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

3. Part 2 of the UNCRC Act

This section explains Part 2 of the UNCRC Act.

3.1 Introduction to Part 2 and overview of guidance

This section briefly introduces the intentions of Part 2 of the Act before providing an overview of the content of the subsections that follow.

As outlined above, the aim of Part 2 of the Act is to ensure that children's rights in Scotland are protected through the requirement (at section 6) for public authorities, including Scottish Ministers, not to act incompatibly with the UNCRC requirements (as defined in section 1 of the Act and explained in section 2.4 above). Part 2 of the Act also outlines legal remedies should they fail in their duties, and strengthens the powers of CYPCS and the SHRC to bring or intervene in legal proceedings in relation to potential breaches (further explained in section 3.6 below).

The Act not only places legal duties on public authorities but also intends to improve the culture of children's rights in Scotland. Non-statutory guidance on taking a children's human rights approach aims to support this shift by introducing how public authorities can build on their existing practice to secure better and further effect of the rights of children.

This guidance begins with definitions of specific terms within the Act (such as 'public function') and provides information about how the duty applies to the functions of public authorities. It also clarifies how the duty may apply in relation to the public, voluntary and independent sectors and includes a flowchart as well as a compatibility review framework. Both of these resources may be used by public authorities to consider when and how the duty may apply to their services and functions.

Further information is provided in associated documents. 'Clarification of inherent obligations of the UNCRC' includes an overview of some of the inherent obligations of the UNCRC, for example: terms such as 'progressive realisation' and 'evolving capacities' and how these can be understood in relation to the UNCRC requirements as defined by the Act. 'Sources to guide interpretation of the Act' highlights potential sources for interpretation of the UNCRC and its Optional Protocols in their international form, such as the General Comments and Days of General Discussion organised by the UN Committee on the Rights of the Child (CRC).

Public authorities may also wish to consult non-statutory guidance on taking a children's human rights approach (CHRA), which includes suggestions on how to facilitate participation of children in decision-making, considerations around inclusive communication, raising awareness of children's rights, budget allocation, and the potential benefits of using a Child Rights and Wellbeing Impact Assessment (CRWIA) tool. While there is no legal requirement for public authorities to follow these suggestions, this guidance was published to help promote good practice.

3.2 Definition of key terms

This section shares the definitions of key terms in the Act, to support organisations to determine whether the section 6 duty is applicable to them. The section 6 duty applies to those who meet the definition of a 'public authority'. Importantly, this definition includes those delivering 'functions of a public nature' and so can extend to private, voluntary and independent (PVI) organisations in certain circumstances. This section outlines the definitions of these key terms and the application of the section 6 duty to the private, voluntary and independent sector.

3.2.1 Definition of public authority

When one thinks of a public authority, typically what comes to mind is likely to be what might commonly be considered a 'core' public authority. These public authorities carry out functions which are clearly of a public nature (such as social care, housing, health and education, which are publicly funded). Many of these are listed authorities under section 19 of the Act and examples include local authorities, the police and health boards.

Section 6 (5)(a) states that, for the purposes of that section, the term 'public authority' includes, in particular:

(i) the Scottish Ministers,

(ii) a court or tribunal,

(iii) any person certain of whose functions are functions of a public nature'

The term 'person' in this instance takes its meaning from section 25(1) of the Interpretation and Legislative Reform (Scotland) Act 2010, and includes a body of persons corporate or unincorporated and a partnership constituted under the law of Scotland.

A 'public authority' therefore includes 'persons' who deliver functions of a public nature – as described below, this might include organisations one might not automatically think of as a public authority, e.g. private, voluntary and independent bodies (PVIs).

As noted above, in relation to article 2 of the Convention as set out in the UNCRC requirements, the table in section 2(3) of the Act contains a modification so that the reference in that article to States Parties is read as a reference to a more restricted class of public authority (modelled on the Scotland Act 1998), for reasons of legislative competence. This means Article 2, as contained in the UNCRC requirements, must be read and considered with that narrower application to a more restricted class of public authority.

It is important to note that public authorities act unlawfully if they act or fail to act in a way that is incompatible with the UNCRC requirements in connection with a relevant function (apart from specific exemptions).

There is extensive jurisprudence, such as in Regina v. Lambert [2002], under paragraph 114, on the meaning of 'act' in the context of the HRA which clarifies that it should be given a 'broad and purposive meaning'. Examples of 'acts' which may be covered by section 6(1) include recommendations, a preliminary decision (e.g. proposals made by local authorities which are put before the Government for approval), final decisions, advice (including general advice) and reports. While it may be useful to consider case law on the HRA, it is not necessarily authoritative as it ultimately relates to different legislation and a different human rights treaty.

3.2.2 Definition of 'functions of a public nature'

Public functions are generally understood to be functions performed for the collective benefit of the general public. The International Journal of Constitutional Law explains that an activity is public in nature 'if it is something that a private individual or organisation would not normally do.' For example, policing, social work, local council planning services and government policy making.

Section 6(6) of the Act clarifies that 'functions of a public nature' includes, in particular, functions carried out under a contract or other arrangement with a public authority. However, it should be noted that section 6(7) of the Act states that 'functions are not excluded from being functions of a public nature … solely because they are not publicly funded'. This makes it clear that the source of funding is not the determining factor in deciding whether a function is public or private in nature. It is likely that case law will play an important role in clarifying whether functions and acts are within or outwith the scope of the Act.

