As we approach the UK’s review by the UN Committee on the Rights of the Child on 18-19^th May, Together is publishing a daily blog to examine some of the key issues likely to be raised. Today we look at Scotland’s inconsistent definition of a “child” and some of the rights violations that result.

Article 1 of the United Nations Convention on the Rights of the Child (‘UNCRC’) is clear – a child means anyone under the age of 18. The definition of a child in Scots law can vary depending on the context, leading to confusion and inconsistency in the application of child-related laws and policies.

Some parts of Scots law meet the UNCRC standard – for example the Children (Scotland) Act 1995 and Children and Young People (Scotland) Act 2014 define a child as under 18. However, a lower threshold is used in many other areas – for example:

• Criminal law: 16- and 17-year-olds can be tried in adult courts and detained in Young Offenders Institutions;
• Adults with incapacity: 16- and 17-year-olds can be defined as adults with incapacity and deprived of their liberty in adult wards.
• Children’s Hearings System: a child is generally defined as a person under 16 – but in certain circumstances, they will be treated as a child until they turn 18 (for example if they are subject to a Compulsory Supervision Order).

Society often views age limits as key markers between childhood and adulthood – for example, the right to vote in elections, the age of consent, the age at which people can get married, get a full time job or join the army. But the lawmakers who set these limits often did so with little understanding of children’s rights or the distinction between “protection” and “participation” rights:

• Protection rights exist to shield children from harm, exploitation or abuse that threatens their dignity, survival or development. Legislation to uphold these rights must ensure that protection extends right up until a person’s 18^th birthday.
• Participation rights are about enabling children to express themselves and be active agents in their own lives. Governments must uphold children’s participation rights at all ages, recognising and accommodating children’s evolving capacities in line with Article 5 as they move from the early years up through into their teens.

Scots law embeds 16 as a significant age for participation rights – for example, it is the age at which children are assumed to have full legal capacity and can vote in Scottish Parliament elections. But this should not affect the definition of a child, nor should it result in legislation that restricts protections to a narrower group. Legislation which seeks to protect children from harm but uses a narrower definition of “child” than set out under Article 1 UNCRC (e.g. by defining a child as under 16) is a violation of children’s rights.

In our 2023 State of Children’s Rights Report, Together identified three particular areas of concern where 16- and 17-year-olds are defined as adults and therefore excluded from protection they are entitled to as children: the age of marriage at 16; the age of armed forces recruitment at 16, and the definition of a child within the justice system as being under 16. The purpose of age limits/definitions in each of these pieces of legislation is about protecting children from harm, exploitation or abuse – accordingly they should reflect the definition of a child as being under 18. This would mean raising the minimum age of marriage to 18, raising the age of armed forces recruitment to 18 and ensuring that all under 18s are treated as children within the justice system.

Recently, Scottish Government has taken steps to address the inconsistent definition of a child. For example, we welcomed the commitment to end the placement of under-18s in Young Offenders Institutions and to redefine a child as under 18 in criminal law. However, we are disappointed that the proposals will preserve powers to try the child in an adult court in certain circumstances. On the age of marriage, Scottish Government previously committed to hold a public consultation but civil servants have since advised that the likelihood, scope and timeline of any such consultation will depend on the priorities of the new First Minister and his cabinet. 

Our 2023 State of Children’s Rights Report called for a comprehensive review of legislation to identify and unpick these issues. We hope that the UN Committee on the Rights of the Child will echo our calls and make a specific recommendation to the UK and Scottish Government to help ensure all under 18s have access to protections they are entitled to as children.

Make sure you follow us on Twitter, Facebook, Instagram and LinkedIn to keep up-to-date with the review. Stay tuned for our next article on the general principles of the UNCRC coming out at 8:00am tomorrow!

Want to find out more?

• Learn about the UNCRC reporting process here.
• Read Together’s State of Children’s Rights Report 2023 here.
• Read the Children and Young People’s Report here.
• Read about #TeamScotlandUN’s engagement in the UN Committee’s pre-session here.

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