Progressing the human rights of children in Scotland: 2018 report

Introduction

This Report has been compiled in accordance with the duties on Scottish Ministers under Part 1, section 1(4) of the Children and Young People (Scotland) Act 2014 (CYP Act). These duties require Ministers to report to the Scottish Parliament every 3 years on the steps they have taken in that period to secure better or further effect in Scotland of the United Nations Convention on the Rights of the Child (UNCRC) requirements and to promote public awareness and understanding of the rights of the child. Ministers must also set out their plans until the end of the next 3 year period. The Scottish Government’s responsibilities are restricted to devolved matters and Scottish Ministers’ duties under section 1 of the CYP Act apply in devolved areas only.

This reporting requirement is separated into a Report (this Report) on progress made in relation to children’s rights from June 2015, when the duties first commenced, until June 2018. A separate Action Plan, published alongside this Report, sets out the Scottish Ministers’ planned activity from June 2018 until June 2021 to further children’s rights.

Whilst this Report is focused on fulfilling Ministers’ duties under section 1(4) of the CYP Act, it also covers, where relevant, activity relating to the rights of children outwith the 3 year reporting period. Where appropriate, the Report also includes steps taken with regard to young people which may extend beyond the age of 18.

i Human Rights in Scotland

The requirements within Part 1 of the CYP Act sit within the wider context of Scottish Ministers’ obligations to respect, protect and fulfil human rights. Under the constitutional settlement, which has applied since 1999, human rights are, for the most part, devolved to the Scottish Parliament. The Scotland Act 1998 requires that all Scottish Parliament legislation and all Scottish Government decisions and actions must be compatible with rights set out in the Human Rights Act 1998 (HRA) and derived from the European Convention on Human Rights (ECHR). The HRA also makes it unlawful for public authorities in Scotland to act incompatibly with the Convention rights. In addition to this, the Scottish Ministerial Code places an overarching duty on all Scottish Ministers “to comply with the law, including international law and treaty obligations.”

ii Children’s Rights in Scotland

Children and young people are human rights holders in their own right. The UNCRC sets out the civil, political, economic, social and cultural rights to which all children are entitled, regardless of their circumstances. The UK ratified the Convention in 1991. Arrangements for taking forward the UNCRC and the children’s rights agenda within the UK (the signatory state party) reflect the separate constitutional responsibilities of constituent administrations. The Scottish Ministers, therefore, have responsibilities for the progression of children’s rights with reference to devolved public services and legislation, including in relation to education, health, childcare, housing etc.

The Scottish Ministers take their responsibilities to progress children’s rights in terms of the UNCRC very seriously. Alongside the duties on Ministers in relation to children’s rights under Part 1 of the CYP Act, the UNCRC also underpins key Scottish Government initiatives, for example, the Getting it right for every child (GIRFEC) approach and the assessment of wellbeing, as set out in the CYP Act, which establishes the need for each child to be: safe, healthy, achieving, nurtured, active, respected, responsible and included. The principles of the UNCRC are also reflected in relevant Scottish Government policies and strategies including, for example, its approach to child and adolescent mental health, education, youth justice and measures to tackle child poverty.

The Scottish Government’s commitment to advancing the rights of children and young people, also underpins proposals set out in the annual Programme for Government (PfG), which is published in the autumn of each year. For example, the PfG17-18, A Nation with Ambition, published on 5 September 2017, included commitments to bring forward legislation to raise the age of criminal responsibility in Scotland from 8 to 12 and to support the proposals in the member’s Bill to introduce a legislative ban on the physical punishment of children. The PfG 2018-19, Delivering for Today, Investing for Tomorrow, published on 4 September 2018, included the commitment to incorporate the principles of the UNCRC into domestic law. This followed a commitment made in the previous PfG to undertake a comprehensive audit on the most effective and practical way to further embed the principles of the UNCRC into policy and legislation.

Children’s rights, within the broader context of human rights, are also at the heart of the Scottish Government’s National Performance Framework (NPF). The refreshed NPF, which was published on 11 June 2018, includes the following outcomes: “We respect, protect and fulfil human rights and live free from discrimination” and, in relation to the rights of the child: “We grow up loved, safe and respected so that we realise our full potential”.^[1]

iii UN Reporting Process and Concluding Observations

The Scottish Ministers work with the UK Government in reporting to the UN Committee on the Rights of the Child on compliance with the UNCRC, with reference to devolved matters in Scotland. The Scottish Government has also presented on these matters as part of the UK delegations in Geneva – a key component of the UN treaty monitoring process.

Following the UN Committee’s most recent examination of the UK State Party in May 2016, the Scottish Ministers welcomed the Committee’s Concluding Observations, which were published in final form in July 2016.^[2] Initial responses to the UN’s specific recommendations, as these relate to Scotland, were reflected in the Scottish Government’s draft Policy Position paper, which was shared with key stakeholders in December 2016, and discussed at a children’s rights event in January 2017. The 2018 Report (this Report) and separate Action Plan also set out progress made to date in taking forward the UN Concluding Observations and planned activity until 2021, as appropriate (Annex B of this Report refers).

