Taking a children's human rights approach: guidance

5. Links to other regulations and duties

This section outlines the links between the UNCRC and policy areas and duties such as Getting It Right For Every Child (GIRFEC), children’s services’ planning, and The Promise, which are policy areas providing services directly to children. These policies are already grounded within a children’s human rights approach.

Public authorities play a vital role in delivering for children, young people and their communities. They are fundamental in ensuring children are able to access and experience their rights, by taking a children’s human rights approach, through their leadership and implementation of a range of statutory duties, and through national and local programmes of work, aimed at improving outcomes for children, young people and families.

Taking forward work to Keep the Promise, close the poverty-related attainment gap, and reduce child poverty, are all actions taken by public services which contribute to the full realisation of children’s rights. Many of the statutory duties public services already uphold contribute to the collective ambition to make Scotland the best place in the world to grow up. Making these connections across policy areas is important, as all efforts to improve outcomes for children, young people and their families feed into and contribute towards achieving the National Performance Framework, which aims to uphold children’s rights and improve their wellbeing. Implementation of the UNCRC Bill provides the solid foundation to achieve these ambitions for children.

The following sections outline some of the key policy areas that public authorities are already working across, to show how they link to the UNCRC and support implementation of the UNCRC Bill.

This is by no means an exhaustive account of how children’s rights are being progressed through other statutory duties or efforts to continually improve the wellbeing and outcomes of children. However, this section shows the extent which many of these policy areas already contribute towards realising children’s rights as part of a coherent approach to children’s rights and wellbeing in Scotland.

5.1 Public Sector Equality Duty

The Public Sector Equality Duty is a duty on public bodies, and those carrying out public functions, which was created by section 149 of the Equality Act 2010 and came into force in April 2011. It was developed to consolidate specific duties on race, gender and disability that were all previously contained in separate Acts, and extended duties to cover other relevant protected characteristics.

The PSED requires equality to be considered in all^[19] functions of public authorities, including: decision-making, design of internal and external policies and delivery of services; and for these issues to be kept under review.

Section 149 of the Equality Act 2010, ‘the general duty’, requires public authorities, to:

• Eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct;
• Advance equality of opportunity between people who share a relevant protected characteristic and those who do not; and
• Foster good relations between people who share a protected characteristic and those who do not.

Although the subject matter of the Act is largely reserved to the UK Parliament, Scottish Ministers have powers (under section 153 of the Act) to supplement the PSED by placing specific duties on certain Scottish public authorities. Scottish Ministers used these powers to make the Scottish Specific Duties (SSDs) in 2012.

The SSDs are intended to provide a supporting framework to enable certain public authorities to better perform their PSED, through enhanced data collection and evaluation, and greater transparency and accountability.

The PSED is linked to the UNCRC regarding the emphasis it places on reducing inequalities, specifically UNCRC Article 2:

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or their parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

5.1.1 Fairer Scotland Duty

The public sector duty regarding socio-economic inequalities is set out in section 1 of the Equality Act 2010. In Scotland, it is known as the Fairer Scotland Duty (the Duty) and came into force in 2018. The new powers that Scottish Ministers gained by the Scotland Act 2016 allowed them to commence and implement the Duty in Scotland.

The Duty places a legal responsibility on named public bodies in Scotland to actively consider how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions. When deciding how to fulfil the Duty, public bodies covered by the Duty must take into account the statutory guidance for public bodies issued by Scottish Ministers.

This Duty has clear links with the UNCRC in relation to the emphasis it places on reducing inequalities caused by socio-economic disadvantage. Such inequalities could include inequalities for children, and therefore, the Duty relates to aspects of the following Articles:

Article 4:

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation

Article 26:

1. States Parties shall recognize for every child the right to benefit from social security and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

Article 27:

1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

By requiring those public bodies covered by the Duty to consider the impact that their strategic decisions have on the inequalities of outcomes caused by socio-economic disadvantage for both adults and children, outcomes in areas such as educational attainment, employment prospects and health can be improved.

