters and curators ad litem because the establishment of eligibility requirements will ensure that child welfare reporters and curators ad litem are subject to suitable and consistent qualifications and training requirements. One of the proposed eligibility requirements and also training requirements is an understanding of domestic abuse, particularly the dynamic of coercive control.

Article 19 is also relevant in relation to the register of solicitors who can be appointed if a person is prohibited from personally conducting a case themselves. A person would be prohibited from personally conducting a case themselves if there is a vulnerable witness. A child could be a witness in a section 11 case or a Children's Hearing court proceeding. Prohibiting a person from conducting a case themselves could help the vulnerable child witness to give their views.

Article 23

Article 23 is relevant in relation to the registers of child welfare reporters and curators ad litem as one of the proposed eligibility requirements and ongoing training requirements for child welfare reporters is an understanding of child development including of learning disabilities.

2. What impact will the policy/measure will have on children's rights?

Positive

Establishing registers of child welfare reporters and curators ad litem will have a positive impact on children's rights as it sets out the eligibility requirements to be on both of these registers. The proposed eligibility requirements include:

• Communicating with children including obtaining the views of children
• an understanding of domestic abuse, particularly the dynamic of coercive control
• report writing
• understanding the ways adults can influence a child
• understanding family conflict
• child development including learning disabilities;
• understanding of child protection issues and the child protection system.

The registers of child welfare reporters and curators ad litem will also mean that there is a child friendly complaints process if a child feels has a complaint about a child welfare reporter or curator ad litem.

Establishing a register of solicitors who can act if a person has been prohibited from personally conducting their case themselves would have a positive impact if a child is a witness in a Children's Hearing court proceeding or in a section 11 case.

3. Will there be different impacts on different groups of children and young people?

Which groups of children will be affected by the policy/measure? Are there competing interests between different groups of children and young people, or between children and young people and other groups?

The main impact will be on children under 16 who are at the centre of a court case under section 11 of the 1995 Act on matters such as contact and residence. There will be a particular impact where there has been domestic abuse or where a parent has influenced a child as having an understanding of these two areas are two of the proposed eligibility requirements for child welfare reporters and curators ad litem.

4. If a negative impact is assessed for any area of rights or any group of children and young people, what options have you considered to modify the proposal, or mitigate the impact?

If options to modify the policy/measure are included here, include associated resource implications where relevant.

No negative impacts have been assessed.

5. How will the policy/measure contribute to the wellbeing of children and young people in Scotland?

Outline how the implementation of the policy/measure will support public bodies in Scotland to meet their duties to safeguard, support and promote the wellbeing of children in their area, with wellbeing defined by eight wellbeing indicators. The indicators are: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included.

The main aim of the policy is to improve aspects of the process for dealing with cases under section 11 of the 1995 Act on matters such as child contact and residence. These cases are typically between separated parents, rather than involving public bodies. However, improving the process generally helps all concerned when dealing with these cases.

The following wellbeing indicators are relevant:

Safe: Two of the proposed eligibility requirements and ongoing training requirements for child welfare reporters and curators ad litem is an understanding of domestic abuse including an understanding of domestic abuse, particularly the dynamic of coercive control and also an understanding of how an adult can influence a child.

Establishing a register of solicitors who can be appointed if a person has been prohibited from personally conducting a case themselves could protect a child if they are a witness in a Children's Hearing court case or a section 11 case.

Respected: One of the proposed eligibility criteria and ongoing training requirements for child welfare reporters and curators ad litem is communication with children including obtaining the views of children. This should help ensure the views of children are heard in family court cases. In addition, it is proposed that there would be child friendly complaints mechanisms in relation to child welfare reporters and curators ad litem

Included: This indicator is relevant as one of the proposed eligibility requirements and ongoing training requirements for child welfare reporters and curators ad litem is communicating with children. This will help ensure that the views of children and young people are heard in decisions that affect them.

