UNCRC Strategic Implementation Board minutes: March 2024

Attendees and apologies

Members of the board

• Andrew Watson (Chair), Director for Children and Families
• Dragan Nastic, UNICEF UK
• Gina Wilson, Children and Young People’s Commissioner Scotland (CYCPS)
• Juliet Harris, Together Scotland
• Margo Williamson, SOLACE
• Helen Fogarty, Social Security Scotland
• Jennifer Davidson, Institute for Inspiring Children’s Future’s
• Craig Morris, Care Inspectorate
• Chloe Riddell, The Promise
• Megan Moffat, Who Cares? Scotland (Deputising for Laura Pasternak)
• Margaret Gibb, Parenting Across Scotland
• Michael Cameron, Scottish Housing Regulator
• Laura Caven, COSLA

Members of Scottish Government

• Ian Donaldson, Deputy Director: Children’s Rights Protection and Justice
• Dean Snape, UNCRC Project Manager
• Andrew Preston, UNCRC Programme Assistant
• Carola Eyber, Children’s Rights Reporting and Monitoring Lead
• Gita Sharkey, Joint Unit Head, Children’s Rights Unit
• Liz Levy, Joint Unit Head, Children’s Rights Unit
• Lyndsey Saki, Embedding Children’s Rights in Public Services Programme Lead
• Paul Gorman, Empowered Children and Young People Lead
• Shona Spence, UNCRC Bill Lead
• Sarah Booth, SGLD
• Kavita Chetty, Scottish Government (Observing)

  Apologies

• Margo Williamson, SOLACE
• Helen Fogarty, Social Security Scotland
• ACC David Duncan, Police Scotland
• Norma Ruettiman, Care and Learning Alliance
• Craig Morris, Care Inspectorate
• Laura Pasternak, Who Cares? Scotland

Items and actions

Welcome and apologies

Andrew Watson (AW) welcomed the Board. Apologies were given for those not in attendance.

Minutes and actions from previous meeting

Dean Snape (DS) advised that minutes were circulated on 6 February 2024. No amendment requests were received from members. As such, the minutes have gone through the relevant clearance process with SGLD and have now been published on the group page.

There were five actions raised at the January meeting as follows:

• Future highlight reports to include a list of projects that have been delivered.
• Lyndsey Saki (LS) to check what is possible in terms of the disaggregation of consultation responses and to confirm if a child friendly version of the analysis will be available.
• LS to email SIB when the consultation process is live.
• Paul Gorman (PG) to share documents that will inform the ‘Pathways Publication’
• Liz Levy (LL) to consider how the highlight report could make clear which actions were addressing risks in the risk register

All actions have now been closed as detailed within the action tracker circulated on 19 March 2024 with the papers for this meeting.

Highlight report

DS noted that the programme Highlight Report was shared with members on 19 March 2024 and sets out progress against previous activities, upcoming priorities for the next 2 months and the current status of deliverables associated with the implementation programme. Members were asked to consider this report ahead of the meeting. 

In relation to the content of the Highlight Report, DS advised members that one item – the publication of the Scottish Government’s Initial Response to the UN Committee’s Concluding Observations had been published since the Highlight Report was shared. It was also noted that all other projects that have now been delivered have been moved to a new section of the report for completed projects as previously agreed. DS opened the floor to any questions or comments on the Highlight Report.

Juliet Harris (JH) and Dragan Nastic (DN) offered congratulations on publication of the response to the Concluding Observations. DN also noted that Scottish Government were the first devolved nation in the UK to publish their response and that it was very comprehensive.

JH noted that Together’s members would be interested in more information about the Regulation and Improvement Working Group, in particular any public minutes or details of who is involved? LS advised the web page is not yet up but a link can be shared once available, LS also offered to share the groups Terms of Reference (ToR).

ACTION: LS to share link to Regulation and Improvement Working Group page once available

ACTION: LS to share Regulation and Improvement Working Group ToR with SIB

DN asked if it would be possible to review the revised draft of the Childrens Rights Scheme noted in the Highlight Report. Carola Eyber (CE) responded to confirm this will be shared with SIB once the draft is ready to be reviewed although there is currently no set timeline for this.

