Learning Disabilities, Autism and Neurodivergence Bill: consultation

Section 6: Relationships

What we heard

Children, young people and adults that have a learning disability or are neurodivergent have the right to the same opportunities as anyone else to live satisfying and valued lives and to be treated with the same dignity and respect. They should be able to develop and maintain relationships and get the support they need to live a healthy, safe and fulfilling life. However there are a range of barriers that prevent some neurodivergent people and people with learning disabilities from being included in society and having healthy relationships on an equal basis compared to neurotypical people. This often causes loneliness, social isolation, poor mental health, and trauma.

Research indicates that, for autistic people, one third experience contact sexual violence, physical violence or stalking by an intimate partner, and one third of secondary school children experience bullying. It also indicates that autistic people are bullied more frequently than non-autistic peers (46-96% prevalence rates). For women, research indicates that those higher in autistic traits were 1.4 times more likely to have experienced childhood sexual abuse compared to those with few autistic traits (40% vs. 27%), and 1.7 times as likely to have experienced physical or emotional abuse (24% vs 14%). Many autistic people report challenges making and maintaining friendships, and have lower quality friendships than non-autistic peers.^[184]

A 2020 survey^[185] conducted in Scotland found that social isolation and loneliness remain a reality for many adults (aged 16+) with learning disabilities. It found that there is a lack of intimate relationships for the vast majority of respondents, higher levels of loneliness, lower levels of happiness for those who did not see their loved ones as often as they liked, and higher levels of loneliness overall than seen in the general population. In particular, it was found that:

• 5% lived with a partner compared to 56% of the general population
• 3% were married compared to 47% of the general population
• People living in mainstream accommodation were more likely to be in a relationships than people in supported accommodation, and people in medical settings and care homes least likely
• 52% occasionally, sometimes or often felt lonely. 9% often felt lonely, compared to 5% of the general population.

In 2023, a we commissioned a report conducted by Scottish Commission for People with Learning Disabilities (SCLD) reported on the experiences of women and girls with learning disabilities who have experienced gender based violence: Unequal, Unheard, Unjust: But Not Hidden Anymore.^[186]

When looking specifically at learning disabilities, global rates of gender-based violence suggest that 90% of women with learning disabilities have been subjected to sexual abuse, with 68% experiencing sexual abuse before turning 18.^[187] The report found that women with learning disabilities continue to experience high barriers to support and justice following experiences of gender-based violence and abuse due to discrimination and stereotyping. They also encounter significant barriers to reporting crimes, including limited access to safe spaces and appropriate adults, and not being believed or taken seriously. It also found that professionals may not recognise that someone has learning disabilities and if they do they may not have any relevant training in how to support them.

Other research has found that access to Relationships, Sexual Health and Parenthood (RSHP) education is not equal^[188] and that people with learning disabilities are often excluded from teaching in school and other settings about RSHP. One of the reasons for this is that current RSHP materials aren't always provided in accessible formats.

Another reason was thought to be stigma and discrimination, with professionals and others assuming that some neurodivergent people and people with learning disabilities don't, or don't want to, have romantic and sexual relationships. This puts people with learning disabilities at risk as they don't get the same information and education as others. This can make it challenging to identify and respond to incidents of gender-based violence and abuse.

Other research estimates that between 40% and 60% of parents with a learning disability have their children removed from their care due to being assessed as unable to provide an adequate standard of parenting.^[189]

A 2016 report commissioned by the Scottish Government, conducted by SCLD, explored the support needed for parents with learning disabilities.^[190] This followed the refreshed Scottish Good Practice Guidelines for Supporting Parents with a Learning Disability in 2015.^[191]

The report noted good progress towards better supporting people with learning disabilities to parent, as well as providing recommendations to further remove barriers. It provided evidence that parents with learning disabilities can and do become "good enough parents" who love their children and want to be the best parents they can be, with the right support. However, the support needed to do so is resource intensive, likely to be long term and likely to be intensive as children reach particular developmental milestones.

The report concluded that unless extensive support is available for the whole family, parents with learning disabilities would be unlikely to have their children living with them. It recommended that the solution is the provision of jointly-funded multi-disciplinary teams that take a whole family approach and are well trained in working with people with learning disabilities. Several other recommendations were provided relating to better data collection to establish accurate prevalence rates, an accessible information strategy, access to independent advocacy, awareness raising and specialist training.

More recently, a pilot parenting project has been implemented to develop Shared Lives services for parents with a learning disability.^[192] It evidences that positive outcomes can be achieved with the right support, enabling parents with learning disabilities to parent their children in a home they live in together.

What did LEAP think?

• LEAP members thought that they should have equal access and support to make and maintain relationships with friends, family, and the community. They stated that they should have a right to choose where they live and who they live with. They should not be moved away from their families and communities.
• People should be able to express their gender and sexuality freely. They particularly pointed out that they shouldn't have their gender expression or identity invalidated because of their learning disability or neurodivergence. They also highlighted the intersection of neurodivergence and LGBT identities and the increased risk of mental health issues and suicide rates in both of these groups.
• More support is needed for neurodivergent parents, and that their needs should be recognised when interacting with services on behalf of their children and families in settings such as school and healthcare.
• Any approach towards eliminating violence towards women, girls, and people assigned female at birth needs to be preventative and empowering. Any education surrounding this should specifically recognise the differences neurodivergent people and people with learning disabilities may have with reading social and/or sexual cues.

