United Nations Convention on the Rights of the Child - concluding observations 2023: SG initial response

2. General Principles

2.1 Non-Discrimination

No: 20a

UN Concluding Observation

Implement targeted policies and programmes to combat racist and xenophobic activities and to eliminate discrimination against children in disadvantaged situations, including children belonging to ethnic minority groups, asylum-seeking, refugee and migrant children, Roma, Gypsy and Traveller children, children with disabilities, children in alternative care, children of incarcerated parents, children of unmarried parents, lesbian, gay, bisexual, transgender and intersex children, socioeconomically disadvantaged children, and children in the justice system.

No: 20c

UN Concluding Observation

Conduct media campaigns to change social norms and behaviours that contribute to discrimination, raise public awareness of the prohibition of discrimination, and promote tolerance and respect for diversity.

No: 20h

UN Concluding Observation

Evaluate, with the participation of children and civil society, existing measures aimed at combating discrimination against children in disadvantaged situations, to assess their impact and revise the measures accordingly.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.2 – Equalities and Inclusion in Relation to Particular Groups

Progress since November 2022

Public Sector Equality Duty

The Equality Act 2010 (2010 Act) places a duty on public authorities to have due regard to the need to: eliminate discrimination, harassment, and victimisation; advance equality of opportunity; and foster good relations between persons who share a relevant protected characteristic (age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation) and those who do not. This is known as the Public Sector Equality Duty (PSED). This is discussed further at section 3.1 of the Embedding Children’s Rights in Scotland: Position Statement (2022).

The Scottish Government is continuing an ongoing programme of improvement activity in relation to the effectiveness of the PSED in Scotland. From December 2021 to April 2022, we ran a public consultation which set out a series of detailed proposals both for legislative changes to the Scottish Specific Duties as well as changes to the wider implementation environment. In October 2023, the Minister for Equalities, Migration and Refugees confirmed that we will be taking a phased approach to improving the PSED regime in Scotland. We are now developing policy instructions to ensure that revised regulations, and the implementation environment around them, can help to deliver our goal of better outcomes for those who continue to experience inequality.

We will initially be prioritising key regulatory changes. We aim for these to come into force in May 2025. Further changes will be considered over the longer-term; on matters such as reporting requirements and outcome setting. We will seek to align reporting requirements with any created by the Human Rights Bill.

Equality and Inclusion in Relation to Particular Groups

Race Equality

The Scottish Government is determined to show leadership in advancing race equality, tackling racism, and addressing the barriers that prevent people from minority ethnic communities from realising their potential. The Race Equality Framework for Scotland 2016-2030 set out our approach to tackling racism and advancing race equality in Scotland. In June 2023, we published a Progress Review of commitments contained within the Race Equality Framework and the Immediate Priorities Plan (2021). This demonstrated that we are continuing to make progress across many areas including, but by no means limited to, education, employment, housing, health, and culture.

The Scottish Government is currently developing the structure and modelling of the Anti-Racism Observatory of Scotland (AROS) on ethnicity and racial inequalities, which will play a significant role in bringing about the required system change to create equity for all communities. The Observatory will help to embed anti-racism across the public sector and beyond, including ensuring accountability for commitments made.

The Scottish Government funded Intercultural Youth Scotland to facilitate the involvement of young people in the decision making around the modelling and structure of the AROS, including facilitating panels and meetings of young people from racialised minorities, and supporting a young person to sit on the advisory group advising the Scottish Government.

Anti-Racism in Education Programme

The Anti-Racism in Education Programme (AREP) seeks to embed anti-racism within the Scottish education system. The work of the AREP is beneficial for all learners, educators, and wider education communities, but is designed to specifically improve the education experiences for learners, their families and education staff from racialised minority backgrounds, through the work of four interconnected workstreams focused upon:

• Ensuring that schools and educators are equipped with the tools to properly report, reduce, eliminate, and deal with racism in all of its forms.
• Creating educators in Scotland that are racially literate and race cognisant in all that they do.
• Diversifying the education workforce to ensure that it is representative of Scotland’s racially diverse population.
• Creating an anti-racist, culturally responsive curriculum that reflects the diverse communities that it serves.

The work of the Racism and Racist Incidents Subgroup of the AREP is focused on supporting schools and school staff to improve the understanding of racism and to ensure that these issues are properly identified, addressed and prevented from happening in future. The primary role of the subgroup is to develop resources for schools to prevent and respond to racism and racist incidents, including strengthening approaches to recording and monitoring.

The Education Leadership and Professional Learning Subgroup aims to create educators and leaders that are confident, committed and empowered to promote equality, foster good relations and identify, prevent and deal with racism. A successful, award winning, professional development opportunity, entitled the Building Racial Literacy Programme, has been co-designed as part of this group’s work. The Programme is run by Education Scotland. The fourth cohort of educators and education system leaders are about to begin this professional learning. Once they have completed it, over 400 educators will have taken part from across all 32 Scottish local authorities. Evaluations from the third cohort indicate that educators and education system leaders completing the programme felt inspired and motivated by the professional learning and considered that this helped them improve their practice.

Work also continues as part of the Diversity in the Teaching Profession and Education Workforce subgroup to identify, reduce and eliminate barriers for education staff from racialised minority backgrounds to recruitment, retention and promotion within the sector. In April 2023, the Scottish Council of Deans published its National Anti-Racism Framework for Initial Teacher Education (ITE) and the new Anti-Racism in ITE Working Group was formed to oversee delivery of the Framework. All ITE providers have signed up to take forward the areas for action suggested within the Framework and the AREP will continue to support the Framework’s delivery.

The Curriculum Reform Subgroup is focused on how anti-racism and inclusive education can be embedded across the curriculum, and in the role of national and local education systems and organisations. The Subgroup is funding the creation of a range of new resources to support learning and teaching, and has established a small grants fund to encourage and amplify children and young people-led anti-racist in education activity. The Subgroup has co-created the Breaking the Mould Anti-Racism in Education Principles (published in 2023).

