Human rights in the UK: Universal Periodic Review, 2017 – Scottish Government position

10. Protecting children's rights

Law, policy and budgeting

Provisions in individual aspects of Scots Law have strengthened children's rights in Scotland. For example the Children (Scotland) Act 1995, ^[90] Children's Hearings (Scotland) Act 2011, ^[91] Human Trafficking and Exploitation (Scotland) Act 2015. ^[92] The CYP (Scotland) Act 2014 ^[93] ( CYP Act) places specific duties on Scottish Ministers to keep under consideration whether there are any steps which they could take which would, or might secure better or further effect in Scotland of the UNCRC requirements and to take steps identified by that consideration. The CYP Act requires Ministers to promote public awareness and understanding of children's rights and to report every three years to the Scottish Parliament on relevant progress and their plans for the subsequent three year period. The CYP Act also places a duty on a wide range of public authorities, including local authorities and health boards, to report every three years on the steps they have taken in that period to secure better or further effect to the requirements of the UNCRC.

The 2016-17 Equality Budget Statement ^[94] included a section on the impact of budget decisions for children and young people and their rights and wellbeing. This is also a feature of the 2017-18 Budget Equality Statement. The Scottish Government has prioritised funding allocations to areas of expenditure that benefit children and young people and their families, including access to health visitors, expanding free early learning and childcare, free school meals, attainment, and child and adolescent mental health services ( CAMHS). In May 2016, Scotland's First Minister identified the Scottish Government's defining mission as ensuring that all children in Scotland have equality of opportunity and "a fair chance in life." ^[95]

Child Rights and Wellbeing Impact Assessments ^[96] ( CRWIA) have been introduced to ensure that all parts of the Scottish Government consider the impact of proposed policies and legislation on the rights and wellbeing of children and young people, including consideration of specific groups of children and young people, such as those with disabilities or vulnerabilities. Completed CRWIAs are published on the Scottish Government website. The process ensures that policy officials take account of the views of children and young people and consider both direct and indirect impacts on children and young people, as well as any necessary mitigation steps.

The Scottish Government's Getting it Right for Every Child ( GIRFEC) ^[97] approach focuses on considering each child's needs in a holistic way, looking at their whole wellbeing and encouraging early intervention/prevention and co-ordination around the family. When commenced, the Named Person and Child's Plan provisions in the CYP Act will place these parts of GIRFEC on a statutory footing. Some areas already deliver these on a non-statutory basis, and the CYP Act has put into statute a holistic definition of wellbeing for children and young people, as set out by the wellbeing indicators (safe, healthy, achieving, nurtured, active, responsible, respected and included). GIRFEC is for all services and practitioners working with children and their families.

Children's Commissioner

The Commissioner for CYP (Scotland) Act 2003 ^[98] established the role of the Commissioner for Children and Young People in Scotland. The Act makes clear that the Commissioner is not to be regarded as a servant or agent of the Crown and is not subject to direction or control of any Member of the Scottish Parliament, the Scottish Government or the Scottish Parliamentary Corporate Body ( SPCB). The SPCB sets the terms of the Commissioner's appointment, including funding support. The 2003 Act provides for the Commissioner to undertake investigations in respect of how service providers have taken account of the rights, interests and views of groups of children and young people in decisions that affect them. When commenced in 2017, provisions in Part 2 of the CYP Act will empower the Commissioner to conduct such investigations on behalf of individual children.

Participation

The Scottish Government is working with partners to meaningfully and sustainably engage children and young people in policy making on issues that affect them. Some recent examples are: the Commonwealth Games 2014 Legacy; the National Conversation; underage drinking; Children and Young People's regional summits in 2015 (which contributed to the Year of Young People 2018 agenda and Fairer Scotland ); and the co-design work on the Year of Young People 2018. The Scottish Sentencing Council's Business Plan, detailing work up to October 2018, includes consideration of the application of sentencing for children and young people being dealt with within Scottish courts. The Family Law Committee of the Scottish Civil Justice Council, which advises on civil court rules and procedures, is carrying out work on the voice of the child, following a policy paper prepared by the Scottish Government. In particular, it is looking at Form F9, used by the courts to obtain a child's views in cases such as contact, residence and parental responsibilities and rights.

