Legislative and Policy Development
Q2: Legislative and Policy Development - This revised guidance seeks to reflect legislative and policy developments since 2014 and include relevant learning from practice and research.
Are you aware of any additional legislative or policy developments, research or practice that should be included?
Stakeholder Event Themes
The main themes raised at the stakeholder events were:
Overall, the coverage of policy themes is good and thorough.
The legislation section provides a comprehensive framework of developing local practice.
The Promise could be given more prominence, as could the UNCRC.
Other themes that could be given greater coverage within the guidance included: transitions, including transitions to adult services and the role of Education Services.
The guidance, and in particular the coverage of policy and legislation, will need to be kept up to date in order to remain relevant and at its most useful.
Around 100 respondents made a comment at Question 2. Please note, however, that the analysis presented here also draws on comments made at other questions.
General observations at Question 2, which often appeared to refer to Part 1 of the guidance in particular, included that it is comprehensive, detailed, easy to use and up-to-date. However, there was also a view that the draft guidance does not reflect contemporary policy and practice. Examples given included around progress in transforming services and around working in partnership with children, young people and families. Other issues which respondents thought should be given greater prominence are set out below.
Other general comments included that the Scottish Children's Reporter Administration's research on complexity in the Scottish legislative and policy landscape could be referenced.
It was noted that there are a number of references to guidance which has been or will be updated. It was suggested that a summary of these, possibly in tabular form, would be helpful. It was also suggested that, to avoid the newly published guidance becoming quickly out of date, consideration should be given to how it will be regularly updated and how any changes will be communicated at both national and local level.
Although a number of the comments addressed the current content of the guidance, and Part 1 in particular, some respondents (as per Question 2), identified additional legislative or policy developments, research or practice that should be included.
Specific policy themes that respondents felt are under-represented and/or should be given greater prominence included The Independent Care Review and The Promise. It was suggested that coverage of The Promise could be strengthened given that it will be a significant lens through which practice will develop in the coming decade.
One suggestion was that there should be a standalone section on The Promise and UNCRC. However, it was also suggested that substantive revision of the whole guidance is required and that these issues, along with a whole system approach to child protection, and other relevant international human rights standards, should be reflected across the guidance. These issues are covered further below in relation to the Principles underpinning this guidance section.
There was also a concern that some aspects of the legislation and policy development referencing may serve to undermine the importance of taking a whole system approach. It was seen as important to place a consistent emphasis on shared responsibility and supporting individual agencies in understanding and fulfilling their responsibilities. It was felt that one of the strengths of the 2014 guidance, the 'child protection is everyone's responsibility' narrative, appears to have been diluted in the revised guidance.
With reference to transitions, it was noted that the guidance outlines practice around the transition between child protection systems and adult support and protection (under Interface between child and adult protection), and it was suggested that ensuring that the wellbeing and needs of children and young people are met is particularly important when considering transitions from children's services to adult care and protection services. Related points included that the language used across the guidance should emphasise the importance of maintaining and supporting the relationships that matter to children and young people during these significant changes in their lives. The conclusion was that there is an opportunity to revise the guidance in ways that are framed by the importance of ensuring the best interests of children and young people are met.
Other areas of policy that respondents wanted to see covered or expanded upon included:
- Trauma-informed practice. An example of this is supervision not being robustly reflected throughout the document.
- The role that communities play in preventing and protecting children from adversity and in helping children to cope when they have experienced early trauma.
- Effective inclusive communication with children and young people. There was a call for more focused and structured guidance on how practitioners from all services should approach identifying and responding to communication challenges and strengths.
- Barnahus, especially since Children 1st and partners are currently in the process of setting up a test, learn and develop Barnahus pilot and the stated intention of the Scottish Government is to develop Scottish Barnahus Standards and consider a nationwide approach to Barnahus in Scotland.
- The principles of the Safe and Together Model.
- Drug and alcohol use by children and young people, to assist practitioners to recognise and address these harms.
- Female Genital Mutilation (particularly around the ability to secure protection orders).
