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Chapter 5 - RESPONSES TO QUESTIONS ON OTHER ISSUES FOR CONSIDERATION

Introduction

This chapter provides information about the comments made in response to the questions which were asked on other issues for consideration.

The consultation document asked seven specific questions mostly about matters of additional policy or legislation. There was also an additional question about the consultation document itself and the conduct of the consultation. Each question is set out below, and where appropriate key themes are identified and direct reference made to specific comments.

Question 16 - Vulnerable witnesses

Question 16 was: "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?"

Of the 140 respondents who indicated a yes or no response to this question, 132 were content with these proposals. 8 respondents were not content. 17 respondents commented in detail. Their comments are discussed more fully below.

This means that 94% of those who indicated a yes or no response were content with these proposals. This figure is 58% of the total number of respondents to the consultation.

A number of the comments suggested that the Bill should include provision for the visual recording of investigative interviews.

At least one person commented that there should be a definition of a commissioner. However, other comments suggested that in Children's Hearings court proceedings there should be maximum flexibility to allow the court to decide who a commissioner should be.

There was a suggestion that there should be a special measure on the use of intermediaries.

One correspondent suggested that none of these proposed changes were required and that they could all be dealt with in guidance.

Question 17 - Working with children who cannot or will not engage with services

Question 17 was: "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 can we 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?"

Given the wide number of comments on the individual parts of question 17, the report breaks down each bullet point in the question and discusses the responses in more detail.

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?

Responses to the above question were broken down into a number of themes, set out overleaf.

Early intervention

There was near unanimous agreement that there is a requirement for agencies to engage much more effectively in the early intervention agenda, therefore substantially reducing the number of children and young people 'entering the system'. There was a commonly held view that early identification of those at risk of offending was an important aspect of this. Some responses suggested that schools should have a key role to play.

Parental/family involvement

More parental/family involvement was consistently seen as key to the early intervention agenda, especially in terms of providing more/better support for parents and families. Where parents refuse to engage there was some support for punitive measures for parents, and in particular, more effective use of Parenting Orders was referred to in a number of responses. However, there was a view that the system for implementing Parenting Orders needs to be reviewed and simplified. More effective use of restorative justice practices (including family group conferencing) was also raised in a number of responses.

Hearings

A number of responses highlighted the need for an expanded role for Children's Hearings. These included:

• Parenting projects to be a disposal of a Hearing
• More compulsory measures and disposals available to Hearing
• Earlier intervention by Hearings
• Explore the availability of youth work interventions

Better services

More investment in services for young people was a consistently held view, especially those that specialise in intensive work - as was a requirement for longer term and more consistent support, in terms of continuity of support staff and common approaches across agencies. A number of responses identified the need to share current good practice across agencies and areas. There was also a common view that there is a need to increase the availability of vocational training programmes for young people - within and outwith schools - and a number of responses suggested that initiatives for young people who are not in education, employment or training could have a positive impact on young offenders.

The need for agencies to provide a range of services that are flexible enough to meet the individual needs of young people was consistently highlighted in responses - as was the need for more political and financial support for multi-agency strategies and approaches.

A number of responses highlighted the need to increase residential and secure provision. There was also some support for expanded and more effective use of Intensive Support and Monitoring Services.

Some responses identified the need for the supervision system to be more effectively understood and used, including the need for training for Panel members. A number of responses commented that supervision requirements should not be automatically terminated if a young person does not comply: it was the view of those responding that this currently happens.

Workforce

A requirement for more investment in the workforce was a commonly held view, both in terms of increasing staff and improving training/skills/ knowledge. A number of responses highlighted the need for those working in youth work to be better equipped to deal with those with specific needs or problems (such as mental health, drugs, alcohol, literacy levels).

A commonly held view was that a better understanding of the reasons behind offending behaviour is needed and a number of responses stated the need for better use of research findings to shape policies. It was also suggested that young people should have more involvement in the evaluation and development of services, which would lead to more ownership of their participation.

How could we formalise systems to ensure that this happens?

Responses to the above question were broken down into a number of themes, set out overleaf.

Community involvement

There was generally a view that involvement in community projects/ placements/service would help to achieve this. This approach would help to encourage a sense of belonging and having a stake in the community. Some responses suggested some sort of encouragement such as a reward system for engaging successfully with services.

Hearings

In relation to Hearings it was suggested in a number of responses that there should be more formal links between Hearings/Children's Services and the adult criminal justice system. The expansion of Youth Court to perform this function was proposed in some responses. It was also suggested that young people between 16 and 18 should automatically be remitted back to a Hearing.

Assessment

More effective use of risk and needs assessments was suggested in a number of responses, including use of an Integrated Assessment Framework.

A number of other proposals were made, including:

• Issuing statutory court orders
• 'National Service' type regime for persistent offenders
• Engagement a condition of Acceptable Behaviour Contracts
• Diversionary activities, early intervention and parenting programmes introduced within statute

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?

Responses to the above question were broken down into a number of themes, set out below.

Community involvement

As mentioned above, involving young offenders in community projects/ placements/service was a commonly held view. A number of responses proposed that communities should be encouraged to contribute to the development of services.

Awareness raising

There was a consistent view in responses that awareness of the youth justice issues and systems needs to be more widely promoted - within communities and importantly, the media. The commonly held view was that current negative perceptions around young people is causing a lot of damage to relationships and needs to change. Promoting positive images of young people was a recurrent message and it was suggested that agencies develop communication strategies.

A small number of responses suggested more punitive measures for young offenders.

What, if any, legislative requirements do you believe would be required to deliver this?

There was a common view that there is no need for new legislation. The general view was that there is a sufficient legislative framework already in place (Antisocial Behaviour, Children's Services, Criminal Justice, Mental Health) and that this should be used more effectively. A more integrated approach with Antisocial Behaviour legislation was specifically mentioned in a number of responses.

It was suggested that the Bill needs to be tested before further legislation is considered. There was a suggestion that any potential legislation on this may conflict with UNCRC principles.

A small number of responses supported the introduction of legislation.

Key themes of response to question 17

The consensus of opinion was that it is very difficult to compel young people to engage when they do not want to. In fact, a number of responses suggested that it is a misconception that young people don't engage voluntarily - given the right conditions and incentives the vast majority of young people will. It was a commonly held view that compulsion will not address the needs of vulnerable young people and that the focus should be on engagement/partnership where possible rather than compulsion.

The consensus of opinion was that new legislation is not required but more effective use of the current legislative framework, programmes, services and resources. The focus should be on early intervention, parental and family involvement, better services and workforce development.

Involvement with/of communities also came out as a key issue as well as awareness raising and promoting more positive images of young people.

Question 18 - Children's rights

Question 18 was: "The Scottish Executive is committed to promoting and supporting the rights of children and to reflecting the provisions of the UN Convention on the Rights of the Child in the development of policy and legislation. To ensure that we are effectively promoting and supporting the rights of children we would like your views on the following:

• The Bill as drafted is intended to improve children's rights in Scotland. Do you feel it will do so effectively?
• Should we also consider a general duty on agencies working to meet the needs of children to also promote and support the rights of children?

Given the wide number of comments on the individual parts of question 18, the report breaks down each bullet point in the question and discusses the responses in more detail.

The Bill as drafted is intended to improve children's rights in Scotland. Do you feel it will do so effectively?

Many respondents felt that the Bill and its intentions were positive developments in terms of children's rights, but many also expressed the view that it will be the implementation of the whole Getting It right for every child reform programme that will determine the success of the overall objective of better securing and promoting children's rights. Many respondents favoured developing specific aspects of the Bill, (see comments below on advocacy and voice of the child) and improved guidance and resourcing as more powerful mechanisms for improving the situations of children with unmet need, and whose rights need particular provision.

