August 2024. We responded to the Committee on the Rights of the Child’s consultation on a proposed new General Comment.
Children access justice and effective remedies through a wide range of processes, including informal complaints processes in schools, formal complaints processes in public authorities and formal appeals to national or international human rights procedures and courts.
In this submission, we have provided an outline of key issues around access to justice in Scotland, together with a selection of illustrative case studies. We hope that these will assist the Committee as it prepares its new General Comment.
Incorporation of the UNCRC
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 came into force on 16 July 2024, incorporating the majority of the UNCRC into Scots law. The full text of the convention could not be incorporated, due to the limits placed on the competence of the Scottish Parliament[1]. Fully implementing the UNCRC in Scotland will require significant changes to be made in children’s access to justice and rights to effective remedy, including significant changes to legislation, practice and culture across public authorities.
Not all legislation affecting children in Scotland is in scope of the Incorporation Act. Significant pieces of legislation relating to devolved issues, but passed by the UK Parliament prior to 1999[2], are outwith the scope of the Act.[3] This includes the Education (Scotland) Act 1980, the National Health Services (Scotland) Act 1978 and the Social Work (Scotland) Act 1968.
Ideally, this could be addressed by the UK Government incorporating the UNCRC, in full, into UK law. Failing that, we have called on the Scottish Government to undertake an audit of legislation which is out of scope and develop a strategy to bring it into scope by introducing new legislation in the Scottish Parliament. We are concerned that pre-1999 UK legislation is still being amended, reducing the likelihood of it being deemed in scope of the Incorporation Act.
The Incorporation Act has strengthened the powers of our office to challenge legislation, policy and practice which is incompatible with the UNCRC, within the limits of devolved competence.
The UK has not yet ratified the third Optional Protocol to the UNCRC, despite repeated recommendations from the Committee, meaning that children in Scotland are not able to access that potential route to remedy.
Access to Justice and Complaints
We welcome the broad scope which has been proposed for this General Comment. Children can access justice and effective remedy through a number of routes. The development of children friendly procedures can further children’s access to justice, as long as they are given the same status and powers of general (“adult”) procedures. Indeed, we would encourage the development of unified procedures that are accessible to all, including children. This would also benefit many adults, including parents seeking remedy on behalf of their children.
Changes to procedures and processes must be accompanied by comprehensive culture change in both public authorities and the justice system. We are concerned about resistance to change, but in Scotland we have an excellent opportunity to drive this forward with appropriate training and awareness raising[4].
Effective remedy
Effective remedy can take many forms and does not necessarily mean monetary compensation. In some cases, what is sought is simply an admission a child has been wronged. However, it is vital that both complaints and justice mechanisms have the ability to correct that wrong, for example by ordering agencies to provide services or support to which the child is entitled. Procedures must also be timely, to ensure that additional detriment is not caused by excessive delays.
Power imbalances
There are inherent imbalances of power in many of children’s interactions with the world, this is part of the reason the UNCRC exists. Complaints and justice processes can mitigate these, but too often perpetuate them. Recognising the child as a rights holder is important, but there are also positive obligations to provide them with support and assistance in accessing justice. This is particularly important in more complex proceedings, for example judicial review which will be a key avenue to challenge actions incompatible with the UNCRC.
Advocacy support is increasingly available to children in Scotland, though is not universal. The difference between advocacy and representation is not always well understood and, in particular, advocacy should not be seen as a substitute for qualified legal advice or representation, particularly when significant decisions are being made in judicial or quasi-judicial settings (including, in Scotland, Children’s Hearings).
Article 5
We would welcome additional guidance from the Committee on parents’ roles in complaints processes. It is right that parents have access to complaints processes as a way of asserting the rights of their child, on their behalf in line with Article 4 of the UNCRC. Complaints processes and justice systems must take a flexible approach which encompasses parents bringing complaints on behalf of children, with the consent of children where appropriate; children bringing their own complaints with the support of their parents; and children acting independently. Too often, well-intentioned attempts to navigate this result in creating additional barriers rather than empowering children.
Legal Aid
Lack of independent access to legal aid, for example due to parental income, can result in significant inequalities in access to justice. Whilst legal aid is automatically available for criminal cases prosecuted in adult courts in Scotland, children who are referred to the Children’s Hearings system on offence grounds do not yet have automatic access to legal aid. However, if a deprivation of liberty is being considered, for whatever reason[5], automatic access to legal aid is available.
In civil cases, which will include the majority of challenges under the Incorporation Act, access to legal aid is usually dependent on parental income. This presents a barrier to children who wish to assert their rights independently, particularly those acting without the support of their parents.
