Our office has published a new report on how Scots law complies with the UN Convention on the Rights of the Child (UNCRC) for children aged 16 and 17 in conflict with the law.
It’s been written by Kate Whiting, LLM student at the University of Edinburgh.
It looks at contact with the justice system because they are believed to have committed a crime— sometimes called children in conflict with the law.
And it asks if Scots law protects these children’s human rights, and if laws around their treatment comply with the UNCRC.
A Bill to incorporate the UNCRC – to make it part of Scots law – is currently before the Scottish Parliament. Incorporation means existing Scots law should comply with the Convention. If it doesn’t, it will be challengeable in Scotland’s courts.
The UN Committee on the Rights of the Child has said Scots law in this area currently isn’t compatible with the Convention, and our report agrees. It finds there are key ways in which Scots law does not work in the way that the UNCRC says it must.
This includes the child’s right to a fair trial, to liberty and, above all, to be treated in a distinct child justice system.
We will use the information in this report to ask the Scottish Government to consider making changes to the current law.
By doing this we will make sure the rights of all children, including children in conflict with the law, are properly respected, protected and fulfilled.
It is important people are protected from crime – including crimes committed by children – and that victims are given some remedy.
However, this has to be balanced with the fact that some children in conflict with the law may have experienced difficulties in their childhood – such as poverty, family breakdown or drug and alcohol use –which has led to their behaviour.
Some of them may also be victims themselves.
Where the law says that a child should be punished for their actions in the criminal justice system, this can impact their future. States must recognise children’s vulnerability both as victims and perpetrators of crime.
There is an important difference in the UNCRC between rights to protection and rights to participation.
Rights to participation are about our ability to make decisions, such as voting or making decisions about medical treatment. For example, the law in Scotland says that under 16s can consent to medical treatment if a doctor believes they understand what the treatment or procedure means.
However, rights to protection exist to protect children from harm. Because punishing children, and treating them as adults when they commit crimes, can be harmful, Article 37 and Article 40 of the UNCRC are both protection rights.
That means that every child should enjoy them until they are 18.
UNCRC Article 37
I have the right not to be punished in a cruel or hurtful way
UNCRC Article 40
I have the right to get legal help and to be treated fairly if I have been accused of breaking the law
More in the Rights questions and answers section
Older Children In Conflict With the Law
October 2020. A legal analysis of how Scots law complies with the UN Convention on the Rights of the Child (UNCRC) for children aged 16 and 17, written for our office by Kate Whiting, LLM student at the University of Edinburgh.