Effective community engagement in local development planning guidance: impact assessments
These impact assessments have informed the preparation the effective community engagement in local development planning consultation draft guidance. The assessments are being made available for comment in advance of their finalisation and finalisation of the guidance.
6. Partial Child Rights and Wellbeing Impact Assessment
6.1. This is a partial assessment as public engagement on the draft guidance and associated impact assessments remains to be undertaken.
Key findings / evidence from the local development plans regulations and guidance impact assessment
6.2. In relation to the ‘Participation’ consideration it was noted that the local development planning guidance will refer to a range of societal groups, including children and young people (particularly school pupils, youth councillors and youth parliament representatives). The ECEG also refers to these groups.
6.3. The local development plan regulations and guidance impact assessment found that the regulations had particular relationship to Articles 3, 12, 23, 24, 27, 28 and 31 of the United Nations Convention on the Right of the Child (UNCRC). Given the more limited scope of the ECEG it is not intended that further articles be considered here. Indeed, the ECEG can be said to have most direct relationship to:
- Article 3 ‘Best Interests of the Child’ - The best interests of the child must be a top priority in all decisions and actions that affect children;
- Article 12 ‘Respect for the Views of the Child’ - Every Child has the right to express their views, feelings and wishes in all matters; and
- Article 23 ‘Children with a Disability’ - A child with a disability has the right to live a full and decent life with dignity and, as far as possible, independence and to play an active part in the community. Governments must do all they can to support disabled children and their families.
6.4. The local development plan regulations and guidance were found to have the potential to have a positive impact on children’s rights.
CRWIA Stage 2: Assessment of Impact Compatibility
Question 1: What evidence have you used to inform your assessment? What does it tell you about the impact on children’s rights?
6.5. Existing legislation requires children and young people to be included in the preparation of local development plans, with the focus being on schools, youth councils and youth parliament representatives. Annex B includes the data sources informing the Child Rights and Wellbeing Impact Assessment, the EQIA, and the Human Rights Impact Assessment, in addition to the findings of the Planning (Scotland) Act impact assessment and the local development plan regulations and guidance impact assessment.
6.6. The evidence points to a desire for children and young people to have access to greater involvement in decisions within the planning system. The guidance would have positive effects in that children and young people are specifically highlighted and the levels of engagement can help them to understand where their involvement in the local development plan process is likely to be most influential. This will help the involvement of children and young people to be more targeted and therefore more effective in enabling their voices to be heard at appropriate points during the process and for them to be kept informed throughout, which will have positive effects for Articles 3, 12 and 23.
Question 2: Evidence from Stakeholders / Policy Colleagues.
6.7. The National Planning Framework 4 (NPF4) Position Statement included a section ‘A Plan for Resilient Communities’ which included encouraging engagement, highlighting the importance of engaging with children and young people. The consultation sought comments on the approach to resilient communities.
6.8. The Draft NPF4 Integrated Impact Assessment for the Draft NPF4 recognised that certain factors disproportionately impact people due to a protected characteristic and considered that this would be reflected in the ECEG. The guidance is clear that a range of groups of people need to be involved and that appropriate methods of engagement will need to be deployed.
6.9. In terms of participation in the planning system, the analysis of responses by stakeholders to both the NPF4 Position Statement and the Draft NPF4 point towards desire for improved engagement with children and young people. The guidance is about improving expectations around engagement levels at different stages within the local development plan process. As such it positively responds to stakeholder comments about engagement in the planning system and includes direct acknowledgement of the role of children, young people, carers, and families with young children.
6.10. The Consultation Draft NPF4 asked whether stakeholders agreed that the policy on human rights and equality effectively addressed the need for planning to respect, protect and fulfil human rights, seek to eliminate discrimination and promote equity. The analysis of responses expressed support for the principle of promoting human rights and equality across the planning system and included strengthening suggestions. One such theme was a view that change is required to ensure that planning decisions take better account of communities’ views by strengthening planning service resources and skills to deliver meaningful engagement. Other suggestions in relation to the responsibility to consult and engage collaboratively, meaningfully and proportionately within the planning system included calls for guidance including around approaches to engagement, identification of key stakeholder groups, and provision of examples of proportionality. The ECEG identifies key stakeholder groups, including children and young people, and will help to aid proportionality in establishing expectations for the level of engagement anticipated to occur at different stages of the development planning system.