- The new Joint Investigative Interviewing (JII) model as an example of how our growing understanding of trauma is informing new developments in Scotland. The guidance should set out that trauma-informed principles are central to the Scottish Child Interview Model and are woven through this new model of practice.
In terms of how models of practice are currently presented, while it was seen as helpful to share examples of models, it was reported that this comes with a danger that the models or approaches featured may be seen as preferred. It was suggested that references to intervention programmes or models of practice should be detailed within the resource section alone, to avoid confusion in areas of Scotland that have chosen not to adopt a specific practice approach mentioned, and to avoid any impression that any model is being cited as a national recommendation.
Finally, it was also suggested that there is insufficient emphasis on the important role of the education sector throughout the document. The core contribution from designated officers from education, at all stages of investigation and assessment, should have greater prominence within the guidance. The importance of early years on child development and wellbeing was also highlighted and it was suggested that there should be a standalone section on early learning and childcare.
In terms of legislation which should be given greater prominence, or about which coverage could be expanded, suggestions included:
- That which emphasises the responsibilities of agencies to work jointly together to plan, develop and deliver services which contribute to the care and protection of children could feature more prominently.
- Given its significance, the Children (Equal Protection from Assault) (Scotland) Act 2019, including by providing additional guidance for staff. This theme is picked up again at Question 11.
- Details within the Children (Scotland) Acts.
- The legislation allowing the use of Operation Encompass to support children experiencing Domestic Abuse.
A general comment was that it would be helpful to include references to the legislation relating to prevention orders, along with guidance on how they can be used to protect children, such as Sexual Offences Prevention Orders.
Suggestions for other legislation or regulation which should be referenced with the guidance included:
- Adult Support and Protection (Scotland) Act 2007.
- Children (Scotland) Act 2020, given the high numbers of proceedings in the civil courts involving families experiencing domestic abuse.
- Disclosure Scotland Act 2020.
- Domestic Abuse Bill (currently at Stage 1 at the Scottish Parliament), which will make provision for domestic abuse protection notices and orders.
- Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which has now been passed with amendments.
- Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016.
- Islands (Scotland) Act 2018 and how it will impact on implementation of the guidance.
- Mental Health (Scotland) Act 2015 should be noted as it is the update to Mental Health (Care and Treatment) (Scotland) Act 2003.
- The Duty of Candour Procedure (Scotland) Regulations 2018.
- Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019.
General comments about the presentation of legislation within Appendix C included that it is currently just a list with links, but a summary of the legislation highlighting why it is relevant would be helpful. Other comments were that:
- It is not clear why some legislation and policy is included in the main text and others in appendices. Such detail is important to how the guidance is interpreted and treated by various stakeholders and may influence how various practitioners understand the legislative obligations they are under.
- Given the volume of legislation and policy relating to child protection, it might be useful to have a separate document which lists everything. This would maintain consistency throughout the document, making it more accessible to practitioners.
- If legislation is to be referenced, then this should be done in a manner that precisely reflects the section of the legislation being referred to.
- It would be helpful to set the legislation out in date order.
- When offering further detail on one piece of legislation, the content should be structured as is done in relation to the Children's Hearings (Scotland) Act 2011.
- Throughout the document there are references to forthcoming Bills / Acts and future implementation dates. It is assumed that once the legislation is enacted, these references will be updated accordingly, for example in relation to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.
- There is potential to include examples of good practice in the use of legislation to keep children safe e.g. use of trafficking legislation, coercive control in the context of domestic abuse and forced marriage protection orders.
Guidance, standards, practice notes or tools
Suggestions for guidance, standards, practice notes or tools to be referenced included:
- Child Protection Service Delivery Standards, RCPCH and CPSIG. (2020).
- Common Core of Skills, Knowledge and Understanding and Values for the Children's Workforce in Scotland, Scottish Government, 2012.
- Continuing Care and the Welfare Assessment: Practice Note CELCIS, Clan Child Law and Care Inspectorate (2020).