While there are links between the Duty and the UNCRC, it is also important to highlight that there are some differences between the Duty and the UNCRC Bill, which will incorporate the UNCRC into Scots law, as far as possible within legislative competence. The Duty places a legal requirement on certain named bodies in Scotland, while the UNCRC Bill makes it a legal obligation for all public authorities to act compatibly with the UNCRC requirements.

5.2 National Performance Framework

Our National Performance Framework (NPF) articulates a shared vision for Scotland, based on a core set of values, which include:

• treating all our people with kindness, dignity and compassion
• respecting the rule of law
• acting in an open and transparent way

These values are linked to the National Outcomes that describe the kind of Scotland we would like to create, are aligned with the UN Sustainable Development Goals and help to track progress in reducing inequality. The National Outcomes are:

• We grow up loved, safe and respected so that we realise our full potential
• We respect, protect and fulfil human rights and live free from discrimination
• We live in communities that are inclusive, empowered, resilient and safe
• We are healthy and active
• We are well educated, skilled and able to contribute to society
• We tackle poverty by sharing opportunities, wealth and power more equally
• We have a globally competitive, entrepreneurial, inclusive and sustainable economy
• We are open, connected and make a positive contribution internationally
• We have thriving and innovative businesses, with quality jobs and fair work for everyone
• We value, enjoy, protect and enhance our environment
• We are creative and our vibrant and diverse cultures are expressed and enjoyed widely

The first outcome is most relevant to children’s outcomes. Progress towards the National Outcomes is measured through the 81 National Indicators. The seven indicators which focus specifically on outcomes for children and young people are:

• Child social and physical development
• Child wellbeing and happiness
• Children’s voices
• Healthy start
• Quality of children’s services
• Children have positive relationships
• Child material deprivation

The NPF, through its vision, values and National Outcomes, sets out how public services should be delivered, towards the shared outcomes for the whole of Scotland. Contributing to the National Outcomes aligns with progress towards children’s rights being upheld. Reporting on National Indicators offers insights into where there is improvement.

The Scottish Government are undertaking a review of the National Outcomes. This is a requirement within every five years, under the Community Empowerment (Scotland) Act 2015.

5.3 Children, Young People and Families Outcomes Framework

A Children, Young People and Families (CYPF) Outcomes Framework has been 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 the UNCRC and GIRFEC and will help to highlight positive impacts of policy and service delivery, 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 (assessing how Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, Included (SHANARRI) children are) and Shared Aims (based on the My World Triangle^[20]) as well as a set of 21 Core Wellbeing Indicators. The latter are connected with relevant UNCRC articles, and provide a high level, holistic overview of wellbeing. Their use will support greater consistency of data within and across local and national reporting requirements, including Children’s Services Plans. The Core Wellbeing Indicator Set is intended to be supplemented by deep-dive data, other local information, and the views of children, young people, and families.

The Core Wellbeing Indicator Set has been established as an initial step as part of Scotland’s longer-term data improvement journey to embed a holistic approach to data on wellbeing of children, young people and families. The Children, Young People, and Families Outcomes Framework went live in 2022, with eight wellbeing outcomes, shared aims, and core wellbeing indicators agreed and available for use by partners from April 2022. A national report presenting top line findings and socio-demographic analysis of the 21 Core Wellbeing Indicators was published in September 2023. Alongside continued stakeholder collaboration to support implementation and use of the CYPF Outcomes Framework at national and local level, longer term development, including further engagement and co-design with children, young people, and families, is planned.

5.4 Children’s Services Planning

Children’s Services Planning (CSP), as outlined in Part 3 of the Children and Young People (Scotland) Act 2014, forms a central part of delivering GIRFEC across Scotland with an aim of improving outcomes for all children, young people and families. It does this by ensuring that local planning and delivery of services and support is integrated, safeguards, supports and promotes wellbeing of children and young people, has an emphasis on prevention and early intervention, and constitutes the best use of available resources.

