Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021: child rights and welfare impact assessment

Key Findings, including an assessment of the impact on children's rights, and how the measure will contribute to children's wellbeing

As detailed in the original CRWIA the Act contributes to local duties to safeguard, support and promote child wellbeing by working in tandem with wider child wellbeing duties.

The UNCRC articles supported by the sections of the Act are set out below:

Section 1 of the FMS Act (provision of certain forensic medical services)

• Overview of the Act.
• Gives child and other victims a legal right to forensic medical services.
• Articles: 2, 19, 24 and 34.

Section 2 of the FMS Act (the examination service)

• Provides that self-referral is not available to under 16s. Ensures that victims of harmful sexual behaviour by children under the new age of criminal responsibility (12) is covered.
• Gives child and other victims a legal right to the examination service.
• Articles: 2, 3, 19, 24 and 34.
• Provides that the age for self-referral can be changed by Scottish Ministers and sets out the requirements for annual statement to the Scottish Parliament.
• Keeps children's legal rights and their best interests under annual review.
• Articles: 2, 3, 19, 24 and 34.

Section 3 of the FMS Act (limitation on provision of forensic medical examinations)

• Protects professional judgement and thus clinicians' assessment of a child's best interests.
• Protects children where it is not in their best interests to undergo forensic medical examination.
• Article: 3.

Section 4 of the FMS Act (information to be provided before examination)

• Ensures child victims are informed of their position, including why a police report may have to be made in their case.
• Gives children an opportunity to discuss their position with professionals.
• Articles: 3, 24 and 39.

Section 5 of the FMS Act (health care needs)

• Ensures a focus on health care needs.
• Ensures child victims' wider holistic needs are provided for.
• Articles: 3, 24 and 39.

Section 6 of the FMS Act (the retention service)

• Gives those who are 16 and over a right to have evidence stored – usually because they have not made a report to the police ("self-referral")
• Children under 16 may not access self-referral, and this would be explained to the child under section 4.
• Article: 12.

Section 7 of the FMS Act (return of certain items of evidence)

• Gives over 16s who self-refer a right to have their property returned to them.
• Children under 16 may not access self-referral, and this would be explained to the child under section 4.
• Articles: 12 and 14.

Section 8 of the FMS Act (destruction of evidence)

• Gives over 16s who self-refer a right to have their samples and property destroyed. Destruction would also happen at the end of the statutory retention period that must be communicated to the victim.
• Children under 16 may not access self-referral, and this would be explained to the child under section 4.
• Articles: 12 and 14.

Section 9 of the FMS Act (transfer of evidence to the police)

• Provides a legal basis for the transfer of evidence to the police, in the case of a police report.
• In the case of a child under 16, or an older child who wishes to report to the police, there would be a report to the police.
• Article: 19.

Section 11 of the FMS Act (examination of under-age persons)

• Ensures evidence is still valid if the health board discovers the individual is under the age of self-referral.
• Ensures the case proceeds as a police referral/follows child protection procedures.
• Articles: 2, 3, 19, 24, 34 and 39.

In the case of article 12 (respect for the views of the child) the self-referral protocol that has been developed should be followed in conjunction with the clinical pathway for Children and Young People.

The remaining provisions of the Act are technical in nature and support the earlier sections discussed above.