The Scottish Government commissioned an external organisation to develop a framework for evaluating the success of the AREP. This was delivered to the Programme’s Board in 2023. Subsequently, a Theory of Change model has been developed specifically to support the work of the Diversity in the Teaching Profession and Education Workforce subgroup. We have also commissioned Intercultural Youth Scotland to carry out a series of engagement with children and young people from racialised minority backgrounds on behalf of the AREP. This will ensure that the actions of the AREP continue to be informed by the needs and expectations of those who will be impacted.

Gypsy/Traveller Children and Young People

The joint Scottish Government and COSLA Action Plan, Improving the Lives of Scotland's Gypsy/Travellers: 2019-2021, aimed to improve outcomes for Scotland’s Gypsy/Travellers in the key areas of accommodation, education and health. The actions in the Plan were developed with members of the Gypsy/Traveller community. The Plan was extended until spring 2023 due to the effects of the Covid pandemic. It was then refreshed for the period June to September 2023, to ensure it remained relevant to the needs of Gypsy/Traveller communities.

We are currently gathering data on successes and challenges with policy colleagues across the Scottish Government to review progress against the previous Action Plan.

In partnership with COSLA, we are also currently undertaking a listening exercise with Gypsy/Traveller communities to inform the development of a new Action Plan. This exercise commenced in July 2023 and will conclude in spring 2024. We aim to publish the new plan, which will focus on smaller, deliverable, and concrete actions, after the spring of 2024.

Partner organisations receive funding to support young people in education, celebrate the culture of Gypsy/Travellers and support the Scottish Government in its decision-making processes to meet the needs of the Gypsy/Traveller community.

New Scots Refugee Integration Strategy

Scotland’s pioneering and collaborative approach to supporting refugees and people seeking asylum is set out in the New Scots Refugee Integration Strategy. New Scots has been developed and led in partnership by the Scottish Government, COSLA and the Scottish Refugee Council. The current New Scots Strategy was published in 2018 and work aligned with New Scots has continued to progress.

Gender Inequality

The Scottish Government’s Gender Equality Taskforce in Education and Learning commissioned research from the Children's Parliament and Scottish Youth Parliament which explores girls’ and young women’s experiences of systemic gender inequality in schools. The data collected in this research has helped to inform the group’s work, which is predicated on the overarching ambition that: all girls and young women in Scotland, including those affected by intersecting inequalities, will: be taught by gender competent, educational professionals; not experience sexism, sexual harassment, or gender-based violence in the classroom or other educational setting; and freely choose subjects and areas of study, including those traditionally dominated by boys and men.

Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI)

As discussed in the Programme for Government (September 2023), the Non-Binary Equality Action Plan 2023-2028, which was published in November 2023, aims to improve the lives of non-binary people in Scotland. The Plan includes actions to help schools and support services to have more inclusive processes and practices that take into account the needs of non-binary children and young people.

We are also developing a package of non-legislative, supportive measures to end conversion practices and support survivors, to sit alongside any future legislation. As part of this, we are looking at education in schools as well as community learning and development for children and young people. In addition to this, for the period 2021-24, the Scottish Government is providing £860,765 through the Equality and Human Rights Fund to LGBT Youth Scotland - Scotland’s national charity for LGBTI+ young people who work with 13-25 year olds across the country.

The Gender Recognition Reform (Scotland) Bill is discussed at section 3.1 of this report. Measures to end conversion practices are discussed at section 4.8, while LGBT inclusive education is discussed at section 7.5.

Looked After Children and Young People

We know that our care experienced people can often feel stigmatised by their peers and communities. Through the work of Each & Every Child, we are working with the sector to shift public attitudes towards families, children and adults who are in care, leaving care or are care experienced. Building a much broader, more informed view of care experience amongst the public and communities is a key aspect of keeping the Promise. The Promise is discussed at section 5.4.

Socio-economic Disadvantage

Measures being taken forward to help tackle child poverty in Scotland are discussed at section 6.13 of this report. Funded early learning and childcare and the expansion of free school meals are discussed at sections 5.1 and 6.5 respectively.

The Scottish Government has also taken steps to help with costs associated with the school day, to support all children and young people to participate fully in their education. We are currently working with stakeholders to draft national guidance which aims to reduce the costs related to buying school uniforms for all families. The guidance will be published during the first half of 2024, taking effect at the start of the next school year in August 2024. In 2023-24, we provided local authorities with increased funding from £11.8 million to £13 million to enable them to continue providing a guaranteed minimum level of support to all families who are eligible to receive a school clothing grant across Scotland.

The Scottish Government and COSLA have also agreed funding of £12 million for instrumental music tuition in 2023-24. The funding means that where music tuition is offered in schools, parents and carers will not be required to pay fees (local authorities remain responsible for further costs of the provision). This supports equity of access to instrumental music tuition, helping ensure that the widest range of young people can benefit from learning to play an instrument. We are also continuing to support the removal of core curriculum costs, including materials and resources needed for practical lessons, for all primary and secondary pupils. The Scottish Government and COSLA have agreed funding of £8 million to support the continued removal of core curriculum charges in 2023-24.

In addition to this, we have retained the Education Maintenance Allowance (EMA) programme, which supports eligible young people from low-income households to help them overcome financial barriers to access and progress in learning.

Disability Equality

The Scottish Government is working with Disabled People’s Organisations - Glasgow Disability Alliance, Inclusion Scotland, and Disability Equality Scotland - to develop and implement an Immediate Priorities Plan that delivers actions to help meet the barriers faced by disabled people. This is discussed further at section 6.1.

Justice System

The scope of Bairns’ Hoose includes children under the age of criminal responsibility whose behaviour has caused significant harm or abuse, as it is recognised that children exhibiting or carrying out harmful behaviours are often themselves victims of significant harm and abuse. It is with this in mind that a Bairns’ Hoose is considered the most holistic form of intervention and support for the child to ascertain the circumstances of the harm, whilst at the same time offering therapeutic support to children who may themselves have been harmed. The Bairns’ Hoose is discussed in detail at section 4.5.

