Scottish Government

7 - Regulatory Impact Assessment

Introduction

7.1 This draft Bill seeks to implement the legislation required to deliver Getting it right for every child. The draft Bill proposes new duties on agencies and also significant amendment to the Children (Scotland) Act 1995. In summary the following changes are proposed:

• Changes in the criteria for referring children to the Children's Hearings system.
• Providing duties for a wide range of agencies to address the needs of children and supporting these agencies to work together in planning to address the needs of children in local co-ordination and monitoring frameworks.
• Strengthening the Children's Hearings system.

7.2 The draft Bill seeks to improve the outcomes and experience of children who need help. The intention is to deliver improved outcomes for individual children, with resultant reductions in bureaucracy and process for the agencies involved. We also propose changes to the way Children's Hearings work to ensure that they only take place for the right reason - to consider whether compulsion is necessary.

7.3 The following key objectives are intended: children get the help they need when they need it, agencies work effectively together locally to deliver for children in their area, and Children's Hearings concentrate on those cases where compulsion is necessary.

7.4 The Scottish Executive is co-ordinating five pathfinder projects: one regional project in Highland, and four domestic abuse projects in Dumfries and Galloway, Edinburgh, Falkirk and West Dunbartonshire. A key aim of these projects is to identify how Getting it right for every child will work in practice. An added benefit is that the information collected via the pathfinder projects on the practical implications of Getting it right for every child will provide valuable information on the resource implications of the approach and subsequently inform both the final Regulatory Impact Assessment and the Financial Memorandum.

7.5 The pathfinder projects will also provide information about the support that agencies will need from the Scottish Executive in order to deliver the new duties and resultant ways of working proposed in the draft Bill. Gathering this information will allow the Scottish Executive to facilitate and support the large and complex organisational development and transformation agenda that will be required to help ensure that all of the agencies affected by the programme take the necessary steps to improve outcomes for children and young people.

7.6 The pathfinder process has been put in place because the Getting it right for every child agenda is both broad and ground-breaking, meaning that it is difficult at this stage to accurately quantify the impact of proposals, legislative and otherwise. For this reason, a number of the proposals discussed in this Partial Regulatory Impact Assessment will rely heavily on the pathfinder projects to inform a more detailed cost and benefit analysis in time for the final Bill.

7.7 In consultation, many professionals have intimated that there will be resource issues to delivering this project, and these issues have been recently voiced by service users and voluntary sector organisations as well.

7.8 Getting it right for every child is a long-term agenda of at least five to ten years, which will require support and funding decisions to be made over a period of years in order to deliver fully. The proposed draft Bill is the first step in this process.

7.9 In the long term, the intention is for the programme to be cost neutral. However, there are likely to be transition costs in the short to medium term, because the programme will change the way agencies operate and this will be likely to incur costs for these agencies. Over time, resources should rebalance to reflect changing workloads but this will not happen immediately.

7.10 Consideration has already been given to the support required to realise the potentially complex organisational changes required to implement Getting it right. Key elements already identified are:

• Support for organisational change to deliver the new systems across all agencies.
• Support and leadership to deliver multi-agency training across the children's workforce.

Consultation to date

7.11 As set out in chapter 3, the proposals contained in the draft Bill have already been subject to wide ranging consultation including:

• Getting it right for every child: The review of the Children's Hearings system (2004) identified the need for strengthening of the Children's Hearings system and reform of children's services.
• Getting it right for every child: Proposals for action (2005) set out our detailed proposals for reform and was welcomed by those working in children's service and involved in the Children's Hearings system.

7.12 The Executive is now taking forward the proposals set out in these documents as explained in Chapter 4, as well as consulting on further change in Chapter 5 of this consultation document.

7.13 The work of Getting it right for every child is overseen by the a number of mechanisms for involving stakeholders, including the Children's Services Steering Group.

Issues for discussion

7.14 The Executive is now consulting on the detail of the draft Children's Services (Scotland) Bill and this Partial Regulatory Impact Assessment ( RIA) is part of the consultation. Comment on this partial RIA should therefore also be provided by 31 March 2007.