In undertaking CRWIAs, officials can be supported to seek the views of children and young people by a range of Scottish Government-funded youth organisations, including the Scottish Youth Parliament, the Children's Parliament, Article 12 in Scotland, and Young Scot. The Children and Young People Commisioner Scotland ( CYPCS) can also advise.

The Scottish Government is committed to doing more to ensure that the voices of children and young people are heard. It acknowledges that existing participation structures do not always meet the needs and aspirations of all children and young people, and that more needs to be done to establish systematic, co-ordinated and sustainable participation structures for engaging meaningfully with children and young people in local and national decision-making.

Diversity and equality in schools

The Scottish Government is committed to delivering excellence and equity in Scottish education: raising attainment for all children and young people, and closing the gap in attainment between Scotland's least and most disadvantaged young people. The National Improvement Framework and Improvement Plan (December 2016) ^[99] is designed to help deliver the twin aims of excellence and equity, galvanising efforts and aligning collective improvement activities across all partners in the education system to address the key priorities of:

• improvement in attainment, particularly in literacy and numeracy
• closing the attainment gap between the most and least disadvantaged children
• improvement in children and young people's health and wellbeing
• improvement in employability skills and sustained, positive school leaver destinations for young people

Within this framework the Scottish Attainment Challenge ^[100] aims to deliver equity in educational outcomes, with a particular focus on closing the poverty-related attainment gap. It is supported by the £750 million Attainment Scotland Fund, which currently targets support to schools and local authorities with the highest numbers of pupils living in areas of multiple deprivation and, from 2017-18, will provide additional financial support to schools-based on the number of pupils eligible for free school meals, reaching around 95% of schools in Scotland. In addition to improving literacy and numeracy, the challenge will support the health and wellbeing of children in school, at home and in the community.

Support for children and families in the early years is critical, and the Scottish Government has established the Children and Young People Improvement Collaborative ( CYPIC), ^[101] which joins the Early Years Collaborative and the Raising Attainment for All Programme. The CYPIC is supporting schools, early learning and childcare settings, health services and family support services to use the 3-Step Improvement Framework to test, measure and implement better ways of working to make services more effective and responsive to the needs of children, young people and families.

In Scotland there is a presumption that the education of all children should be provided in mainstream schools, with some specified exceptions - what is key is meeting the individual needs of children and young people. The Scottish Government is reviewing, in 2017, the guidance for schools and education authorities on mainstreaming to take account of more recent legislation and policy developments. The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) requires education authorities to identify, provide for and review the additional support needs of their pupils. Additional support may be required to overcome needs, short and long-term, arising from learning environment; health or disability; family circumstances or social and emotional factors.

The Scottish Government Equality Outcomes and Mainstreaming Report 2013 ^[102] set a specific equality outcome for education with a focus on disability, Gypsy/Travellers, sex and bullying. The Equality Outcomes and Mainstreaming Report 2015 ^[103] reported on progress, including how equality is being mainstreamed in education policies.

Within this educational context there has been a broad range of recent activity to support the realisation of the human rights of children and young people. The following are some examples:

• Revised Scottish Government guidance, Planning improvements for disabled pupils' access to education (Autumn 2014), ^[104] supports education authorities to meet their duties under Scottish legislation ^[105] to develop and publish accessibility strategies to increase pupils' access to education - this duty is further to responsible bodies' duties under the Equality Act 2010 to make reasonable adjustments for disabled pupils
• Scotland's Youth Employment Strategy ^[106] addresses recommendations in the Commission for Developing Scotland's Young Workforce report (June 2014), including those relating to equality issues ^[107] in education and employment
• The Education (Scotland) Act 2016 ^[108] supports a range of improvements covering the attainment of pupils from poorer backgrounds, giving children a voice in matters that affect them, and extending the rights of children with additional support needs
• In response to recommendations of the Doran Review, ^[109] a National Commissioning Group will soon consult on a draft ten year 'Strategy for the Education Provision for Children and Young People with Complex Additional Support Needs'
• The Scottish Government is currently (Spring 2017) consulting widely on the draft guidance 'improving educational outcomes for children and young people from travelling cultures'

A specific quality indicator on ensuring wellbeing, equality and inclusion has been included in the national self-evaluation tools, How Good is Our Early Learning and Childcare? , How Good is Our School? , and How Good is our College?

