Draft guidance for children's rights and services planning in Scotland: consultation analysis

Section One: Part One (section two) - Children's Rights

Overview

Part One (section two) of the Children and Young People (Scotland) Act 2014 places a duty on a range of public bodies (including all local authorities and its relevant health boards) to report on the steps they have taken to better secure, or give further effect to, the requirements under Part One of the UNCRC. The guidance is non-statutory and aimed at those with responsibilities within public authorities for implementing and delivering on the provisions of the Act.

Six questions were asked about Part One (section two). The questions examined key concepts within the guidance including: the amount of information regarding UNCRC and child rights-based approaches (1); the suggested framework for reporting (2); the clarity of key terms (3); the relationship between rights and wellbeing (4); the description of links between Part One (section two) and Part Three (5); and any other comments (6). Three of the questions (2, 3 and 4) also invited suggestions for further improvement or changes.

On the whole, the guidance for Part One (section two) was received positively. Many respondents commented that it was clear. The response to question three regarding the clarity and understanding of key terms used in the guidance was less positive with a number of concerns being raised. Many of the respondents also provided suggestions for improvements and changes to enhance the guidance. Each question will now be discussed in turn.

Question One

Is there sufficient information on the UN Convention on the Rights of the Children and child rights-based approaches to support an understanding of the Part One (section 2) duties under the 2014 Act?

Forty-nine respondents answered this question, with 13 providing additional comments. Of the 49 responses to the question, 40 agreed that yes there was sufficient information in the guidance regarding the UNCRC and child rights-based approaches to support an understanding of the duties expected. Two respondents agreed to an extent, whist 7 respondents stated no, there was not sufficient information to understand the duties expected. This information, alongside respondent category, is detailed below in the table below.

Table 2: Question One response breakdown

	Yes	No	To an extent [2]	Not answered	Comments
Academic	0	1	0	0	0
Health Board	6	0	1	0	2
Individual	3	0	0	0	0
Local Government	12	0	0	0	3
Local Partnership	4	1	0	0	1
Public Body	8	0	0	4	3
Representative Body	1	1	1	1	2
Third Sector	6	4	0	4	2
	40	7	2
Total	49			9	13

As can be seen in table two: health boards, public bodies, local government, and local partnerships were in agreement that there was sufficient information in the guidance. Representative bodies and the third sector organisations were more varied in their response.

In analysing responses to this question ^[3] , many of the respondents felt that there was sufficient information in the guidance and that it was detailed enough to support duty holders in "developing their understanding and responsibilities" (Youthlink Scotland) for the UNCRC (9 mentions). Police Scotland also felt that there was "a good balance of information and interpretation provided".

Although the response was positive, four comments stated concerns regarding the content of the guidance. The Law Society of Scotland felt that the guidance represented a "diluted version of what is required [by duty holders] under the UNCRC", and went on to state that the standards of the UNCRC should represent the starting point. A point which was replicated across a number of such comments. Youthlink Scotland furthered this point by asserting that there would be:

"a danger to continue to build knowledge based on inadequate article summaries […] For the purpose of public body reporting on the furthering of UNCRC this must be based on understanding of the full article". (Youthlink Scotland)

This was a recurring theme that emerged across the consultation.

Further comments felt that the guidance was:

• too long (3 mentions).
• inconsistent in its use of phrases across the guidance and legislation (1 mention).
• neglected specific rights (1 mention).

An executive summary was also recommended by a number of commenters to digest the considerable amount of information and interpretation provided (4 mentions). This comment, in particular, came from organisations that would be considered 'reporters' under the legislation.

Question Two

Is the suggested framework for reporting on children's rights helpful? Can you suggest other information or details that would be useful?

Forty-eight respondents answered this second question, with 38 providing additional comments. Thirty-six of the comments offered suggestions and further insights into the framework put forward by the guidance.

There was a strong agreement that the suggested framework for reporting children's rights was helpful (44 respondents). Only four respondents believed that it was not helpful. This information is detailed below in Table 3 ^[4] .

