The Scottish Government

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01 GENERAL MEASURES OF IMPLEMENTATION

08 The UK is a signatory to the UNCRC; the Convention came into force across the UK on 15 January 1992.

A) NATIONAL HUMAN RIGHTS INSTITUTIONS

09 In response to the second UK periodic report, the UN Committee published its Concluding Observations in October 2002. Paragraph 17 recommended the establishment of "independent human rights institutions with a broad mandate and appropriate powers and resources". The Committee also indicated that these institutions should be independent and easily accessible to children. One such institution - the Scottish Commissioner for Children and Young People has been established in recent years and another, the Scottish Commission for Human Rights, is in the course of being established.

Scotland's Commissioner for Children and Young People

10 The Commissioner for Children and Young People (Scotland) Act 2003 established the office of Children's Commissioner. Professor Kathleen Marshall, Scotland's first Commissioner for Children and Young People, was appointed in April 2004.

11 The Commissioner is independent of the Scottish Executive and the Scottish Parliament and is able
to set her own agenda and to determine her own activities. She was appointed by HM The Queen on the nomination of the Scottish Parliament, following an appointment process which involved interviews with two groups of children. She is accountable through a duty to report, at least annually, on the exercise of her functions, to the Scottish Parliament.

12 The general function of the Commissioner is to promote and safeguard the rights of children with particular emphasis on the rights set out in the UNCRC, and to:

• promote awareness and understanding of the rights of children;
• review the adequacy and effectiveness of any law, policy and practice as it relates to the rights of children;
• promote best practice by service providers; and
• commission and undertake research on matters relating to the rights of children.

13 In carrying out her work, the Commissioner must involve, and consult both children and organisations working with and for them. The Commissioner must pay particular attention to those children who do not have other adequate means by which they can make their views known.

14 The Commissioner has established a Participation team within her office which has responsibility for involving children in its work. Two participation worker posts within the team play a key role in engaging and interacting with children and informing them about their rights. The Commissioner's office has strategic links in place with a number of key organisations such as the NHS Education for Scotland, the Children's Parliament and key agencies working with and for children. Children from across Scotland were involved in helping the Commissioner establish her forward work programme through the largest ever consultation with children in Scotland. The Commissioner's office has also appointed, in consultation with children, a Reference Group of young people to support and advise on policy, communication and overall governance issues. The Commissioner has also appointed two young people's advisory groups, one of which focuses on health issues and the other on the care system.

15 The Commissioner has the power to carry out formal investigations into rights issues that affect all children in Scotland or issues that affect particular groups. She may require any person to give evidence or provide documents to inform that investigation. She cannot however investigate cases relating to the rights of and provision of services for individual children, for which there are established procedures, through existing statutory agencies and, ultimately, the Courts. In addition, the Commissioner cannot investigate matters which are reserved to the UK Parliament. The Children's Commissioner for England has a general duty to promote awareness of the views and interests of children in Scotland in relation to reserved matters, taking account of the views and any work undertaken by the Scottish Commissioner. The English Commissioner does have the power
to undertake inquiries in Scotland, including in relation to individual cases, so long as the issues raised are reserved and the case in question raises issues of public policy of relevance to other children and for the purpose of investigating and making recommendations about those issues.

16 The Children's Commissioner agrees her annual budget with the Scottish Parliament - to which she is accountable for her expenditure. Resources are transferred from the Scottish Executive to the Scottish Parliament to enable it to provide this funding. The budget provides for all staffing and central costs and supports all the Commissioner's activities with the exception of any formal investigations. These are expected to be infrequent (none have been carried out by the Commissioner so far) and additional resources would be sought from the Parliament as and when required.

Scottish Commission for Human Rights

17 Legislation to create a Scottish Commission for Human Rights ( SCHR) was passed by the Scottish Parliament in November 2006 and received Royal Assent in December of that year. The proposals are designed to comply with the Paris Principles, and so the SCHR will be independent of the Scottish Executive and accountable to the Scottish Parliament. £1m per annum has been allocated for running the SCHR once established. Establishment of the SCHR is the responsibility of the Scottish Parliament, which began the process of appointing a Chair of the Commission in June 2007.

18 The SCHR's overall objective will be to promote understanding and awareness of, and respect for, human rights. Although the SCHR will be expected to focus on the European Convention on Human Rights its remit will cover all international human rights instruments ratified by the UK, including the UNCRC and it is understood that its legal remit and powers will be sufficient to enable it to undertake a monitoring role under such instruments should that be desired. The SCHR will be able to advise the Parliament on legislation and be able to conduct inquiries with legal power to obtain evidence, including the power to enter places of detention. The SCHR will not, however, be able to investigate individual complaints.

19 Once established, the SCHR will be expected to work closely with the Scottish Children's Commissioner on issues of mutual interest. Arrangements for such co-operation are likely to be set out in a memorandum of understanding or similar document between SCHR and the Children's Commissioner to set out clearly where responsibilities lie and to avoid any duplication in efforts or activities. SCHR will also be expected to establish close links with the new GB Commission for Equality and Human Rights, which is being established following passage of the Equality Act 2006 passed through the UK Parliament and whose human rights remit and functions will be similar to those of the SCHR. The SCHR will deal with devolved human rights issues in Scotland, while the new GB Commission will deal with reserved issues in Scotland as in the rest of Great Britain.

20 Organisations working with and for children, including the Children's Commissioner, were consulted as part of the two public consultations leading to the SCHR proposals. Once established it will be for SCHR to consider whether and how to involve children in its activities.

B) MEASURES TAKEN TO HARMONISE NATIONAL LAW AND POLICY WITH THE PROVISIONS OF UNCRC

21 The UNCRC has not been incorporated into either UK or Scots law and is therefore not legally binding. The Convention is indicative of international standards and it is the policy of the Scottish Executive to reflect the provisions of the Convention wherever possible in the development of policy and legislation.

22 The European Convention on Human Rights ( ECHR) was incorporated into Scots law through the Human Rights Act 1998 and the Scotland Act 1998. The Human Rights Act requires public authorities to comply with ECHR, while the Scotland Act provides that actions of Scottish Ministers and Acts of the Scottish Parliament that do not comply with ECHR are unlawful. Many of the provisions in ECHR are similar to those in the UNCRC and, while these rights are general rather than being solely for children, they are of benefit to children.