Where do we want to get to?

• Neurodivergent people and people with learning disabilities are supported to make and maintain healthy relationships, express their gender and sexuality, and live well in their communities.
• Parents with learning disabilities and neurodivergent parents, carers, and families are given the support they need and their children are not unfairly removed from their care.
• Neurodivergent people and people with learning disabilities have equal access to RSHP education.
• Access to justice and specialised support is provided where neurodivergent people and people with learning disabilities experience gender-based violence and abuse

What happens now?

Our vision is that, where it is possible "Every child lives in a safe and loving home where families are given support to overcome difficulties and stay together." This is our commitment as reflected in The Promise Implementation Plan.^[193] We recognise that this involves universal holistic family support, at the right time, and more intensive targeted help if it is needed so that people can continue to care for their children where it is safe to do so.

GIRFEC underpins our commitment to providing all children, young people and their families with this help and support through a consistent framework and shared language for promoting, supporting, and safeguarding their wellbeing.

We have supported the development of Scottish Good Practice Guidelines for Supporting Parents with a Learning Disability.^[194] These guidelines provide guidance on supporting people with learning disabilities who are parents, placing those parents and their families firmly at the centre and in control.

The Guidelines are for the information of health, social work, education and third sector services. In the 2016 report referenced earlier, it was found that 87% of respondents were aware of the guidelines and that 79% used them in their everyday practice. It was thought that the guidelines had influenced their practice, with a focus on ensuring that it is non-discriminatory and safeguards the rights of parents and their children.^[195]

The guidelines were thought to have proved useful in raising awareness of the particular issues faced by parents with learning disabilities and have promoted "an acknowledgement that the parent's rights are as important as the rights of the child". However, it was acknowledged that the participants were those more likely to have an awareness of the guidelines and so the survey results should not necessarily be taken as an indication that they are widely used across all services.

Article 8 of the European Convention on Human Rights, incorporated into UK law by the Human Rights Act 1998, provides that everyone has the right to respect for private and family life. Article 12 of that Convention, also contained in the Human Rights Act 1998, protects the right to marry a partner and to have a family. This means that Governments must ensure that those with disabilities, including people with learning disabilities and neurodivergent people, can marry and have relationships on an equal basis with others without any interference or arbitrary restriction.

The Equalities and Human Rights Commission's guidance for public authorities on how the 1998 Act relates to what they do and how they do it, notes that the concept of 'family life' is broader than the traditional family and can include various relationships such as between siblings. ^[196] It also provides the following case study which is included here to demonstrate how Article 8 rights could be relied upon:

Case Study: London Borough of Hillingdon v Steven Neary (2011)

This was a case involving a 21 year old autistic man with learning disabilities who lives with, and is cared for by, his father, Mr Neary. Steven requires constant support and supervision, and Mr Neary was helped by an extensive care package provided by Hillingdon Council. In 2009, the local authority accepted Steven into respite care for a few days, but subsequently kept him there for a year, despite Mr Neary's insistence that Steven was best placed with him.

The case judgment focused on the unlawfulness of Steven's detention under Article 5 (the right to liberty), but also found Hillingdon council to be in breach of the right to respect for family life under Article 8, by failing to consider the human rights implications of keeping Steven away from his family for a long period of time.

One aspect of the Article 8 breach was based on the council's failure to listen to Mr Neary's complaints. The court said that: "Hillingdon's approach was calculated to prevent proper scrutiny of the situation it had created. In the weeks after Steven's admission, it successfully overbore Mr Neary's opposition. It did not seriously listen to his objections and the suggestion that it might withdraw its support for Steven at home was always likely to have a chilling effect. Once Mr Neary's resistance was tamed, the question of whether Steven was in the right place did not come under any balanced assessment."

There is also a range of legislation which contributes to preventing and tackling violence against women and girls, although none specifically reference people with learning disabilities or neurodivergent people. These include:

• Vulnerable Witnesses (Scotland) Act 2004
• Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
• Sexual Offences (Scotland) Act 2009
• Domestic Abuse (Scotland) Act 2011
• Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011
• Children and Young People (Scotland) Act 2014
• Victims and Witnesses (Scotland) Act 2014
• Human Trafficking and Exploitation (Scotland) Act 2015
• Domestic Abuse (Scotland) Act 2018
• Prohibition of Female Genital Mutilation (Scotland) Act 2005
• Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020
• Domestic Abuse (Protection) (Scotland) Act 2021

International Human Rights

The UNCRC sets out the international human rights standards for children up to the age of 18. Article 6 of the UNCRC recognises that all children and young people have the right to survive and the right to develop. State parties should do as much as they can to make sure children and young people can live in conditions that don't impact negatively on their physical and mental wellbeing in order that they can grow and develop.

