The Report on the Consultation Responses The Draft Children's Services (Scotland) Bill

Summary of the consultation responses on the draft Children's Services (Scotland) Bill

This summary identifies some of the key themes emerging from the responses and provides an overview of levels of support for the proposals.

The full report which follows provides a synopsis of responses to the consultation.

Common themes

The following overarching or common themes emerged from the consultation:

most respondents were very supportive of the intentions behind Part 1 of the draft Bill
most respondents to Part 2 of the draft Bill were very supportive of the provisions, other than those relating to secure accommodation
some respondents queried the need for, or benefit of, the new duties in Part 1
many respondents were of the view that costs would increase
some respondents saw benefit in waiting for more information from the pathfinder projects
some respondents indicated a need for clarity on information sharing, with particular concerns that the Part 1 duties could lead to 'over-sharing' of information
many respondents highlighted the need to ensure a clear fit with existing legislation, processes and policies

Detailed summary by question

Question 1: "Do you think that the concept of well-being in relation to the duties on agencies set out in sections 1 and 2 of the draft Bill is helpful?"

87% of those who indicated a yes or no response felt that the concept of well-being was helpful. The key themes emerging from comments were:

concerns about the effect that introducing the concept of 'well-being' might have on existing statutory terminology, particularly 'welfare'
concerns about the 'looseness' of the concept of 'well-being' and the scope this provided for differing interpretations and expectations
concerns about the possibility of too low a threshold for agencies
suggestions for amendments to the concept of well-being, for example replacing it with reference to the elements in the Vision for Children
suggestions for fine tuning the elements contained within the definition of well-being, for example to include a specific educational element

Question 2: "Do you feel that the duties on agencies proposed in sections 1 and 2 of the draft Bill will ensure that all relevant agencies can and will act so that children get the help they need when they need it?"

58% of those who indicated a yes or no response felt that the duties on agencies in sections 1 and 2 of the Bill would help in this way. The key themes emerging from comments were:

views that the language used to express the duties was too 'vague' or 'loose' and would allow an inappropriate degree of discretion and scope for differing interpretation
concerns about the possibility of too low a threshold for agencies
suggestions for amendments or additions to the detail of the proposed duties
views that there was a need for clear dispute resolution processes and sanctions
questions about the likely effect of the provisions, and views that the proposed legislation would not make much difference in practice and particularly that limited resources would restrict the impact of the duties

Question 3: "In your view, do the proposals in sections 2(5) and 5 of the draft Bill for recording agency decisions and actions and for a multi-agency action plan provide enough of a framework to deliver effective planning across agencies for the child and their family?"

72% of those who indicated a yes or no response felt that the proposed framework would help delivery. The key themes emerging from comments were:

views that greater clarity was needed on how the joint plan would fit with other statutory plans, such as those for looked after children and children who needed additional support for learning
views that the duties were too flexible
suggestions for different or additional duties, for example in relation to assessment
views that the process for dispute resolution needed to be clearer and for there to be sanctions
views that the role of the child and his or her family in developing the plan needed to be expressly addressed
views that the role of the lead professional as set out in the legislation was insufficiently clear
concerns about possible increase in bureaucracy

Question 4: "It is the intention that the proposals in sections 4 and 5 of the draft Bill for collaboration of agencies will provide a robust but simple framework for agencies to work together locally. In your opinion, do you think that the framework will enable this to happen?"

69% of those who indicated a yes or no response felt that the proposed framework was helpful. Generally the comments made were similar to those made in relation to question 3. Particular issues raised were:

duties too flexible
need for dispute resolution process and sanction
difficulties around joint funding
information sharing and possible over-sharing
equality of agencies
lack of clarity on the fit with other statutory processes

Question 5: "Are you content with the definition of relevant agencies (including parts of the voluntary sector) in section 7?"

73% of those who indicated a yes or no response were content with the proposed definition. The key themes emerging from comments were:

suggestions that particular types of agencies or services should be covered by the definition, for example housing associations and independent providers of certain services
views that 'relevant agency' should be defined by functions
views that 'relevant agency' should be defined by other characteristics, for example registration as a care provider or providing a service through a contract or service level agreement with a public body
concerns about the impact on voluntary sector organisations

Question 5 had a supplementary question which asked: "If you are responding on behalf of an organisation, should your organisation be included within the definition of relevant agencies?"

58% of those who provided a yes or no response to this question answered 'yes'.

Question 6: "With regards to section 11, do you agree that the Principal Reporter should not be a member of the Administration (the Board) of the Scottish Children's Reporter Administration?"

84% of those who indicated a yes or no response were content with the proposed amendment. The key themes emerging from comments were:

the role of the Principal Reporter and
comparison with other public sector organisations

Question 7: "The new power in section 12 for the Principal Reporter to appoint a representative if certain criteria are met is meant to safeguard the rights of those children who need such representation. Are you content with the introduction of this new power?"

87% of those who indicated a yes or no response were content with the introduction of this new power. The key themes emerging from comments were:

concerns that Children's Hearings might become more adversarial
views that legal representation should be placed in the context of other representation or advocacy options for children and that other options should be more available than at present
views that children should have a say in who is appointed as their legal representative
suggestions on training or quality standards for legal representatives
concerns about the resource issue for local authorities
reservations that the proposals would make much difference
reservations that the reporter should be able to appoint a legal representative and specific concerns where the 'effective participation' criterion was the basis for appointment

Question 8: "In section 12 the criteria for legal representation is expanded to include the appointment of a legal representative where a Children's Hearing is likely to make a movement restriction condition. Are you content with the introduction of this new criteria?"