• ‘Core’ public authorities, (in other words, bodies all of whose functions are public and therefore do not fall under section 6(5)(a)(iii);
• Bodies who ‘become' public authorities for the purposes of section 6 because 'certain of' their functions are of a public nature (in accordance with section 6(5)(a)(iii)) - and their 'private acts' are excluded; and
• Bodies that are not public authorities at all and are not, therefore, subject to the Act.

The Act states under section 6(8) that:

“In relation to a particular act, a person is not a public authority by virtue only of subsection (5)(a)(iii) if the nature of the act is private.”

Therefore, if the nature of an act is purely private, the duty to act compatibly with the UNCRC requirements as defined by the Act does not apply to a body that would otherwise be a public authority by virtue of section 6(5)(a)(iii). Private acts are generally understood to be acts that are conducted by individuals for their own interests or profits and are therefore not under government control. The Act does contain some subsections (i.e. section 6(6) and (7)), that make it clear that the nature of the function performed rather than the characteristics of the body performing it are to be the primary consideration.

The section 6 duty will not apply to bodies that do not have any functions of a public nature. This recognises that the obligations under the UNCRC (as with other human rights frameworks) are placed on the State

Application to Private, Voluntary and Independent (PVI) Sector

As noted above, the Act specifies (in section 6 (6)) that functions carried out under contract or any other arrangement with a public authority are included in the definition of 'functions of a public nature':

“For the purposes of subsection (5)(a)(iii), 'functions of a public nature' includes, in particular, functions carried out under a contract or other arrangement with a public authority”.

It will ultimately be for the court to determine whether or not a function is 'public'. However, section 6(6) of the Act makes clear that where a person or body is (subject to section 6(8)) undertaking a relevant function, of a public nature, pursuant to a contract or other arrangement with a public authority, that person or body is a public authority for the purposes of the Act and therefore required to act compatibly with the duty at section 6(1) not to act in a way which is incompatible with the UNCRC requirements as defined by the Act. This is subject to the exclusion of private acts under section 6(8), as described above.

However, it should be noted that public authorities are not exempt from their section 6(1) duty not to act incompatibly with the UNCRC requirements as defined by the Act by virtue of 'contracting-out'. Both the privately contracted person or body and the contracting public authority must comply with the section 6(1) duty in respect of any relevant functions delivered under that contract or arrangement.

While not mandatory, public authorities may wish to include a clause in their contracts or other arrangements (such as grants) that specifies that the contractor must, in the performance of any relevant function included in the contract, act in accordance with relevant UNCRC requirements as defined by the Act.

Private, voluntary or third sector organisations may also carry out relevant functions of a public nature which are not publicly funded. Section 6(7) of the Act explains:

“Functions are not excluded from being functions of a public nature for the purposes of subsection (5)(a)(iii) solely because they are not publicly funded.”

It will be for PVI organisations to consider whether their functions may be 'relevant functions' for the purposes of section 6 of the Act. It is recommended that such organisations seek their own independent legal advice if in doubt.

3.3 Explanation of the duties on public authorities in Part 2, section 6

The Act places a duty on public authorities not to act incompatibly with the UNCRC requirements as defined by the Act only in relation to 'relevant functions' as defined in section 6(2) of the Act. As the UK has ratified the UNCRC, compliance is expected under international law obligations.

A children's human rights approach will support organisations to improve service delivery for children and young people; the Scottish Government published non statutory guidance on taking a children's human rights approach on 8 January 2024.

Section 6(1) places a duty on public authorities not to act incompatibly with the UNCRC requirements in schedule 1 of the Act in connection with a relevant function. This includes failures to act, that would result in an incompatibility with the UNCRC requirements as defined by the Act. The UNCRC requirements are explained in section 2.4 of this guidance.

This means that where a public authority has acted, or proposed to act in a way which is incompatible with the UNCRC requirements in connection with a relevant function, a court could find that it has acted unlawfully by breaching the section 6 duty under the Act.

Relevant Functions

Section 6 (2) defines 'relevant function':

“(2) In subsection (1), a 'relevant function' means a function that—

a) it is within the legislative competence of the Scottish Parliament to confer on the authority, and

b) is conferred by—

(i) an Act of the Scottish Parliament,

(ii) a Scottish statutory instrument originally made wholly under a relevant enabling power,

(iii) a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—

(A) originally made under the relevant enabling power, or

(B) inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or

(iv) a rule of law not created by an enactment.”

It sets out two tests, both of which need to be satisfied in order for a function to be a 'relevant function'.

Legislative Competence – section 6(2)(a)

The first test, set out in subsection (2)(a), is that the function could competently be conferred on the public authority in question by the Scottish Parliament (the limits of the Parliament's legislative competence are set out in section 29 of the Scotland Act 1998). To be within the competence of the Scottish Parliament, a function must not relate to a reserved matter. The UNCRC requirements in schedule 1 to the Act, as detailed at section 2.4 of this guidance, are of assistance here. The aspects of the articles of the UNCRC which are reserved are not included in the UNCRC requirements in the Act. The legal duty therefore does not apply to any reserved functions, but public authorities are encouraged to act compatibly unless the source of the reserved function prevents them from doing so.

