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.

9 Education

Many looked after children's experience of education and performance is one of disruption and underachievement. 45 A survey of a sample of young people leaving care in Scotland found that most had experiences of truancy (83%) and exclusion (71%) and almost two thirds had no standard grade qualifications. 46 Most recent statistics confirm that 60% of 16 and 17 year old care leavers did not achieve any qualifications, with those looked after at home even less likely to achieve than those placed away from home. 47 This is in stark contrast to the general population of school leavers of whom less than ten percent left school without any qualifications.

Legal framework for education

Every child of school age has the right to be provided with school education provided or arranged by an education authority. 48 Education authorities are responsible for the education of children in their area. This includes children placed in schools outside their area who nevertheless belong to the education authority area because their parents are ordinarily resident there. 49

For each child in school an education authority must secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential. The education authority must, as far as is reasonably practicable, have due regard to the views of children and young people in making decisions that significantly affect them. 50 In addition, under provisions yet to be commenced, education authorities must make adequate and efficient provision to meet any needs for additional support which a child or young person has, and make appropriate arrangements to review the child's additional support needs and the provision made. 51

Legislation also places both an obligation on parents to provide education for their children 52 and a duty on education authorities to secure adequate and efficient provision of school education for their area. 53 If a parent has enrolled his or her child in a state school that fulfils the parental obligation to provide education. Thereafter the parent must ensure their child's regular attendance.

There is no statutory definition of 'full-time education' to which a child is entitled. Education authorities should ensure that local authority schools are open for a minimum of 190 weekdays per school year. 54

Planning for looked after children's educational needs

Education authorities should ensure that looked after children have the same opportunities as all other children for education, including further and higher education, and access to other opportunities for their personal and social development. 55 When beginning to look after a child the local authority must include information about the child's educational history and arrangements for his or her education in the care plan. 56 The care plan should also include details of services to be provided to meet the child's educational needs. 57 The local authority must also inform, ideally before placement and certainly within 28 days, the local education authority in which a child is placed away from home. This requirement also applies to short-term placements for less than 28 days if a child has significant educational needs or is below compulsory school age. 58

A joint inspection by Her Majesty's Inspectorate of Education ( HMIE) and the Social Work Services Inspectorate ( SWSI) of the education of looked after children in five Scottish local authorities found that care plans were not always in place and did not usually address educational needs and goals in any detail. Some schools were unaware of pupils who were looked after. The Scottish Executive recommended that a senior member of school staff should maintain an overview of looked after children's progress and take responsibility for ensuring that appropriate measures are in place for supporting the children's education. Assessment for approval of foster or relative carers should include consideration of the capacity to provide an educationally rich environment for children placed. Children looked after in residential units should receive the same level of educational support which caring, well-resourced parents would provide. 59


Although looked after children are only a small proportion of schools' population they account for a disproportionate number of exclusions, particularly when placed away from home. Of the sample of 50 looked after children in the joint inspection, 42% had been excluded from their school at least once. 60 In 2002-2003, 3% of all pupils were excluded from local authority schools; 50 in every thousand school pupils. This compares with an exclusion rate of 227 per thousand looked after children, significantly higher than in other groups of vulnerable pupils. 61

Parents have a right to appeal against their child's exclusion from school. 62 Young people over sixteen may also appeal against their exclusion. 63 Children who have legal capacity to instruct a solicitor now have equivalent rights of appeal against their exclusion. Although children aged 12 years and over are presumed to be of sufficient age and maturity to have such capacity, these rights of appeal may extend to younger children where it can be demonstrated that they have a general understanding of what it means to instruct a solicitor. 64

Children's rights of appeal against exclusion are particularly important for looked after children as foster or residential carers have no rights of appeal against exclusion on their behalf. HMIE and SWSI recommended that local authorities should ensure that looked after children are advised of their right of appeal against exclusion from school, and that the local authority provide appropriate support to children to appeal, if they wish to do so. 65

Any person may make a complaint to Scottish ministers that an education authority, the managers of a school or educational establishment or other persons have failed to discharge any of their statutory duties relating to education and, if the complaint is substantiated ministers may make an order declaring them to be in default of their duty and requiring them to discharge their duty by a specific date. 66 If they do not ministers may make appropriate arrangements for the discharge of the duty, recovering any expenses from the authority, the school or other persons, or the Lord Advocate may apply to the Court of Session for an order of specific implement requiring the relevant authority or other persons to perform their duty. A child's carers or advocate may therefore complain to an independent authority about an education authority, school or other service's failure to make appropriate education provision for a child.

Professionals such as educational psychologists and teachers have a common law duty of care towards their pupils as well as their employers, to exercise their functions with reasonable skill and care. Education authorities may be held vicariously liable for negligent professional performance of that duty. 67 Therefore in the event of other avenues of redress having failed a child or young person may have cause to sue an education authority or establishment for damages where negligent failure to provide for his or her educational has caused demonstrable harm.


