Closure of schools was proportionate in human rights terms. The decision to open them must be proportionate too.
In exceptional cases where public health is at risk, human rights law allows for measures that may restrict the enjoyment of human rights.
Children and young people have the right to the best health possible and the right to live, develop and grow to their fullest potential, and keeping schools open when infection rates are high puts these rights at risk.
And it put the health of certain groups at disproportionate risk, like those with underlying health conditions.
But school closures also impact on a wide range of human rights, not just the right to education. Rights to enough nutritious food, to the best mental health possible and to relax and play, along with many others.
Many of these human rights issues will remain when Scotland’s schools partially reopen on 11 August, with children and young people only in school for some of the time.
So the full reopening of schools needs to be proportionate in human rights terms in the same way that their closure was. This is a summary of issues Scottish Government has an obligation to consider when making that proportionate decision.
What are Scottish Government’s obligations under the UN Convention on the Rights of the Child?
Regardless of what decisions Scottish Government makes around reopening schools, they have an obligation under international law to address any human rights issues that will arise.
There are some things in particular they must do:
Scottish Government needs to know which groups of children and young people will be disproportionately affected
UNCRC Article 2
All children have these rights
All children have the rights set out in the UNCRC, and individual children and young people shouldn’t be discriminated against when these rights are realised.
Scottish Government need to know which groups of children and young people are likely to be disproportionately affected by their decision, and how these disproportionate effects can be made to be less severe.
Human rights laws set the minimum standards States must meet for all children and young people― not just the majority.
We know the impact of school closures hasn’t been equally felt: poor, disabled and socially vulnerable children have all suffered disproportionately.
Decisions around reopening have to be taken with all children in mind so that rights are guaranteed without any child or young person being discriminated against.
Scottish Government must make sure children and young people’s best interests are a primary consideration
UNCRC Article 3
Adults must do what’s best for me
Article 3 says that the best interests of children and young people should be thought about at all levels of society.
Scottish Government need to make sure children and young people’s best interests are given a lot of weight when they make decisions around reopening schools.
The UNCRC says the best interests of children and young people must be a primary consideration when people in power make a decision that affects them.
That means that while best interests aren’t the only thing they need to consider, they need to be understood as being of high importance.
Assessing what’s in children and young people’s best interests will involve doing a careful risk assessment of how any decision is likely to impact on the human rights of children and young people― not just in areas directly related to education, but in all aspects of their lives.
Scottish Government must make sure children and young people can express their views
UNCRC Article 12
I have the right to be listened to and taken seriously
Article 12 says children and young people have the human right to have opinions and for these opinions to be heard and taken seriously.
Children and young people have the right to have their views heard in decisions that affect them, and clearly these include decisions around the form their education will take.
Right now, decisions are being made around what education will look like in Scotland when schools reopen in August. It will look very different to what children and young people are used to, and they need to be involved in the plans that are being made.
Scottish Government must make sure that these views are part of all their decision-making processes, and local authorities and schools should be involving children and young people in their planning processes.
And they should be sure that groups of children and young people who’ve been disproportionately affected by school closures are a part of these decisions, including:
- those experiencing poverty, and
- those with a history of non-attendance or exclusion.
Our evidence to the Scottish Parliament’s Education and Skills Committee highlighted that children and young people don’t appear to have been involved in decisions around their education at the start of lockdown, such as the choice to cancel exams and the decisions around how performance would be graded as a result. This lack of involvement can’t continue as lockdown eases.
We’ve met with the Scottish Government’s Education Recovery Group to set out the ways the State must deliver on its human rights obligations to children and young people. This Group will will play a large part in shaping how Scotland’s education system recovers as lockdown eases, but children and young people are not currently represented upon it.
We’re calling on the Government to change this, so that the people most affected by these vital decisions are represented as they are made.
We want it to be clear that Scotland values the opinions and experiences of young people, and making this change would be a step towards making this happen.
What are some of the human rights concerns around school closures?
School closures have an impact on a wide range of the human rights of children and young people, and the list below isn’t exhaustive.
The rights set out in the UNCRC are indivisible and interdependent— they affect each other and have to be considered alongside each other as a result.
Restrictions on a young person’s right to education affect the right to the best health possible through impacting on their mental state. Reduced access to nutritious food from free school meals affects a child’s right to develop to their fullest potential.
So all the rights issues discussed below have to be considered in the context of each other.
Children’s human rights also have to be considered alongside the rights to life, health and non-discrimination which everyone in society has. If it’s the case that opening schools means that adults are more likely to get sick and die, then that has to be considered alongside everything that’s discussed below.
School closures and education rights
UNCRC Article 28
I have the right to an education
Article 28 of the UNCRC says that all children and young people have the right to education no matter who they are.