Legislation – section 6(2)(b)

The second test, is that the 'relevant function' must be conferred by legislation or a rule of law of a type mentioned in subsections (2)(b)(i) to (iv) (legislation being the more usual way in which functions are conferred on public authorities). Essentially, the types of legislation listed in subsection (2)(b)(i) to (iii) are those enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation – so Acts of the Scottish Parliament (ASPs), Scottish statutory instruments (SSIs) made entirely under a power conferred by an ASP, and SSIs made partly under a power conferred by an ASP and partly under a power conferred by an Act of the UK Parliament. In the latter case, only functions conferred by provisions in the instrument which were made solely by virtue of the power conferred by the ASP, plus provisions subsequently inserted directly into the instrument by an ASP (or other subordinate legislation made under a power conferred by an ASP), are subject to the subsection (1) of the section 6 duty.

Functions conferred by common law – section 6(2)(b)(iv)

A 'rule of law not created by an enactment' means what is known as 'common law'. Common law refers to case law developed over time by decisions made by the courts – this can also be referred to as judicial precedent. Public authorities should seek their own independent legal advice in relation to how common law may impact upon how they should carry out their functions. When a public authority is carrying out a function derived from common law, which is also within the legislative competence of the Scottish Parliament, they will be required to not act incompatibly with UNCRC requirements as defined by the Act.

Legislation may amend other pieces of legislation; when it does, text inserted into one enactment by another enactment is generally considered to form part of the enactment into which it is inserted, rather than being considered to be part of the enactment which inserted the text. The definition of the section 6 duty proceeds on this basis and means that the duty does not apply to text inserted by ASPs or subordinate legislation made under powers in an ASP into UK enactments (such as UK Acts or subordinate legislation made under powers in a UK Act).

To help determine whether the duty applies, a public authority would need to identify whether the statutory function in question was enacted by the Scottish Parliament or the UK Parliament.

UK Act amendments to ASPs

As a result of this approach to statutory interpretation, amendments to ASPs by UK legislation are covered by the duty. However, to avoid affecting the UK Parliament's ability to make law for Scotland, provision is made to remove such amendments from the scope of the section 6 duty, if the UK legislation which makes the amendment is worded in a way that the authority is required or entitled to act incompatibly (as defined under Section 6(4)).

Secondary legislation

SSIs made using powers solely from ASPs are also covered by the duty.

SSIs made partly under a power conferred by an ASP and partly under a power conferred by an Act of UK Parliament are within the scope of the Act. However, only functions conferred by provisions which were enacted solely by virtue of the power conferred by the ASP, plus provisions inserted directly into the instrument by an ASP, are subject to the duty.

In summary, this means that:

• functions conferred by Acts of UK Parliament,
• statutory instruments made solely under powers conferred by Acts of the UK Parliament, and
• provisions of SSIs made under a power conferred by an Act of the UK Parliament are not subject to the duty

As functions in reserved areas are already excluded, the definition of 'relevant function' in relation to SSIs mainly serves, in practice, to exclude devolved functions created by or under the authority of the UK Parliament.

Summary of coverage in legislation

In summary, the duty will apply to devolved functions created by legislation of the Scottish Parliament and does not extend to devolved functions created by legislation of the UK Parliament. There is, however, no barrier to a public authority acting compatibly under all or any of their devolved functions, unless any UK enactment makes it unlawful to do so (in accordance with section 6(4)).

Acting compatibly under section 6

To meet the section 6 duty means not to act incompatibly with the UNCRC requirements as defined by the Act. Additional documents on the clarification of inherent obligations of the UNCRC and sources to guide interpretation of the Act provide assistance in how to approach this.

3.4 Flowchart and framework for reviewing compatibility with UNCRC requirements (section 6 duty)

Public authorities may choose to use these optional tools to support them to meet the section 6 duty:

a) The flowchart is to support understanding of application of the section 6 duty to your organisation and any particular function that you carry out. It can help guide public authorities to consider when carrying out a framework review might be particularly optimal/beneficial. It should not be used as a substitute for legal advice, which should be sought when seeking a legal view about application of the duty; and

b) The framework is to support public authorities to review the compatibility of any proposed or existing action/inaction with the UNCRC requirements as defined by the UNCRC Act

Please note that these tools do not assess the impact of decision-making on children's rights; a child rights and wellbeing impact assessment (CRWIA) should be used for that purpose.

Only the Scottish Ministers have a duty to undertake CRWIA, under section 14 of the Act. However, the Scottish Government has published CRWIA guidance for public authorities to support good practice and better or further effect of children's rights.

3.4.1 Flowchart

The purpose of the flowchart is to support understanding of application of the section 6 duty to your organisation and any particular function that you carry out. It can help guide organisations to consider when carrying out a framework review might be particularly optimal/beneficial.

Specifically, it will aid you in considering whether:

1) Your organisation is a public authority as per the Act;

2) The functions or acts undertaken by your organisation are considered to be of a public nature as defined in the Act; and

3) If the answer to either of the above questions is 'yes', is the function or act under consideration likely to be a 'relevant function' within the scope of section 6 of the Act.

Each of these questions will be explained in more detail below.

There are three possible final outcomes from this flowchart:

1) Yes, the section 6 duty is likely to apply and the function, service or act needs to be compatible with the UNCRC requirements as defined by the Act.

2) No, the section 6 duty is not likely to apply. However, given the UK has ratified the UNCRC and as such it sets out obligations in international law, public authorities may wish to adopt a children's human rights approach in keeping with this.

3) It is unclear if the section 6 duty applies. In this case, it is recommended that legal advice be sought in order to achieve clarity.

Using the decision-making flowchart

Refer to sections 3.2.1, 3.2.2 and 3.3 respectively to determine whether:

1) You are a public authority under the Act.

