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

Annex A. Clarification of conceptual aspects of the UNCRC

The UNCRC, as an international treaty, lays down common standards for the rights of all children across the globe. Given its international status, the Convention also takes into account the different cultural, social, economic and political realities of individual States Parties, so that each State may seek its own means to implement the rights common to all children.

In this section, central concepts of the international Convention will be explained to assist public authorities in Scotland when considering their duty to act compatibly with the UNCRC requirements under the Act. It is important to keep in mind that these concepts apply, at the international level, to States which are party to the Convention, and are not definitive or authoritative as to how the UNCRC requirements in the Act will be interpreted in Scots law as applying to public authorities. While they may provide guidance, these concepts can be interpreted differently across different audiences, and there are many sources which may assist in further understanding and interpreting them. This section is therefore not intended to be a definitive or authoritative source but instead aims to provide useful guidance.

In addition, while the Convention refers to responsibilities and duties of “State Parties”, such references in the UNCRC requirements in the Act are to be read as including public authorities.

A.1 Four general principles of the Convention

There are four articles in the Convention which are known as the “General Principles”. These assist in interpreting all the other articles and can play a fundamental role in realising the rights in the Convention for all children. These are also useful when considering how to give practical effect to taking a rights-based approach. The General Principles include:

• non-discrimination (Article 2)
• best interests of the child (Article 3)
• right to life, survival, and development (Article 6)
• right to be heard in decision-making (Article 12).

Children’s civil, political, economic, social and cultural rights are expressed within the first 42 articles of the Convention, and all articles have equal status. Therefore, whilst the General Principles are a useful lens through which to consider the rights of children, they should not be considered paramount or in any way imply a hierarchy of rights.

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.

Article 2: Non-discrimination

The obligation to treat all children equally is expressed in Article 2 which states:

“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members”.^[12]

It should be noted that this Article includes both direct and indirect discrimination. Direct discrimination occurs where a person is treated unfairly compared to others in the same situation because of a protected characteristic, for example sex or disability. An example of this would be a selective school imposing a higher pass mark for applicants from an ethnic minority background, or to girls. This would be direct race or sex discrimination.^[13] Direct discrimination can also occur where a person is treated unfairly because they are linked or associated to another person, for example a parent or carer with a protected characteristic. An example of this would be if a child is treated unfavourably because their parents are in a same-sex relationship. This would be discrimination by association because of the parents’ sexual orientation.^[14]

Indirect discrimination occurs where a policy, rule or criterion applies to everyone but puts a particular group with a protected characteristic at a disadvantage. An example of this would be where a school does something which applies to all children, but is more likely to have an impact on disabled children; for instance, a school only allows pupils to go on a cultural trip abroad if they have more than 95 per cent attendance. This does not take into account instances where a pupil with a long-term medical condition has missed a lot of school for health reasons and is told they cannot go.^[15]

Article 3: Best interests of the child

Article 3 states that:

1. “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

The best interests principle and its interpretation is explained in General Comment 14 which defines it as a threefold concept:

1. As a right: This refers to the right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake. This should also translate into a guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general.

2. As a principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for such an interpretation.

3. As a rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.^[16] Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision should show that the right has been explicitly taken into account. This may take the form of showing how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.

It may also be useful for public authorities to consider how this article applies in relation to issues not directly related to the provision of services to children, as children’s interests may be affected by decisions and activities that are not ostensibly ‘about’ them in the first instance.

Article 6: Right to life, survival and development

Article 6 states that:

1. “States Parties recognise that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.”

