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Footnotes for Chapter 2: The Regulatory Framework
1 While not part of the formal regulation, reports such as that produced by the Kilbrandon Committee prove an invaluable aid in identifying any shortcomings in the law. Report of the Committee on Children and Young Persons, Scotland (1964) (Cmnd 2306)
2 For example, the Poor Law Amendment Act 1845. See also the attempts to tackle abuse and neglect, most evident in the Glasgow and Edinburgh Societies "for the Prevention of Cruelty to Children" in 1889 joining to form the Scottish Society ( RSSPCC), as recognised by Alison Clelland and Elaine Sutherland in the Stair Memorial Encyclopaedia The Laws of Scotland: Child and Family Law.
3 Under common law, maltreatment of infants and children was already punishable - see, for example, McIntosh (1881) 8 R (J) 13; 4 Coup 389
4 c67
5 c37
6 See Caroline Ball (1998) 'Regulating child care: from the Children Act 1948 to the present day' in Child and Family Social Work Vol. 3 pp 163 - 171, as referenced in Jackie McRae 'Children looked after by local authorities: the legal framework' Social Work Inspection Agency, 2006
7 "Child" (except as provided in s37) meaning someone under 14 years, and "Young Person" meaning someone who has reached 14 years and is under 17 years. See s110(1) of the Children and Young Persons (Scotland) Act 1937
8 later amended by the Children (Scotland) Act 1995, s105(4), Sch 4 para 7(2) and the Criminal Justice (Scotland) Act 2003, s51(5).
9 The words from "has the custody" to "that age" substituted with "who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person," by the Children (Scotland) Act 1995
10 "[O]r the legal guardian of a child or young person" inserted after "young person" by the Children (Scotland) Act 1995
11 Indeed, it has been held that the equivalent English provision was not intended to deal with spiritual or emotional needs. See R v Sheppard [1981] AC 394 at 404, [1980] 3 All ER 899 at 902, per Lord Diplock
12 We discuss the issue of corporal punishment later in this chapter
13 Sexual offences were contained in various statutes and existed in the common law, and a number of them were consolidated under the terms of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39), and latterly the Sexual Offences Act 2003, and the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005. It is worth noting, however, that Scots Law failed to recognise male rape - instead, any sexual act against a boy was, and is, tried under indecent assault, a form of aggravated assault. This position is currently under review by the Scottish Government.
14 Schedule 1 of the 1937 Act was repealed by Schedule 10 of the Criminal Procedure (Scotland) Act 1975. Replaced by Schedule 1 of that Act
15 Children and young people coming under the definition if they had no parent or guardian, if the parent or guardian was "unfit", if they were falling into bad associations, being exposed to moral danger or beyond control. Section 65 was repealed by Schedule 9 of the Social Work (Scotland) Act 1968 c.49
16 c.43. later repealed by the Social Work (Scotland) Act 1968
17 This is the definition given to the term "guardianship" in s110(1) of the 1937 Act
18 This information is taken from the S.E.D. Memorandum "Approved Schools in Scotland: Social Work, Scotland Vote" (Class VI, 22). Circulated with agenda for 18/12/1970
19 c.47
20 Essentially a school approved by the Secretary of State for the purposes of the Act
21 Memorandum "Approved Schools in Scotland: Social Work, Scotland Vote" (Class VI, 22). Circulated with agenda for 18/12/1970
22 The Children and Young Persons (Scotland) Act 1932, Schedule 1, paragraph 1
23 Repealed by Schedule 9 of the Social Work (Scotland) Act 1968 c.49
24 Finding definition in s110(1) as "a school approved by the Scottish Education Department under section eighty-three of this Act"
25 As amended by the Criminal Justice (Scotland) Act 1949, the Social Work (Scotland) Act 1968, and the Criminal Procedure (Scotland) Act 1995
26 Meaning "an institution established under Part I of the Prevention of Crime Act 1908, c.59" - Children and Young Persons (Scotland) Act 1937, s110(1). Section 62 as amended by the Criminal Justice (Scotland) Act 1949
27 Later "local authority" under the Children Act 1948
28 Children and Young Persons (Scotland) Act 1937, s66 (later repealed by the Social Work (Scotland) Act 1968, Schedule 9)
29 ibid s68 (later repealed by the Social Work (Scotland) Act 1968, Schedule 9)
30 ibid s65. See n15 above
31 ibid s66
32 ibid s85 (1). Later repealed by the Social Work (Scotland) Act 1968, Schedule 9
33 ibid s83. Later repealed by the Social Work (Scotland) Act 1968, Schedule 9
34 ibid s110(1)
35 Repealed by the Social Work (Scotland) Act 1968, Schedule 9
36 See S.E.D. Memorandum "Approved Schools in Scotland: Social Work, Scotland Vote" (Class VI, 22). Circulated with agenda for 18/12/1970. By the end of the 1960s only three from a total of 27 approved schools in Scotland were managed by an education authority (Glasgow Corporation). Although it should be noted that in both cases under s107 of the 1937 Act, sums could be paid from the exchequer on stated conditions towards the expenses of managers of an approved school
37 Schedule 2 later repealed by Schedule 9 of the Social Work (Scotland) Act 1968
38 Children and Young Persons (Scotland) Act 1937, s85. Repealed by the Social Work (Scotland) Act 1968, Schedule 9
39 ibid Schedule 2, paragraph 1(1)
40 ibid Schedule 2, paragraph 1(2)
41 ibid Schedule 2, Paragraph 12(1), which went on to say: "provided that, where a person out on licence or under supervision from an approved school is lawfully living with his parents or either of them, the said rights may be exercisable by the parents [or parent]...but it shall be the duty of any such parent so to exercise those rights and powers as to assist the managers to exercise control over him"
42 Made in accordance with Paragraph 8(1) of the First Schedule to the 1932 Act
43 It wasn't until 1961 that paragraph 1(1) of Schedule 2 and s83 of the 1937 Act were invoked to introduce the Approved Schools (Scotland) Rules 1961 ( SI 1961/2243)
44 SI 1933/1006. Revoked by the Approved Schools (Scotland) Rules 1961 ( SI 1961/2243)
45 Children and Young Persons (Scotland) Care and Training Regulations 1933 ( SI 1933/1006), paragraph 2
46 ibid
47 ibid paragraph 7
48 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)
49 Approved Schools (Scotland) Rules 1961 ( SI 1961/2243), paragraph 1
50 ibid, paragraph 4
51 ibid, paragraph 2(1)
52 ibid, paragraph 2(4)
53 ibid, paragraph 10(2), subject to s81 of the Education (Scotland) Act 1946
54 ibid, paragraph 10(3)
55 ibid, paragraph 51. Such a provision was also found in the 1933 regulations, paragraph 26
56 Paragraphs 6(2) and 9 of the second Schedule
57 Essentially a form of probation
58 Or indeed if they considered its continuance as an approved school unnecessary. Section 83 was repealed by Schedule 9 of the Social Work (Scotland) Act 1968
59 c.39
60 Criminal Justice (Scotland) Act 1963, s21(2) in accordance with s 83(2) of the Children and Young Persons (Scotland) Act 1937.
