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

Children's Rights Reports and Other Frameworks

56. Before preparing a Children's Rights Report, public authorities are advised to consider the following aspects:

• the UNCRC assessment framework^[15] and its applicability for developing Children's Rights Reports (see A Framework for Children's Rights Reporting);
• a commitment to involving children and young people in preparing Children's Rights Reports (see A Framework for Children's Rights Reporting and Appendix 4);
• the child wellbeing indicators developed as part of the GIRFEC approach and their links with the UNCRC (see Appendix 3);
• the CRWIA, originally developed for the Scottish Government which may offer a useful approach to local policy improvement (see Children's Rights Reports and Other Frameworks); and
• the potential links between the Part 1, section 2 duty to report on children's rights and Part 3 duties relating to Children's Services Plans (see this section and Guidance for Part 3).

These are considered further below.

Child Rights and Wellbeing Impact Assessment

57. The CRWIA assesses the impact of proposed policy and legislation on children's rights and wellbeing, and is used for policy/ services improvement.

58. The CRWIA supports the Scottish Government to "identify, research, analyse and record the anticipated impact of any proposed law and policy on children's human rights and wellbeing"^[16]. It supports the Scottish Government in fulfilling the existing obligations under the UNCRC and the new ministerial duties under the Act. This includes the duty to report progress on the implementation of the UNCRC to the Scottish Parliament every 3 years.

59. The CRWIA uses two frameworks for assessment: the UNCRC, and the child wellbeing indicators developed as part of the GIRFEC approach to children's service provision in Scotland. It helps ensure that leading UNCRC principles, such as the best interests of the child (Article 3 of the UNCRC) and children's views (Article 12) are integrated into policy development.

60. The Scottish Government CRWIA model has been designed to produce outputs which record how decisions that impact on children and young people in Scotland have been reached, and provides a basis for ongoing monitoring and evaluation of the policy or measure.

61. Although the CRWIA was developed for use by the Scottish Government, the CRWIA model and resources are available for wider use by public authorities should they wish to use them, for example for policy/services improvement, or to evidence as part of the reporting duties for Parts 1 and 3 of the Act their consideration of the rights of children across all areas of their activity. CRWIAs have been undertaken for Parts 1 and 3 of the Act as part of the policy development cycle. Since the views of children and young people are integral to the CRWIA process, the CRWIA guidance includes detailed information regarding the effective participation of children in national policy-making (see also this guidance Appendix 4 for Involving Children and Young People in Children's Rights Reports).

The child wellbeing indicators

62. GIRFEC is the national approach in Scotland to improving outcomes and supporting the wellbeing of our children and young people by offering the right help at the right time from the right people. It supports them and their parent(s) to work in partnership with the services that can help them. The Act places key elements of GIRFEC in statute. In particular, section 96 provides a statutory definition of wellbeing, relating it directly to the eight wellbeing indicators - Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, Included (sometimes known by the acronym SHANARRI). The statutory guidance for Part 18 (Section 96) of the Act provides further detail.

63. The importance of the relationship between children's rights and wellbeing is central to the Act, and to realising Scottish Ministers' commitments to children and young people. It is suggested that public authorities explore their own organisational understanding of the interaction between children's rights and the wellbeing indicators in advance of undertaking children's rights reporting in order to establish consensual views of the two inter-related concepts.

64. The publication "Children's Rights Legislation in Scotland: A Quick Reference Guide" provides helpful interpretation of the relationship between rights and wellbeing:

"The UNCRC is a set of substantive, legal and procedural standards that focus on the role of the State in ensuring that these standards are met. It is the overarching framework within which all policy that affects children and young people should be developed, and within which child wellbeing sits."^[17]

65. The above Quick Reference Guide goes on to describe wellbeing as:

" …"a measure of the quality of a child's life". It is understood in relation to objectives measures (such as income, health status, being a victim of crime, educational achievement) and subjective measures (such as life satisfaction or reported levels of happiness)."^[18]

66. Appendix 3 identifies Articles of the UNCRC and matches them to wellbeing indicators. This is drawn from materials developed for the CRWIA and is an interpretation of the interaction between wellbeing indicators and UNCRC Articles which can be used flexibly by authorities. It should be noted that UNCRC Articles may relate to more than one wellbeing indicator - e.g. Article 3 (best interests of the child).

67. Identifying the links between children's rights and wellbeing will be particularly useful for authorities who wish to align their Part 1 duties on Children's Rights Reports with their Part 3 duties on Children's Services Plans.

68. It may also be useful for other public authorities using the wellbeing indicators or another framework such as the National Health and Wellbeing Outcomes to identify which Articles of the UNCRC would apply to their responsibilities.

