November 2021. Our office responded to the Scottish Government’s consultation on a National Care Service for Scotland.
The pandemic has highlighted the importance of social care and the weaknesses in current provision, as recognised by the recommendations of the Independent Review of Adult Social Care (IRASC). The creation of a National Care Service was one of the recommendations of that review.
The breadth of children’s rights impacted by these proposals is broad. It impacts on the full range of children’s human rights as articulated in the United Nations Convention on the Rights of the Child (UNCRC). As such, it is essential that prior to proceeding with these proposals and certainly prior to legislating, the Scottish Government must conduct and publish their own Children’s Rights Impact Assessment (CRIA) in relation to the full extent of the proposals, in line with their duties under Article 4 of the UNCRC.
- These proposals are primarily informed by the Independent Review of Adult Social Care (Feeley Review) which recommended a National Care Service – this was focussed on adult social care.
- The scope of the National Care Service has been expanded, but this is not backed by sufficient evidence and there have been limited opportunities for empowerment of and meaningful participation in decision making by service users, particularly children, young people and their families.
- The scope is broad; this consultation does not provide sufficient detail about specific services or clarity about how it links with existing programmes of transformation – in children’s services particularly.
- We agree that better integration of services and a holistic approach has significant potential benefit to children and young people.
- Proposed timescales (legislation next Spring, in operation by 2026) are not sufficient to allow full consideration of the complexities of the services, nor provide for meaningful participation of a diverse group of service users, many of whom face significant barriers to participating. It is not possible to take a human rights based approached to the design of a National Care Service, in the timescales indicated.
- There is significant risk that without taking a human right based approach, the new service will simply replicate existing issues and problems highlighted by consultation.
- Need to ensure all providers involved in delivering the National Care Service act compatibly with the UNCRC and adopt a human rights based approach.
Evidence and rights
These proposals have been published with no CRIA. It is difficult to meaningfully assess the potential impact of the proposals on children’s rights with so little detail available. We would expect to see consideration given to the specific rights of groups affected, including but not limited to, disabled children (article 23), care experienced children (article 20), children in conflict with the law (article 40) and victims (article 39).
In 2020, the European Network of Ombudsmen for Children released a position statement on the use of CRIA and Children’s Rights Impact Evaluations (CRIE), and recommended that governments:
- Require CRIAs and CRIEs to be conducted on law, policy, budgetary, and other administrative decisions to embed a child rights perspective.
- Ensure that the rights of individual children and groups of children to be heard and participate in the process are fulfilled when CRIA and CRIE are undertaken.
- Take all necessary steps to ensure that adequate resources, and other general measures for implementing children’s rights, are in place to support CRIA and CRIE processes.
- Ensure CRIA and CRIE processes are transparent, support better accountability for decisions made and indicate the extent to which children have influenced those decisions.
- Develop and expand knowledge and understanding on CRIA and CRIE processes.
The four general principles of the UNCRC should underpin not just decision making but the processes leading to decision making – including the development of proposals and the consultation and legislative process. The General Principles are:
- Article 2 – non discrimination. This is not limited to the protected characteristics listed in the Equality Act 2010 and includes discrimination relating to “other status”, for example care experience and being in conflict with the law amongst others
- Article 3 – that the best interests of the child be a primary consideration. We note that Scots law, in particular the Children (Scotland) Act 1995, strengthens this to paramount interest. Best interests determinations apply both to individual decisions and to the decisions made about groups of children, so should be a consideration in service design as well as delivery.
- Article 6 – the right to life. We draw attention to the states obligation, in Article 6(2) to ensure, to the maximum extent possible, the survival and development of the child – emphasising that the right to life should not be defined narrowly. This is particularly relevant to the rights of disabled children and those with life limiting conditions.
- Article 12 – the right to express views and for those views to be given due weight. This is often interpreted narrowly as a right to give views. The UN Committee on the Rights of the Child, however, makes it clear in General Comment 12 that this is a right to meaningful participation in the planning, delivery and evaluation of services.
We draw particular attention to article 1 of the UNCRC which states that the rights within the UNCRC apply to all children under 18. At present Scots law treats 16 and 17 year olds as adults in a number of areas, including those within this proposal. It is essential that this is not replicated within any proposed National Care Service. Furthermore, a National Care Service that includes children’s services should also include early learning and childcare.
There is little focus on children as rights holders and of the importance of remedy and redress in these proposals. There is a lack of recognition of the importance of accountability.
Children and young people also have the full range of human rights articulated in the broader human rights framework and we draw attention to the analysis produced by the Scottish Human Rights Commission in response to this consultation.
