7 The children (Scotland) Act 1995
In 1993 a White Paper 'Scotland's Children: Proposals for Child Care Policy and Law' was published. This emphasised the confidence of the government in the children's hearings system and its commitment to it but recommended some reforms, particularly in relation to emergency protection of children.
The Children (Scotland) Bill followed in November 1994. While emphasising children's rights and needs and the importance of working in partnership families, the government also stressed the need to ensure that young people who commit offences were dealt with effectively. The provision of care services must not shy away from the need to set clear boundaries for young people and point out the consequences of failing to respect the rights of others.
During the progress of the Bill through Parliament there was a substantial amount of consultation and amendment. The Special Standing Committee met in Scotland for the first time in February 1995 and took evidence from, amongst others, families and organisations concerned with children's welfare and rights. Royal Assent was given on 19 July 1995.
The Children (Scotland) Act 1995, implemented on 1 April 1997, marked a significant stage in the development of legislation on the care of children and largely replaced those parts of the Social Work (Scotland) Act 1968 which relate to children. It is centred on the needs of children and their families and also defines parental responsibilities and rights in relation to children.
It established in Part 1, the private law section of the Act, that in order to retain rights in respect of their children, parents were required to fulfil their parental responsibilities. In certain circumstances, parents may be deprived of their parental rights.
In addition to the legislative framework for the children's hearings system, the Act also 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.
Principles and Themes
The Act reaffirms that the positive development of child care should be based on clear principles. Thus, whilst retaining and building on the fundamental Kilbrandon philosophy and principles, it incorporates provisions which conform to commitments under the United Nations Convention on the Rights of the Child, which was ratified by the British Government in December 1991. (See Appendix 1). It also sought to take account of obligations under the European Convention on Human Rights. (See Appendix 2).
The following key principles of the United Nations Convention on the Rights of the Child are implicit themes in the legislation or explicit requirements on decision-makers:
Every child has the right to be treated as an individual
Although some basic needs are universal, there can be a variety of ways of meeting them. Each child is unique. It is not in the interests of individual children to be treated as 'cases' or according to rigid rules. This has potential consequences for hearings and others, when a number of children in a particular family are referred and their needs, as individuals, may differ.
Children have the right to express their views about any issues or decisions affecting or worrying them
The views and concerns of children should always be taken seriously and given due weight in reaching decisions. Child care policy should be based on listening to children.
Every effort should be made to preserve the child's family home and contacts
Children generally fare better in the long-term if they experience family life in the care of their birth parent(s). Authorities should make every effort to preserve the child's family home and contacts. A range of services should be available to sustain children safely in their family home through difficult periods. However, sometimes the risks to a child at home are so great that reception into public care is the best option. Removing a child from the care of his or her birth parent(s) is not an action which should be taken lightly. If a child is received into care, changes of placement should be minimised as they can be disruptive to the child's development.
Parents should generally be responsible for the upbringing and care of their children
Parents should be expected and supported to fulfil their responsibilities to their children. If a child cannot live at home either temporarily or permanently, parents should be encouraged to remain as closely involved as is consistent with the child's welfare. Responding to the needs of parents and working in partnership with them can be an effective and direct means of promoting the child's welfare. Contact with a child living away from home, or one of the parents, requires careful consideration and may raise complex issues when the parents' rights to main contact with a child are considered to be harmful for the child.
Children, whoever they are and wherever they live, have the right to be protected from all forms of abuse, neglect and exploitation
All reasonable steps should be taken by authorities to prevent children within their area suffering from any form of ill-treatment or neglect. The duty to provide any necessary protection must remain a top priority. Children in all settings may be at risk from trusted adults and some children, including those with disabilities, may be especially vulnerable.
Every child has the right to a positive sense of identity
The child's rights to a positive sense of identity can be encouraged through respect for the child's race, colour, sex, language, religion, disability and ethnic or social origins and the child being given appropriate information about his or her family background. Children should be treated without discrimination irrespective of their background. All children also have the right to expect that any personal information will be handled sensitively.
Any intervention in the life of a child or family should be on formally stated grounds, properly justified, in close consultation with all the relevant parties
Care should be taken to ensure that children and parents are fully aware of what is happening in any intervention by the State in their lives and that they are clearly informed of the time-scales involved in this process. The separation of children under sixteen from their parents against the wishes of any of them should take place only when a competent authority determines that such a step is necessary and where the action is subject to clear legal procedures and open to legal challenge. The welfare of the child should be the most important factor in all action taken in relation to children, whether it takes the form of compulsory or voluntary measures of intervention.
Any intervention in the life of a child, including the provision of supportive services, should be based on collaboration between all the relevant agencies.
All children are entitled to expect good health care and education. Local authorities have a responsibility to provide services and assistance for children and families which will promote their general welfare. Children have the right to expect that professionals from social work, health, education and other services will collaborate in a child-centred way by fulfilling their own roles while understanding and respecting the contributions of others. It is important to ensure that the efforts of all those working for children benefit children.
The hearings system covers entry of children from birth to sixteen, although supervision may be continued up to age eighteen. The United Nations Convention on the Rights of the child defines anyone below the age of eighteen as a child unless under national law majority is attained earlier.
Key principles underpinning decision-making
The Children (Scotland) Act 1995 requires courts and children's hearings to bear in mind the following central principles in reaching decisions:
- the welfare of the child is the paramount consideration in most decisions being made by courts and children's hearings (unless members of the public need to be protected from serious harm)
- children should be given an opportunity to express a view and, if they do so, consideration should be given to the child's views; children of twelve or over are presumed to be sufficiently mature to be able to form a view
- no court should make an order relating to a child and no children's hearing should make a compulsory supervision order unless the court or hearing considers that to do so would be better for the child than making no order or compulsory supervision order at all.
The principles that underpin the hearings system do not stand alone. They require a sound framework of law, social policies and professional skills. These processes need to be supported and enhanced by comprehensive on-going training. The application of apparently straightforward principles may be complicated in individual cases, where there may be tension between the needs, interests and rights of parents and child, between short and long term needs and goals, between fact and suspicion and where there may be uncertainty about the true nature of problems.
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