A:

All children have rights, and that includes babies and very young children. 

The United Nations Convention on the Rights of the Child (UNCRC) expresses these rights within the framework of children’s lives and experiences.  The rights in the UNCRC are linked together and support each other – so supporting one right, like the right to participate in play, promotes other rights including the right to be heard, to free expression, to development and to education.

Long before young children can understand the concept of children’s rights, they can develop a sense of their own agency.  Babies and very young children can develop this through relationships with parents and carers, and through their surroundings and environment.  Their experience of these early relationships will influence their sense of self, how they view others and how they respond to their environment.

Babies and very young children need to be supported by the adults that care for them to make their own decisions and to be listened to. They need to feel that their ideas, thoughts and decisions are respected. 

They are finding out about their rights through how others treat them.  They are learning about expressing themselves, their interdependence with others, how valued they are.  They are also learning about sharing, making choices and their place in the world.

Early childhood is a critical period for the realisation of rights and good early years experiences increase the chances of children being able to realise their rights through childhood. 

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The Court of Session is the highest civil court in Scotland.

What this means

When a judge makes a decision in a civil court it can be appealed in a civil court that has more authority, who can decide the judge’s decision was wrong. But then their decision can also be appealed in a civil court with more authority than that.

The highest civil court is the one with the most authority of all. Once they make a decision, it can only be appealed to the UK Supreme Court, and only in some circumstances.

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There are times when a case in a court of law can impact more than just the people directly involved in it. The court’s decision may affect other children and young people’s rights by establishing an important point of law or principle. That means that other cases might use this point of law or principle in the future.

When a case like this comes up, the Commissioner may ask the court’s permission to intervene— become involved. When they do this, the Commissioner doesn’t take sides or represent children directly. Instead, they bring issues about children’s rights to the court’s attention to help the judge make a good decision. Doing this is a way of doing strategic litigation.

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When we say children and young people should enjoy their rights, that doesn’t just mean they should take pleasure from them. In this context someone enjoys their rights when they fully possess and benefit from them— so they’re actually put into practice in their lives.

A:

The Commissioner for Children and Young People (Scotland) Act makes it so the Commissioner is independent of government:

  • the Commissioner is nominated by the whole Scottish Parliament, and appointed by the King,
  • the Commissioner can’t be removed from their post without a two-thirds majority vote in the Scottish Parliament.

The Commissioner also lays reports to the Scottish Parliament, but no MSPs direct or control the work the Commissioner does.

A:

The Commissioner’s powers are set out in the Commissioner for Children and Young People (Scotland) Act 2003, as modified by the Children and Young People (Scotland) Act 2014.

Before the Children and Young People (Scotland) Act came into force, the Commissioner could only use their power of investigation to investigate cases involving the human rights of groups of children and young people. The Act changed this to allow the Commissioner to investigate cases affecting the human rights of an individual child or young person.

A:

The Children and Young People’s Commissioner Scotland is one of many organisations and individuals who are corporate parents.

A corporate parent is the name given to an organisation or person who has special responsibilities to care experienced children and young people. This may include:

  • those in residential care,
  • those in foster care,
  • those in kinship care, who live with a family member other than a parent, and
  • those who are looked after at home.

In simple terms, a corporate parent is intended to carry out many of the roles a loving parent should. While they may not be able to provide everything a parent can, but they should still be able to provide the children and young people they’re responsible for with the best possible support and care.

Corporate parent responsibilities are intended to encourage people and organisations to do as much as they can towards improving the lives of care experienced and looked after children, so that they:

  • feel in control of their lives, and
  • are able to overcome the barriers they face

Part 9 of the Children and Young People (Scotland) Act 2014 puts the concept of corporate parenting into Scots law. It makes it so:

  • there are certain things corporate parents have to do by law for the children and young people they’re responsible for,
  • corporate parents have to report to Scottish Ministers on how they’re carrying out their responsibilities.

How a corporate parent’s performance is reviewed

Corporate parents must report to Scottish Ministers on how they’re carrying out their responsibilities, and must follow the guidance that Ministers issue on how to carry out their duties. Ministers have to report every 3 years on how well corporate parenting is working in Scotland.

A:

ENOC is a network which includes Children’s Commissioners and Children’s Ombudspersons, who all promote and protect children’s rights as laid out in the UNCRC. There are representatives from 34 member countries who come together to share information and strategies.

As a member of the Network we take part in an annual programme that includes seminars, an annual conference, position papers and participation.

A:

International human rights treaties and agreements, such as the UNCRC, are developed through a process of negotiation among Member States of the UN. Individual States then decide for themselves whether to be legally bound by the treaty— to sign and ratify it.

When a state like the UK signs and ratifies an international treaty – as it has done with the UNCRC – then it’s pledged to make sure its domestic laws and policies comply with it.

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The domestic laws of a country are laws that can be upheld in its courts.

Scots law is the kind of domestic law that’s enforced in Scotland’s courts.

If someone wasn’t keeping promises they’d made under an Act of the Scottish Parliament, or an Act of the UK Parliament that applies to Scotland, they’d be breaking domestic law, and so could be taken to a Scottish court.

If they weren’t keeping promises made under international law this couldn’t happen, unless those promises had also been written into domestic law.