6.11. The Community Engagement Working Group, in the development of the approach, were asked whether they had thoughts on the range of individuals, groups and organisations beyond those listed in planning legislation who could be referenced in the draft guidance. Responses included that reference to women and girls as well as families with young children could be considered. These have been included in the guidance.
Question 3: Evidence from Children and Young People.
6.12. The guidance will apply to all groups involved or who wished to be involved in the preparation of local development plans. The consultation on the guidance will be targeted to particular representative groups, including for children and young people, and where possible, families with young children. A question in the consultation paper invites views on the impacts on people.
6.13. Previous sections of this assessment have set out that stakeholders responding to previous consultations about the planning system have indicated a desire for improved community engagement, including with children and young people.
6.14. In consulting on the NPF4 Position Statement youth engagement was undertaken by PAS and a ‘Youth Engagement Report’ was published. In relation to empowering places, comments included having community groups, spaces and events that are noticeable and inviting for all people and having people around including through clubs, groups and organisations helps people feel connected to the wider community. Whilst the ECEG is not intended to consider particular methods of engagement, it does highlight particular groups of people who should be engaged with.
6.15. Broader data contained in Annex B in relation to age captures information about children and young people with regard to engagement in decisions that affect them and their place. It is clear that there is appetite for improvement in the taking account of the views of children and young people, including disabled people. These groups are directly included in the ECEG.
Question 4: How have the findings outlined in Questions 1-3 influenced the development of the relevant proposal?
6.16. The ECEG is an option provided for in the 1997 Act. There are also certain groups that the Act requires to be included in the preparation of local development plans, including children and young people. The Act also sets out how the duties for engagement with children and young people in relation to local development planning should be discharged in the first instance.
6.17. The consultation proposal for levels of engagement to apply to different stages of the planning system also includes proposals for groups of people to be included in engagement. This responds to statutory requirements and those that have been identified through engagement to date on the preparation of the approach. Although applying to anyone involved or who wants to be involved in the process of preparing a local development plan, the choice to provide the guidance at this time and the approach proposed is considered to help support expectations around engagement to make engagement undertaken to be effective by all groups, including children and young people and disabled people.
Question 5: Assessing for compatibility against UNCRC requirements. What impact does/will your relevant proposal have on children’s rights (Please tick positive, negative or neutral)
Article 1 Definition of the child
For the purposes of the present Convention, a child means every human being below the age of eighteen years.
Article 2 Non-discrimination
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all 15 forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
Article 3 Best interests of the child
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 4 Implementation of the Convention
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
Article 5 Parental guidance and a child’s evolving capacities
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 6 Life, survival and development
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 7 Birth registration, name, nationality, care
1. The child shall be registered immediately after birth and shall have the right from birth to a name, and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field.
Article 8 Protection and preservation of identity
1. States Parties undertake to respect the right of the child to preserve his or her identity, including name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.
Article 9 Separation from parents
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
Article 10 Family reunification
A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents.
Article 11 Abduction and non-return of children
States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
Article 12 Respect for the views of the child
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 13 Freedom of expression
1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; or
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 14 Freedom of thought, belief and religion
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
Article 15 Freedom of association
1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 16 Right to privacy
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks
Article 17 Access to information from the media
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:
(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;
(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;
(c) Encourage the production and dissemination of children’s books;
(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;
(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.
Article 18 Parental responsibilities and state assistance
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
Article 19 Protection from violence, abuse and neglect
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 20 Children unable to live with their family
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
Article 21 Adoption
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
Article 22 Refugee children
1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.
Article 23 Children with a disability
1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.
2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.