Under Article 12 of the UNCRC every child and young person who is capable of forming their own views has the right to express those views freely in all matters that affect them, with those views being given due weight.

In addition, Article 23(1) of the UNCRC specifically recognises 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. Therefore state parties (under article 23(3)) must "ensure children must have special access to […] services to ensure social integration and individual development, including his or her cultural and spiritual development".

Article 23 of the CRPD is particularly relevant as it provides that state parties shall take effective and appropriate measures to eliminate discrimination against disabled people in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others.

As noted in the introduction we are progressing a Human Rights Bill for Scotland as well as the United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill, to incorporate a wide range of internationally recognised human rights belonging to everyone in Scotland into Scots law, within the limits of devolved competence.

What can we do about it?

Our Towards Transformation Plan^[197] committed to establishing a Gender Based Violence Steering Group which would develop an action plan to reduce incidences of violence and empower women and girls with learning disabilities and autistic women and girls (including people assigned female at birth) to have safe and loving relationships.

To inform this work, we funded SCLD and People First (Scotland) to undertake research and report on women with learning disabilities' experience of gender-based violence. The resulting report, recently published, made twelve recommendations about how to tackle violence against women and girls with learning disabilities.^[198] These recommendations are currently being considered by the Steering Group as part of the action plan.

We recently consulted on draft statutory guidance on the Delivery of Relationships, Sexual Health and Parenthood (RSHP) Education in Scottish Schools.^[199] The draft guidance states that "[t]here are some misconceptions that children and young people who require additional support are not, or will not, be sexually active… those who require additional support, including those with a learning disability, must be included in RSHP lessons", and that "[c]hildren and young people with a learning disability or who require additional support may require more bespoke learning activities and this should always be discussed with parents/carers and children/young people".

What can the LDAN Bill do?

We believe that children, young people and adults who are neurodivergent or have a learning disability have the right to the same opportunities as anyone else to live satisfying and valued lives and to be treated with the same dignity and respect. They should be able to develop and maintain relationships and get the support they need to live a healthy, safe and fulfilling life.

There are various initiatives underway to help make improvements, as discussed in the previous paragraphs. However, there are still barriers and challenges to overcome. We could explore the following in relation to the Bill to help strengthen that work specifically in relation to people with learning disabilities and neurodivergent people.

Proposal 1: Access to Independent Advocacy

Another section of this consultation discusses independent advocacy. We would like views on any specific circumstances where a right to independent advocacy could make a difference. For relationships, this could include:

(a) where a parent with learning disabilities is at risk of their child being taken into care; and,

(b) where a neurodivergent person or person with learning disabilities have disclosed gender-based violence or abuse. This would aim to enable them to access justice and support (as recommended in Unequal Unheard).

Proposal 2: Data

The overarching themes section sets out some broad proposals on data and and we have asked for views on particular circumstances in which better data collection and sharing (with careful consideration of confidentiality and data security), would be helpful in order to better inform service design, policies, and to enable progress to be evaluated and monitored. For relationships, we could consider data collection on the following:

(a) Data collection and reporting on gender-based violence affecting women with learning disabilities (as recommended in Unequal Unheard).

(b) Data collection and reporting on the number of parents with learning disabilities in Scotland, including where their children have been removed from their care. This acknowledges that there is currently a lack of knowledge of this population which may impact on the availability and range of services provided.

Proposal 3: Inclusive communications

We have made some proposals on inclusive communications in the overarching themes section of this consultation and have asked for views on particular situations where a strengthened right to and focus on inclusive communications would have an impact. For relationships, we could explore the following:

(a) Where a person with learning disabilities is at risk of having their child removed from their care. This could include information automatically being provided in easy-read, and support provided by professionals who have specialist training in learning disabilities.

(b) Where a neurodivergent person, or person with learning disabilities, has disclosed gender-based violence or abuse and is interacting with the justice system. This could include information automatically being provided in easy-read, and support provided by professionals who have specialist training in learning disabilities.

Proposal 4: National and Local Strategies

Proposals are set out in the overarching themes section on national and local strategies for learning disabilities and neurodivergence. For relationships, we could explore whether those strategies should include the following:

(a) Local authorities to set out how a multi-disciplinary team and Whole Family Approach is being implemented to proactively support neurodivergent parents and parents with learning disabilities, including reporting on and evaluating this approach.

(b) Local authorities to set out how RSHP education is provided to all Additional Support Needs learners.

(c) Local authorities to set out how they provide services to neurodivergent people and people with learning disabilities to enable them to be active and involved in their communities. This could include evaluating the impact of these services.

(d) If extended to Police Scotland: Police Scotland to set out how people with learning disabilities are provided with specialist support to report crimes, including gender-based violence and abuse.

Proposal 5: Accountability

Another section of this consultation discusses various proposals and options for increased or more focussed accountability. This includes proposals for a new Commission/er specifically for neurodivergent people and people with learning disabilities, as well as considering changes to the power and remit of existing bodies.

If a new or existing body had powers of investigation they may be able to investigate ongoing and historic cases of child removal from parents with learning disabilities, based on their disability.