Coronavirus (Scotland) (No. 2) Bill: child rights and wellbeing impact assessment

CRWIA Stage 2: The CRWIA – key questions

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

List all relevant Articles of the UNCRC and Optional Protocols.

All UNCRC rights are underpinned by the four general principles: non-discrimination; the best interests of the child; the right to life, survival and development; and the child's right to have their views given due weight.

The following Articles of the UNCRC and Optional Protocols are relevant to the measures in the Bill:

Article 1 of the UNCRC defines a child as every human being below the age of 18.

Article 2 (Non-discrimination) - Children should not be discriminated against in the enjoyment of their rights. No child should be discriminated against because of the situation or status of their parent/carer(s).

Article 3 - Best interests of the child - Every decision and action taken relating to a child must be in their best interests. Governments must take all appropriate legislative and administrative measures to ensure that children have the protection and care necessary for their wellbeing - and that the institutions, services and facilities responsible for their care and protection conform with established standards.

Article 4 - Protection of rights - Governments should undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the UNCRC. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of the available resources.

Article 5 - Parental guidance and a child's evolving capacities - Governments must respect the rights, responsibilities and duties of parents and carers, as well as members of the extended family, to direct and guide the child in the exercise of their rights.

Article 9 - Separation from parents - A child should not be separated from his or her parents against their will, unless such a separation is in their best interests. In any related proceedings, all interested parties shall be given an opportunity to participate and make their views known.

A child who is separated from one or both parents has the right to maintain direct and regular contact with both parents, unless this is contrary to the child's best interests.

Article 12 - Respect for the views of the child - Every child has a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body.

Article 13 - Freedom of expression - Every child must be free to say what they think and to seek, receive and share information, as long as the information is not damaging to themselves or others.

Article 15 - Freedom of association - Every child has the right to freedom of assembly: to meet with other children, and to join groups and organisations, as long as it does not stop others from enjoying their rights.

Article 18 - Parental responsibilities and state assistance - Parents, or legal guardians, have the primary responsibility for the upbringing and development of the child, and should always consider what is best for the child. Governments must provide appropriate assistance to parents and carers to help them.

Article 26 - Social security - Every child has a right to benefit from social security, taking into account the resources and circumstances of those who have responsibility for the child.

Article 27 - Adequate standard of living - Every child has a right to a standard of living adequate to their physical, mental and social development. Governments should take measures to assist parents and carers who cannot afford to provide this, and in particular to provide assistance and support with food, clothing and housing. Governments should take all appropriate measures to recover child maintenance from parents or others who have financial responsibility for the child.

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

Proposed Changes to Student Tenancy Agreements in PBSA and University and College Accommodation

The introduction of (a) a temporary day notice to leave period for students living in Purpose Built Student Accommodation and Halls of Residence to enable them to end their accommodation contract early and (b) a 28 day notice to leave period in relation to the forthcoming academic term, during the time the provisions are in force and for coronavirus outbreak-related reasons only will enhance student's rights. The measure will strengthen young people's rights.

This provision complies with Article 1 of the UNCRC defines a child as every human being below the age of 18.

This provision complies with Article 2 (Non-discrimination) - Children should not be discriminated against in the enjoyment of their rights. No child should be discriminated against because of the situation or status of their parent/carer(s).

This provision complies with Article 3 - Best interests of the child - Every decision and action taken relating to a child must be in their best interests. Governments must take all appropriate legislative and administrative measures to ensure that children have the protection and care necessary for their wellbeing - and that the institutions, services and facilities responsible for their care and protection conform with established standards.

This provision complies with Article 4 - Protection of rights - Governments should undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the UNCRC. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of the available resources.

This provision complies with Article 9 - Separation from parents - A child should not be separated from his or her parents against their will, unless such a separation is in their best interests. In any related proceedings, all interested parties shall be given an opportunity to participate and make their views known.

A child who is separated from one or both parents has the right to maintain direct and regular contact with both parents, unless this is contrary to the child's best interests.

This provision complies with Article 12 - Respect for the views of the child - Every child has a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body.