Consultation responses also highlighted that it may be helpful presentationally and practically to draw closer parallels with the terminology and "spirit" of the UNCRC as and when the policy intention of a specific section or passage allows, rather than a general and nebulous reference that does not find expression in real improvements for individual children or groups of children with specific needs.

Should we also consider a general duty on agencies working to meet the needs of children to also promote and support the rights of children?

A number of respondents felt that the UK's ratification of the UNCRC meant that the fundamental nature of children's rights was self-evident. Conversely, other respondents felt that the positive recognition of the importance of promoting children's rights was needed, and that a general duty on agencies would provide that.

Others felt that little tangible improvement for children would be secured by the imposition of a "tokenistic" general duty. Respondents recommended a more supportive and focused approach dealing with each issue as it affects children's rights.

The Scottish Commissioner for Children and Young People observed in her response that:

"It is important to avoid an empty culture of command and punishment that risks a growth of demoralisation and defensive practice that can never act to children's advantage."

Rights and Advocacy

Respondents expressed significant support for ramping up the Scottish Executive's engagement with and support for the Children's Rights Officers community. There was a lot of support for improving the availability of advocacy in all its forms and at all stages of agency intervention as well as within Children's Hearings. Comments discussed in the analysis of question 12 are also relevant to this issue. This was mirrored by calls to improve the Executive's interaction with and support for safeguarders working within the Children's Hearings system.

Question 19 - Equality

Question 19 was: "The Scottish Executive is committed to equality of opportunity for all regardless of race, religion or belief, disability, sexual orientation, age or gender, language, social origin or political opinion. Do you have any views on whether anything in the draft Bill will have a differential impact on equality communities?"

Of the 134 respondents who indicated a yes or no response to this question, 103 did not view that anything in the draft Bill would have a differential impact on equality communities. 28 did feel that there would be a differential impact, while 3 thought there might be a partial impact. 33 respondents commented in detail. Their comments are discussed more fully below.

This means that 87% of those who indicated a yes or no response felt that there would be no differential impact on equality communities. This figure is 75% of the total number of respondents to the consultation.

Supportive comments

Most of the comments received were supportive of the measure of promoting equality. City of Edinburgh Council's response described this support:

"We believe that, by focusing on the needs of the individual child, the draft bill could have a positive differential impact on certain children. Black and minority ethnic children could benefit as their language, religion and culture should be taken into account. Disabled children could benefit as their individual needs should be met from a single access point. Children, whose families have been socially excluded from equal opportunity because of class differences, could be included. We are not aware of any particular impacts from the perspective of gender. Children who have particular needs because of their sexual orientation, should have these needs met.

"However, we have concern that these potential positive impacts will fail to be realised unless positive measures are identified in the guidance given to implement the legislation."

FCA Scotland said:

" FCA Scotland works with Looked After Children for whom a complex interplay of factors have led to inequalities of opportunity. While supporting the measures proposed in the Bill, we hope that steps will be taken to evaluate their impact on outcomes for this group of children and young people."

Young people and the consultation

A number of respondents questioned whether young people had been involved in the development of the Bill. Respondents also questioned whether the research with young people undertaken by Children in Scotland as part of the Getting it right for every child - Proposals for action consultation, which was quoted in the Bill consultation document was representative of the views of children and young people in Scotland in general.

ACPOS said:

"The Bill has a significant impact for young people and there has been little consultation with this group in terms of GIRFEC or the draft consultation document and Bill."

Stirling Council and partner agencies widened this point out further to include all equality communities:

"Consultation on the draft Bill with young people and people from minority communities should be proactively pursued to enable their views on this aspect to be ascertained."

Focus on needs and well-being of individual children

A number of respondents felt that the focus in the draft Bill on the needs and well-being of each individual child was the best means to deliver equality of outcome. Some felt that this position precluded the need to mention or legislate for specific categories of equality community.

An example of this would be ACPOS, who commented:

"The description of 'equality communities' contradicts plain English. The focus on the needs and wellbeing of each individual child should enhance provision for all children. It is suggested that it would be helpful, however, to include clear statements regarding the need to take cognisance of equality and diversity issues within the Bill."

Contact a Family had significant concerns about the proposed approach:

"The statements made in the Bill underpin the premise that all children and young people's needs and rights are enshrined in the totality of the Act. We therefore feel it superfluous to categorise as outlined in Question 19 and would seek reassurance that provision will be based on need and not on category or label."

In their response, ADSW stated:

"Overall, focusing on the needs of individual children should promote children's rights and has the potential for a positive differential impact on some groups of children who may otherwise be at risk of disadvantage. The realisation of any positive impact will depend on the clarity of guidance available to complement the legislation."

The Scottish Youth Parliament were also positive about the impact on equality of the proposed draft Bill:

"Regarding equality matters, we feel that the draft Bill will encourage a better understanding of issues faced by minority groups. By changing the focus of services to one based on addressing the range of needs of individuals and their families, rather than basing provision on conditions, in theory, this will encourage practitioners and service managers to gain a better understanding of equality communities."

Age of child

A number of respondents brought up the issue of the legal age of childhood as an equality issue. SCRA felt:

"Different definitions of 'child' lead to significant inequalities (i.e. 16 and 17 year olds not able to access compulsory supervision)."

The Scottish Youth Parliament also brought up this issue:

"Although not a question directly asked in the consultation, the SYP would encourage a debate on the range of ages adopted by legislation in Scotland regarding children and young people. The SYP would encourage a single age to be used to demarcate when young people assume different rights or come under the jurisdiction of Child Protection law, the age for young people leaving care, the age at which young people can marry or indeed buy and consume alcohol. Streamlining these ages would, we believe, simplify matters in practice when working with children and young people."

ACPOS raised questions about the definition of a child and interactions with the criminal justice system.

Communication, translation and interpretation

Communication, translation and interpretation was mentioned in a number of different guises by respondents.

The EIS felt that there should be legislative provision for these measures:

"We see no reference on the face of the draft Bill to any right both to translation of documentation and to interpretation in all hearings. Such provision is essential."

Susan McCourt commented as follows:

"I do not see provision for native English speakers who are illiterate or very poor readers. Are people with a poor command of written English an 'equality community'?"

Perth & Kinross Council Education & Children's Services commented on issues they perceived with the duty proposed in section 3 of the Bill:

"The responsibility under the Act to communicate more effectively with children and young people to secure their understanding is sound in principle but may discriminate against young people who are less accessible, for example children who have language difficulties either because of a disability or because they are from an ethnic minority group or children who don't easily engage with agencies trying to communicate with them."

Disability

Disability was a theme of the responses on equality issues. Scottish Association of Community Child Health stated:

" … it would be important that the new proposals did not act to the disadvantage of children affected by disability in the community and this should be actively monitored."

Contact a Family commented in detail on their concerns to do with prioritisation of service for disabled children:

"Whilst we are delighted in a Bill that calls for services to be better
co-ordinated we fear that without increased, ring-fenced, resources to Local Authorities and Health Boards, disabled children and their families will see little improvement in their lives as a result of this Bill.

"… our experience is that disabled children are constantly competing for services with other children in need. Understandably, Child Protection always gets priority. In Scotland today many disabled children and their families who need one are waiting for years to get an allocated social worker. This results in assessments being carried out by a Duty Worker who does not know the child and may have little or no experience of working with disabled children and their families. The cost to families is enormous and the stress leads to breakdown and in some cases the child having to go into residential care, when the relatively cheap option of home-help or day care, at the time the parent first said they needed it, might have avoided this. For years this unmet need has not been effectively recorded - Local Authorities have not had suitable methods of gathering data nor a mechanism to influence spending. However with the advent of Children's Services Planning processes there are better opportunities to report, but disabled children do not appear to be a high priority for elected members at local level. Without central government compelling them to increase spending on disabled children through this Bill, we fear that this will continue. In Health it can be even worse. Severely disabled children needing therapy are competing for resources with adults with cancer, heart disease and stroke. Moreover as young people move into adult health services support is very variable and is impairment based. For instance a young person with cystic fibrosis can expect an excellent transition pathway, but those with cerebral palsy face a situation where there are few, if any specialists in neuromuscular conditions in Scotland. This at a time when increasingly children with severe cerebral palsy and other similar impairments are reaching adulthood. Intensive interventions early in children's lives are not being followed through as they grow up and we would urge government to review this situation.