- Decision making and consent, General Medical Council (2020).
- Domestic abuse: a good practice guide for social landlords, Association of Local Authority Chief Housing Officers, the Chartered Institute of Housing , the Scottish Federation of Housing Associations, Shelter Scotland and Scottish Women's Aid (2019).
- Giving Voice factsheets (various), Royal College of Speech and Language Therapists.
- Good practice service delivery standards for the management of children referred for child protection medical assessments, Royal College of Paediatrics and Child Health (2020).
- Guidance on Health Assessments for Looked After Children and Young People in Scotland, Scottish Government (2014).
- Health and Social Care Standards, Scottish Government (2017).
- National Framework for Child Protection Learning and Development in Scotland, Scottish Government (2012).
- National Risk Framework to Support the Assessment of Children and Young People, Scottish Government (2012).
- National Standards for Child Wellbeing and Protection in Sport, Scottish Government (2014).
- Principles of Inclusive Communication: An information and self-assessment tool for Public Authorities, Scottish Government (2011).
- Secure care: pathway and standards, Scottish Government (2020).
- Tayside Multi-Agency Practitioner's Guidance: Concern for Unborn Babies, Angus Child Protection Committee (CPC); Dundee City CPC and Perth and Kinross CPC (2020).
It was also suggested that the guidance should reflect the learning from agency caseload and caselaw information and complaints to various bodies, such as the Scottish Public Services Ombudsman.
Resources and references
Suggestions for additional resources and references to be included within the guidance and/or at Annex F) included:
- 2020 Vision: Hear Me, See Me, Support Me and Don't Forget Me paper, Carers Scotland Trust (2020).
- A Guide to Youth Justice in Scotland: policy, practice and legislation, Centre for Youth and Criminal Justice (2018).
- ACEs, Places and Status: Results from the 2018 Scottish Secure Care Census, Children and Young People's Centre for Justice (2018).
- Baby Brain: Neuroscience, policy-making and child protection. Critchley, A. Scottish Affairs, 29(4), 512-528 (2020).
- Can Scotland be Brave – Incorporating UNCRC Article 12 in practice, Margo Mackay and Rhona Matthews (2020).
- Chief Social Work Officers and secure care, Children and Young People's Centre for Justice (2017).
- Children looked after away from home aged five and under in Scotland: experiences, pathways and outcomes. Permanently Progressing? Cusworth, L., Biehal, N., Whincup, H., Grant, M. and Hennessy, A., University of Stirling (2019).
- Children's Rights and Inclusion Strategy, The Children's Hearings Scotland (2020).
- Contact Decisions in the Children's Hearings System, CELCIS, SCRA (2018).
- Decision Making by Health and Social Care Professionals to Protect an Unborn Baby: Systematic Narrative Review. Mc Elhinney H, Brian J. Taylor BJ and Sinclair M Child Care in Practice (2019).
- Emerging adulthood, a theory of development from the late teens through the twenties. American Psychologist, 55(5) 469-480, Arnett J.J. (2000).
- Ending Homelessness Together: High Level Action Plan, Scottish Government and COSLA (2018).
- Equally Protected research, Heilmann, A et al for NSPCC Scotland (2015).
- Infants born into care in Scotland: Initial findings, Scottish Centre for Administrative data Research (2020).
- Intercollegiate Document: Safeguarding Children and Young People: Roles and Competencies for Health Care Staff: 4th Edition, (January 2019).
- Leaving Care and the Transition to Adulthood, New York: OU Press Mann-Feder, V and Goyette, M. eds. (2019).
- Let's stop feeding the risk monster: Towards a social model of 'child protection', Brid Featherstone et al , Families, Relationships and Societies (2016).
- Look at Me: teens, sexting and risk report, internet matters and Youthworks (2020).
- Nursing 2030 vision, Scottish Government (2017).
- Polishing the Diamonds': Addressing Adverse Childhood Experiences in Scotland (2016).
- Poverty Safari: Understanding the Anger of Britain's Underclass, Darren McGarvey (2017).
