Publication - Impact assessment

Coronavirus (Extension and Expiry) (Scotland) Bill: child rights and wellbeing impact assessment

Child Rights and Wellbeing impact assessment (CRWIA) to assess the impact of the provisions contained in the Coronavirus (Extension and Expiry) (Scotland) Bill on children and young people.

Coronavirus (Extension and Expiry) (Scotland) Bill: child rights and wellbeing impact assessment
Child Rights and Wellbeing Impact Assessment: Stage 1

Child Rights and Wellbeing Impact Assessment: Stage 1

Screening - key questions

1. What aspects of the policy/measure will affect children and young people up to the age of 18?

The Coronavirus (Extension and Expiry) (Scotland) Bill ("the Bill") makes provision to expire the following provisions in the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No.2) Act 2020 ("the Scottish Acts"), which will affect children and young people, as they are no longer deemed necessary to have in place beyond 30 September 2021:

  • Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020);
  • Children and vulnerable adults: children's hearings (Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020);
  • Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020);
  • Community orders (Section 5 and schedule 4 paragraphs 12; 14; 15(1) reference to "and drug treatment and testing orders."; 15(6) reference to "or drug treatment and testing order" to expire; 16 definition of "drug treatment and testing order"; definition of "relevant local authority" 16(b) and definition of "specified period" of the Coronavirus (Scotland) Act 2020);
  • Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020);
  • Student residential tenancy: termination by tenant (Schedule 1: paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii), and paragraph 3(3) and (4) of the Coronavirus (Scotland) (No.2) Act 2020);
  • Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020).

The Bill also amends the expiry dates of Parts 1 of the Scottish Acts, with the effect that the following provisions in the Scottish Acts, which will affect children and young people, will be available beyond 30 September 2021 as the Scottish Government considers these remain essential in order for public services to be able to continue to discharge their functions in the way they were intended to:

  • Eviction from dwelling-houses (Section 2 and schedule 1: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020);
  • Temporary extension of moratoriums on diligence (Section 3 and schedule 2: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020);
  • Courts and tribunals: conduct of business by electronic means (Section 5 and schedule 4: paragraphs 1-6 of the Coronavirus (Scotland) Act 2020);
  • Fiscal fines (Section 5 and schedule 4: paragraph 7 of the Coronavirus (Scotland) Act 2020);
  • Cases beginning with an appearance from custody (Section 5 and schedule 4: paragraphs 8 and 9 of the Coronavirus (Scotland) Act 2020);
  • Extension of time limits (Section 5 and schedule 4: paragraph 10 of the Coronavirus (Scotland) Act 2020);
  • Exceptions to the rule that hearsay evidence is inadmissible (Section 5 and schedule 4: paragraph 11 of the Coronavirus (Scotland) Act 2020);
  • Community orders (Section 5 and schedule 4: paragraphs 13, 15 and 16 of the Coronavirus (Scotland) Act 2020);
  • Release of prisoners (Section 5 and schedule 4: paragraphs 19 and 20 of the Coronavirus (Scotland) Act 2020);
  • Legal Aid (Section 5 and schedule 4: paragraphs 21 – 23 of the Coronavirus (Scotland) Act 2020);
  • Duration of planning permission (Section 8 and schedule 7: paragraphs 8 – 10 of the Coronavirus (Scotland) Act 2020) and Listed buildings and conservation areas: consents (Section 5 and schedule 4: paragraph 2 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Land registration: electronic delivery of copies to Registers of Scotland (Section 8 and schedule 7: paragraphs 11-14 of the Coronavirus (Scotland) Act 2020 and Section 5 and schedule 4: paragraphs 3-4 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Student residential tenancy: termination by tenant (Section 2 and schedule 1: paragraphs 1 – 3 of the Coronavirus (Scotland) (No.2) Act 2020, except those provisions creating a 7-day notice periods for certain tenancies);
  • Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears (Section 2 and schedule 1: paragraphs 4 and 5 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Social care staff support fund (Section 2 and schedule 1: paragraph 7 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Bankruptcy (Section 2 and schedule 1: paragraphs 8, 10 and 12 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Mental Health: named person nomination (Section 2 and schedule 1: paragraph 15 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Criminal Justice - Criminal proceedings: extension of time limits (Section 3 and schedule 2: paragraph 1 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Criminal Justice - Arrangements for the custody of persons detained at police stations (Section 3 and schedule 2: paragraphs 2 – 5 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Criminal Justice - Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 (Section 3 and schedule 2: paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Proceeds of Crime (Section 3 and schedule 2: paragraphs 8 and 9 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Intimation etc. of documents (Section 3 and schedule 2: paragraph 10 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Care services: giving of notices by the Care Inspectorate (Section 5 and schedule 4: paragraph 5 of the Coronavirus (Scotland) (No.2) Act 2020);
  • Execution of documents, etc. (Section 5 and schedule 4: paragraph 9 of the Coronavirus (Scotland) (No.2) Act 2020).

2. What likely impact - direct or indirect - will the policy/measure have on children and young people?

Provisions to be expired on 30 September 2021, resulting in a return to pre-COVID legislative arrangements

Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020)

Section 3 and Schedule 2, paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020 remove the prohibition against benefitting from more than one moratorium on diligence in any 12 month period. The intention behind this amendment was to ensure that those who had recently had a moratorium prior to the on-set of the pandemic were not excluded from the effect of the changes. This provision has now been in place since 7 April 2020 and the policy rationale to protect those who had utilised a pre-pandemic 6 week moratorium no longer exists.

The expiry of these provisions will serve to ensure that those who are owed sums are not unduly prejudiced by repeat moratorium applications that could result in sequential 6 month periods of protection from any debt recovery action.

This extension of the existing moratorium on diligence and bankruptcy from six weeks to six months remains in force and this prevents creditors from taking action against individuals who have financial difficulties, thus allowing those individuals time to find advice on how best to deal with their debts and, in current circumstances, also to recover from time-limited income shocks without having to take serious steps like applying for bankruptcy. This creates a 'breathing space' in which an individual can seek money advice, and find the right longer term solution for their circumstances.

The costs of problem debt are felt strongly by families. StepChange, a debt advice agency, suggest that 90% of parents in problem debt cut back on essential items for their children to help them keep up with their debts. They suggest that families in problem debt are twice as likely to argue about money than families in general, contributing to relationship strain and family breakdown. These problems are not limited to parents. Amongst children from families in problem debt, StepChange found that 60% often worried about their families' finances. There are concerns that the economic consequences of the Covid-19 pandemic may result in a significant number of additional families facing issues of problem debt. Whilst these provisions are being expired (since the policy rationale to protect those who had utilised a pre-pandemic 6 week moratorium no longer exists), paragraphs 1 and 4 of schedule 2 are being extended which will help to continue to alleviate these additional pressures on families.

Children and vulnerable adults: children's hearings (Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020)

Expiry of these provisions in the Coronavirus (Scotland) Act 2020 will mean that Children's Hearings will revert back to pre-COVID procedures with a strengthening of rights as a result of bringing to an end the current temporary extensions to timescales. This means that quicker decisions and outcomes will be reached. To avoid the possibility of confusing children and families, in relation to child protection orders, appeals, and compulsory supervision orders, it will be necessary for temporary transitional requirements to be put in place to protect rights and ensure transparency around child protection and children's hearing administration post-30 September 2021. These provisions will be extremely short-term and will relate to orders already issued and appeal timescales already applied.

