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.

Footnotes for Kinship care

1 Sutherland (1999), pp 160-162

2 C(S)A 1995, section 7 and section 11

3 Sutherland (1999), pp 159-162

4 The Scottish Executive (2004) Family Matters: Improving Family Law in Scotland, section 4 - Contact between children and wider family (Edinburgh, HMSO)

5 C(S)A 1995, section 93(1)

6 Family Law (Scotland) Act 1985, section 1(1)(d); this may apply to, for example, a step-parent without parental responsibilities and rights or a parent's cohabitee

7 C(S)A 1995, section 5

8 Norrie (2004) p 19

9 Norrie (1997) p 12

10 C(S)A 1995, section 5(2)

11 C(S)A 1995, s45; children's hearing Rules (Scotland)1996, rule 7 - notification of children's hearings to relevant persons … rule 18(b) - notification of statement of grounds of referral

12 C(S)A 1995, s 65; children's hearings (Scotland) Rules, rule 11 - representation for the purposes of assisting … relevant persons; C(S)A 1995, s92 - entitlement to legal aid

13 C(S)A 1995, section 51

14 The Arrangements to Look After Children (Scotland) 1996, Regulation 7(d)

15 Norrie (2004) p 88 (Scottish SW Legislation - Annotation to C(S)A 1995 - C198.11)

16 C(S)A 1995, s93(2)(b)(c)

17 JS and TK v MN and Principal Reporter Inner House, Court of Session 8 February 2002

18 (Jamieson p82, quoting Kennedy v H 1988 SLT 586)

19 C(S)A 1995, s11(3)(i)

20 C(S)A 1995, s17(3)(d)

21 C(S)A 1995, s15(1)

22 The Scottish Executive (2002) Growing Support; A Review of Support to Vulnerable Families with Young Children, Chapter 3, Working with extended families - paragraphs 65-71

23 Fostering of Children (Scotland) Regulations 1996, regulations, 3 and 12

24 C(S)A 1995, section 26(1)(a)(ii) and (iii)

25 Fostering of Children (Scotland) Regulations 1996, regulation 14

26 ibid, regulation 15

27 Children (Scotland) Act 1995 Regulations and Guidance Volume 2 Children Looked After by Local Authorities, Chapter 2, paragraph 117, p 69

28 Children Act 1989, section 23(3) (also excludes relatives in whose favour a residence order had been in force prior to the child having been looked after)

29 Children Act 1989, section 23(6)

30 Placement of Children with Parents etc. Regulations 1991

31 Children (Scotland) Act 1995 Regulations and Guidance Volume 2 Children Looked After by Local Authorities, Chapter 3, paragraph 35-37, p 52

32 C(S)A 1995, section 17(1)(a)

33 The Arrangements to Look After Children (Scotland) 1996, Regulation 18

34 C(S)A 1995, section 26(1)(a)

35 Triseliotis, J., Borland, M. and Hill, M. (1999) Fostering Good Relations: A Study of Foster Care and Foster Carers in Scotland Social Work Research Findings No. 34 The Scottish Executive

36 R (L and Others) v Manchester City Council; R (R and Anor) v Manchester City Council 2001 WL 1476308 Applications for judicial review were made on behalf of several children by their guardians ad litem as 'litigation friends', challenging the legality of a local authority's policy to pay short-term foster carers who were friends or relatives of the children concerned at a much lower rate than non related foster carers. When providing financial assistance to carers the local authority treated looked after children which it placed with friends or relatives in the same way as children in need living with friends and relatives, not placed by the local authority. This entailed a framework of discretionary payments to a specified yearly maximum per child, with a preference for one-off grants rather than weekly maintenance allowances. The local authority justified that policy as ensuring that payments to carers who were friends or relatives did not act as a disincentive to apply for residence orders on financial grounds alone. The claimants argued that the policy was irrational and breached the children's Article 8 and 14 rights under the European Convention of Human Rights. The children in these cases had similar needs to other children looked after by the local authority because of poor parental care and needed more than subsistence care to allow them to recover. The policy created a financial 'underclass of children who did not get the level of support which a rational policy would provide and whose foster carers would be under financial pressure to go out to work.

37 The Council's standing orders did not provide delegated authority for officials to impose the policy without involvement of elected members, and the local authority would have to either agree a new policy at Social Services Committee or ratify the existing one

38 MC or V, Petitioner v South Lanarkshire Council 30th January 2004 (Scottish Opinions February 2004)

39 In considering whether the local authority's decision amounted to discriminatory treatment of relative carers to the extent of breaching Article 14, the court applied the Michalak test established in an English Court of Appeal case ( London Borough of Wandsworth v. Michalak 2002 WL 226161, per Lord Justice Brooke at paragraph 20). It asked whether the facts of the case fell within the ambit of one or more of the Convention rights and held that there was potential for engagement of Article 8 in this case, which merited testing at a full hearing. If a Convention right was engaged, was there different treatment as respects that right between the petitioner and other persons put forward for comparison, in this case 'foster carers'? The claimant argued that she had been treated differently because she was related to the children, and unfairly as she received much less than would be paid to foster carers. The Council argued that link carer's allowances could be paid to people who were unrelated to children and the higher payments to foster carers were made not because they were unrelated but because they were part of a statutory scheme. The court concluded that this was arguable and would also have merited a hearing. The claimant's case failed on the third question; were the chosen comparator group, foster carers, in an analogous situation? The court held that the claimant would not be able to establish that unrelated foster carers were an analogous comparator group, because of significant differences between a link carer and a foster carer; the link carer scheme was for temporary care where there was already an established relationship or family tie and foster care provided for 'a long-term substitute arrangement for a child's family life'; family carers may be entitled to state benefits, where foster carers are not; statutory regulations regarding fostering did not apply to the link carer's scheme. The state has a wide margin of appreciation in relation to social and economic policy and the court was required to apply a restrictive interpretation of comparator groups in these circumstances. The fourth element of the Michalak test was also one that should be tested at a hearing had the case not failed on the third element of the test. If different treatment between two analogous groups could be established does that difference have an objective and reasonable justification, pursue a legitimate aim, and did the differential treatment bear a reasonable relationship of proportionality to the aim sought. This is essentially the human rights tests of necessity and proportionality. The court also acknowledged that ECHR jurisprudence gives a margin of appreciation to state contracting parties in the area of discrimination and the courts should defer to the decisions of the state provided these are reasonable.

40 Farrell v Farrell 1990 SCLR 717 in which a sheriff held that he was entitled to regard an outer house decision as highly persuasive only

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