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Footnotes for Appendix 3: Children's residential services: Learning through records
1 see British House of Commons Health Select Committee Report (1998); Parliament of Australia Senate Report (2001); and Parliament of Australia Senate Report (2004).
2 1987/2233. In force from 1 June 1988. Superseded by the Residential Establishments - Child Care (Scotland) Regulations 1996 ( SI 1996/3256) and the Arrangements to Look After Children (Scotland) Regulations 1996 ( SI 1996/3262)
3 ibid paragraph 5
4 'Future inquiries': May include public or judicial inquiries; inspections; police investigations; audits and any other processes inquiring into matters relating to children's services.
5 Acceptance Speech of the President of the African National Congress, Nelson Mandela, at the Nobel Peace Prize Award Ceremony: Oslo, Norway. December 10, 1993.
6 'Records' refers to paper files, photographs, videotapes, databases and electronic files whereas 'files' are considered hard copy documentation or electronic versions of recordings. 'Information' includes records, files and verbal evidence.
7 'Redaction': The process of blocking out or deleting specific information from records.
8 This section is drawn from The Scottish Parliament Official Report 1 December 2004. See at: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-04/sor1201-01.htm
9 The term 'Scottish Executive' was changed to Scottish Government after the Historical Abuse Systemic Review began its work. As 'Scottish Executive' was used predominantly throughout our review, it is mainly used in this report although 'Scottish Government' may also be referred to.
10 'Keeper of the Records': The National Archives of Scotland (' NAS') is headed by the Keeper of the Records of Scotland, who is responsible to the Scottish Ministers for the management of the NAS and to the Lord President of the Court of Session for the efficient management of the court and other legal records in Scotland. The office of Keeper of the Records of Scotland was created in 1949, although its antecedents date back to the 13th century. See: http://www.nas.gov.uk/about/keeper.asp
11 See Centre for Conflict Resolution and Human Rights, Tufts University at http://fletcher.tufts.edu/chrcr/.
12 Response by Archbishop Tutu on his appointment as Chairperson of the Truth and Reconciliation Commission, November 30 1995. http://www.wits.ac.za/histp/tutu_quotes_by.htm.
13 See Human Rights Act 1998 at http://www.opsi.gov.uk/ACTS/acts1998/19980042.htm.
14 see British House of Commons Health Select Committee Report (1998); Parliament of Australia Senate Report (2001); and Parliament of Australia Senate Report (2004).
15 This section is informed by the Historical Abuse Systemic Review report chapter 2 on the regulatory framework.
16 SI 1933/1006. Revoked by the Approved Schools (Scotland) Rules 1961 ( SI 1961/2243)
17 See also SI 1933/1006.
18 See also SI 1933/1006.
19 SI 1961/2243. Brought in under the Children and Young Persons (Scotland) Act 1937, s83 and Schedule 2, paragraph 1(1). Amended by the Approved Schools (Scotland) Amendment Rules 1963 ( SI 1963/1756)
20 SI 1961/2243 paragraph 11(1)(b) and (f). The details to be shown in the punishment book were outlined under paragraph 32
21 SI 1963/1756
22 ibid paragraph 3
23 ibid paragraph 4
24 ibid paragraph 1(3)
25 ibid paragraph paragraph 35. For this purpose postage stamps were to be provided free, once a week, by the managers.
26 Ibid
27 Ibid
28 ( SI 1952/1836). Exercised under section 97 of the Children and Young Persons (Scotland) Act 1937, revoking the Children and Young Persons (Voluntary Homes) Regulations (Scotland) 1933 ( SI 1933/923)
29 ibid Schedule 1 and paragraph 11
30 SI 1959/834. Revoked by the Social Work (Residential Establishments-Child Care) (Scotland) Regulations 1987
31 SI 1959/834 paragraph 14
32 ibid
33 ibid paragraph 15
34 ibid s21(1) (repealed by the Social Work (Scotland) Act 1968, Sch 9)
35 ibid s21(2) (repealed by the Social Work (Scotland) Act 1968, Sch 9)
36 SI 1946/693
37 ibid paragraph 20
38 ibid paragraph 17(b)
39 ibid paragraph 20
40 1987/2233. In force from 1 June 1988. Superseded by the Residential Establishments - Child Care (Scotland) Regulations 1996 ( SI 1996/3256) and the Arrangements to Look After Children (Scotland) Regulations 1996 ( SI 1996/3262)
41 As determined by paragraph 3 of the Regulations (1987/2233)
42 As amended by section 1 of the Registered Establishments (Scotland) Act 1987
43 Inserted by section 2 of the Registered Establishments (Scotland) Act 1987
44 Meaning "(a) in the case of a voluntary organisation, the management committee to whom powers are delegated within the organisation for management of the residential establishment; (b) in the case of a local authority, those officers having delegated powers under section 2 of the Act, as read with section 56 of the Local Government (Scotland) Act 1973, for the management of the residential establishment: The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 (1987/2233), paragraph 2(1)
45 ibid paragraph 4
46 ibid paragraph 5
47 ibid paragraph 14
48 ibid paragraph 15
49 Section 8 inserted the new sections 58A to 58G into the 1968 Act
50 SI 1983/1912. Paragraph 19 revoked rules 33 and 34 of the Approved Schools (Scotland) Rules 1961
51 ibid paragraph 16(1)
52 ibid paragraph 16(2)
53 SI 1988/841
54 ibid paragraph 11 (amending paragraph 16 of the 1983 Regulations)
55 Section 413(1), as substituted by section 59(1) of the Criminal Justice (Scotland) Act 1987
56 SI 1988/294
57 ibid paragraph 7(1)
58 ibid paragraph 7(2)
59 see Children (Scotland) Act 1995, Regulations and Guidance, Volume 2, Chapter 4.