"Contact a Family … have over recent years witnessed increasing numbers of children surviving the neonatal period and enjoying far greater life expectancy than was previously the case. Policy makers and providers will therefore need to acknowledge the resultant pressure for increased finance and resources."

Gender

North Ayrshire Council Integrated Children's Services Planning addressed the issue of how young women are treated by children's services, stating:

"In terms of gender issues young women are still being more quickly tariffed into resources which are not designed to meet their needs - particularly when the issue is considered to be their moral welfare. Nothing in this draft Bill is designed to alleviate this."

One individual respondent had concerns about the implications of equality on women's rights:

"You cannot offer equality to religions which treat women as second class citizens e.g. arranged marriages, female genital mutilation. It should be clear that in Scotland, indeed UK, females are regarded as equal to males. I think we still need to 'put our own house in order first' though regarding the latter statement."

Minority ethnic communities

The needs of minority ethnic communities were mentioned several times by respondents.

Aberdeen's Children and Young People's Strategic Planning Group brought up issues for services in their geographical area:

"Culturally there might be issues in the North East surrounding the large numbers of Polish, Lithuanian and Latvian families, for example, with parents leaving children at home while going to work, which is the norm for them. There needs to be an understanding of this (and other) legislation in all sectors of the community.

"Any and all information needs to be accessible to ensure understanding, involvement and engagement."

Save the Children discussed refugees, asylum seekers and Gypsy/ Travellers:

"The provisions of the Bill should apply to all children and young people equally. Save the Children has highlighted throughout this response particular issues affecting young refugee and asylum seekers. Access to basic services, such as primary healthcare and education, remains difficult for many young Gypsy/Travellers and their families. Greater co-ordination is required to ensure multiple and inter-connected problems facing young Gypsy/Travellers and their families are addressed. Greater efforts will therefore have to be made to ensure that young Gypsy/Travellers receive the support they need when they need it."

Antisocial behaviour and offending

SACRO discussed concerns about equal treatment to do with antisocial behaviour and offending:

"The draft Bill as it stands could discriminate against the very children and communities it is ostensibly set up to serve. It could be that if someone behaves anti-socially that this is conflated into offending and treated under section 15(1), 52A(2) as situational conditions that allow referral to the Reporter (if the other two tests are also passed). Furthermore, if a young person has offended, the bill as it stands seems to suggest that there is no option for them but to engage with an agency. In Sacro's view (backed up by years of research findings) this is possibly the worst way to attempt to engage with already vulnerable children and Sacro strongly argue that this needs revision. The bill itself is not clear on this issue, however all accompanying documentation in preceding Chapters suggest that coercion is appropriate. Whilst understanding that there needs to be consequences for young people who are not able to make changes to their behaviour, these are already in place within current systems (supervision). Again Sacro emphasise that consequences are necessary, however, they should be supportive, challenging and treat the young person with dignity and respect."

Poverty and social deprivation

ADES commented on issues of poverty and deprivation:

"The bill may aim to promote equality but clearly some of the provisions will have more impact than others. This is likely to be in terms of socio economic factors. There is a clear correlation between poverty and deprivation and outcomes for children and young people."

Representativeness of panel members

The EIS commented on the make-up of Children's Panels:

"We understand that Children's Panels are not representative of the people of Scotland. We are aware that advertising has sought to redress this imbalance; we believe that efforts must continue to ensure that candidates for membership are representative of the society of Scotland."

Legislation in practice

A number of respondents commented on the critical impact on equality issues of the application of the legislation in practice.

Clackmannanshire Council, in their response, stated:

"Potentially, any measure that may breach an article of ECHR may have differing impacts on minority communities. It is the implementation of the legislation, rather than the legislation itself that will determine the extent of this impact. In particular, (and given the potentially significant consequences for respect to private and family life) it will be important to ensure that the definition of wellbeing has some element of cultural sensitivity in its application."

Stirling Council and partner agencies emphasised the seriousness of state intervention:

"The impact of state intervention in private family life can always have potential significant consequences. The associated guidance and regulations, which should accompany the legislation, will require to be monitored in practice when the legislation is implemented to ascertain the real impact in respect of equality issues."

ADES felt that:

"The Scottish Executive needs to ensure that in writing the legislation and guidance, no barriers are inadvertently created to deny equality and diversity by not understanding how legislation is carried out in practice. This may need more extensive consultation."

Staff issues

A number of the responses covered children's services staff skills and training.

Jackie Gilchrist felt:

"There is a huge inequality of opportunity for many professionals and non prof staff who work with children in education. This surely has an effect on perceptions of their role to children and their families. This must be addressed to have the desired 'differential impact on equality communities' as given in the bill."

The National Autistic Society were of the view that:

"In order for the Bill to achieve its aims to meeting unmet needs and improving the Children's Hearing system, the NAS considers it essential that professionals across the range of agencies, including staff involved in the Hearings system, are trained in order for them to have a knowledge of this complex disability and ensure that the needs of children with this disability are met at an early stage, before recourse to the Hearings system becomes necessary."

British Association for Adoption and Fostering Scotland highlighted the need for training on equality issues:

"… there will have to be increased awareness in relation to children from minority ethnic cultures and children with or affected by disabilities."

Local Authority equality duties

Two respondents felt that there was not parity between local authorities and other relevant agencies with proposed responsibilities in the draft Bill.

East Lothian Council stated:

"Local authorities are under a duty to have regard to a child's religious persuasion, racial origin and cultural and linguistic background if they are subject to a supervision requirement - s17 C(S) Act 1995. This is in addition to the duty to have regard to the views of the child and their parent(s), and is distinct from the equal opportunities obligations not to discriminate. There is no similar duty on any other relevant agency."

SCRA suggested a solution to this issue:

"Section 22 of the Children (Scotland) Act 1995 states that the local authority shall 'have regard so far as practicable to each child's religious persuasion, racial origin and cultural and linguistic background'. This is lacking in Part 1 of the draft Bill in relation to the provision of services. SCRA suggests that agencies should have regard to these issues in decisions about meeting the needs of children."

Carers

Alison Stewart brought up the issue of care within a family:

"… if we are considering equality for all children in this Bill, it is important to ensure that all 'carers' are given equal support and financial assistance. Currently, it would appear that family members (e.g. grandparents, aunts) who take on the responsibility for care of child relatives (and may be officially appointed as carers/relevant persons) do not receive the same financial aid as other carers and have to fund clothing and activities out of their own pockets. This may be a local social work decision, but it needs to be looked into in the interests of fairness for all 'looked after' children."

Duty on courts and hearings to consider aspects of equality

British Association of Adoption and Fostering Scotland felt that courts and hearings should be under a duty to consider certain aspects of equality. They said:

"It would be helpful if the changes to the hearing system in part 2 of the Bill included amendment of s.16 of the Children (Scotland) Act 1995, to incorporate a duty on hearings and courts to consider children's religious persuasion, racial origin and cultural and linguistic background in their decisions. This principle is already incorporated into current adoption law in s.6 of the Adoption (Scotland) Act 1978 and in all future permanence cases … in the Adoption and Children (Scotland) Act 2007. … They should be part of the duties of hearings and courts for proceedings in Part II of the 1995 Act."

