The Rights Empowered: Children’s Access to Justice Project is a three-year project funded by the Independent Human Rights Fund for Scotland, delivered by Corra on behalf of a partnership of eight funders.  The project aims to maximise the incorporation of the United Nations Convention on the Rights of the Child (UNCRC) in the lives of all children in Scotland, by supporting Together’s membership to use community action and strategic litigation to challenge decision making and address systemic rights breaches.

UNCRC cases

The UNCRC (Incorporation) (Scotland) Act 2024 (‘the UNCRC Act’) came into force on 16 July 2024 and as we celebrate its’ two-year anniversary we take this opportunity to consider the practical impact the Act has made in that time. As with many new pieces of legislation the first few years following the UNCRC Act coming into force has revealed practical challenges or unintended consequences related to the new rights regime.  Some of these issues have been tested in the Courts. The outcomes of these cases will provide some guidance to those working in the sector, but uncertainty remains particularly in relation to the scope of the Act and the situations in which the duties can be enforced against a public body. In the absence of decisive steps from the Scottish Government to bring more areas into scope of the Act, it is likely more litigation will be needed for children, and those that support them, to understand the practical protection the Act provides when rights have been breached.  

This blog considers the issues that these first cases raise and discusses the impact they have on children’s rights.

Scope

The first reported decision under the UNCRC Act was the case of PF (Dundee) v JH and LL and CYPCS [2025] HCJAC 2

In this matter, the Lord Advocate sought clarity on the proper interpretation of the UNCRC Act from the High Court. The Lord Advocate’s position was that her powers to prosecute children were not a ‘relevant function’ under Section 6 of the UNCRC Act. That is, that in making decisions about whether to prosecute a child, procurators fiscal do not have to consider the child’s UNCRC rights. Using their new powers granted in the UNCRC Act, The Children and Young People’s Commissioner Scotland (CYPCS) intervened, asserting that prosecutorial decisions about children were a ‘relevant function’, were subject to the Act and consequently were able to be challenged on children’s rights grounds.  

On 17 January 2025, the High Court agreed with CYCPS and confirmed that the Lord Advocate’s power to prosecute children is within the scope of the UNCRC. The impact of this is that all future decisions to prosecute children must meet the standards set out in the UNCRC and may be challenged in court if they fail to do so.  For instance, the decision making should demonstrate that the best interests of the child in question have been taken into account, and in what way.  

The scope of the Act and what functions of a public body fall within it was also in issue in the civil case of Glasgow City Council v James J.R. Stringfellow & Others [2026] CSOH 19.

In this case, Glasgow City Council (GCC) brought proceedings to evict a multi-generational family of Scottish Travelling Showpeople from a site in Govan which they had lived on for over 40 years. GCC argued that the family had no formal title or right to occupy the land. On behalf of the Stringfellow family, it was argued that the Housing (Scotland) Act 2001, or alternatively the 1983 Act, applied to their lease.  Where there was a child in the family – as there was here – the Local Authority were carrying out a ‘relevant function’ when attempting to evict under the terms of the 2001 Act.  Therefore, their actions had to be compliant with the rights contained in the UNCRC Act, specifically the child’s right to an adequate standard of living and housing (Article 27), the right to preserve their cultural identity (Article 30), and the requirement that the child’s best interests be a primary consideration in any court or authority action (Article 3).   

Just like the Lord Advocate, the Local Authority tried to argue that in raising a court action to evict the family they were not exercising a ‘relevant function’ in terms of the UNCRC Act.  Therefore, they were not subject to the duties contained in that legislation. Although the court did not accept that children’s rights had been breached in the Stringfellow case, the Court did confirm that the UNCRC Act applies when local authorities use their powers to attempt to evict families that include children. The Court also confirmed that the courts – as public bodies – must apply the UNCRC Act when determining whether an eviction should proceed to ensure that children’s rights are properly taken into account.  Had the Court agreed with Glasgow City Council, it would mean the effect of UNCRC Act would be negligible, unless and until the Scottish Parliament convert a large volume of UK legislation in devolved areas into Scottish legislation.   

While the current judgments indicate a broad interpretation of the UNCRC Act in terms of scope, it is clear that public bodies will continue to rely on these types of arguments to limit the extent of their rights responsibilities to children. Indeed, at time of publication we are aware that the Stringfellow judgment has been appealed by Glasgow City Council, so the position in relation to the impact of the UNCRC Act on evictions may be reviewed as part of that process.  

Breach of Duty

The case of X Petitioner v Scottish Children’s Reporters Administration [2026] CSOH 15 did not focus on the scope of the UNCRC Act. SCRA accepted from the outset that the decision making of the Children’s Hearing was a relevant function, bringing it within scope of the Act.  

In this matter, X sought a judicial review of a decision of the children’s hearing in respect to contact with his sister. There were two conflicting compulsory supervision orders (CSO): X’s CSO mandated monthly contact between himself and his sister, but his sister’s CSO only allowed letterbox contact, meaning monthly contact was not ordered for her. 

