No Kidding: Assisted Dying Bill age debate highlights confusion over how we see children

For a country that’s set out to be the best place in the world for a child to grow up, Scotland’s got a somewhat shaky conception of what a child is. 

Okay, okay, maybe that’s more of an SNP government pledge than a national aim uniting the public sector and civic Scotland in a concerted mission, but it’s an ambition we should take seriously and agreeing what we mean by ‘a child’ or the period of ‘childhood’ is a pretty fundamental place to start.

Watching the Health, Social Care and Sport Committee last week I was reminded of this when Liam McArthur MSP was asked about his decision to set the limit for assisted dying in his member’s bill at 16, rather than the 18 which has since been adopted for similar proposals in England. “That’s the age at which individuals are deemed to have capacity to make a range of decisions in relation to their care and treatment,” McArthur said in explanation. But he acknowledged that there’s a “strong argument” for either limit. “It’s probably an area where I’m keen to reflect further, should the bill pass at stage one,” he told the committee.

And it’s fascinating to reflect on just how differently other pieces of lawmaking treat the matter of when a young person has decision-making capacity. 

It’s a common adage that childhood ends too early. In Scots law, that can be at just 12 – the minimum age of criminal responsibility. From 16, a benchmark in many cultures, young people can leave school, have sex, get married, and join the army, though that would be a hell of a year for anyone, and you can’t graduate from junior to regular soldier until the age of 18.

There are now votes at 16 too, but not for the general election, with a driving licence to follow from 17 and pints at the pub from 18. A bid to allow 16 and 17-year-olds to become MSPs was dropped after a consultation revealed overwhelming opposition from a public that felt candidates would be far too young and inexperienced, and the prescription of cross-sex hormones to under 18s with gender incongruence has been banned indefinitely due to concerns about potential harm to patients.

The provisions of the UN Convention on the Rights of the Child, which has now been adopted into Scots law in limited form, apply to everyone up to the age of 18. But sentencing guidelines now make rehabilitation, not punishment, the primary consideration for under-25s on the grounds of cognitive maturity. 

Some of these are more contentious than others, but it’s a very mixed picture that apportions competency and emotional and physical maturity on the one hand and denies it with the other. Much of the debate around issues pertaining to children is marked by that same muddle. 

The cliché, of course, is that growing up is hard to do. But legislating for those who are growing up is difficult too and our idea of what a child is has shifted over time – there can be few among us who would repeal the 2021 reform which raised the age of criminal consent from eight, or who would remove the Factory and Workshop Act which banned the employment of those under 10. How will today’s laws be judged with the passage of time?

In advancing his bill, McArthur is rightly being subject to detailed scrutiny. The reflection he says he’ll give to the age provisions in his bill would also be usefully applied more generally across the safety, rights and responsibilities of Scotland’s youth.