The Provision Of Early Learning And Childcare (Specified Children) (Scotland) Amendment Order 2020: children's rights and wellbeing impact assessment

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

Impacts of this Order on children's rights

Impacts of this Order on children's rights have been summarised below based on the cluster groups the UN Committee on the Rights of the Child has organised the different Articles of the UNCRC:

General principles of the UNCRC

• 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 6 – Life, survival, and development - Every child has a right to life and to develop to their full potential.
• 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 Order will have positive impacts on all four general principles of the UNCRC.

This Order means that local authorities will have a statutory duty to secure funded ELC for children in their area who turn five years old between the August and December after the school commencement date whose parent has chosen to defer their P1 entry for a year. This will be regardless of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Currently, local authorities decide whether to provide funded ELC to these children in a deferred year.

The Scottish Government expects local authorities to make the decision about additional funded ELC for these children, based on an assessment of wellbeing, as set out in the Early Learning and Childcare statutory guidance^[9] that accompanied the Children and Young People (Scotland) Act 2014.

Allowing parents to defer their child's entry to school is a longstanding feature of the Scottish schools system and gives parents and carers greater flexibility and choice. However, the choice of access to funded ELC in the deferred year for children in their area who turn five years old between the August and December after the school commencement date rests with the local authority.

Removing the ELC eligibility distinction based on birth date that currently exists for ELC access in a deferred year, will support all parents, regardless of their situation or status, to make decisions on school deferral based on the best interest of their child and not on access to funded ELC.

Family environment and alternative care

• 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 18 (1,2) – 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 Order will have positive impacts on Articles 5 and 18 (1,2). Parents already have a statutory right to defer their child's entry to P1 where they have not reached five years old on the school commencement date. However, for children who turn five years old between the August and December after the school commencement date who are deferred, the decision to provide funded ELC in that deferred year is the local authority's. This means that a parents decision to exercise their statutory right to defer their child's P1 entry, could be impacted by whether their local authority will offer the child funded ELC in the deferred year. By entitling these children to statutory funded ELC, parents will be supported to exercise their right to defer their child's P1 entry.

Disability, basic health and welfare

• Article 18 (3) – Parental responsibilities and state assistance - Governments must take all appropriate measures to ensure the children of working parents have the right to benefit from childcare services and facilities.

This Order will have a positive impact on Article 18(3) as this Order means more children are entitled to funded ELC, including children of working parents.

• Article 23 – Children with disabilities - A disabled child has the right to enjoy a full and decent life in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. Governments must recognise the right of the disabled child to special care, and ensure the disabled child has effective access to education, training, health care, rehabilitation, preparation for employment, and recreational opportunities.

Data from the Scottish Study of Early Learning and Childcare^[10] show that at age four- and five-years old children with a long-term health condition or disability were more likely to demonstrate delayed development and to be assessed as having some behavioural difficulties than those without.

Evidence shows that children with a disability are more likely to defer P1 entry. In 2018, data from the pupil census^[11] shows that:

• The estimated deferral rate is higher for pupils with a recorded disability (38%) than for those without (15%). 19% of pupils with a disability born in August to December and 77% born in January and February deferred, compared with 4% and 44% for pupils born in the same months without a recorded disability.
• Deferred pupils are more likely to have a disability than other P1 pupils. 1.0% of all deferred pupils in P1 have a disability. The rate of disability in this group is around six times as high compared to all P1 pupils excluding deferrals, of whom 0.2% have a disability. Among deferred pupils born in January and February, 0.8% have a disability. While for those born from August to December, 1.7% have a disability.

We do not have evidence on if these children accessed ELC in their deferred year and if they did, whether this was funded by the Scottish Government, funded by the local authority on a discretionary basis, or funded by the family. However, as families with a disabled child may be more likely to defer their child's P1 entry, this Order could have a disproportionately positive impact on this protected characteristic.

