One hundred years ago, Eglantyne Jebb, the British social reformer and founder of Save the Children, led the drafting of the first International Declaration on the Rights of the Child[1]. This declaration expressed the international recognition that hungry children should be fed; that sick children should receive healthcare; and that, in times of distress, children should be the first to receive relief. The declaration was made at a time of global uncertainty, with conflict and economic instability deeply affecting children. In response, governments recognised that protecting children’s rights had to be a priority.

A century later, on 16 July 2024, Scotland took a major step forward as the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 came into force[2]. The Act fully and directly incorporates the United Nations Convention on the Rights of the Child into domestic Scots law, in so far as is competent for a devolved jurisdiction.

The Act provides important protection for the human rights of children and young people in Scotland. It creates new systems to build a culture where children’s rights are at the heart of decision-making. It also provides clear accountability for duty bearers – all those who have the responsibility to respect, protect and fulfil children’s rights.

There are a number of elements of the Act that will apply to all public functions within the legislative competence of the Scottish Parliament[3], including certain functions which are ‘contracted out’ to other providers. These elements include:

• Public authorities will not be allowed to act in a way that is incompatible with the United Nations Convention on the Rights of the Child.
• Children and their representatives will have the power to go to court to directly enforce their rights under the Convention.
• If new or existing legislation from the Scottish Parliament breaches the Convention, the courts will have the power to issue strike-down declarators (which stop the law having effect) or incompatibility declarators (which make the breach clear but don’t impact its effect).
• Wherever possible, existing legislation will have to be read in a way that is compatible with the Convention.
• The Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission will have enhanced powers to take court action to protect children’s rights.
• The Scottish Government will have to publish a Children’s Rights Scheme to show how it is meeting the requirements of the Convention and explain its plans to progress children’s rights.
• There are regular reporting and review requirements for the Scottish Government and public bodies to monitor implementation.

The importance of incorporating the Convention on the Rights of the Child

Over the last hundred years, a wide array of international laws has set out the human rights of children and young people, but the United Nations Convention on the Rights of the Child is special. It is the first legally binding international instrument to incorporate the full range of civil, cultural, economic, political and social rights, as well as aspects of humanitarian law and environmental rights, for everyone up to the age of 18.

Thanks to the growing focus on education on children’s human rights, there is a developing awareness of children’s rights among children in Scotland. As part the thirtieth anniversary of the Convention on the Rights of the Child, the Children and Young People’s Commissioner Scotland asked children to describe human rights in just seven words.

They came up with seven-word stories like:

“Rights are help before you even ask.”

– explaining the positive obligation that rights place on States to provide the things children need

“My rights are my armour to me.” 

– demonstrating the protective element of rights

“My rights give me power, freedom, courage.” 

– highlighting that children can be empowered by rights, and recognising their right to participate in decision-making

Those three Ps – provision, protection, and participation – along with the obligation to take a preventative approach, capture the intentions of the drafters of the Convention on the Rights of the Child.

Another child said:

“We have rights. Dinosaurs didn’t. They died.”[4]

That is not to suggest a causal link between the lack of a strong rights framework for dinosaurs and their extinction; rather, it implies that building a strong children’s rights culture and preventative approach might be essential to our future.

The Convention on the Rights of the Child was adopted by the United Nations General Assembly in 1989, and it became the most rapidly and widely ratified international human rights treaty in history. It changed the way children are viewed and treated in international law. The Convention breathed life into the Universal Declaration of Human Rights (1948), which proclaimed that childhood is entitled to special care and assistance. It proclaims children’s status as human beings with a distinct set of rights, not just as passive objects of care and charity.

The rights contained in the 54 articles of the Convention on the Rights of the Child are universal, interdependent and interrelated. The articles cover all aspects of a child’s life and explain how those in power must work together to make sure all children and young people can enjoy all their rights.

The Convention requires States to adopt comprehensive legal measures to ensure that children’s rights are protected, and the United Nations Committee on the Rights of the Child has made clear that “for rights to have meaning effective remedies must be available to redress violations”[5].

The right to an ‘effective remedy’ applies to all the rights in the Convention, and no distinction should be made among civil, cultural, economic, political, and social rights in terms of justiciability. An effective remedy means resolving the problem or providing restitution in a sufficient, accessible and reasonably prompt way.

The UK ratified the Convention on the Rights of the Child in 1991, so it was already part of the international obligations, which were devolved to Scotland by the Scotland Act 1998[6]. However, because of the dualist system, which requires law to be passed at a domestic level to have a direct effect, these obligations were not directly enforceable in court.

