Minimum ages should, without exception, be consistent with all rights set out in the UNCRC. This means that in areas where children’s protection is at risk (for example, in the justice system), all children under the age of 18 should be afforded special protection. Where minimum ages are necessary to correct for potential abuses of power (for example, sexual consent), their enforcement should never run counter to children’s rights. In areas where age restrictions serve no protective purpose and potentially curb children’s development, freedoms, and even protection (for example, the freedom to choose or leave a religion, access to complaints mechanisms), minimum ages should be avoided. Finally, where tensions are present between children’s protection and autonomy (for example, consent to medical treatment), children’s capacity should be the deciding factor and should not be judged generally, but in relation to the issue at hand and the best interests of the individual child. This judgement should take into account the social and cultural norms in a given context, and the power imbalances at play in questions of consent.
Setting age limits (both minimum and maximum) may be required by the principle of legal certainty and the rule of law, but will always be arbitrary to a degree, since every child develops in a unique way.
Scots law has developed in an often ad hoc manner to set a range of different age
thresholds for children. This creates a landscape that is confusing and inconsistent
and the age thresholds often appear arbitrary to children themselves. For example,
children can still be held criminally responsible at the age of 12, but are unable to vote until 16 (for Scottish Parliament and local government elections) or 18 for UK
elections or referendums.
Furthermore, the inconsistent definition of ‘a child’ in Scots law remains complex and unresolved, meaning that in some legal processes, including the criminal justice and mental health systems, children may technically reach the age of maturity and be treated as adults at 16, while in others, such as education and some care and protection proceedings, they are rightly recognised as children up to the age of 18.
We have consistently expressed the view that age limits in some areas of Scots law
are not consistent with the provisions of the UNCRC. With the commitment in Scotland to fully incorporate the UNCRC into Scots Law, if new age limits are to be created in legal processes, they must support the progressive realisation of children’s rights.
The Convention requires that 16 and 17-year-olds be treated as children in all circumstances. Children’s participation rights exist from birth, and in Scotland they attain an array of decision-making rights prior to turning 18. This is consistent with their evolving capacities as they transition from childhood to adulthood. However, this does not mean that they lose their right to protection. Rather, and as the Committee states in General Comment No.20, “the right to exercise increasing levels of responsibility does not obviate States’ obligations to guarantee protection”. Protection and participation are not mutually exclusive, and children’s autonomy can be recognised, while also acknowledging the need to support and protect them.
There is no mechanism in the proposed Bill for setting out how an individual child’s understanding of the process and its consequences would be assessed. The Scottish Government has not set out the way in which the process of statutory declaration would seek to balance these considerations for 16- and 17-year-olds, to guarantee them similar protections as provided for in the Age of Legal Capacity (Scotland) Act 1991.
In other contexts, under existing Scots law, for example, where a child is entering into a legal transaction, instructing a solicitor, or consenting to medical treatment, there is a requirement for professional judgement to be made on a case-by-case individual basis.
The Scottish Government has said it will consider the need for further guidance for 16 and 17-year-olds “to ensure they understand and have carefully considered their decision”. In the Ministerial Statement commencing this stage of the Bill, there was recognition of the rights protections to which children are entitled:
“Under the oversight of the registrar general, National Records of Scotland will routinely give additional, careful consideration to applications from 16 and 17-year-olds. It will provide support on the process and, when necessary, will undertake sensitive investigation, which could include face-to-face conversations with applicants. Every 16 or 17-year-old who applies will be offered and encouraged to take up the option of a conversation with NRS to talk through the process.”
(Meeting of the Scottish Parliament. 03 March 2022. https://www.parliament.scot/chamber-and-committees/official-report/whatwas-said-in-parliament/meeting-of-parliament-03-03-2022?meeting=13611)
From this limited information, it is unclear how this process will be developed or implemented. Nor is it obvious that NRS currently has the expertise to undertake such a role. The organisation is likely to require additional specialised staffing to properly fulfil it. Alternatively, another organisation could be funded to provide children and young people with impartial information, advice and support prior to making an application. As such it is difficult to determine whether this process will provide sufficient safeguards and protection, including for children’s privacy rights, without creating the additional barriers which trans young people have said they would find unhelpful.
It is important to balance these considerations around protection. Limiting access may prevent realisation of other rights. Some young people consider it particularly humiliating when they have to repeatedly confirm whether they identify as male or female or explain why their identification documents are inconsistent. This most commonly occurs when children are sitting national examinations, or making applications for further education, employment, or to government agencies.
We note that the CRWIA accompanying the Bill does not explicitly consider the situation for care experienced children and young people, who may be legally ‘looked after’ under the Children’s Hearings (Scotland) Act 2011, until they are 18. These young people have legal rights to additional support and assistance from the State and their Corporate Parents up to the age of 26, in accordance with the Children and Young People (Scotland) Act 2014.
Additional consideration for care experienced children and young people may be particularly relevant in relation to Section 8 of the Bill which proposes to insert a new subsection into the 2004 Act, as 8S (1)(c) which provides that “a person who has an interest in a gender recognition certificate may apply to the sheriff for the revocation of the certificate on the ground that— c) the person to whom the certificate was issued was incapable of— (i) understanding the effect of obtaining the certificate, or (ii) validly making the application for the certificate”.
It is unclear whether in practical terms, this provision would interfere in an individual’s rights to private and family life under Article 8 of the ECHR; and for 16- and 17-year-olds, Article 16 of the UNCRC by challenging their legal capacity. ‘A person who has an interest’ could be a number of local authority staff involved in the life of a care experienced young person, and as such, more detail is needed in terms of how this would be managed.
As raised in our previous response, we note that there appears to be little research into the circumstances of children who choose to de-transition, and therefore little on which to base decisions around the appropriate levels of protection and safeguards. We continue to advocate for ongoing consideration by the Scottish Government of emerging research and evidence on consent, capacity, autonomy and protection.