This provision complies with Article 13 - Freedom of expression - Every child must be free to say what they think and to seek, receive and share information, as long as the information is not damaging to themselves or others.

This provision complies with Article 27 - Adequate standard of living - Every child has a right to a standard of living adequate to their physical, mental and social development. Governments should take measures to assist parents and carers who cannot afford to provide this, and in particular to provide assistance and support with food, clothing and housing. Governments should take all appropriate measures to recover child maintenance from parents or others who have financial responsibility for the child.

Coronavirus Carer's Allowance Supplement ("CCAS")

CCAS will affect young people (16 and over) who are in receipt of Carer's Allowance ("CA"). It will also have an indirect impact on disabled children and young people who are cared for by someone in receipt of CA.

This provision complies with Article 3 - Best interests of the child - Every decision and action taken relating to a child must be in their best interests. Governments must take all appropriate legislative and administrative measures to ensure that children have the protection and care necessary for their wellbeing - and that the institutions, services and facilities responsible for their care and protection conform with established standards.

This provision complies with Article 18 - Parental responsibilities and state assistance - Parents, or legal guardians, have the primary responsibility for the upbringing and development of the child, and should always consider what is best for the child. Governments must provide appropriate assistance to parents and carers to help them.

This provision complies with Article 26 - Social security - Every child has a right to benefit from social security, taking into account the resources and circumstances of those who have responsibility for the child.

Make bankruptcy more accessible to debtors and less accessible to 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 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. There are concerns that due to the circumstances surrounding the coronavirus outbreak, there may be a number of additional families who might enter problem debt. These measures will benefit those children and young people living in households facing the burden of unsustainable debt.

This provision complies with Article 3 - Best interests of the child - Every decision and action taken relating to a child must be in their best interests. Governments must take all appropriate legislative and administrative measures to ensure that children have the protection and care necessary for their wellbeing - and that the institutions, services and facilities responsible for their care and protection conform with established standards.

This provision complies with Article 18 - Parental responsibilities and state assistance - Parents, or legal guardians, have the primary responsibility for the upbringing and development of the child, and should always consider what is best for the child. Governments must provide appropriate assistance to parents and carers to help them.

Temporary removal of the requirement for a prescribed person to witness a named person agree to the role under mental health legislation

This provision will ensure that patients over 16 who have a mental disorder still have the ability to choose their own named person, while minimising any delays in the process of nomination caused by the outbreak. This in turn will reduce any delays in having the patient involved in their care and treatment decisions.

This provision complies with This provision complies with Article 3 - Best interests of the child - Every decision and action taken relating to a child must be in their best interests. Governments must take all appropriate legislative and administrative measures to ensure that children have the protection and care necessary for their wellbeing - and that the institutions, services and facilities responsible for their care and protection conform with established standards.

This provision complies with Article 4 - Protection of rights - Governments should undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the UNCRC. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of the available resources.

This provision complies with Article 12 - Respect for the views of the child - Every child has a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body.

This provision complies with Article 13 - Freedom of expression - Every child must be free to say what they think and to seek, receive and share information, as long as the information is not damaging to themselves or others.

Extension of the specified period for payment of a confiscation order where payment cannot be made for reasons relating to coronavirus within 12 months of the date that the order was made and disapplication of interest where an extension is granted

This amendment may have an impact upon the rights of children and young people under Article 9 of UNCRC - Separation from parents - A child should not be separated from his or her parents against their will, unless such a separation is in their best interests. In any related proceedings, all interested parties shall be given an opportunity to participate and make their views known.

A child who is separated from one or both parents has the right to maintain direct and regular contact with both parents, unless this is contrary to the child's best interests.

Where a court has granted a confiscation order, it can extend the time required to pay the order to six months from the date the order is made, and in exceptional circumstance to a maximum of 12 months. The Proceeds of Crime Act does not permit any extension beyond 12 months.

By providing for the court to extend the 12 month permitted period for reasons connected to coronavirus, the accused has longer to fulfil the confiscation order and therefore avoid receiving a default custodial sentence for non-payment that would separate them from their children.

Citizens Assembly on Climate Change

The Bill makes provision to delay the assembly if required.

