Developments in Child Protection


Developments in Child Protection

Jim Ennis


During the second half of the twentieth century, most countries in western Europe and North America experienced growing policy and public awareness of child abuse, often accompanied by major criticisms of the responses by public agencies, which have come to be known as constituting the child protection system (Waldfogel 2001). The present chapter examines challenges facing the system in Scotland. Investigation and intervention here have followed many of the same trends as in England, the USA and some other countries, towards formalised and primarily legalised responses (Parton and Otway 1995), but the judicial process has been different. Even though the Children (Scotland) Act 1995 increased the role of sheriff courts in relation to emergency protection orders, the central body for most decisions has remained the Children’s Hearings System outlined in the Preface.

Children’s Hearings are the main forum for considering whether and what compulsory action should be taken in situations where children have been harmed within the family or are at risk of harm. When the Hearings started, most cases they dealt with concerned youth crime, but the proportion of cases involving issues of care and protection has grown markedly, to about half (Lockyer and Stone 1998). Not only has the volume of cases grown, but understanding of abuse and neglect has altered substantially over the same period. In the light of these developments, this chapter examines whether it is still appropriate to handle child protection cases in essentially the same way as offence-related and other kinds of case. The chapter asks whether highly specialist knowledge and training is needed to make key decisions about intervention, which can bring into question the role of lay people as decision-makers. The circumstances and evidence are largely reviewed within a Scottish context, but broader implications for other jurisdictions in working constructively with troubled and troubling children and young people are also identified.

The chapter will proceed by, first, outlining the evolution in approaches to the maltreatment of children in Scotland, before turning to the emotive issue of responses to child deaths. Thereafter it will assess the present condition of the Scottish Children’s Hearings System from a number of perspectives, before advocating a thorough structural overhaul in order to address certain criticisms made of the system’s procedures.

The unfolding story of the maltreatment of children

Fifty years ago decision-makers dealing with child abuse in Scotland, as elsewhere, mainly dealt with incidents of cruelty to children and severe neglect. Since then the range and scale of child maltreatment that comes to the attention of professionals and decision-makers has grown significantly.

Although there had long been concern about the vulnerability of children and their need for protective services, the modern phase of the discovery of child abuse is often attributed to the identification of ‘battered baby syndrome’. New radiological techniques identified the fact that bodily injuries, hitherto seen as accidental, were the result of deliberate beatings by parents or carers (Kempe et al. 1962). Since the publication of that seminal paper, a steady accumulation of evidence and published material has served to ‘lift the veil’ on violent aspects of family life and suggest that considerably larger numbers of children are affected than was previously thought. Later research has illuminated both the causes of such ill-treatment and other forms of abuse, particularly sexual and emotional. This has continued to challenge social, political and institutional assumptions about services to children.

Surveys have shown that the risk of non-accidental child injury or death rises steeply with poverty. Also the likelihood of a child being injured or killed is associated with stress, and parental alcohol and substance abuse, which themselves are closely linked to poverty (Unicef 2001; Wedge and Prosser 1973). Thus anti-poverty measures need to be central in policies to prevent child abuse. The current UK government policy aims to lift an estimated one million UK children out of poverty (Horton 2005). This has met with some success, but figures for 2002/2003 show that 28 per cent of all children still lived in households with below 60 per cent of median income after housing costs (Bradshaw and Mayhew 2005).

The contemporary literature has identified further forms of abuse, which like ‘battered babies’ before the 1960s, went previously unrecognised. Researchers focusing on immediate post-birth experiences for healthy child development have concluded that the first three months of a baby’s life are even more developmentally critical than was previously thought. Moreover, not only is good physical care required, but infants at this stage are also highly sensitive to the quality of their emotional care. This is illustrated by the concept of the trauma of absence, when very young babies are denied warm early engagement with adult carers (Hughes 1998; Perry 2001; Seigal 1999). Although the most extreme examples of the trauma of absence are derived from the ‘warehouse’ orphanages that came to world attention in the 1980s and 1990s in some post-Soviet eastern European countries and in China, there is evidence that similar problems for children are associated with particular circumstances in comparatively wealthy post-industrial countries (Shore 1997). That said, the work of Rutter et al. (2000) in tracking the developmental pathways of a sample of children from Romania indicates that even those children exposed to the most severe deprivation in early years can recover significant ground when moved at the earliest possible point to stable, richly nurturing family environments.

