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

Annex K: Draft Islands Community Impact Assessment

Step one – develop a clear understanding of your objectives

What are the objectives of the policy, strategy or service?

Do you need to consult?

How are Islands identified for the purpose of the policy, strategy or service?

What are the intended impacts / outcomes and how do these potentially differ in the islands?

Is the policy, strategy or service new?

Background

The Children (Scotland) Act 2020 (the 2020 Act) gained Royal Assent on 1 October 2020.

Section 101A of the 1995 Act (inserted by section 9 of the 2020 Act) places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as child welfare reporters. The 1995 Act gives Scottish Ministers the power by regulations to make provision about:

• the requirements that a person must satisfy in order to be included, and remain, on the register
• the process for including a person on, and removing a person from, the register
• the process for how, and by whom, a registered person is to be selected as the appointed child welfare reporter in a case
• the remuneration of child welfare reporters including expenses and outlays
• the operation and management of the register.

Section 11(1B) of the Matrimonial Proceedings (Children) Act 1958 as inserted by section 19 of the 2020 Act means that if a local authority employee wishes to continue to act as a child welfare reporter then they would need to apply to be on the register of child welfare reporters and meet the required eligibility standards.

Section 101B of the 1995 Act (inserted by section 17 of the 2020 Act) places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as curators ad litem. Section 101B gives Scottish Ministers the power by regulations to make provision about:

• the requirements that a person must satisfy in order to be included, and remain, on the register
• the process for including a person on, and removing a person from, the register
• the process for how, and by whom, a registered person is to be selected as the appointed child welfare reporter in a case
• the remuneration of child welfare reporters including expenses and outlays
• the operation and management of the register.

Section 7 of the 2020 Act places a duty on the Scottish Ministers 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 either in a case under section 11 of the 1995 Act or a Children's Hearing court proceeding. The Scottish Ministers must by regulations specify the requirements that a person must satisfy in order to be included and remain on the register and may also provide for the remuneration (the fee rate) payable to the solicitor. Provision may also be made about outlays such as fees to be paid to Counsel.

Policy objectives of establishing the registers

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.

Potential impacts/outcomes

There may be an impact on island communities if, as a result of establishing the three registers, there were fewer Child Welfare Reporters, curators ad litem or solicitors to be appointed to represent a person who is prohibited from personally conducting their own case available in these communities.

We anticipate that advertisements for the role of child welfare reporter, curator ad litem and solicitor representing those who are prohibited from representing themselves would issue in advance of the regulations fully commencing in 2023. We would expect that in future years further recruitment rounds would be undertaken to replace people ceasing to be on the registers or to deal with any upsurge in demand.

The application form would seek evidence of how candidates meet the requirements set down in the regulations. The application form may also require individuals to indicate the areas of the country that they would be available to work in. This would be used to ensure that there was sufficient coverage across the country.

In terms of how the court orders a child welfare reporter or curator ad litem to be appointed in a case, the Scottish Government's preferred approach is that when a court orders a child welfare reporter or a curator ad litem be appointed the clerk of the court will contact the body appointed to operate and manage the register. The body would then select the next child welfare reporter on the list who is willing to work in the specific geographic location. The body would need to ensure that there was no conflict of interest for the child welfare reporter in that particular case. A child welfare reporter may also turn down the work due to other commitments.

A similar approach is proposed where the court considers the appointment of a solicitor to represent a person prohibited from personally conducting their own case is required. The court would make an order and approach the body managing and operating that register. The body would then consult the register and where possible approach the next solicitor on the list who is willing to work in a specific geographic location. As the register is likely to be used infrequently it is envisaged that a number of solicitors may need to be approached in order to obtain one who would have availability to act for a party and does not have a conflict of interest.

Under the three proposed registers any reasonable travelling expenses incurred by a child welfare reporter, curator ad litem or solicitor appointed to represent a person prohibited from personally conducting their case in the course of their role, can be claimed back centrally at the levels set by the Scottish Government for its own staff.

The consultation will seek views on these proposed approaches, but in the Scottish Government's view these proposals should ensure sufficient availability of child welfare reporters, curators at litem and solicitors appointed to represent a person prohibited from personally conducting their own case in island communities.

Consultation

This is a draft ICIA and we are seeking views from individuals as part of the consultation on this impact assessment.

Step two – gather your data and identify your stakeholders

What data is available about the current situation in the islands?

Do you need to consult?

How does any existing data differ between islands?

Are there any existing design features or mitigations in place?

We understand there are approximately 400 child welfare reporters in Scotland appointed across the six Sheriffdoms and the Court of Session. Individuals currently 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.

The number of curators ad litem appointed varies across the country. For example, from a survey of Sheriffs Principal, in the Sheriffdom of Lothian and Borders there were four appointments of curators ad litem in the first two months of 2019 whilst in the Sheriffdom of South Strathclyde, Dumfries and Galloway there were six appointments for the whole of 2018/19.

We do not have information on the number of child welfare reporters or curators ad litem based in or operating in the islands.

This draft ICIA is part of the consultation on establishing the three registers. We are seeking views on the ICIA as part of this consultation. The Scottish Government also intends to engage with stakeholders and individuals during the consultation period and to seek further evidence and information.

Step three - consultation

Who do you need to consult with?

How will you carry out your consultation and in what timescales?

