Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by Scotland's Commissioner for Children and Young People

  As Scotland's Commissioner for Children and Young People, my role is to promote and safeguard the rights of children and young people. In doing so, I may promote best practice by service providers and keep law, policy and practice under review with a view to assessing their adequacy and effectiveness. I also raise awareness and understanding of children and young people's rights. In carrying out these statutory functions, I must have regard to the United Nations Convention on the Rights of the Child (UNCRC).

  I welcome the JCHR's inquiry into children's rights and the opportunity to submit written evidence. The comments below are informed by the general work of my office. Since taking up my post in 2004, I have worked on a range of children's rights issues, engaging with children and young people themselves as well as those who work with them. My evidence is also informed by my involvement in the UK's recent periodic report to the Committee on the Rights of the Child. Working jointly with the Children's Commissioners in England, Wales and Northern Ireland, I submitted an "alternative" report to the Committee and participated in the pre-sessional working group in June 2008.[496] Inevitably, the Commissioners' joint report could not cover all children's rights issues in the UK. In the limited space available, the Commissioners sought to identify issues of mutual concern across the UK and which we believed could be usefully raised with the Committee. We welcomed the Committee's Concluding Observations in October 2008 in which the concerns raised in our report were well reflected.

  In my evidence, I have chosen to focus on specific issues but would encourage the JCHR to take the UK Commissioners' joint report into account during its inquiry into children's rights. While some issues raised in the report have been progressed since its publication (for example, the removal of the UK's reservations to the UNCRC), the vast majority are still relevant today.


  Generally, progress has been made within Scotland and the UK in the implementation of the UNCRC. However, as is made plain by the Committee's Concluding Observations, much remains to be done. In particular, we still have some way to go in our attitudes towards children and our failure to perceive them as rights-holders rather than as objects of our protection. There is also much to be done with regard to the mainstreaming of children's rights and adopting rights-based approaches to law, policy and practice.

  During this recent UN state reporting cycle, I have been particularly pleased by the open and consultative approach taken by the Scottish Government. This approach has been facilitated by a dedicated children's rights team within the Government which takes the lead on issues relating to the UNCRC. The value of having such a team has been demonstrated in recent months by the drafting of an action plan which sets out the Scottish Government's response to the Concluding Observations. This plan of action is currently being consulted on. That the Scottish Government is actively considering its response to the Concluding Observations is a marked improvement from previous governmental responses: in the past, governments at both UK and devolved levels have tended to shelve Concluding Observations and have not developed plans for how they might be implemented. I hope that the Scottish Government's response to date is indicative of greater consideration of children's rights within government more generally.


  In your call for evidence, you noted that the JCHR is particularly interested in a number of issues. I will address some of these issues as well as raising additional areas of concern. I am also aware that other children's rights issues will be addressed in more detail by my counterparts in the UK.

Withdrawal of the UK's reservations

  I welcome the removal of the UK's reservation to Article 37(c) of the UNCRC but remain concerned that since its removal, young people under the age of 18 have been held alongside adults in prison in Scotland. Article 37(c) clearly states that children deprived of their liberty shall be separated from adults unless it is in their best interests not to do so. While we have much to be proud of in Scotland with regard to our welfare-based children's hearing system, we continue to imprison far too many 16 and 17-year-olds. It is imperative that we do more to develop alternatives to custody. When detention is necessary, it should be for the shortest time possible in child-centred settings.

Discrimination against children on the grounds of age

  In its Concluding Observations, the UN Committee notes the "general climate of intolerance and negative public attitudes towards children, especially adolescents, which appears to exist in the State party, including in the media, and may often be the underlying cause of further infringements of their rights".[497] This echoes a common complaint from young people themselves that they are regarded as a homogenous group, treated unfairly, ostracised and portrayed in a negative manner.

