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the law
Children (Scotland) Act 1995
The Act states in its over-arching principles that the welfare
of the child must be paramount and that the child’s views
should be taken into account in all matters affecting him
or her. These principles are underpinned by the UN Convention
on the Rights of the Child and apply to all children living
in Scotland.
It is considered that because of their particular circumstances
and vulnerabilities, asylum seeker children, whether unaccompanied
or living with their families, can be considered ‘children
in need’ under Section 93 of the Children (Scotland) Act 1995.
This is defined as:
a) being “in need”, is to his being in need of care and attention
because-
(i) he is unlikely to achieve or maintain, or to have the
opportunity of achieving or maintaining, a reasonable standard
of health or development unless there are provided for him,
under or by virtue of this Part, services by a local authority;
(ii) his health or development is likely significantly
to be impaired, or further impaired, unless such services
are so provided;
(iii) he is disabled; or
(iv) he is affected adversely by the disability of any
other person in his family;
These children are therefore entitled to all the rights and
services accorded to ‘children in need’ under the Act.
The Children (Scotland) Act 1995 s22 places a duty on local
authorities to safeguard and promote the welfare of children
in need and so far as is consistent with that duty to promote
the upbringing of such children by their families by providing
appropriate services including assistance in cash or in kind.
The Children (Scotland) Act 1995 s29 and the Regulation
of Care (Scotland) Act 2001 s73 provide for throughcare support
for children and young people.
However, the entitlement to support for the families of asylum
seeker children under this legislation has been compromised
in some circumstances by the Immigration and Asylum Act (IAA)1999,
the Nationality, Immigration and Asylum Act (NIAA)2002, the
Asylum and Immigration (Treatment of Claimants, etc.) Act
2004 and the Immigration, Asylum and Nationality Act 2006.
It should be noted that the British Government has placed
a reservation on the UN Convention on the Rights of the Child
in relation to asylum and immigration matters. This does not
affect the rights of asylum seeker children where these are
enshrined in Scottish legislation except where these are deemed
to be compromised by immigration legislation.
The Children’s Commissioner in Scotland includes in her jurisdiction
all children living in Scotland, regardless of their immigration
status. Therefore where there are concerns about the rights
of the children of asylum seekers or unaccompanied asylum
seeker children, these can be referred to the Scottish Commissioner
for Children and Young People. (SCCYP).
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