2. General Principles
Relevant UNCRC Articles: 2, 3, 6 and 12
The 4 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 4 general principles are the guiding principles which underpin each and all of the specific rights outlined in the Convention.
2.1 Equality Act 2010/Public Sector Equality Duty
Equality law remains largely reserved to the UK Government. The Scottish Government has argued for full devolution of equality law, and although the UK Government has not accepted that argument, the Scotland Act 2016 did include two exemptions to the general reservation. Those exemptions enable the Scottish Parliament to legislate about equal opportunities in relation to non-executive appointments to the boards of Scottish public authorities as well as to introduce protections and requirements that supplement but do not modify the existing provisions of the Equality Act 2010. Following the commencement of the Scotland Act 2016, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018, which provides that public boards have a gender representation objective that 50% of their non-executive members are women.
Section 149 of the Equality Act 2010 places a duty (known as the public sector equality duty, or PSED) on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and promote good relations between people who share a protected characteristic and those who do not. The Scottish Government has introduced Regulations, (the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012) which set out specific duties to enable better delivery of the PSED. Those Regulations place additional duties on Scottish public authorities, requiring them to, inter alia, mainstream equality, assess policies and practices against the requirements of the Equality Act 2010, collect and use employee information and publish equal pay statements.
The Equality Outcomes and Mainstreaming Report 2017 (2017 Report) provides an update on the Scottish Government’s progress in promoting equality across its activities and in delivering on the 2013 equality outcomes. It also sets new equality outcomes covering the period 2017-21. The 2017 Report identified key priority themes for progress which are relevant to children and young people. These include:
- Promoting participation in decision making;
- school education;
- tackling hate crime;
- eradicating violence against women and girls.
- following devolution of some Social Security functions, putting equality at the heart of the development and creation of a new social security system for Scotland;
- mental health, including child and adolescent mental health; and
- improving outcomes for children affected by Domestic Abuse and the Justice System.
The Scottish Government is committed to a review of the specific duties contained in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 to enhance their effectiveness in supporting the PSED. At the time of writing, it is expected that the review will take place in 2019, with any amendment Regulations coming into force in April 2020.
“Diversity is important. We should be respected for who we are and be able to share our ideas.”
Member of Children’s Parliament, Rights Event, 2018
2.2 Equalities and Inclusion
The following section discusses the actions that the Scottish Government has taken, within its devolved powers, to address inequalities, for example, in relation to gender and race. Specific measures taken forward to support the needs of children with disabilities, migrants and asylum seeking children, and looked after children and young people are discussed in subsequent sections of this report.
Although age is a protected characteristic under the Equality Act 2010 (2010 Act), there are a number of specific exceptions and exemptions. For example, the provisions in the Act which prohibit discrimination in providing services and public functions do not apply to anyone under 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. 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 findings of Lord Bracadale’s review of hate crime, including with reference to age, are discussed at section 2.6.
The Scottish Government is committed to gender equality and believes that women and girls should have equal rights and opportunities to men, equal access to power and resources, and live free from gender-based violence.
The Scottish Government has established a National Advisory Council on Women and Girls (NACWG). The NACWG’s vision is of a Scotland which is recognised as a world leader for its commitment and actions towards realising an equal Scotland where all women and girls can reach their true potential. Independently chaired by Louise Macdonald OBE, CEO of Young Scot, the NACWG has 16 members from diverse backgrounds, aged 15+ (with three members aged 21 and under). The NACWG is a champion for policies that are making a meaningful difference to women and girls lives, as well as a catalyst for change to address gender inequality by providing independent strategic advice to the First Minister.
Gender equality is one of the key themes of the Scottish Government’s Science, Technology, Engineering and Mathematics (STEM) Strategy. The Strategy, published in October 2017, offers a comprehensive plan to drive forward improvements in STEM across the education and training landscape. In June 2018, the Government announced that the Improving Gender Balance project would be extended to all schools in Scotland by 2022, in line with the STEM Strategy. The pilot project, which was in collaboration with the Institute of Physics, Skills Development Scotland and Education Scotland, had been considering creative approaches to tackling gender stereotyping in STEM in primary schools.
Equally Safe, Scotland’s Strategy for tackling violence against women and girls, published in 2016, includes, as one of its key priorities, ensuring that women and girls thrive as equal citizens – socially, culturally, economically and politically. The Equally Safe Delivery Plan, published in 2017, includes a range of actions to take forward this priority, including bringing forward legislation to ensure that public sector boards in Scotland are gender balanced.
Lesbian, Gay, Bisexual, Transgender and Intersex Children and Young People
Scotland is considered to be one of the most progressive countries in Europe regarding LGBTI equality and has a very clear position on promoting LGBTI rights. Scotland scored most highly in the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) Europe’s Rainbow Index for LGBTI equality and human rights legislation in 2015 and 2016, and was ranked second in 2017. The Scottish Government has added intersex equality to its approach to sexual orientation and gender identity equality, and has provided £45,000 each year since 2015-16 to the Equality Network (an organisation which promotes LGBTI equality and rights across Scotland) to facilitate engagement. The Scottish Government intends to consult on how to better support children with variation of sex characteristics (intersex children) and their families. This consultation will cover a range of areas such as health, birth registration, guidance and support.
