Coronavirus (Recovery and Reform) (Scotland) Bill: child rights and wellbeing impact assessment

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

Modifications of the Public Health etc. (Scotland) Act 2008

As this section of the Bill contains only enabling powers, the provisions themselves have no immediate impact on children and young people; any such impact would come at the point of regulations being made under the powers contained in the Bill. Any impact on children and young people would be dependent on the nature of the intervention being considered and would therefore not be known until the regulations are being planned and drafted.

The content of any regulations laid using these new public health protection powers will depend on the nature of the threat faced; the actions required to control it; and the potential consequences of failing to mount an effective response.

Although a future public health threat may significantly differ from Covid, the pandemic does provide an illustrative example of how regulations can impact children, and how they were adapted over time to respond to emerging evidence and mitigate harms on children wherever possible.

The public health measures introduced to combat Covid had a significant impact on children and young people, for example in their ability to socialise or receive the care and support of extended family. However, as the nature of the public health threat became clearer, particularly that the risk to children from infection was considerably lower than for adults, restrictions were tailored to account for this: as examples, children and young people were permitted to participate in organised indoor activities and play team sports earlier than adults, and, for those under 12, the need for physical distancing was removed entirely. This tiered approach to restrictions for children and adults was designed to strike a balance between the on-going need to protect the public from a serious health threat while, as far as possible, minimising the impacts on children.

Insofar as possible when making regulations under these provisions for any purpose, a similar approach should be followed and the content of the regulations should be informed by specific consideration of the impacts of both the public health threat and measures to respond on children and young people. While acknowledging that responding in emergency situations may make it difficult to produce impact assessments alongside new regulations, this should be done wherever possible, and where this cannot be achieved, they should be provided as soon as practicable thereafter.

There is also a review period built into the provisions – requiring that where regulations are made which impose or enable the imposition of restrictions and/or requirements the Scottish Ministers review the necessity of those regulations on a three-week cycle. This will ensure regular consideration of the impacts of restrictions and requirements which are imposed on children and young people and should account for increased understanding of either the nature of the public health risk or the effects of protective measures.

Arrangements for vaccination and immunisation

It is anticipated that the policy would have a positive impact on children and young people as it removes a barrier to the most efficient arrangement of vaccination programmes.

Educational establishments etc.

Impact assessments have been undertaken during the Covid pandemic to accompany the activity of the Covid Education Recovery Group, and to inform and coordinate the response.

As per Modifications of the Public Health etc. (Scotland) Act 2008, this section of the Bill contains only enabling powers, the provisions themselves have no immediate impact on children and young people per the children's rights and wellbeing impact assessment for the reducing risks in schools guidance for back to school arrangements; any such impact would come at the point of regulations being made under the powers contained in the Bill. While it is more challenging at this stage to identify potential impacts of regulations in relation to the public health powers (as it is impossible to predict which protective measures would be required for a future public health threat), and although it is not possible to predict the nature of a future health emergency or pandemic and what effects that would have on educational provision, it is not unreasonable to assume it could involve use of restrictions similar to those used during Covid and therefore the potential impact of future regulations can be explored further.

Future regulations could affect children and young people in Scotland who attend schools (i.e. public, grant-aided and independent schools), early learning and childcare settings, out of school care settings, and higher education and further education institutions. They are generally between 0 and 18 years of age (and up to 25 for care experienced young people).

Therefore, future regulations could impact the rights of all children and young people, anyone attending an educational establishment, their families and staff that work in these educational establishments, and wider communities where local schools or settings are a hub for community activities. These impacts would need to be balanced against any intended positive impact on the health of children (e.g. during the Covid pandemic, safety guidance for childcare services generally helped to keep the transmission within settings low).

It is likely that not all types of educational establishment will be affected at the same time or in the same way and this will depend on the nature of a future health emergency. Therefore, the impacts, direct and indirect, are hard to predict. It is the case however that the overarching purpose of the powers is to put in place mitigating measures in the event of a major public health emergency, e.g. measures to prevent the spread of infection and therefore those subject to its provisions will, along with wider society, benefit from this policy. A primary purpose is also continuity of education as far as is possible during a future public health threat, which should also be of benefit as a focus in terms of mitigating against potential harms.