Under the National Performance Framework for Prison Visitor Centres, services must be compliant with their obligations under equality legislation. The Centres are established to help achieve positive outcomes for prisoners’ families and friends and for prisoners themselves. This includes helping to ensure that children affected by parental imprisonment are not discriminated against. A refreshed Scottish Prison Service Family Strategy looks to expand family contact provision through different means of communication and opportunities, such as the provision of induction packs, induction visits, and promotion of visitor centres. This will include consideration of any equality matters. Prison Visitor Centres are discussed further at section 5.6.

Next Steps

Public Sector Equality Duty

• Initial draft revised regulations which are intended to help listed public authorities to better perform their Public Sector Equality Duty are expected to be laid in the Scottish Parliament in early 2025, with regulatory changes coming into force in April 2025, to align with the next reporting period. Other medium and longer-term changes to the PSED regime in Scotland will be considered once the immediate priorities relating to regulatory change have been progressed.

Race

• It is expected that the Anti-Racism Observatory will be formally launched in 2024 and will provide support and oversight of anti-racism work across the Scottish Government and public sector.
• We will deliver an Anti-Racism in Education summit in 2024, hosted by the Cabinet Secretary for Education and Skills, which will seek commitment from organisations in the education sector to take action to embed anti-racism within their organisations and the sector more widely.
• In partnership with COSLA, we will aim to publish a new Gypsy/Travellers Action Plan after the spring of 2024. This will be informed by the views of the Gypsy/Traveller communities.
• A refreshed New Scots refugee integration strategy building upon work to date, will be published in two stages. Stage One, to be published in spring 2024, will set out context, vision, principles, and outcomes. Stage Two, to be published in summer 2024, will set out actions to deliver on our vision.

LGBTI

• We will publish an annual report on the progress made in implementing the Non‑Binary Equality Action Plan 2023-2028.
• We will continue to take forward a package of non-legislative, supportive measures to end conversion practices and support survivors.

Socio-economic Disadvantage

• We will publish guidance on school uniforms during the first half of 2024. This will aim to reduce the cost of buying school uniforms for all families. The guidance will come into effect at the start of the next school year in August 2024.
• We will continue to provide funding to local authorities to enable them to provide a minimum level of support to all families in Scotland who are eligible to receive school clothing grants.
• We will continue to work with COSLA on draft guidance for schools and local authorities to provide further clarity on the implementation of core curriculum charges funding, as well as agreeing a long-term approach to this funding.
• Next steps for instrumental music tuition include the exploration of a medium/long-term policy framework and funding model which would deliver the intended policy outcomes in a sustainable and impactful way.

2.2 Age Discrimination

No: 20f

UN Concluding Observation

Take legislative and other measures to ensure the protection of all children below 18 years of age from discrimination on the grounds of their age. Address discriminatory stereotypes against children; and promote a positive image of children as rights-holders.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.2 – Equalities and Inclusion in Relation to Particular Groups
• Section 3.6 – Attitudes to Children and Young People

Progress since November 2022

Age Discrimination

Although age is a protected characteristic under the Equality Act 2010 (2010 Act), there are a number of specific exceptions and exemptions. For example, the provisions in the 2010 Act which prohibit discrimination in the provision of services and public functions do not apply to the protected characteristic of age, so far as relating to persons who have not attained the age of 18.^[4] Therefore, people and organisations can provide different services, or services on different terms and conditions, to children of different ages, or can decline to provide services to children altogether on the basis of this exemption. However, children under the age of 18 remain protected against other forms of direct or indirect discrimination, such as on grounds of disability, race, or sex under the 2010 Act.

The Scottish Government has taken steps within its devolved powers to address the inequalities that young people below the age of 18 can experience. In 2015, we lowered the voting age to 16 for elections to the Scottish Parliament and local government in Scotland, to ensure that young people can participate in the democratic process. Between December 2022 and March 2023, we consulted on extending the right to stand for election in Scottish Parliament and local government elections to 16 and 17 year olds. The analysis of the responses to the consultation was published in July 2023. The Government’s response to the consultation was published in October 2023.

On 24 January 2024, in the Policy Memorandum to the Scottish Elections (Representation and Reform) Bill, the Government explained that it had reflected on concerns raised during the consultation in relation to extending candidacy rights to 16 and 17 year olds (concerns were raised around the potential exposure of young people to intimidation, both as candidates and as representatives, and also practical issues concerning travel to the Scottish Parliament or council headquarters and working hours). The Policy Memorandum noted (at paragraph 24) that the Government recognised these concerns and had concluded that the time was not right for an extension of candidacy rights to 16 and 17 year olds.

The Scottish Government has also taken forward measures to end the placement of under 18s in Young Offenders Institutions through the Children (Care and Justice) (Scotland) Bill. This is discussed further at section 8.4.

Although employment law is reserved to the UK Parliament, the Scottish Government is continuing to mainstream its Fair Work First Policy throughout Scotland. The refreshed Fair Work Action Plan (2022) sets out actions which seek to ensure fair work practices for all. This includes through applying Fair Work First principles to public sector funds, which seek to promote payment of the real Living Wage and encourage employers not to use zero-hours contracts inappropriately, among other fair work practices. Since 2019, Fair Work First principles have been applied to some £4 billion worth of public sector funding.

In December 2022, Ministers announced a strengthening of this approach and, as such, grants awarded on or after 1 July 2023 now require recipients to pay their workers at least the real Living Wage, including 16-17 year old workers and apprentices, and provide appropriate channels for effective voice. Taken together, these elements of Fair Work provide greater certainty to workers of all ages, including young people, about how much they will be paid each week and the number and regularity of hours they will be expected to work.

Attitudes to Children and Young People

The Scottish Government is continuing to work with children and young people and key stakeholders to tackle the negative portrayal of children and young people within the media and wider society.