2) Your acts or functions are of a public nature.

3) A function is relevant in accordance with the wording of section 6 of the Act.

If the outcome of the flowchart indicates that the section 6 duty applies, users are encouraged to use the framework in relation to the function, policy or act against all of the UNCRC requirements as defined by the Act.

3.4.2 Framework

The framework consists of a three stage process:

Stage 1 - Preparation phase;

Stage 2 - The review; and

Stage 3 - Outcomes and actions.

Each step contains a number of suggestions and prompts for public authorities; these should be utilised and adapted as may suit each type of body and each type of function under review. Whilst at the discretion of each public authority, some element of legal advice may be required before, during or after the process.

Framework - Summary of steps public authorities may wish to consider

Stage 1 – Preparation

• Are required resources and planning in place for undertaking the review?
• Do you have sufficient data and relevant information available to complete the review?
• Have you determined that the proposed or existing action/inaction is or would be in relation to a relevant function?

Stage 2 – The review

Reviewing the proposed or existing action/inaction against the UNCRC requirements in the Act.

Stage 3 - Outcomes and actions

Action resulting from your compatibility review:

• If the review has identified any potential problems or aspects where you are unsure about compatibility, what action needs to be taken to either clarify or mitigate these problems?
• What are the consequences of these actions or processes?
• Who needs to know the outcome of your compatibility review?
• If the decision is taken to communicate the outcome externally to your organisation, how best can this be communicated?
• If external communication is undertaken, how will children and young people and their carers be informed in an accessible and child friendly manner?

Keeping new child rights development under review:

• Has new case law in Scotland affected any of the functions, services, or policies that you deliver?
• Has there been new information from the Committee on the Rights of the Child (CRC) that relates to functions you deliver, such as the Concluding Observations on State Reports, General Comments or Days of General Discussion?
• If the decision has been taken to adjust functions, how is this being communicated to the people who need to know?

Who are these tools for?

This framework can be used by all public authorities. The Act mandates public authorities, including Scottish Ministers, courts and tribunals and 'any person certain of whose functions are functions of a public nature' to not act incompatibly with the UNCRC requirements as defined by the Act. The meaning of the term 'public authority' has been drawn intentionally wide in the Act so as to include not only those core public authorities which routinely provide public services, but also other bodies when they exercise functions of a public nature.

Please refer to section 3.2 of this guidance for definitions of key terms in the UNCRC Act, including, 'functions of a public nature' and 'public authority'.

The flowchart is a supplementary tool to help aid understanding of the section 6 duty and its application.

This should not be used as a substitute for legal advice, which should be sought when seeking a legal view about application of the duty.

When deciding who is best placed to use these tools, a public authority may wish to consider the following:

1) Those using the framework to carry out a review have an understanding of child rights and the UNCRC requirements as defined by the Act (see section 2.4 of this guidance);

2) In the process of awarding a contract or other arrangement, both bodies collaborate to use the framework, i.e. those who hold the original obligation to deliver the service of a public function and those delivering the service;

3) Those undertaking the review have insight about the function, service or policy area under consideration;

4) It will be beneficial to work in partnership with other public authorities who deliver the same or similar functions, to support the sharing of learning and to reduce duplication of effort, where possible;

5) Where different groups or individuals within the public authority are undertaking separate reviews, they communicate frequently to ensure consistency of application and understanding; and

6) Upon completion of a review, it would be beneficial to agree how the public authority and provider will routinely revisit it once operational delivery of the service begins.

These steps may help ensure that the framework is used to its maximum potential. The skills required to carry out an effective review will be further developed within and across public authorities as the processes becomes embedded and familiar.

3.4.3 What does 'compatibility with the UNCRC requirements' mean?

The UNCRC requirements as defined by the Act are explained at section 2.4 of this guidance. In legal terms, 'acting compatibly' refers specifically to the legal requirement to act in a manner that is consistent with something else, in this instance to act in a way which is consistent with the rights as outlined in the UNCRC requirements as defined by the Act.

Compatibility, in a legal context, means interpreting and giving effect to the law in a way which is as close to the UNCRC requirements as defined by the Act as possible. In the context of human rights conventions and treaties, a general rule is that articles of a convention should be interpreted honestly (in good faith) in line with the 'common sense meaning' of the terms of the UNCRC within their context and in light of the purpose of the UNCRC^[1]. A 'common sense meaning' of a term can refer to the usual understanding based on the original language used in the text, but can also be adapted and interpreted by the courts to include current meanings that fulfil the intention of the UNCRC^[2].

Points to note

In line with the Scottish Ministerial Code and as a responsible government, Scottish Ministers are already committed to the principles of the UNCRC and to complying with the UNCRC in devolved areas. As such, all legislation in devolved areas should already be compliant with the UNCRC and it is the responsibility of Scottish Government to ensure that legislation in devolved areas is compliant with the UNCRC requirements as defined by the Act.

The section 6 duty is to ensure that public authorities comply with the UNCRC requirements included in the Act in relation to relevant functions. The duty is not to review either Scottish or UK legislation for compatibility, as this is the responsibility of Scottish Ministers. Should public authorities become aware of issues of incompatibility in legislation, they should notify Scottish Government by raising this with Scottish Government policy team with whom they usually engage as well as alerting the Scottish Government's Children's Rights Unit by emailing UNCRCIncorporation@gov.scot.

