5. Policy and Legislative Context
GIRFEC puts the rights of all children and young people at the heart of good practice. Children’s rights and wellbeing are intrinsically linked and are mutually reinforcing. When a child’s rights are respected, protected and fulfilled, their wellbeing improves; equally, restricting access to their rights may have a negative effect on their wellbeing. Where a child’s wellbeing is flourishing and their rights are respected, they are better able to enjoy and defend these rights, as well as those of others.
It is widely recognised that full realisation of children’s rights requires proactivity on the part of public authorities, and not only those working with children and young people but to all bodies undertaking public functions. Children’s rights are not just relevant to services for children and young people but in the decisions made and actions taken to deliver adult services, as these impact on the rights and wellbeing of children and young people. It is vital to the realisation of children’s rights that all those undertaking public functions consider children’s rights in their work and seek to give fuller and further effect to these.
5.1 United Nations Conventions on the Rights of the Child (UNCRC)
The UNCRC is a United Nations treaty, it is a holistic framework for the rights of all children and is the most widely ratified international treaty in the world. The UNCRC Articles set out the civil, political, economic, social and cultural rights of every child. The Articles should be considered universal, inalienable, indivisible, and interdependent, meaning they apply to everyone under the
age of 18 (see glossary), cannot be taken away, they are all of equal importance, and they depend on each other to provide a single framework that is essential to upholding the rights of children.
There are four General Principles which underpin how the Convention should be interpreted and put into practice. These are that children:
- Should not be discriminated against (Article 2);
- Should have their best interests accounted for as a primary consideration (Article 3);
- Have the right to survive and develop (Article 6); and
- Have the rights to have their views heard and given due weight in accordance with their age and maturity (see Article 12).
The UNCRC (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament on 16 March 2021. Following a challenge by UK Law Officers to the UK Supreme Court, the Court held that some provisions to be outwith the legislative competence of the Scottish Parliament.
The Scottish Government remains committed to the incorporation of the UNCRC to the maximum extent possible as soon as practicable, and the majority of work in relation to implementation
of the UNCRC can, and is, continuing. The Deputy First Minister has confirmed his preference to return the Bill to the Scottish Parliament via the Reconsideration stage. If the Bill is passed
following Reconsideration, it will create new reporting duties for ‘listed authorities’ under Part 3 of the Bill which would replace the current reporting duties under the CYP (S) Act 2014. Section 6(1) of the UNCRC Bill would, if commenced (albeit in a revised form), require public authorities not to act incompatibly with the UNCRC requirements as defined by the Bill.
5.2 Child Rights and Wellbeing Impact Assessment
The Scottish Government’s Child Rights and Wellbeing Impact Assessment (CRWIA) is a key tool that those engaging with children and young people in Scotland can use to strengthen their child rights-based approach. The CRWIA is a purpose-built policy and legislation impact assessment primarily designed for use by Scottish Government, but public bodies and children’s services can also make use of it. CRWIAs suggest the use of both UNCRC and GIRFEC frameworks to assess the potential impact of a policy or measure on children’s rights and wellbeing.
The CRWIA covers individual children and young people, and groups of children, up to the age of
18. The use of CRWIAs also encourages decision makers to seek the views and participation of children and young people in decision-making about the policy or measure under consideration. It is intended to help us champion the interests of children and young people, think about the forms of evidence we use to assess this, as well as challenge us to think about what more we can do to place children and young people at the heart of our policies.
Making Scotland the best place to grow up depends on creating the right conditions within a child and young person’s wider world through societal infrastructure, community resources and
networks, and supports and services for families. It means making sure that every child and young person has what they need to reach their full potential.
5.3 Tackling Child Poverty
There are strong links to the Child Poverty (Scotland) Act 2017 and to the national mission to tackle child poverty. Article 27 of the UNCRC makes clear that every child has the right to a standard of living that is good enough to meet their physical and social needs and support their development – that is why we must work together to help increase household incomes and reduce costs, ensuring families have the financial resources they need.
5.4 The Christie Commission
The Christie Commission on the Future Delivery of Public Services is highly relevant to how we deliver services for children, young people and families. We continue to work to ensure that effective services must:
- be designed and delivered with and not to people, and must work closely with individuals to understand their needs;
- prioritise preventative measures and early intervention; and
- work together to achieve outcomes and tackle fragmentation and complexity in the system.
