- Child Protection Orders
- Child Assessment Orders
- Exclusion Orders
- Compulsory Supervision Orders
- Child Protection Committees
- Relevant Persons
- Kinship Carer
- What is Child Abuse and Child Neglect?
- What is Child Protection?
- Significant Harm
- Familial Responsibility - Definition
Child Protection Orders
Provision for the immediate removal of a child for a period of up to eight working days.
Child Assessment Orders
Last up to a maximum of three days.
Allows the alleged abuse to be excluded from the family home in order to avoid the child being removed, remains the Children (Scotland ) Act 1995.
Compulsory Supervision Orders
Where emergency intervention is not necessary the Children's Hearings (Scotland) Act 2011 also provides for more planned and long term protection, which can included removal from home, by the provision of compulsory measures of supervision via Compulsory Supervision Orders.
Who is a Child?
A child can be defined differently in different legal contexts:
In terms of Part 1 of the Children (Scotland) Act 1995 (which deals with matters including parental rights and responsibilities), a child is generally defined as someone under the age of 18. In terms of Chapter 1 of Part 2 (which deals with support for children and families and includes local authorities duties in respect of looked after children and children "in need"), a child is also defined as someone under the age of 18. In terms of Chapters 2 and 3 of Part 2 (which dealt with matters including children's hearings and child protection orders), a child means someone who has not attained the age of sixteen years; a child over the age of sixteen years who has not attained the age of eighteen years and in respect of whom a supervision requirement is in force; or a child whose case has been referred to a children's hearing by virtue of section 33 of this Act (Effect of orders etc. made in others parts of the United Kingdom). However, Chapters 2 and 3 of Part 2 have been largely repealed by the Children' s Hearings (Scotland) Act 2011, except in relation to certain ongoing cases which are still proceeding under the 1995 Act.
The Children's Hearings (Scotland) Act 2011 now contains the current provisions relating to the operation of the Children's Hearings system and child protection orders. Section 199 states that, for the purposes of this Act, a child means a person under 16 years of age. However, this section also provides some exceptions to that general rule. Subsection (2) provides that for the purposes of referrals under section 67(2)(o) (failure to attend school), references in the Act to a child include references to a person who is school age. "School age" has the meaning given in section 31 of the Education (Scotland) Act 1980.
Additionally, children who turn 16 during the period between when they are referred to the Reporter and a decision being taken in respect of the referral are also regarded as "children" under the Act. Children who are subject to compulsory measures of supervision under the Act on or after their 16th birthday are also treated as children until they reach the age of 18, or the order is terminated (whichever event occurs first). Where a sheriff remits a case to the Principal Reporter under section 49(7)(b) of the Criminal Procedure (Scotland) Act 1995, then the person is treated as a child until the referral is discharged, any compulsory supervision order made is terminated, or the child turns 18.
The United Nations Convention on the Rights of the Child applies to anyone under the age of 18. However, Article 1 states that this is the case unless majority is attained earlier under the law applicable to the child.
The meaning of a child is extended to cover any person under the age of 18 in cases concerning: Human Trafficking; sexual abuse while in a position of trust (Sexual Offences (Scotland) Act 2009) and the sexual exploitation of children under the age of 18 through prostitution or pornography (Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005)
When the Children and Young People (Scotland) Act 2014 comes into force, a "child" will be defined for the purposes of all Parts of that Act, as someone who has not attained the age of 18.
The individual young person's circumstances and age will dictate what legal measures can be applied. For example, the Adult Support and Protection (Scotland) Act 2007 can be applied to over-16s where the criteria are met. This further heightens the need for local areas to establish very clear links between their Child and Adult Protection Committees and to put clear guidelines in place for the transition from child to adult services. Young people aged between 16 and 18 are potentially vulnerable to falling "between the gaps" and local services must ensure that processes are in place to enable staff to offer ongoing support and protection as needed, via continuous single planning for the young person. The GIRFEC framework and provision of the Named Person service for 16-18 year olds will be key to ensuring that wellbeing needs can be identified and addressed.