We provide core funding to Young Scot, which enables young people, through co-design projects, to champion and showcase how young people are contributing to many parts of Scottish life. In June 2023, the First Minister, Humza Yousaf, attended the Young Scot of the Year Awards. This annual event celebrates the inspirational contributions and achievements of young people across Scotland. This year’s finalists included young people who have made a significant contribution towards the promotion of education, the arts, enterprise, health, sport, and entertainment. The Award, which is sponsored by the Sunday Mail, receives significant media coverage.

The Scottish Government is also continuing to provide funding to the Scottish Youth Parliament (SYP) and Children’s Parliament. These organisations support children and young people to celebrate their contribution to Scottish society and to promote a positive image of children as rights holders. Members of the SYP and Children’s Parliament have met with the Scottish Cabinet since 2017 and have used these meetings to raise issues that are important to children and young people across Scotland. The most recent meeting, which took place on 6 June 2023, is discussed at section 2.6.

The Scottish Government provided funding to Together (Scottish Alliance for Children’s Rights) to support a group of children and young people to attend the UN Committee’s interactive dialogue session with the UK State party in Geneva in May 2023. Children and young people also attended the Committee’s pre-session with UK rights stakeholders in February 2023. Committee members commended the children and young people for how well they had represented the views and lived experiences of Scotland’s children in Geneva.^[5]

Next Steps

Right to Vote

• The Scottish Government is working with partners to look at potential new ways to increase registration levels amongst under-represented groups including young people and foreign nationals.

Attitudes to Children and Young People

• In 2024-25, the Scottish Government will continue to provide funding to support work in promoting a positive image of children as rights holders.
• We will continue to raise awareness of the rights of children and young people amongst parents, carers, and family members.
• The Scottish Government will continue to work with the Children’s Parliament and Scottish Youth Parliament to lead the Cabinet Takeover once a year. This event promotes positive and empowered voices of children and young people.

2.3 Complaints of Discrimination

No: 20b

UN Concluding Observation

Establish clear avenues for children to seek justice in cases of discrimination, and, where appropriate, ensure the access of children in disadvantaged situations to health services, education, and a decent standard of living.

No: 20d

UN Concluding Observation

Encourage the reporting of hate crimes against children; investigate and prosecute cases of racially, ethnically, and religiously motivated crime; punish perpetrators with commensurate sanctions; and provide adequate compensation to the victims, as appropriate.

No: 20e

UN Concluding Observation

Ensure that children who experience discrimination, bullying or harassment in relation to their sexual orientation or gender identity receive protection and support, including through targeted anti-bullying measures.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.2 – Equalities and Inclusion in Relation to Particular Groups
• Section 3.3 – Receiving and Monitoring Complaints of Discrimination

Progress since November 2022

The Scottish Government is taking forward a range of measures to ensure that children in Scotland have access to education and health services and to help tackle child poverty. These are discussed in chapters 6 and 7 of this report.

Section 3.3 of the Embedding Children’s Rights in Scotland: Position Statement (2022) discusses the systems that are in place to support the receiving and monitoring of complaints about possible discrimination including within education. Respect for All: The National Approach to Anti-Bullying for Scotland’s Children and Young People (2017) includes direct reference to prejudice-based bullying, including bullying motivated by racism, sexism, homophobia, or prejudice and discrimination towards disability or faith. A consistent and uniform approach to recording and monitoring of incidents of bullying in schools supports the Framework (see section 7.4).

In relation to complaints about the provision of additional support within education, the Education (Additional Support for Learning) (Scotland) Act 2004 provides a comprehensive legal framework for the provision of additional, targeted support for children and young people who face barriers to learning. Under the Act, education authorities have duties to identify, provide for and review the additional support needs of their pupils. The Scottish Ministers want all concerns or disagreements about the provision of education support duties to be resolved at as local a level as possible where appropriate. It is, therefore, advised that families continue to engage directly with the school and education authority to come to a resolution which is agreeable for their child. However, should families remain dissatisfied with the support being provided to their child, there are a range of dispute resolution mechanisms available under the 2004 Act; including independent mediation and adjudication, and referral to the First-Tier Tribunal for Scotland’s Health & Education Chamber.

The Patient Rights (Scotland) Act 2011 and supporting legislation, provide a specific right for people to make complaints, raise concerns, make comments and give feedback about NHS services in Scotland. The Act also places a duty on NHS Boards to thoroughly investigate and respond to any concerns raised, to take improvement actions where appropriate, and to share learning from the views they receive. The model NHS Complaints Handling Procedure (CHP), which was introduced in 2017, supports a more consistently person-centred approach to complaints handling across NHS Scotland. The CHP brings a focus to the early, local resolution of complaints, wherever that is appropriate, and introduced a distinct, five working day stage for early, local resolution, ahead of the twenty-working day stage for complaint investigations. When a person has concerns about their treatment or care, this should be addressed at a local level through the CHP. When that is not possible, the Scottish Public Services Ombudsman (SPSO) is the second and final stage in the complaints process.

The SPSO is independent from the provider of healthcare and Scottish Ministers and looks into complaints about most organisations providing public services in Scotland. Their role is to give an independent and impartial decision on complaints. It also has a statutory role in improving complaints handling by organisations. The SPSO’s current work to develop a child-friendly complaints procedure is discussed at section 1.14.

The Commissioner for Children and Young People can investigate possible breaches of rights on behalf of groups of children where there are wider implications for children’s rights and for individual children in specified circumstances. This is discussed further at section 1.9. The Scottish Government is also continuing to provide funding to organisations who provide free legal and advocacy services for children and young people.

Hate Crime

A Study into the Characteristics of Police Recorded Hate Crime in Scotland (January 2023) presents updated information on the number of hate crimes recorded by the police in Scotland during 2020-21 and 2021-22. It also includes new details on the characteristics of hate crime, based on a random sample of cases recorded by the police in 2020-21.

