Child contact services - regulation: consultation

Annex D: Draft Business and Regulatory Impact Assessment (BRIA)

Title of Proposal

Regulation of child contact services.

1. Purpose and intended effect

Background

1.2 The Children (Scotland) Act 2020 (the 2020 Act) gained Royal Assent on 1 October 2020. Section 10 of the 2020 Act gives the Scottish Ministers the power to set minimum standards for child contact centre accommodation and staff training by regulations. The 2020 Act also gives the Scottish Ministers the power to appoint a body to oversee regulation, which would include registering child contact services, carrying out inspections, reporting on inspections, and handling complaints.

1.3 Child contact centres play an important role in providing safe venues for conflict-free contact between children, parents, and other people in the child's life. Child contact centres receive referrals from the courts, solicitors, from parents themselves and some from social work services so that contact can be facilitated between a parent and child.

1.4 Child contact centres offer a mixture of supported and supervised contact. Supported contact is where centres provide the facilities for the contact and record that the contact took place and not details of how it went. Supervised contact is where contact takes place in the constant presence of an independent person who observes and ensures the safety of those involved.

1.5 Child contact centres also provide a handover service where one parent brings the child to the centre to be collected by the other parent. This means that the parents do not have to see each other during the handover.

1.6 The child contact centre services that this consultation is focussed on are those that deal primarily with separated parents and families who are referred in private law cases. For example, in situations where contact is ordered at a child contact centre by the courts, where a referral is made by a solicitor on their client's behalf or where parents self-refer.

1.7 The Scottish Government is aware that local authorities also facilitate child contact in public law cases involving looked after children. This type of child contact does not fall within the scope of the changes made by the Children (Scotland) Act 2020 (the 2020 Act) and is not covered by this consultation. However, it is possible that in future centres regulated under the 2020 Act may continue to receive some referrals from local authorities.

1.8 There are currently 45 child contact centres across Scotland that deal primarily with private law cases. 42 are members of the Relationships Scotland (RS) network^[38] and the Scottish Government is aware of three independent centres in Aberdeen^[39], Inverclyde^[40] and Glasgow^[41].

Objective

1.9 The policy aim of regulating child contact services is to ensure all child contact centres remain safe locations for children to have contact with a parent or other family member and that children will be protected when they are referred to a child contact centre.

1.10 The aim is that by establishing minimum standards the best interests of children remain at the centre of contact cases and that the best outcomes for children using child contact centres will be achieved.

Rationale for Government intervention

1.11 Currently child contact services are not subject to any external regulation. Although child contact service providers have their own policies and procedures in place, there are no national standards and there is no independent oversight.

1.12 On 9 January 2017 petition PE1635^[42] was lodged with the Public Petitions Committee of the Scottish Parliament asking for a review of the system and operation of child contact centres and the procedure under section 11 of the Children (Scotland) Act 1995, so that the rights, safety and welfare of children are paramount in relation to child contact arrangements where domestic abuse is an issue, and to ensure that section 11 of the Act is consistently implemented across Scotland.

1.13 The Committee agreed to close the petition^[43] on 27 June 2019 on the basis that the issues highlighted by it had been recognised by the Scottish Government. In particular by provisions in the Children (Scotland) Bill (now the 2020 Act), including the regulation of child contact centres.

1.14 The Consultation on Review of Part 1 of the Children (Scotland) Act 1995, which closed in September 2018, informed the 2020 Act. The consultation sought views on whether child contact centres should be regulated. The analysis^[44] of responses showed that 66% of respondents were in favour of regulation, 6% were not in favour and 28% gave no response. Respondents commonly felt that this was required to provide and maintain minimum and consistent standards across the country, and to ensure the safety of children. The current qualifications and training of staff was also questioned with some respondents highlighting that child contact centres often deal with challenging situations and vulnerable children, meaning regulation was needed.

Consultation

2.1 In preparing the consultation, the Scottish Government's Family Law Unit have worked with:

Within Scottish Government

• The Directorate for Children and Families
• Equalities Unit
• Justice Analytical Services
• Office of Chief Social Worker

2.2 The Scottish Government has also taken on board responses received to the 2018 consultation on the Review of the Children (Scotland) Act 1995^[45] and also the evidence received during the passage of the Children (Scotland) Bill through the Parliament^[46]. The Scottish Government also met with Relationships Scotland, Promoting Positive Contact and Inverclyde Family Contact Centre during the passage of the Bill to discuss the proposed regulations.

