UNCRC is coming to Scots law. Could it render the care system illegal?

Written by Tom Freeman on 19 December 2018 in Comment

Analysis: amid reports the number of children in care is on the rise in Scotland, what impact will UNCRC incorporation have? 

Children running - Holyrood

When Hillary Clinton was an attorney in the 1970s, she said that children’s rights were a “slogan in need of a definition”, and the world has come a long way in defining them since.

The UK Government ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991. 

However, as an international treaty it has not been challengeable in Scottish and UK courts. That is, until next year. 

The Scottish Government has committed to incorporating the principles into domestic law. On Human Rights Day last week, Sturgeon reaffirmed her commitment to incorporate the UNCRC into Scottish law and policy next year.

But what is it?

The convention, established in 1989, sets out basic human rights that children everywhere are entitled to.

These are framed around four core principles: non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child.

And the rights every child should have?

- The right to survival 

- The right to develop to the fullest 

- The right to protection from harmful influences, abuse and exploitation 

- The right to participate fully in family, cultural and social life

This last one includes the right to be raised by, or have a relationship with, their parents, and represents a challenge for Scotland. 

Currently the country’s child protection system includes an option for the state to take over parenting. 

There were 14,897 children in care in 2017, and as has been widely reported, the state is not very good at bringing up children. 

Care-experienced people tend to have lower attainment, higher rates of unhealthy behaviours such as smoking and are more likely to end up jobless or even homeless.

Almost a third of the adult prison population self-identify as being care experienced.

The care system is already broken, that’s why it is under review. If the UNCRC is fully incorporated into Scots law, it could be illegal.

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