In April 2017, the Scottish Government established a working group to review lesbian, gay, bisexual, trans, and/or intersex (LGBTI) equality in schools. The group examined how the education experience for LGBTI young people in Scotland can be improved. It was chaired by the Association of Directors of Education in Scotland (ADES) and included education leaders, equalities experts and young people, as well as representatives of the Time for Inclusive Education (TIE) campaign. The group published its strategic work plan in December 2017. The Group’s aim is to ensure that a fully inclusive education is delivered for all children and young people. The report and recommendations of the Group were published on 8 November 2018 and accepted in full by the Scottish Government. Work will shortly commence in taking these recommendations forward.
“There has to be a real effort to change society’s attitude towards young people of BME backgrounds.”
Jamie, MSYP, feedback from December 2017 meeting with the Coalition for Racial Equality and Rights, Glasgow
The Scottish Ministers are also 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 Scottish Government has developed a number of initiatives within the reporting period in seeking to deliver on this ambition.
The Race Equality Framework for Scotland 2016-2030 (2016) sets out the Scottish Government’s approach to tackling racism and advancing race equality. The corresponding Race Equality Framework Implementation Approach (2017) defines the required structures through which to progress, monitor and evaluate the implementation of the actions from the Framework. In addition, A Fairer Scotland for All: Race Equality Action Plan 2017-2021 (2017) confirms the key actions that the Scottish Government will take over this Parliamentary session to drive positive change for minority ethnic communities.
The Independent Race Equality Framework Adviser, Kaliani Lyle, was appointed in December 2016 to help implement the Framework and to liaise with stakeholders, communities and academics. Ms Lyle’s report, Addressing Race Inequality in Scotland: The Way Forward was published in December 2017. The Scottish Government also commissioned YoungScot in 2017 to co-design the Fairer Future project, which brings together young ethnic minority people to gather their insights, experiences and views of the six themes of the Race Equality Framework. The group’s report, Creating a Fairer Future, was published in November 2017. The Scottish Government will continue to support the Fairer Future Panel to further develop the opportunities for minority ethnic young people to participate in local and national decision making.
The Scottish Government continues to support the work of the third sector in the promotion of race equality – with over £2.6m provided in 2017-18 to support this work and over £2.6m allocated in 2018-19.
The Scottish Government recognises that Gypsy/Travellers face serious disadvantage and discrimination in Scotland. This is unacceptable and Scottish Ministers are determined to address this. In December 2017, as part of the Race Equality Strategy, the Scottish Government announced a new Ministerial Working Group on Gypsy/Travellers which seeks to develop innovative solutions to seemingly intractable problems, and to drive improvements at a faster pace. The Ministerial Working Group has met three times this year (2018), with a focus on improving outcomes for the Gypsy/Traveller community in the key areas of accommodation, education, health and tackling poverty. Early in 2019, the Scottish Government will publish a set of actions that will be taken in the current parliamentary term to improve the lives of Scotland’s Gypsy/Travellers.
The Child Poverty Delivery Plan, published on 29 March 2018, focuses on priority families who are at higher risk of poverty, including minority ethnic families. The final chapter of the Plan sets out an assessment of how each substantive action benefits these families and which of the main drivers of poverty it tackles. Education is key to avoiding and moving out of poverty, but uptake amongst the Gypsy/Traveller community is relatively low, particularly in the early years. To address this, the Scottish Government will invest an initial £0.5m over the lifetime of this Plan to work directly with Gypsy/Traveller families and other partners as part of a tailored children and families community education programme. Crucially, this will be a flexible approach which maximises the benefits to the whole family. It will be developed and delivered with the full involvement of the community. The Scottish Government will carefully monitor and evaluate the programme to learn lessons over the later years of this plan.
The Scottish Government will work closely with the Gypsy/Traveller community to ensure that identified actions are the right ones, and are shaped and delivered in a way that is appropriate, effective and culturally sensitive. The Scottish Government is particularly keen to involve young people in delivering change, and is providing practical and financial support to the Young Gypsy/Traveller Assembly, to enable young Gypsy/Travellers to be more involved in the decisions that affect their lives.
Funding to Support Work with Gypsy/Travellers
The Scottish Government is providing a record level of funding to third sector organisations working with Gypsy/Traveller communities – over £1.5m over the period 2018-21. This includes support for MECOPP which supports Gypsy/Travellers who are carers, Article 12 which works to promote young Gypsy/Travellers rights and representation, Shelter Scotland which provides expert housing and benefits advice to Gypsy/Travellers and STEP, which works with local authorities, teachers and practitioners to work with Gypsy/Travellers families. It also includes a new investment of £0.5m over the next four years to develop new work to alleviate child poverty within the Gypsy/Traveller community.
Site Provision and Planning
It is for local authorities to provide Gypsy/Traveller sites based on an assessment of need in their area. Local authorities are required by law to produce a Local Housing Strategy (LHS) that sets out its strategy, priorities and plans for the delivery of housing and related services, including for Gypsy/Travellers. The Scottish Government is updating its Housing Needs and Demand Assessment (HNDA) Guidance in 2018. A refresh of the LHS guidance is also underway, with the intention to publish revised guidance in spring 2019. The Scottish Government will continue to review the content of local authority Local Housing Strategies to ensure the needs of Gypsy/Travellers are addressed.
In May 2015, the Scottish Government published the guidance Improving Gypsy/Traveller Sites, which sets out minimum standards for Gypsy/Traveller sites and the core rights and responsibilities of site tenants. Local authorities and Registered Social Landlords (RSLs) are expected to reflect the rights and responsibilities in the guidance in the individual tenancy agreements they have with tenants. Between August 2017 and March 2018, the Scottish Government carried out a review of progress towards meeting the standards. Information gathered during the review was published in a report in May 2018.