3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
4. States Parties shall promote, in the spirit of international co-operation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
Article 24 Health and health services
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take 20 appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary healthcare, though, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene and environmental sanitation and the prevention of accidents;
(f) To develop preventive health care, guidance for parents and family planning education and services.
3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.
Article 25 Review of treatment in care
States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.
Article 26 Social security
1. States Parties shall recognize for every child the right to benefit from social security, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.
2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.
Article 27 Adequate standard of living
1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the making of appropriate arrangements.
Article 28 Right to education
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.
3. States Parties shall promote and encourage international co-operation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.
Article 29 Goals of education
1. States Parties agree that the education of the child shall be directed to:
(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.
2. No part of the present article or article 28 shall be construed so as to interfere with the liberty 30 of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
Article 30 Children from minority or indigenous groups
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
Article 31 Leisure, play and culture
1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.
Article 32 Child labour
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
Article 33 Drug abuse
States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
Article 34 Sexual exploitation
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Article 35 Abduction, sale and trafficking
States Parties shall take all appropriate national measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.
Article 36 Other forms of exploitation
States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.
Article 37 Inhumane treatment and detention
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
Article 38 War and armed conflicts
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.
Article 39 Recovery from trauma and reintegration
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such 5 recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
Article 40 Juvenile justice
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; 10 probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
Article 41 Respect for higher national standards
Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:
(a) The law of a State Party; or
(b) International law in force for that State.
Article 42 Knowledge of rights
States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.
Question 6: Impact on Children and Young People
First optional protocol
1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.
3. The application of the present article under this Protocol shall not affect the legal status of any party to an armed conflict.
Nothing in the present Protocol shall be construed as precluding provisions in the law of a State Party or in international instruments and international humanitarian law that are more conducive to the realization of the rights of the child.
1. Each State Party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its jurisdiction.
2. States Parties undertake to make the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike.
3. States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.
1. States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary to the Protocol and in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with concerned States Parties and relevant international organizations.
2. States Parties in a position to do so shall provide such assistance through existing multilateral, bilateral or other programmes or, inter alia, through a voluntary fund established in accordance with the rules of the General Assembly.
Second Optional Protocol
States Parties shall prohibit the sale of children, child prostitution and child pornography as provided for by the present Protocol.
For the purposes of the present Protocol:
1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether these offences are committed domestically or transnationally or on an individual or organized basis:
(a) In the context of sale of children as defined in article 2:
(i) The offering, delivering or accepting, by whatever means, a child for the purpose of:
a. Sexual exploitation of the child;
b. Transfer of organs of the child for profit;
c. Engagement of the child in forced labour;
(ii) Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption;
(b) Offering, obtaining, procuring or providing a child for child prostitution, as defined in article 2;
(c) Producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in article 2.
2. Subject to the provisions of a State Party’s national law, the same shall apply to an attempt to commit any of these acts and to complicity or participation in any of these acts.
3. Each State Party shall make such offences punishable by appropriate penalties that take into account their grave nature.
4. Subject to the provisions of its national law, each State Party shall take measures, where appropriate, to establish the liability of legal persons for offences established in paragraph 1 of the present article. Subject to the legal principles of the State Party, this liability of legal persons may be criminal, civil or administrative.
5. States Parties shall take all appropriate legal and administrative measures to ensure that all persons involved in the adoption of a child act in conformity with applicable international legal instruments.
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 3, paragraph 1, when the offences are committed in its territory or on board a ship or aircraft registered in that State.
2. Each State Party may take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 3, paragraph 1, in the following cases:
(a) When the alleged offender is a national of that State or a person who has his habitual residence in its territory;
(b) When the victim is a national of that State.
3. Each State Party shall also take such measures as may be necessary to establish its jurisdiction over the above-mentioned offences when the alleged offender is present in its territory and it does not extradite him or her to another State Party on the ground that the offence has been committed by one of its nationals.
4. This Protocol does not exclude any criminal jurisdiction exercised in accordance with internal law.
1. States Parties shall afford one another the greatest measure of assistance in connection with investigations or criminal proceedings brought in respect of the offences set forth in article 3, paragraph 1, including assistance in obtaining evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their obligations under paragraph 1 of the present article in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law.
