Getting justice for children
UN human rights rules have been incorporated into Scottish law to ensure fairness for everyone, writes Andrew Seggie
Few questions in criminal justice matter more than how we treat children. Whether a child is accused of an offence, reporting a crime or giving evidence, their involvement raises questions that go well beyond the ordinary demands of a prosecution.
Human rights run through each of those situations. From the first police investigation to decisions about prosecution, diversion, bail, remand and sentence, the rights at stake can shape both the course of a case and how evidence is obtained and presented.
But recognising children's rights does not mean their interests always prevail. Courts must also protect victims, preserve public safety and ensure that proceedings remain fair. The United Nations Convention on the Rights of the Child (UNCRC) provides an important framework for that task.
The convention also addresses how authorities must work together to make those rights effective. In criminal justice, two provisions are particularly important: Articles 37 and 40.
Article 37 makes clear that arrest, detention and imprisonment must be lawful, used only as a last resort and last no longer than the shortest appropriate period. A detained child must be treated humanely, ordinarily kept separate from adults, allowed contact with family and given prompt access to legal assistance.
Article 40 sets out minimum rights for children accused of criminal offences. Together, these provisions place the treatment of children firmly within a framework of rights.
In Scotland, incorporation has brought those principles into sharper focus. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 came into force on 16 July 2024.
The significance is practical as well as symbolic. Incorporation makes the rights covered by the Act directly enforceable in Scottish courts, giving people a means of holding public authorities to account for failures to respect them.
Section 6(1) makes it unlawful for a public authority, when exercising a relevant function, to act or fail to act in a way that is incompatible with the UNCRC requirements. What does that mean when a child faces prosecution? That question came before the High Court in the Lord Advocate's References concerning PF Dundee v JH and LL [2025] HCJAC 2.
The references arose from separate summary prosecutions of two young people, aged 17. Their representatives argued that aspects of the proceedings were incompatible with the UNCRC.
At the centre of the case was the scope of the Lord Advocate's duties. Was she exercising a “relevant function” when deciding to prosecute a child and conducting that prosecution?
The High Court held that she was. Decisions to prosecute children therefore fall within the statutory compatibility duty and may be challenged if they do not meet the incorporated UNCRC requirements. The court also confirmed that a child is anyone under 18.
The importance of that decision lies in the connection between children's rights and the everyday exercise of prosecutorial power. Those rights are not separate from decisions about whether and how a case should proceed.
Victims, public safety and the fairness of proceedings remain essential considerations in criminal courts. But where a child is involved, the question is whether the way it proceeds respects the rights that the law now requires it to protect.
The UNCRC does not replace Scottish criminal law or convert difficult decisions into a simple
best-interests test. Its deeper significance is procedural and cultural: it requires criminal justice
agencies to recognise everyone under 18 as a rights-holder, and to justify decisions by reference to necessity, proportionality, and development.
Andrew Seggie is a legal director, Brodies LLP