This measure applies to all Members of the Citizens Assembly equally, including those aged 16-18 so is non-discriminatory and therefore complies with Article 2 Non-discrimination - Children should not be discriminated against in the enjoyment of their rights. No child should be discriminated against because of the situation or status of their parent/carer(s).

This measure has been taken to ensure the best interests of those participants who are 16 or 17 are taken into consideration, ensuring they are kept safe and can participate in a way that is in accordance with Covid-19 guidelines and therefore complies with Article 3 - Best interests of the child - Every decision and action taken relating to a child must be in their best interests. Governments must take all appropriate legislative and administrative measures to ensure that children have the protection and care necessary for their wellbeing - and that the institutions, services and facilities responsible for their care and protection conform with established standards.

By having the opportunity to extend the reporting deadline the Scottish Government is ensuring the voices of young people can continue to be heard in decisions that are important to them and therefore complies with Article 12 - Respect for the views of the child - Every child has a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body.

By allowing for an extension, if required, the Scottish Government is preserving the right to freedom of assembly through participation in a climate citizens assembly and therefore complies with Article 15 - Freedom of association - Every child has the right to freedom of assembly: to meet with other children, and to join groups and organisations, as long as it does not stop others from enjoying their rights.

Extend the time period during which a previous main residence must be sold in order for house-buyers who have paid the LBTT Additional Dwelling Supplement (ADS) prior to a particular date to claim a repayment from Revenue Scotland

This provision complies with Article 2 (Non-discrimination) - Children should not be discriminated against in the enjoyment of their rights. No child should be discriminated against because of the situation or status of their parent/carer(s).

This provision complies with Article 4 - Protection of rights - Governments should undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the UNCRC. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of the available resources.

Summary

The Scottish Government considers the impacts of the measures within the Bill are justified and a proportionate means of achieving the legitimate aim of

protecting and assisting the general public during the coronavirus. In line with requirements set out in the Coronavirus (Scotland) Act 2020, the Bill contains the following safeguards:

• Part 1 of the Bill will automatically expire less than six months after it comes into force. The Scottish Parliament may extend this for two further periods of six months, giving Part 1 of the Bill a maximum duration of 18 months;
• where a provision in Part 1 of the Bill is no longer considered necessary, Scottish Ministers may bring it to an end earlier than on this six-monthly schedule;
• Scottish Ministers are required by the Bill to report on the continued need for the measures, and on the use of powers in the Bill, every two months.

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

Proposed Changes to Student Tenancy Agreements in PBSA and University band College Accommodation

This measure focusses on students, not all of whom will be young people.

These measures would (i) ensure that students who have left their accommodation, or have been unable to return to it, due to Coronavirus restrictions and who wish to end their contract early, are able to do so; and (ii) give students looking to find suitable accommodation for the next academic term reassurance that should restrictions continue and they are unable to take up the accommodation, that they will not be forced to pay for accommodation they are not using for a full academic year, during the time the provisions are in force.

This latter provision will bring student's tenancy rights in PBSAs in relation to notice periods in line with those students residing in the mainstream private rented sector.

Coronavirus Carer's Allowance Supplement

These measures are expected to have a positive impact on young carers in receipt of Carer's Allowance, or children and young people who are cared for, or living with, people in receipt of Carer's Allowance who are on lower incomes.

Make bankruptcy more accessible to debtors and less accessible to creditors

These measures will benefit those children and young people living in households facing the burden of unsustainable debt.

Temporary removal of the requirement for a prescribed person to witness a named person agree to the role under mental health legislation

These measures are expected to have a positive impact on patients over 16 and who have a mental disorder by ensuring that they still have the ability to choose their own named person, while minimising any delays in the process of nomination caused by the outbreak. This in turn will reduce any delays in having the patient involved in their care and treatment decisions.

Extension of the specified period for payment of a confiscation order where payment cannot be made for reasons relating to coronavirus within 12 months of the date that the order was made and disapplication of interest where an extension is granted

This amendment may have a positive impact on the rights of children and young people under Article 9 of UNCRC, however this will not impact differently on different groups of children and young people.