Scottish legal cases citing the Convention

23 The UNCRC while not directly part of Scots law has been cited in a number of cases in Scottish courts, both civil and criminal, since 1999. Articles of the Convention cited include 1, 2, 3, 5, 8, 9(3), 10, 12, 20 and 40 (2) (b) (iii).

Criminal cases citing UNCRC

24 In HM Advocate v P 2001 SLT 924, two co-accused were aged 13 when an alleged rape was committed. A period of 23 months elapsed from arrest to trial. The key issue was whether this prosecution was incompatible with right to fair and public hearing within reasonable time. Similarly, in the case of Dyer v Watson 2002 S.C. (P.C.) 89, a period of 20 months elapsed between date of charge and proposed date of trial. Again the key question was whether the Crown had failed to bring trial 'within a reasonable time' in terms of the European Convention on Human Rights, art 6(1). It was again accepted that regard should be paid to other international instruments affecting children, among them the UNCRC and the UN Standard Minimum Rules for the Administration of Juvenile Justice (' the Beijing Rules'). The court endorsed the recognition that the passage of time is likely to be particularly prejudicial where criminal charges are brought against children. In Gibson v HM Advocate at p 129F-G, para 15, Lord Prosser said: 'While prejudice is not an essential element in breach of article 6(1), it is in our opinion obvious that if the passage of time is likely to be prejudicial to the accused in a given case, that will weigh heavily in favour of giving that case priority over others where such prejudice is not regarded as likely'. The explanations offered by the prosecuting authorities were insufficient to avoid the conclusion that the delay was inordinate and excessive, and that the guarantee of a trial within a reasonable time had been breached.

25 However, the judge in Cook v HM Advocate 2000 emphasised that the UNCRC provisions were not part of Scots law. The accused young person had been charged on indictment along with co-accused with assault to severe injury and permanent disfigurement. The court did not consider the provisions of Article 40 of the Convention to be radically different from the provisions of Article 6(1) of the European Convention on Human Rights with which this application was concerned. The Children (Scotland) Act 1995 and its links to the UNCRC was, in this judge's opinion, of no relevance to a criminal prosecution.

Civil cases citing UNCRC

26 The case of White v White 2001 S.C.L.R. 607, concerned the considerations to be applied in arranging contact between parent and child. The court looked at the weight to be given to relationship between child and natural (biological) parent. The father of two girls wished to vary a decree of divorce which had made no order for contact. He wanted direct contact with the children of the marriage every alternate Saturday. The elder girl intimated a desire not to have contact. The court referred to both Article 9(3) and Article 12 of UNCRC.

27 The judicial opinion included the following: "It will be satisfying to the drafters who laboured so long and hard on the United Nations Convention on the Rights of the Child (1989), which, although not part of the domestic law of Scotland, has been ratified by the United Kingdom, that the Lord President gives this Convention its place in interpreting the Children (S) Act 1995."

28Dosoo v Dosoo 1999 S.L.T (Sh Ct) 86, concerned an action of divorce, where both parties sought orders relating to residence. A report was prepared in which the views of the parties' two sons were contained in appendices. Due to the boys' request for confidentiality, the appendices were placed in sealed envelopes and were not made available to the parties. It was held that for a child to be able to express his views freely he had to be able to feel confident in privacy if he so wished and the court should respect that privacy except in very compelling circumstances. The overriding concern of the court must be the welfare of the children.

29 In the unreported case of S v S 2002, a child's mother, following a divorce, intended to pursue her career in Australia. The issue in the appeal case was whether the sheriff had erred in failing to give child an opportunity to express views at time of making the order in terms of the Children (Scotland) Act 1995 sec 11(7)(b), which implemented Article 12 of the UNCRC. The appeal held that there had been a material change of circumstances in view of the lapse of time between the dispensing of intimation and the final order.

30 The case of C v McM 2005, also referred to Article 12. It concerned an appeal against a sheriff's decision whereby he made a residence order in favour of the father of two children (aged 8 and 6 at the time of the proof) and refused a similar order sought by the mother instead making a residential contact order for her. The sole ground of appeal was that the sheriff had fallen into error by failing to obtain the up-to-date views of the elder child.

31 It was conceded that a material change of circumstances requiring the obtaining of the child's views could arise from the mere passage of time as the child matured. The court accepted "without hesitation" that it is appropriate to afford children aged 8 and 6 the opportunity to express their views and that there are practicable ways of eliciting them.

National legislative provisions specific to children or children's services

Articles 5,9,12 and 18

32 Notwithstanding the incorporation of ECHR, there have been a number of legislative changes in recent years that help further enshrine the principles of the UN Convention into Scots law and strengthen the rights of children. Important legislative milestones include:

