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Childhood and Youth Studies

Childhood and Youth Studies

Contributing to realising children and young people’s human rights through research, teaching, policy and practice in childhood and youth studies

From Rhetoric to Accountability: Children’s Human Rights and the Law – The Case of the Children (Scotland) Act 2020

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Reading Time: 7 minutes

Authors: Dr Fiona Morrison and Professor Kay Tisdall

Programme Director for Childhood Practice / Lecturer in Childhood Studies

Chair of Childhood Policy

Incorporation of the United Nations Convention on the Rights of the Child (UNCRC) into Scots law represented a pivotal moment in Scotland’s efforts to become a nation where children’s human rights are taken seriously and where there is accountability for them. On December 10th 2024, the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee met to undertake post-legislative scrutiny, taking evidence from the Government on the slow progress in implementing legislation passed by the Scottish Parliament. The Committee focused on three pieces of legislation: the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020, the Domestic Abuse (Protection) (Scotland) Act 2021, and the Children (Scotland) Act 2020. All of these are significant for children’s human rights —from addressing bodily autonomy and safety, to tackling homelessness stemming from domestic abuse and child protection, and the regulation of child and family relationships. During the Committee meeting, various reasons for delays in implementing the legislation were discussed. These included inherent complexities of implementing the Acts, the significant impact of the Covid-19 pandemic on Government and partners, and financial constraints.

Focusing on the Children (Scotland) Act 2020, this blog considers the gap between making law and realising children’s human rights. Despite progressive legislation, delays in implementation jeopardise children’s human rights and Scotland’s reputation as a leader in this field. This raises questions about the robustness of accountability systems and the effectiveness of current legislative and parliamentary processes.

What do we mean by accountability?

Interpretations of what accountability for children’s human rights entails vary.  Accountability was defined by UNICEF in 2015 as:

“the ability to make certain those charged with protecting and fulfilling child rights actually do what they are supposed to do, and if they do not or cannot, that children and their representatives have some recourse”.

Incorporation of the UNCRC into Scots law underscores the relationship between children as rights claimants and the accountability of duty-bearers to respect, fulfil, and support children’s human rights. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 requires all Scotland’s public authorities, including the Government, to seek to protect children and young people’s rights, to consider these rights when making policy decisions and make it unlawful for public authorities to contravene UN Convention on the Rights of the Child (UNCRC) requirements. It also allows for children and young people to use the courts to enforce their rights and for the the Children and Young People’s Commissioner Scotland and Scottish Human Rights Commission to take legal action to ensure children’s human rights are met.  Incorporation strengthens the legal framework for children’s human rights accountability and prompts reflection on the effectiveness of rights accountability for policy implementation in Scotland.

Wider literature identifies multiple accountability mechanisms that extend beyond legal and quasi-judicial domains, to include political, administrative, and social forms of accountability. However, children’s direct access to these mechanisms is frequently restricted and often mediated through adults. For example, children’s access to legal accountability is blocked in Scotland, because children’s access to legal aid in family law cases depends on assessing their parents’ income. Political accountability is blocked for younger children, who cannot vote nor stand for political office. Legal restrictions and capacity assumptions often act as barriers to children being able to access accountability mechanisms.

Children (Scotland) Act 2020 – what did it set out to do?

The Children (Scotland) Act 2020 had a range of policy objectives, seeking to: ensure the views of the child are heard in contact and residence cases; further protect victims of domestic abuse and their children; ensure the best interests of the child are at the centre of contact and residence cases and Children’s Hearings; and ensure further compliance with the UNCRC in family court cases. These sought to address significant concerns over the implementation of children’s participation rights under UNCRC Article 12 in disputes about child contact and residence, issues we explored in earlier  research.

The resulting legislation is progressive in promoting children’s participation rights. Key aspects of the UN Committee on the Rights of the Child’s General Comment on Article 12 are now integrated into Scots child and family law, offering a framework to implement these rights in both law and practice. For example, Section 1(4) of the Children (Scotland) Act 2020 requires the court to give the child the opportunity to express their views in a manner they prefer, or in a way that is suitable to the child unless it would not reasonable to accommodate the child’s preference or the child has not expressed a preference. It requires the court to presume that the child is capable of forming a view, unless the contrary is shownSection 20 of the Act requires the court to explain its decisions to the child in a way the child understands, with some qualifications.  Section 31 also requires Ministers to review the impact of the legislation on children’s ability to effectively participate in decision-making within five years of the Act receiving Royal Assent. This provision was seen to be protective of children’s rights and a way to build accountability for children’s rights into the legislation.

Sounds great – what’s the problem?

While the legislation provides a strong framework for children’s participation rights, the practical implementation by courts remains a significant concern. During the legislative process, there was a strong push to establish a supportive infrastructure, including child advocacy services, to ensure courts are equipped to implement these provisions and uphold children’s rights. This led to the introduction of Section 21 during the final stages of the Bill’s passage through Parliament, requiring Ministers to ensure the accessibility of advocacy services for children involved in parental disputes like child contact and residence.

