UNCRC (Incorporation) (Scotland) Act 2024 - part 3: statutory guidance

4. Reporting duties of listed authorities – detailed requirements

Under section 18 of Part 3 of the Act, listed authorities must report on actions they have taken and intend to take for the purpose of ensuring compliance with the duty not to act incompatibly with the UNCRC requirements under section 6(1) of the Act. They must also report on actions they have taken and intend to take to secure better or further effect of the rights of children. Reports completed to fulfil section 18 duties are referred to in this guidance as children’s rights reports.

By requiring listed authorities to produce periodic children’s rights reports on the actions taken as well as their plans for improving children’s rights, the Act emphasises the need to provide evidence of planning and delivery for child rights respecting practice. Listed authorities may find it useful to read the guidance on Part 3 alongside that of Part 2 which provides information on both aspects of the duty on which they need to report, i.e. actions taken and intended to ensure compliance with the duty under section 6(1) and to secure better or further effect of the rights of children. Listed authorities may also wish to refer to non-statutory guidance on taking a children’s human rights approach to support them to embed child rights respecting practice into their services.

In addition to the main report, listed authorities also need to publish a version of the report that children can understand. The Act is not prescriptive on the format of the children’s report; therefore listed authorities can explore with children and young people what would best meet their needs.

Once the reports have been published, listed authorities must send a copy of the reports to Scottish Ministers as soon as practicable. Further information on how to send your report to Scottish Ministers can be found in section 5.1.

4.1 Reporting cycles and due dates for children’s right reports

Section 18(6) of the UNCRC Act defines the ‘reporting period’ as follows:

• the period beginning 16 July 2024 (the day on which section 18 comes into force) and ending on 31 March 2026, and
• each subsequent period of three years.

Listed authorities must publish their children’s rights report as soon as practicable after the end of each reporting period.

4.2 Developing baseline information

It is unlikely that the reporting duty can be fulfilled by listed authorities without consideration of their responsibilities and actions taken in relation to planning and systematic collection of baseline and monitoring information and data. When developing plans to collect baseline information, 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.

The reporting duty is retrospective and applies to the reporting cycle that has just completed. Listed authorities are required to reflect on the actions they have taken to ensure compatibility with the UNCRC requirements as defined by the Act and to secure better or further effect of children’s rights during this period. Listed authorities may wish to consider reporting on the impact these actions have had on all children or a targeted group of children.

It may be helpful for listed authorities to use children’s rights reports developed under section 2 of Part 1 of the Children and Young People (Scotland) Act 2014 or data from the previous reporting cycles (2017-20, 2020-23) as a baseline from which to measure progress.

Baseline information, evidence and data are also likely to be readily available through existing sources within the listed authority or through other authorities. Examples of this may include The Promise Data Map or local authority joint strategic needs assessment that informs each area’s Children’s Services Plan. In some areas of children’s rights, additional evidence might need to be gathered, for example, to understand which groups of children are most at risk of not having their rights met.

However, please note that using this data for children’s rights reporting is a new purpose. This means public authorities may need to undertake a certain amount of analysis around whether the data currently being collected can be used for the reporting purposes. 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 that the authority has a clear obligation or a function set out in law to re-purpose any data it has already collected.

In General Comment No. 5, the United Nations Committee on the Rights of the Child (CRC) recommends the ‘collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realisation of rights’. General Comments are recommendations that the CRC makes on issues relating to children to which it believes the State Parties should devote more attention called.

As explained in the CRC Reporting guidelines, the CRC also addresses its concerns and recommendations to State Parties, informed by States Parties’ regular reports to the CRC. This takes the form of ‘concluding observations’. Organisations may wish to take note of the CRC’s 2023 Concluding Observation 12.(a) to the UK which recommended the strengthening of data collection ‘with regards to both qualitative and quantitative indicators to encompass all areas of the Convention and ensure that the data are disaggregated by age, sex, disability, geographical location, ethnic origin, nationality and socioeconomic background’.

However, 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.

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.

Listed authorities are encouraged to consider the following in collecting evidence:

• the number of children affected by specific areas of children’s rights that fall within the responsibility of the listed authority by race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status, as noted in Article 2 of the UNCRC, specified in the schedule to the Act.
• whether evidence exists for all groups of children.
• the views and experiences of children in the areas being considered.
• information collected by other relevant agencies or services and whether there is a lawful basis for its use.
• whether specific questions can be added to broaden public consultations, whilst being mindful of guidance on the principle of data minimisation.
• whether undertaking or commissioning additional evidence collection is necessary where there may be significant gaps.

