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Listen
"It's everyone's job to make sure I'm alright"
Report of the Child Protection Audit and Review
Appendix C
Child Protection in Scotland
UN Convention on the Rights of the Child
In 1991, the UK ratified the United Nations Convention on the Rights of the Child, which has had a significant impact on Scottish law and practice. The passing of the Human Rights Act 1998 made the European Convention on Human Rights a part of Scottish law. This has positive implications for children who are as entitled as adults to benefit from its provisions. The principles of both conventions shaped the Children (Scotland) Act 1995, which is discussed below.
The Convention on the Rights of the Child's explicit focus on children means that it has more obvious implications for child protection. Ratification means that all practice should be shaped by it unless this is actually contrary to Scottish, or European human rights law. Much remains to be done in moving towards full implementation, but we should not underestimate what has been achieved. Statutory and voluntary agencies in Scotland have been active in promoting the convention and continue to work towards greater recognition of it. The convention's particular relevance for child protection lies in its commitment to:
- support for family life;
- respect for the child's views;
- provision of an adequate standard of living, education and health services, to leisure and to a cultural and spiritual life;
- making the child's best interests a primary consideration for Scottish society;
- prevention of abuse and neglect;
- protection from harm;
- help to recover from abuse; and
- identification and investigation of concerns about child abuse and neglect, and follow-up, including involvement of the courts where appropriate.
Scottish legal framework
The Scottish legal framework in relation to child protection centres on:
- Scottish and UK Acts of Parliament, in particular the Children (Scotland) Act 1995;
- rules and regulations made under powers delegated by these Acts;
- principles derived from decided cases; and
- the European Convention on Human Rights, which acts either as a lens through which the above must be interpreted or, in some cases, an immediate corrective where the law does not meet the requirements of the Convention.
The UN Convention on the Rights of the Child is not an integral part of Scottish law in the same way as the European Convention; however, following the practice of the European Court on Human Rights, it should be taken into account when interpreting the European Convention. Scottish courts have also increasingly referred to the UN Convention when considering matters relating to children.
The Children (Scotland) Act 1995 defines and regulates family relationships and sets out the powers and duties of local authorities and other agencies regarding child welfare and protection. Local authorities must collaborate with other agencies to plan and publicise services promoting the welfare of children. They have a duty to safeguard and promote the welfare of children 'in need' in their area by providing services for them or their families. The main aim is to help families stay together. Children are 'in need' if one or more of the following conditions is satisfied:
- they need local authority services to help them achieve or maintain a reasonable standard of health or development;
- their health or development will be significantly impaired if such services are not provided;
- they are disabled; or
- they are affected adversely by the disability of any other person in their family.
Sometimes, family support is not enough to protect children from abuse and neglect. The Act sets out procedures for concerns about child welfare and protection to be passed to the Children's Reporter who will decide whether to refer the matter to the children's hearing (this is discussed later). There are also procedures for obtaining court orders to make sure that children can be seen, assessed and protected where necessary, sometimes through removal from their homes. However, it is a principle of the Act that no court or children's hearing should make an order relating to a child unless it can be shown that this will be better for the child than not making an order.
The legal framework assumes that the majority of parents will act in the best interests of their children. Where they cannot do so, the state prefers to help than intervene. However, support is not always enough. Further, in a small number of cases, the circumstances may be so clear or so detrimental that support is not appropriate. If children are to be protected there must be, and there are, threshold conditions and procedures for compulsory intervention.
Guidance
The legal framework is underpinned by legal regulations and guidance. The guidance to the Children (Scotland) Act provides guidance on the circumstances that might indicate a child is in need, the type of services that might be provided and the key elements for planning services as well as considering the needs of children with a disability or those who need protection.
There are two sets of national child protection guidance in Scotland - national guidelines for all agencies on inter-agency co-operation and specific guidelines for health professionals based on these. There is also a circular for education departments (Circular 10/90), issued in 1990. There are 15 sets of local inter-agency guidance (agencies in the former Strathclyde Region have a common set as do agencies which formed the former Lothian Region, Central Region and Grampian) that seek to apply national guidance locally. There is also separate local single agency guidance: for education, health, police and social work. Up to four different sets of guidance might apply at any one time (national, local inter-agency, area agency (e.g. consortium of Health Trusts), and individual agency/department.
