3. General Principles
Relevant UNCRC Articles: 2, 3, 6, 12
The four general principles of the UNCRC are: for rights to be applied without discrimination; for the best interests of the child to be a primary consideration; the right to life, survival, and development; and respect for the views of the child. These four general principles underpin each and all of the specific rights outlined in the UNCRC.
3.1 Equality and Non-Discrimination
Equality Act 2010 (2010 Act) places a duty on public authorities to: eliminate discrimination, harassment, and victimisation; advance equality of opportunity; and foster good relations between persons who share a relevant protected characteristic (age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation) and those who do not. This is known as the Public Sector Equality Duty (PSED).
Public authorities, including the Scottish Government, are also subject to a comprehensive set of equality requirements, as set out in the Equality Act 2010 (Specific Duties)(Scotland) Regulations 2012 (as amended) (2012 Regulations). The 2012 Regulations are aimed at helping Scottish public authorities improve implementation of the PSED by requiring them to report progress on mainstreaming equality, to propose and publish equality outcomes, and to assess policies and practices from the perspective of equality by undertaking Equality Impact Assessments and publishing employee information on pay and occupational segregation.
The Equality Outcomes and Mainstreaming Report (2021) provided a final report on progress made in relation to the equality outcomes set in 2017. These included ensuring that children affected by domestic abuse are increasingly recognised and supported in the justice system; and making progress in the educational experience of children whose success, according to the evidence, is hampered by having a protected characteristic. The 2021 report included a set of new equality outcomes covering the period 2021-25. Interim progress on these outcomes will be published in the 2023 Equality Outcomes and Mainstreaming Report.
The Scottish Government is currently reviewing the effectiveness of the PSED in Scotland. From December 2021 to April 2022, the Scottish Government ran a public consultation, which set out a series of detailed proposals both for legislative changes to the Scottish Specific Duties as well as changes to the wider implementation environment. Subject to the outcome of that consultation and consideration of next steps, we aim to lay any draft revised regulations in the Scottish Parliament in 2023, with regulatory changes coming into force in 2025.
The Scottish Government is also developing an equality and human rights mainstreaming strategy which we aim to publish and start implementing by the end of 2024. This will strengthen the mainstreaming of equality and human rights in Scottish Government policy-making as a single joint endeavour, to ensure that policies drive progress towards a fairer, more equal Scotland.
3.2 Equalities and Inclusion in Relation to Particular Groups
LOIPR request: 13 (a) and (c) eliminating discrimination including in relation to age.
The following section discusses actions that the Scottish Government has taken, within its devolved powers, to address inequalities. These will help to ensure that all children and young people are able to access their rights without discrimination. Specific measures taken forward to support the needs of children with disabilities and looked after children and young people are discussed in subsequent sections of this report, as are measures to tackle inequalities related to health, poverty, and education.
Although age is a protected characteristic under the 2010 Act, there are a number
of specific exceptions and exemptions. For example, the provisions in the 2010 Act which prohibit discrimination in the provision of services and public functions do not apply to the protected characteristic of age, so far as relating to persons who have not attained the age of 18. Therefore, people and organisations can provide different services, or services on different terms and conditions, to children of different ages, or can decline to provide services to children altogether on the basis of this exemption. Similarly, section 84 of the 2010 Act disapplies age (and indeed marriage and civil partnership) to the provision of education. However, children under the age of 18 remain protected against other forms of direct or indirect discrimination, such as on grounds of disability, race or sex under the 2010 Act.
The Scottish Government has taken steps within its devolved powers to address the inequalities that young people below the age of 18 can experience. For example, in 2015, we lowered the voting age to 16 for elections to the Scottish Parliament and local government in Scotland, to ensure that young people can participate in the democratic process. We also plan to consult on extending the right to stand for election in Scottish Parliament and local government elections to 16 and 17-year-olds during this Parliament.
In addition, between June and October 2020, and again between March and June 2022, we consulted on proposed legislative reforms during this Parliament to raise the maximum age of referral for a Children's Hearing up to age 18 for care, protection, and offence cases. This would ensure that more children can benefit from the protection, guidance, treatment and control that can be afforded via Scotland's unique age-appropriate, welfare-based Children's Hearings System (see section 9.7).
Age - Fair Work
We have also taken forward measures to support young people in employment. Although employment law is reserved to the UK Government, the Scottish Government is committed to mainstreaming fair work throughout Scotland using its flagship Fair Work First Policy. The Fair Work Action Plan (2021) commits to using all levers available to promote and deliver fairer working practices.
The Scottish Government opposes the inappropriate use of zero-hours or other precarious contracts. Our Fair Work First criteria focus on promoting security of pay and contracts and asking employers not to use zero-hours contracts inappropriately. Our published research (2021) on young people's experiences of precarious and flexible work is informing how we support young people who want to move out of this type of employment.
Fair Work First also promotes payment of the real Living Wage. This differs from the National Minimum Wage in that it is calculated according to the basic cost of living and therefore takes account of the adequacy of household incomes for achieving an acceptable minimum living standard. Taken together, these elements of Fair Work will provide greater certainty to workers of all ages, including young people, about how much they will be paid each week and the number and regularity of hours they will be expected to work. In addition to this, the Young Person's Guarantee, which was launched in 2020, aims to connect every 16–24 year old in Scotland to an opportunity. This could be a job, apprenticeship, further or higher education, training programme, volunteering or an enterprise opportunity.
In 2017, the First Minister established a National Advisory Council on Women and Girls to provide independent strategic advice about the additional measures needed to end gender inequality. The Advisory Council has published three annual reports and the Scottish Government is implementing its recommendations across a range of areas. In addition to this, in December 2020, the Scottish Government published a Gender Equality Index to ensure we better understand progress on women's equality in a range of different contexts.
In August 2021, the Scottish Government published its Women's Health Plan (2021) which includes a specific aim to improve access to information for girls and women on menstrual health and management options. The Scottish Government has also invested over £33 million since 2017 to fund access to free period products across a range of settings including schools, colleges and universities, wider public spaces, and targeted access through community groups for those on low incomes. Access to free period products for anyone who needs them is protected in law by the Period Products (Free Provision)(Scotland) Act 2021, which came fully into force in August 2022.
Lesbian, Gay, Bisexual, Transgender and Intersex Children and Young People
In November 2018, the Scottish Government accepted in full the 33 recommendations of the LGBTI Inclusive Education Working Group on how to effectively deliver inclusive education across the curriculum. The LGBT Inclusive Education Implementation Group was established to work towards the implementation of these recommendations.