ACTION: CE to share revised draft of CRS with SIB for further comment once available

Gina Wilson (GW) and Laura Caven (LC) raised the matter of how they, or other stakeholders, could feedback issues to be recorded in the Childrens Rights Issue List. CE advised that the Rights Reporting and Monitoring team are almost finished compiling this and intend to share with SIB ahead of the May meeting for feedback and advice on anything missed.

ACTION: CE to share CRIL with SIB ahead of the May meeting

Amendments to the UNCRC Act

LL explained the three amendments that Scottish Government are hoping to make to the UNCRC Act to strengthen legal coherence and practical operation. (An amendment to reduce the frequency with which Scottish Ministers need to review and consider new actions for the Children’s Rights Scheme had already been discussed at SIB at Nov and Jan meetings.)

The first amendment discussed was to add an exemption that's included in the Human Rights Act 1998, which states that the compatibility duty does not apply when a public authority is delivering its functions under provisions in other primary legislation that either: prevents them from acting compatibly or can't be read in a compatible way. No such exemption is currently included in the UNCRC Act and so, as it currently stands, public authorities could potentially be left having to decide whether to act in a way that puts them in breach of the compatibility duty in the UNCRC Act or to act in a way that puts them in breach of another statutory duty. Legal coherence is an essential requirement and so this leaves us in a very unsatisfactory position.

There are also potential practical implications for the support and protection of children if a public authority stopped delivering essential functions because they believed that they couldn’t do that in a UNCRC compliant way. This amendment should not undermine the intentions in the Act, bearing in mind that the policy intention is that Ministers would always act to remedy the incompatibility. The amendment could be necessary to protect children’s access to essential services that support other rights while transition from an original provision to an amended, compliant provision takes place. 

LL summarised written feedback from the CYPCS. In principle they have no strong objection to this amendment but would only support this it if it came with a duty on public bodies to report to Scottish Government and the Commissioner's office any occasion where they become aware of requirement in law to act in a way that is not compliant with the UNCRC requirements.

Ben Farrugia (BF) commented that any new duties on public authorities would need to be carefully considered.

JH fed back that Together members had raised no objection to this amendment and were in agreement with  the suggestion made by CYPCS but had queried why the exemption hadn’t been included in the Act in the first place.

Action: LL to consider if the proposed exemption to the compatibility duty should come with a duty on public bodies to report to Scottish Government and the Commissioner's office any occasion where they become aware of a requirement in law to act in a way that is not compliant with the UNCRC requirements.

The second proposed amendment was to limit the requirement to undertake CRWIAs and make statements of compatibility so that this applies only to legislation that's of relevance to children's rights and wellbeing. The proposal is to automatically exclude temporary road orders under the Road traffic legislation from both requirements and introduce a ‘minimal or no relevance’ test to the CRWIA template for all other SSIs and bills.

In written feedback the CYPCS had expressed a strong preference to retain the current approach whereby  a screening process is used before undertaking a full CRWIA. They argue that applying a relevance test even before we get to the screening would result in decisions being made on the basis of little or no evidenced consideration. LL explained that the CRWIA screening process is having to be removed as a result of the wording of the Act because it will not fulfil the requirements of the section 17 duty for an impact assessment. So by amending the Act to add a relevance test, we're essentially adding back in some form of screening. She also explained that where an assessment of no relevance is made, the proposal would be that this is shared with the CRU and lawyers to check that nothing has been missed.

GW underlined the importance of there being transparency about how relevance is assessed.

The CYPCS had expressed a concern about automatically excluding temporary road orders from the requirement for CRWIAs and statements of compatibility, given that these could impact on access to a whole range of services relevant to children's rights.

ACTION: LL to find out more about the internal assessment that the roads closure team have to do to assess access issues and share this with the CYPCS.

The CYPCS view was also that if Ministers are satisfied that a particular legislative provision is not relevant to children’s rights then they should have no concern about making a statement to Parliament that the provision is compatible - this shouldn’t be an undue burden, given that the same assessment would have to be undertaken to conclude that the Bill or SSI was not relevant.

