Guidance for teachers and leaders in Scotland on the United Nations Convention on the Rights of the Child

This briefing sets out advice and guidance for teachers and leaders in Scotland on the United Nations Convention on the Rights of the Child (UNCRC).

The Scottish Government has confirmed its intention to incorporate the UNCRC directly into Scots law. At present, however, direct incorporation has yet to take place.

The information is based on the current legal status of the UNCRC. Advice to members will be updated to take account of developments in this area as they occur.

The briefing:

  • summarises the status and content of the UNCRC;

  • describes the particular way the UNCRC is currently being applied, and might be anticipated to be applied in future, in Scotland;

  • provides the NASUWT’s views on the UNCRC and sets out how it should most appropriately be understood; and

  • supports teachers and leaders to promote a positive interpretation of the UNCRC in practice, while robustly challenging any attempt to use the UNCRC as a justification for imposing inappropriate practices.

What is the UNCRC?

The UNCRC is an international treaty made up of 54 articles that aims to articulate the ‘civil, political, economic, social and cultural rights that all children everywhere are entitled to’, as well as the steps that governments must take to secure these rights.

The UK ratified the UNCRC in 1991. It has been ratified by all United Nations member states except for the United States.

While all countries that have ratified the UNCRC must undertake to ensure its provisions are implemented so that all children can benefit from them, the extent to which they have done so in practice varies considerably.

Some countries, such as Norway, Spain and Iceland, have ‘incorporated’ the UNCRC into their domestic laws. This means children can take governments, schools, local authorities and other public bodies to court to enforce UNCRC rights.

In other countries, it is required that the bodies who have responsibility for children and young people must act consistently with the UNCRC.

How does the UNCRC apply in Scotland and the United Kingdom?

To date, no part of the UK has directly incorporated the UNCRC into domestic legislation. No child can challenge a decision of a public body, such as a local authority or a school, through the courts on the basis that their UNCRC rights have been infringed.

Current legislation in Scotland (as well as that in Wales) requires Ministers and public bodies, such as local authorities, to ‘give better or further effect’ to the provisions of the UNCRC and to report every three years on progress.

In Scotland, Child Rights and Wellbeing Impact Assessments (CRWIAs) (pdf) have been increasingly used as a mechanism through which the Scottish Government and other public bodies can be encouraged to embed the rights of children in decision-making.

The Getting it Right for Every Child (GIRFEC) framework (pdf) is designed around key provisions of the UNCRC. Some aspects of the UNCRC are also reflected in other statutory rights, such as those relating to additional support needs and child protection.

These laws do not, however, give the UNCRC rights directly to children or to those acting on their behalf.  All the legal rights pertaining to children are set out in Scots law directly or, where it relates to a reserved matter, Westminster legislation.

What is changing in Scotland?

The Scottish Government considered there was a need to ‘significantly enhance the protection and enhancement of children’s rights’ beyond that provided by existing law. The proposed mechanism is to incorporate the UNCRC directly into Scots law so that children (defined as those aged 17 or under) can enforce their rights directly in the courts.

A Bill to incorporate the UNCRC was passed unanimously by the Scottish Parliament in March 2021. Aspects of the Bill were challenged by the Westminster Government in the UK Supreme Court in October 2021. Following the Supreme Court judgement, the Scottish Government committed to address the issues identified and present a revised Bill to the Scottish Parliament. This has not yet taken place.

The revised Bill is likely to differ from the original version in some important respects. Nevertheless, it is anticipated that it will continue to contain provisions which give children considerable enforceable UNCRC rights in the courts.

When details of the revised Bill are published, this guidance will be updated accordingly.

What difference will incorporation of the UNCRC into law make?

While public bodies in Scotland must currently take account of the UNCRC in undertaking their functions, children and young people have no means of enforcing these rights if they or their parents believe there has been a breach.

Incorporation will mean that every child’s UNCRC rights are legal rights and public bodies can then be taken to court by children, or their families, if these rights have not been respected.

Courts, under the framework set out in the UNCRC Bill, will then be able to take steps to ensure that actions or policies that are not compliant with the UNCRC are amended or ended. This will represent a significant change to the ways in which the UNCRC is applied and understood currently.