6. How will the policy/measure give better or further effect to the implementation of the UNCRC in Scotland?

This will inform Scottish Ministers' duty to report to Parliament on children's rights under the Children and Young People (Scotland) Act 2014.

As detailed above establishing the three registers will further compliance with the UNCRC.

7. What evidence have you used to inform your assessment? What does it tell you?

The evidence base may include demographic information, academic research, service monitoring/inspection reports, service evaluation reports, user surveys, etc. In particular, look at what existing evidence tells you about children and young people's views and experiences of the relevant service(s); and/or what it tells you about children and young people's views of the policy proposal. Identify any gaps in the evidence base, and set out how you will address these.

There is a range of research and statistics in this area.

Background statistics

Number of births and number of children

Data from National Records of Scotland shows that there were 49,863 births registered in Scotland in 2019^[40].

In Mid 2019 there were 921,397 children aged 15 or under in Scotland^[41].

Court statistics

According to figures provided by Scottish Courts and Tribunals Service (SCTS) in 2018/19 there were 2,562 cases disposed of in the sheriff courts in relation to parental responsibilities and rights^[42]. In 2018/19 there were 3,554 family cases raised which involved children and 15,649 hearings in family cases involving children (excluding adoption and permanence). Of the 15,649 hearings there were 6,655 Child Welfare Hearings, 1,383 proofs called and 239 proofs proceeding.

Children's Hearings statistics

Children and young people and/or their relevant persons can appeal to the sheriff against decisions made by Children's Hearings and Pre-Hearing Panels. In 2018/19, 651 children and young people had 824 appeals concluded^[43].

Number of children with learning disabilities

According to Scotland's Pupil Census 2020 in 2020 there were 226,838 pupils in special schools and those with Additional Support Needs in mainstream schools^[44].

Domestic abuse and cases under section 11 of the 1995 Act

Research undertaken by Kirsteen Mackay in 2013^[45] found that domestic abuse was alleged in half of all court actions over contact. The research also found that when a child was not seeing their non-resident parent this was allegedly due to violence upon the child in 18% of the cases.

Research by CAFCASS and Women's Aid in 2017 found that in England and Wales 62% of applications to the family court about where a child should live or spend time feature allegations of domestic abuse.^[46]. Research undertaken by the Ministry of Justice in 2009 showed that 53% of the contact and residence cases in England and Wales involved allegations of domestic abuse or concerns about abduction or harm to children^[47].

According to the Scottish Crime and Justice Survey 2017/18^[48] published in March 2019, 40% of those who experienced partner abuse in the last 12 months said that children were living in their household when the most recent incident took place. In 62% of cases where children were living in the household the children were present during the most recent incident.

Figures on the number of incidents of domestic abuse recorded by the police showed that 88% of domestic abuse incidents were recorded by police to have taken place in a home or dwelling. This can be split into 39% of incidents of domestic abuse that occurred within the victim's own home and 17% that occurred within a joint home^[49].

Register of Child Welfare Reporters

Data

Data from SLAB suggests that the costs of obtaining a Child Welfare Report can vary^[50]. The consultation contains information on setting standard fees and also on the Scottish Government funding reports once the register is in place. This would alleviate the pressure on parties to a case who are having to pay for a child welfare report.

Research

The Scottish Government published research in 2010 on the use of child welfare reporters^[51].

Obtaining the views of the child

The Scottish Government published a paper during the passage of the Children (Scotland) Act 2020 on the ways in which a child can give their views in contact and residence cases^[52].

Gaps in data

The Scottish Government would welcome information during the course of this consultation on any further data or information available which could be included in the final CRWIA.

When the Children (Scotland) Act was introduced into the Scottish Parliament the Scottish Government published a Family Justice Modernisation Strategy^[53].This commits the Scottish Government to:

• Develop strategies to report more detailed statistics from SCTS while maintaining statistical rigour and anonymity.
• Continue to engage with a range of external agencies and service providers to determine the extent to which information these parties can provide is appropriate for inclusion in official statistics; and
• Further consider how best to promote existing research into family courts.

