Children’s Rights: Consultation on incorporating the United Nations Convention on the Rights of the Child into our domestic law in Scotland

Staf organisational response

Who we are

Staf, formerly the Scottish Throughcare and Aftercare Forum, was formed in 1998 and is Scotland’s national membership organisation for all of those involved in the lives of young people leaving care.

Staf is the only membership organisation for frontline workers and managers focused on throughcare and aftercare of young people from a care-experienced background, with over 70 members.

Key Messages

• Full and direct incorporation: we support this model but believe consideration should be given to additional and complementary rights which could be implemented through further human rights legislation. This should include consideration of a right not to be imprisoned up to the age of 18.
• Proactive duties for public authorities: ensure a rights-based approach is taken in policy and budget decisions.
• Education and training: embed rights education in the curriculum, ensure it reaches young people not in mainstream education or those that have already left education and ensure Corporate Parents receive training so that care-experienced children and young people are aware of their rights and entitlements.
• Meaningful participation of young people: ensure that young people are involved at every stage of incorporation and don’t use jargon.

Approach to consultation

We focused on consulting care-experienced young people to gather their views on children’s rights. Overall, we found that the young people we spoke to have been given a limited understanding of their rights. We also found that the consultation document itself was not particularly accessible, for children and young people or the workers who support them. As such, we have chosen to focus this response on a small selection of the consultation questions.

We are grateful to the young people of the Youth Just Us group for their views on the subject. Youth Just Us are a group of care and justice-experienced young people aged between 16 and 26 who make up the steering group of our youth justice participation project, which we are taking forward in partnership with the Centre for Youth and Criminal Justice.

We have also worked with Staf member Moore House Care and Education to consult young people in their care, who gave up a day of their summer holidays to contribute. The feedback from this has been included in this response.

We are also grateful to Together, the Scottish Alliance for Children’s Rights, whose briefings on the consultation were invaluable to us in drafting this response.

THEME 1: Legal mechanisms for incorporating the UNCRC into domestic law

1. Are there particular elements of the framework based on the HRA as described here, that should be included in the model for incorporation of the UNCRC in domestic law?  Please explain your views.

Yes. The young people we spoke to were clear that Corporate Parents should be required to ensure that care-experienced young people realise their rights and that there is a legal route to challenge decisions. The mechanisms which allow for this in the Human Rights Act should therefore be included in the model of the UNCRC for Scotland.

2. Are there any other aspects that should be included in the framework? Please explain your views.

Yes. We agree with the response from Together (the Scottish Alliance for Children’s Rights) that the Human Rights Act model would be further strengthened by the inclusion of ‘proactive’ duties for public authorities.

By having a duty to have ‘due regard’ to the UNCRC, we believe that the rights of care-experienced young people would be better upheld in the first instance – without need for complaints or legal action.

One young person we spoke to, who agreed for their story to be shared, gave an account of their experience of not having their Article 28 right to education respected. The young person had complex needs and believed that mainstream school could not ensure these were met. However, they had moved from one local authority to another and, as they were close to turning 16, neither were willing to pay for the school placement they required. The young person had to go through a complaints procedure, engage a solicitor and receive support from his MP to secure their school placement. This placed a lot of responsibility and anxiety on the young person that may not have been the case if the decision had been taken with their UNCRC rights in mind.

A duty to have ‘due regard’ to the UNCRC will also require public authorities in leadership positions to make policy and budget decisions from a rights-based perspective. We think this would be an extremely positive step, particularly in a time of financial constraint.

3. Do you agree that the framework for incorporation should include a “duty to comply” with the UNCRC rights?  Please explain your views.

Yes. While it is clearly preferable for the rights of young people to be respected proactively, there must be a clear mechanism to challenge decisions that do not do so.

4. N/A 

5. To what extent do you think other possible aids would provide assistance to the courts in interpreting the UNCRC in domestic law?

An important aspect of Staf’s role is supporting the sharing of best practice amongst all of those that support young people leaving care in Scotland. We recognise that care-experienced young people are a minority but that the challenges they face in making a successful transition to adulthood are significant.

It would therefore be remiss of us not to support the sharing of best practice across international boundaries. In particular, we are supportive of Scottish courts drawing on case law from other jurisdictions that have already incorporated the UNCRC.

We would also draw the Scottish Government’s attention to the UN Guidelines for the Alternative Care of Children^[1], which we believe are a key aid in the interpretation of the UNCRC. While this is a non-binding international instrument, the UN General Assembly has called for “States to take the Guidelines into account and to bring them to the attention of the relevant executive, legislative and judiciary bodies of government…”^[2]

6. Do you agree that it is best to push forward now with incorporation of the UNCRC before the development of a Statutory Human Rights Framework for Scotland? Please explain your views.

Yes, we support the incorporation of the UNCRC at the earliest available opportunity.

However, Youth Just Us and the young people at Moore House both outlined a number of additional and complementary rights that they believe should be implemented in Scotland. We consider that these will support the realisation of the spirit as well as the letter of the UNCRC rights. These are outlined in our response to question 12.

We note the development of a Scottish Statutory Human Rights Framework, which could include economic and social rights, may be one vehicle for the implementation of these rights, as would bespoke legislation.

7. N/A 

8. N/A 

9. How could clarity be provided to rights holders and duty bearers under a direct incorporation approach, given the interaction with the Scotland Act 1998?