• Standards in Scotland's Schools etc Act 2000 - provides that school education should develop the personality, talents and mental and physical abilities of children to their fullest potential (Article 29(1)(a)) - taking account of the views of children in decisions that significantly affect them. It also places a duty on Ministers and local authorities to improve the quality of school education.
• Regulation of Care (Scotland) Act 2001 - improves protection for children through independent regulation of care services provided to children. It also establishes regulation of, and education and training for, the workforce.
• The Community Care and Health (Scotland) Act 2002 - gives children caring for family members the right to an assessment of their support needs and requires local authorities and NHS Boards to advise young carers of this right. Guidance on the Act ensures that young carers are signposted to information and support and that they are protected from taking on inappropriate caring roles that would adversely affect their development.
• Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 - places a duty on local authorities and schools to plan progressively to improve access to education for pupils with disabilities.
• Mental Health (Care and Treatment) (Scotland) Act 2003 - establishes new arrangements for the detention, care and treatment of persons who have a mental disorder. When these functions are carried out in respect of an under 18, it provides that they must be done in the manner which best secures the welfare of the child.
• Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 - places a duty on local authorities to prepare young people who are looked after for leaving care (throughcare) and to provide advice, and assistance for those who have left care (aftercare).
• Protection of Children (Scotland) Act 2003 - aims to improve the safeguards for children by preventing unsuitable people from working with them. The Act allowed Scottish Ministers to set up the Disqualified from Working with Children List which came into operation in 2005. It is now an offence for an organisation to knowingly employ a person in a child care position if that person is disqualified from working in such a position.
• Commissioner for Children and Young People (Scotland) Act 2003 - establishes the office of Children's Commissioner.
• Education (Additional Support for Learning) (Scotland) Act 2004 - strengthens the rights of children with additional support needs and their parents to have their needs identified and addressed effectively and for children to have their views taken into account in that process and in discussing, monitoring and evaluating their learning.
• Vulnerable Witnesses (Scotland) Act 2004 - provides child witnesses under 16 with an entitlement to use standard special measures to help them give their evidence in court. It also allows child witnesses under 12 in certain circumstances to give evidence without the need to attend court.
• Gender Recognition Act 2004 - provides transsexual people with legal recognition in their acquired gender, but even though a person is recognised as being of the acquired gender, they will retain their status as the mother or father of a child. The continuation of parental rights and responsibilities for the child is thus ensured.
• Civil Partnership Act 2004 - extends the provisions of the Children (Scotland) Act 1995 to ensure that the interests of children are taken into account in court actions for dissolution or annulment of civil partnerships.
• Breastfeeding etc (Scotland) Act 2005 - makes it an offence to prevent a person from feeding a child under two milk in any public place where the child is normally permitted to be.
• Gaelic Language (Scotland) Act 2005 - secures the status of the Gaelic language in Scotland, safeguarding the Gaelic culture and identity for children in Gaelic speaking communities.
• Prohibition of Female Genital Mutilation (Scotland) Act 2005 - re-enacts and gives extra-territorial effect to the provisions of the Prohibition of Female Circumcision Act 1985. It also makes additional forms of FGM unlawful.
• Smoking, Health and Social Care (Scotland) Act 2005 - outlaws smoking in public places, protecting children from passive smoking. The Act also places a duty on Scottish Ministers to provide for the detection of vision problems in children.
• Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 - introduces a new grooming offence and strengthens the law protecting children from those who would sexually abuse or exploit them.
• Family Law (Scotland) Act 2006 - ensures that the best interests of children are protected, whatever form their families take. Key provisions include: establishing parental rights and responsibilities for unmarried fathers who jointly register the birth and legal safeguards for cohabiting couples.
• Scottish Schools (Parental Involvement) Act 2006 - places a duty on Scottish Ministers and education authorities to promote parents' involvement in their child's school education and makes provision for new arrangements for parental representation in schools.
• Adoption and Children (Scotland) Act 2007 - provides that a court must decide that adoption is in the best interests of the child concerned and that the best interests of the child must be the paramount consideration in the adoption process.
• Schools (Health Promotion and Nutrition)(Scotland) Act 2007 - places a duty on Scottish Ministers and local authorities to endeavour to ensure that all schools are health promoting.

National policy initiatives

33 The Scottish Executive has taken forward a wide range of policy initiatives, across its areas of devolved responsibility, which impact positively on realising children's rights:

• A Breath of Fresh Air For Scotland: action on tobacco control designed specifically for Scotland.
• Ambitious, Excellent Schools: action to improve the quality of learning and teaching and quality of leadership, to raise ambition and improve the achievement of children.
• Changing Lives: a five-year programme to transform social work services in Scotland to achieve better outcomes for all, including children.
• Child Protection Reform Programme: the Executive's response to a wide-ranging audit and review of child protection services in Scotland.
• Community Health Partnerships: designed to make measurable improvements in local population health and to provide higher quality, accessible joined up services for local communities. CHPs have a lead role in the delivery of services for children at a local level.
• Community Planning Partnerships: aim to make sure that people and communities are genuinely engaged in the decisions made on public services which affect them and to ensure that organisations work together in providing better public services. Community Planning Partnerships have a duty to "consult and cooperate with a wide range of interests including:…young people and youth work bodies". The Executive has also published a more detailed advice note on Engaging Children and Young People in Community Planning.
• Delivering a Healthy Future - Action Framework for Children and Young People's Health in Scotland: a structured programme of actions in the key areas of activity relating to children's health in Scotland.
• Eating for Health - Meeting the Challenge: a strategic framework for Food and Health which sets objectives for action through the food chain - Food Production, Processing/Retailing, Distribution/Access, Preparation/Provision and the Consumer.
• Getting it right for every child: a reform programme designed to ensure that every child in Scotland gets the help they need when they need it. Help should be proportionate, timely and appropriate - programme includes legislative proposals set out in the draft Children's Services (Scotland) Bill.
• Health for All Children (Hall 4): a programme of child health surveillance, screening, immunisation and health promotion. Hall 4 recommends that delivery of services are linked more closely to identify need and implementation is designed to ensure that vulnerable families are identified and supported more effectively.
• Health Promoting Schools: Ministers' expectation is that all schools will be health promoting by 2007.
• Hidden Harm - Next Steps: a comprehensive workplan to tackle issues around children in substance misusing households.
• Hungry for Success - A Whole School Approach to School Meals in Scotland: new standards for the provision of school meals, including nutritional standards, backed by Executive funding.
• Improving Health in Scotland - The Challenge: a framework for action. The focus in the first phase is on five key risk factors - tobacco, alcohol, low fruit and vegetable intake, physical activity levels and obesity.
• Integrated Children's Services Planning Framework: requires local agencies to plan collectively to produce a single plan of action to provide for and support children.
• Integrated Framework for Assessment and Information Sharing: avoids duplication of time, effort and information when more than one agency is involved by having one assessment, one plan and one record for a child. The work on information sharing is complementary.
• Let's Make Scotland More Active - A Strategy for Physical Activity: a strategy to raise the activity levels of the Scottish population.
• Looked after children and young people: We Can and Must do Better: actions to facilitate a step-change in outcomes for looked after children.
• Mental Health of Children and Young people: A Framework for Promotion Prevention and Care: developed to assist local health, education and social work in planning and delivering integrated approaches to children's mental health and wellbeing.
• More Choices, More Chances: a strategy to reduce the proportion of young people not in education, employment or training in Scotland.
• National Strategy for Development of the Social Service Workforce in Scotland: A Plan for Action 2005-2010: sets out a vision for a competent and confident work force.
• National Strategy to Address Domestic Abuse: proposals for clear and coordinated policy and legislation to be developed for all agencies working in this area.
• Regeneration Outcome Agreements: plans of local Community Planning Partnerships for using resources to support the most deprived communities.
• see me…: is a national campaign to eliminate the stigma and discrimination which can be associated with mental illness.
• Starting Well: the national health demonstration project for early years, based in Glasgow.
• Young Carers: a commitment to improve support for young carers through mainstreaming issues for young carers into current policy and service priorities.
• Youth Work Strategy: launched in March 2007 to support the youth work sector in Scotland, designed to ensure that young people are able to benefit from youth work opportunities which make a real difference to their lives, and that the youth work sector is equipped and empowered to achieve ongoing positive outcomes for young people now and in the future.

