Over the past half-century, academia, civil society, and generally the young people have consistently called for the incorporation of the United Nations Convention on the Rights of the Child into the Scots law. Incorporation of child’s right meant legally protecting the rights of children in the United Kingdom, especially those aged 17 years and under. This has propelled significant development and debate all over the United Kingdom. Nonetheless, its incorporation of the UNCRC is yet to be reached. The debate began way back in 2009 when Baroness Walmsley inducted the Children’s Rights Bill into the British parliament. It was drafted and sought to incorporate the UNCRC into UK law. However, due to the 2010 elections, the bill could not go beyond 1st reading. This created a room for people to discuss how best the children’s rights could be protected as NGOs and other public bodies pushed for its incorporation
To further children’s rights across legislation, the Children and Young People Act 2014 was reintroduced in the House of Lords. The Ministers were assigned a duty to consider the above bill by raising awareness of its principles, considering the views of children, and submitting the report to the Scottish Parliament every three years. The Bill followed a series of developments and by 2016 all the observations had been made. Forthwith, recommendations were made and a campaign initiated after the majority agreed to UNCRC incorporation into Scots law. As a result, much progress was evident and most recently the Parliament passed bill on 16th March 2021.
The passing of the Bill makes a lot of changes and impacts legislation towards children. For instance, the child will be allowed to air their views in whatever manner they prefer. The courts will define the means through which children can communicate their views directly4. The bill gives the Human Rights Commission power to raise claims on behave of the state. All public services, police, schools, and public works will ensure all rights of children are protected in all work that they do. All persons under 18 years have children’s rights regardless of ethnicity, religion, gender, language, and ability.
The Bill is a breakthrough in Scotland towards making rights real for every child. It marks over 10 years of campaigns by children, civil society, and young people. The Bill follows a series of legislations, policies, and practices in Scotland. Such legislations include, GIRFEC, Children and Young People (Scotland) Act 2014, Scottish Government’s 2018-21 Action Plan, and the most recent Children (Scotland) Act 2020. All these have given the Bill a wide coverage, enabling it to address children rights and family issues. Currently, the bill passed the Royal assent stage, at which the Monarchs make the act of parliament into law. The first stage involved examination of the bill, taking evidence from all stakeholders. On 20 December a report was published and further sent for recommendations. On 15th January 2021, the Scottish Government issued feedback preparing a brief for MSPs in the stage 1 debate. Upon consideration in the House of Lords the bill was unanimously passed on 19th January 2021.
The Bill then proceeded to the second stage where a series of amendments were made to strengthen the bill. It was then passed on 11th February 2021. At stage three, the MSPs further amended the bill, and a final vote was cast on 6th March 2021. Existing legislations to a great extent influenced the formulation on the Right of the Child (incorporation) (Scotland) Bill. For instance, the Children and Young People (Scotland) Act 1995, comprises the law meant to resolve disputes among parents over their children especially due to separation. The children’s (Scotland) bill amends the 1995 act with the sole aim of ensuring the child’s views are heard, those that are victims of domestic violence are protected, and ensuring that the interest of the child for the bases of the hearing. Additionally, the 1995 act amendment removes the presumption that children aged 12 years and above are less mature to air their views. The amendment has ensured the views of particularly younger children are heard.
Contribution and proposal of the Bill have been made possible by several voluntary and statutory agencies. In 2016, the Welsh measure was passed in the National assembly in Wale. As a result, all Welsh ministers were required to have regard to rights within the UNCRC. Upon this development, the Scottish government began consulting on the Right of children and young people Bill in due regard to UNCRC and its protocols. Children aged 9-13 years demonstrated a clear understanding of the elements of the bill. Therefore, disregarding the Bill would have a negative impact on the right of the children, hence Bill’s recommendation. Children and young people continued to advocate for government to recognize their rights through incorporation even at a higher level of government such as first and second annual cabinet meetings with children.
Reference List
Archard, D. W., Children, family, and the state. Routledge, 2018, p. 24.
Barnes Macfarlane, L. A., Making law for children in Scotland: turning commitment into reality. Amicus Curiae, 1(3), 2020, p.476-486.
Bonino, S., A new Muslim community: Children of Islam and Scotland. Religions, 10(3), 2019, p.175.
Hanson, L., Henderson, G., & Kurlus, I., Adoption and permanence planning in Scotland: Impact of the Adoption and Children (Scotland) Act 2007 on key processes and timescales. Child & Family Social Work, 24(1), 2019, p. 115-122.
Hetherington, A. C. Cohabitation in Scots Succession Law: A Critical Examination of Section 29 of the Family Law (Scotland) Act 2006. Aberdeen Student L. Rev., 10, 1, 2020.
McCall-Smith, K. Entrenching children’s participation through UNCRC Incorporation in Scotland. The International Journal of Human Rights, 2021, p.1-24.
McCall-Smith, K., Incorporating the CRC in Scotland. In Incorporating the United Nations Convention on the Rights of the Child into National Law. Intersentia, 2020, p. 303-332
McCall-Smith, K., What Remains Following the UNCRC (Incorporation) (Scotland) Bill Reference Judgment? 2021, p.53
Mackay, M., & Matthews, R., Can Scotland be brave? Incorporating UNCRC Article 12 in practice, 2020, p. 56-61
Parliament, S., United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, 2020, p.7.
Tisdall, E. K. M., Challenging competency and capacity? Due weight to children’s views in family law proceedings. The International Journal of Children’s Rights, 2018, 26(1), 159-182.