Guidance on Part 1, Section 2 (Duties of Public Authorities in relation to the UNCRC) of the Children and Young People (Scotland) Act 2014
Guidance for public authorities about how they should fulfil the duties set out in Part 1 of the Children and Young People (Scotland) Act 2014.
A Framework for Children's Rights Reporting
81. This chapter of the guidance sets out a potential framework for reporting on children's rights. The framework takes a child rights-based approach using the clusters of the Articles of the UNCRC. It provides practical detail to support its application.
Using the UNCRC clusters to prepare Children's Rights Reports
82. Using the UNCRC clusters is an internationally recognised approach to the implementation, monitoring and reporting of children's rights, and it therefore provides a useful approach to the development of statutory Children's Rights Reports. For the purposes of children's rights reporting, the clusters are described below in terms of "what" and "how" public authorities should do to implement rights.
83. When reviewing the clusters, public authorities may wish to consider which clusters (if not all) apply to their role and responsibilities. Some will apply to all public authorities while others may be more applicable to some public authorities than others. For example, the clusters General Measures of Implementation and General Principles will apply to all public authorities because the focus is on protection and promoting knowledge of children's rights and the main principles of non-discrimination, best interests, survival and development and right to be heard. Other cluster areas may be more (but not necessarily solely) applicable to a specific public authority - for example, Family Environment and Alternative Care or Education and Leisure will be core to the responsibilities of a local authority.
84. The "UNCRC requirements" in section 4 of the Act means the rights and obligations set out in Part 1 of the Convention and certain articles of the first and second Optional Protocols to the UNCRC. There is no duty on public authorities to report on compliance with matters which fall outwith this definition. The clusters below therefore focus on the rights set out in Part 1 of the Convention. Public authorities should also consider if the relevant articles of the first and second Optional Protocols are relevant to their activities. In these instances, reporting could be included in a relevant cluster or as additional information.
85. Public authorities may wish to make explicit links in reporting on children's rights with the wellbeing indicators. A table linking the SHANARRI indicators with examples of Articles of the UNCRC is at Appendix 3. This list is not exclusive or exhaustive. Public authorities should therefore consider if other UNCRC Articles are relevant by referring to the UNCRC requirements as defined in the Act.
86. Public authorities should consider the most appropriate approaches to ensuring that the framework they use takes account of children and young people with diverse experiences, views and circumstances, with specific attention being paid to children and young people who are marginalised and/or from a minority group.
87. A summary of each UNCRC cluster (and associated Articles), drawing on the materials developed for the CRWIA is set out below. At the end of each cluster "reflective statements" have been included to give examples of areas that public authorities may wish to report on. These examples are illustrative and are not meant to be either prescriptive or exhaustive. They should be used as a basis for further consideration and development by authorities in consultation with other stakeholders including children and young people, parents and carers, and third sector organisations.
88. Public authorities may wish to use the following questions (or similar) to consider their progress in the cluster areas:
- What do we provide or undertake in relation to this cluster/and/or UNCRC Article?
- How are we progressing in this area of activity? What is working well and where are there gaps?
- What evidence do we have? What is our baseline information? Is there evidence on outcomes for children and young people?
- How is our evidence informed by the views and experiences of children and young people?
- What next steps or actions do we need to take arising from the initial questions?
Cluster (i): General measures of implementation
89. This cluster focuses on what government is expected to do to implement the UNCRC through law, policy and decisions which impact on children. It applies to legal measures (through legislation). It also applies to non-legal measures which progress implementation of the Convention including: national strategies and action plans; resource allocation and monitoring; children's rights training, awareness-raising and capacity-building; development and collection of data on children's lives; collaboration with all sectors including children. The specific relevant UNCRC Article is: protection of rights (Article 4): ensuring that the UNCRC rights are implemented through legislation and other measures (to the maximum extent of available resources).
Examples of reflective statements: (i) General measures of implementation
We ensure that our visions and values promote the rights of the child and that these are reflected in all our public documents and statements (Article 4).
We are committed to the implementation of UNCRC rights, through complying with rights provisions and duties within the 2014 Act and other relevant legislation and policy as identified (Article 4).
We proactively consider children's rights in service planning, engaging with and undertaking consultation with relevant stakeholders (including children and young people and parents/carers) (Article 4).
We ensure that the services we provide for children and young people conform to established national standards and provide high quality services and staffing (Article 4).
We have a skilled and competent workforce committed to upholding children's rights. Training on children's rights is available to our staff and elected members (where appropriate) and is provided for those in senior, managerial and practitioner roles and takes into account the Common Core (Article 4).
With reference to policy and service delivery, we take our commitment to children's rights into account in decisions on resource allocation (Article 4).
90. Article 42 (knowledge of children's rights: making the principles and the provision of the UNCRC widely known) and Article 44(6) (implementation measures: making reports on implementation widely known) are relevant to the General Measures of Implementation cluster. They are not included here as they do not form part of the UNCRC requirements under the Act. Public authorities are therefore not under a duty to report on these in terms of section 2(1).
