Part 1 of the Children (Scotland) Act 1995: review
This consultation seeks views on reforming Part 1 of the Children (Scotland) Act 1995 to ensure the child's best interests are at the centre of any decision made about them.
Annex J: Partial Equality Impact Assessment
Partial Equality Impact Assessment Record
| Title of policy/ practice/ strategy/ legislation etc. |
Review of Part 1 of the Children (Scotland) Act 1995 and creation of a Family Justice Modernisation Strategy. |
|
|---|---|---|
| Minister |
Minister for Community Safety and Legal Affairs |
|
| Lead official |
To be completed in final EQIA |
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| Officials involved in the EQIA |
name |
team |
| To be completed in final EQIA |
||
| Directorate: Division: Team |
Civil Law & Legal System |
|
| Is this new policy or revision to an existing policy? |
Review of Part 1 of the Children (Scotland) Act 1995 |
|
Screening
Policy Aims
This is a partial EQIA and is focussing on the main themes and desired outcomes of the review of part 1 of the Children (Scotland) Act 1995 (the 1995 Act) and Family Justice Modernisation Strategy. A further more detailed EQIA will be completed to go with any Family Law Bill.
The main aims of the consultation are to:
- Further comply with the United Nations Convention on the Rights of the Child;
- Ensure that both the child’s best interests and the child’s views are at the centre of any contact or residence case or children’s hearing;
- Ensure that the voice of the child is heard in cases; and
- Ensure that cases and hearings are dealt with in an effective and efficient way.
To meet these aims we are seeking your views on the following main topics:
- How the court considers the views of the child and representation of the child;
- Who a child should have contact with and how contact should happen;
- Who should have Parental Responsibilities and Rights;
- How international parental child abduction can be prevented;
- How children and victims of domestic abuse can be protected;
- How court procedure can be improved in proceedings affecting children and young people;
- What alternatives there are to court;
- Amendments that are needed to birth registers; and
- Procedural changes to the Children’s Hearings System.
The policy contributes to the following National Outcomes:
- Our young people are successful learners, confident individuals, effective contributors and responsible citizens;
- Our children have the best start in life and are ready to succeed;
- We have improved the life chances for children, young people and families at risk; and
- We live our lives safe from crime, disorder and danger.
Who will it affect?
The policy will affect a wide range of people including:
- Child welfare reporters and curators ad litem
- Children and young people
- Children’s Reporters
- The Courts
- Crown Office and Procurator Fiscal Service
- Faculty of Advocates
- Family Lawyers
- Family mediators and arbitrators
- Family members
- Grandparents
- Health Boards and GP surgeries
- Individuals seeking to be declared a parent of a child
- Law Society of Scotland
- Local authorities
- National Records of Scotland
- Organisations supporting parents, families and children
- Parents
- Registers of Scotland
- Relationships Scotland and the four independent contact centres in Scotland
- Schools
- Scottish Children’s Reporter Administration
- Scottish Courts and Tribunals Service
- Scottish Legal Aid Board
- Siblings
- Step parents
What might prevent the desired outcomes being achieved?
This consultation is seeking views on potential changes to Part 1 of the 1995 Act and creation of a Family Justice Modernisation Strategy.
The cost implications of some options may lead to them not being considered viable.
Stage 1: Framing
Results of framing exercise
We met with colleagues from the Directorate for Children and Families and Scottish Government Legal Division for the purpose of the framing exercise. We have also spoken separately to Justice Analytical Services.
Groups of people potentially affected positively by the proposals
The framing exercise suggested that the following groups of people might be affected positively by the main topics of the review of the Children (Scotland) Act 1995.
Age
- All the main themes will directly affect children and young people and any legislative proposals in this area would benefit children.
- Ensuring the voice of the child is heard by consulting on removing the presumption that only children aged 12 or above are mature enough to be able to form a view would arguably benefit children under 12. Evidence shows that contact centres are used primarily for facilitating contact with children under the age of 8. Therefore, any regulation of contact centres will directly affect more children under the age of eight.
- The number of sole registrations of a child’s birth outside marriage is higher amongst mothers who were under the age of 20 when they gave birth to their child [170] . This could mean that any proposals in relation to Parental Responsibilities and Rights ( PRRs) and parentage will have a greater impact on this age group.
- Considering who a child should have contact with may affect grandparents who are likely to be older and siblings who may be younger.