The minimum standards are now part of the Scottish Social Housing Charter. The Scottish Housing Regulator (SHR), in its role in overseeing the standards as part of the Charter, contacted all site providers after the June deadline for meeting the standards to request further information. SHR published a report detailing its findings on 23 October. The Scottish Government will continue to liaise with SHR and site providers to ensure that all sites provide accommodation that is of a good standard to Gypsy/Travellers.
The Scottish Government continues to seek to raise wider awareness of the Gypsy/Traveller community in the planning system. In 2015, the Scottish Government funded PAS (formerly Planning Aid Scotland) to undertake the Gypsy/Traveller Planning Awareness project. As part of this initiative, PAS produced guides on the planning system and the Gypsy/Traveller community for councillors, community councils, and Gypsy/Travellers.
2.4 Attitudes to Children and Young People
The Scottish Government recognises the importance of fostering inter-generational communication and relationships. To better understand changing attitudes towards children and young people, the Scottish Government has developed new data on societal attitudes. This has provided a baseline to support the tracking of this data over time to identify any changes and where development is most needed. The research commissioned includes the following:
- The Public Attitudes to Young People in Scotland omnibus survey of 1,000 adults in Scotland, which found that: more people held positive attitudes towards young people than negative. 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 in the Young People in Scotland Survey (YPiSS), which surveys a representative sample of 11-18 year olds across state secondary schools in Scotland about the opportunities for them to participate in decisions that affect them. Findings were published in November 2017.
- Questions on public attitudes towards young people’s participation in the Scottish Social Attitudes Survey (SSAS) core module, a survey of Scottish adults, including questions around how much say young people should have in decisions that affect their lives. Findings were published in September 2018.
The Scottish Government will include within the Scottish Social Attitudes Survey 2019, questions designed to help track public attitudes towards young people over time. The outcome will help inform actions to increase understanding of children’s rights and the positive contribution made by Scotland’s children and young people. Data is also recorded every 4 years in the Health Behaviours in School Age Children (HBSC) on relationships between children/young people and their parents from an international perspective.
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. 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 aims to inspire Scotland through its young people, is also contributing to measures to counter the negative portrayal of children and young people. An evaluation of the YOYP will be published in 2019.
2.5 Portrayal of Children and Young People in Certain Groups
“Marginalised groups of young people can become very isolated, help make sure everyone is involved and supported!”
Young Person, Article 12 in Scotland, I Witness: The Concluding Observations, 2018, p.8.
The UN Committee on the Rights of the Child has identified that groups of children and young people are especially at risk of experiencing discrimination and stigmatization, including those from minority ethnic communities and Roma, Gypsy and Traveller children. Balanced portrayals of such groups in the media contribute significantly to the building of a more inclusive Scotland. The Scottish Government Race Equality Framework, therefore, includes an action to work to improve ethnic diversity in the media workforce and how minority ethnic communities, including young Gypsy/Travellers, are represented and portrayed.
The Scottish Government is clear that disabled children and young people should have the same rights, opportunities and quality of life as their non-disabled peers. The development of the Supporting Disabled Children, Young People and their Families Resource in consultation with disabled children, young people, their families and the organisations that represent them, will consider discrimination and public attitudes as part of this process.
The Scottish Government funds the advocacy organisation Who Cares? Scotland to support efforts to prevent unnecessary barriers and raise awareness of discrimination faced by care experienced young people. The 3 principles of this campaign are: to listen to the voice of Scotland’s care experienced young people; act so that Scotland is better for care experienced young people; and unite with and around Scotland’s care experienced young people. These principles are considered as key elements of all programmes and policy development. Scotland’s mentoring programme, Intandem, for children aged between 8 and 14 years of age who are looked after at home is discussed at section 2.18.
From its interactions with children and young people, the Scottish Government is aware that, whilst looked after children and young people need and deserve extra support, they do not want to be defined by their care experience. Part 9 of the CYP Act sets out that corporate parents (listed in the CYP Act) are required, amongst other duties, to promote the interests of looked after (or former looked after) children, assess the needs of looked after children for services and support, and seek to provide opportunities for those young people to participate in activities to promote their wellbeing. Local authorities also have duties under Part II of the Children (Scotland) Act 1995 to safeguard and promote the welfare of all looked after children, to provide continuing care for former looked after children up to the age of 20 (to be increased to age 21 from 1 April 2019), and provide advice and assistance to former looked after children to age 19 and in some circumstances age 26. Public authorities must also have regard to existing protected characteristics in the 2010 Act when making decisions, and try and balance any conflicting interests.
2.6 Hate Crime
Hate crime can be verbal or physical and has hugely damaging effects on the victims, their families and communities, and everyone must play their part to challenge it. Current hate crime legislation allows any existing offence to be aggravated by prejudice in respect of one or more of the protected characteristics of race, religion, disability, sexual orientation and transgender identity.
Lord Bracadale’s Review of Hate Crime Legislation, published in May 2018, included a recommendation that an additional statutory aggravation should be created for age (covering both older people and children and young people). In response to the recommendations made, on 14 November, the Scottish Government launched One Scotland: Hate Has No Home Here, a public consultation on amending hate crime legislation, seeking views on the detail of what should be included in a new, consolidated, Hate Crime Bill.
On 13 June 2017, the Scottish Government published an ambitious programme of work to tackle hate crime and build community cohesion in response to the recommendations made by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion. The report included a number of actions relevant to children and young people. The Scottish Government has established an Action Group, chaired by the Cabinet Secretary for Communities and Local Government, with key stakeholders, to take this work forward.