Immigration status

A number of respondents felt that a child's immigration status was a relevant equality issue.

SCRA felt that:

"There is a need for clarity on the duties and responsibilities of relevant agencies in relation to unaccompanied children and the children of asylum seekers."

The Scottish Commissioner for Children and Young People went further, stating:

"It is important to ensure that all children in Scotland can benefit from this Bill, regardless of their national origin or immigration status."

The Scottish Refugee Council felt that the Border and Immigration Agency should be a relevant agency in the terms of the draft Bill:

"… without the inclusion of the Border and Immigration Agency in Scotland as a relevant agency under Section 7, we contend that the proposals will impact differently on children subject to immigration control."

Question 20 - Information sharing

Question 20 was: "We would be grateful for views on what further legislative provision for information sharing beyond that proposed in the Protection for Vulnerable Groups (Scotland) Bill may be necessary to deliver the Getting it right for every child agenda."

Between publication of the draft Bill in December 2006 and the end of the consultation period on 31 March 2007 the decision was taken to drop the information sharing provisions from the Protection for Vulnerable Groups Bill. This was part of the parliamentary passage of the Bill, which is now an Act of the Scottish Parliament. The removal of the information sharing provisions has therefore been referred to in a number of the comments received on this question.

In addition, when the information sharing provisions were removed from the Protection for Vulnerable Groups Bill, then Deputy Minister for Education Robert Brown said:

"… we are less interested in the legislative vehicle for bringing about a particular result than we are in ensuring that information is shared, where appropriate… However, at the end of the day, we are interested in professional practice in terms of the individual decisions that are made by organisations, professionals and local authorities and in ensuring that there is in place a robust arrangement that enables us to avoid the sort of tragedies that have taken place involving situations in which things have fallen into the gaps …The draft code is pretty well advanced at the moment. Subject to the views of ministers, it will be out for consultation before dissolution. It will consider carefully issues of confidentiality and the sort of things that the convener touched on. It will be underpinned by legal duties at the earliest appropriate legislative opportunity."

This statement, and the subsequent development of a draft Code of Practice on the Sharing of Child Protection Information has also been alluded to in a number of responses.

45 respondents replied in detail to question 20. Their comments are discussed in detail below.

Responses to this question fell into two categories. Those who supported the quick introduction or re-introduction of information sharing provisions in legislation tended to be local authorities or similar representative agencies. Those who did not support quick introduction or who did not believe in legislation at all tended to be from either the voluntary sector or the medical profession.

Provision should be introduced quickly

As noted above, those calling for provision in legislation to be introduced quickly tended to be local authorities or similar representative organisations. Mostly this was in terms of reintroducing the provisions which were dropped from the Protection of Vulnerable Groups Bill. Aberdeenshire commented:

"With part 3 (information sharing) being dropped from the Protection for Vulnerable Groups (Scotland) Bill it is crucial that legislative provision is included within the Getting it right for every child agenda."

The following organisations also responded in a similar manner:

• ACPOS
• ADES
• ADSW
• Angus Council
• Clackmannanshire Council
• East Renfrewshire Community Health and Care Partnership
• North Ayrshire Integrated Children's Services Planning
• Unison

In addition, Contact a Family, a voluntary organisation, stated:

"We feel that the information sharing proposed in the Protection for Vulnerable Groups (Scotland) Bill will adequately deliver the Getting it Right for Every Child agenda, providing that there is a duty to provide training to everyone involved with children and young people. It is not enough to raise awareness amongst staff, they need opportunities to practise using case studies and scenarios, so that when such an occurrence arises they are confident to implement the policy in line with the Code of Practice and Guidance.

"However, on a different but related point, we wish to register our concern at the current lack of information sharing between the EU member states, regarding suitability of people to work with children and vulnerable young people, given the freedom of working opportunities across the Union."

Provision should be introduced slowly, or not at all

As previously discussed, a number of respondents questioned the need for legislative provision on information sharing to support the aims of Getting it right for every child. The Scottish Commissioner for Children and Young People stated:

"I welcomed the withdrawal of Part 3 of the Protection of Vulnerable Groups (Scotland) Bill which addressed information sharing.

"It is not clear to me that further legislation on this subject is necessary. If it is judged necessary, then it may be appropriate to keep it simple and principled and to insert the detail in a Code of Practice. The following paragraphs set out my justification for these statements.

"[I note] the relevance of article 8 of the ECHR and its insistence that any interference with the right to respect for private and family life be rooted in law. There are indications in the case law that neither guidance nor nonstatutory codes of practice would provide a sufficient legal basis, even for legitimate interference. Consideration should be given as to whether the provisions of the Data Protection Act 1998 can provide that legal basis. If these are assessed as not strong or explicit enough, then it may be appropriate to legislate for a general provision identifying child protection or welfare as a legitimate public interest justifying proportionate breaches of confidence. This would be preferable to legislating for a duty to share information which risks an unintended consequence of excessive and inappropriate sharing by persons or agencies keen to protect themselves from blame. If the Data Protection Act is judged to provide a firm enough legal basis, then it may be possible to achieve the policy aims relating to information sharing through guidance or a Code of Practice.

"[I also note] that disclosure is more likely to be approved by the European Court if the recipient also works within a clear framework of duties to protect confidentiality. I would suggest that some of the difficulties encountered in sharing information between agencies lie in their very different and well entrenched cultures with regard to information. For good reason, the medical profession has a strong culture of confidentiality, whereas education, for example, takes a different approach. Young people themselves are wary of sharing information if they fear it will be disseminated further than they would wish.

"It is important to ensure that any intrusion on the privacy of children and young people is proportionate to the end desired. I would suggest that further examination be made of the extent to which standards of confidentiality, culture and actual practice are shared across agencies. Addressing this matter through guidance and training could help agencies feel more confident about sharing information, and help young people feel more confident about imparting it."

The Scottish Child Law Centre did not believe that further legislation was required, and linked development to the Code of Practice on the Sharing of Child Protection Information:

" SCLC appreciates the importance of sharing child protection information. It is our opinion that rules and guidance on the sharing of information should not be enshrined in legislation. Rather, for best effect, they should be set out in a national, non-statutory guidance on good practice - in line with the work currently being carried out by the Scottish Executive's Short Life Working Group on the Code of Practice on the Sharing of Child Protection Information. A duty to refer to the Code of Practice should be included in this draft Bill.

"The flexibility of such a Code of Practice means that professionals who already follow established good practice guidelines can continue to do so. Those whose procedures currently fall short of the expected minimum standard will be required to amend their working practices to ensure that they comply with the nationally accepted standard.

"It should be stated that SCLC supports the view that, wherever practicable, the consent of the child should be sought prior to the sharing of information about that child."

The Information Commissioners Office felt that additional legislation may not be required:

"A duty to share information was proposed within Part 3 of the Protection of Vulnerable Groups (Scotland) Bill ( PVG) but was withdrawn following Stage 2 of the legislative procedure. However, in our evidence to the Education Committee (November 2006), we indicated that the Data Protection Act should not be seen as a barrier to disclosure of relevant information pertaining to child protection.

"The GIRFEC proposals give relevant agencies the power to exchange information for the promotion of the well-being of the child. This power gives a legal basis for the processing of personal data and sensitive personal data as provided for under Schedules 2 and 3 of the Data Protection Act. On that basis, it may not be necessary to introduce further legislation to promote information sharing as a means of protecting the interests of the child.

"However, it is important to ensure that any information sharing which takes place must be necessary, relevant and proportionate to the child's needs."

