Legal obligations

Children’s rights are now embedded in Scottish legislation with the Children and Young People (Scotland) Act 2014 (legislation.gov.uk) introducing a duty on Scottish Ministers to ‘keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements’ and if they consider it appropriate to do so, take any steps identified by that consideration.

Respect for All requires that all partners who work with children and young people are supported to promote and protect the rights of children and young people in Scotland.

The Equality Act 2010 (section 149) places a duty on public authorities to:

• eliminate discrimination, harassment and victimisation;
• advance equality of opportunity;
• and to foster good relations between persons who share a protected characteristic (and those who do not).

This is known as the Public Sector Equality Duty (PSED). The protected characteristics are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Age and marriage and civil partnership are not protected characteristics within school education.

In essence, organisations have to ensure that policies aimed at preventing bullying or responding to bullying where it occurs do not directly or indirectly discriminate anyone who shares a protected characteristic. For those bodies covered by the public sector equality duty (see below) that would normally be done by carrying out an Equality Impact Assessment (EQIA) of those policies against the needs of anyone who shares one or more protected characteristics and publishing the conclusions of that assessment.

As well as placing duties on service providers and public sector bodies the Act provides for ways in which individuals can seek remedies for discrimination by organisations, including mediation or making a claim to a court or tribunal. The Equality and Human Rights Commission (EHRC) provides more information on the rights of individuals, or advice can be sought from the Equality Advisory Support Service. Everyone has several of the protected characteristics in the Act. The Equality Act 2010 does not just protect people from discrimination because they have these characteristics. It also protects a person from discrimination because they are perceived to have one or more of the protected characteristics, or that they are associated with someone who does have a protected characteristic.

The public sector equality duty in the Equality Act 2010 requires an organisation exercising public functions to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations in the exercise of those functions. To help them to do this, most Scottish public authorities are subject to the requirements of a set of specific duties. These duties include equality impact assessment of new or revised policies.

The Equality and Human Rights Commission published Technical Guidance for all schools in Scotland (including publicly funded, grant-aided, independent, special and preschool and nursery schools) which outlines the requirements of the Equality Act 2010 for schools in relation to the provision of education and access to benefits, facilities or services, both educational and non-educational. It provides an authoritative, comprehensive and technical guide to the detail of the law.

Assessing impact and the equality duty: an eight step guide | Equality and Human Rights Commission (equalityhumanrights.com)

The Children and Young People (Scotland) Act 2014 (legislation.gov.uk) makes clear that Getting it Right for Every Child (GIRFEC) is the national approach to improving the wellbeing of children and young people in Scotland and puts their best interests at the heart of decision making. It recognises that children and young people will have different experiences in their lives, but every child and young person has the right to expect appropriate support from adults to allow them to grow and develop and reach their full potential.

The Schools (Health Promotion and Nutrition) Act (Scotland) 2007 amended the Education (Scotland) Act 1980 and the Standards in Scotland’s Schools etc. Act 2000 to place a number of duties on education authorities including ensuring that schools are health promoting. This includes promoting physical, social, mental and emotional wellbeing by supporting pupils to make positive lifestyle choices in relation to their health and wellbeing.Bullying, whether linked to prejudicial attitudes or not, can sometimes create additional support needs for children and young people. There is specific legislation in this area in the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) which provides a comprehensive legal framework for the provision of additional, targeted support for children and young people who face barriers to learning.

The Carers (Scotland) Act took effect in April 2018. It puts in place a system of carers rights designed to listen to carers; improve consistency of support; and prevent problems. With the overall aim of the Act to help to sustain caring relationships while protecting carers health and wellbeing.

Under the Act, a young carer is a child aged under 18 (or 18 and still at school) who provides (or intends to provide) care for someone with a disability, long term health condition or addiction issue. An individual can be caring for someone for any number of hours, and does NOT need to provide substantial care on a regular basis to fit the definition of a young carer.

Every young carer is entitled to a Young Carer Statement from the local authority or an organisation acting on its behalf, normally a carer centre, young carer service or school. The Statement is created from an outcomes based conversation with the young carer and must include:

• the nature and extent of the care provided and the impact on their wellbeing and day-to-day life;
• the extent to which they are able and willing to provide care;
• whether the responsible authority thinks that it is appropriate for the individual, as a child or young person, to be a carer for the person you care for;
• emergency and future care planning, including any arrangements that are in place;
• what ‘personal outcomes’ matter to the young carer in order continue to provide care, where that is appropriate, to have a life alongside caring, and to improve your own health and wellbeing;
• support available if they live in a different local authority are from the person they care for;
• whether support should be provided as a break from caring;
• support available to locally;
• any support which the responsible authority intends to provide; and
• the circumstances in which the young carer statement is to be reviewed.

In addition to this, if any of the young carer’s identified needs meet local eligibility criteria then the young carer has a right to support to meet those needs. The Act also includes duties to involve carers in individual and strategic decision making, as well as a duty for health boards to involve carers in decisions about the hospital discharge of the person they are caring for.

Am I a carer? - Carers’ charter - gov.scot