Chapter 2: The Regulatory Framework
"Against the background of the abuse suffered by children up to the age of 16 in residential schools and children's homes in Scotland over the period from 1950 to 1995 the Independent Expert is instructed…to present a report…with the following objectives: (1) to identify what regulatory requirements and powers were in place from time to time over that period and which provided for the provision, regulation and inspection of such schools and homes and for the welfare and protection from abuse of children resident in them…"
Identifying any legal framework over more than 50 years involves examining in detail a vast set of laws and constantly evolving rules and regulations.
The review focused on the legal requirements and powers in place for providing, regulating and inspecting residential schools and children's homes in Scotland between 1950 and 1995. In particular, the review considered the children's welfare and how they were protected from abuse.
I am pleased to acknowledge the work of my legal researcher, Roddy Hart, who researched and prepared this chapter. To the best of my knowledge, this is a unique piece of work which I hope many will find helpful.
This chapter describes key aspects of the law as it applied to children and their carers in various ways. It covers:
- primary legislation (Acts of Parliament);
- secondary legislation (the rules and regulations that implement Acts);
- aspects of the common law and European law, and some guidance 1.
The review also carefully considered some overlapping issues:
- child protection and welfare through social work, health, education and the criminal law; and
- discipline, punishment and record-keeping.
This chapter, therefore, seeks to map out the legal framework in the light of these sources and issues. The review tried to do this by considering two significant periods:
- 1950-1968 (that is, before the Social Work (Scotland) Act 1968); and
- 1968-1995 (from the 1968 Act up to, and including, the Children (Scotland) Act 1995).
The review also felt it was relevant and important to consider any developments that have shaped or influenced how the legal framework developed, before and after the period specified in our remit. Only by doing this can we consider fully how well the whole system worked.
This type of study is by definition historical, and must be viewed against the background of inevitable social change over the period we've examined.
The chapter comprises the following parts and sections:
Part one: 1950-1968
Section 1: How laws have sought to protect children and their welfare
Section 2: How laws provided for residential schools
- What was in place for residential (approved) schools?
- How were approved schools run?
- How were pupils treated in approved schools?
- Education, discipline and punishment
- Health and safety
- Inspections and record-keeping
Section 3: How the law provided for children's homes
- Local authority homes
- Voluntary homes
- How local authority and voluntary homes were managed and administered
- How pupils were treated in local authority and voluntary homes
- Education, discipline and punishment
- Health and safety
- Inspections and record-keeping
Section 4: How laws provided for other institutions
- Children and young people who were labelled "mentally defective"
- Children with disabilities
- Special schools
- Remand homes
- Other institutions
Part two: 1968-1995
Section 5: How social work principles changed from the 1960s
- The Social Work (Scotland) Act 1968
Section 6: How the law provided for residential establishments
Section 7: How residential establishments were regulated in practice
- A note on approved schools
- The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987
- Secure accommodation
- Children and young people with mental disorders
Section 8: Further developments in the 1980s and 1990s
Section 9: The Children (Scotland) Act 1995
Part three: 1995-present day
Section 10: Developments since 1995
- Children cared for in residential establishments
- Secure accommodation
- The Regulation of Care (Scotland) Act 2001
Part one: 1950-1968
Section 1: How laws have sought to protect children and their welfare
My remit required me to consider the laws and regulations specific to residential schools and children's homes between 1950 and 1995. However, it is important to first identify the basis in law of the child protection and welfare framework, and to do this we must look beyond the period specified in the remit.
The way the legal system traditionally dealt with ill-treated children who had unsuitable parents was grounded in the Poor Law, which focused on boarding out children to people who were regarded as appropriate carers 2. This approach changed in the 20th century as laws began to focus on child welfare. As a result, early recognition 3 that the law should prevent cruelty to children (for example, in laws such as the Children Act 1908 4) was continued and extended under The Children and Young Persons (Scotland) Act 1937 5. This Act laid the foundations for the modern law on child protection, and substantially increased the legal responsibilities of public authorities 6, such as local councils. From here on, we refer to it as "the 1937 Act".
The 1937 Act - and the amendments to it since 1937 - provided most of the fundamental rules for the protection and welfare of children and young people 7 during the 1950s and 1960s. Section 12 8 recognised the need to make more detailed provision on child cruelty:
" Section 12 Cruelty to persons under 16 - (1) If any person who has attained the age of sixteen years and has the custody, charge, or care of any child or young person under that age 9, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence…
"(2) For the purposes of this section - (a) a parent or other person legally liable to maintain a child or young person 10 shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging he has failed to take steps to procure it to be provided under the Acts relating to the relief of the poor…
"(7) Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him."
This section effectively meant that anyone over 16 years could be found guilty of an offence for assaulting, ill-treating, neglecting or abandoning a child (section 12 (2) (a) defining "neglect" as failing "to provide adequate food, clothing, medical aid or lodging" for the child). Thus, the provision emphasised the duty of parents and others caring for children to look after their physical welfare, although notably failed to deal with psychological or emotional abuse 11. However, it is worth noting, in relation to assault, that section 12 (7) explicitly preserved the right of parents to physically punish a child 12.
It is also important to note that the Act acknowledged the need to protect children against sexual activity: section 13 protected 16-year-old girls from being seduced, encouraged to have sexual intercourse, prostitution and indecent assault. This is in addition to the great number of sexual offences designed to protect both boys and girls, such as rape, indecent assault, lewd and libidinous practices, and shameless indecency 13.
If an offence were committed under these provisions, the Act provided for children to be removed to a "place of safety". Section 110(1) defined this as "any remand home, poor house, or police station, or any hospital, surgery, or any other suitable place, the occupier of which is willing temporarily to receive a child or young person". Section 47 stated that a justice of the peace could issue a warrant authorising a police constable to search for and remove a child, if he or she suspected that:
- a child was being assaulted, ill-treated or neglected in a manner likely to cause him or her unnecessary suffering or injury to health; or
- a so-called "Schedule 1" offence was being committed against the child. A Schedule 1 offence covered:
- any offence under the Criminal Law Amendment Act 1885;
- any offence under sections 12, 13, 14, 15, 22 and 33 of the 1937 Act; and
- any other offence involving bodily injury to a child or young person 14.
To protect children in the long term, juvenile courts had the power to order alternative care for children who needed "care and protection", which was defined by section 65 15.
Furthermore, provision existed under The Children Act 1948 16 for those children who were orphaned or deserted, but who weren't the victims of an offence. Section 1 provided that local authorities had a duty to put a child under 17 into care in the interests of its welfare if it appeared that:
- the child had neither parent nor guardian;
- the child had been abandoned by parents or guardians; or
- the parents or guardians were unable, due to mental, physical or other incapacity, to provide for the child's proper accommodation, maintenance and upbringing.
At this general level, therefore, it seems clear there was at least some basis in law for adequately protecting children and young people. For example, section 49 of the 1937 Act further developed the principle of unsuitable carers, by stating that courts had to take account of a child or young person's welfare and, if appropriate, take steps to remove them from "undesirable surroundings". This suggests the law protected children and young people from those who had charge or control over them 17. But it seems more likely that the law was geared towards shielding them from the dangers of their own abusive household, the implication being that, once a child or young person was removed to a "place of safety" they would be free from the risk of harm.
Section 2: How laws provided for residential schools
This section considers:
- What was in place for residential (approved) schools?
- How were approved schools run?
- How were pupils treated in approved schools?
- Education, discipline and punishment
- Health and safety
- Inspections and record-keeping
What was in place for residential (approved) schools?
Firstly, it's important to establish what the term "residential school" means.
The state recognised as early as 1854 that children and young people could be sent to certain types of schools by order of a court. However, until 1933 these schools were divided into two types: reformatory and industrial. Reformatory schools dealt with delinquents while industrial schools were charged with turning destitute children into respectable and useful citizens 18. Not until The Children and Young Persons (Scotland) Act 1932 19 (we call this the 1932 Act from here on) was this distinction abolished, and the term "approved school" given to them all 20. Generally speaking, the function of such schools was to provide education and training on a residential basis for children and young people not aged more than 16 on committal, who had been sent to them by the courts because they had committed an offence or were in need of care or protection 21. School managers could apply to the Scottish Education Department ( SED) to approve the school to care for the children. The SED, after making such enquiries as they saw fit, could approve the school for such a purpose and issue a certificate of approval to the managers 22.
Five years later these provisions were consolidated by The Children and Young Persons (Scotland) Act 1937. Section 61 23 preserved a court's right to send to an approved school 24 any child or young person found guilty of an offence, and section 62 25 gave the Secretary of State more powers to send some juvenile offenders - for example, those detained in a Borstal institution 26 - to approved schools. Children and young people could be brought before a court by an education authority 27, constable, or authorised person 28, or even a parent orguardian 29. And if the court felt they needed "care and protection" 30 it could order them to be placed in an approved school 31.
The court or SED was responsible, where practicable, for choosing a school, depending on the child's religion. Indeed the SED could choose a school based on several factors. These included:
- the child's religion;
- what kind of education and training the school provided;
- where the school was located; and
- anything else that they thought would make sure the child was sent to a school appropriate to his or her case 32.
How were approved schools run?
As with the 1932 Act, the managers of a school intended for the residential education and training of children and young people could apply to the SED for approval under the 1937 Act. The SED would make such enquiries as they saw fit and could issue a certificate of approval to the managers 33.
The managers tended to be the education authority or joint committee representing two or more education authorities, or other "persons for the time being having the management or control" of a school 34. However, although the education authorities did have a role to play - for example, under section 84 35 of the 1937 Act, they were responsible for providing approved schools if more accommodation was needed - in practice, they managed a small minority of schools. The rest were administered by voluntary organisations 36.
Regardless of the type of management, the general principles of administration were similar. Schedule 2 of the 1937 Act 37 set out how the schools should be administered and how children should be treated 38. Firstly, it gave the SED power to make additional rules for management and discipline at approved schools under paragraph 1(1), but crucially allowed schools a wide margin for manoeuvre by stating that different rules could be made "as respects different schools or classes of schools" 39.
Furthermore, the Schedule allowed school managers to make supplementary rules for managing and discipline in an approved school, but only with the SED's approval 40. Lastly, the management was given significant responsibility over the children in the school's care by vesting in them the same legal rights and powers as a parent 41.
However, it was the supplementary rules introduced under the 1932 Act 42 that in fact provided the backbone for day-to-day regulation of approved schools in Scotland until 1961 43. This set of regulations - the Children and Young Persons (Scotland) Care and Training Regulations 1933 44 (we call these the 1933 regulations from here on) - governed how approved schools were managed during the first 11 years of our review period.
Under these regulations, the SED retained some control over the management. Paragraph 1 provided that each manager's name and address had to be sent to the Department, who could appoint additional managers if they felt it necessary. The provisions also required managers - or a committee of managers - to meet as often as needed "for the efficient management of the school" 45. Frustratingly this phrase wasn't defined, but at least shows the beginnings of a monitoring function for managers of approved schools. This was further highlighted in the requirement that managers carry out school visits from time to time 46 (although, again, the scope and purpose of this requirement wasn't fully explained). Indeed, the overall responsibility of the management was clear: although headmasters and headmistresses were responsible - admittedly, to the managers - for overall conduct and discipline in school, it was the managers who had the power to appoint and dismiss staff, subject to the SED approving qualifications 47.
It seems fair to say that the 1933 regulations, introduced at the dawn of the approved school era, did little to promote the need for school managers to fulfil a welfare-orientated role. It wasn't until the rules were revoked in 1961 that a shift took place towards regulating schools in more specific ways. The change occurred under the Approved Schools (Scotland) Rules 1961 48 (which are called the 1961 rules from here on).
The 1933 regulations had introduced the requirement for the SED to have details of each manager 49. The 1961 rules maintained this; paragraph 2(1) set down guidelines for managers visiting schools:
"The Managers, or a Committee consisting of not less than four of them shall normally meet not less often than once a month. They shall arrange for the school to be visited by one or more of their number at least once a month, and more frequently if circumstances appear to warrant it, to ensure that the conditions of the school and the welfare, development and rehabilitation of the pupils under their care are satisfactory. The visiting Manager shall sign the log book and may enter such observations as he sees fit."
Under the 1961 rules, the management of approved schools was to be "in the interests of the welfare, development and rehabilitation of the pupils" 50.
Not only should visiting managers take the opportunity to speak to individual pupils 51, but they should also discuss with the headmaster any complaint that a pupil made 52.
Furthermore, managers of approved schools were now subject to tighter guidelines. Before, they had to make "periodic" visits; now they had to visit at least once a month to ensure the satisfactory welfare and development of the children and young people under their care. And, while managers still had the right to hire and fire staff 53, a full report on the circumstances of a dismissal had to be sent to the Secretary of State if it was because of the "character or conduct" of a member of staff 54.
However, it's worth noting that, while the 1961 rules applied to all approved schools in principle, the Secretary of State still had the right to waive any provision as he saw fit 55, effectively meaning that parts of the regulations didn't have to apply to all schools in all circumstances. This is an important power and raises more questions about what authority the Secretary of State had over how approved schools were managed.
Under the 1937 Act 56, the Secretary of State could order that pupils be discharged, transferred to another school, or placed in the community on licence 57. But if the SED was dissatisfied with the condition of an approved school or how it was being run, its only legal remedy was to withdraw the school's certificate of approval, under section 83 (2) of the 1937 Act 58. This was the case until 1963, when the Criminal Justice (Scotland) Act 1963 59 introduced wider directions for how approved schools should be managed.
The 1963 Act retained the right to withdraw a school's certificate of approval 60 and order a pupil's release 61. Under section 21(1) of the Act the Secretary of State could consider an approved school's:
- premises and equipment;
- number and grades of staff; and
- education, training and welfare of the children under the managers' care.
If he felt any of these weren't adequate or suitable he could give managers whatever directions he felt were needed to achieve the proper standard.
Section 22 further allowed the Secretary of State to regulate the constitution and proceedings of the school managers, and to appoint new managers. This seems a significant increase in the power available to the Secretary of State, and perhaps indicates a shift in the 1960s towards clearer regulation aimed at improving how the management of schools was monitored.
How were pupils treated in approved schools?
Education, discipline and punishment
As already noted, pupils at approved schools could be young offenders ordered there by a court 62 or transferred by the Secretary of State 63; or people considered to be "in need of care and protection" 64.
