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Defending children’s human rights in Scots law

15 April 18

A preview of Clan Childlaw's 10th anniversary conference, by highlighting some current issues likely to feature on the agenda

by Janet Cormack, Jill Sutherland

This year Clan Childlaw is marking 10 years as an outreach, child-centred law centre for children and young people which aims to make the law more accessible and work better for children and young people in Scotland.

It is also 20 years since the Human Rights Act 1998 was enacted to “bring rights home”, and it is the Year of Young People. The Scottish Government will soon consult on changes to the Children (Scotland) Act 1995. In September a United Nations Committee on the Rights of the Child Day of General Discussion on protecting and empowering children as human rights defenders will take place, and children from Scotland are already involved in its preparation. At the same time there are serious concerns about the implications of ongoing Brexit negotiations for children’s rights.

All this makes it a good time to reflect on progress made and challenges ahead in defending children’s human rights in Scots law.

Through our legal casework, strategic litigation and policy work we promote the legal rights of children and young people and ensure that their legal rights are articulated, considered and enforced. We also provide training, guidance and information about children’s rights and the law affecting children and young people.

Without doubt the last decade has seen significant advances in children’s human rights in Scotland. Recognition of children as rights holders is growing and increasingly reflected in legislation, and a number of court judgments have been significant for individual young people’s rights and more broadly.

Children and young people themselves are becoming more aware of their rights, helping to equip them to defend their own rights, to effectively express their views in accordance with article 12 UNCRC and engage in decisions made about them by adults.

The fact remains, however, that there are still significant barriers to children, especially those most vulnerable, realising their rights in practice.

One of the reasons behind the founding of Clan Childlaw was to turn what were relatively progressive rights on paper for children in Scotland into tangible rights in practice by providing clients with child-centred, child rights-focused advice and representation. Ten years on, the realisation of their rights through legal processes remains beyond reach for too many children and young people. Accessing the law and legal representation is still difficult and, even when they clearly are in need of it, something young people may not consider.

Making the law work for children and young people

Supporting our clients in their dealings with authorities, their children’s hearing or the courts helps us identify where the law is not working for children and informs our efforts to change policy, legislation and practice.

There are persistent issues that come up time and again which, while tricky to resolve, can be progressed if revisited through a child-rights lens. At the other end, there are new statutory rights, particularly for care leavers, which, to have the intended impact, must be accompanied by the right legal advice and support.

Care leavers’ legal rights

The Children and Young People (Scotland) Act 2014 makes local authorities responsible for continuing to provide care leavers with the same supports they received when they were looked after, after they leave care and into adulthood. The current law in Scotland and the policy framework within which it exists are aspirational, reflecting a political and sectoral commitment to enabling looked-after young people to remain in positive care placements longer. However, three years after the Act came into force, practitioners are identifying that planning and delivery of support are inconsistent and care leavers often do not receive the preparation and support for the challenges of adult life which they need and are legally entitled to receive. Despite the extensive range of statutory entitlements, there are obstacles to realising care leavers’ rights because there is no new legal mechanism for resolving disputes in respect of the new entitlements. There are no provisions for independent representation or advocacy, and no guarantee that looked-after children and care leavers will have this support and assistance when they are being assessed for aftercare or continuing care. Legal support is needed to enable young people – and those supporting them – to realise their right to support in their transition to adulthood.

Maintaining sibling links for looked after children

Clan Childlaw has long represented young people seeking to secure their sibling relationship when one or more siblings are looked-after children. The sibling relationship can be a key relationship and support to overcoming adversity and improving outcomes, yet with no straightforward legal route, barriers remain and losing contact with siblings is still commonplace, potentially infringing their article 8 right to family life.

“Stand Up for Siblings” is a collaboration between a number of child welfare, children’s rights, legal organisations and academics within Scotland, including Clan Childlaw, with the aim of raising awareness and looking for solutions to this ongoing issue (www.standupforsiblings.co.uk). More can be done to use the existing law to facilitate appropriate sibling contact and help young people exercise their rights through early intervention; indeed this is the goal of our current training programme on sibling contact, with workshops taking place across Scotland.

Disclosure of offences established in the children’s hearing system

A number of human rights challenges in recent years in the UK have brought into question the balance between the public interest in disclosing criminal records and the individual’s right to privacy. The recent Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 was the result of the Court of Session decision in P(AP) [2017] CSOH 33 that automatic disclosure of a deemed criminal conviction for a minor offence handled by the children's hearing system when the petitioner was 14 constituted an unlawful and unjustifiable interference in article 8 rights.

The wider legislative context, including the raising of the minimum age of criminal responsibility, review of disclosure and the PVG scheme, provides an opportunity to reset the balance in recognition of the very different nature of children’s offending behaviour from that of adults. A child-centred and child rights-focused approach is imperative when considering how we address disclosure of offences established in the children’s hearing system.

Ensuring the child’s voice is heard in court

Article 12 of the UNCRC and the Children (Scotland) Act 1995 protect the child’s right to be heard. There is debate around how, in making decisions about a child's best interests, courts can best ensure that children’s own views are conveyed and respected. Efforts to improve how children are heard in civil actions include the current revision of the F9 form by the Scottish Civil Justice Council Family Law Committee. But what more can be done? Is the right to be heard enough or should we instead be looking beyond this to the child's autonomy?

Opportunity to reflect at anniversary conference

These key issues will be among those discussed at our 10-year anniversary conference next month. “Defending Children's Human Rights in Scotland: Where Are We Now?” will reflect on human rights issues encountered by Clan Childlaw through our work as lawyers for children and young people over the last 10 years and look ahead to future challenges in making the law work better for children and young people in Scotland.

The conference, on 11 May in Glasgow, is an opportunity for practitioners and professionals working in the area of child rights to explore how Scots law and the Scottish legal system affects the rights of children and young people.

Speakers include Clan Childlaw’s co-founders Alison Reid and Fiona Jones, Dr Aoife Daly of Liverpool Law School and author of Children, Autonomy and the Courts: Beyond the right to be heard, the Children and Young People’s Commissioner for Scotland Bruce Adamson, the Director of Together (Scottish Alliance for Children's Rights) Juliet Harris, Members of the Scottish Youth Parliament and children from the Children’s Parliament. A series of interactive workshops will allow delegates to make the link between theory, the law and their own practice in relation to challenges such as those discussed above.

For more information and to book a place for the conference please click here.

Janet Cormack is legal policy coordinator, and Jill Sutherland a solicitor, with Clan Childlaw

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