“Every case represents a potential breach of rights”

As we near the end of 2024, in this long read, Commissioner Nicola Killean reflects on using her office’s legal powers since the UNCRC Incorporation (Scotland) Act came into force in the summer.  

It’s been five months since the UNCRC Incorporation (Scotland) Act 2024 came into force giving my office new powers, and we’ve wasted no time in using them. The end of the year feels like a good opportunity to share some of what we’ve been doing.   

The Act gave the office the power to take legal action where public bodies are not complying with the UNCRC. When explaining these new powers to children and young people, we have been comparing it to being bitten by a radioactive spider! Just like Spider-Man, the core values that drive us remain the same, but we are now better able to act in law and challenge when things go wrong for children.  

And with great power comes great responsibility. It’s been important for us to develop a strong set of processes to ensure we use our legal powers to the maximum effect, and in a way that makes best use of our limited resources.  

While I use the word ‘new’, the foundations were laid under my predecessor Bruce Adamson. The office worked with international experts in the Advancing Child Rights in Strategic Litigation (ACRiSL) project team – in particular Professor Aoife Nolan and barrister Shauneen Lambe – and with members of our Young Advisors Group, to develop a Strategic Litigation Toolkit which was launched in 2022.   

The Toolkit sets out our criteria for decision-making on cases and commits us to litigating in a child rights-compliant way. As an independent Children’s Rights Institution (ICRI), we put children’s rights at the heart of all we do.  

Between 2022 and 2024, there was significant and essential technical work on the rules that determine how the new legislation will operate. We had detailed engagement with the Scottish Government, and with the Committees responsible for the Civil and Criminal Court Rules, as well as with the UK Supreme Court.  

Finally, there was an intense period of work to implement that, developing and testing our internal processes, and establishing a case management system. That work, often invisible, was critical to enabling us to be ready to use our powers effectively as soon as the law was passed.  

And from August 2024, cases started coming in. I confess to feeling somewhat conflicted about that. On one hand, seeing the Act being used is significant, as is the opportunity to exercise our powers to achieve positive change for children. Yet on the other hand, every case represents a potential breach of rights for a child or group of children.  

 There are two significant live cases where we’ve exercised our power to intervene; both of them groundbreaking – the first ever criminal case under the UNCRC Act in the High Court and the first ever civil case under the Act in the Court of Session. I look forward to being able to talk more about them in due course.  

We’ve stuck to our commitment, expressed through the Toolkit, to take the cases that are strategic in nature, for example those that impact on interpretation of the Act, which engage systemic issues, and which have the most potential for positive impact on rights.  

I’m lucky to have a highly skilled team who support the functions of the Commissioner, with my Advice and Investigations team leading our work in this area. And while the legal powers are new, our expertise in using the law to promote and safeguard rights is not. The office’s domestic and international reputation has been well earned over decades now.  

Because the UNCRC Act is brand new, taking these first few cases can feel like forging a path through freshly fallen snow – we’ve been working hard to help develop new procedures and processes for the protection of children’s rights. The work we put in now will make it easier for others to follow.  

We are relishing the new challenges with this work. Timescales can be incredibly tight to produce submissions, but the cases themselves can take a very long time to conclude – particularly if they are more complex. We have also taken time to consider confidentiality carefully and I’ve made the decision that we won’t talk in detail about cases while they’re ongoing. While I appreciate for some this may be frustrating, this approach respects the privacy of the children involved, and the role of the court. 

It’s so important to have experienced participation staff, and a whole office that sees participation of children and young people as a core part of their jobs. Just last month, our legal and participation staff spent a Saturday with our Young Advisors discussing how they can continue to be involved in the exercise of our investigation and litigation powers. They discussed the operation of the criminal justice system through the lens of the courtroom scene in Paddington 2 and even conducted a mock trial of Paddington to draw out the rights issues at play.  

Finally, to the unique nature of the office’s powers. The Act recognises the role of the office as the statutory guardian of children’s rights in Scotland, so unlike civil society organisations we have a power to intervene in proceedings without the need to seek permission of the courts. The Scottish Parliament gave us these powers to act in the public interest, so unlike lawyers representing an individual child, we have to consider the rights and interests of all children affected by the issue. That means in criminal proceedings, for example, the rights of children in conflict with the law, and of child victims and witnesses are all part of our mandate. And our role means that we are focused on ensuring that strategic changes are made for all children and young people, not just the individual involved in the case.  

This is a time of great opportunity, to look forwards as a society at how persistent rights breaches for children and young people can be addressed. Sadly, there are more issues out there to be addressed than we, as one team, can support. So that is why, early in the summer of 2024, we made suggestions to funding bodies and partners about building capacity for child rights litigation. This included how civil society organisations, who often have access to the evidence of rights breaches, could be supported to be put in touch with legal experts with a view to developing and taking forward cases.  

I am incredibly excited about what we have achieved already, and the potential of the work still to come. The full impact of incorporation and of the new powers will take time to be seen, but we expect the number of cases being raised to increase over time as awareness spreads.  I am confident that strategic child rights litigation will make a significant difference to the lives of children in Scotland.