Awareness has grown too about the significance of neglect. Prolonged exposure to neglect seeps deeply into the very fibre of children and can imbue them with qualities of helplessness that can be very hard to shift (Katz 1992; Stevenson 1998). The rise and rise of parental substance misuse has been increasingly evident as a major contributing factor in child abuse and neglect, with some caregivers being so preoccupied with serving their addiction that they cannot attend consistently to the psychological needs of newborn children. Rodning, Beckwith and Howard (1991) reported that only one-fifth (18%) of infants exposed to serious drug misuse showed secure attachment to their biological parents at 15 months, compared with a 64 per cent rate for a matched sample of infants of parents who did not abuse drugs. Recent published work in the USA highlighted the ‘conflicting time clocks’ metaphor, where the young child’s developmental needs are immediate, while the addicted parent’s required recovery time may often be long (Ondersma, Simpson, Brestan and Ward 2000). Partly as a result, substance misuse is present in two of every three referrals involving concerns about the well-being of children (Ondersma and Chase 2003).

The literature also points to a phenomenon of parentification in very young children struggling to look after adults incapacitated by alcohol or drug misuse, or by mental health difficulties. In numbers of cases, the child’s ability and willingness to parent the parents may become critical for the family to function, but at great cost to the child, often manifested in a failure to achieve developmental milestones (Chase 1999; Jurkovic 1997).

A major problem for decision-making in relation to neglect is that, often, the agencies most in contact with the families are adult-orientated, with a focus on substance misuse, mental health or offending. Just as the parents or carers may be too preoccupied with their own issues to attend to the needs of their children, so professionals without an explicit child protection remit may overlook or underestimate threats to safe and adequate care.

Recent figures suggest that 10 to 20 per cent of children are at risk of exposure to domestic violence (National Adoption Information Clearinghouse (NAIC) 2003) and data continue to emerge about the profound impact on children of being brought up in a household characterised by domestic violence (Mullender and Morley 1994).

As Kempe and Kempe (1978) predicted, both professional and lay people have a struggle to fully acknowledge the existence of the sexual abuse of children by adults. The plausibility of exploitative adults can persuade other adults to disbelieve children, especially when the child’s accusations are accompanied by a flatness of affect that appears inconsistent with the more exaggerated responses sometimes expected of children exposed to an abusive regime. Some sexual abuse perpetrators attach themselves to vulnerable families specifically to open opportunities for abuse. They may carefully cultivate a family culture of control and violence in order to commit abuse and to minimise the possibility of detection (Bentovim 2002; Salter 1995). Evidence is still emerging about the long-term impact and implications for people sexually abused as children, though the immediate negative impact is usually clear (Berliner and Elliott 2002). More is known about the capacity of exploitative adults to lie and cheat and cover up their activities. Even professionally trained and closely supervised staff working with these issues can suffer secondary trauma (Conte 2001) and some will develop protective mechanisms that may at the same time prevent them from accepting and confronting the plight of children.

As with sexual abuse, it can be hard to believe that a small but significant number of adults deliberately inflict pain and injury on their offspring, causing physical and emotional trauma – and sometimes death – in the pursuit of their own needs (Dale, Green and Fellows 2002). A very experienced child care social work manager, Anne Black, co-led an independent review into the killing of a 13-month-old child in north-east Scotland. At the press conference publicly introducing the Review Report in September 2003, she said:

The reality is that some parents do abuse their children seriously and some do kill them. We know it is very hard for any of us, and particularly the public, to accept that some parents can inflict that level of damage on their children. But they do. (Black and Burgham 2003)

Limitations in the quality of irrefutable medical evidence have caused controversy in a number of high-profile trial situations. For example, the concept of temporary brittle bone disease (TBBD) advocated by Paterson (1990) as a causal explanation for multiple fractures in infants has been discredited in British courts because no scientific basis was found for the claims. Similarly, controversy surrounds the evidential basis of alleged non-accidental brain injury detected in very young children, briefly labelled as ‘shaken baby syndrome’ in some professional circles. Much of the challenge to prosecutions involving this category of case situation has been based on one study (Geddes, Tasker and Hackshaw 2003) and it is clear that much further research is required. The impact of the controversies seems likely to be a contributory factor in the fall in numbers of practitioners applying to train in forensic paediatrics across the UK and a perceived reluctance to participate in the provision of expert witness testimony in cases.

