Lesley-Anne Barnes Macfarlane’s research while affiliated with University of Glasgow and other places

The UN Convention on the Rights of the Child ( crc ) provides that children require ‘special safeguards and care, including appropriate legal protection’ (Preamble). In recent years various attempts have been made by Scottish lawmakers to safeguard and promote children’s rights across a range of legal fields. However, the field of delict (termed “tort law” in many jurisdictions) has been excluded from the process of mainstreaming children’s rights in domestic law. Most of the contemporary litigation in the field is about liability for negligence (i.e., unintentional wrongdoing). In negligence proceedings, children are typically victims seeking redress from adults through the judicial system following childhood injury. Using Scotland as a case study, this article examines legal reasoning in what are termed “childhood negligence proceedings”. Drawing on the jurisprudence of the Committee on the Rights of the Child and wider literature, the article raises concerns about both the substance and established practices of the law. In particular, an absence of judicial engagement with children and research about childhood development is observed. Consideration is given as to what might be the nature of the obligations imposed upon states in this field of law by Articles 1 (age), 2 (non-discrimination), 3 (best interests), 6 (life, survival and development) and 12 (voice) of the crc . Two overarching questions persist: first, can findings of negligence or contributory negligence against children ever be justified? And secondly, if so, what should be the model for imposing childhood liability? As Scotland fully incorporates the crc in domestic law, the article concludes by framing a series of questions directed towards creating new knowledge and developing new understanding capable of transforming the child’s position in delict/tort law.

The field of Delict (Tort) is a noteworthy exception to widespread, evolving child rights-based norms across Scottish Law, for there has been little change in the treatment of children in Delict in Scotland in over a century. This article argues that childhood contributory negligence, in its current form, cannot survive imminent, and full, statutory incorporation of the CRC in Scotland. The framework and operation of the law governing childhood contributory negligence is critically reviewed, drawing on Scottish, and relevant UK-wide, case law. Widespread inconsistencies in judicial reasoning about children in contributory negligence determinations are highlighted. Thereafter, consideration is given to what CRC compliance might involve in the field of Delict. Two core rights, article 3 (best interests) and article 6 (child's right to life, survival and development), are then discussed with reference to new Scottish Criminal Sentencing guideline requiring courts to consider the evolving capacity of young people up until the age of 25 years. The article concludes with a call for conceptual and practical reform so that the largely punitive regime of childhood contributory negligence in Scotland must now - in the words of H.G. Wells - either "adapt or perish".