As the CEO of the Craighalbert Centre my focus is on the wellbeing and rights of children with complex communication, learning and health needs. With a long career in children’s services in the public sector and personal experience of the challenges that families with children with additional support needs face, I also like to think of myself as a champion for the wellbeing and rights of all children in Scotland. So, to say that I welcome the incorporation of the United Nations Convention on the Rights of the Child (UNCRC) into Scots law is something of an understatement. However, experience tells me that when dealing with legislation I should not be blinkered by my optimism as how it will operate in practice but also be mindful of the challenges of application and potential unintended consequences.
Unfortunately, the statutory guidance to support the interpretation of the new law has not yet been published hence this blog is based largely on my personal understanding of the legislation.
In this blog, I will give you a quick overview of the new law – we will call it the "UNCRC Act" for simplicity’s sake. I will also share my initial thoughts on this historic development, exploring some of the opportunities, limitations and the challenges I perceive it may well bring: The Good, The Bad, and The Ugly.
The Good
On the 16th of July 2024 Scotland was the first UK Nation to join a handful of European countries in putting into law the rights children have under the United Nations Convention on the Rights of the Child (UNCRC). The UNCRC Act puts new legal duties on local authorities, health boards, police, housing associations and everyone else who provides what could be called a “public function”. This includes those contracted or commissioned to provide public functions, and draft statutory guidance indicates this could also include some non-publicly funded services where they are viewed to provide a public service. These organisations must deliver “relevant functions” (I will come back to that term) in a way that is compatible with all 42 articles in the UNCRC that detail children’s rights. The new legislation makes it clear that it is unlawful for these organisations to fail to act or act in a way that results in an incompatibility with the requirements of UNCRC children's rights.
The UNCRC Act gives children and young people, and those acting on their behalf (usually parents), access to the courts if they believe that their rights are not being upheld. Further, the UNCRC Act gives scope for not only the children and parents to challenge providers of public functions, but also gives that power to individuals, groups or organisations with a legitimate interest. They too have the power to raise court proceedings if they believe the rights of children are being breached by an organisation that delivers a relevant function..
So, for example, a Local Authority providing access to education for a child with additional support needs must do so in a way that:
is in the child’s best interest (Article 3 UNCRC);
supports them to participate in deciding how this is delivered and giving the child’s views due regard (Article 12); and
ensure that the education offered is such that it can develop the child’s personality, talents and abilities to their fullest potential (Articles28 and 29).
If they do not do any one of these or fail to fulfil any of the other 38 Articles of UNCRC, then they are highly likely to be breaching the UNCRC Act and hence breaking the law. If they do not remedy a breach of the Act to the satisfaction of the child, their family or someone with a legitimate interest, then they can be taken to court. If found in breach of UNCRC they may not only have to rectify the breach but may also be liable for compensation.
To my mind this means that all eligibility criteria, prioritisation, waiting list management and resource allocation, in fact all decision making associated with a relevant function, must now be applied in a way that fully upholds all 42 rights that each individual child has. That is, these processes and procedures must be operated in a way that: is in the child’s best interest; involves them; develops them to their full potential; supports them to have the best health possible; and meets all other UNCRC requirements. And if they don’t do this, then they may well have to answer to the courts. The UNCRC Act is a fundamental game changer for children, young people, parents and all that support them.
The Bad
That’s great, new legislation that enforces the upholding of children’s rights and gives children, young people, their parents, representatives and importantly others with a legitimate interest real teeth in challenging where they believe there is a breach of these rights.
So, what’s not to like? Remember I said earlier that the UNCRC Act applied to the “relevant functions” of those providing "public functions", well here’s the rub, the new legislation only applies to duties of providers of public functions if they are provided under common law or if the duty to provide was legislated by the Scottish Parliament. Hence the UNCRC law does not apply to UK or pre–Scottish Parliament created duties. Also, the application of the duty must be through legislation enacted by the Scottish Parliament; hence the UNCRC Act does not apply to legislation created by the Scottish Parliament that changes duties in legislation that was not originally created by the Scottish Parliament.
What does that all mean? It is easiest to take an example. Let’s think about the Children (Scotland) Act 1995 (the 1995 Act); this is not an Act of the Scottish Parliament so the requirements of the UNCRC law do not apply to the duties in this legislation. That is disappointing as the 1995 Act frames duties for Local Authorities and others in relation to “children in need” including children affected by disability. In contrast the new law does apply to duties on providers of relevant functions brought in to force under the Children and Young People (Scotland) Act 2014 (the 2914 Act) as this Act was enacted by the Scottish Parliament. However, the UNCRC Act does not apply to all the duties brought into force by the 2014 Act, even although it was created by the Scottish Parliament. This is because part of the 2014 Act made changes to the 1995 Act by introducing important new duties in the 1995 Act. A new Act like the 2014 Act changing duties in an old Act such as the 1995 Act is common practice to help keep legislation relating to specific areas, “children in need” in this case, as far as possible in one Act and keeping that legislation relevant to the current context. So old Acts are updated by new Acts frequently. The restricted nature of the UNCRC Act, to apply to legislation enacted by the Scottish Parliament means that as the 1995 Act was not enacted by the Scottish Parliament, the UNCRC Act compliance requirements will not apply to the critically important duties that were integrated into the 1995 Act by the 2014 Act. Complicated or what?
