Taking a children's human rights approach: guidance

2. Introducing the UNCRC

2.1 What are human rights?

Human rights are the basic rights and freedoms which we all have, to live with dignity, equality and fairness and to develop and reach our potential. Human rights are a list of things that all people – including children and young people – need to live a safe, healthy and happy life.

Human rights are:

• Universal (they apply to everyone, regardless of who they are)
• Inalienable (they cannot be taken from you or given away)
• Indivisible (they are all equally important)
• Interdependent (breach of one impacts them all)
• Interrelated (they are all connected to one another)

Under international law, States/Governments are obliged to respect, protect and fulfil human rights. Those delivering public services should respect human rights when they make decisions, plan services and make policies.

Everyone, including children, has these rights, no matter what their circumstances. The European Convention on Human Rights (ECHR) has been incorporated into UK domestic law through the Human Rights Act 1998 (HRA). This legislation makes it unlawful for public authorities to act in a way that is incompatible with those rights.

• Respect: Refrain from interfering with or curtailing the right
• Protect: Ensure individuals and groups are protected from human rights abuses
• Fulfil: Take positive action to facilitate the enjwoyment of basic rights

“If adults obey these rules, then millions of children could have much better lives than at present”.

Young person’s response to Scottish Government consultation

2.2 Children’s rights

Children and young people have the same human rights as adults. These are the same rights that protect everyone. They span the entire spectrum of civil and political rights (e.g. freedom from discrimination and the right to a fair trial) and economic, social and cultural rights (e.g. the right to adequate food and housing, the right to education). Children and young people also have a right to special protection because childhood, defined as the period of life up to the age of 18, represents a time in our lives when we all require support from others to have a good quality of life, when our wellbeing and needs are provided for.

The actions, or inactions, of government impact children more strongly than any other group in society and every area of government policy affects children to some degree.

We know that children and young people face unique barriers to accessing their rights. Their future often depends on the action taken by adults to implement their rights in practice. As children, their voices can be unheard, or more easily dismissed.

“Children’s rights are important because they are essential to make a child’s life liveable”

Member of Children’s Parliament in “What kind of Scotland?”

2.3 What is the UNCRC?

Specific human rights for children are set out in the UN Convention on the Rights of the Child (UNCRC). The UNCRC offers a vision of the child as an individual and as a member of a family and community. By recognising children’s rights in this way, the UNCRC firmly sets the focus on the whole child. The additional rights afforded to children within the UNCRC recognise that childhood is a special time which must have additional protections.

The UNCRC is the internationally mandated children’s rights treaty that sets out the rights that all children and young people in the UK have and outlines what children need to give them the best chance of growing up happy, healthy and safe. It also explains how adults and governments should work together to make sure all children can access all their rights. The UNCRC defines the child as a person under 18 years of age.

The UNCRC recognises that children are human beings with fundamental rights that are written into international law. It also makes clear that special action needs to be taken to ensure those rights are respected, protected and fulfilled.

As one of the core global human rights treaties, the UNCRC helps to safeguard the dignity and the equal and inalienable rights of all children and young people. It does this by making sure that important rights set out in other international human rights treaties are applied in a way that is relevant and appropriate to the needs of children and young people. The UNCRC makes clear that in all actions concerning children, the best interests of the child must be a primary consideration.

2.4 General Principles of the UNCRC

There are four articles in the UNCRC that are seen as special. They are known as the “General Principles” and they help to interpret all the other articles. This means that these rights are so essential that if they are violated, this will have an impact on all other rights.

• Rights should be applied without discrimination (Article 2)
• Best interests of the child to be a primary consideration (Article 3)
• Right to life, survival and development (Article 6)
• Right to express a view and have that view taken into account (Article 12).

For example, if the right to life, survival and development is not protected then it can be difficult to protect other rights such as the right to an adequate standard of living, the right to participation or the right to an education.

All rights are mutually reinforcing and interlinked. Children’s civil, political, economic, social and cultural rights as expressed within the UNCRC all have equal status. Therefore, no rights should be held in higher regard or seen as more important than others. Whilst the General Principles are a useful lens through which to consider children’s rights, they should be taken into account in conjunction with all rights and not considered primary, with other rights (outlined in the UNCRC) seen as secondary.

Considered together, the general principles help to construct a perception of children and childhood, one where they are equal to their adult counterparts. The general principles contribute to the enhancement of a positive attitude towards children and their rights.

2.5 What are the Optional Protocols of the UNCRC?

The UNCRC has three Optional Protocols.

These set out extra provisions which have been written after the treaty was adopted.

• Optional Protocol on the sale of children, child prostitution and child pornography,
• Optional Protocol on the involvement of children in armed conflict, and
• Optional Protocol on a communications procedure.

A state that signs up to the UNCRC does not need to sign up to the Optional Protocols.

Currently, the UK is signed up to the first Optional Protocol (on the sale of children, child prostitution and child pornography) and the second Optional Protocol (on the involvement of children in armed conflict), but not to the third Optional Protocol on a communications procedure.

