Scotland may soon have its first Commissioner for Children and Young People. Welcoming the proposal developed by Parliament's Education Committee, Cathy Jamieson, Minister for Education and Young People said; "I believe a Commissioner for Children and Young People can make a real and lasting difference to young lives." This comes at a time when a United Nations report has just criticised the record of both the UK and Scottish administrations on children’s rights, and recent research has highlighted the stark issues that face the nation’s children.

"The establishment of the post of children's commissioner will send a clear message that all children in Scotland matter—that their human rights are as important as those of adults, and that the views of children and young people will be heard and acted on." (Irene McGugan MSP)

Currently 1/5 of Scotland’s population are under 18 and a 1/4 of all households include children. Children are disproportionately affected by disadvantage, with one in three children in Scotland living in poverty. Those who do less well than their peers are overwhelmingly drawn from disadvantaged backgrounds, with disparities in health and social development apparent as early as age one. From early on in their lives many children are less able than others to benefit from opportunities available, creating cycles of disadvantage and deprivation, which all too often continue into adulthood. Poor educational performance, an increased likelihood of contact with police and of developing many serious health problems can all have a lasting effect on life chances.

Recent statistics indicate that half of all Scotland’s children are victims of crime each year, a quarter of whom do not report it to an adult. Scottish children have the worst diet and the highest youth suicide rate in Britain, and the UK has the highest rate of teenage pregnancies in western Europe and one of the highest rates of children in young offenders institutions. The daily reality for many children can be juggling school work with caring for a disabled parent, or the constant fear of racist abuse and violence faced by refugee children, while many other children are abused in the family home or in care homes.

The Scottish Executive has committed itself to; "building a Scotland where every child matters, where every child, regardless of its family background, has the best possible start in life". The need for a special office to protect the rights of children is particularly strong in light of children’s unique position of dependence on adults to access or defend their rights. Without the right to vote, their views are rarely represented.

The aim of establishing a Children’s Commissioner would be to promote a culture of children’s rights, providing representation for the views of children and young people, and to provide a framework where children could be made aware of their rights and how to access them. The Scottish Executive believe that "A Commissioner for Children and Young People could help to provide a voice for the most vulnerable and deprived children in Scotland and help to raise the profile of child poverty issues". This briefing paper sets out the background to proposals for a Children’s Commissioner for Scotland, sketching possible remits and the situation outside Scotland, both within the UK and internationally.

In January 2000 Sam Galbraith, then Minister for Education and Young People, invited the Education, Culture and Sport Committee to examine the need for a Children’s Commissioner, and the Committee consulted widely – not least with children – over a long period before producing a report on the issue, appointing Jackie Baillie and Irene McGugan to follow this up; and, in July 2002, a further report included a proposal for a Bill. The Committee recommended the establishing of a Commissioner, with a remit to "co-ordinate, monitor and promote issues affecting children's rights and interests".

A precedent for independent rights bodies was set by the establishment of the Disability Rights Commission in April 2000, and further impetus is provided by the UN Convention on the Rights of the Child – ratified by Britain in 1991 – which provides the frame of reference for the establishment of a Commissioner for Children. Enshrined in the Convention are the principles of non-discrimination, the interests of the child, the right to life and the right of children to be consulted on their views. The 1995 Children (Scotland) Act did provide for the views of children to be taken into account in any decision affecting them; however, its focus is on the welfare of the child rather than on rights.

Over 100 voluntary organisations who work with children and young people in the UK have voiced their support for the creation of a Children’s Commissioner, and a survey by the NSPCC found that 85% of the public supported such a move, rising to 97% among 15-24 year-olds.

The Scottish Executive has given its backing in principle to the creation of a Commissioner; Parliament agreed last month that a Bill should be introduced, and drafting is underway. Because it is a Committee Bill, stage 1, which is likely to begin in December, will be curtailed, as evidence need not be taken. Stage 2 will be considered by an ad hoc committee for amendments and should be completed by February. The Bill is unlikely to need major changes (though if more than two sittings of this committee are required, the legislation will be in difficulty for time). Stage 3 should happen just before the end of the Parliamentary term, followed by Royal Assent. It is estimated that a Commissioner could be in office by December 2003.

The Commissioner would be an independent, publicly funded, full-time position, covering all children and young people up to the age of 18, and those over 18 who are the subject of care orders. He/she would be appointed by the Queen on the recommendation of the Parliament for a 5 year term (serving no more than two terms in total in order to maintain independence from Parliament), with a 2/3 majority of Parliament required for dismissal. His/her remit would only relate to devolved matters although reserved issues could be commented on.

The Executive proposal is that the Commissioner’s remit cover four main areas:

• Promoting and safeguarding children’s rights
• Communicating with children
• Investigations
• Promoting good practice

It is envisaged that the Commissioner will commission research on children’s rights and needs, identifying and addressing gaps in provision, and advising agencies who provide services to children – including the Parliament and Executive - on how to achieve good practice. The participation of children is to be a key element of the Commissioner’s work, with the principles of consultation, participation and accessibility forming a core part. As part of these objectives, Scotland could follow the example of the Welsh Assembly, where children were involved in the selection procedure for the Children’s Commissioner for Wales.

