Consultation Analysis Report on Statutory Guidance relating to Part 2 and 3 (section 18) of the UNCRC (Incorporation) (Scotland) Act 2024

Executive Summary

Introduction

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the ‘UNCRC Act’ or ‘Act’) was passed by the Scottish Parliament on 7 December 2023. Under sections 13 and 20 of the UNCRC Act, Scottish Ministers must issue guidance to support the implementation and operation of all of Part 2 and Part 3 (specifically, section 18, the reporting duty of listed authorities) of the UNCRC Act. To support the development of new statutory guidance, the Scottish Government conducted a public consultation which sought feedback on draft guidance.

Overall, 92 respondents provided a written response (with 74 responses from organisations and 18 responses from individuals) based on the main consultation document. One organisation also held an event and provided a write-up for inclusion in the analysis. In addition, approximately 55 children and young people were consulted via four organisations who held a range of activities, focus groups and interviews to gather their feedback.

Key Findings

The key findings from the written responses in relation to Part 2 and Part 3 of the guidance are outlined below, followed by other common themes repeated across both parts of the guidance, and the main feedback from children and young people.

Part 2 Guidance

The Part 2 Guidance is intended to promote understanding of Part 2 of the Act and includes information to support public authorities in the implementation and operation of their duties. The table below sets out the quantitative findings from the various consultation questions related to the Part 2 Guidance.

This shows that there were generally high levels of agreement that the various sections were clear, useful, provided sufficient information and supported understanding. In particular, most respondents (92%) agreed that Section 3, ‘Background and introduction to the UNCRC Act’, provided sufficient information on the UNCRC and the background to incorporation. Over three quarters of those who responded (79%) also agreed that Section 4.2, ‘Remedies for unlawful acts (sections 7 to 10)’ was useful.

The only areas where either fewer than half of those who responded agreed, and/or which had among the highest levels of disagreement included:

• Section 4.3.2 ‘Definition of a public authority’ being clear;
• Section 4.3.1 ‘Definition of functions of a public nature’ being clear;
• Understanding how to use the Compatibility Review Framework; and
• That the guidance was presented in an accessible manner overall.

Key qualitative feedback in relation to this part of the guidance was that respondents were concerned that the definitions of ‘public authority’ and ‘functions of a public nature’ were not clearly defined and could be improved and clarified. In particular, respondents wanted greater clarity around when organisations would be considered to be ‘public authorities’ or delivering ‘functions of a public nature’. It was felt that this was particularly unclear for private, voluntary and independent (PVI) sector organisations, for ‘hybrid’ public authorities, and in relation to commissioned services and the use of sub-contractors. Respondents considered it fundamentally important to get these definitions right in order to provide clarity around who the duty-bearers were. They also suggested that the guidance would be improved if it included illustrative examples and case studies, both in relation to these issues and across several other sections (including ‘Remedies for unlawful acts’ and what might constitute a breach of duty; and when and how to undertake the Compatibility Review).

Respondents also highlighted various sections or issues where they felt more detail or greater clarity could be provided across Part 2 of the guidance. This included discussion of the UNCRC requirements, articles and protocols; the explanation of a ‘time-bar’ on children bringing actions; in relation to development of child friendly complaints processes and raising court proceedings; and around reserved and devolved matters.

Concerns were also raised both within sections and overall regarding the accessibility of the Part 2 Guidance. Respondents often felt that the language was complex, technical and required readers to have a certain level of legal understanding and knowledge of reserved/devolved issues in order to interpret the guidance. It was suggested that the guidance may be difficult for front-line workers, lay readers, and children and their families to understand. As such, common suggestions included the use of plain English throughout, the inclusion of infographics, flowcharts, diagrams, or other visual representations to aid understanding; and streamlining the guidance to make it more user friendly.