91% of those who indicated a yes or no response were content with the introduction of this new criteria. Comments generally reflected the themes identified for Question 7.

Question 9: "Section 14 introduces new provision to withhold information about the child where disclosure would be significantly against the child's interests. Are you content with this new provision?"

90% of those who indicated a yes or no response were content with this new provision. The key themes emerging from comments were:

concerns about possible legal challenge to the provisions, particularly in relation to compatibility with Article 6 of the ECHR
views that guidance and training on the provisions would be required

Question 10: "Are you content with the proposals in section 15 of the draft Bill to change the grounds for referral to the reporter and the Children's Hearing to reflect the needs of a child and the need for compulsion?"

80% of those who indicated a yes or no response were content with these proposals. The key themes emerging from comments were:

concerns that the nature of the language and format of the provisions in the draft Bill were too complicated, and particularly the term 'situational condition'
concerns that the proposed provisions would raise the threshold for referral and allow children to 'slip through the net'
concerns that the proposed provisions would lower the threshold for referral and could bring about an increase in referrals

Question 11: "The relevant situations in section 15 are intended to improve on the existing conditions in section 52(2) of the 1995 Act and to address possible gaps such as self-harm by a child and exposure to domestic abuse. Do you feel that the relevant situations are appropriate?"

92% of those who indicated a yes or no response were content that the relevant situations were appropriate. The key themes emerging from comments were:

views that the language and format of the provisions were difficult
concerns about 'losing' existing case law, particularly in relation to the current 'lack of care' condition
concerns that some of the factors were too broad and were lacking in specificity
suggestions to retain some existing specific conditions (as factors)
suggestions to include other factors, for example parental misuse of alcohol or drugs
suggestions to raise the threshold in certain factors by amending 'harm' and 'adverse effect' to add the word 'significant' or 'serious'

Question 12: "In your opinion, do the provisions in section 16 of the draft Bill to expedite the establishment of the situational condition where the relevant person accepts the condition but the child has not understood or is not able to understand provide adequate and appropriate protection for the rights of the child?"

97% of those who indicated a yes or no response were content with these proposals. The key themes emerging from comments were:

some views that the proposal was particularly welcome
reservations about the need for such cases to be referred to the sheriff at all

Question 13: "In your opinion, do you feel that the proposals in section 17 for interim supervision requirements provide an appropriate additional option to a Children's Hearing when they are unable to dispose of a case?"

94% of those who indicated a yes or no response were content with these proposals. The key themes emerging from comments were:

views that interim supervision requirements were not appropriate where grounds for referral were not yet established, with some concerns about breach of rights
concerns about the frequency of use of interim supervision requirements and the possibility of causing unnecessary drift or delay
some suggestions on the appropriate duration of an interim supervision requirement, generally longer

Question 14: "In relation to section 18, it is intended that any agency which is taking, or is expected to take, action in accordance with a supervision requirement should have a duty to take such action. It is also intended that a Children's Hearing may impose specific duties on an agency. A formal enforcement process will apply to breach of duties as is currently the case in relation to duties imposed on a local authority."

The provisions in relation to duties set out in section 18, together with existing duties of a local authority, are intended to adequately and appropriately provide for duties to act in relation to a child subject to a supervision requirement. Do you think that they do so?"

85% of those who indicated a yes or no response felt that the proposed duties were helpful. The key themes emerging from comments were:

concerns about resource implications for agencies and the impact on capacity
concerns about the likely effect on prioritisation, and prioritising resources to children subject to compulsory measures of supervision
concerns about reducing the availability of services through creating a reluctance to deliver services for children
concerns about the effect on small or voluntary agencies
views on the knowledge, skills and understanding required to make the provisions work

Question 15: "In relation to section 20 on warrants, it is intended that section 66 will apply where there is an application to the sheriff under section 65. It is intended that section 69 will apply where the situational condition is accepted/established (and there is no current section 65 application). Section 45 and section 63 will continue to apply in their own particular circumstances. Further refinement to ensure this effect is intended. In your opinion or in the opinion of your organisation, will such an approach simplify warrant procedures?"

90% of those who indicated a yes or no response were content with the proposed approach. The key themes emerging from comments were:

views that any simplification of the existing warrant provisions was welcome
suggestions that there should be further simplification

Responses to the consultation questions on other issues

Question 16: "The consultation document sets out a number of proposed changes to the Children (Scotland) Act 1995 arising from the Vulnerable Witnesses (Scotland) Act 2004. Are you content with these proposals?"

94% of those who indicated a yes or no response were content with these proposals. The key themes emerging from comments were:

suggestions that the bill should include provision for the visual recording of investigative interviews
suggestions that in children's hearings court proceedings there should be maximum flexibility to allow the court to decide who a commissioner should be
suggestions on some of the detail

Question 17: "For the small group of young people who continue to pose a risk to themselves or others, and who cannot or will not engage with services who are working to change their behaviour, we wish to explore further options to compel them to change their behaviour. To secure continued support and intervention for young people involved in offending we would like to hear your opinions on:

How we can best ensure that children's services continue to support young people who offend to cease offending and make a successful transition into positive adulthood?
How could we formalise systems to ensure that this happens?
How we might respond to the concerns of our communities in the best way to deal with the problem of persistent offending by young people?
What, if any, legislative requirements do you believe would be required to deliver this?"