Children looked after by local authorities: legal framework

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

5 Throughcare

Effective care planning and review should ensure that the child's needs are properly met throughout the period of being looked after, and should enable the local authority to meet its statutory responsibility to prepare the child and his or her family for the time when the child is no longer looked after by the local authority. 28 Guidance defines throughcare as planning for the period when the child is no longer looked after and tends to focus on older young people. 29 Throughcare should also encompass co-ordination and management of children's care from their first becoming looked after to the point at which they are no longer looked after. It includes planning transitions across developmental stages and between placements, as well as equipping older children and young people with skills for independent living. Essentially the aim is to make sure that the young person leaving care has the personal and social skills to achieve healthy, happy independent adulthood. This requires that care planning take a long-term view.

Local authorities have legal duties to prepare written plans for the care and supervision of looked after children in consultation with their parents and carers and other agencies involved with the childcare. They are required to review these at regular, prescribed intervals. The purpose of care planning and review is to ensure that the local authority is properly discharging its duties to safeguard and promote the child's welfare, ensure that the child's needs are properly met throughout the period of being looked after, and to prepare the child and his or her family for the time when the child is no longer looked after by the local authority.

Care planning

For every looked after child, the local authority is required to formulate a care plan to address his or her immediate and longer term needs, whether he or she is looked after away from home or living at home under supervision. 30 To inform the care plan the local authority is legally required to collect and record in writing the following information: details of the child's family and household, his personal and social development; nationality, race, religion and language; legal status, medical and educational history; contact with members of the child's family and other significant people who do not live with him or her, and information about the child's interests and hobbies. The plan must be in writing 31 and agreed with the person(s) with parental responsibilities for the child. 32 National guidance advises that the care plan should be in the form of a signed written agreement and it should be a practical document written in plain language setting out the responsibilities of the local authority, the child, persons with parental responsibility and any other relevant person. 33

For every looked after child, including those on home supervision, the care plan must include details of the local authority's plans for the child, services to be provided immediately and in the longer term to meet the child's needs for care, education and health and the respective responsibilities of the child, and any relevant person including the child's parents or others with parental responsibility. 34 Care plans for children under home supervision should reflect the fact that the child's day-to-day care is undertaken by his or her family. 35

If a child is placed away from home the plan should include details of the type of accommodation to be provided, the contribution of parents or other persons to the child's day-to-day care and arrangements for involving the child and his or her family in
decision-making. It should also include details of arrangements for the child's contact with persons with parental responsibility and reasons for any restrictions on contact. And finally the care plan should also state the expected duration of arrangements and the steps which should be taken in bringing the placement to an end when appropriate. 36

In developing a care plan the local authority must consider the following specific issues:

  • alternatives to looking after the child 37
  • whether a change in the child's legal status is necessary 38
  • contact arrangements 39
  • health arrangements 40
  • educational needs and continuity of provision 41
  • appropriateness of any proposed placement in a residential establishment with reference to the unit's functions and objectives 42

Scottish research and inspection findings indicate that, despite a comprehensive statutory framework for care planning with stipulations about the content and form of the care plan and the involvement and agreement of the child and relevant persons, local authorities' performance is patchy at best and many looked after children do not have care plans in place. 43

Placing a child away from home

If the local authority provides accommodation for the child, whether on a voluntary or compulsory basis, the local authority may place the child in a foster family, or in a residential establishment. 44 When a local authority is looking after a child other than by virtue of a supervision requirement, and intends to place a child with a family, relative or friend they are generally required to place children with approved foster carers, unless placing the child in an emergency or making a short-term immediate placement for up to six weeks. 45 A residential establishment means an establishment managed by a local authority, a voluntary organisation or any other person which provides residential accommodation for children for the purposes of the Social Work (Scotland) Act 1968 or the Children (Scotland) Act 1995. 46 This definition includes a residential school, now defined as a 'school care accommodation service'. 47 The local authority may also make any other arrangements for the child's accommodation it thinks appropriate. 48

If the local authority is looking after a child who is subject to a court order or compulsory measures of supervision, it may place the child with a parent or another person with parental responsibility who is not a parent, and must do so if directed to do so by a children's hearing, as a condition of residence attached to a supervision requirement. 49 It may not place the child with a parent or other person with parental responsibility if the child is being accommodated on a voluntary basis. 50

The local authority may provide accommodation by placing the child with a relative or any other suitable person, which may include a friend of the family or a neighbour. 51 These provisions empower the local authority to foster a child with a person whom he or she knows well and ensure minimum disruption to the child's relationships and existing routines if this does not expose him or her to the risk of significant harm. However when a looked after child is placed with a relative or a family friend, the carer must be approved as a foster carer unless the placement is an immediate placement, made in an emergency and will not last more than six weeks, or the placement is a condition of a supervision requirement. 52 The care plan and placement arrangements must take account of the terms of any order by a court or children's hearing. 53 The local authority should take 'such steps as they consider reasonable' if it appears that a condition of a supervision requirement that a child should reside in accommodation provided by the parents or relatives of the child or by any person associated with them or the child is not fulfilled. 54

In making decisions about where to place a child for whom they provide accommodation the local authority have a legal obligation to consult and have regard to the views and wishes of the child and his or her parents. The local authority is required to notify both parents and any relevant person of the beginning and end of any placement of a looked after child, unless that person has already received a written copy of the child's care plan. 55 The local authority may withhold details of the placements whereabouts or a foster carer's name and address if to do so is considered to be in the child's best interests or a children's hearing prohibits disclosure of information. 56