Professionals and lay people working directly with these issues have to absorb the distress of victims and manage the capacity within us all to deny the degree of suffering caused to children, our most vulnerable citizens. The work places a premium on emotional toughness, on a broad and constantly updated knowledge base, on experience, and on a highly developed capacity to make sound and detailed assessments. Moreover, much of the new material points up a complexity and an interrelatedness that has profound implications for policy formulation, for service systems, and for the development of the knowledge and skills mixes required by professionals and others. In short, decision-makers dealing with child abuse cases need to be well informed, self-aware and emotionally strong. Later sections of this chapter consider how far this is possible within a system of lay decision-makers handling a wide variety of referrals, as in Scotland.

Responses to the deaths of children

Over a broadly similar period, there have been a number of high-profile events and inquiries in the United Kingdom and elsewhere, raising new questions and contributing to shifts in perception and procedure (Butler-Sloss 1988; Clyde Report 1992). In more recent times, there have been two significant policy responses to child deaths, one in England and one in Scotland. The death of Victoria Climbié in London in February 2000 led to a full inquiry chaired by Lord Laming, a former Director of Social Work. The Report of the Victoria Climbié Inquiry (Laming 2003), a coherent and detailed document, was published in early 2003 and made a total of 108 recommendations, a number of which were incorporated in a Green Paper published for consultation in September 2003 (Every Child Matters 2003). It is important to note that the legislative changes heralded in the Green Paper were intended only for England, Wales and Northern Ireland, and the document declared that Scotland would be keeping a watching brief on developments. Within a broad contextual framework pledging improvements in the quality and range of universal services for children and families, the central thrust of proposed changes included a raft of major organisational restructuring and harmonisation designed to clarify tasks and responsibilities. There was endorsement of the need for a common assessment framework to help standardise language and meaning across disciplines and professions, a recommendation for cross-professional training, an endorsement of the need for files to contain a chronology of significant events and a call for the policing of child protection cases to be conducted with the same degree of importance attached to the pursuit of any other crime. The Green Paper took forward the Laming Report recommendations for major change, leading to the Children Act 2004.

In Scotland, the Hammond Report into the death of Kennedy MacFarlane in Dumfries was closely followed by the launch of a review and audit of child protection, with the significant title ‘It’s everyone’s job to make sure I’m alright’ (Scottish Executive 2002). The public launch of the document was characterised by an unhelpful degree of threat and bluster, with professionals threatened with replacement if they did not reform their ways within three years. However, a key finding from the review and audit work was that, where social work was well conducted, the outcome was invariably good. Although cross-professional work was important at all points, good professional social work was central to good outcomes. Other pointers and recommendations bore similarities to the recommendations in the Laming Report, notably in relation to better record-keeping, the improved dissemination of good practice and the endorsement of the need for inter-agency assessment.


It is noteworthy that neither of these major review processes (like many earlier inquiries) gave much attention to courts or hearings. Given the degree of separation of youth justice processes from work with children in need in an England and Wales context, that lack of attention is perhaps less surprising. In Scotland, where responses to the two categories of child overlap and are dealt with together within the Children’s Hearings System, it is a much more significant oversight. The more than three decades old Children’s Hearings System is built on the Kilbrandon Committee Report (Kilbrandon 1964). The starting point of the deliberations of that Committee was the widespread dissatisfaction with court-centred procedures involving children in trouble with the law. At the heart of the Hearings System is an emphasis on co-operation among decision-makers, professionals, parents and children as the key weapon in promoting change. The recent reports have highlighted defects in communication and collaboration, as well as a lack of confidence on the part of the public in the care and protection system as a whole.

An original Committee member, Stone (1995) stated that the Committee anticipated that care and protection cases would come to the Children’s Hearings and should be treated in the same way, but child abuse cases were in fact rare in the early years of operation, with fewer than 600 of 22,000 children referred solely because of maltreatment. Subsequently, the number of non-offence cases rose until they are now a clear majority (Scottish Children’s Reporter Administration (SCRA) annual reports 2000–1 and 2001–2).

