Young carers are being deprived of their rights because of Scottish Office interpretation of recent legislation and this needs to be challenged, a child care legal expert told a conference of young carers in Edinburgh last week.
Kathleen Marshall, a solicitor who is visiting professor in Glasgow University's centre for the study of the child and society, said that the problem arose from the Scottish Office's interpretation of the 1995 Carers (Recognition and Services) Act, which is meant to give all carers throughout Britain the right to obtain an assessment of their ability to provide care for dependent adults.
But Professor Marshall said that in Scotland carers under 16 were excluded from that entitlement. "This is something that must be taken up through a judicial review or through political pressure - or both."
The Scottish Office stance runs counter to the UN Convention on the Rights on the Child, Professor Marshall went on. Although under the Children (Scotland) Act 1995, children caring for a sibling who is disabled are entitled to request an assessment, "we still have not accorded young carers the right, in many cases, to be active pursuers of their own welfare."
Under the Carers Act local authorities in Scotland have discretionary power to carry out an assessment on under-16 carers.
But in what Professor Marshall described as "a highly questionable interpretation" of the Age of Legal (Scotland) Capacity Act, the Scottish Office argues that the youngsters have no right to demand an assessment. That position was "utterly amazing".
Getting an assessment was important for a young carer, said Professor Marshall. Quoting the Scottish Office's own guidance on the Children (Scotland) Act, she said: "A carer's assessment may identify education, health or housing needs. It opens the door to a wider range of services."
The conference was organised by NCH Action for Children and Edinburgh Young Carers Project - one of only two projects in Scotland which provides activities and support for young carers.
Angus Skinner, Scottish Office chief inspector of social work services, said: "It is not that we have excluded young carers by some deliberate acts, it is that we have not included them." He added that the situation had been reversed to some extent, in the Children Act which "clearly does include them".
Acknowledging that young carers can have "so much responsibility their social and educational development suffers," Mr Skinner asserted that "not all children in families affected by disability experience predominantly adverse affects". Care therefore had to be taken that "we do not create cultures which present children of disabled parents, or who have disabled siblings, as victims. Being a young carer is generally not only something to take pride in, but often a positive experience in life".
But Professor Marshall said: "We as a society should ensure that young carers' valuable contribution is kept within limits that allow them to do the other things that children and young people normally do."
She also pointed to "a strange little anomaly" in the Education (Scotland) Act 1980 which allows the local authority to grant exemption from attendance at school to any child of 14 or over in order to allow him or her to help out at home.