What questions will you ask when considering how to address island realities?

What information has already been gathered through consultations?

What concerns have been raised previously by island communities?

Is your consultation robust and meaningful and sufficient to comply with the Section 7 duty?

This draft ICIA forms part of a public consultation which will run for 16 weeks. The consultation contains a section asking for comments specifically on the draft impact assessments.

This is a draft ICIA and will be finalised following comments received from respondents and stakeholders during the consultation period.

The Scottish Government will seek views from a range of organisations and individuals, including:

• organisations representing children and young people
• organisations representing victims of domestic abuse
• family lawyers
• social workers
• organisations representing family lawyers
• organisations representing social workers
• organisations representing parents, grandparents and other family members
• existing child welfare reporters and curators ad litem
• Scottish Courts and Tribunals Service
• Scottish Legal Aid Board
• Scottish Children's Reporter Administration
• Faculty of Advocates
• Law Society of Scotland
• Family Law Association
• Local authorities

The Scottish Government also intends to engage with stakeholders, groups and individuals directly during the consultation period by holding events and discussions groups.

During the consultation on the review of the Children (Scotland) Act 1995 in 2018, which informed the Children (Scotland) Act 2020, no specific issues regarding the proposed register of Child Welfare Reporters, curators ad litem or solicitors appointed to represent a person prohibited from personally conducting their own case were raised by island communities.

During the passage of the Children (Scotland) Bill (now the Children (Scotland) Act 2020), no specific issues regarding the proposed register of Child Welfare Reporters, curators ad litem or solicitors appointed to represent a person prohibited from personally conducting their own case were raised by island communities.

Step four - assessment

Does your assessment identify any unique impacts on island communities?

Does your assessment identify any potential barriers or wider impacts?

How will you address these?

You must now determine whether in your opinion your policy, strategy or service is likely to have an effect on an island community which is significantly different from its effect on other communities (including other island communities).

If your answer is No to the above question, a full ICIA will NOT be required and you can proceed to Step Six.

If the answer is Yes, an ICIA must be prepared and you should proceed to Step 5

To form your opinion, the following questions should be considered:

Does the evidence show different circumstances or different expectations or needs, or different experiences or outcomes (such as different levels of satisfaction, or different rates of participation)?

Are these different effects likely?

Are these effects significantly different?

Could the effect amount to a disadvantage for an island community compared to the mainland or between island groups?

This draft ICIA forms part of a public consultation on the proposed registers of Child Welfare Reporters, curators ad litem and solicitors appointed to represent a person prohibited from personally conducting their own case. The consultation contains a section asking for comments specifically on the draft impact assessments.

This draft ICIA will be revised following assessment of the comments received from respondents and stakeholders during the consultation period.

Step five – preparing your ICIA

In Step Five, you should describe the likely significantly different effect of the policy, strategy or service

Assess the extent to which you consider that the policy, strategy or service can be developed or delivered in such a manner as to improve or mitigate, for island communities, the outcomes resulting from it.

Consider alternative delivery mechanisms and whether further consultation is required.

Describe how these alternative delivery mechanisms will improve or mitigate outcomes for island communities.

Identify resources required to improve or mitigate outcomes for island Communities.

An ICIA by Scottish Ministers in regard to legislation must:

Describe the likely significantly different effect of the legislation, assess the extent to which the Scottish Ministers consider that the legislation can be developed in such a manner as to improve or mitigate, for island communities, the outcomes resulting from the legislation, and set out the financial implications of steps taken under this subsection to mitigate, for island communities, the outcomes resulting from the legislation.

This draft ICIA forms part of a public consultation on the proposed registers of Child Welfare Reporters, curators ad litem and solicitors appointed to represent a person prohibited from personally conducting their own case. The consultation contains a section asking for comments specifically on the draft impact assessments.

This draft ICIA and will be revised following assessment of the comments received from respondents and stakeholders during the consultation period.

Step six – making adjustments to your work

Should delivery mechanisms/mitigations vary in different communities?

Do you need to consult with island communities in respect of mechanisms or mitigations?

Have island circumstances been factored into the evaluation process?

Have any island-specific indicators/targets been identified that require monitoring?

How will outcomes be measured on the islands?

How has the policy, strategy or service affected island communities?

How will lessons learned in this ICIA inform future policy making and service delivery?

This draft ICIA forms part of a public consultation on the proposed registers of Child Welfare Reporters, curators ad litem and solicitors appointed to represent a person prohibited from personally conducting their own case. The consultation contains a section asking for comments specifically on the draft impact assessments.

This draft ICIA will be revised following assessment of the comments received from respondents and stakeholders during the consultation period.

Step seven – publishing your ICIA

Have you presented your ICIA in an Easy Read format?

Does it need to be presented in Gaelic or any other language?

Where will you publish your ICIA and will relevant stakeholders be able to easily access it?

Who will sign-off your final ICIA and why?

This draft ICIA forms part of a public consultation on the proposed registers of Child Welfare Reporters, curators ad litem and solicitors appointed to represent a person prohibited from personally conducting their own case. The consultation contains a section asking for comments specifically on the draft impact assessments.

This draft ICIA and will be revised following assessment of the comments received from respondents and stakeholders during the consultation period.

ICIA Completed by: To be completed in the final version of ICIA