7.15 The purpose of a Partial Regulatory Impact Assessment is not to debate the merits of the draft Bill but rather a preliminary attempt to identify and analyse the benefits, risks, costs and compliance issues arising from alternative options for taking forward proposals that may have implications for resources.

7.16 This Partial Regulatory Impact Assessment seeks views on the Executive's provisional conclusions on the nature and extent of additional burdens on agencies that will or might arise from the draft Bill. Views on likely cost implications would be welcomed as would the identification of other aspects of the draft Bill which might create burdens or costs for agencies that have not been identified in this document.

Changes in the criteria for referring children to the Children's Hearings system

Issue

7.17 Processing children, young people and their families through criminal justice, Children's Hearing and child protection systems does not necessarily lead to good outcomes. Research evidence suggests that formal measures put in place to tackle low risk offending or low level concerns about children's welfare can sometimes be counter productive. They can lead to alienation of young people and their families from those agencies designed to help them. There is therefore a lack of clarity about when formal systems are needed.

7.18 It's everyone's job to make sure I'm alright: The audit and review of child protection (Scottish Executive, 2002) found that the original principles underpinning the Hearing system had, to some extent, become diluted by the routine referral of particular types of case and by its use as a perceived alternative route to services.

7.19 The key issue is that in many instances children are being referred to the Children's Hearings system when they would be better served by agencies, where possible, not referring them and instead taking action themselves. In the last financial year, over 90% of all children referred to the Principal Reporter do not proceed to a Children's Hearing. There are a wide range of reasons why: there is insufficient evidence to justify grounds for referral; work is already underway with the children and no additional action is merited; the needs of the child do not require compulsory measures of supervision. Inappropriate referrals result in additional processes being activated which require separate reports and bureaucracy, yet no change in the action which might be required to be taken. Resources are being diverted away from the children who need them most, and being absorbed in bureaucratic process rather then directly helping children.

Objective

7.20 The objective is that the Children's Hearings system should deal only with cases which meet two tests, focusing on needs and a need for compulsion. This will help to focus resources on those children that need them most.

Risk Assessment

7.21 Potential risks arising from this change are:

• Changes to an established set of criteria for tests for referral may, in the short term, lead to confusion amongst agencies as to where referrals to the Children's Hearings system would be appropriate.
• Agencies and professionals may have difficulties in adapting to the changes, and in particular to getting on and acting when they would previously have referred to the Children's Hearings system. There may be skill, resource or practice issues.

Options

7.22 Options to deal with this issue would be to:

(1) Continue with the current tests for referral as set out in the Children (Scotland) Act 1995.

(2) Change the legislative framework to frame tests for referral to reflect more clearly the needs of the child.

(3) Change guidance and make efforts to influence professional practice to take greater account of the needs of the child (rather than focus on an incident or incidents) in referring to the Children's Hearings system.

Benefits

7.23 As it is the current position, option 1 would have minimal benefits.

7.24 Option 2 provides an opportunity to concentrate on the needs of a child and the appropriate action to produce a positive outcome, rather than on the incident or incidents which have lead to a child coming to the attention of agencies (a Hearing). A number of key benefits will result from this:

• Inappropriate referrals to the Children's Hearings system will be drastically reduced, allowing the Children's Hearings system to focus on children who most need help.
• The new tests for referral will provide clarity about when it is appropriate to refer to the Children's Hearings system. This will result in agencies being clear about when they can get on and take action in the interests of the child, rather than needing to make a referral. This, in turn, will mean that many children will get the help they need more quickly.
• Any reduction in the volume of cases referred to Hearings ought to result in a reduction in the volume of cases being referred to or appealed to the sheriff (an analysis of cases referred or appealed will be required to determine whether this represents a pro rata reduction in the courts' workload).

7.25 Option 3 would result in some success in tackling the issue identified in the audit and review of child protection, and would lead to some of the benefits outlined for option 2.