In September 2021, the Scottish Government took the world-leading step of embedding LGBT inclusive education across the curriculum. The first phase of implementation consists of a centralised website, an LGBT basic awareness e-learning module for all school staff, and a toolkit of newly developed LGBT inclusive education teaching resources. Work has also progressed on integrating LGBT-inclusive education training within all Initial Teacher Education programmes in Scotland, the creation of a Stage 2 e-learning module on LGBT inclusion within curricular content, and a free Implementation and Evaluation Toolkit to provide schools with a structured pathway to take forward their work on LGBT inclusive education. The Scottish Government published further guidance (2021) which seeks to help schools support their transgender pupils and secure their rights, alongside those of all pupils. The guidance fully aligns with the Equality Act 2010 and other legislation and will help schools in their interpretation and practical application of the Equality Act. Alongside this work, a new approach to recording and monitoring of incidents of bullying in schools, introduced in 2018-19, is supporting the recording of incidents of bullying across all protected characteristics (see section 8.6).
In November 2021, the Cabinet Secretary for Social Justice, Housing and Local Government announced that an Expert Advisory Group on Ending Conversion Practices would be established in 2022. The Group explored measures to end conversion practices, and submitted its Report and Recommendations to the Scottish Government in October 2022. We will consider the Group's recommendations carefully. The Programme for Government 2022-2023 commits the Scottish Government to "develop a Bill to end conversion practices, covering both sexual orientation and gender identity".
Separately, the Scottish Government also established the Working Group on Non-Binary Equality to consider how best to improve equality for non-binary people in Scotland. The Group submitted its recommendations to Ministers in March 2022. The Scottish Government carefully considered the Group's work and issued a response in July 2022. We accepted, either in full or in part, 24 of the recommendations, and will consider 8 further. In theProgramme for Government 2021-22, the Scottish Government committed to developing an Action Plan based on the Group's recommendations by spring 2023.
The Scottish Government is funding a range of projects to tackle inequality and realise rights for LGBTI people across all areas of Scottish life. In 2021-22, funding of over £1.1 million was provided to organisations working to promote LGBTI equality in Scotland, including funding of over £280,000 to LGBT Youth Scotland.
On 2 March 2022, the Scottish Government introduced the Gender Recognition Reform (Scotland) Bill to the Scottish Parliament. The aim of the Bill is to reform the Gender Recognition Act 2004,improving the process for trans men and women applying for legal gender recognition, as the current system can have an adverse impact on applicants due to the requirement for a medical diagnosis and other evidence as well as the intrusive and lengthy process.
The Bill amends the 2004 Act to introduce a new process for applying for legal gender recognition in Scotland, and new criteria which require to be satisfied by applicants to obtain a Gender Recognition Certificate (GRC). The Bill does not change the effects of a GRC and the rights and responsibilities which a person has on obtaining legal gender recognition. A key difference between the current grounds and procedure and those proposed in the Bill is the reduction in the minimum age for applicants from 18 to enable trans young people to apply for legal gender recognition from 16.
The Scottish Government is determined to show leadership in advancing race equality, tackling racism, and addressing the barriers that prevent people from minority ethnic communities from realising their potential. The Race Equality Framework for Scotland 2016 to 2030 (2016) sets out the Scottish Government's approach to tackling racism and advancing race equality. The Race Equality Action Plan 2017 – 2020 final report (2021), provides updates on progress made and sets out the next steps we will take to advance race equality. The Scottish Government is currently developing the next long-term action plan to implement the Framework.
In September 2021, the Scottish Government published an Immediate Priorities Plan (IPP) which focuses on delivering an equal and anti-racist recovery from COVID-19 for minority ethnic Scots. We have also established the Interim Governance Group to Develop National Anti-Racist Infrastructure to provide advice to the Scottish Ministers. This group will run up to 2023, at which point permanent governance arrangements will be established.
In addition to this, the Racialised Health Inequalities and Health Equity Team has been established within the Scottish Government to support targeted improvements for specific groups, with an explicit early focus on minority ethnic communities. The team leads on the coordination of the Health and Social Care commitments within the IPP. The team's activities also include development of work around health ethnicity data collection and use to support and monitor action to address inequalities in health outcomes as well as access to, and experience of, health services.
"Being a member of the Scottish Government's Race Equality and Anti-Racism in Education Programme (REAREP) since 2021 has allowed me to represent young Black pupils and students of colour who still face many struggles daily. It is such a rewarding role to be able to listen to and share young people's experiences, and to help the Scottish Government act on these issues."
Crisantos, MSYP, blog post for Black History Month, 2022.
As part of their response to the Black Lives Matter Movement, during summer 2020, the Scottish Government carried out stakeholder engagement sessions with race equality and education stakeholders, minority ethnic groups, individuals, and young people. As a result of this engagement, the Race Equality and Anti-Racism in Education Programme (REAREP) was created, with the overall aim of ensuring that all children, regardless of ethnicity, have a positive experience and reach their full potential within our education system. The Programme provides a strategic and coherent approach to four key themes identified for reform by education and race equality stakeholders. These are: Education Leadership and Professional Learning; Diversity in the Teaching Profession and Education Workforce; Curriculum Reform; and Racism and Racist Incidents.
Children and young people have considered the initial set of draft actions which emanated from each of the 4 groups and provided input to them. Further work is being undertaken to ensure that children and young people continue to have their voices heard as part of this programme.
New Scots Refugee Integration Strategy
The Scottish Government is committed to supporting refugees, asylum seekers and Scotland's communities through the pioneering and collaborative approach of the New Scots: Refugee Integration Strategy 2018-22. The Strategy is led in partnership by the Scottish Government, COSLA and the Scottish Refugee Council. It includes a framework of actions across seven themes of integration: Needs of Asylum Seekers; Employability and Welfare Rights; Housing; Education; Language; Health and Wellbeing; and Communities, Culture and Social Connections. The Strategy recognises that children and young people may require additional support to access the services they need and the opportunities to participate in society.
Delivery of the Strategy is being enhanced through the New Scots Refugee Integration Delivery Project, which is funded by the EU's Asylum, Migration and Integration Fund up to December 2022. The project includes a £2.8 million grant fund, which awarded funding to 56 projects to support New Scots by spreading documented good practices and supporting innovation in Scotland under the objectives of the Strategy.
Ending Destitution Together
The Scottish Government and COSLA published the Ending Destitution Together Strategy in March 2021. The Strategy aims to improve support for people who are at risk of destitution because they are subject to a No Recourse to Public Funds condition. The Strategy's vision is that no one in Scotland is forced into destitution and everyone has their human rights protected, regardless of their immigration status. The Strategy sets out a range of actions in the areas of essential needs; advice, advocacy; and inclusion. The principles of prevention, partnership and personalisation inform the Strategy's approach.
Asylum and immigration are matters reserved to the UK Parliament, including the operation of the asylum system, accommodation and financial support for people seeking asylum, and application of No Recourse to Public Funds policy. The Scottish Government is clear that everyone who is resident in Scotland is entitled to access health care on the same basis. This includes all refugees, people seeking asylum and people whose claim for asylum has been refused. People seeking asylum should be accommodated within our communities with access to the support and essentials they need.
Displaced People from Ukraine
Through our "Warm Scots Welcome", we have established Welcome Hubs for people from Ukraine arriving at key entry points, to provide single points where multi-agency teams can triage people and provide support including healthcare and translation services, clothes and food, temporary accommodation, and trauma support. Through guidance and ongoing advice, we are also supporting practitioners involved in safeguarding of children who are arriving in Scotland from Ukraine to identify and respond to risk and need.