In many public authorities, responsibility for leading children’s rights work may sit with the services which work most closely with children. However, the scope of the UNCRC requirements as defined by the Act is wider than just children’s services. Therefore, listed authorities need to consider the actions taken by all the operational and support services they control and the impact their actions may have on children’s rights. To ensure these actions are fully captured it may be useful to reflect on wider community planning processes such as Local Outcomes Improvement Plans (LOIPs), Children’s Services Plans (CSPs), joint plans with health, and strategies for community safety or sports and leisure.

It is useful to provide some context to help stakeholders understand why actions have been taken. You may find the reflective questions set out in Annex A (‘Frameworks for children’s rights reporting’) of this guidance helpful in this process. For example, actions could be informed by feedback, complaints, risk assessments or consultation with children.

Where the action taken has resulted in a completed piece of work that secured better or further effect of the rights of children, it would be useful to see some reflection on what has gone well and how this might influence future rights initiatives.

4.3 Consultation and engagement

As part of the report development process, listed authorities may choose to engage with infants, children and young people, and their parents/carers to verify findings and understand more fully the impact of actions. This engagement could assist in establishing what more could be done to secure better or further effect of the rights of children. It could also help to identify local priorities and particular areas or issues of concern. In addition, consultation can provide information on how audiences would like to see the report presented and published. For further guidance on participation with children, please refer to section 4.5 of non-statutory guidance on taking a children’s human rights approach.

Listed authorities under the Act may wish to consider reporting on their actions at a national level and at a targeted level, i.e. with a specific group of children or within a geographic area. Listed authorities may find it helpful to reflect on the National Performance Framework or reports produced under the Children and Young People (Scotland) Act 2014 regarding Children’s Services Planning and Corporate Parenting. This may help identify priority areas for future initiatives and/or alignment with local initiatives where there are shared goals or formal partnership commitments to service delivery or improvement activity.

Involving children and young people in preparing children’s rights reports

The participation of children and young people in all matters that affect them and in the processes, systems and services that they access is one of the UNCRC requirements as defined by the Act. The first paragraph of Article 12 covers a child’s right to express their views in matters affecting them.

Engaging with infants, children and young people in line with a children’s human rights approach will support the development of children’s rights reports. Therefore, listed authorities are expected to consider at an early stage how children will be meaningfully involved in developing reports, taking account of diverse experiences, views and circumstances. Approaches should be inclusive so that all children regardless of age, disability, communication needs and circumstances can take part (see also Annex A.4). Further information can be found in Scottish Government guidance on involving children and young people in decision-making.

Where a public authority has previously gathered the views of children through research or a consultation exercise and these are still relevant to the development and publication of children’s rights reports then this information should be used.

4.4 Preparation for reporting

The Act is not prescriptive about the format the children’s rights report should take. However, it is important that the report should have a clear structure so stakeholders have assurance that statutory duties have been met. Before preparing a children’s rights report, listed authorities may wish to consider the following:

• UNICEF’s guide to the UNCRC clusters and its applicability to developing children’s rights reports (described in Annex A ‘Frameworks for children’s rights reporting’).
• the wellbeing indicators developed as part of the GIRFEC approach and their links with the UNCRC (see Annex A.2). Please note however that the Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, Included (SHANARRI) framework does not satisfy all incorporated articles. As such stakeholders will be required to consider Scottish Government policy on GIRFEC alongside the broader intentions of the Act.
• the CRWIA template, originally developed for the Scottish Government, which may offer a useful approach for local policy improvement (see section 4.2.1 on decision-making in non-statutory guidance on taking a children’s human rights approach).
• the potential links between the section 18 duty and other plans, for example under Part 3 of the Children and Young People (Scotland) Act 2014 duties relating to Children’s Services Plans. You may wish to refer to Children’s Services Planning Guidance.

4.5 Requirement to produce a child friendly report

Section 18(4) of the Act states: ‘A report published under this section must be accompanied by a version of the report that children can understand.’ The Act does not specify the format that the report designed for children should take. There is no requirement or expectation that this be a written report and listed authorities may wish to use another format, particularly paying attention to the views of those for which it is intended.

Child friendly communication

Children‘s communication needs are often overlooked, resulting in lengthy, text-based and complex documents. In order to guarantee their rights, particularly Articles 2, 12, 13, 17 and 42, which form part of the UNCRC requirements as set out in the schedule to the Act, children and young people must have access to information in a format that they understand. When this does not happen, the child may not be able to exercise their rights effectively. For public services which have a direct or indirect impact on the lives of children and young people, consideration should be given to how children and young people are supported to access and understand information.