Although the proportion of time and work in the Hearings taken up by care and protection cases has grown markedly, it is arguable that concern about delinquency is still the principal preoccupation. Growing public anxiety about youth crime across the UK and elsewhere has led to pressures for tougher measures both to control criminal activity among young people and to curb behaviours perceived to be antisocial and threatening. England’s policy responses have been categorised as retributive or punitive (Goldson 2002), with an estimated 800 per cent increase over ten years in the number of children in custody in England and Wales. Community-based measures introduced have included electronic tagging and curfews although, despite these and other novel approaches, dramatic increases in numbers of juveniles in custody are attributed to the increasing imposition of custodial sentences by courts rather than recorded increases in numbers of juveniles committing offences or general increases in the gravity of offence behaviours (see Chapter 8). In Scotland, public concern about the threat posed by youth has been expressed in a groundswell of concern about the contemporary relevance of the Children’s Hearings System and criticisms that disposals were ‘too soft’ on crime. Other criticisms and complaints focused on perceived variations in decision-making, poor resourcing and an absence of detailed outcome data. It is significant that the most recent legal changes affecting the Children’s Hearings have related to youth crime, including experimentation with fasttrack procedures and youth courts, as well as the introduction of parenting orders and intensive support and monitoring.

Assessing the Hearings System today

The recent child protection review and ensuing programme in Scotland has focused mainly on service agencies, while changes in the Hearings as the key decision-making forum have mainly had a youth crime focus. Hence it is timely to consider the present condition of the Hearings System with respect to its care and protection functions. To do so, it is helpful to briefly examine three key structural and organisational design components of the system:

1.a broad level of political and societal support for the work, and a sympathy and tolerance for the underpinning social justice principles

2.a pool of concerned and informed citizens, interested in the work and willing and able to offer their time as volunteers

3.autonomous service-providing departments based in Local Authorities responsible for the assessment and help afforded to children and families; these were originally planned to be social education departments, but in the event were social work departments, though nowadays social work services for children are provided in a range of structures.

Over time, there have been significant shifts in relation to all three of these key components. In light of the punitive approach to troublesome young people that has been apparent recently, it is increasingly difficult to perceive the ‘broad level of political and societal support for the work and a sympathy and tolerance for the underpinning social justice principles’ required by the Kilbrandon model.

A second vital component of the Children’s Hearings System is that the main decision-makers (panel members) are trained volunteers (see Chapter 11). Thus the system is reliant on a ‘pool of concerned and informed citizens, interested in the work and willing and able to offer their time as volunteers’ (Kilbrandon 1964). Changing social and employment patterns have had a significant impact on this component. Some regions in Scotland have had to work very hard to attract and retain suitable people with available time. The shifting political and social attitudes towards older children and young people, and the sheer complexity of the case situations brought before panels may also be factors making it hard to recruit and retain panel members. Changing attitudes towards authority in general may have contributed to reducing parental compliance with the Hearings System of late. The Scottish Executive’s Report of the Child Protection Audit and Review (Scottish Executive 2002, p.200) noted that in 80 per cent of cases referred to the Reporter for care and protection concerns, the matter was referred to the Sheriff because grounds were disputed either by the child or the parent(s).

Just like a court system, the Hearings are dependent on statutory and voluntary agencies to provide assessments on which to base decisions and to make available suitable help to children and families when carrying out compulsory measures required by a Hearing. In common with the wider United Kingdom, the front-line workforce in Scotland has been decimated as a result of overwork and stress, with diminishing numbers of key social workers with specialist child care knowledge able to perform to the required level. The percentage of vacant posts for qualified social workers in children’s services across Scotland rose from 6.6 per cent in 2000 to 14.5 per cent in October 2002 (National Children’s Homes (NCH) 2004). Figures for Edinburgh produced by the City Council record a vacancy rate in 2003 of 16 per cent, rising to 20.5 per cent by January 2004 (City of Edinburgh Council 2004). The Report also stated that the total number of unallocated cases had doubled during 2003. In front-line teams across Scotland and other parts of the UK, the most experienced practitioner may have just two years’ post-qualifying experience and be struggling with work of great complexity. Although steps have been taken to increase the numbers of qualified social workers, the situation in the child care field seems far from resolution (McDougall 2005).