Despite these promising legislative developments, the establishment and implementation of children’s advocacy services have yet to materialise. Consequently, although legislation has been designed to embed children’s participation rights in court practices, courts lack the necessary resources and infrastructure to effectively implement these rights in practice.

What does this mean for rights accountability?

The Equality, Human Rights and Civil Justice Committee is a place for scrutiny of rights accountability. However, its discussions on the Children (Scotland) Act 2020 were limited, focusing primarily on delays in implementing provisions about child contact centres and Child Welfare Reporters. Children were not invited or directly represented at the Committee meeting, leaving them unable to discuss or raise concerns with lawmakers about the law’s stalled implementation.

Notably, the Committee did not fully address the duty on Ministers to ensure advocacy services for children involved in contact and residence proceedings. The lack of progress in this area jeopardises children’s participation rights and undermines their best interests, both of which are General Principles of the UNCRC and were policy objectives of the legislation. Children’s rights urgently require action. The current legislation, specifically Section 31, requires a review of the legislation’s impact on children’s participation in decision-making. However, this has failed to accelerate action or strengthen rights accountability. This raises significant concern about the effectiveness of the parliamentary processes and legislative requirements that had intended to embed accountability for children’s rights.

As well as implementing systems of advocacy to facilitate children’s participation rights, we also need broader mechanisms for accountability. The Observatory of Children’s Human Rights Scotland’s Theory of Change identified the need for a comprehensive accountability system: ensuring information, child-friendly complaints (an area being developed by the SPSO for public bodies), child advocacy, and accessible routes to seeking remedy and redress. A robust data architecture is needed to effectively monitor and improve the implementation of children’s human rights in courts and beyond. In the context of children’s participation rights and family law, systematic data collection is needed to track court decisions, the nature of cases, and the application of children’s rights in this. This should include children’s experiences of court processes, to gather evidence on their experiences of their rights. Without disaggregated data on how rights are implemented, or ways for children and their representatives to raise rights breaches, accountability in practice remains elusive.

Courts and parliamentary committees, designed with and for adults, risk inadequately serving children. An overhaul is needed – to recognise children as rights holders – and to actively involve them in policy – from its design, through to its implementation, scrutiny, and evaluation. Accountability systems for children’s human rights must be developed with children, providing legal, political, administrative, and social pathways for accountability at individual and collective levels. This would provide a basis for children, and their representatives, to ensure that those responsible for safeguarding children’s rights fulfil their obligations and provide pathways for recourse when they do not. Until these issues are addressed, children’s rights risk being more of a rhetoric than a reality.

Acknowledgments

The research and learning underpinning this output was supported by several research grants:

  • Royal Society of Edinburgh Personal Research Fellowship on children’s rights accountability in law (September 2024- September 2025)
  • ESRC IAA Grant with cross-sector partners on implementing the UNCRC in Scotland (September 2024 – August 2025)
  • Scottish Government Grant: Children’s Participation in Family Actions: Probing Compliance with Children’s Human Rights (May 2018 – March 2020)

It builds on our learning on children’s participation rights and family law:

Morrison, F. and Tisdall, E.K.M. (2022) UN Call for Evidence on Custody cases, violence against women and violence against children.

Morrison, F., Friskney, R., and Tisdall, E.K.M (2019) Response to Justice Committee Call for Evidence on the Children (Scotland) Bill

Morrison, F., Tisdall, E.K.M. and Callaghan, J. (2020). ‘Manipulation and Domestic Abuse in Contested Contact – Threats to Children’s Participation Rights’. Family Court Review, 58(2), pp. 403-416.

Morrison, F., Tisdall, E.K.M., Children 1st and Scottish Women’s Aid (2020) Joint briefing on the Stage 2 debate of the Children (Scotland) Bill: protecting children’s rights in the civil justice system

Morrison, F., Tisdall, E.K.M., Warburton, J., Reid, A. and Jones, F. (2020) Children’s Participation In Family Actions – Probing Compliance With Children’s Rights Research Report. Scottish Government.

Tisdall, E.K.M., Morrison, F. and Warburton, J. (2021). ‘Challenging undue influence? Rethinking children’s participation in contested child contact‘. Journal of Social Welfare and Family Law, 43(1), pp. 8-22.

And on rights accountability for children’s human rights, we want to acknowledge the collective work undertaken with the Observatory of Children’s Human Rights Scotland. Associated publications are:

Berry, H., Davidson, J., Di Gianni, E., Morton, S., Tisdall, E.K.M., and Wason, D. (2022) Theory of Change for Making Children’s Rights Real in Scotland

Morrison F., McCormack, M. and Tisdall, E.K.M. (2020) Response to call for views on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland)

Tisdall, E.K.M. and Morrison, F. (2023). ‘Children’s human rights under COVID-19: learning from children’s rights impact assessments’International Journal of Human Rights,  27(9–10), pp. 1475-1491.

Tisdall, E.K.M. and Morrison, F. (in press). ‘Vulnerability under Covid-19: Children’s Human Rights Under Lockdown’. In T. Haugli (Ed.), Perspectives on Children, Rights and Vulnerability.

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