Changing relationships between children, parents and the state

The Children (Scotland) Act 1995 took forward the rising recognition of children's rights as individuals. Thus, the Act stipulated parents’ responsibilities towards their children and redefined parental rights as deriving from responsibilities (S.1 and 2). A general duty to consult their children over ‘major decisions’ was introduced (S.6), while courts had to give due regard to children's views when making decisions about parental responsibilities and rights (s.11). Children's potential legal capacity to get involved in such court proceedings – if they wanted to – was much more strongly promoted than elsewhere in the UK (Tisdall et al., Reference Tisdall, Bray, Marshall and Cleland2004) and led to some children gaining legal representation. Equally, in child care services greater recognition was given to children's rights to participate and have their views given ‘due regard’ in decisions affecting them. This followed closely the Children Act 1989 and reflected broader international trends promoting children's participatory rights.

In a devolved Scotland, children's participation caught the service and policy agenda, and became a primary objective of parliamentarians interested in children's services. This led to a dramatic last minute insertion into the first piece of education legislation in the Scottish Parliament – the Standards in Scotland's Schools etc. Act 2000 – a subsection requiring school plans to take account of children's views (S.2(2)). Children's advocacy was firmly included within the Mental Health (Care and Treatment) (Scotland) Act 2003, and requirements to consider children's views were put into the statutory Code of Practice for the Education (Additional Support for Learning) (Scotland) Act 2004. Participation became a primary function of the newly created office of the Scottish Commissioner for Children & Young People (SCCYP), which followed the first such post within the UK, i.e. in Wales. The Scottish Executive and Parliament promoted a host of consultative activities with children and young people and sponsored guidelines for doing so (Borland et al., Reference Borland, Hill, Laybourn and Stafford2001).

Legal changes were also occurring in the relationship between parents and the state. An important external influence has been the European Convention on Human Rights (ECHR), and particularly the right to respect for privacy and family life (Article 8). The ECHR was brought into UK law through the Human Rights Act 1998, but has particular significance at devolved levels. Whereas legislators at Westminster may create exemptions by making a statement of incompatibility, Scottish legislation must be compatible with the Convention Rights. Hence, attempts have been made to ensure the Scottish system does conform (Tisdall, Reference Tisdall1997; Norrie, Reference Norrie1998). For instance, a series of appeals and short deadlines were introduced for emergency child protection procedures, to ensure that these are proportionate and legitimate according to the ECHR. Practices in the children's hearings have adapted somewhat to take account of ECHR, for example with regard to access to reports and availability of legal representation (Marshall, Reference Marshall, Hill, Lockyer and Stone2007).

The 1995 Act moved some way towards a more preventive approach to children's services, through introducing the targeted obligation on local authorities to provide for ‘children in need’ (see Tisdall and Plows, Reference Tisdall and Plows2007), a categorisation that had originated in the English and Welsh Children Act 1989.Footnote ¹ This potential went much further with the expansive preventive agenda under the Scottish Executive and Parliament. Policies have increasingly made links between children in special circumstances and the general child population with regard to needs and services. This blending of generic and targeted policies has been exemplified in the promotion of New (later Integrated) Community Schools and integrated children's services plans. A number of policies espouse ‘whole child’ approaches, which consider all dimensions of children's lives within their family and community contexts (e.g. Health Promoting Schools; the Integrated Assessment Framework, developed as part of Getting it Right for Every Child (GIRFEC). More targeted intervention is exemplified by specialised measures for those most ‘at risk’ (e.g. standardised risk assessments for young offenders). GIRFEC continues this preventive agenda by emphasising early identification of children at risk and services to avert or minimise such risk. However, the SNP-led government has eschewed the centralised policy of the previous Labour–Liberal coalition at Holyrood of targeting by means of ring-fenced funding. The SNP substituted general allocations to local authorities, but still seeks some central control by requiring each authority to reconcile its own priorities with the Scottish Government's national priorities, through authorities submitting ‘Single Outcome Agreements’ to the Government.