Costs

7.26 There are significant opportunity costs associated with option 1. With no change, inappropriate referrals will continue and this will mean that resources continue to be diverted from those children who need them most. From 1996/97 to 2005/06, the number of children being referred to the Children's Reporter rose from 46,497 to 97,607, an increase of more than 100%. However, in the same period, the number of children referred to a Children's Hearings by the Children's Reporter increased by just 9% (up from 13,112 to 14,282). Meanwhile, the number of children made subject to Supervision Requirements - the principal outcome of a Children's Hearings - over the same ten year period rose only by 5%, from 10,743 in 1996/97 to 11,296 in 2005/06 (These figures are taken from SCRA's Annual Report 2005/2006). This demonstrates that there is a lack of clarity amongst agencies as to the nature of compulsion and what is required in a referral to trigger a Reporter to refer a case to a Hearing. Further, it demonstrates a trend over time that increasingly diverts resources away from children who most need help through a Children's Hearing.

7.27 There are likely to be short to medium-term costs associated with option 2. The new tests are likely to require agencies to change how they operate, requiring them to commit more resources than previously (eg, to get on and act when previously a referral would have been made). Over time, this should be balanced out by savings within other agencies seeing a reduction in workload - for example, the Children's Hearings system will experience fewer referrals - but there will be a period of adjustment for the whole system before this can happen.

7.28 Option 3 would in some respects combine some of the costs of options 1 and 2. Most significantly, it is highly likely that there would be inconsistency between agencies and across regions of the country. There would therefore still be inappropriate referrals to the Children's Hearings system, resulting in the inefficient use of resources. Equally, the lack of uniformity in adopting a new approach is likely to lead to inefficiency, with resultant costs associated not just with adjusting to new tests for referral but also with differing ways of interpreting and responding to the guidance.

Consultation

7.29 These new duties have been consulted on in Getting it right for every child: Proposals for action. They received strong support, with 66.8% of respondents giving either a clear or qualified yes.

Equality, Equity and Fairness

7.30 While there are no direct implications for the issues of equality, equity and fairness, agencies will need to ensure that any referrals which they make to the Children's Hearings system effectively respond to cultural and social differences within different communities, while continuing to act in the best interests of the child.

Monitoring and Review

7.31 A number of mechanisms are in place to monitor and review the impact of the proposals. As mentioned in the introduction to this section, the pathfinder projects will provide information about how Getting it right will work in practice. Methods to evaluate the programme have been set up, which will be augmented by ongoing research.

7.32 In addition, useful data will be provided by the Scottish Children's Reporters Administration, who collect and report information on referrals to the Children's Hearings system.

Summary and Recommendation

7.33 As stated in section 7.21, the objective is that the Children's Hearings system should deal only with cases which meet two tests, focusing on needs and a need for compulsion. The only way that this can be satisfactorily achived is to change the legislative framework, as proposed in option 2.

7.34 Though there may be some resource costs in the short to medium term, these will be compensated for by the fact that this option will provide clarity to agencies regarding when to refer and when not to refer to the Children's Hearings system. This, in turn, will:

• Allow the Children's Hearings system to focus on children who most need help.
• Help ensure that children who do not need to be referred to the system are not referred and instead receive the help they need earlier in the process than may previously have been the case.

References in the Draft Bill

7.35 Part 2 of the draft Bill contains proposals to alter the tests for referral to a Children's Hearing.

Review

7.36 As mentioned previously, Getting it right for every child is a long term programme. Review of these proposals will therefore take place over a 10 year period, in order to fully assess their impact.

Providing duties for a wide range of agencies to address the needs of children and supporting these agencies to work together in planning to address the needs of children in local co-ordination and monitoring frameworks

Issue

7.37 There are a number of issues to be addressed:

• There is a lack of clarity in the system because currently there are only limited and disjointed duties on agencies to address the needs of children. These include the duties on local authorities in the Children (Scotland) Act 1995, duties on education authorities in the Education (Additional Support for Learning) Act 2004 and the NHS Reform (Scotland) Act 2004. These duties do not allow for a wide range of agencies to become involved with the child.
• There is a lack of a coherent framework for co-operation between agencies.
• The current system is not sufficiently explicit regarding multi-agency planning at an early stage in the process, resulting in unnecessary referrals to the Children's Hearings system being made. The current system lacks a consistent process for identifying an individual to co-ordinate and monitor planning, which can lead to barriers to joint working and information sharing.
• Inefficiencies in the current system can lead to unnecessary meetings, referrals, processes, report writing, assessments and plans relating to children, young people and their families.