The Scotland Act 1998 provides that foreign affairs are reserved to the UK Parliament, with the exceptions of observing and implementing international obligations and assisting UK ministers with implementing international obligations. Therefore, even though the obligations of the Convention on the Rights of the Child in relation to reserved matters are outside legislative competence, the obligations in relation to devolved matters are transferred to the Scottish ministers. In practice, this means that the Scottish Government has to implement the Convention in relation to devolved responsibilities and ensure that children’s rights are respected, protected and fulfilled in Scotland’s law, policy and practice.

In ratifying the Convention on the Rights of the Child, State Parties take on an obligation in international law to implement its provisions. General Comment No. 5 states that “[e]nsuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforced is fundamental”^[7]. The Committee on the Rights of the Child is clear that “subsidiary governments legislate within the framework of the UNCRC”^[8].

Some of the rights in the Convention on the Rights of the Child correlate with rights in the European Convention on Human Rights[9], which was brought into Scottish law through the Human Rights Act 1998[10] and the Scotland Act 1998. These are primarily civil and political rights, and courts in Scotland have significant experience in ensuring protection from torture, the right to a fair hearing, respect for private and family life, and the right to expression and association, among others. Scotland also benefits from UK-wide equality laws that protect children from discrimination.

Some of the economic, social and cultural rights in the Convention on the Rights of the Child were already part of Scottish law through specific legislation on issues such as families, justice, education, social work, housing, health and social welfare. However, there was no holistic approach to bring those rights together in a way that would allow an understanding of their interrelated nature.

The journey to incorporation

The United Nations Committee on the Rights of the Child has highlighted the importance of incorporation in ensuring that children’s rights are respected, protected and fulfilled at a local level. This incorporation, as emphasised by the Committee, requires that the provisions of the Convention on the Rights of the Child can be directly invoked before the courts and applied by national authorities[11]. The Committee consistently called on the UK and its devolved jurisdictions (once these were established) to ensure that the provisions and principles of the Convention are directly applicable under domestic law^[12].

As mentioned earlier, the Scotland Act 1998 made clear that the implementation of human rights obligations was devolved, with the UK retaining enforcement powers to ensure compliance[13]. When Scotland regained its own Parliament in 1999, one of the early calls from the country’s exceptionally strong civil society[14] was the creation of a Children’s Commissioner.

Reflecting on independence as a fundamental principle for Independent Children’s Rights Institutions as set out in United Nations standards[15], the Scottish Parliament took the extraordinary step of setting up a special cross-party committee of the Parliament to develop the legislation[16]. This is one of the only times that a committee of the Scottish Parliament has introduced legislation. It was not the outcome of a government initiative or the proposal of a political party – rather, it was driven by the legislature itself. This made an important point about the role of the Commissioner, while underlining the critical role of the Parliament in acting as a guarantor for children’s human rights.

On 26 March 2003, the Scottish Parliament unanimously agreed to “create a friend – a powerful friend – for all of Scotland’s children and young people”[17]; that is, the Children and Young People’s Commissioner. In the final debate, the Convener of the Committee Karen Gillon MSP said: “This gives us the chance to make a real difference by creating an independent, high-profile and influential post. […] the most significant legacy that we, as members of parliament, can leave our children and our children’s children.”[18]

The creation of the Children and Young People’s Commissioner has been cited as a key turning point in the political dimension of children’s rights in that it created a clear, legally enshrined entry point for children’s voices into political decision-making in Scotland[19]. That legal status, alongside the Commissioner’s close working relationship with civil society and with children themselves has been a hallmark of Scotland’s post-devolution progress on children’s rights and the move towards incorporation[20].

In 2009, Baroness Walmsley introduced the Children’s Rights Bill[21] into the UK House of Lords. The Bill was drafted by the Rights of the Child UK (ROCK) Coalition, and sought to incorporate the United Nations Convention on the Rights of the Child and its Optional Protocols into UK law. However, because of the general election in May 2010, the Bill could not progress beyond the first reading. Although it did raise the profile of children’s rights and facilitate conversations on how best to protect them, subsequent UK Parliaments have not progressed this work.

The following year, in January 2011, the Welsh Measure[22] was passed at what was then the National Assembly for Wales and is now Senedd Cymru (Welsh Parliament). This placed a duty on all Welsh Ministers to have due regard to the substantive rights and obligations within the Convention on the Rights of the Child and its Optional Protocols. This meant that they needed to take reasonable steps to consider the rights set out in Convention when making decisions. This was significant step forward for children’s rights in Wales, creating a proactive approach to compliance and more opportunity to influence how children’s rights are embedded in legislation and through policy making; however, it was not full incorporation[23].