3.4.4 Stage 1: Preparation

When deciding whether to undertake a compatibility review you may wish to use the flowchart at 3.4.1 and consider the following questions. This list is not exhaustive; there may be other questions that apply in individual circumstances:

1. Is the function in relation to a reserved matter in accordance with the Scotland Act 1998?

2. Is the function conferred on a public authority by common law or by legislation enacted by the Scottish Parliament?

3. When is the best time to conduct the review? Ideally, and particularly in regard to a proposed function, a review would be carried out as early as possible and fully embedded during the decision-making process. This will allow for early identification and addressing of problems, for example by modifying proposals.

4. What information and evidence do you need in order to conduct the review thoroughly?

5. Who else should be involved in conducting the review?

6. How will you secure specific expertise on policy-related issues, or in relation to legal matters in order to conduct the review?

Gathering evidence and data that supports your review

Once public authorities have determined whether the function is in relation to a reserved matter in accordance with the Scotland Act 1998 or conferred by common law or by Scottish legislation, they will need to gather evidence which will inform a compatibility review. This section covers two steps required to gather appropriate evidence and data. When considering these steps, please note that children merit special protections under UK General Data Protection Regulation (GDPR):

“Children require specific protection with regard to their personal data as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data.”

Therefore, it will be especially important for public authorities to consider data protection law when collecting children's data. In particular whether data can be processed lawfully, fairly, and transparently. Public authorities must consider all of the data protection principles, but particularly data minimisation and purpose limitation. If public authorities intend to process personal data as part of this work, they will need to refer to the guide to lawful basis, to identify a lawful basis to do so in advance.

When considering how to collect data on different groups of children, please refer to guidance on special category data. Categories for disaggregating data such as race, religion, sex and sexual orientation are classed as 'special category data' under data protection law. Data controllers in public authorities will need to collect this data carefully, manage any risks associated with it and ensure they can identify appropriate additional conditions for processing any special category data collected.

The Information Commissioner's Office provides guidance on the principles of lawfulness, fairness and transparency. Fairness and transparency will be key for authorities to consider when processing or deciding to process children's data. A public authority should consider how it will explain to children why they need to collect additional personal data, and what they will do with it, in a way which children can understand.

Step 1.A: Identifying what evidence is required and whether it is accessible

To conduct the review, it will be necessary to identify what evidence is required in order to assess the compatibility of any proposed or existing action/inaction with the UNCRC requirements as defined by the UNCRC Act, and whether or not that evidence is accessible. Public authorities must also consider guidance on the principle of data minimisation and determine in advance how much data is needed to fulfil the purpose data is collected for. Any data that a public authority processes (or intends to process) must be adequate, relevant, and limited to what is necessary.

Relevant information can exist in the form of annual or other reports produced by your organisation such as Children's Services Planning Reports, routine monitoring and evaluation data collected, research that has been published on a specific issue or child right, and civil society reports, amongst others. However, please note that while a public authority may collect data from all stages of children's lives for specific purposes, using this data to ascertain how well it is complying with the UNCRC is a new purpose. Therefore, public authorities may need to undertake a certain amount of analysis around whether the data currently being collected can be used for this. The guide to purpose limitation in data protection law, explains that data controllers can only use personal data for a new purpose if this is compatible with the original purpose it was collected for, the controller gets consent, or the authority has a clear obligation or function set out in law. Controllers will need to ensure the new purpose is either compatible with the original purpose data was collected for, or it has a clear obligation or a function set out in law to re-purpose any data that it has collected.

Questions that could guide this process are:

1. What information do you need to understand how the proposed or existing action/inaction relates to child rights?

2. What information do you need to know whether this action/inaction is compatible with the UNCRC requirements as defined by the Act?

3. Where is the information held, can it be accessed and is there a lawful basis for its use e.g., anonymised data from other public authorities, Scottish Government, non-governmental organisations (NGOs) or civil society groups, academic researchers. Has the UN Committee on the Rights of the Child (CRC) published reports about these issues on their websites or through other means?

Step 1.B: What evidence already exists? Is it necessary to collect missing information?

In the interests of efficiency and to avoid duplication, the second step is to determine what evidence is already available whilst applying purpose limitation in data protection law. The following questions may help guide you in ensuring that you capture as much of the available and appropriate data as possible:

1. Is there relevant qualitative and quantitative data that can be lawfully used on the policy area and/or the specific child rights that are affected?

2. What data is missing that may need to be collected to complete the review and how will you ensure you have informed consent for its use?

Once the data has been collected and analysed in line with the special protections children merit under UK GDPR, it will be possible to advance the review as described in the step below.

3.4.5 Stage 2: The review

Public authorities may wish to use the following table as a guide when carrying out a review. It sets out, in a hyperlinked list, all the articles and Optional Protocols that form part of the UNCRC requirements as defined by the Act (Annex A). Summary titles for each Article have been added to aid the user:

