Progressing the human rights of children in Scotland: report 2018 to 2021

Introduction

This Progressing the Human Rights of Children in Scotland: A Report 2018-2021 (the '2021 Report') has been compiled in accordance with the reporting duties on Scottish Ministers under section 1(4) of the Children and Young People (Scotland) Act 2014. This is the second report to be laid before the Scottish Parliament in compliance with these duties; the first was laid in December 2018. This report discusses actions taken to support and promote the rights of the child in line with Part 1 of the Children and Young People (Scotland) Act 2014 Act from 2018 until 2021 (the Reporting Period).

i. Children's Rights in Scotland

The United Nations Convention on the Rights of the Child (UNCRC) sets out the civil, political, economic, social and cultural rights to which all children are entitled, regardless of their circumstances. The UK ratified the UNCRC in 1991.

Arrangements for taking forward children's rights within the UK (the signatory state party) reflect the separate constitutional responsibilities of constituent administrations. The Scottish Ministers, therefore, have responsibilities for the progression of children's rights with reference to devolved public services and legislation, including in relation to education, health, childcare and housing.

Children's rights, within the broader context of human rights, are at the heart of Scotland's National Performance Framework, which tracks progress towards delivery of Scotland's National Outcomes. The National Performance Framework is not solely a government framework, but belongs to the whole of Scotland. In support of the review of the National Performance Framework in 2018, the Scottish Government commissioned the Children's Parliament to ask children: 'What do children like and dislike about their current lives in Scotland? Looking forward, what sort of Scotland should children grow up in?'resulting in the report What Kind of Scotland? This work, which included primary research with children, supported the Scottish Government's efforts to ensure that the National Performance Framework National Outcomes reflected the needs and rights of children from their early years to middle childhood. The refreshed National Performance Framework, published in June 2018, includes the following National Outcomes: "We respect, protect and fulfil human rights and live free from discrimination" and "We grow up loved, safe and respected so that we realise our full potential."

The UNCRC also underpins key Scottish Government policies and legislation including the Getting it right for every child (GIRFEC) approach and the assessment of wellbeing, as set out in the Children and Young People (Scotland) Act 2014, which establishes the need for each child to be: safe, healthy, achieving, nurtured, active, respected, responsible, and included. The principles of the UNCRC are also reflected in domestic law and in Scottish Government policies and strategies including its approach to child and adolescent mental health, education, youth justice and measures to tackle child poverty.

ii. United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Bill

In March 2021, the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (the "Bill") to incorporate the UN Convention on the Rights of the Child and Optional Protocols 1 and 2^[1] into Scots law to the maximum extent possible, signalling a revolution in children's rights in Scotland. On 12 April 2021, a reference of certain provisions of the Bill was made by UK Law Officers to the UK Supreme Court. A hearing before the UK Supreme Court took place on 28 and 29 June 2021.

In October 2021, the Supreme Court ruled that certain parts of the Bill fell outwith the competence of the Scottish Parliament. At the time of writing, the Scottish Government is urgently and carefully considering the implications of the Supreme Court judgment and how best to take that work forward. We remain committed to the incorporation of the UNCRC to the maximum extent possible as soon as practicable^[2], and the majority of work in relation to implementation of the UNCRC can, and is, continuing. More details on this can be found in Section 1.1.

iii. Part 1 of the Children and Young People (Scotland) Act 2014

Part 1 of the Children and Young People (Scotland) Act 2014, which was commenced in June 2015, requires the Scottish Ministers to keep under consideration whether there are any steps which they could take which would, or might, secure better or further effect in Scotland of the UNCRC requirements (as defined in that Act) and, if appropriate, to take steps identified by that consideration. The Children and Young People (Scotland) Act 2014 further specifies that, in complying with these duties, Ministers must "take such account as they consider appropriate of any relevant views of children of which the Scottish Ministers are aware". Ministers are also required to promote public awareness and understanding of children's rights, including amongst children. Scottish Ministers' duties under section 1 of the Children and Young People (Scotland) Act 2014 apply in devolved areas only.

Section 1(4) of the Children and Young People (Scotland) Act 2014 requires Ministers to report to the Scottish Parliament every three years on the steps they have taken in that period to secure better or further effect in Scotland of the UNCRC requirements and to promote public awareness and understanding of the rights of the child. Ministers must also set out their plans until the end of the next three year period.

