Current Legislation and Policy
Policy and legislative measures in Scotland for protecting children are complex – in part because children’s lives are complex, but also because their lives involve the interaction of different agencies and systems – local authorities (for example, education, housing, social services), courts and hearings, Health Boards, Health and Social Care Partnerships, the voluntary sector and the police.
First and foremost, protecting infants, children and young people must be seen within the wider context of supporting families and meeting children’s needs through Getting it right for every child.
Getting it right for every child is Scotland’s national approach to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time from the right people.
It supports them and their parent(s) to work in partnership with the services that can help them.
The principles and values, enshrined in legislation and practice in the protection of children, are derived from Articles of the UN Convention on the Rights of the Child (UNCRC).
Though all of the international human rights treaties extend to persons with disabilities, this large group of people continues to suffer from discrimination and often does not enjoy respect for their human rights on an equal basis with others. The Convention on the Rights of Persons with Disabilities (CRPD) is an international legal agreement. It exists to protect and promote the human rights of disabled people.
In addition to the Convention, the Children’s Charter was drawn up following consultation with children and young people as part of the Scottish Government’s Child Protection Reform Programme 2003-2005.
The Charter reflects children and young people’s own views regarding what they need and the standard of care they expect when they have problems or are in difficulty and need to be protected.
It shows that children and young people place more value on relationships and attitudes than processes and events. This should be reflected in the planning and implementation of all child-focused interventions.
The Protecting Children and Young People: Framework for Standards provide the means for translating the commitments made in the Children’s Charter into practice.
All child protection policy must pay due attention to equality and diversity issues. Access to, and delivery of, child protection services should be fair, consistent, reliable and focused on individual outcomes and enablement.
There are a number of legislative frameworks relevant to the protection of infants, children and young people in Scotland.
Full details can be found in The National Guidance for Child Protection in Scotland (2021), a document which provides a national framework within which agencies and practitioners at local level – individually and jointly – can understand and agree processes for working together to support, promote and safeguard the wellbeing of all children.
The Children (Scotland) Act 1995 remains one of the primary pieces of legislation, setting out the range and scope of local authority support for the care and protection of children.
The Social Work (Scotland) Act 1968 provides the primary legislative framework for social work intervention in Scotland. It is the legislation that creates the duty, under section 12, to ‘promote social welfare’. While this has been added to by the Children (Scotland) Act 1995 to specify ‘children in need’, the overarching mandate remains that it is the duty of the local authority to ensure that such services are made available across their jurisdiction as could be considered consistent with this duty.
The Children’s Hearings (Scotland) Act 2011 sets out the framework for the care and protection of children by the imposition of Compulsory Measure of Supervision. The Act sets out when referrals must be made to the Children’s Reporter, the mechanisms for the provision of Compulsory Measures of Supervision and the forms such measures may take. This Act also sets out the legislation governing emergency measures for the protection of children, including child protection and child assessment orders, emergency applications to justices of the peace and the powers of a constable to remove a child to a place of safety.
While not all of the provisions in the Children and Young People (Scotland) Act 2014 have yet to be implemented at the time of writing (2019), this is a significant piece of legislation concerning children’s rights and services in Scotland.