How agencies respond to allegations of abuse and neglect
Pre-referral
Concerns about a child may be expressed by many different individuals - a child's friend; a parent or other family member; a neighbour or other member of the public; a professional or other concerned person (e.g. teacher, social worker, doctor, youth worker, etc.). A child or young person may have told any of these people that they are being abused or neglected, or these adults may have suspected or guessed that something is wrong. Some adults may decide not to tell anyone else about their concerns. Alternatively they may seek advice. For example, it is common for health visitors to keep a list of children about whom they have concerns and they may decide that it is sufficient to monitor a child on the list more closely or they may seek informal advice without making a formal child protection referral about a child. Other people, particularly children themselves, their friends and relatives, but also members of the public and occasionally even professionals, may ring a helpline such as ChildLine or ParentLine Scotland in order to obtain advice about what to do or to talk about their concerns.
Sometimes agencies or other adults may have concerns for a parent rather than a child. For example, a parent may have alcohol or drug problems, financial worries or health problems. In these cases help from social work, or other health services may be sought for the parent so that they can continue to care for their children. In these cases the child may be considered to be 'in need', but not in need of 'care and/or protection'.
Local authorities have a duty to provide services for 'children in need'. They also have a duty to safeguard and promote the welfare of children who are in need and to promote the upbringing of children by their families (so far as this is consistent with promoting a child's welfare.) Assistance might range from the provision of information through support for a family to a residential placement for a child away from home. In most cases help will be provided on a voluntary basis by a social work department in consultation with or in partnership with other departments or agencies.
Referrals
Concerned individuals, having decided that protective action is needed, may refer a case to the social work department, or the police, as the agencies which have statutory responsibility to investigate or make enquiries about child abuse or neglect. Alternatively they may choose to talk to a teacher, doctor or other professional who will make a decision whether or not to make a referral. A referral may also come directly from the child. As well as or instead of contacting police and/or social work, an individual may make a referral to the Reporter. Anyone who has reasonable cause to believe that a child may need compulsory measures of supervision - an individual, agency or court - can make a referral to the children's Reporter.
Investigation
Local authorities have a duty to make enquiries about the circumstances of children referred to them in order to determine if they are in need, if compulsory measures of supervision may be necessary or if a child protection or an exclusion order is needed for their protection. They will also need to make enquiries in order to complete an assessment of need.
The police have a duty to investigate any alleged criminal offences reported to them. Not all incidents of abuse and neglect will be considered to be a criminal offence. The police are involved less frequently in cases of neglect and may not be involved in minor cases of physical abuse. In order to ensure that children are not subject to two sets of interviews and enquiries, police and social work determine which agency should undertake the enquiries or whether a joint approach is needed.
When the social work department or police receive a referral they may decide not to investigate, in which case they will either close the case or decide that the child is 'in need' and provide services to support the family and/or the child. If the referral is serious enough to warrant action as a child protection matter they will undertake an inter-agency investigation in partnership with other relevant agencies or make further enquiries.
Following a joint investigation there should be a joint decision about what further action will be taken. It may be decided that no further action under child protection proceedings is required and the case may either be closed or family support offered. If further action to protect the child is needed, a case conference will be called and also a referral may be made to the children's Reporter.
In some cases it may be necessary to take urgent action, before a case conference or children's Hearing can be called, to protect a child from immediate harm. A child's parents may agree that a child should be looked after by the local authority or by a relative or other member of their social network whilst agencies carry out their investigations. In other cases, agencies may need to take legal action to remove a child from the source of danger by applying for a Child Protection Order. Alternatively, the local authority may apply for an Exclusion Order, which requires the removal of a person suspected of harming a child from the family home. In an emergency and prior to a court Hearing, a police constable may remove a child to a place of safety if he or she considers the grounds for a Child Protection Order are satisfied.
Where a referral is made to the Reporter he or she is required to undertake an initial investigation. The Reporter may request a report from the local authority on any issue he or she thinks relevant and the local authority must provide this report. Reports are likely to be requested from social workers and/or the child's school. Information may also be requested from health, the police, voluntary agencies, Procurator Fiscal, courts, residential units and families. Only if the Reporter considers that the grounds for referral can be proven in court and that there is a need for compulsory measures of supervision will he or she call a children's Hearing. The Reporter must also be satisfied that legal intervention in a family's life, i.e. making a supervision order, is preferable to not making an order. If the Reporter considers that these conditions are met, he or she will call a Hearing. If the Reporter decides that intervention is not possible or not required, for example, if there is insufficient evidence, there will not be a Hearing and there will be no further action. Alternatively a Reporter may decide that intervention is necessary but that compulsory measures are not required in which case he or she will refer the case to the local authority for voluntary assistance. In just under half the cases referred, the Reporter makes a decision that there are insufficient grounds or that formal procedures are not required.