Children arriving from Ukraine will have access to education and early learning and childcare in line with existing education authorities' responsibilities. We are actively working with local authorities and partners, including in Education Scotland, to support local authorities to identify and meet the additional support needs of their pupils. We will ensure that teachers can continue to access appropriate professional learning and development to support the needs of pupils, including those who have English as an additional language.
Gypsy/Traveller Children and Young People
The joint Scottish Government and COSLA Action Plan, Improving the Lives of Scotland's Gypsy/Travellers: 2019-2021 (2019), seeks to improve outcomes for Scotland's Gypsy/Travellers in the key areas of accommodation, education, health and poverty. The actions in the Plan were developed with members of the Gypsy/Traveller community. The plan was updated in March 2021 and, as a result of COVID-19, was extended to October 2022.
A range of health commitments have been taken forward through the Scottish Government Gypsy/Traveller Action Plan, with specific work focused on improving communication, removing barriers to health services, increasing engagement, and improving awareness of the community and their culture. The Scottish Government has also funded three new health projects for Gypsy/Travellers, the first of which tested ways of making maternity, child health and income maximisation services more accessible to Gypsy/Travellers living in Fife.
A Gypsy/Traveller Short Life Working Group, representing NHS Chairs and Board Chief Executives, was convened between September 2019 and April 2021, to provide leadership and to ensure meaningful progress across the NHS in tackling stigma, discrimination and promoting the Human Rights of Gypsy/ Travellers. Key outputs from the Group included the development of an NHS Scotland Gypsy/Travellers Agreement. In addition, the Gypsy/Traveller COVID-19 Impact Group was established by COSLA and the Scottish Government, in conjunction with Public Health Scotland, third sector partners, and Police Scotland, to help address problems experienced by the community during the pandemic, supported by £155,000 of Scottish Government funding.
The Scottish Government has also taken steps to support the education of Gypsy/ Traveller children and young people. A professional learning resource and support network for teaching staff were launched in March 2020. These seek to promote good practice in supporting Gypsy/Traveller education and Education Scotland has reported that cultural awareness and representation of culture in the curriculum are increasing. The Scottish Government also funds the Scottish Traveller Education Programme (STEP), which works to support Gypsy/Traveller education and raise awareness and understanding of Gypsy/Traveller culture and issues among education professionals.
Each year, the Scottish Government provides more than £1 million to help tackle discrimination and improve the lives of Gypsy/Travellers. Our partner organisations who receive core funding support young people in education, celebrate the culture of Gypsy/Travellers, and support the Scottish Government in its decision-making processes to meet the needs of the Gypsy/Traveller community.
There are a range of obligations on local authorities to plan and report on Gypsy/Traveller accommodation, including provisions in the Planning (Scotland) Act 2019 to enhance engagement with children and young people and the Gypsy/Traveller community in the preparation of planning authority local development plans. The Housing to 2040 Strategy announced a £20 million Gypsy/Traveller Accommodation Fundfor 2021-26, for more and better Gypsy/Traveller accommodation. This builds on the £2 million short-term funding provided in 2020-21 to make immediate improvements on public sites, representing a sustained investment in Gypsy/Traveller accommodation.
3.3 Receiving and Monitoring Complaints of Discrimination
LOIPR request: 13(d) dealing with complaints of discrimination
There are a range of systems in place that can support the receiving and monitoring of complaints about possible discrimination, including within education. Respect for All: The National Approach to Anti-Bullying for Scotland's Children and Young People (2017) includes direct reference to prejudice-based bullying, including bullying motivated by racism, sexism, homophobia, or prejudice and discrimination towards disability or faith. A consistent and uniform approach to recording and monitoring of incidents of bullying in schools supports the Framework.
In addition, the Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act) provides a comprehensive legal framework for the provision of additional, targeted support for children and young people who face barriers to learning. It requires education authorities to identify, provide for and review the additional support needs of their pupils. The Scottish Government funds Enquire to provide information and advice to parents and carers on additional support for learning. Complaints about the provision of education support duties can be made through individual local authority's complaints procedures. Where individuals remain dissatisfied with the authority's response, they have the right to contact the Scottish Public Services Ombudsman (SPSO), who handle complaints about public services in Scotland.
Section 70 of the Education (Scotland) Act 1980 provides that Scottish Ministers can investigate where it is alleged that a responsible body has failed to carry out a statutory duty relating to an education enactment. Following an investigation of the reference, Scottish Ministers may make an order declaring the responsible body to be in default in respect of the duty and requiring them to discharge the duty.
The Equality Act 2010 provides a mechanism for claims from parents/carers, children, and young people regarding disability discrimination to be heard by the ASN Tribunal.
In addition to the above, the Commissioner for Children and Young People can investigate possible breaches of rights on behalf of groups of children where there are wider implications for children's rights and for individual children in specified circumstances (see section v).
During the reporting period, the Scottish Government supported Clan Childlaw who provide legal and advocacy services for children and young people. Funding was also provided to the Scottish Child Law Centre who provide free legal information and advice to children, young people, their families, and carers. The provision of Legal Aid for children and young people is discussed at section 3.14.
3.4 Child Friendly Complaints Process
The Scottish Public Service Ombudsman (SPSO) has a statutory function in relation to complaints handling for most public bodies. The Scottish Government has provided funding to the SPSO for a 3-year project to develop child-friendly complaints approaches and procedures as part of a model complaints handling process. Under current plans, SPSO will publish guidance to allow for these to be in force by 1 April 2023. Public bodies under the jurisdiction of SPSO will be supported to achieve compliance by 1 April 2024.
These procedures will ensure that children and young people can access complaints procedures and that processes are centred around the needs of the child when a complaint is made on their behalf or concerning them. This will include providing guidance, support, and training to public bodies in developing and delivering child friendly complaints processes, as well as providing support for children and young people themselves. The procedures will be drafted in such a way that they could then be adapted and adopted by other public bodies not within the jurisdiction of SPSO who are seeking to establish similar processes. As a result, children and young people will be better supported to access their rights across all public bodies.
3.5 Tackling Hate Crime
The Hate Crime and Public Order (Scotland) Act 2021, once in force, will modernise, consolidate and extend existing hate crime legislation in Scotland. The Act will maintain current legislative protections against offences aggravated by prejudice towards disability, race, religion, sexual orientation, transgender identity, and variations in sex characteristics, and will also extend protection to the characteristic of age. The Act also provides for new 'stirring up of hatred' offences covering all characteristics protected in the updated legislative framework to complement the existing offence of stirring up racial hatred that has been part of Scotland's criminal law and the law of the whole of the UK for decades. Hate crime is discussed further in the Scottish Government's standalone Position Statement on the Universal Periodic Review (October 2022).
