Q:
Why do children in conflict with the law need special protection?
A:

It is important people are protected from crime – including crimes committed by children – and that victims are given some remedy. 

However, this has to be balanced with the fact that some children in conflict with the law may have experienced difficulties in their childhood – such as poverty, family breakdown or drug and alcohol use –which has led to their behaviour.

Some of them may also be victims themselves.  

Where the law says that a child should be punished for their actions in the criminal justice system, this can impact their future. States must recognise children’s vulnerability both as victims and perpetrators of crime. 

Q:
What is the right to a fair trial?
A:

Everyone has the right to a fair trial, whatever their age.

For children, this includes:

The right to be presumed innocent until proven guilty

Children have the right to be assumed innocent of a crime until the prosecution – whoever brought a case against them to court – has proven they are guilty of it.

The right to privacy while being tried

While a child is being tried, the media shouldn’t publish any information that might lead to them being identified by members of the public. This would include their name or address.

The right to effectively participate in their trial

A child must be able to follow their trial and understand what’s going on. They must also be able to express their views, and the judge must properly take their views into account.

All of these rights are set out in Article 40 of the UNCRC.

Q:
What is a Compulsory Supervision Order?
A:

A Compulsory Supervision Order is a formal order made by a Children’s Hearing. It’s for children who need additional protection or support.

When an Order like this is made, it means a child’s local authority has to support them and give their family help.

It also means there are certain rules the child has to follow. For example, they may have to live in a certain place, such as in secure care or a children’s house, away from their family.

As a result of these laws, many 16 and 17-year-olds in Scotland are not recognised as children when they commit crimes. Instead, they are instead treated as adults in adult courts.

Q:
What is secure accommodation?
A:

Secure accommodation is a place where children can go to get help if it isn’t safe to live at home because they might hurt themselves or someone else.

To make sure that they get the help they need and to keep them safe, they are locked in and can’t leave. It is a place that children should only go if there is no other place where they can get help.

It is important that children are involved in the decision to send them to secure accommodation. They should understand why it is in their best interest to be there.

Q:
If children can make decisions before the age of 18, why shouldn’t they be treated as adults when they commit a crime?
A:

There is an important difference in the UNCRC between rights to protection and rights to participation.

Rights to participation are about our ability to make decisions, such as voting or making decisions about medical treatment. For example, the law in Scotland says that under 16s can consent to medical treatment if a doctor believes they understand what the treatment or procedure means.

However, rights to protection exist to protect children from harm. Because punishing children, and treating them as adults when they commit crimes, can be harmful, Article 37 and Article 40 of the UNCRC are both protection rights.

That means that every child should enjoy them until they are 18. 

Someone has their hand up beside someone else, who is thinking of a thumbs up and an equals sign.

UNCRC Article 37

I have the right not to be punished in a cruel or hurtful way

A judge holds up their finger as a person beside them thinks of a thumbs up and an equals sign.

UNCRC Article 40

I have the right to get legal help and to be treated fairly if I have been accused of breaking the law

Q:
What is full and direct incorporation of the UNCRC?
A:

Full incorporation means writing the whole of the UNCRC into Scots law— all of it, not just specific parts.

Direct incorporation means that the full legal text of the Convention would be written into Scots law— so no part of it is rewritten.

Q:
Do I need to wear a face covering – like a face mask – at school?
A:
An image of face masks beside a question mark with a stylised image of a virus forming the dot.

The Scottish Government has changed its guidance on when children and young people should wear face coverings— such as face masks.

You can find the new guidance here. It says that from 2nd November:

  • In secondary schools, you should wear a face covering when moving around in areas where it’s hard to physically distance. This might include corridors, and some communal areas.
  • Everyone who’s 5 or over and isn’t exempt should wear a face covering on school transport, like they already have to on public transport.
  • If you are in S4 to S6 you should also wear a mask in classes and other areas, unless you are eating or drinking. 
  • For younger children, if you’re in a classroom – or somewhere else where you’re not moving around – you don’t need to wear a face covering. But if you still want to, you can.

