Chapter 3 The regulatory framework: Observations, conclusions and recommendations
These observations are based on my consideration of the findings of the review's research into the legislation. They also take into account:
- the literature reviews that I commissioned and the records research undertaken by my researcher;
- information given to me by people my researcher and I interviewed during the review; and
- information found in files in the National Archives of Scotland ( NAS) and other archives.
They are my personal responses to what I have learned about the regulatory framework from 1950 to 1995.
This chapter has the following sections:
1. Understanding and implementing the legislation. The challenge
2. Observations on the Regulatory Framework
1. Understanding and implementing the legislation: The challenge
A vast number of legal requirements and powers governed how children's residential establishments were provided, regulated and inspected in Scotland from 1950 to 1995. They were complex and, in some cases, vague. The many regulations and rules had their origins in different government policies and were amended and repealed. As a result, it is very difficult to identify precisely what was current at any given point in time, a challenge which those delivering children's residential services must have faced and which may well have given rise to confusion and misunderstanding.
Some of the people we interviewed had professional experience in social work, education and health and had worked in the residential child care sector during the review period. They said that managers and staff in children's residential establishments were often unsure about, if not unfamiliar with, the relevant regulations and rules. Detailed guidance from government departments was said to compound uncertainty, particularly in the first half of the review period, when opportunities to brief and train managers and staff were very limited.
The Social Work (Scotland) Act 1968 recognised the need to consolidate and streamline legal provisions. Yet - as was also the case with the Children Act 1948 - the powers to modernise regulations for residential schools and children's homes weren't taken up for many years after the enactment of the primary legislation. This added to the potential for confusion among managers and staff and cannot have been in the best interests of the welfare and safety of the children in residential establishments.
A significant feature of the lengthy period that the review spanned was upheaval in the 1970s. This resulted from:
- major structural changes in social work services in Scotland introduced by the Social Work (Scotland) Act 1968;
- the re-organisation of local government in the mid 1970s; and
- the impact of problems in employment and the economy on services.
Such extensive and intensive change, which affected other public services such as health at that time, may well have drawn attention away from the needs of residential child care. It may have left those in the sector relatively unsupported as they sought to respond to new legislation; certainly that view was expressed by a number of those whom I interviewed during the review.
In considering the legislation I couldn't avoid asking these questions:
- What consideration was given by those introducing changes to the law, to the challenges that implementing the laws posed for the staff, managers and the authorities that provided residential schools and children's homes?
- When guidance was being written, was the lack of qualifications and training throughout the residential child care taken into account?
A number of the people we interviewed said that often legal requirements were misunderstood, there were ill-considered responses to changes in the law and, in some instances, the legislative requirements were ignored.
2. Observations on the Regulatory Framework
I identified several themes that helped me to formulate my observations on the legislative requirements and powers. I chose these because of their particular relevance to the welfare and safety of children in residential schools and children's homes. The themes are:
(i) Talking and listening to children.
(ii) Meeting children's needs.
(iii) Protecting children in residential establishments from abuse.
(iv) Ensuring accountability for children's welfare and safety.
(v) Monitoring and inspecting children's welfare and safety.
I recognise that the legislation of some 50 years ago was drawn up when society's attitudes and expectations were very different from those of today. Perceptions of these themes will have changed over time. And yet the themes seem to me to be relevant to children in residential schools and children's homes throughout the review period.
(i) Talking and listening to children
The laws that governed children's residential establishments during the review period only slowly developed to ensure that children in residential schools and children's homes were:
- treated with dignity;
- listened to; and
- had their views taken seriously.
Awareness and discussion of children's rights weren't evident in the 1950s and 1960s. The 1961 Approved Schools rules provided for children to be interviewed by inspectors, but there was no indication of the purpose of such interviews. The 1961 rules also required representatives of the managers to visit a school at least monthly and to speak to individual pupils. It's interesting to note that there is an associated reference to discussing with the headmaster any complaint made by a pupil. Beyond that, no detail is given.
The 1937 Act doesn't specifically require children to be interviewed or spoken to by authorised visitors or inspectors. However, presumably those who were involved in monitoring the welfare of the children placed in those homes by local authorities had opportunity to talk to the children. As we've seen in chapter 2, the terms of these rules and regulations remained unchanged through to 1987.
