The right way forward: how best to incorporate the UNCRC for Scotland’s children

28 August 2019

The picture puzzle of children's rights

It's an exciting time for the advancement of children's rights in Scotland, with a commitment right from the top of the Scottish Government here to bring the United Nations Convention on the Rights of the Child (UNCRC) into Scots law. Though the UNCRC was ratified by the UK Government in 1991, this action itself doesn't require laws in any part of the UK to follow it. Therefore incorporating the UNCRC into law in Scotland is a significant move.

All children have civil, political, economic, social and cultural rights regardless of their race, religion or abilities but children's rights are often challenged, particularly those of children in need of care and protection. Whether striving to have their views heard in formal processes, encountering stigma, facing barriers to spending time with family members or friends, accessing support or any of a number of important challenges to their rights, the reality is that 30 years after the convention was agreed, all too often the rights of children are less likely to be fully realised. In fact, children who are unable to live with their families have a right under the UNCRC to special protection and assistance from the state, because of the additional support required to uphold all of their rights. Incorporation of the UNCRC is a crucial step in further securing these rights.

Incorporation of the UNCRC is an important piece of a jigsaw puzzle. It means that children will be able to use the law to protect their rights when they are violated and ensures children's rights are more deeply embedded in law, policy, and practice.

But passing legislation on its own is not enough. To really make a difference, and change the way children experience the protection and respect of their rights in their daily life, we need to identify and fit together all of the other pieces of the jigsaw.

An important puzzle piece is determining the right way to incorporate. It doesn't just matter that we incorporate, it matters how. The rights established by the different articles of UNCRC are all connected. They are interrelated, indivisible, and interdependent, so the enjoyment of one right can be impacted by the fulfillment of another. This means the whole UNCRC needs to be incorporated, not just parts. We must also be sure that the new legislation we pass in order to incorporate retains the wording of the UNCRC, so the meaning and significance it has, both here in Scotland and internationally, are upheld. Doing this ensures Scotland keeps pace with international human rights developments across the globe.

Two more issues are important. Firstly, children's rights must be made legally binding, rather than guiding – so that actions which breach the UNCRC cannot legally be taken, and redress through the courts is available if they are. What we want though ideally is for children not to be in a position where they have to involve the courts to ensure their rights are upheld. We need to be far more proactive. So, secondly, the approach to incorporation must contain measures which prevent rights breaches in the first place, and embed rights-based approaches into the earliest stages of policy and decision-making, and front-line practice.

Supporting change

This is all essential. Yet legislating in itself is just the beginning: the corner of our jigsaw which holds together the rest of the picture. Without the rest, we won't be able to see the change and progress we seek. These pieces concern culture change, as well as implementing changes to the way people work.

Developing awareness of children's rights is key – not just for those in government, local authorities and other public agencies; but throughout the whole of society and in the media. Awareness is an essential ingredient of culture change, which sharpens people's focus on what they should be saying and doing to protect and uphold children's rights, and affords greater weight and influence to rights considerations in all contexts.

In terms of changes to ways of working, there are a range of ways in which rights-based approaches and practices can be embedded across all sectors. Some good practice examples include:

  • ensuring children and young people are able and encouraged to meaningfully participate
  • undertaking rights-based budgeting to ensure the importance of rights is reflected in resource priorities
  • ensuring a continuous process of children's rights impact assessment
  • systematically collecting data to monitor and improve practices.

But, when it comes to implementing lasting, meaningful change, we cannot expect that passing this new law will make a difference on its own. Sole reliance on enacting high-level legal standards, without attention to the support practitioners need to understand precisely how their practice should change is insufficient. Implementing and sustaining meaningful change as a result of legal incorporation is the most complicated part of our jigsaw. It requires full, national and local, multi-agency and public awareness of legislative changes, embedding ways to support new practices in their unique contexts, and evaluation of impact.

We need to think about strategies and plans to enable successful implementation at the earliest possible stage – and that is now – so that we have all the puzzle pieces to build the picture we want to see.


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