If you can’t wear a face covering for health reasons or because of a disability, you don’t have to. For example, you may be on the autistic spectrum and find the sensation of wearing a covering very distressing.

What is a face covering?

A face covering is a form of material which covers the mouth or nose. It can be cloth or textile, and can be reusable or disposable.

  • Face masks aren’t the only form of face covering: scarves, buffs and bandanas all also count as well.
  • You don’t have to wear a medical grade mask to school.
  • You can get more information about face coverings on the Scottish Government’s website.

What should I do if I don’t feel able to wear a face covering?

If you don’t feel able to wear a face covering, speak to your teachers or parent or carer. Your schools should respond well to this and provide you with support. If they don’t, you can show them this FAQ.

Your school should make sure that everyone understands that some young people may not be able to wear face coverings, and that you have a right to privacy about the reasons you aren’t able to wear one. Your school has a responsibility to make sure there is no bullying or stigma about not wearing a mask.

Why has this advice been introduced?

The Scottish Government has said that children and young people wearing face coverings in school will reduce the risk of Covid-19 being spread from person to person. 

Reducing the spread helps protect the right to life of children and young people, their families, their teachers and everyone else in society.

The Government has said that face coverings may also decrease the risk that schools have to be closed due to outbreaks amongst the staff or pupils.

Wearing face coverings in some parts of secondary schools and on transport is only one part of reducing the spread of coronavirus at school:

  • Physical distancing is still important,
  • It’s important your school is laid out in a way that minimises spread and is well-ventilated,
  • It’s important school timetables are changed to reduce crowding.

What do we think about this new advice?

Scottish Government should have consulted you about it

We think the Scottish Government should have consulted with children and young people before it issued this new guidance. 

As this is something that will affect children and young people, it’s important that you  have a say.

Children and young people have the right to participate in all decisions which affect them, and this is something we’ve been asking Scottish Government to do throughout the pandemic.  

Scottish Government should explain why it exists

Children and young people have done everything that’s been asked of them throughout this pandemic, but you need to understand the reasons why you’re now being asked to do more.

So it’s really important that the Scottish Government is clear why they have made these decisions.

They need to explain why they’re proportionate, necessary, lawful and time limited – and guided by scientific advice.

Scottish Government needs to set out their explanation and the evidence for it in a Children’s Rights Impact Assessment. This should also lay out the steps they’ll take to lessen the decision’s impact on your rights

These decisions must be kept under review.

What should schools do now this new advice is in place?

Schools should work with children and young people on how they will implement the changes and on how they’ll use face coverings..

They should provide free face coverings so all children and young people are able to wear them.

In line with new World Health Organisation guidelines, they should also provide the hygiene facilities you need to use face coverings effectively – like places to wash your hands and hand sanitiser when you enter or leave a classroom.

What should schools do when children don’t wear face coverings?

Some children and young people might be worried or might not be able to wear a face covering. There are lots of reasons for this, including:

  • having asthma,
  • relying on lip reading,
  • having disability that means you are distressed at having your mouth and nose covered.

There must be no sanctions or punishments – such as detentions – for children and young people who do not wear a face covering. Schools should make sure that all teachers and students understand that some children will not be wearing face masks. 

Schools should also be aware that some children and young people may be distressed by others wearing face masks, and make sure they are supported and reassured.

Q:
What should I do if my school isn’t giving me access to fresh water?
A:

Access to water is a human right. It’s essential to a child’s right to health, and to fully realising their right to education.

In 2019 the Children’s Future Food Inquiry report identified access to free drinking water in schools as a key issue which disproportionately impacts children experiencing poverty and food insecurity. 

Education authorities in Scotland are required to provide drinking water to children in schools. This duty is set out in Regulation 7 of The Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2020.

This is still the law during the coronavirus pandemic.

No emergency law or policy has changed this.

No guidance has been issued at a national level which would prevent water being provided to children in school for health reasons.

It is important that access to drinking water is provided safely and education authorities should support schools to do this.

If you’re not being allowed access to fresh water at your school – or if you know of a child or young person who’s being denied it – you should contact the head teacher in the first instance and draw their attention to the regulations and to this statement.