The Scottish Government continues to take steps to raise awareness of hate crime, for example through the recently launched campaign which aims to encourage witnesses to report hate crime, which took place between September-November 2018. The Scottish Government also continues to fund measures to address hate crime. For example, £70,000 was provided to YouthLink Scotland in 2017-18. LGBT Youth Scotland and respectme also received funding in early 2017 to collaboratively produce a resource and deliver practice seminars to improve the knowledge, confidence and skills of teachers and those working in learning environments to address the issue of homophobic, biphobic and transphobic bullying.
2.7 Safeguarding Vulnerable Individuals Through Prevent
The Scottish Government continues to work with partners, including Education Scotland and local authorities, to deliver a balanced and proportionate approach to safeguard children and young people from being drawn into terrorism. A concerted effort has been made to ensure that the preventative, rights-based approach taken in Scotland is aligned to existing safeguarding procedures. This includes supporting Scottish Specified Authorities to demonstrate compliance with the Prevent Duty, which is part of the UK Government’s Counter Terrorism Strategy (CONTEST).
While national security is a reserved matter, the delivery of Prevent in Scotland occurs through various authorities that operate within areas of devolved competence. Since commencement of the duty on 1 July 2015, the Scottish Government has supported the delivery of Prevent training to thousands of frontline service staff, including those within education, to ensure any concerns about a vulnerable individual receive a proportionate response. A Local Authority Code of Practice has also been published, which ensures all staff, including those working in education, are made aware of the vulnerabilities associated with radicalisation and what action to take. The Scottish Government’s approach aims to address the broad spectrum of terrorist and violent extremist threats. The collective focus is on early identification of risk to an individual in order to safeguard their wellbeing. This prevents particular sections of Scotland’s communities feeling stigmatised or isolated and sits alongside wider efforts to build more resilient and inclusive communities.
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 will shortly be publishing links to a number of resources together with bespoke lesson packs, which can be used by teachers to lead these sensitive discussions in the class room.
2.8 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 best interests and rights of the child underpin this goal. The Getting it right for every child (GIRFEC) approach puts the best interests of the child at the heart of decisions that affect them, with the aim of improving outcomes for all children and young people. GIRFEC focuses on considering each child’s needs in a more holistic way, looking at their whole wellbeing and encouraging early intervention, prevention and coordination around the family. The CYP Act has 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 factors are often referred to by their initial letters – SHANARRI. They are wellbeing indicators which help 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 children has a need for support.
Getting it right for every child is the national approach in Scotland to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time from the right people and underpins all other Scottish Government policy for children, young people and families.
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. In their 2018-19 PfG, Scottish Ministers committed to introducing a Family Law Bill by June 2019, including measures to further ensure that the best interests of the child are at the centre of any contact or residence case or children’s hearing. 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.
2.9 Children (Scotland) Act 1995
The Scottish Government consulted from May to September 2018 on potential changes to Part 1 of the Children (Scotland) Act 1995. Part 1 of the Act sets out parental responsibilities and rights and who has them. It also gives the court power to decide things such as who a child should live with or spend time with. The Scottish Government is not planning any changes in relation to who Part 1 treats as a child. The majority of parental responsibilities and rights last until the child is 16 but the responsibility to provide guidance lasts until 18. This seems an appropriate balance between respecting the rights of the child and providing support and protection for the child. Contact and residence cases relate to children under 16, reflecting that at 16, a person can decide for themselves where they want to live and who they want to see.
2.10 Tackling Adverse Childhood Experiences (ACEs)
ACEs are traumatic experiences that can have a profound effect on a child’s developing brain and body with long reaching negative effects. ACEs encompass a range of childhood experiences such as abuse, neglect and family/home difficulties – including parental separation, domestic abuse and parents or carers with experience of alcohol or drug problems, imprisonment or mental ill-health. The Scottish Government is committed to addressing these and also a broader range of adversities that impact on children and young people, such as bereavement, bullying, homelessness and poverty. Research and experience demonstrate that preventing ACEs, where we can, and tackling their impact where they do happen, can change a child’s life and, importantly, their life chances. Consideration of ACEs is increasingly informing the development of national policy in Scotland. For example the Mental Health Strategy 2017-2027 (2017) and the Justice in Scotland: Vision and Priorities 2017 to 2020 (2017) identify ACEs as a key challenge to be addressed. Similarly, the Scottish Government Every Child, Every Chance – The Tackling Child Poverty Delivery Plan 2018-22 (2018) commits to activity to address ACEs.
Scottish Government made the first explicit commitment to preventing and mitigating ACEs in PfG 2017-18: committing to embed a focus on preventing ACEs and supporting the resilience of children and adults in overcoming early life adversity across all areas of public service, including education, health, justice and social work. This work is being taken forward as part of the Getting it right for every child approach and existing interventions include: measures to reduce parental incarceration by extending the presumption against short sentences; increasing support for children and families in the very earliest years, through expansion in health visitor numbers and the roll-out of Family Nurse Partnerships; the expansion of high quality early learning and childcare, and funding to tackle the attainment gap.
The voices of young people have informed and will continue to help shape policy around ACEs. For example, in March 2018, Year of Young People (YoYP) Ambassadors, facilitated by Young Scot, attended an event hosted by the Deputy First Minister with the First Minister and other ministerial colleagues to hear from people working across sectors about the actions needed to drive progress on ACEs. The Scottish Government also ensured that YoYP Ambassadors and members of the Scottish Youth Parliament also attended the ACE Aware Nation Conference in September 2018. Scottish Ministers are committed to continuing work to raise awareness of ACEs amongst young people and to develop actions together with them.