There is no doubt that children from such different backgrounds were, in practice, placed together - and questions arise as to whether this was appropriate to their educational and welfare needs. But in terms of the legal framework it is clear that the SED had at least some responsibility to place pupils in a school suited to their needs. As mentioned earlier, not only was the religious persuasion of the child or young person relevant 65, the schools could be classified depending on the pupils' age, the location, the character of the education and training, or what was considered appropriate to individual pupils' cases. However, it should be noted that this provision was generally classified as a power available to the Department, rather than a legal duty requiring it to act 66.
Regardless of how children were placed, and who with, we clearly need to identify what framework was in place to properly treat pupils once they were in approved schools.
As noted earlier Paragraph 12 of the second Schedule to the 1937 Act gave school managers certain parental rights, and subsection (2) stated that managers were obliged to clothe, maintain and educate the children under their care. This educational right was a crucial component of the overall function of approved schools. (It also sat alongside the various regulations set out by the Education (Scotland) Acts 67.) Yet the 1933 regulations put little emphasis on it.
Paragraph 8 of the 1933 regulations (headed "education, training, etc") stated that details of the education, training, food and timetables of school routine had to be sent to the SED for approval " as required".
This remained the case until the 1961 rules took effect. These stated that inspectors had to approve:
- the school's daily routine (for example, getting-up time, schoolroom instruction and practical training) "from time to time" 68; and
- the timetable and syllabus. 69
The rules also stated that the school should provide:
- full-time education appropriate to the age, ability and aptitude of school-age pupils; and
- further education as long as children remained in the school" 70.
However, both the 1933 regulations and 1961 rules provided extensively for disciplining and punishing pupils in approved schools.
Under the 1933 regulations, the discipline of the school was to be maintained by the personal influence of the headmaster or headmistress, and of the staff. They had to keep all forms of punishment to a minimum 71. Punishment would reflect both the seriousness of the offence and the offender's temperament and physical condition 72. Offenders would lose:
- privileges or rewards;
- conduct marks, recreation or freedom; or
- loss of rank 73.
The 1933 regulations stated that any pupil being punished should be deprived of recreation for no more than one day at a time 74. If isolation was considered the best method of what was termed "correction and reform", this should be:
- for no longer than six hours;
- in a room that the regulations stated should be "safe for the purpose"; and
- with regular visits and means of communication with staff 75.
Managers could authorise the principal teacher and assistant teacher to administer minor punishment 76 for offences committed during an ordinary school-room lesson. But they weren't to inflict the same punishment more than once for the same offence 77.
The 1961 rules were almost identical, but included the extra punishment of not allowing home leave for pupils who committed a serious offence 78. Furthermore, they added an important condition by stating that the Secretary of State's permission was needed 79 for any other forms of punishment, including corporal punishment (which we discuss later).
They also expanded, in a separate paragraph, the detail necessary for using segregation as punishment. Segregating a pupil for more than 24 hours, or more than two nights in a row, required written permission by one of the managers and a report to the SED80. Further requiring the Secretary of State's approval, which marked an increased role, was the obligation to obtain permission to use part of a school as a special section for abnormally unruly pupils.
This meant that:
- no pupil could be transferred to such a section without the Secretary of State's authority; and
- the rules on managing and running an approved school were to be applied, unless otherwise stated, to the special sections 81.
It should be noted that although the review is to consider what may have allowed children and young people to suffer abuse in a specific 82 period, it has to be seen within the culture of what was regarded at the time as acceptable punishment.
So, while the 1937 Act made it an offence for any child or young person to suffer an assault at the hands of a parent or carer, 83 it also gave parents the right to chastise 84. This right passed on to school managers when they assumed parental rights under the Second Schedule to the Act 85. At this time, people accepted corporal punishment as fundamentally important in maintaining discipline to educate youngsters properly. The right of schoolteachers to physically chastise children was normally viewed as independent of the parents' right 86: "reasonable chastisement" 87 of a child by a teacher was not considered an actionable assault unless the punishment was excessive or involved an improper instrument 88.
As a result, the 1933 regulations and 1961 rules both allowed corporal punishment in approved schools. The 1933 regulations stated that only a "light tawse" (a leather strap) could be used for corporal punishment. Paragraph 14 stated that:
- a cane or any form of cuffing or striking was forbidden;
- corporal punishment should rarely be imposed on girls; and
- n the medical officer's consent was needed before punishment was inflicted on a boy or girl who showed any sign of physical or mental weakness 89.
Paragraph 15 detailed the punishments:
"In girls' schools corporal punishment may be inflicted only on the hands and the number of strokes shall not exceed three in all on any one occasion. In boys' schools corporal punishment may be inflicted only on the hands or on the posterior over ordinary cloth trousers, and the number of strokes shall not exceed on any one occasion:
(a) for boys under 14 years of age: two strokes on each hand, or four strokes on the posterior over ordinary cloth trousers;
(b) for boys who have attained the age of 14 years: three strokes on each hand, or six strokes on the posterior over ordinary cloth trousers."
The principal teacher could punish only boys, not exceeding three strokes on the hands for an offence committed during an ordinary lesson. Otherwise the headmaster or headmistress should administer all punishment 90. Again, no punishment could be inflicted more than once for the same offence 91.
The guidance on this area of discipline for the first 11 years of our review period was, therefore, quite specific and detailed. It continued almost identically under the 1961 rules.
Curiously, however, paragraph 17 of the 1933 regulations stated that no child should receive corporal punishment in the presence of other children - but didn't stipulate who else should be present. This seems a clear gap in the efficient regulation of approved schools at the time - and was picked up by the 1961 rules. Paragraph 31 of these rules stated that an adult witness must be present if the punishment wasn't carried out in the presence of a class in a schoolroom. 92 The 1961 rules also stated clearly that anyone who broke the rules in this area could be dismissed or subject to other disciplinary action 93 - something the 1933 regulations didn't contain.
The 1961 rules therefore recognised an apparent need to monitor more efficiently the way in which corporal punishment was administered in approved schools. They did this by incorporating the basic rules from the 1933 regulations, but more clearly, with more certainty and clarity - and, we suggest, with some important additions.
So, except for a few crucial items that we've outlined, the 1933 regulations and 1961 rules both laid down an almost identical framework as guidance on corporal punishment. Both also recognised it was vital to keep a punishment book as a monitoring device. The 1933 regulations require the headmaster or headmistress to detail, in the punishment book, all punishments, including those given in the schoolroom. The details had to include the:
- date of punishment;
- offender's name and age;
- nature of the offence;
- name of the officer who administered the punishment;
- nature of the punishment (and in the case of corporal punishment, its exact amount); and
- medical officer's observations, if any. 94
The 1961 rules replicated these, but added that any witness to corporal punishment should also be noted down. 95
It's notable that the 1933 regulations' requirement to enter all punishments into the book was replaced in the 1961 rules. These stated that it was necessary to enter only "particulars of each occasion on which home leave is stopped or corporal punishment inflicted". They also stipulated that any teacher who inflicted corporal punishment, under the conditions that were allowed, should report the punishment to the headmaster to be entered in the punishment book. 96
Health and safety
The laws on maintaining health and safety of pupils in approved schools changed little between 1950 and 1968. Under the 1937 Act (paragraph 12 (2) of the Second Schedule), school managers had to provide for the clothing and maintenance of pupils in their care. Paragraph 4 allowed pupils who needed medical attention to be sent to and kept in a hospital, home or other institution where they could receive the necessary attention 97.
The 1933 regulations (paragraphs 6-9) and 1961 rules (paragraphs 3-6) both placed strict requirements on those responsible for ensuring that schools were properly managed. They laid down the following:
- School buildings had to be maintained in a satisfactory condition, which covered lighting, heating, ventilation, cleanliness, sanitary arrangements and fire-safety 98.
- School buildings had to provide adequate accommodation both for residential and teaching needs 99.
- Managers were responsible for consulting the local fire authority about "suitable and necessary" fire precautions 100.
- The Secretary of State had to approve the instructions to be followed if a fire broke out and "frequent/regular" fire drills had to take place 101.
- The number of pupils in a school was not to exceed the number specified by the Secretary of State or SED. (The 1933 regulations stated "save in exceptional circumstances"; this was removed by the 1961 rules 102.)
The 1961 rules provided more thoroughly for pupils' welfare. Under the heading "Care of Pupils", they stated that schools should provide each pupil with:
- a separate bed in a room with sufficient ventilation;
- suitable clothing; and
- a diet of "sufficient, varied, wholesome and appetising food…adequate for the maintenance of health".
Managers were to draw up the diets after consulting the headmaster and the medical officer and they had to be approved by an inspector 103. Schools could not withhold a meal from a pupil as a form of punishment 104. The 1933 regulations contained nothing like this.
The rules and regulations also covered pupils' dental hygiene. Under the 1933 regulations, schools had to arrange for a dentist to examine each pupil when they were admitted, and at least once a year after that 105. The 1961 rules tightened this to examinations at least every six months, using the School Health Service or the general dental service provided under the National Health Service (Scotland) Act 1947. 106 Both sets of regulations required schools to keep a record of inspection and treatment.
Arguably, however, it was the medical officer's role 107 that provided the most significant monitoring function affecting pupils' health and safety at approved schools during this period. These officers were required under the 1933 regulations (paragraph 20), which said their duties should include:
- a thorough medical examination of every pupil when admitted to and shortly before leaving school;
- a quarterly routine inspection of every pupil;
- treating the pupils as required; and
- giving advice on dietary and general hygiene.
The 1961 rules repeated these, but added a further crucial requirement that - as well as inspecting each pupil every quarter - the officer should visit the school at least once each week 108.
Both the 1933 regulations and the 1961 rules required the medical officer to keep whatever records were needed and inform the managers about the school's health. 109 The 1961 rules stated that the medical officers should also provide whatever reports and certificates "as the Managers may require". 110
However, perhaps most significant was the requirement under the two sets of rules and regulations that the medical officer should examine the punishment book at each visit and draw the managers' attention to any apparent case of excessive punishment. 111 This highlights an interesting and important supervisory responsibility that medical officers were given - and one that required a joint effort with managers to uphold pupils' welfare. Whether, of course, the practice met the principle is something we discuss elsewhere in the report.
Inspections and record-keeping
In considering what other inspection procedures approved schools were subject to, it is necessary to examine parts of the 1937 Act.
In general, section 106 provided for the powers of the Secretary of State and the SED to appoint inspectors:
"(1) The Secretary of State and the Scottish Education Department may, for the purposes of their respective powers and duties under the enactments relating to children and young persons, appoint such number of inspectors as the Treasury may approve and may pay to the persons respectively appointed by them such remuneration and allowances…and the Department may authorise or require any of His Majesty's Inspectors of Schools to exercise any power or perform any duty which might be exercised or performed by an inspector appointed in pursuance of this section." 112
The SED, through their inspectors, had a specific duty 113 to review the progress of pupils detained in approved schools, with a view to ensuring that they were placed out on licence as soon as they were fit to be 114. The 1933 regulations and 1961 rules expanded these inspection powers.
Under the 1933 regulations 115, approved schools had to be open at all times to inspection by His Majesty's Inspector of Schools or by any officer that the SED appointed to carry out an inspection. School records had to be available for examination, and inspectors could note in the log book any visit paid to the school and any details that needed attention". 116
The 1961 rules continued these general powers of inspection, but with an important addition: managers had to have arrangements available for inspectors to interview staff and pupils. 117
This was a relatively minor but still significant increase in authority. Furthermore, the managers themselves were placed under a duty to visit the school at least once a month (as opposed to merely "periodically" under the 1933 regulations 118). They had to make sure that school conditions and the pupils' welfare, development and rehabilitation were satisfactory 119. This shift towards a more welfare-oriented system of regulating schools was also evident in a requirement that inspection visits had to be signed in the log book and any remarks noted 120.
In addition to the various monitoring duties given to inspectors and managers, the rules and regulations also recognised the need to allow forms of communication with parents and guardians.
The 1933 regulations stated that pupils were allowed letters and visits from parents or guardians at "reasonable intervals" that managers could decide. These "privileges" could be suspended if they interfered with school discipline, although any suspension had to be noted in the log book 121.
The 1961 rules echoed these provisions 122, but they attached more importance to letters as means of communication. They stated that pupils could receive letters, but added that pupils should be actively encouraged to write to their parents at least once a week 123. Every letter to or from a pupil could be read by a member of staff delegated by the headmaster, and withheld if appropriate (although the facts and circumstances of any letter withheld had to be noted in the log book, and the letter kept for at least a year). 124 Importantly however, schools could not withhold a letter to a school manager, the Secretary of State or any of his officers or departments. 125
It can therefore be argued that writing letters and receiving visits played a small but important part in allowing people other than inspectors or managers to monitor pupils in approved schools.
The 1933 regulations and 1961 rules included additional requirements on schools to keep records. Under the 1933 regulations, headmasters and headmistresses had to keep whatever records as may be required. These included (under paragraph 23):
- a general record of all pupils admitted, licensed and discharged;
- individual records of pupils under the care of the managers;
- a log book, recording:
- any written report on the school communicated to the managers;
- visits of any managers; and
- all events connected with the school that "deserve to be recorded";
- a punishment book 126; and
- a separate register of pupils attending the school to be taught.
The 1961 rules incorporated these requirements but, notably, also required schools to keep "an adequate record" of each pupil's progress, and a record of every time a pupil absconded from the school 127. In addition:
- the records had to be available to managers at all times;
- the log book had to be presented at every management meeting; and
- the chairman had to certify that he had read items recorded since the last meeting 128.
This increase in responsibility under the 1961 rules shows more recognition of the importance of record keeping and its role in monitoring. Indeed, all returns called for by the Secretary of State were to be duly made and managers had to arrange to keep all necessary records 129.
Section 3: How the law provided for children's homes
This section of the report considers:
- Local authority homes
- Voluntary homes
- How local authority and voluntary homes were managed and administered
- How pupils were treated in local authority and voluntary homes
- Education, discipline and punishment
- Health and safety
- Inspections and record-keeping
As seen earlier, the legislation provided an obvious definition for "residential schools" - namely approved schools - but it's less clear what the term "children's homes" meant. For the purposes of this review, the term will be seen to cover both homes provided by local authorities for children in their care, and homes helped by voluntary contributions.
However, other institutions existed to care for children with mental defects or physical disabilities, and the question also arises as to how "remand homes" were regulated (that is, institutions created to provide accommodation and care specifically for juvenile delinquents).
The review's approach has therefore been, firstly, to examine local authority and voluntary homes - how they were provided, maintained and regulated - and then to consider other types of institution providing residential care for children during this period.