The Scottish Government published a new Hate Crime Strategy in March 2023. This sets out a vision for a Scotland where everyone lives free from hatred and prejudice and where our communities are empowered, inclusive and safe. The Strategy has been developed in partnership with organisations with expertise in tackling prejudice, building cohesive communities, and advancing human rights. Importantly, it has also been informed by people with lived experience of hate crime.

The Strategy makes a number of commitments including: ensuring improved support for victims of hate crime; improving data and evidence on hate crime; and developing effective approaches to preventing hate crime. It will also support the implementation of the Hate Crime and Public Order (Scotland) Act 2021, which is expected to be in force early in 2024. The Act modernises, consolidates, and extends existing hate crime legislation in Scotland. It also makes provision requiring information about police recorded hate crime and convictions data to be published annually, and with greater detail where known.

The Scottish Government published the Hate Crime Strategy Delivery Plan on 20 November 2023 which supports the Hate Crime Strategy. The Plan sets out a range of activity that the Government will take forward with key partners over the next two years to tackle hate crime.

Police Scotland are responsible for the investigation of hate crimes in Scotland. They operate independently and investigation of hate crime is a priority for them. The prosecution of hate crime is a matter for the independent Crown Office and Procurator Fiscal Service under the Lord Advocate, and they adopt a robust approach in responding to such offending behaviour. The criminal law in Scotland provides for different penalties depending on the nature of the hate crime committed, with the independent courts making decisions in individual cases. As part of the powers the courts have in this area, they can decide whether compensation is required in individual cases under general court powers to impose a compensation order as part of a disposal in criminal cases.

Next Steps

Education

• In March 2023, we began a planned review of Respect for All, supported by a working group made up of a wide range of stakeholders, to understand what updates are required to the guidance to better support schools to prevent and respond to bullying. The review includes consideration of the current guidance around prejudice-based bullying, online bullying, and recording and monitoring of incidents. We expect the revised guidance to be published in 2024.

Hate Crime

• The Hate Crime and Public Order (Scotland) Act 2021 is scheduled to commence in early 2024. To coincide with commencement, a hate crime campaign will be launched to raise awareness of hate crime and how to report this.

2.4 Best interests of the child

No: 21a

UN Concluding Observation

Ensure that the principle of the best interests of the child is consistently applied in all policies, programmes and legislative, administrative, and judicial proceedings affecting children, including in relation to placement in alternative care, domestic violence, custody, trafficking, child justice, migration, and asylum procedures

No: 21b

UN Concluding Observation

Strengthen the capacity of all relevant professionals for assessing and determining the best interests of the child and for giving it due weight as a primary consideration;

No: 21c

UN Concluding Observation

Take measures to develop and implement a tool for the purpose of Child Rights Impact Assessments throughout the State party.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 2.6 - Child Rights and Wellbeing Impact Assessment
• Section 2.10 – Children’s Services Planning
• Section 3.7 – Best interests of the Child

Progress since November 2022

Section 3.7 of the Embedding Children’s Rights in Scotland: Position Statement (2022) discusses the measures that are currently in place to promote the best interests of the child in policy and legislation in Scotland.

The United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act (UNCRC Act) incorporates the UNCRC into Scots law within devolved competence. This includes Article 3 of the Convention on the best interests of the child.

Getting it right for every child (GIRFEC), the national approach in Scotland to improving outcomes and supporting the wellbeing of children, underpins all other Scottish Government policy for children, young people, and families. GIRFEC puts the best interests of the child at the heart of decisions that affect them. To help provide practitioners and professionals with confidence, clarity and practical support to continue to embed the GIRFEC approach, we host a Learning Network for relevant practitioners across children’s services to complement the GIRFEC policy and practice guidance series. Other measures being taken forward to further raise awareness of the UNCRC, including the best interest of the child, across public authorities in Scotland are discussed at section 1.11 of this report.

Engagement with the national Children’s Services Planning (CSP) Strategic Leads Network has highlighted the key role local multi-agency Children’s Services Planning Partnership (CSPP) governance fora have in relation to describing how the partnership is using children’s rights to inform the structural, procedural and outcome framework of its plan. It also supports partnership working, which creates and maintains effective local GIRFEC practice with children, young people and families (in line with statutory review criteria as part of requirements for Part 3 of the Children and Young People (Scotland) Act 2014) which will help inform the development of each CSPP area’s Children’s Services Plan for 2023-2026.

The Scottish Government is currently undertaking the review of Children’s Services Plans (2023-2026). This will provide individual feedback to each CSPP area against Part 3 statutory criteria, as well as the publication of a national report by summer 2024.

In September 2023, the Scottish Government published a report on the Core Wellbeing Indicator Set as part of national reporting on the Children, Young People and Families Outcomes Framework.

The Scottish Government’s use of the non-statutory Child Rights and Wellbeing Impact Assessment (CRWIA) is continuing to ensure that the best interests of the child are considered in the development of relevant policies and legislation. The CRWIA is discussed at section 2.6 of the Embedding Children's Rights in Scotland: Position Statement (2022).

The UNCRC Act, once commenced, will also place a statutory duty on the Scottish Ministers^[6] to prepare and publish a CRWIA for: all new Bills being introduced by the Scottish Ministers in the Scottish Parliament; most Scottish Statutory Instruments made by the Scottish Ministers; and decisions of a strategic nature made by the Scottish Ministers relating to the rights and wellbeing of children. Following the UNCRC Bill receiving Royal Assent and becoming an Act, all internal guidance, templates, training and processes are currently being updated to ensure ease of use, widespread awareness and compliance with the section 17 CRWIA duties under the UNCRC Act.

Next Steps

• In addition to the published GIRFEC guidance, the Scottish Government will work with local and national partners across universal services to develop professional learning materials to further support GIRFEC implementation. We will also facilitate a GIRFEC learning network for local leaders to promote improvement through self and peer support and evaluation.
• We will work with public authorities and third sector organisations to update our CRWIA guidance and example template for external stakeholders to use.