A:

We can find out if Scotland and the UK are keeping their human rights promises by:

  • asking young people who live here about their lives and any challenges they face,
  • asking decision-makers like the Government and local councils what work they are doing and laws they are making to protect and promote children’s human rights,
  • asking organisations and researchers who know a lot about children and young people to tell us if they think Scotland isn’t keeping its human rights promises.
A:

If your human rights are violated you can try and find a solution via the justice system in Scotland. Your rights are protected under laws including the Human Rights Act. The words of the European Convention on Human Rights (ECHR) are incorporated into that Act of law. Find out more here.

If that doesn’t work, you have the option to take your case to the European Court of Human Rights or United Nations to try and find a solution.

A:

Young people between the ages of 11 and 25 can get free, confidential advice on legal issues, 24 hours a day, from the Young Scot Law Line (tel. 0808 801 0801).

The Scottish Child Law Centre provides free legal advice, guidance and information about the law for and about children and young people.

Clan Childlaw provides free legal advice and representation for children and young people.

The Ethnic Minorities Law Centre provides legal advice and representation to individuals from Black and Minority Ethnic (BME) communities in Scotland.

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Because the Commissioner is funded by public money, it’s important that their accounts are checked over – or audited – and that as a member of the public you have access to these audited accounts.

Like all public bodies, the Commissioner publishes an annual statement of expenditure each year as well as accounts. This says how much money’s been spent on:

  • public relations
  • overseas travel
  • hospitality and entertainment
  • external consultancy.

Our accounts are checked by:

The Auditor General for Scotland

The Commissioner must send their accounts to this person every year. Their office will inspect the accounts.

The Scottish Parliament

The Commissioner receives their approved budget on a monthly basis from the SPCB.

The Advisory Audit Board

The Advisory Audit Board (AAB) advise the Commissioner on, and review, the system of internal control and the arrangements in place for corporate governance, managing risk and auditing financial and management performance. The AAB will provide assurance through a process of constructive challenge. 

A:

The law that sets out the Commissioner’s role says that the Commissioner or a member of their staff has to be responsible for:

  • signing their accounts
  • making sure their finances are regular and correct
  • making sure resources are used economically, efficiently and effectively.

The Commissioner acts in the role of accountable officer, and in this role they are answerable to the Scottish Parliament.

This means that – while the Commissioner is independent – the law does say they should spend the money they get from the public in a reasonable way, and there are systems in place to make sure this happens in practice.

A:

The Commissioner is funded through public money, and ultimately through the people of Scotland.

But isn’t the Commissioner independent? How can that be if they get funding in this way?

The Commissioner’s funding doesn’t come through the Scottish Government, but from the Scottish Parliament.

The Commissioner requires Parliamentary approval of their budget each year via the Scottish Parliamentary Corporate Body (SPCB).

The Commissioner’s financial year runs from 1 April to 31 March. Each summer, the SPCB writes to the Commissioner seeking a budget for the next financial year and an estimated budget for the year or years after that.

The SPCB looks at the Commissioner’s budget submission and may request oral or written evidence of the bid, agreeing changes if necessary before formal SPCB approval. The Commissioner’s budget submission forms part of the SPCB’s overall budget submission that must be approved by the Scottish Parliament’s Finance Committee.

A:

Access to food is a basic human right, and it’s one that isn’t met for all Scotland’s children and young people. Across the UK, more and more people are being pushed into food insecurity— where they don’t have consistent access to sufficient affordable, nutritious food.

People need access to food in a physical and economic sense— they need to get to where food is, then afford it when they’re there. Economic access means that people should be able to afford food without compromising other basic needs, such as heating.

This isn’t the case for lots of families in Scotland right now, so several children and young people are having their access to food compromised.

A:

Like many other human rights treaties, the UN Convention on the Rights of the Child (UNCRC) is accompanied by Optional Protocols. These are additional treaties that can:

  • further address something in the original treaty, or
  • address something the original treaty doesn’t mention, such as an issue that didn’t exist when it was first adopted.

Optional Protocols give more detail about the area they discuss, and expand a state’s obligations beyond those given in the original treaty.

Optional Protocols of the UNCRC

The UNCRC has three Optional Protocols:

A state that signs up to the UNCRC isn’t required to sign up to its Optional Protocols. Currently, the UK is signed up to two Optional Protocols, but not to the Optional Protocol on a communications procedure.

A:

The UN Committee on the Rights of the Child creates general comments to:

  • provide interpretation and analysis of specific UNCRC articles so that States have guidance around putting these into practice, and
  • deal with how the UNCRC applies to broad issues related to the rights of the child.

An example of the first kind of general comment would be General Comment 17, which provides additional information around the right to play, Article 31 of the UNCRC. An example of the second kind would be General Comment 16 on the impact of business on children’s rights.

A:

The minimum age of criminal responsibility is the lowest age where a person who commits an offence is considered to have enough maturity to understand their actions— and the fact they can be held criminally responsible for them.

It’s not the same as the minimum age of prosecution.

In Scotland the minimum age of criminal responsibility is 8, although a law has been passed that will raise it to 12. But 12 is still below 14, which is the minimum acceptable age in human rights terms.

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