Local authority homes
The 1937 Act played a part in properly regulating children's homes between 1950 and 1968, but it was the Children Act 1948 130 (which we call the 1948 Act from here on) which proved most crucial in laying the framework for guidance in this area.
The 1948 Act amended parts of the 1937 Act, but its most significant role was in formalising child services and for the first time creating specific duties owed to children 131. As we have seen, local authorities had a duty to take orphaned or deserted children in their area into care 132, and could assume significant parental rights for children in their care 133. The Act ensured there was no overlap with any similar rights that those in charge of approved schools might assume. Therefore if any child under the care of a local authority became the subject of an approved school order, the parental rights that the local authority had would cease and would be transferred to the body in charge of the approved school 134. The 1948 Act also provided that any children out on licence or in local authority care with the consent of the managers of an approved school would still be considered under the managers' care 135.
Part II of the 1948 Act covered:
- local authorities' powers over and duties towards children they took into care under section 1 of the Act; and
- children placed in their care by order of court under the 1937 Act.
It placed a general duty on local authorities to use their powers in a way that furthered the children's best interests, and to give them the opportunity to develop their character and abilities. 136
In addition to these welfare principles, section 15 of the 1948 Act made it a duty for local authorities to provide homes to accommodate children in their care. This included separate accommodation, for temporarily receiving children, with facilities necessary for "observation of their physical and mental condition" 137. However, if a local authority was unable to provide this accommodation itself, it could discharge its obligation under the 1948 Act in a number of ways. It could:
- arrange with another local authority to provide homes 138;
- board the child out 139; or
- place the child in a voluntary home where managers were willing to receive the child 140.
This was still an important responsibility, introduced under the 1948 Act, and was bolstered by the power given to the Secretary of State to make regulations about how local authorities should carry out their functions and run the homes, and for securing the welfare of the children in the homes 141. In particular, these regulations could impose requirements covering accommodation, health, facilities that catered for children's religion, and the appointment of staff 142. The Secretary of State also had the power to serve a notice on the local authority not to use a property as a home if he considered that the property was unsuitable or not being run in line with the regulations made by him 143.
It's worth noting that local authorities' powers to promote children's welfare were confined to caring for:
- the children they received into care under the 1948 Act; and
- children committed to their care by a court order under the 1937 Act.
This remained the position until the Children and Young Persons Act 1963 144, which extended local authorities' powers. Section 1 stated that every local authority had a duty to make available any advice, guidance and help needed to promote children's welfare. This was aimed at diminishing the need to put children into care under the 1937 or 1948 Acts, or bringing them before a juvenile court, by placing the local authority under a duty to take action while a child was still in its own home. This duty was the responsibility of local authorities' children's committees; but in practice it was carried out by voluntary groups such as the Family Service Units, Save the Children Fund, Family Welfare Association and the Women's Voluntary Service.
Local authorities had clear duties to provide suitable accommodation for children who were in their care for whatever reason 145. As mentioned, one way of doing this was to put the child in a voluntary home 146. For the period of the review, the 1937 Act began to provide for these. It defined voluntary homes as:
"any home or other institution for the boarding, care, and maintenance of poor children or young persons, being a home or other institution supported wholly or partly by voluntary contributions" 147.
However, this term didn't include any institution or house that the General Board of Control for Scotland certified under the Mental Deficiency and Lunacy (Scotland) Act 1913 - unless children were taken into these but weren't what this Act termed "mental defectives" 148.
The 1937 Act provided for voluntary homes to be inspected 149 (which we'll discuss later), and gave the Secretary of State an important monitoring function. He could give any instructions to managers to ensure children's welfare if he felt that the management, accommodation or treatment of children posed a danger to their welfare 150.
The terms of the 1937 Act largely stayed in force between 1950 and 1968, although the monitoring function described was an exception. Section 29(9) of the 1948 Act replaced it with more extensive powers. Regulations could now extend to:
- the accommodation and equipment that voluntary homes provided;
- medical arrangements for protecting children's health; and
- consultation with the Secretary of State on people applying to take charge of a home 151 (although it's worth noting that this consultation wasn't always required under the regulations).
The Act stated that a child in local authority care shouldn't be placed in a voluntary home if it couldn't provide facilities for the child to receive a religious upbringing in keeping with his or her religion 152. Perhaps most importantly, however, the 1948 Act required that voluntary homes had to be registered with the Secretary of State 153. If a home wasn't registered - or if a home was to be removed from the register - the child had to go into the local authority's care. 154 This requirement went hand in hand with section 16 of the 1948 Act, which gave the local authority the right (and indeed duty if required by the Secretary of State or the managers of the home) to remove children from a voluntary home.
How local authority and voluntary homes were managed and administered
The 1948 Act allowed for regulations to be made that covered areas such as how local authority and voluntary homes were run and maintained, and yet the first set of regulations to be introduced under this power didn't occur until 1959. So the question arises as to what rules governed the day-to-day operation of such homes before this.
The Children (Boarding-Out Etc.) (Scotland) Rules and Regulations 1947 155, covered institutions not classed as poor houses, remand homes or approved schools 156. So it would have been relied on in relation to the operation of local authority and voluntary homes.
If a local authority was responsible for a child and chose not to place it with a foster parent, the rules generally recognised that the local authority could place the child in:
- an institution subject to being inspected by the Secretary of State under the Children and Young Persons (Scotland) Act 1937 or the Education (Scotland) Acts; or
- an institution that the Secretary of State had specially approved in line with these rules and regulations 157.
Before placing a child, therefore, local authorities had fairly wide powers to make sure that the institution they chose suited the child's needs best 158. Their powers also meant that that they would be provided with reasonable facilities for visiting the institution and satisfying themselves about arrangements for the child's welfare 159.
Local authority officers had to visit - or arrange a visit by someone with the right qualifications - every child within a month of the local authority placing the child in an institution. Subsequent visits were required at least once every six months 160. This was reinforced by what we could argue was the most crucial duty placed on the local authority: to arrange visits to these children by members of the authority at least once a year, with the visiting officer reporting to the local authority on:
- the child's health, well-being and behaviour;
- the progress of the child's education; and
- any other matters about the child's welfare that they felt they should report 161.
If a local authority took action on one of these reports, they were required to send a copy of the report and a note of the action taken to the Secretary of State. This highlights an important relationship between the local authority and the Secretary of State, as a result of which:
- no child could be placed in an institution without giving consent 162;
- any person could be visited at any time by any person acting on their behalf 163; and
- a local authority - if the Secretary of State asked - could be required to remove a child from the care of any institution it was placed in 164.
A final requirement ensured that local authorities should, if asked to do so, send the parents of a child placed in an institution reports from time to time about the child's welfare and progress. And parents were to be allowed to communicate with the child - unless the local authority felt this would be against the child's best interests 165.
These 1947 regulations were an important step in providing for homes, but offered very little detail on homes' day-to-day operation. In 1959, however, a new set of regulations was introduced under the 1948 Act 166, known as The Administration of Children's Homes (Scotland) Regulations 1959 167 (we've called them the 1959 regulations from here on). Effectively replacing the terms of the 1947 regulations in this specific area, they sought to deal with the conduct of:
- children's homes provided by a local authority, and
- voluntary homes.
However, they didn't cover:
- remand homes; or
- voluntary homes that could be inspected by a government department not covered by the provisions of the 1937 Act 168 or used solely for providing holidays of less than one month.
The 1959 regulations - like those introduced for approved schools - covered areas such as children's medical and dental care, standards of sleeping accommodation, fire precautions, discipline, records, and information provided to the Secretary of State. The general standards imposed required the "administering authority" (defined by the regulations as the local authority or people carrying on a home 169) to make sure the home was run in ways that secured the well-being of the children in its care 170. This involved two important monitoring functions:
- The home had to be visited at least once every month by what the regulations described as an "authorised visitor". This person had to satisfy themselves that that the home was being run in line with the regulations and had to enter their details in the home's log book 171.
- The Secretary of State was to be given any information he required about the home's accommodation and staffing arrangements .
Although the administering authority had the power to appoint someone to be in charge of the home 173, having to consult with the Secretary of State was in line with the procedures laid down in the 1948 Act 174. In voluntary homes, the person in charge was to be responsible to the administering authority for the home's conduct, and the authority had to notify the Secretary of State if the person in charge changed 175.
How pupils were treated in local authority and voluntary homes
Education, discipline and punishment
Before examining the rules and regulations governing discipline and punishment in children's homes, it's worth noting that some homes had an additional educational function.
This applied to homes that included a school which was a public school, a grant-aided school or an independent school as defined in the Education (Scotland) Acts 1939 to 1956 176, and later 1962. For these, the 1959 regulations provided that most of the rules (including those covering visits, supervision by the medical officer, discipline, punishment and record keeping 177) "[should] not apply to the part of the home used as a school" 178.
The various Education (Scotland) Acts regulated these schools and procedures such as inspections and record keeping 179. There was, therefore, clearly a distinction between regulating homes in their overall capacity of caring for children on a residential basis (covered by the 1959 regulations), and regulating schools within the home (covered by the various Education (Scotland) Acts and their corresponding rules and regulations). Any school that the Education Acts didn't cover could still, however, seemingly be regulated by the 1959 regulations.
The 1959 regulations covered discipline in homes outside of any school setting. They stated that the general discipline of the children was to be maintained "by the personal influence of the person in charge of the home" 180. Although rather undefined, this responsibility was still significant. It required the person in charge to report any case of a child being punished with abnormal frequency to the administering authority (the local authority or whoever ran the home), who then had to arrange an investigation of the child's mentality 181.
Any punishment administered to a child had to be recorded in the log book. 182 In general, any punishment for misconduct could only take the form of a temporary loss of recreation or privileges 183 - with one exception, corporal punishment. This had a prominent role in disciplining children in residential care, and the regulations took account of it. Therefore:
- administering corporal punishment was permitted only in "exceptional" circumstances;
- it had to be administered by someone who'd been given the power to do so by the home's administering authority; and
- it had to be in line with whatever rules the administering authority had laid down for the form the punishment would take, and any limits to the punishment 184.
One final condition covered any child known to have any physical or mental disability. In such a case the home's medical officer had to agree before corporal punishment could be administered 185.
Health and safety
As noted that the Children Act 1948 (sections 15(4) and 31(1)) provided for regulations that covered accommodation, equipment and medical arrangements in local authority and voluntary homes.
The 1959 regulations provided for basic sleeping arrangements: each child should have a separate bed in a room with enough ventilation and lighting, and easy access to suitable and sufficient toilets and washing facilities 186. The home's administering authority had a duty to consult the local fire authority about fire precautions for the home. Regular fire drills and practices were required to ensure staff and children were well versed in the proper evacuation procedure 187. The administering authority also had to notify the Secretary of State of any outbreak of fire that had required children being removed from the home or from a part of it affected by fire 188.
On the subject of maintaining children's health, the 1959 regulations required the home's administering authority to arrange for children's dental care. They could use the school health service, the general dental service provided under the National Health Service (Scotland) Act 1947 or the special arrangements that local authorities made through their maternity and child welfare services for children of pre-school age 189.
Perhaps of greatest significance, however, was the requirement to appoint a medical officer for the home, under paragraph 6 of the regulations. Medical officers had a general supervisory role to ensure the health of the children and staff, and hygiene in a home. They also had to supervise the compilation of a medical record for each child. These detailed the child's:
- medical history before being admitted to the home;
- physical and mental condition when admitted to the home;
- medical history in the home; and
- condition before leaving the home 190.
The medical officer was also responsible for giving advice to the person in charge of the home on anything that affected the health of the children or staff, or hygiene in the home, and had to provide any medical attention that children needed 191.
It's possible to argue that the most important duty of the medical officer was to attend the home at regular intervals, and "with sufficient frequency" to ensure that he was "closely acquainted with the health of the children" 192. Although the regulations didn't define "regular intervals", the importance of this duty was strengthened by a requirement that each child had to be examined when admitted to the home, and, after that, at intervals of no less than 12 months 193. Furthermore, a home's administering authority could appoint more than one medical officer - and even divide the various duties among them 194.
It seems clear that medical officers' duties therefore played a prominent and crucial role in monitoring not only the health but - by implication - the safety of children in local authority and voluntary homes.
Inspections and record-keeping
As noted, medical officers had a clear role in monitoring the welfare of children in local authority and voluntary homes. In addition, a home's administering authority had to arrange monthly visits by what the regulations termed an "authorised visitor" 195 to ensure homes were being run in a way that ensured the children's welfare. Parents and guardians could also visit, and the 1959 regulations stated that the Secretary of State had to be given any information he required about facilities for parents and guardians to visit and communicate with children accommodated in voluntary homes 196.
Overall powers of inspection were, however, granted by The Children Act 1948, working closely with the general terms of the Children and Young Persons (Scotland) Act 1937. Section 54 of the 1948 Act provided that the general provisions on the appointment and duties of inspectors contained in s106 of the 1937 Act would apply 197. This meant that any inspector appointed under section 106 could go into any local authority home under Part II of the 1948 Act 198, or any place where a child was being boarded by a local authority or a voluntary organisation, and inspect the home and the children 199.
Under the 1948 Act, local authorities had a duty to ensure children in voluntary homes received visits. Anyone authorised by a local authority could go into any voluntary home to check on the children's well-being 200. This was to go hand in hand with the 1937 Act's more detailed procedures for inspecting voluntary homes, which gave the Secretary of State the power to inspect any voluntary home unless it was the subject of inspection by - or by authority of - a government department. 201 Anyone appointed by the Secretary of State had the power to go into a home and examine how it was being managed and the condition and treatment of the children 202.
This was further reinforced by a clear and telling clause that if a home refused to let an inspector in, this would be regarded as a reasonable ground for suspecting that a child was being neglected and his or her health suffering as a result 203.
It's worth noting that, while the inspection procedure for local authority-run homes was no doubt similar, it wasn't expressed quite as extensively in either the 1937 or 1948 Acts or the 1959 regulations.
The 1959 regulations did, however, cover record-keeping in both local authority and voluntary homes 204. Schedule 2 stated that the following records should be kept:
- A register with the date when every child was admitted to, and discharged from, the home.
- A log book recording every important event at the home, including:
- visits and inspections;
- punishments administered to each child;
- every fire drill or practice;
- the fire precautions recommended to the administering authority; and
- how these recommendations had been implemented.
- Enough detail about food provided for children for anybody inspecting the records to judge whether the diet was satisfactory.