60 Ibid
61 The eight principles in 'Another Kind of Home' are individuality and development; rights; good basic care; education; health; partnerships with parents; child centred collaboration and a feeling of safety.
62 See Children (Scotland) Act 1995, Regulations and Guidance, Volume 2, Chapter 4.
63 Ibid
64 Ibid
65 S.I. 1996/3262 paragraph 3
66 ibid paragraphs 8 and 9, namely 6 weeks within the date of first placement, 3 months within the date of the first review and thereafter periods of 6 months within the date of the previous review
67 S.I. 1996/3262 paragraph 10
68 S.I. 1996/3256. Superseded themselves by the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 No 114
69 Applying to any residential establishment controlled or managed by a local authority, one which required registration under s61 of the 1968 Act, or a school voluntarily registered in accordance with s61A of the 1968 Act: S.I. 1996/3256, paragraph 3
70 ibid paragraph 5(1) and the Schedule to the Regulations
71 ibid paragraph 5(2) and (3)
72 ibid paragraphs 12 and 13
73 ibid paragraph 11
74 ibid paragraph 12(1), the requirements being met by either retaining the original written record or a copy of it, or in some other accessible form (such as a computer record): S.I. 1996/3262 paragraph 12(2)
75 ibid paragraph 12(3)
76 Chiefly, The Secure Accommodation (Scotland) Regulations 1983 ( SI 1983/1912); The Secure Accommodation (Scotland) Amendment Regulations 1988 ( SI 1988/841); The Residential Care Order (Secure Accommodation) (Scotland) Amendment Regulations 1988 (S.I. 1988/1092)
77 S.I. 1996/3255
78 ibid paragraph 16
79 1987/2233. In force from 1 June 1988. Superseded by the Residential Establishments - Child Care (Scotland) Regulations 1996 ( SI 1996/3256) and the Arrangements to Look After Children (Scotland) Regulations 1996 ( SI 1996/3262)
80 ibid paragraph 5
81 See reference at: http://www.dundee.ac.uk/archives/SAL-october1999summary.htm
82 No legislation mentions the National Archives of Scotland by name, as all rights and responsibilities are vested personally in the Keeper of the Records of Scotland
83 The Public Records (Scotland) Act 1937, c.43 introductory note
84 The Public Records (Scotland) Act 1937, c.43 s1 - 3, subsequently amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (c. 19), s. 8(4). See also footnote 8.
85 ibid Part II, as amended by the Statute Law (Repeals) Act 1981 (c. 19), Sch.1 Pt. XII, and the Public Records Act 1958 (c. 51), Sch. 4
86 ibid s5
87 ibid s8
88 ibid s9, restricted by Abolition of Domestic Rates Etc. (Scotland) Act 1987 (c. 47), ss. 20(11)(b)
89 ibid s7(3)
90 Made possible by an interaction between section 3(8) of the 1958 Act and section 5(1) of the Public Records (Scotland) Act 1937
91 S.R & O. 1940/2107 (Rev XIX p 846: 1940 I, p917). These regulations were revoked in part by S.I. 1969/1756 and S.I. 1990/106. The rules for disposal of court records is governed by The Disposal of Court Records (Scotland) Regulations 1990 No 106
92 1992 No 3247
93 ibid reg. 3(a)
94 ibid reg. 3(b)
95 ibid reg. 4(b)
96 2003 No.522
97 The Public Records (Scotland) Act 1937, s7 (3A), as inserted by the Freedom of Information (Scotland) Act (2002 ASP.13), Pt 7 s 70 (2)