Specific case studies
Health and Education Chamber of the First-tier Tribunal for Scotland
The current President of the Tribunal has undertaken considerable work to make the Tribunal more accessible and inclusive for children. The Tribunal hears referrals about the rights of disabled children and those with other support needs under the Additional Support for Learning (Scotland) Act 2004. Changes have been made to procedures; to the information provided by the Tribunal in print and via its website;[6] and to the hearing rooms. Particular attention has been made to the needs of children with autistic spectrum disorders and other neurodivergent conditions and the Tribunal has worked closely with children in designing both materials and spaces.
Unfortunately access to the Tribunal is limited to a relatively small subset of disabled children. Legislation limits references to children who meet the criteria for a Co-ordinated Support Plan (CSP)[7] and we have criticised these criteria as being too narrow. The Tribunal is able to order support to be provided by Education Authorities, but there is no equivalent power with relation to services provided by health services or other public agencies. This results in a significant gap in its ability to provide appropriate remedy to children where there is (or should be) multi-agency involvement.
The Education (Scotland) Act 2016 extended the right to make a referral to the Tribunal to children aged 12-15. Unfortunately, that legislation also introduced a capacity test for children making referrals and gave education authorities the ability to refuse requests if they found any negative impact on “wellbeing”. We opposed these tests when introduced. Children under 12 do not have the legal right to make a referral, though some have been supported to do so. Children aged 16 and 17 can make referrals but do not have access to the support provided to younger children.
The Tribunal also considers claims of disability discrimination under the Equality Act 2010 and there are fewer restrictions on access to this. Legal advice for both parents and children with capacity is funded by the Scottish Government. Finally, the Tribunal considers appeals for Placing Requests for schools in certain circumstances, but only from parents or children aged 16 or 17.
Scottish Public Services Ombudsman – Child Friendly Complaints
A model complaints handling procedure was introduced by the Ombudsman for local authority (including education authority) complaints in 2012 and over time has expanded to include further and higher education; the health service; social care and registered social landlords.[8]
In preparation for the incorporation of the UNCRC into Scots law, SPSO began a project to develop guidance on child friendly complaints handling[9] and a set of Child Friendly Complaints Principles, grounded in the UNCRC[10]. However, as we highlighted during the development of the Principles, there is a risk that concepts such as best interests could be “interpreted in a somewhat paternalistic way which divorces it from the rest of the Convention, restricts children’s assertion of their rights and reinforces the power imbalances these principles intend to address”.[11] Section 6 of the finalised guidance highlights potential conflict between the legal rights and interests of parents[12] and the human rights of children in the UNCRC. There is a risk that in application, this could be misinterpreted in a way which results in barriers to children utilising the complaints process.
Children’s Hearings Scotland
Scotland’s Children’s Hearings have, for over 50 years, provided a welfare based setting for decisions relating to children in need of care and protection and children in conflict with the law[13]. In both cases, the ethos is one of “needs not deeds” and the best interests of the child are always a primary consideration. The most common grounds for referral are: lack of parental care; offence, and child’s conduct harmful to self or others. The latter does not result in a criminal conviction, but if a child over the age of criminal responsibility[14] accepts offence grounds, or if offence grounds are proven by a court,[15] this results in a criminal conviction which is disclosable under the Protection of Vulnerable Groups scheme.
Children referred to a children’s hearing have been entitled to advocacy support, funded by the Scottish Government, since 2020[16]. A Hearing can also order a Safeguarder to be appointed to report and make recommendations based on the child’s best interests.[17] Generally, these are welcomed but there has been some confusion between the different roles.
It is important to note that neither advocacy nor a Safeguarder meets children’s rights (in terms of UNCRC Article 40 and ECHR Article 6) to independent legal representation and we would direct the Committee to the submission by Clan Childlaw for further information on the impact of this.
Family Justice
Our office has had a longstanding interest in improving the extent to which children are able to participate in decisions made about them in contact and residency[18] proceedings, particularly where there is a history of domestic abuse. Research supported by our office in 2013 found that younger children were less likely to have their views considered but more likely to be subject to court-ordered contact.
This work, much of which was in partnership with Scottish Women’s Aid and other women’s and children’s organisations, culminated in the Children (Scotland) Act 2020 which made major legislative changes to the ways children’s views are considered by the Courts. These included replacing the existing presumption that children aged 12 and over could give their views with a presumption that all children could express a view; requiring the Courts to allow children to express their views in ways they preferred; and the registration of Court Welfare Reporters, including minimum training requirements and funding to ensure all children had access to them[19].
Unfortunately, four years after the Act was passed, none of these provisions have been brought into force, with the Scottish Government reporting that there was a lack of resources to implement some aspects (including the funding of Court Welfare Reporters)[20].
This is part of a concerning pattern where ambitious legislative progress realising children’s rights has not been accompanied by adequate resources for implementation. This has led to an appearance of compliance with the UNCRC when in fact children are left waiting years for legislation to come into effect.
We have been clear that in addition to resource, there is also a need to ensure that the legal profession and the judiciary have access to high quality training and awareness raising about children’s rights. We thank the Committee for including this in their 2023 Concluding Observations.