Updated Children’s Services Planning Statutory Guidance was published in January 2020 on exercising of functions conferred by Part 3 of the 2014 Act. Each local authority and its relevant health board are required to produce a Children’s Services Plan every three years, in collaboration with ‘other service providers’, local partners in the public sector, third sector, funded providers, and importantly, children, young people and families. Each Children’s Services Planning Partnership must report annually on progress and make sure plans reflect a strategic approach which describes how children’s rights are being used to inform the structural, procedural and outcome framework of its plan.

Each Children’s Services Plan (CSP) should:

• Describe local provision over the period of the plan of both ‘children’s services’ and ‘related services’ (adult and community-based supports) with an impact on the wellbeing of children, young people and families
• Consider data to understand and respond to the needs of all children and families living in that area, as well as groups with specific needs, such as: children in need of care or protection, disabled children, young people leaving care, children in conflict with the law, younger children, young people moving from children’s to adult services (transitions), child poverty, young carers, or refugees and asylum seekers
• Show how the CSPP is adopting a whole system approach to wellbeing (SHANARRI) which spans prevention and community-based supports, universal services of health and education, and services which provide early intervention as well as targeted or specialist support
• Say how services and support are being delivered in such a way so they are experienced as joined-up from the point of view of children, young people and families, and show how the CSPP is creating and maintaining effective GIRFEC practice for individual children and families
• Convey a shared sense of ongoing engagement and ownership with children, young people, families, the wider community and workforce, evidencing the Partnership makes full use of stakeholder’s ideas

Children’s Services Planning Partners (CSPP) have responsibility for the delivery of services for children, and the adults in their lives, within their local communities. As individual organisations and as a collective, CSPPs support wellbeing and the realisation of children’s rights. The local Children’s Services Plan and local CSP arrangements are thus key mechanisms through which public authorities are planning and delivering local services and support in a way which results in children and young people experiencing their rights.

The review^[21] of Children’s Services Plans (2020-2023) and strategic engagement activity, published in July 2022, highlighted the mutually enforcing nature of children’s rights and the CSP. The analysis showed that all CSPs included aims to promote children’s rights, and the vast majority of Plans were well aligned to the UNCRC. Over one third of CSPPs have included children’s rights as a strategic priority. The review of Children’s Services Plans has highlighted a range of innovative practice byCSPPsacross Scotland and a commitment withinCSPswhich demonstrates how partners are contributing to the realisation of children’s rights in a number of ways.

5.5 Child Poverty (Scotland) Act 2017

The Child Poverty (Scotland) Act 2017 (“the 2017 Act”) sets in statute ambitious targets to significantly reduce levels of child poverty by 2030, with interim targets to be met by 2023. Setting targets to reduce child poverty is in line with the UNCRC Article 4 that requires states to undertake measures to the maximum extent of their available resources in regard to implementing economic, cultural and social rights. The 2017 Act also supports the realisation of UNCRC Article 27, which makes clear that every child has the right to a standard of living that is good enough to meet their physical and social needs.

As poverty can also negatively affect the health, wellbeing and educational attainment of the children who experience it, there is also alignment with Article 24, the right to health and health services and Article 28, the right to primary and secondary education. Achieving the targets set by the 2017 Act is imperative to improving the lives and outcomes of Scotland’s children and young people, their families and wider communities.

The following sections of the 2017 Act are relevant to UNCRC Implementation and monitoring of children’s rights:

Section 9: Requires Scottish Ministers to prepare and publish delivery plans in 2018, 2022 and 2026. The plans must set out the measures that Scottish Ministers propose to take during the period of the plan for the purpose of meeting the child poverty targets.

Section 10: Requires Scottish Ministers to report annually on action taken and detail how these actions contributed to reducing child poverty.