2.6 What rights do children have under the UNCRC?

The UNCRC contains 54 articles. The first 42 cover all aspects of a child’s life and set out the civil, political, economic, social and cultural rights that all children have. Articles 43–54 cover how adults and governments must work together to make sure all children can enjoy all their rights.

Examples of articles are:

• The right of the child and young people to express a view and have that view taken into account (Article 12)
• Freedom from violence, abuse and neglect (Article 19)
• The right to a proper house, food and clothing (Article 27)
• Access to primary and secondary education (Article 28)
• The right to play and to rest (Article 31)

It sets out children’s individual rights – such as to a name and nationality, and to an adequate standard of living – alongside additional rights for specific groups of children, such as disabled children, children who have been exploited or mistreated, refugee and migrant children, children in custody, and children in care. The Children and Young People’s Commissioner for Scotland has made a simplified guide for children and young people about their specific human rights under the UNCRC.

2.7 Progressive realisation, maximum available resources and non regression

Article 4 of the UNCRC requires States Parties to undertake all appropriate legislative, administrative and other measures to implement the UNCRC. Regarding economic, social and cultural rights, they must “undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation”.

The concept of “maximum extent”, can be interpreted in international law as an obligation towards “progressive realisation” in relation to economic, social and cultural rights such as the rights to nutrition, clothing and housing. This means there must be progress made over time towards the full realisation of these rights.

The concept of progressive realisation is complex and can be interpreted differently, depending on the context. However, the concept imposes an immediate obligation on States Parties to “take appropriate steps” towards the full realisation of children’s rights. A lack of resources cannot justify inaction or indefinite postponement of measures to implement children’s rights.

The principle of non regression, in the context of international human rights law, and particularly in the context of Economic, Social, and Cultural Rights (ESCR) is generally understood to mean the obligation of states to not take regressive measures, as in doing so they would be departing from their obligation to take steps for the progressive realisation of these rights.[1]

2.8 Sources to aid interpretation

The UN Committee on the Rights of the Child, is a body set up by the UN to monitor the progress that States make in keeping their human rights promises under the UNCRC. It issues General Comments, Concluding Observations, views and findings under the third Optional Protocol (yet to be ratified by the UK) and recommendations following days of general discussion.

The UN Committee on the Rights of the Child provides a wide range of guidance and a coherent framework for upholding children rights. These are all sources that can assist in understanding the UNCRC. They are available on the United Nations High Commissioner for Human Rights (OHCHR) website. These sources provide guidance but are not legally binding in international law.

These sources are in addition to the experience and practice that already exists across public services and the courts in applying the UNCRC at present.

General Comments - Provide interpretation and analysis of the UNCRC articles to help States Parties understand how the UNCRC can be put into practice. For example:

• General Comment 5 outlines States parties’ obligations to develop what it has termed “general measures of implementation”.
• General Comment 12 specifically focuses on a child’s right to be heard.
• General Comment 14 highlights the right of the child to have their best interests taken as a primary consideration
• General Comment 19 covers public budgeting for the realisation of child rights.
• General Comment 24 looks at children’s rights in juvenile justice and highlights important core elements needed for a comprehensive policy focusing on prevention, intervention and diversion.

The full list of final general comments are available on the UN online database, including supporting documents which aim to assist with interpretation. Public Bodies may wish to review general comments relevant to their areas of impact to assist with policy making. While general comments provide useful guidance, they are not legally authoritative.

Concluding Observations - The UNCRC requires countries which have adopted the UNCRC to report on the steps they have taken to implement it. The Committee on the Rights of the Child review these reports and produce a set of country specific suggestions and recommendations known as ‘Concluding Observations’, highlighting positive practice and recommending areas for improvement. The Scottish Government was last examined by the Committee on the Rights of the Child on the 17-18 May 2023, as part of UK reporting. Concluding Observations were issued on the 16 June 2022. Together have issued a child friendly version of the Concluding Observations.

Days of General Discussion - The Committee holds general meetings every two years, focused on a specific article of the UNCRC or a related subject. These meetings are opportunities to develop a deeper understanding of the contents and implications of the UNCRC. In recent years, the committee has raised the rights of all children regarding international migration (2012), child’s rights in relation to digital media (2014) and children as human rights defenders (2018). A full list of the Days of General Discussion is available.

Communications issued under Optional Protocol 3 - The UNCRC has three Optional Protocols. These set out extra provisions which have been written after the treaty was adopted. Optional Protocol 3 allows children to make a complaint to the Committee on the Rights of the Child if they believe their rights under the UNCRC have been violated. The Committee then considers the case and communicates its views to the parties concerned. Optional Protocol 3 has not been ratified by the United Kingdom. The communications issued by the Committee may be of use in interpreting the UNCRC requirements.

Decisions of the Courts - New case law may arise from legal proceedings brought under the UNCRC Act in Scotland and may assist in interpreting the UNCRC requirements.