Children's welfare remains the paramount consideration in decisions about individual children under the Children (Scotland) Act, from family law to child protection and the children's hearings to adoption. The children's hearing system, introduced by legislation in 1968, privileges children's welfare for children who offend as well as children in need of care and protection, so they are treated by the same decision-making process. This contrasts with the separation of family and youth courts in England (Hill et al., Reference Hill, Lockyer and Stone2007). Hearings have maintained their central place in child care services, despite the continuing pressures to ‘get tough on crime’ and particularly young offenders. Equally, children who are not in school (due to truancy or exclusion) can also be referred to hearings.

While the rhetoric of the 1995 Act is the paramountcy of a child's welfare, qualifications were included for protecting public safety, which represented Conservative Party priorities of the 1990s. Sections 16(5) and 17(5) allow courts, children's hearings and local authorities to place protection of members of the public from serious harm (whether or not physical harm) above children's welfare. Taken directly from the Children Act 1989 without due consultation in Scotland, these measures have remained in force. In recent years, fraught discussions have occurred about using secure accommodation, which can be justified if there is perceived to be a risk of the child hurting him- or herself, but also a likelihood that the child would injure ‘some other person’ (Section 70(10)). The great majority of young people in secure accommodation have been admitted for their own safety, but some are admitted to protect others (Barclay and Hunter, Reference Barclay, Hunter and Kendrick2008). While some welcome admission, others resent arrangements as a liberty infringement made ostensibly in the name of children's welfare (Walker et al., Reference Walker, Hill and Triseliotis2002; Walker et al., Reference Walker, Barclay, Hunter, Hill, McIvor and Kendrick2007). From 2005, the Scottish Executive expanded the secure estate in accordance with populist law and order concerns, but the SNP-led Government has reverse that trend.

The shift away from the primacy of welfare considerations was radically extended in Scotland's own antisocial behaviour legislation. It was a highly political agenda, with Scottish Labour in the 2003 election running on a manifesto of introducing antisocial behaviour measures paralleling those South of the border. These were only slightly modified in the Partnership Agreement with their eventual partners the Scottish Liberal Democrats (Keating et al., Reference Keating, Stevenson, Cairney and Taylor2003). The Scottish Executive followed the English example in introducing legislation to address antisocial behaviour by young people and restrict their association in groups. These changes were seen by many as antithetical to the principles underpinning the children's hearings (Cleland and Tisdall, Reference Cleland and Tisdall2005; McAra, Reference McAra, Muncie and Goldson2006), creating very different relationships between the state and children, and the state and parents. New orders borrowed from England were somewhat softened in application by the Scottish Executive. For example, ‘electronic tagging’ of children was introduced, but in restricted circumstances and with a requirement to receive accompanying intensive services. Even so, implementation of the policy at local level has been limited in scale, because local authorities and children's panel members have been reluctant to make frequent use of the orders (Boyle and DTZ, Reference Boyle2008; Khan and Hill, Reference Khan and Hill2007).

Indeed, children's services have passively resisted the antisocial behaviour agenda more generally. Very few Antisocial Behaviour Orders or Parenting Orders have been made with respect to children (Scottish Government, 2007). This illustrates how tensions between centralism and localism can result in varied and partial implementation of legislation. The SNP Government instigated a review of the legislation. In general, it has sought to soften the rhetoric about young people, for example in the ‘See the Person, not the Age’ campaign.Footnote ² It has redirected attention towards early intervention and diversion.

Interesting dynamics across several levels and types of influence occurred with respect to asylum seeking children and families. Immigration policy is a reserved matter and London-based agencies retained financial responsibility for asylum seekers placed in Scotland. However, local authorities have educational and other duties under Scottish legislation, which led to some tensions and inconsistencies (Hill and Hopkins, Reference Hill, Hopkins, Broadhurst, Grover and Jamieson2009). The detention of children in a custodial setting at Dungavel near Glasgow was opposed by the independent Scottish Commissioner for Children and Young People, invoking the UN Convention on the Rights of the Child. Furthermore, deportation of families deemed by the UK Government and Courts not to have bona fide grounds for asylum was opposed by members of the community where families were living, including classmates and teachers of the children.