In the Court of Session decision issued on 27 February 2026, Lord Braid held that the children’s hearing had failed to consider the best interests of the petitioner as a sibling in a decision relating to his contact with his sister, the child at the heart of the hearing. 

This judgment makes clear that Article 3 of the UNCRC requires the hearing to treat the welfare of children who will be affected by the decisions made as a primary consideration, and treat the welfare of the child who is subject to the hearing as a primary consideration. In coming to their decision, and recording it, the hearing must outline what considerations have been taken into account, and how the sibling’s Article 3 rights have been respected in the decision. Failure to do this will result in the hearing’s decision breaching Article 6(1) of the UNCRC (Incorporation) (Scotland) Act 2024.

This is an incredibly powerful judgment in terms of confirming how best interests are to be not only considered, but the reasons and factors for the decision explained to children in a way that is clear to them. These broad interpretations of the UNCRC Act make clear that children’s rights should be protected consistently across all decisions, services, and systems that impact their lives.

This matters because it creates a culture of accountability and transparency across public authorities to put children’s rights at the heart of all decision making.  

Access to Justice

The final decision relates to the broader issue of how children access justice. In the case of City of Edinburgh Council v SP Jurisdiction UTS/AP/26/0014, a secondary school student attempted to raise a standalone UNCRC case in the First-Tier Tribunal (Health and Education). A stand-alone case is based only on a breach of a UNCRC right and not linked to the way in which a public body has exercised a power derived from other Acts of the Scottish Parliament.  

In this matter, a secondary school student argued that the City of Edinburgh Council had acted incompatibly with her UNCRC rights by requiring disclosure of her two diagnosed medical conditions to staff as a condition of her return to school following a period of exclusion. She argued that the Council were in breach of her right to privacy (Article 16) and right to education (Article 28). The first-tier tribunal heard the case and found in the student’s favour.

On appeal, the Upper Tribunal held that the First-tier Tribunal (Health and Education) had made an error in allowing the case to proceed. It did not have the jurisdiction to determine a freestanding UNCRC claim. The decision limits a child’s ability to bring standalone UNCRC claims in the First-tier Tribunal (Health and Education Chamber) and means they must rely on existing legal routes to enforce their rights. However, this decision does not prevent a child from raising UNCRC issues in their tribunal claims, for example, an additional support needs case can be informed by Article 28 (right to education) or Article 12 (participation). 

If this interpretation is right, this severely limits access to justice for children.  The First-Tier Tribunal (Health and Education) is incredibly child-centred both in its physical set up and approach of the tribunals itself.  Costs are far less prohibitive for children, and advice and advocacy is available to them.  If standalone claims cannot be made in this environment, then this may prevent rights breaches from being litigated at all, leaving children unable to hold local authorities accountable for their failures.  The Scottish Ministers could widen the tribunal’s jurisdiction through their regulatory making power found in section 7 of the UNCRC Act and we consider that if this decision is upheld, then that should be considered. 

What have we learnt so far?

There has always been a clear policy intention for the UNCRC Act to have the widest possible reach, to ensure that children’s rights are embedded across all areas of devolved law and public authority decision making in Scotland. 

Nonetheless the decisions in PF (Dundee) v JH and LL and CYPCS [2025] HCJAC 2 and Glasgow City Council v James J.R. Stringfellow & Others show that public bodies are applying a minimalist interpretation to scope when challenged about their application of the UNCRC in their decision making.  While the courts have not agreed with that approach to date, that does not exclude further attempts to curtail the Act’s scope.  Indeed, the lodging of an Appeal in Stringfellow perhaps indicates that there is a long way to go before a maximalist approach to the extent that the duties apply is accepted.   

The limited scope of the UNCRC Act has been one of the biggest concerns since it came into force. Because the UNCRC Act is an Act of the Scottish Parliament, it can only apply to areas of law and policy that the Scottish Parliament has responsibility for (known as Scotland’s ‘devolved competence’). This means that not every law in Scotland is covered by the UNCRC Act. A court can only find that there has been a breach of the UNCRC Act if a public authority was carrying out an action that falls within the powers granted to it by the Scottish Parliament.

Many laws affecting children are contained within pre-devolution legislation, meaning that they fall outside the scope of the UNCRC Act and cannot be challenged under it. This results in a ‘patchwork’ system of children’s rights projections, creating uncertainty both for the children wanting to enforce their rights and for public authorities operating across policy areas where some duties are enforceable under the UNCRC Act while others remain outside its scope. 

Although the courts cannot expand the scope of the UNCRC Act, they do have a critical role to play in shaping how far the UNCRC Act can reach within the limits of the devolved competence. It is encouraging to broadly see the courts adopting an expansive, rights-focused approach to decision making to give the UNCRC Act its broadest possible effect.  But it is also clear that the conflict between a minimalist and maximalist approach is not yet over.  

If you have a question about the scope of the UNCRC Act, please contact RightsEmpowered@clanchildlaw.org 

Ends

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