Public Consultation

2.3 This draft BRIA forms part of a public consultation which will run for 16 weeks. The Scottish Government will seek views from a range of organisations representing children, parents, grandparents, child contact service providers, victims of domestic abuse, lawyers, social care services, disabled people, and regulators/inspectors.

2.4 The 2020 Act gives the Scottish Ministers the power to make provision about regulation of child contact services. This provision is to be made in regulations. It can include minimum standards for the training of contact service provider staff and in relation to contact centre accommodation. The Financial Memorandum that accompanied the Children (Scotland) Bill set out a timetable for implementation of the child contact centre regulations^[47]. It is anticipated that the regime may be fully operational by April 2023.

2.5 The 2020 Act also gives the Scottish Ministers power to confer functions on the body appointed to oversee the regulations. These functions could include:

• Inspecting child contact centres, regulated contact service providers and contact services providers applying for registration;
• Issuing reports on the inspection of child contact centres, regulated contact service providers and contact service providers applying for registration; and
• Refusing to register contact service providers, and removing from the register regulated contact service providers who do not meet the minimum standards.

2.6 Under the 2020 Act there are requirements on courts and solicitors when making a referral to a child contact service that they must refer to a regulated service (see sections 10 and 11 of the 2020 Act). The 2020 Act also makes provision for appeal rights to be included in the regulations. The Scottish Government envisages that the provider would have the right to appeal the decision and this appeal would be made to the sheriff court.

2.7 The Care Inspectorate is the Scottish Government's preferred option for the regulatory role. We are engaging with the Care Inspectorate with a view to reaching agreement on its appointment in advance of the regulations establishing the minimum standards for child contact centres being laid before Parliament in early 2022.

2.8 The Scottish Government provided funding to the Care Inspectorate in 2019 to carry out a feasibility study on the proposed regulation of child contact centres. The Care Inspectorate published its feasibility study report in March 2020^[48]. The report includes a number of recommendations which the Scottish Government responded to as part of a response^[49] to the Justice Committee during Stage 1 of the Children (Scotland) Bill, now the Children (Scotland) Act 2020.

3. Options & Impact on Scottish Business

3.1. This section focuses on the key options that are considered in the consultation. The consultation document itself lists all the options we are considering.

3.2. There are 3 areas being considered in relation to the regulation of child contact services. These are:

• accommodation standards
• staff and volunteer training standards
• complaints process

Option 1 – do nothing

3.3. There is the option of maintaining the status quo and not introducing regulations to establish minimum standards and not appointing an independent person to oversee child contact service standards. This would mean that child contact services would not be subject to external regulation or regular inspections. The option of doing nothing would have no cost implications and also no impact on business, voluntary sector, public bodies or Scottish Government as it would be maintaining the status quo.

3.4. However, this option would not further protect children and others using the child contact centres and would not ensure a consistent standard of provision across Scotland.

Option 2 – lay regulations to establish minimum standards for accommodation and staff training in the proposed areas and appoint an independent person to oversee regulation of child contact services

3.5. The 2020 Act gives the Scottish Ministers the power to make regulations to establish minimum standards for accommodation and staff training for child contact services. The 2020 Act also gives the Scottish Ministers the power to appoint a person to oversee regulation.

3.6. The consultation considers the proposed areas the minimum standards may cover in terms of accommodation and staff training. The consultation also covers the proposed approach regarding monitoring the standards and the complaints process.

3.7. This option has significant financial implications, which are set out in the costs section below. If the standards were laid down in regulations this would also mean that any changes to the standards would require secondary legislation.

3.8. This option affects Relationships Scotland and their members and associate members who operate child contact services. It also affects the independent child contact centres.

3.9. This option also affects the person appointed to oversee the regulation of child contact services.

3.10. This option also has an impact on the courts who order contact at a child contact centre and who may be required to hear appeals on decisions to register or remove contact services and centres from the register. However, the number of appeals is expected to be relatively low given the size of the sector. This option also has an impact on solicitors referring clients to a child contact centre as such orders and referrals would only be able to be ordered at a regulated centre.