61 ibid, s18(1)
62 Children and Young Persons (Scotland) Act 1937, s61. Repealed by the Social Work (Scotland) Act 1968, Schedule 9
63 ibid s62, as amended by the Criminal Justice (Scotland) Act 1949, the Social Work (Scotland) Act 1968, and the Criminal Procedure (Scotland) Act 1995
64 ibid s65. See n15 above
65 ibid, s72(2). Repealed by the Social Work (Scotland) Act 1968, Schedule 9
66 This was similar to the argument put forward by counsel for the Lord Advocate (as modern representative for the SED) in M v Hendron 2005 SLT 1122
67 For example: Although "approved schools" were not within the definition of "school" for the purposes of the Education (Scotland) Acts, the Acts generally provided that "it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education and further education": see the Education (Scotland) Acts 1946 and 1962, s1 (as amended)
68 Although "time to time" is given no definition, Approved Schools (Scotland) Rules 1961 ( SI 1961/2243), paragraph 20
69 ibid paragraph 21(2)
70 ibid paragraph 21 (1)
71 Children and Young Persons (Scotland) Care and Training Regulations 1933 ( SI 1933/1006), paragraph 11
72 ibid paragraph 12
73 ibid paragraph 11
74 ibid
75 ibid paragraph 13
76 All other punishment to be administered by the headmaster or headmistress. Ibid paragraph 16
77 ibid paragraph 17
78 Approved Schools (Scotland) Rules 1961 ( SI 1961/2243) paragraphs 28 - 30
79 ibid paragraph 29
80 ibid paragraph 33
81 ibid paragraph 34
82 The law still avoids any specific definition of child "abuse" or neglect, other than the partial definition of child cruelty that appears in the Children and Young Persons (Scotland) Act 1937, and which is primarily concerned with physical injury. The extent to which modern child protection law has developed its understanding of child cruelty can be seen in the guidelines that are available to agencies working with children throughout Scotland. See Alison Clelland and Elaine Sutherland in the Stair Memorial Encyclopaedia The Laws of Scotland: Child and Family Law, para 275 onwards
83 Children and Young Persons (Scotland) Act 1937, s12 (1)
84 ibid (section 12 (7)).
85 "[A]ll rights and powers exercisable by law by a parent shall as respects any person under the care of the managers of an approved school be vested in them" - CYP(S)A 1937, Schedule 2, paragraph 12 (1)
86 Although an analogous right - see McShane v Paton 1922 JC 26
87 What amounts to "reasonable" has long been debated by the courts. See, e.g. Cowie v Tudhope 1987 GWD 12-395; B v Harris 1990 SLT 208; Peebles v MacPhail 1990 SLT 245. The European Court of Human Rights saw a potential link between the right to physically chastise a child and what constituted abuse, and found the law lacking in this area: A v UK 1998 Fam LR 118, [1998] EHRLR 82; 1998-VI; 27 EHRR 611. The Scottish Parliament introduced legislation that has limited the parental right of chastisement, while not abolishing it - Criminal Justice (Scotland) Act 2003 (asp 7), s 51(1)
88 This was the case right up until, and including, the Education (Scotland) Act 1980. As a result of the decision in Campbell v Cosans (1982) 4 EHRR 293, subsequent amendments to the Act (see s40A) provided that the former right of teachers to administer corporal punishment was no longer justified, although it was specifically stated not to be an offence if in pursuance of a right exercisable by a member of staff by virtue of his position as such; if the punishment given were held to be excessive or improper, then an offence would still be committed. Not until the Standards in Scotland's Schools etc Act 2000, s16 was the right to administer corporal punishment deemed unjustifiable in any circumstances. See The Stair Memorial Encyclopaedia, Vol. 8: Education
89 Children and Young Persons (Scotland) Care and Training Regulations 1933 ( SI 1933/1006), paragraph 11. The role of the medical officer was, it is suggested, a crucial one and will be considered in the section on "Health and Safety"
90 ibid paragraph 16.
91 ibid paragraph 17
92 Approved Schools (Scotland) Rules 1961 ( SI 1961/2243) paragraph 31
93 ibid
94 Children and Young Persons (Scotland) Care and Training Regulations 1933 ( SI 1933/1006), paragraph 18
95 Approved Schools (Scotland) Rules 1961 ( SI 1961/2243) paragraph 32 (2)
96 ibid paragraph 32 (1)
97 And that person, while so detained, was for the purposes of the Act deemed to be under the care of the managers of the school, and for the purposes of s10 of the Mental Deficiency and Lunacy (Scotland) Act 1913 - later s71 of the Mental Health (Scotland) Act 1960" as inserted by Schedule 4 of the Mental Health (Scotland) Act 1960 - deemed to be detained in the school: Children and Young Persons (Scotland) Act 1937, c.37, Schedule 2 paragraph 4
98 SI 1933/1006 paragraph 6 (1), and SI 1961/2243 paragraph 3
99 ibid
100 SI 1933/1006 paragraph 7, and SI 1961/2243 paragraph 4
101 ibid
102 SI 1933/1006 paragraph 8, and SI 1961/2243 paragraph 5
103 SI 1961/2243 paragraphs 18 and 19
104 ibid paragraph 19 (1)
105 SI 1933/1006 paragraph 21
106 SI 1961/2243 paragraph 42
107 Given no definition under the 1933 regulations, but defined in the 1961 rules as "the medical practitioner appointed under Rule 40" - SI 1961/2243 paragraph 53 (1)
108 ibid paragraph 40 (d)
109 SI 1933/1006 paragraph 20; SI 1961/2243 paragraph 40
110 SI 1961/2243 paragraph 40 (g)
111 SI 1933/1006 paragraph 20; SI 1961/2243 paragraph 40
112 c.37, s106(1). In general, the Education (Scotland) Acts provided for inspection procedures as well. Although approved schools were not within the definition of "school" for the purposes of the Acts, "educational establishments" (including residential institutions conducted under endowment schemes) were within its remit and schools providing boarding for children were also covered. Thus, for example, the Education (Scotland) Act 1962, s67 (restating the same principle contained in the Education (Scotland) Act 1946 as amended) determined that it was "the duty of the Secretary of State to cause inspection to be made of any educational establishment". This duty of inspection was replaced with a discretionary power under amendments made by s11 of the Education (Scotland) Act 1969. This remains the position to the present day, for example recognised in s66(1) of the Education (Scotland) Act 1980
113 As recognised by counsel for the Lord Advocate (as modern representative for the SED) in M v Hendron 2005 SLT 1122
114 Children and Young Persons (Scotland) Act 1937, c.37, Schedule 2 paragraph 6 (2)
115 Introduced under the Children and Young Persons (Scotland) Act 1932, c.47
116 SI 1933/1006 paragraph 24
117 SI 1961/2243 paragraph 48
118 SI 1933/1006 paragraph 2
119 SI 1961/2243 paragraph 2 (1)
120 ibid
121 SI 1933/1006 paragraph 19.
122 SI 1961/2243 paragraph 36
123 ibid paragraph 35. For this purpose postage stamps were to be provided free, once a week, by the managers
124 ibid
125 ibid
126 See also SI 1933/1006 paragraph 18
127 SI 1961/2243 paragraph 11(1)(b) and (f). The details to be shown in the punishment book were outlined under paragraph 32
128 ibid paragraph 11(3)
129 ibid paragraph 49
130 c.43. Later repealed by the Social Work (Scotland) Act 1968
131 "child" being generally defined under the Act as a person under the age of eighteen: the Children Act 1948, c.43, s59
132 This chiefly applied to children under the age of seventeen: the Children Act 1948, c.43, s1
133 Ibid s2
134 ibid s6(3)(a)
135 And therefore still within the terms of the 1937 Act. Ibid s6(4)
136 ibid s12(1)
137 ibid s15(1), (2)
138 ibid s15(3)
139 ibid s13(1)(a)
140 ibid s13(1)(b). Amendments under Schedule 8 of the Social Work (Scotland) Act 1968 provided: '...at the end of section 13(1) there shall be inserted the words "and arrangements may be made under this subsection for boarding out a child in Scotland, or for maintaining him in a residential establishment provided, or the provision of which is secured, or which is registered, under Part IV of the Social Work (Scotland) Act 1968"'.
