Civil Partnership (Scotland) Bill: child rights and wellbeing impact assessment

CRWIA Stage 2
The CRWIA - key questions

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

Article 11

1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

The Civil Partnership (Scotland) Bill will create the offence of forced civil partnership. The package of secondary legislation that will follow the Bill will include an order that will extend existing civil measures on forced marriage to civil partnership and establish forced civil partnership protection orders.

A forced relationship could involve the illicit transfer or non-return of a child to another jurisdiction.

The extension of existing measures on forced marriage to civil partnership promotes the principles of the Council of Europe Convention on preventing and combating violence against women and domestic violence (also known as the Istanbul Convention). Article 37 of this Convention requires signatories to take steps to criminalise forced marriages.

The full text of the Convention is available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168046031c

Article 18.1.

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests
of the child will be their basic concern.

This is relevant in the context of the presumption about parentage, which is being extended to men in a civil partnership with the mother of the child at any time between conception and birth. The Bill also provides that a father in a civil partnership with the mother at the time of the child’s conception or subsequently obtains parental responsibilities and rights. This relates to children, and to parents who fall into the category of children in the context of the UNCRC because they are under 18 years old.

Article 19.1

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

As stated above, the Bill will make provisions on forced civil partnership. The Scottish Government’s view is that forced civil partnership, like forced marriage, may involve physical violence, or physical and mental coercion.

Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.

Provisions on forced civil partnership will protect those who cannot consent to enter into a civil partnership because they lack capacity.

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

Generally, the Bill will have a positive impact on children’s rights.

There is one area where the extension of civil partnership to mixed sex couples could create a loophole in the law: this relates to forced civil partnerships. However, it is possible that activity in this area could be displaced rather than additional – i.e. instead of forcing people into marriage perpetrators might force them into civil partnership instead.

Forced marriage statistics https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/804044/Forced_Marriage_Unit_Statistics_2018_FINAL.pdf. indicate that women are more at risk of being forced into a marriage than a man: around 75% of the victims of forced marriages supported by the Forced Marriage Unit in 2018 were women.

The extension of civil partnership to mixed sex couples could create a loophole in that law. However, the Bill will create a deterrent to forced civil partnership by establishing the offence of forced civil partnership. Secondary legislation to follow will provide a further deterrent by extending the existing civil measure on forced marriage to forced civil partnership. The Scottish Government’s view is that the loophole in the law that will result from the extension of civil partnership to mixed sex couples can be closed by the criminal and civil measures being put in place.

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

The Bill will have an impact on the following groups of children/young people:

• People aged 16 and 17 who wish to enter a mixed sex civil partnership.
• The children of parents in a mixed sex civil partnership.
• Young women and girls may be more affected by the provisions on forced civil partnership: FMU statistics indicate that, where the sex of a victim of forced marriage in known, the majority (75%) are female.
• Young people who cannot consent to a legally recognised relationship will also be affected, as the provisions on forced civil partnership will cover people who cannot consent to enter into a civil partnership due to lack of capacity.

The Scottish Government has not identified any competing interests between children and young people, or children and young people and other groups that result from this Bill.

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?

The Scottish Government has identified that the introduction of mixed sex civil partnership may create a loophole in the law.

However, the Bill will seek to close that loophole by establishing the offence of forced civil partnership. Secondary legislation to follow will consolidate this by extending the existing civil measure on forced marriage to forced civil partnership. The Scottish Government’s view is that the loophole can be closed by the criminal and civil measures being put in place.

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

The Bill will contribute to the wellbeing of children and young people in Scotland in the following ways.

For the children of people in a mixed sex civil partnership, their parents will benefit from the legal rights and responsibilities that flow from entering into a legally recognised relationship, including parental responsibilities and rights. However, there is evidence that stability is more important than family structure when children grow up

For young people, the creation of the offence of forced civil partnership should create a deterrent and help protect them.

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

The Bill will further the implementation of the UNCRC in Scotland in the following ways:

• Through the creation of the offence of forced civil partnership (and through secondary legislation that will create civil measures on forced civil partnership), create deterrents against:
  • physical and mental violence and abuse.
  • The illicit transfer or non-return from overseas of a child
  • Moves to prevent a young person who lacks capacity from enjoying a full life with their dignity safeguarded.

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

The Scottish Government consulted in 2018 on the future of civil partnership in Scotland (see section 9 below).

Statistics on forced marriage have been published by the Forced Marriage Unit at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/804044/Forced_Marriage_Unit_Statistics_2018_FINAL.pdf.

NRS has published statistics on the number of civil partnerships and marriages entered into in Scotland each year at https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/marriages-and-civil-partnerships/marriages-and-civil-partnership-time-series-data.

Information about the implications of family structure for wellbeing is included in (Mountney, K. (2011) https://www.parentingacrossscotland.org/media/1217/about-families-report-2-together-and-apart.pdf, p1 and p11 and Sweeting, H. and Wight, D. (2014) https://dera.ioe.ac.uk/20296/1/00452548_Redacted.pdf para. 4.9.

8. Have you consulted with relevant stakeholders?

The Scottish Government consulted in 2018 on the future of civil partnership in Scotland.

The consultation is available at https://consult.gov.scot/family-law/the-future-of-civil-partnership-in-scotland/

An analysis of the consultation responses is at https://www.gov.scot/publications/future-civil-partnership-scotland-analysis-consultation-responses/

The Scottish Government’s response to the consultation is at https://www2.gov.scot/Topics/Justice/law/17867/civil-partnership-in-scotland/future-of-civil-partnership-gov-response

The Scottish Government has published responses where we were given permission to do so at https://consult.gov.scot/family-law/the-future-of-civil-partnership-in-scotland/consultation/published_select_respondent

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

The public consultations were open to all.

In their consultation response LGBT Youth expressed their support the extension of civil partnership to mixed sex couples. https://consult.gov.scot/family-law/the-future-of-civil-partnership-in-scotland/consultation/view_respondent?show_all_questions=0&sort=submitted&order=ascending&_q__text=lgbt+youth&uuId=501277857. The response referred to scoping studies it conducted on civil partnership in 2015 and 2018. In 2015, 100% of respondents agreed that civil partnership should be extended to mixed sex couples. In 2018, 95% of those surveyed agreed with extension. In the 2018 survey, some of those who responded expressed concerns about being outed should it become known that they are in a civil partnership.