The concerns, misgivings and criticisms voiced in Scotland regarding the contemporary relevance of the Children’s Hearings System led to the setting up of an inquiry by a leading voluntary child care organisation (NCH 2004). This took evidence and opinion from a good cross-section of stakeholders, including children and young people. Interestingly, the stated aim of the exercise was to ‘inform and influence the post-devolution discussion in Scotland about the best way to deal with young people who offend’ and made only indirect mention in statements of purpose of the service provided to the more than 50 per cent of cases referred to a Hearing on non-offence grounds. The final Report commented that there had been little evaluation of the Hearings System during its more than three decades of operation (see Chapter 10). However, the Report also noted that the most significant research undertaken (Hallett and Hazel 1998; Hallett et al. 1998; Waterhouse and McGhee 2000) found evidence of a lack of clarity about decision-making and a failure to prevent escalation in offending in a sample of young men at high risk of progression to adult courts and custodial sentences. The NCH Scotland Report noted weaknesses in the Hearings System in compiling and monitoring outcome data, in the implementation of disposal decisions, and in relation to a perceived lack of imagination and investment in the range of available disposals. In addition, the exercise identified shortcomings in the recruitment and retention of panel members, in the absence of defensible data about the social profile of panel members and in the perceived lack of status attached to the panel member role. Despite these serious misgivings, the Report concluded that the Hearings System, with significant additional resources, was still a more cost-effective, humane and effective response to children in trouble with the law than the more punitive, court-based approaches favoured in other constituencies.

The Report also commented that the Hearings System had, by default, become almost the only route of access to services for children in need of care and protection because of deficiencies in systems intended to provide support for children in need. In other words, families and professionals often thought it unlikely that help would be provided unless the local authority was obliged to give support by a formal order of the Hearings. The Report concluded that the ‘Hearings system was not designed for this purpose, so it is no surprise that it has been engulfed in a rising tide of care and protection cases that distract it from its primary purpose’. The implications of this reported difficulty for the Hearings in adjusting to the shift in the pattern of referrals to a majority of care and protection cases will be further explored later in this chapter, when the structure of the system is critiqued. First, however, it will be instructive to examine the issue of the resources available for putting into effect decisions made by hearings.

Service resources and finance

Just as the Scottish Executive Audit and Review identified many cases not receiving an adequate service, the NCH Report (2004) concluded that the Hearings System is foundering through a lack of resources. It appears that its capacity to respond well to those children who are victims (of abuse or poor care) is reducing, due to pressures to prioritise youth crime and focus on those most at risk, rather than ‘merely’ in difficulty or at an early stage of family stress or conflict. The arguments for retaining a social welfare model in Scotland for responding to the criminal and antisocial activities of children and young people are convincing in themselves. Placed alongside the outcome data from the increasingly punitive (and failing) court-based measures introduced in England and Wales, the arguments become overwhelming. However, finding a rationale and an organisational structure for the Hearings System’s future work that fully incorporates the needs of children and young people who are victims of maltreatment is less easy to perceive.

The NCH Report pointed not only to non-implementation of Hearings’ decisions in some cases, but also to a perceived lack of imagination and investment in the range of available disposals. Tensions in respect to decisions are not uncommon in work with children. In England, the work of guardians, appointed to report on children’s best interests, has been criticised because a number have been seen to make unrealistic recommendations about the plans that should be made for children, suggesting the use of resources that are not available and causing disappointment for users and angst for service staff (Head 2002). In California, a major system overhaul was implemented because of concerns regarding the coherence of service responses in situations where serious parental substance misuse was reducing the life chances of young children. Judges, state child welfare and protection agencies, and specialist service providers now work together to address issues. Parents are faced with the reality of concerns about their children’s development and the impact of continued drug use on them. The judge in the situation is able to require the parent(s) to attend drug treatment knowing that the facility is there, while the parent is also required to attend court monthly (before the same judge) to review attendance and progress, and the foster carer can update the court on the child’s progress. The whole process can be managed within an agreed time frame known to all the stakeholders, and everybody is aware that parallel planning is progressing so there is no time lag in the provision of alternative arrangements for the child’s future should the parent fail to progress towards agreed good-enough arrangements. Assessment, decision and disposal are integrated, timely and coherent.

