LGN reported in September last year how play must not become the ‘forgotten sector’ in response to an Association of Play Industries (API) report that linked the growing problem of obesity to a rise in ‘play gaps’ for children in accessing suitable equipment in deprived neighbourhoods.

Some proponents in the play sector have called for the more formal incorporation of the principles of the UNCRC into law, so is the decision taken by Scotland a bold move? What are the details? And can England learn anything from the new proposals?

Due to be introduced in the summer of this year, the bill, which follows on from the Welsh measure, will involving the introduction of a broad ‘duty’ on Scottish ministers to have due regard to the United Nations Convention on the Rights of the Child when exercising policy functions - focusing on appropriate early years’ intervention, child centred service delivery and wider support for parents.

Crucially, this does not mean full legal incorporation of the principles of the convention into Scottish Law, but according to Scottish Parliament a move to put it on a ‘statutory footing’ with such principles being proofed against future changes to the UNCRC.

API chairman, John Croasdale, said: ‘The API believes that the Scottish Rights of Children and Young People Bill is a positive step in encouraging all UK governments to give due regard to article 31, the child’s right to play.

‘Hopefully this will have a trickle down effect for local authorities to bring greater scrutiny to decisions which might have a negative impact on play provision in our communities. This is more important than ever, especially as active play is such a vital method of early intervention in changing attitudes towards childhood obesity, a social benefit which is currently being neglected.’

Article 31 of the convention states that all children have ‘an equal right to play and parties signing up, shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity’.

Crucially, the Bill will bring such children’s rights into the realm of the Scottish courts and if it were to become law, would oblige a compliance with the duty.

However as it stands the Bill will not have an effect on wider public bodies across local government, who only need to take consideration of its measures.

‘The expectation is that legislation and policy will have a cascade effect on local policies,’ said Marguerite Hunter Blair, chief executive of Play Scotland.

‘It’s not as strong as we would like it- we would prefer to see full compliance meaning everything will be proofed against the UNCRC but welcome this as a first step.’

In particular, it hopes to form the precursor to a Children’s Services Bill, but how difficult would it be to create a uniform definition on equal opportunities for children’s play across Scottish local government?

‘It’s about trying to make sure it’s not a postcode lottery,’ commented Hunter Blair, ‘you need to plan for play and communities and local government need to work together on a community development process where time and energy is needed.’

But as many decisions affecting the rights of children are made at a local authority level as in the case of planning decisions, is there scope for an extension of the duty to cover these important areas of delivery?

Tam Baillie, Scotland’s Commissioner for Children and Young People, said: ‘Local government has - like central government - has actually been bound by the UNCRC in international law since it was ratified by the UK in 1991, and I believe a duty on local authorities would support them in meeting their obligations under the UNCRC.’

The UK Children’s Commissioners joint midterm report on the UN Convention on the Rights of the Child welcomes Scotland’s decision to consult on the Bill, but does this provide the impetus for Westminster to follow this example?

Hunter Blair agrees that with the former Playbuilder strategy and the Government’s big society vision trumpeted through the Localism Act, there are already strong foundations in place for England to take the lead on play issues. Current statute law in England revolves around the Children’s Act 1989 with ministers giving consideration and raising awareness surrounding the UNCRC principles. But would a change in law help to avoid recent controversies such as London borough play parks at risk of closure?

A play source close to LGN admitted that enshrining Article 31 into law could create a ‘legal mess’ that might retard progress in legislation as every decision would be ‘bogged-down’ at a local authority level.

The source said: ‘The due regard bullet, means local authorities and perhaps more importantly central government would have to stop, think and consider if a decision they were about to make such as removing play equipment might contravene this right.’

‘They could thus be held to account after the act and questions might be raised whether they had done their duty.’

In a House of Commons debate on 9th September 2011, Sharon Hodgson, shadow member for education, asked Children’s minister, Tim Loughton, what assessment he has made of the UK’s progress in realising the General Measures of Implementation of the UN Convention on the Rights of the Child.

He replied: ‘The Government would give due consideration to the UNCRC articles when making new policy and legislation’. He added that the Government would consider the UNCRC recommendations at all times, but admitted that occasionally disagreement may arise on what compliance entails.

He added there were no current plans to incorporate UNCRC into domestic legislation.

The Consultation on the Rights of Children and Young Persons Bill closed in December and responses will be published in due course.