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

This section provides helpful background information to the UNCRC Act, however, it would benefit from some additional information/clarity as follows:
• A greater acknowledgment of the fact that the Act includes infants and babies. Currently childhood is defined as a period of life up to 18, however, it would be helpful to emphasise the inclusion of babies and young children. A link to the Infant Pledge could also be included.
• The section would benefit from being more nuanced to stress that rights are inalienable but are not absolute.

This section lacks clarity due to the omission of several points, including:
• The UNCRC as a whole cannot be incorporated into Scottish domestic law as some rights are reserved – a more detailed explanation of what this means in reality is needed.
• A clear list of what is included/excluded in the UNCRC (Incorporation) (Scotland) Act would be beneficial, including an explanation of what this means in reality, in terms of rights being inalienable.
• Additional supporting information is needed relating to the examples provided within this section, e.g. by providing an indication of where Article 11 is protected in Scottish Law (e.g. the Children’s Act).

This section would benefit from the following queries/concerns being addressed:
• It is not clear what the proceeding is to address issues of unlawful acts, or how children, their families and others can find out about action to take when public authorities have acted, or intend to act, incompatibly with the UNCRC. As the guidance stands, there is a lack of information about how children, families, teachers, and others working with and for children could take action, or know where seek information about how to take action, to remedy unlawful acts.
There needs to be greater clarity on what the procedures are, and how a child (and others) can seek remedies. The inclusion of a flowchart may help but would need to be appropriate for different ages and situations, including for babies and young children and SEND.
• Is section on ‘Remedies for unlawful acts’ going to be supplemented with a version that is child-friendly and accessible?
• When seeking remedies for unlawful acts, is there a time frame in which public authorities need to respond?
• There is no mention in the guidance about how remedies may include changing practices or reviewing systemic issues, this seems to be an omission.
• On page 13, the child friendly complaints process guidelines of the SPSO were mentioned but this does not yet seem to be available.

Great clarity could be added to this section, in terms of including examples of ‘core’ and ‘hybrid’ public authorities.

Functions described in this section are under common law; it would be helpful to include details about what ‘common law’ is and how it applies in the context of ‘functions of a public nature’.

This section is difficult to understand without prior legal knowledge of the content.

The following points are intended as suggestions to enhance the clarity/usefulness of Annexes A, B and C.

Annex A:
• The introduction to this section could include mention of, and a link to, the Equality Act which underpins a significant part of the information within this Annex.
• There is a lack of clarity within Annex A about the measures/legislation that are already in place to support the four general principles of the Convention – such detail could be added, along with cross-referencing other parts of the Guidance (as appropriate) to allow connections to be made.
• Under the section ‘Article 2: Non-discrimination’, the examples provided could be made more relevant to a greater number of people, e.g. on page 23 the example of selective schools imposing a higher pass mark for applicant from an ethic minority background could be replaced with a situation likely to occur more often.
• Under the section ‘Article 3: Best interest of the child’, it would be helpful to mention and include a link to GIRFEC.
• Under the section ‘Article 12: Views of the child’, it would be helpful to emphasise that this article applies to young children and babies, as well as to older children. There could also be a more detailed explanation of how ‘age and maturity of the child’ should be interpreted in the context of this Article 12, to ensure there is a move away from imposing an ableist perspective focusing on what children ‘should’ be able to do based on ‘age and maturity’. Instead, additional detail from the UN Committee of the Rights of the Child, General Comments 12 (2009) (referenced in footnote 21 on page 25 of the Guidance) could be included to stress that we should start from the assumption that children are capable of forming their own views, rather than a child having to first prove their capacity; and that age alone cannot determine the significance of a child’s view.
• Throughout Annex A the interconnections across civil, political, and economic and social and cultural rights are not clear.
Annex B:
• This section is clearly written and coherent, with details presented in a succinct and informative way.
Annex C:
• Annex C provides an overview of the framework for reviewing compatibility with the UNCRC. It would be helpful to place this at the start of the Guidance, rather than including this section as an annex. Further details about the framework could then be presented following this initial overview.
• The tables on pp.40-41 and pp.46-47 are useful and the flowchart on p. 45 is clear.

• The section ‘Who should undertake the compatibility review process?’ lacks clarity, with no clear indication provided about who should be involved in the compatibility review. The inclusion of a worked example or case study would be useful to add clarity to the section.

In relation to question 12, 13 and 14:
• Accessibility of this document is problematic. It is cumbersome, lengthy, not user-friendly, and examples to help clarify action to take in respect of the fulfilling the aims of the Guidance are lacking.
• It is not clear who the Guidance is for. This could be because the guidance is written with all public authorities in mind, however, the generic nature of the document, and lack of specificity about how to put into practice aspects of the guidance, means that the guidance is neither user-friendly, nor a practical resource. More bespoke guidance for specific groups, e.g., teachers, social workers, police, etc. would be beneficial, as currently the Guidance isn’t helpful for any groups. One way forward may be to hold focus groups with teachers, social workers, police officers, etc. and then adapt guidance into disciplinary guidance.
• It would be helpful to include hyperlinks to words and phrases used throughout the document. This could support ease of reading in two ways, firstly hyperlinks could take the reader to a different part of the document where a word or phrase is explained, e.g. where the term ‘public body’ is used, this could take the reader to the section in the Guidance where this is defined. Secondly, there could be hyperlinks to documents, Acts etc. where these are referred to, rather than the reader needing to refer to footnotes.
• Overall, the Guidance needs to have a more central focus on children, rather than being written in an abstract way.
• There is also a general lack of reference or consideration to marginalised groups.