Option 3 - publish guidance for child contact services on the expected minimum standards for accommodation and staff training

3.11. There is the option of not introducing regulations to establish minimum standards and not appointing an independent person to oversee child contact service standards and relying instead on providing guidance to child contact services on what is expected in terms of standards.

3.12. This would mean that child contact services would not be subject to external regulation. This is likely to cause concern among stakeholders and individuals.

3.13. There would be concern as to how to ensure child contact services are complying with the guidance, since it would not have the same legal status as standards set by regulation.

3.14. There may be reduced costs given that any guidance would be advisory only and services may decide to opt out of certain recommendations in terms of what is expected for their premises and staff. There could also be reduced costs in relation to the requirement to appoint a regulator.

Sectors and groups affected

3.15. We consider the following groups or sectors will be affected by the options being considered:

• Children and young people
• Parents, carers or other family members in a child's life
• Child contact service providers
• Child contact service staff and volunteers
• The appointed regulatory person
• The Courts
• Family lawyers
• Organisations supporting parents, families and children
• Disabled child contact centre users
• Local authorities
• Scottish Courts and Tribunals Service

Benefits

Give details of all benefits associated with each option you are considering.

Option 1

3.16. The main benefit of option 1 is that doing nothing would have no cost implications and also no impact on business, voluntary sector, public bodies or Scottish Government as it would be maintaining the status quo.

Option 2

3.17. The main benefit of option 2 is that by establishing minimum standards for accommodation and staff training and appointing an independent person to oversee regulation all registered child contact services will be subject to appropriate standards that will apply consistently across the sector.

3.18. Regulation will ensure all child contact centres remain safe locations for children to have contact with a parent or other adult and that children will be protected where they are referred to a child contact centre.

3.19. Establishing minimum standards will help ensure the best interests of children remain at the centre of contact cases and that the best outcomes for children using child contact centres will be achieved.

3.20. Regulation will contribute to the following National Outcome:

We grow up loved, safe and respected so that we realise our full potential.

3.21. The aim is the proposed standards for child contact centres will contribute to this National Outcome by helping to ensure children grow up in an atmosphere of happiness, love and understanding, by supporting families when they need it, and ensuring children are not left worried or isolated.

Option 3

3.22. The main benefit of option 3 would be that setting out expected standards by guidance rather than regulation may reduce costs to service providers and in relation to the need to appoint a body to oversee the regulation of the providers. .

Costs

Give details of all costs (additional and savings) associated with each option you are considering.

3.23. The costs associated with regulating child contact services are set out in the Financial Memorandum which accompanied the Children (Scotland) Bill when it was introduced into the Scottish Parliament^[50]. This includes costs in relation to child contact centre providers and also in relation to the body appointed to oversee regulation.

3.24. It was estimated in the Financial Memorandum that the cost of regulation of child contact centres for providers could be between £0.76m and £2.52m in initial costs (2022-23) and £0.32m a year in ongoing costs. The costs for the body appointed to oversee regulation are estimated to be £0.49m in the first year (2022-23) and £0.43m a year subsequently in ongoing costs.

3.25. There may also be costs for child contact centre providers in relation to fees payable connection with the registration of a provider or contact centre. If the Care Inspectorate are appointed each child contact service registered would have to pay a registration fee as a one-off cost and an annual continuation fee^[51].

3.26. It is likely that some of the costs for the body appointed to oversee regulation could be off-set by any registration fees charged.

4. Scottish Firms Impact Assessment

4.1. To appreciate the impact that the proposed regulation may have on businesses operating in Scotland, the Scottish Government met with Relationships Scotland, Promoting Positive Contact and Inverclyde Family Contact Centre during the passage of the Children (Scotland) Bill to discuss the proposed regulations.

4.2. As part of this consultation process on the regulation of child contact services the Scottish Government will seek views from Relationships Scotland, whose network includes 11 member services and two associate members. These are all individual organisations operating child contact centres.

