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ABSTRACT
Policy responses to COVID-19 have had dramatic impacts on children’s human rights, as much as the COVID-19 pandemic itself. In the rush to protect the human right of survival and development, new policies and their implementation magnified the challenges of taking a children’s rights approach in adult-oriented systems and institutions. This article explores these challenges, drawing on learning from the independent Children’s Rights Impact Assessment (CRIA) on policies affecting children in Scotland during ‘lockdown’ in spring 2020. The article uses concepts from childhood studies and legal philosophy to highlight issues for children’s human rights, in such areas as children in conflict with the law, domestic abuse, poverty and digital exclusion. The analysis uncovers how persistent constructions of children as vulnerable and best protected in their families led to systematic disadvantages for certain groups of children and failed to address all of children’s human rights to protection, provision and participation. The independent CRIA illuminates gaps in rights’ accountability, such as the lack of children’s rights indicators and disaggregated data, children’s inadequate access to complaints and justice, and the need for improved information to and participation of children.
Acknowledgements
The authors want to acknowledge the underlying work for this article, in the independent CRIA. It was commissioned by the Children and Young People's Commissioner, Scotland, supported by the Observatory of Children's Human Rights Scotland, and written by a committed team. The analysis presented in the article benefited from collaborative learning with children, young people and adults across a range of projects. We appreciate the comments from the anonymous reviewers.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 For example, Clare Bambra et al., ‘The COVID-19 Pandemic and Health Inequalities’, Journal of Epidemiology and Community Health 7, no. 11 (2020): 964–8; The Scottish Government, The Impacts of COVID-19 on Equality in Scotland, (2020) https://www.gov.scot/publications/the-impacts-of-covid-19-on-equality-in-scotland/ (accessed June 11, 2021).
2 The definition of ‘policies’ is not settled in the academic literature. This article uses a wide definition of policies, from legislation to official guidance to administrative action, by government or other institutions (see https://www.cdc.gov/policy/analysis/process/definition.html (accessed August 19, 2021)). The specific policies analysed by the independent CRIA can be found in E Kay M Tisdall, Mary-Ann Powell, Katie Reid and Grace Kong, Independent Children’s Rights Impact Assessment on the COVID-19 Response in Scotland, (2020), https://cypcs.org.uk/coronavirus/independent-impact-assessment/ (accessed June 11, 2021).
3 European Network of Ombudspersons for Children (ENOC), A Guide on How to Carry out CRIA, (2020), http://enoc.eu/wp-content/uploads/2020/12/ENOC-Common-Framework-of-Reference-FV.pdf, p. 11. (Accessed June 4, 2021) Technically, according to ENOC’s latest position, the commission was for a ‘Children’s Rights Impact Evaluation’ as it was undertaken after the policies were introduced.
4 See this issue.
5 For example, Payne distinguishes between ex ante CRIAs that examine the potential impacts on children and ex post CRIEs (child rights impact evaluation) that appraise the effects policies have had on children. Lisa Payne, ‘Child Rights Impact Assessment as a Policy Improvement Tool’, The International Journal of Human Rights 23, no. 3 (2019): 408–24.
6 These differences from typical CRIA approach are further discussed in the special journal’s editorial (see **).
7 And from learning of two recent reviews: Maren Backbier, Solène Didio-Girard, Sofie Elise Quist, Erin Fisher, Jacqueline Jahnel, Sophia Lane, Jana Riemslagh, Eva Munoz, and Georgia Strachan, A children’s rights approach: recommendations to the Scottish Government on refining children’s rights and wellbeing impact assessments in Scotland, (2019), https://www.togetherscotland.org.uk/media/1302/crwia-report-group-a-214.pdf (accessed June 11, 2021); Ivane Chitashvili, Helene LJ Combes, Katie Gillespie, Klára Kipielová, Sania Khan, Kenya Murakami, Nurjan Rakymova, Leonie Schmid, and Guncha Sharma, Recommendations and notes on Scottish children’s rights and well being impact assessments, (2019), https://www.togetherscotland.org.uk/media/1303/crwia-report-group-b.pdf (accessed June 16, 2020).