141 ibid s15(4)
142 ibid s15(4)(a) - (d)
143 ibid s15(5)
144 c. 37
145 i.e. whether those children were orphans, deserted, or placed by order of court
146 The Children Act 1948, c.43, s13(1)(b)
147 The Children and Young Persons (Scotland) Act 1937, s96 (later repealed by the Social Work (Scotland) Act 1968, Sch 9). This reference was taken to include a reference to a home or other institution supported wholly or partly by endowments, not being a school within the meaning of the Education (Scotland) Act 1946 - as added by the Children Act 1948, s27
148 ibid. From the words "any institution" to the end of the section was later substituted by the words "any private hospital or residential home for persons suffering from mental disorder within the meaning of Part III of the Mental Health (Scotland) Act 1960" by Schedule 4 of the Mental Health (Scotland) Act 1960
149 The Children and Young Persons (Scotland) Act 1937, s98 (later repealed by the Social Work (Scotland) Act 1968, Sch 9)
150 ibid s99. Repealed by s29(9) of the Children Act 1948
151 The Children Act 1948, s31(1). The Secretary of State was also empowered to prohibit the appointment of any particular applicant unless the regulations dispensed with such consultation
152 ibid s16(2). This provision applied to voluntary homes and local authority homes equally, and was carried through to The Administration of Children's Homes (Scotland) Regulations 1959 SI 1959/834, paragraph 5
153 ibid s29(1)
154 ibid s29(6)
155 SI 2146/1947. Made under section 10 of the Poor Law (Scotland) Act 1934, and section 88 (2) of the Children and Young Persons (Scotland) Act 1937
156 SI 2146/1947, paragraph 2(1)
157 ibid paragraph 23
158 ibid paragraph 24
159 ibid paragraph 26
160 ibid paragraph 27
161 ibid
162 ibid paragraph 29
163 ibid paragraph 30
164 ibid paragraph 31
165 ibid paragraph 33
166 The Children Act 1948, s15(4) and s31
167 SI 1959/834. Revoked by the Social Work (Residential Establishments-Child Care) (Scotland) Regulations 1987
168 That is, Part VI dealing with homes supported by voluntary contributions
169 SI 1959/834 paragraph 21(1)
170 ibid paragraph 1
171 ibid paragraph 2
172 ibid paragraph 3
173 ibid paragraph 4
174 The Children Act 1948, s15(4)(d) and s31(1)
175 SI 1959/834 paragraph 16
176 See 9 & 10 Geo. 6, c.72, s143, and 4 & 5 Eliz. 2. C. 75, s13(1), sch 1
177 But more specifically: Regulations 2, 6(2), 7, 10, 11, and 13-15
178 SI 1959/834 paragraph 20
179 For example, The Education (Scotland) Act 1946, s61, and later The Education (Scotland) Act 1962 s67. "School" was defined as "an institution providing primary or secondary education or both" but did not include an approved school within the meaning of the Children and Young Persons (Scotland) Act 1937: see s143 and s94 respectively. However, although approved schools were not within the definition of "school" for the purposes of the Acts, "educational establishments" (including residential institutions conducted under endowment schemes) were within its remit and schools providing boarding for children were also covered. Thus, for example, the Education (Scotland) Act 1962, s58 and s67 (restating the same principles contained in the Education (Scotland) Act 1946 as amended) determined that it was the duty of the education authority to provide for medical inspection at appropriate intervals of all pupils in educational establishments, and "the duty of the Secretary of State to cause inspection to be made of any educational establishment". This latter wide duty of inspection was replaced with a discretionary power under amendments made by s11 of the Education (Scotland) Act 1969. This remains the position to the present day, for example recognised in s66(1) of the Education (Scotland) Act 1980
180 SI 1959/834 paragraph 10(1)
181 ibid paragraph 10(4)
182 ibid paragraph 10(3)
183 ibid paragraph 10(2)
184 ibid paragraph 11
185 ibid paragraph 11(b): the sanction could be given in relation to that child either generally or in respect of a particular occasion
186 ibid paragraph 8
187 ibid paragraph 9(1) and (2)
188 ibid paragraph 9(3)
189 ibid paragraph 7
190 ibid paragraph 6(2)(a), (b), (g)
191 ibid paragraph 6(2)(c), (f)
192 ibid paragraph 6(2)(d)
193 And immediately before discharge: ibid paragraph 6(2)(e)
194 ibid paragraph 6(3). In particular, the administering authority could arrange for a medical officer/practitioner to provide children with medical services under Part IV of the National Health Service (Scotland) Act 1947
195 ibid paragraph 2
196 ibid paragraph 17. The Secretary of State could also give directions as to the provision of such facilities
197 That is, any references to the enactments relating to children and young persons were to include references to the 1948 Act, and later Part I of the Children Act 1958 as added by the Children Act 1958, Schedule 2. The terms of s106 of the 1937 Act are discussed in the "inspection procedures and record keeping" section on approved schools, above
198 Or any premises under s13(2) or (3): The Children Act 1948, s54(2)(b)
199 ibid s54(2)
200 ibid s54(3)
201 The Children and Young Persons (Scotland) Act 1937, s 98(1). Repealed by Schedule 9 of the Social Work (Scotland) Act 1968
202 ibid s98(3)
203 ibid. Indeed, any obstruction to the execution of those duties of inspection could result in a fine.
204 SI 1959/834 paragraph 14
205 ibid
206 ibid paragraph 15
207 ( 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)
208 ibid Schedule 1 and paragraph 11
209 Defined fully in s1 of the Act
210 The Mental Deficiency and Lunacy (Scotland) Act 1913, s 4(1)(a)-(c)
211 ibid, s24
212 ibid s24(1)(b) and (c)
213 ibid s24(1)(d) and (2). This was without prejudice to their powers and duties under any regulations which the Secretary for Scotland may make for further or more frequent inspection and visitation
214 ibid s24(1)(g)
215 ibid s29(1) - a "certified institution"
216 ibid s45 and s46 respectively
217 Amended principally by the Mental Health (Amendment) (Scotland) Act 1983, and repealed by the Mental Health (Scotland) Act 1984
218 The Mental Health (Scotland) Act 1960, s7(1)(a)
219 ibid, s9(1). Repealed by the Social Work (Scotland) Act 1968, Schedule 9. It should be noted that a line could be drawn between care by a local authority and by a mental health body: s8 of the Children Act 1948 stated "If a child who is in the care of a local authority under section one of this Act comes under the control of any person or authority under the provisions of [in Scotland]...the Mental Deficiency (Scotland) Acts, 1913 to 1938, or the Lunacy (Scotland) Acts, 1857 to 1919, he shall thereupon cease to be in the care of the local authority under this Act..."
