9 January 2023
Shirley Anne Somerville
Cabinet Secretary for Education and Skills
Claire Haughey, Minister for Children
Scottish Government
CC
Iona Colvin, CSWO, Scottish Government
Elliot Jackson, CEO, Children’s Hearings Scotland
Jackie Irvine, CEO, Care Inspectorate
Lorraine Gray, CEO, SSSC
Joan Tranent, Chair, Social Work Scotland Standing Committee on Children and Families
Val de Souza, Chair of The Bairnshoos Steering Group
Mary Glasgow, CEO, Children 1st
Dear Shirley Anne Somerville
EBSWA is an alliance of social work practitioners, managers and academics. We are writing to ask you to explain how your department understands the interaction between the UNCRC principles of the 1995 and 2021 Children (Scotland) and other legislation and the GRR rights which are intended to become law. That is, we are concerned to know whether you intend to produce guidance on the likely conflict between UNCRC based children’s rights and rights conferred on adults and older children by the GRR Bill.
We refer particularly to the Children Act principles that 1) any decisions must be made in the best interests of the child 2) children have a right to express and have their views taken into account including in courts and tribunals and 3) children must be protected from harm. In relation to the rights of adults and older children which are due to be conferred on any person in Scotland over the age of 16 to be awarded a Gender Recognition Certificate we specifically refer to the right conferred on any man living in Scotland or born in Scotland to be legally recognised as a woman and therefore to a female birth certificate and new identity. Our concern is based on the knowledge that it is men who pose the greatest risk of sexual abuse and harm to children. It is now a matter of record the majority of men in the male prison population who are currently claiming to be women are sex offenders (KPSS [1]). You will of course know that one such prisoner is a very disturbed and violent paedophile currently accommodated in the women’s prison estate. We are concerned about the implications for practice in child protection, care and criminal justice systems.
As you will know, the Government argued for and won a ruling in the Inner Court of Session recently that, under existing legislation, a GRC requires that a man be regarded as female in all except very limited purposes. This may be subject to challenge in a higher court but is the current state of the law and one which your Government supports.
On the recommendation of the Government, a majority of MSPs defeated amendments to exclude sex offenders and those accused of sexual offences from the automatic rights accorded by the GRR Bill. It must therefore be assumed that the intention of the Scottish Government and Parliament is that convicted sex offenders and those under investigations and/or accused of sexual offences against children must be considered as female by the police, courts and children’s services – and indeed by children and their parents - if they say that they identify as female
Our concerns refer to three areas where the GRR legislation is likely to pose considerable risk and harm to children in need of protection. These are: during investigations of child abuse; during proceedings in the civil and criminal courts; in the Children's hearing system and where children are “looked after” by local authorities.
We ask:
· How will the principle of the primacy of the child’s best interests in all decisions made about children be respected?
· Will children's right to have their views heard in judicial and administrative proceedings be restricted by the provisions of the GRR Act such that they will be required to use female pronouns for men who have sexually abused them? Will they and others in the courts be required to say “her penis”, “her mouth” etc?
· Will children who are to be supported to give their evidence and to receive therapy through the Government supported Bairnshoos model be told that they must refer to their abusers as women and as “she” and “her” if that abuser has elected to identify as a woman?
· Will children and others who are involved in investigation and/or in giving evidence in court be required to refer to male abusers including their fathers and stepfathers as "she" and "her" if that person identifies themselves as a woman?
· Will children, panel members, family members and social workers be required to refer to perpetrators of abuse as "she" at Children's Hearings? What guidance will panel members be given about this and related matters?
· Will the child's mother, siblings and other relatives be required to refer to the abuser or suspected abuser as "she" and "her" in their contact with professionals and in hearings and court?
· Will social workers and police officers and other professionals be required to insist to the child and family that their abuser is actually a woman and must be referred to as a woman even where the perpetrator is a male relative or foster carer who has not until that point identified as anything but a man?
· Will defence and the prosecution and sheriffs be advised that the rights of the accused to be recognised as a woman are more important than the best interests of the child?
As social workers in practice and in academia it seems obvious to us that requiring a child to refer to their father or brother or any other man as "she" when they are talking about sexual abuse they may have experienced is not in a child's best interests. It will be confusing and contrary to the child’s own knowledge and “lived experience”. It is surely not in the child’s interests or the broader interests of justice for children to be confused and distressed by being required to refer to a man as “she” and being corrected for forgetting to do so? A child who is required to correct his or her speech during investigative interviews and/or in giving evidence in a court will not give good or credible evidence and will suffer considerable distress.
As professionals in child protection we are only too aware of the power imbalance between adults and children and of the experiences of children who have been forced to deny or retract allegations of abuse by adults in positions of power.
We hope that you will be able to reassure us and fellow professionals that guidance on the provision of justice, care and recovery services for children will continue to be based on children’s UNCRC rights, particularly the principle of the child's best interests and not on the GRR right of men and older boys to insist on being accepted as female? We seek assurances that the best interests of children will be the primary consideration in developing policy, practice and guidance on the interaction between the GRR and children’s inalienable UNCRC rights.
Yours sincerely
Maggie Mellon
M.Sc, CQSW, Dip. Child Protection
On behalf of EBSWA
[1] https://kpssinfo.org/males-in-womens-prisons-convictions-sentences/