In 2017 the Scottish Government is refreshing the 2010 guidance The National Approach to Anti-Bullying for Scotland's Children and Young People . ^[110] This will communicate and promote a common vision, and aims to make sure that work across all sectors and communities is consistently and coherently contributing to a holistic approach to anti-bullying, including prejudice based bullying, in Scotland. The Scottish Government continues to fund and support Scotland's anti-bullying service 'respectme', which provides direct support to local authorities, schools, youth groups and all those working with children and young people. It is jointly managed by the Scottish Association for Mental Health ( SAMH) and LGBT Youth Scotland.

The Scottish Government is also refreshing the 2011 guidance Included Engaged and Involved Part 2: a positive approach to preventing and managing school exclusions ( IEI2). ^[111] The refreshed guidance will focus on prevention, early intervention and response to individual need in line with the GIRFEC principles. Exclusion should only be used as a last resort, a proportionate response where, having considered all the facts and circumstances, there is no alternative. Where exclusion is used, it should be a short-term measure with the aim of improving outcomes, and there is a right of appeal against a decision to exclude.

The promotion of diversity and equality remains an important aspiration of Scotland's Curriculum for Excellence. ^{[112] [113]} Relationships, Sexual Health and Parenthood ( RSHP) education is an integral part of the health and wellbeing area of the curriculum. Scottish Government guidance ^[114] clearly states how important it is that RSHP education addresses diversity and reflects issues relating to LGBTI young people or children with LGBTI parents, such as same sex marriage and hate crime reporting. Children will be encouraged to discuss these subjects with their peers and parents, and teachers should discuss proposed lessons and resources with parents in advance. If parents or carers feel the content is not appropriate they can withdraw a primary school-aged child from all or part of a planned programme, and arrangements should be made for the child to have alternative positive educational provision.

Religious and Moral Education is one of the eight curriculum areas, and the experiences and outcomes help children and young people to explore the world's major religions and views which are independent of religious belief, and to be challenged by these different beliefs and values. On 14 September 2016 the Humanist Society Scotland served a petition for Judicial Review on Scottish Ministers to challenge certain aspects of the Scottish Government's position on Religious Observance ( RO). The petition was narrowed in scope, with the remaining point relating to a request that Scottish Government guidance on RO make clear mention of children's rights in any decisions about withdrawing. The Court granted a further motion to sist the Judicial Review action for three months to March 2017 and the Scottish Government is carrying out a consultation process with a small number of stakeholders - the consultation period ran until 24 February 2017.

While there is currently no legal right for pupils to remove themselves from RO, the flexible approach to learning and teaching afforded by Curriculum for Excellence encourages schools to discuss options with both parents and their children, including in relation to a decision to withdraw from RO. Listening to the views of young people themselves on all aspects of education is very important, as the Scottish Government has clearly recognised through its approach in the CYP (Scotland) Act 2014 and the current Education Governance Review. The Scottish Government welcomes the opportunity to work with key interests to discuss how to ensure this approach is fully reflected through religious observance guidance.

The Scottish Government works closely with the Scottish Funding Council, local authorities, the Students Awards Agency for Scotland and the college sector to ensure that further education funding and student support mechanisms are designed to best meet the needs of students with additional support needs. For example, the (non-income assessed) Additional Support Needs for Learning Allowance and the 'Access and Inclusion' fund. ^[115]

Higher education

The Scottish Government believes that access to higher education should be based on the ability to learn and not the ability to pay. To support this, the Scottish Government pays tuition fees for eligible full-time Scottish domiciled and EU students studying their first Higher National Certificate/Diploma or undergraduate degree at Scottish higher education ( HE) institutions. Bursaries and student loans are available to ensure that Scottish-domiciled HE students are able to support themselves, and a minimum income guarantee provides financial living support for the poorest households. In October 2016 the Scottish Government launched a comprehensive review of student funding to ensure it is fair and equitable to students throughout their learner journey. The review will report in Autumn 2017.

More Scots are being accepted through UCAS (Universities and Colleges Admissions Service) to attend university than ever before. Scottish domiciled full-time first degree university entrants rose 12% between 2006-07 and 2015-16, from 25,790 to 28,770. Latest figures also show a 1.1% increase in entry rates for 18-year olds from the 20% most deprived areas in Scotland. The entry rate for this group is the highest on record (10.9%) and is, proportionately, 51% higher than in 2006. The Scottish Government is investing more than £51 million each year to support approximately 7,000 additional places for access and articulation from college, and has accepted the ambitious agenda for change laid out by the Commission on Widening Access, including stretching national and institutional targets.

