« Previous | Contents | Next »
Listen
CHAPTER TWO HISTORICAL BACKGROUND AND POLICY CONTEXT
2.1 This review was carried out in a changing context of developing policy on children and families' services. Parenting Orders were introduced as part of a raft of measures under the Antisocial Behaviour etc. (Scotland) Act 2004. Intervention with a family at risk of being considered for an Order, however, must be considered within the wider framework of UNCRC (1989) and the subsequent Children (Scotland) Act 1995 which places responsibilities on local authorities and children's hearings to promote the welfare of children. In 2005, the Scottish Executive consulted on its proposals for changes to children's services including the Children's Hearings System (2005) as part of the report Getting it Right for Every Child.
2.2 The policy vision is to raise all children to be confident, effective, successful and responsible, which requires children to be safe, nurtured, healthy, achieving, active, respected, responsible and included. In practical terms, and of relevance to our review, the consultation called for, inter alia: a concentration on preventative educative programmes; agencies to take full responsibility for children in their focus and not simply pass them on to other agencies; and more intensive structured programmes for parents. The consultation proposals were subsequently published in a Draft Children's Services (Scotland) Bill Consultation in 2006 by the Scottish Executive.
2.3 In this section, we explore some of the legislative and policy background to the child care system in Scotland to understand better the trajectory of governmental and professional thinking behind the introduction of Parenting Orders legislation and also to set the scene for an exploration of why that legislation has not been utilised by those with professional responsibility for the best interests of children in Scotland.
2.4 The Children Act 1908 was, according to Hothersall (2006, p. 11), considered to be the first children's charter as it drew attention to children's rights. However, it was not until the Children and Young Persons (Scotland) Act 1937 that courts were required to have regard to the welfare of the child rather than simply the need to punish. Following the death in foster care in England of Denis O'Neill, the Children Act 1948 attempted to tighten up the care of children within the public care system and the suggestion was made during the Parliamentary Committee stage of the Bill to place a duty on local authorities to support the parents of children at risk of being neglected. In the end, local authorities were directed to 'keep in mind' the need to do all they could to protect children in their own homes (Hothersall, 2006, p. 14).
2.5 The McBoyle Committee, initiated in 1961 by the Scottish Advisory Council in Child Care to consider measures to combat 'the suffering of children through neglect in their own homes', informed the Children and Young Persons Act 1963 which finally placed a duty on local authorities to carry out preventative work with children and families. The Kilbrandon Committee, established in 1961, was at the same time examining methods for reducing and preventing juvenile delinquency and took the view that the distinction between children in need of care and protection and those involved in offending was ' very often of little practical significance' (para. 13) and that the role of the State was "…wherever practicable to strengthen, support and supplement them [parents] in situations in which for whatever reason they have been weakened or have failed in their effect" (para. 35).
2.6 The Kilbrandon proposals were incorporated in the Social Work (Scotland) Act 1968 which introduced Children's Hearings and placed a duty on local authorities to promote social welfare (s12). Guidance at the time stressed that
the duty is not merely that of reacting to known needs. It implies that the local authority should seek out existing needs, which have not been brought to the authorities' attention, identify incipient needs and try to influence social and environmental developments in such ways as will not only prevent the creation of social difficulties , but will positively lead to the creation of good social conditions (Circular No SW6, December 1968).
2.7 The model of decision making proposed emphasised consensus and working in partnership with parents with the expectation ' that in many cases it would be possible to enlist the co-operation of parents from the outset' (Lockyer and Stone, 1998, p. 20). However, the Kilbrandon committee recognised that co-operation might not always be forthcoming and could lead to conclusions that 'action needs to be directed as much (if not more so) against the parents as the child' (para. 17) even to the point of ' placing of parents directly under compulsory measures of supervision in consequence' (para. 18( c)) … ' aimed at bringing home to parents their responsibilities' (para. 18). This thinking is very reflective of current debates leading to the introduction of Parenting Orders.
2.8 The Kilbrandon committee concluded that the notion that
the co-operation of parents as adult persons can be enlisted by compulsive sanctions, is fundamentally misconceived and unlikely to lead to any practical and beneficial result (para. 35).
It argued that
under the guise of promoting the welfare of the child, such proposals appear to be in risk of ending in the application of coercive measures against the parents on the basis of a somewhat vaguely-defined aim of improving the quality of family life… (para. 20).
2.9 The Kilbrandon approach placed emphasis on voluntary early intervention and compulsory measures on the child (rather than parent) only as a last resort. It could be argued that, given the focus on the best interests of the child and the often pressing need to protect children from their parents or carers, one conclusion from this philosophy was that where, in extremis, parents or other carers either could not, or would not, care adequately for their children, consideration would be given to removing the children from the parents' nominal care.
2.10 The current context for universal prevention and early social intervention measures in family life lies within the United National Convention on the Rights of the Child ( UNCRC, 1989). UNCRC principles reflect international recognition of the interconnected factors which expose children to risk and result in them coming to the attention of authorities as in need of protection or on account of their offending behaviour. UNCRC sets out the terms in which children and young people " by reason of… physical and mental immaturity, need special safeguards and care, including appropriate legal protection". UK jurisdictions have entered a number of reservations to UNCRC's guiding principles, nonetheless international law requires that none of these reservations compromise the spirit or principles of the Convention 1.
2.11 Benchmark practice standards have been set by international agreements and regulations including the European Convention on Human Rights ( ECHR), UNCRC, and its associated international instruments and guidance [e.g. Minima Rules for the Administration of Juvenile Justice (Beijing Rules), UNICEF, 1985; Directing Principles for the Prevention of Juvenile Delinquency (Riyadh Guidelines), 1990; Minima Rules for the Prevention of Minors Deprived of Liberty (Havana Rules), 1990; Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990; Administration of Juvenile Justice: (the Vienna Guidelines), 1997] provide directing principles for welfare and justice for children and young people in practice.
