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5. LOOKED AFTER CHILDREN LEGISLATION AND REGULATION
5.1 There were a number of changes in legislation and regulation between 1996 and 2006, not all of which need to be described here. Two - the Children (Scotland) Act 1995, and the Regulation of Care (Scotland) Act 2001 - are particularly important. The Protection of Children (Scotland) Act 2003 is also relevant and is referred to at paragraph 16.1 in relation to the Disqualified From Working With Children List ( DWCL). The Children (Scotland) Act came fully into force on 1 April 1997, a year after the transfer of Kerelaw to Glasgow City Council. The Regulation of Care (Scotland) Act came into force a year before the eruption of allegations of abuse which ultimately led to Kerelaw's closure.
The Children ( Scotland ) Act 1995
5.2 The Children (Scotland) Act 1995 marked a significant change in legislation in respect of the care of children. It centred on the needs of children and their families and defined both parental responsibilities and rights in relation to children. It also defined the duties of public authorities in the support of children and their families, and their powers when a child's welfare required action to be taken. The Act followed a review of child care policy and law in Scotland and was informed by the findings of Inquiries into the removal of children in Orkney and child care policies in Fife.
5.3 The Act incorporated provisions conforming to the UN Convention on the Rights of the Child and was founded on the principle that each child had the right to be treated as an individual. It introduced changes in language to shape its provisions around the child. Legal terms such as "access" and "custody" were replaced with "contact" and "residence". Children were no longer "in care" but became "looked after". This terminology was introduced to reflect the commitment to working in partnership with parents.
5.4 The Act extended responsibility for looked after children from the social work department to a total local authority basis. As there was concern about the health and education of looked after children, it promoted greater inter-agency co-operation both within and beyond the local authority boundary. It also gave powers to local authorities to continue to provide advice, guidance and assistance to young people who had been looked after as children. Local authorities were also required to consult with other agencies and publish plans for the provision and development of services for children.
5.5. As noted at paragraph 5.1, the implementation of the Children (Scotland) Act took place only a year after local government reorganisation in 1996. While local authority social work services were still dealing with the upheaval of reorganisation, they therefore faced embarking on major retraining of their workforce. Among the extensive regulations and guidance related to the Act, care planning and external management arrangements would have been of particular relevance to Kerelaw.
Care planning
5.6 Local authorities are required to draw up a care plan for every looked after child to address their immediate and long-term needs. It must include details of the authority's intentions for the child, and the services which will be provided immediately and in the longer term to meet the child's requirements for care, education and health. The plan must also note how the parents are contributing to the child's day-to-day care, the contact arrangements, and how long any placement is expected to last.
5.7 In 1997 the then Scottish Office piloted 'Looking after children in Scotland' materials. These were tools for information gathering, planning, assessment, and review in respect of children looked after away from home. They were adapted from materials introduced in England, which met the requirements of the Children (Scotland) Act, to improve the longer term outcomes for looked after children. They were based on 7 dimensions key to the development of children and young people: health; education; family and social relationships; emotional and behavioural development; identity; social presentation; and self-care skills.
5.8 Glasgow City Council introduced those materials in 1997 and we found evidence of their use when we read a sample of social work fieldwork files for young people who had been at Kerelaw. They were less in evidence in the Kerelaw files themselves, where a variety of different care planning formats seem to have been used. We heard a range of views on care planning from those from whom the Inquiry took evidence. For example, we heard that care staff at Kerelaw sometimes wrote the child's care plan without any input from the fieldworker. On the other hand, we also heard that Kerelaw had introduced care plans before there was any statutory requirement to do so (see paragraphs 12.36 and 12.37).
External management provision
5.9 The Children (Scotland) Act 1995 Regulations and Guidance Volume 2 outline the main tasks of the external manager:
- monitoring the experience of children;
- ensuring that practice complies with legislation, regulations and national and local guidance;
- supervising and supporting the person in charge;
- ensuring that staff are familiar with their responsibilities and equipped through training, to perform them;
- ensuring that resources, including staffing, the building, furnishing and fittings are sufficient and suited to purpose;
- identifying the need for and instigating any necessary changes; and
- reporting on progress to the managing authority or agency.