The temporary powers in the Coronavirus (Scotland) Act 2020 also permit electronic authentication of children's hearing decisions which have alimited positive impact on children as they result in swifter notification of hearing outcomes. The decision of a hearing, and reasons for reaching that decision, as well as other reports, orders or warrants which the hearing issues, must be signed by the chairing member of the hearing. The children's reporter must send notification of the decision and reasons, copies of orders issued etc. to the affected child and their relevant persons. These provisions enable decisions to be made remotely with the panel member in a different place from the children's reporter meaning the paperwork will not have to be signed by hand.

The provisions also allow decisions or orders to be authenticated electronically by the chairing member of a children's hearing or the children's reporter. The chairing member may not have the technological capacity to remotely record and authenticate documents, therefore, the children's reporter is able to do that as a result of the provisions. This ensures maximum flexibility so that the reporter can still notify decisions, reasons and orders as promptly as possible to those who are affected.

As a result of benefits seen in relation to electronic authentication and virtual children's hearings, separate legislation[1] has been made via amendments to the Children's Hearings Rules of Procedure – coming into force 26 July 2021 – this will prove to be a long term benefit for children. Relevant impact assessments accompany that legislation[2].

Covid-19 means that it is not possible for children's hearings to be carried out in the usual format – it is anticipated that virtual hearings or hybrid hearings (some participants in physical attendance and some virtually) will continue for some time. Wider evaluation and service user feedback needs to be considered for the longer term.

Expiry of the looked after children provisions in the Coronavirus (Scotland) Act 2020 will mean that placement limits for foster carers will revert to three. The amendments to the Looked After Children's Regulations (2009) come into force in September 2021 and makes provision for a new exception to fostering placement limits in individual circumstances where this promotes the child's welfare and wellbeing. This will further strengthen sisters' and brothers' relationships supporting them to remain together where it is safe to do so. It will be necessary for temporary transitional requirements to ensure children's rights to remain in the foster placement they have become settled in, after 30 September.

It is anticipated that the expiry of the temporary provisions for kinship care, reverting to earlier regulation, will strengthen the rights of children and their carers requiring earlier assessment of kinship arrangements.

Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020)

The Adults with Incapacity (Scotland) Act 2000 ("AWI Act") classifies an adult as being a person who has attained the age of 16. Young people aged 16-18 are unlikely to be affected by expiry of guardianships as these are usually granted for 3 years or more, but it is possible. Section 47 medical certificates are ordinarily granted for a year, so it is more likely that 16-18 year olds will be affected. The provisions paused the countdown of time towards expiry of the guardianship and section 47 certificate. The 'clock' was then started again on suspension of the provisions at the end of September 2020. Those 16-18 year olds subject to a guardianship or a section 47 certificate will be subject to those orders or certificates longer than they would ordinarily be. There is the ability under the AWI Act to bring an order or certificate to an end if it is no longer required.

Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020)

These provisions relax the timescales which apply for Social Security Scotland ("the Agency") making re-determinations.

Evidence suggests that these provisions brought some benefit in allowing the Agency to be able to manage redeterminations with reduced capacity as a result of coronavirus and by allowing clients additional time to provide information required for a redetermination to be made. This had the knock-on benefit of preventing redeterminations which were delayed by coronavirus, and therefore not completed by the original deadline that existed without the extension, going to the First Tier Tribunal unnecessarily.

The expiry of these temporary provisions will result in a return to the original legislative arrangements in place prior to the coronavirus pandemic for redetermination timescales. The provisions to be expired will continue to have effect for redeterminations commenced ahead of the expiry, by warrant of the Interpretation and Legislative Reform(Scotland) Act 2010. There will be no separate impact on children and young people comparative to other clients as a result of the expiry.

Student residential tenancy: termination by tenant (Schedule 1: paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii), and paragraph 3(3) and (4) of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government anticipates that expiry of the 7-day notice period for student residential tenancies entered and occupied prior to 27 May 2020 will not have a significant impact on children's rights and well-being.

The seven day notice period was for a particularly challenging period in respect of travel restrictions and the move to blended learning last year – the social, economic and health pressures faced by students now are not the same as they were a year ago so it is now considered that the 28 day notice period provides sufficient protection. The majority of student tenancies are on an annual basis, so the numbers of student tenancies which were entered into prior to 27 May 2020 will now be significantly lower. The 28 day notice period, therefore covers all students in halls and PBSA and there is no detriment to the likely very small numbers of students to whom the seven day notice still applies – all students in halls and PBSA can still terminate their lease but for a small group they will have to give 3 weeks more notice than before. It is not considered that this extra 3 weeks creates a disproportionate impact on the students affected. The 28 day notice period aligns with students renting in the private sector giving all students the same rights to terminate their lease.

Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

Payment was made successfully to over 80,000 unpaid carers at the end of June 2020. Around 83,000 carers are expected to benefit once all backdated payments are made. Coronavirus Carer's Allowance Supplement ("CCAS") mainly affected young people (16 and over) who are in receipt of Carer's Allowance ("CA"), with indirect impacts on disabled children and young people who are cared for by someone in receipt of CA.

It is not anticipated that expiry of these provisions will have an adverse impact on children and young people. The Scottish Government is content that backdating of CCAS can continue beyond expiry of the provision on the basis that the Interpretation and Legislative Reform (Scotland) Act 2010 will protect individual rights acquired while the provision was in force. Further legislation will be introduced to allow for provision to be made for a subsequent increase to carer's allowance supplement for the period of 1 October 2021 to 31 March 2022.

Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020)

These temporary provisions were introduced to enhance the reporting of inspections and of deaths in care homes, primarily care homes for adults and older people. This is because evidence has shown that older people are more at risk of being seriously affected by coronavirus and more at risk of death as a consequence.

It is therefore not anticipated that expiry of these provisions will have an adverse impact on children and young people.

Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020)

In Scotland, young people receive a number of rights at 16 years old, such as the right to marry or register a civil partnership. The number of young people exercising their right to marry is low. In 2019, there were 26,007 marriages. Of these, 33 were young people aged 16-19 years old.[3]

The Scottish Government has not identified any differential impact on children and young people arising from the expiry of the provision as the policy underpinning the provision can continue to be delivered after the provision has expired. Article 12 of the European Convention on Human Rights ("ECHR") already protects the right of men and women of marriageable age to marry. The expiry of the provision will not affect either the existence of the ECHR protection or the Scottish Government's policy to ensure the continued availability of marriage and civil partnership.

Provisions deemed essential to be extended beyond 30 September 2021 to continue responding appropriately to the public health emergency

Eviction from dwelling-houses (Section 2 and schedule 1: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020)

Tenants in both the private and social rented sectors continue to find themselves in financial difficulty due to the pandemic and unable to meet their obligations under their tenancy agreement. Under current housing legislation, this places them at risk of having their home repossessed by their landlord at a time when housing, health and other public services are under acute and ongoing pressure. More broadly, there is also a need to prevent the unnecessary movement of tenants during this unprecedented situation to support measures to inhibit the progress of the virus. As recovery progresses some people may experience hardship as support schemes are wound down and there are possibilities that some areas could return to higher restriction levels at short notice as outbreaks of concern occur.