2.5 Right to Life, Survival and Development

No: 22a

UN Concluding Observation

Urgently reduce infant and child mortality rates, and address the underlying determinants especially poverty, discrimination and disability.

No: 22b

UN Concluding Observation

Conduct an independent inquiry into the unexpected deaths of children in alternative care, custody, mental health care and the military, and ensure the regular collection and publication of disaggregated data on child deaths in all institutional settings;

No: 22c

UN Concluding Observation

Address the high rate of avoidable child deaths and strengthen efforts to prevent suicide and self-harming behaviours among children, including children in care, custody, health settings and immigration detention;

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.10 – Maternity and Neonatal Mortality
• Section 3.11 – Investigation of Child Death and Serious Injury
• Section 7.24 – Mental Health Support for Specific Groups of Children
• Section 7.25 – Suicide Prevention

Progress since November 2022

Maternal and Child Health

The Maternity and Children Quality Improvement Collaborative (MCQIC), which is part of the Scottish Patient Safety Programme, focuses on improving outcomes for women, babies, children, and families in Scotland. The MCQIC has undergone a refresh and was relaunched as the Scottish Patient Safety Programme (SPSP) Perinatal on 7 November 2023. The Programme will continue to focus on improving outcomes for mothers and newborn babies. The SPSP Perinatal programme is currently focusing on reducing stillbirth, neonatal harm, and severe postpartum haemorrhage, as well as the implementation of a national maternity early warning chart.

The most recent Mothers and Babies: Reducing Risk through Audits and Confidential Enquiries Across the UK (MBRRACE-UK) Report, published in November 2022, highlighted that racialised health inequalities continue to have an impact on outcomes for pregnant women and their babies. Working with clinical and midwifery leads, professional bodies and third sector organisations, we have established a short-life working group, tasked with synthesising the learning from confidential enquiries, audits and other reports, to develop a programme of improvement activity for Scotland. In addition, as part of ongoing implementation of The Best Start: Five-Year Plan for Maternity and Neonatal Care (2017), all NHS Boards are expected to prioritise delivery of continuity of carer for women who will benefit from it the most, including those from minority ethnic communities, as well as women who experience multiple social complexity.

Work was also commenced in 2019 with Public Health Scotland (PHS) and Directors of Public Health to develop a toolkit to help Boards undertake a vulnerability needs assessment. The Scottish Government is committed to working with PHS to roll-out the toolkit and support boards in the delivery in order to assess the prevalence of additional support needs among vulnerable women accessing maternity/neonatal services within their area.

The Scottish Government is also continuing to take forward a range of measures which aim to support and promote the health, wellbeing, and life chances of all children in Scotland, including actions to help reduce health inequalities and tackle child poverty. These are discussed at chapter 6 of this report. Support for people who self-harm or who are considering suicide, and their families, is discussed at section 6.7.

Accident Prevention

In Scotland, there is a low incidence of fatalities in the home due to accident. Work on prevention of accidental harm or death is embedded in a range of Scottish Government strategy and policy initiatives including health and early years. Advice on home safety and accident prevention can be found via NHS Inform and from the Scottish Government Parent Club website. Targeted advice is provided from a range of public health and service professionals and programmes including Health Visitors, GPs, Fire, Police and Parenting Programmes. Public Health Scotland continue to publish home safety incident data and provide analysis of key trends to inform policy and operational planning. In addition, Ministers remain committed to delivering a National Care Service to improve quality, fairness and consistency of provision that meets individuals’ needs.

With reference to water safety, the Scottish Government has set a target for a 50% reduction in preventable deaths by drowning across all age groups. Scotland’s Water Safety Action Plan (2022) and funding for Water Safety Scotland are key mechanisms for achieving this.

The Scottish Government Road Safety Framework to 2030 (2021) includes a target to reduce child fatalities and serious injuries in road traffic collisions by 60% by 2030. The Framework includes a number of road safety initiatives, including education and training, that are delivered by partners through annual delivery plans. Transport Scotland collects and publishes information on child casualties sustained in road traffic collisions. This is broken down by severity and different types of road users, such as pedestrians and cyclists.

Investigation of Child Death and Serious Injury

Section 3.11 of the Embedding Children's Rights in Scotland: Position Statement (2022) includes information on current procedures for investigating instances of child death and serious injury in a range of settings.

Neonatal Mortality

The Scottish Government commissioned Healthcare Improvement Scotland (HIS) to lead a national review to understand any contributing factors to the increase in neonatal mortality during 2021-22. The review, which covered reported neonatal deaths across Scotland between 1 April 2021 and 31 March 2022, was informed by relevant data and clinical expertise. The review assessed and determined whether there were any themes, underlying causes or safety factors that contributed to the increased neonatal mortality rate, from both a clinical and system perspective. Key learning points were identified and recommendations for improvements in the quality of care made. This Report has now published. The Scottish Government has accepted the findings and is considering the implications and next steps with partners, including HIS, PHS, and the Perinatal Network.

Mental Health Law

The Mental Welfare Commission for Scotland is undertaking a number of reviews to contribute learning in respect of how deaths of people detained under mental health laws are investigated. The reports of two of these reviews were published by the Commission in August and September 2023. The Scottish Government is currently considering proposals for a new independent investigatory regime.

National Hub for Child Death Reviews

In order to reduce the number of preventable deaths and harm to children and young people, the Scottish Government continues to fund a National Hub to review child and neonatal deaths. The Hub draws on evidence from pre-existing reviews and data, including Public Health Scotland data, Serious and Adverse Event Reviews and Fatal Accident Inquiries, to identify and share learning through the provision of national guidance and annual reporting.

In June 2023, the National Hub published a new national information booklet about the child death review process, designed for practitioners to share with bereaved parents, carers or other family members.

Next Steps

Maternal and Child Health

• The short-life working group met for the first time in September 2023. A further three meetings are scheduled during 2023-24.