4.3. The Scottish Government will also seek views from the independent child contact services: Promoting Positive Contact, Inverclyde Family Contact Centre and VSA Child Contact Centre.

4.4. The Scottish Government will also seek views from the Care Inspectorate.

4.5. The Scottish Government recognises that there are significant costs associated with regulation. We will seek to ensure that minimum standards will not be disproportionately onerous and will consider what support can be made available to child contact providers in the lead up to the regulations coming into force to assist in meeting the standards.

5. Competition Assessment

5.1. We do not expect the options to have an impact on competition as they will not:

• Limit the number or range of suppliers.
• Limit the ability of suppliers to compete.
• Limit suppliers' incentives to compete vigorously.
• Limit the choice and information available to consumers.

5.2. We will seek to ensure that minimum standards will not be disproportionately onerous and will consider what support can be made available to child contact providers in the lead up to the regulations coming into force to assist in meeting the standards.

5.3. We would welcome any comments during the consultation as to whether any of the proposals would have an impact on competition.

6. Test run of business forms

6.1. We expect that new forms may need to be introduced for businesses as a result of regulations. It is envisaged that child contact providers will need to apply to the body appointed to oversee regulation in order to be registered as a regulated service. We expect that the body appointed will have 12 to 18 months lead-in time in advance of the standards coming into effect. A test run of any new forms with the services which will be using them could be carried out at that time to ensure that they are easy to use.

7. Legal Aid Impact Test

7.1. The proposed regulations will not give rise to increased use of legal processes or create new rights or responsibilities that would result in impacts on the legal aid fund.

7.2. Currently, any fees charged by child contact providers are met either through legal aid or privately by the individuals using the services^[52]. It is not envisaged that the proposed regulations will make any changes to the current regimes that providers have in place for fees and charges.

7.3. In terms of funding more widely, child contact services are currently funded through a variety of means including Scottish Government funding, grants from other bodies, charitable trusts and donations and fees and charges met either through legal aid or privately by individuals using the services. The proposed regulations will not make any changes to these funding arrangements.

7.4. However, as set out in paragraph 1.16 of the consultation the 2020 Act makes provision for Scottish Ministers to tender a contract for the operation of child contact services, which would put the funding of child contact centre services on a longer-term and sustainable footing

8. Enforcement, sanctions and monitoring

8.1. The body appointed to oversee child contact services regulation will be responsible for the inspection of contact centres and regulated contact service providers and those applying for registration, to ensure they meet the minimum standards.

8.2. It is expected that regulations appointing the body would be laid before Parliament in late 2021 and would come into force in early 2022. It is expected the regulations establishing the minimum standards would be laid before Parliament in early 2022 and that these would come fully into force in April 2023. This will mean that the person appointed would have 12 to 18 months lead-in time in advance of the standards fully coming into effect.

8.3. It is envisaged that one of the functions the body appointed to oversee child contact centre regulation will have will be to inspect child contact centres and providers to ensure they meet the required standards. It is expected that in advance of the regulatory regime commencing, initial inspections of all child contact services and centres seeking to be registered would be carried out by the appointed body. This would include a physical inspection of premises to ensure accommodation standards have been met and an assessment of whether staff and volunteers have received the training required under the standards for their particular roles.

8.4. Once a centre is registered, the regulatory body would carry out regular routine inspections. This would include physical inspections of premises and reviewing records on staff training and talking to managers and staff to ensure training standards are maintained. It is envisaged that routine inspections would be carried out on a three yearly basis, unless particular concerns regarding a child contact centre have been raised that prompt an ad hoc inspection during the three year period.

8.5. If an inspection identifies any failure to meet the minimum standards it is expected that the child contact centre provider will be given the opportunity to address this within an appropriate timeframe. Should a failure to meet those standards continue, the child contact service or centre could ultimately be removed from the register. This would mean that the courts and solicitors would not be permitted to make referrals to these child contact centre(s).

8.6. It is also intended that there will be an independent complaints mechanism. It is not envisaged that this will change the way complaints about a child contact service should be raised initially. If an individual is unhappy about the service they have received they would be encouraged to contact the child contact service provider in the first instance. If this does not resolve the issue, the service user could raise a formal complaint with the provider, following the appropriate complaints process. If following the outcome of the investigation of the complaint, the service user remains dissatisfied they could raise their complaint with the person appointed to oversee regulation.