The local authority's contact with looked after children away from home

Secondary legislation stipulates the minimum levels of contact that the local authority should have with a child whom they look after away from home. The local authority must visit the child within one week of placement. 57 Thereafter the child should be visited at regular intervals of not more than three months, 58 and may need to be visited more often, as frequently as needed to safeguard and promote the child's welfare and support the carers. 59 In any event the local authority should visit when reasonably requested to do so by the child or foster carer. 60 The local authority must ensure that a written report of any visit to the foster child is completed and that these are considered by the local authority in any review of the child's case. 61

Legislation does not stipulate the nature of the contact and whether this should be with a social worker. Statutory guidance describes the purpose of visits to the child in placement: to monitor the placement with a view to safeguarding the child's welfare, to find out whether the agreed range and standard of services are being provided, to review the child's progress and provide support to all parties. 62 The guidance makes explicit the expectation that the child's social worker will carry out these statutory visits. 63

The local authority's contact with looked after children under home supervision

There is no statutory minimum level of contact with a child under home supervision but national guidance states that when a children's hearing makes a supervision requirement the local authority should allocate a social worker to the child, who should arrange to visit the family immediately where the child is thought to be at significant risk, and in any case within two weeks of the supervision requirement being made. The guidance also recommends a minimum of fortnightly contact for at least the first three months of the supervision requirement.

In 1999 the Scottish Executive issued national standards for agencies working with the children's hearings which require that local authorities give effect to home supervision requirements within 15 working days of a hearing's decision. 64 Only a third of local authorities met this standard in 2002-2003. 65

Review of child's case

Legislation requires local authorities to review the case of every looked after child at regular intervals, whether they are placed away from home or residing with their family under home supervision. 66 This enables the local authority, the child's family and the child, depending on his or her age and maturity, to measure his or her progress in placement or under home supervision. Guidance suggests that one of the functions of the review is to provide an opportunity to oversee and make accountable the work of the professional staff involved. 67 This accountability must be not only to the employing local authority or partner agencies but to the child and family involved.

The review is legally required to consider whether the care plan is being carried out effectively, and whether there is any need to change or add to the care plan. 68 When reviewing the care plan the local authority is required to consider the nature of services being provided, any alternatives to looking after the child and whether the local authority should seek a change in the child's legal status. When considering and revising the care plan the local authority must consult with the child and his or her parents and any other relevant person and have regard to their views. They must also have regard to the child's religious persuasion, racial origin and cultural and linguistic background. 69

Timetable for reviews

For children being looked after away from home, the local authority should arrange a first statutory review within six weeks of the beginning of the placement, and hold a second review within three months. 70 These short timescales should facilitate focused planning and active work with the child and family, subject to early reconsideration with a view to helping a child return home as soon as possible. This is important in view of research findings that the likelihood of a child returning home to his or her family declines the longer he or she remains in public care. 71 Thereafter reviews should be held at not more than six-monthly intervals. 72

For looked after children living at home the local authority should review their case within three months of beginning to look after the child, and at not more than six-monthly intervals thereafter. 73

Guidance suggests that reviews have differential status according to whether or not a child is subject to a supervision requirement. It describes the review for a child accommodated on a voluntary basis as a decision-making forum and differentiates these reviews from those for children subject to compulsory measures of supervision. 74 The child's statutory review is legally obliged to consider all the matters stipulated in secondary legislation and take decisions regarding these. Some decisions made by reviews may require consideration and endorsement by a children's hearing before they can be implemented, if these have a bearing on conditions attached to a supervision requirement. The review should consider whether a review children's hearing is necessary before any changes to a care plan can be implemented if these affect conditions attached to a supervision requirement, for example about a child's placement or contact with relevant persons, or attendance at a particular school.

The local authority should not normally move a child from a placement named in a condition of residence attached to a supervision requirement, without seeking a review children's hearing. This may be necessary when, for example, a foster placement breaks down suddenly, and the local authority must act quickly to safeguard and promote the child's welfare. This may place the hearing in a difficult position if a return to the previous placement is no longer possible, or it would not be in the child's best interests to subject him or her to a further change of placement. Unilateral action by a local authority might give grounds for judicial review for example, of a local authority's decision, to place a looked after child with prospective adopters against the parents' wishes without seeking a review children's hearing.

The local authority is required to refer a child to the principal reporter when they think any significant change to the child's legal status may be needed, when they are considering placing the child for adoption, or because a condition in the supervision requirement is not being complied with. 75 Before doing so the local authority should arrange a statutory review. 76 Significant changes in the child's legal status include variation or termination of a supervision requirement, the local authority applying for a parental responsibilities order, an adoption order or an order freeing the child for adoption. The local authority should also carry out a statutory review for any looked after child subject to a supervision requirement before a review children's hearing convened at the request of the child or his or her parents, or following notice of an intention to take the child to live outside Scotland by any relevant person, or a children's hearing which has been convened to consider new grounds of referral. 77 Guidance states that a local authority should arrange a review if considering a recommendation to restrict or terminate contact between the child and persons with parental responsibility, although this is not a statutory requirement. 78 Therefore for children looked after under compulsory measures of supervision the children's hearing has the lead role in making significant decisions about children's care and support, will consider any proposals for substantial change to care plans and will review progress at least annually. The English Court of Appeal sought to introduce a similar common law power of review for the courts where important aspects of care plans were not implemented for children subject to care orders, but the House of Lords overruled the development. 79 Guidance recommends that social work departments monitor compliance with statutory timescales for review. It also recommends that local authorities monitor who attends reviews, the content of reviews, what decisions are made and whether these are subsequently implemented. 80

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