Voting age

The Scottish independence referendum in 2014 was the first occasion at which all eligible 16 and 17-year olds were able to vote in a national electoral event. The Scottish Elections (Reduction of Voting Age) Act 2015 ^[116] lowered the voting age to 16 for elections to the Scottish Parliament and local government elections in Scotland. This allowed 16 and 17-year olds to vote in the 2016 Scottish Parliament election and they will be able to vote in the May 2017 local government elections.

Minimum age of criminal responsibility

The current age of criminal responsibility in Scotland is 8-years old, however a child under 12 cannot be prosecuted through the courts but can be referred on an offence ground to the children's hearing system. A Minimum Age of Criminal Responsibility Advisory Group was established to address the underlying issues of a change in the minimum age of criminal responsibility, with a view to bringing forward recommendations for public consultation in early 2016. The Advisory Group report ^[117] recommended that the age be raised from 8 to 12, and that the move be accompanied by a number of safeguards.

The Scottish Government announced on 1 December 2016 that it will be introducing a Bill in the current parliamentary session to increase the minimum age of criminal responsibility from 8 to 12, with appropriate safeguards in relation to issues such as police powers in exceptional cases to investigate harmful behaviours, or to take and retain forensic samplings, disclosure, and the impact on victims. This will align the age of criminal responsibility with the minimum age of prosecution in Scotland.

Physical punishment of children

The existing legislation in Scotland makes it illegal to punish children by shaking, hitting on the head or using an implement. The Scottish Government remains opposed to physical punishment of children but does not intend to bring legislation forward to repeal all legal defences and ban physical punishment, which could potentially criminalise parents for lightly smacking their children.

Recruitment to the armed forces

The UK Government is responsible for recruitment to the armed forces. Armed Forces (Enlistment) Regulations 2009 ( SI 2009/2057) ^[118] prohibit persons under the age of 18 from joining the Armed Forces without the consent of prescribed persons; in Scotland, those with parental responsibilities. All Service personnel have a statutory right to claim discharge up to their 18th birthday, and the right of discharge is made clear to all Service personnel on joining the Armed Forces.

While defence policy is reserved to the UK Government, wellbeing of young people is not. The Scottish Government expects the Ministry of Defence to comply fully with its obligations to ensure that those recruited to the armed forces, including those from Scotland, do not see active service in conflict before the age of 18.

Child sexual exploitation

An updated National Action Plan to Prevent and Tackle Child Sexual Exploitation ^[119] was published in March 2016 and the Scottish Government continues to work with a national working group on implementation, as well as working across government and in consultation with external stakeholders to update the Child Internet Safety Action Plan , ^[120] ensuring that this is linked to both the digital participation and cyber resilience strategies and to work being taken forward in schools. The plan will be published in Spring 2017.

Historic abuse of children

Following an InterAction dialogue with survivors of in-care abuse and former providers of care in 2012, an Action Plan on Justice for Victims of Historic Abuse of Children in Care was developed with two main recommendations: acknowledgement and apology (including commemoration), and accountability (reparation, inquiry and access to justice). The Scottish Child Abuse Inquiry, chaired by Lady Anne Smith, is looking into abuse of children in care and is expected to report within four years of starting work on 1 October 2015. ^[121] On 31 January 2017 the inquiry hosted a preliminary hearing, which provided an update on its work including details of the investigations currently underway. These investigations include institutions run by faith based organisations, other major care providers, boarding schools and local authorities. Public hearings will proceed in phases, with the first commencing on 31 May 2017.

On 29 September 2016 the In Care Survivor Support Fund was launched. The fund, which is open to individuals who were abused whilst in care in Scotland, co-ordinates access to and delivery of resources, integrated care and support tailored to the needs of the individual. Additionally, since 2009, the Scottish Government has invested £9 million in third and voluntary sector organisations which offer a wide range of local services across Scotland that support survivors of child abuse. The Survivor Scotland Strategic Outcomes and Priorities 2015-2017 ^[122] sets out a clear strategy and broad vision to support survivors of child abuse, and includes a wide range of actions covering prevention, awareness raising, training, innovation across third and voluntary sector practice, as well as care, treatment and support where it is needed.

On 16 November 2016, the Scottish Government introduced a Bill to the Scottish Parliament to remove the three year limitation period for civil actions arising out of childhood abuse (defined to include sexual, physical and emotional).