8 A full list of these sources is available in the independent CRIA.
9 A full description of the methodology can be found in Appendix 10 of the independent CRIA.
10 For overview of children’s rights in Scotland, see Andressa M. Gadda, Juliet Harris, E. Kay M. Tisdall and Elizabeth Millership, ‘‘Making children’s rights real’: lessons from policy networks and Contribution Analysis’, The International Journal of Human Rights 23, no. 3 (2019): 392–407; E. Kay M. Tisdall, The Childhood Policy Landscape in Scotland: a case study, (2020), https://www.thebritishacademy.ac.uk/publications/childhood-policy-landscape-scotland-case-study/ (accessed June 11, 2021).
11 At the time of writing, children’s wellbeing and children’s rights are combined in one impact assessment. For more information, see https://www.gov.scot/publications/childrens-rights-wellbeing-impact-assessments-crwia-guidance/ (Accessed June 4, 2021). The three CRWIAs are: Scottish Government, Coronavirus (Scotland) Bill: child rights and wellbeing impact assessment, (2020), https://www.gov.scot/publications/coronavirus-scotland-bill-child-rights-welfare-impact-assessment/ (accessed June 11, 2021); Scottish Government, Coronavirus (Scotland) (No.2) Bill: child rights and wellbeing impact assessment, (2020), https://www.gov.scot/publications/coronavirus-scotland-no-2-bill-child-rights-welfare-impact-assessment/ (accessed June 11, 2021); and Scottish Government, The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020: CRWIA, (2020), https://www.gov.scot/publications/education-miscellaneous-amendments-coronavirus-scotland-regulations-2020-childrens-rights-well-being-impact-assessment/ (accessed June 11, 2021).
12 UN Committee on the Rights of the Child, CRC COVID-19 Statement, (2020), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CRC/STA/9095&Lang=en (accessed May 11, 2020).
13 Scottish Government, Coronavirus (COVID-19): Supporting vulnerable children and young people – data intelligence report, (2020), https://www.gov.scot/publications/supporting-vulnerable-children-young-people-data-intelligence-report/ (accessed June 15, 2020); Scottish Government, Vulnerable Children Report 15 May 2020, (2020), https://www.gov.scot/publications/vulnerable-children-report-15-2020-scottish-government-solace/pages/footnotes/ (accessed June 11, 2020).
14 Alan Prout and Allison James, ‘A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems’, in Constructing and Reconstructing Childhood, ed. A. James and A. Prout (London: The Falmer Press, 1990), 7.
15 Jens Qvortrup, ‘Childhood Matters: An Introduction’, in Childhood Matters. Social Theory, Practice and Politics, ed. J. Qvortrup, M. Bardy, G. Sgritta, and H. Wintersberger (Vienna. Aldershot: Avebury, 1994).
16 Alan Prout and Allison James, ‘A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems’, in Constructing and Reconstructing Childhood, ed. A. James and A. Prout (London: The Falmer Press, 1990).
17 UNCRC, Preamble.
18 The concepts adultism and childism are not settled in childhood studies literature. For discussions and debates see Priscilla Alderson, ‘Adultism’, in The Sage Encyclopaedia of Children and Childhood Studies, ed. Daniel Cook, (2020), https://www-doi-org.ezproxy.is.ed.ac.uk/10.4135/9781529714388.n17 (accessed June 11, 2021); John Wall, ‘From childhood studies to childism: reconstructing the scholarly and social imaginations’, Children's Geographies, (2019), DOI: 10.1080/14733285.2019.1668912; Rebecca Adami and Katy Dineen K, ‘Discourses of Childism’, International Journal of Children’s Rights 29, no. 2 (2021): 353–70.
19 Jeanette Sundhall, ‘A Political Space for Children? The Age Order and Children’s Right to Participation’, Social Inclusion 5, no. 2 (2017): 164–71, 165.
20 See https://cypcs.org.uk/positions/mosquito-devices/#:~:text=Mosquito%20devices%20are%20machines%20that,of%20international%20human%20rights%20law (accessed June 11, 2021).
21 For example, see Caroline Sharp, School Starting Age: European Policy and Recent Research, 2002, https://www.nfer.ac.uk/media/1318/44414.pdf (accessed June 18, 2021). For a collation of available evidence, see https://www.upstart.scot/the-evidence/ (accessed June 18, 2021).