Taking the experience of the Covid pandemic as indicative of the likely impacts on children and young people of a similar health emergency in the future, there are likely to be significant positive and negative, direct and indirect impacts, were regulations to be introduced. Most impacts will flow from any mitigations that involve the provision of education at home rather than in-person, which has been seen to have a direct impact on mental health, and educational progress. There may also be indirect impacts on the children or dependants of parents who work in educational settings (and the children of students in further or higher education settings) who may also have switched to working from home and with the family facing disruption as a result or in some cases economic hardship. However, there may equally be some benefits for these children (depending on individual circumstances) due to increased contact time with parents and carers.

From a further and higher education perspective, other measures intended to protect the health and wellbeing of students in the event of a future pandemic (such as requiring institutions to have regard to the safety advised by the Chief Medical Officer e.g. with regard to ventilation or physical distancing) will be of benefit to these students. The same can be said for the requirement under the Bill for providers of student accommodation to meet an acceptable standard of care to occupants, in the event of their being required to self-isolate.

Impact of the Covid pandemic to date

Schools

It is recognised that the public health measures to control the transmission of Covid, such as school closures, strict self-isolation of close contacts of Covid-positive individuals, and restrictions on movement and physical contact with family and friends, are likely to have significantly changed young people's experience of education, impacting upon their learning and development, relationships with peer groups and family, and their mental health and wellbeing.

Negative impacts include:

• Inconsistent attendance at school which could impact on protecting the implementation of the child's right to non-discrimination (UNCRC 2), education (UNCRC 28), the right to mental health services (UNCRC 24), and disability support (UNCRC 23);
• A lack of continued full-time in-school learning could negatively impact on child wellbeing by disrupting their connection and association with peer groups (UNCRC 15), their ability to safely engage in leisure, play and culture (UNCRC 31) and in some cases mean they have reduced access to a safe and nurturing environment where children they are respected, included and supported to achieve their full potential (UNCRC 6, 29);
• Whilst there are negative impacts linked to even a small interruption to in-person learning at school, it is outweighed by the potential health impact of not following self-isolation guidelines;
• School closures can also close off a critical avenue of help and support to child victims in their pathway to recovery, rehabilitation and reintegration into society (UNCRC 39) via the child protection measures which exist within school settings;
• Risks also arise from changes to mitigations - either by being increased or eased as necessary due to the prevalence of the virus – which can affect those children and young people who have become accustomed to particular mitigations and feel anxiety and confusion in response to changes. Schools will play a key role in communicating changes in mitigating measures to pupils, and should provide reassurance to pupils where appropriate;
• Schools closures also negatively affect children and young people who are sitting national qualifications whose schooling is interrupted, and particularly for children and young people who experience disadvantage and poverty, learning opportunities have been prevented during remote learning as they may have restricted access to technology and/or other support for their learning.

Regulated childcare

It is recognised that the public health measures to control the transmission of Covid, such as restriction of access to early learning and childcare (ELC) and out of school care settings, strict self-isolation of close contacts of Covid-positive individuals, and restrictions on movement and physical contact with family and friends, are likely to have significantly changed children's experience of regulated childcare, impacting upon their learning and development, relationships with peer groups and family and their mental health and wellbeing.

Key findings of the impact of the Covid pandemic on young children (age 0-5) includes impacts in the following areas:

Children's development

• Public Health Scotland evidence on the wider impacts of Covid on the health care system shows a rise in the number and proportion of young children for whom there was a concern identified about their development over the period of the Covid pandemic (comparing data collected during 2021 with pre-pandemic data)(UNCRC 6);
• An increase in social/emotional difficulties has also been found among 2-3 year old children in research on the impact of Covid on children and young people (2-4 year olds);
• In research on the experiences of vulnerable children, young people, and parents, parents in the perinatal period felt particularly affected by the lack of social interaction for their children, who had lived all or most of their life during the pandemic (UNCRC 15);
• Research in the COVID-19 Early years resilience and impact survey ("CEYRIS") has shown a decline in behaviour among ELC-aged children during the pandemic, including in relation to mood and concentration.

