Concern over Scotland's human rights for children breaches over coronavirus rules

Child protection groups and the Children and Young People's Commissioner for Scotland, Bruce Adamson have raised concerns that they affect rights under the UN Convention on the Rights of the Child (UNCRC).

The concerns range from a continuing detention of children and the proper supervision of children in care.

An assessment by the Centre for Excellence for Children’s Care and Protection (CELCIS) of the emergency coronavirus regulations under the Coronavirus Act 2020 brought in during the pandemic reveals that they allow for "temporary disapplication of disclosure offences"... "and if used, could enable an individual barred from undertaking regulated work with children to do so".

It comes alongside measures which allowed for an "easing of health and social care assessment, including for children’s services in Scotland".

Just a month ago ministers were seeking to become the first country in the UK to directly incorporate the UNRC into domestic law.

The UNCRC is the most widely ratified human rights treaty in the world and sets out the specific rights that all children have to help fulfil their potential, including rights relating to health and education, leisure and play, fair and equal treatment, protection from exploitation and the right to be heard.

It is the most comprehensive statement of children’s rights that exists, covering all aspects of a child’s life. It includes civil and political rights to economic, social and cultural rights, and even includes rights such as the right to play.

READ MORE: Scottish Human Rights Commission's "deep concerns" over Covid care cuts which left some to sleep in wheelchairs

Three groups NSPCC Scotland, Who Cares? Scotland and Barnardos Scotland aired further concerns that they may run contrary to the aspirations for children and young people set out in The Promise, a plan of action to ensure vulnerable children are protected set out by Scotland's independent care review.

The concerns emerged as ministers sought to extend the Coronavirus (Scotland) Act 2020 beyond September 30.

The groups and Mr Adamson have objected to the Scottish Government's decision not to carry out a new Children’s Rights and Wellbeing Impact Assessment (CRWIA). Ministers believed an assessment conducted on the original legislation in March and May were still valid.

The three groups said rules had "far reaching and have significant impact on the lives and human rights of children and young people in Scotland" and affected their rights under the UNCRC.

They said the issues "clearly have huge implications for children’s rights" under the UNCRC, including their rights to participation, to have their best interests taken as a primary consideration in decisions made about them and the right not to be separated from their parents against their will except where it is deemed necessary by competent authorities to be in the best interest of the child.

They expressed concern about extensions without "sufficient pause for meaningful consideration and a child rights impact assessment" and that there has been no analysis of how new coronavirus provisions have operated since their introduction.

In a message to MSPs, the group say:"Due to the significant impact on the rights and lives of children and young people that an extension of the Coronavirus (Scotland) Act 2020 would have, we would like to urge to take pause to carefully consider whether each of these measures is ‘necessary and proportionate’ in the current circumstances."

Mr Adamson says that while he accepted the necessity of emergency legislation to respond to the Covid-19 pandemic, raised concerns as early as March about impact they would have on children and young people’s rights.

"We are concerned therefore that the government now proposes almost wholesale renewal of emergency provisions which significantly impact on children’s rights," he said. Given the welcome progress the Scottish Government has made at restoring public services to a more ‘normal’ state, we feel that there is a need for additional scrutiny and challenge.

He has called on MSPs to ensure that there is ongoing and active review of all emergency powers and to seek an assurance from the Government that they will repeal or replace those powers that are no longer necessary or proportionate.

In April as the pandemic lockdown began, the UN Committee on the Rights of the Child called for the release of children in all forms of detention, wherever possible and putting in place a moratorium on new admissions wherever possible.

But Mr Adamson said he was "extremely concerned" that there seems to have been no children and a very limited number of young people released under the early release scheme.

And he said that no children or young people who were detained on remand and untried were released early under the scheme.

He said the proportion of children and young people detained on remand has actually increased.

"This is despite evidence of significant increased risk of harm not only from Covid-19 but also as a result of additional restrictions, including the cessation of visits and limits on contact with family and the resultant impact on the mental health of these young people," he said.

The three children's rights groups have further raised concerns that change the requirement for children and others to attend their children's hearings, held for young people in need of help, support or protection.

They joined with Scotland's Children's Commissioner has raised concerns that the new rules also allow for fewer than three panel members to make decisions at children’s hearings.

The commissioner said it was "vital" for all hearing to have a panel of three "to ensure children's rights to due process is realised".

They are also concerned about an increase in the period before an emergency foster or kinship care placement must be reviewed from within six weeks to within three months.

The commissioner also raised concerns that children released from secure accommodation to any placements that were not secure "may constitute a deprivation of of liberty" through, for example, an extension of interim compulsory supervision orders and emergency transfers.

The Equality and Human Rights Commission has echoed concerns about the provisions that impact on the operation of children’s hearings; timescales for child assessment and child protection orders; and timescales for compulsory supervision orders, including interim orders.

The move to make Scotland the first in the UK to directly incorporate the UNCRC into domestic law had been described by the NSPCC as "a monumental day for the nation".

When passed, the bill would make it unlawful for public authorities to act incompatibly with the incorporated UNCRC requirements, giving children, young people and their representatives the power to go to court to enforce their rights.

It will make it against the law for public authorities like the police, schools, hospitals and Scottish ministers to act in a way which is not allowed by the UNCRC.

That means that public authorities have to ensure that everything they do complies with children’s rights.

If they do not, children, young people and their representatives will be able to use the courts in Scotland to enforce their rights.

The Scottish Government has previously been criticised as being hypocritical in its approach to children’s rights, as it only raised the age of criminal responsibility from 8 years old to 12. This is despite the UN Committee on the Rights of Child stating that the absolute minimum age should be 14.

The Promise reflected what over 5,500 care experienced children and adults, families and the paid and unpaid workforce told the review and outlined what Scotland must do to make sure its most vulnerable children feel loved and have the childhood they deserve.

READ MORE: Home care cuts in Scotland during pandemic are potentially unlawful, warns human rights watchdog

Among the review’s “calls to action” was one for the Care Inspectorate and Scottish Social Services Council to come together with other regulators to “create a new, holistic framework that values what children and families value”.

“That framework must apply to the totality of care experience and include aftercare and advocacy services. A new framework must be totally focused on children’s experiences and their ability to find and sustain safe and nurturing relationships,” The Promise report states.

The review recommends that Scotland should move towards early intervention and prevention services, and that “acute and crisis care services must be phased out”.

Heraldscotland.com revealed earlier this week that the Scottish Human Rights Commission, which reports directly to the UN on human rights issues, warned that the withdrawal of care packages from thousands of Scots was potentially unlawful.

It said in a new monitoring report that cuts in social care during the Covid-19 pandemic has had “a direct and detrimental effect on people’s human rights”.

Disabled and older people had been left to sleep in wheelchairs – or been unable to get out of bed, wash or dress themselves – due to the cuts, it said.

A Scottish Government spokesperson said: “Human rights are absolutely core to all our considerations and decisions in response to COVID-19.

“It’s precisely because we take the rights of young people so seriously that we are committing so much time and resource to restricting the spread of the virus so that we can keep schools open.

“Scotland is set to directly incorporate the UN Convention on the Rights of the Child (UNCRC) into domestic law and will become the first country in the UK to do so. We will continue to work with local authorities, care providers and all relevant stakeholders to implement the changes to the system outlined in the Promise.”