	Compatible	Not compatible	Unsure
Article 1 Definition of the child
Article 2 Non-discrimination
Article 3 Best interests of the child
Article 4 Implementation of the Convention
Article 5 Parental guidance and a child's evolving capacities
Article 6 Life, survival and development
Article 7 Birth registration, name, nationality, care
Article 8 Protection and preservation of identity
Article 9 Separation from parents
Article 10 Family reunification
Article 11 Abduction and non-return of children
Article 12 Respect for the views of the child
Article 13 Freedom of expression
Article 14 Freedom of thought, belief and religion
Article 15 Freedom of association
Article 16 Right to privacy
Article 17 Access to information from the media
Article 18 Parental responsibilities and state assistance
Article 19 Protection from violence, abuse and neglect
Article 20 Children unable to live with their family
Article 21 Adoption
Article 22 Refugee children
Article 23 Children with a disability
Article 24 Health and health services
Article 25 Review of treatment in care
Article 26 Social security
Article 27 Adequate standard of living
Article 28 Right to education
Article 29 Goals of education
Article 30 Children from minority or indigenous groups
Article 31 Leisure, play and culture
Article 32 Child labour
Article 33 Drug abuse
Article 34 Sexual exploitation
Article 35 Abduction, sale and trafficking
Article 36 Other forms of exploitation
Article 37 Inhumane treatment and detention
Article 38 War and armed conflicts
Article 39 Recovery from trauma and reintegration
Article 40 Juvenile justice
Article 41 Respect for higher national standards
Article 42 Knowledge of rights

First optional protocol on the involvement of children in armed conflict

	Compatible	Not compatible	Unsure
Article 4
Article 5
Article 6
Article 7

Second optional protocol on the sale of children, child prostitution and child pornography

	Compatible	Not compatible	Unsure
Article 1
Article 2
Article 3
Article 4
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11

When reviewing against the articles and optional protocols, you will need to read the wording carefully to understand the obligations they impose on public authorities in relation to child rights. Some of the provisions are clear, for example, Article 7 which refers to every child's right to have a birth certificate. In other instances, you may need to consider the implications of the meaning or intention behind the wording (for example Articles 5 and 14 refer to the 'evolving capacities of the child'). Section 3.4.3 of this guidance, and additional documents on the clarification of inherent obligations of the UNCRC and sources to guide interpretation provide some explanations which may be helpful in this regard. You may also wish to seek independent legal advice.

Assurance & accountability: reasonableness, proportionality, and seeking legal advice

If the above compatibility review has been completed and there are areas of uncertainty about whether an in/action is compatible with the UNCRC requirements as defined by the Act, and therefore, the public authority is at risk of not being compliant with the section 6 duty, the public authority is strongly encouraged to seek legal advice, and where required, to effect plans to mitigate against the risk of non‑compliance. Whilst this recommendation is in relation to any ticks in the columns 'Incompatible' and 'Unsure' in the above table, this would not provide certainty that anything assessed as 'compatible' is so. This framework facilitates a review of compatibility but cannot provide assurance that the outcome of an individual assessment is accurate.

There are two factors that you may wish to consider in deciding whether to proceed with the decision to implement a measure or function: the principle of reasonableness, and proportionality of impact.

The principle of reasonableness

The principle of reasonableness concerns the decision as well as the way in which it was reached. The courts have recognised that when two different reasonable persons have the same set of facts, they may arrive at different decisions – according to the Judge Over Your Shoulder (JOYS), 'a range of lawful decisions may lie within the discretion of a decision maker.' When making a decision, it must not be so unreasonable that no reasonably acting person could have made it. A decision could be deemed to be unreasonable if the decision-maker took account of irrelevant factors or relied on inaccurate information. This underscores the importance of having accurate information available which has been gathered through consultation with relevant stakeholders as well as through other means. While a decision can be considered to be reasonable, a court may not necessarily reach the same decision. In all instances where such matters arise, it is advisable to seek legal advice.

Proportionality of impact

When considering whether a proposed or existing action/inaction is compatible with the UNCRC requirements as defined by the Act, proportionality may be a relevant factor to consider. In human rights cases proportionality can mean considering:

• whether what you are trying to achieve is important enough to justify interfering with a UNCRC right
• whether what you are deciding to do makes sense in relation to what you are trying to achieve
• whether you could decide to do something else that would interfere less with a UNCRC right, and still achieve what you are trying to do and
• whether you are striking a fair balance between the effects of your decision on a UNCRC right and what you are trying to achieve

The proportionality of a decision can be reviewed by courts if a decision is challenged. The courts can look at whether the decision to interfere with a right is justified and proportionate. The circumstances of the case will influence how different options or decisions will be weighed against one another in determining whether the most proportionate decision was taken.

We do not yet know how the courts will approach the issue of proportionality in relation to the UNCRC requirements included in the Act. However, under the Human Rights Act 1998, the concept of proportionality has been drawn from the European Court of Human Rights case law in relation to the ECHR rights, which has resulted in distinguishing between three different kinds of rights: absolute rights, limited rights and qualified rights. The information below is based on the Equality and Human Rights Commission's advice on What are Human Rights and the Citizen's Advice guidance, When can a public authority interfere with your human rights?:

• Absolute rights: these rights can never be interfered with or limited in any way. Examples include rights such as not to be tortured or treated in an inhuman or degrading way and the right to hold religious beliefs.
• Limited rights: these rights can only be restricted in specific circumstances, for example, the right to personal freedom can be limited if someone is detained following a criminal conviction or under mental health legislation and the correct procedure was followed.
• Qualified rights: Some rights can be qualified if it is in the interest of the wider community or to protect other people's rights. Examples of these rights are the right to privacy, freedom of expression and freedom of assembly, amongst others. The public authority must be able to show that it has a legitimate reason to do so, for example the protection of other people's rights, national security interests, the prevention of crime or for public safety, amongst others.