Respondents took the opportunity to raise concerns that were beyond the scope of the statutory guidance consultation. In particular, respondents were concerned that, without adequate support, staffing and funding, it would be difficult for already stretched public authorities to fully implement the UNCRC Act, to meet the various requirements, and achieve the desired outcomes. Similarly, concerns were raised over the capacity of schools, teachers and advocacy services to provide support to children and young people to ensure their rights are upheld, or to seek redress when they have not been. The need for public authorities to access legal advice was also raised as a concern, both in terms of capacity of in-house legal teams to deal with the demand, and the ability of smaller organisations, third sector and PVI organisations to access this.

A range of other issues or suggestions were also provided by lower numbers of respondents across the Part 2 Guidance. These included:

• Concerns that the guidance was open to misinterpretation and misunderstanding;
• That more sector specific guidance would be helpful, as well as more information focused on organisations working in partnership and/or using contracted service providers;
• It would be helpful to provide overviews at the start of sections, to highlight where further information could be found, for important concepts to be introduced (or signposted) early in the guidance, and include more hyperlinks to support linkages and to help readers move around the document;
• Greater consistency being needed in the terminology used throughout the guidance (in both Parts 2 and 3); and
• That the guidance should include provisions for independent advocacy.

Part 3 Guidance

The Part 3 Guidance aims to promote understanding, implementation and operation of Part 3 of the UNCRC Act, and includes information to support authorities listed under section 19 of the Act in the implementation and operation of their duties. The table below sets out the quantitative findings from the various consultation questions related to the Part 3 Guidance.

Agreement with all questions/statements in relation to the Part 3 Guidance was high, with over three quarters of those who responded at each question typically agreeing or strongly agreeing that the various sections were clear and/or helpful. The only exception was in relation to whether the guidance was presented in an accessible manner, although agreement was still high at 62%.

Again, several issues were discussed across the Part 3 Guidance.

Respondents called for more information and greater clarity to be provided about various aspects. This included the timing of reports; the development of combined and joint reports; requests for signposting to resources to support the development of child friendly reports; distinguishing between essential and desirable tasks; and how to work through decision-making. Respondents also called for examples, case studies and pro-forma templates to be provided.

Again, feedback often focused on the accessibility of the Part 3 Guidance. It was felt to be lengthy, complicated and not user friendly. The language was generally considered to be too complex and included legal terminology, making it difficult for lay readers and children and young people and their families to understand. In addition to the use of plain English there were calls for tighter and more compelling language to be used rather than the use of more vague or suggestive phrases (such as ‘may wish to consider’). It was also felt that the Part 3 Guidance would benefit from more sector specific details or examples to support understanding. A few respondents said that the need to refer to other parts of the guidance and other documents made it difficult to follow, although it was also suggested that there was duplication between some of the information in Parts 2 and 3 (particularly Part 3 Annex A) with signposting in Part 3 considered to be sufficient. Some respondents suggested that flowcharts and diagrams would be useful.

While respondents were largely in favour of the need to consult and engage with children and young people, there were concerns about consultation fatigue and over consulting with particular groups. Respondents also stressed the need to ensure that a wide range of children’s views were considered, including seldom heard and vulnerable groups, as well as those who may need support to contribute.

Respondents again took the opportunity to raise concerns that were beyond the scope of the statutory guidance consultation, when responding on Part 3, raising concerns about capacity, resourcing and funding. Respondents were concerned that existing reporting burdens will be exacerbated. They also highlighted challenges for listed authorities to undertake the required data collection, draft reports and develop child friendly reports within existing budget and resource constraints.

