Laura, Fiona and Jamie were law student scholars, participating in the WS Society Summer Scholarship programme during July 2024. This article summarises their research and presentation.
Introduction
This report reviews the UN Convention on the rights of the Child (UNCRC), Incorporation (Scotland) Act 2024 and discusses its implications for the Scottish legal framework, especially regarding age limits and the criminal justice system.
The UNCRC provides a holistic framework, guiding the development of strategies and programmes to uphold the rights of the child. Moreover, the Act ensures that children have access to legal recourse where their rights are overlooked; and establishes a method of accountability. While technically legally binding, due to the UK’s ‘dualist state’ persona, there has been failure to implement the treaty into domestic law. This has hindered its practical effectiveness and stunted the UNCRC in making any significant change thus far.
It is clear that decisions of government impact children more than any other group in society. The UNCRC grants all people under the age of 18 a comprehensive set of rights, ranging from health and education, to family life and play. The enforcement of the Act into domestic law requires that all public authorities will seek to uphold the rights of the child and take them into consideration when developing new policy or law. Furthermore, it will also be unlawful for public authorities to contravene UNCRC requirements.
Children’s rights will be inherently entitled to protection rather than merely being subject to the judgement of others.
“The child’s best interests should be at the forefront of a judge’s decision making.”
In the case of Ruiz Zambrano, the EU Court of Justice ruled that to deny the residence and work permits of non-EU parents, of whom EU citizen children were dependent upon, would deprive the children of their EU rights under the UNCRC. This demonstrates that where children are involved, their rights should be given utmost consideration, even in precarious situations such as immigration status.
Scottish efforts predate that of the UNCRC, however difficulty has arisen in implementing the convention on a national scale. Initial efforts were made in 2021 when the Act was passed unanimously in the Scottish Parliament. However, the UK Supreme Court found that some provisions of the Act were outwith the legislative competence of the Scottish Parliament, nullifying previous efforts to implement it. Areas of concern primarily revolved around the fact that they would allow Scottish courts the power to interpret UK laws in ways that weren’t intended. They were then amended to coincide with Scottish devolved powers, meaning the Act applies exclusively to legislation enacted by the Scottish Parliament. Arguments have advanced that these amendments greatly reduce the powers of the Act - described by critics as a ‘shadow’ of what it could’ve been.
Furthermore, there hasn’t been any discussion to include the ‘third optional protocol’ to the UNCRC. This allows for complaints to be made to the UN Committee on the Rights of the Child (the Committee) and omitting this could significantly impact the ability to effectively hold public authorities to account. The Danish case, IAM v Denmark, demonstrated that where children are able to access legal recourse through this optional protocol, they’re more able to effectively enforce their rights and use the Committee as a tool for holding public authorities to account.
Article 1 of the UNCRC defines children as “anyone below the age of eighteen”. In Scots law the age of majority is eighteen, but full legal capacity is attained at sixteen as stated in the Children (Scotland) Act 1995.
There was concern by several organisations that the age of capacity would need to be increased to align with the UNCRC. The Convention does however include the concept of evolving capacities (Article 5), which was defined by the Committee as “an enabling principle that addresses the process of maturation”. This idea supports the current framework in Scots Law by acknowledging the need for protecting children, while also allowing them to grow and have increased autonomy.
There are many in Scotland that advocate for the minimum age of marriage to be increased to 18. The policy is embedded in UNCRC principles and could tackle forced marriages involving children. Despite arguments that Scotland has robust legislation protecting against forced marriage, there are those that argue that this does not go far enough to protect children’s rights. The Scottish Government has committed to a review of this issue and their publication is imminent. This debate raises questions as to whether this best serves the interests of young people or whether it acts as a challenge to their autonomy by removing previously held rights.
Age limits, while providing clarity for a judicial system, are, by their nature, arbitrary. They don’t allow for individualised assessments to consider whether those of a certain age have enough maturity to acquire a right. Scotland has introduced more flexibility in some areas. The Age of Legal Capacity (Scotland) Act 1991 states that in the medical environment, children of any age can consent to any procedure if the professional performing it decides that the child has sufficient understanding. This illustrates that this flexible approach can be successful, while still following the requirements set out in the UNCRC. UNICEF and Save the Children recommended in their report “…varying degrees of protection, participation and opportunity for autonomous decision making”. Article 41 of the UNCRC also invites State parties to legislate beyond the Convention. This shows that it’s this balance, between protection and autonomy, which will allow Scotland to ensure children’s rights into the future.
As part of the task of embedding the UNCRC into domestic law and adhering to the Promise, the Children (Care and Justice) (Scotland) Act 2024 was passed and changes how children will experience the care and justice systems. The Act defines a child as a person under the age of 18, which aligns with the UNCRC, so all children will now have access to the Children’s Hearings System (CHS) and ministers have pledged that under 18s will no longer be placed in Young Offenders’ Institutions (YOIs). Whilst these measures are widely supported, practical factors need addressing to ensure that this works for vulnerable young people.
