Scots Law Incorporates the UNCRC- Time to Revisit the Age to Marry?

Today the Scottish Parliament voted unanimously to incorporate the UNCRC (United Nations Convention on the Rights of the Child) into Scots law. The Bill, as enacted, can be found here. When the law comes into force it will be called the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2021. 

So, what does it do?

• It allows the courts to take into account the Convention and related international caselaw when interpreting Scots law;
• It places a duty on public authorities, which include the courts and the Scottish Legal Aid Board, for example, to act in a way that is compatible with the Convention;
• It allows the courts to find that legislation is incompatible with the Convention and grant an appropriate relief, or remedy to deliver an outcome that is, ‘effective just and appropriate’

You can find some more background on the UNCRC here and lots of resources about Children’s human rights and the Incorporation of the Convention on the Children and Young People’s Commissioner Scotland website here.

Incorporation is the right thing for us to have done- it signals clearly that we take human rights seriously and are ready to challenge ourselves, to think about whether the systems that we have in place actually protect the most vulnerable and promote their interests.

There will be challenges for Scots law to face, not least our existing framework that largely regards people as reaching adulthood at 16, when the Convention makes clear that children under 18 deserve particular protection.

One of the first areas that will need to be tackled, I suspect, is in relation to our existing age for capacity to marry. As we all, finally, begin to wake up to the realities of forced marriage and gender based violence against women and girls, we are increasingly looking out of step with the world because we have capacity to marry at 16, rather than 18.

Progress on preventing forced marriage in Scotland is being made, there is no question about that- this less than a fortnight after Sheriff Mackie at Glasgow Sheriff Court in AB v CD and DD and EF [2021] SC GLW 15 granted a Forced Marriage Protection Order under the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011- but there is still much to be done, especially for young people in Scotland who find themselves in a vulnerable position between 16 and 18, where they have capacity to marry, and fall outwith the child protection measures that apply until they are 16.

If you want more information about the new law, or forced marriage you can get in touch with Rachael.