Mental Health Law

• The Scottish Government will consider the proposals and respond officially.

National Hub for Child Death Reviews

• The National Hub will provide a data report on its findings. The first report covering the period October 2021-March 2023 is due in winter 2024.

2.6 Respect for the Views of Children

No: 23a

UN Concluding Observation

Ensure the right of all children, including younger children, children with disabilities and children in care, to express their views and to have them taken into account in all decisions affecting them, including in courts and relevant judicial proceedings and regarding domestic violence, custody, placement in alternative care, health, including mental health treatment, education, justice, migration and asylum,

No: 23b

UN Concluding Observation

Strengthen measures to promote the meaningful participation of children in family, community and school settings, and in policymaking at local and national levels, including on so-called “reserved matters”, and develop mechanisms to ensure that the outcomes of children’s and youth parliaments are systematically fed into public decision-making.

No: 23c

UN Concluding Observation

Ensure that all relevant professionals working with and for children systematically receive appropriate training on the right of the child to be heard and to have his or her opinions taken into account.

No: 40d

UN Concluding Observation

Ensure the right of children with disabilities to be heard in all decisions that affect them.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 2.9 - Raising Awareness of Children’s Rights
• Sections 3.13 – Hearing the Views of Individual Children

Progress since November 2022

The Scottish Government is committed to supporting the meaningful and inclusive participation of children and young people and to ensuring that their views are at the heart of decisions that affect them. The UNCRC Act incorporates into Scots law Article 12 of the Convention, which requires that every child has the right and opportunity to express a view in matters that affect them and for their views to be considered. The UNCRC Act is discussed at section 1.2.

Participation at National Level

The Scottish Government is continuing to take steps to ensure that the voices of children and young people are heard at the highest levels of Government. The annual meetings of children and young people with members of the Scottish Cabinet enable children and young people to raise issues that matter to them and to inform the Scottish Government’s agenda over the coming year. The most recent meeting took place on 6 June 2023. The issues raised by children and young people included the UNCRC Bill, Climate Change, and friendship in schools. A report was sent to the children and young people who attended. The Children’s Parliament and the Scottish Youth Parliament (SYP) continue to inform the development of the event to ensure it is a continuous process of engagement.

Participation of Children and Young People in Policy Development

The Child Rights and Wellbeing Impact Assessment (CRWIA) is continuing to ensure that the views of children and young people are heard in the development of proposed policies and legislation. A list of CRWIAs prepared and published by the Scottish Government is available on our website.

Developed by the Children’s Rights Unit, the Children and Young People’s Participation Framework Agreement enables policy areas across the Scottish Government to identify, recruit and engage with contractors that have the skills and expertise required to design and deliver bespoke, high-quality participation activities with children and young people. This will provide a mechanism which will support Scottish Government policy teams to meaningfully and sustainably engage with children and young people as part of decision-making and policy design processes. The Framework went live in January 2024 and will initially run for 3 years before being reviewed.

The Scottish Government has also funded SYP to create a new participation toolkit to support public authorities and Scottish Government officials in engaging with children and young people. The Right Way, which includes learning resources and online training on Article 12, was published in April 2023. The SYP delivered training with the Scottish Government’s Executive Team on using the Right Way resource in November 2023.

We also continue to ensure that children and young people’s views inform the development of policy. Examples of this are listed below.

Disabled Children and Young People

The Scottish Government has committed to delivering a National Transitions to Adulthood Strategy during this parliamentary term to support disabled young people as they make the transition to adult life. This was reaffirmed in the First Minister’s Policy Prospectus (April 2023). Young disabled people’s views are integral to the design and development of the National Transitions to Adulthood Strategy in order for it to be as effective as possible. We have directly engaged with three groups of disabled young people and will ensure that there is sufficient time for the meaningful engagement and participation of more disabled young people throughout the development of the Strategy.

In 2022-23, we provided funding to a sub-group of the Disabled Children and Young People’s Advisory Group to:

• identify and develop tools and methodology to support the meaningful engagement and participation of disabled children and young people whose needs are complex and whose voices are rarely heard, and their families; and
• establish what matters to this cohort of disabled children and young people and their families to inform the development of the National Care Service and the National Transitions to Adulthood Strategy.

The learning insights and outputs from this project are available in the Seen, Heard, Included – Report.

Additional Support for Learning in Education

We are determined to improve the educational experiences of children and young people with additional support needs. The Review of Additional Support for Learning Implementation set a clear direction on how we can continue to build on progress, making recommendations on how to improve implementation of additional support for learning (ASL).

Our Additional Support for Learning Action Plan with COSLA and ADES, published October 2020, set out the measures we will take to implement the recommendations, including those relating to the participation of children and young people in decisions relating to their additional support needs. An Updated Additional Support for Learning Action Plan and progress report, published November 2022, highlighted that 24 actions have been fully completed, including the publication of the Vision Statement for Success for children and young people with additional support needs, which was created by Young Ambassadors. The Additional Support for Learning Network has also been established, ensuring a wide-ranging group of stakeholders are involved in the development and delivery of ASL policy.

We are continuing to progress work to deliver the Action Plan and, while we have made good progress, we recognise that there is a lot more to do. We are working closely with local government partners through the Additional Support for Learning Project Board to deliver the remaining actions and have re-engaged with children and young people and their families to ensure that they are involved in shaping this work.

Education Reform

The National Discussion on the future of Scottish education, which concluded in December 2022, was a generational opportunity for children, young people, and those who support them, to have their voices heard concerning the future direction of Scottish education. Children’s rights were firmly grounded in the subsequent vision All Learners in Scotland Matter, published in May 2023, and the accompanying values and call to action.