- Pre-birth child protection. Critchley A, Iriss Insight 42. (2018).
- Protecting Children - A Social Model, Brid Featherstone et al, Policy Press (2018).
- Recognizing and Addressing Child Neglect in Affluent Families. Bernard, Claudia A Child and Family Social Work, 24(2), pp. 340-347 (2019).
- Sexual exploitation of children involved in the Children's Hearings System: A research report by the Scottish Children's Reporter Administration and Barnardo's Scotland (2020).
- The Children and Young People (Scotland) Act 2014 Part 9 (Corporate Parenting), CELCIS (2017).
- The judgment passed down by the Supreme Court of the United Kingdom against GIRFEC - The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland).
- The lion's den': Social workers' understandings of risk to infants, Ariane Critchley (2020).
- The new life stage of emerging adulthood at ages 18-29 years: implications for mental health. Lancet Psychiatry, 1(7), 569-576. Arnett, J.J., Zukauskiene, R., and Sugimura, K. (2014).
- The Student Carer Experience in Scotland report, Carers Trust Scotland (2020).
- Vulnerable Children in a Digital World, internet matters and Youthworks (2019).
- Vulnerable Young People and Their Experience of Online Risk, A El Asam (2018).
- Youth Homeless Prevention Pathway: Improving Care Leavers Housing Pathways, 'A Way Home Scotland' Coalition (2019).
Comments on Introduction and Parts 1 and 2
There was a range of comments relating to elements of the Introduction, Part 1 or the earlier sections of Part 2 of the guidance. These are presented below according to the order of the guidance. Please note that comments relating to the latter sections of Part 2 (Part 2(B): Approach to Multi-agency assessment in Child Protection) are the focus of Question 5.
General comments included that the Introduction should:
- Set out clear principles and themes which underpin the whole guidance. It was suggested that this could be done by combining existing sections, for example Principles, Practice points at any time and Child protection themes.
- Highlight the influence of key new developments, such as The Promise, which are the rationale for some of the changes relative to the 2014 version of the guidance.
- Include a more concise explanation of the shared responsibility for keeping children safe, and who is involved in this.
It was suggested that there should be a clear statement at the start of the guidance that informs readers that it should not be regarded as a definitive reference document. This was connected to a concern that practitioners may think it is an exhaustive list and not 'think beyond' what is referenced in the document.
Principles underpinning this guidance
There was a concern that the starting point for this guidance remains the system as it currently exists, with an associated suggestion that the guidance needs to be more visionary, rather than referencing the changes that need to be made within the confines of the current status quo.
As noted above in relation to the policy context, there were concerns that the guidance does not reflect the principles that underpin The Promise and the UN Convention on the Rights of the Child (UNCRC). Anticipating that the UNCRC (Incorporation) (Scotland) Bill will be successful and receive Royal Assent in 2021, it was suggested that substantial guidance on incorporating the UNCRC into child protection processes is required and that a children's rights-based approach must be much more explicit across the document as a whole.
In addition to UNCRC, there was a call for the guidance to be underpinned by other relevant international human rights standards, in particular, the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence (known as the Istanbul Convention). It was suggested that there needs to be more systematic reference to the key principles of Equally Safe throughout, especially in relation to gender inequality and its intersection with domestic abuse, wider structural inequality in society, and violations of children's rights.
Also in terms of the overarching themes that respondents wanted the guidance to reflect, suggestions included:
- There should be an emphasis on services working in partnership with children and families. There are numerous examples across the document of missed opportunities to identify where a strengths-based, partnership approach with families sits alongside the described processes and procedures.
- The centrality of a whole system approach to child protection and the shared responsibilities detailed within (among others) the Children (Scotland) Act 1995, the Children's Hearing (Scotland) Act 2011, and 'It's Everyone's Job to make sure I'm alright'. The guidance needs to provide all partners with a common understanding and starting point, from which joint action to support families is organised and delivered.