  It is in this context that Anti-Social Behaviour Orders (ASBOs), Dispersal Orders and the use of "Mosquito" devices should be examined. I would like to point out that the picture with regard to ASBOs and Dispersal Orders in Scotland is fundamentally different from that in England. Between 2004 and 2008, the Scottish authorities imposed 14 ASBOs on 12 to 15-year-olds, while in 2006 alone, 1,054 ASBOs were imposed on 10 to 17-year-olds in England and Wales.[498] Moreover, in Scotland, breach of an ASBO cannot result in a custodial sentence for a child under the age of 16. The Scottish Government is currently undertaking a review of anti-social behaviour legislation and its effectiveness, which is very welcome. I understand that other, less punitive measures are used more frequently, notably Acceptable Behaviour Contracts (ABCs). However, I remain concerned that the law and the discourse around anti-social behaviour targets young people and has the effect of limiting their opportunities to socialise and use public spaces; incidentally, in many areas of the country there is a lack of other things to do for children and young people.

  The nature of "Mosquito" devices,[499] a product that has been explicitly marketed as a "teen deterrent" adds another dimension to the problem. Their sale and use in the UK is currently unregulated. It is worrying that there should be a device that is specifically designed and used to "repel" children and young people and in effect exclude them from public spaces. It is my view that the Scottish and UK Governments should explore their legal options and consider a ban on the sale of these devices, which are discriminatory on grounds of (young) age by their very nature and used in a way that infringes children and young people's rights to free association and assembly (Article 15 UNCRC).

  The NGO Alternative Report for Scotland to the UN Committee asks for more to be done "to encourage tolerance of non-criminal behaviour of children".[500] Their concern, which I share, is that children and young people's freedoms and opportunities are unjustifiably limited by widespread discriminatory attitudes that manifest themselves in suspicion and hostility towards children and young people who are associating with each other in public spaces, often because they have nowhere else to go and meet their friends.

Criminalisation of children

  I am concerned that anti-social behaviour measures have the potential to criminalise young people for behaviour that is not in and by itself criminal. While many of the behaviours that may lead to an ASBO being sought by police and other agencies are not criminal, the breach of an ASBO is; this anomaly has also been remarked upon by the UN Committee.[501] The problem is smaller in scale in Scotland due to the lower number of ASBOs granted; however, I remain opposed to measures that unnecessarily criminalise young people through the backdoor and by circumventing their rights.

Minimum Age for Prosecution[502]

  The minimum age for prosecution in Scotland, currently at eight, is very low and the UN Committee has repeatedly asked for this to be raised across the UK.[503] The UN Committee has stated that, "a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable",[504] and recommends that it should be set at 14 to 16. The current, very low age is somewhat mitigated in Scotland by the fact that most offenders under 16 will be dealt with by the children's hearing system, which is focused on welfare-based responses to children and young people who commit offences. Despite the preference for the children's hearing system, there were upwards of 140 prosecutions of children under 16 in the adult courts in each year between 2004-05 and 2006-07.[505]

  However, the welfare focus does not mean that there can be no criminal consequences for children and young people in the system. In particular, accepting an offence ground of referral to the children's hearing is treated as a conviction for the purposes of the Rehabilitation of Offenders Act 1974. I am concerned that, as a result, despite the welfare focus of our juvenile justice system, some young people are given criminal convictions and a criminal identity by the system. This can lay the foundation for a life of criminality, taint young people's life chances and bring about the obvious adverse consequences for their communities.

  I am pleased that the Scottish Government has been actively considering raising the minimum age for prosecution in its forthcoming Criminal Justice and Licensing (Scotland) Bill, though the details and timescales are yet to be announced. I am advocating a minimum age for prosecution of at least 13, as this is a significant age in Scots criminal law. I am keen to emphasise that this is an issue of how our legal system responds to children and young people who commit crimes; it is not about children's moral understanding of what is right and wrong.

