‘Taking care of the small: Article 6 of the Convention on the Rights of the Child and childhood accidental injury claims in Scotland’

Macfarlane, Lesley-Anne

Abstract

This article addresses the right to life, survival and development, guaranteed to every child by the United Nations Convention on the Rights of the Child, article 6, within the context of childhood accidental injury in Scotland. It is argued that Scots law fails to meet the obligations incumbent on States Parties to provide a safe and supportive environment that recognises the special position of the injured child claimant. The nature of the obligation that article 6 imposes upon States Parties, and upon Scotland in particular, is discussed before certain significant legal difficulties facing Scottish child claimants are analysed. That analysis demonstrates that a mechanistic application of the doctrine of contributory negligence in cases concerning children is conceptually flawed and has produced inconsistent and inequitable outcomes. In conclusion, a way forward is proposed in the form of three strategies which might be employed to generate an article 6 compliant approach within the existing legal framework.

Citation

Macfarlane, L.-A. (2015). ‘Taking care of the small: Article 6 of the Convention on the Rights of the Child and childhood accidental injury claims in Scotland’. Stellenbosch Law Review, 26(2), 424-442

• Journal Article Type: Article
• Acceptance Date: Sep 1, 2014
• Online Publication Date: Jun 1, 2015
• Publication Date: 2015-06
• Deposit Date: Sep 14, 2016
• Publicly Available Date: Jan 29, 2018
• Journal: Stellenbosch Law Review
• Print ISSN: 1016-4359
• Publisher: Juta Law
• Peer Reviewed: Peer Reviewed
• Volume: 26
• Issue: 2
• Pages: 424-442
• Keywords: UN Convention on Rights of the Child, Article, Right to Life, Contributory Negligence, Scotland, Children
• Public URL: http://researchrepository.napier.ac.uk/Output/380069
• Publisher URL: http://hdl.handle.net/10520/EJC-619c292c0