Optional Protocol 3
The Optional Protocol 3 (OP3) to the UNCRC provides for a mechanism through which a child, following exhaustion of all relevant local complaints and appeals procedures, can make a complaint about the violation of his or her rights directly to the UN Committee on the Rights of the Child. The OP3 has not, to date, been signed and ratified by the UK Government. The Scottish Government has welcomed the OP3 in principle and confirmed that Scottish Ministers would be minded to offer measured support for its signature and ratification in the future.
3.6 Attitudes to Children and Young People
LOIPR request: 13(a) addressing negative public attitudes towards children.
The Scottish Government has commissioned research to explore societal attitudes towards children and young people. This has helped to identify strengths and where development is needed.
- In 2017, a Public Attitudes to Young People in Scotland omnibus survey of 1,000 adults in Scotland, found that a substantial minority held negative attitudes towards young people. Positive attitudes were more likely to be held by those who had a relationship with a young person, came from the professional occupational groups, lived in the least deprived SIMD (Scottish Index of Multiple Deprivation) quintile, and amongst women.
- Questions on public attitudes towards young people's participation in the Scottish Social Attitudes Survey (SSAS) asked how much say young people should have in decisions that affect their lives. The most recent findings from the 2019 survey, show that 70% of adults felt that young people aged 16 to 18 should have 'a great deal' or 'quite a lot' of say in decisions that affect their lives. The proportion believing this for those aged 11 to 15 was much smaller (28%). The percentage saying that young people aged 16 to 18 should have 'a great deal' or 'quite a lot' of say has fallen compared with 2017 (77%).
- The 2017 and 2019 Young People in Scotland Surveys, which surveys a representative sample of 11-18 year olds across state secondary schools in Scotland, included questions about the opportunities for them to participate in decisions that affect them. In 2019, around six in ten young people surveyed agreed that adults were good at listening to their views (57%) and that adults were good at taking their views into account when making decisions that affect them (58%). These questions have been included in the Health and Wellbeing Census of all P5-S6 pupils in 16 local authorities in Scotland, which has run over the 2021-2022 school year. Data will be available from December 2022.
- Data on relationships between children/young people and their parents is also gathered every 4 years in the Health Behaviours in School Age Children (HBSC) survey and will be included in the forthcoming Health and Wellbeing Census of all P5-S6 pupils in Scotland.
The Scottish Government continues to work with key stakeholders, and children and young people themselves, to identify and take forward actions to address the negative portrayal of children and young people within the media and wider society. Within the reporting period, this work has included initiatives to celebrate the contribution that children and young people make at both national and local levels, including the Scottish Government's Saltire Awards, which celebrate youth volunteering, and the Sunday Mail Young Scot Awards, which celebrate the outstanding achievements of young people in Scotland. The Year of Young People (YOYP) 2018, which aimed to inspire Scotland through its young people and celebrate their achievements, also contributed to measures to counter the negative portrayal of children and young people.
3.7 Best Interests of the Child
LOIPR request: 3(c) best interests of the child.
The Scottish Ministers have made clear their ambition for every child and young person in Scotland to have the best start in life regardless of their circumstances. The rights of the child underpin this goal. The priority placed on considering the welfare of the child when making decisions affecting them is reflected in a number of statutes including: the Children (Scotland) Act 1995 and the Children's Hearings (Scotland) Act 2011. The Children (Scotland) Act 2020 makes a number of changes to family law, in particular to further ensure that the child's best interests are at the centre of any contact and residence cases and that the views of the child are heard. In addition, the CRWIA ensures that relevant new policies and legislation are routinely assessed for their impact on the rights and wellbeing of children and young people.
Getting it right for every child (GIRFEC), the national approach in Scotland to improving outcomes and supporting the wellbeing of children, underpins all other Scottish Government policy for children, young people, and families. GIRFEC puts the best interests of the child at the heart of decisions that affect them. The approach focuses on considering each child's needs in a holistic way, looking at their whole wellbeing and encouraging early intervention, prevention, and coordination around the family. The Children and Young People (Scotland) Act 2014 put into statute an assessment of wellbeing for children and young people, using a holistic approach to wellbeing: Safe, Healthy, Achieving, Nurtured, Active, Responsible, Respected and Included. These eight wellbeing indicators, referred to by their initial letters, SHANARRI, help to make it easier for children, families and the people working with them to discuss how a child or young person is doing at a point in time and if the child has a need for support.
3.8 Children, Young People and Families Outcomes Framework
A Children, Young People and Families (CYPF) Outcomes Framework is being developed to complement the National Performance Framework and provide a holistic picture and understanding of the wellbeing of children, young people, and families in Scotland at a population level. The framework's approach builds on GIRFEC and will help to highlight positive impact, as well as identify where improvement activity is required to drive progress. The CYPF Outcomes Framework has been substantially informed by what existing engagement with children, young people, and families has told us matters most to them about wellbeing.
The framework includes a set of overarching Wellbeing Outcomes (based on SHANARRI) and Shared Aims (based on the My World Triangle). The Core Wellbeing Indicators provide a high level, holistic overview of wellbeing, which is supplemented by deep-dive data, other local information, and the views of children, young people, and families. Their use will support greater consistency of data within and across local and national reporting requirements, including Children's Services Plans. The Core Wellbeing Indicators are an initial step as part of Scotland's longer-term data improvement journey. The CYPF Outcomes Framework went live in 2022, with the wellbeing outcomes, shared aims, and initial core wellbeing indicators available for use by partners from April 2022. Further engagement and co-design will take place with children, young people, and families alongside continued stakeholder collaboration to support its implementation and use.
3.9 Safeguarding Vulnerable Individuals Through PREVENT
LOIPR request: 13(b) and 17(b) PREVENT Strategy and counter-terrorism measures.
PREVENT is part of the UK Government CONTEST strategy but is delivered in Scotland through devolved functions. Prevent focuses on early intervention and awareness raising to safeguard people and communities from terrorism. Where safeguarding through PREVENT is required, the Getting it right for every child approach is consistently applicable to relevant processes, including support through Prevent Multi-Agency Panels. Within this framework, there will be a range of support from universal, additional and intensive services which can work as single agencies or jointly through an integrated approach.
The Scottish Government recognises that schools have an important role to play, providing a safe space to discuss a wide range of social and political issues, as well as supporting children in their development as responsible citizens. Using Curriculum for Excellence, teachers are encouraged to give pupils the opportunity to discuss and, more importantly, understand wider beliefs and values and how they are fundamental in both local and global communities. To support this, Education Scotland have published links to a number of resources together with bespoke lesson packs, which can be used by teachers to lead these sensitive discussions in the classroom.
The Counter-Terrorism and Border Security Act 2019 required the UK Government to make arrangements for an independent review of PREVENT. The review aims to consider the past and present delivery and impact of PREVENT and make recommendations for future improvements to the strategy. The Review will consider the strategy as it relates to all forms of terrorism and will apply to England, Scotland, and Wales with consultation with the devolved administrations as appropriate.
The UK Government appointed William Shawcross as the new Independent Reviewer in January 2021 and updated Terms of Reference were published in March 2021. The review was due to conclude in August 2020, but the statutory deadline was removed by the Counter-Terrorism and Sentencing Act 2021. As of June 2022, the Scottish Government has responded to draft recommendations pertaining to Scotland within the review and will continue to engage with the relevant teams whilst awaiting publication, which is now expected in the autumn of 2022.
