Lesley-Anne Barnes Macfarlane

Making Best Interests Significant for Children Who Offend: A Scottish Perspective

The United Nations Convention on the Rights of the Child (‘CRC’) is the most ratified treaty in the world. Through rights, therefore, it offers uniform protection and priority to almost all of the world’s population aged under 18. As part of this, the Article 3 ‘best interests’ rubric holds out the promise of ‘really good’ decisions for children being taken by public bodies, courts and tribunals. This chapter considers the application of Article 3 to children who offend looking both at how it is applied and how it ought to apply in their cases. The chapter’s key argument is that Article 3 mandates ‘really good’ outcomes for all children including, equally, for those who do wrong, a position which is fully supported by the Committee on the Rights of the Child. The paper will firstly consider the negative perception of children who offend in relation to their rights. It will then turn to the terms of Article 3 itself and examine the ways in which it is incorporated into Scots law as it applies to offenders, and its application. Finally it will look at recent research reports compiled by the Centre for Youth and Criminal Justice and by the Scottish Children’s Reporter Administration which shed some light on young peoples’ own views of decision-making allegedly in their best interests. Overall, it concludes that the terms of Article 3 provide the framework to offer and achieve much more in terms of outcome than is currently the case.