34 The substance and impact of these policies are dealt with as appropriate under the relevant sections of this report.

UK Government reservations to the UNCRC

Articles 22 and Article 37(c)

35 Only the UK Government is able to amend or withdraw the reservations to the Convention that it has entered, as recommended in paragraph 7 of the 2002 Concluding Observations. The reservations are to Article 22 (immigration) and Article 37(c) (detention of children with adults).

36 While the Executive is unable to withdraw the reservation to Article 37(c), the detention of children is a devolved matter. It is Executive policy to keep children out of detention wherever possible. Where this cannot be avoided because the level of the risk the child poses, either to themselves or others is so great, under 16s will ordinarily be held in local authority secure accommodation. In occasional circumstances where all other options have been exhausted it is however sometimes necessary to place under 16s within the prison estate. For boys, Polmont Young Offenders Institution houses male young offenders aged up to 21. In Polmont every effort is made to keep under-18s separate from adults where resources and facilities permit. Cornton Vale women's prison applies the same approach.

37 Immigration and asylum are reserved to the UK Parliament. The Executive has nonetheless raised concerns with the UK Government about the treatment of asylum seeker children. As a result of discussions a range of measures have been introduced to help ensure that the rights of children are paramount throughout the asylum process, in particular during enforcement activity. Paragraphs 545-549 set out the detail of those discussions and the agreement reached.

C) TRAINING ON CHILDREN'S RIGHTS AND THE UNCRC

Articles 3,12,42

38 The 2002 Concluding Observations highlighted the need to develop training programmes on human rights and children's rights for all those working with and for children. Professionals in Scotland receive a wide range of training on human rights and children's rights.

Teachers

39 Paragraph 48(f) of the Concluding Observations recommended the inclusion of the Convention and human rights education in the pre-service professional education of prospective teachers. Both the Standard for Initial Teacher Education and the Standard for Full Registration have been revised recently. The new Standards were published in March 2007. They emphasise the importance of the UNCRC and require prospective teachers to demonstrate respect for the rights of all children as set out in the Convention. Teachers will also be required to show: that they positively respect and value children as unique, whole individuals; a commitment to promoting fairness, justice and equality; and a willingness to promote, support and safeguard the individual development, well-being and social competence of the children in their care. The Executive provides £13.5m per annum to local authorities to facilitate continuing professional development for teachers which can be used to refresh knowledge and understanding of the UNCRC. Other CPD funds are targeted on specific issues such as additional support needs.

40 Some teachers have also taken the initiative to introduce a children's rights agenda within school. To do this successfully, they started with training for the teachers followed by training for the children to help make children's rights an integral part of the school's ethos and culture.

Social workers and social care staff

41 A new honours degree in social work was introduced in Scotland in 2004. To gain that degree social workers undergo a wide range of training and must be able to demonstrate a clear understanding of legal obligations such as human rights and children's rights (including the provisions of the UN Convention) and equality issues. Training also covers social processes such as racism, poverty, poor health, disability and lack of education and the promotion of choice, dignity and independence. Other qualifications such as Scottish Vocational Qualifications and Higher National Certificates gained by those working in social work/social care also include elements on children's rights and the UN Convention. Post qualification training and learning also includes a number of child specific elements, for example child protection.

42 Appropriate training on children's rights is also available to staff working in residential child care, many of whom will have a social work degree, SVQ or HNC. This includes, for example how a residential unit could implement a rights based approach to its work. The Executive, working with the Scottish Institute for Residential Childcare ( SIRCC), has also published specific guidance for staff, Holding Safely - A Guide for Residential Child Care Practitioners and Managers about Physically Restraining Children and Young People, http://www.sircc.strath.ac.uk/publications/Holding_Safely.pdf, on the use of restraint in residential settings. Holding Safely takes account of the UNCRC (see page 18 section 1b). It recognises that there are occasions when restraint is required, recognises the rights of children in these circumstances and offers advice to staff on appropriate forms of restraint and the circumstances in which it might be appropriate to use them.

43SIRCC offers two short courses free of charge to all residential child care staff throughout Scotland on the subject of children's rights. The first is an introduction, and aims to enable participants to understand the context and implementation of children's rights. The second is a more advanced course promoting and implementing rights in residential care setting. It aims to enable participants to understand the development, context and application of children's rights. The courses have direct input from children through the form of a video. http://www.sircc.strath.ac.uk/shortcourses/shortcourse_item.php?ID=14(SIRCC).

Health care professionals

44 All courses for health care professionals who work as specialists in the field of child health will cover key components of the UN Convention, in particular articles 12 and 24. For example, all Scottish nurses who specialise in working with children have sessions on the UN Convention and on Scottish legislation relating to children. A more generic example is a current NHS Education for Scotland initiative which deals with a core (3 day) course for all disciplines and grades of NHS staff who deal with acutely ill and injured children. This 3 day course has one day entirely focused on children's rights.

45 Since the appointment of Scotland's Commissioner for Children and Young People, a close relationship between SCCYP and NHS policy makers has developed. This has led to a strengthening of the profile of children as partners in NHS design and development and has prompted a plan for joint working over the next 2 years.

Scottish Children's Reporter Administration ( SCRA)

46 Children's Reporters act as the gatekeepers to the Children's Hearings System. SCRA has provided training on ECHR issues affecting the Children's Hearings System to all Children's Reporters at the point of introduction of the Human Rights Act to Scottish law in 2000. Guidance Notes are made available to all Reporters, who also receive on-going training in all Practice issues including human rights.

