Pandemic Impacts: What needs to change to protect your human rights?

The Independent Impact Assessment found several ways in which Scotland’s children and young people are facing a human rights emergency.

The Scottish Government has obligations to make sure it keeps its human rights promises to everyone under 18, and our office has given them a list of recommendations around what it needs to do for that to happen.

Parliament needs to hold governments to account around human rights in Scotland and the UK

Parliament’s role as a human rights guarantor must be nurtured

A lot of emergency laws were passed by the Scottish and UK Parliaments very quickly. That meant that both Parliaments didn’t have the chance to examine them closely to see what their consequences were likely to be.

Parliaments play a critical role as human rights guarantors, acting to make sure States keep their human rights promises.

Because of this, MSPs and MPs should have a greater ability to hold governments to account around whether these promises are kept. They should get regular human rights training so this can happen, and so should their parliamentary staff. As well as this, Parliaments should consider how children and young people can directly play a part in examining new laws in the future.

Parliaments should demand evidence on why emergency powers remain in place

In terms of the current crisis, both the Scottish and UK Parliaments should challenge their respective governments to give evidence on why emergency powers still need to be in place.

They should provide evidence around whether the powers are still necessary, and whether they are proportionate when weighing their benefits against their negative effects.

They should also demand that more frequent and relevant Children’s Rights Impact Assessments are done for all future laws and guidance affecting children’s lives.

The Scottish Government needs better data to know how rights aren’t being realised

The Impact Assessment found large gaps in data

The Impact Assessment found large gaps in data on key indicators for children and young people’s rights, and these have made it hard to know the full impact of the pandemic and the effectiveness of Scotland’s response to it.

For example, there isn’t clear data on:

  • how many children are receiving mental health support services,
  • how many children have received additional support for learning throughout the pandemic.

Without accurate and relevant data, it’s not possible to make good decisions in a rational way. Although the public sector does have duties around reporting data, these don’t exist in a coherent or consistent way.

There needs to be a review of what data Scottish Government collects. Otherwise, we don’t know it has the information it needs to keep its promises to respect, protect and fulfil children’s human rights.

Data should be gathered to standards set out by the UN Committee on the Rights of the Child

In its General Comment 5, the Committee on the Rights of the Child says that States need to collect data that covers the whole of childhood up to the age of 18.

To meet the standards the Committee sets out, Scottish Government needs to:

  • develop indicators related to all UNCRC rights to see if these rights are being realised,
  • make sure data collection is coordinated across all of Scotland, so any indicators it uses can be applied across the country,
  • have effective systems for collecting data,
  • make sure data collected is used to assess progress in implementing the UNCRC,
  • make sure data collected is used to identify problems and inform policy development for children.

The Scottish Government should develop their National Performance Framework to create a nationally consistent system of data evaluation. This should be based on agreed indicators related to all the rights guaranteed to under 18s and developed with the active involvement of children and young people.

Incorporate the UN Convention on the Rights of the Child into Scots law

The Scottish Government has committed to full and direct incorporation of the UNCRC to the maximum extent possible in Scots law within this session of Parliament.

Full incorporation means that the whole of the UNCRC would be written into Scots law.

Direct incorporation means that the full legal text of the Convention would be written into Scots law.

Incorporation of the UNCRC is essential to provide a legal structure and framework to protect the rights of everyone under 18 during the next crisis. It has to be a priority to make the Convention part of Scots law.

The pandemic has demonstrated how important incorporation is, and how far there is still to go before Scotland can accurately describe itself as a country that fully respects children’s human rights.

The Scottish Government should introduce a bill to make it happen at the earliest opportunity, and the Scottish Parliament should work to make sure it offers the highest levels of protection for children’s human rights— and that it passes into law within the current parliamentary term.

Focus on preventing problems or stopping them before they become a crisis

Before the pandemic, when children’s rights were at risk State responses tended towards becoming involved early on, before a situation became a crisis.

 But during the pandemic they’ve shifted towards crisis management, as:

  • it’s become harder for State services to access families directly, and
  • there’s more demand for support.

More families have been pushed into situations where they require state support, but it hasn’t always been provided early enough or in a consistent way.

States are required to use all the resources available to them to the greatest extent they can to fulfil children’s economic, social and cultural rights. And some rights require support to be provided as early as possible when things begin to go wrong― like the right to have their parents supported, to be protected from violence, and to an adequate standard of living.

As we move out of lockdown, there’s a need to acknowledge that many children and families are in worse situations than they were at the start of this crisis, and that steps have to be taken to reverse the escalation of disadvantage.

It’s not enough to go back to normal. Extra resources must be provided for early intervention and family support, or there’s a risk more children will be drawn into state care due to failures addressing needs relating to poverty and the fallout of the pandemic.