- A personal history of each child in the home, including:
- medical history;
- the circumstances in which the child was admitted to the home (in the case of a child in the care of a local authority, why it was impracticable or undesirable to board the child);
- details of the child's progress in the home, including visits by parents, relatives or friends and any emotional or other difficulties experienced by the child); and
- the child's destination when discharged from the home.
The person in charge of the home was responsible for compiling the records. These were to be open to inspection by anyone visiting the home under powers granted to the Secretary of State or by legal requirements that the home's administering authority had to meet 205. Similarly, the person in charge of the home was responsible for the medical record of every child in the home. They had to make the records available at all times to the medical officer and to anyone authorised by the Secretary of State or the home's administering authority to inspect them .
The Voluntary Homes (Return of Particulars) (Scotland) Regulations 1952 207 also stipulated that certain details of voluntary homes had to be sent to the Secretary of State. These included:
- the home's name and address;
- the name of the person in charge;
- the number of children in the home according to age;
- the number of children receiving education, training or employment in the home and outside the home;
- the name of any government department or departments - other than the Scottish Home Department - inspecting the home; and
- the date of the last inspection by each such government department 208.
Overall, the evidence shows that legal procedures at least existed to ensure that events were properly recorded in both local authority and voluntary homes. It also suggests that these went some way towards making these homes more accountable: homes had to keep records and make them open to inspection at any time.
Section 4: How laws provided for other institutions
As already mentioned, institutions other than local authority or voluntary children's homes existed to care for children and young people throughout our review period. So it's important to determine how they were regulated by law during this time.
In this section of the report the following areas are considered:
- Children and young people who were labelled mentally defective"
- So-called "mentally defective" children and young people
- Children with disabilities
- Special schools
- Remand homes
- Other institutions
Children and young people labelled "mentally defective"
The Mental Deficiency and Lunacy (Scotland) Act 1913 (called the 1913 Act from here on) - with some minor amendments made by the Mental Deficiency (Scotland) Act 1940 - governed the treatment of "mental defectives" 209 until repealed by the Mental Health (Scotland) Act 1960.
Section 4 of the 1913 Act allowed so-called "defectives" under 16 years to be put into an institution for defectives or under guardianship. To achieve this, written consent was needed from two qualified medical practitioners, and from the parent or guardian, or school board or parish council - also with the parent or guardian's consent 210. Once children were placed in care, responsibility for overseeing how they were supervised, protected and controlled 211 fell to the General Board of Control. The Board's duties included co-ordinating and supervising how school boards, parish councils and district boards administered their powers and duties under the Act.
The Board also had to certify, approve, supervise and inspect:
- institutions and houses for "defectives"; and
- all the arrangements that these institutions and houses made to care for and control the people in them 212.
This monitoring role was strengthened by a requirement on inspectors and commissioners to visit and inspect people in these institutions and houses at least twice a year 213. They had to report at least every year, but the Secretary of State could also ask for special reports 214. The Board could also grant a certificate to managers of these institutions to receive children - provided they were satisfied that the premises and the people who maintained them were suitable 215.
Finally, the 1913 Act required children in these institutions to be treated properly. It did this by making it an offence for any member of staff to:
- ill-treat or neglect a child in their care; or
- commit an act of sexual immorality 216.
Members of staff included superintendents, officers, nurses, attendants, servants, anyone else employed in the institution or anybody in charge of a child.
The Mental Health (Scotland) Act 1960 (called the 1960 Act from here on) 217 repealed the 1913 Act, and provided fresh guidance for dealing with, caring for and treating people suffering - or appearing to be suffering - from "mental disorder", the term that replaced "defective". The Act stated that local authority services should provide, equip and maintain residential accommodation for people suffering from mental disorder, and care for residents" 218. (This requirement covered local health authority arrangements under section 27(1) of the National Health Service (Scotland) Act.)
Furthermore, a local authority under the terms of the Children Act 1948 (a "children authority"), could accommodate children that were being provided with care or after-care by that or any other local health authority for persons suffering from mental disorder 219, as provided for by the Children Act 1948 and section 27 of the National Health Service (Scotland) Act 1947. Local authorities could also assume parents' rights under section 79 of the 1937 Act or section 3 of the 1948 Act, and if they did so, they had to:
- arrange for visits to be made by them to any child admitted to a hospital or nursing home for any treatment; and
- take whatever other steps "would be expected of a parent" 220.
The 1960 Act's general provisions also stated that local authorities had to provide, or arrange for "suitable training and occupation" for under 16s who had been reported to the education authority as not being suitable for education or training in a special school 221. (However, this duty didn't affect how section 1 of the Education (Scotland) Act 1946 222 should operate.)
The 1960 Act laid down more specific rules for private hospitals and residential homes caring for anybody suffering from mental disorder. It stated that every private hospital 223 had to be registered 224, and importantly required the people responsible for running them to open the hospital to inspection at all "reasonable times", and keep any registers and records that the Secretary of State may stipulate 225. Any failure to carry out these requirements was an offence under the Act. Additional duties were placed on the Secretary of State, to make sure - through regular inspection - that private hospitals were being run properly 226. Furthermore, anyone authorised by him could - by producing documents showing his or her authorisation - inspect a private hospital under the Act 227 and interview any patient in private 228.
The 1960 Act also covered residential homes for people suffering from mental disorder 229. Generally, sections 37-40 of the National Assistance Act 1948 were to go hand in hand with the provisions on residential homes for people suffering from mental disorder, and apply as if they were intended for such a home 230. The National Assistance Act related to the registration, inspection and conduct of homes for disabled people and elderly people. This meant that the Secretary of State had the power (under section 40 of the National Assistance Act 1948) to make regulations about the records kept, and reports to be given, by residential homes about the people they took into care 231. Furthermore, section 39 of the National Assistance Act 1948 included the power to inspect any records and interview any of the home's residents in private 232.
Finally, the 1960 Act extended to placing children from approved schools into the guardianship of a local health authority or someone directed by the Secretary of State 233. This would occur in circumstances where the Secretary of State was satisfied that the child was suffering from a mental disorder to the extent that he or she needed to be placed in the care of such a guardian.
Children with disabilities
Homes that provided residential care for disabled children not covered by the 1937 Act were chiefly regulated by the National Assistance Act 1948.
Generally, the local authority had to provide residential accommodation for anyone who needed care and attention because of age, ill health or any other circumstances 234. Importantly, they had take into account the welfare of everyone they provided accommodation for 235. Section 29 of the Act laid down welfare arrangements for what it termed "blind, deaf, dumb and crippled persons", and the local authority had the power to make rules about how the premises it managed were be run 236.
There was also a strict requirement for anyone running a home for disabled people to register the home 237: any failure to do so could result in a fine, prison or both 238. They also had to keep the registers available for inspection at all times 239. Section 39(1) of the Act reinforced these powers of inspection, stating that anybody authorised by the Secretary of State could "at all reasonable times" inspect any premises used as a home for disabled people.
It's worth noting that the various Education (Scotland) Acts provided for institutions caring for what the legislation termed "mental defectives", and also special schools.
The Education (Scotland) Act 1946 generally stated that - with approval from the Secretary of State and the General Board of Control for Scotland - councils could provide and maintain institutions and schools under the Mental Deficiency Acts and Education (Scotland) Acts 240. It was accepted that the Secretary of State had the power to make regulations that defined:
- the categories of pupils who needed "special educational treatment" 241; and
- what special educational arrangements were appropriate for pupils in each category 242.
Generally, education authorities had to find out which children in their area needed special educational treatment 243, and had to issue a report to the local health authority if they thought any child wasn't suitable for a special school because they had a mental disability 244. Such special schools were also subject to the general powers of inspection established under the Acts 245. Their position has changed little over the years 246, and the principles were contained in the Education (Scotland) Act 1980 247.
The arrangements for regulating remand homes - as for approved homes - originated in the Children and Young Persons (Scotland) Act 1937. Under the 1937 Act local authorities had to provide remand homes for their area 248. Any authority, or anyone responsible for managing an institution other than a prison, could arrange to use the institution - or part of it - as a remand home 249. Generally, the Act provided that if a child could be remanded into custody it could be remanded to any remand home in the area 250.
Crucially, the Criminal Justice (Scotland) Act 1949 imposed tighter rules, most importantly stipulating that no premises could be used as a remand home unless a certificate of approval had been issued by the Secretary of State" 251. This permitted the Secretary of State to apply to remand homes - with any modifications he felt appropriate - sections 83 and 109(3) of the 1937 Act, which laid down rules for the approval of schools 252. Further to this, no individual could take charge of a remand home unless the Secretary of State had approved the appointment 253.
Section 82(3) of the 1937 Act 254, which the Criminal Justice (Scotland) Act 1949 amended, also provided for:
- inspecting, regulating and managing remand homes;
- classifying, treating, employing, disciplining and controlling residents; and
- visits to residents by people appointed "in accordance with the rules" 255.
Rules on the day-to-day operation of remand homes were already in force under the Remand Home (Scotland) Rules 1946 256 (called the 1946 Rules from here on). These came into force on 1 July 1946 and replaced the Remand Home (Scotland) Rules of 1933.
In terms of welfare, the rules generally said that each "inmate" - to use their terminology - should be thoroughly washed and examined by a doctor within 24-48 hours after being admitted 257. They also required that a doctor be appointed at each remand home to act as medical officer and administer any necessary medical treatment to inmates 258. Reflecting the importance of this role, the medical officer had to regularly visit the remand home and generally ensure the premises were hygienic, supervise the inmates' health and provide any medical attention that was needed 259.
The superintendent (that is, the person in charge of the home 260) also had responsibilities under the 1946 Rules. First, he or she was required to inform the clerk of court, council and the inmate's parents if an inmate had to be taken to hospital, clinic or other safe place to be medically treated or examined, or if the medical officer felt the inmate shouldn't be detained in the remand home on medical grounds. If the inmate had been committed to the home under section 58 of the 1937 Act, the superintendent also had to inform the Secretary of State 261. Finally, the superintendent had to report any death, serious illness, infectious disease or accident to the inmate's parent or guardian, the council and the Secretary of State 262.
Homes had, as far as possible, to arrange for schoolroom instruction - on or off the premises - for inmates of school age 263, and in general the discipline of the remand home was to be maintained by "the personal influence" of the superintendent 264. When punishment was necessary to uphold discipline, the rules stipulated it should take the form of:
- temporary loss of recreation or privileges;
- reduction in food; or
- separation from other inmates (but only for those aged over 12, and provided they had some way of communicating with a member of staff). 265
Corporal punishment was allowed if these punishments proved ineffective, but could only be administered to boys 266 and under the following conditions:
- It should be administered by the superintendent or, if the superintendent wasn't available, by whoever was left in charge.
- Only punishments described by the rules were allowed: striking, cuffing or any shaking were forbidden.
- Only a strap approved by the council could be used:
- for no more than three strokes on each hand; or
- for no more than six strokes on the bottom, over trousers 267.
In terms of monitoring arrangements, the 1946 rules provided that homes had to be open for inspection by an inspector at all times. 268 This was in addition to the general powers of inspection in the Children and Young Persons (Scotland) Act 1937 269. Homes also had to have arrangements in place for regular visits by council-appointed visitors, which were to take place at intervals of no more than three months, with at least two visits a year unannounced 270. It is significant that these visitors were to include women, and that a further channel of inspection was now available: the home should be open "at all reasonable hours" to visits by justices and magistrates of the juvenile courts that sent children to the home 271. In addition, reasonable facilities were to be given for inmates to receive visits from their relatives or guardians and friends, and to send or receive letters 272.
The rules also covered record-keeping. The superintendent was required to keep a register of inmates admitted to and discharged from homes, and had to keep log books, which had to detail "every event of importance" connected with the home 273. These included details of all visits and dates of inspection, and all punishments. The latter was reinforced by a requirement on owners to record punishments immediately and to inform the Secretary of State every quarter of corporal punishments 274. Registers and log books had to be open to inspection by the council, on the council's behalf or by an inspector. They also had to be inspected regularly at intervals of no more than three months 275.
It may be relevant to note that some children were under probation orders - that is, they were subject to an extra method of monitoring through a probation officer.
It is not necessary to examine the rules in detail. But, for example, under the Probation (Scotland) Rules 1951 276 a probation officer would have to make sure there were proper records for everyone he or she supervised 277. That officer would, subject to the terms of the probation or supervision order, have to keep in close touch with the person under his supervision and meet him or her frequently 278. These requirements applied both to children in school (the probation officer would be required to make enquiries of the head teacher from time to time about the child's attendance and progress, but the child was not to be visited on the school premises 279) and those residing in institutions (whether or not an approved probation hostel or home) 280.
Finally, it's worth noting that there were other establishments whose role was to deal on a daily basis with the maintenance and welfare of children and young people. Many institutions were dealt with under the provisions of the Children (Boarding-Out Etc.) (Scotland) Rules and Regulations 1947 281, which have been outlined in the section on children's homes above. But other regulations existed to govern other types of institutions.
For example, the Criminal Justice (Scotland) Act 1949 covered institutions that weren't approved probation hostels or approved probation homes. People were sent to these homes by probation orders or supervision orders and the institutions could be inspected if the Secretary of State requested 282. Anyone appointed to inspect these institutions could investigate, in any way they felt was appropriate, how residents were being treated. Obstructing an inspector was deemed to be an offence 283.
The nursery school system also shows how young children were cared for, and was initially regulated under the Nurseries and Child-Minders Regulations Act 1948 284.
Generally, local health authorities had to keep a register of premises in their area where children were looked after during the day, for most of the day or for longer periods of not more than six days 285. The register also had to include people who were paid to look after children under five in their home 286, on the same basis as above. The local authority could refuse to register a property if they felt anyone employed (or proposed to be employed) to look after a child wasn't fit to do so. They could also refuse if they felt the property was unsuitable 287.
The local health authority could also impose conditions to ensure that:
- feeding arrangements and diet were adequate;
- children were under medical supervision; and
- records were kept for any children - and containing any details - that the authority could specify 288.
To ensure the children's conditions were monitored, the Act provided that a register had to be open to inspection "at all reasonable times 289". And anyone authorised by the authority could - also at all reasonable times - inspect the property, the children, the arrangements for their welfare and any records kept under the terms of the Act 290. This isn't fully within the terms of our review, but is still an interesting point of reference. The requirements for registering and inspecting nurseries can be viewed alongside those for regulating children's homes during this period of the review.
Part Two: 1968-1995
Section 5: How social work principles changed from the 1960s
As part one of this report shows, the framework of laws, rules and regulations that regulated how children should be cared for in residential institutions between 1950 and 1968 was extremely complex.