22 Morag Treanor, Child Poverty: Aspiring to Survive (Bristol: Policy Press, 2020).
23 CPAG, the Church of England and the Welfare Reform and Larger Families Research Project, “IT FEELS AS THOUGH MY THIRD CHILD DOESN’T MATTER” The impact of the two-child limit after four years, (2021), https://cpag.org.uk/sites/default/files/files/policypost/It_feels_as_though_my_third_child_doesnt_matter.pdf (accessed June 4, 2021).
24 John Wall and Anandini Dar, ‘Children’s Political Representation: The Right to Make a Difference’, International Journal of Children’s Rights 19, no. 4 (2011): 595–612; Michael Wyness, ‘Children, Childhood and Political Participation’, The International Journal of Children’s Rights 9, no. 3 (2001): 193–212.
25 Kristina Konstantoni and Akwugo Emejulu, ‘When Intersectionality Met Childhood Studies: The Dilemmas of a Travelling Concept’, Children's Geographies 15, no. 1 (2017): 6–22.
26 Kristoffer Berse, ‘Climate Change from the Lens of Malolos Children: Perception, Impact and Adaptation’, Disaster Prevention and Management 26, no. 2 (2017): 217–29; Impact of the climate crisis on children’s social development Ann Sanson, Karina V. Padilla Malca, and Judith Van Hoorn [in press]
27 Amber Jabry (ed), After the Cameras Have Gone: Children in Disasters, (2005) https://www.streetchildren.org/resources/after-the-cameras-have-gone-children-in-disasters/, (accessed May 4, 2021), 1.
28 See also Michele Poretti, Karl Hanson, Fédéric Darbellay and André Berchtold, ‘The Rise and Fall of Icons of ‘Stolen Childhood’ Since the Adoption of the UN Convention on the Rights of the Child’, Childhood 21, no.1 (2014): 22–38.
29 For overviews of the challenges to governments due to disasters see: National Academy of Public Administration Standing Panel on Intergovernmental Systems, Emergency and Disaster Management Case Study, (2020), https://napawash.org/uploads/Emergency_Management_Case_Study.pdf (accessed September 13, 2021); Stefanie Haeffele and Virgil H. Storr, ‘Introduction’, in Government Responses to Crisis, ed. Stefanie Haeffele and Victor H. Storr (Cham: Palgrave Macmillan, 2020).
30 For example, the Council of Europe identified difficulties across its member countries, of children’s rights being high on government’s agendas during the COVID-19 pandemic (-19 pandemic responses: Summary Report, (2020), https://www.coe.int/en/web/children/covid-19 (accessed September 13, 2021).
31 Jens Qvortrup, ‘Childhood matters: an introduction’, in Childhood Matters. Social Theory, Practice and Politics, ed. J. Qvortrup, M. Bardy, G. Sgritta, and H. Wintersberger (Aldershot: Avebury, 1994).
32 Sofia Cele and Danielle van der Burgt, ‘Children’s Embodied Politics of Exclusion and Belonging in Public Space’, in Politics, Citizenship and Rights. Geographies of Children and Young People, vol 7, ed K. Kallio, S. Mills and T. Skelton (Singapore: Springer, 2015).
33 Scottish Government, Vulnerable Children Report 15 May 2020, (2020), https://www.gov.scot/publications/vulnerable-children-report-15-2020-scottish-government-solace/pages/footnotes/ (accessed June 11, 2020).
34 Article 1 of the UNCRC defines children up to the age of 18: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’.
35 For fuller discussion, see CRIA.
36 Joint Letter to Supermarkets from the Commissioner and Parenting Organisations, (2020), https://cypcs.org.uk/wpcypcs/wp-content/uploads/2020/04/20200429-Joint-letter-to-Supermarkets.pdf (accessed June 11, 2021).
37 Carers’ assessments were not required if not practical and support plans did not need to consider the young person’s needs but only the needs of those they cared for. For a fuller discussion of these provisions, see Alice MacLachlan and Christina McMellon, Mental Health, 2020, https://cypcs.org.uk/wpcypcs/wp-content/uploads/2020/07/CRIA-appendix-mental-health.pdf
38 Carers Trust, #Supermarkets for change campaign, (2020), https://carers.org/news-and-media/news/post/40-supermarkets4change (accessed June 11, 2021).
39 Lord President, Coronavirus Crisis: Guidance on Compliance with Court Orders Relating to Parental Responsibilities and Rights, (27 March 2020), https:// www.scotcourts.gov.uk/docs/default-source/default-document-library/guidanceon-compliance-with-family-court-orders.pdf?sfvrsn=0, (accessed June 12, 2020). To note that this was changed subsequently.