Action: LL to give consideration to whether we really need to exclude any legislation from the requirement for a statement of compatibility, other than for reasons of consistency with the approach to CRWIAs

The third proposed amendment is to what the Act says about remedies that are available in the criminal courts if and when a court determines that a decision by the prosecution was incompatible with the UNCRC requirements. The Act currently allows the court to grant any remedy within its powers. In the context of a criminal proceedings, available remedies includes brings the proceedings to an end by deserting the case. There are concerns about the implications of this remedy for criminal proceedings. In some circumstances, deserting the case could mean that the Crown has no possibility of raising a new case, unless the decision was successfully appealed.

The priority is to make sure that cases are not deserted in circumstances in which the prosecution decision can be made in a way that is compatible with the UNCRC requirements. The intention is to give the prosecution an opportunity to address the breach before the court decides whether it's necessary to desert the case. This is important to uphold the interests of all involved in a case, including child victims, who may be denied justice if a case is deserted.

In their response, the CYPCS recognises that it could be possible for the prosecution to address the UNCRC breach but argue that the court (rather than the state) should decide if the prosecution should be given the opportunity to do so.  The court’s decision, they point out, could always be appealed by the Procurator Fiscal. The CYPCS also points out that this is the approach taken for challenges under the Human Rights Act so making this amendment could suggest that there's a hierarchy of rights.  LL explained that her understanding of the reason for a different approach for the UNCRC Act is that the UNCRC includes procedural requirements that may be possible to address quite easily - best interests of the child being a primary consideration and giving due regard to the views of the child. So the nature of the rights might justify a different approach.

DN asked about what would happen when a compatibility issue is raised, in contexts other than criminal courts. LL explained that in other contexts e.g. a compatibility issue raised in the context of access to education, the expectation would be that the public authority would be given the opportunity to address the incompatibility before other remedies were considered.

Action: LL to provide a written response to the CYPCS and copy in SHRC, Together and Unicef UK who were also consulted. Any other SIB members who wish to be kept engaged in writing, were invited to let Liz know.

Support for public authorities on commencement

LS provided an update on support provided to date for Local Authorities and Health Boards. Members were reminded that the Improvement Service’s UNCRC Implementation Project was established in Spring 2022 to support local authorities in Scotland to prepare for the incorporation of the UNCRC into Scots law. The project has been developed collaboratively with local authorities and other partners to build their capacity to understand and take action to ensure compliance with the new legislation and uphold children’s rights.

LS Noted that positive outcomes of this work to date include: securing buy in from local government service areas; developing meaningful approaches to the participation of children and young people in decision making; and, ensuring that children and young people learn about their rights. A specific example is the work done to support Falkirk Council. The Improvement Service ran workshops with the council focussed on the work already underway to embed the UNCRC across the council and its partners, the steps needed to ensure further progress as well as identifying those whose rights are at risk. As a result, a range of partner organisations came together to discuss and develop actions to progress rights across the area. Following workshop one, it was agreed that young people would be asked and supported to attend future sessions and contribute their experiences and ideas. At the end of these sessions, Falkirk have developed a draft action plan and agreed a new structure to take forward, monitor and report on work relating to children’s rights.

In terms of support for Health Boards, LS advised members that in December 2023, the Embedding Team commissioned NHS Education for Scotland (NES) to provide support to health boards with their preparedness for commencement of the UNCRC Act. This support is similar to the support provided to local government through the Improvement Service (IS) grant and makes use of the resources IS have developed. NES have recently provided an update and the Team were impressed with their progress. Subject to budget, and necessary approval, the Team hope to continue this funding and build on the success to date. LS provided members with a full list what NES will have delivered by the end of March 2024.

LS also gave a brief update on the Skills and Knowledge Framework. The Skills and Knowledge framework is  being developed to support public authorities to embed children’s rights in public services. The work is being led by JRS Knowhow, working in partnership with Just Right Scotland, Children’s Parliament and Together.  The Framework and an accompanying training plan should support public authorities to experience the value of using a children’s human rights approach. They should also support them to understand how this contributes to other local and national strategic priorities, aiding a transformation in service design and delivery. This has been a complex project involving a significant number of interlinked outputs aimed at supporting the public authority workforce.

