Children’s Rights in Scotland

Background

After the Second World War, the Children Act 1948 placed a duty on local authorities to ‘provide a comprehensive service for the care of children deprived of the benefit of a normal home life’. Local authorities were required to exercise their powers to further the child’s best interest.

The end of the Second World War resulted in the establishment of the United Nations and the proliferation of human rights treaties. In 1989, the UNCRC was adopted, and the UK ratified it in 1991. The UNCRC is a comprehensive children’s rights instrument that covers a range of civil, political, economic, social, cultural rights and humanitarian law. In the Convention, children are both active rights holders, who are entitled to their own rights, and vulnerable human beings in need of special protection.

The Children (Scotland) Act 1995 established the legislative framework for the current child protection systems in Scotland and it was the first Scottish Act underpinned by the general principles of the UNCRC.

The Commissioner for Children and Young People (Scotland) Act 2003 established the role of the Children and Young People’s Commissioner in Scotland (CYPCS) with their primary functions of advocating for children’s rights and investigating whether a service provider has sufficiently regarded the rights and views of particular groups of children.

The Children and Young People (Scotland) Act 2014 further embeds the UNCRC rights in Scots law and places a duty on specified public authorities and Scottish Ministers to report every three years on the steps they have taken to further children’s rights. It also requires certain Scottish Government officials to carry out Children’s Rights and Wellbeing Impact Assessments when they make decisions that affect children and young people in Scotland. The 2014 Act modifies the power of the CYPCS to allow the Commissioner to investigate cases affecting the human rights of an individual child.

The next milestone in Scotland’s children’s rights journey was reached in March 2021, when the Scottish Parliament unanimously passed the UNCRC (Incorporation) (Scotland) Bill that aims to directly incorporate the UNCRC into Scots law as far as possible. The Bill would give children the power to enforce their rights in domestic courts and hold public authorities accountable if their rights are violated. The Bill was ruled to have gone over the legislative powers of the Scottish Parliament. The Bill aims to bring all legislation affecting Scotland in line with the requirements of the UNCRC; however, the Scottish Parliament does not have the powers to amend UK Acts. Since the ruling of the UK Supreme Court that the legislation was outside the competency of Holyrood, the Scottish Government has amended the Bill.

On 7 December MSPs voted unanimously to pass the UNCRC (Incorporation) (Scotland) Bill. Scotland has become the first nation of the UK to vote to incorporate the United Nations Convention on the Rights of the Child into domestic law, with implications for all public bodies including Children’s Hearings Scotland.  It will become law following Royal Assent in about 4 weeks time.

The UNCRC Bill grants all people under the age of 18 a comprehensive set of rights – including rights to health, education, family life, play and recreation, and protection from abuse and harm – and sets a legal requirement for public authorities to comply with them.

Where to Learn More

There is a Children’s Rights in Scotland group on the Knowledge Hub, where staff from local government, the public and third sectors can share best practice and discuss new developments.

What are Children’s Rights? Children 1st

Improvement Service UNCRC Implementation Project: Putting Children’s Rights at the Heart of Local Government.

Getting Ready for UNCRC Incorporation Framework: A Practical Resource for Public Bodies in Scotland to prepare for UNCRC Incorporation

Understanding Children’s Human Rights: A Guide for Public Services in Scotland. Improvement Service, 14 March 2023

Things the Incorporation Framework requires us to do

Writing Child Friendly Documents

How to Write Child Friendly Documents – published by Save the Children

State of Children’s Rights in Scotland: published by Together Scotland; 2022

Creating Child Friendly Versions of Written Documents: Guide.  Published by The European Commission 2021.