220 ibid s10(1) and (2)
221 And those persons over the age of 16 suffering from a mental deficiency. The Mental Health (Scotland) Act 1960, s12(1)
222 Which, among other things, imposed a duty on educational authorities to provide educational facilities for pupils who suffered from disability of mind
223 defined as "any premises used or intended to be used for the reception of, and the provision of medical treatment for, one or more patients subject to detention under this Act...not being (a) a hospital provided under Part II of the National Health Service (Scotland) Act 1947; (b) a State hospital; or (c) any other premises managed by a Government department or provided by a local authority": The Mental Health (Scotland) Act 1960, s15(3)
224 ibid s15(1). Indeed, the Secretary of State could, at any time, cancel a registration of a private hospital on any ground on which he might have refused an application for such a registration of that hospital, or on the ground that the person carrying on the hospital had been convicted of an offence against the Act: see s18(1)
225 ibid s17(1) - such registers and records being open to inspection at any time
226 ibid s17(2)
227 ibid
228 ibid s17(3)
229 defined as "an establishment the sole or main objective of which is, or is held out to be, the provision of residential accommodation, whether for reward or not, for persons suffering from mental disorder, not being - (a) a nursing home within the meaning of the Nursing Homes Registration (Scotland) Act 1938;(b) a hospital as defined by this Act; or (c) any other premises managed by a Government department or by a local authority..." and "deemed not to be a voluntary home within the meaning of Part VI of the Children and Young Persons (Scotland) Act 1937, or Part IV of the Children Act 1948": The Mental Health (Scotland) Act 1960, s19(2) and (3)
230 ibid s19(1) (repealed by the Social Work (Scotland) Act 1968, Sch 9)
231 ibid s21(1) (repealed by the Social Work (Scotland) Act 1968, Sch 9)
232 ibid s21(2) (repealed by the Social Work (Scotland) Act 1968, Sch 9)
233 ibid s71(1) (repealed by the Social Work (Scotland) Act 1968, Sch 9)
234 And such accommodation was not otherwise available to them: The National Assistance Act 1948, s21(1)(a)
235 ibid s21(2)
236 ibid s23(1)
237 Defined as "any establishment the sole or main objective of which is, or is held out to be, the provision of accommodation, whether for reward or not, for persons to whom section twenty-nine of this Act applies (not being persons to whom that section applies by virtue of the amendment thereto made by the Mental Health Act 1959 or by the Mental Health (Scotland) Act 1960 [added by Schedule 4 of the Mental health (Scotland) Act 1960])... or for the aged or for both" but not including: any hospital maintained in pursuance of an Act of Parliament; any institution for persons of unsound mind within the meaning of the Lunacy and Mental Treatment Acts 1890 to 1930 or hospital within the meaning of the Lunacy (Scotland) Acts 1857 to 1913; any institution, house or home certified or approved under the Mental Deficiency (Scotland) Acts 1913 to 1940; and any voluntary home as defined in...Part VI of the Children and Young Persons (Scotland) Act 1937. See The National Assistance Act 1948, s37(9)
238 The National Assistance Act 1948, s37(1)
239 ibid s37(8)
240 The Education (Scotland) Act 1946, s19, as amended by the Education (Scotland) Act 1949 and 1956
241 Defined, for example, in the 1962 Act as "education by special methods appropriate to the special requirements of pupils who suffer from disability of mind or body and shall be given in special schools approved by the Secretary of State": The Education (Scotland) Act 1962, s5 (later amended by Sch 2 of the Education (Scotland) Act 1969)
242 ibid s62, replacing s53 of the Education (Scotland) Act 1946
243 The Education (Scotland) Act 1962, s63(1)
244 ibid s65(1)
245 For example, the Education (Scotland) Act 1962, s67
246 Although the definition of "special schools" contained in the 1962 Act was amended to by the Education (Scotland) Act 1969, Sch 2 to mean "education appropriate to the requirements of pupils whose physical, intellectual, emotional or social development cannot...be adequately promoted by ordinary methods of education, and shall be given in special schools"
247 For example section 5
248 The Children and Young Persons (Scotland) Act 1937, s81(1). Repealed by the Social Work (Scotland) Act 1968, Sch 9
249 ibid s81(2). Repealed by the Social Work (Scotland) Act 1968, Sch 9
250 ibid s81(3). Repealed by the Social Work (Scotland) Act 1968, Sch 9
251 The Criminal Justice (Scotland) Act 1949, s51(1)
252 ibid s51(2)
253 ibid s51(3)
254 Eventually repealed by the Social Work (Scotland) Act 1968, Sch 9
255 The Criminal Justice (Scotland) Act 1949, amendment to s82(3) of the Children and Young Persons (Scotland) Act 1937
256 SI 1946/693
257 The Remand Home (Scotland) Rules 1946 SI 1946/693, paragraph 8. Furthermore, in the case of an inmate known to be awaiting removal to an approved school, a medical examination was to take place within 48 hours before such removal
258 The Remand Home (Scotland) Rules 1946 SI 1946/693, paragraph 9
259 ibid
260 ibid paragraph 23(1)
261 The Remand Home (Scotland) Rules 1946 SI 1946/693, paragraph 9
262 And any sudden or violent death was to be reported immediately by the council to the Procurator Fiscal: The Remand Home (Scotland) Rules 1946 SI 1946/693, paragraph 11
263 ibid, paragraph 12
264 ibid, paragraph 16
265 ibid, paragraph 17(a)
266 ibid
267 ibid paragraph 18
268 ibid paragraph 2
269 I.e. s82(3) as amended by the Criminal Justice (Scotland) Act 1949. Later repealed by the Social Work (Scotland) Act 1968
270 The Remand Home (Scotland) Rules 1946 SI 1946/693, paragraph 19
271 ibid
272 ibid, paragraph 14
273 ibid paragraph 20
274 ibid paragraph 17(b)
275 ibid paragraph 20
276 Introduced under the Criminal Justice (Scotland) Act 1949, revoking probation rules of 1931, 1932, 1937, 1945, 1946 and 1949
277 The Probation (Scotland) Rules 1951, s35(1)
278 ibid s38(1)
279 ibid s39
280 ibid s54(1)
281 SI 2146/1947. Made under section 10 of the Poor Law (Scotland) Act 1934, and section 88 (2) of the Children and Young Persons (Scotland) Act 1937
282 Unless it was, as a whole, subject to inspection by a government department: The Criminal Justice (Scotland) Act 1949, s13(1)
283 ibid s13(2)
284 c.53
285 The Nurseries and Child-Minders Regulations Act 1948, s1(1)(a)
286 ibid s1(1)(b)
287 ibid s1(3)
288 ibid s2(4)
289 ibid s1(1)
290 ibid s7
291 Report of the Committee of the Scottish Advisory Council on Child Care (1963) (Cmnd 1966). Although it concerned mainly recommendations for dealing with the neglect of children in their own homes
292 Report of the Committee on Children and Young Persons, Scotland (1964) (Cmnd 2306)
293 (1966) (Cmnd 3065)
294 c.49. The Act received royal assent on 26 July 1968, and much of it came into force on 17 November 1969
295 A. Clelland and E.E. Sutherland, Stair Memorial Encyclopaedia The Laws of Scotland: Child and Family Law, para 287
296 Preamble to the Act: The Social Work (Scotland) Act 1968, c.49
297 Section 1. 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)
298 "[O]r Part II of the Children (Scotland) Act 1995" later inserted by Schedule 4 of the Children (Scotland) Act 1995
299 The Social Work (Scotland) Act 1968, s2(1). Later repealed by Local Government (Scotland) Act 1994, Sch 14
300 That is, services to the courts and the supervision of persons who are subject to statutory after-care and parole. Probation and children's committees were thus abolished
301 The Social Work (Scotland) Act 1968, s2(2). The Acts referred to include Part IV of the Children and Young Persons (Scotland) Act 1937, the Nurseries and Child-Minders Regulation Act 1948, and latterly the Children Act 1975 (amendment made under Schedule 3 of the Children Act 1975)
302 The Social Work (Scotland) Act 1968, s3(1)
303 SW(S)A 1968, s 3 substituted by Local Government (Scotland) Act 1994, s 45
304 The Social Work (Scotland) Act 1968, s3(2); Qualifications of Directors of Social Work (Scotland) Regulations 1978, SI 1978/1284. See now the Qualifications of Chief Social Work Officers (Scotland) Regulations 1996, SI 1996/515
305 "[A]nd Part II of the Children (Scotland) Act 1995" inserted by Schedule 4 of the Children (Scotland) Act 1995
306 The Social Work (Scotland) Act 1968, s5(1)