In 2011, the Scottish Government began consulting on the Rights of Children and Young People Bill, which aimed to give Scottish Ministers similar duties to those set out in the Welsh Measure. Despite the consultation specifically excluding incorporation, many respondents, including 25% of the public bodies consulted, called for the incorporation of the Convention into Scots law anyway^[24].

Calls for incorporation also came from children and young people themselves. Children between nine and thirteen years old who took part in the Children’s Parliament consultation sessions demonstrated a clear understanding of the key issues, and expressed concerns that the ‘due regard’ model could mean that “children’s rights might be forgotten about”[25]. They expressed that they felt rights and duties were important for public services, including the police, schools, and social services. There was a clear call from children to “enforce children’s rights instead of just letting it be optional to people”[26].

However, the Scottish Government had repeatedly stated that it did not intend to incorporate the Convention on the Rights of the Child into Scots law^[27], and while the Bill was being considered there was a significant move away from an approach based on children’s rights in favour of a focus on child welfare. The resulting Children and Young People (Scotland) Act 2014 was diluted down to simply place a duty on Scottish Ministers to keep the Convention on the Rights of the Child “under consideration”, to raise “awareness and understanding” of its principles and provisions, to “take account” of children’s views, and to report on implementation at national and local levels.  

Calls for incorporation from civil society and from children and young people continued, including through securing another clear recommendation from the United Nations Committee on the Rights of the Child in 2016[28]. In 2017, the office of the Children and Young People’s Commissioner Scotland made incorporation its key strategic priority alongside the necessary legal reforms on the physical punishment of children, the age of criminal responsibility and the imprisonment of children[29].

The scottish Youth Parliament made incorporation the focus of its 2017 campaign ‘Right Here, Right Now’, reflecting that 76% of the 70,000 young people who responded to its youth manifesto consultation had called for the United Nations Convention on the Rights of the Child to be fully incorporated into Scots law[30].

Together (Scottish Alliance for Children’s Rights) led a series of Scottish University Insight Institute seminars, which brought together over three hundred people to explore the incorporation and implementation of the Convention in Scotland. The participants included the Children and Young People’s Commissioner Scotland, the Minister for Childcare and Early Years, members of youth councils, government officials, academics, civil society organisations and the public sector[31].

Children and young people continued to advocate at the highest levels of government for their rights to be recognised through incorporation, including at the first and second annual Cabinet Meeting with Children and Young People in 2017[32] and in 2018[33]. The Young Advisors to the Children and Young People’s Commissioner Scotland played an important role in keeping incorporation on the Scottish Parliamentary agenda[34].

What was clear and consistent throughout all this work was the call for full and direct incorporation to the maximum extent in Scottish law. This continuous pressure led to the majority of the political parties committing to incorporation in their manifestos. In 2018, it also led to the Scottish Government committing in its Programme for Government to incorporate the United Nations Convention on the Rights of the Child into Scots law.

The commitment from the Scottish Government and the broad support of parties across the Scottish Parliament was welcome, but there was no clear plan or timeframe attached to the commitment. In response to this, in October 2018 the Children and Young People’s Commissioner Scotland and Together (Scottish Alliance for Children’s Rights) established an expert group to produce a model of incorporation for Scotland. Drawing on the expertise of leading international and domestic lawyers and scholars, the group drafted an initial Children’s Rights (Scotland) Bill in a matter of weeks. The Advisory Group, alongside United Nations Committee on the Rights of the Child Member Mikiko Otani, presented the draft bill to the Deputy First Minister and the Minister for Children and Young People on 20 November 2018, which was both the twenty-ninth anniversary of the Convention and Universal Children’s Day.

It took a further two years of consultation before the Scottish Government introduced its Bill on 1 September 2020[35] – partly because of the COVID-19 pandemic. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill[36] was passed unanimously by the Scottish Parliament on 16 March 2021[37].

The Children and Young People’s Commissioner Scotland issued the following statement:

Incorporating the UNCRC [United Nations Convention on the Rights of the Child] into Scots law is the most important thing we can do to protect and promote the rights of children and young people. People in power can no longer ignore or conveniently forget about children’s rights. If they do, children and young people can challenge and will have a meaningful system of redress when things go wrong.

There’s no question this will improve life for all children, but those who will feel the biggest impact are children whose rights are most at risk – children living in poverty, disabled children, young carers, those who have experience of the care system, children from black and minority ethnic backgrounds. Their rights will be at the centre of every policy, law, or budgetary decision from now on. This will lead to significant change in things like addressing poverty and supporting mental health which children themselves have identified as priorities. It will also mean better support for families.