Disability
- We have received anecdotal evidence that children with disabilities are less well heard by the court than children without disabilities.
- Stress can have a negative impact on a person’s mental health. There is evidence that parties find family cases in court stressful [171] . Options to ensure the voice of the child is heard, improve court procedure, seek alternatives to court, protect children and victims of domestic abuse and improve the Children’s Hearings System may help reduce the stress of court cases.
- Changes to allow the modernisation of the Children’s Hearings System through enhanced use of available technology could allow remote participation thereby reducing the potential stress of attendance.
Sex
- We noted that the law on who gets PRRs treats men and women differently. The Scottish Law Commission recommended in 1992 that all parents should get PRRs [172] . Parliament decided, in 1995 and in 2006, not to follow that recommendation. However, in the Family Law (Scotland) Act 2006 we introduced legislation so that unmarried fathers could obtain PRRs by jointly registering the birth of the child with the mother and the mother completing a form stating that the person is the father of the child and the father acknowledges this or vice versa.
- We noted that domestic abuse, which disproportionately affects women, is a significant issue in family cases. Understanding of domestic abuse is developing, with coercive control now recognised as a significant issue.
- We noted that the pursuers in family cases are more often men. A point regularly suggested to us in correspondence is that court decisions in family cases favour women. Although the court must make decisions based on the welfare of the child, some stakeholders would like to see courts starting from a shared parenting perspective. We have received correspondence claiming that the legal aid system is unfair because men are more likely to be in full time work and therefore less likely to be eligible for legal aid. There may also be issues with who pays for child welfare reports.
Pregnancy and Maternity
- The option of introducing compulsory joint birth registration would affect new parents.
Gender reassignment
- We are not aware of any particular issues in relation to transgender children in contact and residence cases.
Sexual orientation
- The consultation outlines the law on parentage and PRRs for same sex couples. The consultation also provides an update on proposed amendments to section 20(1)(d) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 to refer to marriage as well as civil partnerships. This will benefit second female parents.
- We note that Lesbian, Gay or Bisexual children are more likely to experience bullying and mental health issues and that stress may be a particular issue for them. For example research by Stonewall suggests that 45% of LGB pupils are bullied in school [173] .
- We have received no information to suggest that same sex couples are disadvantaged in the court process.
Race
- People who have English as a second language may be at a disadvantage in understanding the court procedure and proceedings.
- We are seeking views on whether fathers who jointly register the birth of a child with the mother of the child in a country where joint registration leads to PRRs should have their PRRs recognised in Scotland.
Religion or belief
- We noted that some faiths may have different approaches to equality of the sexes and to family matters in general.
- A child’s beliefs may be different from the child’s parents (or the parents may hold different beliefs) and these may be a source of conflict.
Marriage and Civil Partnership
- We noted that we only needed to consider this protected characteristic in relation to policies about work, such as HR policies.
Extent/Level of EQIA required
Following the framing exercise, we believe that the extent of the EQIA required was high. We have produced a draft EQIA at this stage and a further more detailed EQIA will be completed to go with any Family Law Bill.
A partial Child Rights and Wellbeing Impact Assessment ( CRWIA) has been prepared separately and will be cross-referred to in this EQIA. The partial CRWIA is at annex H of the consultation document.
Stage 2: Data and evidence gathering, involvement and consultation
Include here the results of your evidence gathering (including framing exercise), including qualitative and quantitative data and the source of that information, whether national statistics, surveys or consultations with relevant equality groups.