3.10 Maternity and Neonatal Mortality
LOIPR request: 14(a)-(c) review and prevention of infant and child mortality and unexpected death or serious injury of children.
The Maternity and Children Quality Improvement Collaborative, (MCQIC), which is part of the Scottish Patient Safety Programme, focuses on improving outcomes for women, babies, children, and families in Scotland. The maternity programme activities take cognisance of existing national policies and approaches, including The Best Start: A five-year forward plan for maternity and neonatal care in Scotland (2017), which sets out the vision for the delivery of person-centred, high quality and safe maternity and neonatal services across Scotland, and GIRFEC. The MCQIC Maternity Care programme is currently focusing on reducing stillbirth, neonatal harm, and severe postpartum haemorrhage, as well as the implementation of a national maternity early warning chart.
The Scottish Government has also taken forward a range of measures throughout the reporting period which seek to promote child and maternal health. For example, since April 2017, we have provided universal free access to vitamins for all pregnant women in Scotland in line with the strong evidence which suggests that this can improve the health of mothers and their babies. Other key measures which support child health, including in relation to health visiting support and child nutrition, are discussed at chapter 7.
3.11 Investigation of Child Death and Serious Injury
National Guidance for Child Protection Committees Undertaking Learning Reviews (2021) supports Child Protection Committees (CPCs) to reflect, learn, and improve systems and practice by reviewing events where children or young people have been harmed, placed at risk of harm, or where effective practice has prevented harm or risk of harm. CPCs, on behalf of Chief Officers Groups, will decide whether a Learning Review is warranted and will agree how the review is conducted.
The updated guidance follows on from the work of the Child Protection Systems Review Group (2017), which was established as part of the Scottish Government's Child Protection Improvement Programme to consider the role and functions of CPCs, Child Protection Registers, Child Protection Planning Meetings, and Significant and Initial Case Reviews (ICRs).
The Undertaking Learning Reviews Guidance has been produced by a multi-agency and multi-disciplinary group who carried out a national consultation, drawing from the knowledge and experience of local practitioners and service managers. A specific consultation was carried out for those who work with children and families who had been part of Significant Case Reviews, to learn from their stories and create a more compassionate response to families' involvement in Learning Reviews.
A standardised approach to conducting reviews in cases that involve criminal proceedings has been established together with a secure Hub to support practitioners to share best practice. The Guidance also includes a supporting document with exemplars for good practice. The Scottish Government has established an implementation group in partnership with Child Protection Committees Scotland, to ensure that the Guidance is effectively implemented in practice.
The Care Inspectorate remains the central repository for all Learning Reviews to support the sharing of learning across the country. A newly formed Learning Review Liaison Group, comprising members from the Care Inspectorate, CPCScotland and the Scottish Government will consider emerging themes and findings that have national implications for policy and practice development.
Looked After Children
Under the Looked After Children (Scotland) Regulations 2009, a local authority is required to notify the Scottish Ministers immediately and the Care Inspectorate in the event of the death of a child who is looked after by them, including those in secure care. This reporting responsibility had been further extended by the Children and Young People (Scotland) Act 2014 to include the reporting of deaths of any young person in receipt of a Continuing Care or Aftercare service up to the age of 26.
The Care Inspectorate identifies any lessons to be learned and makes recommendations for review of legislation, policy, or guidance. It is acknowledged that the current reporting criteria does not include care leavers or young people with care experience who are not in receipt of a Continuing Care or Aftercare service. The Scottish Government is working with the sector to explore how to better understand overall outcomes for those who have been in care.
Mental Health Institutions
Section 37 of the Mental Health (Scotland) Act 2015 provided for Scottish Ministers to carry out a review of the arrangements for investigating the deaths of patients of all ages receiving mental health care or treatment. The final Report, which included ten recommendations, was published in December 2018.
In response, the Scottish Government established an Implementation Group to provide strategic oversight and co-ordination of delivery of those actions. Action one called on the Mental Welfare Commission (MWC) for Scotland to develop a system for investigating all deaths of patients who, at the time of death, were subject to an order under either the Mental Health (Care and Treatment) (Scotland) Act 2003 or part VI of the Criminal Procedure (Scotland) Act 1995 (whether in hospital or in the community, including those who had their detention suspended). In March 2022, the MWC published its proposals to deliver a new investigatory system, and these are currently being considered by the Scottish Government.
Appropriate mechanisms are already in place regarding the unexpected death or serious injury involving a child in secure care. Should there be a tragic unexpected death, then this must be subject to a fatal accident inquiry (FAI) as detailed in legislation. The Act of Sederunt (Fatal Accident Inquiry Rules) 2017 provides the procedural rules which govern such an inquiry. The provision which makes an FAI mandatory when a young person dies in secure care is section 2 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. Deaths are also reported to Scottish Ministers and the Care Inspectorate. All serious injuries to a child or young person in secure care are recorded in the child's care plan and reported to the Care Inspectorate.
An FAI is mandatory into the death of a person who dies in prison custody under section 2 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. One potential exception to this is where the Lord Advocate may decide an inquiry is not to be held if he/she is satisfied that the circumstances of the death have been sufficiently established in proceedings such as criminal proceedings. The decision to hold an FAI (and the timing of a Sheriff Court being petitioned to hold an FAI) is a matter for the Lord Advocate/Procurator Fiscal. The Scottish Courts and Tribunals Service are responsible for the hosting, administration, and management of Inquiry.
In the event of a death in prison custody, the Scottish Prison Service (SPS) applies a number of internal review processes. Immediately after a death, a Critical Incident Response and Support (CIRS) review is undertaken to establish if any immediate action is required relating to internal processes or support for staff and prisoners. This is followed by a Death in Prison Learning, Audit & Review (DIPLAR), which aims to identify and apply any learning from the incident.
In November 2019, the Cabinet Secretary for Justice announced an independent review into the handling of deaths in prison custody to be taken forward by His Majesty's Chief Inspector of Prisons for Scotland (HMCIPS) with additional expertise and external assurance provided by Professor Nancy Loucks, Chief Executive of Families Outside. HMCIPS was also invited to include representation from the Scottish Human Rights Commission who were included as members of the Review Team. The purpose of the review into the response to deaths in prison custody was to identify and make recommendations where necessary for areas for improvement to ensure appropriate and transparent arrangements are in place in the immediate aftermath of a death within Scottish prisons and young offenders institutions. All stages of the review were grounded in relevant human rights standards.
The review, published on 30 November 2021, contained 7 broad findings, one key recommendation and 25 further recommendations and advisory points which were accepted in principle by the Scottish Government. An External Chair was appointed in April 2022 to oversee and drive forward the programme of work necessary to implement the changes. We are working with the Crown Office and Procurator Fiscal Service (COPFS), the SPS, Police Scotland and NHS partners to progress the recommendations and to consider their legal, practical and operational impact as quickly as possible. The Cabinet Secretary provided Parliament with a progress update on 22 June 2022. The External Chair is due to publish an update on progress around the year anniversary of the publication of the review.
