Defending the rights of your child

I’ll start this blog by making it very clear that I am not a lawyer.  The following are simply my musings on the potential that the UNCRC Act could bring for people who have been involved with the criminal justice system…

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In just two weeks, on 16^th July 2024 the UNCRC Act will come into effect in Scotland.  You can read more about the Act itself on our webpage covering the topic.  

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In this blog, I wanted to reflect on some of the practical ways in which this change in law might help people to defend their children’s rights.

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Risk management is so often used as the justification for placing restrictions on families. The perceived risk that the parent poses is often given much more significance than the direct impact on the child.  

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The interesting thing about this change in law is that it will now force public authorities to actively avoid violating the rights of a child.

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Let me take you through an example:

Imagine the scenario: You have a partner and one child. You have been convicted of an offence (that in no way relates to your child) and have been sentenced to the social work supervision element of a community payback order for two years.  You are 6months through your sentence period and have never missed an appointment.

You mention to your social worker that you are planning a family holiday.  The social worker tells you that they will not allow you to go on holiday as a family because they feel they won’t be able to effectively manage your risk if you are away from your home town.

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Now, there is a lot about this scenario that is troubling in relation to your rights and the restriction that is being placed on you. However, I’m going to do a separate blog another day about the topic of understanding the legislative basis for the introduction, by social workers, of additional restrictions.  So, for now, let’s assume that you want to challenge this restriction because of the impact it’s going to have on your child.

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Under the UNCRC, your child is entitled to:

-           The right to be heard

-           The right to leisure, play and culture

-           The right for their best interests to be a primary consideration

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I’m obviously no lawyer but it seems to me as if you’d have a pretty good case to make in relation to these points:

-           The right to be heard – I suspect most children, when asked, will say they want to go on holiday.

-           The right to leisure, play and culture – restricting a family’s ability to go on holiday for 2 years will have a direct impact on the child’s leisure and play (possibly also culture).

-           The right for their best interests to be a primary consideration – I think most people can agree that typically holidays are in a child’s best interests. This may well therefore lead to interesting negotiations about whether potential risk is outweighing the child’s best interests.

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Clearly this is a scenario that I’ve just made up and every single situation is unique. However, given that so many people face blanket policies under the justification of risk management, the UNCRC may well be a crucial turning point in forcing public authorities to consider the specific circumstances of the individual in front of them.

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As I explained at the start, these are only my musings. We don’t actually know what is going to happen and how public authorities are going to adapt to the new legislation. However, I feel pretty certain that this change is going to provide individuals with slightly more power to force public authorities to provide a clear rationale to justify their decisions and that’s never a bad thing.

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If you feel your child’s rights are being violated, feel free to reach out to the Next Chapter Scotland support helpline and consider reaching out to one of the specialist, free, legal firms: Clan Childlaw and Scottish Child Law Centre.

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