UNCRC Implementation Embedding in Public Services Group minutes: 20 May 2024

Attendees and apologies

• Lyndsey Saki, Scottish Government (Chair)  (LS )
• Luiza Leite, Scottish Government (minutes) ( LL2)
• Abbie Montgomery-Fox, Children’s Hearing Scotland (AMF)
• Aqeel Ahmed, Scottish Government (AA)
• Darren Little, Dumfries and Galloway Council (DL)
• Dragan Nastic, Unicef UK (DN)
• Eloise Di Gianni, Observatory for Children’s Human Rights Scotland (EDG)
• Fatoumata Drammeh, Unicef UK (FD)
• Felicia Szloboda, The Improvement Service (FS)
• Gerry McMurtrie, Unicef UK (GM)
• Gita Sharkey, Scottish Government (GS)
• Liz Levy, Scottish Government (LL)
• Megan Williams, CCPS (MW)
• Morag Macpherson, Unicef (MM)
• Nick Fellows, COSLA (NF)
• Nick Targontsidis, NHS Education Scotland (NES) (NT)
• Rebecca Spillane, The Improvement Service (RS)
• Steve Black, Right There (SB)

Apologies

• Alison Sutherland, Social Work Scotland
• Juliet Harris, Together Scotland
• Maria Doyle, Together Scotland  
• Laura Conachan, Children’s Hearings Scotland
• Laura Crossan, Police Scotland 
   

Items and actions

1. Welcome and Introductions

LS welcomed first time attendees, Nick Targontsidis, NHS Education Scotland (NES); Nick Fellows, Cosla; Morag Macpherson and Gerry McMurtrie, Unicef; Megan Williams, CCPS; and Steve Black, Right There. Apologies received were also noted.

2. Minutes and actions from previous meeting

Minutes from the previous meeting of 19 February are still to be circulated with members and have not yet been made available on the group page. LS noted this will be actioned shortly after the meeting.

Action: LL2 to circulate the minutes from the February meeting for members to comment.

There was also an action at the last meeting for LS to invite Carola Eyber to talk about child rights indicators. Carola was the team leader for the Rights Reporting and Monitoring Team in the Children’s Rights Unit but has recently moved posts, therefore we haven’t been able to include that item. The item will be brought back to a future meeting once the vacant post has been filled. An analyst has recently started working with this team to look at indicators on a part time basis.

3. Update on UNCRC Act

The UNCRC Act, including the section 6 compatibility duty on public authorities and section 18 reporting duty on listed authorities will fully commence on 16 July 2024. 

The reporting period under the UNCRC Act will start when the duty is commenced on 16 July 2024, with first reports due as soon as practicable after 31 March 2026. The UNCRC Act will repeal the child rights reporting duty in the Children and Young People (Scotland) 2014 Act (CYP 2014 Act). Therefore, the first reporting period is between 16 July 2024 and 31 March 2026. However, given the last reporting period under the CYP 2014 Act ended on the 31 March 2023, it’s possible that listed authorities may choose to report from 1 April 2023 to 31 March 2026.  

Once commenced, the UNCRC Act will enhance the level of reporting required by public authorities. Reporting requirements are set out in Part 3, Section 18 and will include the following: 

• A new duty to report on actions taken to ensure compatibility with the UNCRC requirements, as set out in the Act (how the listed authority is meeting the section 6 duty), and planned action to ensure ongoing compliance with the s 6 duty 
• Action taken and planned to give further or better effect to children’s rights 
• Production of a child friendly version of the report  
• A copy of the report must be presented to Scottish Ministers following publication  

For now the reporting duties for public authorities remain as stated in the 2014 Act until they are repealed by the UNCRC Act, when commenced on 16 July 2024. Public authorities subject to the reporting duties in the 2014 Act should have published a report covering the period 1 April 2020 to 31 March 2023, as soon as practicable from the 31 of March 2023, in accordance with that Act. Non-statutory guidance is available on the Scottish Government web site to support listed bodies to meet their reporting duties under the 2014 Act. 

