Children's Rights: legislation is not enough

The recent decision of the Supreme Court, that certain provisions of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill were beyond the competence of the Scottish Parliament, was of course, a huge disappointment. A Bill, due for Royal Assent and to be commenced within six months, is now in limbo.

This setback compounds the 30-year delay between ratification of this important Convention and its incorporation. That has meant that international human rights have, for too long, been inaccessible for children in Scotland.

So many children and young people were ‘unfearties’; arguing for and winning an important Scottish Government commitment to UNCRC incorporation. Incorporation would mean human rights for children would not be just an aspiration but would be tangible and able to be claimed by children to challenge public authorities in Scotland’s courts and tribunals.

The Deputy First Minister and the Scottish Government have committed to working quickly to do all they can to fix the issues with the Bill. That’s good news, but as Government and the Scottish Parliament grapple with the legal challenges, it is worth taking some time to reflect on all the powers Scotland already has to guarantee children’s rights - and what it takes to make them real.

For children to meaningfully enforce their legal rights in courts and tribunals there must be access to justice. That’s why the promise made clear that care experienced children must have a lifelong right to advocacy. There must also be development of child legal accreditation and specialism to ensure child friendly lawyers are ready and able to support children when their rights have not been upheld.

However, getting to the point of challenging unlawfulness through the courts is arguably a demonstration of policy implementation failure. And, unfortunately, the implementation gap in Scotland can often feel like a chasm. There are far too many rights in Scotland that already exist in law but are not made real in practice. living only on the statute books and not in the lives of the children who need them most.

To name a few:

• the Additional Support for Learning Act places duties on Local Authorities to make provision for and support care experienced children. And yet. educational outcomes for care experienced children and young people are poor and exclusion is higher than for their peers who haven’t experienced the ‘care system'.
  
  
• Scotland has an incredibly progressive legislative framework for young people under continuing care. Children can ‘stay put’ till they are 21, supporting a more seamless transition. However, speak to any advocacy and children’s legal specialist in Scotland and the reality is that this legislation is not implemented consistently. Compounding this, young people are often moving on to inadequate, unsupported accommodation, without the care and relationships they need.
  
  
• Scotland continues to incarcerate children in Young Offenders Institutes, often on remand, before they have been found guilty of any crime.

Legislation can do so much; it frames guidance and policy for public bodies, it can shift culture and expectation and it gives people rights to claim. Under the right conditions, litigation is a powerful tool to engender action. But it is not enough.

On 5th February 2020, Scotland made a promise to its children to implement in full the conclusions of the Independent Care Review and transform how this country cares for them. Plan 21-24 together with Change Programme ONE, published this year, map out what needs to happen, by when and who, and there is unprecedented commitment to make change across public, third and private sectors and those with statutory responsibility for children and families.

But action is needed to shore up the implementation gap that too many of Scotland’s children and young people fall into. It must be a collective effort and can only be achieved through persistent committed work across professions, services and organisations. It is not easy – but it must happen, and Scotland already has the levers to do it.

About the author

Photo credit: Sarah Maclean

Fiona McFarlane

Head of Public Affairs

Fiona works with colleagues and partners across Scotland to ensure that organisations understand their role, responsibility, and purpose in work to #KeepthePromise.

She makes sure The Promise Scotland is well positioned to tell this story of change, and to elevate, support and influence all those who are part of this work.

She also works with The Promise Oversight Board to help them in their public reporting role.

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