Building on this, the PfG 2018-19 set out a range of further actions being taken forward in partnership with the Scottish ACEs Hub (led by NHS Health Scotland) and a wide range of people and organisations, to embed a focus on better preventing ACEs and supporting the resilience of children and adults to overcome early life adversity. The PfG 2018-19 confirmed a focus on four key areas:
- Providing intergenerational support for parents, families and children to prevent ACEs;
- reducing the negative impact of ACEs for children and young people;
- developing adversity and trauma-informed workforces and services; and
- increasing societal awareness and supporting action across communities.
It also set out specific actions being progressed in line with each of these, for example enhancing support for children affected by parental imprisonment, improving experiences of the Children’s Hearings system to respond compassionately to traumatised and neglected children and young people and investing in the provision of school nurses and counsellors in schools. The Scottish Government, Scottish ACEs Hub and other partners will continue to raise awareness of ACEs across Scotland and support actions across communities.
Right to Life, Survival and Development
2.11 Organ and Tissue Donation Bill
The Scottish Government introduced a Bill on 8 June 2018 to enable an ‘opt out’ system of deceased organ and tissue donation in Scotland. This would mean that most adults (aged 16 or over) in Scotland would be deemed to have authorised donation after their death unless they have registered a decision not to donate or have told their family or close friends that they did not want to be a donor. Children will still be able, as now, to authorise their own donation after death from the age of twelve, or a person with parental rights and responsibilities can authorise donation for them. The Bill also provides a new ability for children aged 12 or over (and adults) to make a legally binding opt out declaration. The Bill provides safeguards in relation to children (and adults) to ensure that their latest views on donation are taken into account. Taking into account the child’s views is a new principle for those aged under 12.
In order to provide for looked after children the same opportunity to donate, the Bill also enables authorisation to be given by a local authority in relation to a child for whom it holds parental rights and responsibilities, taking into account the views of the child as well as others with a relationship with the child.
The Scottish Government hopes that this new system of authorisation, alongside other improvements being made to donation and transplant services, will increase the number of organs available for transplant. As well as helping adults, this change should also increase the number of much-needed organs available to save or significantly improve the lives of children and young people on the transplant waiting list. The Scottish Government has held focus groups with young people, including a number of care-experienced young people, to discuss the Bill proposals. These focus groups provided feedback which has helped the Scottish Government in developing the legislation and plans for awareness raising should the Bill be approved by the Scottish Parliament.
2.12 Road Safety
Although good progress has been made in improving road safety in recent decades, the road environment remains one of the principal causes of harm and accidental death to our young people. Road Safety Scotland has developed a suite of road safety learning resources for use with children and young people aged 3-18 years. Linked closely to Curriculum for Excellence, these resources seek to help children and young people stay safe on the roads at each stage of their development and across the different categories of road user. The resources are all available online to allow wider access, and represent an investment of just over £0.8m per year.
The Scottish Government supported passage of the Seat Belts on School Transport (Scotland) Act 2017 through the Scottish Parliament. The Act, which received Royal Assent on 18 December 2017, requires the fitting of seat belts on all dedicated school transport. National guidance with information on seat belt fitting, wearing and monitoring was published in June 2018 ahead of the Act coming into effect on 1 August 2018.
2.13 Investigation of Child Deaths and Serious Injury
In the context of child protection, a Significant Case Review (SCR) is a multi-agency process for establishing the facts of, and learning lessons from, a situation where a child has died or been significantly harmed. SCRs should be seen in the context of a culture of continuous improvement and should focus on learning and reflection on day-to-day practices, and the systems within which those practices operate. The responsibility for the decision to carry out an SCR and thereafter for conducting the review lies with local Child Protection Committees and Chief Officers Groups with consideration to national guidance published by the Scottish Government.
A Child Protection Systems Review Group was established as part of the Scottish Government’s Child Protection Improvement Programme, to consider the role and functions of Child Protection Committees, Child Protection Registers, Child Protection Case Conferences, and Significant and Initial Case Reviews (ICRs). The Group was asked to recommend changes or improvements to these processes and structures in order to better protect children and young people.
The Review Group’s report, published in March 2017, recommended that the Care Inspectorate’s role be extended so that it becomes the central repository for all ICRs and SCRs to support the sharing of learning from these reviews. In responding to this recommendation, the Minister for Children and Young People wrote to Child Protection Committees in June 2017 outlining the Scottish Government’s expectation that all ICRs and SCRs are shared with the Care Inspectorate. This is enabling the Care Inspectorate to build a better understanding of the decision making process involved in determining the need and scope for ICRs and other reports, compared to the overall number of reported Significant Case Reviews, and identifying areas where learning can be shared from the cases which do not proceed beyond Initial Case Review.
The Systems Review Group also recommended the development of national standards for reviewers undertaking ICRs and SCRs to improve the quality and consistency of reviews, and that the Scottish Government should explore a new tiered approach to, and methodology for, ICRs and SCRs. Work to take forward both of these recommendations is currently underway.
Under the Looked After Children (Scotland) Regulations 2009, a local authority is required to notify the Scottish Ministers immediately (through the Care Inspectorate) in the event of the death of a child who is looked after by them, including those in secure care. They must also, so far as is reasonably practicable, notify every parent of the child and every person who has any parental responsibilities or parental rights. This reporting responsibility had been further extended by the CYP Act to include the reporting of deaths of any young person in a Continuing Care or Aftercare placement 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.