• Overall, the language used in Section 4 is ambiguous and does not clearly transmit the message that children have a right to be included in consultations about matters affecting them. Within this section, the UNCRC general principle relating to participation should be threaded through in a more definite way so that participation is framed as a non-negotiable right for all children, including infants.
• Three examples of where language use is ambiguous in Section 4 (but there are others) are:
o In section 4.3 ‘Consultation and engagement’ it states ‘As part of the report, it may be helpful to engage with children, infants, children and young people…’ however, infants, children and young people have a right to be included in the consultation; their inclusion should not be framed as optional.
o Also within section 4.3, the subsection ‘Involving children and young people in preparing children’s rights reports’ states ‘When developing children’s rights reports you should consider engaging with infants, children and young people…’. Similar to the point above – the word ‘should’ implies that consultation with infants, children and young people is optional, rather than their right to be consulted.
o In section 4.5, under the subheading ‘What is an easy read or inclusive version’ Information’, it states ‘Preparing and publishing an easy ready or inclusive version of a children’s rights report can be done in a rights-respecting way…’ However, there should be a requirement for children’s reports to be done in a rights-respecting way.
• In section 4.5 ‘Requirement to produce a child friendly report’, there is mention that an easy read or inclusive version should be created, but a lack of clarity about what this means in reality. It would be helpful to start section 4.5 by outlining children’s right to have access to information in a format they understand, and to include additional clarity about what ‘inclusive’ means in the context of the requirements to produce a child friendly report.
• In section 4.3, reference is made to appendix 4 but there is no appendix 4.

• Overall, section 5 is written with greater clarity and uses more definitive language than in previous sections within the guidance. Using words such as ‘must’ rather than ‘should’ or ‘may’ adds to this clarity, e.g. the introduction to section 5 states ‘A child friendly version of reports must be made accessible’.
• There continues to be some ambiguous language in section 5, e.g. in section 5.4 ‘Further Engagement’ it states ‘public authorities may also wish to create opportunities to engage children, families … in discussions about the findings of children’s rights reports ...’ This section would benefit from framing such engagement as an expectation.
• The section would also benefit from including details of the reporting cycle, or cross referencing to where these details can be found in the guidance.

Annexes B1-B4 are helpful as a starting point for Local Authorities, however, there are a number of concerns relation to these annexes:
• The way information within the annexes is presented could lead to developing tick box exercises, rather than developing assessment frameworks which give better effect to children’s rights.
• Children’s perspectives relating to the frameworks for children’s rights reporting are not explicitly included.
• There appears to be no requirements to involve children in assessment frameworks. Annex B would benefit from explicitly requiring children to be included in assessments. Specifically, under the sub-section ‘The UNCRC Assessment Framework’, it states “The range of articles provides duty bearers with a structure for informed dialogue and assessment of the range of issues and circumstances that affect children in Scotland”, however, this does not state that such dialogue requires the involvement of children. Furthermore, the suggested guiding questions in Annex B.1 do not include questions suitable for use with children. Further consideration needs to be given to whose views the guidance is encouraging to be included/excluded.
• It would be helpful to include an example of a child-friendly assessment framework to demonstrate how children can contribute.
• There is no mention of the measures that will be taken to ensure children have access to information on how local authorities intend to monitor and report on children’s rights reporting processes.
• In Annex B.4, ‘External resources on accessibility’, there is a focus on disability, without adequate representation relating to the inclusion of other groups.

• Similar to comments in response to question 14 relating to the Part 2 guidance, the Part 3 guidance is cumbersome, lengthy and not user-friendly. It does not present user-friendly guidance on the reporting duties of listed authorities. This is partly due the use of ambiguous language, and partly due to the guidance being intended for all public authorities, hence lacking specificity or examples about how to put into practice aspects of the guidance.
• There are numerous footnotes and links included within the guidance, which is helpful but also overwhelming. Similar to the point raised in relation to the Part 2 guidance, there could be hyperlinks to documents, Acts etc. where these are referred to, rather than the reader needing to refer to footnotes.
• There is no child-friendly version of the reporting duties of listed authorities.

With reference to specific sections within the Part 3 guidance not included in response to questions above:
• Section 6 of the guidance ‘Policy intention of children’s right’s reports under section 18 of the Act’ would benefit from the inclusion of a flow chart to demonstrate, visually, the reporting process.
• Annex C, ‘Scottish Government use of children’s rights’ reports’ is ‘woolly’ and lacks clarity. It may be too early to determine how the Scottish Government will use children’s right’s reports, however, it may be worth mentioning that lessons learned from instances of litigation will feed into the reporting process.