307 ibid, s5(2). Amended by Schedule 3 of the Children Act 1975: "For section 5(2) there is substituted - (2) The Secretary of State may make regulations in relation to - (a) the performance of the functions assigned to local authorities by this Act; (b) the activities of voluntary organisations in so far as those activities are concerned with the like purposes; (c) the performance of the functions referred to social work committees under section 2(2)(b) to (e) of this Act; (d) the performance of the functions transferred to local authorities by section 1(4)(a) of this Act". Such regulations could, as stated in s5(3) of the 1968 Act (later amended by Schedule 4 of the Children (Scotland) Act 1995), make provision for the boarding out of persons by local authorities and voluntary organisations
308 The Social Work (Scotland) Act 1968, s7(1)
309 The Children (Scotland) Act 1995, Schedule 5
310 The Social Work (Scotland) Act 1968, s15(1). Repealed by the Children (Scotland) Act 1995, Schedule 5
311 ibid s15(2). Repealed by the Children (Scotland) Act 1995, Schedule 5
312 ibid s15(3). Amendments made by the Children Act 1975, s73. Repealed by the Children (Scotland) Act 1995, Schedule 5
313 ibid s16(1). Repealed by the Children (Scotland) Act 1995, Schedule 5
314 Namely that the parents of the child are dead, he has no guardian, or that the parent or guardian: (a) has abandoned the child; or (b) suffers from some permanent disability rendering him incapable of caring for the child; or (c)...suffers from a mental disorder...which renders him unfit to have the care of the child; or (d) is of such habits or mode of life as to be unfit to have the care of the child; or (e) has so persistently failed without reasonable cause to discharge the obligations of a parent or guardian as to be unfit to have the care of the child: see The Social Work (Scotland) Act 1968, s16(1) and (2) (inserted by The Children Act 1975, s74). Repealed by Schedule 5 of the Children (Scotland) Act 1995
315 The Social Work (Scotland) Act 1968, s16 (4) (inserted by the Children Act 1975, s74). Repealed by Schedule 5 of the Children (Scotland) Act 1995
316 The Social Work (Scotland) Act 1968, s16A (1) (inserted by the Children Act 1975, s75). Repealed by Schedule 5 of the Children (Scotland) Act 1995
317 The Social Work (Scotland) Act 1968, s20 (1) (later amended by s79 and 80 of The Children Act 1975; and The Health and Social Services and Social Security Adjudications Act 1983, Schedule 2, paragraph 5; Repealed by Schedule 5 of the Children (Scotland) Act 1995)
318 The Social Work (Scotland) Act 1968, s20 (1) (inserted by s79 of The Children Act 1975). Repealed by Schedule 5 of the Children (Scotland) Act 1995
319 The Social Work (Scotland) Act 1968, s20A (1) (inserted by The Children Act 1975). Repealed by Schedule 5 of the Children (Scotland) Act 1995
320 The Social Work (Scotland) Act 1968, s26 (1)
321 Part III ceased to have effect under Schedule 4 of the Children (Scotland) Act 1995, with the exception of subsections (1) and (3) of section 31 and the amendments provided for by the said subsection (3) and contained in Schedule 2 to that Act
322 The Social Work (Scotland) Act 1968, ss33 and 34. Schedule 3 to the 1968 Act gives details of the appointment, recruitment and training of panel members
323 So, for example, with the ending of juvenile courts as provided for by the 1968 Act a number of changes were required in Part IV of the 1937 Act. These changes are set out in Schedules 2, 8 and 9 to the Act of 1968. The revised provisions of the 1937 Act continued to apply to the few children who are brought before the courts.
324 Defined in s32 of the 1968 Act, as amended by Schedule 3 to the Children Act 1975. Examples include: the child is falling into bad associations or is exposed to moral danger, the lack of care is likely to cause him unnecessary suffering, or any Schedule 1 offences contained in the 1937 Act (and latterly the Criminal Procedure Act 1975) have been committed against the child.
325 The Social Work (Scotland) Act 1968, s37. Amended by The Children Act 1975, s83. Such a place was defined in the Act "as any residential or other establishment provided by a local authority, a police station, or any hospital, surgery or other suitable place": s94 (1). This definition ceased to have effect under Schedule 4 of the Children (Scotland) Act 1994
326 Or any offence under s21(1) of the 1937 Act. Schedule 1 of the 1937 Act was later replaced by Schedule 9 of the Criminal Procedure (Scotland) Act 1975
327 The Social Work (Scotland) Act 1968, s37 (1A) (as inserted by The Children Act 1975, s83)
328 General note to section 83 of The Children Act 1975, relating to the newly inserted s37 (1A) of the Social Work (Scotland) Act 1968
329 The Social Work (Scotland) Act 1968, s94(1). Amended by The Children (Scotland) Act 1995, Sch 4
330 Defined as "an establishment managed by a local authority, voluntary organisation or any other person, which provides non-residential accommodation for the purposes of this Act, whether for reward or not": The Social Work (Scotland) Act 1968, s94(1)
331 The Social Work (Scotland) Act 1968, s59(1). Later amended by the Regulation of Care (Scotland) Act 2001, s72
332 ibid, s59(2)
333 ibid, s22
334 See the general note to s59 of the Social Work (Scotland) Act 1968
335 Amended by the National Health Service and Community Care Act 1990, s66(1), Sch 9, para 10(7); the Children (Scotland) Act 1995, s105(4), Sch 4, para 15(15);the Regulation of Care (Scotland) Act 2001, s72; and the Mental Health (Care and Treatment) (Scotland) Act 2003, ss25(4), 331(1), Sch 4, para 6
336 Section 8(4)
337 These secure units were required for young people where physical and structural controls were necessary to prevent further deterioration of the young person's behaviour. Specific powers were given to the Secretary of State to make grants to local authorities to ensure that this kind of accommodation was available: s59A of the Social Work (Scotland) Act 1968, added by the Children Act 1975, s72
338 The Social Work (Scotland) Act 1968, s60 (1). Section 60 was amended by the National Health Service (Scotland) Act 1978, s109, Sch 16, para 29, and the Health and Social Services and Social Security Adjudications Act 1983, s8(3). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
339 ibid s60(3)
340 ibid s61. Amended by section 1 of the Registered Establishments (Scotland) Act 1987, and by section 34 of the Children (Scotland) Act 1995. Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
341 ibid s62(3). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
342 The Social Work (Scotland) Act 1968, Schedule 7, paragraph 1
343 Namely that it "does not include any establishment controlled or managed by a Government department or by a local authority or, subject to sections 61A and 63B below, require to be registered, or in respect of which a person is required to be registered, with a Government department or a local authority under any other enactment": The Social Work (Scotland) Act 1968, s61(1) and (1A) as inserted by The Registered Establishments (Scotland) Act 1987, s1. Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
344 The Social Work (Scotland) Act 1968, s61A(1) as inserted by The Registered Establishments (Scotland) Act 1987, s2(1). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4. Further, in the definition of "school" contained in s135 (1) of the Education (Scotland) Act, the words "not includ[ing] an establishment or residential establishment within the meaning of the Social Work (Scotland) Act 1968" were omitted: s2(2)
345 ibid, s61(1) as amended by the Registered Establishments (Scotland) Act 1987, s1. Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
346 Adding to the definition contained in footnote 327 above, "but an establishment is not excluded for those purposes by paragraph (a) above by reason only of its being registrable by the Registrar of Independent Schools in Scotland;": The Social Work (Scotland) Act 1968, s61(1A), as amended by The Children (Scotland) Act 1995, s34(2)(b). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
347 The Social Work (Scotland) Act 1968, s61A, as inserted by The Children (Scotland) Act 1995, s34(3). See also s62A, as inserted by s34(4) of the 1995 Act. Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
348 The Social Work (Scotland) Act 1968, s67
349 The Social Work (Scotland) Act 1968, s67(1), as substituted by the Children (Scotland) Act 1995, s34(6). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
350 The Social Work (Scotland) Act 1968, s67(2), as substituted by the Children (Scotland) Act 1995, s34(6). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4. The relevant provisions as mentioned above are ss7 and 8 of the Mental Health (Scotland) Act 1984 and Part II of the Children (Scotland) Act 1995.