To protect tenants from being evicted from their homes during the ongoing pandemic, the Scottish Government is continuing provisions within the Coronavirus (Scotland) Act 2020 to:

  • extend the notice to leave period for private rented sector landlords and the notice for recovery of possession for social landlords. The extended notice periods are either for 6 months (in most cases) or 3 months for certain tenant conduct grounds relating to antisocial or criminal behaviour and where a landlord or their family member need to move into the property. No change will be made in relation to where eviction is sought on the ground that a property is vacant as it will have no impact on dealing with the current crisis. No change is also made in relation to the alternative accommodation ground which applies to assured tenancies, nor in relation to short secure tenancies at the end of their term involving anti-social behaviour;
  • make all grounds for repossession discretionary so that the Tribunal can consider the full facts of the case when deciding whether to grant an eviction.

Over recent years the private rented sector has seen an increasing number of families calling it home. Based on the latest published Scottish Household Survey (SHS) data, there are an estimated 70,000 family households out of 340,000 in the private rented sector in Scotland. In the social rented sector there are 150,000 family households out of 580,000. 'Families' are assumed to include large family, small family and single parent household categories of the SHS.

SHS data also highlights that, 11% of social rented households were single parent families, 9% were small families and 5% were large families. These are broadly similar to that of the private rented sector. Many of these family households will be significantly impacted by the current Covid-19 pandemic, therefore the provisions being taken forward to protect renters from eviction during this time are highly likely to have a positive impact on both children and young people residing within these rented family homes.

Should these legislative measures not be continued, many families with children may face being evicted from their rented properties during the ongoing health crisis and this would therefore significantly increase the chances of households becoming homeless. Therefore not taking forward this temporary legislative action would likely have a detrimental impact on children's and young people's rights.

Temporary extension of moratoriums on diligence (Section 3 and schedule 2: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020)

The costs of problem debt are felt strongly by families. StepChange, a debt advice agency, suggest that 90% of parents in problem debt cut back on essential items for their children to help them keep up with their debts. They suggest that families in problem debt are twice as likely to argue about money than families in general, contributing to relationship strain and family breakdown. These problems are not limited to parents. Amongst children from families in problem debt, StepChange found that 60% often worried about their families' finances. There are concerns that due to the circumstances surrounding the Covid-19 pandemic, there may be a number of additional families who might enter problem debt. This Bill will therefore extend the moratorium on debt relief to alleviate these additional pressures.

Courts and tribunals: conduct of business by electronic means (Section 5 and schedule 4: paragraphs 1-6 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case cannot be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing, although not with the use of the ground of referral that the child has committed an offence. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals aged from 16 to 17 who commit a criminal offence may be dealt with by the courts.

Children and young people are also victims of crime and may be required to give evidence in criminal proceedings. Increasingly, there is a move to ensure that, where they are due to give evidence in the most serious cases, they will be allowed to have it pre-recorded in advance of the trial. This will usually be by the special measure 'evidence by commissioner'. Joint Investigative Interviews and other methods can be more routinely used as evidence in chief, increasing the use of pre-recorded evidence.

These measures enable social distancing and are required as justice institutions will face acute staffing pressures throughout the course of the pandemic. These provisions are designed to ensure the need for physical attendance at court is removed wherever possible; and electronic means are deployed. Greater flexibility is also built in for applicable time limits; and for the hearing of custody cases.

Insofar as these provisions underpin the continued operation of the justice system, they assist in upholding the rights of children and young people who have been victims of crime and those who offend. Measures relating to electronic means of attendance are in line with moves to allow children and vulnerable witnesses to give their evidence in criminal trials and to participate in tribunal hearings within a safe, sensitive and secure environment.

Fiscal fines (Section 5 and schedule 4: paragraph 7 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case cannot be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

The increase in the maximum fiscal fine that COPFS can offer as an alternative to prosecution may have a financial impact on children aged 16 to 17 who are offered and accept to pay a fine rather than being prosecuted in the courts.

Cases beginning with an appearance from custody (Section 5 and schedule 4: paragraphs 8 and 9 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case cannot be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

The provision enables custody proceedings to be heard in any sheriff court in Scotland by a sheriff of any sheriffdom no matter where the alleged offence took place during the coronavirus pandemic.

The provision will impact children and young people only in instances where the person has been arrested for a criminal offence and held in police custody prior to an appearance in court. However, in accordance with section 22 of the Criminal Justice (Scotland) Act 2016, generally persons under 16 (and 16 and 17 year olds subject to compulsory supervision orders) are to be kept in a place of safety until the person can be brought before the court and this place of safety must not be a police station unless certain conditions are met.

Extension of time limits (Section 5 and schedule 4: paragraph 10 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case cannot be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

Children and young people are also victims of crime and may be required to give evidence in criminal proceedings. Increasingly, there is a move for this to be done via pre-recording evidence; through Evidence by Commissioner, Joint Investigative Interviews and other methods which avoid a child or young person having to attend court.

Exceptions to the rule that hearsay evidence is inadmissible (Section 5 and schedule 4: paragraph 11 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case cannot be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

Children and young people are also victims of crime and may be required to give evidence in criminal proceedings. Increasingly, there is a move for this to be done via pre-recording evidence; through Evidence by Commissioner, Joint Investigative Interviews and other methods which avoid a child or young person having to attend court.

Community orders (Section 5 and schedule 4: paragraphs 13, 15 and 16 of the Coronavirus (Scotland) Act 2020)

The policy could directly impact on individuals aged 16-18 who are subject to a community order, although the numbers impacted will be small due to the composition of the offending population - young people are proportionately less likely to receive a Community Payback Order ("CPO") with evidence showing that 16-17 year olds made up only 2% of individuals who received a CPO in the 2019/20 period.

The policy could directly impact on individuals age 16-18 who are subject to a community order. However, as this policy is not targeted at a specific age group, rather all those subject to community sentences, it is not expected to impact those individuals adversely in terms of the protected characteristic of age.

Additionally, the specific risks and needs of people aged 16-18 subject to CPOs will be taken into account by Justice Social Work ("JSW") and youth justice services should these provisions impact them.

JSW will continue to prioritise cases where any risk to children is present, and will work in close collaboration with child and adult protection and domestic abuse services to ensure the safety and wellbeing of children.

Release of prisoners (Section 5 and schedule 4: paragraphs 19 and 20 of the Coronavirus (Scotland) Act 2020)

These provisions in the Coronavirus (Scotland) Act 2020 enabled the Scottish Ministers to specify a class of persons who would be eligible for release, who would be further defined by regulation laid before Parliament.

Ministers have deemed that use of the early release power was necessary and proportionate on one occasion since the Coronavirus (Scotland) Act 2020 came into force. Regulations were brought before Parliament and a process was given effect in May-June 2020 to release a limited number of short-sentence prisoners who were already close to their scheduled released date. The scheme was limited to those sentenced to 18 months or less and who on 4 May had 90 days or less left to serve. Further exclusions aimed at ensuring public protection were included in the regulations and by the completion of the release process, 348 of the 445 considered were released early.

The early release regulations made wide provision for eligibility based on sentence length and time remaining in custody, so that eligibility for release could include young people held within the prison estate. Those in prison custody who were designated as young offenders were considered as eligible for release, providing that they fulfil the rest of the criteria set out in the regulations. In practice, one individual aged between 16-17 was released under these provisions in the May 2020 process. Consistent with not selecting for release based on protected characteristics, there was not priority for release given to those with any particular protected characteristics. The additional capacity (space and staff capacity) that release provided, meant prisons were able to configure their services accordingly to match any specific needs of particular groups in their care at that time. Future uses of the power would also need to be constructed in such a way as not to create any unlawful discrimination based on age.