8.7. Should the Care Inspectorate be appointed as the regulator any complaint about a registered child contact centre service could be made to them directly. However, we understand that the Care Inspectorate would encourage anyone wishing to complain about a registered service to first of all raise any concerns with the service itself, as outlined above. The Care Inspectorate have a statutory duty to deal with complaints made to it about the registered services it regulates.

8.8. If after raising the complaint with the Care Inspectorate, the service user is unhappy with the way in which it dealt with the complaint, they could ask the Scottish Public Services Ombudsman (SPSO) to look into the complaint handling.

8.9. If a service user wished to complain about a specific individual working in a child contact centre, the Scottish Government would expect that this would be dealt with under the child contact centre provider's own complaints process.

8.10. On the basis that the regulatory body would be responsible for regulating service providers and ensuring they deliver services in compliance with the minimum standards, the Scottish Government does not consider that the regulator would investigate individuals working at child contact centres, other than to ensure that standards of staff training are met. This is in line with the Care Inspectorate's position currently regarding its regulatory function for registered care services.

8.11. Any complaint regarding the conduct of an individual member of child contact centre staff or a volunteer would be dealt with under the child contact centre provider's complaints process.

8.12. Following the outcome of a complaint to the regulatory body, and where there is evidence of failings under the regulations, the Scottish Government expects the action available to the regulatory body would be to recommend improvements: for example, more staff training or improved good practice guidance for staff. The ultimate sanction would be to remove the child contact service from the register.

8.13. The 2020 Act also makes provision for appeal rights to be included in the regulations. The Scottish Government envisages that the provider would have the right to appeal the decision and this appeal would be made to the sheriff court.

8.14. The 2020 Act also provides that the functions conferred on the person appointed to oversee regulation may include issuing reports on any failure, or possible failure, by a contact service provider to comply with the provider's duties under the Equality Act 2010 (the 2010 Act), and in particular any duty to make reasonable adjustments to premises in order to facilitate their use by disabled people.

8.15. The body responsible for regulating the 2010 Act is the Equality and Human Rights Commission (EHRC). Their regulatory work includes monitoring, enforcing and promoting compliance with the duty. In its regulatory role the EHRC has a range of powers.

8.16. The 2020 Act does not enable regulations to be made requiring child contact providers to make reasonable adjustments, since this is already a requirement under the 2010 Act, which is generally a reserved matter for Westminster.

8.17. If the body appointed to oversee child contact centre regulation becomes aware of a failure, or possible failure, at a child contact centre in terms of the existing duties to make reasonable adjustments for disabled people, the body can report publicly on this, for example, by publishing the report on its website. It would also be open to the body to formally ask the EHRC to consider enforcement.

9. Implementation and delivery plan

9.1. The consultation will influence the Scottish Government's decisions about next steps and the content of the regulations. This BRIA will be finalised for the regulations, taking account of points made by consultees. The final version of the BRIA will be published on the Scottish Government website.

9.2. It is envisaged that the regulations will take time to commence. The Scottish Government expects the regulations appointing the body to oversee regulation will be laid before Parliament in late 2021 and come into force in early 2022. It is hoped that regulations will be laid before Parliament prescribing the minimum standards in early 2022 and come into force in April 2023. This will mean the person appointed will have 12 to 18 months lead-in time before the standards come into effect from April 2023.

Post-implementation review

9.3. The Scottish Government will review the legislation to ensure that it is still fit for purpose within 10 years of enactment.

10. Summary and recommendation

10.1. The Scottish Government's preferred option and proposed approach in the consultation is option 2, setting by regulations minimum standards for accommodation and staff training for child contact services.

10.2. The Scottish Government are seeking views on the areas that the standards should cover and approaches for monitoring and complaints. This section will be completed in the final BRIA when we have considered the responses from this consultation.

10.3. The estimated financial costs of regulating child contact services and the ongoing costs are set out in the Financial Memorandum which accompanied the Children (Scotland) Bill when it was introduced into the Scottish Parliament^[53]. These are summarised at paragraph 3.24 of this draft BRIA.