Cluster (ii): General principles of the UNCRC
91. This cluster focuses on the four general principles of the UNCRC:
- non-discrimination (Article 2): children should not be discriminated against;
- best interests of the child (Article 3): every decision and action must be in a child's best interests;
- survival and development (Article 6): every child has the right to life and to develop to their full potential, and
- respect for the views of the child (Article 12).
Examples of reflective statements: (ii) General principles of the UNCRC
We can demonstrate how the principle and practice of non-discrimination have been taken into account in our services (Article 2).
We can show through evidence, including disaggregated data, that children and young people from marginalised groups are able to access their rights (Article 2).
We respect children and young people's rights to develop to their full potential in early learning and childcare settings, school, home and community (Article 6).
Children and young people are encouraged and supported to participate in all stages of planning, provision and delivery of our services (Article 12).
We use a range of measures to seek children and young people's views about matters that affect them and always consider the child's views in determining what is in the child's best interests (Articles 3 and 12).
We ensure that communication or learning difficulties are not considered an exception to the requirement to obtain and consider the views of the child or young person (Articles 2 and 12).
Children and young people have access to independent advocacy where they find it more difficult to claim their rights or if their rights have been violated (Article 12).
We signpost children and young people who want to make a complaint, and/or those acting on their behalf, to clear and transparent complaints processes (Article 3 and 12).
We ask children and their parents/carers routinely about matters that affect them and provide feedback on how their views have been acted on (Article 12).
We seek out and use examples of the best approaches to engaging with children and young people in order to support their right to have their voices heard (Article 12).
Cluster (iii): Civil rights and freedoms
92. This cluster focuses on children's civil rights and freedoms including: children's right to move freely in public space and to meet with others; children's right to think and believe what they like, to access information and speak their mind as long it is not harmful to others; children's right to keep personal matters and communications private; and their right to be protected from inhumane or degrading treatment:
- birth registration, name, nationality, care (Article 7);
- protection and preservation of identity (Article 8);
- freedom of expression (Article 13);
- freedom of thought, conscience and religion (Article 14);
- freedom of association (Article 15);
- right to privacy (Article 16);
- access to information and mass media (Article 17);
- right to education (Article 28);
- inhumane treatment and detention (Article 37), and
- recovery and rehabilitation of child victims (Article 39).
Examples of reflective statements: (iii) Civil rights and freedoms
We support children and young people's freedom of association through the
provision of public spaces where they can meet safely (Article 15).
Information sharing is proportionate and appropriate and complies with the Data Protection Act while recognising a child's right to privacy (Article 16).
Information materials are available in a range of formats and in specific settings in order to meet the needs of individual children and young people (Article 17).
Children and young people are not subject to any form of treatment, which is deemed to be inhuman or degrading and have access to legal and other assistance in instances where they are detained (Article 37).
Cluster (iv): Violence against children
93. This cluster focuses on situations where children experience violence in all its forms including physical and mental violence, abuse and neglect, maltreatment and exploitation including sexual abuse; it highlights the right of children to services which support their physical and psychological recovery; and emphasises that children should not be subjected to torture or to other cruel, inhuman or degrading treatment or punishment including physical or corporal punishment:
- protect from all forms of violence (Article 19);
- promote physical and psychological recovery (Article 39);
- no child subjected to cruel, inhuman or degrading treatment (Article 37(a)), and
- school approaches to managing behaviour and discipline (Article 28(2)).
Examples of reflective statements: (iv) Violence against children
- We provide support to promote children and young people’s recovery from their experience of violence including abuse and neglect, maltreatment and exploitation (Article 39).
- We seek and take account of children and young people’s views prior to making decisions in child protection and other processes (Article 12).
- Approaches to managing behaviour and discipline in school and in other settings such as residential care and foster care are appropriate and positively support children and young people (Article 28 (2)).
- We take measures to ensure that no form of cruel, inhuman or degrading treatment to children is tolerated in our services (Article 37 (a)).
Cluster (v): Family environment and alternative care
94. This cluster focuses on: the primary role of parents and the support parents should have to bring up their children; the right of children to not be separated from parents unless this is in their best interests; the right of children to be well cared for where they live apart from their parents; the right of a child to maintain contact with both parents if that is in their best interests; the right of a child to have a say when decisions are made about where they should live, with placements subject to regular review; and the right of all children to be protected against all forms of violence and abuse:
- parental guidance and a child's evolving capacities (Article 5);
- separation from parents (Article 9);
- family reunification (Article 10);
- abduction and non-return of children (Article 11);
- parental responsibilities and state assistance (Article 18(1-2));
- protection from all forms of violence (Article 19);
- children deprived of a family (Article 20);
- adoption (Article 21);
- review of treatment in care (Article 25);
- adequate standard of living (Article 27), and
- recovery and rehabilitation of child victims (Article 39).
