Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by the Law Society of Scotland


  The Family Law Sub-Committee of the Law Society of Scotland (the Sub-Committee) welcomes the opportunity to assist the Joint Committee on Human Rights with their inquiry on children's rights.

This paper looks at the following issues:

    — children in detention; and

    — children's right to express views in relation to education.

Children in detention

  In Scotland, the vast majority of children under 16 who are in detention have been placed there by the Children's Hearing system.[271] They are held in secure units, which contain only children and young people under the age of 18. Although only children under the age of 16 may be referred to the Children's Hearing system, a young person may remain under a Supervision Requirement until the age of 18. In criminal matters a young person who is over the age of 16 and under the age of 18 may have their case referred to the Children's Hearing System.[272] A child or young person may therefore be held in Secure Accommodation if a Children's Hearing grants authorisation in addition to a Supervision Requirement, or under a place of Safety Warrant,[273] or if ordered by a court.[274]

If a Children's Hearing grants authorisation for secure accommodation, such authorisation may only be granted for a maximum period of three months[275] at a time. The child's case must be reviewed after each three-month period. Place of Safety Warrants may only be granted for a duration of 21 days, with the Hearing only being empowered to grant two warrants immediately succeeding the initial warrant.

  The criteria for authorising placement in Secure Accommodation are clearly set out in section 70 (10) of the Children (Scotland) Act 1995:

    "| that the child—

    (a)  having previously absconded, is likely to abscond unless kept in secure accommodation, and, if he absconds, it is likely that his physical, mental or moral welfare will be at risk: or

    (b)  is likely to injure himself or some other person unless he is kept in such accommodation."

  Thus the welfare of the child is the paramount consideration and the purpose of secure accommodation is the management of the behaviour of the child and the prevention of further risk while the child receives the necessary supports to deal with the causes of their behaviour. The purpose of detention in secure accommodation is not the punishment of the child or young person.

  The Scottish Government, through the Secure Accommodation (Scotland) Regulations 1996 has set down basic standards for the care of children and young people held, and monitors the units where such care is provided through inspections.

  There are concerns, however, concerning the actual day-to-day treatment received by such children and young people in secure accommodation and compliance of their treatment with the articles of the United Nations Convention on the Rights of the Child.

  These include:

    1. Article 16 requires that children be protected from arbitrary or unlawful interference with their right to privacy. The practice at some units of routinely requiring children who have been outwith the unit to remove all their clothing and to do "star" jumps clad only in a dressing gown, while their clothing is searched is not compatible with Article 16. While it may be necessary to search children where there is reason to believe that they have secreted drugs or dangerous items it should not be routine.

    2. There has been a practice at some units of requiring children to conduct all telephone conversations in the presence of staff as a routine measure. This is not compliant with the article 16 right to privacy unless there is reasonable cause to believe that it is necessary for the protection of the child, or others that such confidentiality be breached.

    3. Article 13 requires respect for medical confidentiality. Children must be allowed access to medical practitioners without the unit requiring that they disclose the reason, or the medical practitioner being required to disclose details of the consultation to the unit. In the case of a chronic or serious medical condition, it will be necessary to encourage the child to permit the unit to have details of the illness or condition and treatment.

    4. The same Article 13 principle requires that children held in secure accommodation have access to a complaints system that respects their right to complain without that complaint being read first by the staff of that unit. The current complaints system does not have procedures which prevent staff opening the sealed envelope in which the child places any complaint.

    5. Article 3 requires that States Parties ensure, among other things the health of children. Children held in secure accommodation should have guaranteed access to fresh air and physical activity. All too often access to exercise and fresh air can be dependant on staff being free and willing to supervise.

    6. The duties of States Parties in Article 3 require that the staff of secure units be able to provide for the health of the child and, in order to ensure the effective care for the mental health of children in secure accommodation, consideration could to be given to:

    (a)  separation of particularly vulnerable child who are in secure because of behaviour that is a danger to themselves from those children who are held because they are a risk to other;

    (b)  "in house" specialist treatment for problems such as self harming and eating disorders so that children can be treated effectively without need to be taken from the unit to treatment which can be at a distance from the unit; and

    (c)  effective training in the management of self-harming and eating disorders for unit staff.

    7. It is praiseworthy that the Scottish Government has stated that no child is to be held in adult prison accommodation. This should be extended to the transportation of children and young people so that no child or young person is transported in adult cellular transport or with adult prisoners. In addition, it should be the requirement that no child can be subjected to adult pain restraints whether within a unit, a holding area in court or during transport.

Children's right to express views in relation to education

  Article 12 of the United Nations Convention on the Rights of the Child requires states parties to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. The article goes on to require that children be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

The requirements of article 12 are reflected in the provisions of the Children (Scotland) Act 1995, and in particular in section 11(7)(b) when a court is considering whether to make an order relating to parental responsibilities or parental rights. The court is required to give the child an opportunity to express a view, if the child does so wish then to give the opportunity to do so and finally to have regard to any views the child does express. It has been recognised that this provision reflects the terms of article 12 and failure to give the child the opportunity to express a view is treated as an error of law.[276] There are similar provisions affecting the children's hearing and the sheriff in proceedings relating to the protection of children's welfare.[277] There are no corresponding provisions in relation to education.