Extending the time period during which a previous main residence must be sold in order for house-buyers who have paid the LBTT Additional Dwelling Supplement (ADS) prior to a particular date to claim a repayment from Revenue Scotland

The measure would have most relevance for any young people who have paid the ADS and intend to reclaim it. In addition, it may have indirect impacts on any children or young people who live in the household of someone who may become eligible to reclaim the ADS as a consequence of it.

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?

Children's rights and wellbeing are a priority for this government. No negative impacts have been identified.

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

• Safe - Protected from abuse, neglect and harm by others at home, at school and in the community.

• Healthy - Having the highest attainable standards of physical and mental health, access to suitable healthcare, and support in learning to make healthy and safe choices.

• ♣ The measure in relation to PBSA and University and College Accommodation will contribute to bringing children and young people's rights into alignment which will enhance their mental wellbeing and enable them to make safe choices.
• ♣ The temporary removal of the requirement for a prescribed person to witness a named person agree to the role under mental health legislation is expected to have a positive impact on patients over 16 who have a mental disorder by reducing any delays in having the patient involved in their care and treatment decisions.

• Achieving - Being supported and guided in their learning and in the development of their skills, confidence and self-esteem at home, at school and in the community

• Nurtured - Having a nurturing place to live, in a family setting with additional help if needed or, where this is not possible, in a suitable care setting.

• ♣ In relation to PBSA and University and College Accommodation measures, the tenancy rights underpinning those safe places to live will be the same for all young people who are studying and living away from home.
• ♣ There are strong links between unsustainable debt and mental health. It is also clear that many of those in extreme debt face difficulties about providing basic necessities for their children. As such, the measures on bankruptcy make a small contribution towards ensuring all children can have a nurturing place to live.
• ♣ CCAS is expected to have a positive impact on the finances of carers, and children and young people who are cared for, or living with, people in receipt of Carer's Allowance on lower incomes.

• Active - Having opportunities to take part in activities such as play, recreation and sport which contribute to healthy growth and development, both at home and in the community

• Respected - Having the opportunity, along with carers, to be heard and involved in decisions which affect them

• ♣ CCAS is expected to have a positive impact on the finances of carers, and children and young people who are cared for, or living with, people in receipt of Carer's Allowance on lower incomes.
• ♣ The citizens assembly provision will preserve the rights of young people (age 16-17) to be heard and be included in deliberations about climate change that affect them.

• Responsible - Having opportunities and encouragement to play active and responsible roles in their schools and communities and, where necessary, having appropriate guidance and supervision and being involved in decisions that affect them
• The citizens assembly provision will preserve the opportunity for young people (age 16-18) to play full roles as Assembly Members and to be part of the Assembly decision making process and preparing the report to be presented to Scottish Ministers and the Scottish Parliament.

• Included - Having help to overcome social, educational, physical and economic inequalities and being accepted as part of the community in which they live and learn.

• ♣ The measure in relation to PBSA and University and College Accommodation will contribute to bringing rights into alignment, enabling them to feel that they are an accepted part of the community in which they live and learn.
• ♣ CCAS is expected to have a positive impact on the finances of carers on lower incomes.

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

These provision in the emergency legislation contribute to the Scottish Ministers' duty to keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements under the Children and Young People (Scotland) Act 2014.

Children and young people in PBSA and university and college accommodation will have the same rights as their peers.

Children and young people included in the citizens assembly on climate change will have the same opportunities as others to form advice on issues that affect them and Scotland's future (achieving, respected, responsible).

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

Proposed Changes to Student Tenancy Agreements in PBSA and University and College Accommodation

ASRA and CUBO undertook a survey of their members in late April 2020. A total of 21 providers took part, this included only 6 private sector PBSA accommodation providers. It should also be noted that although ASRA membership includes most providers, not all providers of student accommodation are members, and not all of their members replied. The survey was, therefore, not comprehensive. It highlighted, however, amongst other things:

• Almost 80% of providers had made provision for early release arrangements for students, many using a 28 day notice period;
• Less than half (38%) had made arrangements around student belongings;
• Over half had made arrangements to support overstaying students who can't now get home or will be self-isolating beyond their contract end, including flexible tenancy arrangements into the summer term;
• Occupancy rates vary from around 16% to 80%, with the majority of students in accommodation being international students;
• Providers are taking bookings for 2020/21, with some indicating they are aware of possible changes to the start of the academic year and others noting they are proceeding as normal; and
• Concerns expressed around the impact of social isolation on students with support services being delivered remotely.