States Parties shall, subject to the provisions of their national law:
(a) Take measures to provide for the seizure and confiscation, as appropriate, of:
(i) Goods such as materials, assets and other instrumentalities used to commit or facilitate offences under the present Protocol;
(ii) Proceeds derived from such offences;
(b) Execute requests from another State Party for seizure or confiscation of goods or proceeds referred to in subparagraph (a)(i);
(c) Take measures aimed at closing, on a temporary or definitive basis, premises used to commit such offences.
1. States Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process, in particular by:
(a) Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witnesses;
(b) Informing child victims of their rights, their role and the scope, timing and progress of the proceedings and of the disposition of their cases;
(c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with the procedural rules of national law;
(d) Providing appropriate support services to child victims throughout the legal process;
(e) Protecting, as appropriate, the privacy and identity of child victims and taking measures in accordance with national law to avoid the inappropriate dissemination of information that could lead to the identification of child victims;
(f) Providing, in appropriate cases, for the safety of child victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims.
2. States Parties shall ensure that uncertainty as to the actual age of the victim shall not prevent the initiation of criminal investigations, including investigations aimed at establishing the age of the victim.
3. States Parties shall ensure that, in the treatment by the criminal justice system of children who are victims of the offences described in the present Protocol, the best interest of the child shall be a primary consideration.
4. States Parties shall take measures to ensure appropriate training, in particular legal and psychological training, for the persons who work with victims of the offences prohibited under the present Protocol.
5. States Parties shall, in appropriate cases, adopt measures in order to protect the safety and integrity of those persons and/or organizations involved in the prevention and/or protection and rehabilitation of victims of such offences.
6. Nothing in the present article shall be construed as prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial.
1. States Parties shall adopt or strengthen, implement and disseminate laws, administrative measures, social policies and programmes to prevent the offences referred to in the present Protocol. Particular attention shall be given to protect children who are especially vulnerable to such practices.
2. States Parties shall promote awareness in the public at large, including children, through information by all appropriate means, education and training, about the preventive measures and harmful effects of the offences referred to in the present Protocol. In fulfilling their obligations under this article, States Parties shall encourage the participation of the community and, in particular, children and child victims, in such information and education and training programmes, including at the international level.
3. States Parties shall take all feasible measures with the aim of ensuring all appropriate assistance to victims of such offences, including their full social reintegration and their full physical and psychological recovery.
4. States Parties shall ensure that all child victims of the offences described in the present Protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible.
5. States Parties shall take appropriate measures aimed at effectively prohibiting the production and dissemination of material advertising the offences described in the present Protocol.
4. States Parties in a position to do so shall provide financial, technical or other assistance through existing multilateral, regional, bilateral or other programmes.
Nothing in the present Protocol shall affect any provisions that are more conducive to the realization of the rights of the child and that may be contained in:
(a) The law of a State Party;
(b) International law in force for that State.
Question 6: Impact on Children and Young People
6.18. The ECEG applies to anyone who is or wishes to be involved in preparing a local development plan. It does flag a range of groups of people who should be involved, including children and young people, and disabled people. Whilst the guidance does not intend to cover methods of engagement, it is clear that these should be appropriate to the subject, context and groups being engaged.
6.19. Consistent with the findings of impact assessments related to other aspects of the planning system reform referred to in this assessment, the potential is for a positive effect on children and young people in so far that the ECEG seeks to support the implementation of existing and enhanced community engagement opportunities within the preparation of local development plans.
Question 7: Negative Impact
6.20. The ‘Hard to Reach, or Easy to Ignore’ research highlighted in Annex B highlights language, confidence and dominant characters can indirectly discriminate against some people in community consultation exercises, including young people. This guidance does not intend to address methods of engagement but is clear that approaches that are appropriate to the subject, context and groups being engaged should be used. This enables methods to be cognisant of the need to be designed to include those who may be indirectly discriminated.