Table 3: Question Two response breakdown

	Yes	No	Not answered	Comments
Academic	1	0	0	1
Health Board	7	0	0	5
Individual	3	0	0	1
Local Government	11	1	0	10
Local Partnership	4	1	0	5
Public Body	8	0	4	6
Representative Body	1	0	3	1
Third Sector	9	2	3	9
	44	4
Total	48		10	38

The majority of comments found the framework to be clear and helpful (15 mentions) in providing guidance on how to compile child rights reports. In particular the following aspects of the framework were seen to be helpful and aid in reporting:

• the reflective statements (9 mentions; pages 21-32),
• the clusters framework (9 mentions; pages 21-32), and
• the content of Appendix 3 on the links between SHANARRI wellbeing indicators and the articles of the UNCRC (7 mentions; pages 51-52).

Two commenters remarked that the reflective statements did not place a large enough emphasis on evidence ( LGBT Youth Scotland) and it was suggested that they should be repositioned as challenge questions (Youthlink Scotland). Four commenters welcomed the freedom to publish reports in any appropriate manner allowing for accessibility and flexibility.

Connected to this a number of commenters were concerned about gathering and developing accurate baseline data and or minimum standards (9 mentions) and how this might affect national comparisons (2 mentions) given the flexibility around reporting. North Lanarkshire Council felt it would be a "missed opportunity" to not explicitly mention how the local reports developed would feed in to national reporting on children's rights.

Of the 4 respondents that felt the framework was not helpful, there was no singular reason provided, other than: guidance is non-specific (2 mentions) and lacks clarity around who should provide reports (2 mentions).

Four commenters considered the guidance was insufficient in terms of different population groups and felt that there was a lack of reference to the rights of particular children ^[5] and that the rights reporting framework put forward might not capture the nuances of such children's rights. Child Poverty Action Group ( CPAG) added that there is: "no mention on the list [paragraph 81, pages 22-23] of the need to consider the extent to which rights have been realised to a greater or lesser extent for different population groups". CPAG went on to suggest that to ensure all children's rights are reported on: "each cluster should include a statement such as, 'We have frameworks in place to measure the extent to which our protection and promotion of rights is effective for all children'".

Additional comments were also made regarding the prominence, or perceived lack of, of the UNCRC (5 mentions), adding to other comments throughout the consultation. Concerns that child rights reports would be simply "appended to plans" (Youthlink Scotland) or appear secondary to other reporting were raised. Connected to this The National Deaf Children's Society felt that although the cluster framework (pages 21-32) and the table linking SHANARRI wellbeing indicators and the articles of the UNCRC (Appendix 3; pages 51-52) were useful, a number of the UNCRC articles were missing. They went on to state that as both are non-exhaustive there is a real risk that some of the key rights will be overlooked.

Other comments and suggestions included:

• The role of parents and corporate parents should be further detailed, particularly in terms of producing reports (4 mentions).
• The wider connections of the guidance with other policy and legislation (3 mentions). A point that recurs throughout the consultation.
• The suggestion for a mechanism to share good practice would be beneficial (2 mentions).
• The guidance should include the new cluster area added by the UNCRC recently (Violence Against Children) in the cluster framework provided (pages 21-32; 2 mentions).
• The role of youth workers in facilitating baseline data collection and consultations with children and young people should be widely acknowledged (1 mention).
• In the table, linking the SHANARRI wellbeing indicators with the UNCRC articles (Appendix 3; pages 51-52), it should be reworked to demonstrate that children's rights are seen as the starting point and not wellbeing (1 mention).

Of note, two commenters also suggested that due to the lack of clarity in the guidance regarding who should compile reports, tension could be caused between local and national agencies.

Question Three

Does the guidance make clear what the terms "secure better" and "give further effect" mean in the context of Part One (section two) of the 2014 Act? What changes to the guidance would you suggest?

There were 47 respondents to the third question, with 39 providing additional comments. There was considerable agreement across respondents that the terms "secure better" and "give further effect" were not understood or made clear in the guidance (30 respondents). A breakdown of the responses is detailed below in Table 4.

