Consultation on the revised National Guidance for Child Protection in Scotland

January 2021. We responded to the Scottish Government’s consultation on the revised National Guidance on Child Protection.

We told them that the guidance needed to be strengthened by making the links to the children’s human rights frameworks clearer, and highlighted that 16 and 17-year-olds should receive the same protection as young children.

All child protection legislation, policy and guidance should be underpinned by international human rights law, including the UNCRC and by relevant General Comments issued by the UN Committee on the Rights of the Child, including General Comment no 13 (2011)1 – the right of the child to freedom from all forms of violence

Article 19 of the UNCRC provides that:

1.       States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2.          Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

The Committee on the Rights of the Child highlights the direct relevance to article 19 of the Optional Protocol on the sale of children, child prostitution and child pornography and the Optional Protocol on the involvement of children in armed conflict and stresses that a child’s rights approach “requires a paradigm shift away from child protection approaches in which children are perceived and treated as “objects” in need of assistance rather than as rights holders entitled to non- negotiable rights to protection.”2

This draft non-statutory guidance should also have regard to the full range of children’s human rights, including, amongst others, the right to health (Article 24); to family life (9 and 18); to physical and emotional recovery where they have been harmed (39); to protection from sexual exploitation or abuse (34) and trafficking (35); the prohibition against torture and cruel and inhuman or degrading treatment or punishment (37(a))3; as well as the key principles of the UNCRC. These are:  non-discrimination (2); the right for best interests to be a primary consideration (3); the right to life (6) and the right to participate when decisions are made about them (12).  The guidance should also be prepared with regard to the rights of children and their parents and carers under other international human rights treaties, including the European Convention on Human Rights (ECHR). 

Whilst we acknowledge that the human rights context is to some degree evident in parts of the guidance, we are disappointed that children’s rights are not explicitly threaded throughout the guidance, particularly in light of the proposed incorporation of the UNCRC into Scots law4, Article 42 of the UNCRC requires states parties to ensure that the provisions of the Convention are widely understood.  By relating this guidance explicitly to children’s rights, it would demonstrate not only its compatibility with the UNCRC but also the understanding of the UNCRC amongst those using the guidance.  It is not sufficient to simply reference the UNCRC – it must form an integral part of the guidance, in order to strengthen understanding of children’s rights in the context of child protection and safeguarding.

Likewise, child protection necessarily involves an interference with the human rights of the child and their wider family – specifically the right to a private and family life (ECHR Art 8 and UNCRC Articles 9 and 16). Human rights law permits interferences, but only where the intervention is lawful, necessary and proportionate.  We are therefore concerned that, although a legislative context is given separately, the guidance does not explicitly demonstrate the legislative foundation for child protection, policy and procedures under international law. 

In particular, the information- sharing sections do little to address the ambiguity in the threshold for non-consensual information-sharing in child protection and other processes, despite more than 4 years having elapsed since the United Kingdom Supreme Court found that the information sharing elements of Part 4 and 5 of the Children and Young People (Scotland) Act 2014 were incompatible with the rights to private and family life under Article 8 of the ECHR5.

The inclusion of trauma-informed approaches within the GIRFEC National Practice Model is welcomed, but it must be clear that a rights-based approach must be consistently applied across health, justice and local authority Children’s Services and Planning Partnerships, to ensure that all children are protected from abuse, harm, exploitation and cruel and inhuman treatment, in line with their human rights.  A trauma-informed approach should, by definition, extend protections to children in conflict with the law, reflecting research by both the Children and Young People’s Centre for Justice6 and the Edinburgh Studies of Youth Transitions 7 indicating links between trauma and behaviour which puts them in conflict with the law.  Children have a right to be kept safe, whatever situation they find themselves in.

Whilst the current draft emphasises the UNCRC definition of a child being a person under the age of 18, there remain inconsistencies in both legislation and guidance which fail to ensure all children aged 18 are adequately protected from harm.  Research commissioned by this office on ‘Older Children in Conflict with the Law’ highlighted the anomaly in relation to children in  the criminal justice system, which results in 16 and 17 year olds in some instances, including when being deprived of their liberty, being treated as adults8.  We repeat our call that referral to Children’s Hearings should be extended to all children under the age of 18, including those in conflict with the law9

Current child protection guidance and practice is focussed on harm caused by parents, however children experience harm from other settings and have a right both to protection from that harm and to remedy where they have been harmed.  However, our investigation into the use of restraint and seclusion in Scottish schools found that, where a child had been harmed by a member of staff as a result of inappropriate use of restraint, for example, there was often no legal remedy available10.  Concerns about the use of restraint and other restrictive practices was also highlighted in The Promise11.  It is therefore important that there is greater clarity in the Guidance to ensure that, in line with General Comment 13 and the United Nations Alternative Care Guidelines12, children’s rights to protection apply to all those with a duty of care, including in institutional settings.

We note that there does not appear to have been a Children’s Rights and Wellbeing Impact Assessment (CRWIA) published in associated with this consultation and there is no indication of extensive involvement of children’s participation in the development of this policy. CRWIAs are an important part of the policy development process and should demonstrate the extent to which children’s rights have been considered, including steps taken to mitigate any identified adverse impacts on children’s rights and the ways in which children and young people have been involved in the process. 

Conclusion

The Promise of the Independent Care Review recommended systematic, rights- respecting changes to the care system for all children and young people, of which child protection and safeguarding policies and practices form an integral part, in Scotland.  However, the current draft is merely an update of previous guidance. We feel that, in order to further the work to deliver the Promise, and to ensure compatibility with the UNCRC, the guidance should instead be comprehensively redrafted, to ensure that children’s human rights and statutory rights are threaded throughout the guidance as well as any practice and training materials introduced to support implementation of the Guidance.

29 January 2021

For further information, please contact Megan Farr, Policy Officer at megan.farr@cypcs.org.uk or 07803 874 774.

Footnotes

  1. UN Committee on the Rights of the Child.  2011.  General Comment no. 13
  2. Ibid.  Para 59.
  3. And the equivalent rights in Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the ECHR
  4. United Nations Convention on the Rights of the Child (Incorporation) Bill
  5. The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland).  [2016] UKSC 51
  6. Lightowler, C.  2020.  Rights Respecting? Scotland’s approach to children in conflict with the law. Children and Young People’s Centre for Justice.
  7. University of Edinburgh.  Edinburgh Study of Youth Transitions and Crime.
  8. Whiting, K.  2020.  Older Children in Conflict with the Law.  CYPCS.  p22-23
  9. CYPCS.  2020.  Raising the Age of Referral to the Principal Reporter.
  10. CYPCS.  2019.  No Safe Place: Restraint and Seclusion in Scotland’s Schools
  11. Independent Care Review.  2020.  The Promise.
  12. UN.  2009.  General Assembly Resolution 64/142.  Guidelines for the alternative care of children.   18 December 2009.
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