LS noted that the contract was due to end on the 31st of March, with an optional extension of up to 6 months, should the products not fully meet the objectives, or not be at a publishable standard by the end of March. This extension has now been invoked as the Embedding Team have concerns that additional time will be required before the final outputs can be signed off. The Team will continue to work closely with project partners until the project concludes.

GW noted that this is a complex piece of work therefore it is not surprising that extra time is needed. Amy Woodhouse (AW) asked about gaps identified in skills and knowledge. LS noted that work is being progressed in what is a complex and changing landscape. It was recognised that some would not be aware of or understand the relevance of the Framework to their work. Scoping and prioritisation work was ongoing in the Embedding Team.

LC asked about the extension and whether anything will be available in advance of commencement to help guide public authorities. LS advised that there are a number of complex processes currently being worked through to facilitate the delivery and maintenance of the digital tool which may take longer. It might be that an interactive PDF is made available before the digital framework. It is expected that at least the interactive PDF version will be available ahead of commencement.

Exploring gaps and barriers in the pathway to remedy

Paul Gorman (PG) provided an update on the work to map and strengthen advocacy provision and set out future plans to explore gaps and barriers to seeking remedy for a rights issue.  

PG explained that while there does seem to be specific advocacy support across Scotland for children and young people experiencing particular challenges in their lives, general advocacy support for all children and young people is not available in all local authorities. Before recommendations can be made about further investment in general advocacy provision it will be important to establish whether and to what extent there is an unmet demand for this.

Rather than focusing on advocacy provision in isolation it is proposed that the next phase of the investigation focuses on the whole ‘pathway to remedy’. The aim would be to develop understanding of CYP’s experience of raising rights issues (formally and informally) to identify if and where they encounter barriers and gaps in support and how CYP and their families could be better supported to claim their rights. This could be through: better information and advice to the adults in the child’s life who provide informal advocacy; service providers being better equipped to respond when a concern is first expressed to them; more accessible and better informed formal advocacy provision; complaints processes that are more child-friendly; and/or easier access to legal and professional advice.

BF remarked on SG funds allocated to and resources put into advocacy, and highlighted the importance of clarity on funding and how this is allocated. Jennifer Davidson (JD) built upon BF’s point, reflecting on the tensions between taking a general vs a targeted approach in these policy responses, and importance of both to do justice to those children whose rights are most at risk. One way is for the Skills and Knowledge Framework taking a tiered approach similar to the trauma-informed framework. Gita Sharkey confirmed that it does.

PG noted there are multiple actors within this system with potentially differing approaches to what a child needs and these can vary e.g. between parent and advocacy worker. DN noted his appreciation of PG’s collaborative approach in developing this important resource and committed to continue supporting its development. He also advised that UNICEF’s head office are closely involved and working with the UN Committee on development of a General Comment on this issue. Scottish Government’s involvement in this is important as the General Comment must address all issues identified as being important and provide clarification on principles of convention.

BF agreed with JD’s observation about the general and targeted approach and noted the issue of advocacy vs. independent advocacy. The difference in what's needed is a situational distinction, depending on particular processes, systems, and professional interactions.. PG confirmed he is happy to continue sharing findings on development of this resource

Children's Rights Unit business plan

LL explained that a draft of the CRU Business Plan for 2024/25 was provided in the papers for the meeting. It sets out what the Children’s Rights Unit propose to deliver as well as what it hopes to fund partner organisations to deliver in the coming financial year. Although the draft indicates who the Unit would like to fund and for what purpose, it doesn’t provide the value of funding and makes clear that this is ‘subject to budget’.

LL emphasised that the Business Plan has not yet been cleared by the Minister. The intention in sharing it with SIB is to invite feedback to help the Unit refine it in advance of it going to the Minister and/or to highlight where there’s any difference in opinion between the CRU and SIB about what work should be taken forward.

LL also explained that since issuing the Business Plan Carola Eyber, who leads on the Rights Reporting and Monitoring Work, had advised that she will be leaving the Unit. This means the Unit structure and some of the commitments may need to be amended.

DG and BF welcomed the document and level of detail.

Action: SIB members to provide comments in writing on the draft Business Plan by the end of April