Other respondents seemed to be more interested in further consultation and collaborative development on information sharing, over time. This could be either in the form of legislation or in the form of the collaborative development of legislation. Such responses tended to come more from voluntary organisations:

"We are broadly in favour of the principle of information sharing as a means to enhancing child protection but believe that this must be accompanied with stringent guidance that the voluntary sector has been involved in and consulted on. As this consultation document was published prior to the removal of section 3 from the PVG bill, it does not reflect any likely appearance of an information clause in this bill. We would ask that should any such amendment be forthcoming that it too be put out to full consultation with all relevant parties prior to Stage 1."

[Youthlink Scotland]

"Barnardo's Scotland has consistently called for the publication of the Code of Practice which will be the key determinant of practice with regard to information sharing. The policy intention may be for the Bill to provide the power for the Minister to require information sharing, but it is the Code that will determine how it will operate. Barnardo's welcomes the proposed extensive consultation on the Code of Practice prior to the publication of any amended Bill."

[Barnardo's Scotland]

The General Medical Council also set out their concerns:

"The GMC is clear that information must be shared to protect children from risk of serious harm. However, an overriding statutory duty to share such information might not leave room for professional judgement or otherwise require statutory defences as to undermine the purpose. Breaches of children's confidences cause harm, which need to be balanced against the proposed benefits of disclosure.

"… We are taking a close interest in the code which we hope will strike a proper balance between privacy rights and child protection, and leave room for professional judgement."

Other organisations who raised similar issues included:

• CHILDREN 1st
• Children in Scotland
• Fairbridge in Scotland
• FCA Scotland
• NCH Scotland
• Quarriers
• Save the Children
• Scottish Youth Parliament
• Sense Scotland

Children in Scotland went on to add:

"… we suggest that the draft Code of Practice on Child Protection Information Sharing eventually become directly linked with the Children's Services (Scotland) Bill. Effective information sharing is a key feature of children's services that are successful. Collaborative behaviour of this kind will be imperative to the implementation of the joined-up services and joint planning advanced through this Bill and GIRFEC. Conversely, information sharing only makes sense when done in context and toward the fulfilment of specific goals. This Bill provides that context and purpose.

"Second, we are convinced that the related issues of confidentiality and young people's right to privacy are fundamental to this Bill and GIRFEC actually reaching their goals of increasing well-being and being child centred. We think that these issues have been under-emphasised thus far and need to be more fully developed from a children's rights perspective. Unless children and young people are confident and trusting of how, and by/to whom, the information they convey will be shared and used, they simply will withhold vital information that could put them at an additional 'risk of harm'.

"Third, we recommend that much more consideration be given to the role of parents/carers/families in the information sharing and service delivery processes anticipated by this Bill and GIRFEC. Depending on the personalities and circumstances involved, there can be major tensions between parents and agencies or between parents and their own children over access to, and the sharing of, information that any one of these parties considers to be sensitive, private or confidential. Whilst we favour a children's rights perspective on information sharing (and many other issues), we fully respect the legitimate rights/needs/wishes of parents to be involved in important decisions about their children. The central role of parents/carers/families in children's lives and well-being needs to be acknowledged and incorporated into this draft Bill more fully, including around information sharing issues and concerns."

Concerns and comments about information sharing in general

A significant number of those who responded to the question on information sharing raised general concerns about the principles and practice of sharing information.

The Information Commissioner's Office stated:

"The danger of introducing a duty to share information where the agency has a concern over 'unmet needs' in relation to any of the elements of well-being, is that excessive information may be shared between agencies. Guidance needs to be given to the interpretation of 'unmet needs' - perhaps simply by introducing a threshold of ' significant unmet needs' and that it is necessary to share the information to help redress these unmet needs.

"The duty itself may cause an agency to raise well-intentioned concerns over areas related to a child's well-being which are outwith its own professional competence and which may therefore be misleading. Agencies could swamp the system with large volumes of information and potentially creating blind alleys to follow up, thus diverting resources from more immediate and pressing concerns."

The British Youth Council reflected on focus groups which they had carried out on the proposed Information Sharing Index in England, saying:

"Young people's main concerns were around incorrect information being stored, too many people having access to information, sensitive information falling into the wrong hands and possible identity theft if hackers broke into the system. Young people also commented that there should be spot checks to see who has accessed a young person's information, with penalties for misuse, such as termination of employment."

The Law Society of Scotland felt that there were specific issues about the use of information sharing by agencies. They stated:

"The Committees take the view that agencies are confused about what can be shared and when, particularly health agencies. In cases involving child protection there must be a clear process and clear criteria for allowing access to information, without the necessary consent of the individual involved. At the moment we rely on the provisions contained in the Scottish Executive document 'Protecting Children: A shared responsibility'. However few agencies are aware of the requirements of the document itself, which obliges agencies to consult with the person who provided the information, but does not oblige them to obtain their consent to sharing information in a child protection context."

Sense Scotland had significant concerns about the development of data sharing:

"We are concerned at how observations, initially open to being interpreted in many different ways will, once input and stored in electronic form, become set in tablets of stone. Subjective judgments about a child can and do influence the expectations others will then have on first being introduced to him or her. Once in writing they set the tone and become extremely difficult to amend. It is vital that robust procedures are in place to avoid this happening. The draft Bill does not say how this will happen.

"A second concern we have about what information is included relates to the validity of items used when assessing a child. The June 2006 consultation provided core data items together with accompanying datasets and in our response to that consultation we highlighted examples of what in our view were questionable items for inclusion. We do not intend to revisit these points but instead use the opportunity to point out that we are not aware of any updates to the original June 2006 framework for information sharing. We would be interested in commenting on the most recent version to be used for electronic information sharing."

The response from the Royal College of Psychiatrists (Child and Adolescent Section) had practical and ethical concerns:

"Unfortunately as a professional who is routinely concerned with arranging to share information I am aware that seeking consent in this way is a time consuming process. Whilst children and families feel more confident when they understand that their information will not be shared without their full informed consent, this exercise in seeking consent can distract from the primary task of a contact with the child and family. This is an aspect of practice which requires resources and in some areas the resource required to negotiate consent may out weigh the benefits achieved from information sharing.

"… Information sharing is restricted by boundaries of confidentiality for good reasons in clinical practice. I believe that the document fails to engage with this concept. I have already indicated my reservations on the proposals in relation to information sharing. In my view the best way of achieving efficient information sharing is to encourage a culture where parents and children have their own core data set in their own possession and are routinely asked for this by professionals who are concerned about them. This has previously been attempted with parent held child records but the main difficulty with this approach is that professionals fail to request access to the information in the record on a routine basis and thus children and families regard the record as unimportant and do not look after it as they might. A way forward here is not to compromise confidentiality or to create complex systems for obtaining consent in order to produce a shared database. The shared database has serious civil rights implications and many potential problems. The alternative is to embark upon a programme of professional training and practice development so that a parent/child held record is seen as the central source for information for all professionals working with children."

Scottish Women's Aid had significant concerns with regard to potential information sharing provisions and stated:

"[Our main areas of concern:] - Safety implications and unintended consequences for families experiencing domestic abuse as a result of increased information sharing between agencies.

"… Since the information-sharing network proposed will involve the transmission of information outwith this restricted category in terms of both subject matter and end-user, the child and their parents must be advised of the information that they are entitled to restrict, with this discussion and the outcome being recorded. This will prevent information sharing 'by default', by which we mean the sharing of information where the child or family has not actively consented to its disclosure, but neither have they explicitly stated that they did not want it shared."

Sense Scotland also had concerns about section 4(5)(b) (agencies co-operating by exchanging information):

"In our response we are assuming that this clause will refer to much of the general arrangements that are being put in place for sharing information between agencies, in particular regarding the Integrated Assessment Framework.

"We have concerns that the draft Bill does not specify what information will be held and shared; who will have access to it; and what provisions will be in place for sharing that information as well as restrictions placed on sharing. Without a statement of the restrictions in place it is difficult to support the draft Bill's loose framework on exchanging information. We have concerns that this will be left to secondary legislation."