The right to life has been understood to refer to both a civil and political as well as an economic, social and cultural right.^[17] The interpretation of the right to life as a civil and political right provides the right to be safeguarded against arbitrary killing and the “entitlement to be free from acts and omissions intended or expected to cause their unnatural and premature death”.^[18]

As stated earlier, the Convention articles are indivisible (section 3.1) and should be read in conjunction with the guiding principles and substantive rights within the Convention. In relation to the right to survival and development, General Comment 7 explains that this can only be implemented in a holistic manner, through the enforcement of all other provisions of the Convention, including “rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment, education and play”^[19] (articles 24, 27, 28, 29 and 31). The right to ‘development’ in this context is not defined in the Convention but the Committee has stated that States Parties to the Convention should interpret the term as a “holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development”.^[20] The principle of ‘maximum available resources’ is discussed further in section A.4 below.

Article 12: Views of the child

Article 12 states that:

1. “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

This article has often been understood to refer to the right of children to participation. It addresses issues pertaining to the social and legal status of the child, seeking to ensure that children are firstly able to express their opinions on matters that affect them, and secondly, for those children who are capable of forming their own views, to have these views given due weight in accordance with the age and maturity of the child. General Comment 12 points out that the expression of views generally forms part of “ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes”. ^[21] The concept of participation is understood as the inclusion of children in decision-making being the starting point for an exchange between children and those responsible for the development of policies, programmes and measures in all relevant contexts of children’s lives.

The CRC Implementation Handbook^[22] stresses the importance of a wide interpretation of Article 12, including the phrase “in all matters affecting the child.” It explains that in the initial working group drafting the provision, the group considered a list of matters affecting the child and decided matters “should not be subject to the limits of a list, and therefore the list ought to be deleted” (2007:155).

In complying with their duties under the Children and Young People (Scotland) Act 2014, Scottish Ministers must take such account, as they consider appropriate, of any relevant views of children of which the Scottish Ministers are aware. When the UNCRC Act becomes law, both Scottish Ministers and public authorities will have a duty not to act incompatibly with Article 12 of the UNCRC, as incorporated. General Comment 12 gives more information about this article, including in specific types of decisions such as separation of parents, custody, care and adoption and health care. The Committee makes a distinction between the right to be heard as an individual child and the right to be heard as applied to a group of children (e.g. a class of school children, the children in a neighbourhood, the children of a country, disabled children, or girls).

Paragraph 2 of Article 12 refers to the right, in particular, for children to be heard in any judicial and administrative proceedings affecting them, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of national law. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, proceedings relating to social security, separation from parents, custody, care and adoption, children in conflict with the law, child victims of physical or psychological violence, sexual abuse or other crimes, amongst others. Typical administrative proceedings include, for example, decisions about children’s education, health, environment, living conditions, or protection.

A.2 Respecting, protecting and fulfilling children’s rights

In international law, requirements on the State in relation to human rights are expressed differently in various human rights treaties. In order to categorise the different types of human rights obligations, they are sometimes organised under three headings according to the action the State must take: to respect, to protect and to fulfil human rights. The following diagram from the Office of the United Nations High Commissioner for Human Rights (OHCHR) explains this more fully:^[23]

All three concepts are crucial for the full realisation of rights and may pertain to different aspects of certain rights. An example from the right to health demonstrates these differences:

Respect: the State must not deny access to health facilities on a discriminatory basis.

Protect: the State must control the quality of medicines marketed in the country by both public or private suppliers.

Fulfil: the State must facilitate the enjoyment of the right to health by, for example, establishing universal vaccination campaigns for children.^[24]

A.3 Progressive realisation

Public authorities may find it useful to consider the international legal concept of “progressive realisation” when reflecting on how best to fulfil their duties under the Act. Under the Act, public authorities will have a duty to not act in a way which is incompatible with the UNCRC requirements as set out in the Schedule to the Act, however, it is not yet known how the term “progressive realisation” will be interpreted in the context of domestic legislation.

The concept of “progressive realisation” in the international Convention refers to the obligation on the State to take steps towards the full realisation of children’s rights, using available resources to a maximum extent. The concept has been interpreted by the CRC as applying, to Articles 4 and 24-32 of the Convention.