The needs of those children most vulnerable to exclusion and deprivation are to be a particular focus for the Commissioner. In doing so, it is hoped that an impact will be made on narrowing the "opportunity gap" for Scotland’s children. Cathy Jamieson, has said: "I see the Commissioner as a champion for all children and young people. But those most at risk of exclusion and deprivation must be the priority…Pathways to poverty and exclusion are often set early in life, and it becomes very difficult to break this cycle."

The Commissioner is to have power to carry out investigations into how the rights, interests and views of children and young people are taken into account. The remit will not, however, include the power to investigate individual cases, although issues arising from such cases may be addressed. Any organisation (including the Parliament and the Executive) or any individual (including children and young people) may suggest a matter for investigation by the Commissioner. The post-holder may decide of his/her own accord to undertake an investigation, and ultimately the decision to undertake an investigation will lie with him/her.

The Commissioner would be required to produce an annual report setting out a review of his/her activity over the previous 12 months, an overview of work to be undertaken over the following year, and the participation strategy for actively engaging children and young people. The officeholder would be expected to examine and publicise relevant issues. Unlike the proposals in Northern Ireland, the Commissioner will not have a right of entry to premises. However, he/she will enjoy considerable latitude in fulfilling the aims outlined.

The Education Committee has recommended that the Commissioner should have powers to access documentation and require the attendance of witnesses during the course of an investigation. The Executive have indicated that they are considering giving the Commissioner a specific right of access to public and private institutions which provide services to children and young people.

Several countries already have Children’s Commissioners or Ombudsmen. In 1981, Norway became the first European state to create a Children’s Ombudsman with statutory powers, followed by New Zealand, British Columbia in Canada and several Scandinavian states. In a UK context, the Welsh Assembly, in December 2000, appointed the former director of Childline Cymru as its first Children’s commissioner, and the Northern Ireland Assembly announced plans for its own commissioner in January 2001.

It has been suggested that a Minister for Children is sufficient to protect the rights of children, but others argue that only a Children’s Commissioner would be independent from Government and party politics. Labour MP Shaun Woodward, also the director of children’s charity Childline, said "Ministers tend to do what governments want them to do, if they don't they want to lose their jobs. There may be times on children's issues when it's necessary to say things that government wouldn't agree with but they need to be said and policies need to be created to meet those needs".

Plans for local commissioners in the UK have also been mooted, with Edinburgh City Council considering the idea, and in Oxford in January 1999 a Children's Rights Commissioner was appointed, funded by the National Lottery and Oxfordshire Social Service. The National Lottery also fund an Office of Children's Rights Commissioner for London, with the aim of influencing the policy of the Greater London Assembly (GLA) and promoting children's participation.

In the For Scotland’s Children report it was recommended that the Executive should take into account the impact of all legislation and policy on children (and their families) through publishing a child impact statement. This could be done by the Commissioner, who might include this as part of his/her annual report and on a case-by-case basis as part of the usual consultation process.

Although there has been no outright opposition to the proposals, several concerns have been raised, with Conservative MSPs abstaining on the proposal to bring forward legislation. With their philosophical preference for individual over group rights, the Conservatives object to the representation of children as a group and have concerns that the Commissioner could undermine the roles of parents and elected representatives in safeguarding children, preferring a focus on children in local authority care. Supporters of the creation of a Commissioner stress that the rights of parents will be respected, but point out that parents often fail to protect the rights of their children, and that it is this which often brings children into local authority care in the first place. "Children are individuals" said Irene McGugan, "but they make up 20 per cent of our society and they bring to our attention a group of issues and problems that it is right to bring to our attention."

A basic concern is whether the post adds value and doesn’t simply duplicate functions already carried out; much of this would depend on effective co-operation with other organisations, including churches.

The Biblical injunction to speak up for those who cannot speak for themselves may be a helpful starting point, as it was for Christian reformers like Charles Kingsley who opened people's eyes to the denial of children's rights in child labour. Too many children today face equally horrific situations. And some of the most serious condemnations found in the gospels are for those who "cause little ones to stumble".

As a previous SCPO Briefing noted, the determination that "every child matters" is Biblically rooted, but there remain real questions as to how the welfare of all children is best promoted. Does the language of rights which underpins the Children's Commissioner proposal provide the most effective safeguards? If we believe that the family is the best place to nurture young people, how do we see the role of a children's champion relating to parental responsibilities – when there are good family relationships and when there are not?

Perhaps the key issue is that we currently let far too many children down by denying their "rights" or blighting their "welfare"; if not a Children's Commissioner, then what, to make the difference that is needed here?

A Commissioner for Children and Young People could help raise the profile of children’s issues and rights among children and adults, in much the same way as a race or disability commissioner highlights issues surrounding their concerns. As one child put it, "adults don’t listen to children but they would listen to a commissioner for children". The creation of such a post would provide a central point of reference for all those involved in the delivery and improvement of services for children and young people. While there are practical issues to be addressed to ensure the post adds value without replicating or competing with functions and responsibilities presently carried out elsewhere, other states and regions of the UK provide various models which could be adopted.

The Executive has given its support in principle to the proposal, which enjoys the backing of various children’s agencies, and would appear to command overwhelming public support. The question seems less "will it work?" than "how can we make it work?". Together with other initiatives to tackle poverty and social exclusion, the measure could provide a pathway out of the cycle of deprivation for many Scottish youngsters.