Scots Law, 16- and 17-Year-Olds, and the UNCRC: Balancing Autonomy and Protection

The extent to which Scots law regulating 16 and 17 year olds needs to align with the United Nations Convention on the Rights of the Child (UNCRC) has received increased focus in light of the United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024 (the Incorporation Act), which defines children as those under eighteen years of age.¹ In Scotland, the age of majority is 18,² while full legal capacity is attained at 16 years.³ The minimum age for marriage is 16 years,⁴ consistent with the end of all parental rights⁵ and most parental responsibilities.⁶ Voting in Scottish Parliament and local elections can be done from 16 years,⁷ but voting in a Westminster election must wait until 18.⁸ These examples, amongst many others,⁹ underpin concerns raised by Police Scotland, the College of Senators and the Law Society of Scotland about the need to realign age limits with the UNCRC definition of a child.¹⁰ However, the UN Committee on the Rights of the Child (CRC/Committee) recognises the evolving capacity of children across different areas, requiring a flexible approach to age limits. An evolving capacities approach to age limits does not necessarily run counter to Scots law but rather acknowledges the need for protection and increasing autonomy as a child approaches adulthood.¹¹ This increasing autonomy can mean age limits becoming emancipation rights,¹² where 16- and 17-year-olds have equal opportunities and equal enjoyment of rights that adults also enjoy, without any protective measures.

Legal age limits create a bright line between those who have acquired age-based rights, and those who have not.¹³ They offer clarity, but by their very nature, age limits are arbitrary. They do not permit individualised assessments to consider whether those below or above an age have the capacity to acquire a specific right. This compares with a child’s right to consent to medical treatment where an individual child is judged to have sufficient understanding in the view of a medical practitioner.¹⁴ Legal systems require certainty and an approach which is not unduly burdensome;¹⁵ age-based approaches provide this certainty. However, concerns about the need to realign age limits to 18 years to prevent substantial litigation¹⁶ and infantilising 16- and 17-year-olds¹⁷ highlights the need for clarity about the scope of Article 1UNCRC and how it works within the wider context of the Convention. This article aims to clarify the scope of Article 1 and consider whether the Committee requires age limits to be realigned at 18 years of age.

The next section will provide further context about the incorporation of the UNCRC into Scots law and the constraints on devolution which limit the scope of the Incorporation Act. Section C will consider the scope and limitations of Article 1 and how the work of the Committee helps state parties to understand the balance between protection and autonomy rights.¹⁸ Section D will then provide a brief conclusion reiterating that age limits need not be realigned to 18 years but that age limits should provide a balance between protection and autonomy rights.

The UNCRC is the most ratified international treaty encompassing economic, social, cultural, civil, and political rights. The UNCRC contains 54 articles and is accompanied by three Optional Protocols. The United Kingdom ratified the Convention in 1991 and has since ratified the first two Optional Protocols. The UK Parliament has implemented...