No right of appeal on needs
Addressing a conference in Edinburgh to mark the 10th anniversary of the Children (Scotland) Act 1995, Kay Tisdall, a leading expert in childhood studies, pointed out that the Disability Discrimination Act extended the right of appeal to children, but the Additional Support for Learning (Scotland) Act did not.
"Why, in such a significant piece of new legislation?" Dr Tisdall asked.
She said that the law needed to be strengthened to ensure children were consulted consistently on decisions affecting them, in line with the UN Convention on the Rights of the Child.
While she praised politicians for having made young people's participation "commonplace" in the Scottish Parliament, Dr Tisdall commented: "For those of us who care deeply about legal issues affecting children, I do not think we can afford to be complacent."
She added: "One achievement of the 1995 Act has been to promote the child's right to be heard, but this is not applied consistently throughout the legislation. There is no statutory obligation, for example, to consult children over their children's services plan.
"Meanwhile, it had only been because of intervention by children's organisations and the Parliament's cross-party group on children and young people that an amendment was made to the Standards in Scotland's Schools 2000 Act giving children the right to be consulted over their education."
The age at which children should be consulted was also in need of review, Dr Tisdall said. "The 1995 Act set a presumption that children aged 12 or over would have sufficient maturity to have a view. But it did not state that those under 12 did not have this maturity. Yet 12 is now being taken as an absolute marker below which children are not consulted."
She added: "Current research has shown that children can be consulted at a younger age, but they need the information at the time and in the manner by which they can accept it so they can successfully take part in family decisions. In relation to family law, the research shows adults are not doing a very good job of that."
Bills to be discussed in the new parliamentary session would not redress the legal shortfalls, Dr Tisdall believed. "Why is there so little in the Family Law Bill on the right of children to participate in the making of family decisions?"
She also queried the scope of the Scottish Schools (Parental Involvement) Bill. "Why only parental involvement?" she asked.
The promise to look at advocacy issues in the current review of the Scottish children's hearing system, together with the soon to be published findings of an international review on the issue, should, however, provide "the opportunity to take bold steps towards radical legislation on children's rights to advocacy across all services".
Dr Tisdall also pointed to other shortcomings in the 1995 Act, which focused on children in need, and not on universal entitlement to services.
"There are difficulties in promoting children in need at an inter-agency level when education and health operate as universal services - and there are disagreements about separating out a particular group of children 'in need' when all children have needs."
Speaking to The TES Scotland later, Bronwen Cohen, chief executive of Children in Scotland, which organised the conference, called for "framework legislation" similar to that being introduced in Sweden, which laid down universal entitlements to services for children up to the age of 12.
"The framework would bring together existing legislation in a way that ensured consistency and coherence," Dr Cohen said. "Within that framework, parental as well as children's involvement would be included."
Zoe Dunhill, a consultant paediatrician, told delegates: "We may have a raft of measures in place to protect children, but there are still many needy children. Early intervention is the most crucial factor in preventing them from ending up in care and in the criminal justice system."
But Andrea Batchelor of South Lanarkshire Council pointed to tensions from a shortage of resources. "If choices have to be made between child protection and early intervention, then child protection wins," Ms Batchelor said.