The Best Place in the World to Grow up: How can Scotland uphold its legal obligations to children and young people in these unprecedented times?

The Best Place in the World to Grow up: How can Scotland uphold its legal obligations to children and young people in these unprecedented times?

The Scottish Government has made no secret of their desire for Scotland to be the ‘best place in the world to grow up’. The commitment to a maximalist approach to incorporating the United Nations Convention on the Rights of the Child is something that those of us involved in working with and for children and young people welcome very much.

However, it is deeply concerning that this commitment has not translated into strong children’s rights leadership in terms of the response to Covid19.

Although the Scottish Government has completed several Children’s Rights and Wellbeing Impact Assessments (CRWIA) since March none of these have covered all of the emergency measures. They have also failed to properly identify the groups of children who were likely to be the most negatively and disproportionately impacted by the emergency measures taken by the Scottish Government.

This included the Scottish Government’s decision to cancel all SQA examinations and to utilise an alternative grading process. There has been no assessment of the necessary steps required to mitigate the negative impacts of the cancellation and the unfairness which the alternative grading process would result in. There was no consideration or communication with the young people at the centre of this nor was there consideration of the disproportionate disadvantage which would result from the alternative grading process.

A Children’s Rights Impact Assessment would have identified some of the potential breaches of rights and offered the opportunity to mitigate any disproportionate disadvantages.

The Need for a Children’s Rights Impact Assessment (CRIA)

The Children and Young People’s Commissioner in Scotland (CYPCS) commissioned an alternative Children’s Rights Impact Assessment (CRIA) which was conducted by a range of academics, experts and practitioners in children’s human rights. Having been part of the editing review team for the education stream of this, the significance of the failure to recognise the rights of young people in the SQA examination process came across strongly.

This alternative CRIA highlighted that there had been a failure to consult with young people, a lack of communication with the students due to sit the exams and ultimately it argued that there was a potential impact upon mental health and the long-term developments of children and young people. There was no children’s rights based approach to the cancellation of the exams or the alternative grading model proposed by the Scottish Government and SQA and this has led to the issues around inequality, unfairness and lack of transparency which has become amplified now the results are out.

How could a Children’s Rights Impact Assessment have helped prevent this results fiasco?

Conducted prior to changes in legislation or policy, a CRIA offers an opportunity to identify potential impact of the proposed changes upon children and their rights. It is an opportunity to engage with those who will be affected to ensure their views are considered and their concerns (and potential solutions) heard. It is also an opportunity to put mitigations in place to ensure there is no disproportionate disadvantage upon certain groups of children. All this should take place before the proposed changes to ensure that the approach taken is consistent with legal obligations.

The Scottish Government has set out how it thinks Children’s Rights Impact Assessments should be utilised and when.

But haven’t the SQA completed a Children’s Rights and Wellbeing Impact Assessment?

The SQA published their ‘CRWIA’on Tuesday morning – results day. However, it is not clear when this was conducted. It was really patchy and did not effectively follow the guidance outlined by the Scottish Government highlighted above.

Independently, as a children’s human rights academic and as part of the young people led group SQA Where’s Our Say, I have written to the Deputy First Minister several times since the examinations were cancelled to offer help to ensure that the response by the Scottish Government and the SQA was children’s rights compliant. There has been no acknowledgement of the rights based arguments which I have set out to him, and the various committees at the Scottish Parliament .

Reference to children’s rights led only to responses which discussed the concept of ‘wellbeing’ of children in the strictly Scottish sense. Rights and wellbeing are not the same thing.

Which rights were impacted by the cancellation of exams and the development of the alternative grading process?

The United Nations Convention on the Rights of the Child has a range of rights which have been impacted by the cancellation of the exams, and the alternative grading process.

These include:

  • the right not to be discriminated against, directly or indirectly (Article 2),
  • the best interests of the child being considered when decisions are made and laws are developed which will affect a child (Art 3),
  • the right to be involved in decision making consistent with their evolving capacities – the older you are and the more you understand about the decisions being made, the more you should be involved in that process (Art 5 and 12),
  • the right to freedom of expression – to be able to find out information about yourselves and keep it private if you so wish (Art 13 and 14),
  • the right to freedom of association – to take part in peaceful protests (Art 15),
  • the right not to have arbitrary or unlawful interference with his or her privacy, family home, or correspondence (Art 16),
  • the right to education (Art 28) with the right to special care for those with a disability (Art 23),
  • the right to an education which ensures development is supported in the best way possible for each individual child (Art 29).


The Scottish Government and SQA have failed to take a child centred approach and ensure that decisions are made in the best interests of each student, consistent with Article 3 of the United Nations Convention on the Rights of the Child.

Getting It Right For Every Child: A child centred approach

The Scottish Government has a responsibility to ensure that they consider what is in the best interests of each child when they make decisions about them – this is consistent with their ‘child centred approach’ which GIRFEC represents. Students are individuals. Their exam results should also be individual instead of being moderated to take account of previous school results.

In practice the framework of assessment and planning known as ‘Getting It Right For Every Child’ (GIRFEC) requires rights and wellbeing based decision-making through consultation and engagement with children, their families and the Team Around the Child.

