Consultation on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: Statutory Guidance on Part 2 and 3, section 18

We sought views on draft statutory guidance for Part 2 of the UNCRC (Incorporation) (Scotland) Act 2024 and on draft statutory guidance for Part 3 (section 18) of the UNCRC (Incorporation) (Scotland) Act 2024. The consultation opened on the 22 February 2024 and closed on 16 May 2024.

There were 92 responses submitted to the consultation from individuals (18) and organisations (74). In addition, 55 children and young people were consulted via four organisations who held a range of activities, focus groups and interviews to gather their feedback.

Part 2:

1) Respondents told us that the guidance was too long and needed to be clearer, some of the language was difficult to understand. Some respondents asked for sections to be moved and some suggested extra information.

2) Some respondents wanted examples of organisations and workers who have to follow the guidance. Others asked for more specific, directive, operational level guidance focused on the practical side of how to uphold children’s rights.

3) Some respondents felt that legal expertise would be needed to understand and interpret the guidance. They felt that it was too complicated for children and their families to understand.

4) Several respondents raised concern that some organisations might not realise that the UNCRC Act applies to them.

5) Several respondents took the opportunity to raise concerns outwith the scope of the statutory guidance consultation, such as concerns about resource and funding implications.

Part 3:

1) The guidance was felt to be lengthy, complicated and not user friendly. Respondents flagged that duplication of some of the information in statutory guidance on Parts 2 and 3 of the UNCRC Act was unnecessary.

2) The language was generally considered to be too complex and included legal terminology, making it difficult for lay readers and children and young people and their families to understand.

3) Some respondents called for more information and greater clarity to be provided about various aspects. This included the timing of reports; the development of combined and joint reports; requests for signposting to resources to support the development of child friendly reports; distinguishing between essential and desirable tasks; and how to work through decision-making.

4) Some respondents asked for examples of children’s rights reports, case studies and pro-forma templates to be provided. It was also felt that the guidance would benefit from more sector specific details or examples to support understanding.

5) Some respondents suggested that flowcharts and diagrams would be useful.

Part 2:

1) The updated Statutory Guidance for Part 2 of the UNCRC (Incorporation) (Scotland) Act 2024 was published on 13 September 2024.

We simplified the language as much as possible and made the guidance more concise by separating additional content into two further documents: Clarification of inherent obligations of the UNCRC and Sources to guide interpretation of the Act.

2) We have provided more specific, directive, operational level guidance focused on the practical side of how to uphold children’s rights in Non-statutory guidance on taking a children’s human rights approach. This was published on 8 January 2024.

The Scottish Government is unable to provide examples of organisations and workers who must follow this statutory guidance, as the UNCRC Act may apply differently across the range of public authorities, depending on the different functions of each public authority. Public authorities will be required to make an assessment of how the UNCRC Act applies to their functions, seeking legal advice as appropriate.

3) The purpose of the Statutory Guidance on Part 2 of the UNCRC Act is to provide public authorities with pragmatic information that may assist them with understanding and acting in accordance with section 6 of the UNCRC Act. The guidance is primarily intended for those with responsibilities within public authorities for implementing and delivering the provisions of the UNCRC Act. If a public authority is unclear on whether the section 6 duty (the compatibility duty) applies to it, it should seek independent legal advice.

Statutory guidance is not intended to provide information for children and their families. Resources are in development to support children and their families to understand the UNCRC Act. This includes a resource to help children and young people realise their rights in practice, guidance on how to make use of child friendly complaints processes, a social media campaign from Young Scot and information on the Parentclub website. 

4) We reviewed and updated the sections on public authorities and functions of a public nature to include further explanation of the duties under section 6 of the UNCRC Act.

5) We were only able to take action on responses that related to the statutory guidance consultation.

Part 3:

1) The updated Statutory Guidance for Part 3 (section 18) of the UNCRC (Incorporation) (Scotland) Act 2024 was published on 18 September 2024. We removed all content in the guidance that duplicated sections in statutory guidance for Part 2 of the UNCRC Act. Instead, links are now provided to the relevant information.

2) Language was reviewed and simplified where possible. The purpose of the guidance is to provide public authorities listed in section 19 of the UNCRC Act with pragmatic information to assist them with understanding and fulfilling the reporting duty under Part 3, section 18 of the UNCRC Act.

Statutory guidance is not intended to provide information for children and their families on the children’s rights reporting duties. Listed authorities are required, under the UNCRC Act, to publish a child friendly version of their children’s rights report.

3) The statutory guidance was reviewed and updated to provide greater clarity where possible, including clarity on what children’s rights reports must include. The Scottish Government is providing support to listed authorities which will include support to develop child friendly documents.

Listed authorities vary greatly in terms of their functions and how they are constituted, therefore, the Scottish Government cannot provide guidance on their decision-making. Guidance on decision-making was therefore outwith the scope of the statutory guidance.

4) The purpose of the guidance is to provide listed authorities with pragmatic information to assist them to understand and fulfil the reporting duty of under Part 3, section 18 of the Act. The UNCRC Act does not prescribe the format of children’s rights reports, however, Annex A provides a number of frameworks and considerations to support reporting and help listed authorities in the fulfilment of the reporting duty.

The purpose of the statutory guidance is mainly to explain the duties in the Act.  As the format of children’s rights reports is not prescribed in the Act, it would not be appropriate to include examples of children’s rights reports or case studies in the guidance, or to provide pro-forma templates, which could limit how listed authorities could meet their reporting duty.

Statutory guidance must support all duty holders. Sector experts will be best placed to develop further guidance for their context.

5) For accessibility reasons, flowcharts and diagrams should only be included in documents where there is a clear identified need. On reviewing and updating the document, no clear need was identified to use a flowchart or diagram.