Section 13: Places a duty on local authorities and relevant Health Boards to jointly prepare and publish annual Local Child Poverty Action Reports (LCPARs) outlining the action they have taken to tackle child poverty, and the action that they intend to take in future.

5.5.1 Best Start, Bright Futures – Tackling Child Poverty Delivery Plan (2022-2026)

Tackling poverty and protecting people from harm is one of three critical and interdependent missions for the Scottish Government, alongside our focus on the economy and strengthening public services. We remain committed, within the scope of our powers and limited financial resources, to deliver progress against the targets set in statute through the 2017 Act.

In March 2022 we published Best Start, Bright Futures, our second Tackling Child Poverty Delivery Plan (the Plan) for the period 2022-2026. The Plan builds on the progress of the first Delivery Plan, ‘Every Child, Every Chance’ 2018-2022, and seeks to protect children’s rights and to have a positive impact on children’s wellbeing. In tackling the three key drivers of child poverty – increasing income from employment, reducing household costs and maximising income from Social Security and benefits in kind – the Plan acts in the best interests of children, aiming to move them out of poverty, with a particular focus on six priority family types identified as being at highest risk of child poverty.^[22]

Best Start, Bright Futures is a plan for all of Scotland and sets out how the Scottish Government will work in partnership across all sectors – including the public, private and third sectors – to deliver the transformational change needed to tackle and reduce child poverty in Scotland. It sets out measures to provide immediate financial support to families impacted by poverty, and measures that will help to improve outcomes in the medium to longer term, to drive progress toward the ambitious targets.

The Plan brings together a range of policies offering cross-cutting, positive effects on children and families’ wellbeing. The Plan enables parents’ employment by increasing access to training and skills and working in partnership with employers to support fair work, as well as strengthening the essential services of childcare and transport. It also aims to maximise families’ income from benefits, including through continued investment in the Scottish Child Payment, which was increased to £25 per child per week and expanded to reach all eligible children under the age of 16, as of November 2022. Additionally, it aims to enhance advice services to ensure families access the benefits available to them.

The Plan focuses on whole family wellbeing, including access to affordable, warm homes. The Plan aims to give children the best start to life which includes post-natal care and realising the benefits of the expansion of Early Learning and Childcare. The Plan also acts towards equality in education through the efforts of the Scottish Attainment Challenge and puts forward policies which support children’s opportunities for learning and growth.

The Plan is aligned with the commitment to ‘Keeping The Promise’ (see section 5.6.2), recognising that reducing poverty levels can influence the rates of children and young people coming in to care. Furthermore, the Plan considers care experienced children and young people through The Promise Partnership Fund and Care Experience Grant, as well as supported access to mentoring and Family Nurse guidance for young mothers.

5.6 Examples of specific relevant policy areas

Scotland has a clear ambition to be the best place for children and young people to grow up. We want every child to grow up loved, safe and respected so they realise their full potential. This means creating an equal society which treats children and families with dignity and kindness. Upholding rights is the foundation for improving wellbeing – this creates the conditions in which wellbeing will flourish. Children’s rights lie at the heart of this vision.

The United Nations Convention on the Rights of the Child (UNCRC) is the base standard for children’s rights and sets out the fundamental human rights of all children. Parents and families, communities, local and national governments, and organisations which work with children and families, all play an important part in helping children understand and experience their rights. Public authorities, including the Scottish Government also play a critical role in upholding and realising children’s rights; including rights relating to health and education, leisure and play, fair and equal treatment, protection from exploitation and the right to be heard.

The Scottish Government already uses the UNCRC as a framework to ensure children’s rights are considered in decisions, and to help provide every child with a good start in life and a safe, healthy and happy childhood. It forms the basis of the national approach for supporting children,  Getting it right for every child (GIRFEC). Fulfilling children’s rights is also critical to keeping The Promise.