69. For further guidance on the GIRFEC approach please refer to the Policy Update on Delivering the GIRFEC Approach.^[19]

The assessment framework for the UNCRC

70. The UNCRC Articles provide for every aspect of a child or young person's life from birth up to the age of 18 years. The range of Articles provides duty bearers with a structure for informed dialogue and assessment of the range of issues and circumstances that affect children and young people in Scotland. They therefore provide the basis for both Government and public authorities realising, or giving further effect to, children's rights.

71. As part of the requirements for State periodic reports^[20] the different Articles of the UNCRC are grouped into clusters. This is the structure that is recommended for reports to the UN Committee on the Rights of the Child and one that the UK Government and the Scottish Government in its contribution follow.

72. For the purposes of Children's Rights Reports, the clusters offer a framework which can facilitate reporting. This is explored in more detail in the following chapter (A Framework for Children's Rights Reporting). The clusters are:

1. Definition of the child

Article 1 of the UNCRC defines a child as anyone under the age of 18.

2. General measures of implementation

This cluster deals with structures and resources to implement the UNCRC including legal and non-legal measures.

3. General principles of the UNCRC

There are four guiding principles of 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); the right to life, survival and development (Article 6), and the right to express a view and have that view taken into account (Article 12).

4. Civil rights and freedoms

This cluster focuses on children's civil rights and freedoms including children's right to move freely in public space, to access information and to privacy.

5. Violence against children

This cluster focuses on violence against children including abuse and neglect and the right not to be subjected to inhuman or degrading treatment or punishment.

6. Family environment and alternative care

This cluster focuses on the family environment, the right of children to be well cared for if they live apart from their parents, and the right to be protected from all forms of violence and abuse.

7. Basic Health and welfare

This cluster focuses on the health and welfare of all children and the consideration of disabled children's rights.

8. Education, leisure and culture

This cluster focuses on the right of all children to have a right to an education that will help them achieve their potential without discrimination.

9. Special protection measures

This cluster focuses on groups of vulnerable and marginalised children who require special protection.

Potential links between Part 1 and Part 3 (Children's Services Planning) of the Act

73. Some public authorities to which Part 1 applies will also be subject to duties under Part 3 (Children's Services Planning); in particular, local authorities and health boards. Children's Services Plans seek to improve outcomes for all children and young people through the delivery of services that will support their wellbeing, promote early intervention and preventative approaches, demonstrate best use of resources, and allow for the better planning and coordination of those services.

74. There is no requirement within Part 3 for local authorities and relevant health boards to adopt a child's rights-based approach within their children's services planning process or to link with the Part 1 duty described in this guidance. However, given the complementary timescales, the fact that both Part 1 and 3 duties fall on local authorities and health boards, and that Part 1 permits the publication of joint reports, alignment of the Part 1 and Part 3 duties may benefit both processes by providing a structure within which to plan, review and report on children's rights, cementing the link between the two. A local authority and health board could, for instance, decide to report annually on children's rights and incorporate this within their annual children's services plan report (required under section 13 of the Act). Alternatively, they could incorporate their children's rights report into the final annual report of the children's services planning cycle (which is linked to the same 3 year period as Part 1).

75. With its focus on "wellbeing", children's services planning already puts children's rights at the heart of the planning and delivery of children's and related services. Children's services planning presents a local authority and relevant health board with a valuable opportunity to give these rights real articulation in practice. For instance, a local authority and its relevant health board could, in consultation with its partners and community, choose to set themselves an aim, within their Children's Services Plan, to "secure better or further effect of, children's rights". Their plan could then set out the steps to be taken, over the 3 year period, to achieve this aim and how it will be monitored, and, as mentioned above, annual reports could document progress.

76. However, it is important to note that although Part 1 and Part 3 duties could be aligned, attention would need to be given to the scope and extent of children's rights, with consideration given to the interaction between the UNCRC and the wellbeing indicators (see Appendix 3, "Links between Wellbeing Indicators and the Articles of the UNCRC").

77. Whether or not public authorities align their Part 1 and Part 3 reporting, local authorities and health boards will need to consider if there are any areas of children's rights not covered by their children's and related services, noting the definitions set out by Scottish Ministers (under section 7(1))^[21]. This may include, for example, children whose rights and wellbeing are affected due to the circumstances of their families (e.g. where a parent is in prison). (For further examples see Publication of the Report.)

78. For further information on Children's Services Plans, please refer to the guidance on Part 3 (Children's Services Planning) of the Act.

Potential links to other plans

79. It may be helpful for public authorities to align Part 1 duties with other legislation requiring them to both consult and publish reports, for example, the Joint Working (Public Bodies) (Scotland) Act 2014, the Community Empowerment (Scotland) Act 2015 as well as Parts 3 and 9 (Children's Services Plans and Corporate Parenting) of the Act.

80. Such an approach could help avoid duplication of effort and maximize the use of available resources (an ambition of the Christie Commission). It could also assist the achievement of the Scottish Government's National Outcome of making "our public services, high quality, continually improving, efficient and responsive to local people's needs".