The UN Convention on the Rights of the Child (UNCRC) makes it very clear that the state should make sure that – as far as possible – children can grow up in a family environment.
Sometimes this can’t happen, however, and in these cases the state has obligations to children as well. When a child can’t live with their family, their right to family life should still be respected, as should the relationships that are important to them.
Articles of the UNCRC that highlight this include:
- Article 3 , which says that courts should prioritise children’s best interests when making decisions about them.
- Article 8 , which says that states should respect the right of a child to preserve certain aspects of their identity, including their family relations.
- Article 16 , which says that no child should be subjected to arbitrary or unlawful interference with their family.
The European Convention on Human Rights
At the moment, the UNCRC hasn’t been incorporated into Scots law, which means if a person or organisation doesn’t follow it in Scotland they can’t be challenged in a court.
But there are other human rights instruments that have legal force in our country, and the concept of respect for family life – and the rights associated with this – appears in these as well.
Particularly important is the European Convention on Human Rights (ECHR), which has legal force in the 47 Member States of the Council of Europe .
Article 8 of the ECHR sets out the right to respect for family life, and it’s incorporated into law across the whole UK through the Human Rights Act . It applies to everyone in the UK, including children and young people.
There’s no standard definition of what a family is under international human rights law, but the European Court of Human Rights has confirmed family life can exist between siblings .
Families aren’t just about parents
If we ask children and young people about their families, they won’t just speak about their parents. They’ll talk about their brothers and sisters as well— and maybe their aunties, uncles, cousins and grandparents.
But there’s a special bond between siblings. Relationships between them are important and lifelong, and they can be vital for promoting good mental health and for a person’s sense of identity well into adulthood.
We know from research that failure to support contact with siblings means there’s less chance of achieving a safe, stable and permanent home for that child.
Guidelines for alternative care
The United Nations has issued Guidelines for the Alternative Care of Children .
These state that siblings that have existing bonds shouldn’t be separated when in alternative care unless:
- there’s a clear risk of abuse, or
· there’s another justification for separation that’s in the best interests of the child.
In cases where siblings can’t have contact, they should have as much information as possible about the reasons for this, and about where their siblings are.
These rights aren’t met in reality
Despite this, many care experienced young people in Scotland aren’t properly supported to stay in contact with their siblings: they’ve told us this on several occasions.
They talk about their frustration at the barriers placed in their way by the system, which often prevent them from even asking for contact with their brothers and sisters.
The research bears this out: as many as 70% of looked after and accommodated children with siblings who are also in care are separated from their brothers and sisters.
When they’re separated, contact arrangements between siblings vary in type, frequency and quality, and also become less frequent over time.
That isn’t right or acceptable.
Recent cases in Scotland
A number of recent court cases have called into question the adequacy of the law around sibling contact in Scotland. It’s not clear that existing legal processes strike the right balance for children in the care system between protecting their right to family life and their right to privacy.
It is time for the Scottish Government and all partners in the care system to take action and give life to the First Minister’s commitments to care experienced children.
Whether through legislation or practice, the system must support children’s human rights to maintain contact and relationships with their siblings.
Sibling contact links
Your right to contact your brothers and sisters
Stand up for siblings is a group that aims to influence the law, policy and practice in Scotland to protect children and young people's rights around sibling contact.
Resources on the stand up for siblings website explain your rights in relation to sibling contact.