Taking Care of the Small: Article 6 of the Convention of the Rights of the Child and Childhood Accidental Injury Claims in Scotland

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Date: 27 May 2019
• Citation: (2015) 26 Stell LR 424
• Pages: 424-442
• Author: Lesley-Anne Barnes Macfarlane

TAKING CARE OF THE SMALL: ARTICLE 6 OF

THE CONVENTION ON THE RIGHTS OF THE

CHILD AND CHILDHOOD ACCIDENTAL INJURY

CLAIMS IN SCOTLAND

Lesley-Anne Barnes Macfarlane

LLB (Hons) DipLP LLM PhD

Lecturer, Edinburgh Napier University*

1 Introduction

When Dr Seuss, the celebrat ed children’s writer, penned the words “a

person’s a person, no matter how small,”1 he might have been creating

a worldwide mantra for futu re children’s rights adherents. For the young

are now internationa lly recognised as per sons in possession of a canon of

rights, as codied i n the United Nations Convention on the R ights of the

Child (“CRC”) 2. Included in this canon is t he child’s entitlement to special

protection from potentia l dangers and mishaps at tendant upon child hood

itself. This art icle focuses on the extent to which the approach ta ken by the

Scottish legal system, in de aling with claims by child ren who have sustained

accidental injur y, meets the obligations under ar ticle 6 of the CRC.

A “spectacular g rowth” in childhood per sonal injury claim s has been

observed in recent deca des throughout the U K.3 This is not sur prising since,

according to the Royal Socie ty for the Prevention of Accidents:

“Accidental injuries are a major health problem throughout the [UK]. They are the most common

cause of death in children over one year of age. Every year they leave many thousands permanently

disabled or disgured.”4

The nature and cau ses of childhood inju ry are manifold. Common i njuries

include, for example, younger children injured i n public playgrounds, schools

or in day-care5 and adolescents i nvolved in roadside accidents or injured

* I would like, most si ncerely, to than k Professor Elain e E Sutherland for he r insightfu l comments, g uidance

and suggestio ns on earlier draf ts. I am furthe r grateful to Ross Ma cfarlane, Advocate, for h is comments

and suggestio ns.

1 Dr Seuss Horto n Hears a Who! (2008) 6.

2 Convention on the R ights of the Child (adopt ed 20 November 1989, entered int o force 2 September 1990)

1577 UNTS 3.

3 Personal inju ry claims were the la rgest individual c ategory of child civil l itigation observed b y Oliphant

in his chapte r K Oliphant “Child ren as Victims u nder the Law of Engla nd and Wales” in M Mart in-Casals

(ed) Ch ildren in Tort Law, Part II: Childr en as Victims (2006) 65 67.

4 Royal Society for t he Prevention of Accidents “Accidents to C hildren” (13-03-2015) The Royal Socie ty

for the Prevent ion of Accidents

accidents-to-children.aspx#References (accessed 16-06-2015).

5 Injuries i n/around school see for example Hu nter v Perth and Kinross Coun cil (OH) 2001 SCLR 856;

injuries wh ile playing outside sc hool see for example Galb raith’s Curator ad Litem v S tewart (No 2) 1998

SLT 1305.

424

(2015) 26 Stell LR 424

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while trespassing.6 Recent Scottish National Health Ser vice statistics on

unintentional i njury also paint a bleak pict ure: children living i n the most

deprived areas continue to be signicantly more likely to sustain a serious

accidental injury t han those who do not.7 Whilst the Scot tish legal system

has a comprehensive range of provisions designed to prote ct children from

intentional injur y and to respond appropriat ely to child abuse victims,8 t he

same cannot be said of the law governi ng the position of children who are

victims of uninte ntional, or accidental, injur y. Although child victims of

accidental injury c an, as with any other vict im, 9 seek redre ss in Scots civil

law, signicant difculties are generated for child claimant s within the law of

delict (“ tort”).

This art icle addresses the nat ure of the obligation created by a rticle 6 generally

and, in part icular, in respect of childhood accidental injur ies in Scotland. The

doctrine of contr ibutory negligence is analysed a nd its shortcomings, i n the

context of injured child claimants, de monstrate that the operation of a generic

doctrine of contributory negligence creates conceptual difculty and produces

contradictor y and inequitable outcomes in ca ses concerning ch ildren. As a

result, it is argued th at the Scottish legal system can not be said to provide a

“safe and supportive”10 environ ment, which respects the child claimant’s right

to life, survival a nd development. The article concludes by proposing a way

forward, outlini ng three strat egies which might be employed to produce an

article 6 compliant approach with in the existing legal framework.

2 Article 6 a nd childhood injuries

“Article 6

1. States Parties recognize that e very child has the inherent right to life.

2. States Parties shall en sure to the maximum ex tent possible the survival

and development of the child.”

6 Road traff ic-related /trespas s cases, see for exa mple McKinnell v W hite 1971 1971 SLT (Notes) 61;

Christie’s Tutor v Kirkwood 1991 SLT 805; Morton v Gla sgow City Council 20 07 SLT (Sh Ct) 81.

7 NHS Scotland : Unintentional I njuries for year en ding 31 March 2013/4, summary av ailable

isdscotland.org/Health-Topics/Emergency-Care/Publications/2014-02-25/2014-02-25-UI-Summary.

pdf> (acces sed 16-06-2015).

8 A raft of child pro tection stat ute and regulat ion exists. See for ex ample Childre n’s Hearing (Scotland) Act

2011; The Scottish Govern ment “Nat ional Gu idanc e for Child P rotect ion in Scot land” (11/2010) The Scottish

Government uk/Resource/ Doc/334290/0109279.pdf> (accessed 16-06-2015).

Further ge neral provisio n has been made fo r children in t his area by Ch ildren and Young People (Sc otland)

Act 2014. Additionally, applicat ions can be made for c riminal i njuries comp ensation to the r elevant public

board: https://www.gov.uk/criminal-injuries-compensation-a-guide#applying-on-behalf-of-children.

9 Additionally, gene ral health and safet y regulations exist w ith the intention of pre venting the occur rence

of such accidents , but most of these (outside t he field of educat ion) are not child-s pecific. See for

example (at school) Schools (Safe ty and Superv ision of Pupils (Scotland) Re gulations 1990/295; Scot tish

Government p ublication, 20 05 Safe and Well: Good prac tice in schools a nd education aut horities for

keeping child ren safe and well, at: http://w ww.scotland.gov.uk/Public ations/2005/08/0191408/14360. In

the wider com munity the Public Healt h etc (Scotland) Act 2008, which ma kes wide-ranging provi sion

about public healt h and safety, including, for exa mple, (Part 8) allowing th e use of sunbeds by persons

below the age of 18 years.

10 General Com ment No. 4: Adolescent Health and Develop ment in the context of the Convent ion on the

Rights of the Ch ild UN Doc CRC/C/GC/2003/4 para 39(a). See also Ge neral Comment No. 14: On the

Right of the Chi ld to have his or her Best Inter ests Taken as a Primar y Consideration UN Doc C RC/C/

GC/14 s B.2.

TAKING CARE OF THE SMALL 425

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