United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: EQFSIA

Key Findings

As one of the core UN human rights treaties, the UNCRC recognises that the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Incorporation of the UNCRC will, therefore, have a positive impact in relation to all elements of the public sector equality duty. It will complement and be supportive of the duties under the Equality Act 2010.

Incorporation through the Bill will represent a significant step in realisation of children’s rights in practice for all children. International experience shows that incorporation of human rights treaties is particularly important in the realisation of rights for those from underrepresented groups including those experiencing discrimination such as on the basis of sex, race, religion or other characteristics. This is expected to be particularly so in relation to incorporation of UNCRC, given that children facing discrimination or who have additional needs often face a double barrier in relation to the realisation of their rights: that discrimination or need, coupled with the fact that, as children, their voice can be unheard, or more easily dismissed.

Incorporation of the four articles known as the “General Principles” (non-discrimination (article 2), best interest of the child (article 3), right to life survival and development (article 6) and right to be heard (article 12)) alongside the other substantive rights as they relate to issues such as education, health, family relations and justice will mean that the rights and needs of all children are brought to the fore and that the requirement for children to be heard and take part in decisions which affect them is built into decision-making structures across public authorities. The Bill will foster a culture of respect for children’s rights across public authorities which in turn puts the needs of all children at the centre of decision-making and practice.

To understand the international experience of the impact of incorporation, UNICEF’s report ,The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries^[1] was reviewed. It found that “CRC incorporation in and of itself is significant. The very process of incorporation raises awareness of children’s rights and the CRC in government and civil society. In countries where there has been incorporation (Belgium, Norway, Spain), interviewees felt that children were more likely to be perceived as rights holders and that there was a culture of respect for children’s rights. Whilst incorporation provided opportunities for strategic litigation given that the CRC was part of the domestic legal system, its main value was thought to be in the strong message it conveyed about the status of children and children’s rights, and the knock-on effects for implementation of children’s rights principles into domestic law and policy”.

Evidence suggests that the impact of incorporation of the UNCRC is likely to “lead to an increase in awareness of children and young people as rights holders and for there to develop a culture of respect for children’s rights”.

Building on this, the Scottish Government will develop an implementation programme covering three years to ensure that the Bill’s duties are fulfilled with children’s rights being embedded in decision-making at all levels in public services.

Leadership – The Scottish Government is fully committed to ensuring that accessible guidance and training is developed as part of an implementation programme in support of the Bill and for public authorities to support preparation and planning in advance of commencement of the Bill. This will be supported by a central implementation team within the Scottish Government who will be dedicated to coproducing and delivering effective guidance and training with public authorities and the third sector so that it best meets the needs of practitioners, and the rights of the children and young people they serve. The Scottish Government will ensure that an appropriate governance structure provides collective leadership to the implementation programme. The central implementation team will also be responsible for delivery of the Scottish Government’s Children’s Rights Scheme. The Scottish Government will continue to make Child Rights and Wellbeing Impact Assessment guidance and templates freely available so partners in the public sector and the third sector can assess how their policy and practice impacts on children’s rights and wellbeing.

Empowering children to claim their rights – Ensuring that children, young people and their families can claim their rights is central to delivering a Scotland where human rights are made real. As set out in the Progressing Children’s Human Rights Action Plan 2018-2021, children’s rights awareness-raising and children and young people’s participation are two of the strategic priorities to which the Scottish Government is already committed. The Scottish Government will make available a fund of £250,000 for awareness-raising in each of the three years of the implementation programme, with a commitment to increase funding to enable the participation of children and young people in decision-making in public services by £100,000 in each year for the same period. The awareness-raising activities aim to support children and young people across Scotland to be human rights defenders and challenge breaches of their and others’ rights. The fund for participation will look to provide a sustainable approach to the strategic participation of children and young people in decision-making, and to enable the voices of those children and young people who are seldom heard to be listened to. A social marketing campaign, at a cost of £200,000, will also be developed in the second year of the programme and delivered in the third year. This campaign will aim to raise the profile and support for children’s rights across Scottish society.

Embedding children’s rights in public services – The Scottish Government recognises the vital role that public services play in delivering for children, young people and their communities. To ensure that public services are appropriately supported in delivering the step-change in respecting, protecting and fulfilling children’s rights that this Bill seeks to deliver, the Scottish Government will create a fund of £835,000 over two years to support the delivery of this implementation.

Protected characteristics

The Bill is likely to have a positive impact on children and young people because of their age as the Bill aims to provide the highest protection possible for the UNCRC, ensuring that children’s rights are respected, protected and fulfilled by all public authorities, within the powers of the Scottish Parliament. For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier (UNCRC article 1).

While the Equality Act only protects against age discrimination for those under the age of 18 in employment situations, Article 2 of the UNCRC states that all articles of the convention apply to every child without discrimination, whatever their ethnicity, gender, religion, language, abilities or any other status, whatever they think or say, whatever their family background.

By incorporating the UNCRC into Scots law the Bill will strengthen children and young people’s right to non-discrimination on any grounds including disability and the obligation of public authorities to not act incompatibly with the Bill to protect children from all forms of discrimination. (UNCRC Article 2 and UNCRPD Articles 2-6 and 8)

The Bill is also likely to strengthen children and young people’s ability to be heard and engaged in decision-making which is a fundamental issue for children and young people (UNCRC Article 12).

