Publication - Independent report

Children looked after by local authorities: legal framework

Published: 14 Sep 2006
Children and Families Directorate
Part of:
Children and families, Education

This report describes key aspects of the law as it applies throughout a child's journey through public care and supervision.

132 page PDF

365.6 kB

132 page PDF

365.6 kB

Children looked after by local authorities: legal framework

132 page PDF

365.6 kB

Jackie McRae
commissioned for the review of looked after children in Scotland

ISBN 1 905501 11 0

This document is also available in pdf format (376k)



1 Introduction
What makes up the legal framework?
Common law
European Convention of Human Rights
National guidance
Structure of this report

2 Children and parents, responsibilities and rights
Background to children's legislation in Scotland
Statutory definitions of 'child'
Parents' responsibilities and rights
Unmarried fathers
Effect of being looked after on parental responsibility and rights
Parenting orders
Adults with incapacity

3 Becoming looked after
Legal decision-making
Importance of family relationships
Presumption in favour of contact
Routes into being looked after
Accommodation provided on a voluntary basis
Compulsory measures of supervision and court orders
Effect of court orders
When does the local authority acquire parental responsibilities?

4 Local authorities legal duties towards looked after children
General duties
Children's views and wishes
Provision for children's need
Right to contact with family
Sibling relationships

5 Throughcare
Care planning
Placing a child away from home
The local authority's contact with children looked after away from home
The local authority's contact with looked after children under home supervision
Review of child's case
Timetable for reviews

6 Kinship care
Legal status of relatives and friends
Placement of looked after children with relatives
Payment to kinship carers

7 Roles and responsibilities of other agencies
Co-operation between agencies
Joint resourcing and management of local authority and health services
Notifications to other agencies

8 Health care
General statutory framework for NHS care
Health care for children placed away from home
Mental health
Welfare of children admitted to hospital for more than three months

9 Education
Legal framework for education
Planning for looked after children's educational needs
Access to specialist services for looked after children

10 Children with disabilities
Definition of disability
Statutory framework
Looking after children affected by disability (respite care)
Entitlement to direct payments
Disability discrimination legislation

11 Pathways through local authority care
Permanent substitute care
Parental responsibilities orders

12 Leaving care
Financial support for young people leaving care
Maintenance for young people in full-time education

13 Monitoring performance
The Chief Social Work Officer
Regulation of services
Enforcement of local authorities statutory duties
Complaints procedures
The Children's Commissioner
The Public Service Ombudsman
Judicial remedies
Legal liability for injury and loss
New statutory provisions for enforcement

14 Managing information
Disclosure of personal information
Right of access to personal information
Freedom of information

15 Rights to appeal
Legal aid and representation

16 Overview of the framework
Key themes
The minimum intervention principle
Human rights
Interface between Parts I and II of the Act
The contribution of a child's wider family
The role of statutory guidance
Looked after or not looked after?

Appendix 1 Relevant legislation and guidance
Appendix 2 European Convention of Human Rights
Appendix 3 References

Children looked after by local authorities: the legal framework

This report, commissioned by the Social Work Services Inspectorate, now the Social Work Inspection Agency, provides an overview of the legal framework for children looked after by local authorities in Scotland. It is published as one of several supporting documents for a wider review of services and outcomes for looked after children, the main report of which is entitled Extraordinary Lives. Originally prepared in September 2004 as a reference document for the SWIA review team, it is now updated and comprises two parts. Part One identifies the key issues. Part Two explores these issues in more detail and provides a reference to key legal requirements for social work and legal practitioners involved with children who are looked after.

The key messages of this report are that the current legislative framework for looked after children is comprehensive and adequate to meet the needs of those with responsibilities for their care and protection. However, managers and practitioners working with looked after children require an improved knowledge of the law, and a greater understanding of how to use it to help them meet their responsibilities.

© Crown copyright 2006