Robust structures are currently in place regarding the investigation of deaths or serious incidents involving children in custody. The responsibility for the investigation of deaths in custody is a matter for the Lord Advocate. In the majority of cases, the Lord Advocate has discretion as to whether a fatal accident inquiry is needed. The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 introduced mandatory inquiries for new categories of deaths, including the deaths of children in secure accommodation and deaths under police arrest.
The Lord Advocate may refer a death in police custody to the independent Police Investigations and Review Commissioner (PIRC) to conduct an independent investigation. In addition to this, the Commissioner may also investigate a ‘serious incident’ referred by the Chief Constable or the Scottish Police Authority when a person has died or sustained serious injury following police contact, either directly or indirectly, which includes when that person was detained or kept in custody by a person serving with the police. The PIRC can make recommendations to Police Scotland following such investigations.
The Mental Health (Scotland) Act 2015 requires Ministers to undertake a review of the arrangements for investigating deaths of patients in hospital for treatment of mental disorder (the definition of mental disorder covers mental illness, learning disability, and personality disorder). Over the last year, an expert group of stakeholders has been considering these arrangements and gathering relevant evidence in relation to how deaths are investigated. The review covers patients of all ages. The final report of this review is due to be published and laid before the Scottish Parliament by 24 December this year.
2.14. Child Death Reviews System
Part of the Scottish Government’s efforts to help deliver the best possible healthcare for children is to give new impetus to preventing avoidable deaths. For this reason, the Scottish Government is currently creating a system to ensure that any such deaths are properly reviewed. This will apply to all live born children who die under the age of 18, and care leavers in receipt of aftercare or continuing care at the time of their death, up to the date of their 26th birthday. A core component of this work is to use existing learning and a wide range of evidence to develop and implement policies that will prevent harm and child deaths. The CRWIA process will ensure the rights and wellbeing of children and young people are considered as the system develops.
The Scottish Government is working with a wide range of stakeholders to develop this work and establish pilot projects. It has also been engaging with colleagues in England and Wales to learn from their systems.
Hearing the Views of Children and Young People
The UNCRC has at its heart the expectation that children and young people themselves will have the opportunity and support to influence decisions that affect them, taking account of their developing capacity. The Scottish Government is developing a more coordinated, systematic and sustainable approach to engaging with children and young people at national and local levels. In doing so, the Scottish Government is working closely with key partners to ensure that the views of specific groups of children and young people (including disabled, LGBTI+, black and ethnic minority), as well as younger children, are heard. Ministers have also taken steps to further support the organisations who promote and facilitate engagement with children and young people and to encourage relevant public bodies and professionals who work with children and young people to seek and take account of their views.
“I think children’s voice matters because they have ideas that can change the world.”
Member of the Children’s Parliament, Rights Event, 2018
2.15 Participation of Children and Young People at National Level
Annual Meeting of Cabinet Members with Children and Young People
The annual meeting of Cabinet members and children and young people aims 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 first meeting of Cabinet members with children from the Children’s Parliament and young people from the Scottish Youth Parliament (SYP) took place on 28 February 2017 at Bute House, Edinburgh, with the second taking place on 6 March 2018 at St Andrew’s House, Edinburgh. Issues raised by children and young people at both of these meetings were wide ranging including those relating to school and teachers, bullying, mental health, incorporation of the UNCRC, Human Rights Defenders, and the future of Scotland’s relationship with Europe. At the end of each of the meetings, children, young people and Cabinet members collectively agreed actions for the year ahead. These actions are being taken forward by Scottish Government policy teams.
The Scottish Government published a report and a children and young people’s summary showing progress on the actions from the first meeting in February 2017. This included a commitment that the Cabinet would meet with children and young people annually. Actions agreed at the second meeting were published in May 2018.
FMQT with Children and Young People
As part of the Year of Young People, the Scottish Government arranged, in partnership with Youthlink Scotland and Children in Scotland, two dedicated First Minister’s Question Time sessions for children and young people in 2018-19. The first session, FMQT: Next Generation, took place in September 2018 and was attended by over 100 children and young people representing a diverse range of backgrounds. The second event will be held in spring 2019. A key aim of these events is to empower children and young people to express their views and opinions directly to Scotland’s First Minister.
These events contribute to the wider package of engagement events, including the Children and Young People Cabinet Events, providing a number of opportunities for children and young people to engage with Scottish Government Ministers.
Year of Young People 2018 – Participation Theme
The Year of Young People (YoYP), aims to inspire Scotland through its young people, celebrating their achievements, valuing their contribution to communities and creating new opportunities for them to shine locally, nationally and globally. The participation theme of the YoYP has the ambition that young people should significantly influence public services and decisions which affect their lives.
The Scottish Government has worked with key stakeholders, including children and young people, in the planning, implementation and legacy of the participation theme. Children and young people were also involved in co-designing the Year of Young People, supported by Children in Scotland, the Scottish Youth Parliament and Young Scot. They continue to be involved in the planning and delivery of the YoYP through their representation on the co-production delivery group.
2.16 Strategic Approach to Engaging with Children and Young People
As set out in the Action Plan Progressing the Human Rights of Children in Scotland: An Action Plan 2018-2021, the Scottish Government intends to develop a strategic approach to participation. This will: raise awareness of the importance of the child’s voice in all matters that might affect them and the benefits of including that voice: help to increase the capacity of both the Scottish Government and stakeholders for planned and strategic engagement with children and young people in policy and decision making; and, importantly, help to make engagement with children and young people the norm in policy development.
In addition, the Scottish Government is currently developing a participation framework in the context of the Participation Commitment in the Scottish Open Government Partnership Action Plan and is currently considering how this should reflect the needs of children and young people.