A number of respondents focussed on the effects of expanding the power to share information on processes and systems.

The Information Commissioners Office commented:

"It is also important to ensure that the systems developed for the collaborative working required under s4 in order to facilitate the effective operation of the duty to share are such that all common sets of information are relevant to each recipient agency, accurate and not excessive. It is also important that each recipient agency respects the records management policies of the providing agency unless there are strong reasons not to do so."

The Prince's Trust Scotland said:

"We note that this encouragement for information sharing and partnership is being consistently applied by the Scottish Executive. We support this progression and it is an approach adopted by our own organisation ... Whilst we are clearly committed to this style of working, we wish to highlight the huge investment it has required in providing an infrastructure to support the processes involved, and an investment that is not attractive or recognised as important by most funders. This capacity to support the desired way of working should be considered by the Scottish Executive when appointing relevant agencies and imposing the duties intended by this Bill."

UNISON Scotland felt that:

"Different agencies have different arrangements for storing and sharing information. It is crucial that there are clear guidelines for all agencies about the use of that information. For example, health, social work and education records are assumed by children and their families to be confidential. These agencies have procedures for secure storage, sharing and allowing children access to their records. This will not necessarily be the case for some other agencies and functions. There are serious implications for agencies if someone other than the agency which gathered the information in the first place accidentally or otherwise discloses confidential information to third parties."

SCRA have a specific interest in provision for data sharing, and commented:

"[ SCRA] believes that the following points should be taken into account:

1. The power of the Principal Reporter to share information (and consequently the delegated power of all Reporters) is derived from statute. This therefore limits the circumstances in which information can be shared, in the same way as the respective statutory basis would provide or restrict the power for any other public body.

2. Once the initial question has been addressed of whether information sharing in a particular situation is intra vires, the Principal Reporter must also take into account the following legal issues:

a. The Human Rights Act 1998, and the European Convention on Human Rights.

b. Any statutory or common law duty of confidentiality.

c. The Data Protection Act 1998.

3. The current statutory provisions relating to the role of the Principal Reporter do not enable the sharing of information at a pre-referral stage. Reporters are willing to support pre-referral activity by providing 'threshold' guidance for other agencies, in a non-case specific way.

4. This parameter for information sharing will impact on any role the Reporter may have in relation to the provisions in Part 1 of the draft Bill, albeit that the Part 1 proposals are considered to be directed towards service provision agencies, rather than the Reporter.

5. SCRA is aware that a Draft Code of Practice on information sharing will be circulated for consultation shortly. This may assist agencies to understand their respective roles in this complex area, but will not alter the statutory power to share information for any agency, including the Principal Reporter."

Information sharing was also discussed in depth at the Children in Scotland consultation event in Inverness which was supported by the Scottish Executive. Key comments recorded at that event are as follows:

• Important to set standards in relation to what a child can expect in terms of confidentiality
• Need to define what information needs to be shared and when
• People should be encouraged to share information more - more about developing partnership working - maintaining good relations
• What happens to the information? - assessments are being
• • determined by resources
• Access should be limited as information is shared
• There are too many different views on what information should be shared - it needs clarification
• Define terminology - such as 'niggling worry' and 'significant harm'
• If information is shared, it needs to be backed up with action - Children are far more likely to say something if action is promised.
• Important to have one professional person to talk to - having the lead professional as the gatekeeper
• Does it affect organisations working with adults? Maybe more consultation with those organisations is needed.
• Confidentiality - there needs to be a consistent policy and understanding of confidentiality. Children need to know what confidentiality policy means and know their rights, what info is shared, who it is shared with and what happens to shared info.
• Feedback - essential that c & yp know what happens to info.
• Concern that transitions has been missed - cross-over with vulnerable adults for yp over 16."

Question 21 - Definition of 'child in need' in Children (Scotland) Act 1995

Question 21 was: "Would amending the definition of a child 'in need' in the Children (Scotland) Act 1995 be helpful to the aims of Getting it right for every child without causing unwanted consequences?"

Of the 97 respondents who indicated a yes or no response to this question, 64 were of the view that amending the definition would be helpful. One respondent was partially of this view. 32 respondents did not feel that amending the definition would be helpful. 37 respondents commented in detail. Their comments are discussed more fully below.

This means that 66% of those who indicated a yes or no response felt that amending the definition would be helpful. This figure is 28% of the total number of respondents to the consultation.

Clarity and simplicity

A number of respondents agreed with Aberdeenshire's response on this issue:

"Clarity of meaning and one common language/terminology is required within Children's Services at this time of increased integrated work."

Clackmannanshire Council agreed, but added some caution in counselling:

"… unwanted consequences in legislation tend to be apparent only when statutory interpretation is tested in court. The Scottish Executive should listen carefully to the views of the Scots Law Commission and of experts in Scots family law. Some of the current need for changes to family law statutes is as a result of a failure to do so in the past."

Other respondents felt that widening the definition of 'child in need' would broaden the opportunities for agencies to work together and concentrate on the needs of children. The Scottish Association of Community Child Health said:

"… if this Bill can be seen as supporting the Rights of all children with all types of need to interagency working and effective implementation of plans to assist, with agencies having duties and obligations to children and their families then it would be helpful to have the wider definition of children 'in need', to benefit the greatest number of children."

Save the Children also felt that amendment would be helpful:

"Save the Children believes that a consistent approach is preferable and that rationalisation of definitions would avoid confusion and require those working with children to focus more on the needs of children. Save the Children supports, in principle, revising the definition of children's needs, in line with the aims of Getting it right for every child."

No change to the definition of 'child in need'

Other respondents were opposed to a change in the definition. The Law Society of Scotland stated:

" … the Committees are of the view that the definition contained in the 1995 Act is sufficient."

There was a specific thread of concern from disability organisations arguing against a change in the definition of 'child in need', mostly concerned about ensuring disability retained the profile they felt that it required.

For example Care Co-ordination Network UK stated:

" CCNUK recommend that the definition of children in need as set out in the Children (Scotland) Act 1995 is maintained. We do believe there is still a requirement to have a separate definition of 'in need' to ensure that children with disabilities and complex needs are not overlooked in the implementation of this legislation and that their rights are promoted and protected as far as possible. There is a danger of the needs of particular groups of vulnerable children and young people being subsumed by the very general and often vague nature of this bill."

Unison wished to retain the definition because of a lack they perceived in the definition of well-being in Section 1 of the draft Bill:

"The Children (Scotland) Act 1995 s93(4) defines a 'child in need'. This includes specific reference to disability or being affected by the disability of another person in the family. The definition of well-being may have benefited from such a specific inclusion but so long as s93(4) of the Principal Act remains in force we would have no objection."

A small number of other respondents were concerned that the definition not be altered for other reasons:

"Strongly against any attempt at defining 'in need.' It is very easy for anyone involved in child protection to know when a particular child is 'in need'. Much more difficult to make a generic definition and then expect to test the child's situation against the 'standard'."

[Individual Respondent]

Link with well-being

A range of respondents felt that it would be helpful to amend the definition of 'child in need' to link it more specifically with the new concept of well-being, introduced in Section 1 of the draft Bill. For example, ACPOS stated:

"Members agree that this would be helpful. Expansion of the care and attention principle of need in the 1995 Act to that of the more holistic terminology of 'wellbeing' in the Bill allows agencies to look at the wider issues, providing opportunity for agencies and services to consider their involvement and contribution."

City of Edinburgh Council agreed:

"We believe it is essential that careful thought is given to ensure that the 'wellbeing' and 'child in need' definitions are compatible."

