Justice for children

Written by Katy Nisbet, head of legal policy at Clan Childlaw

In 2024 there were some significant policy and legal changes which aim to better protect children’s rights in Scotland and reflect a commitment to creating a Scotland where children’s rights are respected, protected and fulfilled.

 Two landmark laws were passed:

1. UNCRC (Incorporation) (Scotland) Act 2024: This law allows public bodies to be held accountable for not complying with the United Nations Convention on the Rights of the Child (UNCRC). Scotland is the first UK nation to incorporate this, though it only applies to devolved areas legislated on by Acts of the Scottish Parliament.
2. Children (Care and Justice) (Scotland) Act 2024: This Act will make changes to the law in relation to the care of children and the involvement of children in the criminal justice system, which ultimately will improve compliance with the UNCRC. However, although the Bill became an Act on 4^th June 2024, a limited number of its provisions are currently in force, and there is no timetable for their introduction. Significantly, however, the part that deals with ending the imprisonment of children did become effective from the end of August 2024, and this is a milestone achievement.

In addition to recent legislative changes, several consultations have been conducted on the following: reforming the Children’s Hearing system; continuing care and aftercare provisions; the Care Leavers Payment; the future of foster care; and the definition of care experience. These consultations will likely set the stage for the Promise Bill in the coming years.

These developments combine with the aim to ensure children are recognized as rights holders, their rights are upheld and accountability is enforced when they are not. However, these policy changes face challenges. We have seen many good policy and legislative changes being made by the Scottish Government over the years but implementation of these has been poor, with delays in bringing into force new duties and existing ones not being properly executed.

As a result, issues persist. Non- or inconsistent implementation of duties is one of the biggest issues we see in our practice. For instance, when a child’s right to family life is disrupted, with siblings not being kept together where it is appropriate and contact not being promoted as existing law says it should. Or care leavers facing risks of poverty and homelessness due to inadequate compliance with continuing care and after-care duties.  

In addition, we are now seeing an increase in differences in the implementation of duties among vulnerable groups. Unaccompanied asylum-seeking children are being housed in adult hotel accommodation, violating local authorities’ duties to support them as children. And children from England and Wales who are in Scotland on Deprivation of Liberty Orders (DoL orders) being placed in non-secure residential accommodation that is not suitable for their needs, nor compliant with UNCRC. 

While the reasons for these implementation failures are complex, the history of it leads us to question the effectiveness of these recent and proposed changes. To truly make the shift to a children’s rights culture envisaged by the UNCRC Act, we need to continue to push for implementation, to ensure existing and future legislative changes truly benefit the children they are designed to protect.

We will continue to engage with the Government, and our biggest hope for next year is to see a more consistent implementation of existing duties, along with a commitment to access to justice when that does not happen. 

Hopes and Predictions for 2025

This year, we hope the Scottish Government will commit to expanding the scope of the UNCRC Act. Including key legislation like the Children (Scotland) Act 1995, the Education (Scotland) Act 1980, the Criminal Procedure (Scotland) Act 1995, and the Social Work (Scotland) Act 1968 would enhance accountability for duty holders. The ongoing Education (Scotland) Bill currently in Parliament could initiate this process for some of these duties.

The impact of DoL orders on children remains a concern. The Scottish Government must ensure all children being cared for in Scotland receive equal rights protection. By not doing so, children on DoL orders are either being deprived of their liberty in accommodation that does not meet their needs – in breach of Article 5 of the ECHR and Article 37 of the UNCRC. Or the accommodation provider doesn’t deprive them of their liberty but consequently fails to keep them safe – in breach of Article 2 of the ECHR and Article 6 of the UNCRC – a child’s right to life. On current timescales, these issues are unlikely to be addressed until 2026, which is not good enough when the breaches complained of are so fundamental. 

Further legislative developments are anticipated next year through the long-awaited Promise Bill. The recent consultation activity is likely to shape its content, and we think the main focus of the Bill will be on the legislative changes needed to redesign the Children’s Hearings system. A Redesign Board is also exploring policy changes that can be implemented without new legislation.

We are keenly awaiting the outcomes from the Redesign Board, as many recommendations from the Redesign Report were not included in the consultation, so will likely not be in the Promise Bill. Many of these recommendations are critical to improving children’s access to justice. For instance, one of the report’s recommendations includes providing child-centred, trauma-informed training for all involved in the Children’s Hearing System, especially lawyers, with a suggestion that this might be a requirement for all lawyers practicing in the redesign system. At Clan, we believe that every child has the right to a lawyer who practices child-centred law, whatever their legal specialism to ensure their right to be heard and to access justice. Making it a requirement of a redesigned Children’s Hearing System is a good place to start fulfilling that duty.

To support this goal, we have collaborated with the Law Society to create a Lawyers for Children certification, complementing our Lawyers for Children membership. This initiative helps us share our knowledge and expertise in delivering child-centred legal practice. The first cohort of Lawyers for Children graduated this year.

As the UNCRC becomes more embedded in Scotland and its scope expands, more children will seek to assert their rights. We hope that lawyers will turn their attention to how they deliver those services to children, because without child-centred legal practice, true access to justice for children will remain out of reach. 

You can find out more about the Society's Lawyers for Children Certification Course here, and also Clan Childlaw.

Clan Childlaw is Scotland’s only charity providing free, independent legal representation exclusively for children and young people in court and at Children’s Hearings. We witness firsthand the gaps in the legal system that fail to protect their rights, especially for those with care experience.