In order to ensure that suitable contingency arrangements remain available for a range of possible scenarios, the Government needs to retain the ability to respond to potential future developments in coronavirus. This might include the impact of emerging new variants which could necessitate further action in the form of prison release to support the safe operation of prisons and to protect the health and wellbeing of prison staff and prisoners. In such circumstances, even with the mitigating action which the Scottish Prison Service (SPS) has continued to take, there is risk that our prisons could not continue to operate safely with increased population levels, or heightened public health restrictions. In such emergency circumstances, there is a need to have effective statutory options to respond, including the potential to release prisoners early from custody.

It is recognised that there are particular challenges in relation to the release of young people who are in custody. Specifically, pre-release planning has particular importance for this group of individuals and there is a need to ensure that the appropriate support is available in the period preceding, and then following, release. The previous early release process had a particular focus on an enhanced processes for notification of those eligible for release, so that statutory and third sector providers could make arrangements for support on release. This was considered to be in keeping with the ethos of the Whole System Approach (WSA) to young people with the opportunity for continuity of approach between service providers.

Governors have a duty of care for those in custody and in any future release process they would be able to consider the circumstance of a proposed release of a young person to establish any vulnerabilities that might need to be considered as part of release. This might ultimately lead to a veto if the risk of harm pertained to the young person themselves. This aspect of the legislation provides a form of safeguard against creating an eligibility for release for a young person where it may not be in their best interests to leave at that time, and this arrangement would continue to apply under any future emergency early release process.

Future early release of adult prisoners may have an impact on households and family members in the community (including children and young people), potentially positive or negative. The regulations applied to the May 2020 process specifically excluded prisoners sentenced for domestic abuse and harassment offences, and the Governors' veto could prevent the release of specific prisoners where their release presents a risk to an identified person (which could further reduce the risk of domestic violence or risk to previous victims). However, for some households, children and young people, the early release may provide a benefit in terms of family life, household finances, or childcare and caring responsibilities – which may be particularly challenging if social distancing / lockdown measures are in place.

Legal Aid (Section 5 and schedule 4: paragraphs 21 – 23 of the Coronavirus (Scotland) Act 2020)

Solicitors and advocates who deliver legal aid services may suffer financial detriment as a result of COVID-19, with a reduction in criminal trials, criminal activity and civil demands impacting on income. A slowdown in income could have a significant negative impact on the ability of legal aid providers to continue. The risk is that once the justice system returns to whatever a new normal is, there will be insufficient capacity in the legal profession to deliver legal aid services. This will directly impact on the criminal justice system with implications on an accused person's right to a fair trial and legal counsel. In civil law a reduction in legal aid practitioners will impact on a person's ability to protect and defend their rights including areas of discrimination, housing and employment. It is expected there may be an increase in those seeking advice in these areas. The legal profession are supportive of these measures. It is not anticipated that this will have a negative impact on children or young people.

Land registration: electronic delivery of copies to Registers of Scotland (Section 8 and schedule 7: paragraphs 11-14 of the Coronavirus (Scotland) Act 2020 and Section 5 and schedule 4: paragraphs 3 and 4 of the Coronavirus (Scotland) (No.2) Act 2020)

The measures will have no direct or indirect impact on children and young people as the digital submission systems are open only to solicitors who are adults, with the very small number of individuals who wish to carry out their own conveyancing on behalf of children still able to do so, with those individuals submitting paper deeds.

Student residential tenancy: termination by tenant (Section 2 and schedule 1: paragraphs 1 – 3 of the Coronavirus (Scotland) (No.2) Act 2020, except paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii) and paragraph 3(3) and (4) which are being expired)

The extension of a temporary 28 day notice to leave period for students living in Purpose Built Student Accommodation (PBSA) and Halls of Residence to enable them to end their accommodation contract early will:

  • ensure that students who have left their accommodation, or have been unable to return to it, due to Coronavirus restrictions and who wish to end their contract early, are able to do so; and
  • bring the tenancy rights of students in PBSA/Halls of Residence in relation to notice periods in line with those students residing in the mainstream private rented sector.

Typically, the majority of those who reside in student accommodation are women. Almost half of students in halls are from outside the UK and hence, PBSA and Halls of Residence are more likely to be ethnically diverse. The majority of students residing in PBSA and halls of residence are 21 and under.

The 28 day notice period aligns with students renting in the private sector giving all students the same rights to terminate their lease. It should be noted that, following the expiry of the 7-day notice period for tenancies entered prior to 27 May 2020 (paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii), and paragraph 3(3) and (4)), the 28-day notice period will apply to those tenancies instead. All student residential tenancies will then have a notice period of 28 days.

Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears (Section 2 and schedule 1: paragraphs 4 and 5 of the Coronavirus (Scotland) (No.2) Act 2020)

Tenants in both the private and social rented sectors continue to find themselves in financial difficulty due to the pandemic and unable to meet their obligations under their tenancy agreement. Even under the emergency extended notice period provisions this places them at risk of having their home repossessed by their landlord at a time when housing, health and other public services are under acute and ongoing pressure. More broadly, there is also a need to prevent the unnecessary movement of tenants during this unprecedented situation to support measures to inhibit the progress of the virus. As recovery progresses some people may experience hardship as support schemes are wound down and there are possibilities that some areas could return to higher restriction levels at short notice as outbreaks of concern occur.

To support tenants experiencing difficulty with rent payments, it is the Scottish Government's intention to extend provisions within the Coronavirus (Scotland) Act 2020 to:

  • require landlords seeking repossession on the grounds of rent arrears to work with their tenants towards resolution, sign-posting them to sources of help and advice;
  • provide the First Tier Tribunal the discretion to consider a landlord's action in determining whether a repossession is reasonable.

Over recent years the private rented sector has seen an increasing number of families calling it home. Based on the latest published Scottish Household Survey (SHS) data, there are an estimated 70,000 family households out of 340,000 in the private rented sector in Scotland. In the social rented sector there are 150,000 family households out of 580,000. 'Families' are assumed to include large family, small family and single parent household categories of the SHS.

SHS data also highlights that, 11% of social rented households were single parent families, 9% were small families and 5% were large families. These are broadly similar to that of the private rented sector. Many of these family households will be significantly impacted by the current Covid-19 crisis, therefore the provisions being taken forward to protect renters from eviction during this time are highly likely to have a positive impact on both children and young people residing within these rented family homes.

Should these legislative measures not be continued, many families with children may face being evicted from their rented properties during the ongoing health crisis and this would therefore significantly increase the chances of households becoming homeless. Therefore not taking forward this temporary legislative action would likely have a detrimental impact on children's and young people's rights.

Social care staff support fund (Section 2 and schedule 1: paragraph 7 of the Coronavirus (Scotland) (No.2) Act 2020)

Sector data shows that the number of staff aged up to 20 employed in the Social Care sector to be very low - <2.5% across every sector of the workforce.

Other than very low numbers potentially eligible to claim, most of the impacts to children will be positive. For example, children will feel the benefits of an eligible parent being able to apply for this financial support.

