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The law says that the Commissioner can’t investigate a case if:
The Commissioner also can’t investigate an issue if another body in Scotland is able to investigate it. Some other organisations who can investigate issues are:
The law that lays out the Commissioner’s powers says they can investigate enquiries around if service providers have failed to:
Someone is deprived of their liberty when they are kept somewhere and not allowed to leave, under constant supervision and control.
Due process means that a country has to respect all the legal rights it owes to a person.
For example, if a person is to lose their liberty, that should only happen after a process where standard laws and procedures are followed.
The Commissioner has the legal power to investigate in some cases where he thinks rights promises to children and young people aren’t being kept in Scotland. It’s a way that our office can hold people in power to account and demand they make changes when they’re failing to follow the law around children’s human rights.
Article 29 of the UNCRC says children and young people have the right to be educated in a place other than state school, such as a private school or by their family. The government shouldn’t make it so the only places they can study are provided by the State.
Article 21 of the UNCRC says that children and young people can be adopted by people in a country that is not their own, but this should only happen as a last resort. If this happens, people should make sure they will be treated as well as they would be if they were adopted in their own country.
Article 24 of the UNCRC says that people should know about the health services they have access to. They should get information about physical and mental health, and they should know about the services they can use if they have difficulties with either.
Young people have the right to get information about their health in private, without a parent or guardian’s knowledge. While as a child it might have been in their best interests for a parent or guardian to make decisions about their health, young people should be able to choose which services they need.
Article 19 of the UNCRC says that if someone uses violence against a child or young person, it’s never acceptable or justifiable. It should be possible for them to report a violent act in a safe and confidential way, and reports made by young people should be investigated by the authorities.
It should be possible for a person who commits an act of violence against a child or young person to be taken to court. When this happens, the child or young person who the act was committed against shouldn’t be discriminated against because someone has been violent towards them, or because they’ve spoken up about it.
More in the Rights questions and answers section
Under Article 19 of the UNCRC, Scotland and the UK should help make sure that people aren’t violent towards children and young people and should also take steps to make sure children and young people don’t feel like self-harming or committing suicide. In addition, we should make people aware of how common violence against children and young people is, and which children or young people may be at risk of it.
The UNCRC considers violence to happen when someone attacks a person’s mental state as well as when they attack a person’s body. Because of this, verbal abuse and intimidation are both considered to be forms of violence.
As well as being protected from violence, Article 19 of the UNCRC says that children and young people should be kept safe from:
There are some limits to freedom of expression. These aren’t just in place for children and young people— the limits set out in Article 13 of the UNCRC are the same as those placed on the expression of adults.
Article 12 should be taken into account when governments pass laws. New laws should take into account the right of children and young people to have opinions in any and all areas of their lives.
As well as this, one of the Commissioner’s jobs is to make sure children and young people can have their voices heard.
He does this by:
While Article 15 of the UNCRC promotes freedom of association, it does say there are some circumstances where it doesn’t apply. For example:
Article 12 doesn’t mean children and young people have to express an opinion if they don’t want to. They can refuse to give their opinion for any reason, and Article 12 shouldn’t be used to pressure them into giving it.
The opinion of a child and young person should be considered everywhere, including in their home, in their workplace and at school. This is true no matter how young that person is, although the weight their opinion is given should change as they grow older or become more mature.
Article 12 applies to everyone, and care should be taken to make sure it can be exercised by everyone in reality. For example:
A child is abducted when these two things are true:
When adults who know a child or young person think about that person’s best interests, they should:
When adults in positions of power think about children and young people’s best interests, they should:
Direct discrimination happens when a person is treated differently because of the way they are.
For example, it happens if someone doesn’t get a job because of their disability or isn’t treated equally because of their race.
Indirect discrimination happens when something applies to everyone in the same way but affects some people unfairly.
For example, if everyone had to climb up a flight of stairs to get to an after school club, this would discriminate against children who couldn’t do that because of disability.
More in the Rights questions and answers section
A judicial review happens when judges examine if a public body has followed the law when it made a certain decision. If the judges find that it didn’t, they can make that public body take a different decision instead.