Another example of where there are appear to be limitations in the scope of the UNCRC Act is in relation to the duties that govern the provision of NHS services. It appears that the new UNCRC legislation does not apply to the 1978 NHS (Scotland) Act, that continues to be framework for the provision of most NHS services. However the new law does apply to the Patient Rights (Scotland) Act (2011) which sets Treatment Time Guarantees (maximum waiting times) at 12 weeks and the Mental Health (Care and Treatment) (Scotland) Act 2003 among number of other Acts that govern the NHS in Scotland.
A further example may be that the UNCRC Act does apply to The Standards in Scotland's Schools etc. Act 2000 and the Education (Additional Support for Learning) (Scotland) Act (2004), that both detail important duties that promote the rights of children with however it does not apply to the Education (Scotland) Act 1980 which contains many other key duties of Education Authorities.
Annex C. Framework for reviewing compatibility with UNCRC requirements (section 6 duty) - UNCRC (Incorporation) (Scotland) Act 2024 - part 2: statutory guidance - gov.scot (www.gov.scot)
This restrictive scope of effect of the UNCRC Act was never the intention of Scottish Ministers, but a result of the challenges made by the UK Government. To ensure that the new law is compatible with UK wide law the originally proposed legislation required changes narrowing the scope of the legislation significantly and unfortunately making it more challenging to operate in practice.
And the Ugly
I think you may be beginning to see how this could get quite ugly. This law is enforceable from 16th July 2024, so, from this date providers of "relevant functions" are compelled to comply with UNCRC Act requirements for all children, all the time, in all circumstances. Indeed, from the 16th July 2024 the rights of challenge are immediately available for children, their families and anyone with a legitimate interest.
Unfortunately for service providers it may not be straight forward to work out if they are providing a “public function” and if so, is that public function a “relevant function” under the UNCRC Act. So, in plain speak, does the UNCRC Act apply to any, some or all of the services provided by an organisation and if so which ones? The first test is, do you provide a public function? For core public service providers such as local authorities, health boards, Police Scotland, etc. it is clear that the new law will apply to a significant proportion of the services they deliver. However, where a provider is not a core public service provider they will need to clarify if they provide a "public function". In relation to this the draft Statutory Guidance published by the Scottish Government says “the source of funding is not a determining factor in deciding whether a function is public or private in nature…. it is likely that case law will play an important role in clarifying whether functions and acts are within or outwith the scope of the Act in relation to hybrid bodies and the private, voluntary and independent (PVI) sector.”
Once you clarify if the service being provided is a "public function" you will need to clarify if the service is a “relevant function” under an Act of the Scottish Parliament or through common law. If the provision of the service meets either of these criteria, then there is a requirement to comply with the children’s rights provided under the UNCRC Act. If the service is provided under some other power or duty, then it is my understanding that it is highly unlikely that there is a requirement under the UNCRC Act to comply with the 42 Articles detailing children’s rights.
In that the provision of public functions are directed and governed by a highly complex web of Scottish and UK legislation, common law, guidance, policies, procedures and protocols; clarifying where the law applies and where it does not will be challenging. It is anticipated that when published the Statutory Guidance to support the UNCRC Act will go some way to help to clarify where the law has effect and where it does not. However, the evolutionary nature of the laws relating to provision of education, health, social work, police, housing and the environment, all building from legislation that predates the Scottish Parliament, would suggest that lawyers and the courts may be kept busy for some time.
And what about children and families and those that support them? How will they know what services are subject to UNCRC requirements: Child and Adolescent Mental Health Services? Provision of support for learning assistance in schools? Remand of a parent in police custody? Social care support for parents with learning difficulties or mental health challenges? Provision of Social Housing, etc.
Final thoughts
The UNCRC Act applies now. However, I am struggling to understand where the duties apply to the services my organisation and partner organisations provide. And for the children and families we support; where exactly does the new law apply to the services they are receiving, waiting to receive, requesting or may be eligible to receive but are not receiving.
What the UNCRC Act is clear on is, where the law applies in the provision of “public functions” they must be provided: in the child’s best interest; involve them in decisions that affect them; provided in a way that develops them to their full potential; supports them to have the best health possible; and meet the children’s rights set out in the other 38 Articles of UNCRC. This is the law so this must be achieved for all children, in all circumstances, all the time in the provision of public functions under the Act. This applies now.
The risk is that with the new UNCRC Act applying to some provision of public services and not all then there may be unintended, and some may consider undesirable, consequences that influence the provision of public services. Also, the lack of clarity of exactly which functions the law applies to and which it does not puts service providers at risk of breaking the law unintentionally. Lastly the lack of clarity of where the law and applies and where it does not may well impact on the ability of children and families to exercise their rights effectively. One of the main objectives of the incorporation of UNCRC rights in Scots law was to strengthen the ability of those whose rights are most at risk to exercise them effectively. Sadly, in my view, this is unlikely to the immediate effect. And the risk is that this Act increases inequalities, at least in the short term, as those who are best equipped to exercise their rights may well be best able to navigate the complexities of this legislation.
So, is this messy, restricted law on strengthening children's rights and increasing accountability for compatibility with UNCRC requirements better than no law at all? I would say definitely. However, until we clarify how the new law will apply in practice it is going to be a bit of a bumpy ride. I suspect that those who provide advocacy services or manage complaints processes may be kept busy along with policy makers, lawyers and the courts.
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