Bankruptcy (Section 2 and schedule 1: paragraphs 8, 10 and 12 of the Coronavirus (Scotland) (No.2) Act 2020)

To the extent that children and young people are living in households facing the burden of unsustainable debt, they will benefit indirectly from measures that increase the minimum debt threshold that can give rise to creditor petition bankruptcy being pursued through the courts. The provisions provide greater protection to households experiencing issues of problem debt and provides additional breathing space to identify an appropriate solution. The costs of problem debt are felt strongly by families. StepChange, a debt advice agency, suggest that 90% of parents in problem debt cut back on essential items for their children to help them keep up with their debts. They suggest that families in problem debt are twice as likely to argue about money than families in general, contributing to relationship strain and family breakdown. These problems are not limited to parents. Amongst children from families in problem debt, StepChange found that 60% often worried about their families' finances. There are concerns that due to the circumstances surrounding the coronavirus pandemic, there may be a number of additional families who might enter problem debt.

Mental Health: named person nomination (Section 2 and schedule 1: paragraph 15 of the Coronavirus (Scotland) (No.2) Act 2020)

Under the Mental Health (Care and Treatment) (Scotland) Act 2003 a patient aged 16 or over may choose an individual to be their named person. A named person represents the interests of and supports a patient subject to proceedings under the 2003 Act. These provisions temporarily removes the requirement for a person to have their signature witnessed by a prescribed person when they agree to become a named person.

Although these temporary changes do not apply to those under 16, the provisions ensure that patients still have the ability to choose their own named person, while minimising any delays in the process of nomination caused by the pandemic. This in turn will reduce any delays in having the patient involved in their care and treatment decisions.

Criminal Justice - Criminal proceedings: extension of time limits (Section 3 and schedule 2: paragraph 1 of the Coronavirus (Scotland) (No.2) Act 2020)

These provisions remove the time limit on the permitted length of a single adjournment in summary cases after first calling where the accused is not in custody, and in all cases involving an offence punishable with imprisonment to allow inquiries to be made prior to sentencing for a report on the offender's physical or mental condition or pending a decision regarding an alleged breach of a court order. The purpose of these provisions is to avoid additional court hearings in order to further adjourn cases where it is anticipated at the outset that the pandemic means it will not be possible for further inquiries to be completed within the current maximum period for a single adjournment. These changes apply in cases involving children who have reached the minimum age for prosecution (12) in the same way as they do to adults, but it should be noted that, in line with the Lord Advocate's guidelines on the reporting of offences committed by children, the great majority of offences alleged to have been committed by children under the age of 16 are reported to the Children's Reporter rather than being prosecuted in the criminal courts.

Criminal Justice - Arrangements for the custody of persons detained at police stations (Section 3 and schedule 2: paragraphs 2 – 5 of the Coronavirus (Scotland) (No.2) Act 2020)

The provisions to allow the Scottish Ministers to make arrangements for Prisoner Custody Officers will not impact on children and young people.

Criminal Justice - Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 (Section 3 and schedule 2: paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case can't be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

These provisions impact children and young people only in instances where the person released on an undertaking is a person aged 12 years or more. It should be noted, however, 'Lord Advocate's Guidelines: Liberation by the Police Covid-19 or Coronavirus' says while children can be released on undertakings, the necessity and proportionality of imposing conditions on a child must be considered carefully before applying any liberation condition to a child.

Proceeds of Crime (Section 3 and schedule 2: paragraphs 8 and 9 of the Coronavirus (Scotland) (No.2) Act 2020)

Inclusion of the effect, direct or indirect, of coronavirus on proceedings as an exceptional circumstance in relation to the proceedings for the purposes of section 99(4) of the Proceeds of Crime Act 2002will have no impact on the rights of children or young people.

Extension of the specified period for payment of a confiscation order where payment cannot be made for reasons relating, directly or indirectly, to coronavirus within 12 months of the date that the order was made and disapplication of interest where an extension is grantedmay have an impact on the rights of children and young people under Article 9 of the UNCRC.

Intimation etc. of documents (Section 3 and schedule 2: paragraph 10 of the Coronavirus (Scotland) (No.2) Act 2020)

Extension of this provision permits documents which would otherwise have been displayed on the walls of the court to instead be displayed on the Scottish Courts and Tribunal Service. This is a key measure to provide for the continuation of civil and commissary business, aspects of which would otherwise be unable to proceed during the coronavirus pandemic. It is not anticipated that the extension of this provision will have an adverse impact on children and young people.

Care services: giving of notices by the Care Inspectorate (Section 5 and schedule 4: paragraph 5 of the Coronavirus (Scotland) (No.2) Act 2020)

Extension of this provision enables the Care Inspectorate to issue notices by electronic means in as safe and secure a way as possible, as the expiry of these provisions would result in the requirement for physical processes to once again take effect. It is not anticipated that the extension of this provision will have an adverse impact on children and young people.

Execution of documents, etc. (Section 5 and schedule 4: paragraph 9 of the Coronavirus (Scotland) (No.2) Act 2020)

The provisions create the opportunity for Scottish notaries public, solicitors and advocates, guided by their professional bodies, to adopt alternative appropriate means of executing documents and oaths etc. which have a "physical presence" requirement. For example, notaries public may now execute remotely, by electronic means such as live video connection. It is not anticipated that this will have a negative impact on children or young people.

3. Are there particular groups of children and young people who are more likely to be affected than others?

Provisions to be expired on 30 September 2021, resulting in a return to pre-COVID legislative arrangements

Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020)

The provision that is to be expired introduced a waiver on the prohibition of benefitting from more than one application for moratorium protection within a 12 month period. The original policy rationale for these provisions was to protect those who had utilised a pre-pandemic 6 week moratorium and that rationale no longer exists. However, the extended moratorium period of 6 months remains in force and this prevents creditors from taking action against individuals who have financial difficulties, thus allowing those individuals and families time to find advice on how best to deal with their debts. Children in impoverished households with debt are five times more likely to have low well-being than those in households without debt problems, according to a 2016 report by The Children's Society. In 2014, StepChange estimated 1.4m UK families, with 2.4m dependent children, were living in problem debt. Having a number of different creditors was found to significantly increase stress in impoverished households, as different creditors may have different demands and may all call for repayment at the same time. Distressing experiences, such as visits from bailiffs, fear of eviction and stress caused by arguing parents trying to make ends meet, were found to have a direct impact on children's mental well-being.

Children and vulnerable adults: children's hearings (Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020)

All children who are participating in a children's hearing or pre-hearing panel will be affected by these changes with a return to earlier decisions and therefore implementation of support, this includes those from secure or residential care, in foster or kinship care and child protection matters. These children and young people are the most vulnerable in Scotland and it is important the supports around them are able to deliver what is in the best interest of the child in these unprecedented times and ensure their legal orders remain in place.

Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020)

By the nature of the legislation the particular group of young people affected will be those with learning disabilities, although it is not expected that there will be many due to the narrow age range of 16-18 years where this is applicable to the AWI Act.

Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020)

It is not anticipated that expiry of these provisions will have an adverse impact on the children and young people who apply to Social Security Scotland for assistance, nor any particular subset of those children and young people.

Student residential tenancy: termination by tenant (Schedule 1: paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii), and paragraph 3(3) and (4) of the Coronavirus (Scotland) (No.2) Act 2020)

It is not anticipated that the expiry of these provisions will have an adverse impact on children and young people in halls and PBSA. The 28 day notice period, therefore covers all students in halls and PBSA and there is no detriment to the likely very small numbers involved still on a seven day notice – all students in halls and PBSA can still terminate their lease but for a small group they will have to give 3 weeks more notice than before. It is not considered that this extra 3 weeks creates a disproportionate impact on the students affected. The 28 day notice period aligns with students renting in the private sector giving all students the same rights to terminate their lease.

Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

Disabled children and young people aged up to 18 cared for by CCAS recipients are more likely to have been positively affected than other groups. It is not anticipated that expiry of these provisions will have an adverse impact on children and young people. Further legislation will be introduced to allow for provision to be made for a subsequent increase to carer's allowance supplement for the period of 1 October 2021 to 31 March 2022.

Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020)

These temporary provisions were introduced to enhance the reporting of inspections and of deaths in care homes, primarily care homes for adults and older people. This is because evidence has shown that older people are more at risk of being seriously affected by coronavirus and more at risk of death as a consequence. Children's and young people's services have continued to be scrutinised and supported by the Care Inspectorate throughout the coronavirus pandemic, but have not fallen under the scope of these temporary provisions.

It is not anticipated that expiry of these provisions will have an adverse impact on children and young people, nor any particular subset of those children or young people.

Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has not identified any particular groups of children and young people who are more likely to be affected than others.

Provisions deemed essential to be extended beyond 30 September 2021 to continue responding appropriately to the public health emergency

Eviction from dwelling-houses (Section 2 and schedule 1: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020)

Those children and young people who reside in a family home that is in receipt of benefits may be more positively impacted by an extension to the changes made. Such family homes could have been seen to be more at risk of falling into rent arrears and therefore eviction proceedings. The temporary changes provided for by these provisions, along with increased financial support on offer during the pandemic, are likely to positively impact on this particular group of children and young people.

Temporary extension of moratoriums on diligence (Section 3 and schedule 2: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020)

Children in impoverished households with debt are five times more likely to have low well-being than those in households without debt problems, according to a 2016 report by The Children's Society. In 2014, StepChange estimated 1.4m UK families, with 2.4m dependent children, were living in problem debt. Having a number of different creditors was found to significantly increase stress in impoverished households, as different creditors may have different demands and may all call for repayment at the same time. Distressing experiences, such as visits from bailiffs, fear of eviction and stress caused by arguing parents trying to make ends meet, were found to have a direct impact on children's mental well-being.

Courts and tribunals: conduct of business by electronic means (Section 5 and schedule 4: paragraphs 1-6 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has not identified any particular groups who are more likely to be affected than others.

Fiscal fines (Section 5 and schedule 4: paragraph 7 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case can't be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

The increase in the maximum fiscal fine that COPFS can offer as an alternative to prosecution may have a financial impact on children aged 16 to 17 who are offered and accept to pay a fine rather than being prosecuted in the courts.

Cases beginning with an appearance from custody (Section 5 and schedule 4: paragraphs 8 and 9 of the Coronavirus (Scotland) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case can't be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

These provisions will impact children and young people only in instances where the person has been arrested for a criminal offence and held in police custody prior to an appearance in court. However, in accordance with section 22 of the Criminal Justice (Scotland) Act 2016, generally persons under 16 (and 16 and 17 year olds subject to compulsory supervision orders) are to be kept in a place of safety until the person can be brought before the court and this place of safety must not be a police station unless certain conditions are met.

Extension of time limits (Section 5 and schedule 4: paragraph 10 of the Coronavirus (Scotland) Act 2020)

Children aged 16-17 who are more likely to be prosecuted in the adult criminal court system are more likely to be affected by these measures than younger children (though it should be noted that the impact of the extension of time limits is primarily administrative and intended to avoid the need for COPFS to apply for, and the courts to determine, applications to extend time limits on a case-by-case basis).

Evidence (Section 5 and schedule 4: paragraph 11 of the Coronavirus (Scotland) Act 2020)

The main impact of the provision is to enable witnesses who are unable to give evidence in person by virtue of a particular risk related to coronavirus and who cannot give evidence in any other way to have their statement admitted in evidence. The Scottish Government does not consider there is any particular group of children and young people who are more likely to be affected by this provision.

Community orders (Section 5 and schedule 4: paragraphs 13, 15 and 16 of the Coronavirus (Scotland) Act 2020)

Young people aged 16-17 subject to Community Payback Order (CPOs), and potentially the children of those serving CPOs may be affected by the policy. As noted, 16-17 year olds made up only 2% of individuals who received a CPO in the 2019/20 period.

The extension of the provision relating to timescales for completion of unpaid work or other activity has a neutral or limited positive benefit. It helps ensure individuals subject to these requirements have sufficient time to complete the requirement. This helps ensure individuals can comply with their order and complete in expected timescales.

The Scottish Government has also considered whether there would be any impact on the children of those serving CPOs and is confident that ensuring that unpaid work lasts for at least 12 months does not increase risk of harm to children or young people, as UPW has no risk management element.

Should the powers to vary CPOs in bulk be invoked in the future, consideration will be given as to how these proposals could impact on children or young people. A CRWIA was completed in respect of the Community Orders (Coronavirus)(Scotland) Regulations 2021, which was made under these powers.

Release of prisoners (Section 5 and schedule 4: paragraphs 19 and 20 of the Coronavirus (Scotland) Act 2020)

Depending on the criteria set in the proposed regulations, the early release process could apply to any young person serving a custodial sentence, if they matched the key criteria for the process. (As noted above, this was applied to the May 2020 release process, and the one eligible individual was granted early release).

By the nature of the legislation, children and young people related to individuals who were to be released, or living in the household where an individual was domiciled after release, are possibly more likely to be affected than others. Potentially, children and young people who were victims of those individuals could also be affected. As discussed above, the criteria controlling which prisoners would be eligible for release included exclusions for particular types of prisoner that presented a heightened risk to others, and the assessment of each individual included the potential to veto the early release of any individual whose early release would have presented a risk to specific individual.

Student residential tenancy: termination by tenant (Section 2 and schedule 1: paragraphs 1 – 3 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government is aware that almost half those residing in student accommodation will be international students and so will benefit from the provisions. The Scottish Government estimates that almost half of students in halls are from outside the UK and hence, those staying in provider maintained and private sector halls of residence, are potentially more likely to have a wider variety of ethnic backgrounds.

Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears (Section 2 and schedule 1: paragraphs 4 and 5 of the Coronavirus (Scotland) (No.2) Act 2020)

Those children and young people who reside in a family home that is in receipt of benefits may be more positively impacted by an extension to the changes made. Such family homes could have been seen to be more at risk of falling into rent arrears and therefore eviction proceedings. The temporary changes provided for by these provisions, along with increased financial support on offer during the pandemic, are likely to positively impact on this particular group of children and young people.

Social care staff support fund (Section 2 and schedule 1: paragraph 7 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has not identified any particular groups of children and young people who are more likely to be affected than others.

Bankruptcy (Section 2 and schedule 1: paragraphs 8, 10 and 12 of the Coronavirus (Scotland) (No.2) Act 2020)

These measures, in particular the increased in minimum debt threshold that can give rise to creditor petition bankruptcy through the courts, will benefit those children and young people living in households facing the burden of unsustainable debt. Children in impoverished households with debt are five times more likely to have low well-being than those in households without debt problems, according to a 2016 report by The Children's Society. In 2014, StepChange estimated 1.4m UK families, with 2.4m dependent children, were living in problem debt. Having a number of different creditors was found to significantly increase stress in impoverished households, as different creditors may have different demands and may all call for repayment at the same time. Distressing experiences, such as visits from bailiffs, fear of eviction and stress caused by arguing parents trying to make ends meet, were found to have a direct impact on children's mental well-being.