In interviews with retired government inspectors and from information in files held in the NAS, I learned that children were interviewed as part of the government inspection process throughout the review period. An NAS file dating from the 1960s has a prolonged exchange of minutes and correspondence between the then Secretary of State and the chairman of the managers of an approved school about the action of a government inspector in talking to children in the school without the presence of a teacher. The correspondence concludes with the Secretary of State affirming the appropriateness of the inspector's action, which, it's worth noting, resulted in an inappropriate punishment regime being discontinued.
The next development that strengthened the rather vague legal provisions for listening to children came in the Social Work (Scotland) Act 1968. This was in the context of introducing children's hearings. These, as we've already noted in this report, were a significant advance in the government's commitment to meet children's needs. They offered the prospect of placements that centred on children as opposed to being simply focused on children. The Children Act 1975 and the Social Work (Residential Establishments - Child Care) (Scotland) 1987 regulations further strengthened the legal provisions for listening to children. However, it wasn't until the Children (Scotland) Act 1995 was introduced that children's rights were embraced by the legislation including legislation governing residential schools and children's homes. The 1995 Act ensured that children's views should not only be sought and listened to, but should also be given credence and treated as an important consideration in ensuring their welfare and safety.
(ii) Meeting children's needs
The regulatory framework didn't ensure that children's residential care services responded sufficiently to the needs and entitlements of children requiring these services in the period from 1950 to 1968. It allowed children to be placed in residential establishments that were inappropriate to their needs.
The Social Work (Scotland) Act 1968 and the Education (Mentally Handicapped Children) (Scotland) Act 1974 indicated the developing commitment by the government to improving residential child care and tackling inadequacies in meeting children's needs. The 1974 Act acknowledged that "no child is ineducable or untrainable" and resulted in significant developments in residential special education. And yet I've learned that the interaction of established factors for determining children's placements - for example religious persuasion, age, gender and the availability of potentially suitable establishments in the child's family locality - continued to result in children being placed where their needs were not best met.
As I've noted earlier, the Social Work (Residential Establishments - Child Care) (Scotland) Regulations 1987 represented a significant step forward in addressing weaknesses in regulation. Children's placements improved as a result. But the fundamental developments in legislation - which were needed to ensure that the needs of children and young people being placed in residential establishments were met appropriately - only occurred at the end of the period under review, beginning with the Children (Scotland) Act 1995.
(iii) Protecting children in residential establishments from abuse
The regulatory framework, throughout the period of my review, reflected concern for the welfare and safety of children in children's residential establishments, and contained many provisions to that effect. Section 12 of The Children's and Young Persons Act (1937), for example, set out clearly a wide range of actions and neglect that were regarded as harmful to children and were against the law. The list, understandably, is set in language of its time but includes most of the forms of unacceptable treatment of children that we'd now include in a definition of abuse. It's reasonable to conclude that, had these provisions been observed as intended, the amount of abuse that has occurred in residential schools and children's homes across the review period would have been reduced.
The regulatory framework's schedule of what constituted abuse didn't alter over most of the review period. Legal provisions relating to sexual misconduct with boys were contained in legislation outwith that for residential childcare. Like the legal provisions for mistreatment, cruelty and neglect, they were originally framed with reference to abuse in the community. So although the law catered for protecting boys from sexual abuse, I believe it was unhelpful that there was no unified specification of abuse to inform managers and staff of residential schools and children's homes - as well as parents, guardians and children - throughout the review period. Those legislating were slow to take account of what was being learned about abuse in general.
Throughout most of the review period the legislation permitted corporal punishment in residential schools and children's homes; it wasn't until 1986 that this was prohibited in Scotland. Before then the legislation set limits on the amount of corporal punishment that could be administered. The tightening of these limits, particularly in the Approved School rules in 1961, suggests a concern and reflects a determination to moderate and contain this form of punishment. Corporal punishment was disapproved of by many of those who worked with children from before the beginning of the review period. There's also evidence that officers in the SED discouraged its use in the 1960s. An SED file dated 4 October 1968 includes minutes of a meeting about punishment in children's homes. An officer stated that corporal punishment should be abolished in children's homes: "to permit corporal punishment in children's homes only within a framework of rules is to deny that it really is a home". In another file containing the minutes of a meeting with representatives of the association of Approved School Headmasters Scotland, civil servants proposed that corporal punishment should not be used in approved schools. The minutes record the vigorous resistance from the heads of approved schools to this proposal. They viewed corporal punishment as a necessary part of disciplining and controlling children, a view which - it's important to note - was shared throughout schools, particularly secondary schools, at that time.