Out of those who responded to the question: health boards and public body respondents were split, equally and relatively equally, respectively. Whereas a significant proportion of local government and third sector organisations did not feel the terms were clear (though five from the third sector did not answer the question).

Table 4: Question 3 response breakdown

	Yes	No	To an extent [6]	Not answered	Comments
Academic	1	0	0	0	0
Health Board	3	3	1	0	6
Individual	3	0	0	0	1
Local Government	2	10	0	0	11
Local Partnership	2	3	0	0	5
Public Body	3	5	1	3	8
Representative Body	0	1	0	3	1
Third Sector	1	8	0	5	7
	15	30	2
Total	47			11	39

Many of the comments reflected data presented above:

• Difficult to understand/vague (7 mentions).
• More clarity needed (6 mentions).
• Open to interpretation (6 mentions).
• Stronger, explicit, definition required (9 mentions).

Examples were seen as a way to better aid understanding (6 mentions). Four commenters suggested including the terms in the 'interpretation of frequently used terms' section (page 4) to further enhance clarity.

Three commenters suggested their own interpretations of the terms:

• "'Securing better' could be taken to mean a focus on improvement of current practice, with 'giving further effect' could mean extending the remit of plans to cover new areas of practice, but a wide range of other interpretations are possible." (Children 1st and Barnardo's Scotland)
• "Could interpret the meaning to be 'progress' and 'improvement'" (Youthlink Scotland)
• "'Securing better' could be taken to mean a focus on improvement of current practice, with 'giving further effect' could mean extending the remit of plans to cover new areas of practice, but a wide range of other interpretations are possible" (Healthcare Improvement Scotland).

Three commenters explicitly mentioned that although they found the terms 'secure better' and 'give further effect' to be clear and understandable they may need to be simplified for a lay audience or those not familiar with policy words. Another commenter felt the terms were imprecise, but that meaning would emerge by consensus over a period of cycles. Whereas another commenter suggested using more common phrases to aid understanding.

Additionally, four commenters mentioned that it would be useful to connect these terms to baseline measures, but one of the commenters stated that this should only occur after stronger definitions are put in place. One respondent felt the terms were subjective and further detail was required to make the statements objective and measurable.

Question Four

Is the relationship between 'rights' and 'wellbeing' clear? What changes to the guidance do you suggest?

The fourth question regarding Part One (section two) of the guidance was answered by 49 respondents. Of those, 37 responded yes, they felt that the relationship between 'rights' and 'wellbeing' was clear. This included all local government and the majority of the health board respondents. The third sector respondents were split between yes and no, with a proportion also falling in to the 'to an extent' category. Two of the representative body respondents stated that they disagreed with the question in its entirety. This information is illustrated below in Table 5.

Table 5: Question 4 response breakdown

	Yes	No	To an extent [7]	Disagree	Not answered	Comments
Academic	0	1	0	0	0	1
Healtd Board	6	1	1	0	0	6
Individual	3	0	0	0	0	1
Local Government	12	0	0	0	0	10
Local Partnership	4	1	0	0	0	5
Public Body	7	1	0	0	4	7
Representative Body	1	0	0	2	1	2
Third Sector	4	3	3	0	4	8
	37	6	4	2
Total	49				9	40

Many of the commenters considered the distinction between 'rights' and 'wellbeing' to be well explained (2 mentions), with clear links (6 mentions). Perth and Kinross Council added: "wellbeing is becoming embedded in practice and will support understanding of the arguably more complicated rights agenda".

A number of commenters also found Appendix 3 (pages 51-52) to be very helpful in matching the UNCRC articles to the SHANARRI wellbeing indicators (15 mentions). Two commenters from the third sector did express concern regarding Appendix 3 suggesting that not all who refer to it will appreciate that it is a non-exhaustive list of the UNCRC articles. Incidentally, one commenter (a reporter under the legislation) explicitly stated how useful the appendix will be as a checklist for developing future child rights reports.