Update on UNCRC Act - Amendments

LL outlined 4 amendments to the UNCRC Act - one that has already been made via stage 3 of the Children’s (Care and Justice) Bill on 25 April and three that we plan to make via the Human Rights Bill.

The first two amendments that we are planning to make via the Human Rights Bill are to the duties on Scottish Ministers, and the third is directly relevant to duties on wider public authorities.

The first proposed change to the duties on Ministers is to limit the requirement to undertake CRWIAs and to make statements of compatibility in respects of Scottish Statutory Instruments so that this applies only when the instrument is of relevance to children's rights and wellbeing.

We think that producing CRWIAs and publishing statements of compatibility for all SSIs, even if they have no relevance or impact on children’s rights would not be proportionate or necessary.

LL confirmed that we're not, at this stage, proposing to make any change to the CRWIA requirements in relation to Bills.

The second proposed change to the duties on Ministers is to reduce the frequency with which Scottish Ministers need to review and consider new actions for the Children’s Rights Scheme.

LL explained we propose amending the scheme review and reporting requirement, and the obligation to set new actions, from annual to at least once every three years. Alongside this we'd create a new requirement to produce annual progress reports - doing that would maintain the intention to hold Ministers to account for progress on a sufficiently frequent basis.

The amendment that is of more direct relevance to wider public authorities is about the application of the compatibility duty.

The intention is to introduce an exemption to this duty to mirror one that's included in the Human Rights Act 1998. That HRA exemption states that the compatibility duty does not apply when a public authority is delivering its functions under provisions in other primary legislation that either: prevents them from acting compatibly or can't be read in a compatible way. No exemption of this sort is currently included in the UNCRC Act in respect of Acts of the Scottish Parliament and so, as it currently stands, public authorities could potentially be left having to decide whether to act in a way that puts them in breach of the compatibility duty in the UNCRC Act or to act in a way that puts them in breach of another statutory duty to deliver a particular function or service. Legal coherence is obviously an essential requirement and so this leaves us in quite an unsatisfactory position.

There are also potential practical implications for the support and protection of children if for example a public authority stopped delivering essential functions because they believed that they could not do that in a UNCRC compliant way.

We have had some feedback on this proposed amendment from the Children's Commissioner. In principle they have no strong objection to this amendment but have said they would support this it only if it came with a duty on public bodies to report to Scottish Government and the Commissioner's Office any occasion where they became aware of a requirement in law to act in a way that is not compliant with the UNCRC Act.

Our preference would be to regularly prompt and encourage rather than legally require public authorities to inform us if this situation arises. This is because we do not think a legal requirement to inform us would be meaningful or fair. It would be almost impossible to enforce a new legal duty of this nature because we'd have little or no way of demonstrating whether or not a public authority was aware that the legislation under which they were delivering their duties may require them to act in a way that was incompatible with the UNCRC requirements. Also, the effectiveness of a requirement of this nature, in identifying where legislation might need to be changed to remove a potential UNCRC Act incompatibility, would depend on the extent to which public authorities are able to maintain an awareness of how the courts are interpreting compatibility issues and questions that are brought before them. We also note that no similar requirement is attached to the exemption in the Human Rights Act.

LL welcomed questions and feedback from members.

NT asked more about the relevance test and when it will become available. LL agreed to check in with colleagues to establish what information can be shared at this stage. 

DN highlighted that Unicef are supportive of screening approaches in the CRWIA process and asked that the proposed approach be shared with Unicef.

4. Encouraging public authorities to highlight any legal barriers to delivering the compatibility duty

LL confirmed that were the Scottish Government to become aware of legislation in a devolved area that prevents a public authority from acting compatibly with the UNCRC requirements in the UNCRC Act, the intention will always be to remedy that through legislative amendments, but it would be helpful if public authorities make us aware of any potential incompatibilities they encounter. LL explained that we don’t think this should be a legal requirement on public authorities, just an approach. Within the Unit, we would seek to keep our legislation under review and seek to rectify any issues.

LL welcomed thoughts and comments from members.