Where a young person between the age of 16 and 18 requires protection, services will need to consider which legislation or policy, if any, can be applied. This will depend on the young person's individual circumstances as well as on the particular legislation or policy framework. On commencement of the Children and Young People (Scotland) Act 2014, similar to child protection interventions, all adult protection interventions for 16 and 17 year olds will be managed through the statutory single Child's Plan. Special consideration will need to be given to the issue of consent and whether an intervention can be undertaken where a young person has withheld their consent. The priority is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection.
Child Protection Committees
Child Protection Committees were first established in each local authority area across Scotland in 1991. Since then, they have been subject to many reforms and review, in particular in 2005, when they were strengthened as part of the then Scottish Executives Child Protection Reform Programme. The national guidance for Child Protection Committees was published in 2005 and is reflected within the National Guidance for Child Protection. Please see Guidance on Child Protection Committees in Scotland:
Child Protection Committees are locally-based, inter-agency strategic partnerships responsible for the design, development, publication, distribution, dissemination, implementation and evaluation of child protection policy and practice across the public, private and wider third sectors in their locality and in partnership across Scotland. Their role, through their respective local structures and memberships, is to provide individual and collective leadership and direction for the management of child protection services across Scotland.They work in partnership with their respective 'Chief Officers' Groups and the Scottish Government to take forward child protection policy and practice across Scotland.
A parent is defined as any person who is the genetic or adoptive mother or father of the child. A parent has in relation to his child the responsibility to safeguard and promote the child's health, development and welfare: provide, in a manner appropriate to the stage of development of the child, direction and guidance and to act as the child's legal representative. If the child is not living with the parent the parent has a responsibility to maintain personal relations and direct contact with the child on a regular basis. (Section (1), Children (Scotland) Act 1995).
A mother has full parental rights and responsibilities. A father has parental responsibilities and rights if he is or was married to the mother (at the time of the child's conception or subsequently) or if the birth of the child is registered after 4 May 2006 and he is registered as the father of the child on the child's birth certificate. A father may also acquire parental responsibilities or rights under the Children (Scotland) Act 1995 by entering into a formal agreement with the mother, or by making an application to the courts.
The Human Fertilisation and Embryology Act 2008 confers rights and responsibilities on same sex partners.
Relevant person is a term used specifically in relation to children's hearings. It is a term defined by the 2011 Act (s.200) and associated rules and it is now a broader definition than previous legal definitions. It covers most parents and those people to whom the courts have given significant parental rights and responsibilities. It can now include those with a significant involvement in a child's upbringing.
Relevant person status can be automatic or is a status that a person can acquire, either through the courts or, through being deemed a relevant person by a pre-hearing panel or a children's hearing. The 2011 Act and associated rules set out who a relevant person is and what the new process is to become a relevant person.
The status can change where circumstances change or other court processes alter people's rights and responsibilities e.g. a court deciding on permanence. The hearing can remove the status that it has given.
Others, e.g. with contact orders who are not relevant persons, have now been given limited access to hearings where their rights may be affected.
Who are relevant persons?
Relevant person status is automatic for most parents and people with certain court orders.
The following are relevant persons automatically:
- A parent or guardian (mother or father) (unless, if they had parental rights and responsibilities (PRR), the court has removed them);
- A person with a court order giving them PRR;
- A person with a court residence order;
- A person with PRR through a court permanence order.
Relevant person status can be acquired through a court or other legal process:
- By a parent marrying the mother;
- By a person applying to court for a PRR order;
- By a person asking a hearing to deem them to have relevant person status which the hearing does;
- By the child or other relevant person asking the hearing to deem a person a relevant person.
The Reporter may need some form of legal proof regarding parentage before the a person can be considered to be a relevant person, for example it should always be checked if a father been named on the birth certificate or that the parents are in fact married.