To inform an understanding of the potential impact of statutory CRWIA, research into the implementation of child rights impact assessments (CRIA) by national Government (Payne, 2019)^[2] was consulted. This research showed that when used appropriately, these impact assessments provide a means to further progress, implement and embed human rights principles, standards and processes in the workings of government to make a child rights based approach the norm in policy development. It also suggested that the act of being involved in the drafting of a CRIA/CRWIA can change the way officials and politicians regard both children’s policy and children’s ‘place’ in society.

All actions taken by Ministers and public officials concerning children and young people, including those with disabilities, should ensure that their best interests are of primary consideration. Services, facilities and institutions caring for children must comply with appropriate standards in respect of health, safety, quality of staff and proper supervision (UNCRC Article 3 and UNCRPD Articles 7 and 16).

The Bill will also ensure that children can access rights that will be of particular importance to their situations, such as care experienced children and young people (article 9 - Separation from parents, article 18 - Parental responsibilities and state assistance, article 19 - Protection from all forms of violence, article 20 - Children deprived of a family) and those with additional support needs or disabilities (article 23 - Children with disabilities).

This benefit was noted during the “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland” by organisations who represent children and young people. For example, LGBT Youth Scotland highlighted that the right to privacy provided by article 16 can help ensure that LGBT young people’s rights are protected so they are not needlessly ‘outed’ to their families and other professionals by public authorities.

The Scottish Government have also often heard that children with disabilities experience barriers to the realisation of their rights often as a result of the environment in which they live rather than as a result of their impairment. Incorporation of article 23 will ensure their right to live a full and decent life with dignity and, as far as possible, independence and to play an active part in the community can be claimed.

Reducing socio-economic related inequality

At present there is a lack of evidence which shows a direct link between Incorporation of the UNCRC and a reduction in poverty related inequality for children and young people (Nolan and Pells, 2019^[3]).

A child rights approach, however, to the development of legislation or policy, will support public authorities to consider the negative impacts on children’s rights and wellbeing in poverty related policy areas such as housing, education, health, employment and disability. Evidence suggests, that for this to lead to better outcomes for children and young people, “legislation and policies that affect them need to be linked and integrated consistently” across government (Nolan and Pells, 2019).

This Bill will strengthen children and young people’s ability to be heard and engaged in decision-making processes. Tackling child poverty: first year progress report (2018 to 2019) has highlighted that the participation of children and young people is a fundamental issue for young people experiencing poverty (Children’s Parliament, 2018^[4]) .

Through the “Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland”, stakeholders expressed their support for incorporation of the UNCRC and emphasised that a joined up approach across legislation, policy and practice is required.

Child Poverty Action Group (CPAG) in Scotland

“Legislation alone cannot implement children’s rights in Scotland – there are a number of activities that must be taken by national and local government, as well as many others, that will contribute towards implementing those rights.

One in four children in Scotland live in poverty, which means that their rights are not being realised – most prominently in regard to articles 26 and 27. In the absence of significant policy change, the percentage of children in poverty is likely to continue to increase in the coming years, with the Scottish Government’s own forecasts indicating that it will reach 38% by 2030/31. That means a significant proportion of our children have their life chances impacted. Poverty not only impacts in relation to articles 26 and 27 – the result is that children are less likely, for example, to achieve academically and less likely to be able to relax and play in the same way as their peers (articles 28 and 31).

In order to help implement these rights fully, we need not only to incorporate those rights but to redouble our efforts to tackle child poverty, for example through the Scottish Government’s Tackling Child Poverty Delivery Plan and through Local Child Poverty Action Reports – as well as by incorporating the right to benefit from social security”.

CEDAR Scotland Advisory Partnership (CSAP)

“To ensure children enjoy their full suite of rights requires a more effective and joined-up approach between local multi-agency Violence Against Women Partnerships, Community Planning Partnerships, Health and Social Care Partnerships, children’s services planning and child poverty leads at the local level.”

Children's Parliament

“Children identified that one of the principal ways to ensure more children have their rights fulfilled is to directly support them through legislation, policy and practice.”

Poverty Alliance

“While legislation is vital, it is clear that children’s rights cannot be secured through legal measures and that a range of other policy interventions and activities are required to ensure that all children and young people can access their rights.

For example, 240,000 children in Scotland are currently living in the grip of poverty, meaning that a number of their rights (principally Articles 26 and 27 of the UNCRC) are not being realised. Living in the grip of poverty can also play a contributing factor towards a number of other rights (e.g. Article 12, Article 28 and Article 31) not being realised.

While legislative actions to further implement children’s rights will have a positive impact on children living in poverty, it is clear that taking further non-legislative action to tackle child poverty – and meet the ambitious poverty reduction targets set by the Child Poverty (Scotland) Act 2017 – is also essential if children’s rights are to be fully met. This includes action to reduce the cost of living, action to boost wages through increasing the numbers of workers receiving at least the real Living Wage, and action to ensure the adequacy of social security support for families”

Befriending Networks and its members

“Incorporation needs to sit alongside an anti-poverty strategy as without tackling poverty many of the inequalities will simply remain.”