• Parents reported in the CEYRIS2 survey that the pandemic has negatively impacted their child's speech and language development. (UNCRC 6)

Wider impacts of the pandemic which may also affect children have been considered and include impacts on themes such as:

Decline in family resilience

• Parents of children aged 2-7 had a poor wellbeing score as measured by the Short Warwick and Edinburgh Mental Well-Being Scale in both of the first two rounds of the CEYRIS survey, and over 80% felt the pandemic had affected their mental health;
• Research suggests that family wellbeing was impacted during the pandemic, with 48% of respondents to a 2021 Buttle UK survey on child poverty saying that family mental illness was 'a lot more severe';
• An association has been shown between parental and children's wellbeing (UNCRC 19, 24 and 39).

Exposure to domestic abuse

• It is likely that more children have suffered domestic abuse over the periods of lockdown as evidenced in a 2020 report on the impact of Covid restrictions on people experiencing domestic abuse and other forms of violence against women/girls (UNCRC 19, 24, 34 and 39);
• UK-wide data on the impact of Covid on child welfare indicates that the conditions created by the pandemic have led to more stress and physical conflict in some families, and the stay-at-home rules prevented children from leaving home and escaping from physical abuse.

Poverty and deprivation

• Qualitative research on the experiences of vulnerable children, young people, and parents during the Covid pandemic found that many families experienced increased financial difficulties, which heightened anxiety and stress in the home;
• The CEYRIS 1 survey also found that household income had reduced because of lockdown for 44% of children (35% in CEYRIS 2). Of those who stated that their household income had reduced as a result of the pandemic: 11% indicated that they had been unable to buy enough food; 14% indicated that they had been unable to pay for childcare; 20% indicated that they had been unable to pay credit card bills; 14% indicated that they had been unable to pay rent or mortgage; and 19% had been unable to pay household bills (UNCRC 18).

Worsening of Adverse Childhood Experiences (ACEs)

• Buttle UK research with support workers reported that they perceived that all ACEs had been made worse by Covid. Reported reasons for this included a lack of access to support, both through informal networks (i.e. family and friends) and formal support services, a lack of respite for parents, reduced time in education (meaning that the issues that education institutions often monitored have not been picked up) and decreased levels of exercise, poor diets and increased isolation (UNCRC 19, 24, 34 and 39);
• In CEYRIS 1 parents and carers of 5.5% of children reported concerns about their own or someone else in the household's alcohol use.

Positive impacts of the Covid pandemic on young children that have been highlighted by research include:

Improvement in imaginative play

• CEYRIS 1 and 2 found that almost half of respondents rated their child's imaginative play as better than before lockdown (UNCRC 31);
• 45% of respondents indicated that their children spent more time outdoors than before lockdown (CEYRIS 1).

Meaningful interactions in the family environment

• Many parents felt that lockdown had enabled them to maintain good relationships with their children in research on the impact of Covid on children and young people (2-4 year olds); (UNCRC 16).

Increase in physical activity following the initial downturn at the start of lockdown

• While there were some reports of reduced physical activity in the initial lockdown (see CEYRIS 1), this improved as the pandemic went on (see CEYRIS 2), and evidence suggests children have largely remained active in lockdown (UNCRC 24 and 31).

Further and higher education

A relatively low proportion of the student population who were affected by these measures fall into the scope of this impact assessment. Information provided by the Higher Education Statistics Agency indicates that in academic year 2019-20, out of Scotland's 260,490 students in the higher education sector, 32,530 students were aged under 18 (95 of whom were aged under 16). For the same period, information provided by the Scottish Funding Council indicates that of Scotland's 302,092 students in the further education sector, 86,818 students were aged under 18 (44,651 of whom were aged under 16).

Information provided by the Scottish Funding Council indicates that in academic year 2019-20, 6,162 further education students aged up to 24 and 678 higher education students aged up to 24 were care-experienced. It might be that for these students, the impact of Covid restrictions on their wellbeing might have been exacerbated by adverse life experiences they faced earlier in life (UNCRC 3, 6, 39).

In addition to children and young people who attend colleges as full-time students, there are school pupils who attend college as part of school-link participation programmes, in order to study subjects or obtain qualifications that may not be available at school. In academic year 2019-20, out of the 60,219 students who participated in school-link participation programmes 59,503 were aged under 18 (42,061 of whom were aged under 16). These pupils, many of whom will be studying for qualifications in practical subjects, will have been impacted by both the closure of schools during the Covid pandemic and the restrictions on in-person learning and teaching in place for colleges and universities (UNCRC 3, 28, 29).