98 This information is taken directly from the NAS website: http://www.nas.gov.uk/.
99 Inserting Sch 7A into the Local Government (Scotland) Act 1973, access to certain information was exempted, including: "Information relating to the adoption, care, fostering or education of any particular child or relating to the supervision or residence of any particular child in accordance with a supervision requirement made in respect of that child under the Social Work (Scotland) Act 1968"
100 The Local Government etc (Scotland) Act 1994, s15
101 ibid s53(1)
102 ibid s53(2), "records" being defined as including charters, deeds, minutes, accounts and other documents, and any other records, of whatever form and in whatever medium, which convey information, but not including records which are the property of the Registrar General of Births, Deaths and Marriages for Scotland
103 ibid s54(1)
104 see New Zealand Public Records Act (2005) see at: http://gpacts.knowledge-basket.co.nz/gpacts/public/text/2005/an/040.html
105 This section draws from: Archive Services in Scotland Mapping Project Board (2000). An Archival Account of Scotland, Public and Private Sector Archive Services in Scotland: Funding Opportunities and Development Needs Report. See at: http://www.archives.org.uk/sca/anarchiv.pdf
106 This section draws from: The Scottish Government Public Records Strategy (2004).
107 Freedom of Information Conference, October 25, 2007, 'A Culture of Openness: Freedom of Information moving into a new era'.
108 MacQueen also recognises that there is no legal obligation on any other Scottish public authorities, such as higher and further education institutions, police authorities, etc to manage their records or to maintain archives (although many do so anyway, to highly variable degrees of quality).
109 The Local Government (Scotland) Act 1994, s53
110 Section 200 of the Local Government (Scotland) Act 1974 (repealed by the Environment Act 1995) appears to be the first to highlight the need to maintain records, but this was more clearly pronounced under the (albeit limited) terms of the Local Government (Scotland) Act 1994
111 See for example the reports by the Archive Services in Scotland Mapping Project Board, An Archival Account of Scotland (2000); and by the Archives Task Force, Listening to the Past, Speaking to the Future (2004), as cited in Hector L MacQueen, "Reform of Archival Legislation: a Scots Perspective" Journal of the Society of Archivists vol 26 (2005) 201-214.
112 See http://www.scotland.gov.uk/Resource/Doc/158138/0042787.pdf
113 See Data Protection Act 1998 at http://www.opsi.gov.uk/ACTS/acts1998/19980029.htm
114 SW(S)A 1968, s 1(4). Amended by the National Health Service and Community Care Act 1990 (c 19), s 66(2), Sch 10, and by the Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005, SSI 2005/465, art 2, Sch 1, para 4(2).
115 SW(S)A 1968, s1 (as originally enacted)
116 SW(S)A 1968, s1. Amended by the Local Government (Scotland) Act 1973 (c 65), ss 161, 214(2), Sch 20, Sch 27, Pt II, para 183). For the regional and islands councils, see SW(S)A 1968, Sch 1, Pt I. Also amended by the Children Act 1989 (c 41), s 108(7), Sch 15, the Local Government etc (Scotland) Act 1994 (c 39), s 180(1), Sch 13, para 76(2); the Children (Scotland) Act 1995 (c 36), s 105(4), Sch 4, para 15(2). Local Government (Scotland) Act 1973, ss 1, 161, Schs 1, 20 repealed. Regional and islands councils are replaced by unitary councils constituted under LG(S)A 1994, s 2; as to such councils, see LG(S)A 1994, s 1, Sch 1.
117 SW(S)A 1968, s 2(1). Repealed by LG(S)A 1994, Sch 14.
118 Local Government (Scotland) Act 1973, Sch 20, para 2. Repealed by LG(S)A 1994, Sch 14.
119 Local Government (Scotland) Act 1973 (c 65), Pt I (ss 1-11) (repealed)
120 See http://www.scotland.gov.uk/Topics/Education/accesstoinfo/residentialestablishments
121 Scottish Information Commissioner (2005). Examination of the Scottish Executive Education's Procedures for the identification and Provision of Access to Records related to Children's Homes and Residential Schools
122 See Appendices B and C.
123 Religious organisations: Protestant and Catholic, including orders, conferences and congregations.
124 'Future inquiries': May include public or judicial inquiries; inspections; police investigations; audits and any other processes inquiring into matters relating to children's services.
125 Private storage: We've learned that local authority departments, for example, have stored records in private storage facilities and that it is possible that no list exists for what is stored there.
126 Many 'children's agencies' associated with children's residential establishments included: child care offices, adoption societies, guidance clinics, enquiry centres, social services centres, youth advisory services and so on. Also, other places associated with committees responsible for children's services, regional hospital boards, educational authorities, inspection bodies, juvenile courts, national child care committees, assessment centres, remand homes and intermediate training schemes may have records pertaining to children placed and possibly relating to those establishments as well.
127 These are record types that voluntary organisations, religious organisations and local authorities identified as examples of some of their held records. These examples do not represent all records types that may contain information relating to children's residential services.
128 Some children in children's residential establishments also spent time in foster care.
129
130 See: http://www.nas.gov.uk/recordKeeping/recordsManagement.asp
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