Police officers

47 Training for police officers in Scotland pays particular attention to meeting the needs and protecting the rights of children. During probationer training, all trainees receive 32 periods of child protection training covering a range of aspects including, protecting children, child offenders, domestic disputes, sex offences, prisoner rights, vulnerable witnesses and missing persons. Training for crime management and leadership includes general training in respect of relevant children's issues. There is also detailed, specific training for officers working on child protection issues.

48 National training is provided at the Scottish Police College in relation to the UN Convention and children's rights in general. In the Crime Management Division, the ' Child Protection Course' is designed for officers who will perform the role of Child Protection Officers and provides these specialist officers with the appropriate training, in order that they can carry out their duties effectively and professionally. The Children (Scotland) Act 1995 is embedded in the legislative part of this course and the rights of the child fully covered in a number of different inputs throughout the course. Some 72 specialist officers are trained each year.

49 The ' Initial Detective Training Course' is a generic course designed for Detective Officers who are relatively new to this department. There is a child protection input on this course during which the rights of the child are covered through discussion centred on the 1995 Act, and around 156 officers undertook this training in 2006. The 1995 Act is also taught within the Probationer Training division during the ' Compulsory Measures of Supervision' module and lesson on the initial Training Course. There is direct reference to the links between the UN Convention and the 1995 Act - approximately 750 students undertook this training in 2006.

50 In the Learning Management Division, the course for newly promoted Sergeants includes an input
on child protection. One of the learning outcomes is to identify key pieces of current policy and legislation relevant to protecting children in Scotland. The Children (Scotland) Act, and children's rights form part of this lesson. Around 440 Sergeants received this training in 2006.

51 All of the inputs are created to reflect the requirements of the roles which the students will perform on return to force. They are presented by experienced practitioners from the Police, Social work and the Law. The probationer training course is compulsory for all newly appointed police officers. There are no specific evaluations available as yet on the effectiveness of the rights of the child element of the training.

Crown Office and Procurator Fiscal Service ( COPFS)

52 Scottish prosecution staff have a regular programme of courses designed to equip them to deal appropriately with children who are referred to COPFS as alleged victims or witnesses, and also where allegations of offences committed by children are reported by the police. The programme includes, for example, specialist courses on the forensic interviewing of children and on joint working with SCRA where children are reported to both agencies. COPFS also provided training on ECHR issues when the Human Rights Act was introduced to Scottish law in 2000.

53 There is internal guidance available to all COPFS staff which makes reference to the provisions of the UN Convention, in particular to Article 3. The guidance states that the UN Convention is relevant in all cases involving child witnesses or children accused of crime. The internal guidance available to Procurators Fiscal on bail in cases involving child offenders makes reference to Article 37(b) of the UN Convention and states that a child offender should be released on bail or ordained to appear at court unless there are compelling reasons for having him or her detained pending trial.

The legal system

54 The UN Convention is included in training sessions for the Scottish judiciary on both family and child law. Relevant training is also provided to Scottish Court Service staff - both clerks of court and general office staff on all aspects of children in both the criminal and civil court systems. Training includes topics such as adoption applications and procedures, family law applications, referrals to court from Children's Hearings, dealing with child offenders in the criminal court and the provisions of the Children (Scotland) Act 1995 which focus on meeting the needs and protecting the rights of children.

Scottish Prison Service ( SPS)

55 Staff working in Scotland's young offender institutions receive particular training for working with those aged under 21. All professionals such as doctors, nurses and social workers hold appropriate qualifications and are required to attend ongoing training to maintain their qualifications. Specific links on mental health and programmes to address offending behaviour have been established between SPS and secure provision for under-16s to ensure suitability, continuity and consistency of approach for children who move from secure to an SPS establishment. A training and e-learning course for all SPS staff focused specifically on human rights has been developed and is currently being delivered. Training around child protection and awareness for prison staff is being developed by the SPS Training College and a review and update of SPS child protection procedures is also being undertaken.

Civil Service

56 Following the establishment of the Scottish Executive, Scottish Ministers updated and re-issued the former Scottish Office's Child Strategy Statement. The Statement was distributed to all Executive officials to encourage them to take account of children's issues - including children's rights and the UN Convention - when developing and implementing policy and legislation. It was also sent to local authorities and NGOs. At operational level within the Executive, internal advice to officials emphasises that they must address the potential impact on children of policy proposals.

D) MEASURES TAKEN OR FORESEEN TO MAKE THE PRINCIPLES AND PROVISIONS OF THE UNCRC WIDELY KNOWN TO ADULTS AND CHILDREN

Articles 42 and 44

57 To help them learn about and understand the rights they have, the Executive, working with the Scottish Child Law Centre, produced a leaflet for children setting out and explaining the rights in the Convention. The leaflet was distributed very widely on production, for example to schools, and has remained popular.

58 The Executive produced a Charter for children, subtitled Protecting Children and Young People as part of the Child Protection Reform Programme. An explanatory booklet for adults - both parents and professionals - was produced alongside the Charter. The importance of the UN Convention is highlighted in both the Charter and the explanatory booklet.

59The Charter was developed in consultation with children during which the principles and provisions of the UN Convention were explained and discussed. The Charter comprises 13 statements derived from that consultation and 11 pledges and an outline of work to be done to deliver them from the Executive and those working with and for children. The 13 statements include many that directly reflect the provisions of the UN Convention, for example: "listen to us", "take us seriously", "involve us", "respect our privacy", "be responsible to us", and "help us be safe". More than 500,000 copies of the Charter have been distributed to, for example, schools, GP surgeries, local libraries and voluntary organisations.

60 As on previous occasions Article 12 in Scotland will be presenting an "alternative" Report to the UN Committee in response to the UK report with the aim of ensuring that the views and opinions of young people are heard. Clued Up! is a peer education training course designed specifically to equip young people with the skills and knowledge necessary to contribute to that report. The training is based on the Article 12 resource pack UNCRC for beginners - which is another example of the resources available to inform children and young people about the UNCRC.

61 Paragraph 48(f) of the 2002 Concluding Observations recommended the inclusion of the UNCRC in the primary and secondary school curricula. Citizenship, including the rights and responsibilities of individuals and communities, is a key part of the early years and school curriculum and of community education programmes. Scotland does not have a national curriculum, but Learning and Teaching Scotland, which is funded by the Executive to support curriculum development, published in 2002 a framework document on education for citizenship for children aged 3-18, Education for Citizenship - A paper for discussion and development. Schools can use this framework document in planning a programme of citizenship education. The perspectives and principles it sets out make clear references to the UN Convention and broader rights and to the importance to children of understanding these rights and this has led to schools teaching about the Convention and children's rights as a matter of course.