In accordance with these duties, the Progressing the Human Rights of Children in Scotland: A Report 2015-2018 (the "2018 Report") was laid before Parliament in December 2018. The Report set out progress made in relation to children's rights from June 2015 until June 2018. The Progressing the Human Rights of Children in Scotland: An Action Plan 2018-2021 (the "2018 Action Plan"), published alongside the 2018 Report, set out the Scottish Ministers' planned activity to further children's rights during the three year period from June 2018 until June 2021. The 2018 Action Plan was developed following public consultation and engagement with children and young people and included the following four strategic actions which aimed to support transformational change in how children and young people experienced their rights:

• Incorporate the UNCRC into Scots law.^[3]
• Develop and deliver through co-production an ambitious programme to raise awareness and understanding of children's rights across all sectors of society in Scotland.
• Develop a strategic approach to children and young people's participation, as part of the Year of Young People legacy.
• Evaluate the Child Rights and Wellbeing Impact Assessment (CRWIA) process and further support and promote its use.

iv. Progressing the Human Rights of Children in Scotland: A Report 2018-2021

This second report, prepared in accordance with Part 1 of the Children and Young People (Scotland) Act 2014, provides an update on the wide-ranging activities that have been taken forward across the Scottish Government in support of the rights of children and to raise awareness and understanding of the UNCRC since 2018, and is set out as follows:

• The Progressing the Human Rights of Children in Scotland: An Action Plan 2018-2021- Measures taken to progress the Action Plan's strategic priorities over the last 3 years (2018-2021).
• COVID-19 – Measures taken to ensure that the human rights of children and young people, particularly those who are most vulnerable, remain at the heart of the Government's response to the COVID-19 crisis and recovery.
• Key Policy Initiatives – Measures undertaken during the reporting period to give further effect to the UNCRC.
• Annex - Responsibility for taking forward children's rights is mainstreamed across all portfolios within the Scottish Government. The principles of the UNCRC are, therefore, taken into account in the development of Scottish Government legislation, policies, strategic frameworks, action plans and other key initiatives relating to the health and wellbeing of children and their families. To more fully reflect this widespread activity, the Annex to this report includes a list of policy specific initiatives that are currently being progressed across the Scottish Government relevant to the rights of the child.

We have also produced a separate Easy-Read version of this report which is published on the Scottish Government website.

A separate Action Plan, published alongside this report, sets out the Scottish Ministers' planned activity from June 2021 until June 2024 to further children's rights in Scotland. The 2021 action plan takes account of the findings of the consultation analysis on incorporating the United Nations Convention on the Rights of the Child into domestic law in Scotland, undertaken in 2019. A total of 162 responses to this consultation were received, including 13 responses from organisations which specifically represented the views of children and young people. Views were collected by these organisations during consultation events, young people's forums and workshops.

The 2021 action plan also takes account of subsequent stakeholder engagement through our governance bodies: the UNCRC Strategic Implementation Board and the Children and Young People's Interim Consortium.^[4]

v. UN Committee on the Rights of the Child

The UN Committee on the Rights of the Child examines State parties approximately every 5 years on their progress in taking forward children's rights in line with the UNCRC. The UK was last examined in 2016. Following from this, the UN Committee published its Concluding Observations for the UK, including the devolved administrations: a list of around 150 recommendations relating to a wide range of policy areas.

Scottish Ministers work with the UK Government in reporting to the UN Committee on the Rights of the Child on compliance with the UNCRC, with reference to devolved matters in Scotland. The UK has signed up to a new 'Simplified Reporting Procedure' for reporting under the UNCRC. As part of this process, the UN Committee publishes a request for specific information, known as the List of Issues Prior to Reporting (LOIPR). The State party's response to this request constitutes its report to the Committee.

In February 2021, the UN Committee published its List of Issues Prior to Reporting (LOIPR) for the UK, a request for specific information on a wide range of policy matters, including in relation to child poverty, health and education. As the State party, the UK Government is responsible for compiling the UK-wide response to this report by the UN Committee's recently revised deadline of June 2022.

As the UN Committee has placed a strict word limit on the UK response, it is likely that not all of the Scottish Government's contribution will be included in the final UK report. In view of this, the Scottish Government intends to develop and publish a comprehensive Scottish Position Statement in late spring of 2022.