As part of the Scottish Government’s approach to working more strategically in engaging with children and young people at national and local levels, a workshop involving key participation stakeholders was organised in November 2017 for officials involved in the Scottish Government’s current legislative programme for 2017-18, and other officials. The session aimed to promote good practice in engaging with children and young people in the development of policy and legislation.
Research on Participation
In 2017, the Scottish Government commissioned Children in Scotland to carry out research on the impact of children and young people’s participation on policy making at national and local levels. This research focused on six qualitative case studies, illustrating a range of participation and engagement across Scotland. The conclusions and recommendations from the final report, published in February 2018, will help to support the engagement of children and young people in future policy making.
A pilot exploring children and young people’s participation in the planning process, at local level, was undertaken by Edinburgh Children’s Partnership in spring 2017, with funding from the Scottish Government and support from the Children and Young People’s Commissioner Scotland, the Scottish Human Rights Commission and the Children’s Parliament. Participants (children, young people and planners) were provided with the opportunity to share their views on how children and young people should be involved in the local planning process. The report, which was published in November 2017, informs the ongoing implementation of the Part 3 guidance on children’s services planning, published in December 2016 (section 1.4 refers).
2.17 Support for SYP, Children’s Parliament and Young Scot
The Scottish Government sponsors the SYP and the Children’s Parliament through the CYPFEI and ALEC Fund and provides core funding (shared with Health portfolio) to Young Scot. The Scottish Government works closely with these stakeholders to ensure that children and young people can contribute to and participate in decisions that affect them. Recent examples include children and young people’s engagement during consultations on the Minimum Age of Criminal Responsibility, Education Governance and Stop and Search. In addition, during 2017, the views of children and young people were heard during the development of key policies, including the Child Poverty Bill, STEM strategy, and the Hate Crime review, amongst others. Young Scot, Children in Scotland and the Scottish Youth Parliament have developed a co-design blueprint for organisations to use during the YoYP. The blueprint sets out the benefits of co-design and ways that young people can be involved in the planning of the YoYP, ensuring that children and young people are involved in the process.
2.18 Professionals Working with Individual Children and Young People
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 and the need to involve them as partners in decision making and planning processes. 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 sought by services/practitioners working with them, and should inform the service or support they receive. The Scottish Government will produce an integrated suite of GIRFEC supporting materials for use to guide and support the practice of all those working with children and young people and their families in Scotland.
The need for all practitioners to listen to and consider the views of children and young people is encouraged in the Common Core of Skills, Knowledge & Understanding and Values for the ‘Children’s Workforce’ in Scotland (2012). The roll-out of the Common Core to professionals who work directly with children and young people is discussed at section 1.12.
It is a fundamental principle of Scottish mental health legislation that the welfare of any child must be safeguarded by professionals discharging functions under the legislation (section 2 of the Mental Health (Care and Treatment) (Scotland) Act 2003, “the 2003 Act”). Other principles apply, such as the importance of acting in a manner which involves the minimum restriction of the freedom of the child. The Code of Practice for professionals made under the 2003 Act provides guidance on applying the principles of the 2003 Act to children and young people, together with specific guidance on the care and treatment of this group. The treatment provisions and safeguards under the 2003 Act apply equally to child patients. The principles of consent apply to children suffering from mental disorder who are detained under the 2003 Act. The Code of Practice provides that the medical practitioner attending the child must consider whether they are capable of understanding the nature and possible consequences of the procedure or treatment. If the child is considered capable, the practitioner must seek the consent of the child rather than of the parent.
The Code of Practice for the 2003 Act is currently being updated following changes made by the Mental Health (Scotland) Act 2015. This will be undertaken with children’s rights and wellbeing in mind.
The Getting it Right for Looked After Children and Young People Strategy (2015), which reflects the ongoing collaborative work between the Scottish Government, local authorities, professionals, carers, families and children and young people, sets out the Government’s priorities to improve the lives of looked after children and young people. A consistent message throughout the Strategy is the need for partners to consider how they hear the views of all children and young people, particularly those who may find it harder to have their views heard, such as younger children and disabled children and young people. In addition, “Intandem”, Scotland’s mentoring programme for young people looked after at home, was launched in November 2016. The programme is delivered for the Scottish Government by Inspiring Scotland in 13 charities across 20 local authority areas. Intandem improves life chances by providing mentors for young people aged 8-14 years who are looked after by their local authority and living at home. The aim is to help children build a consistent, trusting relationship with a positive adult role-model.
The Scottish Government has also taken steps to support the participation of young refugees. The second New Scots refugee integration strategy was published in January 2018, following an engagement process which included 44 events attended by children and/or young people. The strategy recognises that children and young people may require additional support to access the services they need and opportunities to participate in society, due to traumatic experiences in their formative years or having missed significant amounts of education.
The Scottish Government is also committed to enhancing the voice of children and young people within the justice system. For children and young people involved in family law, the Family Law Committee of the Scottish Civil Justice Council, which advises on civil court rules and procedures, is carrying out work on the voice of the child, following a policy paper prepared by the Scottish Government. In particular, it is looking at Form F9, used by the courts to obtain a child’s views in cases such as contact, residence and parental responsibilities and rights. The current review of Part 1 of the Children (Scotland) Act 1995 is considering what more can be done to obtain the voice of the child on contact matters and this will be reflected in the forthcoming Family Law Bill.
The participation of children and young people in the Children’s Hearings System is discussed at section 8.3.