Mental Health: named person nomination (Section 2 and schedule 1: paragraph 15 of the Coronavirus (Scotland) (No.2) Act 2020)

This provision relates to those over 16 and who have a mental disorder. However this provision will ensure that patients still have the ability to choose their own named person, while minimising any delays in the process of nomination caused by the pandemic. This in turn will reduce any delays in having the patient involved in their care and treatment decisions.

Criminal Justice - Criminal proceedings: extension of time limits (Section 3 and schedule 2: paragraph 1 of the Coronavirus (Scotland) (No.2) Act 2020)

The measures affect people prosecuted in the criminal courts. As such, children aged 16-17 are more likely to be prosecuted in the adult criminal court system are more likely to be affected by these measures than younger children.

Criminal Justice - Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 (Section 3 and schedule 2: paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

The age of criminal responsibility in Scotland is 8 years old. This means a child aged 8 or older can be arrested or charged with a crime. The age of criminal prosecution is 12 years old. This means if a child aged between 8 and 11 breaks the law, their case can't be heard in a criminal court. Instead their behaviour can be addressed by a Children's Hearing. Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system. Individuals ages from 16 to 17 who commit a criminal offence may be dealt with by the courts.

These provisions will impact children and young people only in instances where the person released on an undertaking is a person aged 12 years or more. It should be noted, however, Lord Advocate's Guidelines: Liberation by the Police Covid-19 or Coronavirus says while children can be released on undertakings, the necessity and proportionality of imposing conditions on a child must be considered carefully before applying any liberation condition to a child.

Proceeds of Crime (Section 3 and schedule 2: paragraphs 8 and 9 of the Coronavirus (Scotland) (No.2) Act 2020)

These provisions will not impact on particular groups of children and young people who are more likely to be affected than others.

Intimation etc. of documents (Section 3 and schedule 2: paragraph 10 of the Coronavirus (Scotland) (No.2) Act 2020)

This is a key measure to provide for the continuation of court business aspects of which would otherwise be unable to proceed during the coronavirus pandemic. It is not anticipated that there will be more of an impact on any particular groups of children and young people.

Care services: giving of notices by the Care Inspectorate (Section 5 and schedule 4: paragraph 5 of the Coronavirus (Scotland) (No.2) Act 2020)

Extension of this provision enables the Care Inspectorate to issue notices by electronic means in as safe and secure a way as possible, as the expiry of these provisions would result in the requirement for physical processes to once again take effect. It is not anticipated that the extension of this provision will have an adverse impact on children and young people, nor any particular subset of those children or young people.

Execution of documents, etc. (Section 5 and schedule 4: paragraph 9 of the Coronavirus (Scotland) (No.2) Act 2020)

The provisions would affect any children and young people who may require notarial services. Such number are anticipated to be low. Those in this age category are generally more familiar with technology. It is not anticipated that this will have a negative impact on children or young people, as the provisions simply allow for alternative means to access such services, and in doing so aim to reduce, anxiety, cost and delay for parties.

4. Who else have you involved in your deliberations?

Given the continuing need to respond to the epidemic, in light of the ongoing public health measures which remain in place, in order to protect all in society, including children and young people, it is important that some of the provisions in the Scottish Acts remain in force after 30 September 2021. Due to the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to consult extensively with all stakeholders on the Bill itself. However, section 15 of the Coronavirus (Scotland) Act 2020 and section 12 of the Coronavirus (Scotland)(No.2) Act 2020 require the Scottish Government to review and report on the operation of the provisions in Parts 1 of the Scottish Acts every two months. As part of that reporting process, the Scottish Government consults with relevant stakeholders on individual measures, where appropriate.

Therefore, while no formal consultation has taken place, the Scottish Government has built on the informal consultation carried out as part of the regular reporting process and has informally consulted, as appropriate, with stakeholders affected by the measures to be expired and extended by the Bill. The Scottish Government has consulted with the undernoted stakeholders.

Provisions to be expired on 30 September 2021, resulting in a return to pre-COVID legislative arrangements

Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has undertaken informal consultation with a range of stakeholders involved in debt and insolvency procedures. These stakeholders include representatives from the money and debt advice sector, creditor representatives, insolvency practitioners and other interested groups including the Law Society of Scotland.

Children and vulnerable adults: children's hearings (Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020)

Scottish Government consulted with key and statutory partners via the weekly Children's Hearings Recovery, Group, Children's Hearings Improvement Partnership (CHIP) with where appropriate views sought from Scottish Children's Reporter Administration (SCRA), Children's Hearings Scotland(CHS), Children 1st, Clan Child law, Children and Young People's Commissioner Scotland, COSLA, Social Work Scotland, Police (Scotland) and SOLAR. They all contributed to proposed provisions designed to allow essential flexibility in relation to the continuing operation of the children's hearing and related systems to ease the extra pressures of Covid-19 and to continue to ensure the protection of care of vulnerable children whilst recognising that there was a need to ensure that children's rights to request reviews remains accessible.

Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020)

An AWI Emergency Legislation Commencement Consideration Group was set up after the suspension of the provisions at the end of September 2020. This met every 4-5 weeks and consisted of representatives from Scottish Government, the Office of the Public Guardian, The Mental Welfare Commission, the Royal College of Psychiatrists, the Scottish Courts and Tribunals Service, the mental health officer group of Social Work Scotland, the Centre for Mental Health and Capacity Law at Edinburgh Napier University and the Law Society of Scotland. At the most recent meeting on 26 April the group unanimously agreed that the provisions should be expired in September 2021.

Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020)

Given the continuing need to respond to the epidemic, in light of the ongoing public health measures which remain in place, and as a result of both the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to consult formally with stakeholders on the Bill itself. The Scottish Government has, however, worked very closely with Social Security Scotland to understand operational implications.

Student residential tenancy: termination by tenant (Schedule 1: paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii), and paragraph 3(3) and (4) of the Coronavirus (Scotland) (No.2) Act 2020)

Given the continuing need to respond to the epidemic, in light of the ongoing public health measures which remain in place, and as a result of both the pre-election period and the need to have this legislation in force by 30 September 2021, Scottish Government officials have not consulted in the expiry of the specific provisions relating to the seven day notice periods.

Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

Due to the urgency of the legislation, as previously discussed, no formal consultation was undertaken on the expiry of the CCAS payment provision. However, the Scottish Government is content that backdating of CCAS can continue beyond expiry of the provision on the basis that the Interpretation and Legislative Reform (Scotland) Act 2010 will protect individual rights acquired while the provision was in force.

Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020)

Given the continuing need to respond to the epidemic, in light of the ongoing public health measures which remain in place, and as a result of both the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to consult formally with stakeholders on the Bill itself. However, the Care Inspectorate, as primary agency, have been consulted and are supportive of the expiry of these provisions.

Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government engages regularly with key stakeholders concerning the impact of the pandemic on marriage and civil partnership. The Government is also in regular contact with National Records of Scotland (NRS) who have been working closely with local authority registrars.

Provisions deemed essential to be extended beyond 30 September 2021 to continue responding appropriately to the public health emergency

Eviction from dwelling-houses (Section 2 and schedule 1: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020)

Consultation during the pandemic has focussed on the Social Housing Resilience Group (SHRG) and Private Rented Sector Resilience Group (PRSRG), Members of the SHRG include landlord representatives from both the housing association and local authority sectors, the Scottish Housing Regulator and Public Health Scotland. The PRSRG includes tenant representative organisations, Public Health Scotland and local authority representatives.