The structure and nature of the Hearings

With this alternative view in mind, we may assess the structure of the Scottish Children’s Hearings System and its consequences in terms of the quality of service provided. It may be argued that panel members become socialised into a certain way of approaching Hearings cases, and with it bring a certain mindset to bear on the cases they hear. However, the attitude and perspective required in a care and protection case must clearly differ from that appropriate to offending hearings. The historical legacy of the early years of the system, with its expectation that the panel would focus overwhelmingly on offending cases, may be problematic in view of the changed pattern of referrals over the subsequent period. Panel members may approach care and protection cases – now the majority of cases referred to the hearings – with an attitude ill suited to the issue at hand. In offending cases the panel members have to address themselves much more to the conduct and personal circumstances of the child concerned than to other parties. By contrast, excessive focus on the child is inappropriate in care and protection hearings, which must be concerned with the conduct of other actors and the consequences they have for the child. Therefore, focusing primarily on the child, as panel members may habitually come to do in all cases, will not necessarily be fruitful in all hearings. Moreover, the knowledge base required is different for care and protection cases, compared with youth crime. Not only should the decision-makers be familiar with the complex and varied nature of the maltreatment of children outlined in the first part of this chapter, but they should also fully understand that different kinds of family dynamics are involved.

In the author’s view, this divergence does not necessarily require a separation of decision-making systems and principles, but supports a case for panel member recruitment and training to become more specialised. Some would deal primarily either with care and protection or offending cases, not both, as currently happens. Panel member training would be adjusted to make this effective. The move towards a decoupling of the decision-making could be accompanied by a similar service specialisation, with the creation of a new multiprofessional agency with specific responsibility for the care and protection of the most vulnerable children. This would be multiprofessional, in contrast to the present set-up where, by and large, social workers have the lead role and other professions from different offices and agencies contribute on a case-by-case basis. The new agency would be staffed by selected social worker, police, health and education specialists, and work closely with a component of the Children’s Hearings System dedicated specifically to children appearing before the Hearings on care and protection grounds. Rationalising the system along the lines proposed would enable panel members to have a more focused remit and, as a result, better meet the needs of the children referred to them.

In addition to the issue of institutional structure, there is a matching need for modernised, better resourced and more professional decision-making. It is most common in many countries for formal decision-makers to be either legally trained or lay people (see Chapter 11), but in my view the present situation in Scotland warrants panel members being offered a degree of child care professional status. This would not only give them the expertise required, but would encourage more people to undertake the role. Panel members would be selected with the specific task in mind, be given lengthy training and be paid, with an expectation that they all achieve a designated formal qualification. Appointments could of course be part-time and time-limited, and some employers could be encouraged to commit to secondment arrangements or sponsorship agreements.

To achieve even some of these aims, Scotland may need to rethink approaches and alter funding mechanisms, so that money follows children. Agencies would receive money only if and when they provided a service for the children referred to Hearings. The money would follow individual children and be wholly conditional upon the provision of specified services – letting the development of services follow the needs of the child rather than have the child’s needs trailing along behind the organisational needs of the agency (Giuliani 2002).

There is a need also to address an anomaly in thinking that gets in the way of real progress. For a decade or more, academics and policy-makers have argued about whether emphasis should be placed on either preventive work versus investigative work (Parton 1997) as if there really is a case to be made for either one without the other. What is required are solid preventive and supportive services for all children, especially those categorised as vulnerable. But there is also need for the very best in investigative services, staffed by the best and most experienced professionals at our disposal. People and agencies with broad remits towards children tend to lose track of the most vulnerable, especially those children cared for by those who would deceive and mislead others (Laming 2003; O’Brien 2003).


This chapter has examined the key information emerging in recent decades in relation to the maltreatment of children and linked it to the evolution in approaches to the maltreatment of children in Scotland and elsewhere. The emotive issue of responses to child deaths has been explored, alongside the changing nature of knowledge and shifts in the capacity of both professionals and lay people to fully address the difficulties inherent in protecting vulnerable children from harm. The chapter concluded by assessing the present condition of the Scottish Children’s Hearings System from a number of perspectives, before advocating changes in the selection, training, status and deployment of panel members in order to address certain criticisms made of the Hearing System’s procedures.


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