Scotland’s making progress for care experienced people. Here are three ways we need to go further

15 February 2019

Image reading 'We have rights to care.'

In this blog for Care Day 2019 , Children and Young People’s Commissioner Bruce Adamson highlights three ways Scotland needs to get better at protecting the human rights of its care experienced citizens.

Today, Scotland and the world celebrate the fourth annual Care Day, where the lives and experiences of care experienced people are celebrated and championed.

Care Day is a celebration that originated in Scotland, and our country has a lot to be proud of around what we’ve achieved in recent years.

In many ways, we have made a great deal of progress around the human rights of care experienced people.

We’ve seen bursaries, council tax exemptions and the Care Leaver Covenant , which aims to help care leavers transition to living independently.

We have been leading the way in developing resources and understanding of the United Nations Guidelines for the Alternative Care of Children.

And we’ve welcomed an increasing number of Champions’ Boards springing up across Scotland, which enable young people to make real changes at a local level.

Most significantly, in 2017 we saw the creation of the Independent Care Review. This aims to make lasting changes to Scotland’s care system through a process where care experienced young people play a central role. I am proud to be playing a role as co-chair of the rights working group and to be working with such amazing people across the review to deliver real meaningful change.

But despite all this great work, we know that in some areas care experienced children are still not having their human rights fully respected, protected and fulfilled.

This Care Day, I want to reflect on three areas where more action is required.

We need to bring the rights of children into domestic law

Image reading 'We need to get legislation before the Scottish Parliament this year that puts the UN Convention on the Rights of the Child into Scots law.

People of all ages have human rights, but we recognise that childhood is special. In the 1948 Universal Declaration of Human Rights, we proclaimed that children were entitled to special care and protection.

Since then we have set out children’s human rights in several international instruments, but the United Nations Convention on the Rights of the Child (UNCRC) changed the way children are viewed and treated in international law.

The Convention proclaims children’s status as human beings with a distinct set of rights— not just as passive objects of care and charity. It covers all aspects of a child’s life and explains how those in power must work together to make sure all children and young people's rights can be realised.

Care experienced children are given special recognition by the Convention. It acknowledges that the State is more likely to fail in its duties to them when making sure their rights are respected, protected and fulfilled.

When I speak to care experienced children across Scotland, I hear concerns about education, health care and housing— issues that drive home the reality of what it means for rights not to be realised. We need to do more to ensure their rights are met.

And we need make sure these rights can be enforced.

Last year, the Scottish Government committed to incorporating the UNCRC into Scots law.

Incorporation would be a powerful way for us to ensure that the rights of care experienced children were properly prioritised in budgets and decision making. It would also allow us to take more direct action when these rights were not met.

It is essential that we incorporate the UNCRC as a matter of urgency. To assist the Scottish Government, I worked with Together and a team of international experts to write a draft law and presented it to the Government last year.

It is important that we get a law before the Scottish Parliament this year— the 30th anniversary of the UNCRC.

We need to examine how continuing care provisions work in practice

Image reading 'Local and national government need to look at how continuing care provisions operate, and what people do to make them work.

My office often receives calls – from young people and from foster carers – about how young people are being moved on from continuing care before they are ready— or even missing out on that entitlement altogether.

The continuing care provisions in Scotland’s Children and Young People Act are rights based and aspirational – as is the accompanying guidance – but they will remain aspirations only if there is a gap in their implementation.

These are legal rights, and it is unacceptable that a care experienced young person ends up having to present as homeless instead of receiving the support to which they’re entitled.

Local and national government need to examine the operation of these provisions – and the practice that underpins them – to ensure that the rights set out in the legislation are fully realised.

We need to make sure that siblings can contact each other

Image reading 'We need to do more to help brothers and sisters keep up their familial relationships. And if children need to use the law to do that, we must make sure this can happen.

Sibling contact is something care-experienced children and young people have raised with me on many occasions.

They talk about the pain and distress of being separated from their brothers and sisters and their frustration at barriers placed in their way by the system— which often prevent them from even asking for contact with their brothers and sisters.

Even where contact does take place arrangements vary in type, frequency and quality. They also tend to become less frequent over time.

There should be no dispute about sibling relationships being capable of engaging rights laid out in Article 8 of the ECHR , or about how it’s unfair if we can’t find a way to let children realise these.

Practice and culture need to support siblings to maintain family relationships with each other.

And there must be a legal mechanism for the minority of cases where children need to resort to the law to claim their rights.

Learn more