| Characteristic |
Evidence gathered and Strength/quality of evidence |
Source |
Data gaps identified and action taken |
|---|---|---|---|
| Age |
Who a child should have contact with and how contact should happen 2. Families need Fathers Scotland received 11 enquiries from people seeking contact with their siblings in 2017 3. More younger adults may be affected if we were to regulate contact centres. Data from Relationships Scotland suggests that 58% of individuals using a child contact centre were aged 20-29 and 26% were aged 30-39%. In the Paisley Child Contact Centre, 80% of the individuals were aged 20-29. In Promoting Positive Contact in Glasgow 38% of individuals who gave their age were between 20-29. What are Parental Responsibilities and Rights and who should have them. 5. SLAB data shows that 29% of defenders are aged between 25-29. This figure decreases to 20% for 30-34 year olds and 15% for 35-39 year olds. SLAB data also shows that 22% of pursuers were aged between 25-29. This figure decreases to 20% for 30-34 year olds. Amendments to birth registers 6. Data on live births by age of mother shows that the highest number of births are by mothers between the ages of 25-29. 7. The figures on the number of women who jointly/solely register births outside marriage show that 18.9% of sole registrations are done by women under the age of 20. This percentage decreases to 7.8% for women over 35. At the same time the number of women jointly registering births outside marriage rises from 81.1% of under 20’s to 92.2% of over 35’s. |
2. Families need Fathers Scotland. 3. Data from Relationships Scotland and independent child contact centres. 5. SLAB. 6. Data from National Records of Scotland ( NRS). [174] 7. Data from NRS. [175] |
1. The CRWIA has identified that there is no data from Scottish Courts and Tribunals Service ( SCTS) on the age of the child involved in a case. 2. There is no data from the Scottish Legal Aid Board ( SLAB) or SCTS on the number of people who are seeking contact with their siblings. We would welcome any further evidence on this during the consultation. 3. There is no data available for two of the independent child contact centres. 4. There is no information available on the number of grandparents who are seeking contact or PRRs by using section 11 of the 1995 Act. We would welcome any information on this during the consultation. 5. The data from SLAB only covers those cases where the individuals are granted Legal Aid. There is no information on cases which are privately funded. We are discussing with SCTS the data we need them to gather. |
| Disability |
1. Children with disabilities are less well heard in court cases than those without disabilities. 2. More than half of pursuers reported that they experienced moderate or severe stress as they undertook contact action. How the court considers the views of the child and representation of the child 3. Research shows that uncertainty and distress of family breakdown was compounded for children by the lack of involvement in the process, rates of satisfaction with current arrangements were conversely higher for those who have been consulted. How children and victims of domestic abuse can be protected 4. Research shows that domestic abuse is alleged in half of all court actions over contact raised by a parent. Research by CAFCASS and Women’s Aid in 2017 shows that in England and Wales domestic abuse was alleged in 62% of cases with fathers more likely to be the subject of allegations than mothers. Cases featuring allegations of domestic abuse were more likely to result in an order for no direct contact than cases without. Research undertaken by the Ministry of Justice in 2009 showed that 53% of the contact and residence cases in England and Wales involved allegations of domestic abuse or concerns about abduction or harm to children. 5. 18% of cases referred to the Children’s Panel on the grounds of domestic abuse. |
2. Study on Understanding Child Contact Cases in Scottish Sheriff Courts. [176] 3. Holt, S. 2016 The voice of the child in family law: A discussion paper Children and Youth Services Review 6 4. Mackay, K. 2013. The treatment of the views of children in private law child contact disputes where there is a history of domestic abuse. [177] CAFCASS and Women’s Aid research [178] .MoJ research. [179] 5. Scottish Children’s Reporter Administration ( SCRA) data. |
1. We would be keen to receive further information on this during the consultation. 2. We have no information on the number of personal cross examinations that are carried out in child contact and residence cases where there are allegations of domestic abuse but we understand the figure to be very low as few cases go to proof. Personal cross examinations can cause more stress. 3. We would welcome any further information on the effect of the court process of children and young people. |
| Sex |
Who a child should have contact with and how contact should happen 1. 76% of individuals using a child contact centre managed by Relationships Scotland are male. In the Paisley Child Contact Centre the split is 50/50. In Inverclyde Child (Family) Contact Centre three families used the centre in 2016 for contact with a mother and 1 for contact with a father and grandmother. In 2017, 9 families used the contact centre for contact with the mother and 1 used it for contact with the father and grandmother. 2. In 2017, 539 Fathers contacted Families need Fathers Scotland regarding contact as opposed to 38 women. Citizens Advice Bureaux in Scotland advised on 1861 cases related to parental contact in 2017. 