Question 8: Options for modification or mitigation of negative impact
6.21. Negative impacts have not been identified. Although the ECEG does not intend to cover methods of engagement, the consultation paper does include a statement that those designing engagement approaches should ensure that they are appropriate to the subject, context and groups being engaged and highlights issues identified in this assessment as particular potential for indirect discrimination, which also applies to children and younger people, that should be included in the approach taken to engagement.
Question 9: Positive impact – giving or further effect to children’s rights in Scotland
6.22. In so far as the ECEG seeks to support current and new opportunities for engagement in the preparation of local development plans, and in responding to stakeholder views that a greater focus on engagement, including for children and young people, the guidance helps to inform those who are involved or wish to be involved in the preparation of a local development plan to help clarify expectations of engagement at different stages in the local development plan process. This can help avoid engagement fatigue by identifying opportunities to join-up engagement processes where appropriate. It also gives those involved a stronger awareness of where their input will have most effect.
Question 10: Impact on Wellbeing – does or will the relevant proposal contribute to the wellbeing of children and young people in Scotland?
6.23. In relation to SHANARRI indicators it is considered that the ECEG links primarily to the Respected, Responsible, and Included indicators.
6.24. It is not anticipated that the guidance will have an improvement in wellbeing in relation to the following wellbeing indicators:
- safe - growing up in an environment where a child or young person feels secure, nurtured, listened to and enabled to develop to their full potential. This includes freedom from abuse or neglect. (Although see the ‘respected’ indicator for ‘listened to’);
- healthy - having the highest attainable standards of physical and mental health, access to suitable healthcare, and support in learning to make healthy and safe choices;
- achieving - being supported and guided in learning and in the development of skills, confidence and self-esteem, at home, in school and in the community;
- nurtured - growing, developing and being cared for in an environment which provides the physical and emotional security, compassion and warmth necessary for healthy growth and to develop resilience and a positive identity; and
- active - having opportunities to take part in activities such as play, recreation and sport, which contribute to healthy growth and development, at home, in school and in the community.
6.25. It is anticipated that that the guidance will have an improvement in wellbeing in relation to the following wellbeing indicators:
- respected - being involved in and having their voices heard in decisions that affect their life, with support where appropriate;
- responsible - having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision; and
- included - having help to overcome inequalities and being accepted as part of their family, school and community.
6.26. It is envisaged that the guidance will potentially positively impact on the opportunity of all children and young people to become more actively involved with the planning system. There is the potential for people’s intersectional issues (overlapping social identities) to affect the perceptions of engagement, for example young disabled people.
6.27. The consultation offers the opportunity for further evidence to be gathered on how the guidance affects or could affect children and young people in practice.
Question 11: Communicating impact to children and young people
6.28. Communication of potential impacts will occur primarily through consultation exercises that target representative groups for children and young people. Revisions to the proposed approach will be considered in response to the engagement exercise. However, communications will also occur through the onward use of the guidance by planning authorities and those involved or wishing to be involved in the preparation of local development plans.
6.29. An analysis of consultation comments will also be undertaken and published.
Question 12: Planning for the review of impact on child rights
6.30. The production of local development plans has moved to a 10-year review cycle under new regulations arising from amendments to the 1997 Act. It is anticipated that new local development plans prepared in response to change to the planning system will be in place within 5 years from the adoption of National Planning Framework 4 (2023). Using the experience built over those five years may be an appropriate time to review the ECEG and prepare a Child Rights Impact Evaluation, so in 2028.
6.31. Consultation questions in the consultation on the draft ECEG are open to comments being added beyond yes / no responses. A question in the consultation paper is included to seek views about impacts of the guidance on groups of people and or about any part of the draft guidance.
Compatibility and signoff Statement
Policy Lead Signature and Date of Sign Off:
Signed: Simon Bonsall
Date of Sign Off: 13 March 2023
Deputy Director Signature & Date of Sign Off:
Signed: Fiona Simpson
Date of Sign Off: 14 March 2023
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