Greater engagement between policy and ‘civic society’

In order to deliver on greater engagement and accountability of government, the highly influential Consultative Steering Group for the Scottish Parliament outlined four key principles, three of which explicitly aimed to engage civic society in policy making:

• • the Scottish Parliament should embody and reflect the sharing of power between the people of Scotland, the legislators and the Scottish Executive;

• • the Scottish Executive should be accountable to the Scottish Parliament and the Parliament and Executive should be accountable to the people of Scotland;

• • the Scottish Parliament should be accessible, open, responsive and develop procedures which make possible a participative approach to the development, consideration and scrutiny of policy and legislation (1998, Section 2(2)).

The Scottish Executive and Parliament were to work differently from Westminster, with major structural introductions like strong Parliamentary Committees (who can initiate legislation and undertake pre-legislative scrutiny), encouragement of Public Petitions and the provision of public information.

These principles were indeed a major change from the previous realities of Scottish legislation at Westminster, which had operated in the development of what became the Children (Scotland) Act 1995. While an active consortium of children's statutory and voluntary organisations had worked hard on the Children (Scotland) Bill, it was hampered by the distance to London and the reliance on friendly politicians to forward key information (e.g. when debates would be held, free Hansard reports). Westminster politicians praised themselves for their consensual cross-party support to aid children, but in fact there was little opportunity for a political upheaval in a vote because non-Scottish politicians (and particularly non-Scottish peers) were loathe to become politically involved in Scottish business for fear of accusations of interfering (see Tisdall, Reference Tisdall1997). The Bill only gained a legislative place because it was agreed it would use the special procedures of the Scottish Grand Committee, an attempt by the Conservatives to appease the pressures for Scottish devolution yet conveniently take the Bill off the floor of the House of Commons.

The Scottish Grand Committee did take innovative steps to reach out, such as taking evidence from children and young people (Hansard, 1995). This influenced politicians and led to the addition of certain provisions, notably the exclusion of alleged abusers orders, S.76).

Such consultation with children and young people, over legislative proposals, is now commonplace for both the Scottish Government and Parliament. In fact, to be seen not to consult can cause considerable media embarrassment (Tisdall and Davis, Reference Tisdall and Davis2004). The Government has funded the Scottish Youth Parliament (starting at 14 years) and now Young Scot for consultation activities, while the Scottish Commissioner for Children and Young People has promoted the Children's Parliament (9–14 years). Just as parental consultation was the theme of the 1990s, consultation with children and young people has been the trend of the subsequent decade.

This inclusive approach has been increasingly entrenched in legislation over the last decade. The Children (Scotland) Act 1995 had already made tentative steps to include voluntary organisations, especially those representing service users and carers (S. 19(5)). Subsequent legislation under the Scottish Parliament explicitly named parents/carers and children as groups that should be consulted for school and local authority annual education plans, strategies for antisocial behaviour and community planning. But the Scottish Parliament has only gone so far in its welcome of voluntary organisations and the participation of children and young people.

The antisocial behaviour issue exemplified how the Parliament disregarded the voluntary sector, which opposed much of the proposed legislation. MSPs frequently stated that they were in touch with grassroot concerns through their contacts with the general (adult) public at their constituency offices, while voluntary agencies drew their inspiration from their contacts with service users, including children. Thus, each side had a particular, selective view of the relevant representatives of civic society. A second example of limits on participation was the Education (Additional Support for Learning) (Scotland) Act 2004. Here, the Scottish Executive had supported groups of children and the young to comment, and their views were collated and commented upon officially in consultation responses. But when the Bill entered Parliament, the Scottish Executive took more account of a parental coalition who had not felt included by the previous consultation exercises. This heightened the Executive's sensitivity not to override parental ‘rights’, so several elements of children's participation – and particularly of their decision-making – were relegated to Codes of Practice rather than put in primary legislation. Similarly, when parental governance in schools was being overhauled, neither the government nor the Scottish Parliament was willing to consider children's role in school governance.