62 As highlighted in paragraph 12 above, the Scottish Children's Commissioner has a general function to promote and safeguard the rights set out in the UNCRC and to generate widespread awareness and understanding of the rights of children.

E) IMPLEMENTATION AND MONITORING OF THE UNCRC

Articles 3, 4 and 42

63 During the first two Parliamentary sessions following the establishment of the Scottish Parliament (1999-2003 and 2003-2007) the Scottish Executive has included a Minister and Deputy Minister charged with looking after the interests of children and young people and ensuring their rights are supported and protected. To ensure that these matters were considered in the development of policy and legislation across Government and to coordinate delivery of the Executive's strategies and commitments for children, a Children and Young People Delivery Group was established. This Group was chaired by the former Minister for Education and Young People and included the then First Minister and Ministers with responsibility for health, communities, justice and finance. The Group was advised by an Expert Reference Group of external specialists from local government, schools, the police and children's organisations.

64 The Executive has, in consultation with key stakeholders, set out its vision for the children of Scotland which takes the UN Convention as its starting point. The vision is for all children in Scotland to be confident individuals, effective contributors, successful learners and responsible citizens. In order to achieve this they need to be safe, nurtured, healthy, achieving, active, respected and responsible and included (see opposite). The vision provides an overarching statement of Ministers' expectations for children applying across portfolio, agency and professional boundaries - it is not just about processes but about achieving better outcomes for children.

Vision for children

The Executive's vision for all Scotland's children is that they should be:

Confident individuals
Effective contributors
Successful learners
Responsible citizens

To achieve our vision, children need to be:

Safe: Children and young people should be protected from abuse, neglect and harm by others at home, at school and in the community.

Nurtured: Children and young people should live within a supportive family setting, with additional assistance if required, or, where this is not possible, within another caring setting, ensuring a positive and rewarding childhood experience.

Healthy: Children and young people should enjoy the highest attainable standards of physical and mental health, with access to suitable healthcare and support for safe and healthy lifestyle choices.

Achieving: Children and young people should have access to positive learning environments and opportunities to develop their skills, confidence and self esteem to the fullest potential.

Active: Children and young people should be active with opportunities and encouragement to participate in play and recreation, including sport.

Respected & Responsible: Children, young people and their carers should be involved in decisions that affect them, should have their voices heard and should be encouraged to play an active and responsible role in their communities.

Included: Children, young people and their carers should have access to high quality services, when required, and should be assisted to overcome the social, educational, physical, environmental and economic barriers that create inequality.

65 As a practical demonstration of the Executive's commitment to supporting children's rights, a Children's Rights team has been established. As well as preparing this report, the team has responsibility for ensuring that the rights of children in Scotland are properly protected. This includes making sure that marginalized and disadvantaged groups, such as the children of asylum seekers get appropriate help and support.

66 A Children's Rights Impact Assessment tool has recently been developed by the Children's Commissioner's office and has been tested by the Children's Rights team on a small number of existing children's policies. The team is currently considering how the assessment tool could be adapted to fit the needs and requirements of the Executive and made available to all staff, alongside training and advice from the Children's Rights team on the UNCRC and children's rights in general. The Children's Rights team is also exploring the possibility of including a statement on the impact on the rights of children in all policy memoranda accompanying Executive Bills.

67 At a local level, around two-thirds of Scottish local authorities have Children's Rights Officers - some of the larger authorities have Children's Rights Teams. The majority of these services are provided in house, others are commissioned from voluntary sector partners. The precise focus of these Officers varies between authorities, for example while all will provide a service to children who are looked after and accommodated, some authorities are able to offer a service to a wider population of children and some teams have Officers with an education or disability focus. They all, however, provide information and support for children on rights issues and act as a representation and advocacy service. They provide information and advice on rights issues to care staff and others working with children at an individual level and also input to formal training. As well as this operational role, some Officers and Teams also have a strategic role, developing tools to measure compliance with the UNCRC, report on key issues raised by children with reference to UNCRC compliance and ensure that the Convention informs policy and practice.

F) SYSTEMATIC GATHERING OF DATA

68 Paragraph 19 of the 2002 Concluding Observations recommended the collection of disaggregated data on children in all areas covered by the Convention and the publication of regular reports on that data in Scotland. The collection of data linked directly to the Convention is not currently in place, but arrangements are in place for the regular gathering and publication of a wide-range of data about children in Scotland including much that relates to the UNCRC. Most of the data which is collected is published on an annual basis - some is published quarterly. This data is a useful tool for policy makers - both within the Executive and more widely - wishing to evaluate the effectiveness of existing policies and in the development of new policies. They are also a good source of information for those working work with and for children and for the general public. Tables throughout this report carry the data that relates to the rights in the UN Convention.

69 The data that the Executive collects evolves to reflect changes in society, policy priorities etc. For example plans are in place to collect for the first time data on children present at incidents of domestic abuse and on offences which involve a child victim; changes are also proposed to the data collected on looked after children which should provide better information about their characteristics and the outcomes achieved. The purpose of this is to gain a better understanding of the experiences encountered by looked after children, for example by obtaining information at an individual level - subject to gaining the permissions required. This data will also be linked to other existing sources of data about children.

70 There are also a number of major longitudinal studies underway, such as Growing up in Scotland and The Edinburgh Study of Youth Transitions and Crime which will generate a wealth of information about the circumstances and perceptions of children in Scotland.

71 The Executive will consider how best to collect and publish in future more data directly linked to the rights in the UN Convention.

Children as researchers

72 There has been a growing focus on children's rights in recent years. In particular, consideration has rightly been given to involving children more directly in decisions that affect their lives. In research terms, this has been reflected in a linguistic shift from talking about 'research on' to 'research with' and now, increasingly, to 'research by' children. However, to date, research by children has not formed a major part of government funded research in Scotland.