In existing Human Rights law, a public authority can only interfere with a qualified right if it is allowed under the law, there is a legitimate reason to do so, and the response is proportionate. 'Proportionate' refers to a fair and balanced response that is not greater than what is absolutely necessary to achieve the legitimate aim. The degree of weight or respect that should be given to an assessment of what is proportionate will depend upon the context as well as the information available. In relation to the Act, the courts will decide whether or not the rights contained within the Act are subject to this form of distinction, and if so, how those distinctions will be applied.

Proportionality may thus be relevant to the assessment of the UNCRC requirements as defined by the Act but this will ultimately be determined through case law by the courts. For public authorities it will be important to keep records of decisions made as well as the grounds upon which they were made for such eventualities.

Stage 3: Outcomes and Actions

The final step in the framework involves assessing if any action needs to be taken as a consequence of the review conducted under Step 2, as well as considering to whom you may wish to communicate the findings of your review.

Step 3.A: Mitigation and action plans: what to do if review identifies concerns

If you have undertaken Stage 2 above and there are concerns about the compatibility of the proposed or existing action/inaction with the UNCRC requirements as defined by the Act, it is necessary to assess the nature of these concerns and to take appropriate action. Some examples of the types of concerns that may occur are listed below but this list is not exhaustive:

Lack of clarity: there may be instances where it is unclear if a proposed or existing action/inaction is compatible with the UNCRC requirements as defined by the Act. This may be due to a lack of sufficient information or evidence and it may be necessary to seek this out in order to assess whether this lessens the concerns. If this does not clarify the issues deemed to be potentially incompatible with the Act, further legal advice may be required.

Choice of options: there may be situations where public authorities could discharge their duties to provide various services or functions in a number of ways. Whilst public authorities have discretion on which option to choose, it may be helpful to consider the available options with the outcome of the review in mind, as well as which options are likely to have a positive impact on children.

Summary questions

Some summary questions are suggested that you may wish to consider:

• Is the proposed or existing action/inaction the best way of achieving your aims, considering children's rights? If not, can the policy or measure be changed in ways that improve or give further effect to children's rights?
• Are there conflicting rights that may need to be balanced with one another? If so, can decisions to limit or restrict a specific right be based on the principles of reasonableness and proportionality (see Stage 2 above)?
• Are there any barriers to acting compatibly with the UNCRC requirements as defined by the Act?

Step 3.B: Keeping your measures under review: new case law and UNCRC Committee developments

Once they have reviewed existing functions and have taken steps in response to that review, public authorities may wish to keep their policies and measures under review in order to accommodate changes in legislation and emerging children's rights issues. Specifically, they could review these in light of:

• new case law arising from legal proceedings brought under the UNCRC Act
• as appropriate, the sources of interpretation listed in Section 4(2) of the Act, e.g. recommendations following Days of General Discussion, Concluding Observations and General Comments by the UNCRC Committee

3.5 Remedies for unlawful acts (sections 7 to 10)

Section 7(1)(a) of the Act enables a person who believes that a public authority has acted, or proposes to act, in a way that is incompatible with the UNCRC requirements as included by the Act, 'to bring proceedings against the authority under this Act in any civil court or tribunal'. This includes failures to act which result in an incompatibility with the UNCRC requirements as defined by the Act. It should be noted that, as explained in 3.2.1 of this guidance, 'public authority' includes 'any person certain of whose functions are functions of a public nature.'

This will enable children and their representatives who believe that a public authority's action, proposed act or failure to act is incompatible with the UNCRC requirements as defined by the Act, to seek legal redress through the courts. It will provide a route to achieving justice for children and their families. While the preference is to resolve disputes and complaints without the need to go to court (see sections 4.6.1 and 4.6.2 of non-statutory guidance on taking a children's human rights approach, on child friendly complaints procedures and advocacy), litigation can play an important role in realising child rights and also has the potential more broadly to positively influence practice, policy and the law.

It is recognised that for many children seeking justice via a court or tribunal would be a daunting prospect and may not be their preferred option. This may be particularly difficult for children whose rights are at risk, including but not limited to female children; disabled children; minority ethnic children, particularly Gypsy/Traveller children; children living in poverty (including those with entitlement to free school meals); LGBTI children; children with care experience or 'on the edge of care'; children with a parent/carer in the armed forces; child migrants, asylum seekers and refugees; children at risk of significant harm, with a child protection plan; children with additional support needs; children (and/or their parents) who are experiencing poor physical or mental health; children experiencing disadvantages, particularly problem alcohol or drug use amongst family members, domestic abuse or bereavement; children who require support at times of key transitions; and children in the justice system or in conflict with the law.

The child friendly complaints handling process guidance of the Scottish Public Services Ombudsmen (SPSO) gives consideration to how best to support children and their caregivers to potentially resolve complaints before these are lodged through the judicial system. However, there is no requirement for a child to undertake or complete a complaints process before accessing the courts.

It is important to be aware that, once a child has turned 18, the clock will start in relation to the Judicial Review time limits (see Proceedings for unlawful acts (section 7) below).

The Act contains four sections that contain the processes for seeking a remedy:

1. section 7 ('Proceedings for unlawful acts')

2. section 8 ('Judicial remedies')

3. section 9 ('Child's view on the effectiveness of reliefs etc.')

4. section 10 ('Restriction on proceedings in respect of judicial acts')

Each section will now be explained in turn with an emphasis on the implications this may have for public authorities.

Proceedings for unlawful acts (section 7)

A person can challenge actions, proposed actions or failures to act that breach the UNCRC requirements as defined by the Act through the courts in respect of such acts that take place after 16 July 2024.