Consultations within Scotland such as these noted above did occur pre-devolution, but there has been a significant increase, assisted by greater accessibility from Edinburgh compared with London. While children's views and that of agencies advocating for them do gain more attention, it is clear that competing views of parents or other adults will often still count for more.

Moreover, government at all levels can find that civic engagement leads to unwelcome criticism or opposition. This has been exemplified by the asylum-seeker issue noted earlier and also by actions taken by parents and children to try and stop school closures. On occasion and at odds with the rhetoric on consultation, these challenges have been ignored or over-ridden.

Seamless services?

The demand for better integrated services has been long-standing and it seems eminently sensible to prevent either wasteful and confusing overlap between services, or children and their families ‘falling through the gaps’ of services. Yet, meeting this demand has been a continual struggle for children's policy in Scotland, as elsewhere. The Children (Scotland) 1995 set its hopes on the ‘corporate’ local authority (i.e. the whole local authority was responsible for children, not only education and/or social work). Subsequent Scottish Executive agendas avoided wholesale service re-organisation, partly because after 1996 authorities were still reeling from local government reform. However, several initiatives and funds were deployed to encourage service collaboration and eventually ‘integrated’ services. Keating et al. (Reference Keating, Stevenson, Cairney and Taylor2003) identified a stronger tendency in the Scottish Parliament than at Westminster to introduce measures requiring inter-sectoral co-operation, e.g. between education, health and others. Both the Labour-Liberal and SNP administrations have espoused less willingness to impose a single structure for collaboration, in contrast to the English universal introduction of Directors of Children's Services across local authority and health services, prompted by high profile child abuse cases in London.

The latest Scottish manifestation of policy promoting ‘integration’ is GIRFEC,Footnote ³ started under the Scottish Labour–Lib Dem coalition but continued under the SNP's Scottish Government. GIRFEC is the ‘road map’ for creating better childhoods and improving services, especially to support vulnerable and difficult to reach children and young people. Politicians from several parties have expressed commitment to the core principles in GIRFEC (Hill, Reference Hill2008), which exemplifies the fact that children's policy has maintained a fair degree of insulation from party-political considerations. Partly as a result, there has been much continuity and consolidation, with sharp changes of direction relatively rare or specific in scope. GIRFEC has developed to take account of English policies, notably the cornerstone framework delineated in Every Child Matters, but has mainly been based on Scottish reports (such as the Hammond report into the death of Kennedy McFarlane) and consultations within Scotland.

Further, the particularities of structures and interests in Scotland have created certain key differences from Every Child Matters. While children's trusts have been the new supra-structural attempt to manage children's services in England, Scottish local authorities (whose councillors are democratically elected) have maintained their place as the primary government structures responsible for delivering an array of services to children and their families – from education to housing to social work – alongside health and centralised social security. Some authorities have combined education and children's social services (in conjunction with health in Glasgow from 2006 to 2010), but others have not.

The SNP came into power with an explicit promise to recognise and enhance local authorities’ key position, with the Concordat between the Scottish Government and Local Government (Scottish Government, 2007). The central Scottish Government has loosened its reins on ring-fenced funding, targets and initiatives to forward its policy aims and instead agreed with local authorities ‘single outcome agreements’ in return for their block grant. Given the minority Scottish Government's likely inability to pass controversial legislation in the Scottish Parliament, this further devolution downwards makes political sense. But it is a radical change in governance and one that may or may not result in children's policy having the same prominence compared with the last ten years at Holyrood.

Certainly more diversity of approach is to be expected and considerable concerns have been expressed that children's services – and particularly ones for ‘unpopular’, minority and/or vulnerable children and young people – will be displaced by constituent demands around transport, roads and rubbish collection (Hagan, Reference Hagan2008; Horton, Reference Horton2008). An initial analysis of the first agreements (Davidson, Reference Davidson2008) is more favourable, noting the significant coverage of children and families across all local authorities. Children feature in economic development, education, physical health and child protection. But certain issues are given less priority – disability, independent living, mental health, play and children's rights. Certainly, the agreements must address a complex system of indicators, with 45 national indicators and targets and 49 local outcome indicators.