That corporal punishment continued to be permitted cannot have been conducive to protecting children in residential establishments from physical abuse. Some of those who contributed to our review, both professionals and former residents, spoke of the harsh regimes in some residential schools and children's homes, where corporal punishment was practised and used to excess. Their view was that in some residential schools and children's homes the permitted limits were ignored. In files in NAS, I found evidence of inspectors drawing attention to weaknesses in recording information about punishments in log books. For example, in files relating to a children's home in the 1960s, I found comments by an inspector who noted that no punishments were recorded in the log book. In another file, also from the 1960s, an inspector refers to telling the house father that he should keep records of punishments and fire practices. Monitoring corporal punishment depended on accurate and efficient record-keeping. Punishments, including corporal punishments, were to be recorded in the log book, which was to be examined by the medical officer, the managers and inspectors. In situations where record keeping was inefficient, those monitoring the entries would have been unable to make adequate assessments of the nature, frequency and type of punishments being given. It is also conceivable that some of the reported poor record-keeping about corporal punishment could have been because it was not seen to be wrong, or because the intention was to conceal what took place.
Legal provisions for responding to concerns about possible abuse were inadequate. The regulations did not require sufficiently specific and robust approaches to developing policies and arrangements for protecting children in children's residential establishments from abuse until late in the 1980s. Furthermore the regulatory framework did not promote collective and collaborative action for protecting children in residential establishments amongst the people who provided and monitored services to children until after 1995. This was despite calls for such action from the 1980s. The possibility of such action was illustrated by the inspections of secure accommodation undertaken by government inspectors from social work and education backgrounds.
(iv) Ensuring accountability for children's welfare and safety
The staff in children's residential establishments, the managers, the authorities who administered the establishments and the government were all accountable for children's welfare and safety. The administering authorities were directly responsible, as they assumed parental rights. Given that responsibility, it is interesting to note the prominence and detail of legal provisions relating to punishing and controlling children. Although these were extremely important, they contrast with references to ensuring children's welfare and safety, which, for the most part, are broad and undefined.
The regulatory framework from 1950 to 1987 is limited, vague or silent about three key areas
of accountability for children's welfare and safety:
- the qualifications of those delivering the care services;
- the suitability of staff for work with children in both care and education; and
- national standards of care.
Qualifications of staff
Clyde (1946), in highlighting the shortcomings in child care services, comments on the shortage of suitably qualified staff. However, the regulatory framework makes no reference to the need for staff in residential child care to have qualifications. The Children Act (1948) refers to the Secretary of State having powers to make regulations that he could be consulted about "the applicants for appointment to the charge of a home". No mention is made of qualifications. Evidently the criteria for appointing staff were left to the discretion of the administering authorities and to managers.
The absence of a requirement for all care staff to have recognised qualifications and appropriate continuing professional development, allowed unqualified care staff to be employed in residential schools and children's homes throughout the review period. In contrast, the 1933 rules governing Approved Schools specified that the qualifications of education staff were subject to approval by SED. The 1961 rules included a requirement that the managers, in consultation with the headmaster, should decide staff qualifications, subject to the Secretary of State's approval.
Changes in legislation for education, introduced in the 1960s, required that anyone employed as a teacher in a permanent post in any grant-aided school had to have recognised qualifications. The contrast between requirements for care and education is stark. It reflects the attitudes and values of the day and yet significantly illustrates the low status accorded to residential child care.
Some of the retired professionals who contributed to the review were of the opinion that, particularly in the first part of the review period, there was no expectation that people working in residential childcare needed qualifications. The reality was that for all of the period under review, the proportion of unqualified care staff in residential establishments remained high. This posed challenges in ensuring the quality and effectiveness of delivering services to children. In this regard the legislation did not ensure provision which was in the interests of either the staff or the children in residential establishments. As our literature reviews have shown, concern about this has been raised in reports of other reviews and inquiries into residential child care before, during and since the period spanned by this review. It is inexcusable that so little was done in response to these concerns and associated recommendations during the period spanned by the review. The lack of regulation to ensure that children were cared for by appropriately qualified staff was a weakness for which the government was accountable. To say that this judgement amounts to applying today's standards to yesterday's services is to deny the insights and the recommendations of many others in the past.
