Children (Scotland) Act 2020 - registers of child welfare reporters, curators ad litem and solicitors: consultation
This consultation focuses on the register of child welfare reporters, the register of curators ad litem in cases under section 11 of the Children (Scotland) Act 1995 and the register of solicitors appointed where a person has been prohibited from personally conducting a case themselves.
Annex I: Draft Equality Impact Assessment Record
Title of policy/ practice/ strategy/ legislation etc.:
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.
Minister: Minister for Community Safety
Lead official: Hannah Frodsham
Officials involved in the EQIA
team:
Justice Analytical Services
Family Law Unit
Violence against Women & Girls Unit
Directorate: Division: Team
Family Law Unit
Civil Law & Legal System Division
Justice Directorate
Is this new policy or revision to an existing policy?: New policy
Screening
Policy Aim
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.
The most relevant National Outcome is:
1. We grow up loved, safe and respected so that we realise our full potential.
Who will it affect?
The registers will affect a wide range of people including:
2. Children and young people at the centre of cases under section 11 of the Children (Scotland) Act 1995 (the 1995 Act) or Children's Hearings court proceedings.
3. Child welfare reporters
4. Curators ad litem appointed in cases under section 11 of the 1995 Act
5. The courts
6. Lawyers
7. Local authorities who are ordered to produce a child welfare report by the court
8. Parents, grandparents, other family members and other adults who are involved in a court case under section 11 of the 1995 Act.
9. Scottish Legal Aid Board
10. Social workers
What might prevent the desired outcomes being achieved?
Establishing the three registers will require significant financial implications on an ongoing basis.
Establishing the three registers requires amendments to court rules. Rules of court are made by Act of Sederunt and are a matter for the Lord President on behalf of the Court of Session and the Scottish Civil Justice Council. If the Lord President and the Scottish Civil Justice Council do not make the required amendments to the rules of court this may affect the operation of the registers.
If the Scottish Ministers contract out the management and operation of the registers then there is a risk of no suitable bids being received.
Stage 1: Framing
Results of framing exercise
The Family Law Unit met with colleagues from Justice Analytical Services and the Violence Against Women & Girls Unit for the purpose of this framing exercise.
The framing exercise suggested that the following groups of people might be affected by the establishment of the three registers:
Age
- The registers will affect children in particular younger children as one of the proposed requirements to be on the register of child welfare reporters is an ability to communicate with children.
- Individuals who are wanting to be on the registers will need to be of a certain age due to the required qualifications and experience.
- Curators ad litem and solicitors appointed where a person has been prohibited from personally conducting a case themselves would need to hold a practising certificate from the Law Society of Scotland or be a member of the Faculty of Advocates. This means retired lawyers are not eligible to be on these two registers.
Disability
- The register of child welfare reporters and curators ad litem will in particular affect children with special educational needs as one of the requirement for an individual to be on these registers is an understanding of child development including learning disabilities.
1. The register of solicitors appointed where a person has been prohibited from personally conducting a case themselves may have an impact on parties who have communication difficulties.
Sex
2. Being included on the three registers may be appealing to people with childcare responsibilities (who may be predominantly women) as the roles to which those registers relate are flexible.
3. Female victims of domestic abuse may not wish a male child welfare reporter to be appointed.
Gender reassignment
4. There may be a need for child welfare reporters and curators ad litem to respect a child's identity.
Sexual orientation
- We would wish to ensure diversity amongst individuals included in the three registers. This information would likely be gathered during the application process.
- Child welfare reporters and curators ad litem would need to have training in same sex parentage and diverse family models.
Race
- We would wish to ensure diversity amongst individuals included in the three registers. This information would likely be gathered during the application process.
- We would need to ensure that information on complaints procedures is accessible to individuals who have English as a second language.
Religion or belief
- In some religions a woman is not allowed to speak to a man.
- We would wish anyone included in the registers to have an understanding of cultural differences.
Extent/Level of EQIA required
Following the framing exercise, the Scottish Government believes that the extent of the EQIA required was high.
A draft Child Rights & Wellbeing Impact Assessment (CRWIA) has been prepared separately and will be cross referred to in this EQIA.
Stage 2: Data and evidence gathering, involvement and consultation
Include here the results of your evidence gathering (including framing exercise), including qualitative and quantitative data and the source of that information, whether national statistics, surveys or consultations with relevant equality groups.