The publication Civil Justice statistics 2018-19 contained information on ancillary craves^[54].

We do not have any data on the number of children at the centre of cases under section 11 of the 1995 Act who have a learning disability.

The register of solicitors who can be appointed where a party has been prohibited from personally conducting a case themselves is a new function and therefore there is no data available on this.

8. Have you consulted with relevant stakeholders?

This would include public or targeted consultations with children and young people, their parents/carers and the children's workforce.

Yes. This draft CRWIA will be published along with a public consultation document seeking views on our proposals. The Scottish Government has regular meetings with a range of organisations, including:

Children 1st

Scottish Courts & Tribunals Service

Scottish Women's Aid

Shared Parenting Scotland

During the consultation process we will seek to arrange engagement events with organisations.

9. Have you involved children and young people in the development of the policy/measure?

Is there enough information on the views of the children and young people who will be affected by the policy/measure that enables you to make an informed assessment of impact?

During the consultation process we will seek to arrange engagement events with children and young people.

CRWIA – Stage 3

CRWIA title: Establishment of registers of child welfare reporters, curators ad litem and solicitors appointed where a party has been prohibited from personally conducting a case themselves.

Date of publication: March 2021

Executive summary

The Children (Scotland) Act 2020 (the 2020 Act) requires the Scottish Ministers to establish registers of child welfare reporters, curators ad litem and solicitors appointed where a party has been prohibited from personally conducting a case themselves.

The Scottish Government is now seeking views on these registers including:

• who should manage and operate the three registers,
• how individuals are included on the registers;
• the reappointment process of individuals to the registers;
• who would not be eligible to be included on the registers;
• how an individuals could be removed from the registers;
• the fee rates and expenses to be paid;
• what requirements individuals should meet to be on the registers;
• what ongoing training requirements there should be;
• how a person would be selected from the registers;
• what a child friendly complaints mechanism for child welfare reporters and curators ad litem should look like.

Background

Child welfare reporters

Child welfare reporters can be appointed by the court either to seek the views of the child and report any views expressed by the child back to the court; or to undertake enquiries and report to the court. Where the court asks a reporter to undertake enquiries, this can include seeking the views of the child and reporting on their best interests. The 2020 Act will expand the role of child welfare reporters to include explaining court decisions to children and, when requested to do so by the court, investigating reasons for non-compliance with a section 11 order.

We understand there are approximately 400 child welfare reporters in Scotland appointed across the six Sheriffdoms. Individuals seeking to be a child welfare reporter may be appointed to lists held by the Court of Session and by the six Sheriffs Principal (for the Sheriff Courts in their respective Sheriffdom). The presiding judge or sheriff can then appoint a child welfare reporter on the appropriate list to report on a case.

Curators ad litem

Curators ad litem are appointed to represent and protect the interests of an individual lacking full capacity, including a child. Curators ad litem are used in cases other than those under section 11 of the 1995 Act such as Mental Health Tribunals, divorce proceedings where it appears to the court that the defender lacks capacity; or to protect the interests of a child who is the subject of proceedings for permanence or adoption orders. The 2020 Act only covers establishing a register of curators ad litem for the purposes of orders made under section 11 of the 1995 Act.

Currently, practice in relation to appointment of curators ad litem varies across Scotland. In some Sheriffdoms, curators ad litem are appointed from the list of child welfare reporters held by the Sheriffs Principal. In other areas curators ad litem are appointed from the panel held by each local authority for permanence and adoption cases. The number of curators ad litem appointed varies across the country for example from a survey of Sheriffs Principal, in Lothian and Borders there were four appointments of curators ad litem in the first two months of 2019 whilst in South Strathclyde, Dumfries and Galloway there were six appointments for the whole of 2018/19.

Solicitors appointed where a party has been prohibited from personally conducting a case themselves

The Programme for Government for 2017-18 committed the Scottish Government to consulting on prohibiting of personal cross examination of domestic abuse victims in child contact cases.

