In September 2020 the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill ("the Bill") was introduced to the Scottish Parliament. The significance of this is that, once passed, the UNCRC will become binding in Scots law for the first time. Public authorities (including local authorities, health authorities, courts and Children’s Hearings panels) will be required to act in a manner that is consistent with children’s rights. Further, children and their families will have recourse to the law if their rights, such as the right to education or access to healthcare, are breached by public authorities.
The UNCRC
Of the 54 UNCRC articles, there are certain articles which are particularly noteworthy to me as a family law solicitor and a specialist in child law:-
- Article 1 (definition of the child) Everyone under the age of 18 has all the rights in the Convention.
- Article 3 (best interests of the child) The best interests of the child must be a top priority in all decisions and actions that affect children.
- Article 9 (separation from parents) Children must not be separated from their parents against their will unless it is in their best interests (for example, if a parent is hurting or neglecting a child). Children whose parents have separated have the right to stay in contact with both parents unless this could cause them harm.
- Article 11 (abduction and non-return of children) Governments must do everything they can to stop children being taken out of their own country illegally by their parents or other relatives or being prevented from returning home.
- Article 12 (respect for the views of the child) Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. This right applies at all times, for example during immigration proceedings, housing decisions or the child’s day-to-day home life.
- Article 18 (parental responsibilities and state assistance) Both parents share responsibility for bringing up their child and should always consider what is best for the child.
- Article 21 (adoption) Governments must oversee the process of adoption to make sure it is safe, lawful and that it prioritises children’s best interests.
- Children’s rights are respected and protected in the law in Scotland.
- Public authorities are legally required to respect and protect children’s rights in all the work that they do.
Each of the articles I have listed here directly impact upon the daily advice I provide to my clients.
The Bill
The main purpose of the Bill is to “incorporate” the UNCRC into Scots law and by doing so the Bill aims to ensure:-
- Children’s rights are respected and protected in the law in Scotland.
- Public authorities are legally required to respect and protect children’s rights in all the work that they do.
What will change?
Whilst the UNCRC was ratified by the UK in 1991, it is not currently enshrined in national legislation. The Bill, once passed, will mean that Scotland is the first of the UK nations to incorporate the UNCRC into domestic legislation.
At the moment no individuals in the UK can raise actions in British courts about breaches of the rights contained in the UNCRC. Once the Bill has passed any person under the age of 18 in Scotland will be able to raise actions alleging that a public authority has contravened an incorporated UNCRC article.
I would suggest that most aspects of Scottish child law legislation and practice are already in-line with the ethos and articles of the UNCRC. However, some would argue that the Bill marks a significant change in the protection of children’s rights and will guard against some inconsistent interpretive references to the UNCRC that are currently contained within Scottish legislation.
Why does incorporation of the UNCRC matter to family law solicitors?
What matters for children matters for society. Family law solicitors must hold the best interests of children at the fore of their minds when advising their clients and addressing the courts. The way we nurture children during their young lives, and particularly the manner in which the adults around them manage experiences such as parental separation, will directly impact upon the adults they become and therefore the society in which we all live. Incorporation of the UNCRC into Scots law will, at the very least, serve to ensure that those of us tasked with roles involving making decisions regarding children, will keep the rights of the child at the fore of our minds.
Tony Convery and Jackie McGuire of Brodies' GRC Team have also blogged today, commenting on the implications of the Bill from a public law perspective:- https://brodies.com/insights/public-law-and-regula...
My colleagues within both the Brodies Family Law Team and GRC Team shall follow the passage of the Bill through the Scottish Parliament and shall keep you updated as to any interesting developments that occur.
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