In line with Part 1 of the CYP Act, the primary intention of these documents is to reflect the Scottish Ministers’ progress and future plans in securing better or further effect in Scotland of the UNCRC. While the Scottish Government is keen not to lose that clear focus, where there is overlap between the UNCRC and recommendations made by UN Committees under other international treaties, the relevant issues are cross referenced.

The Universal Periodic Review (UPR) is a UN peer review mechanism to assess the overall human rights situation in each UN Member State. The Scottish Government’s response to the most recent Universal Periodic Review of the UK was published in December 2017.

iv Independent Monitoring of Children’s Rights in Scotland

National Human Rights Institutions, the Commissioner for Children and Young People in Scotland and other relevant Non-Government Organisations (NGOs) provide independent scrutiny and challenge to Scottish Ministers on their performance in respecting, protecting and fulfilling human rights, including the rights of the child, in Scotland.

Human Rights Institutions in Scotland

The Scottish Human Rights Commission (SHRC) was established by the Scottish Commission for Human Rights Act 2006. As an ‘A’ status National Human Rights Institution (NHRI), it has a general duty to promote and protect human rights and encourage best practice in relation to human rights in Scotland. The SHRC can fulfil this remit by providing information, guidance and education; by conducting inquiries; by monitoring law, policy and practice; and by intervening in civil court proceedings.

The Equality and Human Rights Commission (EHRC) was established by the Equality Act 2006. It is responsible for promoting equality and diversity, enforcing laws and promoting mutual respect, including good relations. The EHRC’s remit extends across Great Britain. EHRC is also an ‘A’ status NHRI and shares its mandate to promote and protect human rights in Scotland with the SHRC.

In Scotland EHRC covers human rights issues arising from matters reserved to the Westminster Parliament and the SHRC covers issues arising from devolved matters, unless it gives consent for the EHRC to handle them. In practice, the two Commissions work in partnership on a number of human rights issues.

Commissioner for Children and Young People in Scotland

The Commissioner for Children and Young People (Scotland) Act 2003 (the 2003 Act) established the role of the Commissioner for Children and Young People in Scotland. The principal function of the role is to promote and safeguard the rights of children and young people, including raising awareness about children’s rights. The 2003 Act makes clear that the Commissioner is not to be regarded as a servant or agent of the Crown and is not subject to direction or control of any Member of the Scottish Parliament, member of the Scottish Government or the Scottish Parliamentary Corporate Body (SPCB).

The SPCB sets the terms of the Commissioner’s appointment, including the allocation of resources. The Scottish Ministers respect the independent role of the Scottish Parliament in ensuring the necessary human and financial resources for the Commissioner’s office.

The 2003 Act provides for the Commissioner to undertake investigations in respect of how service providers have regard to the rights, interests and views of groups of children and young people in making decisions or taking actions that affect them. Provisions in Part 2 of the CYP Act, which were commenced on 7 August 2017, build on this by empowering the Commissioner to conduct such investigations on behalf of individual children.

Civil Society

Whilst the Commissioner is funded directly by the Scottish Parliament, the Scottish Government provides grant funding to a wide range of third sector organisations working to ensure that the rights of children and young people are respected, protected, enabled and fulfilled and to raise awareness of children’s rights.

Together Scotland is an alliance of Scottish children’s charities that works to improve the awareness, understanding and implementation of the Convention. The Scottish Government provides core funding to Together Scotland to support the organisation in monitoring and reporting on the progress made in relation to children’s rights. Together Scotland also produces its annual State of Children’s Rights in Scotland report, which provides a key non-government perspective on how children and young people are experiencing their rights across Scotland.

Scotland’s Children’s Rights Implementation Monitoring Group (SCRIMG) involving the former Children’s Commissioner, Together Scotland and the Scottish Government’s Rights and Participation Team met regularly until November 2016 to discuss the Scottish Government’s performance in taking forward children’s rights. Moving forward a Children’s Rights Advisory Group will oversee the Action Plan and provide a leadership space for discussing ideas and issues around progressing children’s rights in Scotland.

v Challenging Possible Infringement of Rights

In supporting the implementation of the UNCRC, it is important that individual children and young people, and their families, are able to raise concerns about possible circumstances where they consider that their rights are not being met appropriately. A number of existing mechanisms allow children and young people to challenge possible breaches of their rights including published complaints procedures and, where relevant, through the courts or tribunals. Public bodies in Scotland, including health boards and local authorities, must all have relevant mechanisms in place for people to make a complaint. Where concerns remain following the completion of these complaints procedures, recourse can be made to the Scottish Public Services Ombudsman (SPSO), who investigates complaints of maladministration or service failure on the part of Scottish public authorities.^[3] In addition to this, the Children and Young People’s Commissioner in Scotland has powers to undertake investigations in respect of whether service providers have regard to the rights, interests and views of groups of children and also on behalf of individual children.^[4]