Sections 4 and 5 of the Act introduce a new special measure into the Vulnerable Witnesses (Scotland) Act 2004 (the 2004 Act) prohibiting a party from personally conducting the remainder of their case in certain circumstances. This special measure is available in proceedings where the court is considering making an order under section 11 of the 1995 Act and in Children's Hearings court proceedings.

In order to protect the right to a fair trial under article 6 of the European Convention on Human Rights of an individual who has been prohibited from personally conducting the remainder of their case themselves legal representation must be available.

Section 6 of the 2020 Act gives the Scottish Ministers the power to establish a register of solicitors from whom a lawyer is to be appointed if a party fails to appoint one themselves where the prohibition applies in either a case under section 11 of the 1995 Act or a Children's Hearing court proceeding.

Scope of the CRWIA, identifying the children and young people affected by the policy, and summarising the evidence base

The draft CRWIA considers whether the proposals in relation to the registers of child welfare reporters, curators ad litem and solicitors appointed when a person has been prohibited from personally conducting a case themselves impact on the rights and wellbeing of children and young people in Scotland.

The evidence base is contained in the stage 2 of the draft CRWIA.

The draft CRWIA should be read in conjunction with the other draft impact assessments published at the same time as the draft CRWIA.

Children and young people's views and experiences

The Scottish Government welcomes responses to the consultation from children and young people and will seek to engage further with children and young people during the consultation.

Key Findings, including an assessment of the impact on children's rights, and how the measure will contribute to children's wellbeing

The Scottish Government is of the view that the registers will advance the realisation of children's rights and wellbeing in Scotland.

A full list of how the Scottish Government considers the three registers will meet various articles of the UNCRC is available in the draft CRWIA stage 2 report.

Monitoring and review

The Scottish Government is seeking views on the draft CRWIA as part of the consultation on the registers. This will help inform the final CRWIA that will be published alongside any regulations that are laid in the Scottish Parliament.

Registers	Aims of measure	Likely to impact on	Compliance with UNCRC requirements	Contribution to local duties to safeguard, support and promote child wellbeing
Register of child welfare reporters	To ensure that the best interests of the child are at the centre of any case under section 11 of the Children (Scotland) Act 1995 (the 1995 Act). Establishing this register will ensure that child welfare reporters are subject to suitable and consistent qualifications and training requirements.	All children going through a case under section 11 of the 1995 Act. This may in particular affect younger children or those with a learning disability as one of the proposed eligibility criteria and training requirements is child development.	Article 1 Article 3 Article 6 Article 7 Article 8 Article 9 Article 12 Article 16 Article 19 Article 23	Establishing this register will meet wellbeing indicators: Safe Respected Included
Register of curators ad litem	To ensure that the best interests of the child are at the centre of any case under section 11 of the 1995 Act Establishing this register will ensure that curators ad litem are subject to suitable and consistent qualifications and training requirements.	All children going through a case under section 11 of the 1995 Act where a curator ad litem has been appointed This may in particular affect younger children or those with a learning disability as one of the proposed eligibility criteria and training requirements is child development.	Article 1 Article 3 Article 6 Article 7 Article 8 Article 9 Article 12 Article 19 Article 23	Establishing this register will meet wellbeing indicators: Safe Respected Included
Register of solicitors appointed when a party has been prohibited from personally conducting a case themselves	To protect vulnerable parties by introducing a special measure of prohibition of personal conduct. The register of solicitors ensures the right to a fair trial. The prohibition of personal conduct of a case protects victims of offences including victims of domestic abuse and vulnerable witnesses in either Children's Hearings court proceedings or in cases under section 11 of the 1995 Act.	All children who are at the centre of a case under section 11 of the 1995 Act or Children's Hearing court proceeding as protecting a vulnerable party may positively impact on the evidence that they will bring forward. Children who are witnesses in either a section 11 case or a Children's Hearing court proceeding.	Article 9 Article 12 Article 19	Establishing this register will meet wellbeing indicator: Safe

CRWIA Declaration

Authorisation – To be completed in final version