The Scottish Government has sought informal views on the extension of the eviction from dwelling houses provisions from the stakeholders in both groups. In the social sector the Scottish Government has also sought informal views from tenant representatives of the Registered Tenant Organisation Regional Networks.

Temporary extension of moratoriums on diligence (Section 3 and schedule 2: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has undertaken informal consultation with a range of stakeholders involved in debt and insolvency procedures. These stakeholders include representatives from the money and debt advice sector, creditor representatives, insolvency practitioners and other interested groups including the Law Society of Scotland.

Courts and tribunals: conduct of business by electronic means (Section 5 and schedule 4: paragraphs 1-6 of the Coronavirus (Scotland) Act 2020)

The Scottish Government discusses the impact and relevance of these measures on a regular basis COFS, SCTS and Police Scotland; and with a range of stakeholder involved in the Justice recovery programme has informally consulted with COPFS on this measure throughout the period of the coronavirus pandemic.

Fiscal fines (Section 5 and schedule 4: paragraph 7 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has informally consulted with COPFS on this measure throughout the period of the coronavirus pandemic.

Cases beginning with an appearance from custody (Section 5 and schedule 4: paragraphs 8 and 9 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has informally consulted with Police Scotland and SCTS on this measure throughout the period of the coronavirus pandemic.

Extension of time limits (Section 5 and schedule 4: paragraph 10 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has informally consulted with COPFS and SCTS on this measure throughout the period of the coronavirus pandemic.

Evidence (Section 5 and schedule 4: paragraph 11 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has informally consulted with COPFS and SCTS on this measure throughout the period of the coronavirus pandemic.

Community orders (Section 5 and schedule 4: paragraphs 13, 15 and 16 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has informally consulted with a number of stakeholders (including Social Work Scotland, the Scottish Courts and Tribunals Service, the Convention of Scottish Local Authorities, and Community Justice Scotland) on these provisions, as well as the regulations made under them, throughout the period of the coronavirus pandemic. This informal consultation on these specific provisions has been reported on as part of the statutory two-monthly reporting to Parliament and has informed decisions on the continued necessity and appropriateness of the measures. Recent informal discussions have informed the approach being taken on the extension of some provisions, and expiry of others. No specific issues in relation to children and young people have been raised.

Release of prisoners (Section 5 and schedule 4: paragraphs 19 and 20 of the Coronavirus (Scotland) Act 2020)

The Scottish Government has consulted in detail with the Scottish Prison Service on the potential further application of early release provisions. During the planning for the early release process in May 2020 detailed discussions were held with SPS, Social Work Scotland, COSLA, ALACHO, and representatives of NHS boards and Community Justice Partnerships. Victims groups were consulted on the planning of the early release process, and their views informed the regulations developed of the process. Should it be prove necessary to utilise these provision in the future, further consultations would be held to develop the regulations.

Student residential tenancy: termination by tenant (Section 2 and schedule 1: paragraphs 1 – 3 of the Coronavirus (Scotland) (No.2) Act 2020, except paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii) and paragraph 3(3) and (4) which are being expired)

An informal consultation was undertaken with the Student Accommodation Group on extending the provisions of the Act. Responses indicated that this was reasonable although there was not a specific consultation on the expiry of the seven day notice period.

Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears (Section 2 and schedule 1: paragraphs 4 and 5 of the Coronavirus (Scotland) (No.2) Act 2020)

Consultation during the pandemic has focussed on the Private Rented Sector Resilience Group. Members of the group includes tenant representative organisations, Public Health Scotland and local authority representatives.

Social care staff support fund (Section 2 and schedule 1: paragraph 7 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has undertaken informal consultation with a range of stakeholders, including social care provider representative organisations and trade union representatives.

Bankruptcy (Section 2 and schedule 1: paragraphs 8, 10 and 12 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has undertaken informal consultation with a range of stakeholders involved in debt and insolvency procedures. These stakeholders include representatives from the money and debt advice sector, creditor representatives, insolvency practitioners and other interested groups including the Law Society of Scotland.

Mental Health: named person nomination (Section 2 and schedule 1: paragraph 15 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has engaged with relevant stakeholders, which include members of the Scottish Government's Short Life Mental Health Legislation Commencement Consideration Group, throughout the period of the coronavirus pandemic. The Short Life Mental Health Legislation Commencement Consideration Group consists of the MHTS, Social Work Scotland, Mental Welfare Commission, Scottish Courts and Tribunal Service and the Royal College of Psychiatrists who fully supported the need for this provision. The Scottish Government continues to engage with stakeholders in order to gather, analyse and review all available data and evidence concerning provisions relating to mental health.

Criminal Justice - Criminal proceedings: extension of time limits (Section 3 and schedule 2: paragraph 1 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has informally consulted with COPFS and SCTS on this measure throughout the period of the coronavirus pandemic.

Criminal Justice - Arrangements for the custody of persons detained at police stations (Section 3 and schedule 2: paragraphs 2 – 5 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has informally consulted with Police Scotland, COPFS, SCTS and the Scottish Prison Service on these measures throughout the period of the coronavirus pandemic.

Criminal Justice - Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 (Section 3 and schedule 2: paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government has informally consulted with COPFS on this measure throughout the period of the coronavirus pandemic.

Proceeds of Crime (Section 3 and schedule 2: paragraphs 8 and 9 of the Coronavirus (Scotland) (No.2) Act 2020)

For provisions related to the Proceeds of Crime Act 2002, the Scottish Government has discussed these issues with COPFS and SCTS. COPFS has identified them as priority issues and Scottish Government agrees with this assessment.

Intimation etc. of documents (Section 3 and schedule 2: paragraph 10 of the Coronavirus (Scotland) (No.2) Act 2020)

The Scottish Government continues to informally consult with the Scottish Courts and Tribunals Service and the Scottish Society for Messengers-at-arms and Sheriff Officers on these measures. These provisions have been identified by those parties as a key measure to provide for the continued operation of courts and tribunals as a result of the coronavirus pandemic. The justice system is reliant upon these provisions to enable court business to progress, most often in relation to commissary and civil matters.

Care services: giving of notices by the Care Inspectorate (Section 5 and schedule 4: paragraph 5 of the Coronavirus (Scotland) (No.2) Act 2020)

Extension of this provision enables the Care Inspectorate to issue notices by electronic means in as safe and secure a way as possible, as the expiry of these provisions would result in the requirement for physical processes to once again take effect. It is not anticipated that the extension of this provision will have an adverse impact on children and young people. However, the Care Inspectorate has been consulted and are supportive of the extension of this provision.

Execution of documents, etc. (Section 5 and schedule 4: paragraph 9 of the Coronavirus (Scotland) (No.2) Act 2020)

When considering the provisions there was no consultation with the specific interests of children and young people in mind as the Act applies to everyone equally. However, the Scottish Government consulted with the Law Society of Scotland and Faculty of Advocates, who take an interest in all, including children and young people, exercising their legal rights. No children and young-people related concerns were raised.

5. Will this require a CRWIA?

For the reasons outlined above, the Scottish Government considers that a CRWIA is required.

CRWIA Declaration
Tick relevant section, and complete the form.

CRWIA required
X Please continue to Stage 2 on the next page

CRWIA not required

Authorisation
Policy lead
Emma Lopinska

Date
3 June 2021

Deputy Director or equivalent
James Hynd

Date
4 June 2021


Contact

Email: Covid.Leg@gov.scot