2.12 Article 3 of UNCRC requires that
in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
This is referred to as the 'paramountcy' principle and stresses the importance of involving children and parents in decision making. Article 8 of ECHR provides families with the right to avoid unnecessary state involvement.
2.13 The Children (Scotland) Act 1995 was a direct result of the requirements of UNCRC to incorporate key principles - the 'best interests' or paramountcy principle, the no order (minimum intervention) principle and the right to be heard and participate in decision making - and enshrine them in legislation. The 1995 Act attempts to tackle the tensions between care and control by specifying parental responsibilities as: to safeguard and promote the child's health, development and welfare; to provide direction and guidance, in a manner appropriate to the stage of development of the child; if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and to act as the child's legal representative (Part I, Section 1).
2.14 To support parents in these responsibilities, local authorities are required to safeguard and promote the welfare of children in need and promote the upbringing of such children by their families through the provision of a range of appropriate level of services (Part II, Section 22). Section 21 also acknowledges that there may be other "appropriate persons" who could help in the delivery of these duties and, if asked, those appropriate persons must assist. Appropriate persons may be other local authorities or health boards. Section 19 of the Act requires local authorities to publish plans setting out the children's services available and, following publication in 2001 of the Scottish Executive report For Scotland's Children, all children's service plans have to be integrated with the plans of other providers (Hothersall, 2006, p. 51).
Parenting Orders
2.15 A Parenting Order may be made by a Scottish sheriff summary court, on application from a local authority, if the court is satisfied that either the 'behaviour condition' or the 'conduct condition' is met. The 'behaviour condition' requires that the child in question has engaged in antisocial behaviour and the Order would be desirable in the interests of preventing the child from engaging in further antisocial behaviour. The 'conduct condition' requires that the child has engaged in criminal conduct and the Order would be desirable in the interests of preventing the child from engaging in further criminal behaviour.
2.16 In addition, a Parenting Order may be made by the Principal Reporter if the court is satisfied that either the behaviour or conduct conditions have been satisfied, or the court is satisfied that the 'welfare condition' has been met. Under the 'welfare condition', the Order would have to be desirable in the interests of improving the welfare of the child ( Antisocial Behaviour etc (Scotland) Act 2004, Section 102).
2.17 In its Consultation on its Draft Guidance on Parenting Orders, the Scottish Executive noted that
poor parenting can have a significant detrimental effect on a child. Children who are the subject of inadequate parenting are more likely to be placed at risk, to offend and behave in an antisocial manner (December 2004, p. 1).
2.18 Responses to the consultation indicated there was general agreement across Scotland about the importance of parenting. However, there was less universal agreement about the need to introduce compulsory Parenting Orders in Scotland. Guidance on Parenting Orders, suggests that where a parent may be being considered for a Parenting Order, the family is likely to be well known to the local authority and the Children's Hearing System (April 2005, para. 34). It stresses that Parenting Orders are not about punishing parents but are intended to assist parents change their behaviour in respect of their child, and to take responsibility (ibid. para. 9). No clear rationale, however, is presented in the guidance for the change from the Kilbrandon approach outlined above other than that
having considered the comments received, Ministers remained of the view that parenting orders would be a useful tool in improving the position of children who are not getting the support they need from their parents (ibid. para. 10).
2.19 There are a large number of ways in which concerns in Scotland about poor parenting and their impact on children can be identified and acted upon. It is not the purpose of this review to discuss these in any detail but it is relevant in the context of understanding the potential role of the Parenting Order legislation in this panoply of child protection practices and procedures. Scottish Children's Reporter Administration ( SCRA) statistics show that there were 40,941 children referred to the Hearings System on non offence grounds in 2005-2006. Of these, 17,801 were referred to Hearings because of lack of parental care; 5,107 were thought to be beyond control; and 3,004 were making bad associations or were in moral danger ( SCRA Annual Report: 2005-2006). In 2005-2006 there were 17,624 referrals to the Children's Reporter on offence grounds ( SCRA Annual Report: 2005-2006). There are, therefore, in principle, a large number of children coming to the attention of local authorities and to the Principal Reporter whose parents could fall within consideration of a Parenting Order.
Summary
2.20 Key principles enshrined in domestic law and international law are well established in Scottish child care practice. These set the context for understanding the trajectory of government and professional thinking behind the introduction of Parenting Orders and their implementation.
2.21 The principles outlined by the United Nations Convention on the Rights of the Child ( UNCRC, 1989) reflect international recognition of the interconnected factors exposing children to risk of poor outcomes. Its core principles are enshrined in The Children Act (Scotland) 1995.
2.22 The Kilbrandon Committee recommendations, incorporated in the Social Work (Scotland) Act 1968 placed an emphasis on partnership with parents, although in recognition of the difficulties of achieving cooperation, recommended a system wherein compulsory measures could be used on the child for protection. The Committee argued the use of compulsory sanctions on parents to achieve cooperation was ' fundamentally misconceived' and unlikely to succeed.
2.23 Parenting Orders were introduced as part of a raft of measures under the Antisocial Behaviour etc (Scotland) Act 2004. Draft Guidance on Parenting Orders stresses that Parenting Orders are not about punishing parents but are intended to assist parents change. Responses to the consultation on the guidance indicated there was general agreement across Scotland about the importance of parenting but less universal agreement about the need to introduce compulsory Parenting Orders.
« Previous | Contents | Next »