Objective

7.38 The objective is to maximise and support the role of a wide range of mainstream services (for example nurseries, schools, family centres, primary care services and youth centres) as the front line providers of children's services.

Risk Assessment

7.39 Potential risks arising from this change are:

• The new duties could prove to cover too wide a range of agencies, making them unworkable.
• The duties place too heavy a burden on agencies (particularly but not exclusively small agencies), and specifically on voluntary sector agencies delivering a public function.
• The duties and related enforcement and sanction provisions could produce a blame culture. This could lead to volunteers withdrawing from the system and others being reluctant to take responsibility, for fear of being blamed for 'bad' outcomes.

Options

7.40 In broad terms the options here would be to:

(1) Do nothing.

(2) Change the legislative framework to introduce duties on solely public sector agencies.

(3) Change the legislative framework to introduce duties on all relevant agencies.

(4) Change guidance and attempt to influence professional practice.

Benefits

7.41 As option 1 is the status quo, there will be minimal benefits associated with this option.

7.42 Option 2 would allow for positive change and involve the key agencies working towards a common framework. It would address the issues identified above and realise the objective of creating a coherent set of duties. It would create clarity in the system and make mainstream services the frontline providers of children's services. This, in turn, will produce better outcomes for children - with agencies better able to work together earlier and take action earlier to meet their needs. This proposal would reduce the burden on local authorities while focussing on those agencies already geared up (eg, with sufficient resources) to deliver.

7.43 Option 3 would produce a range of benefits:

• It would address the issues identified above and realise the objective of creating a coherent set of duties.
• Like option 2, it would create clarity in the system and make mainstream services the frontline providers of children's services. Again, this would lead to better outcomes for children - with agencies better able to work together earlier and take action earlier to meet children's needs.
• This proposal would allow for working towards this common framework and would also ensure that a wider and richer range of agencies are involved in delivering a positive outcome for the child removing some of the burden from local authorities as at present.
• An additional related benefit is that it supports the momentum for the state to provide more services through non-statutory sectors. In the absence of this option, they would not be covered by the same legislation.

7.44 Option 4 would provide a mechanism to encourage front line services to become the main providers of children's services. A voluntary arrangement would also, to a large extent, allay any fears about a culture of blame developing.

Costs

7.45 The principal cost of option 1 is that the failings of the current system would continue. Too much onus would remain specifically on local authorities to act to meet the needs of children, and inconsistencies would continue in the way agencies work.

7.46 Option 2 represents additional duties on public sector agencies and as such may well incur additional costs. This option also fails to pay cognisance to the increasing role of the non-statutory sector.

7.47 As with option 2, Option 3 represents additional duties on agencies (in this case all relevant agencies) and as such may well incur additional costs.

7.48 Option 4 would not necessarily create a coherent, consistent set of duties across a wide range of agencies. Some agencies would be more willing to voluntarily adopt the proposed new duties than others, leading to inconsistencies and confusion. In addition, the lack of sanction and enforcement powers would make these 'duties' somewhat toothless.

Consultation

7.49 These new duties have been consulted on in Getting it right for every child: Proposals for action. They received significant support, with 90% of respondents giving a clear or qualified yes to the proposals.

Equality, Equity and Fairness

7.50 The duties talk about children and the needs of the children. While there are no direct implications for the issues of equality, equity and fairness, agencies will need to ensure that any actions they take to deliver on these duties are compliant with their duties under equality, information sharing and other relevant legislation.

Enforcement and Sanctions

7.51 Enforcement should be by application to the Sheriff Principal where duties are imposed on an agency by a Hearing. There is also the possibility of the Reporter being allowed to take account of the means of a voluntary agency when deciding whether to proceed. Other options are judicial review for public bodies and contractual negotiations for other agencies.