Key devolution variables?

By looking at the case example of the Children (Scotland) Act 1995 and subsequent developments, we can trace the varied influences of government structures, community interests, political parties and distinctive policies. Government structures have resulted in change. Far more legislation has been passed, and Government reports produced, on children's policy since devolution than previously through Westminster. Devolution has led to increased Parliamentary and not just Executive scrutiny of Scottish children's services, which has been enhanced by the multi-party nature of committees and their dual legislative-monitoring role (Johnston and Mackenzie, Reference Johnston, Mackenzie, Bryce and Humes2004).The particularities and accessibility of the Scottish Parliament, and especially its Committees, have increased engagement of at least some parts of ‘civic society’, including children. Indeed, the first Committee-initiated Bill created the office of Scottish Commissioner for Children & Young People.

The influence of particular ‘community’ interests can be mapped. The improved access for voluntary based organisations to the Scottish Parliament and Ministers has led to increased engagement on policy issues – and indeed considerable employment opportunities for policy officers. The children's voluntary sector has long been large in Scotland and many organisations are active in the Parliament and with government. There is rhetoric of involving children and young people and a plethora of consultation activities, although their actual impact on decision-making is not as evident (Hill et al., Reference Hill, Davis, Prout and Tisdall2004; Tisdall et al., Reference Tisdall, Davis and Gallagher2008). Parental groups (particularly organised ones around children with special educational needs) have influence too. Clearly, the Parliament is struggling with precisely who composes ‘civic society’ and in what way the people reaching them are ‘representative’ and of the ‘grass roots’. Gillan (Reference Gillan2008) comes to a similar conclusion over family legislative change:

As Gillan concludes, the early assumptions that increased participation would result in more consensus and changed outcomes has since been challenged. At times participation has showcased conflict. The degree of influence on policy outcomes has been variable, not always resulting in progressive or innovative policies.

The potential influence of political parties is just emerging for devolution. The Scottish Parliament was set up with proportional representation, which led to coalition governments from the start (as now in local government, where a form of proportional representation has been applied more recently). This interacted with intra-party cross-border issues. As Parry observed about the first two Scottish administrations, innovations in politics and practice did occur: ‘but were exceptions to the unity of the Labour “team” and were within the norms of British public administration’ (2008b: 114). In Scottish children's services, many initiatives were close variants of similar developments in England (e.g. New Community Schools instead of England's Education Action Zones), while Sure Start programmes were established across the UK. The essentials of the children's hearings system have been sustained, but it was obliged to add parenting and antisocial behaviour measures in response to cross-border new Labour concerns. Similarly, the Labour party north of the border was made uncomfortable by, but unable to prevent, the non-welfarist use of Dungavel for asylum seeking families as part of UK policy.

The SNP Government has distanced itself from that agenda and from ring-fenced funding for favoured approaches, but has continued many of the key children's policies of the previous administration: most notably GIRFEC and the Curriculum for Excellence giving more freedom to teachers and schools. The minority status of the Government has acted as a restraint. Even so, the ‘sleeper’ issue of more radical challenge due to differences in political parties in Scotland and Westminster (Parry Reference Parry2008a and Reference Parryb) is now likely to grow.

The SNP Government has further devolved power by passing more financial control to local authorities through its Concordat with local government based on individualised agreements. This represented a firm move away from the top–down, managerialist approach of the previous administrations, although even under previous administrations local government exercised discretion in policy uptake, as shown by the varying responses to the Private Finance Initiatives for schools (McConnell, Reference McConnell2004; Peters, Reference Peters, Bryce and Humes2004). The changed approach of the SNP to local authorities reminds us that Scotland sits not only in a devolved structure within the UK, but as part of multi-level governance. The SNP wants to set Scotland up as a regional player in Europe and at the moment sees value in cross-Nordic alliances. Scottish policy is affected by both the ECHR and European Community law, as it must be compatible with both. The Scottish Parliament and Government have been comfortable talking about (if not always aligning) children's policy with the United Nations Convention on the Rights of the Child, which Westminster was much more reluctant to do in its recent Children Act 2004.