- That while Social Work holds a key role in the system, relevant legislation stipulates that it is the 'local authority' that is responsible to support a 'child in need'. The guidance includes much more prescription and direction in respect of the Social Work role than it does for other professional roles involved in child protection. This emphasis on Social Work may have the unwelcome effect of diluting the inherent, core responsibilities of other agencies/professionals and diminishing their role in partnership working in the context of child protection concerns. This needs to be reviewed.
Other comments included that it would be helpful to set out why the guidance does not present Human Rights and Data Protection as overarching themes.
Part 1 – The Context for Child Protection
Key Definitions and Concepts
Definitions of 'child'
A number of comments addressed the definition of a child set out.
It was noted that this section outlines the differing legislative frameworks by which a child is defined according to their age in Scotland, and that these differences are reflected through the guidance.
Nevertheless, it was suggested that a clearer definition would be useful, connected to a concern that ambiguity may confuse some practitioners who are less familiar with the different legislative definitions. As legislation and policy in relation to 16 and 17-year olds remains a 'grey area', there was a call for this aspect to be considered further within the guidance, particularly in relation to information sharing, rights and relationships.
Another suggestion was that while the information highlighting the legal complexities is helpful, the information should be framed by a clear, general presumption that a child is defined as a person under 18 years of age. This was described as in line with the UNCRC, currently supported by the Children and Young People (Scotland) Act 2014 (the 2014 Act) as well as by Getting it right for every child (GIRFEC) principles, and soon to be incorporated into Scots Law through the UNCRC (Incorporation) (Scotland) Bill. It was also reported that:
- The need to recognise and respond to a 16- or 17-year-old in need of protection as 'a child first' is recognised in the Scottish Government's Child Protection Improvement Programme's 2017 Report.
- A children's rights framework, and specifically Article 5 of the UNCRC, supports meeting the best interests of all children according to their developing capacity, in which increasing chronological independence does not mitigate a right to protection.
Other comments included that it would be helpful to be clear that the child cannot be defined as such until born. Before birth it is the unborn child or foetus.
Definitions of parents and carers
It was suggested that it may be helpful to consider the addition of reference to people giving birth in order to be inclusive.
It was also suggested that there should be references to a father's paternal rights and responsibilities, linked with being named on the birth certificate.
What is child abuse and child neglect?
It was noted that the term "non-organic failure to thrive" is no longer used by health professionals and has been replaced by "faltering growth", which is now recognised as a more appropriate term.
What is child protection?
There was a concern that the definition of child protection is not set out within the framework of children's rights (a child's right to be safe from harm, for their parents to be supported, etc.), and it does not clearly outline The Promise's challenge to readdress the balance of risk to take account of the risk of a child being removed from their family.
The definition was described as process-driven rather than being clear that harm and adversity occur when families are under pressure, lack resources and are unable to access the support that enables them to meet their child's needs.
What is child abuse and child neglect?
There was a concern that the definition of child abuse and child neglect does not describe that abuse and neglect can occur online or be facilitated using technology. It was reported that young people with offline vulnerabilities are at greater risk of harm online than other young people and that multiple offline vulnerabilities combine to increase online risk.
It was suggested that professionals need to be adequately trained in online safety and that assessment tools need to adequately capture the full range of online harms.
What is harm and significant harm in a child protection context?
A concern was raised over the definition - or lack of definition - in relation to significant harm.
Reflecting a similar concern to that relating to the definition of child protection, it was noted that the definition of harm and significant harm does not reference external or structural factors and does not refer to families.
What is a named person, lead professional and child's plan?
As at Question 3 (in relation to GIRFEC), there was some comment on the references to a named person. One perspective was that it offers a positive reminder. An alternative view was that the named person should not be referenced in national guidance but that, if local areas wish to use this language, it can be incorporated in guidance at a local level.
Other comments included:
- Given that 'named person' is not a legal construct, it may be more helpful to outline the function being described to ensure that the guidance is applicable in areas which have not adopted the term.