This law gives children power – they will be consulted and listened to. Children and young people, as well as other campaigners, have fought tirelessly for incorporation for many decades, and today is testament to their determination. The government and decision-makers should know that all eyes are on them and children won’t hesitate to hold them to account.[38]  

An amended Bill was brought back to the Scottish Parliament. It was again unanimously passed on 7 December 2023 and received the Royal Assent on 16 January 2024, with a requirement that it come into force within six months.

The successful passage of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act is attributed to the development of a strong platform for understanding the Convention following years of campaigning, education and support delivered by children’s rights organisations in Scotland, as well as to increased sectoral legislation delivering incremental implementation[41].

Other legislative gaps

The move towards incorporation was not an isolated process. As mentioned earlier in this chapter, a number of other urgently needed legislative changes were made in parallel to the progress on incorporating the Convention on the Rights of the Child.   

• On 7 November 2020, children were finally given comprehensive protection from physical punishment through the Children (Equal Protection from Assault) (Scotland) Act 2019[42].
• On 17 December 2021, the age of criminal responsibility moved from eight to twelve (albeit still two years below the international minimum standard) through the Age of Criminal Responsibility (Scotland) Act 2019[43].
• On 28 August 2024, all children were removed from Scottish prisons and accommodated in welfare-based secure care settings through the Children (Care and Justice) (Scotland) Act 2024[44].

Each of these changes resulted from long campaigns by human rights defenders, and each piece of legislation required complex policy development and legal drafting. Nevertheless, the cumulative effect of these changes on Scotland’s progress was profound.

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

The Act takes a ‘maximalist’ approach to fully and directly incorporating the Convention of the Rights of the Child into Scottish law as far as possible within devolved competence. Part 1 of the Act sets out this maximalist approach. Section 1 defines “the UNCRC [United Nations Convention on the Rights of the Child] requirements” to include the Convention and the two Optional Protocols that the UK has ratified. These are the Optional Protocol on the involvement of children in armed conflict, and the Optional Protocol on the sale of children, child prostitution and child pornography.

To stay within devolved competence, some parts of the Convention on the Rights of the Child have been removed from Schedule 1. These include articles relating to nationality and statelessness (Article 7), family reunification (Article 10), development of international agreements relating to moving children across international borders (Article 11), provision of social insurance (Article 26), and military recruitment (Article 38(3)), as well as several articles of the Optional Protocols. However, the Act allows for these to be included in the event of further devolution or if the UK ratifies more of the Optional Protocols.

The Act makes it a requirement to include the third Optional Protocol on a Communications Procedure (OPIC) if the UK ratifies it. This is particularly relevant because OPIC creates a judicial mechanism, with the United Nations Committee on the Rights of the Child hearing complaints alleging that a child’s rights have been violated. Since the OPIC came into force in 2014, a growing body of children’s rights jurisprudence has emerged, with several hundred communications and more than 120 decisions and views on the merits concerning various matters on children’s rights. This has improved the understanding of complex and sensitive children’s rights matters and has led to legislative changes and better outcomes for children in certain cases. The diversity of cases has expanded in recent years, encompassing issues like cross-border custody rights, international child abduction, violence against children, youth justice and child protection.

Section 4 (2)(e) of the Act specially allows that a Scottish court or tribunal that is deciding a question in connection with the Convention may take into account views and findings under OPIC, so Scottish courts can directly benefit from the growing jurisprudence of the Committee. Section 4 also refers to broader aids to interpretation, such as the preambles to the Convention on the Rights of the Child and its protocols. The most powerful interpretive tools will be the specific inclusion of General Comments (Section 4(2)(c)) and Concluding Observations (Section 4(2)(d)).

The Committee’s authoritative interpretations of the Convention on the Rights of the Child, as set out in General Comments, have been an essential tool in understanding the Convention in a rapidly changing world. This is especially true of the Committee’s recent General Comments, such as those on children’s rights and the environment with a special focus on climate change (GC26)[45], children’s rights in relation to the digital environment (GC25)[46], and the significant update on children’s rights in the child justice system (GC24)[47]. These provide important guidance on how to interpret the Convention on the Rights of the Child in the context of emerging issues. It is worth noting that in the first judgment under the Incorporation Act, the High Court of Justiciary made specific reference to General Comments 12 and 24 as relevant to the actions of the Lord Advocate in determining whether to prosecute a child, and to the conduct of a prosecution[48].

The timing of the new General Comment 27 on children’s right to access justice and effective remedies (which, at the time of writing, is under development) will be particularly beneficial as Scotland further develops its domestic remedies. Furthermore, Section 4(2)(f) of the Act extends consideration to include reports on Days of General Discussion, which allows even those reports that do not ultimately result in a new General Comment to be used. Examples include the report on protecting and empowering children as human rights defenders (2018)[49] and the report on children of incarcerated parents (2011)[50].