Separately, the Expert Review of Provision of Mental Health Services was undertaken by HMCIPS and her co-chair, Dr Helen Smith. The Review Report (2019), is a contribution to reducing avoidable deaths of young people in custody. The report contained seven key recommendations with a total of 80 supporting suggestions, over half of which the SPS has either sole or joint responsibility for. A summary report and final action plan was provided by the Scottish Government in June 2022. While it is recognised that not all actions taken in response to the recommendations can be closed, the changes made by the SPS, NHS and Scottish Government to policies and operational practices are substantial and ongoing. For example, since the publication of the expert review there has been significant investment in staffing and staff training, suicide prevention processes have been reviewed, and a new workforce and training strategy has been developed to ensure all of the healthcare recommendations of the Review are met. HMIPS, Health Improvement Scotland and Dr Helen Smith carried out a return visit to HMP&YOI Polmont in July 2022 and are due to report on progress soon.
National Child Death Review System
In October 2021, the Scottish Government launched a new child death review system to ensure a high-quality consistent review is carried out into the death of all live born children up to their 18th birthday, and up to their 26th birthday for those in receipt of aftercare or continuing care at the time of their death. A National Hub
has been established within Healthcare Improvement Scotland, in partnership with the Care Inspectorate and the Scottish Government, which aims to channel learning from reviews in order to reduce the number of preventable deaths and harm of children and young people.
3.12 Participation of Children and Young People at National Level
LOIPR request: 15(b) promoting meaningful participation of children.
"I think that was a big eye opener to show how far our work went, because we do bring up a lot of ideas and it is hard to get them all into action, but it really showed that they were listening to us. And, even though our ideas were very big, they were still getting taken seriously and people were still trying to get them to be achieved."
MCP, age 13, in conversation about education reform and the proposed incorporation of the UNCRC into Scots law.
The Scottish Government has taken steps throughout the reporting period to promote and support the meaningful and inclusive participation of children and young people to ensure that their voices and views are at the heart of decisions that affect them. In the Progressing the Human Rights of Children in Scotland Action Plan: 2018-2021, we committed to developing a strategic approach to mainstreaming the participation of children and young people in decision-making across Scottish society. A final report on progress made in taking forward these actions was published in November 2021.
A key deliverable from this work was the publication of the Decision-making: Children and Young People's Participation guidance, which seeks to provide best practice advice to support those who engage with children and young people as part of their decision-making. The guidance was developed with an expert working group with representatives from a range of third sector organisations, local authorities, Health Boards and academia, all working in the field of children's rights and participation in Scotland. The views of young people informed this work.
The Scottish Government has also ensured that the voices of children and young people are heard at the highest levels of Government with the aim of improving policy and legislation development and implementation. Since 2017, members of the Scottish Cabinet have met with children and young people each year to enable children and young people to raise issues that matter to them and to inform the Scottish Government's agenda over the coming year. The issues raised by children from the Children's Parliament and young people from the Scottish Youth Parliament at these meetings have been wide ranging, including in relation to bullying, mental health, proposed incorporation of the UNCRC, and Human Rights Defenders.
At the end of each of the meetings, children, young people, and Cabinet members have collectively agreed actions for the year ahead and have subsequently published progress reports on the actions agreed. A report on progress made on the actions agreed at the fifth annual meeting was published in May 2022. The most recent meeting of the Scottish Cabinet with children and young people took place in March 2022.
"This is a fantastic annual event where the views of Scotland's young people are taken right to the top of the decision-making process. A testament to our progress in making Scotland the best place in the world to grow up."
Josh, MSYP, Blog discussing his experience of the CYP Cabinet Meeting, 2022.
Members of the Scottish Youth Parliament and Children's Parliament have also had the opportunity to engage with the Scottish Government's Executive Team, including the Permanent Secretary and Directors General. The most recent meetings took place for young people in November 2021 and for children in June 2022.
We have also held two First Minister's Question Times, facilitated by YouthLink Scotland and Children in Scotland, in September 2018 and April 2019. These sessions provided children and young people with the opportunity to put their questions directly to Scotland's First Minister.
Participation of Children and Young People in Policy Development
The Scottish Government is taking steps as part of the UNCRC implementation programme to strengthen the participation of children and young people in wider policy development. In partnership with members of the Scottish Youth Parliament, we are working with three Scottish Government policy areas over a 12-month period to increase knowledge and awareness of children and young people's participation in decision making. We are aiming to launch a resource in spring 2023 to ensure decision makers are better supported to meaningfully engage with children and young people.
Children and young people have participated in a range of Scottish Government groups, forums, and taskforces throughout the reporting period. For example, young people participated in the Scottish Government's Age of Criminal Responsibility Advisory Group. Members of the Scottish Youth Parliament participated in a number of groups including meetings of the COVID-19 Education Recovery Group; the Scottish Education Council; the Mental Health Equalities and Human Rights Forum; the Scottish Government's Race Equality in Education Stakeholder Group; and the Incorporating the UNCRC into Scots Law Working Group.
The Scottish Government funds and supports the Young Ambassadors for Inclusion, a group of secondary-aged children and young people from across Scotland, to ensure their unique input and experience on matters related to additional support for learning is taken into account in policy consideration and development. The participation of disabled children and young people is also discussed at section 7.6.
In addition to children and young people being directly involved in Government groups, we have also continued to fund a number of third sector organisations, including the Scottish Youth Parliament, Children's Parliament, and Young Scot, to support the participation of children and young people in relation to specific policy issues. For example, facilitated by the Children's Parliament, 100 children from 10 schools across Scotland joined a parallel process to Scotland's Climate Assembly, allowing the views and insights from the young investigators to be shared with the Assembly members, capturing the voices of those too young to join as members, but most impacted by the recommendations. The children's recommendations were incorporated into the final report of Scotland's Climate Assembly, published in June 2021. Further information on how children and young people have been involved in informing and shaping decision-making, policy and action plans is included in theProgressing the Human Rights of Children in Scotland Report 2018-2021.
Participation of Very Young Children
The Scottish Government has established a Voice of the Infant Sub-group, which seeks to elevate the infant to an equal position in the minds of those designing and delivering perinatal and infant mental health services. As part of its work, the Group will produce a clear statement on the Scottish Government's position on the rights of the infant and 'Best Practice Guidelines' on how to take account of the infant's views and their rights in all Infant Mental Health Services. The Group is discussed further at section 7.23.
In 2019, the Scottish Government commissioned Play Scotland to produce a progress report on the National Play Strategy. As part of this work, Play Scotland engaged with very young children (0-5). This is discussed further at section 8.10.
3.13 Hearing the Views of Individual Children and Young People
LOIPR request: 15(a) ensuring the right of the child to be heard.