If necessary you can ask the head teacher to seek advice from the education authority, who should support them to ensure that drinking water can be provided within the school in a way that protects the rights to health of children and staff. 

The Commissioner’s office has written to the Scottish Government asking them to provide clarity to schools on this matter.

Q:
What does it mean for rights to be indivisible?
A:

The rights in the UN Convention on the Rights of the Child (UNCRC) are indivisible because they can’t be separated from each other.

They shouldn’t be placed in an order so one’s more important than another, because they’re all part of a single broad structure that’s essential to human dignity.

Q:
What does it mean for rights to be inalienable?
A:

Something is inalienable when it can’t be taken away from you and when you can’t give it away.

This is true of human rights. You can’t lose them because of something you’ve done, and you can’t choose to give them up.

Q:
What are evolving capacities?
A:

As children grow older, they become more able to understand their lives and make decisions that affect them. This happens gradually, and it doesn’t happen at the same speed for everyone— it depends on things like a child’s experiences, education and maturity.

A child’s ability – or capacity – to make a reasoned decision will depend on the decision being made.

Evolving capacities is a term used to refer to the increasing ability to make reasoned decisions in different parts of a child’s life.

What does the UNCRC say about evolving capacities?

Article 5 of the UNCRC says that the direction and guidance parents give their children should reflect the evolving capacities of each child. When a child is younger, they will need more protection, as they may be more likely to make choices without considering or understanding the consequences. But as a child gets older, this will slowly become less true.

Evolving capacities are also important to Article 12 of the UNCRC.

All children have the right to have their view heard and for it to be taken seriously. But the weight their view is given is dependent on their evolving capacities― the extent to which they can understand the issue and the possible outcomes of a decision.   

The concept of evolving capacities should never be used to dismiss a child’s view. The child’s view needs to be taken seriously whenever it’s heard as it can change what an adult considers to be in a child’s best interests, by giving them a better idea of what’s important to the child and what they consider distressing.

Q:
What are judicial and administrative proceedings?
A:

Judicial and administrative proceedings are two different ways in which legal decisions are made.

Judicial proceedings are legal processes where a judge makes a decision around what should happen. Court cases are a form of judicial proceeding, and so are tribunals like children’s hearings.

Administrative proceedings are legal processes that don’t involve a judge. Usually, they’re carried out by a government body.

Q:
What is a Children’s Rights Impact Assessment?
A:

Adults in power often make decisions that affect people― such as laws and policies. When they do this, they don’t always think about the impact these decisions will have on children and young people.

A Children’s Rights Impact Assessment, or CRIA,is a way to include children and young people in a decision. It looks at the ways the decision might affect the rights of children and young people― both positively and negatively.

By doing this, it means people know what the effect of the decision on children and young people is likely to be.

Q:
What is a human rights guarantor?
A:

A human rights guarantor is something or someone that acts to make sure human rights promises are kept by a State.

The Scottish Parliament is able to act as a human rights guarantor by:

  • making sure human rights are properly included in the laws it scrutinises, and
  • holding duty bearers to account so that they keep their human rights promises.
Q:
What is the Council of Europe?
A:

The Council of Europe has an important role in protecting the human rights of hundreds of millions of people, including children and young people. But a lot of those people don’t really know what it is.

It often gets confused with the European Union, but it’s a completely different institution. 47 States across Europe are Member States of the Council of Europe, including States inside and outside of the EU.

The UK, which Scotland is a part of, is a Member State of the Council of Europe. This means it follows the European Convention on Human RightsThis is a law that enshrines certain rights and freedoms in all 47 Member States, including the UK. It applies to everyone in these States, including children and young people.

Q:
What is digital exclusion?
A:

When people create services for you to use they often assume that everyone has access to the internet all the time. If someone doesn’t, they may find it more difficult – or even impossible – to access a service, and when that happens we say they are digitally excluded. For example, a child without home internet access would be digitally excluded if they were asked to research a topic online.

Two common ways in which Scotland’s children and young people are digitally excluded are:

  • because of the cost of internet and devices used to access the internet
  • because of the poor availability of broadband in many rural parts of the country, especially in the Highlands and Islands.
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