The Independent Review of Qualifications and Assessment, led by Professor Louise Hayward, was designed to recognise the achievements of all of Scotland’s learners. The Hayward Review involved a range of specific communities of interest which was designed to ensure that a representative voice of learners was embedded within the findings and recommendations. The inclusive and participatory approach recognised the diversity of Scotland’s learners and communities, with community groups specifically seeking to involve people whose voices are seldom heard in policy discussions. The Review recognised that learners, and those that support them, should be at the centre of decisions regarding the reform of qualifications and assessment. The subsequent final report It’s Our Future – Independent Review of Qualifications and Assessment (June 2023) highlighted a range of principles, the first of which was to “recognise, value and promote the rights and achievements of every learner”.

The Scottish government is committed to reform of our national education bodies. These will be underpinned by values and governance that put learners at the centre, with their perspectives and rights at the heart of decision making.

Scottish Government officials have been working in partnership with Young Scot, who is acting as co-ordinator on behalf of the other four key partner organisations (Children in Scotland, Children’s Parliament, Intercultural Youth Scotland, and Scottish Youth Parliament) to help challenge our thinking, with a view to creating a sustainable mechanism to support our work with children and young people and more firmly place learners at the centre of education policy. The new approach is being co-designed with children and young people.

Mental Health Law

The Scottish Government is currently considering how best to take forward recommendations made by the independent Scottish Mental Health Law Review (2022). This includes strengthening rights for all those subject to compulsory care and treatment under mental health legislation, which ensures their voices are heard and that they continue to be involved in decisions concerning their care and treatment. The Scottish Government published Scottish Mental Health Law Review: our response in June 2023. We are now designing a Mental Health and Capacity Reform Programme to take forward a staged approach to legislative change and support wider system improvements. We will publish our first delivery plan in early 2024, setting out the initial priorities for the programme and actions that will be progressed.

Hearing the Views of Individual Children

Section 3.13 of the Embedding Children’s Rights in Scotland: Position Statement (2022) provides information on processes in place to support and promote the participation of individual children in the decisions that affect them. This includes arrangements in relation to education, including additional support needs, Children’s Hearings, and youth justice.

Through the continued implementation of the Scottish Government’s Getting it right for every child (GIRFEC) approach and the development of best practice, children and young people’s views should be routinely sought by services and practitioners working with them, and should inform the services or support they receive. The GIRFEC approach is clear that all children and young people should be heard and that any condition or disability which may affect a child’s ability to communicate should not prevent them from expressing their views in all matters affecting them. A GIRFEC learning network will be developed to help embed collaborative improvement activity.

Participation of Very Young Children

The Scottish Government has also continued to disseminate and promote the Voice of the Infant Best Practice Guidelines and Infant Pledge (March 2023) across professional groups and those working with babies and infants. The intention is to provide guidance on how to take account of infants’ views and rights in all encounters they may have with professionals in statutory or third sector services, or in public spaces. The Scottish Government also published its new Mental Health and Wellbeing Strategy in June 2023, followed by the publication of a Delivery Plan and Workforce Action Plan (November 2023), all of which include commitments to perinatal and infant mental health supports and services.

Advocacy Support

We are working across the Scottish Government to review existing advocacy arrangements to support children and young people in accessing their rights and to consider if and how we need to strengthen the provision of advocacy for children and young people who need it. We are also supporting the Promise Scotland’s work to scope a national lifelong advocacy service for Care Experienced people. The Promise Scotland have produced a scoping report on lifelong advocacy with recommendations. The report was presented to the Scottish Government at the end of 2023 for consideration.

Advocacy in the Children’s Hearings System is discussed at section 3.13 of the Embedding Children’s Rights in Scotland: Position Statement (2022).

Unaccompanied Asylum-Seeking Children

The Scottish Guardianship Service provides unaccompanied children who have been or are at risk of trafficking with a Guardian to help them navigate life in Scotland and complex asylum and welfare processes. The Service facilitates the Guardianship Young People’s Voices Group, which is crucial in providing opportunities for the young people to discuss issues that are important to them with organisations or through advocates. The Scottish Guardianship Service was replaced by a statutory Independent Child Trafficking Guardian service in April 2023, see section 8.1.

Family Law

The Children (Scotland) Act 2020 will remove the presumption that a child aged 12 or over is considered mature enough to give their views in decisions relating to parental responsibilities and rights under the Children (Scotland) Act 1995, Children’s Hearings and adoption and permanence cases. This was in response to concerns that the presumption was leading to the views of younger children not always being heard, which was not the intention when the provision was introduced.

Next Steps

Participation at National Level

• The Scottish Government will continue to support the meetings of children and young people with members of the Scottish Cabinet and Executive Team.
• The Children and Young People Participation Framework, which will support Scottish Government policy teams to meaningfully engage with children and young people, came into operation in January 2024.

Disabled Children and Young People

• We will continue to engage with disabled children and young people in the development of the National Transitions to Adulthood Strategy

Additional Support Needs

• An updated Additional Support for Learning action plan will be published in spring 2024.

Education Reform

• We will continue to develop and implement a comprehensive participation and engagement mechanism which will be realigned to support the education reform programme to ensure that the voices of children and young people are heard and will inform educational change in the system.

Mental Health Law

• We will publish an initial delivery plan for the Mental Health and Capacity Reform Programme in early 2024.

Participation of Very Young Children

• We will continue to disseminate and promote the Voice of the Infant Best Practice Guidelines and Infant Pledge to ensure those who work with babies and very young children uphold our commitment to facilitate infants to express their feelings, and to consider their views, uphold their rights, and take action accordingly. We will also determine how to measure the implementation and impact of the Voice of the Infant Best Practice Guidelines.

Family Law

• We will identify what provisions in the Children (Scotland) Act 2020 in relation to the views of the child can be commenced in the next planned phase of commencement.
• We also plan to review the Instructions to Child Welfare Reporters and the Child Welfare Report: Guide. When doing this, we will consider what more we could say on the rights of the child and, in particular, the child’s views.
• We will also review our guide for children, Speaking to a Child Welfare Reporter, taking account of any feedback we have received on this resource. We also plan to consult on and then publish a guide, based on the guide for children, aimed at children with a lower reading age.