Two respondents explicitly disagreed with the premise of linking 'rights' and 'wellbeing' in it is entirety (The Law Society of Scotland and the Faculty of Advocates). The Law Society of Scotland were concerned with the term 'wellbeing' and the terms 'welfare' and 'best interests' being aligned. This is furthered by the Faculty of Advocates who felt the guidance confuses and interchanges the two very different concepts of 'wellbeing' and 'welfare', and reiterates that the point of the legislation is to: "direct attention to the requirements of the UNCRC".

Following on from this, four commenters felt that the guidance needed to be explicitly clear that 'rights' and 'wellbeing' are not the same thing. The Children and Young People's Commissioner summarises these concerns:

"Rights and 'wellbeing' are both important, but they are not synonymous and are often in competition with each other. Whilst both are concerned with seeking improvement in children and young people's lives, they have different rationales and purposes. Child wellbeing could be said to be more aspirational - and possibly

more ambitious - and include ideas such as love and happiness, whereas children's rights focuses on minimum standards to which children and young people are entitled to and, importantly, that States (as the duty bearers and contracting party to the UNCRC) have obligations to provide (and can be held to account when they fail to do so). Importantly, the CRC is based on the recognition that children are holders of rights." (Children and Young People's Commissioner)

Supporting this argument, the National Deaf Children's Society states: "there is a risk the guidance leads to an assumption that the SHANARRI wellbeing indicators will successfully reflect the application of children's rights under the UNCRC". This was echoed by Children in Scotland. Two health board respondents also highlighted the potential situation where a child's or young person's rights and their wellbeing could be in conflict. Both called for the guidance to consider such circumstances.

Numerous commenters provided suggestions to better improve the relationship between 'rights' and 'wellbeing', many of which have already been outlined. Other practical suggestions included:

• Providing real world, worked examples (3 mentions).
• Training on the use of the CRIWA tool (pages 14-18; 2 mentions).
• Adding in particular reference tools that have been used previously ( e.g. Education Scotland and GIRFEC tools) (2 mentions).
• Embed the SHANARRI wellbeing indicators, the UNCRC, and the Curriculum for Excellence to further connect the guidance (2 mentions).

Question Five

Is the description of the links between the duties under Part One (section two) and Part Three of the guidance clear and useful?

There were 45 responses to this question, details of which are shown in Table 6 below. Of these responses, forty-three considered the link to be clear and useful. Only one respondent from a public body did not feel the link was clear, unfortunately there was no comment from this respondent to enable further exploration. Thirteen respondents provided additional comments and thirteen did not answer the question.

Table 6: Question Five response breakdown

	Yes	No	To an extent [8]	Not answered	Comments
Academic	1	0	0	0	0
Health Board	7	0	0	0	3
Individual	3	0	0	0	0
Local Government	12	0	0	0	4
Local Partnership	5	0	0	0	1
Public Body	6	1	0	5	3
Representative Body	1	0	0	3	0
Third Sector	8	0	1	5	2
	43	1	1
Total	45			13	13

A significant proportion of respondents considered the description and the links connecting the two aspects of legislation were clear and useful (8 mentions), well-established (1 mention) and welcome (1 mention). NHS Lanarkshire did, however, add that it required "reading frequently" to fully understand, but that the examples provided were helpful. Fife Community Planning Partnership, felt that the guidance would benefit from having these links strengthened further.

One commenter (a reporter under the legislation) enjoyed the flexibility around aligning Part One and Part Three duties of reporting. Conversely, another commenter (also a reporter) felt that although reporting together would be useful, Part One was broader and did not want it to be limited by the alignment. Police Scotland also raised concerns that rights reporting must go further than simply what is contained in the children's services plans.

Children in Scotland commended Part One of the guidance in "maintaining that children and young people should be consistently involved in decisions that affect them" but in Part Three they felt that "the guidance on how they should do this [consult children and young people] is far less evident". They felt that this needed to be consistent and promoted across both aspects of the guidance. This theme connects with a number of other comments from across the consultation about the capacity and guidance surrounding involving children and young people in developing rights reports and service planning.

Question Six

What other comments do you have on the Part One (section two) guidance? Please cite specific parts of the guidance if relevant?