- Support for the referring to a 'Child's Plan Planning Meeting', which was seen as accessible, family friendly and as helping promote participation. It was suggested that an explanation of the name change early in the document would be helpful.
Information Sharing, Interagency Principles
The section on information sharing was welcomed, and described as helpful, although there was a query as to whether this section would sit better in Part 3 of the guidance.
Queries raised, or requests for more detailed guidance, included:
Clarity about young people aged 16-18 who may legally challenge their information sharing. It was reported that young people may not see themselves as in need of child protection measures and as legal adults in other contexts, the sharing of their information may be a challenge to their privacy rights.
More emphasis on all practitioners/professionals working with adults who are parent/carers needing to have an understanding of their role in relation to sharing information.
Further detail around how information is shared with universal services, including education.
Guidance on information sharing with the employers of those undertaking regulated work and/or working in the voluntary or third sector. This was connected to investigations when a child protection concern is raised, and the employer is dependent on receiving or seeking information from Disclosure Scotland.
Other suggestions included that it would be helpful to have a separate box outlining the guiding principles for sharing information in a child protection context.
There was a query in relation to how professional judgement and the General Data Protection Regulation (GDPR) line up, and which takes precedent, as both seem to be a legal duty.
Duties to protect
It was suggested that the information on the Education (Additional Support for Learning) (Scotland) Act should highlight that the Act puts a proactive duty on local authorities to make arrangements to identify which children have additional support needs, and to identify their particular needs.
Part 2: Roles and Responsibilities for Child Protection
General comments included that:
Part 2 does not refer to children or to families themselves. This was described as a significant omission, given the stated initial principles to work in partnership with families.
There should be clearer statements on the role of all key professionals in the child protection system, including individuals employed within Education Services, among others.
Single Agency Responsibilities for Child Protection
There was a view that a more balanced approach to reflecting the single agency responsibilities would help to re-affirm the message that "It's Everyone's Job to Make Sure I'm Alright". It was noted, for example, that for some of the single agency roles, the guidance consists of a fairly general description of the overall service provided, while for others it is a detailed description of particular duties towards children in need of care and protection.
Reflecting the view (as below) that education should be given more prominence, it was suggested that this section could be rearranged according to the order of where most referrals come from or, if not, should at least be presented in alphabetical order so as not to imply some other hierarchy.
Child Protection Medical Examinations
It was suggested that the coverage will need to be updated to reflect the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill having now been passed with amendments.
It was also reported that some updates will be required to reflect ongoing developments to embed the Clinical Pathway into practice.
Local Authority Education Services
It was suggested that as education is the main source of child protection referrals, its place should be further up the section on single agency responsibilities.
It was noted that Local Authority Education Services in Scotland do not routinely have 'governors', therefore without context this could cause confusion.
Comments included that it is important to close the legal loophole pertaining to missing in education and a student leaving an independent school for home schooling.
Young Carers Services
It was suggested that the guidance should note that teachers, GPs, young carer services and other youth professionals are also well placed to identify young carers.
It was suggested that the guidance should set out the role and potential of the third sector in more depth, including in terms of how statutory child protection agencies might collaborate with them to enable children to speak, to identify perpetrators, and thus help to protect children. It was suggested that examples could be given to assist statutory staff reading the guidance.
It was also suggested that this section should:
- Outline the experience, expertise and innovation offered by the third sector, including through specialised training and co-working.
- Not (as at present) focus on procedures and protocols on sharing with (or simply handing over) information to the statutory sector.
The concern was that the current coverage gives an unacceptable impression to statutory staff in relation to working equally with, and learning from, relevant, skilled and experienced third sector organisations.
Sport organisations and clubs
It was suggested that it is not easy to find the specific section on sport with the guidance, but also that within that section (or elsewhere):
- Some of the information could benefit from being updated, for example refreshing the links and placing more emphasis on the Standards for Child Wellbeing and Protection in Sport (2018).
- There should be information on the child protection risks that are most relevant to sport, for example those risks related to children in elite sport and the abuse of positions of trust.