Make as many opportunities as possible for children to enjoy their rights to rest, recreation and play. Address structural problems that restrict these rights

The right to play, relaxation and access to cultural life isn’t an optional extra within a human rights framework: they’re necessary to protect the nature of childhood. These rights are vital for children to develop to fulfil their full potential, to promote their resilience and to make sure their other rights are realised.

Although parents and carers have done their best, lockdown has limited children’s opportunities to play, be with friends and be creative. That’s been particularly true for children with little access to physical space or online community, and for those in inadequate housing.

Scotland has to take account of this when our schools return. We need to provide opportunities for children to play and reform their relationships, exploring options such as outdoor learning. But while schools can help support children rediscover the right to play, they can’t fix the underlying social and economic issues that prevented its realisation in the first place. Those are a matter for Government, and they require a focus on inequality and disadvantage. In particular, the slow response in addressing digital exclusion has undermined efforts to reduce the impact of the pandemic on the right to play, and it’s something that must be accelerated.

Start using human rights-based budgeting

Education is a multiplier right: experiencing it can help your other human rights to be realised. Because of this, it has the potential to achieve transformative change in society. But the pandemic has made inequalities that already existed in Scotland worse, and its biggest impacts have been felt by the most vulnerable.

The State has an obligation to focus on those whose rights are most at risk. That includes all children and young people, but also groups whose education has been disproportionally affected by the crisis.

The closure of schools and move to online learning impacted disproportionately on some children, and this is likely to lead to long-term disadvantage. Major funding to support access to online learning wasn’t announced until almost two months into the crisis, and it’s still not fully delivered.

There’s also a pressing need to consider additional support for families over the summer.

Because the State has an obligation to focus on those whose rights are most at risk, it should treat children and young people as a high-priority group within society.

But it should also make sure disabled children, care experienced children and children who live in poverty all access additional support that makes up for the educational disadvantage they continue to experience.

Human rights-based budgeting is the way to prevent inequality becoming more embedded in Scotland’s society. Decisions made now will have a lifelong impact on a generation of children.

The Scottish Government and local authorities must make sure that existing ways children’s needs are assessed and planned for are used as fully as possible, so resources reach those who need them most. Some of these ways of assessing and planning for children’s needs are:

  • Children’s Services Planning,
  • GIRFEC community planning partnerships, and
  • Additional Support Needs assessments.

It’s not enough just to give out resources: the impact of doing so must be assessed locally and nationally. If this doesn’t happen, it risks making economic, social and structural disadvantage even more embedded within the education system.

Put the right to food into Scots law

Before the pandemic, poverty was the biggest human rights issue facing children in Scotland. Now things are worse. More children have been pushed into poverty, and food insecurity has increased as a result. Scotland’s response wasn’t adequate or consistent: it failed to identify food as a basic human right and relied too heavily on charities to deliver on State obligations.

Scottish Government also gave too little direction to local authorities, who didn’t always recognise and respect the human dignity of those receiving support. A nationwide approach that focused on giving families cash payments alongside giving them food directly would have delivered better results.

The right to food is a critical part of the wider human rights framework, and food insecurity is an urgent issue in Scotland. Scottish Government should recognise this by moving quickly to put this right into Scots law.

Mental health services must be universal

The Impact Assessment has highlighted the extent to which the pandemic has affected the mental health of children and young people. Many of them may need support for some time after lockdown ends.

Our current mental health services were under pressure before the pandemic, and it’s likely that after it they won’t be able to cope. Children and young people have the right to the best mental health possible, and need to have access to a service that can provide that.

Children and young people keep calling for mental health support that’s accessible when they need it, and more resources should be made available to make that a reality for everyone who needs it in Scotland. The Government should also consider the recommendations of the Children and Young People’s Mental Health Task Force. It should support them to get back together and consider further recommendations based on the impacts of the pandemic.

Make sure emergency measures don’t become the new normal

States have a duty to protect children from harm. The laws that exist to make sure they do this in practice have to operate in a way that’s consistent with human rights.

The pandemic has meant emergency measures and changes to practice have been brought in that have reduced human rights safeguards for children and young people― in places including the care and protection systems.

These changes in law are supposed to be temporary. They can’t be allowed to become embedded in Scotland’s law, policy or practice. For as long as they’re in force, they need to be continually assessed: to see if they’re still necessary, and to see if their relaxation of safeguards is still proportionate.

Review the National Child Protection Guidance

Scottish Government should consult on its revised National Child Protection Guidance, and directly involve children and young people when they do. 

Urgently review the use of emergency powers in the Children’s Hearings System

Scottish Government should urgently review how emergency powers have been used in the Children’s Hearings System during the pandemic, to make sure that all decision making has been lawful.

Every decision that involves intervention by the state must be justified by up-to-date assessments that are evidence-based. These should look at a child’s individual needs and rights on a case-by-case basis, because legal thresholds to intervene must be met in every case.