Suitability of staff
The regulatory framework was, at best, vague on the need to select staff suitable for working with children in residential establishments in terms of both character and temperament. Problems could and did result for children in residential establishments from adults appointed to positions of trust and authority who couldn't cope with the challenges of meeting the needs of children and managing their behaviour. A number of contributors to our review commented on problems of this kind. I have also read inspection reports, for example, that highlighted weaknesses in the leadership of residential schools. Recent research has shown the link between staff selection and effectiveness of services (Cameron and Boddy, 2007). The legislation gave no lead to recruiting, selecting and supervising staff. This didn't reflect an adequate response to ensuring the welfare and safety of the children and young people in residential establishments.
The risk of predatory paedophiles infiltrating the residential childcare sector was being recognised more openly during the last 15 years of the review period. But, as indicated in the literature review, there is evidence from reviews and inquiries, research, and other sources such as the press, of the sexual abuse of children in residential establishments in Scotland in earlier decades of the review period. Examples are The Edinburgh Inquiry into Abuse and Protection of Children in Care (1999), and research such as that undertaken by Kahan (2000). These have shown that individual abusers were known about and dealt with quietly or not at all. Despite this, and although detailed guidance on vetting applicants for employment in the sector was issued by the SWSG, for example in 1992, it wasn't until 2002 - some seven years after the review period - that legislation was introduced to establish a national vetting system. This was an unacceptably slow response to a major threat to children's safety. Accountability for failure to act appropriately in recruiting, selecting and reviewing staff rested with boards of managers, administering authorities and government. Improvements in recruitment, vetting and supervision procedures were developing in the latter years of the review period and have been introduced since 1995. These point to the importance of effective management in this critical element of protecting children in residential establishments. Sadly that lesson was learned at the expense of the children in the care of the state.
National standards of care
The lack of national care standards weakened accountability at the level of boards of managers, administering authorities and monitoring and inspection. Without these standards, it would have been particularly difficult to ensure consistency in assessing care. In these circumstances, standards of service could differ from institution to institution and from authority to authority, denying children and young people comparable levels of welfare and safety across Scotland. I've been told in interviews with senior professionals who worked in the residential child care sector during the period from 1970 to 1995, that the need for shared standards had been recognised by professionals and policy makers. A paper presented to the North East Branch of the British Association of Social Workers in November 2001 referred to development work on standards. This had gone on since the 1980s amongst professional staff in both the regional and voluntary authorities, with support from national bodies and associations (Hartnoll, 2001). It is to the credit of those who undertook this work that such good foundations for national standards had been laid. But the legislation to introduce national care standards wasn't introduced until 2002, seven years after the review period and some 10 years after the publication of Another Kind of Home (Skinner, 1992), the report that set out key principles for care services.
(v) Monitoring and inspecting children's welfare and safety
Throughout most of the period spanned by the review, there were specific if relatively narrow requirements in the regulatory framework to guide the focus of monitoring and inspecting children's residential establishments. Much was left to be determined at government department, administering authority or manager level.
A wide range of people monitored and inspected establishments. They included members of boards of managers, authorised visitors, medical officers, local authority children's officers, advisors and inspectors and government inspectors. Each observed and commented on particular aspects of services but, as noted in the preceding section, there were no prescribed standards of care to inform their evaluations, so they had to determine their own benchmarks or indicators. The legislation appears to reflect an assumption that these people would:
- know what to look at when they reviewed how establishments provided for children's welfare and safety;
- know how to assess what they saw; and
- be able to reach reliable conclusions.
That approach, although perhaps reflecting attitudes and expectations of the time in the period from 1950 to 1980, did not promote consistency in standards of care and weakened the accountability of monitoring and inspection. The regulatory framework did not foster a strategic approach to monitoring and inspection, including record-keeping, in children's residential establishments and among management authorities, until the final years of the review period.