Discrimination against children on the grounds of disability

  Since its inception, my office has received numerous enquiries alleging breaches of the rights of children with disabilities. I have carried out several significant pieces of work in this area and would like to highlight, in particular, the following:

    — Moving and handling. I have heard from a number of children and young people with disabilities and their parents about difficulties with moving and handling. They attribute these difficulties to attempts to avert all risk and to protect the health and safety of the worker providing moving and handling assistance without having regard to the rights and needs of the young person. The children and young people describe feeling embarrassed, humiliated, undignified and excluded because of moving and handling difficulties. They say they are prevented from taking part fully in school and are unable to enjoy extra-curricular or other leisure activities. My office undertook a significant piece of research in this area and published the report Handle With Care in 2008. Given that health and safety legislation is a key issue in relation to moving and handling, this matter should be of concern to those at both UK and devolved levels.

    — Communication aids. Ensuring children and young people are able to exercise their Article 12 rights continues to be a challenge and this is particularly true in the case of children with communication difficulties, including those with non-verbal communication. For example, I have heard of cases where a young person's communication aid has been reclaimed by the local authority when they leave school, leaving the young person without their usual means of communication. This is a very rudimentary breach of the right to a voice. There is clearly a need to invest in communication aids and in training and support for families and professionals to enable them to competently use high and low tech communication aids.

Asylum seeking children

  I would ask the Committee to consider the recommendations that I and my colleagues across the UK made in relation to asylum in our joint submission to the UN Committee in June 2008.[506] The vast majority of our shared concerns are yet to be addressed by government, including the fact that detention of children is still used too frequently and not always as a last resort. However, I would also like to emphasise that the Scottish Government has made some progress that could be replicated across the UK, particularly by granting access to further and higher education to children seeking asylum who have attended Scottish schools for three years or more.

Children of prisoners

  In its 2008 Concluding Observations, the Committee on Rights of the Child expressed concern at the situation of children with one or both parents in prison. It recommended that the UK, "ensure support to children with one or both parents in prison, in particular to maintain contact with the parent(s) (unless this is contrary to their best interests) and prevent their stigmatisation and discrimination".[507]

  This recommendation echoes work recently done by my office in relation to the children of prisoners. It is thought that about 13,500 children in Scotland are affected by the imprisonment of a parent.[508] The increase in the number of people imprisoned not only means that more children are affected, but also contributes towards prison overcrowding which in itself restricts family contact and visits. While offenders give up their rights to liberty upon imprisonment, their children certainly do not give up their rights to know their parent and maintain contact with them.

  With this in mind, in 2008, I published "Not Seen. Not Heard. Not Guilty. The rights and status of the children of prisoners in Scotland", a report in which I argued that the children of prisoners are the invisible victims of crime and of our penal system.[509] Little regard is had to their rights when decisions are made regarding an offending parent, whether it be a sentencing decision or decisions about family contact while a parent is in prison. In the report, I examined law, policy and practice relevant to these children and made recommendations that aimed to promote respect for their rights. One such recommendation was that when courts take sentencing decisions regarding a parent, the rights and interests of children should be taken into account. This recommendation echoes a recent judgment of the Constitutional Court of South Africa in which the Court held that the best interests of the child should be taken into account when sentencing a primary caregiver of young children.[510]

  It is arguable that imprisonment of a parent breaches the child's right to respect for family life under Article 8 of the ECHR. Whilst it may be that this is a proportionate response to achieve a legitimate end in some cases, my view is that the impact on children who will be deprived of a significant carer should at least be taken into account at the point of sentence to ensure that there is a transparent and thoughtful decision about proportionality.

  The recommendations in my report were directed at various organisations (including for example, the Scottish Government, the Scottish Prison Service and others) and I am currently following up on these to ascertain what progress has been made.

Other issues

  In addition to the issues raised above, I would like to briefly mention some other key issues covered in the Concluding Observations which I feel must be addressed to ensure effective implementation of children's rights:

    Incorporate the UNCRC into domestic law

    The incorporation of any international treaty can be a long and complex process, but I would urge the UK Government and devolved administrations to begin this process by exploring ways in which the provisions and principles of the UNCRC can be incorporated into domestic law.