The inclusion of Concluding Observations as an aid to interpretation allows Scottish courts to look at the specific suggestions and general recommendations made by the Committee under Article 45(d) of the Convention on the Rights of the Child. Section 4(2)(g) provides a broader catchall provision that allows courts to consider any other international and comparative law. While it is not yet clear how much weight Scottish courts will place on these wider aids to interpretation, this section gives a clear indication of the maximalist approach that the Scottish Parliament intends the courts to take.

Part 2 of the Act sets out the duties on public authorities and makes clear that it is unlawful for a public authority to act, or fail to act, in connection with a relevant function in a way that is incompatible with the requirements of the Convention on the Rights of the Child. The definition of ‘public authorities’ has been given broad scope to include all those that deliver functions of a public nature, including functions carried out under other contract or through other arrangements with a public authority, even when they are not publicly funded.

Given the limits of devolution and the Supreme Court’s clarification on those limits, Section 6(2) makes clear that that scope of relevant functions is only those that derive from the Scottish Parliament or rule of law, but not from the UK Parliament – even if those UK Parliament functions relate to devolved matters. This creates a complicated picture in the short term, especially for aspects of education, family law and social work where the devolved law finds its origin in UK legislation. Such laws will be outside the scope of the Act even if they have been amended by the Scottish Parliament. In the longer term, all devolved matters can be repatriated through Acts of the Scottish Parliament and brought within scope of the Act.

The first case taken under the Incorporation Act was related to determining scope, with the Lord Advocate arguing that the independent nature of prosecution meant that the Act did not apply to prosecutorial decisions. The Children and Young People’s Commissioner intervened in the case, arguing that it was clear that the intention of the Scottish Parliament had been to include all functions of a public nature and that any restriction related only to those things reserved to the UK Parliament. The High Court of Justiciary agreed that the Act clearly applies to prosecutorial decisions[51].

The court also referred to a statement from the Cabinet Secretary for Justice and Home Affairs pointing out that government intention had been to extend rights protections “beyond the fairness of criminal proceedings and into prosecutorial decision making. We are talking about a new ground of challenge which does not exist at the moment”[52].

While the purpose of a rights-based approach is to avoid litigation, the justiciability of the duties in the Act is an important accountability mechanism that helps to drive culture change. The Act enables all under-18s to raise claims against a public authority that has contravened the incorporated articles of the Convention (Section 7), and all legislation raised before the courts requires interpretation in line with the Convention.

The Act provides a wide array of remedies. Proceedings can be brought against a public authority in any civil court or tribunal that has the jurisdiction to grant the remedy sought, and the Convention can be relied on in any legal proceedings. Human rights bodies – such as the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission – can bring cases in their own name. The Children and Young People’s Commissioner has produced a Children’s Rights Strategic Litigation Toolkit to inform its use of the new powers[53].

There are several important provisions to recognising the distinct nature of children’s access to justice and right to an effective remedy. The usual time limits of one year, or three months for the Court of Session, are disapplied for the period of childhood, so the clock doesn’t start ticking until a child turns 18 (Sections 7(11) and 7(13)).

In terms of judicial remedies, Section 9 provides that Scottish courts are specifically required to consider the views of the child about the effectiveness of the remedy, and they must do so in a manner that the child prefers. The Act makes clear that there is a presumption that a child of any age is capable of forming a view. This has the potential to radically change judicial practice and puts Scotland in an exciting position with the development of the new General Comment on Access to Justice and Effective Remedy.

Part 4 of the Act focuses on legislation. Section 23 ensures that all new laws and regulations are compatible with the Convention on the Rights of the Child by requiring a statement of compatibility in line with well-established practice relating to other incorporated rights obligations[54]. All legislation must be interpreted in line with the Convention (Section 24). The courts can strike down existing legislation that is incompatible with the Convention (Section 25) and issue incompatibility declarators for any future legislation (Section 26).

While the other parts of the Act relate specifically to the direct incorporation of the Convention on the Rights of the Child into domestic law, Part 3 reflects the comprehensive approach that Scotland wanted to take to its implementation. This reflects the wider obligation in Article 4 of the Convention, which requires States to “undertake all appropriate legislative, administrative, and other measures for the implementation” of the Convention and the wider recommendations in relation to the General Measures of Implementation set out in General Comment 5[55]. The Act sets out a range of proactive and responsive implementation measures designed to support duty-bearers to give effect to both the positive and negative obligations required to deliver Convention rights, namely: a children’s rights scheme (Sections 14–16); child rights and wellbeing impact assessments (Section 17); and reporting obligations on public authorities (Section 18) and on the Scottish Parliament itself (Section 21).