The young people of Youth Just Us spoke about workers not being fully aware of their rights and entitlements. With that in mind, we believe that specific guidance should be provided to Corporate Parents, and throughcare and aftercare teams (or leaving care teams or equivalent) in particular, to ensure they understand fully the UNCRC rights and their duties under the new legislation.

Devolution continues to evolve, with new powers transferred to the Scottish Parliament in recent years, including with regard to social security. It is therefore important that those who support care-experienced young people have a good understanding of how the new legislation applies in this context.

Furthermore, in Scotland young people can now stay in their care placement to the age of 21 under the Continuing Care policy and care leavers receiving aftercare services up to the age of 26 are considered to be receiving a ‘children’s service’ for the purposes of local Children’s Services Planning. As such, we would like to see clarity in legislation or guidance as to the upper age limit for the application of UNCRC rights in Scotland. 

10. N/A

11. N/A 

12. What is your preferred model for incorporating the UNCRC into domestic law? Please explain your views.

We are supportive of the full and direct incorporation of the UNCRC, as set out in the Children’s Rights (Scotland) Bill developed by the Expert Advisory Group convened by Together and the Children and Young People Commissioner Scotland.

This method was the preferred model of Youth Just Us. However, the young people believed that it would take a lot of work from public authorities to make the rights a practical reality. 

The group were also clear that rights should be universal and that specific rights for care-experienced young people could cause further stigmatisation. Instead, additional effort should be made to achieve the realisation of their existing rights.

Youth Just Us were, however, supportive of enhancing a number of children’s rights, not exclusive to but including:

• A right requiring that no children aged under 18 should be in prison, with prison ideally for offenders aged over 21 and 18-21 year olds who have committed more serious offences.
• Extension of the Children’s Hearings System to 18 – including offence groups – to ensure that young people aged over 16 can continue to access support.

While Article 38 refers to a reserved area and is therefore outwith the scope of this legislation, Youth Just Us believe the minimum age for army recruitment should be higher. Equally, the young people we spoke to at Moore House were in favour of young people having a right to have a say in the future of the country, particularly in the context of the UK leaving the EU.

At Moore House the young people were in favour of a number of social, economic and environmental rights, including:

• A right to live in a world free from pollution
• A right to access food and drink
• A right to access outside spaces
• A right to access entitlements such as the Young Scot card regardless of whether you are in a mainstream school

The young people also felt that there should be consistency in access to services for care-experienced young people regardless of whether they were in mainstream education, secure care or a residential home. This is a particular issue for young people living in a rural area.

THEME 2: Embedding Children’s Rights in public services

13. Do you think that a requirement for the Scottish Government to produce a Children’s Rights Scheme, similar to the Welsh example, should be included in this legislation? Please explain why.

Yes. We discuss two elements of a possible Children’s Rights Scheme below.

Complaints processes
The young people at Moore House told us that when a young person makes a complaint regarding their rights, they should be given the same respect as an adult. There should also be a named person within an organisation, someone for whom this role is their main duty, who they can take their complaint to. When making the complaint, the young person should be able to be supported by someone they have a positive, nurturing relationship with. When an outcome is reached, the young person should be given the opportunity to be advised of this face-to-face.

The young people felt that it was important for their voice to be heard throughout the process and to feel like the public authority is accountable to them.

Participation of children and young people
Youth Just Us were clear that The Scottish Government should include young people at every stage of incorporation. Working groups established for the implementation of the legislation should include young people in their membership and should seek the contribution of existing participation groups.

A clear barrier to the successful participation of children and young people is the continued use of technical, professional language and terminology. The Children’s Rights Scheme must ensure that rights are presented in easy to understand language, free from jargon.

14. N/A  

15. N/A 

16. Do you think additional non-legislative activities, not included in the Scottish Government’s Action Plan and described above, are required to further implement children’s rights in Scotland?  Please explain your views. 

Yes. To make UNCRC rights a reality a programme of education should be undertaken for children and young people, as well as those who support them.

Youth Just Us told us that their right to know about the UNCRC, enshrined in Article 42, is essential. However, none of the group knew what the UNCRC stood for and what rights were included in it before our consultation session.

The group suggested that education on rights should begin in the early years and that the curriculum should include dedicated lessons on rights. It is important that this education reaches all care-experienced young people, including those not in mainstream education or who have left education. There should also be practical workshops, including for care leavers, on rights and entitlements too. 

Those who support care-experienced young people should also be given additional training on children’s rights and how this translates into practical entitlements.

17. N/A

18. Do you agree that the Bill should contain a regime which allows right holders to challenge acts of public authorities on the ground that they are incompatible with the rights provided for in the Bill?  Please explain your views.

Yes. Please see our answers to question 2 and 13 on the provision of complaints procedures. We would also like to reiterate that information about complaints procedures should be provided in easy to understand language, free from jargon.

19. N/A 

20. N/A

21. N/A

22. N/A

23. Do you consider any special test for standing to bring a case under the Bill should be required?  Please explain your views.

The young people of Youth Just Us believed that where their rights have been breached, organisations that support them, or anyone who they have a positive relationship with, should be able to take cases to court on their behalf. We would be supportive of a model that allows for this, as far as legally possible.

[1] Guidelines for the Alternative Care of Children, UN General Assembly, 2010: https://www.unicef.org/protection/alternative_care_Guidelines-English.pdf

[2] Ibid.