Because this may not have happened in some cases, Scottish Government should make sure that children and families have access to legal representation, advocacy and the support they need to challenge potential breaches of their rights. It should take steps to make sure that children who may have had their rights breached in the child protection system during the pandemic have access to state funded legal aid, and be supported to challenge decisions even where timescales have expired.

Prioritise children whose rights are most at risk

The Impact Assessment showed that several groups of children who were disproportionately impacted by the pandemic weren’t always recognised as children or as rights holders. Emergency legislation wasn’t all subject to a children’s rights impact assessment, and those that were conducted failed to consider the rights of all children under 18 and were of variable quality.

Nationally and locally, there was little evidence that policy decisions were made based on human rights considerations― particularly decisions around criminal justice, education and the care system.

To see which children and young people have been most impacted by the pandemic and to take action to reduce the impacts that were negative, the Scottish Government must make sure that decisions in law, policy and guidance are made with good enough evidence, and after assessing how they will impact on children’s human rights. For this to be possible, significant training will need to take place on human rights and the use of impact assessments across Scottish Government and public bodies.

Reduce the number of children deprived of their liberty and make sure no children or young people are detained in prison

The pandemic has raised serious rights concerns around this group

Throughout the pandemic international experts have warned that children in detention are at risk. Despite this, no specific consideration was given to children’s rights when several decisions were made affecting them.

For example, children are still able to be detained under emergency legislation, and the rules for early release of prisoners don’t take children’s rights into account. Although individualised assessments of children in detention would ensure the correct balance between rights and public safety, these haven’t taken place, and no consideration was given to releasing children detained on remand.

Meanwhile, children deprived of their liberty or living in institutions have seen their rights interfered with during the pandemic. Their right to family contact has been significantly interfered with, and there are concerns around how this has affected mental health.

Detention must end for under 18s

Scottish Government needs to end the detention of under 18s in Young Offenders’ Institutions immediately and makes sure all children in secure care have their rights to health and fair process respected. They need to be continually assessed, and they need access to legal representation.

Treat all children as children in law

The UN Convention on the Rights of the Child (UNCRC) is clear that the safeguards and protections it contains apply to everyone under the age of 18. But in Scotland emergency legislation defined 16 and 17-year-olds as adults in many areas, as who counts as a child and who doesn’t is inconsistent in Scots law.

For example, although the Scottish Parliament passed an amendment proposed by our office to exempt 16 and 17-year-olds from Fixed Penalty Notices for breaching lockdown restrictions, they can still be prosecuted within the adult justice system for breaching the Scottish and UK emergency laws. This shouldn’t happen: the Scottish Government should take steps to make sure Scots law consistently defines a child as under 18, as required by Article 1 of the UNCRC.

As well as this, the Scottish Government should comply with the UN Committee on the Rights of the Child’s General Comment 24 by embedding a human rights-based approach throughout the justice system. It should also implement the recommendations of the CYCJ’s Rights Respecting? report.

Finally, it should take steps to ensure all children who are the subject of state intervention have access to state-funded legal advice and representation. This applies whether they’re in the adult justice system or the Children’s Hearings System.

Involve children and young people in creating information

The Impact Assessment found that there were some good examples of information being provided to children, like when the First Minister spoke directly to children and young people. However, there were other cases – like with the cancellation of exams – where communications clearly didn’t prioritise children and young people as an audience even though it was their rights which were most impacted. This has to change: Scottish Government should make sure that children and young people are recognised as full and valued members of society.

Children and young people need to be involved in designing all communications directed to them, and in conversations about how these communications should be delivered. There should be as wide as possible a range of ways to access these communications to account for the needs of those with disabilities.

Involve children and young people in decision making

For society to respect the views of children and young people, it needs to change how it sees and treats them. Children aren’t passive objects in need of adult protection― they are rights-holders that should be active participants in the decision-making processes that affect them. By allowing children’s participation in this way, decisions can be made that are better, more relevant and more informed.

Although the Scottish Government’s Action Plan committed to a strategic approach to mainstreaming children and young people’s participation, decision-making processes have struggled to meaningfully respect participation rights during the pandemic— especially when decisions had to be made quickly.

Although the Scottish Government used some survey data from charities to guide its decisions, it’s striking how rarely children’s voices were heard – or sought – on key issues. Very few children and young people have been at decision-making tables during the pandemic— even where decisions have been made around their own education, care and protection.

The State must give children and young people the chance to become active agents in their own lives and not just passive recipients of services. To make this happen, the Scottish Government, Scottish Parliament and public bodies must review the way they make decisions and find ways to involve children and young people.

That will mean involving children in individual decisions, and in the systems through which decisions are made.

And it will involve challenging and changing traditional decision-making processes.

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