Children (Care, Care Experience and Services Planning) (Scotland) Bill: equality impact assessment

Key Findings

Age

Aftercare

The policy will expand the right to Aftercare support following an assessment of need to young people aged from 16 to their 26^th birthday who were previously looked after^[9]. This will have a positive impact on young people who, for example, been supported through the Children's Hearings system and subject to a Supervision Requirement with or without any condition of residence, was at any time placed by a local authority which made a permanence order under section 80 of the Adoption and Children Act 2007, accommodated under section 25 of the Children (Scotland) Act 1995 (including disabled children and Unaccompanied Asylum Seeking Children) or who left secure accommodation before their 16th birthday.

The Independent Care Review^[10] highlighted and recognised the links between those with care experience and the increased risk of poor mental health, addiction, homelessness and exploitation.

Evidence from the analysis of the Scottish Government ‘Moving On’ from Care into Adulthood responses and associated engagement sessions showed strong support for extending Aftercare to young people with care experience.

Petition 1958^[11] called for Aftercare to be extended to ‘previously looked after young people’ in Scotland who left care before their 16^th birthday.

It will advance equality of opportunity for those young people who cease to be ‘looked after’ pre-16 and put them on a more equal footing with young people who leave care on or after their 16th birthday.

Advocacy

The Promise states that:

“care experienced children and adults must have the right and access to independent advocacy, at all stages of their experience of care and beyond.”

Work to understand the eligible population by age for a lifelong advocacy service for care experienced people is informing our understanding of how many people are care experienced in Scotland.

Access to lifelong advocacy through the regulation-making provision in the Bill would also support those over the age of 26 and those who did not meet the legal definition of care leaver, who were therefore not able to access other support services. The service should help address some of the lifelong impacts of care beyond the age of 26.

Children’s Hearings

The proposals relating to children’s hearings will have a significant impact on people aged under 18 within the system. Following full implementation of the Children (Care and Justice) (Scotland) Act 2024^[12], all people under 18 in Scotland will be defined as a child for the purposes of the children’s hearings system. The Bill makes a number of changes which will impact on the participation of children and young people, enhance protections from trauma, and ensure that procedural and interim decisions can be taken in more child-friendly ways. Within the proposals for this Bill, there are also some changes which will specifically affect very young children, particularly where they may lack the capacity to understand proceedings, or where their views need to be reflected to decision makers in different ways.

The Bill makes a change to the way cases involving, for example, very young children are handled. Under existing legislation, where a child does not have the capacity to understand the statement of grounds, usually by virtue of their age, a hearing must ask the reporter to refer the case to a sheriff for proof to establish the grounds, even where all relevant persons accept them. Over 95% of cases which are referred for proof under this provision are discharged without a hearing, creating unnecessary delay for the youngest children in the system. As recommended in the “Hearings for Children” report, we are removing this absolute requirement.

These changes will promote good relations with children and young people in the hearings system by eliminating delay, creating a greater degree of flexibility in reporter decision making, and ensuring that a more relational and inquisitorial approach can be taken to discussing grounds, where appropriate. It will advance equality of opportunity by ensuring that additional unnecessary steps are not required simply by virtue of the child’s age, without taking into account the wider circumstances of their case.

In addition to this, we are providing for enhanced and earlier offers of advocacy for children and young people. Promoting an earlier and higher rate of uptake of advocacy will advance equality of opportunity for all children able to give their views in the hearings system to be supported to do so by a specialist advocacy worker. It also may reduce delay caused by hearings deferring decisions so a child can avail themselves of advocacy, which will promote good relations between children and young people and decision makers.

Guidance on the Language of Care

The impact across all age groups of guidance on the language of care has been considered across all age groups. The policy is broadly age-neutral, however, the guidance will be developed to ensure that the needs of children and young people are fully considered and reflected. This includes the feedback heard during consultation and engagement that language needs to be less formal, particularly when engaging with younger children, and should be communicated in an age-appropriate way.

Disability

There is a higher prevalence of disability in looked after children than in the general population of children in Scotland.^[13]

In 2020, an estimated 12.2 per cent of Scotland's 14,458 looked after children were recorded as having a disability. This is higher than the overall proportion of children with a disability (10 per cent) found in the Scottish Health Survey 2017

Aftercare

The expansion of eligibility for Aftercare is anticipated to have a positive impact on young people who are both care experienced and have a disability.

The policy will expand the right to Aftercare support following an assessment of need to young people aged from 16 to their 26 birthday who were previously looked after. This will include disabled children and young people who were supported pre-16 under section 25 of the Children (Scotland) Act 1995^[14].

Advocacy

We know that disabled people are more likely to have need of advocacy in their lifetime than non-disabled people. When taken into consideration that a higher proportion of children and young people who are looked after are disabled than the overall proportion of children with a disability, there is a clear intersection between the groups. Through the provisions made in our policy areas, we will ensure that the interests of disabled care experienced children and young people is protected. Access to a lifelong advocacy service should be accessible and address any challenges that an individual might face

Children’s Hearings

As described under the “Age” category, the Bill makes provision for enhancing the understanding and participation of children and young people to better enable them to give their views to decision makers. Earlier and repeated offers of advocacy, and the additional duties on the reporter will have a positive impact on children with disabilities by identifying additional communication and participation needs at an early stage, which will advance equality of opportunity for all children to fully engage in the decisions which affect them.

