Legal Services Agency meets with Children’s Commissioner About UNCRC Incorporation

Last week, Legal Services Agency met with representatives from the Commissioner for Children and Young People to discuss the incorporation of the UN Convention on the Rights of the Child (UNCRC) into Scots law.

The UNCRC

The UNCRC is a legally binding agreement which sets out the civil, political, economic, social, and cultural rights of every child. It proclaims that children have a distinct set of rights and sets out the positive obligations on public authorities to ensure all children can enjoy their UNCRC rights.

Incorporation into Scots law

The UNCRC is the most rapidly and widely ratified international human rights treaty in history, and in July 2024, was fully incorporated into Scots law through the UNCRC (Incorporation) (Scotland) Act 2024.

What does this mean?

The UNCRC’s incorporation into Scots law means:

• Public bodies, such as local authorities, must not act incompatibly with the UNCRC (section 6).
• Children, and their representatives, can challenge public bodies in the courts for breaches of their rights (section 7).
• Legislation must be read and given effect to in a way that is compatible with the UNCRC (section 24).
• If legislation is not compatible with the UNCRC, courts can strike it down or declare it incompatible, prompting the Scottish Parliament to remove the incompatibility (sections 25 and 26).

Note: Application of the UNCRC is currently restricted to devolved functions conferred by primary or secondary legislation of the Scottish Parliament.

Importantly, the Commissioner for Children and Young People can now intervene in proceedings in which a public authority has acted incompatibly with the UNCRC.

The first case

The first ever case involving such an intervention – PF v JH and LL – was decided in January 2025.

The case concerned whether the Lord Advocate’s power to prosecute children is within the scope of the UNCRC (Incorporation) (Scotland) Act 2024. The Commissioner intervened to make the argument that the Court should interpret the 2024 Act to enable decisions to prosecute children to be challenged on UNCRC grounds.

The High Court determined that the Lord Advocate’s power to prosecute children is within the scope of the UNCRC, meaning that all future decisions to prosecute children must meet the standards set out in the UNCRC and may be challenged in court if they fail to do so.

This was an important case which will undoubtedly have a significant impact on all future prosecutions of children in Scotland.

Other areas of strategic litigation

The Commissioner for Children and Young People is looking at other potential areas of strategic litigation which could make positive differences to the lives of children in Scotland.

A potential area of litigation which has been identified is eviction proceedings involving children – for example, cases of eviction due to criminal conviction.

Evictions and the UNCRC

Article 27 of the UNCRC provides that governments should ensure that children have access to adequate housing.

A tenant who is being evicted due to using their home for illegal purposes, where the eviction process starts within 12 months of a criminal conviction, is not able to defend the action through proving the eviction is unreasonable. In many such cases there are children staying in the home who have nothing to do with the crime and are made homeless when the decree for eviction is granted.

Article 3 of the UNCRC determines that, in all actions concerning children, the best interests of the child shall be a “primary consideration.”

General Comments prepared by the UN Committee on the Rights of the Child have provided guidance on how this should be interpreted. Children have a substantive right to have their rights assessed, legislation should be interpreted in a manner which best serves the child, and any decision must be considered and justified.

Strategic litigation in this area can determine whether evictions involving children must meet the standards set out in the UNCRC and what this would look like in practice.

The future

We are grateful to have met with representatives from the Children and Young People’s Commissioner who were able to share their expertise on potential future areas of strategic child rights litigation in the area of housing law.

It is our hope that the incorporation of the UNCRC into Scots law has positive effects on the lives of children who are at a danger of becoming homeless.