The United Convention on the Rights of the Child - the Scottish approach
What is the UNCRC
This year marks thirty years of the Convention on the Rights of the Child (UNCRC), which was produced in 1989. It is widely considered to be the most accepted human rights treaties with 196 UN state parties who have signed up to be bound by it.
In the early days, the arguments in favour of producing this treaty was to demonstrate that the International Community wants to guarantee children's rights. Although children are including also in the rights entailed in the existing two UN Covenants, the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, there were some gaps, e.g., the placement of children in care, which the UNCRC later filled.
The UNCRC is a comprehensive text, consisting of 54 articles, which stipulate the rights of children and young people, covering general principles such as:
the right to life, survival; protection from violence; to have a relationship with parents; and the best interests of the child to be considered in all matters which affect them.
The Convention also looks further into specific situations, such as violence against children, family life and education. It was followed by two Protocols in 2000, asking governments to ensure that children under the age of eighteen are not forcibly recruited to the army and prohibition of child prostitution.
Compliance of the UNCRC is monitored by the Committee on the Rights of the Child Committee, which has eighteen experts, all elected by state parties. Under the third protocol added in 2011, children can complain directly to the UN Committee on the Rights of the Child.
You can read the full text here
What has Scotland done so far
The United Kingdom ratified the UNCRC in 1991. However for it to have legal effect in Scotland, the articles must be incorporated into Scots law, an example of this is the European Convention of Human Rights which is incorporated in the Human Rights Act 1998. There have been many efforts by the Scottish Government to date to recognise the terms of the UNCRC.
Section 1 of the Children and Young People (Scotland) Act 2014, puts a duty on Scottish Ministers to consider steps which could further affect the UNCRC in Scotland and also submit a report to the Scottish Parliament every 3 years to outline what actions they have taken to do so and what steps will be taken to realise the rights of children. Section 2 also requires local authorities, health boards and other public bodies to submit a report along these similar lines.
The Scottish Government introduced the Child Rights and Wellbeing Impact Assessment (CRWIA). A CRWIA allows the Scottish Government to research and analyse the impact of any proposed law or policy on children’s human rights and wellbeing.
Incorporating the UNCRC into Scots Law
In December 2018, the Scottish Government published “Progressing the Human Rights of Children in Scotland: 2018- 2021 Action Plan”, which sets out the plans to embed children’s rights, these include incorporating the principles of the UNCRC into Scots law, evaluate the CRWIA and deliver programs to raise awareness of children’s right in various sectors in Scotland.
In line with the plan to incorporate the UNCRC, the Scottish Government published the consultation, “Incorporating the UN Convention on the Rights of the Child into Scots Law” in May 2019. This explores how to incorporate the UNCRC directly into Scots law. The suggested routes are to directly legislate on the terms, aka lifting the wording from the UNCRC and putting it into domestic law, however comment is made that a difficulty in doing so would be that some of the rights in the UNCRC were drafted to be an obligation on international states and not for the courts in our legal system. Other methods include incorporating only specific rights and the possibility of incorporating any General Comments by the Committee on the Rights on the Child.
The Consultation also looks at enabling compatibility and redress. They comment that if public authorities respect the UNCRC then it will not be necessary for rights holders to go to court to recognise their rights. They propose the idea that children should be able to challenge public bodies if they believe their rights have been infringed.
The Consultation is open for responses until the 14 August 2019, read it in full or respond here