Optional Protocol 3

The Optional Protocol 3 (OP3) to the UNCRC, which took effect from April 2014, provides for a mechanism through which a child, following the exhaustion of all relevant local complaints and appeals procedures, can make a complaint about the violation of his or her rights directly to the UN Committee on the Rights of the Child. The OP3 has not, to date, been signed and ratified by the UK Government. The Scottish Government has welcomed the OP3 in principle and confirmed that the Scottish Ministers would be minded to offer measured support for its signature and ratification in the future. However, before doing so, Ministers would wish to better understand how the UN Committee intends to apply the new mechanism in practice.

vi Layout of Report

This Report follows the established format for reporting to the UN Committee on the Rights of the Child, with individual chapters reflecting the cluster groupings of the articles of the UNCRC as follows:

• General Measures of Implementation.
• General Principles.
• Civil Rights and Freedoms.
• Violence Against Children.
• Family Environment and Alternative Care.
• Disability, Basic Health and Welfare.
• Education, Leisure and Cultural Activities.
• Special Protections.

Each chapter includes a summary of progress made in furthering children’s rights across Scottish Government portfolios from June 2015 until June 2018 (the reporting period). Whilst the report primarily focuses on actions taken during the reporting period, many of these initiatives will carry forward into the next 3 year period. Where relevant, therefore, this Report includes information on ongoing commitments and activities. The Annex to the separate Action Plan includes information on monitoring and reporting arrangements for these specific policy initiatives. It is important, therefore, that the contents of the Report and Action Plan are considered together as joint and complementary documents, recording both previous and ongoing activity relevant to securing better or further effect in Scotland of the UNCRC.

vii Engagement With Children and Young People

Section 1(5) of the CYP Act 2014 requires Ministers to take such steps as they consider appropriate to obtain the views of children and young people on their plans for taking forward children’s rights. The Scottish Government has engaged directly with children and young people in developing the Action Plan 2018-21.

During December 2017, with the assistance of the Scottish Youth Parliament (SYP) and Together Scotland, the Minister for Children and Young People met with groups of young people from a range of backgrounds, and the organisations that represent them, in Fife and Glasgow, as follows:

• Fife Gingerbread’s Teen Parent Group;
• Youth 2 (LGBT Group);
• Levenmouth Academy, Fife;
• The Coalition for Racial Equality and Rights;
• Centre for Youth and Criminal Justice;
• Clan Childlaw; and
• Who Cares? Scotland.

Each session was facilitated by a Member of the Scottish Youth Parliament (MSYP).

In March 2018, the Scottish Cabinet met with 14 children and young people aged 9 to 25, with representation from specific groups of children, including care experienced children. The issues raised reflected those of a wider population of children and young people. Agreed actions from this second annual meeting between the Scottish Cabinet and children and young people have been published on the Scottish Government website.

In April 2018, at the request of the Scottish Government, SYP organised a Rights Review Event, which was attended by 27 MSYPs, 3 Cabinet Secretaries, 5 Scottish Ministers and around 30 Scottish Government officials. MSYPs presented the views of their constituents (in total 4,190 consulted) on the issues that are important to them. The views of children and young people from specific groups were also presented including those of disabled and looked after children and young people and young refugees. In addition, the views of young people from Christian and other faith groups and rural communities were represented.

In September 2018, the Children’s Parliament organised 5 workshops for children, focusing on awareness, understanding and experience of children’s rights in Scotland. The events, which took place across five locations, Aberdeen City, Argyll & Bute, City of Edinburgh, Glasgow City and Perth & Kinross, provided an opportunity for 157 children, aged 6-12 years, to share their views and ideas in relation to the promotion of children’s rights.

In June 2018, the Scottish Government published a consultation paper, Progressing Children’s Rights in Scotland: An Action Plan 2018-21, which sought views on the proposed content of the Scottish Government’s Action Plan for taking forward children’s rights from 2018 until 2021. Alongside the formal consultation, an ‘easy read’ online questionnaire was shared widely. A total of 115 responses were received to the formal consultation and over 400 questionnaires were completed online.

The Scottish Government is grateful to everyone, particularly children and young people, for their contributions and responses to these events and consultations. In addition, the views of children and young people reported in a number of recent publications have also informed the development of policies and priorities within the Report and Action Plan. This includes:

• Lead the Way, the Scottish Youth Parliament Manifesto 2016-2021, based on 72,744 responses from young people.
• I Witness: The Concluding Observations (2018), Article 12 in Scotland’s report, presenting the views of children and young people on how the Scottish Government should take forward the UN Committee on the Rights of the Child’s Concluding Observations.
• What Kind of Scotland? children influencing Scotland’s future (2017), a report compiled by the Children’s Parliament on the kind of Scotland children want to live in.

A number of quotes from children and young are included within this report. These were sourced from the engagement events and the documents referred to above.

Responsibility for taking forward children’s rights is mainstreamed across all portfolios of the Scottish Government. The above engagement with children and young people is, therefore, in addition to that undertaken by officials in the development of individual policies and legislation, including as part of the Child Rights and Wellbeing Impact Assessment (CRWIA) process. (The CRWIA is discussed further at section 1.6).