Arguably, competing definitions in various laws and uncertainty about the scope and extent of the framework inevitably led to confusion in the system. So by the 1960s, it was widely agreed that the social work principles should be modified. Three significant reports during the 1960s recognised this need to change:
- The McBoyle Committee presented its report Prevention of Neglect of Children in January 1963 291.
- The Kilbrandon Committee produced a report making recommendations that included setting up children's panels in each education authority for juvenile offenders and young people in need of care or protection 292.
- The government, under the Secretary of State for Scotland's guidance, made proposals for change in Social Work and the Community293, suggesting social work departments with wide responsibilities.
Together, these proposals led to the Social Work (Scotland) Act 1968 294 being introduced (we call this the 1968 Act from here on). The Act retained some of the requirements of the previous laws on child protection, whereby the measures put in place by The Children and Young Persons (Scotland) Act 1937 and subsequent amendments to protect children, stayed the same. This meant that children would still be provided with substitute care only when parents could not provide an adequate standard of care.
However, the Act also introduced several new important features. The Children Act 1948, as it applied to Scotland, was repealed by the 1968 Act., which meant that local authorities' duties to children were restated in the new Act. This effectively changed the way decisions about children who needed protection were made. Under the new Act, local authorities were no longer able to authorise children to be removed to substitute care. This was now the remit of the new children's hearings, as set up by Part III of the 1968 Act. 295
The Act aimed to:
- put further measures in place to promote social welfare in Scotland;
- bring together existing laws on the care and protection of children; and
- set up children's panels to deal with children who needed compulsory measures of care 296.
Parts I and II of the Act therefore sought to bring together the existing legislation covering services for child care, welfare, social support for people who were ill, and supervising offenders. It created local authority social work departments covering these areas. It also imposed a duty on those subject to the Act to promote social welfare and give advice and help to people who need it.
Part III of the Act set up a system of children's panels to deal with children who committed offences, or who for other reasons needed compulsory measures of care and protection. Juvenile courts were abolished, although all decisions of the children's panels could be appealed in court. Local authorities were required to promote social welfare by making advice, guidance and assistance available and by providing facilities including residential and other establishments.
Finally, Part IV of the Act dealt with residential and other establishments. This part of the Act is examined in greater detail below. But it is this move to bring together services dealing with the welfare and care of children in residential institutions that proves most significant in our understanding of how the legal framework developed.
The Social Work (Scotland) Act 1968
Before examining how the 1968 Act changed the way residential establishments were run, it is important to consider the Act's general impact on the establishment of crucial social work services.
Part I of the 1968 Act 297 placed a duty on local authorities to "enforce and execute" the Act in their areas 298. To do this, each local authority had to set up a Social Work Committee 299. These committees were responsible for local childcare and child welfare services, together with the duties that probation committees had previously carried out 300. Generally, therefore, the performance of each of the local authority's functions under the various Acts would now be referred to the Social Work Committee 301. This was reinforced by a requirement on local authorities to appoint a director of social work 302 (later changed to a requirement to appoint a "Chief Social Work Officer" 303), with a duty placed on the Secretary of State to set down what qualifications these officers should have. 304
The Secretary of State, therefore, had an important role. Local authorities had to perform their functions under the 1968 Act 305 under his general guidance 306. He had the power to make regulations covering how local authorities performed their functions under the Act, and this could cover any activities by voluntary organisations that came under the Act 307. The Secretary of State also had the authority to appoint an advisory Council on Social Work, to advise him on anything to do with how he performed his functions in relation to social welfare, how local authorities performed theirs, and any activities of voluntary organisations linked to those functions 308.
In terms of consolidating the relevant provisions for caring for and protecting children in need, the 1968 Act re-established a number of the principles introduced in the Children Act 1948. Thus, in repealing the 1948 Act, the 1968 Act was able to re-assert the framework with amendments in a clearer format. Indeed, the requirements placed on local authorities in relation to issues such as their assumption of parental rights, and duty to provide for and assert the best interests of the child, remained until repealed by the Children (Scotland) Act 1995 309.
So, under the 1968 Act, a local authority was required (so long as doing so was in the interests of the child's welfare) to take into care a child under 17 years old:
- who had no parent or guardian;
- who was lost or abandoned; or
- whose parent or guardian was unable to provide for the child's accommodation, maintenance and upbringing 310.
This duty would remain as long as necessary for the child's welfare, or until the child reached 18 years 311. However, if the child's welfare was best served by placing them in the care of their parent or guardian (or a relative or friend), the local authority was required to so place them 312.
The 1968 Act also restated the principles that the 1948 Act recognised governing how local authorities should assume parental rights. They would assume these rights if:
- the child's parents were dead;
- the child had no guardian; or
- the parent and guardian couldn't care for the child for reasons that the law explained 313.
This remained the case until the Children Act 1975 amended and extended the rules: under the 1975 Act, a local authority could assume parental rights itself. It could also permit voluntary organisations that were incorporated bodies or trusts to assume these rights, in some circumstances 314. However, it could only do this if it seemed in the child's best interests 315; the local authority retained the power to re-assume parental rights if not exercised suitably by the voluntary organisation 316.
Undoubtedly, welfare-orientated principles were at the centre of the 1968 Act, reflected in how local authorities were now required to look after children in their care. So, any local authority looking after a child was now explicitly required to "exercise their powers with respect to him so as to further his best interests, and to afford him opportunity for the proper development of his character and abilities". 317
It's worth noting that the Children Act 1975 extended this: any decision by a local authority about a child in its care had to take account of the need to safeguard and promote the child's welfare throughout its childhood. Local authorities had, as far as possible,
to consult the child's wishes and feelings and take these into account, given the child's age and understanding. 318
The 1968 Act also introduced a requirement on local authorities to review the case of any child in their care no less than six months after the child came into care or after a previous review 319 . In addition to this, the Act gave the Secretary of State the power to make regulations about how cases should be reviewed and to vary the minimum interval for reviews, bringing Scots law into line with the English position (namely section 27 of the Children and Young Persons Act 1969).
It's also worth noting that, in line with these principles, local authorities had a duty to advise, guide or assist children over school age (but not yet 18), so long as doing this was in the child's welfare. This applied to children who were no longer in the care of the local authority or a voluntary organisation 320 .
As already noted that the 1968 Act (Part III) 321 abolished juvenile courts in favour of children's hearings by members of a children's panel 322 . The rules that governed these hearings replaced and changed the requirements that had been made under the Children and Young Persons (Scotland) Act 1937 323. Hearings could decide (similar to juvenile courts) if children brought before them needed what the Act called "compulsory measures of care" 324 . The 1968 Act again made sure that a police constable, or someone authorised by a court or Justice of the Peace, could take a child to a "place of safety" 325 if:
- the child was being ill-treated to the extent that this was causing unnecessary suffering or injury to health; or
- a so-called "Schedule 1 offence" 326 (such as general criminal sexual offences, incest, or bodily injury) had been committed against a child.
Once again, the Children Act 1975 expanded this. Amendments in the Act placed an important duty on local authorities to "cause enquiries to be made" if they received information suggesting that a child may need to be taken into care 327. This was a significant development. As stated by the general notes to the Act, it stressed the central role of local authority social service departments in matters of child abuse 328.
Section 6: How the law provided for residential establishments
As has now been seen, under Part III of the 1968 Act, juvenile courts were replaced by a system of children's hearings able to decide on the measures appropriate to deal with children brought before them in need of compulsory measures of care. In cases where the hearings decided that a child must be removed from home, they could now call upon any one of the range of establishments for children, including local authority and voluntary homes. Part IV of the 1968 Act governed such establishments, and was most significant in effectively consolidating the rules and regulations covering various residential institutions for children and young people.
So, gone were the various definitions and requirements established under a mass of legislation, replaced instead by a more streamlined framework intended to regulate what were now called "residential establishments". The 1968 Act defined these as "an establishment managed by a local authority, voluntary organisation or any other person, which provides residential accommodation for the purposes of this Act" 329. Local authorities had to provide and maintain these residential (and other 330) establishments or arrange for them to be provided 331. They could do this by providing establishments themselves or jointly with another local authority. Or they could arrange for voluntary organisations or other local authorities to provide them 332.
Regardless of any agreements made about placing a child in a residential establishment, the local authority could remove the child at any time, and indeed would have to if required by the Secretary of State or the person responsible for the establishment 333.
Section 59 ensured that the residential establishments that social work authorities had to provide for now included:
- children's homes (local authority and voluntary-run, previously provided under the Children Act 1948);
- homes for disabled people (previously provided under the National Assistance Act 1948);
- accommodation for the mentally disordered (previously provided under section 7 of the Mental Health (Scotland) Act 1960); and
- temporary accommodation for the homeless (previously provided under Part III of the National Assistance Act 1948).
The 1968 Act widened local authority duties to providing not just residential establishments but also other establishments such as day centres. This allowed them to provide residential and day accommodation in one establishment and to provide facilities in a single building for more than one type of person requiring assistance 334.
Section 59 was, therefore, very important and was subsequently amended in various ways over the years 335 , perhaps most significantly by the Health and Social Services and Social Security Adjudications Act 1983 336. This required section 59 to be read with a newly inserted section (58A) ensuring that local authorities had to provide for young people who needed secure accommodation 337.
In terms of monitoring residential establishments, the 1968 Act enabled the Secretary of State to make regulations that covered how they were run and the welfare of the people resident and accommodated in them 338. This was similar to arrangements established under the Children and Young Persons (Scotland) Act 1937 and the Children Act 1948. Furthermore, anybody who contravened or failed to comply with a regulation or any requirement or direction that it made, faced a fine 339. We examine regulations made under the authority of the 1968 Act later in this chapter.
Under the 1968 Act, establishments not run by a local authority had to apply to the local authority to be registered before they could admit residents 340. The local authority had to visit these establishments and, before deciding whether to register them, had to be satisfied that:
- the applicant was fit to manage the establishment;
- there were enough staff to run it;
- the premises were suitable for its purpose; and
- the establishment was being properly run 341.
The local authority could refuse to register the establishment if:
- the applicant wasn't fit because of age or character;
- the property wasn't suitable; or
- proposed staffing levels weren't sufficient.
The Act also allowed for existing establishments to be registered, and provided for important transitional arrangements for these establishments in the run-up to the Act taking effect 342.
Having to register was therefore clearly very important, and the 1968 Act's requirements remained more or less unchanged until amendments made by the Registered Establishments (Scotland) Act 1987 and the Children (Scotland) Act 1995. One effect of the 1987 Act was to refine the definition of "establishment" 343. But perhaps most importantly, it added the possibility that grant-aided and independent schools could - but weren't required to - apply to be registered 344. (This referred to schools within the meaning of the Education (Scotland) Act 1980, which provided personal care or support, whether or not "combined with board, and whether for reward or not" 345). The 1995 Act further refined the definition of "establishment" 346, and redefined requirements for voluntary registration 347.
The 1968 Act also consolidated the procedures for inspecting residential establishments. Under the Act, local authority officers with the authority to do so could go to any establishment that was registered under the Act. They could examine any aspect of its condition, how it was being run and the condition and treatment of residents. The officers could inspect any records or registers that had to be kept in line with the Act 348.
The Children (Scotland) Act 1995 developed this idea in amendments made to the 1968 Act. Officers would now also be able to inspect premises that they had reasonable cause to believe were being used as a residential establishment 349, and were given wider powers to examine records and registers. They could now examine those that related to the premises, or to any individual who was - or had been - receiving services under the 1968 Act, parts of the Mental Health (Scotland) Act 1984 or the Children (Scotland) Act 1995 350.
Finally, it's worth noting that the 1968 Act placed an important duty on local authorities to arrange that residents in establishments in their areas should, from time to time, be visited in the interest of their general well being 351.
Section 7: How residential establishments were regulated in practice
This section considers:
- A note on approved schools
- The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987
- Secure accommodation
- Children and young people with mental disorders
A note on approved schools
The Social Work (Scotland) Act 1968 was undoubtedly effective in bringing together a mass of legislation regulating various institutions providing residential care for children and young people. Our research shows that one of the Act's main strengths was to uniformly provide for residential establishments against the background of a newly formed social work framework. This meant, for example, that institutions such as children's homes and those caring for the disabled or mentally ill - whether run by local authorities or voluntary organisations - were now governed by one Act.
The question arises, however, as to the status of approved schools - later referred to as "List D" schools - after the introduction of the Act. Generally, when Part III of the Act became law, social work departments took over and managed approved schools that were provided by education authorities 352, and from the same date managers of voluntary schools had to be registered under Part IV of the Act. Under transitional arrangements in Schedule 7 to the Act, the Secretary of State retained his powers to:
- withdraw approval for a school;
- change the classification of a school;
- give directions about the conduct of a school; and
- in the case of voluntary schools, appoint managers and alter the constitution of the managing body.
The schools continued to be subject to the Approved Schools (Scotland) Rules 1961 353. They were also bound by the more general regulations on conduct and administration that applied to all local authority and voluntary establishments that came under the 1968 Act.
But these rules and regulations applied only to the approved schools existing immediately before Part III of the Act took effect. No new approved schools could be set up after this and any new residential establishments that local authorities or voluntary bodies set up that were similar to approved schools, were to be subject only to the 1968 Act 354. And as a step towards implementing the new law, school aftercare officers transferred to the employment of the local authority social work departments from 17 November 1969, when these departments came into being. Local authorities, on behalf of school managers, now undertook aftercare and liaison with the families of pupils in the schools 355.
The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987
As noted above, the day-to-day regulation of existing approved schools continued under the 1961 rules. Similarly, children's homes remained governed by the Administration of Children's Homes (Scotland) Regulations 1959 356. These arrangements stayed in force until 1987, when the Secretary of State exercised his power under the 1968 Act to make regulations relating to the conduct of residential establishments, and for securing the welfare of their residents 357.
The Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 358 (we've called them the 1987 Regulations from here on) replaced the 1959 Regulations and 1961 Rules. They concerned the general residential care of children that local authorities and voluntary organisations were responsible for under the Social Work (Scotland) Act 1968. Therefore, the 1987 Regulations applied 359 to any residential establishment providing accommodation for children that:
- was controlled or managed by a local authority;
- had to be registered under section 61 of the 1968 Act 360; or
- was a school voluntarily registered in line with section 61A of the 1968 Act 361.