351 The Social Work (Scotland) Act 1968, s68(1). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch 4
352 The Social Work (Scotland) Act 1968, s1(5). Section 1 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), s108(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)
353 SI 1961/2243
354 Information taken from "Approved Schools in Scotland: Social Work, Scotland Vote", Memorandum by the Scottish Education Department (Circulated with Agenda for 18/12/70). The Social Work (Scotland) Act 1968, Sch 7, paragraphs 1-4 deal with the transitional provisions for approved schools
355 ibid
356 SI 1959/834. Revoked by the Social Work (Residential Establishments-Child Care) (Scotland) Regulations 1987
357 Under s5(2) and 60(1) of the Social Work (Scotland) Act 1968, as amended by the National Health Service (Scotland) Act 1978, s109, Sch 16, para 29, and the Health and Social Services and Social Security Adjudications Act 1983, s8(3). Eventually repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
358 1987/2233. In force from the 1st 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)
359 As determined by paragraph 3 of the Regulations (1987/2233)
360 As amended by section 1 of the Registered Establishments (Scotland) Act 1987
361 Inserted by section 2 of the Registered Establishments (Scotland) Act 1987
362 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)
363 ibid paragraph 4
364 ibid paragraph 7. Indeed, the managers could also specify the persons to have charge of the establishment in the absence of the person in charge
365 Meaning "the person in charge of a residential establishment who is responsible to the managers of the residential establishment": ibid paragraph 2(1)
366 ibid paragraph 5
367 ibid Schedule 2
368 ibid paragraph 5(2)
369 ibid paragraph 5(2)(a)
370 ibid paragraph 5(2)(b)
371 ibid paragraph 5(3)
372 ibid paragraph 5(4) and (5)
373 ibid paragraphs 8-15
374 ibid paragraph 10(1)
375 ibid paragraph 10(2). Corporal punishment was for this purpose to have the same meaning as in section 48A of the Education (Scotland) Act 1980 (as inserted by the Education (No.2) Act 1986, section 48)
376 The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 (1987/2233), paragraph 11(1)
377 ibid paragraph 12
378 ibid paragraph 13 and 30
379 The Social Work (Scotland) Act 1968, s67. See above
380 ibid s62(3)
381 And in doing so shall have regard to the statement of functions and objectives: The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 (1987/2233), paragraph 16(a)
382 ibid paragraph 14
383 ibid paragraph 15
384 ibid Part III
385 ibid. See paragraph 17(3) for the relevant application
386 Again where the child would normally reside there for the duration of the placement. Ibid paragraph 17(1) and 18
387 Especially the particulars set out in Schedule 1
388 The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 (1987/2233), paragraph 18
389 ibid
390 ibid paragraph 19(1)
391 ibid paragraph 22(1)(a)
392 ibid paragraph 22(1)(b) and (c)
393 ibid paragraph 22(2) and (3)
394 ibid paragraph 22(2)(b) and (3)(c)
395 ibid paragraph 22(2)(a)
396 ibid paragraph 22(3)(a)
397 Within the meaning of section 31 of the Education (Scotland) Act 1980: ibid paragraph 22(3)(b)
398 ibid paragraph 22(1)(d): this was decided with regard to section 20 of the 1968 Act and the code of practice issued by the Secretary of State under section 17E of the 1968 Act (as inserted by the Health and Social Services and Social Security Adjudications Act 1983, section 7(2))
399 ibid paragraph 29(a)
400 In accordance with the code of practice issued by the Secretary of State under section 17E of the 1968 Act (as inserted by the Health and Social Services and Social Security Adjudications Act 1983, section 7(2))
401 The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 (1987/2233), paragraph 29(b) and (c)
402 ibid paragraph 23
403 ibid paragraph 23(a)
404 ibid paragraph 23(b)
405 ibid paragraph 24
406 For example, children's homes and approved schools (still in operation) were subject to the 1959 Regulations and 1961 Rules respectively until revoked by The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 (1987/2233)
407 The Secure Accommodation (Scotland) Regulations 1983 ( SI 1983/1912) paragraph 2(1)
408 2243/1961 paragraphs 33 and 34
409 Section 8 inserted the new sections 58A to 58G into the 1968 Act
410 SI 1983/1912. Paragraph 19 revoked rules 33 and 34 of the Approved Schools (Scotland) Rules 1961
411 Having the same meaning applied to it as s94(1) of the 1968 Act: SI 1983/1912 paragraph 2(1)
412 ibid paragraph 3
413 ibid paragraph 4
414 ibid paragraphs 5-15
415 ibid paragraph 16(1)
416 ibid paragraph 16(2)
417 SI 1988/841
418 The definition of which was added to the 1983 Regulations by the 1987 Amendment Regulations, 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 providing secure accommodation; (b) in the case of a local authority, those officers exercising powers standing referred to the Social Work Committee under section 2(2) of the 1968 Act or subject to an arrangement under section 161(3) of, and Schedule 20 to, the Local Government (Scotland) Act 1973 for the management of the residential establishment providing secure accommodation": SI 1988/841, paragraph 3
419 Now defined as "the person in charge of a residential establishment providing secure accommodation who is responsible to the managers of that establishment": ibid
420 ibid, paragraph 4
421 ibid paragraph 5. The director of social work, in following the prescribed procedures, now being required to satisfy himself as to the matters set out at regulation 18(b) and (c) of the 1987 Regulations
422 ibid paragraph 6. That is, in accordance with the matters set out at regulation 18(b) and (c) of the 1987 Regulations
423 A similar requirement was added by the amendment made to paragraph 15 of the 1983 Regulations dealing with a number of situations where a child was detained in a place of safety under a warrant issued by a hearing or a sheriff not authorising the use of secure accommodation under section 58E of the 1968 Act: SI 1988/841, paragraph 10
424 ibid paragraph 7 (inserting a new paragraph 9A into the 1983 Regulations)
425 ibid paragraph 8 (inserting a new paragraph 12 into the 1983 Regulations)
426 ibid (inserting a new paragraph 12A into the 1983 Regulations)
427 ibid paragraph 12
428 ibid paragraph 11 (amending paragraph 16 of the 1983 Regulations)
429 Section 413(1), as substituted by section 59(1) of the Criminal Justice (Scotland) Act 1987
430 SI 1988/294
431 Defined as "accommodation provided in a residential establishment for the purpose of restricting the liberty of children": SI 1988/294, paragraph 2(1)
432 Namely "(a) he has a history of absconding, and-(i) is likely to abscond unless he is kept in secure accommodation; and (ii) if he absconds, it is likely that his physical, mental or moral welfare will be at risk; or (b) he is likely to injure himself or other persons unless he is kept in secure accommodation; and in either case it is in the child's best interests that he be kept in secure accommodation": ibid paragraph 4(1)
433 ibid paragraph 4(2)
434 ibid paragraph 5(1)(a)
435 ibid paragraph 5(1)(b)
436 ibid
437 ibid paragraph 5(2)
438 Defined under paragraph 2 of these Regulations, but soon amended by The Residential Care Order (Secure Accommodation) (Scotland) Amendment Regulations 1988 (S.I. 1988/1092) paragraph 3, to mean "(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 providing secure accommodation; (b) in the case of a local authority, those officers exercising powers standing referred to the Social Work Committee under section 2(2) of the Social Work (Scotland) Act 1968, or subject to an arrangement under section 161(3) of, and Schedule 20 to, the Local Government (Scotland) Act 1973, for the management of the residential establishment providing secure accommodation;"
439 SI 1988/294, paragraph 6
440 ibid paragraph 7(1)