Online safety
We recently responded to a consultation from Ofcom[21] on their draft Codes of Practice for internet service providers, required by the Online Safety Act 2023. In our response, we highlighted the importance of child-friendly and accessible complaints mechanisms and shared concerns children have expressed in relation to existing systems provided by internet service providers. We also highlighted the importance of children actively participating in developing the complaints and user-reporting processes[22].
Inspection Regimes
The Care Inspectorate is responsible for ensuring that social work; social care; and residential care (including children’s homes and secure children’s homes) meet minimum standards and to help them improve to reach the highest standards. They also have a role to investigate complaints about care services (in the private, charitable or public sector) and so provide, to a limited degree, access to justice. Although they are unable to order compensation[23].
Other inspectors have similar roles, notably HM Inspector of Education (HMIE) Scotland, which inspects state, independent (private), pre-schools and other education establishments[24]. Residential schools (including residential special schools) are inspected by both the Care Inspectorate and HMIE. HM Inspectorate of Constabulary in Scotland provide a similar oversight role regarding Police Scotland.
HM Inspector of Prisons Scotland inspects prisons, including young offender institutions (YOIs) and has repeatedly expressed concerns about conditions for children (aged 16 and 17) in YOIs[25] and they have found a lack of trust in complaints systems for young people[26] in YOIs[27]. From 1September 2024 children will no longer be imprisoned in Scotland.
Conclusion
We hope we have illustrated some of the complexities around children’s access to justice and right to remedy in Scotland. It is a complex situation, particularly given the interaction between the devolved powers of the Scottish Government and Scottish Parliament and the powers reserved to the UK Government. This will continue to be a live issue as our office and Scotland’s children explore the possibilities and limitations of incorporation of the UNCRC in Scotland. We would be happy to provide the Committee with additional information on any issue raised in this submission.
For further information, please contact Megan Farr, Policy Officer at megan.farr@cypcs.org.uk
[1] For full details of the extent to which the UNCRC is incorporated see: https://www.cypcs.org.uk/incorporationuncrc/
[2] Scotland has always had separate legal, health and education systems, but prior to the Scottish Parliament being reconvened in 1999, legislation was passed by the UK Parliament.
[3] Even if subsequently amended by the Scottish Parliament
[4] For further details on culture change in the justice system, see the submission of Clan Childlaw.
[5] See section on Children’s Hearings below
[6] Health & Education Chamber. https://www.healthandeducationchamber.scot/
[7] REF ASL Act
[8] SPSO, 2024. The Model Complaints Handling Procedures. https://www.spso.org.uk/the-model-complaints-handling-procedures
[9] SPSO, 2024. Child Friendly Complaints Handling Process Guidance. https://www.spso.org.uk/sites/spso/files/CFC/CFCProcedure.pdf
[10] SPSO, 2024. Children Friendly Complaints Principles. https://www.spso.org.uk/sites/spso/files/CFC/CFCPrinciples.pdf
[11] CYPCS, 2024. SPSO Child Friendly Complaints Principles. https://www.cypcs.org.uk/resources/spsomarch2024/
[12] Under Scots law, as expressed in the Children (Scotland) Act 1995.
[13] Scottish Government, 2024. What a children’s hearing is. https://www.mygov.scot/childrens-hearings
[14] This was raised from 8 to 12 in 2021.
[15] The standard for offence grounds is beyond reasonable doubt, as in adult criminal cases.
[16] Scottish Governance
[17] Children First. Safeguarders. https://www.children1st.org.uk/media/wuwhgqgl/safeguarders-information-booklet.pdf
[18] Known in other jurisdictions as access and custody
[19] Children (Scotland) Act 2020. https://www.legislation.gov.uk/asp/2020/16/contents/enacted
[20] Scottish Parliament, 2024. Written Question S6W-27580. https://www.parliament.scot/chamber-and-committees/questions-and-answers/question?ref=S6W-27580
[21] The UK’s communications industry regulator.
[22] CYPCS, 2024. Protecting children from harms online. https://www.cypcs.org.uk/resources/ofcom-july24/
[23] HMIE is currently part of Education Scotland, however legislation has been introduced to reinstate them as an independent body. https://education.gov.scot/inspection-and-review/
[24] Care Inspectorate. About us. https://www.careinspectorate.com/index.php/about-us
[25] HMIPS, 2024. Annual Report 2023-24. https://prisonsinspectoratescotland.gov.uk/sites/default/files/publication_files/HM%20Chief%20Inspector%27s%20Annual%20Report%202023-24.pdf
[26] In this case – ages 16-25
[27] HMIPS. 2024. Young People’s Experiences of the Scottish Prison Estate. https://prisonsinspectoratescotland.gov.uk/sites/default/files/publication_files/Young%20People%27s%20Experiences%20of%20the%20Scottish%20Prison%20System-%20An%20HMIPS%20Analytical%20Review.pdf