Monitoring and Review

7.52 There will be central guidance around the principles and objectives of local co-ordination and monitoring frameworks. This should be useful in setting up local frameworks and indicating the principles against which ongoing monitoring and review should be tested. Ongoing monitoring and review of these duties will be the responsibility of the accountable officers of the relevant agencies, and also the relevant local co-ordination and monitoring framework.

Summary and Recommendation

7.53 Options 2 and 3 are those most likely to result in a coherent set of duties on a wide range of agencies, making mainstream services the front line providers of children's services. Changing the legislative framework as proposed in options 2 and 3 is necessary to ensure that agencies are given clarity about their functions (including clarity in terms of working with other agencies), are compelled to deliver certain functions and to act consistently when discharging these functions. Neither option 1 nor option 4 will achieve this. Though options 2 and 3 potentially involve some additional costs on a range of agencies, this should be offset against savings for others and most importantly against the improved outcomes for children.

7.54 Of these two alternatives, option 3 would realise most benefits. This option would create a consistent framework for all agencies involved in delivering positive outcomes for the child. As noted in section 7.44, this is particularly important given the increasing emphasis on providing children's services through non-statutory bodies and sectors.

7.55 Work is ongoing to assess the cost implications of these proposals. A number of mechanisms are in place to help achieve a fuller understanding, including the pathfinder projects, discussions with key stakeholders and the draft Bill consultation itself.

References in the Draft Bill

7.56 Part 1 of the draft Bill contains proposals for these recommendations.

Review

7.57 Getting it right for every child is a long term programme. Review of these duties will therefore take place over a 10 year period, in order to fully assess their impact.

Strengthening the Children's Hearings system

Issue

7.58 There are several issues to be addressed:

• Phase 1 of the review of the Children's Hearings system identified that there is a lack of public confidence in the system.
• The system lacks a mechanism to ensure that decisions made at a Children's Hearing are enforced, and there is a public recognition that this is the case.
• There is a lack of flexibility in terms of the decisions a Children's Hearing can make.
• There is unnecessary bureaucracy in the system.

Objective

7.59 The overall objective is to introduce a coherent package of measures which will strengthen the Children's Hearings system, providing new and increased options. This is with a view to enabling children to receive the help they need when they need it. This package of measures should, over time, help increase the level of public confidence in the system.

7.60 There are a number of ways in which we wish to strengthen the Children's Hearings system. These are:

• Ensuring that action is taken when a child's plan is agreed at a Hearing.
• Providing a mechanism for a Hearing to make a decision when a final dispositive decision cannot be made.
• Introducing procedures to streamline the establishment of grounds for referral where the child is too young, not sufficiently mature or not able to understand the grounds for referral but the parents accept them.
• Providing a mechanism for the Principal Reporter to consider the provision of legal representation for children, where this is necessary, under current criteria to protect
• their rights.
• Giving the Children's Hearings the ability to withhold information provided by the child when its release may place the child's welfare are at risk.

Risk Assessment

7.61 Potential risks arising from these changes are:

• Lack of accountability for agreeing and implementing the child's plan.
• Confusion over the status of any interim measures made available to Hearings.
• Overuse of the legal representation provision could place a strain on the pool of legal representatives able (in terms of specialist skills and availability of time) to take on this role.
• The overuse (or under-use) of the legal representation provision could undermine the informality of the Hearings system and therefore prevent effective discussion with the child or family at a crucial stage where decisions are being made about the child's rights.
• Lack of clarity about what information could be withheld.

Options

7.62 Options to deal with this issue would be to:

(1) Do nothing.

(2) Strengthen the Children's Hearings system by introducing a package of measures in legislation.

(3) Opt for an arrangement which is somewhere between options 1 and 2 - ie, not all or nothing. This could involve progressing proposals on a voluntary basis (with supporting guidance) in relation to the Principal Reporter to ensure the provision of legal representation and/or in relation to the Children's Hearings withholding information when its release may place the child's welfare at risk.

