Book contents
- Frontmatter
- Contents
- Expanded Table of Contents
- Table of Cases
- Table of Statutes
- Table of Statutory Instruments
- Foreword by The Hon. Lady Wise
- Introduction
- 1 The Statutory Framework before 1968
- 2 The Statutory Framework after 1968
- 3 Child Protection through the Criminal Law
- 4 The Legal Process before 1968: The Juvenile Court
- 5 The Legal Process in the Modern Era: Scotland’s Children’s Hearing System
- 6 Home Supervision
- 7 Boarding-out and Fostering by Public Authorities
- 8 Institutional Care
- 9 Emergency and Interim Protection
- 10 Aftercare
- 11 Emigration of Children
- 12 Adoption of Children
- Index
1 - The Statutory Framework before 1968
Published online by Cambridge University Press: 22 September 2020
- Frontmatter
- Contents
- Expanded Table of Contents
- Table of Cases
- Table of Statutes
- Table of Statutory Instruments
- Foreword by The Hon. Lady Wise
- Introduction
- 1 The Statutory Framework before 1968
- 2 The Statutory Framework after 1968
- 3 Child Protection through the Criminal Law
- 4 The Legal Process before 1968: The Juvenile Court
- 5 The Legal Process in the Modern Era: Scotland’s Children’s Hearing System
- 6 Home Supervision
- 7 Boarding-out and Fostering by Public Authorities
- 8 Institutional Care
- 9 Emergency and Interim Protection
- 10 Aftercare
- 11 Emigration of Children
- 12 Adoption of Children
- Index
Summary
INTRODUCTION
The Court of Session, as the supreme court of equity in Scotland, has always claimed the right, traced through the Scottish Privy Council to the Crown itself, to superintend the upbringing of children within Scotland, though the earliest cases, from the seventeenth century, arose in one very particular context. As expressed by Wilkinson and Norrie (citing Lord Fraser):
In the seventeenth century, when religious controversy and confidence in the rightness of sectional religious opinions ran high, robust views were sometimes entertained of state powers of interference in the religious upbringing of children. In 1665 the Scottish Privy Council, from which the Court of Session's jurisdiction in custody matters is derived, ordered that the children of Scott of Raeburn and his wife “being infected with the error of Quakerism” to be taken from them and, later in the same year, the young Marquis of Huntley was taken from the custody of his mother and guardians “they being Popishly inclined” and entrusted to the care of the Protestant Archbishop Sharp of St. Andrews under a direction that “no persons Popishly inclined have liberty to serve or attend him”. By an Act of 1661 “All children under Popish tutors or curators” were taken from their care, and by an Act of 1700 not only professed Papists but also those suspected of Popery were declared incapable of the offices of tutory or curatory.
These were not, however, the true origins of Scottish child protection law. The concern underlying these cases and statutes was hardly the welfare of children as we understand that concept today. Saving children from “Popery” was far more to do with maintaining the ascendancy of the protestant religion, especially amongst the land-owning classes, than with saving the souls of the children involved.
Outwith the specialities of state favouritism towards a particular religious confession, the common law of Scotland gave strong, but not unlimited, protection to the patria potestas, that is to say, the power of the father of a legitimate child (and, to a lesser extent, the mother of an illegitimate child) to control the child's upbringing until puberty.
- Type
- Chapter
- Information
- A History of Scottish Child Protection Law , pp. 7 - 41Publisher: Edinburgh University PressPrint publication year: 2020