Guidance on Part 1, Section 2 (Duties of Public Authorities in relation to the UNCRC) of the Children and Young People (Scotland) Act 2014

Introduction

32. The Scottish Government is committed to making Scotland the best place for children to grow up; a Scotland where the rights of children and young people are respected, protected, enabled and fulfilled across our public services and society as a whole.

33. For the Scottish Government to deliver on this commitment, it is crucial that children's rights are a primary consideration whenever decisions are being taken which will affect children and young people, whether these are at the individual, local or national level.

34. The UNCRC is at the heart of the Government's commitment to ensuring that all children and young people have the best possible start in life, regardless of their circumstances. As duty bearers under the UNCRC, public authorities are expected to do all they can to implement the Convention and uphold children's rights.

35. The reports produced under Part 1 of the Act will provide evidence of the contribution of specified public authorities in Scotland to ensuring that children's rights are respected, protected, enabled and fulfilled. As such, these reports will help evidence how public authorities realise the shared ambition of making Scotland the best place to grow up.

Human rights

36. The duty on public authorities under Part 1 of the Act seeks to give further effect to human rights. These are the basic rights and freedoms to which we are all entitled in order to live with dignity, equality and fairness and to develop and reach our potential. Everyone, including children, has these rights, irrespective of their circumstances.

The UN Convention on the Rights of the Child

37. The UNCRC recognises children's capacities as autonomous rights holders with the ability to identify and claim rights on their own behalf. Established in 1989, the UN Convention on the Rights of the Child is a core human rights treaty which sets out an internationally agreed framework for the rights of all children and young people. Children and young people have long been considered to require special attention in respect of their rights because of their particular vulnerabilities and their reliance on adults. Even though they are autonomous rights holders, children and young people are generally dependent on others to give effect to their rights. These rights are set out in the 54 Articles and three Optional Protocols^[10] of the UNCRC.

38. The Articles provide a framework of standards, principles and guidance on implementation, which take into account specific childhood needs. The UNCRC recognises that countries have different legal systems and that implementation can be broadly applied. In line with other UN treaties, all rights are indivisible (i.e. all rights are considered equal), interrelated and interdependent (i.e. the enjoyment of one right depends on and contributes to the ability to freely exercise other rights).

39. The UNCRC provides children and young people with a series of individual rights, including the right to education, health, play and recreation, and an adequate standard of living. The UNCRC also provides for specific groups of children who need special protection or other forms of support: disabled children, children who have been exploited or mistreated, refugee and migrant children, children in custody, and children in care. Other groups of children sharing similar lived circumstances arise from consideration of the intersections of the different UNCRC articles, for example: children in urban and rural areas, those with additional support needs or who are affected by poverty, deprivation or homelessness and children affected by violence, drugs or alcohol.

40. The UNCRC establishes the concept of a child's "evolving capacities" (Article 5) and states that direction and guidance provided by parents and others with responsibility for the child, must take into account the capacities of the child to exercise rights on their own behalf.

41. Four General Principles underpin each and all of the specific rights outlined in the UNCRC:

• for rights to be applied without discrimination (Article 2);
• for the best interests of the child to be a primary consideration (Article 3);
• for the right to life, survival and development (Article 6); and
• for the right to express a view and have that view taken into account (Article 12).

The UK as the State Party to the United Nations

42. The responsibility for signing and ratifying international Conventions is reserved to the UK Government.

43. Following its ratification in 1991, the UNCRC came into force across the UK in 1992. As the State Party to the Convention, the UK Government has primary responsibilities for the preparation and submission of the required monitoring reports to the UN Committee on the Rights of the Child. However, the Scottish Parliament has competence (by virtue of paragraph 7(2)(a) of Schedule 5 to SA 1998) to "observe and implement" international obligations, so far as they fall within existing devolved competence, including those arising under international human rights treaties which have been ratified by the UK, such as the UNCRC . Moreover, the Scottish Ministerial Code places an overarching duty on all Scottish Ministers "to comply with the law, including international law and treaty obligations." The Scottish Government actively contributes to UK Government reporting on implementation of international human rights treaty obligations and prepares its own plans for progressing the UNCRC in Scotland^[11].

44. Further information on the operation and monitoring of the UNCRC and other human rights treaties is attached at Appendix 2.

Rights-based approach

45. The international human rights framework provides standards which governments are obliged to respect, protect and fulfil. A rights-based approach takes these obligations and provides a means of embedding rights across services, policy and practice. It provides a framework for monitoring and evaluating progress on realising rights in different contexts and settings. It is therefore a useful way for government and other public bodies to take forward their commitments to human rights as part of their policy and practice.

46. The PANEL principles provide one framework for taking forward a human rights-based approach (see Appendix 5 for more details).

Child rights-based approach

47. A child rights-based approach uses the UNCRC as the framework for working with and for children and young people. It has the goal of promoting and securing the full range of children's human rights and places children and young people at the centre of policy development, and the design, delivery and evaluation of services^[12]. This guidance focuses on giving effect to the UNCRC and, therefore, public authorities are encouraged to use the UNCRC as the framework for reporting.