UN Convention on the Rights of the Child Bill

We are supportive of the Bill. Direct incorporation will raise the profile of children’s rights within public organisations which will help to make it easier for children to access rights. To reach its full potential the Bill will need to be supported by practical help for implementation for public authorities directly subject to the requirements as well as those organisations advocating on behalf of and supporting children’s direct participation in decisions which impact them.

This raises the status of these rights and makes it more likely that they will be at the forefront of decision making when developing and delivering services. The threat of legal action will also, undoubtedly, lead to earlier resolution in some individual disputes. It is not though a right that we anticipate will be used extensively in itself. In practice, litigation is inaccessible for most. This is not simply a matter of cost, the courts remain an intimidating prospect, going to court may mean losing your privacy and will mean entering into a process which is based on an adversarial approach which feels uncomfortable for many. That may especially be the case where there will be a long-term relationship with the public authority.

Outside of significant test cases, which we are pleased to see the Children’s and Young Persons’ Commissioner for Scotland will be able to take forward as a result of new powers given to them in the bill, disputes about the application of the rights are more likely to be dealt with through alternative dispute resolution routes including complaints processes rather than through the courts. This will not necessarily mean the routes are less effective. We note the comment by Clan Childlaw in their response to an earlier Scottish Government consultation:

“ … when we have threatened further legal action against local authorities for not implementing a care leaver’s rights, they have taken steps to meet their duties to those individuals. However we remain concerned that this does not always lead to the authority addressing their practice in relation to all young people in their care. More positive change has, in contrast, come about when we have had a complaint upheld by the Scottish Public Services Ombudsman, because their decision has an impact on local authority practice.”

We anticipate this is likely to remain the case and that, while the court route is an important safety net, the route that will be mostly used and may be more practically effective will be the complaints process or other ADR options. The ombudsman cannot declare breaches of legislation but can consider how organisations are taking rights into account in their decision making and demonstrating or not their compliance with their obligations. We regularly make recommendations that look at systems-wide improvements that don’t simply address the issue for that particular individual, but lead to changes for all service users going forwards

As noted above while the ability to litigate raises the status of rights, it will probably remain a little-used route for accessing rights for individuals Resources focused at supporting front-line decision-makers to get the decisions right first time when considering rights and ensuring policies and procedures are child-friendly and accessible will have more immediate impact. The Government is planning to produce guidance and support as part of the implementation process. We would recommend they take a strong front-line focus to this work as often the gap between rights and implementation occurs when the language and approach in guidance and policies remains aspirational rather than practical with the result that decisions-makers can struggle when trying to translate that into day to day decision-making. Examples are incredibly helpful as are sharing experiences between public authorities. We find front-line staff can be frightened by the language of rights and the prospect of litigation risks increasing that fear. This can be mitigated by providing clear tools, support and direction that emphasise showing how they can rather than just telling them why they need to take rights into account.

From our own perspective, we would welcome sharing of knowledge and experience that would allow children’s views to be more clearly taken into account when developing policy and practice. Assumptions are often made about what works best for children and young people without their participation. One of the reasons for this is that, for some authorities,, that need is sporadic. Generally, the resources and support being proposed for the implementation of the Bill will be most effective when they can reflect the diverse range of organisations and authorities who will need support from the large to the small and from those who regularly engage with children to those who do so sporadically.

The implementation resourcing is also set out for a three year period. Public authorities will need advice and support for as long as this legislation remains in force and while there will be a short-term need if this Act is to have a long-term impact, some thought should be given to the need for resources beyond that early stage.

Being a child or a young person is only ever part of someone’s identity. The UNCRC itself points to this with specific reference to family, minority languages and culture and ensuring the rights of children with disability. Intersectionality, the need to understand the way different identities or needs interact is essential to ensuring rights are protected and means the rights in this Bill need to be seen with and alongside equalities and human rights generally. This Bill has been taken forward ahead of planned work to look at a human rights framework for Scotland but that does not prevent the need to understand these rights as part of a broader landscape and ensure that they are integrated into that landscape and we anticipate that will be reflected in the implementation resources.

Reporting requirements are important tools that, like the prospect of litigation, ensure public authorities take rights seriously. However, to be effective they need to be supportive rather than burdensome and while the Bill allows public authorities broad discretion around how to report, some support for best practice and to encourage some consistency to allow for benchmarking between similar organisations would be welcome.

The policy memorandum highlights legislation already taken to ensure children’s rights are respected and the obligations already in place. Our public casework database contains examples of cases where, despite this, rights have not been respected and many of the organisations who will participate in this consultation would be able to provide many more. Legislation is the start not the end of the process and while it provides a framework, it is the lengthy, on-going work of turning that into practice where success or failure happens and that is why on-going resources and support for this work over the lifetime of the legislation is critical to the success of the bill.