The Scottish Government have already brought forward legislation to incorporate the UNCRC into Scots law and intend to introduce a bill to incorporate the UNCRPD, CEDAW, CERD, ICESCR and other rights during the current parliament. Part of the commitment they are fulfilling in doing so is to ensure that a human rights based approach is taken when reviewing and developing legislation, as the consultation correctly identifies. Unfortunately, the current consultation is not a demonstration of such an approach. It is not accompanied by a Human Rights Impact Assessment or a Children’s Rights Impact Assessment (CRIA) and does not include any human rights analysis to inform the proposal. It is the government’s obligation to do this analysis and to progress even to a consultation without one is incompatible with a human rights based approach.
The Scottish Government’s commitment to incorporating human rights needs to be applied throughout all legislation.
Children’s services and participation
Children’s interactions with care, in its broadest sense are complex – including statutory social work services which work to protect the most vulnerable children in our society; social care for disabled children (including respite care); support for care experienced children and young people; family support; and young carers’ support. This is delivered by statutory agencies and by the third sector. Many children receive support through multiple services and like their lives, the services that support them are complex and varied.
It is the enormous challenge of understanding this complex range of services and support that gives us concern at the proposed timescales for implementation of the National Care Service. The boundaries between health and care are not clear in the current proposals.
We would draw attention to the responses to this consultation from various third sector organisations both representing and supporting children and young people for further detail of the extent of complexity in children’s lives and the care they receive. In particular, the following demonstrate the diversity of views on these proposals:
- Youth Justice: STAF; CYCJ
- Family Support: Children 1st, NSPCC
- Care experience: Who Cares? Scotland; CELCIS
Children’s services are already in a period of transition, with the focus moving to prevention, early intervention and the implementation of The Promise. It is unclear how these proposals fit with current programmes of transformation.
The Independent Care Review involved care experienced children, young people and adults at its heart. Each of the workstreams were co-chaired by a care experienced person and the review heard from over 5,500 people with direct experience of care, half of which were care experienced themselves. They also heard from families and both the unpaid and paid care workforce. In the Scottish context it presents a clear example of a human rights based approach to reviewing and reforming public services. The “fundamental shift” in decision making The Promise recommends was based on the active participation of care experienced people in the review – but that level of participation took time which is not being granted to these proposals.
A National Care Service cannot be built without the participation of those who rely on and work in social care. Without this, the result may be a service which, rather than improving services, unintentionally reinforces existing challenges and fails to deliver the innovation and transformational change the government hopes to achieve.
As has been recognised by the UN Secretary-General, it is essential that children’s rights are mainstreamed into a human rights based approach. Children and young people must be able to actively participate in the design of any National Care Service, whether children’s services are included at the beginning or not. It is not appropriate for children to be slotted into a service designed by and for adults at some later date.
Children’s right to participate in decisions made about them pertains not only to the design and implementation of services but also to individual decisions made about their lives. They also have the right to be properly supported to do this. Given the barriers to participation experienced by disabled children, those with care experience and others who interact with social care services, it is vital that there is equitable access to quality advocacy and support to enable them to access their rights and to seek remedy when their rights are not realised. At present, some groups of children affected by these proposals, notably care experienced children and young people, have access to advocacy services, but these are not universally available.
It has been clear for some time that all aspects of social care, for children and for adults, are facing a crisis of resources. Whilst the promise of additional resources in relation to the implementation of the National Care Service is welcome, it is essential that these are focussed on services which need them rather than the implementation of new organisational structures. Decisions on the allocation of these additional resources should be done using a human rights budgeting approach which takes full account of the broad range of human rights of all individuals impacted by the proposals, including children.
The proposals for a National Care Service are ambitious and present opportunities to significantly improve the lives of children, young people and adults across Scotland. But there must be sufficient time to allow for careful planning and the proposals must take a human rights based approach – without this there is a significant risk that they will fail to deliver the transformational change which is needed and instead replicate existing failings. These proposals cannot go ahead without children’s rights being at the heart of planning – and they need time for that to happen.
2 November 2021
For further information, please contact Megan Farr, Policy Officer at email@example.com or 07803 874 774
 European Network of Ombudspersons for Children Position Statement on “Child Rights Impact Assessment (CRIA)” Adopted by the ENOC 24th General Assembly, 18th November 2020. http://enoc.eu/wp-content/uploads/2020/11/ENOC-2020-Position-Statement-on-CRIA-FV-1.pdf
 A National Care Service for Scotland. p55. https://www.gov.scot/binaries/content/documents/govscot/publications/consultation-paper/2021/08/national-care-service-scotland-consultation/documents/national-care-service-scotland-consultation/national-care-service-scotland-consultation/govscot%3Adocument/national-care-service-scotland-consultation.pdf
 Letter from the Executive Office of the Secretary-General to Child Rights Connect. 19 October 2021. https://twitter.com/ChildRightsCnct/status/1454004201349132291
 SHRC Human Rights Based Budget work https://www.scottishhumanrights.com/projects-and-programmes/human-rights-budget-work/