Examples of reflective statements: (v) Family environment and alternative care
We take into account children's evolving capacities, making sure that all younger children are able to access their rights (Article 5).
We seek and take account of children and young people's views prior to making decisions that affect them (Article 12).
Children and young people who are looked after have access to the services they need and have a say in decisions about where they live (Article 9).
Young people who are moving onto independence but continue to require our services, have access to the support they need (e.g. care leavers or disabled young people) (Article 5).
We provide support and services to parents/carers in order that they can care for their children (Article 18).
We provide support to children and young people who experience complex family circumstances (e.g. young carers; children with experience of domestic abuse; children who have a parent in prison) (Article 18).
Our management team is informed of their duties and fulfils their responsibilities as corporate parents (Article 18).
All placements of children and young people who are looked after are subject to regular review (Article 25).
Cluster (vi): Basic health and welfare
95. This cluster focuses on the health and welfare of all children and the consideration of disabled children's rights. All children should have the best possible standard of health, including access to relevant health services. There should be a focus on the determinants of children's health, including mental health. Under Articles 26 and 27, where families do not have enough to live on, children have a right to financial support from the Government to meet their basic needs. The cluster includes:
- life, survival and development (Article 6);
- parental responsibilities and state assistance (Article 18(3));
- children with disabilities (Article 23);
- health and health services (Article 24);
- social security (Article 26);
- adequate standard of living (Article 27 (1-3)), and
- drug abuse (Article 33).
Examples of reflective statements: (vi) Basic health and welfare
We provide early learning and childcare services which benefit both children and their parents/carers (Article 18).
We actively promote the right of disabled children to have access to a range of services and have choice and control over the services they receive e.g. education, health care, play and leisure services etc (Article 6 and 23).
We ensure that children and young people have access to the high quality health care they need and this extends to preventative health care services (Article 24).
We ensure that children and young people with long term health conditions have access to the services and support they need (Article 24).
We provide resources and support for children and young people in order to meet their mental health needs (Article 24).
We provide support to children and families, where this is within our authority responsibilities, to meet children's essential needs in relation to food, clothing and housing (Article 27).
Cluster (vii) Education, leisure and culture
96. This cluster focuses on the right of all children to an education that will help them achieve their potential without discrimination. Education should be child-centred and empowering and strengthen their capacity to enjoy the full range of children's human rights including their right to express their views and participate in all aspects of their education. Article 29 entitles children to a broad curriculum. Article 31 states that children have a right to play, recreational activities, rest and leisure and to take part in cultural life. The cluster includes:
- the right to education (Article 28);
- the goals of education (Article 29);
- children of minorities/indigenous groups (Article 30); and
- leisure, play and culture (Article 31).
Examples of reflective statements: (vii) Education, leisure and culture
We aim to ensure that all children do not experience any form of discrimination in their education, regardless of their circumstances (Article 28).
We ensure that all children and young people access their right to an education that develops their abilities to their fullest potential (Article 29).
We ensure that early learning and childcare and school environments support children and young people's participation in all aspects of the Curriculum for Excellence (Article 28).
We provide children and young people with access to play and leisure opportunities and address barriers to inclusive play and leisure. There are sufficient high quality outdoor play and recreation places for children and young people to access including spaces suitable for disabled children and young people (Article 31).
Children and young people have access to and can participate in a range of arts and cultural opportunities (Article 31).
Cluster (viii): Special protection measures
97. This cluster focuses on groups of vulnerable and marginalised children who require special protection. These are often the children who are most at risk of having their rights ignored or infringed. They include asylum-seeking and refugee children, child victims of trafficking or exploitation, and children in trouble with the law.
98. Under Article 22, asylum-seeking children and child refugees are entitled to special protection and other UNCRC rights. The Convention states that, where possible, children should be dealt with outwith the criminal justice system and a welfare response is appropriate to meet the needs of the child. Under Article 40, children who enter the criminal justice system have a right to fair treatment and legal representation. The cluster includes:
- refugee children (Article 22);
- children of minorities/indigenous (Article 30);
- child labour (Article 32);
- drug abuse (Article 33);
- sexual exploitation (Article 34);
- abduction, sale and trafficking (Article 35);
- other forms of exploitation (Article 36);
- inhumane treatment and detention (Article 37(a-d));
- war and armed conflicts (Article 38);
- recovery and rehabilitation of child victims (Article 39), and
- juvenile justice (Article 40).
Examples of reflective statements: (viii) Special protection measures
We assess the numbers and situation of children and young people and their families who are asylum seeking and are migrants in order to provide them with services and support (Article 22).
We ensure that children and young people at risk of sexual exploitation or drug use have access to the child protection and specialist support and services they require (Articles 33 and 34).
We provide support to children and young people in response to their needs so that they do not enter the criminal justice system, as far as possible (Articles 37 and 40).
We ensure that children and young people who enter the criminal justice system have the right to legal representation and fair treatment (Article 40).
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