Making the case for embedding restorative justice in human rights

Lauren Emmerson has been reflecting this RJ week on how children’s rights, access to justice, and human rights intersect when using restorative justice to heal when harm has been caused by a child or young person.

For many of us working in the fields of rights-respecting justice, and those supporting individuals harmed by the behaviour of others, it may seem obvious to frame restorative justice as a human right. Afterall, Article 6 of the Human Rights Act 1998 relates to the right to a fair trial; the sanctity of which seems largely accepted and bound in British culture and values of fairness. However, what about those harmed or allegedly harmed, where does the right to recovery and healing fit?

In Scotland, we took monumental steps when enshrining the United Nations Convention of the Rights of the Child (UNCRC) into Scots Law last year with the UNCRC (Incorporation) (Scotland) Act 2024; making us the first UK country to do so and joining only a handful of European states to incorporate UNCRC into domestic law. This further affirmed Scotland’s wish to promote human rights for children up to the age of 18 and to deliver on its vision for a rights-respecting, safe and happy place for all its children, and therefore wider society, to grow and thrive. Whilst restorative justice does not form the basis of a specified UNCRC article, it continues to feature in general comments, which seek to guide and compel state parties to develop justice responses that tackle social factors and root causes of harm. In last year’s General Comment27 on Children’s Rights to Access to Justice and Effective Remedies, the need for access to effective remedies was highlighted as an essential means of the protection, promotion and fulfilment of all human rights. In this context, remedy was understood to include “a restoration of rights, an apology or other means of redressing a violation” (2024, part 7), in addition to the more common interpretations pertaining to access to a fair and formal justice process.

2024 was a busy year for landmark legislative changes in Scotland. The Children (Care and Justice) (Scotland) Act 2024 formed a fundamental part of work to embed and support the application of the UNCRC into Scots law, whilst supporting efforts to Keep the Promise and promote wider policy ambitions for children in Scotland. The Act, which enshrines in law the definition of a child as under 18 years old, contains key measures to improve children’s experiences of the care and justice systems, whether victims, witnesses or children who have caused harm.

Here then lies the call to action, considering the above in relation to rights and the legislative framework in Scotland, can we then argue that restorative justice is in fact a human right?

In our practice chapter Section 12: Restorative Justice, we explore the inherent complexities when working with children, of holding the balance between the rights of the child who has harmed alongside the rights of the child that has been harmed. CYCJ’s recently appointed Associate, Dr Tim Chapman, explores these complexities further in Restorative Justice from a Children’s Rights Perspective (Wolthuis & Chapman, 2021). And critical examination of rights within systems is offered by Goldson and Muncie (2015) who argue that traditional retributive justice systems are often overtly anti-restorative and routinely violate children’s rights.

In discussion with CYCJ last year , Dr Chapman highlighted the importance of restorative justice in providing restoration within relationships of power and the critical importance of rights pertaining to discrimination. In CYCJ Info sheet 99: Restorative processes and Children’s Rights we explore rights and discrimination within the frame of UNCRC.

Intersectionality in relation to children in conflict with the law is an area CYCJ strives to examine and shine a light upon; recognising these are often children who have experienced significant harm, discrimination, and adversity. In our Strategic Plan 2025 – 2028 we highlight our work to influence care and justice systems to promote recovery from harm and to ensure victims and witnesses are treated with respect, supported to recover and have their rights upheld. To that end, we recognise the work and efforts made by a broad range of stakeholders in developing the Victims, Witnesses, and Justice Reform (Scotland) Act 2025. However, we would like to see expanded recourse to healing for Scotland’s individuals, families and communities. We would have welcomed greater utilisation of opportunities the Act presented, to further embed the rights for those harmed to access restorative justice in Scottish law. Rights are intrinsic to justice and justice  relies on a legal framework to support access and protection.

Alongside our colleagues and partners in the field we will continue to promote Scotland’s approach to children and young people in conflict with the law to be rights-respecting, contributing to better outcomes for our children, young people and communities.