5.5 The Independent Care Review
The outcome of the Independent Care Review, The Promise, outlines the transformational change that is required to ensure that services are centred around people to create a country that cares. We are working to ensure that for services to be effective they must:
- be shaped around children, young people and families instead of around policy areas, budgets, legislation or monitoring;
- meet the needs of children, young people and families and stand ready to be accessed where they are needed and when they are needed; and,
- listen to care experienced children and young adults in the delivery, inspection and continuous improvement of services and of care.
GIRFEC acknowledges that children and young people can experience multiple and overlapping inequalities, and will need support given in a child-focused holistic manner. Scotland has many policies for eradicating inequalities that underpin this approach.
The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity. Section 149 of the Equality Act 2010 includes the Public Sector Equality Duty. This requires public authorities to have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and to foster good relations between persons who share one or more of the protected characteristics listed in the Act,
and those who do not. Age is a protected characteristic. Article 2 of the UNCRC relates to the protection of children against any form of discrimination.
All children and young people can be negatively impacted by inequality through a combination of forms of discrimination on the grounds of their protected characteristics or perceived characteristics such as age, disability, gender reassignment, race, religion or belief, sex, sexual orientation.
These experiences can have long term social, economic and health impacts. Some children and young people may need additional support due to intersectional discrimination, in which different types of discrimination intersect and interact (the intersection of sex and race discrimination, for example).
5.7 Children’s Services Planning
Within Children’s Services Planning, Part 3 of the Children and Young People (Scotland) Act 2014 seeks to improve outcomes for all children and young people in Scotland by ensuring that local planning and delivery of services is integrated and focused on supporting and promoting children and young people’s wellbeing. It places a renewed emphasis on acting early, prevention and working together using the values and principles of GIRFEC.
Part 3 (Section 8) of the Children and Young People (Scotland) Act 2014 requires each local authority and its relevant health board to produce a Children’s Services Plan every 3 years, in collaboration with its planning partners, including children, young people and families. These plans should reflect a strategic approach to the delivery of children’s services which:
- include all local children, young people’s and related services including other public bodies, the third sector and private sector providers;
- safeguards, supports and promotes the wellbeing of children and young people in the area concerned;
- ensures that any action to meet needs is taken at the earliest appropriate time and that, where appropriate, action is taken to prevent needs arising;
- is most integrated from the point of view of recipients; and,
- constitutes the best use of available resources.
Taken together, these aims are about creating and maintaining a local environment which facilitates effective GIRFEC practice for all children, young people and families. The Children’s Services Plan itself is the description of how public bodies and their partners will work together to achieve this, providing services which are organised and equipped to deliver high-quality, joined- up, rights-respecting, trauma-informed, responsive and, where possible, preventative support to children, young people and families.
Children’s Services Plans reflect the wider world of children and young people. They cover children’s services as well as wider services for adults, parents (see glossary), families and communities which all have an impact on children and young people.
Over the last decade, those working with children, young people and families have developed effective practice to turn the aspirations of GIRFEC into a practical reality for children, young people and families. GIRFEC is now well established in most Community Planning Partnerships with examples of joined-up structures and processes and common terminology, resulting in children and young people’s wellbeing needs being identified and addressed at an earlier stage.
Part 1 of the Children and Young People (Scotland) Act 2014 also places a duty on ‘listed authorities’ (as defined by the Act) to report every 3 years on the steps they have taken in that period to secure better or further effect of the requirements of the UNCRC (as defined by the Act). Some listed authorities to which Part 1 applies will also be subject to duties under Part 3 (Children’s Services Planning); in particular, local authorities and health boards.
The Part 1 guidance notes that while there is no requirement within Part 3 for local authorities and relevant health boards to adopt a child’s rights-based approach within their children’s services planning process or to link with the Part 1 duty, given the complementary timescales, alignment of the Part 1 and Part 3 duties may benefit both processes by providing a structure within which to plan, review and report on children’s rights, cementing the link between fulfilling children’s rights and promotion of their wellbeing.
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