There are likely to have been impacts on the children and dependants on staff and students whom have been required Covid restrictions to work or study at home. There is no evidence to suggest what impact these circumstances have on these children but it is likely to have varied from positive to negative, depending on their specific circumstances (UNCRC 3, 5).

Information provided by the Higher Education Statistics Agency indicates that in academic year 2019-20, out of Scotland's 260,490 students in the higher education sector, 28,330 had young people children as dependants (this included 120 16-18 year olds with dependants). Information provided by the Scottish Funding Council indicates that in the further education sector, 6.310 students had children or dependants under the age of 18.

There may also be similarly negative impacts on the Community Learning and Development sector (UNCRC 28, 29, 31). A report published by Youthlink Scotland in October 2021, from their 'Access to Facilities' survey does not specifically reference colleges but covers all possible youth work setting (of which colleges may be part). It states that 'only 54% of youth work have access to the facilities they need.'

Information about the impact of recent Covid restrictions on children and young people has been collated by the Scottish Government's Coronavirus (COVID-19): Advisory Sub-Group on Universities and Colleges which considered how public health and related scientific advice can be applied to operational implementation.

The meeting papers of the Group can be found on the Scottish Government's website and include deliberations about how the Four Harms of Covid may have impacted on young people.^[1]

The Group considered an evidence paper published by University College London on 'mitigating the impacts of COVID-19 on higher education'. This rapid review assesses the published research evidence on what is currently known about the nature of the harms associated with the Covid pandemic on higher education institutions in the UK. It focuses on teaching, learning and research in universities and their connections with the communities they serve. Thirty-eight studies of harms associated with higher education are included in the review, documenting a deepening of inequalities associated with access and participation, harms associated with mental health and wellbeing, alterations in learning and teaching, disrupted research agendas, difficulties in planning and management, and anxieties about future work prospects. There are indications of concern at increased levels of gender-based violence, although no substantial data on this theme (UNCRC 3, 6, 24, 28, 29, 31).

Universities Scotland have also submitted evidence to the Scottish Government's Coronavirus (COVID-19): Advisory Sub-Group on Universities and Colleges, citing a number of negative impacts on the learning of Scottish university students, such as:

• Social skills deficits, especially in younger students (e.g., those aged 14-16 when the pandemic started), both in social settings and in learning (UNCRC 3, 6, 29);
• Some students starting to disengage with online learning (UNCRC 28, 29);
• More placements now but have lost some of these learning opportunities (UNCRC 28, 29);
• Need to make up practical skills (e.g., wet labs) for some students to avoid employability issues longer term (UNCRC 3, 6).

The group also met with the National Union of Students and other student representatives, during which they expressed the below concerns:

• Students on practical courses were significantly impacted by the pandemic. There is particular concern for students requiring placements to complete their studies. Institutions are prioritising these students for in-person learning (UNCRC 3, 6, 28, 29);
• Students who are not on practical courses are being disadvantaged and are receiving less in-person teaching and socialising (UNCRC 6, 28, 29);
• Students are demanding more in-person teaching and on campus socialising e.g. a poll of over 400 Strathclyde university students showed that 75% want more in-person teaching. The pandemic demonstrated that many elements of university courses can be delivered online;
• College and university students are confused about Covid rules. Some students are anxious about breaking restrictions due to guidance changes during the course of the pandemic. The difference between Covid rules in high schools and on college campus is exacerbating this confusion (UNCRC 24);
• The pandemic has been isolating for many students leading to fewer developed friendships. Social reintegration of students on campus for in-person learning and socialising is challenging. This is damaging the social development of many younger adults. Some college students are not getting opportunities to question lecturers or peers through online learning and are missing out on social skill development necessary for university and employment. This is affecting student mental health (UNCRC 3,6);
• On a more positive note, the pandemic demonstrated that many elements of university courses can be delivered online (UNCRC 28, 29).

It is not possible to measure the proportion of students who would fall within the scope of this impact assessment that were consulted in gathering this evidence.