Characteristic |
Evidence gathered and Strength/quality of evidence |
Source |
Data gaps identified and action taken |
|---|---|---|---|
Age |
1. The draft Child Rights & Wellbeing Impact Assessment (CRWIA) sets out the evidence gathered in relation to children and young people. 2. Unpublished data from the Scottish Legal Aid Board (SLAB) suggests that between April 2017 and April 2019 24% of granted legal aid applications were to parties aged between 25 and 29. This figure drops to 20% for 30 – 34 year olds and 15% for 35 to 39 year olds. Therefore, the registers will affect individuals between 25 to 29 year old more as they are party to cases under section 11 of the 1995 Act. 3. To be eligible for inclusion in the register of curators ad litem or solicitors appointed where a person has been prohibited from personally conducting a case themselves an individual will need to hold a practising certificate with the Law Society of Scotland (or in relation to curators ad litem be a member of the Faculty of Advocates). The process for obtaining a practising certificate from the Law Society of Scotland can take 7 years from finishing School. Therefore individuals would only be eligible from the age of 24. Register of solicitors appointed where a person has been prohibited from personally conducting a case themselves 4. The register of solicitors who are appointed when a person has been prohibited from personally conducting a case themselves is aimed at protecting vulnerable parties including victims of domestic abuse. Scottish Government statistics on domestic abuse suggest that in 2018/19 the 26-30 years old age group had the highest incident rate for victims (263 incidents recorded per 10,000 population). The 31-35 years old age group had the highest incident rate for the accused (246 incidents recorded per 10,000 population). 5. A party is also expected to be restricted from personally conducting a case themselves where they have committed an other serious criminal offence. Scottish Government statistics on criminal proceedings show that in 2018-19, the highest number of convictions per 1,000 population was for the 31-40 age group overall (34 per 1,000), the 21-30 age group also showing a similar 33 convictions per 1,000 population. Compared to older people, a larger proportion of convictions for people under 21 are for crimes against public justice and common assault. Register of child welfare reporters 7. Research from 2013 suggests that over half of children involved in family cases in which there are allegations of domestic abuse were aged six years and under. Only 16 % were aged 12 or over. Register of curators ad litem 9. Research from 2013 suggests that a third of children aged 12 or over involved in family cases in which there are allegations of domestic abuse had a curator ad litem appointed to them. This is compared to only 5% of children aged 5 years and younger. |
2. SLAB Law Society of Scotland 4. Data from the Scottish Government 5. Data from the Scottish Government |
2. There is no data available from the Scottish Courts & Tribunals Service (SCTS) on age of pursuers and defenders. Therefore, the Scottish Government is relying on data from SLAB which only covers cases where individuals are granted legal aid. 4. There is no data available on the age of the person convicted of an offence based on who the victim of the offence was. There is no known data gathered on how many children (or adult vulnerable witnesses) are required to give evidence in Children Hearings court cases. 6. There is no data on the age of the existing child welfare reporters. 7. There is no current data on the age of the child who is speaking to a child welfare reporter. 8. There is no data on the age of the existing curators ad litem. 9. There is no current data on the age of the child who is appointed a curator ad litem. |
Disability |
1. More than half of pursuers reported that they have experienced moderate or severe stress during court action. The register of solicitors appointed where a person has been prohibited from personally conducting a case themselves will help alleviate this stress. |
1. Study on Understanding Child Contact Cases in Scottish sheriff courts |
|
Sex |
1. Unpublished statistics from SLAB suggest that 82% of defenders in cases under section 11 of the 1995 Act are female compared to 18% of men. In comparison SLAB data suggests that 32% of pursuers are female compared to 68% of men. Therefore, the registers will affect more women acting as defenders in cases under section 11 of the 1995 Act and more men acting as pursuers in these cases. Register of solicitors appointed when a party is prohibited from personally conducting a case themselves 2. This register will protect vulnerable witnesses. This will include victims of domestic abuse and other serious criminal offences. 3. Statistics show that in 2018/2019 where this information was recorded, around four out of every five incidents of domestic abuse in 2018-19 had a female victim and a male accused. 16% of domestic abuse incidents involved a male victim and a female accused (where this was recorded). 4. A party is also expected to be restricted from personally conducting a case themselves where they have committed another serious criminal offence. Scottish Government statistics on criminal proceedings show that in 2018-19, males accounted for 82% of all convictions in 2018-19, the same proportion as in 2017-18. More males than females were convicted in all crime/offence categories. Register of child welfare reporters Register of curators ad litem |
1. SLAB statistics |
1. There is no data from the SCTS on the sex of defenders and pursuers. 5. There is no data available on the sex of child welfare reporters. This will be gathered in the future as part of the appointment round. 6. There is no data available on the sex of children speaking to child welfare reporters. 7. There is no data available on the sex of curators ad litem. This will be gathered in the future as part of the appointment round. 8. There is no data available on the sex of children whose best interests are being represented by a curator ad litem. |
Pregnancy and maternity |
1. Cases under section 11 of the 1995 Act are only likely to be initiated once a child has been born. |
||
Gender reassignment |
1. No robust data on the Scottish trans population currently exists |
1. There is no information available on the number of people who have undergone gender reassignment who are applying for an order under section 11 of the 1995 Act. |
|
Sexual Orientation |
1. Scottish Government statistics show that in 2018/19 2% of domestic abuse incidents recorded by the police involved both the victim and the accused of the same gender. |
1. Scottish Government statistics on Domestic Abuse in Scotland. |
|
Race |
1. There is no data available on the race of child welfare reporters or curators ad litem. This information may be gathered as part of the recruitment process for child welfare reporters and curators ad litem. 2. There is no data available on the number of interpreters used when a child welfare reporter is speaking to individuals who do not have English as their first language. 3. There is no data available on the number of interpreters used when a curator ad litem is appointed to a child who does not have English as their first language. |
||
Religion or belief |
1. There is no data available on the religion or belief of child welfare reporters or curators ad litem. |
||
Marriage and civil partnership (the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work, for example HR policies and practices - refer to Definitions of Protected Characteristics document for details) |
N/A |
Stage 3: Assessing the impacts and identifying opportunities to promote equality
Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts – negative and positive – that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one – that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.