Scotland has long prided itself on its approach to child participation, and the country has been at the forefront of the development of implementation tools, such as Children’s Rights Impact Assessments. The new scheme set out in section 14 of the Incorporation Act has the potential to fully embed rights-based practice into the work of the Scottish Government. As stated in Section 14 of the Act, the scheme includes obligations to:

• ensure that children are able to participate in the making of decisions that affect them with access to such support and representation (for example from children’s advocacy services) as they require to do so,
• identify and address any situation where a child’s rights are (or are at a significant risk of) not being fulfilled,
• raise awareness of and promote the rights of children,
• promote complaints handling procedures that children can understand and use,
• ensure that children have effective access to justice,
• protect the rights of children in relation to their interactions with persons, other than public authorities, who provide services which affect children,
• consider the rights of children in the Scottish Government’s budget process,
• ensure that their [the Scottish Government’s] actions contribute to any national outcome for children determined by them under Part 1 of the Community Empowerment (Scotland) Act 2015 [for example, to reduce poverty and inequality],
• prepare and publish child rights and wellbeing impact assessments,
• use, and promote the use of, inclusive ways of communicating that ensure that children can receive information and express themselves in ways that best meet their needs (in relation to speech, language or otherwise)[56].

To support the Act, the Scottish Government has brought forward a series of guidance documents[57].

Looking forward

Professor Ann Skelton, Chair of the United Nations Committee on the Rights of the Child, has said that the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 is one of the most impressive pieces of domestic legislation on children’s rights in the world[58]. The United Nations Committee on the Rights of the Child commended Scotland’s progress in its latest Concluding Observations[59]. The incorporation of the Convention, along with the other recent legislative changes in Scotland, sends a clear message that Scotland wants to take children’s rights seriously. However, the fulfilment of rights requires more than just legal change.

In Scotland we are seeing growing levels of engagement from public authorities, children’s rights organisations, parenting organisations, and those delivering services to children. Also, children themselves are growing in confidence in the use of children’s rights. But the question of whether the incorporation of the Convention on the Rights of the Child delivers for children should be judged based on what children themselves have called for. Have we delivered a system that ensures that “rights are help before you even ask”? Does it protect children so that they feel that “my rights are my armour to me”, and do children feel that “My rights give me power, freedom, courage”? Those will be the true tests and the questions that we cannot wait another hundred years to answer.

Footnotes

[1] League of Nations, Geneva Declaration of the Rights of the Child (1924), http://www.un-documents.net/gdrc1924.htm.

[2] United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (ASP 1).

[3] The Scottish Parliament was established by the Scotland Act 1998, which placed limitations on its legislative powers (§ 29) including reserving some matters to the UK Parliament (Schedule 5), protecting some legislation from modifications (Schedule 4), and requiring compliance with the European Convention on Human Rights.

[4] “7-Word Story – We Have Rights, Dinosaurs Didn’t. They Died,” Children and Young People’s Commissioner Scotland, https://www.cypcs.org.uk/resources/we-have-rights-dinosaurs-didnt/.

[5] UN Committee on the Rights of the Child, General Comment 5 on General Measures of Implementation of the Convention on the Rights of the Child (arts 4, 42, and 44, ¶ 6), UN doc. CRC/GC/2003/5, ¶ 24.

[6] The Scotland Act 1998 (§ 46).

[7]  CRC/GC/2003/5, ¶ 2.

[8]  CRC/GC/2003/5, ¶ 20.

[9] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, CETS no. 005.

[10] Human Rights Act 1998 (§ 42) (UK).

[11] CRC/GC/2003/5, ¶ 1, 20.

[12]  UN Committee on the Rights of the Child, Concluding Observations on the UK and Northern Ireland, UN doc. CRC/C/15/Add.188, ¶ 8-9; UN Committee on the Rights of the Child, Concluding Observations on the UK and Northern Ireland, UN doc. CRC/C/GBR/CO/4, ¶ 10-11; UN Committee on the Rights of the Child, Concluding Observations on the Fifth Periodic Report of the UK and Northern Ireland, UN doc. CRC/C/GBR/CO/5, ¶ 7.

[13] Bruce Adamson, “The Protection of Human Rights in the Legislative Process of Scotland,” in Parliaments and Human Rights: Redressing the Democratic Deficit, ed. M. Hunt, H. Hooper and P. Yowell (Hart Publishing, 2015), 200.

