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 they think 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.
Mental Health: Counselling in Schools
What did this investigation focus on?
We wanted to know whether the Scottish Government’s policies, healthcare services and other professional practices were meeting the mental health needs of children and young people in Scotland. The crisis affecting children’s mental health has worsened, deepened by the aftermath of a global pandemic. It was vital to identify the issues that prevent and stunt the provision of adequate mental health services and support for children and young people. To do this, we based our solutions to this crisis on the views and experiences of children and young people.
Reasons for investigation?
Children’s mental health services were in crisis before the onset of the Covid-19 pandemic in March 2020. Our office received frequent enquiries from young people, parents/carers and professionals about difficulties in accessing diagnoses and support. A 2018 report from the Auditor General for Scotland found that, while children’s mental health was a priority for the Scottish Government, mental health services were under significant pressure; data and evidence, particularly on outcomes, were inadequate; and that a step-change in Scotland’s response to children’s mental health was required.
Getting young people involved!
The Commissioner’s office assembled a team of Young Investigators to inform and lead the investigation process. They worked together to explore and discuss the issue of mental health, the impact of Covid-19 on children and young people’s mental health and how this impacts their rights.
They worked with the Commissioner’s Advice & Investigations and Strategy teams to explore issues around children and young people’s mental health and the services that are provided.
They exercised the Commissioner’s legal investigation powers to ensure they accessed the evidence they needed to make recommendations on what needs to change.
They expressed the view that they wanted to focus on school counselling. Specifically, to consider whether and to what extent the current model is sufficient to deliver a rights-based approach to mental health provision given the increased need post-pandemic.
Report and findings
Data was requested from all 32 local authorities by summer 2022, but one did not have school counselling services in place until January 2022, so was unable to respond. After examining the evidence from the 31 authorities who responded, the Mental Health Investigators published a report in May 2023, recommending that all children should have a right of access to counselling at school, and that local authorities should ensure that counselling is available outside school hours, during school holidays, and outside school premises, on request.
The group also recommended that the Scottish Government should expand school counselling provision to all primary and special schools in Scotland, and that all local authorities should have clear waiting times for children who want to access services, and information should be child-friendly. The investigators presented their report to the Convenor of the Education Committee, Sue Webber MSP, and Convenor of the Health Committee, Clare Haughey, at the Scottish Parliament.
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.