In Scotland, therefore, final rulings on what the UNCRC means, and does not mean, will be determined by the courts as cases are brought to them by children, their parents or bodies acting on their behalf post-incorporation.

Until a body of case law is established, interpretation of what the UNCRC means for the practices of schools, local authorities, the Scottish Government and other public bodies will, and do, vary widely and will be the subject of debate.

Without a body of case law, it can be difficult to identify with accuracy how the UNCRC should be interpreted.

It is also worth noting that UNCRC interpretations can vary substantially between different countries that have already incorporated the Convention. How Scottish courts will interpret the UNCRC in practice remains unknown.

How is the UNCRC being used prior to incorporation into law?

While the UNCRC Bill has yet to be enacted, the anticipated legislation is nevertheless having an increasingly noticeable impact on the way the Scottish Government, public bodies such as Education Scotland and the Scottish Qualifications Authority, as well as local authorities, are carrying out their functions. It is also being used to justify a range of different school-level policies and practices.

Recent examples of policies where the UNCRC has been used to justify decisions, or to reject alternative proposals, include:

  • appeals arrangements as part of the Alternative Certification Model (ACM) for awarding qualifications in 2021;

  • attempts by the Scottish Government to mandate the use of restorative behaviour practices;

  • relaxation of some Covid control requirements in schools during the pandemic, such as on mask wearing; and

  • policy developments on seclusion and the physical restraint of pupils.

What is the NASUWT’s view of the UNCRC and incorporation?

In 2022, the NASUWT’s most important decision-making body, our Annual Conference, confirmed the Union’s stance on the UNCRC in light of its pending incorporation into Scots law.

Our Maintaining World Class Schools Report is clear that the Rights of the Child as set out in the UNCRC are fundamental and it is important that they are respected in policy and practice at national, local and school level.

The UNCRC provides an important basis for supporting children and young people to flourish in all aspects of their lives and to develop and benefit from the universal human values of peace, dignity, tolerance, freedom, equality and solidarity. The NASUWT fully shares these aspirations.

It is clear that the UNCRC provides an important mechanism to hold the Scottish Government, local authorities and other public bodies to account for the impact of their actions, and inactions, on the rights of children and young people.

Accountability is important to ensure policy decisions not only consider the impact on the resourcing of education, the quality of education achieved by supporting teachers and leaders and the protection of children from discrimination, but also ensure that families are given the assistance they need as the primary supporters and nurturers of children and young people.

The NASUWT will draw on the UNCRC, both before and after incorporation, to challenge the Scottish Government and local authorities where their policies fall short of the ambitions for children set out in the Convention.

In holding others to account, the Union will ensure that the UN’s Aims of Education (pdf) to give genuine effect to the UNCRC means teachers and leaders must be involved in the development and implementation of education policy is respected in practice.

The NASUWT does not object in principle to the incorporation of the UNCRC into domestic legislation, but it is clear that its implementation must fully recognise the other important rights school staff and children possess.

These rights include those set out in the Universal Declaration of Human Rights, the Human Rights Act, the European Convention on Human Rights and others legislative rights passed by the Scottish and, where applicable, Westminster Parliaments.

Teachers’ and leaders’ status as employees and workers brings other fundamental rights into play, including those set out in the UN’s International Labour Organisation (ILO) conventions.

Like the UNCRC, ILO conventions are legally binding on countries that have ratified them, including the UK.  These conventions set out, for example, the right to take lawful industrial action and to take action to prevent workplace discrimination.

Domestic legislation provides additional rights for teachers and leaders in relation to health and safety at work, discrimination, as well as their terms and conditions of employment.

The NASUWT is clear that advancing the UNCRC must be done in a way that takes full account of and respects the rights of teachers and leaders, including their right to take industrial action and their right to ensure they can work in environments which secure and maintain positive pupil behaviour.

Challenging myths about the UNCRC

Any discussions about the implications of the UNCRC for the work of teachers and leaders and the schooling of children and young people must not be based on myths or flawed assertions about the Convention and its interpretation.

It is of deep concern that teachers and leaders are encountering such myths or assertions to an increasing extent in the period prior to incorporation of the UNCRC into law.

Inaccurate and inappropriate interpretations of the UNCRC risk undermining the legitimate professional and employment rights of teachers and leaders, compromising the right of children and young people to benefit from high-quality educational experiences in schools that are respectful, safe, inclusive and conducive to learning.