This isn't to deny that individuals and certain organisations fulfilled a worthwhile role in evaluating and advising on quality and standards. Several of those who provided us with information mentioned and emphasised the work of children's officers and government inspectors. Their work, they told us, helped to identify weaknesses and promoted improvement. But, generally, the rigour, consistency and accountability of monitoring and inspection approaches for the care services were weakened by the lack of national standards or indicators of quality.
Developments in the last 15 years of the review period, prompted in part by other government policy initiatives to improve public services, led to substantial changes in monitoring and inspection approaches. They made inspections more transparent and more accountable to the people who used the services, more focused on outcomes and more independent. The establishment of arms-length inspection units was one example of the changes. The developments in general encouraged new ways of evaluating effectiveness and promoting improvement.
As noted earlier, the regulatory framework did not require levels of collaboration and co-operation between the various monitoring and inspection approaches and agencies which, in my judgement, were necessary in the interests of the welfare and safety of the children in residential child care. There continued to be concern that inspection was too closely linked to the providers' interests at both government and local authority levels. The legislation to introduce changes and establish independent inspection services was introduced 7-10 years after the review period and resulted in the establishment of the Care Commission, Social Work Inspection Agency ( SWIA) and Her Majesty's Inspectorate of Education ( HMIe).
- The regulatory framework was extensive, in many respects impressive, and of its time. It developed in response to changing understanding of the needs and entitlements of children. Over the review period it moved from a child focused to a child centred philosophy, from an approach to residential child care based on welfare to one based on rights, needs and welfare.
- It's all too easy to apply today's standards, understanding and expectations to the services provided yesterday, and it's important to avoid that risk. However, across the review period, the legislation largely made it clear what the required responses were from the people who provided residential child care, to ensure the welfare and safety of the children in their care. It also specified the limits of punishment. If the legislation been honoured in spirit and letter when it was being implemented, if the work of residential schools and children's homes had been supervised and managed as expected, then it's reasonable to conclude that the incidence of abuse would have been lower and the experiences and outcomes for many would have been better.
- The shortcomings that this review identifies in the legislation support the case made to me by most of those I interviewed that government didn't give residential child care sufficiently high status or priority. Intentions were sound, but implementation didn't always match the vision and possibilities.
Chapter 6 provides information about survivors' experiences which further endorse this case.
- Most of the gaps and inadequacies in the legislation for providing, regulating and inspecting residential schools and children's homes identified by this review from 1950-1995 were addressed by or after the Children Act 1995. The extent of additional regulation since then indicates the determination of government to refine the legislation and respond to changing circumstances in the best interests of the children in the care of the state.
Some 12 years after the review period the regulatory landscape has changed dramatically. Now legal provisions are founded on children's rights and are designed to ensure that their needs are met and their welfare is assured. It wasn't part of my remit to comment on the adequacy of the legislation from 1995 onwards or its outcomes. However, at this stage an audit would be timely, to consider the effectiveness of:
- the new legislation; and
- arrangements for monitoring and inspecting children's residential establishments.
The audit would ascertain the extent to which what has happened (the outcomes) match the intentions. And it would gauge the extent to which children in residential establishments are safer. I recommend that a National Task Group be established to undertake such an audit. It would be part of the role of such a group to:
i. audit annually the outcomes (those agreed through the Government's Vision for Children and Young People) for looked-after and accommodated children and report on the findings;
ii. audit the recommendations of previous reviews and inquiries to determine what action is outstanding and why;
iii. review the adequacy and effectiveness of the arrangements, including advocacy support, in place for children who wish to complain about the services they receive;
iv. monitor the progress in meeting the target of a fully qualified complement of staff in residential child care services, including the identification of barriers to reaching this target, and ways of overcoming them;
v. audit the quality and appropriateness of training and development for those employed in residential childcare;
vi. identify ways of making employment in residential child care a desirable career option;
vii. identify and disseminate best practice in recruitment and selection of staff in residential child care;
viii. ensure that monitoring and inspection focus on those aspects of provision and practice that will help to keep children safe and enable them to achieve their potential;
ix. monitor the extent to which self-evaluation is becoming established practice in residential schools and children's homes;
x. identify the most effective ways, through research and inspection findings and drawing on Scottish and international experience, of ensuring children's welfare and safety in residential establishments;
xi. review the quality and standards of accommodation for residential establishments and recommend improvements as necessary; and
xii. make recommendations for research and development.