UNCRC (Incorporation) (Scotland) Act 2024 - part 2: statutory guidance

1. Introduction

Scottish Government recognises the vital role that those providing public services play in delivering improved outcomes for children, young people and their communities. The full realisation of children’s rights requires proactivity on the part of all public services and not only those working directly with children and young people.

All decisions made about actions taken to deliver public services may impact on the rights of children and young people. It is important for all those undertaking relevant public functions to consider children’s rights in their work. Consideration of children’s rights should be evident across all public service delivery.

This statutory guidance is pursuant to section 13 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the ‘UNCRC Act’ or ‘Act’). It is issued by the Scottish Ministers to support the implementation and operation of Part 2 of the Act.

The purpose of this guidance is to provide public authorities with pragmatic information that may assist them with understanding and acting in accordance with section 6 of the UNCRC Act. Section 6 places a duty on public authorities not to act incompatibly with the ‘UNCRC requirements’ as defined by section 1 and the schedule of the Act. It aims to provide meaningful support for this purpose to any organisation who is or would be a ‘public authority’ as defined in sections 6(5), (6), (7) and (8) of the Act, including those whose functions are public in nature and those acting under a contract or other arrangement.

The guidance is primarily intended for those with responsibilities within public authorities for implementing and delivering the provisions of the Act. Public authorities retain discretion on the implementation and operation of their duties under Part 2 and may wish to consider this guidance in that regard.

Public authorities may wish to develop accessible information on their duties within the Act as they relate to their functions to support the awareness and understanding of children, young people and their families. This guidance is for all public authorities as defined by the Act. However, sector experts may wish to develop specific guidance for their contexts.

This guidance must be read in conjunction with the legislation to which it relates. It is not intended as a substitute for direct reference to the Act itself and its explanatory notes. Interpretation of the Act and its duties will ultimately be for the courts to decide in the event of any proceedings raised before them. If a public authority is unclear on whether the section 6 duty (the compatibility duty) applies to it, it should seek independent legal advice.

The UNCRC Act received Royal Assent on 16 January 2024. Section 6 of the Act came into force on 16 July 2024.

How was the guidance developed?

This guidance was developed in consultation with representative public authorities, including those delivering public services, third sector organisations, and children’s rights bodies. In addition, feedback from a public consultation and children, young people and their representatives, the Scottish Human Rights Commission (SHRC) and the Children and Young People’s Commissioner Scotland (CYPCS) has informed the final version of this guidance.

Summary of the contents of this guidance

This guidance consists of the following sections:

1. An introduction to the guidance.

2. An introduction to human rights, children’s rights and the UNCRC Act, including the ‘UNCRC requirements’ as defined by the Act.

3. An explanation of Part 2 of the UNCRC Act including: definitions of key terms in the Act; an explanation of the section 6 duty on public authorities; a flowchart and framework that public authorities may wish to use to review compatibility with the UNCRC requirements included in the Act; and remedies now available to children and their representatives to seek redress through the courts if their view is that their rights have been (or a proposed action would mean that they would be) infringed.

Further information to assist public authorities in applying the section 6 duty is included in the additional documents: ‘Clarification of inherent obligations of the UNCRC’ and ‘Sources to guide interpretation of the Act’.

Section 13(2)(b) of the Act notes that the Scottish Government can promote child rights-respecting practice in relation to guidance supporting the implementation and operation of Part 2 of the Act. This is not included in this guidance. The Scottish Government has published non-statutory guidance to assist public authorities, including those whose functions are of a public nature, with this.