Article 40 of the UNCRC states clear terms that a child can expect from the justice system of their state. Arguably Scotland already complies to this, and this is largely due to the CHS which has much of article 40 at its core. There are however concerns that the system has flaws and it follows that to include more children in this system, these concerns do need to be resolved to ensure that all children have comprehensive access to their rights. Criticisms facing the CHS include children feeling that they’re not treated with respect by panel members, finding the experience traumatic and there are ongoing issues with lack of diversity of the panel members in comparison with the children that they face. Reports indicate that some children would prefer to experience the courts system, which is concerning, considering what the system aims to achieve. This does however highlight that this age group is diverse, and the CHS is going to need to adapt to that to be compliant with the UNCRC. What is essential is that all children have access to the advice and advocacy that they are entitled to, and this advice is age and capacity appropriate.
The Children’s panel is the main point of contact in juvenile justice and all the above could lead to accusations that children are not being provided with a fair hearing, which is their legal right. Article 40 states that children have the right to have the matter determined without delay by a competent, independent authority or judicial body in a fair hearing according to law. Legal actions could therefore be brought under article 40 breaches.
The Hearing System Working Group was established to explore a redesign of the CHS. One area of focus was the use of volunteers. They recommend introducing a paid panel for all hearings. The Government didn’t accept this proposal, however they are considering this as an option for certain hearings. They’ve stated that whilst the use of volunteers isn’t specified in legislation, accompanying policy documents for the Children’s Hearings (Scotland) Act 2011 stress that the panels should be comprised of volunteers.
Whilst the use of lay volunteers is at the heart of the CHS, it’s questionable as to whether this is appropriate in cases of juvenile justice. At the very least, specialised training may need developing, in terms of rights protection, trauma awareness and how to interact with neurodivergent children.
“Volunteer Scotland have highlighted that recruitment of volunteers has been massively hit by the Cost of Living crisis which could exacerbate issues facing the CHS at a time where it will be expected to do more. ”
The Government does accept that panel members could be entitled to remuneration and that there could be more specialised panel members for certain hearings, however whether these options are pursued and what form this would take remains to be seen. Recommendations for the redesign are in-depth, and at present what a new System will look like is unclear.
The Scottish Government is embarking on a preventative rights-based model for youth justice which promises to include all young people in their community and have access to what they need to grow up in adherence with the Promise. This requires extensive investment in times of stretched budgets but these are legal rights. In the context of homelessness, there has been recent judicial comments made that whilst Local Authorities cannot be expected to do the impossible, simply citing budget constraints is not adequate when they have failed to meet their legal obligations. The task for the law is the response to when these rights are violated. An additional challenge is ensuring that children have access to this legal protection.
The Care and Justice Act can be viewed as a positive starting point in its potential to protect some of the rights of many, if not all, children entering the justice system. There are other measures in the Act and this exists as part of a much wider strategy, however Scots law has some way to go to be fully protecting the rights of children in terms of criminal justice. The Act focuses attention on those that have already entered the system. Even if processed through the CHS and children aren’t in YOIs, stigma attaches to their experiences and this has life-long consequences.
“If Scotland is going to fully embrace the UNCRC in terms of juvenile justice, a holistic preventative approach needs to be pursued timeously.”
The UNCRC Act presents an opportunity to refrain juvenile justice to focus on the needs and rights of most vulnerable children who are at risk of offending, and this needs to be fully embedded in upcoming legislative reform so that these children are not missed. Scotland has positive measures already in place, however much remains to be seen on how the Scottish Government are going to achieve their ambitious targets.
Lessons can be learned from countries that have incorporated the UNCRC. In a UNICEF study on implementation of the UNCRC, it was found that the most vulnerable groups of children experienced less rights protection than their peers. How these children are reached is of paramount concern. The online environment provides opportunities for expanding engagement. This comes with its own problems, as the most vulnerable in society may not have the ability to access the internet.
Children don’t necessarily know or understand their rights, and there needs to be widespread educational reforms. Lessons can be learned from Wales as they’ve implemented several programmes in this area that allow children to learn about their rights under the UNCRC through interactive lessons.
However, this again leads to another problem – even if children have knowledge of their rights, can they advocate for, and access, them? Children need access to an already underfunded legal aid system or overstretched law centres. This would necessitate a complete funding overhaul of these services because children should be able to access free legal services to uphold their rights.
Despite all the above concerns, what the Act achieves is a clear message from Scotland that children’s rights should be taken seriously, and if properly implemented, it has the potential to pave the way for further human rights instruments to be incorporated into domestic law in the future.