[14] Kasey McCall-Smith, “Incorporating the CRC in Scotland,” in Incorporating the United Nations Convention on the Rights of the Child into National Law, ed. Ursula Kilkelly, Laura Lundy and Bronagh Byrne (Intersentia, 2021), 307.

[15] UN Committee on the Rights of the Child, General Comment 2 on the Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, UN doc. CRC/GC/2002/2; G.A. Res. 48/134, National Institutions for the Promotion and Protection of Human Rights, Annex (20 December 1993).

[16] Commissioner for Children and Young People (Scotland) Act 2003 (ASP 17).

[17] Scottish Parliament, Official Report, 26 March 2003, col. 16963.

[18] Scottish Parliament, Official Report, 26 March 2003, col. 16963.

[19] Elaine E. Sutherland, “Child and Family Law: Progress and Pusillanimity,” in Law Making and the Scottish Parliament: The Early Years, ed. Elaine E. Sutherland, Kay E. Goodall, Gavin F.M. Little, and Fraser P. Davidson (Edinburgh University Press, 2011), 60.

[20] McCall-Smith, “Incorporating the CRC in Scotland,” 307–312.

[21] Children’s Rights Bill, 2009–10, HL, https://publications.parliament.uk/pa/ld200910/ldbills/008/10008.i-ii.html.

[22] Rights of Children and Young Persons (Wales) Measure 2011 (nawm 2).

[23] Senedd Cymru/Welsh Parliament, Official Record, Y Cyfarfod Llawn – Y Bumed Senedd [Plenary – Fifth Senedd], 2 October 2018, ¶ 65, https://record.senedd.wales/Plenary/5353; Bruce Adamson, “Annual Rhodri Morgan Memorial Lecture” (25 September 2018, Senedd Cymru/Welsh Parliament, Cardiff); Simon Hoffman and Sean O’Neill, The Impact of Legal Integration of the UN Convention on the Rights of the Child in Wales (Equality and Human Rights Commission, 2018); Simon Hoffman, “The UN Convention on the Rights of the Child, Decentralisation and Legislative Integration: A Case Study from Wales,” International Journal of Human Rights 23, no. 3 (January 2019): 374.

[24] The analysis of consultation responses states that “[t]here was a general feeling that the proposals should go further. […] Many respondents, particularly among children’s rights and other representative organisations, called for incorporation of the UNCRC [the Convention] in legislation.”  See: Scottish Government, Analysis of Responses to the Rights of Children and Young People (Scotland) Bill (2011), 17. 

[25] Together – Scottish Children’s Rights Alliance, Rights of Children & Young People Bill Overview of Consultation Responses, February 2012, Edinburgh.

[26] Children and Young People’s Commissioner Scotland and Together (Scottish Alliance for Children’s Rights) (2018), Briefing Paper: Incorporation in Context, 2,

https://www.cypcs.org.uk/wpcypcs/wp-content/uploads/2020/03/briefing-together-incorporation-in-context.pdf.

[27]  See: statements by Aileen Campbell MSP, Minister for Children and Young People in Education Committee, Official Report – 8 October 2013 (Scottish Parliament), col. 2948 and in Education Committee, Official Report – 17 December 2013 (Scottish Parliament), col. 3153f.

[28] CRC/C/GBR/CO/5, ¶ 7.

[29] Jennifer Drummond, “A Force for Change – Our New Children’s Commissioner is Pushing for Major Shifts in Legislation Covering Equal Protection, the Age of Criminal Responsibility and UNCRC Incorporation. How will the Scottish Government respond?” Children in Scotland Magazine, 182 (October–November 2017): 8–12.

[30] See: Scottish Youth Parliament (n.d.), Right Here, Right Now, https://syp.org.uk/campaign/right-here-right-now/.

[31] See: Together (Scottish Alliance for Children’s Rights) (n.d.), UNCRC 2017 Seminars, https://www.togetherscotland.org.uk/resources-and-networks/state-of-childrens-rights-webinars/state-of-childrens-rights-webinars-2017/.

[32] Scottish Government, Actions Agreed at the Cabinet Meeting with Children and Young People: Progress Report, February 2018, https://www.gov.scot/publications/actions-agreed-cabinet-meeting-children-young-people-28-february-2017-9781788515733/.

[33] Scottish Government, Second Annual Cabinet Meeting with Children and Young People, May 2018, https://www.gov.scot/publications/second-annual-meeting-of-ministers-with-children-and-young-people/.

[34] See: Children and Young People’s Commissioner Scotland, Promote, Protect, Defend: A Report on Children and Young People as Human Rights Defenders in Scotland (CCYP/2019/1).