40 UNICEF, Every Child’s Birth Right, (2013), https://www.unicef.org/media/files/Embargoed_11_Dec_Birth_Registration_report_low_res.pdf (accessed June 11, 2021).
41 Mark Priestley, National Qualifications experience 2020: rapid review, 2020, https://www.gov.scot/publications/rapid-review-national-qualifications-experience-2020/
42 The Royal College of Paediatrics and Child Health Ethics framework for use in acute paediatric settings during COVID-19 pandemic was modified.
43 Similar findings are reported in policies within the Global South, by Sharon Goulds, Living under lockdown: Girls and COVID-19, 2020, https://plan-international.org/publications/living-under-lockdown (accessed June 18, 2021).
44 E.g. Scottish Government, Coronavirus (COVID-19): Scotland’s route map through and out of the crisis, (2020), https://www.gov.scot/publications/coronavirus-covid-19-framework-decision-making-scotlands-route-map-through-out-crisis/pages/3/ (accessed June 11, 2021).
45 For example, see Daniel Bedford and Jonathan Herring (eds), Embracing Vulnerability: the challenges and implications for law, (London: Routledge, 2020); M.A. Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’, Yale Journal of Law and Feminism 20, no. 1 (2008): 1–18; M.A. Fineman, ‘Equality, Autonomy and the Vulnerable Subject in Law and Politics’, in Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, ed. M.A. Fineman and A. Grear (Farnham: Ashgate, 2013).
46 Martha A. Fineman, ‘The Vulnerable Subject and the Responsive State’, Emory Law Journal 60 (2010/11): 251–75.
47 For a similar finding in the USA, see Lori Peek and Simone Domingue, ‘Recognizing Vulnerability and Capacity: Federal Initiatives Focused on Children and Youth Across the Disaster Lifecycle’, in Government Responses to Crisis, ed. Stefanie Haeffele and Victor H. Storr (Cham: Palgrave Macmillan, 2020).
48 See Dyer and **, this issue.
49 For a related argument, see Anna Grear, ‘Embracing vulnerability: Notes towards human rights for a more-than-human world’, in Embracing Vulnerability: the challenges and implications for law, ed. D. Bedford and J. Herring, (London: Routledge, 2020).
50 E. Kay M. Tisdall, Fiona Morrison and Judith Warburton, ‘Challenging undue Influence? Rethinking Children’s Participation in Contested Child Contact’, Journal of Social Welfare and Family Law 43, no. 1 (2021): 8–22.
51 For example, this was included in the 2020 Scottish Government reports’ titles cited in this article.
52 For evidence, see independent CRIA.
53 Martha A. Fineman, ‘The Vulnerable Subject and the Responsive State’, Emory Law Journal 60 (2010/11): 251–75.
54 See Fiona Mitchell, Child Protection, Children’s Hearings and Care, 2020 https://cypcs.org.uk/resources/independent-childrens-rights-impact-assessment-on-the-response-to-covid-19-in-scotland-appendix-6/ (accessed June 18, 2021); Claire Houghton and Fiona Morrison, Domestic Abuse, 2020, https://cypcs.org.uk/resources/independent-childrens-rights-impact-assessment-on-the-response-to-covid-19-in-scotland-appendix-7/ (accessed June 18, 2021).
55 For example, see Jack Donnelly and Damile J. Whelan, International Human Rights, 5th Edition (New York: Westview Press, 2018); Michael Freeman, Human Rights, 2nd Edition (Cambridge: Policy Press, 2011); Peter Jones, Rights (Basingstoke: Macmillan, 1994).
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Notes on contributors
E. K. M. Tisdall
E. K. M. Tisdall is Professor of Childhood Policy, in Childhood and Youth Studies, MHSES University of Edinburgh. She undertakes research, teaching and knowledge exchange addressing children's human rights, with a particular focus on children and young people's participation.
F. Morrison
F. Morrison is a Senior Lecturer at the Centre for Child Wellbeing and Protection, University of Stirling. Her research interests are in the areas of children's rights, child welfare, domestic abuse and research with children. Before entering academia, she held policy and practice roles in the areas of domestic abuse and child wellbeing.