  Education is clearly a matter affecting the child for the purposes of article 12. The Scottish Parliament has recognised that article 12 applies in the sphere of education. Section 2(2) of the Standards in Scotland's Schools etc. Act 2000 requires education authorities to have regard, so far as reasonably practicable, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking account of the child or young person's age and maturity. This duty is not dissimilar from the obligation on a parent to have regard to the views of children.[278] What is missing is any provision for the child to have the opportunity to be heard in judicial and administrative proceedings relating to education. As is recognised by article 12 itself a general requirement to have regard to the views of the child is likely to be ineffective unless there is a specific mechanism to give the child the opportunity to express a view as part of the procedure relevant to judicial or administrative proceedings.

  Within the field of education there are four areas in particular where children's views are relevant but there is no procedural requirement to give the child the opportunity to express a view:

    1. Placing requests. The only person entitled to make a placing request for a child of school age to attend a particular school is a parent.[279] The only person who may appeal to an appeal committee[280] and make an appeal to the sheriff[281] is a parent. There is no provision for the child to be given the opportunity to be express a view to either the appeal committee or the sheriff. This is contrary to the terms of article 12(2).

    2. Exclusion appeals. When a child of school age is excluded from school the parent may refer the exclusion to an appeal committee and may appeal to the sheriff.[282] The Standards in Scotland's Schools etc Act 2000 gave pupils with legal capacity the same right to appeal as the parent.[283] While this does reflect some concession to children's rights the following problems remain:

    —  If the parent appeals, but not the child, there is no provision for the child to be given the opportunity to express a view to the appeal committee or the sheriff.

    —  Only a child with legal capacity may appeal. The test of legal capacity is whether a child has a general understanding of what it means to instruct a solicitor.[284] No legal aid is available for a child to instruct a solicitor in a reference to an appeal committee. In practice a child is unlikely to be able to instruct a solicitor without legal aid. The right conferred on the child is therefore ineffective in most cases.

    —  It is unclear whether both the parent and the child have a right to appeal, or whether an appeal by one will preclude an appeal by the other. Both may have an interest in appealing, but their positions may differ. The lack of clarity undermines the effectiveness of the provision as an appeal right for either.

  These difficulties indicate that further consideration is required to make the procedures relating to exclusion compliant with article 12(2).

    3. References to the Additional Support Needs Tribunal. The ASNT was established pursuant to the Education (Additional Support for Learning) (Scotland) Act 2004. It operates under the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006.[285] It deals with matters relating to co-ordinated support plans for children for the purposes of their education. Although this is a new tribunal with new rules, no consideration appears to have been given to article 12. The rules are actively restrictive in relation to giving the child the opportunity to be heard. Rule 33 provides that the tribunal may permit a child under the age of 12 to give evidence only where it considers (a) that the evidence of the child is necessary to enable a fair and just hearing of the reference; and (b) that the welfare and interests of the child will not be prejudiced by so doing. If the child is allowed to give evidence the convenor may appoint a person with appropriate skills or experience to facilitate the giving of evidence by the child. The latter provision is consistent with article 12, but the lack of any other procedure for the child's views to be made known to the tribunal does not accord with article 12(2).

    4. Consultation on changes in education. When an education authority proposes to make certain changes in the provision of education they are bound to undertake consultation.[286] The changes include closing a school, changing the site of a school, providing a new school and altering the way places in schools are allocated or changing guidelines for dealing with placing requests. Regulations specify who should be consulted and in what way the consultation should be carried out.[287] Parents and other interested persons and groups are given an opportunity to express a view. While this is not a judicial process, consultation is an important administrative process. It would be consistent with article 12 for the position of children to be recognised in the relevant regulations. It would be relatively straightforward to include in the regulations a mechanism for giving children in attendance at a school affected by a proposal the opportunity to express a view.

February 2009

271   Children (Scotland) Act 1995, s 70 (9). Back

272   Criminal Procedure (Scotland) Act 1995 s 49. Back

273   s 69 (11). Back

274   Criminal Procedure (Scotland) Act 1995 s 44, s 51. Back

275   Secure Accommodation (Scotland) Regulations. Back

276   S v S, 2002 SC 246. Back

277   Children (Scotland) Act 1995, s 16(2). Back

278   Children (Scotland) Act 1995, s 6(1). Back

279   Education (Scotland) Act 1980, s 28A. Back

280   Education (Scotland) Act 1980, s 28C. Back

281   Education (Scotland) Act 1980, s 28F. Back

282   Education (Scotland) Act 1980, s 28H. Back

283   S 41. Back

284   Age of Legal Capacity (Scotland) Act 1991, s 2(4A). Back

285   SSI 2006/88. Back

286   Education (Scotland) Act 1980, s 22A. Back

287   Education (Publication and Consultation etc ) (Scotland) Regulations 1981, SI 1981/1558, as amended. Back

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