[35] United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [As Introduced] Session 5 (2020), SP Bill [80] (Scot.), https://www.parliament.scot/-/media/files/legislation/bills/s5-bills/united-nations-convention-on-the-rights-of-the-child-incorporation-scotland-bill/introduced/bill-as-introduced-united-nations-convention-on-the-rights-of-the-child-scotland-bill.pdf.

[36] United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [As Passed], Session 5 (2021), SP Bill [80B] (Scot.), https://www.parliament.scot/-/media/files/legislation/bills/s5-bills/united-nations-convention-on-the-rights-of-the-child-incorporation-scotland-bill/stage-3/bill-as-passed.pdf.

[37] Scottish Parliament, Official Report, 16 March 2021, col. 121–124.

[38] Children and Young People’s Commissioner Scotland, “New Law on Rights Makes Government Accountable to Children,” press release, 16 March 2021, https://www.cypcs.org.uk/news-and-stories/uncrc-incorporation-makes-government-accountable-scotland/.

[39] Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (2021) UKSC 42, at 90.

[40] Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (2021) UKSC 42, at 32.

[41] Kasey McCall-Smith, “The Devil Is in the Details: Entrenching Human Rights Protections in the UK’s Devolved Nations,” Northern Ireland Legal Quarterly 74, no. 1 (Spring 2023): 103.

[42] Children (Equal Protection from Assault) (Scotland) Act 2019 (ASP 16).

[43] Age of Criminal Responsibility (Scotland) Act 2019 (ASP 7).

[44] Children (Care and Justice) (Scotland) Act 2024 (ASP 5).

[45] UN Committee on the Rights of the Child, General Comment 26 on Children’s Rights and the Environment with a Special Focus on Climate Change, UN doc. CRC/C/GC/26.

[46] UN Committee on the Rights of the Child, General Comment 25 on Children’s Rights in Relation to the Digital Environment, UN doc. CRC/C/GC/25.

[47] UN Committee on the Rights of the Child, General Comment 24 on Children’s Rights in the Child Justice System, UN doc. CRC/C/GC/24.

[48] References by HMA to the High Court of Judiciary in the summary prosecutions by the Procurator Fiscal Dundee v. JH & LL and the Commissioner for Children and Young People in Scotland (2025), HCJAC 2.

[49] UN Committee on the Rights Of The Child, Day of General Discussion (DGD) 2018 Protecting and Empowering Children as Human Rights Defenders Report, 2018.

[50] UN Committee on the Rights of the Child, Report and Recommendations of the Day of General Discussion on Children of Incarcerated Parents, 2011.

[51] References by HMA to the High Court of Judiciary in the summary prosecutions by the Procurator Fiscal Dundee v. JH & LL and the Commissioner for Children and Young People in Scotland (2025), HCJAC 2.

[52] Scottish Parliament, Official Report, 24 April 2024, col. 128.

[53] Children and Young People’s Commissioner Scotland, Children’s Rights Strategic Litigation Toolkit (CCYP/2022/04), October 2014, https://www.cypcs.org.uk/wpcypcs/wp-content/uploads/2022/11/Strategic-Litigation-Toolkit-FINAL.pdf.

[54] See: Adamson, “Protection of Human Rights”.

[55] CRC/GC/2003/5.

[56] United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (ASP 1) § 14, ¶ 3.

[57] Children and Families Directorate, UNCRC (Incorporation) (Scotland) Act 2024 – Part 2: Statutory Guidance, September 2024, https://www.gov.scot/publications/statutory-guidance-part-2-uncrc-incorporation-scotland-act-2024-2/; Children and Families Directorate, UNCRC (Incorporation) (Scotland) Act 2024 – Part 3: Statutory Guidance, September 2024, https://www.gov.scot/publications/statutory-guidance-part-3-uncrc-incorporation-scotland-act-2024-2/; Children and Families Directorate, United Nations Convention on the Rights of the Child (UNCRC): Clarification of Inherent Obligations, September 2024, https://www.gov.scot/publications/clarification-inherent-obligations-united-nations-convention-rights-child-uncrc/; and Children and Families Directorate, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: Sources to Guide Interpretation, September 2024, https://www.gov.scot/publications/sources-guide-interpretation-united-nations-convention-rights-child-incorporation-scotland-act-2024/.

[58] Ann Skelton, FTT Health and Education Chamber, Scotland UNCRC Training, 2–4 October 2024, Glasgow.

[59] UN Committee on the Rights of the Child, Concluding Observations on the Combined Sixth and Seventh Periodic Reports of the United Kingdom of Great Britain and Northern Ireland, UN doc. CRC/C/GBR/CO/6-7.