The wellbeing indicators which help show whether a policy decision is indeed consistent with the rights based principles of GIRFEC help emphasise that the decision to make collective decisions in terms of the SQA exam results was contrary to the child centred approach. These indicators are often summarised as the SHANARRI principles


S – Safe:

H – Healthy:

A – Achieving:

N – Nurtured

A – Active

R – Respected

R- Responsible

I – Included


It is difficult to see how SQA candidates can possibly feel that they have benefited from a child centred approach. These young people were working hard to achieve their grades. They should have been respected enough to be enabled to share their views prior to the exam results coming out – 4 full months of uncertainty and no engagement about exam results and simply saying there is an appeals process is not good enough.

Young people should have been encouraged to play a role in the bigger conversation about exam results 2020 to enable them to be actively involved and included in decisions which affect them in the short and long term.

The wellbeing principle ‘Included’ specifically refers to children and young people ‘having help to overcome social, educational, physical and economic inequalities and being accepted as part of the community in which they live and learn’. It is clear that this has not happened here.

GIRFEC and wellbeing duties

The principles of GIRFEC are reflected in domestic law and policy, including the Education provisions and the Children and Young People (Scotland) Act 2014. The GIRFEC assessment and planning framework is incorporated into schools through the Children’s Services Plan for each local authority area and the National Practice Model. The Education (additional support for learning) provisions similarly provide a coordinated multi-agency approach to provision of education to meet children’s needs. Assessment of a child’s ‘wellbeing’ is integral to the Whole System Approach in children’s services.

It is clear that the SQA failed to consider any holistic individualised assessments of children’s attainment and capabilities through the professional judgment of teachers.


So, these rights and wellbeing indicators may be (and have been) impacted by the proposed changes – what next?

The next step in a Children’s Rights Impact Assessment means that having identified the potential breaches identified, it would then be important to consult those young people involved in the examinations process.

This has not happened and it is important to note that young people were told not to contact their schools to discuss their examination estimates because teachers were not in a position to discuss the grading process (which was far from straight forward and demanded a lot from our teachers during a period where they were also adapting to online learning). Young people had nowhere to direct their concerns and seek answers. There has been a clear breach of the obligations which the Scottish Government owe to children and young people.

Which young people should have been consulted?

The groups of children who would have been affected by the cancellation of the exams and the alternative grading process – in a positive, negative or neutral way – include (but are not limited to):

  •       All children and young people sitting SQA examinations;
  •       Children with disabilities and protected characteristics;
  •       Children with Additional Support for Learning needs;
  •       Children living in poverty;
  •       Children who have mental health difficulties;
  •       Migrant and refugee children;
  •       Looked after and care experienced children,
  •       Gypsy traveller children;
  •       Children in private education
  •       Home-schooled children
  •       Children in Young Offenders Institutions and secure care centres.


While it has been argued by the SQA that individual characteristics and circumstances should have been utilised by teachers in deciding the grades to be awarded, it is important to note that many young people will not have spoken to their teachers about personal issues and many won’t have had the opportunity to do so over the last 4 months.

Further, it is also clear from the fantastic work of University of Glasgow academic @BarryBlack and others that there has been a disproportionate disadvantage on specific groups of young people. There are a range of mitigations which could be put in place and some of these could still be utilised to solve this situation.

What mitigations could be put in place?

Mitigations could include:

  •       An alternative exam diet for those who wish to sit their exams – England has this option available for those who do not wish to accept the grade awarded to them.
  •       A no detriment policy – Similar to that adopted by universities this approach to examination results would ensure that a young person is not allowed to suffer because of something which was out of their control. An agreement between the SQA and universities would prevent students being rejected from their university choices automatically based upon exams they were not permitted to sit.
  •       An inclusive and direct appeals process – students cannot currently access the appeals service directly. All appeals must come from individual schools. It is also important to note that not everyone is currently permitted an appeal – an appeal is currently only permitted where the SQA have downgraded a result from the teacher estimate.
  •       The return of coursework held by the SQA to give teachers increased evidence to base grades upon – the SQA refused to return coursework submitted to them previously.
  •       Individual Team Around the Child assessment discussions at the outset of the process where teachers were allowed to explain estimates.
  •       Individualised assessment of the impact of pandemic on each child who is dissatisfied with the results and have this taken into account in the appeals process as mitigation.


So, what now?

It is time for the Scottish Government and the SQA to acknowledge that they have made a mistake and that the system was not fair in the way they say it was intended to be. Saying students can ‘just appeal’ is not a solution – it lacks clarity and thought.

As a result of this unfairness, there needs to be mitigations put in place which ensures there is no detriment to young people, an inclusive and direct ability to appeal grades given in 2020 which does not rely upon a school agreeing to put in the appeal. There should also be an agreement that there should be no further moderation conducted in appeals.

2020 is not an ordinary year and should not be compared to other years. Our students are individuals not statistics.

The #NoWrongPath message does not excuse the SQA and Scottish Government’s failure to engage with children’s rights – it has led to #AnUnnecessaryDiversionForSome – something which could be rectified now by engaging with the individuals at the heart of this and applying the mitigations above. No young person should have their life opportunities affected because of the pandemic in this way if we can provide mitigations which avoid it – and we can- and we must.



Protected: The Best Place in the World to Grow up: How can Scotland uphold its legal obligations to children and young people in these unprecedented times?

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