2.19 Participation in Schools
Curriculum for Excellence provides a positive context for pupil participation. The OECD Review of Scottish education, published in 2015 reported on “... evidence of widespread engagement of young Scots in their learning. For a curriculum that puts learning at the centre, this is fundamental”. Within the reporting period, the Scottish Government has taken forward a range of measures which aim to support the participation of children and young people in their learning. For example, during 2016-17, the Scottish Government conducted significant consultation activity with young people’s organisations to consider education governance and young people’s ‘voice’ within schools. This included targeted consultation activity with young people via an ‘Excite-ed’ consultation exercise.
The Scottish Government supports a range of methods to ensure that young people’s perspectives can influence national education policy. This includes Young Ambassadors for Inclusion as well as a Scottish Learner Panel, established in 2018 in order to support the ongoing input of pupil perspectives in the development of education policy.
In June 2018 the Scottish Government and local government published a Joint Agreement setting out a shared commitment to empowering schools. This agreement emphasises the role of headteachers in ensuring that children and young people participate meaningfully in their own learning and in decision-making
The Scottish Government provided funding to Children in Scotland to deliver their ‘Leaders of Learning’ project from 2014-16, which demonstrated the benefits of a collaborative approach to promote and enhance the voice of young people in various education matters. This project and other similar examples of good practice has informed the development of policy and good practice principles.
In April 2018, Education Scotland launched two new resources designed to empower children throughout their learning experience. Produced in collaboration with schools, local authorities and organisations that represent children and young people across Scotland, the How Good is Our School? resource aims to support schools to engage children and young people in self-evaluation and school improvement in ways that enhance learning. Alongside this, the Learner Participation in Education Settings Guidance, which was developed in partnership with the University of Stirling and engagement with key stakeholders, sets out how to encourage and embed participation throughout schools and early-years settings. The professional learning resource, Recognising and Realising Children’s Rights has also been updated to incorporate more focus on pupil participation.
In addition, within Education Scotland’s school inspection activity, there has been an increasing focus on pupil voice and participation via pre-inspection pupil questionnaires and pupil focus groups throughout inspections. The inspection framework has also included reporting on evidence of pupil voice and participation within Inspection reports. Education Scotland values the contribution young people can make to its inspection programme and is in the process of developing a young inspectors programme.
Schools and local authorities have continued to evolve and improve their approach to pupil participation, developing new and innovative approaches beyond the relatively narrow format of Pupil Councils (for instance, through the development of Pupil Parliaments, learner voice groups etc.). Some local authorities have also invited young people to join their Education Committees. The Education theme within Scotland’s 2018 Year of Young People, which focuses on enhancing the influence of young people in relation to their education and learning, will also play a key role in taking forward the participation of children and young people in schools. In addition, a new National Pupil Participation Award was introduced from 2018 as part of the Scottish Education Awards, highlighting and promoting best practice across schools.
2.20 Access to Justice
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 CYP Act. Throughout 2016-18, the body has focused on developing its understanding of the needs of looked after children and care leavers, to help contribute to the outcome of enabling the upholding of the rights of looked after children and care leavers.
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 (February 2018), addressed the subject of children’s legal aid following consultation with, among others, Scottish Children’s Reporter Administration, CLAN Childlaw, Scottish Women’s Aid, Families Need Fathers and the Scottish Mediation Network. The report sets out a 10 year vision for legal aid in Scotland, and there will be a public consultation on proposed reforms during 2019.
Support for Other Legal Advice Services
The Scottish Government has continued to support Clan Childlaw who provide legal and advocacy services for children and young people. Funding is also provided to the Scottish Child Law Centre who provide free legal information and advice to children, young people, their families and carers.
2.21 Right to Vote
The Scottish Government also believes that young people should have the opportunity to participate in the democratic process. The Scottish Elections (Reduction of Voting Age) Act 2015 (2015 Act) lowered the voting age for elections to the Scottish Parliament and local government in Scotland – enabling 16 and 17 year olds to vote in the Scottish Parliamentary elections in May 2016 and the Scottish Local Government elections in May 2017.
The Scottish Government is mindful of the need for young people to be supported in exercising their right to vote with appropriate education and awareness raising. The Curriculum for Excellence provides the framework for teaching to support the development of political literacy. A tool-kit has been developed in partnership between Education Scotland and the Electoral Commission for use in schools. Over 80% of local authority schools use the toolkit and promote registration.
The 2015 Act placed a specific duty on local authorities to promote awareness of registration options among looked after children, and to assist them in making such applications. Funding is provided to local authorities and the Electoral Commission to make children and young people aware of their right to vote at 16.
In their report on the May 2016 Scottish Parliament Election, the Electoral Commission reported:
“This was, of course, the first national election at which 16 and 17 year olds were entitled to vote. Approximately 80,000 of them registered to vote at the election and this age group had high levels of awareness and knowledge about the registration process.” 
2.22 Representation of Young People on Public Boards
The Scottish Government has appointed two young people (under 27 years) to the Government’s People, Performance, Place and Economy Boards for a year – each will also receive a Director General mentor and induction support to undertake their roles effectively. The Youth Takeover of the Scottish Government’s Executive Team took place in December 2018. The Scottish Government worked with the Scottish Youth Parliament to co-produce the session on Adverse Childhood Experiences, which was led by young people.
The Scottish Government has also involved young people directly in some aspects of public appointment rounds, including for the Scottish Children’s Reporter Administration and Children’s Hearings Scotland. A young appointee also attended as a speaker at the last Come on Board outreach event, which took place on 10 September 2018 in Dundee.
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