Through the provisions made in this Bill and the implementation of policies going forward, we will ensure that the interests of disabled care experience children and young people is protected. In particular, access to Aftercare through eligible needs assessments and a lifelong advocacy service should be accessible and address any challenges that an individual might face.

Guidance on the Language of Care

Guidance on the language of care is anticipated to have a positive impact on children, young people and adults who have care experience and a disability.

The guidance will promote best practice in communicating with people with care experience, including those with a disability, in a way that avoids stigma ensuring that the experiences and needs of everyone with care experience are appropriately understood and taken into account.

We recognise that the guidance may present barriers for people with sensory impairments. To address this, we will ensure all materials are available in accessible formats to ensure that disabled people are not disadvantaged and are fully included in the implementation of this policy.

Sex

The provisions in the Bill apply equally to all children, young people and adults who have experienced care and do not make any distinction based on sex. Current data indicates that boys are more likely than girls to be ‘looked after’, with the ratio in 2023/2024 being 46% female and 54% male.^[15]

Aftercare

The expansion of eligibility for Aftercare is anticipated to have a positive impact on both male and female young people. Due to the larger proportion of boys who are ‘looked after’ than girls, it is estimated that this will benefit more boys than girls. However, it is expected to advance equality of opportunity for those young people of both sexes who leave care pre-16 and put them on a more equal footing with young people who leave care on or after their 16th birthday.

Advocacy

While all provisions relating to advocacy will relate equally to people of all sexes, since there is a higher proportion of boys than girls who are ‘looked after’, this will likely benefit more males with care experience than females. In relation to overall provision of advocacy services across different protected characteristics, there is no clear consensus on which sex uses advocacy services more.

Children’s Hearings

There are proportionally more boys than girls referred to the hearings system each year – 57% of all referred children were male in 2023/24^[16] – so the changes in the Bill are likely to impact more boys than girls. However, the elements of the bill apply equally to both sexes, therefore there are no assessed specific impacts on this characteristic from the proposals instructed.

Work to develop the implementation of policies in relation to Bill provisions will be done in collaboration with relevant support services and individuals to ensure that all protected characteristics are given due consideration.

Pregnancy and Maternity

The Bill provisions will have no adverse impact on young people and adults with care experience with regards to pregnancy and maternity, given that young parents/parents-to-be, will be able to benefit from Aftercare support if they are eligible. Additionally they will be able to access Advocacy support should this be needed as a result of their care experience.

Gender Reassignment

The provisions in the Bill will have no adverse impact on young people with care experience who undergo gender reassignment, given that there will be no restriction or barrier to accessing support through Aftercare, Advocacy or throughout the Children’s Hearings System based on their gender identity. The Scottish Government is committed to ensuring equality of access and support regardless of gender.

Sexual orientation

The provisions in the Bill will have no adverse impact on young people with care experience regardless of their sexual orientation, given that there will be no restriction or barrier to accessing support through Aftercare, Advocacy or throughout the Children’s Hearings System based on their sexual orientation. The Scottish Government is committed to ensuring equality of access and support regardless of sexual orientation.

Race

It is understood that the largest ethnicity recorded as being looked after in Scotland is white (84.1%) with 4.8% of young people belonging to other ethnic groups. Approximately 11% of looked after children have an unknown ethnicity^[17]. In 2021, NICE (National Institute for Health and Care Excellence) made a recommendation on diversity that acknowledged that some looked-after children and young people have particular needs. These include those from black, Asian, and other minority ethnic groups and Gypsy, Roma and Traveller communities^[18].

While the provisions in the Bill will have no adverse impact on young people with care experience regardless of their race, the Scottish Government understands that ensuring equality of access and support for children and young people of all races is essential.

Religion or Belief

On 31st July 2020, of the estimated 14,458 children who were looked after in Scotland, 11.8 per cent were recorded as having a religion, while 26.1 per cent had no religion. However, the majority of children, 62.1 per cent, had an unknown religion^[19].

While the provisions in the Bill will have no adverse impact on young people with care experience regardless of their religion or belief, the Scottish Government understands that ensuring equality of access and support for children and young people of all religions is essential. In relation to the sector as a whole, understanding religion and the importance of maintaining cultural links for looked after children and young people is vital.

In future, should a national register of foster carers be established, the information it holds may include details relevant to carers’ religion or belief, where appropriate and with appropriate safeguards. This could support fostering services in maintaining cultural or religious continuity for children, particularly where religion or belief is a known and important aspect of a child’s identity. While the register is not intended to be a direct matching tool, it may assist in improving the availability and visibility of relevant information across services. A full Equality Impact Assessment will be undertaken as part of the detailed development and implementation of the register to ensure that any potential impacts on this and other protected characteristics are fully considered and addressed.