8. Pillar Six: Assessing Impact
What, if any, do you see as the data protection related issues that you feel could arise from the proposals set out in this consultation?
Respondents identified a series of key concerns relating to data protection issues, most notably around the potential for intrusive data collection and excessive data-sharing of individual's information. This was especially stressed by Children's Rights organisations - along with Local Government/Social Work and Children's Hearings Systems-related organisations - and was seen as particularly relevant to section one of the consultation, surrounding proposals to share information about a child who has harmed to the person who has been harmed and/or their families.
"There could be unnecessary data shared about the child or victim in the course of some of the proposals so guidance would need to be very clear about how when and why to share information."
[Case 8, Individual]
"Section 1 of the consultation, on sharing information about children's hearings, would have significant data protection issues requiring detailed consideration."
[Case 56, Clan Childlaw]
Several respondents also highlighted the need for a full impact assessment to be carried out prior to the implementation of proposals being taken forward.
"An impact assessment would be required to be carried out by the Scottish Government on the specific proposals to be taken forward."
[Case 61, SOLAR]
Responses to this question from young people were limited. Those that did respond repeated concerns that there could be data protection issues related to the sharing of information about a child (including when they breach conditions) to the person they have harmed. One respondent raised that there may be data protection issues around proposals to provide cross border placements with local advocates, and suggested local advocates sign data protection documents. Further, concern was raised that throughout these processes, the Scottish Government and their related agencies might be collecting more data than necessary, constituting an invasion of children and young people's privacy. One respondent highlighted that children should be made aware of their data protection rights.
What, if any, do you see as the children's rights and wellbeing issues that you feel could arise from the proposals set out in this consultation?
In answering this question, many respondents highlighted the need for a full Children's Rights and Wellbeing Impact Assessment (CRWIA) in relation to the proposals.
"We note that no Child Rights and Wellbeing Impact (CRWIA) has been published alongside this consultation. This is regrettable as it would have been useful to review the Government's assessed impact of the proposals it has made. We strongly recommend that a CRWIA is undertaken on these proposals as soon as possible."
[Case 27, Children in Scotland]
Many respondents also stressed the need for legislation and practice tobalancethe rights and needs of the child causing harm, alongside the rights of the person(s) harmed.
"The main issue appears to be balancing the needs and rights of a child that has caused harm with a child who has been harmed and is a victim. However Police Scotland acknowledge that all children have these rights, including when they cause harm."
[Case 22, Police Scotland]
"It is imperative that if the rights of children who cause harm are enhanced further through these proposals, then the balance of these rights must be simultaneously addressed with those harmed. This Bill is an opportunity to give a voice to survivors of sexual violence and their families, to ensure that their trauma is recognised and understood in the decision-making process."
[Case 87, Women's Rape and Sexual Abuse Centre Dundee and Angus]
In considering specific children's rights and wellbeing issues, respondents cited various aspects and potential implications of the proposals, including:
- Sharing of further information about a child to a person they have harmed, where there is concern this may breach the rights and safety of the child.
- Reducing the criteria for Movement Restriction Conditions where this has the potential to net widen and/or up tariff.
- The need for 16- and 17-year-olds in the children's hearings system to have access to legal advocacy
- The lack of focus the consultation gives to community alternatives and the funding of these.
- The need for proposals to be co-designed with children and young people.
- The balance between listening to children's perspectives during decision making processes whilst ensuring their care and protection.
- The importance of considering how proposals may impact on existing legislation surrounding children's rights, including: the Age of Legal Capacity (Scotland) Act 1991; the Marriage (Scotland) Act 1977; the Civil Partnership Act 2004; the Children's Hearing's (Scotland) Act 2011; the Children (Scotland) Act 1995
Responses to this question from young people were again limited. One response highlighted the need for a more detailed impact assessment on the proposals within the consultation. Two other responses stressed again that proposals should focus on the best interest of the child and not be resource driven.
What, if any, do you see as the main equality related issues that you feel could arise from the proposals set out in this consultation?
As highlighted in responses to Question 29, the importance of appropriate impact assessments being carried out in relation to the proposals was noted by several respondents.
"A Child Rights Impact Assessment (CRIA) should be used to gain more detailed understanding of how the proposed reforms could be felt differently by different groups."
[Case 73, Together]
The need for careful consideration of how the proposals could impact on different groups within society was a point highlighted in many responses.
"We know that children from certain backgrounds have an increased likelihood of entering the care system. This includes children from minoritised ethnic backgrounds, those living in poverty and areas of high deprivation, and those where domestic abuse, mental health, substance use, or offending are present. Any proposals related to the care, welfare and protection of children must take account of these inequalities and ensure measures are in place to avoid further oppression or stigmatisation."
[Case 50, Local Government/ Social Work]
"The proposals outlined in this consultation must take more cognisance of the gendered nature of domestic abuse and build in appropriate, specialist support for the numbers of women, children and young people who have experienced domestic abuse who will come into contact with the children's hearings system under new proposed measures."
[Case 57, Scottish Women's Aid]
Relatedly, attention was also drawn to the need to recognise how proposals would impact upon children with disabilities.
"Due consideration should be given to children who are vulnerable as a result of hidden disability, undiagnosed learning difficulty or other issues which may limit their full understanding of their circumstances and the implications of the decisions made on their behalf."
[Case 28, HM Inspectorate of Constabulary]
Responses to this question were again limited. Two responses raised concerns re discrimination against those with criminal charges or who have been placed on electronic monitoring tags. It was felt this could stigmatise children and attach labels to them. Further, one respondent highlighted that any advocates or points of contact should:
"...be given lots of training around different identities e.g. people of colour, LGBTQ young people etc."
[Case 55, Individual Young Person]
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