Do you think that the policy impacts on people because of their age?
Age |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination, harassment and victimisation |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The registers will benefit children and young people who are at the centre of family court cases as there will be comprehensive training requirements in place for child welfare reporters and curators ad litem in section 11 cases. |
||
Promoting good relations among and between different age groups |
X |
The registers are not intended to do this. |
Do you think that the policy impacts disabled people?
Disability |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination, harassment and victimisation |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
One of the criteria for individuals to be on the register of child welfare reporters and curators ad litem is an understanding of child development including learning disabilities. |
||
Promoting good relations among and between disabled and non-disabled people |
X |
The registers are not intended to do this. |
Do you think that the policy impacts on men and women in different ways?
Sex |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The register of solicitors appointed where a person has been prohibited from personally conducting a case themselves aims to protect vulnerable parties, in particular victims of domestic abuse. The majority of victims of domestic abuse are women. |
||
Promoting good relations between men and women |
X |
The registers are not intended to do this. |
Do you think that the policy impacts on women because of pregnancy and maternity?
Pregnancy and Maternity |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The registers are not intended to do this. |
||
Promoting good relations |
X |
The registers are not intended to do this. |
Do you think your policy impacts on people proposing to undergo, undergoing, or who have undergone a process for the purpose of reassigning their sex? (NB: the Equality Act 2010 uses the term 'transsexual people' but 'trans people' is more commonly used)
Gender reassignment |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The registers are not intended to do this. |
||
Promoting good relations |
X |
The registers are not intended to do this. |
Do you think that the policy impacts on people because of their sexual orientation?
Sexual orientation |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The registers are not intended to do this. |
||
Promoting good relations |
X |
The registers are not intended to do this. |
Do you think the policy impacts on people on the grounds of their race?
Race |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The registers are not intended to do this. |
||
Promoting good race relations |
X |
The registers are not intended to do this. |
Do you think the policy impacts on people because of their religion or belief?
Religion or belief |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
||
Advancing equality of opportunity |
X |
The registers are not intended to do this. |
||
Promoting good relations |
X |
The registers are not intended to do this. |
Do you think the policy impacts on people because of their marriage or civil partnership?
Marriage and Civil Partnership |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
Eliminating unlawful discrimination |
X |
The registers are not intended to do this. |
Stage 4: Decision making and monitoring
Identifying and establishing any required mitigating action
Have positive or negative impacts been identified for any of the equality groups? |
Yes positive impacts in relation to age, disability and sex. |
|---|---|
Is the policy directly or indirectly discriminatory under the Equality Act 2010? |
No. |
If the policy is indirectly discriminatory, how is it justified under the relevant legislation? |
N/A |
If not justified, what mitigating action will be undertaken? |
N/A |
Describing how Equality Impact analysis has shaped the policy making process
This is a draft EQIA and the Scottish Government is seeking views on this as part of a consultation exercise.
This EQIA has, in line with work carried out elsewhere. It has also usefully highlighted some other issues, such as the need to ensure child welfare reporters and curators ad litem work effectively with children with learning disabilities and children who do not speak English as their first language."
The EQIA has helped identify areas where further evidence will be useful and we have discussed this with Justice Analytical Services.
The final EQIA will be published alongside any regulations that are introduced into the Scottish Parliament in relation to the three registers.
Monitoring and Review
This is a draft EQIA and will be revised following comments received from stakeholders during the consultation period.
Stage 5 - Authorisation of EQIA – to be completed in final EQIA
Contact
Email: family.law@gov.scot
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