73 An Executive funded research project " Children as Researchers" (2006) explored the problems and possibilities of incorporating a 'children as researchers' perspective into the agenda of government social research in Scotland. The research project concluded that in taking forward thinking about children as researchers, the Executive could make explicit at the procurement stage that, appropriate consultation with children in the design of studies and their involvement in carrying out the research is desirable. It was also recommended that the Executive consider whether there may be opportunities for children to apply for monies through its existing sponsored research programme or in the context of its volunteering strategy. Further, the Executive should examine what opportunities exist for children to inform its research agendas and consider whether these could be expanded or improved.

74 The Executive will consider these findings in the development and commissioning of future projects, and has already involved children in research projects in an advisory capacity. In addition, there are other organisations set up to build capacity among children to conduct their own research, who may express interest in tendering for Executive research projects, and who may apply to the sponsored research programme for funding.

Budgeting for Children and Young People

75 The 2002 Concluding Observations (paragraph 11) recommended an analysis of all sectoral and total budgets across the UK and in the devolved administrations in order to show the proportion spent on children, identify priorities and allocate resources to the "maximum extent of … available resources". The UN Committee recommended that this analysis should include external financing, for example from donors, international financial institutions and private banking.

76 By their nature, contributions to support services for children from private, voluntary or commercial sources are not controlled or monitored by central government and we are unable to provide costings for these investments. It is also difficult to provide full and robust aggregate figures for expenditure by central and local government, the National Health Service, police and other statutory bodies in Scotland. There are many separate funding streams allocated and managed by such bodies and while budgets for children can be identified in several policy areas (see below), some key areas (eg health) do not separate spending on children from their generic budgets. At local government level, we are aware from independent studies that many councils are allocating resources from other budgets to help meet local needs and priorities in respect of services for children so, again, accurate estimates of aggregate expenditure are difficult to provide.

77 The Executive does however publish Budget documents which set out budget plans at several levels. For example, central government budgets (not including Grant-Aided Expenditure ( GAE) allocations to local authorities) totalled £404.6m in 2002-03 and this figure is planned to rise to £862.3m in 2007-08. GAE allocations to support education and other services for children have risen from £3,381m in 2002-03 to £4,428m in 2007-08 budget plans. These resources support a wide range
of services including the provision of school education, school building and refurbishment, social care, pre-school education, nursery and childcare, services for looked after and vulnerable children, youthwork, youth justice and the costs of inspectorates which ensure the quality of these services.

78 The Executive is currently taking forward work to rationalise the number of funding streams linked to the development of a single approach to performance improvement incorporating joint inspection and outcome based flexibility which will allow local priorities to be agreed. The overarching aim is to reduce bureaucracy and to focus more on delivering successful outcomes for children from services which put the needs of the child firmly at the centre of their activities.

G) REMEDIES FOR INFRINGEMENT OF RIGHTS

79 For rights enshrined in law there are the usual legal options including raising proceedings against the party infringing the right. In relation to certain rights there are specific tribunals in place, such as mental health or additional support needs. Some rights create a specific right of appeal to a court, such as the right to appeal the refusal of a placing request to the Sheriff Court. Where rights are infringed by the State, leading to loss, proceedings such as actions for damages against the State or those acting on its behalf may be available. Petitions for judicial review can be brought against the state and public bodies where it is alleged that they have acted beyond their powers.

80 For other rights, complaints can be made to public bodies in Scotland such as the Executive, the Care Commission, local authorities and the National Health Service which have complaints mechanisms in place as part of their customer service. The Executive for example encourages children and those working with or for them to bring matters to the attention of Ministers and the Children's Rights team if they have concerns that a child's rights have been infringed.

81 If concerns about rights remain following these complaints, recourse can be had to the Scottish Public Services Ombudsman ( SPSO) who investigates complaints of maladministration or service failure on the part of Scottish public authorities. Data from SPSO indicates that in 2005-06 a small number of complaints were made by, or on behalf of children. The Ombudsman is however keen to raise awareness of her work amongst children and to make it easier for all - including children - to make full use of complaints procedures.

82 In addition to these measures which are available to everyone including children, the Scottish Commissioner for Children and Young People has a specific role to promote and safeguard the rights of children with particular emphasis on the rights set out in the UNCRC. She also has the power to carry out formal investigations into rights issues that affect all children in Scotland or issues that affect particular groups.

83 The Executive is committed to the principle that children have the right to participate fully in decisions which affect them. Advocacy services are crucial to making this a reality. The Executive funds Who Cares? Scotland to provide independent, rights-based advocacy services to children in public care (including those involved in the Children's Hearings System) to ensure that their rights are being properly protected and to help them speak out when that is not the case. In 2006, the Executive commissioned Big Words and Big Tables - Children and young people's experiences of advocacy support and participation in the Children's Hearings System. This research was undertaken as part of Getting it right for every child (see below). It found that the provisions in the Children's Hearings System for children's participation are as good as and sometimes better than proceedings in other countries. However, it was also shown that there are limitations in the Children's Hearings System and barriers to children's participation.

84 The research went on to explore this further through interviews with children and the adults who work with them. The main findings were: while there is an implicit commitment to providing advocacy for children in the Hearings System, the extent to which this commitment is made explicit varies considerably. Children may have had varied experiences, both positive and negative, over time which impact on the extent to which they are able to participate in their Hearings. Children's needs and wishes change both at different stages of the Hearings process and over time. Providing advocacy support should be seen as a process involving a combination of people who assume different roles and perform a range of tasks rather than a role which can be invested in one dedicated professional.

H) MEASURES TAKEN OR FORESEEN TO MAKE REPORTS WIDELY AVAILABLE TO THE PUBLIC AT LARGE

Article 42

85 The Executive acknowledges that little was done in Scotland to meet the recommendation in the 2002 Concluding Observations that there should be a substantial expansion of dissemination of information about the UNCRC. The Executive is committed to taking effective action to publicise the UK Report, this report and the other outputs from the 2007-08 reporting process.

