Chapter 1 Introduction: the Legislative and Policy Context
IN THIS CHAPTER:
1. Primary Legislation
2. Underpinning Principles
a. Welfare of the Child
b. Consider the Views of the Child
c. Minimum Intervention and Avoidance of Delay
3. Relevant Strategies and Recent Initiatives
4. Equality and Diversity
5. Case Records
1. PRIMARY LEGISLATION
This guidance is founded upon the following primary legislation:
- Children (Scotland) Act 1995
- Adoption and Children (Scotland) Act 2007
2. UNDERPINNING PRINCIPLES
The following three principles underpin the primary legislation, the regulations and this guidance:
- To give paramount consideration to the welfare of the child;
- To consider the views of the child;
- To avoid delay and to make the minimum intervention necessary to a child's life.
The basis for these principles can be summarised as follows:
a: The welfare of the child is paramount.
This principle recurs in primary legislation as follows:
- Sections 11, 16 and 17 of the 1995 Act;
- Sections 14 and 84 of the 2007 Act.
The welfare principle is to be applied to decisions made in children's hearings and the courts, including the making of a Permanence Order (Section 84 of the 2007 Act) and matters relating to adoption (Section 14 of the 2007 Act). In practice, balancing the interests of children alongside the right to a private family life is no easy matter, and this is an issue returned to later in this guidance.
B: The consideration of the Child's Views
The requirement to consider the views of the child is expressed repeatedly in the legislation and regulations. The underpinning principle can be summarised as follows: children and young people should not be passive in decision making processes. They have the right to input into decisions about their lives and the services provided to them for the following reasons:
- Effective consultation underpins ethical social care: there is a legal and moral duty to consult children and young people about the decisions that affect them;
- Effective consultation has benefits for children and young people as a process, enabling them to feel more involved, effective and competent, and preparing them for the decision-making and responsibilities that come with adulthood;
- Effective consultation and participation improves outcomes for children and young people.
To increase the genuine consideration of children's views it is good practice that independent advocacy should be provided.
C: Minimum Intervention Necessary and avoidance of delay
All interventions in a family's life carry risks. These risks have to be balanced against the risks of leaving a child or young person in a harmful environment. This guidance will outline how this balance is expressed in the legislation and regulations, and how the inevitably complex debates could best be framed.
All decisions about a child's welfare need to be taken within a timescale that meet her or his developmental needs. The avoidance of delay is an essential part of good quality social care practice with children and young people. In order to co-ordinate services, a lead professional may be appointed. The lead professional will also be responsible for ensuring the different elements of a plan for a child are progressed.
3. RELEVANT STRATEGIES AND RECENT INITIATIVES
This guidance should be read within the context of the following significant initiatives:
- GIRFEC (Getting it Right for Every Child)
- Child Protection and Risk Assessment Guidance (2010);
- Code of Practice on Additional Support for Learning and Safe and Well in School;
- Integrated Workforce Developments (including Early Years);
- Children's Hearing Scotland Act 2011;
- Scottish Government policy and initiatives on Corporate Parenting;
- Reports and initiatives led by the Looked After Children Strategic Implementation Group
- Initiatives to hasten decision making about permanence and care planning
4. EQUALITY AND DIVERSITY
Both the 1995 and 2007 Acts require the consideration of the following characteristics of children and young people when making any important decision about them:
- Religious Persuasion;
- Cultural Background;
- Linguistic Background.
A young person's sense of their own identity can become very fragile in the care system. Separated from their birth parents, young people may struggle to retain a positive sense of their own cultural, racial and religious heritage. The isolation that many young people in the care system experience can further undermine their already damaged self-esteem, and these risks can be aggravated for disabled children or children exploring aspects of their sexuality; children, in other words, are not regarded by some of their peers as 'normal.' These issues are explored more fully elsewhere in this guidance.
5. CASE RECORDS
Young people leaving care often complain that they have no clear understanding of why they came into care, or ever fully understood the reasons for their movement between placements once they were in care. Case Records can play a vital role in holding practitioners to account, clarifying their thinking on specific issues and evidencing how they have reached specific decisions.
The Code of Practice on Records Management (2003) (sometimes referred to as the "Section 61 code") sets out the expectations of local authorities in terms of the maintenance and retention of records.