The managers 362 of such an establishment were considered to have a duty to provide for the care, development and control of each child resident there in such as way as would be in the child's best interests 363. If a local authority provided a residential establishment the person in charge would be an officer appointed by the local authority. If the establishment wasn't provided by the authority, its managers had a duty to appoint a person to be in charge. They could, in writing, delegate any duties under the 1987 Regulations as they saw fit 364.
However, perhaps the most significant difference from the 1959 Regulations and 1961 Rules was the requirement placed on managers (of a local authority establishment or the person in charge of a non-local authority establishment 365) to prepare a "statement
of functions and objectives" 366. This was to include details specified in schedule 1. These covered:
- arrangements for meeting the needs and development potential of children resident in the establishment, including their emotional, spiritual, intellectual and physical needs;
- arrangements for educating the children;
- measures to be taken to safeguard the physical care of the children;
- disciplinary and other arrangements for caring for and controlling children;
- arrangements for the residential establishment to:
- work with care authorities to help children develop their potential while in care and after leaving care;
- take into account the needs and wishes of children and their parents; and
- formulate procedures, in co-operation with care authorities, to deal with complaints by children, their parents or other relatives;
- arrangements for keeping records, including:
- procedures for selecting children to be admitted to the establishment;
- details of children admitted to, and discharged from, the establishment;
- procedures for access to records for staff, children and parents; and
- records about how children and parents were involved in decisions taken about the welfare of children while residents of the establishment;
- arrangements for visits by children's relatives and friends;
- the establishment's policy on involving children and parents in decisions about the child's future while in residential care;
- policies and practice for recruiting and training qualified staff to ensure the establishment's objectives are achieved - and taking into account services such as social work, health and education;
- healthcare arrangements; and
- details of all fire practices and fire alarm tests carried out in the establishment. 367
These statements were, therefore, now recognised as a crucial component in regulating residential establishments efficiently. Managers had a duty to keep the preparation and implementation of the statement under review 368. They also had to make sure the person in charge of the establishment reported in writing to them, at intervals of not more than six months, on how the statement was being implemented 369.
Managers also had to make sure that visits took place at least twice a year on their behalf at every residential establishment they provided to report on how the statement was being implemented 370. Visits could take place at any other times considered necessary 371. Managers kept the power to amend the statement, and could arrange for it to be made available to any care authority or children's hearing considering placing a child in a residential establishment 372.
As well as making these statements of functions and objectives necessary, the 1987 Regulations laid out minimum requirements for notifying incidents, fire precautions, discipline, records, education and healthcare 373.
It's worth noting how they provided for discipline. Under regulation 5(1) managers had the power to make arrangements relevant to caring for and controlling children, in line with the statement of functions and objectives 374. But, perhaps most significantly, these arrangements could not authorise corporal punishment 375. Managers of each establishment also had to make sure (in consultation with the education authority) that each child of school age in the establishment who wasn't getting a school education outwith the establishment, should receive "adequate and effective education" 376. This was in addition to the requirement that every child should be able to attend religious services and receive religious instruction as appropriate to the child's religion 377.
Furthermore, managers had a duty to make sure that the establishment had arrangements in place to maintain conditions "conducive to the good health" of the children. They also had to, in consultation with the care authorities responsible for the child's welfare, make sure each child could get medical and dental treatment 378.
In terms of monitoring children in such establishments, the 1987 Regulations added to the requirements of the statement of functions and objectives, and to the procedures required for inspections by the 1968 Act 379. The Regulations required that if a registering authority issued a certificate of authority under the 1968 Act 380 it had to visit yearly and be satisfied that the establishment was still being run in line with the standards it had to meet when it was registered. 381 The authority also had to make sure that the children's safety and welfare were being maintained.
On the subject of record-keeping, the basic requirements of the 1987 Regulations were that managers (in consultation with the person in charge) had to make sure all necessary records - including health details - were properly maintained for every child resident in the establishment 382. Managers (again in consultation with the relevant person in charge) also had a duty to ensure that a log book was kept, and maintained. Its contents included day-to-day "events of importance or an official nature" and details of disciplinary measures imposed 383.
The 1987 Regulations not only placed requirements on managers and people in charge of establishments, but also gave guidance about what arrangements a care authority had to make to put a child in residential care 384. If a care authority was responsible for a child under the regulations 385 for six weeks or more immediately before the placement, it could place the child in:
- a residential establishment;
- a school within the meaning of the Education (Scotland) Act 1980 (where the child would normally reside for the duration of the placement); or
- a hospital, convalescent home, private nursing home or other establishment within the meaning of the National Health Service (Scotland) Act 1978 386.
A placement could proceed so long as the care authority was satisfied that it was appropriate to the child's needs. This meant taking into account the information required by the regulations themselves 387 and the authority's duty under section 20 of the 1968 Act, namely to further the best interests of a child in their care and to give the child the opportunity to properly develop 388.
The care authority also had to be satisfied that the residential placement proposed for the child was appropriate to the child's needs as set out by the statement of functions and objectives required by the regulations 389. Similar requirements applied to care authorities that had not been responsible for a child for more than six weeks before placement. Again, there was great weight on the need for the placement to correspond with the child's welfare and best interests 390.
When a care authority did place a child, the 1987 Regulations imposed a duty to give written notice and details of the placement to the local authority in the area the placement took place (if this differed to the care authority's area) 391. The care authority also had to notify the area's education and health authorities, 392 although this wasn't needed if the care authority didn't intend the placement to last more than 28 days 393. However such a notification was needed if the placement did last for more than 28 days 394, or if the authority learned that the child:
- had significant medical or educational needs 395;
- had a medical problem important to its future care 396; or
- was below compulsory school age 397.
The child's parents or guardians also had a right to be notified of the placement, unless the care authority considered this wasn't in the child's interests 398.
The care authority's responsibility for providing information extended to having to give written details to the person in charge of the establishment about the child's background, health, and mental and emotional development. The details also had to include any other information considered relevant, including information about the child's wishes and feelings about the placement itself 399. Both the care authority and the person in charge were to agree about the care the establishment would provide, including the arrangements for contact between a child and its family 400. They also had to make sure that the child received adequate and efficient education (in line with the regulations) and proper medical and dental treatment 401.
Further monitoring arrangements under the Regulations included a duty on the care authority to take whatever steps it felt were needed to be certain that any placement made under the Regulations continued to be in the child's interests 402. This required visiting the child within one week of the placement and, after this, at intervals of no more than three months from the last visit. However the authority could visit as often as it considered necessary, to supervise the child's welfare 403. Such visits carried out in line with the Regulations had to be followed up by written reports, for the care authority to consider 404. If a care authority felt it was no longer in the child's best interests to remain in a residential establishment, it could end the placement as soon as practicable, giving written notice 405.
As seen earlier, the 1968 Act successfully consolidated several principles concerned with regulating various types of residential establishment. However it seems that, in practice, some of these establishments remained governed by legislation introduced before the 1968 Act 406. The 1987 Regulations effectively pulled together the laws relating to how a number of individual residential establishments operated, placing them under the one roof. But other regulations still existed to govern institutions not ostensibly covered by them.
Perhaps the most notable of the legal provisions not already mentioned are those relating to secure accommodation - that is, accommodation in residential establishments that restricted children's liberty 407. Previously, legal provisions were within the context of the regulations governing individual establishments. For example, the Approved School (Scotland) Rules 1961 contained requirements on sectioning unruly pupils (for example, placing them in solitary confinement) 408.
Specific regulations relating to the provision and use of secure accommodation were made after the Health and Social Services and Social Security Adjudications Act 1983 409 amended the Social Work (Scotland) Act 1968. The Secure Accommodation (Scotland) Regulations 1983 410 (we've called these the 1983 Regulations from here on) stated that children could only be accommodated in residential establishments 411 providing secure accommodation approved by the Secretary of State 412. The person in charge also had to make sure that a child placed and kept in such accommodation received care appropriate to its needs 413. The regulations also covered:
- detaining children for no longer than seven days without the authority of a children's hearing or sheriff;
- the standards to be applied before a child subject to a supervision requirement could be placed;
- arrangements for an interim placement in secure accommodation of children in care under Part II of the 1968 Act;
- reviewing the conditions of the secure accommodation; and
- requirements for children being cared for by local authorities in secure accommodation:
- because a court sent them under the Criminal Procedure (Scotland) Act 1975; or
- under place of safety warrants under the Social Work (Scotland) Act 1968) 414.
But perhaps most notable in terms of monitoring children was the duty placed on the person in charge to keep a record of the child's placement. This had to include details about the supervision requirement and any reviews of the placement required by the 1968 Act 415. These records had to be open at all times for inspection by the Secretary of State, who could ask
for copies to be sent to him 416.
The Secure Accommodation (Scotland) Amendment Regulations 1988 417 (we've called these the 1988 Amendment Regulations from here on) significantly amended the elements of the 1983 Regulations that applied to secure accommodation. (The 1988 Amendment Regulations followed the introduction of the Social Work (Residential Establishments-Child Care) (Scotland) Regulations 1987.) The amendments placed managers 418 of a residential establishment that provided secure accommodation under a new duty to make sure, in consultation with the person in charge 419, that the establishment provided appropriate standards of care for children, taking account of Part II of the 1987 Regulations 420.
In line with this best-interests principle, the regulations extended the general duties of directors of social work under the 1983 Regulations, when deciding about placing a child in secure accommodation subject to a supervision requirement 421. What's more, a child could now only be placed if the director of social work and the person in charge of the residential establishment were satisfied the child's needs were being met in line with the requirements of the newly amended 1983 Regulations 422. These requirements were that the placement was considered appropriate to the child's needs, taking account of any relevant information and the statement of functions and objectives 423.
Changes to the 1983 Regulations included the following new elements:
- If a children's hearing was considering whether a condition should apply to a supervision requirement allowing a child to be detained in secure accommodation, a local authority could recommend such a condition only if it was satisfied that the placement was in the child's best interests, in line with the procedures set out in 1987 Regulations 424.
- A condition permitting a child to be put into secure accommodation as part of a supervision requirement made by a children's hearing under section 58C of the 1968 Act 425 had to be reviewed every three months. This required that in calculating the prescribed interval of three months, account should be taken of any review for other purposes under the 1968 Act that also reviewed such a condition.
A further change gave a child or its parents the right to a review by a children's hearing within 21 days of asking for one in writing. This applied if a condition imposed by the hearing had not taken effect for six continuous weeks 426. Finally, apart from various transitional provisions governing the implementation of changes effected by the new regulations 427, the 1988 Amendment Regulations required that the managers of such establishments consult with the person in charge about the need to keep records 428.
These changes to the 1983 Regulations represented a general tightening of the legal framework governing secure accommodation, and arguably put more stress on welfare. They also highlighted the important role that Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 had in altering how residential establishments were run and regulated.
However, additional legal measures were needed to govern how secure accommodation was used in Scotland for children who were ordered by a court to be detained in residential care under section 413 of the Criminal Procedure (Scotland) Act 1975 429. As a result, the Residential Care Order (Secure Accommodation) (Scotland) Regulations 1988 430 were introduced. Generally, these stated that a child could only be detained in secure accommodation 431 under section 413 if the relevant local authority's director of social work and the person in charge of the establishment were both satisfied it was in the child's best interests. They had to take account of certain circumstances that the Regulations 432 set out and they had to agree how long detention was necessary 433.
The Regulations also allowed for reviews. The director of social work and the person in charge of the establishment had to review cases when they felt it was necessary and appropriate in light of the child's progress 434 - but at intervals of no more than three months 435. Furthermore, the Regulations significantly stated that the child's best interests were paramount 436 in any decisions about whether the child should remain liable to be detained. Decisions had to take account of what the Regulations described as "all relevant circumstances". These had, if possible, to include the child's opinion and that of its parents 437.
Managers 438 also had a duty to maintain children's welfare by ensuring that children placed and kept in secure accommodation received care appropriate to their needs 439. And, just as previous legislation had, the Regulations laid down important rules for keeping records. The person in charge had to maintain a record of the child's placement and this had to include:
- details of any reviews carried out under the Regulations;
- the date and time of the child's placement, release, or both; and
- the child's full name, sex and date of birth 440.
These records had to be available for inspection by the Secretary of State, who could ask for copies to be sent to him 441.
Children and young people with mental disorders
The modern regulation of residential care for children with a mental disorder has its basis in the Mental Health (Scotland) Act 1984 442. This consolidated the Mental Health (Scotland) Act 1960, which was amended principally by the Mental Health (Amendment) (Scotland) Act 1983.
The 1984 Act was intended to regulate how people suffering - or appearing to suffer - from mental disorder 443 were taken into care, cared for and treated, and continued the important monitoring function of the Mental Welfare Commission established under the previous legislation. Its duty was to inquire about cases of ill-treatment, poor standards of care and treatment, or cases where mentally disordered people had been wrongly detained. The Commission also had to regularly visit patients detained in hospitals or under a guardian, and all these duties continued under the 1984 Act 444.
The Commission's role in protecting patients was deeply rooted in the new law. It had the power to interview any patient in private and inspect any patient's medical records 445, and continued to have a duty to inform hospitals and local authorities about any case that was relevant to:
- secure a patient's welfare;
- prevent a patient being badly treated; or
- deal with any shortcomings in how a patient was cared for or treated. 446
Furthermore, the Commission could notify the Secretary of State and any other relevant body about any concerns it had 447.
In terms of local authority services, powers under the 1984 Act extended to:
- providing residential accommodation for people suffering from mental disorder;
- local authorities' functions as guardians; and
- the supervision of people suffering from mental handicap but not who weren't detained or placed in a guardian's care 448.
Local authorities - as with previous laws - had a duty to provide after-care services and training facilities 449. If they had parental rights over a child, they had to visit the child and take what the Act described as "such other steps" while the child was in a hospital or nursing home that would be expected of a parent 450.
The 1984 Act imposed a duty on local authorities to provide or arrange for suitable training and occupation for people suffering from mental handicap who were over school age 451. (This didn't affect how the Education (Scotland) Act 1980 operated, which placed a duty on education authorities to provide educational facilities for pupils suffering from mental disability.) The Act also carried on the requirement, established by the 1960 Act, that all private hospitals had to be registered and open to inspection at all times 452. (Part IV of the Social Work (Scotland) Act 1968 replaced the 1960 Act's requirements for residential homes.)
The 1984 Act also largely retained the 1960 Act's legal provisions on caring for and treating patients. For example, it was an offence under the 1984 Act for anyone -including an officer, employee or manager - to ill-treat or deliberately neglect a patient being treated for mental disorder as an in-patient or out-patient 453. Furthermore, women received more protection; it was an offence for a man to have, procure or encourage unlawful sexual intercourse with a woman or girl protected under the Act 454.