86 The UK Report will provide an overview of children's rights and the UNCRC across the UK and will reflect in broad terms the differences in implementation of these rights in England, Scotland, Wales and Northern Ireland. It will not, however, provide a detailed account of the situation in individual countries. There have been significant changes in Scotland since the preparation of the previous report - not least devolution and the establishment of the Scottish Parliament and the Children's Commissioner. The Executive will therefore publish this report both as a printed report and on the Executive's website to allow local stakeholders to see the full update on the position in Scotland. A young person's version of the report will also be produced, along with a child-friendly version to ensure that the report is accessible to all. Minority language versions of all these reports will be available on request. The Executive will also make available via its website the full text of the UK Report, the NGO and Children's Commissioner's reports and (subsequently) the UN's Concluding Observations and the Executive's response to them.

I) COOPERATION WITH CIVIL SOCIETY ORGANISATIONS AND PREPARATION OF THE PRESENT REPORT

Cooperation with civil society

87 The Executive is committed to working closely with all external organisations working with or for children. Fundamental to this is the Scottish Compact which facilitates closer and more effective working relationships by setting out a framework and principles for how the Executive and the voluntary sector will work together and encourages the establishment of multi-agency local compacts to promote good practice throughout Scotland. First published in 1998, it was substantially revised in February 2004.

88 Alongside publication of the revised version, the Executive appointed external consultants to establish a baseline for the extent of knowledge about the Scottish Compact and to look at relationships between the Executive and the voluntary sector. Their initial report was published in April 2005. It found that knowledge of the compact was low in the voluntary sector but far higher within the Executive. There was a general sense that cooperation between the Executive and the sector had improved in the intervening 18 months.

Preparation of the current report

89 One of the UN Committee's concerns outlined in the 2002 Concluding Observations was inadequate consultation during the preparation of the UK report - both the frequency of and time for consultation and the failure to engage effectively with children and young people.

90 The Executive has sought to address this concern during the preparation of this report. It recognises the important role that the voluntary sector plays in matters concerning children and the Children's Rights team have worked throughout the preparation process with key partners who will be submitting their own reports to the UN Committee in response to the UK Report. A number of meetings have been held with the Scottish Alliance for Children's Rights ( SACR) (which is an umbrella organisation representing all the major children's charities in Scotland), Article 12 in Scotland and the Children's Commissioner's office to discuss and share information about planning for the reporting process. Confidential drafts of the report were shared with these organisations during preparation of the initial draft.

91 A key element of the process was around the most effective means of eliciting the views of children. Specific workshops to elicit the views of children were held as part of a one-day conference in June 2006. The children and young people involved came from a wide range of backgrounds including asylum seekers and children looked after by local authorities. As well as these children, policy makers, local authorities and other statutory and voluntary sector organisations were also invited. The conference sought the views of attendees on key children's rights issues in Scotland and provided an opportunity to identify and discuss key areas of progress and areas where further work is required. To help understand the views of younger children the Executive commissioned the Children's Parliament (which works with children aged 8-13) to carry out a further consultation exercise.

Main concerns raised by children, young people and other stakeholders

92 The consultation by the Children's Parliament showed that among the 8-13 age group there was little knowledge about the UNCRC or the concept of rights in general. They were however able to reflect on issues which affect them and their friends and express concerns about their health, wellbeing and place in the community. The following key issues emerged:

• School - making it enjoyable and safe, giving children more of a say in school life, giving children more respect, and teachers and other adults working in the school setting should stop shouting at children;
• Protection - protect children from adults who might hurt them. Children should never be scared at home, at school or in the community;
• Bullying - stop bullying, by children or adults wherever it happens;
• Home - help parents to provide children with a happy home and where families split up make sure children keep contact with parents equally (where they want to).

93 The young people who attended the June workshop were well aware of the UNCRC and the rights of children and young people. The following issues and concerns were raised:

• Asylum seekers - asylum seeker children should be have the same rights to education and to work as all other children and they should not be locked up or treated like criminals;
• Voice of the child (Article 12) - the voices of individual children are not being heard because adults don't listen to them. Voices are only heard as part of an organisation, but not all children want to join an organisation - many in rural areas are unable to. Funding is needed to increase awareness of Article 12 among both children and adults;
• Looked after children - often not respected or listened to, especially on big issues like placements. There should be regular meetings with social workers and others at which children are given the chance to have their say;
• Education - there is too much pressure to achieve and too much competition. Life skills and citizenship (including rights) should be taught to all children as part of a standard curriculum.

94 There was a wide-ranging discussion at the June seminar on the issues affecting the rights of children. The Executive's Children's Rights team has also attended other conferences and discussions where issues and concerns have been raised. In summary, the following key points were raised:

• Minority groups - concern that there have been violations of the human rights of minority groups such as travellers and asylum seekers. Education and healthcare provision for these groups needed to improve;
• Child poverty - lack of opportunity for children living in poverty;
• Looked after children - educational and other outcomes for these children still much poorer than for other children;
• Mental health - need to improve awareness and understanding of the issues to ensure the rights and opportunities for this group are protected;
• Drug and alcohol misuse - an escalating problem, both the impact of parental substance misuse on the care and welfare of children and misuse by children themselves;
• Physical punishment - concern that this had not been outlawed;
• Justice system - concerns about the relatively low minimum age of criminal responsibility and children (under-18s) being dealt with in the adult court;
• Antisocial behaviour - the philosophy of the ASB legislation is at odds with the principle of acting in the child's best interests which underpins the Children's Hearings System;
• Detention - too many children were being held in custody, including many with mental health issues, and concerns about the use of restraint on children.

Consultation on the draft Scottish contribution/report

95 A draft of this report was issued for public consultation in December 2006, prior to its submission to DfES as the Scottish contribution to the UK Report. This consultation invited comments on the content of the report - whether it was a fair and accurate reflection of the position - rather than another opportunity to comment on policy. A further 1-day stakeholder conference was held in January 2007 as part of this consultation process. Again, this involved children and young people. The Executive received many helpful comments both at the conference and in writing that have made a number of important improvements to the report.

J) INTERNATIONAL AND DEVELOPMENT AID FOR CHILDREN

Article 4

96 The Executive has a policy on international development committed to helping developing countries, for example through supporting NGOs that are active in international programmes - in particular those working in the development of education, health, and civil society.

97 To support the policy, the Executive has made available an international development fund of £3m per year from 2005/06. The fund supports a number of projects run by NGOs, some of which are aimed at supporting children and protecting their rights. Projects which, for example, work: with children with HIV/ AIDS; to reduce infant and maternal mortality; and to ensure children have the right to education.

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