5.10 The external manager is defined as the person who holds overall responsibility for the services provided by the establishment. The primary responsibility, in conjunction with the person in charge, is to ensure that acceptable standards are maintained. The external manager is expected to be familiar with other monitoring arrangements, such as inspection reports, and also to visit the establishment to talk with and listen to children, parents and staff. There were significant failures in the external management of Kerelaw by Glasgow City Council after 1996, and we return to these in Chapter 13.
The Regulation of Care ( Scotland) Act 2001
5.11 The Regulation of Care (Scotland) Act 2001 aimed to provide greater protection for those in need of care services. It established a system of care regulation, and created the Care Commission as an independent regulatory body. It provided for care services to be registered and inspected against a set of national standards and for enforcement action where necessary. National standards were developed to achieve consistency in the quality of care provided and received throughout Scotland, and they set out the quality of service that users had the right to expect.
5.12 Before the Act, child care services were subject to a range of different regulations. For example, private and voluntary sector residential care homes were regulated by local authorities and secure accommodation for children by SWSI. Local authority run care homes were not subject to registration at all. Kerelaw was, however, inspected by North Ayrshire Council's Registration and Inspection Unit. Under the Act, all local authority care services had to register and meet the same standards as the independent sector. Secure accommodation also became subject to regulation by the Care Commission. As noted in Chapter 11, the Care Commission began inspecting Kerelaw in 2003.
5.13 The Act established the SSSC as an independent body to regulate the social services workforce and to promote and regulate their education and training. The role of the SSSC is to enhance the protection of people who use social services and increase public confidence in the sector by raising standards of practice. The SSSC promotes high standards of conduct and can take action when service users are at risk. Registration is a major part of the drive for higher standards and will bring the workforce in line with other professional service providers.
5.14 To register, workers must satisfy the criteria for registration. This includes holding the appropriate qualifications for the job they do and being able to evidence good character. When a social service worker applies to register, he or she must agree to abide by the Code of Practice for Social Service Workers, which sets out the conduct expected of such workers and informs people who use social services, and the public at large, about the standards they may expect.
5.15 The Register of Social Service Workers in Scotland opened on 1 April 2003. The Scottish Government decides which groups of workers the SSSC will register and in what order. A formal Commencement Order is laid before the Scottish Parliament to open each part of the Register. In September 2005 it became mandatory for social workers to be registered with the SSSC. The SSSC began registering managers of residential child care services in June 2005, residential child care workers with supervisory responsibilities in October 2005, and all other residential child care workers in July 2006. All residential child care workers will be required to be registered by September 2009.
Implications of legislation for Kerelaw
5.16 The Children (Scotland) Act may be described as having three over-arching themes:
- the welfare of the child to be paramount when his or her needs are considered by Courts and Children's Hearings;
- no Court should make an order relating to a child, and no Children's Hearing should make a supervision requirement, unless the Court or Hearing considers that to do so would be better than making no order or supervision requirement at all;
- the child's views should be taken into account where major decisions are to be made about his or her future.
5.17 Despite the importance of this legislation, its implications were seldom referred to in the interviews we conducted in the course of the Inquiry. Its visibility seemed to be low, and there was little or no evidence of an impact on Kerelaw. While some of those who gave evidence did acknowledge that there was an increase in advocacy staff such as CROs and Who Cares? workers visiting children in Kerelaw over the years, this did not lead to changes in day-to-day practice.
5.18 The Regulation of Care (Scotland) Act led to the Care Commission taking over the inspection of Kerelaw from North Ayrshire Council from April 2002. An important consequence of this was that inspection would henceforth be backed up by greater enforcement powers. Those powers were put into action following the inspection of Kerelaw in August 2004, as described at paragraph 11.6.
5.19 The SSSC has now finalised the process for registering residential child care workers. Registration will aim to ensure that residential child care workers are properly trained, qualified and of good character. Minimum qualifications have been set. Qualification levels in the sector have traditionally been low and we heard from many former staff at Kerelaw that when they started at Kerelaw, they had neither qualifications nor experience in working with children. However, many did go on to gain qualifications. As we note in Chapter 10, it was clear to the Inquiry that qualifications alone were not necessarily the key to better and safer practice.
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