Article 4 of the Convention states that, States are required to “undertake all appropriate legislative, administrative and other measures to implement the rights recognised in the Convention”. This refers to the immediate duties which apply to the civil and political rights within the Convention. Article 4 also specifies that in regard to economic, social and cultural (ESC) rights, States must “undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation”.

Central to this concept in international law is that progress must be made over time towards the full realisation of these rights, in recognition that this process can be hampered by a lack of resources and may only be achieved over a period of time.^[25] States’ plans to take action to improve child rights realisation are an important mechanism for showing progress and are viewed in the light of the resources available to them. The term ‘resources’ includes not only financial means but may also refer to human or organisational resources.^[26]

Progressive realisation has sometimes been interpreted to mean that States do not have to fully implement children’s rights until they have sufficient resources to do so. This is not an interpretation supported by the CRC. The responsibility on States to take appropriate steps is understood in international law as involving constant efforts to improve the enjoyment of children’s rights.

A lack of resources should therefore not be used by the State to justify inaction or indefinite postponement of measures to implement children’s rights. This means that, while their full realisation may be achieved progressively, steps towards that goal must be taken within a reasonably short time. Such steps should be deliberate, concrete and targeted as clearly as possible, using all appropriate means.

The OHCHR has provided some examples of steps that States could take towards progressively realising rights in line with international requirements.^[27] It is important to keep in mind that these examples are not definitive or authoritative as to how the UNCRC requirements in the Act will be interpreted in Scots law as applying to public authorities. However, public authorities may wish to take these examples into account when considering their duty to not act incompatibly with the UNCRC requirements under the Act:

• Assessing the current state of enjoyment of children’s rights, including ensuring adequate mechanisms to collect and assess relevant and suitably disaggregated data;
• Formulating strategies and plans, incorporating indicators and time bound targets, which should be realistic, achievable and designed to assess progress in the realisation of children’s rights;
• Adopting child rights-based practices and policies, and providing adequate resources to put the plans and strategies into practice;
• Regularly monitoring and assessing the progress made in the implementation of the plans and strategies;
• Establishing or utilising existing complaints mechanisms so that children and young people and their families or carers can complain if a public authority is not meeting their responsibilities.

Monitoring the progressive realisation of children’s rights:

The gathering of reliable and relevant information on the status of children’s rights, e.g. the extent to which they are implemented and being enjoyed by children, is important for monitoring States’ progressive realisation of rights in international law. With precise data, discussions regarding steps to be taken will be better informed and focused. In considering their duties under the Act, public authorities may therefore wish to monitor the realisation of children’s rights in order to understand what further steps need to be taken.

This may include identifying trends, such as measuring changes in literacy rates and any inequalities in educational attainment over time and the analysis of budgets, and in particular, trends in budget allocations (for a fuller explanation, see section 4.2.2 on budget allocation in non-statutory guidance on taking a children’s human rights approach). The findings from this monitoring could be used to comply with the Reporting Duty under Section 18(1) of the Act, which provides that listed authorities must publish a report on the actions it has taken during a reporting period, and intends to take over the next period, to both ensure compliance with the compatibility duty as well as to secure better or further effect of the rights of children.

A.4 Maximum available resources

Under the Act, public authorities have a duty to not act in a way which is incompatible with the UNCRC requirements set out in the schedule to the Act, however, it is not yet known how the term “to the maximum extent of their available resources’ will be interpreted in the context of domestic legislation.

The term “maximum extent of their available resources”, contained within Article 4 of the Convention, is understood in international law as containing two important elements: firstly, the recognition that the availability (or absence) of resources plays a crucial role in the realisation of children’s rights in the economic, social and cultural sphere; and secondly, that where those resources are available, States should make efforts to deploy them in ways that further the fulfilment of rights. The Convention recognises that some of the more costly reforms cannot take place overnight. It specifies, for instance, that the rights to health care (Article 24) and education (Article 28) may be achieved “progressively”.