Benefits

7.63 As it is the status quo, there are minimal benefits associated with option 1.

7.64 There are a number of benefits associated with the option 2 - introducing a package of measures in legislation:

• This would strengthen the Children's Hearings system, with more options and flexibility available.
• Enshrining a coherent package of measures in legislation would provide a strong basis for the new and increased options available to the Children's Hearing, meaning that these would have the weight necessary to be applied consistently and ensuring that relevant agencies would be tasked to deliver what is agreed at a Hearing for children.
• The system would be improved from the perspective of a child and the child's family. There would be less unnecessary bureaucracy and more options to get the child the help and protection they need when they need it.
• Some cost savings are likely in certain areas. For instance, it would seem likely that some saving would be generated by a move to considering cases without the need for a hearing.

7.65 Option 3 would lead to some of the benefits of option 2, with the Children's Hearings system somewhat strengthened as a result.

Costs

7.66 With no change, option 1 will not lead to any of the desired benefits sought from strengthening the Children's Hearings system - and the issues in the current system will remain.

7.67 There will be costs associated with implementing option 2. For instance, there will be resource issues for agencies as a result of the requirement to implement an action plan agreed at a Hearing. There may also, particularly in the short term as the new measures bed in, be an increase in the appointment of legal representatives and/or an increase in the volume of cases appealed to the sheriff as a result of the introduction of interim supervision requirements.

7.68 Option 3 will incur some of the costs of option 2, as there will be the same need for adjustment. There will, additionally, be particular costs to the system if some of the measures outlined in section 7.60 are not taken forward in legislation. There will potentially be inconsistencies across regions and across and within agencies. For instance, there may be variance in practice in terms of children in different areas receiving legal representation. Without legislation, such inconsistencies are likely to persist.

Consultation

7.69 The proposals which have led to the package of measures designed to strengthen the Children's Hearings system have been consulted on in Getting it right for every child: Proposals for action. They received significant support, with each proposal receiving a clear or qualified

yes from at least 75% or respondents.

Equality, Equity and Fairness

7.70 While there are no direct implications for the issues of equality, equity and fairness, Children's Hearings will need to ensure that the decisions they make effectively respond to cultural and social differences within different communities, while continuing to act in the best interests of the child. This will also be true for agencies in respect of carrying out the actions which have been agreed at a Hearing based on their legal obligations proposed in the draft Bill and under equality obligations.

Monitoring and Review

7.71 A number of mechanisms are in place to monitor and review the impact of the proposals. As mentioned in the introduction to this section, the pathfinder projects will provide information about how Getting it right will work in practice. Methods to evaluate the programme have been set up, which will be augmented by ongoing research.

Summary and Recommendation

7.72 Strengthening the Children's Hearings system is necessary to give a hearing new decision making options, to reduce bureaucracy and ensure that a Hearing's agreement of an action plan leads to that action plan's implementation. There is significant support for all of these measures.

7.73 Legislating on these proposals is the most appropriate way to strengthen the Children's Hearings system. This option is efficient and fair. Anything done on a more voluntary basis would lead to inconsistencies. Option 2 is therefore the most appropriate option as it would create a coherent package of measures to strengthen the Children's Hearings system by introducing new duties and providing new and increased options.

7.74 Despite the higher costs associated with this option, it is felt that the benefits in terms of efficiencies, consistency and particularly in outcomes for children would be far greater than would be the case for any of the other options.

References in the Draft Bill

7.75 Part 2 of the draft Bill contains provisions to strengthen the Children's Hearings system.

Review

7.76 Getting it right for every child is a long term programme. Review of these proposals will therefore take place over a 10 year period, in order to fully assess their impact.

Summary

7.77 The three recommendations in this Partial RIA fit together to form a coherent framework for children's services and the Children's Hearings system. In isolation, each of the three recommendations would make a positive difference to the system and to outcomes for children. We believe, though, that the recommendations taken in conjunction will create synergies which will have a significant impact, producing a strengthened and streamlined system in which children get the help they need when they need it.