A child friendly report should be created and designed to be understood by the children you wish to communicate with. The approach is about communicating with children to meet their needs and preferences. This applies to all types of communication including verbal and written exchanges, face-to-face, digital and online interactions.

For text documents, you may wish to consider Easy Read or inclusive versions. These are usually much shorter than the original text and only aim to capture the main points rather than provide extensive detail. By providing key pieces of information, Easy Read or inclusive versions can support children’s understanding of what is in the original document and signpost readers to other sources if they wish to explore further.

Preparing and publishing an Easy Read or inclusive version of a children’s rights report can be done in a rights-respecting way, whereby the version is created in partnership with children, for example: co-designing materials via workshops, consulting on draft documents then editing based on children’s feedback, and regular check-ins to evaluate quality and identify areas for improvement that can be applied to future communications. For further guidance on participation and inclusive communication, including Easy Read documents, please refer to sections 4.5 and 4.3.1 of the non statutory guidance on taking a children’s human rights approach.

Inclusive communication should also support other audiences to access information, for example, parents with additional support needs may require an Easy Read report. Consideration is encouraged to ensure parents and guardians also understand these reports, given their role in relation to Article 5 of the UNCRC to provide appropriate direction and guidance to children in exercising their UNCRC rights.

4.6 Potential links to other reports or plans

Children’s rights reports can be produced and published jointly with two or more listed authorities, or combined with other reports.

Joint reporting

Under section 18(2) of the Act, listed authorities have an option to report in partnership with one or more listed authorities.

This might be appropriate where listed authorities work together collaboratively in furthering the rights of children, for instance, as part of a Community Planning Partnership, or as an Integrated Joint Board or similar structure. It is for listed authorities to determine where this is appropriate. Where listed authorities choose to jointly fulfil their reporting requirements, we recommend actions, both taken and planned, are clearly attributable to each partner.

Combined reporting

In preparing the report for publication, one or more listed authorities may also wish to identify opportunities for aligning their children’s rights report with other statutory plans or reports. In doing so, they must ensure that their combined report meets the requirements set out in section 18(1)(a) and (b) of the Act.

For example, Part 3 (Children’s Services Planning) of the 2014 Act confers duties on local authorities and the relevant health board, together with specified service providers and other local stakeholders, to prepare and publish a Children’s Services Plan. The plan must set out how outcomes will be improved for children and young people living in that area. Part 9 (section 61) of the 2014 Act, requires every corporate parent (which includes all local authorities and health boards) to publish a report on how it has exercised its corporate parenting responsibilities.

Similar possibilities exist in relation to the statutory Early Learning and Childcare Plan, prepared under Part 6 of the 2014 Act and in relation to Part 2 of the Community Empowerment (Scotland) Act 2015. The 2015 Act places a range of duties on specified community planning partners in order to strengthen community planning (replacing provisions in the Local Government in Scotland Act 2003). The Community Planning Partnership (CPP) is required to prepare and publish a Local Outcomes Improvement Plan (LOIP) which, amongst other things, sets out the local outcomes the CPP has prioritised for improvement. Actions identified under the CPP may contribute directly or indirectly to achieving children’s rights.

While there are a number of important differences in the requirements of the reports and plans above, and the reporting requirements of section 18 of the UNCRC Act, they share similar approaches and ambitions for collaborative working with the local community to improve outcomes for children and to reduce inequalities. Aligning these planning and reporting systems, where possible, could bring benefits to both ensuring continuity and consistency between plans, and enhancing the opportunity for giving better and further effect to the rights of children.

If listed authorities wish to align statutory reports/plans, they must ensure that the reporting requirements set out in section 18(1)(a) and (b) are clearly identifiable within the body of the report/plan. We recommend listed authorities consider a separate children’s rights section or annex to make this information as clear as possible. General commentary on children’s rights not directly related to the section 18(1)(a) and (b) requirements would not satisfy the reporting requirements in the Act.

4.7 Governance

As well as determining timescales for the collection and analysis of data ahead of publication of the report, listed authorities will need to have in place robust governance and accountability processes in terms of both demonstrating their role as duty bearers in relation to children’s rights and contributing to children’s rights reporting as individual organisations, and as a partnership where applicable. Listed authorities should ensure that their governing board members, chief officers and workforce are informed about, understand and can demonstrate their role as duty bearers in relation to children’s rights.