Aftercare

Aftercare, the duties owed to young people after they leave formal care, has always been an inherent aspect of the child protection process in Scotland, perhaps more so indeed in the early days when the assumption was that child protection necessitated the permanent removal of the child from the parent’s care. Early aftercare obligations were primarily around assistance in finding employment for young people when they reached school-leaving age, though managers of reformatory and industrial schools also had obligations to supervise the young person who had left their care for three years or until their 21st birthday. Latterly, education and training grants were made available, as were other forms of financial assistance. Finally, the Children and Young People (Scotland) Act 2014 imposed on local authority the obligation of “continuing care” towards young people who had previously been “looked after” by the local authority, and on a range of public bodies to act as “corporate parents” to such care leavers.

Child Protection through the Criminal Law

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

The Legal Process before 1968: The Juvenile Court

This chapter explores the world-wide movement at the turn of the 20th century towards specialist juvenile courts to deal with children who commit offences. Following the lead of the juvenile court movement in the USA and Australia, the Children Act 1908 set up juvenile courts in both Scotland and England, though in Scotland these courts quickly acquired jurisdiction over both young offenders and children in need of care and protection. Originally little more than a separate set of procedural rules to be followed in the sheriff court dealing with children, an effort was made in the Children and Young Persons (Scotland) Acts 1932 and 1937 to give better effect to the idea of a separate court presided over by specialist judges. Though never nation-wide, these new, enhanced, juvenile courts took on many of the characteristics that were later adopted by the children’s hearing system, including the processes to be followed, the involvement of the children, the requirement to look at the child’s wider environmental circumstances (including the child’s welfare), and the outcomes available to the court.

Home Supervision

This chapter traces the origins of the most common outcome available to the children’s hearing – a supervision order in terms of which the child will remain in their own home. Social supervision grew out of the probation service developed at the turn of the 20th century, and was extended to care and protection cases by the Children and Young Persons (Scotland) Act 1932. The nature and role of probation officers in the early 20th century is looked at, supervising both child offenders and child victims, and the legislation governing probation is analysed. The formal shift from probation to supervision for all children subject to orders made by the children’s hearing came about with the Social Work (Scotland) Act 1968, under which the probation service came under local authority control, and supervision orders became the main outcome at children’s hearings. The nature of supervision in that Act and its 1995 and 2011 replacements is then examined.

The Statutory Framework before 1968

This chapter traces the evolving legislative framework of child protection processes, from the poor law and through the early regulation of reformatory and industrial schools, to the late 19th century statutes which for the first time focused on child protection. It examines in detail the aims of the Children Act 1908 through juvenile courts, its restructuring in 1932 and its consolidation by the Children and Young Persons (Scotland) Act 1937, before exploring the post-war shift from charitable to state activity, notably with the Children Act 1948 which made child protection a central aim of local authorities with the establishment of children’s committee and children’s officers. Also explored is the beginnings of the shift from insulating vulnerable children from their families to the involvement of their families in planning for the future. Early international conventions are described.

Adoption of Children

The practice of adoption of children, and the terminology, existed in Scotland long before it was created as a legislative process. This chapter looks at the roots of adoption of children, in the benign informal adoption arrangements families and communities made, and in the malign money-driven practice of “baby-farming”. Demands for regulation grew after the First World War, and the Parliamentary debates on what became the Adoption of Children Act 1926 is covered in some detail. Thereafter the chapter explores all the legislative changes, bringing in forbidden degrees, damages for wrongful death and succession, this presented to show how adoption only gradually embraced the “full-transference of parenthood” model that it has today. The change throughout the 20th century from an essentially private arrangement to the end-game of public law child protection processes is analysed in some detail, especially in relation to the court’s ability to dispense with parental consent. Finally, the motivations behind the sub-adoption order, known as the Permanence Order, created in 2007, is examined.

Boarding-out and Fostering by Public Authorities

The boarding out of needy children traces its origins in Scotland to 16th century Poor Law legislation and the practice was followed, often without statutory authority, by the Poor Law authorities until the Poor Law was replaced by “national assistance” in 1948. The early child protection statutes had allowed a child to be committed to the care of a “fit person”, which was later specified to include charitable organisations and, after 1932, local authorities. Children tended to be placed in rural areas far from their families, and ran the risk of being treated as unpaid labour in farms and crofts. The early regulatory control is examined in this chapter, as are the various official reports on and policy concerns about boarding out throughout the 20th century, in particular the 1946 Clyde Report. Then the increasing regulation of how foster carers are vetted and overseen by local authorities, from the 1980s on, is dealt with, through the creation of fostering panels and fostering agreements. Finally, the 21st century emphasis on kinship care is explored.

Institutional Care

This chapter explores the development and increasing regulation of the institutional care of children removed from their families by the state. The growth of reformatory and industrial schools in the 19th century is dealt with, as are the reasons why these two types of school were never truly separate in Scotland. Their formal amalgamation into “approved schools” in 1932 is examined, as is the regulatory structures that evolved to ensure their appropriate running, including their registration, the managers, and the rules for discipline and corporal punishment. The regulation of children’s homes, originally run by charitable endeavours (voluntary organisations) and after 1948 increasingly by local authorities, is also covered. Various official reports reimagining the purpose of institutional care are examined in some detail, in particular the Kearney Report, as are the regulatory rules that developed from these reports. Finally, the development of “secure accommodation”, that is to say, locked accommodation, is described, with the regulatory framework governing the running of secure accommodation within institutional care of children.

The Statutory Framework after 1968

After an examination of the Kilbrandon Committee’s work in the early 1960s, this chapter will offer an analysis of the major changes to the Scottish child protection process brought about by the Social Work (Scotland) Act 1968 – including that Act’s increased focus on preventive measures, a greater involvement of the child’s family, and the clarification and enhancement of the role of the local authority. There follows the lead up to and enactment of the Children (Scotland) Act 1995, with its increased focus on participation rights and the restructuring of local authority duties towards vulnerable children and those who are now “looked after”. Thereafter, the new regimes regulating the provision of care in residential establishments and in foster care (the Regulation of Care (Scotland) Act 2001 and the Public Services Reform (Scotland) Act 2010) are explored in detail, as is the development of “GIRFEC” as the major Governmental tool. The chapter ends by exploring the restructuring of the children’s hearing system by the Children’s Hearings (Scotland) Act 2011, and the failed “named person” scheme in the Children and Young People (Scotland) Act 2014. Contemporary international conventions are described.

The Legal Process in the Modern Era: Scotland’s Children’s Hearing System

This chapter looks at the legal process for child protection in Scotland since the introduction of the children’s hearing system, starting with an exploration of how the Kilbrandon Report was given effect to in the Social Work (Scotland) Act 1968. It then analyses the original grounds of referral to the hearing, tracing their origins and explaining the subsequently added grounds. Thereafter the chapter looks at the world-wide retreat from the juvenile court ideals, especially in England which rejected the opportunity of following the Scottish approach, and ends with some speculation on why Scotland has managed to retain these ideals, developed decades ago, and still considered appropriate here today.