We want to act early, at a strategic level, to address rights breaches
Two years ago, The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 became law. Nick Hobbs, Head of Legal, explains what the legislation means for the office, and how we are using the new powers it gave us…
Today we’re celebrating the second anniversary of the UNCRC (Scotland) Act 2024 – a landmark moment which finally protected children’s rights in Scots law.
It also granted us powers to intervene in legal proceedings and to bring legal cases in our own name in the most significant change to the office’s powers since the role of Commissioner was created. We’re using these new, stronger legal powers to effect positive change at the cutting edge of the development of law and children’s rights.
To ensure effective delivery of our legal powers, we take cases that are strategic in nature. We are not, and cannot be, legal representatives for individual children. Instead, we want to act early and at a strategic level, to address rights breaches, or potential breaches. There are broadly two types of cases we are actively pursuing:
- Cases which impact on the scope and interpretation of the UNCRC Act, aimed at ensuring that we and others can use it to best effect.
- Cases which engage systemic priority issues, and which have the most potential for positive impact on rights, especially in relation to children whose rights are most at risk.
We have had a very effective first two years operationalising the Commissioner’s new legal powers. This included successfully delivering:
- the first UNCRC Act criminal intervention in the High Court
- the first UNCRC Act civil intervention in the Court of Session
- the first two UNCRC Act cases in the Commissioner’s own name
This has meant that:
- The High Court has determined that all decisions to prosecute children must be tested against the UNCRC standards. This protects the scope of the UNCRC Act and the intent of the Scottish Parliament. It also found that the privacy rights of children must be secured at all stages of proceedings.
- The Court of Session’s judgment on relevant function in the eviction case relating to eviction proceedings means the scope of the UNCRC Act was protected from an approach proposed by a public authority which would “deprive the 2024 Act of much of its meaningful content”. The court also found that courts and public authorities must consider the best interests of the child in eviction proceedings.
- The Scottish Government has agreed to publish rules for all Tribunals, ensuring that UNCRC issues can be raised and dealt with, promoting better access to rights and justice for thousands of children and young people.
- The Scottish Government has agreed to revise the statutory Code of Practice issued under the Mental Health (Care and Treatment) (Scotland) Act 2003 to provide protection for children against unlawful and/or excessive use of restraints in mental health detention, as well as to ensure mandatory reporting and monitoring of incidents.
Our new legal powers have created an unprecedented opportunity for the Commissioner to deliver significant impact on children’s rights issues in a way which is distinct from, and complementary to the role of civil society, and which reflects the strategic, public interest role that the Parliament has asked us to fulfil.
The last two years have also sounded some cautionary notes. For example, we have had to spend as much time and resource protecting the scope and application of the UNCRC Act as we have seeking to advance rights protections for children. The judgments in some of those cases will bear not only on the impact of the UNCRC Act, but on the prospects for wider human rights incorporation as well.
This is an important reminder that, to adapt a well-kent phrase, the price of incorporation is eternal vigilance. Hard-won rights need to be defended just as robustly, and the Commissioner is uniquely placed to play that role as Scotland’s statutory guardian of children’s rights. If this defence isn’t mounted then the prospect of successfully incorporating other human rights treaties looks fragile.
As the Act begins to embed, volume may also start to become a consideration. We currently receive notifications of all cases where a child raises UNCRC questions in the courts and we expect the volume of intimations to increase due to new Tribunal Rules which came into force on 1 April, 2026, and due to provisions – not yet commenced – in Part 2 of the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Act 2026. We are aware that this increase in cases will have potentially significant resource impacts for the office.
In addition, the complexity of the issues raised in cases, particularly in relation to the question of “relevant function” under s6 of the UNCRC Act, and the disparity in resources between the office and public bodies, have also been real challenges.
Despite all of the challenges presented, as we reach this two-year milestone, we are steadfastly looking ahead. We remain excited to use our powers to further progress children’s rights. We have been engaged in a detailed review to support our future decision-making and to ensure we can use the legal powers effectively for children, and as the Parliament intended.