For children's participation to be effective, it is vital that professionals and others working with individual children and young people are aware of the importance of seeking and listening to their views. Through the continued implementation of the Scottish Government's Getting it right for every child approach and the development of good practice, children and young people's views should be routinely sought by services/practitioners working with them, and should inform the services or support they receive. The first phase of a suite of refreshed GIRFEC materials to guide and support the practice of all those working with children and young people and their families in Scotland was published in September 2022.
The need for all practitioners to listen to and consider the views of children and young people is also highlighted in the Common Core (2012), which sets out the key skills, knowledge and understanding, and values that everyone should have if they work with children, young people, and their families, whether they are paid or unpaid.
Advocacy Support and Mapping Work
The Scottish Government recognises the importance of access to appropriate advocacy support for children and young people in accessing their rights. Advocacy may be provided in a number of ways, dependent on the context or situation and wishes of the child, including for example, by a parent, trusted friend or other relative, youth worker or through independent advocacy services. Advocacy is particularly important for children and young people who are at risk of not having their rights met, including when they are engaging with a service, such as health, education, police, or social work. Advocates can provide children and young people with the knowledge and support they need to help them better navigate the system and ensure their voices are heard.
We will work across the Scottish Government and with stakeholders to review existing advocacy arrangements to support children and young people in accessing their rights and consider how we can further strengthen the provision of advocacy for children and young people who need it. We are also supporting the Promise Scotland's work to scope a national lifelong advocacy service for Care Experienced people. The Promise Scotland will present recommendations to Scottish Ministers for consideration by the end of 2023.
Children (Scotland) Act 1995
The Children (Scotland) Act 2020 (the 2020 Act) removes the presumption that a child aged 12 or over is considered mature enough to give their views in decisions relating to parental responsibilities and rights under the Children (Scotland) Act 1995, Children's Hearings and adoption and permanence cases. This was in response to concerns that the presumption was leading to the views of younger children not always being heard, which was not the intention when the provision was introduced.
The 2020 Act places a requirement for a child's views to be sought when a court or a Children's Hearing is making a decision that concerns the child unless the court is satisfied that the child is not capable of forming a view. The child's preferred method of giving their views is to be used, unless it is not reasonable to do so, or the child has not expressed a preferred method of giving their views. These provisions in the 2020 Act are yet to be commenced. The 2020 Act also places a duty, not yet commenced, on the Scottish Ministers to make such provision as they consider necessary and sufficient to ensure that all children concerned in proceedings in which the court is considering making an order under section 11 of the Children (Scotland) Act 1995 have access to appropriate child advocacy services.
The 2020 Act also requires the Scottish Ministers to establish and maintain a register of persons who may be appointed to act as a child welfare reporter. A child welfare reporter can be appointed by the court in a case under section 11 of the Children (Scotland) Act 1995 to either seek the views of a child or provide a report on the best interests of the child. The Scottish Ministers may by regulations make provision for, or in connection with the requirements that a person must satisfy in order to be included, and remain, on the register (including requirements as to training and qualifications). This could include training on how the views of children are obtained. The Scottish Government has consulted on the requirements for individuals to be on the register and has published an independent analysis of responses.
Learner participation is core to a good education and, as part of all educational experience, it is children and young people's right to have a say in matters that affect them. The Scottish Government encourages meaningful participation of children and young people in the life and work of schools and early years settings. This is supported by guidance for practitioners and improvement support via Education Scotland and the Care Inspectorate.
Both Education Scotland and the Care Inspectorate's inspection frameworks for early learning and childcare settings have a strong focus on encouraging children's participation and development. Quality indicators within Education Scotland's how good is our early learning and childcare self-evaluation framework encourage the participation of children through a range of developmentally appropriate activities which allow them to engage in decisions which affect them. The Care Inspectorate's quality framework for day care of children, childminding and school-aged childcare has a strong emphasis on children's individual and developmental needs, promoting meaningful consultation and effective communication with children, families and all professionals involved, particularly relating to transitions. Within school education, How good is OUR school is intended to support improvement in learner participation in self-evaluation and school improvement.
Additional Support for Learning in Education
The views of the child are central to decisions which are made about the additional support they may require to support them in their learning. Section 2 of the Standards in Scotland's Schools etc. Act 2000 places a duty upon education authorities, where they are responsible for the school education of a child or young person, to secure that the education is directed towards the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential. In so doing, the authority must, so far as is reasonably practicable, have regard to the views of children and young people in decisions that significantly affect their education.
Section 12 of the Education (Additional Support for Learning) (Scotland) Act 2004 (2004 Act) builds on the above by placing a duty on the education authority to seek and take account of views of children and young people as the authority consider appropriate under specific circumstances. These circumstances include where the authority is seeking to establish whether the child or young person has additional support needs and when they are determining what additional support the child or young person may require.
It is expected that, except under exceptional circumstances, children and young people who have additional support needs should have the opportunity to discuss their needs and the support to be provided to meet those needs. Schools and early years settings are expected to create an environment where seeking children's views and encouraging participation in decision-making are part of everyday activities. Children and young people can expect their learning environment to support them to understand that adults in their school community have a responsibility to look after them, listen to their concerns and involve others where necessary.
In addition, the Education (Scotland) Act 2016, made amendments to the 2004 Act which included extending certain rights of children, aged 12-15. Under the 2004 Act, children can ask for their additional support needs to be identified and planned for; receive advice and information about their additional support needs; be part of discussions about the support that they will receive; and access dispute resolution procedures to resolve concerns. These rights are balanced by safeguards in the form of an assessment of capacity and adverse impact on wellbeing.
To further support this, section 31A of the 2004 Act places a statutory duty on Scottish Ministers to secure the provision of a support service to be available on request and free of charge, to children who have attained the age of 12 years and who wish to exercise or are considering exercising their relevant rights. The Children's Service, My Rights, My Say, is funded by the Scottish Government to provide support and advice at every stage of the process to allow eligible children to be fully involved in decisions about their education. The service is made up of four elements which together ensure that the child can be fully supported when exercising their rights under the 2004 Act. The four elements are: advice; advocacy services; legal representation and a service to independently seek children's views.
The service to independently seek children's views allows these to be sought at the request of an education authority, other agency, mediation provider, independent adjudicator or the ASN Tribunal. Once known, the child's views will be shared with the appropriate person or persons to ensure that they are taken into account within the processes associated with rights, duties and functions under the 2004 Act.
Mental Health Services
The Children and Young People's Mental Health and Wellbeing Programme Board (Programme Board) oversaw a set of reforms designed to ensure children, young people and their families receive the support they need, when they need it. In line with the recommendations of the Children and Young People Mental Health Taskforce, there was a focus on prevention and early support as well as promotion of good mental health.
"The best way for the Board to understand what we need is to ask young people and having us take part in discussions is great as we are able to contribute as the conversations are happening."
Abbie, MSYP, quote from a blog about SYP's involvement in the Children and Young People's Mental Health and Wellbeing Joint Delivery Board".