Renfrewshire Integrated Children's Services Partnership felt that there should be a specific link to the Vision for Scotland's Children, stating:

"A common definition linked to the 7 point vision for Scotland's children is advocated. It would be very helpful if the terms 'additional support needs' and 'children in need' could be synthesised to create a unitary concept which could underpin agencies' efforts to support children.

"This should be linked to section 1 of the bill in relation to the definition of well-being."

The Prince's Trust for Scotland commented in detail:

"Whilst we can not comment on how this potential change would impact on practice in public services, or whether categories rather than need are currently the drivers for their actions, we can offer the following comments based on our experience.

"All young people that approach us or that we approach are assessed on their individual needs. However, we are a charity that works with specific target groups of; long term unemployed, those in or leaving care, educational underachievers, and ex/offenders and those at risk of offending, and these must be met. We are also conditioned by the criteria of our funding streams which only fund our work with certain groups. Where we are unable to offer the appropriate support we refer to an organisation that can to ensure that the young person's needs are met. However, in the public sector we acknowledge that currently there may not be the same consistent commitment to source the appropriate support, unless there is a specific duty on the agency in question to do so. This would contribute to the high level of inappropriate referrals to the Children's Hearings system, and if addressed, as is the intention, it is reasonable to assume that this number would fall. It is our view that for this to be achieved it is a question of how you monitor what support a child is receiving if they are not 'fed' into the system this way as they currently are. Who would ensure they received that support without the element of compulsion on the agency?

"The only 'unwanted consequence' that we envisage as a result of the widening definition of 'in need' to include the concept of 'well-being', is that limited resources would be even further stretched. With such significant levels of children living in poverty and/or achieving low educational attainment etc, the number of children whose positive outcomes could be improved from receiving support from the relevant agencies are far greater than those who currently appear through 'the system'. The issue is not whether they should receive support as it is clear that they are 'in need', but more how that would be resourced. By fully embracing the culture and intended practice of Getting It Right for Every Child, the Scottish Executive will need to provide further funds to support both the public services and the voluntary sector to enable this to happen in practice."

Other suggested changes

However, the Royal College of Psychiatrists (Child and Adolescent Section) said:

"With respect to the definition of 'Child in Need', I would definitely not agree with amending the definition to the point that it becomes aligned with the notion of wellbeing in the way defined within this Bill.
I would suggest that the definition might be reviewed in the light of existing evidence to include consideration of children who are 'at risk' as a result of parental behaviour, whether through criminality or addiction."

A large number of respondents felt that there should be some sort of explicit link between the definition of 'child in need' and the Education (Additional Support for Learning) (Scotland) Act 2004.

ADES stated:

"We agree that rationalisation of definitions would be helpful in requiring all agencies to focus on the needs and wellbeing of all children and take action to address them. However being 'adversely affected by the disability of any other persons in the family' (currently included within the definition of child in need [in the 1995 Act]) may require to be included within the draft Bill. Also the legislation will have to address the definition in the Additional Support for Learning Act, as there is considerable overlap between all of these definitions and the population of children they refer to."

Sense Scotland commented in detail as to how they felt that the definition of 'child in need' (and 'unmet needs' in Section 1 of the Bill) could be amended to deal with this issue:

"We suggest that the Scottish Executive considers using the term 'in need of support' and, in the appropriate context, use the terms 'unmet support needs' in place of 'unmet needs' and 'support needs' in place of 'needs'.

Introducing the term 'support' in association with 'needs' does in our view offer several advantages as well as helping to address fundamental problems with the draft Bill.

• It brings the draft Bill into line with the ASL Act which introduced the term 'additional support needs'. While the term 'additional support needs' is used in the ASL Act in relation to education, the broader term 'support needs' now has an established currency.
• Having an established currency, one that is used both within agency (education) as well as across agencies (because of duties to education under the ASL Act), will help to stimulate joint agency thinking.
• The reason the term ASN was introduced into education was in order to move away from within-child thinking, ASN are broader than the former special educational needs and not specifically related to disability, health and impairment. Instead support needs arise from impairments and they can arise from other factors too.
• 'Support needs' have been used in conjunction with other terms as in 'communication support needs' and 'literacy support needs'. The Scottish Executive is we understand currently funding a project to look at the use of the term 'communication support needs', in part within the context of interagency working.
• The change in term and definition reflects the intention of para. 5.51 that "We believe that rationalisation of definitions would both avoid confusion and require those working with children to focus more on the needs of children and action to address them rather than whether they fit a category".
• 'Support needs' subtly shifts the balance from locating a problem in a child towards understanding that a response is expected and the support should follow. As Para. 5.49 notes 'the core ethos of Getting it right for every child is that agencies ... get on and act to help children wherever possible as soon as is appropriate, based not on the categorisation of children but on their needs.' Adopting the term 'support needs' implies that agencies have to act in order to provide that support.
• Changing the definition to 'in need of support' and 'support need' and 'unmet support needs' may well present challenges to some of the thinking behind Part 2 of the draft Bill. However, given that the title of the Bill is Children's Services (rather than for example Children's Hearings), it is perhaps no bad thing to equate services with support.
• The term 'support needs' sits more comfortably with children's rights under the UN Convention on Children's Rights.

In response to para. 5.45

The amended definition could be:

The Children (Scotland) Act 1995 in section 93(4) defines a child 'in need of support', for the purposes of that legislation, as:

(a) being 'in need of support', is to his requiring care and attention because -

(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services of a local authority;

(ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided;

(iii) he is disabled; or

(iv) he is affected adversely by the disability of any other persons in his family."

A number of other respondents came up with specific proposals and additions to amend the definition of 'child in need'.

Aberdeen Children and Young People's Strategic Planning Group suggested:

• "This would benefit from being reviewed or refreshed in response to new and emerging 'needs' for example around substance misuse.
• Modernise and simplify by all means, but don't change thresholds
• The definition should remain child centred
• There needs to be a correlation between the various pieces of legislation
• The concept of well-being should be included."

Stirling Council and partner agencies proposed:

"Consideration could also be given to including 'a child being affected adversely by the adversity of any other person in the family', rather than the current language in the [Children (Scotland) Act 1995]."

SWIA stated:

"There is a need to include children in trouble/at risk of offending within the definition of 'children in need'. This would serve to provide a closer match between the definition of children in need and the grounds of referral to the children's reporter."

Finally, the Scottish Child Law Centre suggested:

"In addition, we propose that section 93(4)(iv) is amended to include people within a 'domestic context' or that some other broader term than family is used."

Thresholds

FCA Scotland were concerned about the thresholds which they perceived with a change in definition of 'child in need':

"It was widely felt that the threshold for a child to be considered as 'in need' is too high and that gatekeeping issues and limited resources have contributed to this. Also, professional groups have often struggled with the definition as it exists at present. Finally, we recognised that the 'no order' principle has frequently been misinterpreted or misunderstood as synonymous with 'no action' to help a child.

"If the concept of well-being is implemented, it follows that any child assessed to have an unmet need could be seen as a 'child in need'. Our shared view is that this interpretation would lead to many more children than at present being categorised as children 'in need'. However, in most cases that unmet need could be addressed relatively quickly and effectively by action by agencies once the child's situation has been noticed and assessed. Even when the assessment highlights unmet need that is not so amenable to rapid resolution, our view is that it is preferable to be clear and open with, and about, children in Scotland if services are to improve. There is however, the danger that professional groups, already struggling with resource limitations, may feel overwhelmed by the numbers of children deemed to be 'in need'."

Question 22 - Regulatory Impact Assessment

Question 22 was: "We would be grateful for informed comment on any or all of the matters discussed in the partial Regulatory Impact Assessment including views on any matters arising from the draft Bill which may (in your view) have cost implications."

81 respondents chose to comment on this question. Their views are discussed in more detail below.