5.6.1 Getting it right for every child (GIRFEC)

Getting it right for every child (GIRFEC) is the Scottish Government’s commitment to provide all children, young people and their families with the right support at the right time, so that every child and young person in Scotland can reach their full potential.

Implementation of GIRFEC is just one example of how our approach to supporting children and young people can be grounded in respect for their rights. GIRFEC is underpinned by key values and principles which were developed with stakeholders including children and young people across Scotland. GIRFEC has been used and tested across Scotland since 2006. It includes all children and young people because it is impossible to predict when or if they might need help. Along with children’s rights, GIRFEC is central to all government policies which support children, young people and their families and is delivered through services and people who work with families.

Following consultation with stakeholders, the Scottish Government published updated GIRFEC materials in September 2022. GIRFEC puts the rights of all children and young people at the heart of good practice and sees children’s rights and wellbeing as intrinsically linked and mutually reinforcing. When a child’s rights are respected, protected and fulfilled, their wellbeing should improve; equally, restricting access to their rights may have a negative effect on their wellbeing. Where a child or young person’s wellbeing is flourishing and their rights are respected, they are more able to enjoy and defend these rights, as well as those of others.

The GIRFEC values and principles as well as the wellbeing indicators support the four articles in the UNCRC known as the “General Principles”. The general principles play a fundamental role in realising all the rights in the UNCRC for all children under 18.

Article 2, non-discrimination, is supported by the GIRFEC values and principles “valuing difference and ensuring everyone is treated fairly” and “considering and addressing inequalities”.

Article 3, best interest of the child, is supported by the GIRFEC values and principles “providing support for children, young people and families when they need it, until things get better, to help them to reach their full potential” and “everyone working together in local areas and across Scotland to improve outcomes for children, young people and their families”.

Article 6, right to life, survival and development, is supported by GIRFEC wellbeing indicators (Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included); all of which are required for a child to develop to their full potential and to fulfil their rights.

Article 12, right to express views and be heard, is aligned with the GIRFEC values and principles “placing the child or young person and their family at the heart, and promoting choice, with full participation in decisions that affect them” and “working together with families to enable a rights respecting, strengths-based, inclusive approach”.

Through its values and principles, wellbeing indicators and core components, GIRFEC as a national practice model demonstrates its strong rights-based foundation.

5.6.2 The Promise

In 2016, the First Minister instructed a full independent review of the Care System in Scotland. Running from 2017 to 2020 the review listened to over 5,500 voices. Over half of these were children and young people who had experience of the care system. The conclusion of this work was The Promise – a clear statement of what needs to change to support the lives and wellbeing of our children, young people, adults and families across Scotland.

In signing up to all of the conclusions set out through the Independent Care Review, the Scottish Government places keeping The Promise as a central commitment that is fundamental to our ambition that Scotland will be the best place to grow up.

Upholding children’s rights is integral to improving the lives of children and young people. The UNCRC recognises that when children are removed from the care of their parents for however long, they are entitled to special care and protection. The Promise is clear that whilst the family must be viewed collectively and not as isolated individuals, support services must be underpinned by the rights of the children they are working with. That means ensuring that all the rights of children are upheld in all decisions and support for the family. It will mean that children’s rights are the lens through which every decision and support service is viewed.

The Promise was based on the premise that the UNCRC will be directly incorporated into Scots law, to the maximum extent possible, and would provide a framework around which all systems and services must operate. The Promise is clear that Scotland’s approach to care must be grounded on active and sustained application of those rights. Rights must not be driven by process but must flourish within a culture of care and rights-respecting, human-centred frameworks that enable nurturing, loving relationships.

In March 2022, the Scottish Government published the Keeping the Promise Implementation Plan that sets out all the actions and commitments it will take to improve the lives of the care experienced community. The Scottish Government does not deliver The Promise on its own; many partners are key to ensuring it can Keep The Promise, including Local Authorities, the third sector, health boards, and stakeholders who represent care experienced people. Children, families, and people with lived experience are also playing a crucial role in shaping this work.