A review of members' websites by ASRA revealed that (as of 13 April 2020) 5 are offering to break contracts early with no penalty, 4 give no further advice, while 9 have advised that they are either in negotiation with landlords/owners or are applying standard cancellation policies. It is not possible to obtain a verifiable number of students currently affected by those providers not releasing students early from contracts. At the call to discuss the survey, on Wednesday 29 April, it was indicated by the ASRA representative that currently the biggest 9 private sector PBSA accommodation providers had provided some form of early release for students.

Officials have been advised that in the PBSA sector, contracts are dependent upon what a student has requested when signing up for accommodation e.g. students may request a contract for one semester, an entire academic year or for 52 weeks. In colleges and universities, contract terms will be dictated by the nature of study e.g. contracts for undergraduate students will likely last 38 weeks and postgraduate students for 51 weeks, based on semester terms for these cohorts of students. Contracts will therefore vary across the sector and at this stage officials are not able to accurately identify the number of students tied into contracts that extend beyond the academic term.

NUS Scotland have started the #NotStayingNotPaying campaign, in which they set out 5 key asks of the Scottish Government to ensure student renters are protected during the coronavirus outbreak. One of the key protections set out in this campaign is that every landlord managing student accommodation must offer a no-penalty release from tenancy contracts for the current and next academic year.

NUS Scotland have raised the issue of early release from contracts both in conversations with officials and the Minister for Further Education, Higher Education and Science. Liam McCabe, President of NUS Scotland, raised with the Minister on 30 April that NUS Scotland have discovered that students being made to observe notice periods is a much wider practice than they had ever thought.

8. Have you consulted with relevant stakeholders?

Given the unprecedented circumstances presented by the coronavirus outbreak, including legal requirements to limit contact with others, and the need to react quickly to protect all in society, including children and young people, it has not been possible to consult extensively with all stakeholders.

For provisions related to proposed Changes to Student Tenancy Agreements in PBSA Scottish Government officials have engaged with:

• Scottish Funding Council
• NUS Scotland
• Emily Test
• Universities Scotland
• Colleges Scotland
• CUBO
• ASRA
• AMOSSHE
• Citizens Advice Scotland
• Shelter Scotland

For provisions related bankruptcy limited informal consultation has been carried out with representatives of the debt advice sector (Money Advice Scotland, StepChange, Citizens Advice Scotland) and creditors (UK Finance, ABCUL, CoSLA). Many of the issues covered have been addressed in earlier formal public consultations, including the 2019 Review of the Bankruptcy and Debt Advice (Scotland) Act 2014.

For provisions related to Justice, Scottish Government officials have consulted with Crown Office and Procurator Fiscal Service, Police Scotland, the Scottish Courts and Tribunal Service and the Scottish Prison Service.

The Scottish Government will continue to discuss these issues with key stakeholders once the legislation is in place to mitigate any possible unforeseen negative effects.

For provisions related to the Proceeds of Crime Act 2002, the Scottish Government has discussed these issues issue with COPFS. COPFS has identified them as priority issues and Scottish Government agrees with this assessment

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

Given the unprecedented circumstances presented by the coronavirus outbreak and the need to react quickly to protect all in society, including children and young people, it has not been possible to consult with children and young people on the proposed legislation. The Scottish Government has, however, engaged with those stakeholders affected directly by the legislation and will continue to work with them for the period of the outbreak, including getting input from children and young people to mitigate any possible unforeseen negative effects.

Specifically in relation to the measures on Student Tenancy Agreements in PBSA and University and College Accommodation, NUS Scotland and Emily Test – who, as organisations, are informed by the voices of students and young people have been consulted and helped shaped the measure.