Inspections were also of great importance. Section 109 (1) of the Act made it an offence for anyone to refuse to allow premises to be inspected, obstruct a visit to, interview with or examination of a patient, or fail to produce records. Indeed, mental health officers and medical commissioners could demand, at all reasonable times, to enter and inspect a premises and remove a patient if they believed the patient was being ill-treated or neglected 455.
Overall, therefore, the 1984 Act clearly continued the effective measures put in place by the 1960 Act and 1983 amendment Act, attempting to ensure that children with mental disorders were properly protected.
Section 8: Further developments in the 1980s and 1990s456
The latter half of the review period shows that there had been significant advances in efficiently regulating how children and young people were cared for and treated in residential establishments. The way the various laws, rules and regulations were applied made the legal framework clearer and more transparent. It brought together a vast number of requirements and began to place child welfare at the centre of a system of regulation that was increasingly streamlined.
But one can criticise the fact that, after the Social Work (Scotland) Act 1968 was introduced, the power to make regulations for such establishments was largely unused until the 1980s. This effectively meant that many of the older and potentially outmoded legal provisions - such as the 1959 Regulations and the 1961 Rules - remained in force and at the core of how establishments were regulated. In other words, what seemed on the surface to be an extensive overhaul and consolidation of the main principles may have had little effect on how these establishments were run in practice.
What is apparent, however, is that the legal developments mirrored closely an increasing awareness in England and Scotland that vulnerable children might be exposed to risks in the very places where they should be safe 457: residential establishments.
In England, concerns about the quality of care in such establishments led to 'The Report of the Committee Inquiry into Children's Homes and Hostels' in 1985, which uncovered systematic sexual abuse of children in residential care 458. Another significant inquiry - the 'Pindown Report' 459 - was published in the early 1990s, and revealed methods of restraining children that were unsuitable and not appropriate to a caring environment. These reports led to new procedures in England for recruiting and training staff in residential homes. They also influenced policy and practice north of the border.
Taking account of developments in England, the Secretary of State commissioned a review of residential childcare in Scotland, known commonly as 'The Skinner Report' 460. This was charged with outlining changes in how residential childcare had been provided during the 1970s and 1980s, and stated the eight fundamental principles necessary for effective residential care (including individuality and development, good basic care and a feeling of safety). The report made 66 recommendations 461. Also important during this period were the findings of the 'Fife Inquiry' 462, and hearings into several complex child protection cases in Scotland 463. These led to further inquiries 464 into how the 1968 Act operated.
As various commentators have recognised 465, the effect of all the conclusions and recommendations of these inquiries - and growing awareness of the significance of children's and parents' rights in child protection 466 - led to substantial reforms under the Children (Scotland) Act 1995 467.
Section 9: The Children (Scotland) Act 1995
The Children (Scotland) Act 1995 radically overhauled Scottish law relating to children. (We've called it the 1995 Act from here on.)
The 1995 Act provided for adoption of children and young people who had been looked after as children by local authorities. It covered how residential establishments should be regulated, and introduced new regulations covering the relationship between parents and children, and between guardians and children. It continued an existing emphasis on finding care for children whose parents couldn't adequately care for them 468, and also continued to recognise the importance of protecting children. Children could therefore be referred to children's hearings if they were the victim of a "Schedule 1 offence", meaning Schedule 1 to the Criminal Procedure (Scotland) Act 1975 469.
Schedule 1 of the Criminal Law (Consolidation) (Scotland) Act 1995 listed a range of sexual offences against children, for example, incest 470 and intercourse between someone in a position of trust and a child under 16 471. This was designed to reinforce the protective measures that the 1995 Act laid down. At a general level, the 1995 Act also responded to the many inquiries into child cruelty and child protection policies by putting more emphasis on listening to children's views and treating them with respect. This meant that courts, children's hearings and local authorities had a duty to take account of these views. 472
Part I of the 1995 Act gave parents a range of duties towards a child 473. This included being responsible for:
- safeguarding the child's health;
- the child's development and welfare 474;
- providing direction and guidance to the child 475; and
- if the child didn't live with them, keeping in regular, personal touch with the child 476.
Fulfilling their responsibilities under the Act meant that parents generally had the right to:
- have the child living with them - or to make other arrangements for where the child could live 477; and
- control, direct or guide the child's upbringing in ways appropriate to the child's stage of development 478.
And if the child wasn't living with the parent, he or she had the right to maintain personal relations and direct contact with the child regularly 479.
Parents' rights and responsibilities under the 1995 Act replaced any similar rights and responsibilities they may have had under common law 480. Anyone deemed to have parental responsibilities or rights under the 1995 Act could not renounce those responsibilities or rights, but could arrange for some or all of them to be exercised on his or her behalf. Even young people who didn't have any parental rights or responsibilities, but who had reached 16 years and had care or control over a child under 16 had a duty, namely to do what was reasonable in the circumstances to safeguard the child's health and welfare 481.
Perhaps the greatest change that Part I of the 1995 Act made in this area was to the need to take a child's views into consideration. This was the case for anybody who made any major decision about taking responsibility for a child as a parent, or about caring for a child. In doing so, they had to allow for the child's age and maturity; a child aged 12 or over was considered old and mature enough to form a view 482. This shows a definite shift towards a more child-centered legal framework than before: further evidenced by the fact that a court could only grant an application for guardianship if it felt that doing this was in the child's best interests 483.
Indeed this principle underpins the 1995 Act. Part II dealt with how local authorities and children's hearing should promote children's welfare, and stated that if a children's hearing or court decided any matter with respect to a child, the child's welfare throughout their childhood had to be their paramount consideration 484.
The language was therefore very clear about how the law should be applied. The duties of local authorities looking after children 485 (in any way that the Secretary of State allowed) were also clear: they had to safeguard and promote the child's welfare, which also had to be their paramount consideration. Local authorities were therefore required to do whatever was necessary, practical and appropriate to promote regular, direct contact and personal relations between a child and anybody with parental responsibilities for the child 486. Their duties could include giving advice and help to prepare the child for when it was no longer looked after by the local authority 487.
Decisions about any child whom the authority was looking after 488 had to take account of the views of the child, its parents, anybody with parental rights and anyone else the authority considered relevant. The decision could also have to take account of the child's age, maturity, religion, race and cultural and linguistic background 489. This promotion of welfare would extend not only to children in local authorities' care, but also to children in their area who were in need 490.
Local authorities' duties under the 1995 Act included having to prepare and publish plans 491, the contents of which could be directed by the Secretary of State. The authority was required to review these plans regularly 492 and in consultation with their local health boards, NHS trusts and any other organisations considered appropriate under the Act. Furthermore, they had to make more information publicly available. This included what services they provided to children in their area and, if appropriate, services that voluntary organisations 493 provided for them 494.
Under the 1995 Act, local authorities had to provide accommodation in line with the obligations laid down in the 1968 Act. Therefore, authorities were required to provide for children who lived in or were found in their area and who apparently needed accommodation because:
- nobody had parental responsibility for them;
- they were lost or abandoned; or
- whoever was caring for them couldn't provide suitable accommodation and care 495.
Again this was underpinned by the general principle that a local authority could provide accommodation simply if they considered it would safeguard or promote a child's welfare 496. As before, they had to take account of the child's views as far as practicable 497.
This duty to provide accommodation was not to apply under these general provisions if anyone with parental responsibilities for, or rights over, the child could:
- care for the child; and
- was willing to either provide, or arrange to have provided, accommodation for the child 498.
Therefore, anyone in this position could at any time remove the child from accommodation provided by the local authority under these provisions 499.
In terms of the manner of accommodation to be provided, the 1995 Act stated that a local authority could provide accommodation for a child looked after them by:
- boarding them out (that is, placing them with an individual or family who would have responsibility for the child) 500;
- maintaining the child in a residential establishment 501 ; or
- making any other arrangements that the local authority considered appropriate 502.
Furthermore, local authorities also had a duty to review the case of any child in their care at certain intervals and in ways laid down by the Secretary of State 503. They retained the right to remove any child placed in residential establishments at any time - and had to if asked by the person responsible for the establishment 504.
Local authorities could insist that a child had to go into care under the 1995 Act if it appeared, for example, that the child:
- was beyond the control of what the Act described as a relevant person 505;
- was falling into bad company or exposed to moral danger;
- was likely to suffer unnecessarily or suffer serious health or development problems because of a lack of parental care; or
- had been the victim of a so-called Schedule 1 offence 506, which covered offences such as indecent behaviour.
If a local authority received information suggesting that a child would have to be placed in care, it could make whatever inquiries were needed and inform the Principal Reporter 507. These investigations also allowed a sheriff to grant a child assessment order: this meant an assessment could be made of the state of the child's health or development, or how the child had been treated 508.
Children could be given emergency protection under child protection orders. These allowed a sheriff to remove a child to a place of safety 509 if, for example, there were reasonable grounds to suspect that a child was being ill treated, neglected or suffering significant harm. A child protection order was also possible if enquiries were under way to allow a local authority to decide whether they should take any action to safeguard a child's welfare 510. The 1995 Act also ensured that children at risk of harm could be given short-term refuge if a child asked for it 511. The child could be placed in residential establishments both controlled or managed by a local authority, or one registered under the 1968 Act and approved by the local authority.
It's clear, therefore, that the welfare of children was more obviously at the heart of the legal framework under the 1995 Act. However, the Act was significant not just for introducing legal measures to properly govern standards of alternative care, but also in its relationship to what was already in force under existing laws. Worth noting in particular is the vast number of ways it amended the Social Work (Scotland) Act 1968. These amendments updated the 1968 Act's requirements and tightened up the framework of laws, rules and regulations that regulated services for children. So, for example, section 34 of the 1995 Act amended how residential establishments should be registered. It refined the scope of what had been possible under the 1968 Act 512 and required new details about the process of voluntary registration 513.
The 1995 Act also tightened the law on inspecting establishments (amending section 67 of the 1968 Act), allowing someone who'd been authorised by a local authority to go into a registered establishment - or premises suspected of being used as one - at all reasonable times 514. In line with 1968 Act's wording, an inspection could be made under the 1995 Act to examine "the state and management of the establishment or place, and the condition and treatment of the persons in it, as the person so authorised thinks necessary" 515.
More significantly, however, is how the 1995 Act changed access to records. Under the 1968 Act, inspectors could examine "any records or registers required to be kept". Now they could inspect any records or registers in whatever form they were held relating the place or to anyone in the establishment receiving services under the 1968 Act, the Mental Health (Scotland) Act 1984, or the 1995 Act 516.
A final significant amendment ensured that the actions of local authorities could be properly scrutinised. The change meant that an inquiry could be called into the local authority's functions, under the 1968 Act, which related to children. Although it was the local authority that would be required to carry out the inquiry 517, it was an important revision of the law, and complemented the Secretary of State's power to order an inquiry into:
- the functions of a local authority or voluntary organisation under the 1968 Act;
- the detention of a child under the Children and Young Persons (Scotland) Act 1937 or the Criminal Procedure (Scotland) Act 1975; or
- the functions of the Principal Reporter under the Local Government (Scotland) Act 1994 or the Children (Scotland) Act 1995 518.
The 1995 Act also made an important contribution to how the various education Acts introduced in Scotland operated over the years. From 1946 519 until 1995 520 no mention was made specifically of schools providing residential accommodation 521, and the 1995 Act inserted a new legal provision into the Education (Scotland) Act 1980. It affected whoever was responsible for a school providing residential accommodation: for the first time, they were under a duty to safeguard and promote the welfare of children in their accommodation. They also had, under the Act, to comply with the amended rules on inspections 522. Again, this emphasis on the child's welfare is important. It could also be seen in a requirement that affected children accommodated in establishments such as hospitals and nursing homes. Here, too, steps had to be taken to make sure the child's welfare was being safeguarded and promoted 523.
Overall, therefore, the 1995 Act undoubtedly placed children at the core of its legal provisions, making some vital changes to the existing framework of laws, rules and regulations. It also, arguably, sharply refocused the objectives of the system, and made sure the new provisions worked effectively alongside the important provisions still in force under the Social Work (Scotland) Act 1968. However, although the changes made by the 1995 Act were seen as a welcome and important development, they weren't absolute. As we'll see, further refinements were needed.
For example, the Regulation of Care (Scotland) Act 2001 brought further measures relating to the standards of residential care for children; it required that all care home services had to be registered with the Commission for the Regulation of Care 524. (Care home services provide accommodation and nursing care or some form of personal support to people who are vulnerable or in need 525. The term includes residential care homes for children.) And, although the 1995 Act amended the 1968 Act in the areas of registration and inspection procedures, the 2001 Act tightened the regulations. Residential homes had to be registered and inspected to ensure adequate standards of care, with a requirement for twice-yearly inspections 526.
Furthermore, under the 2001 Act, a new Care Commission was required to take national standards into account when deciding whether standards of care were "adequate". 527
Part three: 1995 - present day
Section 10: Developments since 1995
This period isn't in my remit and therefore it's not necessary to analyse it extensively. However, it is relevant to examine some developments since the changes introduced by the 1995 Act, as it offers a valuable insight into how the legal framework has progressed. This section considers the following:
- Children cared for in residential establishments
- Secure accommodation
- The Regulation of Care (Scotland) Act 2001
Children cared for in residential establishments
The Residential Establishments - Child Care (Scotland) Regulations 1996 528 covered residential establishments into which local authorities could place children they looked after 529. The regulations replaced the Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987.
At their heart was a requirement that managers of these establishments had a duty to make sure that a child's welfare was safeguarded and promoted in accordance with the child's best interests 530. Managers had, as before, to prepare a statement of functions and objectives, setting out their responsibilities 531 and reviewing them to make sure their obligations were being implemented 532. Minimum requirements - again almost identical to those of 1987 Regulations - covered fire precautions 533, sanctions 534, education 535, the need to keep log books and personal records 536, religious instruction 537 and health and medical care 538.
Arrangements for monitoring registered establishments were reinforced, requiring the authority to visit at least once a year and make sure that the establishment was:
- complying with the statement of functions and objectives; and
- maintaining residents' safety and welfare 539.
The similarities with the 1987 Regulations had two notable exceptions.