DL agreed that a legal requirement may not be possible. Local authorities would hope that SOLAR would provide an approach to this. LL confirmed we’ll keep in touch with SOLAR so they’re kept informed of our considerations.

DN agrees that connecting with the Human Rights Act is logical, and noted it would be good to keep consistency on all implementation and not introduce different layers into different levels of requirement. Further, it would also be good if a stakeholder forum is set up (maybe something similar to this working group) so there is a mechanism for public authorities and duty bearers to share the information with SG rather than reaching out on an individual basis. It would also be useful for other public authorities to hear about the cases and discussions in the forum. LL explained that we would want to discuss this internally, as this forum’s purpose would need to be about sharing information, without going into the realm of SG being seen as providing legal advice. RS agrees with DNs suggestion and would support this.

NT agrees the best approach is to report any incompatibilities as they come up. It would be helpful to connect with SOLAR and other legal teams. Further, it would be helpful if the SG could provide a regular update of known issues. LL agreed to consider if this could be incorporated into the programme update, flagging up court decisions and signposting to where colleagues may want to go for more info.

5. Update on support to public authorities

LS updated members on the upcoming support that will be made available to public authorities.

Statutory guidance  

The consultation on the statutory guidance is now closed. We have commissioned contractors to analyse and produce a report for us on the responses, including responses from children and young people who were supported by organisations to respond. We will have a very short time period between receiving the analysis report to then update the statutory guidance in advance of commencement. Our intention is to publish ahead of commencement, if possible. 

Children’s Rights Skills and Knowledge Framework 

A Children’s Rights Skills and Knowledge Framework is being developed to support public authorities to embed children’s rights in public services. The Framework and an accompanying training plan should support public authorities to experience the value of using a children’s human rights approach. The Framework should also support them to understand how this contributes to other local and national strategic priorities, aiding a transformation in service design and delivery.  

The project team has worked closely with stakeholders to support development of the Framework. This included public authorities, and two groups of co-production partners: a Children and Families Panel, and a Professionals Panel.  

This has been a complex project involving a significant number of interlinked outputs aimed at supporting the public authority workforce. Therefore, it has been delayed. 

The contract was due to end on the 31st of March, with an optional extension of up to 6 months, should the products not fully meet the objectives, or not be at a publishable standard. We invoked this extension, as we had concerns that additional time was required for final outputs to be signed off. We continue to work closely with project partners and have dedicated additional time to this project, to ensure that the outputs will meet the needs of public authority workforces across Scotland. 

In addition, we are exploring options for hosting and ongoing support of the digital framework. The framework will be made available this summer, there may be a soft launch followed by a full digital offering. 

NHS Education for Scotland

We are funding NHS Education for Scotland to support health boards with their understanding of a child human rights approach and the UNCRC Act duties. LS passed over to NT for a brief update.

NT updated members on the current funding to NHS Education Scotland to raise UNCRC Act awareness to services that typically sit outside of children’s services. This work is currently in the awareness and “buy in” phase. NES have conducted 8 awareness sessions in the Health & Social Care sector, around 1800 people attended in total.

A network/forum was created to combine all UNCRC leads who now meet monthly to discuss progress. NES have been undertaking a number of tasks, including providing briefing to all Health and Social Care Boards, connecting with external agencies that are connected to health services (universities, etc) and pulling together roundtables on specific discussions. Child rights budgeting and mental health are two of the upcoming roundtables. NES have also been hosting a number of webinars on participation and seldom heard voices.

The ‘Introduction to Children’s Rights’ e-learning module is now live on the NHS Education Scotland TURAS website.

It is free to register and the course can be found by putting ‘children’s rights’ in the search bar.

NT explained that the goal is to ensure the Boards are informed and feel supported to carry this on long term. So far, Boards have been supportive and receptive when discussing the complexities of this work

Improvement Service

LS confirmed that the SG are continuing to fund the Improvement Service work with Local Authorities (LAs), and passed over to RS to update on the LA Peer Leads Network:

RS explained that the Improvement Service is funded to work with local authorities to better understand the UNCRC Act. RS offered any members the opportunity to catch up after the meeting if they wish to reach out on any issues.

