This blog was written by Professor Ursula Kilkelly, Head of College, School of Law, University College Cork, Ireland. Professor Kilkelly presented at the ‘UNCRC in Scotland’ series seminar 1 on Friday 10th February on the ‘UNCRC in Law’. The series consists of 4 seminars held in partnership between Together, the Centre for Research on Families and Relationships, and the Centre for Child Wellbeing and Protection at the University of Stirling. It seeks to improve — and address gaps — in the implementation and monitoring of the UNCRC in Scotland.

Abstract: Article 4 of the UNCRC requires States Parties to take all measures to implement the Convention and, in recent years, focus has intensified on the legal and other means by which Convention rights can be given effect at national level.  A number of studies have identified the momentum building, especially in Europe, to incorporate children’s rights into national constitutions and UNICEF’s UK study of implementation in 12 countries revealed important trends in the incorporation of children’s rights principle into national laws, with interesting results. This presentation highlighted this learning and make recommendations as to how this can be applied in Scotland.

The United Nations Convention on the Rights of the Child is widely accepted to be the most important legal treaty concerning children under 18 years. It sets out the rights to which children are entitled in all areas of their lives – education, healthcare, family life – and recognises that especially vulnerable children – including migrant children, children with parental care and children with disabilities – require particular protection. The Convention stands as the benchmark against which states’ treatment of children is measured and it places specific responsibilities on states to take all appropriate measures to ensure that the Convention is implemented and ‘made real’ for children. The Committee on the Rights of the Child, the body set up under the Convention to monitor and advise on the Convention’s implementation, has recommended that states take both legal and non-legal measures to this end.

In the 25 years since the Convention came into force, an increasing number of states have decided to take steps to give its provisions the effect of national law.  This has happened in different countries in different ways and includes measures like the Children and Young People (Scotland) Act 2014, a welcome measure that places the UNCRC on statute for the first time.  At the same time, there is concern that only incorporation of the UNCRC into domestic law can provide full and effective protection of children’s rights in Scotland.  So, what do we know from international experience about why Scotland should take this step? There are three reasons:

1. By ratifying the Convention, the United Kingdom (and Scotland by extension) made an international legal commitment to children’s rights and undertook to fulfil its obligations to implement the Convention. Deciding to give the Convention’s provisions the force of national law makes clear that this is a commitment which Scotland is determined to honour at a national level also.
2. Taking steps to incorporate the Convention allows a greater coherence between Scotland’s international obligations and its national law. National law is the primary authority to which public bodies and decision-makers refer in setting their priorities, making budget allocations and exercising discretion for example. In this way, giving the Convention national status will mean that children’s rights become an explicit part of decision-making at national level, enabling them to be ‘weighed in the balance’ when objectives are being agreed and decisions made about children’s needs. Without this, children’s rights are easier to ignore.
3. The process of incorporating the Convention has been shown to have positive benefits beyond the legislative procedure. This happens in two ways – first, because awareness-raising is often necessary to persuade the legislature to take the steps towards incorporation, the process helps to increase understanding and knowledge about the Convention among the public and decision-makers. Second, because compliance with national legislation would demand an awareness of children’s rights, incorporation would have to be accompanied by an education and training programme for those who work with and for children. The result is that the whole process of incorporation serves to enhance awareness, information and sensitivity towards children’s rights leading to greater respect for the rights of children in practice.

Around the world, states are deciding to give the status of national law to the Convention’s provisions. There are lots of examples of good practice of how this can be done, taking account of national legal systems and social and economic conditions. In some instances, this has taken the form of constitutional change and in others, it has involved the integration of the Convention’s general principles into sectoral laws on child protection, family law and, more recently, immigration and youth justice. Overall, Scotland has much to gain and little to risk by taking such steps. It would, in effect bring children’s rights home to children with all the political and legal impact that such a decision entails.

Find out more about ‘the UNCRC in Law’ seminar and access other materials here.

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