UNCRC Article 29
I have the right to an education which develops my personality, respect for others’ rights and the environment
Article 29 of the UNCRC says that a child or young person’s education should help their mind, body and talents be the best they can.
Of course, school closures have a huge impact on children and young people’s right to education.
As the UN Committee on the Rights of the Child expands on in its General Comment No. 1, the UNCRC sets out minimum standards for education and its goals― which are ultimately about supporting every child’s human dignity.
The right to education is a right for every child and young person to be able to develop their personality, talents and abilities to their fullest potential, even in an emergency.
It’s ultimately about being able to live a full and satisfying life within society, both as a child and once adulthood is reached.
And as a human right it applies to all children and young people, including those who need extra support.
And Scottish Government needs to make sure all children and young people have this right realised as lockdown restrictions ease.
Education rights must be met for all children
In our evidence to the Scottish Parliament’s Education and Skills Committee we stressed that under lockdown many children are missing out on support― including many who the Scottish Government would define as vulnerable.
The current system of hub schools hasn’t been appropriate for everyone: they don’t all have the specialist equipment needed to teach disabled children, while children who live with someone classified as high-risk for coronavirus can’t attend.
Plans need to be put in place so that gaps in support that currently exist don’t continue under a blended learning approach.
Education rights and digital exclusion
Digital exclusion also risks compromising the right to education under blended learning.
A blended learning approach means schools will rely on online services even after they open again, but not all children and young people have equal access to these.
Not having fast and reliable access to the internet has a significant impact on a child’s right to education, and it’s something that disproportionally affects those in poverty.
But it’s also more likely to affect those in rural areas where broadband and mobile coverage remains an issue, and those in families where devices are shared by several people.
The UN Committee on the Rights of the Child highlighted that online learning shouldn’t make existing inequalities even greater, but this is something that’s currently happening in Scotland— and which is likely to continue under a blended learning model.
We’re glad that Scottish Government committed £30 million to digital support for children’s education, but these are issues that will need to be addressed urgently ahead of schools reopening.
School closures, poverty and the right to food
UNCRC Article 24
I have the right to good quality health care, to clean water and good food
Article 24 of the UNCRC says that children and young people’s health should be as good as possible.
UNCRC Article 27
I have the right to have a proper house, food and clothing
Article 27 of the UNCRC says children and young people should be able to have the food and housing they need to reach their full potential.
Poverty and food insecurity were the biggest human rights issues facing children in Scotland before the pandemic.
Now things are worse.
The UN Committee on the Rights of the Child has highlighted that States should be taking immediate measures to ensure these rights remain fulfilled during the pandemic, as their realisation is threatened while schools are closed.
Children being unable to access free school meals impacts on their right to food, while children in poor quality housing have to spend more time in inadequate conditions.
Scottish Government has introduced measures aimed at maintaining free school meal provision and address food insecurity, and has committed to providing free school meals during the summer.
The need to have a substitute for free school meals will continue to be an issue once schools return, as children are unlikely to physically attend school every day.
Since school closures were announced, we’ve called for every child entitled to free school meals to be supported with a direct payment of at least £20 a week to their families. That includes families who’ve become eligible for free school meals since lockdown began, and should be in addition to other support – like food delivery – when it’s appropriate.
And we’ve said cash payments like this have to be extended until the end of blended learning, when children and young people are back to physically attending school full time.
School closures and mental health
The right to the best health possible extends to mental health, and we know this has suffered for children and young people during the pandemic.
The impact of the lockdown will still be felt as they begin to return to school.
Measures must be put in place to address the social and emotional impacts school closures have had, as well as their impact on attainment.
Some children will need support to re-engage with school, and the number of children who need psychological support is likely to increase.
It’s important that reopening schools is seen as a time of transition, and that children and young people are given the support they need to adjust.
School closures and the risk of violence
UNCRC Article 19
I have the right to be protected from being hurt or badly treated
Article 19 of the UNCRC makes it clear that children and young people have the right to be protected from violence, just like everybody else.
Some children and young people are also at increased risk of violence while schools remain less than fully open, through having to spend more time in unsafe situations within their homes.
They may also be at increased risk of online violence.
School closures and other UNCRC rights
UNCRC Article 17
I have the right to get information in lots of ways, so long as it’s safe
Article 17 of the UNCRC says children and young people should be able to access information, particularly from the media. They should be able to get information from many places— from their country and beyond.
UNCRC Article 31
I have a right to relax and play
Article 31 of the UNCRC says that children and young people have the right to have fun in the way they want to.
UNCRC Article 15
I have the right to meet with friends and to join groups
Article 15 of the UNCRC makes it clear that – like all people in the world – children and young people have the human right to freedom of association.
There are many other rights which will be affected as long as schools remain closed.
There will be fewer opportunities to receive information.
Fewer chances to play and relax in the way that children choose.
And fewer opportunities for young people to get together with their friends and be part of groups.