Case conference
A child protection case conference will be attended by relevant professionals, parents and/or other carers, and children and young people where appropriate. The conference members assess the degree of existing and likely future risk to the child. They also assess the child's needs and identify any services that may be required to meet them. The conference may decide that the child's name does not need to be placed on the child protection register and the case will either be closed or family support will continue. Where it is agreed that a child's name should be placed on the child protection register, a child protection plan will be formulated which will outline how the child's needs can be met by all the various agencies. A decision will also be made at the case conference about whether or not to make a referral to the children's Reporter.
Where the parents or carers are refusing to allow social workers to see the child in order to assess risks and needs, a local authority may apply for a Child Assessment Order. An Assessment order requires the parents to produce the child and to allow an assessment to take place.
Review case conference
A child's name will stay on the child protection register until professionals decide that the risk to the child has been sufficiently reduced. Child protection plans have to be reviewed at least every six months. The decision to remove a child's name from the register will be made at a review child protection case conference. If a child's name is removed, the social work case will either be closed or it will be decided that family support should continue.
Voluntary support
Agencies provide services for children directly and services to help parents in their parenting role. Additional help might also be provided to enable parents to overcome personal problems such as drug misuse. Many parents accept such help, but some parents cannot or will not or they continue to be unable to prioritise their children's needs. In these cases the offer or the provision of voluntary support may not be effective and agencies may refer children to the Reporter if they consider that compulsory measures of supervision are needed.
Children's Hearings
Children's Hearings are made up of volunteer lay members drawn from a local 'Children's Panel'. The child and other 'relevant persons' including parents can also attend and may be required to attend a Hearing. A safeguarder may be appointed by the Hearing. The safeguarder will consider the interests of the child to assist panel members decision making. If a child or his or her parents do not accept the 'grounds', or reasons for calling the Hearing, the Reporter will make an application to the sheriff for a finding as to whether the grounds of referral are 'established'. Alternatively, the Hearing may discharge the referral completely. The same options apply where the child is considered to be incapable of understanding the grounds by reason of age or understanding. Where a sheriff decides that the grounds of referral are established the case will return to the Hearing for a decision. In approximately 80% of 'care and protection' cases, the matter is referred to the sheriff.
Where the grounds for referral are accepted or where the grounds have been established before the sheriff, the children's Hearing will make a decision. It may discharge the referral or, where the Hearing feels the child needs compulsory supervision, it can make a 'supervision requirement'. Although the Hearing's powers focus on considering the need for compulsory orders, their ethos and training encourages the negotiation of consensus between families and professionals and of commitment to work together in the child's interest.
Parents and children can appeal to the sheriff against any decision of a Children's Hearing. Further appeals to the Sheriff Principal or the Court of Session can also be made.
Supervision requirement
A supervision requirement places the child under the supervision of the local authority but in practice it is usually implemented by the social work service. Supervision can include supervision at home, with a relative, in foster care, in residential care or in secure accommodation. A supervision requirement may require a child to reside at a particular place or can give authority for a person to act to restrict a child's liberty. The Hearing may impose any condition about the child to the supervision requirement it sees fit, for example, there may be a requirement that a child receives medical treatment. In addition the Hearing may regulate contact with any person. Unless reviewed and continued or varied, a supervision requirement will not last longer than a year. The Hearing, when reviewing the case, may order a further investigation into the child's situation, terminate or vary the requirement, impose further conditions or simply continue the order without variation.
A child or relevant person may appeal to a sheriff against the decision of a Hearing. The sheriff may appoint a safeguarder to look after the child's interests.
Criminal justice routes
A criminal investigation may be carried out as part of, or in parallel with, child protection enquiries and children's hearings proceedings. The police have a duty to protect the public and to investigate on behalf of the Procurator Fiscal where they believe that a criminal offence may have been committed. Following a joint investigation, the police will send reports of suspected crimes to the Procurator Fiscal. He or she will decide whether criminal proceedings are in the public interest. Public interest includes, but is not restricted to, the interests of children as witnesses or accused. The Procurator Fiscal will take account of Article 3 of the United Nations Convention on the Rights of the Child, to ensure the best interest of the child shall be a primary consideration. He or she may decide that there is a lack of sufficient evidence or there are no grounds for a prosecution. If a Procurator Fiscal decides that it is in the public interest to prosecute then the case will proceed to court.
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