441 ibid paragraph 7(2)
442 c. 36
443 The Mental Health (Scotland) Act 1984, c. 36, s 1(1). "Mental disorder" was defined in s1(2) as "mental illness or mental handicap however caused or manifested"
444 ibid s3
445 ibid s3(2)(b), (5) and (6)
446 ibid s3(2)(d)
447 ibid s3(2)(e) and (f)
448 ibid s7, derived from ss7 - 12 of the Mental Health (Scotland) Act 1960 and ss6, 7(1) of the Mental Health (Amendment) (Scotland) Act 1983
449 The Mental Health (Scotland) Act 1984, s8
450 ibid s10 - parental rights vesting in a local authority as defined by that section
451 Within the meaning of the Education (Scotland) Act 1980. The Mental Health (Scotland) Act 1984, s11(1)
452 ibid ss12, 14
453 ibid s105(1)
454 That is, a woman or girl "suffering from a state of arrested or incomplete development of mind, which includes significant impairment of intelligence and social functioning". The Mental Health (Scotland) Act 1984, ss106, 107
455 ibid s117
456 Taken primarily from the Stair Memorial Encyclopaedia The Laws of Scotland: Child and Family Law, para 292 onwards
457 ibid para 292
458 ibid. The phrase "systems abuse" has been coined to describe the abuse or neglect that children suffer at the hands of organisations dealing with their education and care. See J Cashmore 'Systems Abuse' in M John A Charge Against Society: The Child's Right to Protection (1997)
459 The Pindown Experience and the Protection of Children: the Report of the Staffordshire Child Care Inquiry (1991)
460 Another Kind of Home: A Review of Residential Child Care (1992) (the Skinner Report)
461 Mostly concerning local authorities' policies and procedures: Stair Memorial Encyclopaedia The Laws of Scotland: Child and Family Law, para 292 onwards
462 Report of the Inquiry into Child Care Policies in Fife (the Kearney Report) ( HC Papers (1992-93) no.191) dealing with Fife Regional Council's policy to place children, where possible, on home supervision, seemingly at the expense of denying residential placements to those children who might benefit from them, and therefore undermining the authority of the children's hearing system. The Inquiry concluded that the implementation of the region's policy was characterised by over-simplification of issues affecting children and their families and that 'this approach was dangerous and inimical to good social work practice'
463 Sloan v B 1991 SLT 530; L, Petrs 1993 SCLR 693, 1993 SLT 1310 and 1342
464 Report of the Inquiry into the Removal of Children from Orkney in February 1991 (The Clyde Report) ( HC Papers 1992-93) no.195) which concentrated on the legal provisions for emergency protection of children and the decision-making processes of the various agencies (specific to the case) involved in child protection.
465 Stair Memorial Encyclopaedia The Laws of Scotland: Child and Family Law, para 293
466 The United Kingdom had ratified the United Nations Convention on the Rights of the Child on 16 December 1991 and a challenge to the children's hearing system had been made under the European Convention on Human Rights in McMichael v United Kingdom (1995) A 307; 20 EHRR 205: ibid
467 See E Kay M Tisdall The Children (Scotland) Act 1995: Developing Policy and Law for Scotland's Children (1997)
468 For example, local authorities were placed under a duty to promote the upbringing of children by their families, and involve parents in decision-making etc: The Children (Scotland) Act 1995, s22(1)(b) and s17(4)
469 'Any offence involving the use of lewd, indecent or libidinous practice or behaviour towards a child under the age of 17': See the Children (Scotland) Act 1995, s52(2)(d). See also the Criminal Law (Consolidation) (Scotland) Act 1995, Sch 1
470 Criminal Law (Consolidation) (Scotland) Act 1995, s1.
471 Ibid, ibid s3: although this was geared towards individuals living at home with children, see below for residential home provisions
472 The Children (Scotland) Act 1995, ss16-17
473 Defined as a person under the age of 16 or 18 depending on the relevant provisions relied on: see The Children (Scotland) Act 1995, s1(2)
474 ibid s1(a)
475 ibid s1(b)
476 ibid s1(c)
477 ibid s2(1)(a)
478 ibid s2(1)(b)
479 ibid s2(1)(c)
480 ibid s1(4) and 2(5)
481 ibid s5(1), but "nothing in this section shall apply to a person in so far as he has care or control of a child in a school ("school" having the meaning given by section 135(1) of the [1980 c. 44.] Education (Scotland) Act 1980)": ibid s5(2)
482 ibid s6
483 ibid s11(7)(a)
484 ibid s16(1)
485 "Look[ing] after" referring to a child for whom a local authority are providing accommodation for under s25 of the Act, who is subject to a supervision requirement, or who is subject to a warrant or order under the Act: The Children (Scotland) Act 1995, s17(6)
486 ibid s17(1)(c)
487 ibid s17(2)
488 ibid s17(3)
489 ibid s17(4)
490 ibid s22(1). Being "in need" defined as being in need of care and attention because "he [the child] is unlikely to maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless they are provided for him...his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided...he is disabled; or...he is affected adversely by the disability of any other person in his family...": The Children (Scotland) Act 1995, s93(4)
491 ibid s19(1)
492 ibid s19(3)
493 Defined as "a body (other than a public or local authority) whose activities are not carried on for profit" - the Children (Scotland) Act 1995, s93 (1)
494 ibid s20
495 ibid s25(1)
496 ibid s25(2). Furthermore a local authority could provide accommodation for any person within their area between the ages of 18 and 21, if they considered it necessary to promote their welfare: The Children (Scotland) Act 1995, s25(3)
497 ibid s25(5)
498 ibid s25(6)(a), but not applying if any child over 16 agreed to be provided with such accommodation or where a residence order had been made but it was agreed that the child should be looked after in accommodation provided by the local authority: The Children (Scotland) Act 1995, s25(7)
499 ibid, s25(6)(b), although not applying where accommodation has been provided for a continuous period of at least six months unless the person removing the child had given the local authority for the time being making such provision at least fourteen days' notice in writing of his intention to remove the child: The Children (Scotland) Act 1995, s25(7)
500 ibid s26(1)(a)
501 ibid s26(1)(b). Defined in s93(1) as an establishment (whether managed by a local authority, by a voluntary organisation or by any other person) which provides residential accommodation for children for the purposes of the Children (Scotland) Act 1995 or the Social Work (Scotland) Act 1968
502 ibid s26(1)(c)
503 ibid s31(1)
504 ibid s32
505 "relevant person" in relation to a child meaning - (a) any parent enjoying parental responsibilities or parental rights under Part I of the 1995 Act; (b) any person in whom parental responsibilities or rights were vested by, under or by virtue of the 1995 Act; and (c) any person appearing to be a person who ordinarily (and other than by reason only of his employment) had charge of, or control over, the child
506 ibid s52. "Schedule 1" to the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 (offences against children to which special provisions apply)
507 ibid s53. "The Principal Reporter" means the Principal Reporter appointed under section 127 of the Act of 1994 or any officer of the Scottish Children's Reporter Administration to whom there is delegated, under section 131(1) of that Act, any function of the Principal Reporter under the 1995 Act: The Children (Scotland) Act, s93(1)
508 ibid s55
509 Meaning a residential or other establishment provided by a local authority, a community home within the meaning of s53 of the Children Act 1989, a police station, or a hospital surgery or other suitable place, the occupier of which is willing temporarily to receive the child: The Children (Scotland) Act 1995, s93(1)