Firstly, a new requirement meant managers had to have in place procedures for appointing and vetting staff 540. This was significant in recognising the need to tighten provisions governing monitoring in this area. Secondly, some of the measures in the 1987 Regulations were moved to the Arrangements to Look After Children (Scotland) Regulations 1996 541, which dealt with the nature of child placements and how these were reviewed and ended. This ensured that the Residential Establishments - Child Care (Scotland) Regulations 1996 offered a streamlined and more focused set of rules to govern the practicalities of running residential establishments.
The Arrangements to Look After Children (Scotland) Regulations 1996 are also significant, in that they required local authorities to make a care plan before taking a child into care. Obviously an important development, these plans had to cover the child's immediate and longer-term needs and had to aim to safeguard and promote the child's welfare 542. Among other things 543, the care plan had to include:
- the local authority's immediate and longer term plans for the child;
- details of any services to be provided to meet the child's care, education and health needs;
- the responsibilities of the local authority, the child, anyone with parental responsibility, or another relevant person 544;
- the type of accommodation (for example, residential establishment, foster home);
- the address;
- the name of whoever was responsible for the child at the establishment on the local authority's behalf:
- how the child's parents were contributing to the child's day-to-day care;
- contact arrangements; and
- how long care was expected to last 545.
The plan had to be in writing and the local authority had to agree it with a parent or whoever was in charge of the child 546.
The regulations also introduced other safeguards. Local authorities had to give written notice of any placement 547 - and information about the placement - to:
- the education authority responsible for the area the child would live 548 in;
- the local health board 549;
- (in some circumstances) the parent or person in charge of the child 550; and
- any other local authority if different from the placing authority (this was usually an authority in a different area) 551.
Stringent reviews of the placement and the care plan were required, and local authorities had to do these frequently 552 and record their findings 553.
The emphasis on having to keep records was stressed by requiring local authorities to keep a written case record for each child it looked after by. This had to include:
- a copy of the care plan;
- a copy of any report they had that concerned the child's welfare;
- review documents; and
- details of any arrangements for anyone to act behalf of the local authority that placed the child 554.
A case record had to be kept until the 75th birthday of the person it related to. If a child died before reaching 18, the record had to be kept for 25 years from the date of death 555. Local authorities were responsible for keeping case records safely and confidential, although confidentiality could be lifted under legal provisions or if a court ordered it 556. These obligations undoubtedly strengthened record-keeping for children in local authority care.
The regulations also strengthened arrangements for monitoring children in care. Local authorities had to make sure that a registered medical practitioner (such as a doctor) examined children before they were placed. They also had to provide children with health care during the placement 557. Furthermore, they had to make sure that the child was visited within a week of being placed. After this, visits had to take place at least every three months, or whenever local authorities felt it was necessary to safeguard or promote the child's welfare. Local authorities had to keep written reports on visits 558.
A local authority could, by giving written notice, end a placement if it felt it was no longer in the child's best interests 559.
New regulations were also introduced to govern how secure accommodation should be provided in residential establishments, designed to work alongside the Residential Establishments-Child Care (Scotland) Regulations 1996 and replaced the previous sets of secure accommodation regulations 560.
The new regulations (the Secure Accommodation (Scotland) Regulations 1996 561) covered any child looked after by a local authority or for whom the local authority was responsible under criminal procedure laws. Consolidating the previous legislation in this area, they again required the Secretary of State to approve any arrangements to use part of a residential establishment as secure accommodation 562. And, as before, managers and owners had to make sure to safeguard and promote the welfare of a child placed in secure accommodation 563. A record of the child's placement also had to be kept, including details of the child and any reviews of the child's placement under section 73 of the 1995 Act 564.
The most notable change that the regulations introduced was to reduce the maximum period that a child could be kept in secure accommodation without the authority of a children's hearing or a sheriff. This was cut from seven days to 72 hours. The period for calling a children's hearing to consider a child's case was also shortened 565. Finally, local authorities could now set up secure placement review panels. These could review the case of any child detained by a local authority in secure accommodation under the Criminal Procedure (Scotland) Act 1995 566.
The Regulation of Care (Scotland) Act 2001
Perhaps the most significant recent development in the care provided for children and young people has been the Regulation of Care (Scotland) Act 2001 (we've called this the 2001 Act from here on).
Various consultation papers were published before the Act took effect, making detailed proposals for new arrangements to regulate care services and the social services workforce. These papers considered:
- how to modernise social work services in Scotland;
- the first and second sections of draft national care standards covering, amongst other things, older people, people with mental health problems, and children and young people; and
- the future of care homes under the new legislation 567.
As a result, the 2001 Act established a new independent body to regulate care services in Scotland, known as the Scottish Commission for the Regulation of Care (also known as the Care Commission) 568. This created a system under which care services were to be registered and inspected against a set of national care standards, and subject to enforcement action. Furthermore, the Act established another independent body, the Scottish Social Services Council, to regulate social service workers and promote and regulate their education and training.
It's interesting and significant that the explanatory notes to the 2001 Act 569 described the way that care services were regulated before 2001 as "patchy", and considered that many of the services were regulated under laws, rules and regulations that seemed to be outdated. The need for change highlighted in the Act recognised that not all care services had to be registered or inspected: those that were, were regulated and inspected by different bodies.
We've seen, for example, that private and voluntary sector residential care homes were regulated by local authorities; private nursing homes by health boards; and secure accommodation for children by the Social Work Inspectorate. Some services, such as residential care homes run by local authorities and support services for people at home weren't subject to registration at all.
It was also widely recognised that the various standards weren't being consistently applied, and that there was a lack of efficient integration between different services being provided by the same establishment. The 2001 Act, therefore, aimed to "modernise and standardise" how care services were regulated, to ensure people's trust and confidence in the effectiveness of the system. These care services included:
- residential care for children;
- children's early education, day care and child-minding;
- adoption and fostering services; and
- care and welfare in boarding schools, school hostels and in accommodation for offenders.
For the first time, all local authority care services had to register and meet the same standards as the independent sector provided.
The Act therefore set out to plug gaps in the framework for regulating care services. In doing this, it changed existing legislation in various ways. Most notably for our purposes, this included replacing sections 60-68 of the Social Work (Scotland) Act 1968; schedule 9 of the Children Act 1989 (as it applied to Scotland); and some other minor changes and repeals.
Notable features of the 2001 Act
The 2001 Act provides us with the most modern, significant piece of legislation for regulating care services for children and young people. Alongside the 1968 Act and 1995 Act, it forms a crucial part of the modern legal framework. So it's important to examine some of its provisions more carefully to help us understand the current position.
The Act is divided into seven parts, and Part One is perhaps most noteworthy for creating the Scottish Commission for the Regulation of Care 570, an independent, non-departmental public body accountable to Scottish Ministers. The Commission's job includes promoting improvements in care services in Scotland 571, and acting in line with instructions given to it by, and under the general guidance of, Scottish Ministers 572. It therefore has a crucial role to play in how care services are regulated today. Indeed its aim was to replace a fragmented and inconsistent system of regulating services with a comprehensive system of registration and enforcement in line with published standards 573.
The Commission took over the tasks of registration, inspection and enforcement previously undertaken mainly by local authorities and health boards. However, it has no role in overseeing or supervising how to decide what services are needed or provided. This remains a legal duty for local authorities under the Social Work (Scotland) Act 1968.
The 2001 Act also deals with the range of care services that have to be registered with the Commission 574. Section 2(3) defines a "care home service" as one which provides accommodation - along with personal
care, personal support or nursing - for anyone, including children, because of their vulnerability or need. Local authority care homes have to be registered, and nurses can be employed to provide nursing care 575. The care and accommodation must be inextricably linked 576 for a care service to be considered a care home. If this isn't the case, the Commission registers and inspects the care being delivered as a support service under section 2(2). The importance of such a section on care home services is that it brings together the previously separate definitions of residential care homes and nursing homes under the single definition of a care home.
The Act then goes on to deal with other possible types of care service, perhaps most importantly defining "school care accommodation" and "secure accommodation for children". School care accommodation is classified as residential accommodation provided for school pupils by a local authority or by an independent or grant-aided school, and covers services to children boarding at an independent school, school hostels provided by local authorities and special schools 577.
Secure accommodation for children is recognised as residential accommodation approved by Scottish Ministers in line with regulations under section 29(9)(a) of the Act 578, catering for some of the most vulnerable children and young people in Scotland. The Commission now regulates these services, but Scottish Ministers remain responsible for approving secure accommodation under section 29(9).
The Commission's chief priority is obviously to enforce the regulations that apply to these services overall. Section 4 of the 2001 Act provides greater accountability by requiring the Commission to publish information about the availability and quality of care services. This can include details of what types of services are available as well as the results of the Commission's inspections of care services 579. The Act also requires procedures to be put in place to deal with complaints by the people who use care services regulated by the Commission, their relatives, advocates or staff 580.
However, perhaps the Commission's greatest obligation under the Act is that of enforcing the registration and inspection procedures. Generally, the Commission has to take national care standards 581 - focusing on the needs of people who use care services - into account when making any decisions about registering, inspecting and enforcing care services. This is the case whether the services are registered under Part 1 or Part 2 of the Act 582. Under section 7, anyone seeking to provide a care service must apply to the Commission to register the service 583, giving whatever information the Commission asks for and identifying who will manage the service 584. If someone provides more than one care service they must apply to register all services 585. This is also the case for anyone providing a care service from two or more settings: they have to register each setting as a separate service 586.
These stringent requirements ultimately tighten the regulation of these care services. The Commission can serve an improvement notice on any care service that doesn't meet the standards imposed 587, and any service that fails to comply with an improvement notice can have its registration cancelled 588. The Commission can also cancel or deny registration if someone commits an offence under the Act, such as:
- describing a service as a care service but without being registered 589;
- failing to display a certificate of registration 590; or
- failing to comply with any of the regulations introduced under section 29 of the 2001 Act 591.
It's also an offence to intentionally obstruct an inspection 592 - and inspections are thoroughly dealt with under the 2001 Act. It allows inspectors authorised by the Commission to inspect at any time any premises used or believed to be used in connection with a care service 593. Crucially, the Act states that all care services offering 24-hour care away from home should have at least two inspections a year, with one or both being unannounced 594. Unannounced inspections are, therefore, an important part of the current system of regulation. Those services subject to two inspections a year under the Act are care homes, school care accommodation, secure accommodation and independent health care services that offer 24-hour care 595. The Commission must ensure that all other care services are inspected at least once every 12 months 596.
Inspectors' duties underline the importance placed on inspections. They can ask to see records or other documents, wherever these are kept, and can ask whatever questions they feel are appropriate about how the service is run or how residents are treated 597. They also have an extremely important power to interview, in private, the manager, employees, or any resident who agrees to be interviewed 598. Inspectors who are medical practitioners or registered nurses can also examine a resident, or their medical records, if there's any concern - or if they believe - that the resident may not be getting proper care 599. The examination is in private, and inspectors need the resident's agreement. Inspectors may also remove any material that could be used as evidence that a care service may not be meeting its requirements 600. And any inspection under the Act requires the Commission to prepare a report to be sent to the registered person and made available to the public 601.
The Act also introduces an interesting new measure to inspections. It requires the Commission's inspectors to collaborate with inspectors of schools where services have both care and educational components 602, such as school care accommodation, secure accommodation and day care of children 603. The 2001 Act, therefore, is clearly much more detailed and thorough in what it requires of inspections, and gives inspectors wide and varied powers.
However, one fundamental difficulty for the Act is the difficulty it has in striking the right balance between effective powers to investigate - to enable it to regulate services in a meaningful way - and respect for the rights to privacy and property of the people who provide care services 604. The Commission is a public authority under the terms of the Human Rights Act 1998 605. So it must act in line with the rights that people who provide care services have under the European Convention of Human Rights 606. The 2001 Act makes it possible to interfere with these rights. As a matter of principle, it is possible to justify this as necessary to protect the rights of the people who receive care services, but in practice many difficult and sensitive decisions have to be made 607.
Nonetheless, the Act goes as far as providing extensive powers to make regulations that cover care service premises and how the services are managed, staffed and run. And it does so in far more detail than previous laws. The Act gives a general power to make regulations to impose any requirements that Scottish Ministers request 608. Regulations may, for example:
- make sure that care services are suitably managed, staffed and equipped and that premises are fit for their purpose 609;
- safeguard the welfare of people who receive care services (indeed they may specifically promote and protect residents' health and regulate how services control and restrain residents) 610; and
- prohibit someone from being appointed to manage or work in a care service if they're not on a register of social care workers maintained by the Scottish Social Services Council 611.
Scottish Ministers can also dictate, through regulations, how care services should be provided. This covers areas such as facilities and services, record-keeping, notifying significant events and how to deal with complaints 612. The Act, therefore, gives much wider scope to regulating care through both primary legislation (Acts of Parliament) and secondary legislation (how Acts are implemented).
However, one issue has yet to be addressed relating to recent regulations introduced under such powers. The Regulation of Care (Requirements as to Care Services) Scotland Regulations 2002 613 set out the requirements that providers of care services must now comply with under the 2001 Act. The regulations specify, amongst other matters, people who are not fit to provide, manage or be employed in care services. They also extend to residents' welfare, the fitness of premises and the need to keep records 614. However, they also state that a care service must comply with certain general principles and require the provider of the service to prepare a written statement of the "aims and objectives" of the care service 615. It is here that potential confusion may arise in its relationship with the Residential Establishments - Child Care (Scotland) Regulations 1996, discussed above.
The implication seems to be that, with the introduction of the 2001 Act, there's uncertainty about whether the 1996 regulations still apply. The understanding in practice may be that the 1996 regulations only apply to homes directly run by local authorities, and that the 2002 regulations supersede the inspection procedures in all other areas. In other words, one is governed by the terms of the Social Work (Scotland) Act 1968, and the other by the terms of the 2001 Act. If this is the case, however, then inspectors can only enforce the need to provide a written statement of aims and objectives required under the 2002 regulations: there's no such requirement that all residential care services provide a statement of functions and objectives to be reviewed annually, as in the 1996 regulations. This could potentially lead to questions over whether an inspector from the Care Commission can rightfully inspect a home's statement and check that it's been reviewed, and, crucially, that it's operational. Such a gap, we suggest, could hinder the provision of quality care 616.
Overall, however, it's apparent that the 2001 Act marks important advances in regulating care services for children and young people, both in detail and efficiency. Operating alongside the main legal provisions of the Social Work (Scotland) Act 1968 and the Children (Scotland) Act 1995 that are still in force 617, there is no doubt that the 2001 Act implements some crucial changes, and establishes itself as one of the core components in the legal framework for regulating care services.