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Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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PART XI CASE RECORDS, REGULATIONS 42 AND 43

Regulations 42 and 43, Case records for looked after children

Good record-keeping is not just a procedural requirement - it is the foundation of all future decision-making about the child involved. It is important that staff in all services that are involved with children and their families keep complete, accurate and succinct records of their involvement and that they are organised well. Children and parents should be aware of what information is held about them and who will have access to this information.

It is important that records include:

  • A chronology of significant events in the child's life to which all relevant services contribute;
  • Consistent recording of all staff contacts with children and families, including details of when the child has been seen;
  • Decisions taken and reasons for these;
  • A distinction made between facts and opinions;
  • Outcomes of interventions; and
  • Details of the child's views.

Records for children, including child protection, should be regularly reviewed and monitored by managers or others with a quality assurance role. Chronologies are a useful took for identifying, analysing and responding to patterns or an accumulation of concerns which contribute to the overall assessment of risks and needs and supporting informed decision-making about children's lives. These must be kept up-to-date and accurate and regularly reviewed.

The range of information which local authorities must include in their case records for looked after children is listed in regulation 42(2). In thinking about the effectiveness of these records, both as a working tool and also for looked after children to access in the future, local authority procedures should also highlight the principles of good record keeping to all staff and carers. It is important to consider both the quality of the content and the accessibility of important material. The manner in which records are kept should facilitate anyone legitimately accessing them, to identify the planning pathway for the child while he or she is looked after, and to understand the child's development and progress.

There are some key questions to ask when considering the information identified in regulation 42(2) and how carefully and effectively it is prepared and collated.

1. Do the reports demonstrate, both internally and to other agencies, especially the Children's Hearing system and courts, why the local authority made various decisions 'in the best interests of the child'? How do they balance the benefits and risks in difficult decisions; what is their evidence; whose views did they seek; and how do they evaluate opposing views?

2. How well do and did the local authority consistently carry out their responsibilities for the wellbeing and development of the child, whether in line with their general duties under section 17 of the 1995 Act or in terms of parental responsibilities and rights under a PRO or permanence order? Did they always act as a 'concerned parent?'

3. Would an adult who had been looked after as a child gain a sense that they and their parents had been listened to, even if the local authority did not always do as they wished? Would they be able to get an understanding of their time in the care system, why certain plans were made and also what their life was like? This is the sort of information which can fill in gaps in a disrupted childhood.

Records for looked after and placed children are now on a similar footing to those for adopted children in terms of the length of time they have to be retained by local authorities. Regulation 43(1) requires a child's records to be kept for 100 years from the his or her date of birth, unless the child dies before the age of 18, in which case the period for retention is 25 years from the date of death. While the time as looked after may be brief for many children, others may spend many years of their childhood in various care placements. Their future needs for access to information about their past history may therefore be comparable to that of adopted adults. There is now a growing awareness of the issues around post-care access to records.

Particular attention should be paid in local authority procedures to recording links to other records and information, given the frequency with which plans must be made for different members of sibling groups. In complex families comprising full, half-and step-siblings, children may be accommodated at different stages in the family history and at different ages. One family may include siblings who were: brought up by paternal relatives who have little contact; or in kinship care; or adopted together or separately; or fostered; or in residential care. And there may possibly be other siblings who remained at or returned home. For many adults whose birth families have been fragmented, there is as strong a wish to find out about their siblings as about their birth parents. It is therefore logical that there are similar procedures to cover all the records for all the children concerned, when the local authority has been involved in planning their placement. This is true whether the children were ultimately adopted or remained looked after and placed.

Regulation 43 on the retention of records applies to children who are placed by the local authority. For children who are looked after at home, there will obviously need to be an active working record while the local authority are involved. Local authorities should consider how long to retain these records once a case is closed. The minimum period should be while there are still children or young people in the family under the age of 18. Children in the family may be referred or re-referred for support or move elsewhere and come to the attention of another local authority. In keeping records for longer periods, the local authority must consider the reasons for doing so. Apart from legitimate research purposes, possible requests for access may relate to older children who were adopted or accommodated before a more recent family history of children looked after at home. There may also be challenges to local authorities from adults who remained at home under supervision and who later question why they were not removed for their wellbeing or safety. Overall, it would be good practice to retain the records of each child looked after at home for a minimum period of 30 years from the date of the child's 18 th birthday.

Access to children's looked after records is governed by the Data Protection Act 1998 and the Data Protection (Subject Access Modification) (Social Work) Order 2000, SI 2000/415. Local authorities should have clear, robust and sympathetic procedures and systems to assist people who wish to access looked after children's records: adults who were looked after; young people who were and are still looked after; and the parents of younger children who wish to access their children's information. A young person who is under 16 has the right to seek access to his or her own records, in terms of section 66 of the 1998 Act, when he or she "has a general understanding of what it means to exercise that right." There is no lower age limit. A young person who is 16 or over has full adult capacity to exercise rights under the 1998 Act.

Further information and advice about data protection issues generally may be obtained from the Information Commissioner for the UK