Common issues across the consultation

A range of other issues were also raised in the written responses and repeated across the consultation feedback, covering both Part 2 and Part 3, albeit less frequently. This included:

• The need for a joined up approach between the UNCRC Act and other existing and forthcoming legislation and requirements, to avoid duplication or inconsistencies. This included duties placed on public authorities, the use of impact assessments alongside other reviews, and reporting requirements.
• References to ‘children’s voice’ need to be clear that this includes all forms of communication and expression (including non-verbal), and that children and young peoples’ views need to be considered to influence decision-making.
• It will be important to avoid compliance (and particularly the Compatibility Review, the reporting Framework, and engagement with children and young people) becoming tokenistic or a ‘tick-box’ exercise.
• Greater consideration was needed of specific groups of ‘at risk’ children and young people. Respondents noted that several groups would not be captured under the protected characteristics of the Equality Act and therefore required greater consideration and specific coverage in the guidance. This included those involved with the justice system; children with a parent in prison; care experienced children; young carers; and children in armed forces families.
• The guidance should include more information and consideration on how to balance competing rights, conflicting views and priorities.
• While some respondents supported the non-prescriptive and flexible nature of the guidance, others expressed a desire/need for more practical and prescriptive guidance. It was argued that more prescriptive guidance (and the inclusion of examples and templates) would help to avoid misinterpretation, would provide greater consistency across the country, and would reduce the need for duplication of effort between public authorities.
• More tailored and accessible guidance was considered necessary for children and young people and those who support them.

Feedback from children and young people

The children and young people who took part provided feedback on six key topics.

Introduction and overview of children’s rights: Those who took part tended to have a reasonable awareness of the UNCRC Act and their rights, although they felt this was not the case for all children and suggested that greater education and awareness raising was required among children and young people. They also understood and stressed that adults had a role in both fulfilling and protecting children’s rights, and therefore awareness raising needed to be widespread among the general population.

What public authorities need to know about children’s rights and the UNCRC Act to respect, protect and fulfil children’s rights: Young people wanted public authorities to know they were legally required to comply with the UNCRC Act and make change happen. As such, they would need to be educated on the requirements, and would need to raise awareness among children and young people as well as the general public to empower them to seek those rights and create accountability. Children and young people also wanted to be involved, listened to and respected, and felt that a wide range of ‘voices’ should be consulted, including those who are seldom heard, and those whose rights are most likely to be at risk. Respondents felt that failing to uphold children’s rights could result in children and young people losing trust in practitioners/services as well as the UNCRC Act itself.

Identify and address any situation where a child’s rights are (or are at a significant risk of) not being fulfilled: Children and young people stressed that those who were most at risk of having their rights breached were also the least likely to know about or be able to access their rights, and it was important to address this. They wanted the guidance to make it clear to public authorities that they are expected to fix any problems and issues relating to children’s rights. It was also important that services understood children’s capacity and supported them appropriately, as well as understanding the power imbalance between children and public services, and how to balance competing rights.

Ensure that children have effective access to justice: Information was seen as being key in this respect. It was considered crucial to inform children and young people about what to do, who to contact, and where to go if they were worried about not being able to access their rights, or when their rights may not be upheld. Respondents said they needed information about the process, how long it would take, what would happen, and what support would be available. Access to impartial advice, legal aid, solicitors and advocacy workers was also perceived as necessary, along with the provision of appropriate support throughout.

Reporting requirements for listed public authorities: Respondents were generally supportive of a reporting requirement and agreed that this process must involve children and young people. However, they stressed that reports needed to avoid becoming a tick-box exercise. Child friendly reports were welcomed and considered necessary, with a range of formats and sources being required. Reporting was felt to provide a useful accountability measure, although respondents were keen that this should not be the only form of accountability.

Inclusive communication: It was stressed that all communication and information for children and young people needs to be age appropriate, and should use concise and accessible language. A wide range of alternative formats would be required, tailored to be more engaging for children and young people. It was also said to be important to accommodate different communication needs, including non-verbal communication.

Finally, respondents indicated that schools were crucial in providing education and awareness raising among children and young people, along with wider approaches such as advertising in public spaces, on social medial and television. Again, however, awareness raising needed to also target parents/carers as they would be key stakeholders in advocating for their child(ren)’s rights.

Conclusion

While the guidance in relation to the UNCRC was welcomed, and was perceived as generally helpful, there were several areas that were highlighted where it could be made more accessible and offer greater clarity for those it is intended to help. As such, the consultation generated a lot of useful feedback which has been used to redraft and finalise the guidance.