Under section 7(1)(b), when read with section 7(4), the UNCRC requirements may be relied upon by a person in proceedings brought by a public authority whenever the act took place, even if the alleged incompatible act took place before 16 July 2024. In other words, the UNCRC requirements can be relied upon in a ‘defensive’ capacity, but only in these circumstances.

Children are in the process of growing, developing and understanding and therefore may not have capacity or access to raise legal proceedings. This is particularly so for children whose rights are at risk, including those with additional needs or those experiencing violence, abuse and trauma.

Judicial Review proceedings, which may be used to raise a challenge about a public authority being alleged to have acted incompatibly with the UNCRC Act are generally subject to a three month ‘time bar’ – i.e. proceedings must be raised within three months from the date on which the grounds giving rise to the application first arose, per section 27A(1)(a) of the Court of Session Act 1988. This law has been amended in respect of challenges raised under section 7(1)(a) of the UNCRC Act to provide that “any time during which the person by or on whose behalf the application was made was under the age of 18 is to be disregarded”. This means a claimant who wishes to bring proceedings for a breach under the UNCRC Act can do so at any point during their childhood.

Once a child turns 18, the usual three month time bar for raising Judicial Review proceedings will stand, although section 27A(1)(b) can allow a court to exercise some discretion in that respect – in that it can consider an application received after that date, within “such longer period as the Court considers equitable having regard to all the circumstances”.

Section 7(9) provides that the proceedings must be brought within a year of the act complained of taking place (although, in accordance with section 7(11), in calculating that one year period, any time during which the child was under 18 is to be disregarded). But - this is also subject to section 7(10), which says that if the court proceedings require any stricter time limit to be met, then the proceedings must be brought within that shorter time period. (This would include Judicial Review proceedings and their time limit of three months).

Finally, section 7(12) provides some further discretion for the court, by allowing it to disregard the year time limit at section 7(9) if it considers it equitable to do so.

As actions can be brought during the period whilst a claimant is a child, this means that proceedings could be brought against public authorities for a lengthy period of time after an alleged unlawful act took place. Public authorities need to be aware of this possibility and may wish to consider any implications for their record and information management systems. It would be advisable to maintain a robust audit trail in relation to decision-making and service delivery in a way that is compatible with children's special protections under UK General Data Protection Regulation and the UNCRC requirements as defined by the Act.

Judicial remedies (section 8)

Courts or tribunals may grant such remedy or relief within its powers that it considers 'effective, just and appropriate' on finding that a public authority has acted, or proposed to act, incompatibly with the UNCRC requirements as defined by the Act (or failed to act which has resulted in an incompatibility with the UNCRC requirements) and so unlawfully under section 6(1) of the Act (section 8(1)). The maximum disposals available to each court or tribunal (i.e. whether or not it may award damages in civil proceedings – section 8(2)) will depend on the existing specific rules by which it is governed. The Court of Session (which is Scotland's highest civil appeal court) has unlimited jurisdiction in respect of claims.

The court or tribunal, in deciding whether to grant damages and the quantification of damages (if applicable), would be required to consider whether the award would be necessary (and if so, the amount) to provide 'just satisfaction' to the claimant (section 8(3)) in addition to any court rules pertaining to that court.

Child's view on effectiveness of reliefs (section 9)

In so far as it is practicable to do so, children must be given the opportunity to express their view on the effectiveness of any proposed relief, remedy or order in a manner that the child prefers (section 9(1)(a)(i)) or that would be suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference (section 9(1)(a)(ii)).

The court or tribunal must have regard to any views expressed by the child, taking into account the child's age and maturity (section 9(1)(b)). The court or tribunal is not required to comply with section 9(1) if it is satisfied that the child is not capable of forming a view (section 9(2)), however, the child is to be presumed to be capable of forming a view unless the contrary is shown (section 9(3)).

Restrictions on proceedings in respect of judicial acts (section 10)

For the purposes of the Act, courts and tribunals are included in the definition of public authorities, and they are bound by the section 6 duty not to act incompatibly with the UNCRC requirements as defined by the Act. 'Judicial act' is defined by section 10(4) as a judicial act of a court or tribunal, including an act done on the instructions, or on behalf, of a judge or a member of a tribunal. Judicial acts may be challenged on the basis of an alleged section 6(1) unlawful act in certain circumstances, by way of an appeal, or in the Court of Session (including on an application to its supervisory jurisdiction if applicable) (sections 10(1)(a) – (c) and (2)).

No damages could be awarded against a court or tribunal if the judicial act which is being challenged was done in 'good faith' (section 10(3)).

3.6 Powers for the Commissioner for Children and Young People Scotland and the Scottish Commission for Human Rights to bring or intervene in proceedings (sections 11 and 12)

The Act also makes provision supplementing the existing powers of the Children and Young People's Commissioner Scotland (the 'CYPCS') and the Scottish Commission for Human Rights (the 'SHRC') to enable them to raise or intervene in proceedings under the Act.

This is to strengthen the SHRC's and CYPCS's existing functions, providing the power to bring litigation, with a view to ensuring that incompatibilities can be identified and brought to a court or tribunal, if necessary.

Section 11 of the Act amends the Commissioner for Children and Young People (Scotland) Act 2003, to give the CYPCS the power to intervene in court proceedings in which a person claims that a public authority has acted or proposes to act unlawfully under section 6(1) of the Act. Section 12 amends the Scottish Commission for Human Rights Act 2006 to give the SHRC the same powers to intervene in such proceedings.