To be deemed a relevant person by a Children's Hearing an individual must have (or have recently had) a significant involvement in the upbringing of the child.Relevant persons have extensive rights and duties within the Children's Hearing system, including the right to attend Children's Hearings, receive all relevant documentation, and challenge decisions taken within those proceedings.
A ‘kinship carer' can be a person who is related to the child or a person who is known to the child and with whom the child has a pre-existing relationship (related means related to the child either by blood, marriage or civil partnership. Regulation 10 of the Looked After Children (Scotland) Regulations 2009 provides that a local authority may make a decision to approve a kinship carer as a suitable carer for a child who is looked after by that authority under the terms of section 17(6) of the Children (Scotland) Act 1995.
Informal kinship care refers to care arrangements made by parents or those with parental responsibilities with close relatives or, in the case of orphaned or abandoned children, by those relatives providing care. A child cared for by informal kinship carers is not ‘looked after'. The carer in such circumstances is not a foster carer, nor is assessment of such a carer by the local authority a legal requirement.
What is Child Abuse and Child Neglect?
Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting, or by failing to act to prevent, significant harm to the child. Children may be abused in a family or in an institutional setting, by those known to them or, more rarely, by a stranger. Assessments will need to consider whether abuse has occurred or is likely to occur.
When the threshold of concern about future risk and the need for Child Protection has been reached, the child's name may be placed on the Child Protection Register.
The concerns under which the child is registered can be changed at review Child Protection conference over time as concerns change and knowledge of family patterns and functioning increases.
When a child's name is placed on the child protection register all areas of concern (risk indicators) must be recorded for each individual child.
The areas of concern (risk indicators) are:
- Domestic Abuse;
- Parental alcohol misuse;
- Parental drug misuse;
- Non-engaging family;
- Parental mental health problems;
- Children placing themselves at risk;
- Sexual abuse;
- Child exploitation;
- Physical abuse;
- Emotional abuse;
- Other concern(s).
What is Child Protection?
'Child protection' means protecting a child from child abuse or neglect. Abuse or neglect need not have taken place; it is sufficient for a risk assessment to have identified a likelihood or risk of significant harm from abuse or neglect. Equally, in instances where a child may have been abused or neglected but the risk of future abuse has not been identified, the child and their family may require support and recovery services but not a Child Protection Plan. In such cases, an investigation may still be necessary to determine whether a criminal investigation is needed and to inform an assessment that a Child Protection Plan is not required.There are also circumstances where, although abuse has taken place, formal child protection procedures are not required. For example, the child's family may take protective action by removing the child from the source of risk. Children who are abused by strangers would not necessarily require a Child Protection Plan unless the abuse occurred in circumstances resulting from a failure in familial responsibility. For example, if a young child is abused by a stranger, a Child Protection Plan may be required only if the family were in some way responsible for the abuse occurring in the first instance or were unable to adequately protect the child in the future without the support of a Child Protection Plan.
Child protection is closely linked to the risk of 'significant harm'. 'Significant harm' is a complex matter and subject to professional judgement based on a multi-agency assessment of the circumstances of the child and their family. Where there are concerns about harm, abuse or neglect, these must be shared with the relevant agencies so that they can decide together whether the harm is, or is likely to be, significant.
Significant harm can result from a specific incident, a series of incidents or an accumulation of concerns over a period of time. It is essential that when considering the presence or likelihood of significant harm that the impact (or potential impact) on the child takes priority and not simply the alleged abusive behaviour. The following sections illustrate considerations that need to be taken into account when exercising that professional judgement.
In order to understand the concept of significant harm, it is helpful to look first at the relevant definitions.
'Harm' means the ill treatment or the impairment of the health or development of the child, including, for example, impairment suffered as a result of seeing or hearing the ill treatment of another. In this context, 'development' can mean physical, intellectual, emotional, social or behavioural development and 'health' can mean physical or mental health.
