Appendix A: Legal Framework
168. The Children and Young People (Scotland) Act 2014 is a significant piece of legislation, introducing major changes to planning, operation and delivery of children's services in Scotland. The Act is particularly important for looked after children and care leavers, putting 'corporate parenting' (Part 9) onto a statutory footing, extending 'aftercare' support to a wider population of care leavers (Part 10) and introducing a new provision of 'continuing care' for some care leavers (Part 11). The Act also requires all adoption agencies to use Scotland's Adoption Register (Part 14), and amends the Children (Scotland) Act 1995 to ensure assessments consider a child or young person's 'wellbeing' (section 95).
169. However it is important to view the Act in the wider legislative context, for the Act in places adds to or amends previous statutes, rather than replacing them. The Children (Scotland) Act 1995 (the 1995 Act) continues to provide the legal framework for 'looked after children' and 'care leavers' in Scotland. The duties, powers and responsibilities of local authorities are set out across sections 17 - 31 of the 1995 Act (as amended by subsequent legislation). Section 21 sets out the co-operation required from other bodies, to enable the local authority to exercise their functions. The accompanying guidance, Children (Scotland) Act 1995 Guidance and Regulations Volume 2: Children Looked After by Local Authorities (published 1997) provides a detailed and comprehensive overview on how local authorities and other public bodies should meet these requirements.
170. The Regulation of Care (Scotland) Act 2001 amends section 29 ('Aftercare') of the 1995 Act, requiring local authorities to conduct an assessment of looked after children who they have a duty or power to advise, support or assist. It also requires local authorities to establish a procedure for considering representations, including complaints, on the discharge of their 'aftercare' duties. The Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 (as amended, most recently by S.S.I. 2015/62) describes the processes (such as completion and review of the 'pathway plan') which local authorities must follow when preparing a looked young person who is leaving care. Detailed guidance on these rules is available Supporting Young People Leaving Care in Scotland: Regulations and Guidance on Services for Young People Ceasing to be Looked After by Local Authorities (March 2004). The Scottish Government will also new issue guidance to reflect the changes set out in Parts 9, 10 & 11 of the Children and Young People (Scotland) Act 2014.
171. The Adoption and Children (Scotland) Act 2007 updated the adoption process in Scotland, and introduced the Permanence Order. Detailed guidance on these changes is available: Guidance on the Looked After Children (Scotland) Regulations 2009 and Adoption and Children (Scotland) Act 2007 (published in March 2011).
172. The Looked After Children (Scotland) Regulations 2009 prescribes a child or young person's journey into care and through care, differentiated by the placement type ( i.e. 'at home', kinship, residential, etc.). The regulations require all looked after children to have a 'child's plan' (sometimes referred to in practice as a 'care plan'), and for children to be actively involved (depending on their age and maturity) in the development and monitoring of that plan. Detailed guidance on these processes is available: Guidance on the Looked After Children (Scotland) Regulations 2009 and Adoption and Children (Scotland) Act 2007 (published in March 2011). Legislation to be made under Part 5 of the Act will require that all planning for looked after children, as set out in the 2009 Regulations, takes place within the framework of the Child's Plan prepared under Part 5.
173. The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended by an act of the same title passed in 2009) provides the legal framework for supporting children and young people (including their families) who require additional services to make the most of their school education. Under this legislation all looked after children are automatically deemed to have additional support needs, unless the education authority has assessed the child or young person as not needing additional support to benefit from school education. In addition, an education authority must consider whether every looked after child (for whose school education they are responsible) requires a Coordinated Support Plan. Independent advice and guidance on this legislation is available from Enquire.
174. The Children's Hearings (Scotland) Act 2011 made significant changes to the Children's Hearings system, introducing a central authority (Children's Hearings Scotland) and a National Convener. The role of the Scottish Children's Reporter Administration ( SCRA) in support of children's hearings was amended, and changes were also made to the legal orders available to a Children's Hearing. Guidance on these changes is available in the Training Resource Manual (Volume 1) Legislation and Procedures (published in March 2013).
175. Other legislation relevant to looked after children and care leavers in Scotland includes:
- Social Work (Scotland) Act 1968
- Human Rights Act 1998
- Data Protection Act 1998
- Children (Leaving Care) Act 2000
- Mental Health (Care and Treatment) (Scotland) Act 2003
- Local Government in Scotland Act 2003
- Protection of Vulnerable Groups (Scotland) Act 2007
- Equality Act 2010
- Social Care (Self-Directed Support) (Scotland) 2013
- Public Bodies (Joint Working) (Scotland) Act 2014