Context:
There has been increasing concern about the historic abuse of children in residential and foster care in countries around the world. Inquiries have taken place in a number of countries and measures have been put in place to address the needs of survivors of abuse in care. The focus of such inquiries and responses to historic abuse have varied significantly from country to country (Sköld and Swain, 2015; Wright, Swain and Sköld, 2020). In Scotland, there has – over the years – been a range of policy and practice developments aimed at safeguarding and protecting children in care from abuse and harm (Kendrick, 2014; Kendrick et al., 2021). These developments have occurred alongside a growing recognition of the needs of survivors of abuse in care.
In the 1990s and early 2000s, inquiries identified the historic abuse of children in care settings in Scotland (Marshall, Jamieson and Finlayson, 1999; Black and Williams, 2002). During a similar period, adult survivors who had experienced abuse in care as children highlighted their experiences and called for justice. A petition to Scottish Parliament by survivors led to an apology from the First Minister in 2004; the setting up of the Historic Abuse Systemic Review; and the establishment of a support service for survivors of abuse in care. Further developments included the setting up of the National Confidential Forum and the Scottish Human Rights Commission InterAction on the Historic Abuse of Children in Care; the commitments made by Scottish Government to the InterAction Action Plan; and the establishment of the Scottish Child Abuse Inquiry (SCAI) (Kendrick et al., 2015).
In 2018, the Scottish Government made a commitment to establish a financial redress scheme for survivors of childhood abuse in care. Redress Scotland was established by the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and launched in November 2021. Section 19 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 sets out ‘abuse’ to include sexual abuse, physical abuse, emotional abuse, and abuse which takes the form of neglect. As outlined within Section 19 (2) of the Act, physical abuse includes: … corporal punishment to the extent that, at the time it was administered, it was not permitted under or by virtue of any enactment or rule of law because it was— (a) excessive, arbitrary or cruel, (b) administered for an improper motive, or (c) not so permitted for another reason.
Paragraphs 18-19 (p. 4) of the Statutory Guidance regarding Eligibility Requirements for the Redress Scheme states the following:
18. As noted in relevant findings of the Scottish Child Abuse Inquiry, at times “the corporal punishment inflicted was above and beyond what would even have been acceptable in a school setting, approved school setting or family setting”. Such cases would in light of section 19(2) of the Act constitute “abuse” for the purposes of the scheme.
19. However, where corporal punishment was administered in a way that was permitted under or by virtue of any regulations, enactment or rule of law in force at the time it will not be considered “abuse” for the purposes of the scheme.
While the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 specifically mentions ‘corporal punishment’, other forms of punishment may have been permitted by law or regulation but could be considered abuse because they were cruel, caused humiliation or emotional harm. Section 20(1)(a) of the aforementioned Act defines a relevant care setting as "a residential institution in which the day-to-day care of children was provided by or on behalf of a person other than a parent or guardian of the children resident there.”
As defined within Section 20 (3), this means—
a) a children’s home,
b) a penal institution,
c) a residential care facility,
d) school-related accommodation,
e) secure accommodation.
In addition, within the Act (Section 20(1)(b)) the meaning of “a relevant care setting” includes “a place, other than a residential institution, in which a child resided while being— (i) boarded out (ii) fostered.”
Aims and Objectives:
The principal aim of this research review is to set out the nature of discipline and punishment in care settings in Scotland from 1920 to 2014.
Specific objectives will be to:
i) describe the relevant legislation relating to punishment in care settings at different points in time.
ii) describe the main policies and regulations in place as they related to care settings at different points in time.
iii) explore in more detail some critical aspects of punishment and regulation in Scotland over the period under review, specifically: a. changes relating to corporal punishment; b. changes relating to isolation and solitary confinement; c. changes relating to the use of medication as punishment; and d. instances where punishment was identified as being excessive, arbitrary, cruel, or administered for an improper motive.
