Last week, Scotland became the first part of the UK to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into law. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the Act) came into force on 16 July 2024 and places children and young people at the heart of decisions that affect them. It is a significant milestone in advancing children's rights in Scotland.
The journey to bring the Act into force has not been a straightforward one and the UK Government referred the Bill to the UK Supreme Court due to concerns about whether the Scottish Parliament had the powers to legislate as it had. Following that, the Bill was amended to strike a balance between maximising children's rights and protections, minimising the risk of legal challenges and making the law as accessible as possible.
Overview of the UNCRC
The UNCRC sets a base standard for children's rights and sets out the fundamental rights of all children which apply without discrimination of any kind. The UNCRC has 54 articles that cover all aspects of a child's life and are universal, meaning that they apply to every child. Although there are 54 articles, the UNCRC should be considered as a whole – all of the rights are interlinked and no right is more important than another. The UNCRC is a base standard for children's rights and sets out the specific rights that all children have to help them fulfil their potential, including rights relating to health and education, leisure and play, fair and equal treatment, protection from any kind of exploitation and also the right to be heard.
Importantly, under Article 12 of the UNCRC every child has the right to be heard in matters that affect them and to participate fully in the life of their family, community and society. The voice of children is very important in family cases especially where there are major decisions about where a child will live, what school they will go to and how much time they will spend with each of their parents. In all cases where children are involved, they must be given an opportunity to express their views if they wish to do so.
Applying the UNCRC into Scots law
Incorporating the UNCRC into Scots law, seeks to empower children and young people to claim their rights and to deliver a proactive culture of everyday accountability for children's rights across public services in Scotland. All public authorities in Scotland require to take proactive steps to ensure the protection of children's rights in their decision making. It is now unlawful for public authorities, including the Scottish Government, to act incompatibly with the UNCRC.
Children now also have the ability to use the courts in Scotland to enforce their rights. The Act seeks to remove barriers that children and young people may face in exercising their rights and in accessing justice. As part of that, the Children and Young People's Commission in Scotland and the Scottish Human Rights Commission have the power to raise claims in the public interest. Scottish Ministers are now required to publish a Children's Rights Scheme setting out the arrangements that are being put in place both to fulfil duties under the UNCRC and to secure or strengthen children's rights. Further, the Scottish Government and listed authorities will also be required to report on steps they have taken to ensure compatibility with the UNCRC.
Overall, the incorporation of the UNCRC, and the provisions noted above, should provide protection for all children but especially those whose rights are more at risk such as disabled children, those living in poverty, young carers, those in care and those from minority backgrounds. It is hoped that the incorporation should assist children in accessing support and therapeutic services to help them recover from abuse and neglect. Anything that helps safeguard our children and makes a Scotland a safer and better place to grow up and develop can only be a good thing.
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