New UNCRC General Comment will focus on Access to Justice & is a wake up call for Scotland  

February 6th 2024

In this blog, Clan Childlaw’s Principal Solicitor & Chief Executive, Alison Reid discusses the announcement of the next General Comment by the UN Committee on the Rights of the Child & the gaps in current provisions in Scotland.

The United Nations Committee on the Rights of the Child has announced that the focus of its next General Comment will be on Children’s Right to Access to Justice and Effective Remedy. This is particularly important as Scotland prepares for the commencement of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act later this year. The Act explicitly references General Comments as a key tool for interpreting the UNCRC, underscoring their importance in shaping policy and practice. 

Access to justice is a fundamental right and is essential for the protection and promotion of all human rights. It encompasses the right to a fair hearing, equal access to courts, and effective remedies for rights violations. Ensuring access to justice for children involves support to navigate legal processes when their rights are at stake. 

In its last review of Scotland, the UN Committee on the Rights of the Child highlighted the need to ensure access to justice by ensuring legal support and representation in addition to remedies, including by removing barriers faced by children in disadvantaged situations and expanding the types of support provided under the legal aid budget. The Committee called for Scotland to ensure the provision, at an early stage of the procedure and throughout the legal proceedings, of qualified and independent legal aid to children alleged to have or accused of or recognised as having infringed criminal law. 

However, significant gaps persist in Scotland’s current provision of access to justice for children, notably the absence of automatic legal representation for children in Children’s Hearings on offence grounds. The lack of automatic legal representation raises concerns about the adequacy of procedural safeguards in cases with potentially serious consequences.  

While it is possible for children to access a lawyer, the current notification system to inform children of their referral on offence grounds lacks effectiveness. A mere reference to a leaflet at the bottom of the referral letter is insufficient to ensure the child’s understanding of the implications. This creates a significant risk of breaching Article 6 of the European Convention on Human Rights, which recognises the importance of legal representation for a fair trial. It also falls short of the protections guaranteed in Article 40 of the UNCRC which provides procedural guarantees to children who have been alleged as, accused of, or recognised as having infringed the criminal law.  

In its recent General Comment 24 on Children’s Rights in the Child Justice System, the Committee on the Rights of the Child made clear that to meet their obligations under Article 40 States must: 

“provide effective legal representation, free of charge, for all children who are facing criminal charges before judicial, administrative or other public authorities. Child justice systems should not permit children to waive legal representation unless the decision to waive is made voluntarily and under impartial judicial supervision.”  

The fact that the Children’s Hearing is a civil court doesn’t change the obligation, as it is dealing with children who have been alleged as, accused of, or recognised as having infringed the criminal law. A Children’s Hearing for offence grounds can result in a conviction (for the purposes of disclosure), a criminal record and potentially deprivation of liberty. Article 40 therefore requires that ‘effective legal representation, free of charge’ be provided for children in these circumstances, and that the waiving of legal representation must have clear safeguards including judicial supervision. The current provisions are not sufficient.  

The practical impact of this issue is staggering. In 2022/23 only 25% of the 2,637 children referred on offence grounds had legal representation – leaving around 1,875 children unrepresented in the system. 

Clan Childlaw has been working with the Scottish Parliament to propose solutions through the Children (Care and Justice) (Scotland) Bill. However, the window for amendments is closing as the Bill progresses to its final stage and the Scottish Government has not yet committed to making the necessary changes to ensure all children referred on offence grounds have legal representation.  

Scotland has shown incredible leadership over recent years by incorporating the UNCRC into domestic law, but now we have to deliver the changes to make those rights real. The Committee on the Rights of the Child has made their recommendations to Scotland clear. The announcement of the new General Comment focusing on Access to Justice is a wake up call. If Scotland wants to play a meaningful role in leading the setting of human rights standards on access to justice, then we need to take action now to ensure that children have legal representation.