In addition, the Mental Health Foundation published the Thriving Learners study, which aims to gain understanding of the mental health and wellbeing of learners, on 18 November. This first stage of the study focussed on higher education students, with a focus on further education students to follow. The majority of respondents to the survey felt that the pandemic had had an impact on their experience of university life: over four-fifths (82.8%) felt that they had not benefitted from the full student experience due to the pandemic and nearly four-fifths (78.6%) felt that the pandemic had negatively impacted their studies (UNCRC 3, 6, 28, 29). Respondents were also asked questions about their general health and exercise levels. The mean of respondents sits within the 'Low' wellbeing level compared with national mean sitting within the 'Moderate' wellbeing level (UNCRC 3,6).

This further illustrates the impact that recent Covid restrictions have had on the quality of their learning experience. Should Ministers decide to use their powers under this legislation, it is possible that this negative impact on mental health and wellbeing could be exacerbated, particularly during prolonged periods of online only learning or restricted access to campus or student accommodation. If powers are used to restrict access to campus, it is also possible that students will be restricted in their access to in-person support (such as in-person counselling or student welfare advisers). Students may therefore have to rely on virtual support (UNCRC 3,6, 24).

The Scottish Government is committed to developing a Student Mental Health Action Plan. The findings of the Thriving Learners Survey, together with evaluation evidence and consultation with stakeholders will help inform that.

School consultations

The Schools (Consultation) (Scotland) Act 2010 ("the 2010 Act") sets out the process by which local authorities must consult with local communities about important changes to the schools system in their area. Key among those to be consulted are children and young people. The statutory guidance that underpins the 2010 Act sets out that pupils must be consulted in so far as the authority considers them to be of suitable age and maturity (for example, in relation to closure proposals, in terms of schedule 2, paragraph 1(d)). The guidance also states that local authorities should be aware of Article 12 of the UNCRC which gives a child the right to express a view on matters that affect his or her life and to have that view taken into account, and to consult children and young people wherever possible. The focus should be on where children and young people do have capacity and where decisions are of interest to them – some proposals will be technical or of little interest to some categories and ages of pupil. The 2010 Act therefore requires the views of children and young people to be sought and taken into account on an equal basis to other statutory consultees and there is a clear expectation that authorities will make all reasonable efforts to ensure that the greatest number of children and young people are meaningfully consulted, in ways that are appropriate to their age and maturity. This may be at public meetings, but there are also many other opportunities during the consultation process where children and young people can express their views.

Permitting wholly virtual public meetings in relation to 2010 Act consultation activity will therefore directly impact on pupils and their families who are affected by the proposals being consulted upon and arrangements as described above. Children and young people have a direct interest in participating in and/or the overall process and outcome of consultations as relevant in their local area.

The ability to access meetings virtually may have a positive impact in terms of overall access for children who want to take part in these meetings and have their opinions heard, for example in terms of travel. There are also potential positive benefits in terms of health and limiting any wider transmission by allowing these meetings to be fully virtual. There may be a negative impact for any children who have less reliable access to digital devices, or disabilities that mean that virtual engagement is more difficult.

The intention is also that allowing fully virtual meetings when this is necessary and proportionate for or in connection with the protection of public health would reduce any unnecessary delays in these local consultation processes. This may have wider benefits in terms of minimising delays to making significant improvements to local provision of education which in turn will have educational benefits for children.

Requirements of writing

It is anticipated that the policy would have a neutral impact on children and young people. The provision simply allows the relevant legal professionals to adopt alternative appropriate means of providing the legal services set out, for example by way of live video connection. Although children and young people may not have access to the internet or unlimited access which would allow them to engage fully with this policy, they will still have the opportunity to access legal services in the usual manner, which is not being removed/replaced by this policy.

Custody at police stations

It is anticipated that the policy would have a neutral impact on children and young people. These provisions will only impact on young people who are held in custody for an appearance before court within a police station. The impacts are similar to those experienced by adults and these provisions help ensure that right to liberty is protected (in line with Article 5 of the ECHR). Similarly, detention in a police station following arrest would engage Article 37 (b) and (d) of the UNCRC. The provisions do not change the substantive rules or time limits regarding this. The provisions only change the location in which Prisoner Custody Officers can carry out their functions. The functions which they perform in relation to virtual courts correspond to those they have long performed in relation to physical court appearances.

