The Commissioner has the legal power to investigate certain issues that affect the human rights of children or young people in Scotland.
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.
The law that lays out the Commissioner’s powers says they can investigate enquiries around if service providers have failed to:
- uphold the rights, interests and views of individual children and young people when taking actions or making decisions that affect them, or
- uphold the rights, interests and views of a group of children and young people when taking actions or making decisions that affect them.
The law says that the Commissioner can’t investigate a case if:
- it relates to matters reserved to the UK Government,
- it concerns the decision-making of a court or tribunal in a particular case, or
- it concerns a case currently before a court or tribunal.
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 Commissioner will only investigate if they think they have the power to do so, based on a clear set of criteria to make sure they are using their powers effectively.
Our office may also be able to address issues in other ways including:
• carrying out work at policy level,
• undertaking research, or
• through strategic litigation.
Local authority duties around secure accommodation
When local authorities place children in secure accommodation, some children may be deprived of their liberty without due process of law. That needs to change as a matter of urgency.
Secure accommodation is a place where children can go to get help if it isn’t safe to live at home because they might hurt themselves or someone else.
To make sure that they get the help they need and to keep them safe, they are locked in and can’t leave. It is a place that children should only go if there is no other place where they can get help.
It is important that children are involved in the decision to send them to secure accommodation. They should understand why it is in their best interest to be there.
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.
Restraint and seclusion in Scotland’s schools
Restraint means holding a child or young person to stop them from moving.
Seclusion means shutting a child somewhere alone and not allowing them to leave.
Restraint and seclusion take place in Scotland’s schools, but we discovered through our investigation that there were no consistent policies or procedures to make sure that they happen safely and lawfully.
Those policies that did exist often weren’t grounded in human rights principles. Our investigation made the Scottish Government take action to change this.