Whether the harm suffered, or likely to be suffered, by a child or young person is 'significant' is determined by comparing the child's health and development with what might be reasonably expected of a similar child.
There are no absolute criteria for judging what constitutes significant harm. In assessing the severity of ill treatment or future ill treatment, it may be important to take account of: the degree and extent of physical harm; the duration and frequency of abuse and neglect; the extent of premeditation; and the presence or degree of threat, coercion, sadism and bizarre or unusual elements. Sometimes, a single traumatic event may constitute significant harm, for example, a violent assault, suffocation or poisoning. More often significant harm results from an accumulation of significant events, both acute and long-standing, that interrupt, change or damage the child's physical and psychological development.
To understand and identify significant harm, it is necessary to consider:
- The nature of harm, either through an act of commission or omission;
- The impact on the child's health and development, taking into account their age and stage of development;
- The child's development within the context of their family and wider environment;
- The context in which a harmful incident or behaviour occured;
- Any particular needs, such as a medical condition, communication impairment or disability, that may affect the child's development, make them more vulnerable to harm or influence the level and type of care provided by the family;
- The capacity of parents or carers to meet adequately the child's needs; and the wider and environmental family context.
The reactions, perceptions, wishes and feelings of the child must also be considered, with account taken of their age and level of understanding. This will depend on effective communication, including with those children and young people who find communication difficult because of their age, impairment or particular psychological or social situation. It is important to observe what children do as well as what they say, and to bear in mind that children may experience a strong desire to be loyal to their parents/carers (who may also hold some power over the child). Steps should be taken to ensure that any accounts of adverse experiences given by children are accurate and complete, and that they are recorded fully.For Child Protection intervention by Social Work there needs to be a direct link between "Significant harm" and "Familial Responsibility". It is only in circumstances that "family" facilitate or contribute to creating the circumstances of likely harm perpetuated by a stranger that Social Work may become involved with the Police in a referral initially identified as non-familial.
Familial Responsibility - Definition
This might include a parent/s, extended family member or any other adult known to the child i.e. babysitter etc. The term also extends to adults who work with the child and young people who are accommodated by the local authority i.e. foster parent, children's unit, residential school etc.
To ensure clarity across the West of Scotland in relation to the nature and purpose of the range of meetings which might be convened during the Child Protection process the following common terminology is used throughout these procedures.
Child Protection Case Discussion: multi agency forum held to discuss possible child protection concerns. Chaired by a Social Work Manager
Planning meeting/Strategy meeting: discussion between Social Work and Police and any other professional to plan the process of the investigation
Initial Referral / Tripartite Discussion: discussion between Social work, Police and Health to share information, consider risk and arrange medical examination/assessment/treatment of a child subject of child protection concerns.
Briefing/De Briefing: meeting of Social Work/Police prior to and following investigative interviews; conducted by Detective Sergeant and/or Senior Social Worker.
Initial Child Protection Conference: multi agency forum Chaired by Senior Social Work Manager and held to consider a child's circumstances and whether there is a need for the child's name to be placed on the Child Protection Register and a Child Protection Plan put in place.
Core Group Meeting; multi agency forum chaired by Senior Social Worker arranged to set out and take forward the Child Protection Plan
Review Child Protection Conference: multi agency forum chaired by Senior Social Work Manager to consider the progress of the Child Protection Plan and whether or not risks have been sufficient reduced to warrant removal of the child's name from the Child Protection Register.
Where there is child care or child protection concerns around an unborn baby a multi-agency meeting may be convened to consider what supports or action may be required to protect the baby pre and post birth.
Pre-birth Child Protection conference: will be convened where Child Protection concern may exist and a Child Protection Plan and Registration may be necessary.
Transfer Conference: are specific for the transfer of information and responsibility about a registered child moving from one local authority area to another.