A deliverable of the Programme Board was the Child and Adolescent Mental Health Services: National Service Specification (2020), which outlines the provisions young people and their families can expect from the NHS. A key part of this includes ensuring that CAMHS work in partnership with children, young people, and their families in all aspects of service design and delivery to ensure that children and young people are heard and included in the decision-making process in relation to their care and treatment. The Programme Board also developed the Community Mental Health & Wellbeing Supports and Services Framework (2021) to support the development of community mental health and wellbeing services for 5-24 year olds. A component of the Framework is that new services and supports are co-designed with children and young people, and that they meet local need.
The Programme Board drew to a close at the end of December 2020 and this work is now being taken forward by the Children and Young People's Mental Health and Wellbeing Joint Delivery Board, which is jointly chaired by the Scottish Government and COSLA.
Mental Health – Advocacy Support
Scottish mental health legislation promotes patients' rights and provides safeguards. Access to independent advocacy is a key part of ensuring that people have their voices heard in discussions about their health and wellbeing. The Mental Health (Care and Treatment) (Scotland) Act 2003 imposes a duty on local authorities and Health Boards to collaborate to secure the availability of independent advocacy services in their area. The Act gives everyone, including children and young people, with mental illness, learning disability or personality disorder, the right to access independent advocacy support. This includes people subject to compulsory measures and informal patients and applies whether people are in hospital or the community.
Section 27 of the Children's Hearings (Scotland) Act 2011 (2011 Act) specifies that a Children's Hearing or a sheriff (for proof or appeal) must, as far as practicable, taking account of age and maturity, give the child at the centre of the hearing an opportunity to express their views and the Hearing/ sheriff must have regard for these views in making any decisions about a matter relating to a child. Section 3 of the Children (Scotland) Act 2020, yet to be commenced, will amend section 27 of the 2011 Act so that the child may express views in the manner the child prefers. It will also create a presumption in section 27 that a child is capable of forming a view unless the contrary is shown.
On informing a child that a Children's Hearing is taking place, the Scottish Children's Reporter Administration (SCRA) fully explains to the child their rights which include:
- Bringing an adult to the Hearing to help (a person of trust, for example, a lawyer, an advocacy worker, or a Children's Rights Officer) and another trusted person in the child's life. (They can bring both if they would like).
- Being able to ask questions at the Hearing.
- Telling people at the Hearing if there is something they want to say.
- Being able to ask, with help to understand, anything that is unclear. (Panel Members will explain their decision, but if there is anything that is unclear, it is important that an opportunity to ask is available).
- Being able to appeal against the decision of the Hearing within 21 days.
Children's Advocacy in Children's Hearings
The Scottish Government commenced section 122 (children's advocacy services) of the 2011 Act in November 2020, which activated the new duties on the Children's Hearings chairs to inform children about advocacy services. The legislation also made provision to ensure access to children's advocacy services for children and young people referred to Children's Hearings by the Principal Reporter of the Scottish Children's Reporter Administration. The role of children's advocacy services is to make sure children's rights are respected and their views and wishes are fully considered within the decision making within their Children's Hearing.
The national advocacy service for Children's Hearings is a demand-led service. From July 2021, the provision was expanded to support the right of siblings to participate in Children's Hearings, where they are invited to give their views on when or how they want to see their brothers or sisters. From June 2022, the service was further expanded to provide independent advocacy support to children and young people placed in residential care in Scotland under cross-border deprivation of liberty orders (DOLs).
A Children's Hearings Advocacy Expert Reference Group continues to support the design, delivery and implementation of the service, which is offered Scotland-wide by ten third sector providers. The national advocacy service was backed by an initial £1.5 million, and increased to £1.8 million in 2021-22. Funding was further increased to £2 million in 2022-23. The funding supports the training and provision of advocacy workers and a legal advice service/helpline for advocacy workers, where any matters requiring legal input occur, provided by Clan Childlaw.
The Youth Justice Standards (2021) are intended to guide both strategic and operational services' understanding of what is expected at each stage of a child's journey through the justice system. The standards specify that children must be supported to be heard at all stages of any interventions, including in relation to service design.
In addition to this, our Vision and Priorities for Youth Justice (2021) promotes a rights-based approach to youth justice, including the need to support all children under the age of 18 and young people up to age 26 to participate in decisions that affect them. The Vision was informed by the views of stakeholders, including children and young people. Engagement took place with the Youth Parliament, Scottish Throughcare and Aftercare Forum /Children and Young People's Centre for Justice Youth Justice Voices participation project. Members of their youth-led steering group "Youth Just Us" developed a guide to be used by practitioners working with children and young people. Views were also sought from children in secure care and HMP&YOI Polmont.
The Secure Care Pathway and Standards (2019), are written from the perspective of the child and were co-produced with those with previous care experience. The Pathway and Standards set out for the first time what all children in, or on the edges of, secure care in Scotland should expect. They provide a framework for ensuring the rights of children and young people are respected, including their right to be heard in the decisions that affect them.
The Scottish Government is also funding two part-time Care Experienced participation roles from April 2021 within the Children and Young People's Centre for Justice (CYCJ). These roles aim to ensure that the voices of children and young people up to age 26 are heard in the development of policy, child friendly documents and in working groups relating to youth justice.
3.14 Legal Aid and Advice
LOIPR request: 15(c) impact of legal aid reform.
Children and young people in Scotland can access publicly funded legal assistance (for both advice and representation) on the same broad range of issues that an adult can, as long as they have the capacity to instruct a solicitor. Scotland has maintained a wide scope for access to legal aid for both criminal and civil cases. Legal aid in Scotland is a demand-led system, with a high rate of eligibility. The Scottish Legal Aid Board (SLAB), which is responsible for administering legal aid in Scotland, is a non-governmental public body. In 2015, SLAB became a corporate parent under the Children and Young People (Scotland) Act 2014.
In relation to Children's Hearings, legal assistance is available where legal representation is necessary to allow the child to effectively participate in the hearing (subject to financial eligibility tests for all except certain hearings). For certain specified hearings, automatic legal aid will be made available to a child, with no means or merits tests. This includes cases where an order is being sought to remove a child to a place of safety, or deprivation of the child's liberty is in prospect, but the child has not secured representation ahead of the hearing. In those situations, SLAB will appoint a solicitor and maintains a national duty solicitor scheme to ensure that this can happen.
In terms of court proceedings related to Children's Hearings, with the exception of certain specified hearings, the statutory tests applied by SLAB for children's legal aid are whether: it is in the best interests of the child that children's legal aid be made available; it is reasonable in the circumstances of the case to make it available; and whether the expenses of the case could not be met without causing undue financial hardship to the child. Furthermore, in appeals cases there must be substantial grounds for taking or responding to the appeal.
The independent report, Rethinking Legal Aid: An Independent Strategic Review (2018), addressed the subject of children's legal aid. A public consultation
on legal aid reform took place in 2019. The Consultation Analysis was published in June 2020. The Scottish Government plans to introduce primary legislation during this Parliament to help ensure that the system is flexible, easy to access and meets the needs of those who use it. We will engage with relevant stakeholders, including victim support organisations, during the development of the Bill.
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