3. SLAB data shows that, between 2015-2017, in contact and residence cases, 82% of defenders were female and 18% were male. During the same period 68% of pursuers were men and 32% were female. What are Parental Responsibilities and Rights and who should have them 4. There is evidence which highlights the importance of father-child relationships. For example, Growing Up in Scotland study found that children with poor father-child relationships are more likely to have higher levels of behavioural and emotional problems and poor school adjustment than children with good father child relationships. 5. There is research that children benefit from the quality of parenting they receive and the quality of the relationship between parents. 6. Research also shows that more frequent and regular contact is associated with closer relationships with non-resident parents and fewer adjustment problems in children [180] . 7. There is research from Sweden about the benefits to children of shared parenting. A study of 60 studies published in English in academic journals or in government reports suggested that in 34 studies, joint physical custody children had better outcomes on all the measures of behavioural, emotional, physical and academic wellbeing than sole physical custody children. 8. There is, however, some evidence from Belgium that there has been little evidence that children’s wellbeing in shared residence is higher than children living with one parent. 9. Data shows that between 2000 and 2016, there were 53,065 children and young people under the age of 16 born to an unmarried mother whose birth certificate originally only registered the mother as the parent. This compares to 407,408 children and young people who were born during the same period and have both parents registered on their birth certificate. Data shows that since 2006 there have been 1717 Parental Responsibilities and Rights Agreements registered which give father’s PRRs. How children and victims of domestic abuse can be protected 10. Figures for 2016-17 show that 79% of victims of domestic abuse reported to the Police were women and abusers were men, 18% of victims were men and abusers were women, 2% of victims and abusers were men and 1% of victims and abusers were women. Procedural changes to the Children’s Hearings System 11. 56% of children and young people referred to the Children’s Panel are male and 44% are female. |
1. Relationships Scotland and independent contact centres. 2. Families Need Fathers Scotland and Citizens Advice Scotland. 3. SLAB data. 4. Evidence from Growing up in Scotland: Father-Child Relationships and Child Socio-Emotional Wellbeing. [181] Evidence from IRISS research in 2017. [182] Year of the Dad. [183] 5. Nuffield Foundation in 2013. [184] 6. See for example Bauserman, R. (2002). Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-Analytic Review. Journal of Family Psychology. 16(1): 91-102. 7. For example Elvis projektet. [185] . 8. Sodermans, AK and Matthijs K, Joint physical custody and adolescents’ subjective well-being: a personality x environment interaction Journal of Family Psychology 2014 vol 28, No 3 9. NRS. [186] 10. Scottish Government Domestic Abuse Recorded by the Police in Scotland 2016-17 [187] . 11. Data from SCRA. |
2. During the consultation we would like to receive information on this from other organisations. 3. The data from SLAB only covers those cases where the individuals are granted Legal Aid. There is no information on cases which are privately funded. We are discussing with SCTS the data we need them to gather. 4. We would welcome any further evidence on the importance of father –child relationships. 5. We would welcome any further evidence on shared parenting. |
| Pregnancy And Maternity |
In 2016 there were 54,488 births registered in Scotland. |
NRS. [188] |
|
| Gender Reassignment |
There is no information available on the number of trans men giving birth or number of trans women who father a child. |
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| Sexual Orientation |
There is no information available on the number of contact cases involving same sex couples as SCTS and SLAB do not record this data. We will use the consultation to seek further information on this topic. |
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| Race |
Evidence from Families Need Fathers Scotland suggests that about 16% of enquiries they receive are from ethnic minorities. There may be fathers coming from jurisdictions outside of the UK where joint birth registration leads to PRRs. |
Families Need Fathers Scotland. |
SCTS and SLAB do not hold information on use of interpreters or the race of parties applying to court. Further desk based research on jurisdictions that give fathers automatic PRRs and migration statistics for these countries. |
| Religion Or Belief |
1. Four contact centres that are managed by Relationships Scotland use religious establishments as a venue for facilitating contact. 2. Our policies generally affect those families who have separated and therefore data on the number of divorces may be relevant. Statistics show that in 2015-16 the number of divorces of religious marriages was 4464. This was not significantly different from the number of civil marriages that ended in divorce (4411). |
1. Relationships Scotland 2. Scottish Government Divorces and Dissolutions supplementary tables 2015-16 [189] |
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| Marriage And Civil Partnership (the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work, for example HR policies and practices - refer to Definitions of Protected Characteristics document for details) |
N/A |
N/A |
Stage 3: Assessing the impacts and identifying opportunities to promote equality
Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts – negative and positive – that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one – that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.