Thirty-eight, out of 58, respondents provided additional comments on Part One (section two) of the guidance. Comments covered a range of topics, though fell under the following broad headings: training and professional development, participation of children and young people, rights, and working with others. These will now be explored.

Training and Professional Development

A handful of comments mentioned aspects of the guidance regarding training and professional developments.

• Two comments welcomed the use of the common core for training and development (Youthlink Scotland and NHS Lanarkshire).
• One respondent (not considered a reporter) felt that training should be made available to all organisations and individuals not just those directly involved in rights reporting.
• The Care Inspectorate and Youthlink Scotland both directed attention to additional training materials and opportunities to assist in engaging children and young people in rights ( e.g. UNICEF Rights Respecting in School).

Participation of Children and Young People

A few comments arose around the participation and engagement of children and young people; a theme which is seen across the consultation.

• One commenter (a reporter) felt that there was a need to produce an accessible version of this guidance explaining the duty and purpose of child rights reports for children, young people and their families to assist in their engagement in the process.
• Related to this, Children's Hearings Scotland queried who would be responsible for developing such further information and warned over potential duplication or neglect.
• The National Deaf Children's Society suggested that explicit reference to third sector organisation involvement should be made as a means of ensuring that all children's voices are heard, stating that: "these organisations are best placed to provide information and support on how best to consult with these groups in a meaningful way".
• This also picks up two concerns from a health board and local partnership that not all children and young people will be involved, potentially neglecting those in disadvantaged groups.
• Two commenters (both reporters, a health board and public body) felt that joining rights reports and services plans will make involving children and young people easier and perhaps enable "collaborative consultation".
• Children in Scotland raised the point that all children, young people and families involved must be fully informed and provided with the skills and expertise to enable their full participation in preparing, producing and scrutinising Children's Right's Reports and Child Planning Reports.

Children's Rights

Six comments discussed children's rights:

• The National Deaf Children's Society raised further concerns as to whether the provision in the guidance was enough to "make rights real" for all children.
• The Law Society of Scotland also reiterated that all other rights relating to children and young people should be included in the guidance to ensure that those overlooked are not left out of the agenda.
• Three additional commenters (Children and Young People's Commissioner; Together; NHS Lanarkshire) felt that more should be done to ensure that the children's rights are universally considered across all areas and services provided by local authorities and health boards such as adult services, planning and economic development.
• The Faculty of Advocates also questioned the examples provided and whether they truly reflected the requirements laid out by the UNCRC (the example of page 28 of the document was referred to in particular). Reflecting further concerns raised throughout the consultation on the distilling of the UNCRC articles accurately and appropriately

Working Together

In terms of working together:

• A large number of comments (from a range of organisations) queried how local rights reports will connect with national reports (7 mentions). In particular:
• o How should this be achieved?
• o How will national agencies feed into local reports and is this expected?
• o How will the timescales fit together?
• Three commenters were concerned over the perceived lack of governance and accountability within the guidance of working with partnerships, staff and representatives.
• Children 1st and Barnardo's Scotland also voiced concerns over the lack of direction and guidance on public scrutiny processes.
• Three other commenters (two health boards and a third sector organisation) recommended the guidance around working with others be further emphasised to ensure no opportunities are missed.

Additional comments received for this question ranged in topic:

• Four comments expressed an important need for measurable baseline data to assess progress (Police Scotland, West Dunbartonshire Health and Social Care Partnership, Fife Community Planning Partnership, and Children in Scotland). This is a recurring theme within a number of consultation response questions.
• Links to other duties in across other legislation and their associated reporting procedures would be welcomed by four commenters (local partnership, health board, third sector, and public body). This was also a recurring theme.
• Five commenters suggested that more examples would be useful, including case studies.
• Two additional commenters would like to see a resource in place to share learning and best practice.
• An executive summary of the guidance was seen to be useful (3 mentions).
• The Law Society of Scotland, reminded that consideration must be paid to the distinction between children and young people as they are two very different age groups.

This analysis of additional comments is not exhaustive of the comments provided. The comments and points included are a representative sample and summary of those obtained. All other recommendations will be provided to the policy team separately.