The education authority may require a parent to account for a child's repeated absence from school and, in the event the authority is not satisfied either with the child's attendance or with any alternative arrangements the parent(s) may have made for the child's education, it may make an attendance order, requiring the parent to ensure the child's attendance at a named school. 68 A parent's continued failure to ensure their child's attendance, without reasonable excuse, is an offence and may result in prosecution in the sheriff court. 69 The parent remains legally accountable even if the child is not resident in their household. 70 The offence of failure to ensure a child's attendance at school was formerly one of strict liability, and applied if the fact of non attendance was proven, regardless of any efforts the parent may have made to tackle his or her child's truancy. However, incorporation of ECHR may have tempered the effect of the legislation. Using the requirement in the Human Rights Act 1998 to read legislation wherever possible as compatible with ECHR, a sheriff has reinterpreted provisions in the Education (Scotland) Act 1980 as compatible with the right to be presumed innocent under Article 6 of the European Convention, concerning the right to a fair trial. 71 The sheriff gave a wide meaning to the term 'reasonable excuse' so that a parent may now present evidence of their own relevant circumstances and actions in defence, rather than solely those of the child.

A child's failure to attend school regularly without reasonable excuse is one of the grounds for referral to the reporter or to a children's hearing. If established this may lead to the child being looked after by the local authority. Guidance exhorts social work departments and education departments to work together to ensure that they fulfil their statutory duties. Nevertheless children's panel members and professionals suggest that the hearing system is less effective for children and young people referred for non-attendance at school. Truancy cases are referred to hearings when patterns of non-attendance are already entrenched. Disagreements between social work and education departments about which is best placed to tackle truancy problems and limited resources to implement hearings' decisions inhibits their effectiveness. 72

In summary there are no specific provisions relating to education for looked after children in statute or common law by virtue of their status as a looked after child. However there is a statutory framework of individual entitlement to state education tailored to each child's assessed needs and geared towards helping them fulfil their full potential. There are independent mechanisms for enforcement of the duties placed on education authorities with potential recourse to Scottish ministers or the courts in the event of poor performance. For looked after children effective implementation depends on support from parents or substitute carers to exercise their rights to an adequate and appropriate education. Education and social work professionals and in some instances carers, have low expectations of looked after children's performance and attainment and that practice and provision in education, and resources to support children's learning in foster and residential care reflects those low expectations. 73

Access to specialist services for looked after children

Legislation makes clear that local authorities have a duty to safeguard and promote the welfare of looked after children. That entails making use of services which would be available to children looked after by their parents, including for example specialist health services and support for learning. Care plans should include details of health care and educational needs and provision to meet these needs. Local authorities are required to ensure that arrangements are made for a looked after child to be provided with health care services including medical and dental treatment. For most routine NHS services and mainstream education this is uncontroversial. A GP, with whom a looked after child is registered, will provide essential primary care and refer children to specialist medical or healthcare services. Education authorities make provision for children's schooling. The local authority only has to refer the child to the appropriate professional forum or setting.

Education legislation provides for the recovery, by an education authority or the managers of an independent school not conducted for private profit, of the costs of education provided for a child placed in their area by another education authority. 74 However legislation does not prescribe how non emergency specialist health care services to meet children's extraordinary needs or services not routinely provided by primary care teams should be funded or provided for looked after children, if it is not provided for in the residential establishment in which the child is placed.

The Scottish Executive Health Department has issued revised guidance on establishing where responsibility lies for commissioning health care for individuals in the event of disputes between health boards about specialist care for children placed out of their home area. 75 National guidance to the NHS identifies the health board in which the child's placement is situated as responsible for arranging health care for looked after children, whether or not the child usually resides in that area. 76 For children attending day or residential schools for pupils with special educational needs, including pupils with physical or learning disabilities or emotional and behavioural difficulties, the responsibility for arranging health care, other than general school medical services, rests with the health board in which the child normally resides with his or her family, the 'home' health board. This also applies to looked after children in such schools, placed by social work services or placed under joint arrangements agreed by social work, health and education services. 77 If a child in a special residential school requires specialist treatment the health board in which the child ordinarily resides is responsible for the provision of such care. The guidance identifies these different arrangements as related to the potentially high costs of specialist treatment and equipment which special schools may entail for their local health board. In contrast the responsibility for providing all health services to boarding schools catering for pupils without special educational needs remains with the health board in which the facility is located, rather than the home health board. 78

If it is not practical for the home health board to provide the care needed where the child is residing they should provide funding for the treatment to be provided by the health board where the child is living. However, this kind of funding transfer may not be sufficiently secure to enable a health board to sustain low volume, high cost specialist services. Difficulties arise when the treatment required is not readily available in either the home health board, or the health board in which the child is residing. Some children are then placed in areas without access to the specialist health services they need and the home health board is unable to provide an appropriate service at a distance.

Essentially the onus is placed on the local authority to ensure arrangements are in place for health care for looked after children but there is no equivalent statutory responsibility placed on health boards to ensure the particular needs of this vulnerable group are met. There are few individual entitlements to health care in legislation and the primary means of redress for failure to provide for an individual child's needs is judicial review, or, where resulting harm to the child can be established, legal action for damages.

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