PART ONE: KINSHIP CARE ORDERS AND THE LEGAL FRAMEWORK
Children (Scotland) Act 1995
19. The Children (Scotland) Act 1995 (the 1995 Act) provides a major part of the legal framework for child welfare and protection in Scotland. The Act is based on three broad principles:
a) The child's views should be taken into account in decisions that affect their lives;
b) The welfare of the child is the paramount consideration;
c) No court or hearing should make an order, unless the court or hearing considers that to do so would be better for the child than making no order at all (known as the 'no order' principle).
20. One of the main aims of the 1995 Act was to enshrine parental responsibilities towards children, as well as parental rights. The Act also provided an early intervention approach with a provision of local authority duties for children 'in need' (section 22).
Adoption and Children (Scotland) Act 2007
21. The Adoption and Children (Scotland) Act 2007 (the 2007 Act) modernised the system of adoption in Scotland and introduced Permanence Orders as an additional option alongside adoption to provide long-term security for children who could not live with their families. Permanence Orders provide for the local authority to be responsible for regulating the child's residence and to provide guidance to that child. All other parental responsibilities and rights can be removed from one or both parents and placed with foster carers, prospective adopters or the local authority, or shared between some or all of these parties. A Permanence Order is designed to be tailored to fit the individual needs of a child.
Children's Hearings (Scotland) Act 2011
22. The Children's Hearings (Scotland) Act 2011 (the 2011 Act) sets out fundamental structural changes to the Children's Hearings System in Scotland. These include the creation of a National Convener and a national body, Children's Hearings Scotland (CHS), to support this role. The Act also updated some procedural issues; for example, the Act introduced pre-hearing panels, revised Grounds for referral and extended the definition of relevant persons for the purposes of the Act. The Act also contains other provisions, including procedure relating to child protection orders, child assessment orders and other types of emergency child protection procedures.
Children and Young People (Scotland) Act 2014
23. The Children and Young People (Scotland) Act 2014 (the 2014 Act) was passed by the Scottish Parliament on 19 February 2014, and received Royal Assent on 27 March 2014. The legislation is a key part of the Scottish Government's strategy for making Scotland the best place in the world for children to grow up. By facilitating a shift in public services towards the early years of a child's life, and towards early engagement and intervention whenever a family or young person needs help, the legislation encourages preventative measures, rather than crisis responses. Underpinned by the Scottish Government's commitment to the United Nations Convention on the Rights of the Child 1989 (UNCRC), and the national children's services improvement programme, Getting it Right for Every Child (GIRFEC), the Act also establishes a new legal framework within which services are to work together in support of children, young people and families.
24. Composed of 18 distinct Parts, the 2014 Act makes important changes to the development of services for children and their families. In summary, the Act:
- Places new duties on Scottish Ministers and public bodies in respect of giving further effect to requirements of the UNCRC. (Part 1)
- Strengthens the powers of the Commissioner for Children and Young People in Scotland to enable investigations to be conducted in relation to matters concerning individual children and young people. (Part 2)
- Establishes a structure for the 'integrated' planning and delivery of all children's services in a local authority area. (Part 3)
- Provides for children and young people (up to their 18th birthday and beyond, if still at school), to have a Named Person who is a single point of contact with responsibility for promoting, supporting and safeguarding the child's wellbeing. (Part 4)
- Ensures that there is a single planning framework (the Child's Plan) for children who have wellbeing needs which require targeted intervention. (Part 5)
- Increases the amount and flexibility of early learning and childcare available to all 3 and 4 year olds, and to vulnerable 2 year olds. (Part 6)
- Introduces a coordinated approach to consultation and planning on all early learning and childcare, day care and out of school care provided by local authorities. (Part 6, Part 7 and Part 8)
- Places corporate parenting duties on a range of publicly funded organisations in respect of looked after children and care leavers, increasing the breadth and depth of support available to those groups of children and young people. (Part 9)
- Extends eligibility to aftercare assistance up to an individual's 26th birthday. (Part 10)
- Introduces 'continuing care', through which eligible care leavers will have the opportunity to continue with the accommodation and assistance they were provided with before they ceased to be looked after. (Part 11)
- Increases the support available in respect of children at risk of becoming looked after. (Part 12)
- Specifies the types of court order that will be recognised as a Kinship Care Order (KCO) for the purpose of receiving kinship care assistance and sets out the duties of local authorities to make arrangements to ensure that assistance is made available to kinship carers who are seeking, have obtained or are holders of a kinship care order and to children and young people who are subjects of such an Order. (Part 13)
- Places Scotland's National Adoption Register on a statutory footing.
- Strengthens existing legislation on school closures. (Part 15)
- Makes changes to the children's hearings system. (Part 16)
- Provides for free school meals to be made available to certain pupils, creates a new right to appeal a local authority decision to place a child in secure accommodation under section 44 of the Criminal Procedure (Scotland) Act 1995, amends the system of children's legal aid, extends licensing of child performances to children under 16 and provides that the wellbeing of a child should be considered in exercising certain functions of the 1995 Act. (Part 17)
- Establishes a holistic understanding of child wellbeing for the purposes of the 2014 Act. (Part 18)
Part 13 of the 2014 Act and the Kinship Care Assistance (Scotland) Order 2016
25. Part 13 of the 2014 Act and the Kinship Care Assistance (Scotland) Order 2016 (the 2016 Order) came into force on 1st April 2016. The 2016 Order (see Appendix B) supplements and supports the implementation of Part 13: Support for Kinship Care of the 2014 Act (see Appendix C).