Teachers and leaders report that the UNCRC is being used to justify policies and practices in an increasingly wide range of areas.

NASUWT members who are concerned about the application of the UNCRC in specific cases should seek advice from the Union directly.

There are a number of frequently recurring myths about the UNCRC that teachers and leaders should be both aware of and also empowered to challenge. Some of the most common myths are described below.

Myth - the UNCRC is the law of the land and failing to implement it is illegal

As outlined above, the UNCRC has yet to be incorporated into Scots law. At present, no person or school can be taken to court on grounds that they have failed to implement the Convention.

The only legal responsibilities that relate to the UNCRC are those of the Scottish Government and other public bodies to report on their progress in taking forward the Convention through their child-related activities and duties.

There should be no objection to teachers, leaders, schools and local authorities reflecting on the UNCRC in developing and reviewing their practices. Teachers and leaders should, however, resist assertions that a particular practice, presented as being required under the UNCRC, must be introduced because implementing the UNCRC is a legal requirement.

Myth - teachers and leaders who fail to implement the UNCRC are breaking the General Teaching Council for Scotland (GTCS) Code of Professionalism and Conduct and Registration Standards

There is no requirement in the GTCS Code that teachers and leaders must implement the UNCRC. While many of the provisions of the Code reflect aspects of the UNCRC, such as that set out in Article 3 of the Convention on the need to act in the best interests of the child, these expectations stand independently of the UNCRC.

The Standards for Provisional and Full Registration state that teachers are expected to respect the rights of all learners as outlined in the UNCRC. The GTCS has published guidance (pdf) on how teachers and leaders can meet this expectation.

It is important to note that while the guidance encourages reflection on the UNCRC and how it can be used to inform professional practice, it does not suggest that any specific practice must be adopted in order to comply with the Standards.

Myth - the only part of the UNCRC that matters for schools is Article 12 on children’s voice

It is clear that some aspects of the UNCRC are likely to be more relevant to the work of schools than others.

However, the UN has confirmed that all public bodies to which the UNCRC applies must recognise that the UNCRC should be read as a whole. Individual articles should not be picked out just because they are seen as helpful by these bodies in lending weight to particular policies or practices.

Similarly, the effect of other articles should not be overlooked or downplayed simply because they are seen as inconvenient to advancing any preferred policies and practices.

It is the case that four UNCRC articles are regarded as ‘core’ in that they inform interpretation of all the other articles.

These articles include Article 12 on children’s participation in decisions that affect their lives, alongside:

  • Article 2 on non-discrimination;

  • Article 3 on the need for public bodies to act in the best interests of the child; and

  • Article 6 on ensuring children’s survival and development.

This does not, however, mean that the other UNCRC articles should be seen as less important.

The NASUWT has been concerned that some schools, and the education systems in Scotland and the UK more broadly, have tended to focus on Article 12 and by doing so have failed to interpret it accurately by failing to take account of other articles.

Article 12 states that the right of a child to express their views on matters that affect them is qualified by the need to take account of the ‘age and maturity’ of the particular child: this article does not mean that the views of an individual child must be acted on in all circumstances.

Article 3, on the need to act in the best interests of the child and all other children, and Articles 28 and 29, on the right of all children to education, are also relevant in this context, as are many other broader legal rights the child, other children and the adults who work with them may have.

As a general rule, teachers and leaders should not accept without question a policy or practice justified on the basis of a single UNCRC article, especially Article 12, without consideration being given to the implications of other UNCRC rights for all children and rights derived from other sources, including those that apply to adults.

Myth - the UNCRC means that schools cannot take effective action to address disruptive or dangerous pupil behaviour and to promote positive discipline

There are no provisions in the UNCRC that prevent schools from taking effective and proportionate action to address poor pupil behaviour, particularly behaviour that places the health and safety of other pupils and staff at risk.

The NASUWT is aware that the UNCRC has already been used to justify inaction. Teachers and leaders should be confident in rejecting any such assertions and insisting that measures are in place to ensure schools remain positive learning environments that are safe for staff and pupils alike.

Some unhelpful attempts to use the UNCRC to limit or prevent appropriate action being taken to address disruptive and unhelpful behaviour rest on claims that the Convention only protects the rights of the child displaying such behaviour to the exclusion of the rights of other children and adults.