Do you think that the policy impacts on people because of their age?
| Age |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination, harassment and victimisation |
X |
The option to reduce repeated litigation would reduce harassment and victimisation of children subject to repeated court cases. The issues in the consultation on protecting children and victims of domestic abuse may help to reduce harassment and victimisation of these individuals. |
||
| Advancing equality of opportunity |
X |
The option to remove the presumption that a child over 12 is of sufficient maturity to express a view could clarify that the views of children under the age of 12 with capacity will be sought in court cases under section 11 of the 1995 Act. The consultation on who a child should have contact with may clarify that under 16’s can apply for contact under section 11 of the 1995 Act. |
||
| Promoting good relations among and between different age groups |
X |
The consultation seeks views on how best to ensure that a child can, where appropriate, have good relations with other family members. Therefore, this could promote good relations among and between different age groups. |
Do you think that the policy impacts disabled people?
| Disability |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination, harassment and victimisation |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Changes to allow the modernisation of the Children’s Hearings System through enhanced use of available technology could allow remote participation thereby reducing the potential stress of attendance. |
||
| Promoting good relations among and between disabled and non-disabled people |
X |
Policy is not designed for this. |
Do you think that the policy impacts on men and women in different ways?
| Sex |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Giving all fathers PRRs automatically could advance equality. |
||
| Promoting good relations between men and women |
X |
X |
Encouraging using alternative methods to court could promote good relationships between men and women. Shared parenting could promote good relations between men and women. Alternative dispute resolution and shared parenting can have a negative impact in relationships where there is domestic abuse. |
Do you think that the policy impacts on women because of pregnancy and maternity?
| Pregnancy and Maternity |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Policy is not designed for this. |
||
| Promoting good relations |
X |
Policy is not designed for this. |
Do you think your policy impacts on transsexual people?
| Gender reassignment |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Policy is not designed for this. |
||
| Promoting good relations |
X |
Policy is not designed for this. |
Do you think that the policy impacts on people because of their sexual orientation?
| Sexual orientation |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Amendments in relation to the second female parent could advance equality. |
||
| Promoting good relations |
X |
Policy is not designed for this. |
Do you think the policy impacts on people on the grounds of their race?
| Race |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Recognising in Scotland the PRRs of a father who jointly registered a birth overseas in a country where this leads to PRRs. |
||
| Promoting good race relations |
X |
Policy is not designed for this. |
Do you think the policy impacts on people because of their religion or belief?
| Religion or belief |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
Policy is not designed for this. |
||
| Advancing equality of opportunity |
X |
Giving all fathers PRRs and ensuring that they are involved in health and education decisions could help ensure that fathers can influence the religious or belief upbringing of their child. |
||
| Promoting good relations |
X |
Policy is not designed for this. |
Do you think the policy impacts on people because of their marriage or civil partnership?
| Marriage and Civil Partnership [190] |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
N/A |
N/A |
Stage 4: Decision making and monitoring
Identifying and establishing any required mitigating action
| Have positive or negative impacts been identified for any of the equality groups? |
Yes |
| Is the policy directly or indirectly discriminatory under the Equality Act 2010 [191] ? |
No |
| If the policy is indirectly discriminatory, how is it justified under the relevant legislation? |
|
| If not justified, what mitigating action will be undertaken? |
Describing how Equality Impact analysis has shaped the policy making process
The partial EQIA confirms that the proposed policy would have benefits for children and young people.
Monitoring and Review
At this stage this is a partial EQIA and therefore we will consider this further following analysis of the consultation responses.
Stage 5 - Authorisation of EQIA
Please confirm that:
- This Equality Impact Assessment has informed the development of this policy:
Yes X
No
- Opportunities to promote equality in respect of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation have been considered, i.e.:
- Eliminating unlawful discrimination, harassment, victimisation;
- Removing or minimising any barriers and/or disadvantages;
- Taking steps which assist with promoting equality and meeting people’s different needs;
- Encouraging participation (e.g. in public life)
- Fostering good relations, tackling prejudice and promoting understanding.
Yes X
No
- If the Marriage and Civil Partnership protected characteristic applies to this policy, the Equality Impact Assessment has also assessed against the duty to eliminate unlawful discrimination, harassment and victimisation in respect of this protected characteristic:
Yes
No
Not applicable X
Declaration
I am satisfied with the equality impact assessment that has been undertaken for the Review of Part 1 of the Children (Scotland) Act 1995 and creation of a Family Justice Modernisation Strategy and give my authorisation for the results of this assessment to be published on the Scottish Government’s website.
To Be Completed When Final Version Of EQIA Is Published
Name:
Position: [Deputy Director level or above]
Authorisation date:
Contact
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