26. Through the 2014 Act, the Scottish Parliament has placed a duty on local authorities to make arrangements to secure that kinship care assistance is made available to the following specific categories of people residing in that local authority area:
- An adult who is applying for a kinship care order in respect of an eligible child below the age of 16;
- An adult who is considering applying for a kinship care order in respect of an eligible child below the age of 16;
- An adult with a kinship care order in respect of an eligible child below the age of 16;
- An adult who is a guardian (not a parent) by virtue of an appointment under section 7 of the 1995 Act of an eligible child below the age of 16;
- A child below the age of 16 who is subject to a kinship care order who is deemed by the local authority to be an eligible child;
- A child who has reached the age of 16, who is an eligible child and was subject to a kinship care order immediately prior to their 16th birthday.
- An eligible child who has a guardian who was appointed under section 7 of the 1995 Act.
27. The Order makes provision in 7 main areas:
- The manner in which a local authority is to provide kinship care assistance;
- The types of kinship care assistance that local authorities are to make available to each specified person (see above for who is a specified person);
- An extension of the definition of an eligible child;
- Factors that must be considered in assessing whether a child is at risk of becoming looked after for the purposes of considering whether that child is an eligible child;
- A requirement that a person must apply to a local authority for certain types of kinship care assistance;
- The procedure that local authorities must follow when notifying a person who has applied for kinship care assistance;
- The information that local authorities must publish about kinship care assistance.
Kinship care orders
28. Under section 72 (1) of the 2014 Act, a kinship care order means-
(a) an order under section 11(1) of the 1995 Act which gives to a qualifying person the right mentioned in section 2(1)(a) of that Act in relation to a child,
(b) a residence order which has the effect that a child is to live with, or live predominantly with, a qualifying person, or
(c) an order under section 11(1) of the 1995 Act appointing a qualifying person as a guardian of a child.
29. A kinship care order can be a trigger for receipt of kinship care assistance. Being a guardian, or having a guardian, can be a trigger for receipt of kinship care assistance.
30. Under section 72(2) of the 2014 Act a qualifying person in relation to a kinship care order is a person who, at the time the order is made -
a) Is related to the child;
i. This includes a person who is married to or in a civil partnership with a person who is related to the child.
ii. Related to the child by the half blood.
b) Is a friend or acquaintance of a person related to the child; or
c) Has some other relationship to, or connection with, the child as the Scottish Ministers may by order specify. Scottish Ministers have not, as yet, specified such a relationship or connection for the purpose of this section.
31. Under section 72(3), a parent of the child is not a qualifying person.
32. From April 2016, an order under section 11(1) of the 1995 Act as specified in section 72(1)(a) and (c) of the 2014 Act, or a residence order as specified under section 72(1)(b) of the 2014 Act, is categorised as a kinship care order for the purpose of local authority arrangements for kinship care assistance. A kinship care order will decree the right of the applicant to have the child living with them or otherwise to regulate the child's residence.
33. A kinship care order may confer all or part of parental responsibilities and rights on the applicant. Parental responsibilities are to promote and safeguard the child's health, development and welfare, to provide direction and guidance to the child, and to act as the child's legal representative, together with the parental rights to control, direct or guide the child's upbringing, and to act as the legal representative as set out under section 1 & 2 of the 1995 Act.
34. The paramount consideration of the court in considering an application for a section 11 order is the welfare of the child throughout his or her childhood. The court will not make an order unless it would be better for the child than not making an order. This is well-established in Scots law and is known as the 'no order' principle.
35. In some cases, parents will retain some parental responsibilities and rights for their children. Local authorities should recognise the existence of certain legal rights of parents under Scots law, and, where appropriate, consider the implications for children living with kinship carers. Local authorities are recommended to provide information and advice on this area to those persons seeking, holding or subject to a kinship care order (see section in Part 2 on the provision of advice and information for kinship carers).
36. One of the main advantages of obtaining a kinship care order is achieving legal security ensuring a more stable home environment for a child. Depending on the section of the 1995 Act that the order is made under, it will set out conditions of residence for the child and may also transfer parental responsibilities and rights. This allows a kinship carer to make a range of decisions that any reasonable parent can take in relation to a child's day-to-day life. If parental rights are transferred, a kinship carer can, for example, provide consent for the child to undertake medical procedures (if they are too young to give informed consent themselves), obtain a passport and be responsible for the child's property (for example, financial assets/inheritance).
37. A child who is living with friends or relatives by means of a kinship care order is not formally 'looked after' by a local authority. This means that the legislation and regulations governing the care of looked after children are not applicable. A child subject to a kinship care order would not require the statutory intervention necessary for a looked after child and would not have to attend Children's Hearings (unless there are grounds or new grounds for referral). Where a child's wellbeing need has been identified it should be met through the provision of support generally available to all children. If a child required a targeted intervention to meet their wellbeing need, a Child's Plan would be initiated and a Lead Professional identified.
38. Kinship care orders continue until a child reaches the age of sixteen, unless there is a new court action. In exceptional circumstances, a section 11 order can continue beyond the age of sixteen. In the majority of cases, a child has sufficient capacity to decide residence by the age of sixteen.