510 ibid s57
511 The Children (Scotland) Act 1995, s38 (1)
512 Applying more extensively now "(a) to any residential or other establishment the whole or a substantial part of whose functions is to provide persons with such personal care or support, whether or not combined with board and whether for reward or not, as may be required for the purposes of this Act [that is, the 1968 Act] or of the Children (Scotland) Act 1995; (b) in the case of a residential establishment which is a grant- aided or independent school (as respectively defined in section 135(1) of the [1980 c. 44.] Education (Scotland) Act 1980), to that establishment if any part of its functions are as described in paragraph (a) above" The Children (Scotland) Act 1995, s34 (amending s61 of the 1968 Act). Repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
513 Inserting a new s61A into the Social Work (Scotland) Act 1968. Certificates of registration as regards grant-aided or independent schools were dealt with in the newly inserted s62A. Both were repealed by the Regulation of Care (Scotland) Act 2001, s80(1), Sch4
514 The Social Work (Scotland) Act s67(1), as inserted by the Children (Scotland) Act 1995, s34
515 ibid s67(2)(a) as inserted by the Children (Scotland) Act 1995, s34
516 ibid s67(2)(b)
517 The Social Work (Scotland) Act 1968, s6B as inserted by the Children (Scotland) Act 1995 s100
518 The Social Work (Scotland) Act 1968 s6A, as amended by the Children (Scotland) Act 1995, Sch 4, s15
519 That is, The Education (Scotland) Act 1946
520 Chiefly governed by the Education (Scotland) Act 1980
521 "School" was defined consistently as excluding approved schools and latterly establishments or residential establishments within the meaning of the Social Work (Scotland) Act 1968. "Educational Establishments" could include residential institutions conducted under an endowment scheme. See, for example, the Education (Scotland) Act 1946 s143(1), and the Education (Scotland) Act 1980 s135(1)
522 The Education (Scotland) Act 1980, s125A, as inserted by the Children (Scotland) Act 1995, s35
523 The Children (Scotland) Act 1995, s36
524 The Regulation of Care (Scotland) Act 2001, s7(1)
525 ibid s2(3)
526 ibid s25(3)
527 National Care Standards for Care Homes for Children and Young People (Scottish Executive, 2002), available via www.scotland.gov.uk
528 S.I. 1996/3256. Superseded themselves by the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 No 114
529 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
530 ibid, paragraph 4
531 ibid paragraph 5(1) and the Schedule to the Regulations
532 ibid paragraph 5(2) and (3)
533 ibid paragraph 9
534 ibid paragraph 10. Generally, to be determined by the managers in accordance with their statement of functions and objectives, specifically excluding corporal punishment having the same meaning as in s48A of the Education (Scotland) Act 1980
535 S.I. 1996/3256, paragraph 11
536 ibid paragraphs 12 and 13
537 ibid paragraph 14
538 ibid paragraph 15
539 ibid paragraph 16
540 ibid paragraph 8
541 S.I. 1996/3262
542 S.I. 1996/3262 paragraph 3
543 ibid paragraph 4 and 5
544 ibid paragraph 6(1) and Schedule 2 Part I
545 ibid paragraph 6(2) and Schedule 2 Part II
546 ibid paragraph 6(4) and (5)
547 Not required if the placement was only intended to last not more than 28 days, unless the child had significant medical or educational needs or the placement did in fact last for more than 28 days: S.I. 1996/3262 paragraph 7(2)
548 ibid paragraph 7(1)(b) if the child was of compulsory school age within the meaning of section 31 of the Education (Scotland) Act 1980
549 ibid paragraph 7(1)(c)
550 ibid paragraph 7(1)(d) except where they have already received a written copy of the care plan, or where the local authority consider it against the interests of the child, or where a supervision requirement, order or warrant prevents disclosure
551 S.I. 1996/3262 paragraph 7(1)(a)
552 ibid paragraphs 8 and 9, namely six weeks within the date of first placement, three months within the date of the first review and thereafter periods of six months within the date of the previous review
553 S.I. 1996/3262 paragraph 10
554 ibid paragraph 11
555 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)
556 ibid paragraph 12(3)
557 ibid paragraph 13(1) and (2)
558 ibid paragraph 18
559 ibid paragraph 19. The regulations also made provision for a looked after child to be cared for by his own parents in certain circumstances,
and set out minimum requirements for planned short term placements: S.I. 1996/3262 paragraphs 16 and 17
560 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)
561 S.I. 1996/3255
562 ibid paragraph 3
563 ibid paragraph 4
564 ibid paragraph 16
565 ibid paragraphs 5, 8 and 9
566 ibid paragraphs 13-15
567 See: Modernising Social Work Services: A Consultation Paper on Workforce Regulation and Education, published in November 1998; Aiming for Excellence: Modernising Social Work Services in Scotland (Cm 4288), published in March 1999; Regulating Care and the Social Services Workforce: A Consultation Paper, published in December 1999; Draft National Care Standards: First Tranche, published in June 2000; The Way Forward For Care: a policy position paper, published in July 2000; Draft National Care Standards: Second Tranche, published in April 2001; The Future for Care Homes in Scotland: A Consultation Paper, published in April 2001
568 www.carecommission.com
569 Asp 8
570 The Regulation of Care (Scotland) Act 2001, s1(1)
571 ibid s1(1)(b)
572 ibid s1(2). Subsection (3) gives effect to Schedule 1 which sets out the constitutional arrangements and general provisions for the establishment and operation of the Commission
573 General Note to s1 of the Regulation of Care (Scotland) Act 2001, asp 8
574 The Regulation of Care (Scotland) Act 2001, s2
575 ibid s72
576 To be determined by the Commission, with guidance from Scottish Ministers
577 The Regulation of Care (Scotland) Act 2001, s2(4)
578 ibid s2(9)
579 ibid s4(1) and (2)
580 ibid s6(1)
581 http://www.scotland.gov.uk/Topics/Health/care/17652/9328
582 The Regulation of Care (Scotland) Act 2001 s5
583 ibid s7(1)
584 ibid s7(2)
585 ibid s7(3). This would mean, for example, that someone who provides a care home and a separate home care service would have to make a separate application for each. But someone who provides a care home which includes some day care provision might only need to apply once
586 The Regulation of Care (Scotland) Act 2001 s7(4) and (5). This is to cover situations whereby an organisation or business operates a number of care services but effectively manages them each individually on a day to day basis
587 The Regulation of Care (Scotland) Act 2001 ibid s10
588 ibid s12
589 ibid s21(1)
590 ibid s21(2)
591 ibid s12
592 ibid s25(13)
593 ibid s25(2). However, inspectors are not authorised to enter the home of a person receiving a support service in their own home
594 ibid s25(3)
595 ibid s25(4)
596 ibid s25(5)
597 ibid s25(6), (7) and (8)
598 ibid
599 ibid s25(9). Subsection (10) makes the same provision in respect of dentists. Subsection (11) defines an appropriate examination and consent for the purposes of these sections
600 ibid s27(1)
601 ibid s27(5) and (7)
602 ibid s26(1)
603 ibid s26(2)
604 General note to s25 of the Regulation of Care (Scotland) Act 2001
605 c.42 s6
606 Particularly Art 8 and Protocol 1, Article 1
607 General note to s25 of the Regulation of Care (Scotland) Act 2001
608 ibid s29(1)
609 ibid s29(2)
610 ibid s29(6)
611 ibid s29(4) and (5)
612 ibid s29(7)
613 SI 2002/114
614 ibid paragraphs 4 - 10, and 19
615 ibid paragraphs 2 - 5
616 See the work of Jackie McCrae, Children looked after by local authorities: the legal framework, published by SWIA (September 2006)
617 Indeed, the 2001 Act makes some minor amendments and repeals to both Acts outlined in their respective sections above
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