To comply with effective implementation of children’s rights, States must show that the rights have been progressed using the “maximum extent of available resources”. In international law this is understood to mean generating, allocating and spending resources in a way that is effective and efficient for the realisation of children’s rights (see section 4.2.2 on budget allocation in non-statutory guidance on taking a children’s human rights approach) and States are expected to demonstrate they are taking steps to improve the enjoyment of children’s rights, even when resources are scarce.

There are substantive and procedural elements of ESC rights within the Convention which are not subject to progressive realisation, but certain elements within the overall right are interpreted in international law as requiring immediate protection, such as the provision of free primary education within Article 28, basic shelter and housing within Article 27 and access to specific medicines at all times within Article 24. These are known in international law as minimum core obligations^[28] (MCOs) and are understood as “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each article of the rights”.^[29]

The Act does not specify the minimum core of the UNCRC requirements and so it will be a matter for the courts, when interpreting the compliance duty in the Act, to decide what the appropriate minimum essential levels for ESC rights might be in Scotland.

A.5 Evolving capacity

Evolving capacity is a term which is not defined in the Convention but is referred to in two different Articles within the Convention, namely Article 5 and Article 14(2) and it may also be significant in relation to Article 12. The Committee defines this term in international law as “an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights”.^[30]

“Evolving capacities” is therefore a term used to refer to the child ’s own increasing ability to make reasoned decisions in different parts of their life .^[31] The Committee has provided guidance in General Comment 20, and has stated that, “the more a child knows and understands, the more his or her parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing”.^[32] A child’s capacity develops gradually, and in different ways. It may depend on a child’s experiences, education and maturity, as well as the complexity and magnitude of the decision being made.^[33]

This principle of evolving capacities within international law may have profound implications for the rights of the child. The Convention recognises that children in different environments and cultures who are faced with diverse life experiences and circumstances will acquire competencies at different ages. It also allows for the fact that children’s capacities can differ according to the nature of the rights to be exercised. Children, therefore, require varying degrees of protection, participation and opportunity for autonomous decision-making in different contexts and across different areas of decision-making.

The concept of evolving capacities within international law is central to the balance embodied in the Convention between recognising children as active agents in their own lives, who are entitled to be listened to, respected and granted increasing autonomy in the exercise of their rights, while also being entitled to protection in accordance with their level of maturity and youth. As Lansdown (2005, p.9) explains: “This concept provides the basis for an appropriate respect for children’s agency without exposing them prematurely to the full responsibilities normally associated with adulthood”^[34]. However, it is important to note that the concept is different from legal capacity, which in Scotland is defined through the Age of Legal Capacity (Scotland) Act 1991 and which sets out the specific provisions for persons under the age of 18 in regard to their legal capacity.

What does the Convention say about evolving capacities?

As mentioned previously, the concept of evolving capacities is referred to in two articles within the Convention, Article 5 and Article 14(2) and may also be important in relation to Article 12. The full text of Article 5 states:

“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention”.^[35]

However, the term ‘evolving capacities’ is not defined in the Convention nor the UNCRC Act. Guidance from the UN Committee in the form of General Comment No 20^[36] provides useful information about the rights of the child during adolescence. When a child is younger, they may need more protection, as they may be more likely to make choices without considering or understanding the consequences. As a child develops into adolescence, the parents or other persons legally responsible for the child, need to fulfil with care their obligation to provide appropriate direction and guidance in accordance with the evolving capacities of the child. The concept of evolving capacities also applies to Article 14 which specifically covers a child’s right to freedom of thought, religion and conscience. Article 14(2) states that, “States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child”.^[37]

The concept of evolving capacities may also be important with regards to Article 12 of the Convention. As mentioned previously, this article relates to the views of the child. It states that “State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. This recognises the importance of considering the views of children in matters affecting them and that they should be taken seriously in accordance with their evolving capacities.^[38] The concept of evolving capacities should never be used to dismiss a child’s view. Adults can ensure they have a better idea of what’s important to the child by taking into account children’s views.