The UN Committee on the Rights of the Child has been clear (pdf) that this is an entirely incorrect interpretation of the UNCRC. In any set of circumstances, the Convention focuses on the rights of all children, including those whose rights are impacted adversely by the behaviour of other children, as well as those of adults.

In particular, the UN has explained (pdf) that there is a clear responsibility on local authorities and other public bodies to ensure that the rights of children under Article 19 of the UNCRC to be protected from violence extends to protection from violence committed by other children.

It has confirmed that, in respect of children who are subject to violence on the part of other children, ‘the role of adults responsible for these children is critical in all attempts to appropriately react [to] and prevent such violence’.

Systems of behaviour management in schools, such as those that claim to be based on the principles of ‘restorative behaviour’ and that have the effect of allowing violent behaviour to continue unaddressed, are not consistent with Article 19 of the UNCRC and should be challenged robustly on these grounds.

It has been suggested that use of the term ‘sanctions’ in the context of school discipline is inappropriate because it is prohibited by the UNCRC. This is entirely incorrect. For example, in its explanation of the right of children to be protected from violence, clear reference is made by the UN Committee on the Rights of the Child to the legitimate use of ‘educational’ and ‘therapeutic’ sanctions.

Article 28, on the right to education, makes direct reference to school discipline and the UN has set out in detail how discipline should be understood in the context of the Convention.

It emphasises in particular that ‘corporal punishment’ is not consistent with children’s rights under the UNCRC and, in line with this understanding, such punishment has been prohibited in Scotland’s schools for many years.

It also, quite correctly, excludes non-physical forms of punishment which are intended to belittle, humiliate, denigrate, scapegoat, threaten, scare or ridicule children.

However, the UN is also clear that ‘in rejecting any justification of violence and humiliation as forms of punishment for children, the [UN] Committee [on the Rights of the Child] is not in any sense rejecting the positive concept of discipline.

The healthy development of children depends on parents and other adults for ‘necessary guidance and direction’. The Committee also recognises that there are circumstances where the use of force to protect children is appropriate.

Myth - the UNCRC means that schools cannot establish expectations of pupil behaviour and act when these expectations are not met

It is sometimes suggested that an implication of the UNCRC is that schools cannot establish and act to secure standards of expected pupil conduct. There is no aspect of the UNCRC that supports this view.

The UNCRC confirms that children have basic fundamental rights that they possess regardless of their conduct or behaviour. This principle is set out in the UNICEF document (pdf) on myths and misconceptions about the UNCRC that has often been drawn upon in Scotland and elsewhere in the UK to support interpretation of the UNCRC.

However, UNICEF is also clear it is entirely entirely reasonable (pdf) for schools to establish expectations of all children so that they act, or refrain from acting, in ways that allow the rights of their peers and of other adults in the school to be respected.

Most sensible systems of school discipline rest on this principle and, as described in the above sections, schools are expected to intervene to address pupil behaviour that impacts on the rights of others, for example to prevent violence between pupils.

Involving pupils in the development and monitoring of these expectations is an effective and common means by which schools can give effect to the provisions of Article 12.

Myth - the UNCRC bans use of the term ‘discipline’ in pupil behaviour-related policy and practice

It is incorrect to claim that the UNCRC prevents use of the term ‘discipline’ when discussing ways in which positive pupil behaviour can be promoted and sustained. Article 28 of the text of the Convention confirms the legitimacy of this term explicitly by using it.

The UN Committee on the Rights of the Child has published a commentary (General Comment No. 8) on ways in which the UNCRC should be understood in this respect. This commentary makes clear that the ‘Committee is not in any sense rejecting the positive concept of discipline’.

The Committee also expressly endorses endorses the view published by another United Nations organisation, UNESCO, that non-violent and non-degrading approaches to ‘constructive child discipline’ that aim to secure positive social behaviour on the part of children are to be encouraged.     

Next steps

The NASUWT will monitor developments on the UNCRC in the period preceding incorporation and provide updates to this advice, including seeking feedback from members on their experience of emerging practice and providing more detailed guidance on specific issues raised.

We will also continue to press the Scottish Government, local authorities and other public bodies to reflect the principles set out above in their advice, guidance, policies and practice.

 


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