Many respondents expressed the view that the changes to be made under Getting it right for every child would result in increased costs. All respondents who made comments in this area referred to increased costs, while none referred to any reduction in costs which might be expected, even where it was recognised that workloads in certain areas would be likely to decline over time.

One of the key areas in which consultation respondents suggest that additional funding may be required was the training costs associated with legislative and practice changes on the scale of the Bill. There is also concern about the wider costs that may be incurred during transition to the new systems, although no responses were able to offer any level of quantification in this area, or any indication that the short-term transition costs will translate into longer term savings that may move the programme back towards cost-neutrality.

Concern was expressed by several respondents that the ability of Hearings to impose a duty on agencies, including voluntary organisations, without taking into account the resources available to these organisations could have the potential to cause serious problems. This was linked to the belief that it may be unrealistic to expect all unmet needs of children to be addressed, with or without a very significant increase in funding provisions.

Another key theme was the view that sufficient time should be allowed to learn from the results on the Highland pathfinder scheme. This was particularly strongly emphasised by consultation responses on behalf of stakeholder organisations, and those working directly in the front line of children's services. Those pushing for immediate change tended to be individual respondents, particularly panel members, in respect of part 2 of the draft Bill.

Question 23 - Other views on the draft Bill or the consultation process

Question 23 was : "We are interested in any other views you have on both the content of the draft Bill consultation and on ways which we could make this type of exercise more accessible to a wider range of people in the future?"

Of the 54 respondents who provided comments on this question, the vast majority are dealt with in Chapter 6 of this consultation analysis. The views of those who wished to comment on the conduct of the consultation on the draft Bill are discussed in more detail below.

Aberdeen's Children and Young People's Strategic Planning Group summarised the points raised in the majority of these responses:

• Too short a time has been allowed for consultation
• Is a draft Bill the best 'tool' for consultation - the format requires a level of education
• How does the Scottish Executive reach service users, i.e. children and families?
• Is everyone aware of the relevance of this proposed legislation and do they know the implications of what is being proposed? It has to be seen as relevant otherwise people won't become engaged.
• The change management required in introducing the proposals in the Bill is significant and this re-design of services will be an important feature of implementing the legislation and needs supported
• The political timetable might have an impact on the future and eventual implementation of this legislation.

Children and young people

A number of respondents felt that the Scottish Executive should have done more to make the consultation more accessible to children and young people. For example, The Prince's Trust Scotland said:

"We acknowledge that there have been a series of consultation events held in addition to written response requests. However, we wish to highlight that for such an important document, which has such far reaching effect, much more consultation should be done with the client groups affected - children and young people. We have found the use of informal focus groups with a cross section of our target groups to be a successful way of staying informed about how our services impact young lives and where we should share best practice and where we need to seek to improve."

Contact a Family raised the issue of accessibility for disabled children and young people:

"Whilst we understand that the Bill needs to be a broad document, we would have found it much easier to respond to had there been case studies or scenarios in the consultation document to illustrate how it will impact on outcomes for children and families. It may be that the authors had disabled children and young people in their minds as they wrote it, but without any examples we are left feeling that they have been forgotten."

Complexity of the draft Bill document

A number of respondents complained about the complexity of the draft Bill document. Barnardo's Scotland said:

"Barnardo's Scotland appreciates that this is an ambitious reform programme. This is a very complicated consultation with many questions and issues buried in the text."

Geraldine Simpson said:

"In order to make this type of exercise more accessible to a wider range of people in future you need to start by using language that is clear and explains how the proposals differ from the status quo.

"The standard of grammar also needs to improve as some areas of the document were made additionally difficult to understand. It must be possible to produce something in clear English (with translations into other languages where necessary) which would enable a far greater number of people to participate in the consultation process."

Strathclyde Police also felt that the draft Bill document could have been improved:

"The content draft Bill consultation document was of assistance in determining the response to the question set by the Scottish Executive and while the documents are stand alone pieces of work cross referencing between the questions, draft Bill and Consultation Document was challenging and time consuming. A more integrated single document combining the notes alongside the questions would be a more user friendly format."

Children's Panel Members

A number of respondents, mostly Children's Panel Members or representative organisations, felt that consultation with Panel Members had been mishandled. Mary Fawcett commented:

"Extremely confusing badly worded questions and serious gaps in areas that should be being discussed. Draft Bill arrived shockingly late although in a sense there is nothing new there. I hope that the consultation on support for panel members, which I am extremely interested in will be handled better."

The Scottish Association of Children's Panels said:

"The consultation document also appears to have been sent out on a piecemeal basis, with some previous respondents not receiving a copy of the current consultation until much later than others. Similarly, the Wee Communicator, was not sent out in some areas until very late in the day, if at all. Local consultation with panel members has also been patchy.

"There are issues such as the continuity of panel members, timing and frequency of hearings for which it is felt legislation is unnecessary. However these directly affect panel members and we wish panel members to be consulted as fully as possible on proposed changes in practice, both locally and through both national bodies, SACP and CPCG."

Not all those who commented on this issue concurred with this view. Dundee Children's Panel said:

"Does appear to be successful as far as the Children's Panel is concerned."

Agencies

A number of those who responded felt that more efforts should be made to ensure responses from agencies, or to ensure that agencies were publicising the consultation to their staff. The Children's Panel Chairmen's Group said:

"Unlike legislation which has an obvious impact upon the general public, where a very large response might be anticipated, the complexity and subject matter of this draft Bill would suggest that responses would come primarily from those directly involved. The wide public and agency-specific consultations carried out prior to the legislation being drafted allows the Group to be confident that every effort has been made to elicit the views of all parties. There is still a concern, however, that many of the core agencies have yet to demonstrate any evidence that the proposals contained in the draft Bill are being disseminated to front-line staff within their organisations."

Children 1st were concerned about agencies who worked with adults:

"We are concerned that this draft Bill impacts upon agencies who work with adults who may have an impact on a child's wellbeing, but we are aware that there has been little representation from these groups at consultation events. We question whether further steps need to be taken to fully involve these agencies in this consultation process."

Complaints

There were a small number of specific complaints. One individual was concerned about the time and money being spent on the consultation process:

"Whilst understanding that this is a very important exercise I am very concerned about the amount of time that is being spent on it, deadlines are set but then continually broken for whatever reason. With regard to the last question of cost implication I am concerned about the amount of money being spent during this consultation process, on Human Resources across the board, glossy books etc. This money would be better used for the benefit of Scotland's children. I actually find it insulting to our children and young people when cost implications are spoken about regarding the care, protection and services they require. I understand that value for money is necessary and the process for monitoring this must be very robust however it angers me when processes like this drag on using up quite extensive resources."

A number of respondents complained about the online form. As an example the British Association of Adoption and Fostering Scotland said:

"As with past consultations, the online form was not useful for completing a detailed response as it could not be saved or printed out properly."

Ideas

A number of respondents suggested additional ways to support the consultation process. These are set out below:

"Local community meetings with opportunity for the public to comment."

[Eleanor M. Terrace]

"Glossary regarding terminology (in light of multi-agency participation in consultation process)

"Need for services to complete a joint consultation response (integrated response from local authorities)."

[Aberdeenshire]

"Information on how the needs etc. of young people are dealt with by the Hearings System would be useful as this could help raise the profile and benefits of the System, but very careful consideration needs to be given to the format of that and the way in which information is provided."

[Renfrewshire Council]

"Wonder if mailshots would be useful (or a waste of money!) Certainly more public awareness either through the press or in local areas. Must consult as widely as possible with Children's Panel members in particular (every bit as important as any consultation with SCRA!)."

[Neil Macleod]

A few other respondents did not feel that more comprehensive consultation would be helpful. For example, Alison Stewart felt:

"Sometimes contact/consultation can be too wide and so loses its impact/relevance."

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