RS further explained how the Improvement Service goes into more in depth work beyond general UNCRC Act awareness – for example Shetland Council had a big UNCRC event including the Commissioner, Together, etc. IS has also delivered face to face sessions in Aberdeenshire Council in advance of them starting their self-evaluation work.

The Peer Leads Network is continuing to meet, colleagues have a variety of levels of knowledge of the UNCRC Act. There’s a clear desire and demand for guidance. There is an upcoming session on advocacy. A few sessions have taken place with Elected Members with more sessions coming up later this year.

RS confirmed the Improvement Service are hoping to work with 5-6 local authorities to test and try different approaches and techniques to child rights budgeting. RS agreed to share the findings of this as they progress.

Monitoring and evaluation of children’s rights and performance indicators has been a huge piece of work. The e-learning module has been welcomed by lots of LAs and they’re adding it to their own learning platforms. RS shared the UNCRC Resources link with colleagues.

Engagement with listed authorities

AA updated members on work with other listed authorities and the child rights regulation and improvement working group.

AA highlighted there’s work ongoing with 14 listed authorities who are not supported by NES or IS. The Embedding team have now met with all listed authorities who opted in for SG support. Some listed authorities were further ahead than others. We’re looking to get a baseline awareness to see where listed authorities are with understanding children’s rights. A survey has been issued and the following key themes emerged: work with the private voluntary and independent (PVI) sector, ensuring there are mechanisms in place to ensure children and young people are involved in decision making, child friendly reporting, funding to external partners (how do we track and measure), support from NES will want to be replicated to listed authorities – learning resources can be adapted so we’re not reinventing the wheel.

Child Rights Regulation & Improvement Action Group

The Regulation and Improvement Action Group (RIAG) are due to meet on Tuesday 21 May. There is now a workstream document which sets out the group’s key areas of focus – AA is happy to share this with the Embedding Group if members would find it useful.

The RIAG is looking at working with children and young people, particularly where some regulators may not have engaged with them before. At the upcoming meeting, the Care Inspectorate will be talking about how they involve children and young people in their inspection process – AA agreed to share that with the group as an example of good practice.

DL noted that in the absence of a Skills and Knowledge Framework, some colleagues are taking forward their own approach which risks inconsistency. DL noted there’s not a lot of reference to Integration Joint Boards (IJBs) and how they fit into the process, and asked whether they’re involved in the peer networks. DL also asked about Community Planning Partnerships (CPPs) and whether they’re involved in conversations. LS confirmed IJBs are on our mind, and the team presented on the UNCRC Act at a CPP meeting.

NT and RS have been talking about holding a session for LAs to start talking about what that partnership work looks like, what the barriers are, etc. NT confirmed these discussions are ongoing and that he’s discussing with RS to take this work forward. RS confirmed a number of LAs are working in partnership and will be able to share learning from these approaches soon.

6. Discussion on capability building

DN noted that Unicef would be happy to collaborate on this work. There is already so much guidance out that it’s now a matter of highlighting where everything is.

MW asked about support for those organisations who may not identify that their work impacts on children and young people, for example in the private sector. LS explained that as direct engagement is being done with listed authorities, this will then cascade to PVI. AA noted there’s been also some engagement with organisations like Corra.

DL asked about the reporting requirements and whether there will be more support for joint reporting. DL explained that feedback on reports would also be helpful to address improvement going forward. NT asked if there will be any guidance on what that governance process looks like and whether Ministers would take action where reports are not found to be up to standard.

LS explained there isn’t any provision in the Act that covers that, but agrees feedback on reports would be helpful. Feedback may also come from anyone who reads the reports, not solely the Scottish Government.

RS agrees it would be helpful for more general public awareness – i.e. from adults who should be advocates. Local authorities are keen to promote children’s rights but want consistent resources and capacity to do this across the country. LS noted Paul Gorman from the Empowered Team could be invited to a future meeting to address this.

NF asked whether there is ongoing work to join this all up. AA agreed this is useful, as there’s a national leadership forum on children and families.

7. AOB

The next set of meetings will be scheduled soon.