cl@n childlaw

1. cl@n childlaw ADVOCACY & LEGAL SERVICES FOR CHILDREN AND YOUNG PEOPLE We deliver free legal advice and representation to Children and Young people in Edinburgh and the Lothians. We help Children & Young People up to the age of 18, or 21 if they have been Looked After Children. We also deliver training, and have an evidence-based Policy Development Unit. cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 1 January 2012

2. Proposed Rights of Children and Young People Bill KEY LEGAL CONCEPTS Fiona Jones, cl@nchildlaw cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 2 January 2012

3. Key Legal Concepts • Current Status of UNCRC • Proposed Bill: • “To Have Due Regard” • Scope of Functions • No Incorporation of UNCRC • Judicial Review as Remedy for Failure to comply cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 3 January 2012

4. Current Status of UNCRC • UNCRC not incorporated into UK or Scots Law • Used to interpret domestic legislation cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 4 January 2012

5. Proposed Rights of Children and Young People Bill “The Rights of Children and Young People Bill will establish in law the responsibilities of the Scottish Ministers to have due regard to the United Nations Convention on the Rights of the Child (UNCRC) when exercising any of their functions... …” cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 5 January 2012

6. Proposed Rights of Children and Young People Bill • “To Have Due Regard” • Scope of Functions • No Incorporation of UNCRC cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 6 January 2012

7. “To Have Due Regard” • Proportionality & Relevance • Requirement to consider UNCRC, not a requirement to comply with its provisions • Once considered, may be given no weight cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 7 January 2012

8. “To Have Due Regard” • How will Scottish Ministers show they have had Due Regard? • Welsh Measure – Children’s Scheme • Principles from Equality Duty case law cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 8 January 2012

9. Principles from Case Law • Awareness of Duty • Conscious approach before and during exercise of Duty • Not just tick box exercise • Duty cannot be delegated • Continuing Duty • Proper record-keeping is good practice • If due regard is paid, can consider other countervailing factors cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 9 January 2012

10. Scope of Functions Exercise of any of the Scottish Ministers’ Functions: • Includes e.g. • SG Bills, Policy & Guidance • Representations to UK Government cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 January 2012 10

11. Scope of Functions Who are Scottish Ministers? • First Minister and other Ministers • Lord Advocate and Solicitor General for Scotland Includes Executive Agencies Excludes NDPBs Health Boards Local Authorities cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 January 2012 11

12. No Incorporation of UNCRC Not directly actionable • Contrast with ECHR: • Legislation • Acts of Public Authorities • must be compatible with ECHR cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 12 January 2012

13. Judicial Review • Proposal: • Remedy for failure by Scottish Ministers to comply with their duty to have due regard is a Petition for to the Court of Session for Judicial Review cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 13 January 2012

14. Judicial Review • Advantages: • Flexibility & Speed of Procedure • Some scrutiny by Courts • Disadvantages: • Only reviews process, not substance • High threshold to succeed in action • Inaccessibility to children & young people • Difficulties obtaining legal aid cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 14 January 2012

15. Judicial Review • Further Considerations: • “Legitimate Expectation”: • JR already available as remedy? • Recent Changes in Scotland: • Supreme Court Case - Axa cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 15 January 2012

16. Further Reading! SG Consultation http://www.scotland.gov.uk/Publications/2011/09/07110058/0 cl@n childlaw Response http://clanchildlaw.org/wp/wp-content/uploads/2011/12/cl@n-childlaw-Consultation-Response-1.pdf Welsh Measure http://www.legislation.gov.uk/mwa/2011/2/contents Welsh Consultation on Children’s Scheme http://wales.gov.uk/docs/phhs/consultation/111107consultationen.pdf cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 16 January 2012

17. cl@n childlawNorton Park,57 Albion Road,Edinburgh EH7 5QY t: 0131 475 2567 or 075 275 66682 e: info@clanchildlaw.org w: www.clanchildlaw.org cl@n childlaw Building on the Rights of Children & Young People Community Law Advice Network Registered Charity Number: SC039156 January 2012