Scotland updates mental health tribunal UNCRC rules

From 1 April 2026, Scotland’s Mental Health Tribunal will work to new rules that make it easier to ask if a case respects children’s rights. These changes were made on 27 January 2026, laid before the Scottish Parliament on 29 January 2026, and apply from the start of April. They sit alongside the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 and turn its “compatibility question” system into day‑to‑day tribunal practice.

If you are a party or a relevant person in a tribunal case, you can now raise a compatibility question at any stage. In plain terms, this is the route for asking whether the words of a law used in your case are compatible with the UNCRC, or whether a public authority has acted (or plans to act) in a way that is unlawful because it conflicts with UNCRC requirements. That definition comes straight from section 31 of the 2024 Act, which keeps criminal cases on a separate track. (legislation.gov.uk)

When you raise the question, you should set out the facts and the points of law as clearly as you can. If the tribunal thinks it does not have enough detail to deal with the issue fairly and efficiently, it can tell you to provide more. The tribunal will also assess whether the claim is obviously without merit. The 2024 Act makes clear that a question does not truly arise if it is frivolous or vexatious, even if someone says it does. (legislation.gov.uk)

Once the tribunal is satisfied a real question has arisen, it must tell the “relevant authorities” in writing. Those are Scotland’s senior law officer, the Lord Advocate, the Commissioner for Children and Young People in Scotland, and the Scottish Commission for Human Rights. The 2024 Act requires these bodies to be notified so they can decide whether to take part. (legislation.gov.uk)

There is now a clear timetable. A relevant authority has 14 days from receiving the tribunal’s intimation to say it intends to take part as a party in your case where it relates to the compatibility question. In exceptional circumstances, the tribunal can set a different period. If an authority opts in, it then has 7 days to send written submissions. The tribunal must share the documents needed to consider the question and, where those submissions are made, take steps to let that authority participate for the compatibility issue only.

Hearings can be managed in a flexible way. The tribunal may schedule a separate hearing just to deal with the compatibility question. It can also pause the main case while the question is decided, so that everyone knows where they stand before moving on.

If no relevant authority joins at first instance, it is not shut out later. An authority may still intervene on appeal, and if it asks to be kept informed, the tribunal must notify it of the outcome on the compatibility point, including any later appeal.

Sometimes these questions need a higher court to answer them. Under the 2024 Act, a tribunal may refer a compatibility question to the Inner House of the Court of Session, and some tribunals must do so if there is no appeal route. When Scotland’s Mental Health Tribunal makes such a reference, it must write to all parties and the relevant authorities, and provide the papers they need. The Inner House can determine the question, and in some cases there is a further appeal to the UK Supreme Court. (legislation.gov.uk)

What this means for you is practical and immediate. If a decision or a legal rule in your case appears to cut across a child’s UNCRC rights, you have a route to raise it and a timetable that keeps things moving. Speak to your solicitor or adviser early, prepare the facts and legal reasons in writing, and keep an eye on the 14‑day and 7‑day steps so your voice is heard at the right time.

This change is part of a wider shift: public authorities in Scotland must act in a way that is compatible with UNCRC requirements within devolved competence. The tribunal’s refreshed process helps turn that duty into something you can use in real cases, while still following the tribunal’s long‑standing aim of running proceedings fairly, quickly and efficiently. (legislation.gov.uk)