The Children (Scotland) Act 1995 Regulations and Guidance
Volume 1 Support and Protection for Children and Their Families
The Children (Scotland) Act 1995 marks a significant stage in the development of legislation on the care of children in Scotland. It is centred on the needs of children and their families and defines both parental responsibilities and rights in relation to children. It sets out the duties and powers available to public authorities to support children and their families and to intervene when the child's welfare requires it.
The Regulations, Directions and Guidance which are included in this and the other two volumes are designed to provide guidance on the implementation of Parts II, III and IV of the Act. Guidance on the implementation of Part I of the Act (the Private Law Provisions) has already been published to accompany the implementation of that Part of the Act on 1 November 1996.
The full implementation of the Act also requires complementary Rules of Court which govern procedures applying to the whole range of children's cases which come to court, both in family proceedings and in those which involve public authorities in the discharge of their duties towards children. These Rules are issued separately.
The essential principles behind the Act, which is the primary legislative framework for Regulations, Directions and Guidance, are
- each child has a right to be treated as an individual
- each child who can form a view on matters affecting him or her has the right to express those views if he or she so wishes
- parents should normally be responsible for the upbringing of their children and should share that responsibility
- each child has the right to protection from all forms of abuse, neglect or exploitation
- so far as is consistent with safeguarding and promoting the child's welfare, the public authority should promote the upbringing of children by their families
- any intervention by a public authority in the life of a child must be properly justified and should be supported by services from all relevant agencies working in collaboration.
In support of the principles three main themes run through the Act
- the welfare of the child is the paramount consideration when his or her needs are considered by courts and children's hearings
- no court should make an Order relating to a child and no children's hearing should make a supervision requirement unless the court or hearing considers that to do so would be better for the child than making no Order or supervision requirement at all
- the child's views should be taken into account where major decisions are to be made about his or her future.
In addition, there is a requirement at various parts of the Act for those providing for children to have regard to religious persuasion, racial origin and cultural and linguistic background.
Within these volumes are published, alongside the guidance, the relevant Regulations and Directions. Regulations and Orders are types of subordinate legislation made by the Secretary of State under statutory powers. They take the form of a Statutory Instrument and are subject to Parliamentary procedure. Local authorities must comply with the terms of such Regulations. The Secretary of State also has power to issue Directions to local authorities under section 5(1A) of the Social Work (Scotland) Act 1968. Directions are not subject to Parliamentary procedure but local authorities must comply with such Directions.
The Secretary of State may also issue guidance under section 5(1) of the Social Work (Scotland) Act 1968 which gives him the power to issue general guidance to local authorities. Authorities are under a statutory obligation to perform their functions under the general guidance. Guidance in these volumes contains descriptions of the primary legislation (the Act), the secondary legislation and Directions with which authorities have to comply. This guidance needs to be read strictly within the terms of the Act and the subordinate legislation and Directions made. It does not interpret the law; that is for the courts. While local authorities are under an obligation to perform their functions under the general guidance, they have a discretion as to whether or not to follow it in a particular case. However, if challenged or questioned (for instance by a member of the public or even a court), they may have to justify a decision not to follow the guidance.
The guidance is issued by the Secretary of State to local authorities under section 5 of the Social Work (Scotland) Act 1968. It is addressed principally though not exclusively to local authorities which are the main public agencies with duties and powers conferred on them by the Act. Local authorities are regarded as corporate entities, discharging functions of social work, education, housing and recreation which affect children. It is also addressed to the police and the health service as making a valuable contribution towards services for children through Health Boards and NHS Trusts. A duty is laid down within the Act for other local authorities and for Health Boards and Trusts to collaborate with local authorities - when requested - in the discharge of functions under the Act. The guidance is of relevance to voluntary organisations commissioned to discharge functions under the Act. Finally, those engaged in the Children's Hearings System will wish to be aware of the guidance, particularly as it affects provision for children who may be in need of compulsory measures of supervision.
The volumes of Regulations, Directions and Guidance are under the following headings
Support and protection for children and their families (Volume 1)
Children looked after by local authorities (Volume 2)
Adoption and parental responsibilities orders (Volume 3)
Some topics covered within those headings are covered by Regulations and Guidance and others are appropriately covered by Regulations or Guidance.
A final volume contains a bibliography and an index of the key words and phrases which feature in the preceding volumes.
In dealing with different aspects of child care each section of guidance is cross-referred to others. Common elements are to be found in, for example, the guidance dealing with children looked after, residential care, secure care and aftercare. The guidance is designed to be interrelated and not to be used in discrete sections. Those who use the guidance to assist them in playing their parts in implementing the Act should find it useful to familiarise themselves with the whole range which is set out in this and succeeding volumes, while at the same time concentrating their attention on the particular sections most closely related to their roles and functions.
The guidance should assist managers and practitioners with the functions which come within the Act but full preparation for performance of individual roles and functions will also depend on training devised for the purpose.
The guidance does not of itself impose duties and powers and it should be used by local authorities and others in assessing local needs, delivering services and determining policies and priorities, within the resources available to them. This will inevitably involve reappraisal of current resource priorities and, where necessary, progressive implementation of policies and programmes, within the statutory framework set by the Children (Scotland) Act 1995.