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.

7 Roles and responsibilities of other agencies

Co-operation between agencies

Primary legislation requires other agencies to co-operate with the local authority in supporting children in need or at risk of harm. 1 If a local authority considers that another local authority, a health board or any other person authorised by Scottish ministers could help the local authority exercise any of their functions under Part II of the Children (Scotland) Act 1995 they may ask that agency for help and the agency must comply, provided that the request is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of that agency's functions. The requirement to co-operate spans local authority functions for the support, supervision and protection of children and young people. 2

Neither guidance, nor regulations specify the range of persons who may be authorised by Scottish ministers to comply with local authorities requests for help in discharging their functions under Part II of the Act. 3 Lack of clarity in these areas may compound practical difficulties in achieving effective inter-agency co-operation. Difficulties may arise in relation to the responsibilities of agencies providing generic services, such as general practitioners ( GPs) and community health services for providing additional services for looked after children, although many health boards now make special arrangements to assess and provide for this group. 4

There has been a history of legal disputes between social services and other authorities, including disputes between different departments of the same local authority, about the responsibilities of different agencies under the Children Act 1989. 5 English courts have endorsed housing authorities' refusal of requests under the Children Act 1989 to assist homeless families, placing the responsibility for the families' subsequent accommodation on social services. 6 They have held that social services departments cannot use the requirement for co-operation between authorities in the Children Act 1989 to seek assistance and resources from another service within the same local authority. 7 In contrast, more recently the Administrative Court quashed a housing authority's decision to refuse a request from the social services department in the same local authority that a family with disabled children be given priority for rehousing. 8

In the event of legal dispute and in the absence of Scottish precedent, Scottish courts may draw on the English courts' interpretation of similar provision in the Children Act 1989. 9 Review of public services in Scottish local authorities confirms that similar issues have arisen between departments, within the same local authority, and between local authorities and other agencies about the extent of responsibilities for supporting children in need and their families. There is evidence that co-operation between different agencies can be poor. Agencies duplicate assessments, often without services then being provided. Support may be provided too late and strong stigma attaches to some public support. 10

National guidance emphasises that local authorities should act corporately in discharging their responsibilities. 11 A court has interpreted the requirement to co-operate narrowly, limiting the responsibility of the agency from which help is requested by the local authority to making a reasonable response compatible with its own duties and priorities. 12 This case appears to suggest that a local authority does not have to agree to a request from another local authority to help it fulfil its obligations under a supervision requirement. 13 The requirement to co-operate spans local authority functions under Part II of the Act which includes provision for the protection and supervision of children as well as their support. 14 Excluding assistance from another local authority in giving effect to a supervision requirement seems at odds with the policy expressed in guidance that authorities should co-operate with each other, involve the voluntary and independent sector in planning specialist provision across local boundaries, and, where appropriate, establish shared services for children under supervision. 15

Joint resourcing and management of local authority and health services

Integrated approaches to community care for older people and other vulnerable groups, formerly promoted through policy and guidance documents, is now enshrined in statute. NHS bodies and local authorities may now make payments to each other for expenditure incurred which assists or improves the discharge of their respective functions, and may enter into joint arrangements entailing the delegation of their respective statutory functions to the other. 16 These powers are subject to regulation by Scottish ministers. 17 Although the provisions apply in the first instance to community care services, regulations could apply the exercise of these powers to services for children in future.

Scottish ministers may direct a local authority or NHS body to enter into joint arrangements for the delegation of their functions if that would be likely to bring about improvement in the exercise of the functions in question, and they may also direct any of the respective bodies to make payments to the other. 18 These provisions remove any perceived organisational or budgetary prohibitions on pooled budgets or joint management of services.

Notifications to other agencies

Placement of a looked after child

If a local authority provides accommodation for a child, whether on a voluntary or compulsory basis, it must notify the local education authority and the health board of the placement as soon as reasonably practicable. If the child is to be looked after in a foster or residential placement or placed with a relative or any other person outwith the area of the placing authority, the local authority must notify the local authority in whose area the child will be placed. It must also notify the education authority and health board in that area. 19 If the placement is not intended to last more than 28 days the requirement to notify the education authority may be waived unless the child being looked after has significant medical or educational needs, and the requirement to notify the health board may be waived unless the child has a problem of medical significance or is below compulsory school age. Neither legislation nor guidance states the purpose of notification to other agencies but implicitly notification should ensure that appropriate educational and health care provision is quickly available for looked after children moving into a new area. This may require transfer of records or resources between areas. The agency receiving notifications should have systems in place for responding to these. For example young children receive routine child health screening and surveillance in their early and pre-school years. Health visiting services should therefore be informed of any pre-school child's presence in their area. Guidance recommends notification of all placements to other agencies regardless of whether they are intended to last less than 28 days. 20 Most health boards now have dedicated health care provision for looked after children and a co-ordinator to aggregate information about notifications of placements. 21

Incidents, serious illness or injury and deaths of looked after children

The carer(s) with whom a child is placed must inform the placing local authority immediately if the child runs away or someone removes him or her from the placement. 22 They must inform the local authority if the child suffers an illness or injury likely to result in death or serious disability, or if the child dies. Thereafter the local authority must inform every person with parental responsibility for the child so far as is reasonably practicable. 23 If a child dies whilst looked after the local authority must notify any parent, unless the child was residing with that parent at the time of the death. 24 The local authority must also notify Scottish ministers of the death. 25

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