The fundamental principle around the right to liberty and access to justice has been applied when considering the development of these provisions and the impact on all court users of delays in proceedings if remote custody courts are not supported by Prisoner Custody Officers.

Registration of births

It is anticipated that the policy would have a positive impact on children and young people. The obligation on informants (e.g. parents) to register the birth of their child within 21 days will remain. The introduction of remote birth registration will allow some informants to provide information to the registrar by the use of IT or phone so the birth can be registered. This may prove helpful to parents, including parents aged under 18, at what is likely to be a busy period after the birth of their child. This may make it easier for births to be registered.

In-person birth registration will remain available across Scotland.

Registration of deaths

It is anticipated that the policy would have a positive impact on children and young people. The obligation on informants to register a death within 8 days will remain. The introduction of the permanent option of remote death registration for local authorities will allow some informants to provide information to the registrar by use of telephony or supporting IT so the death can be registered, and aspects of identity permanently preserved. This may prove helpful to informants, including parents of a child who has died, at what is likely to be a very challenging period. This may make it easier for deaths to be registered flexibly, and minimising inconvenience and expense.

In-person death registration will also remain available across Scotland.

Bankruptcy: meaning of "qualified creditor" and "qualified creditors"

The costs of problem debt are felt strongly by families. StepChange, a debt advice agency, suggest that 90% of parents in problem debt cut back on essential items for their children to help them keep up with their debts. They also suggest that families in problem debt are twice as likely to argue about money than families in general, contributing to relationship strain and family breakdown. These problems are not limited to parents. Amongst children from families in problem debt, StepChange found that 60% often worried about their families' finances.

The measure to increase the minimum debt threshold that allows creditors to petition the court for bankruptcy of a debtor, will have indirect benefit to those children and young people living in households facing the burden of unsustainable debt. This indirect benefit arises from the enhanced protection being provided by this measure, affording further opportunity for families to seek help and find an appropriate solution which will provide a fresh start.

Legal aid and advice: Claim for interim payment of fees and outlays

If parliamentary assent is given for permanence, these measures should have a positive effect on children and young people. The objective is to protect current legally aided advice provision and to secure those services going forward. Sustained or increased diversity in the legal aid system benefits all groups including children.

Mental health: removal of need for witnessing of signature of nominated person

This provision does not apply to those under 16. The change continues to be compliant with human rights obligations as the provision ensures that patients still have the ability to choose their own named person, should they wish to do so, while minimising any delays in the process of nomination and acceptance.

This approach continues to respect the patient's rights and allows services to be delivered effectively.

The change only affects the process for the nominee as there will no longer be a requirement for them to have a "prescribed person" witness their signature, should they choose to become a named person.

By removing a layer of bureaucracy which has no safeguarding role this will continue to ensure that a patient who is over 16, still has the ability to choose their own representation, while providing for a named person to act for the patient. It is expected to continue helping reduce any delays in having the patient involved in their care and treatment decisions. This approach continues to respect the patient's rights and allows services to be delivered effectively.

Removal of mandatory eviction grounds and Pre-action protocol in respect of evictions relating to rent arrears

These policies are likely to have a positive effect on children and young people. Feedback from advice agencies and family support organisations to the consultation on the Bill has suggested that the policies will help to support vulnerable families and tenants.

Over recent years the private rented sector has seen an increasing number of families calling it home. Based on Scottish Household Survey ("SHS") data there are an estimated 70,000 family households out of 340,000 in the private rented sector in Scotland. 'Families' are assumed to include large family, small family and single parent household categories of the SHS.

SHS data also highlights that, 11% of social rented households were single parent families, 9% were small families and 5% were large families. These are broadly similar to that of the private rented sector. Many of these family households will be significantly impacted by the Covid pandemic, therefore these policies being taken forward to help protect renters are highly likely to have a positive impact on both children and young people residing within these rented family homes.

Should these policies not be continued, many families with children may face being evicted from their rented properties, this would therefore significantly increase the chances of households becoming homeless. Therefore not taking forward this temporary legislative action would likely have a detrimental impact on children's and young people's rights.