    Disseminate and raise awareness of the UNCRC

    To ensure respect for children's rights, it is essential that children and adults alike know what those rights are. There should be a comprehensive awareness raising initiative which also encompasses training for all professionals working with and for children. This is a role for the Scottish Government and others, including my own office.

    Ensure respect for the views of the child

    We must build on the good practice already evident in Scotland and around in the UK with regard to listening to children and young people and taking their views into account in decisions about their lives.

    Prohibit all physical punishment of children

    The Committee on the Rights of the Child expressed regret at the UK's continued failure to prohibit all forms of physical punishment against children. In addition to legal reform, the Committee has recommended that positive and non-violent forms of discipline be promoted and that support be provided to parents and professionals.

    Carry out children's rights impact assessments

    This will assist in monitoring the implementation of children's rights and ensuring resources are allocated to maximise positive outcomes for children. Children's rights impact assessments may prove particularly useful in the current Scottish context to ensure that responsibility for implementation of the UNCRC is devolved along with devolution of powers to local authorities.[511]

  Thank you again for the opportunity to submit written evidence. Should you require any further information, please do not hesitate to contact me.

February 2009

496   UK Children's Commissioners, UK Children's Commissioners' Report to the UN Committee on the Rights of the Child (June 2008) available at Back

497   Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties under Article 44 of the Convention, Concluding Observations, United Kingdom of Great Britain and Northern Ireland, 3 October 2008, CRC/C/GBR/CO/4, para 24. Back

498   HM Government, Implementation of the Convention on the Rights of the Child: Response to the list of issues raised in connection with the consideration of the third and fourth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/4, paras 165-167. Back

499   The Mosquito "Teen Deterrent" device emits a noise at a frequency range that, according to the manufacturer, most people over 25 cannot hear. This is a product description from the manufacturer's website: "The MosquitoTM Anti-Vandal System is the solution to the eternal problem of unwanted gatherings of youths and teenagers in shopping malls, around shops and anywhere else they are causing problems. The presence of these teenagers discourages genuine shoppers and customers from coming into your shop, affecting your turnover and profits. Anti social behaviour has become the biggest threat to private property over the last decade and there has been no effective deterrent until now." ( wodeAPNdw) Back

500   Scottish Alliance for Children's Rights, The NGO Alternative Report (Scotland) to the United Nations Committee on the Rights of the Child (2008), p10. Back

501   See n2, para 79. Back

502   I prefer the term "minimum age for prosecution" over "age of criminal responsibility" because the latter term suggests that this debate is about is children and young people's moral capacity to distinguish right from wrong, while the former, more to the point, suggests that it is about the way our legal system deals with children and young people who commit crime. Back

503   Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties under Article 44 of the Convention, Concluding Observations, United Kingdom of Great Britain and Northern Ireland, 9 October 2002, CRC/C/15/Add.188, para 62; n2, para 78. Back

504   Committee on the Rights of the Child, General Comment No 10, Children's Rights in Juvenile Justice (2007), CRC/C/GC/10, para 16. Back

505   See n3, para 176. As the UNCRC covers all children and young people under the age of 18, it is also worth noting that there were over 8,500 prosecutions in each year involving 16 and 17-year-olds. Back

506   See n1, paras 152-170. Back

507   See n2, para 45(d). Back

508   Figure estimated by Families Outside ( This is probably an under-estimate. More recently, it has been suggested there are 16,500 children of prisoners in Scotland. Back

509   The report is available online at Back

510   S v M [2007] ZACC 18. Justice Albie Sachs, who gave the leading judgment in S v M, will be delivering a lecture on the rights of the children of prisoners in Edinburgh on 24 June 2009. For more information, contact the SCCYP office. Back

511   My office has developed a children's rights impact assessment tool. For further information see SCCYP, Children's Rights Impact Assessment: The SCCYP Model (2006) available at Back

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