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Legislative Background to the Treatment of Children and Young People Living Apart from Their Parents

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Legislative Background to the Treatment of Children and Young People Living Apart from Their Parents LEGISLATIVE BACKGROUND TO THE TREATMENT OF CHILDREN AND YOUNG PEOPLE LIVING APART FROM THEIR PARENTS Report for the Scottish Child Abuse Inquiry Professor Kenneth McK. Norrie Law School University of Strathclyde November 2017 i Project team Professor Kenneth McKenzie Norrie, Law School, University of Strathclyde. Disclaimer The views and findings expressed in this report are those of the author and do not necessarily reflect those of the Inquiry. Copyright information © Norrie, K. McK. (2017) Legislative Background to the Treatment of Children and Young People Living Apart from their Parents. Published by: Scottish Child Abuse Inquiry, Edinburgh. Published date November 2017 ii Contents PART ONE: THE STATUTORY FRAMEWORK .............................................................................. 1 SECTION A: THE PERIOD BEFORE 1908 ...................................................................................... 1 i. The Poor Law................................................................................................................... 1 ii. Reformatory and Industrial Schools ............................................................................... 2 iii. The Early Statutes Allowing State Intervention .......................................................... 4 a. The Prevention of Cruelty to, and Protection of, Children Act, 1889 ......................... 4 b. The Prevention of Cruelty to Children Act, 1894 ........................................................ 7 c. Prevention of Cruelty to Children Act, 1904 ............................................................... 8 SECTION B: THE CHILDREN ACT, 1908 ..................................................................................... 10 i. Introduction .................................................................................................................. 10 ii. Committal to a “Fit Person” .......................................................................................... 11 iii. Sending Child to a Reformatory or Industrial School ................................................ 13 iv. Juvenile Offenders and Juvenile Courts .................................................................... 15 SECTION C: THE CHILDREN AND YOUNG PERSONS (SCOTLAND) ACTS, 1932 AND 1937 ........ 19 i. The Lead up to the Children and Young Persons (Scotland) Act, 1932 ........................ 19 ii. The Children and Young Persons Bill 1932 ................................................................... 21 iii. The Children and Young Persons (Scotland) Acts, 1932 and 1937 ........................... 23 iv. Juvenile Courts .......................................................................................................... 24 i. Rules and Procedure at Juvenile Courts ....................................................................... 28 v. Jurisdiction of Juvenile Courts ...................................................................................... 31 vi. Outcomes Available to Juvenile Courts ..................................................................... 35 a. Sending the Child or Young Person to an Approved School ..................................... 35 b. Committal to the Care of a Fit Person (Boarding Out) .............................................. 37 i c. Boarding Out Under the Poor Law ............................................................................ 40 d. Supervision by Probation Officers ............................................................................. 42 e. Other Disposals for Offenders ................................................................................... 43 SECTION D: THE CHILDREN ACT, 1948 ..................................................................................... 45 i. Introduction .................................................................................................................. 45 ii. The Clyde Report 1946 .................................................................................................. 45 iii. The Children Bill 1948 ............................................................................................... 51 iv. The Children Act, 1948 .............................................................................................. 54 a. Introduction............................................................................................................... 54 b. Structural Matters ..................................................................................................... 55 c. The Boarding-Out Preference ................................................................................... 57 d. Local Authority Duty to Receive Children into their Care ......................................... 61 e. Local Authority Assumption of Parental Rights ........................................................ 65 SECTION E: THE SOCIAL WORK (SCOTLAND) ACT 1968 ........................................................... 68 i. Introduction .................................................................................................................. 68 ii. The Genesis of the 1968 Act ......................................................................................... 68 a. The Kilbrandon Report ............................................................................................... 69 b. The White Paper ........................................................................................................ 71 iii. The Major Changes Contained in the Social Work (Scotland) Act 1968 ................... 74 a. Working With and not Against Families ................................................................... 74 b. Clarifying and Enhancing the Role of the Local Authority ........................................ 79 c. Creation of the Children’s Hearing System ............................................................... 82 iv. Amendments to the 1968 Act in the Children Act 1975 ........................................... 84 v. Criticisms and Proposals for Change ............................................................................. 86 ii a. The Skinner Report on Residential Care in Scotland ................................................. 87 b. The Fife Inquiry (the Kearney Report) ....................................................................... 88 c. The Orkney Inquiry (the Clyde Report) ..................................................................... 88 d. The White Paper: “Scotland’s Children: Proposals for Child Care Policy and Law” .. 90 e. Local Government etc (Scotland) Act 1994 ............................................................... 92 SECTION F: THE CHILDREN (SCOTLAND) ACT 1995 .................................................................. 94 i. Introduction .................................................................................................................. 94 ii. Substantive Provisions in the 1995 Act......................................................................... 96 a. Increased Participation Rights for Children .............................................................. 96 b. The Concept of, and Duties Towards, the “Looked after Child” ............................... 99 c. Duties of Local Authorities ...................................................................................... 102 d. New Orders ............................................................................................................. 105 iii. Changes Since the 1995 Act .................................................................................... 107 a. The Changing Face of “Family” ............................................................................... 108 b. Constitutional Changes ........................................................................................... 109 c. A Shift of Focus in Child Protection Legislation....................................................... 110 iv. Limitations on Who May Work with Children......................................................... 111 v. New Oversight Institutions ......................................................................................... 115 a. Regulation of Care (Scotland) Act 2001: The Care Commission ............................. 116 b. Public Services Reform (Scotland) Act 2010, Part 5: The Care Inspectorate .......... 120 c. Public Services Reform (Scotland) Act 2010, Part 6: Healthcare Improvement Scotland .......................................................................................................................... 124 ii. Protection Against Sexual Exploitation ....................................................................... 125 SECTION G: THE CHILDREN AND YOUNG PEOPLE (SCOTLAND) ACT 2014 ............................ 129 i. Introduction ................................................................................................................ 129 iii ii. The “Named Person” Scheme ..................................................................................... 132 a. Summary ................................................................................................................. 132 b. Information Sharing: The Challenge to the Scheme ............................................... 133 iii. Corporate Parenting ................................................................................................ 136 PART TWO: REGULATORY STRUCTURES GOVERNING PARTICULAR TYPES OF ACCOMMODATION ..............................................................................................................
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