Education, leisure and cultural activities

• Article 28 – Right to education - Every child has a right to education on the basis of equal opportunity. Primary education must be free. Secondary education must be available to every child, with financial assistance available in case of need. Information and guidance on education should be available to all. Governments should take measures to encourage regular attendance and reduce drop-out rates. School discipline should be administered in a manner consistent with the child's human dignity.
• Article 29 – Goals of Education - Education must aim to develop every child's personality, talents and abilities to their fullest potential. It must encourage the child's respect for human rights, their origins and identity, for other cultures around the world, and for the natural environment.
• Article 31 – Leisure, play, and culture - Every child has a right to rest and leisure, to engage in play and recreational activities, and to take part in a range of cultural and artistic activities.

This Order will have positive impacts on Articles 28, 29, and 31. This Order means that local authorities will have a statutory duty to secure funded ELC for children in their area who turn five years old between the August and December after the school commencement date whose parent has chosen to defer their P1 entry for a year. This will be regardless of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Currently, local authorities decide whether to provide funded ELC to these children in a deferred year.

Quality is at the heart of funded ELC delivery in Scotland, and a key commitment of the ELC expansion is Funding Follows the Child. Funding Follows the Child allows parents to access their child's funded ELC entitlement from any provider in the public, private or third sector including childminders, who meets the National Standard, has a place available and is willing to enter into a contract with the local authority. The National Standard focuses on what children and their families can expect from their ELC experience, regardless of where they access their funded entitlement.

Despite the legal duty to deliver 1140 not being introduced from August 2020, following the publication of the Interim Guidance^[12] on 30 July, it is expected that local authorities will continue to use the principles and criteria of Funding Follows the Child and the National Standard as a framework to shape local funded ELC delivery.

Development of children's cognitive development, health and wellbeing already underpins all aspects of practice in ELC. This is also emphasised through the National Standard such as Criteria 2, which ensures that providers of funded ELC must have Care Inspectorate quality evaluations which are good or better on the theme relating to quality of care and support; and must have a framework to support children's learning that is informed by national guidance and is appropriate to support individual children's development and learning focused on active learning through play. The National Standard also includes a requirement that funded ELC providers must have a framework to support children's learning that is focussed on active learning through play and a requirement that children must have daily access to outdoor play, including regular outdoor play in a natural environment.

Impacts of this Order on children's wellbeing

Section 96(2) of Children and Young People (Scotland) Act lists the eight wellbeing indicators, sometimes referred to by the acronym SHANARRI:

• Safe – protected from abuse, neglect or harm 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.
• Achieving – being supported and guided in learning and in the development of skills, confidence and self-esteem, at home, in 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.
• Active – having opportunities to take part in activities such as play, recreation and sport, which contribute to healthy growth and development, at home, in school and in the community.
• Respected – having the opportunity, along with carers, to be heard and involved in decisions that affect them.
• Responsible – having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision, being involved in decisions that affect them.
• Included – helping to overcome social, education, physical and economic inequalities, and being accepted as part of the community in which they live and learn.

This policy to entitle children with August to December birth dates to funded ELC in a deferred year will impact particularly on Included and Achieving indicators.

This policy aims to ensure that parents' decisions on whether to defer their child's P1 entry can be based on the best interests of the child and not whether they automatically qualify for access to funded ELC. This will therefore mean that families of children with a birth date in August to December who defer will be able to make decisions for their children, based on what they feel is in the best interests of the child, without additional ELC costs that may be a barrier for some families exercising their right to defer. This supports all families, regardless of their circumstances, to defer their child and access funded ELC in the deferred year, where they feel this will help to support their child to achieve their full potential.

More broadly, evidence from both UK and international studies of early learning and childcare programmes^[13], including our own Growing Up in Scotland Study^[14], supports the fact that all children, and especially those from disadvantaged backgrounds, can benefit in terms of social, emotional and educational outcomes from attending high quality early learning and childcare. As part of NHS Scotland's evaluability assessment of the ELC expansion programme, a theory of change was developed for the expansion programme and the model of potential beneficiaries. Outcomes for children are presented in Figure 1 of this paper^[15] which considers how we expect the expansion of ELC hours to contribute to improving children's outcomes.