The Social Work Inspection Agency commissioned an overview of the law affecting children under the care or supervision of local authorities, to inform the national review of support for looked after children in Scotland. This report describes key aspects of the law as it applies throughout a child's journey through public care and supervision, and what this means for the children, their families and carers, and the agencies responsible for safeguarding and promoting their welfare. 1 It ends with some comments on how well the legal framework supports good care for looked after children.
What makes up the legal framework?
Legislation passed by the Parliament is not the only source of law in this area. The legal framework draws on the common law, institutional and academic texts and, increasingly, obligations under European and international law. How the courts interpret and apply legislation in legal disputes and criminal cases shapes how social work, education and health services translate their duties and powers into practice.
Primary legislation describes, in Acts of Parliament, the roles, responsibilities and legal duties of private individuals and public bodies as decided by elected members of the UK and Scottish Parliaments. 2 Actions by an individual or organisation which contravene the law may result in their conviction of an offence and a civil or criminal penalty such as a fine or imprisonment, or may lead to awards of damages for victims. Secondary legislation gives detailed directions and regulations in 'statutory instruments' which tell organisations how to implement Acts of Parliament. These may impose duties on local authorities and they, too, are enforceable.
The Children (Scotland) Act 1995 is the key legislation concerning the care and welfare of children. Part I describes the legal rights and responsibilities of parents for their children, and makes provision for resolving disputes about children between family members. Part II describes arrangements for public services for children in need of protection and support, and the arrangements to deal with children's offending. Part III amends aspects of the Adoption (Scotland) Act 1978. Many other Acts affect how public agencies support and care for looked after children (see Appendix 1). These include disability related legislation, statutes affecting education, housing and health services, regulatory arrangements for care services and statutory provision for aftercare. Data protection legislation sets out how organisations, including public agencies such as local authorities and health services should record, store and share personal information about people. 3 Legislation on freedom of information places new duties, in force from January 2005, on Scottish public authorities to provide public access to information they hold. 4
Scots law also includes the common law; legal rules derived from the judgments of the higher courts. These rules are binding on courts dealing with later cases. The common law governs how the courts will interpret and apply legislation and also settles disputes about which there is no relevant legislation. In Scotland decisions in the Court of Session will generally provide authoritative statements of the common law in non criminal cases. The House of Lords is the highest court of civil appeal in all three UK jurisdictions. 5 Judgments by the Law Lords are binding on all lower courts. If the House of Lords rules on a point of law in an English case, in the absence of any Scottish judgement on that issue the decision may be influential in Scots law, as may cases in the English Court of Appeal about legislation or issues common to both jurisdictions. House of Lords judgments may also draw on case law in other common law countries, for example the US, Australia and Canada.
European Convention of Human Rights
However well intentioned, compulsory intervention by public authorities' represents a major intrusion into private and family life. The Human Rights Act 1998, an Act of the UK Parliament, incorporated the European Convention into UK domestic law in October 2000. In Scotland incorporation of the European Convention on Human Rights took effect earlier, when the Scottish Parliament was established in 1999. 6 The ECHR 7 guarantees to everyone within the jurisdiction of the Council of Europe's member states 8 rights to life, 9 liberty 10 and freedom from torture and inhuman and degrading treatment, 11 respect for privacy and family life 12 and freedom of expression. 13 Everyone must have access to a fair trial before an independent and impartial tribunal to resolve disputes or deal with allegations of criminal offences. 14 The Human Rights Act 1998 requires the UK courts to interpret domestic law as compatible with ECHR wherever possible. 15 The Act makes it unlawful for any public authority to act in a way which is not compliant with ECHR 16 and enables individuals claiming breach of their Convention rights to pursue a remedy in the UK courts. 17
The European Court of Human Rights in Strasbourg investigates and determines applications from member states and individual victims alleging breach of Convention rights. The European Court's judgements have been influential in shaping judicial decisions and legislation in the UK. ECHR provides a benchmark against which to measure professional practice in agencies working with families. 18 The protection for family life afforded by the Convention means that even if intervention by a public authority appears to be in a child's best interests, it must be provided for in legislation or the common law, be in pursuit of a legitimate aim, for example to protect a child from significant harm, and the intervention must be limited to that strictly necessary to achieve the legitimate aim sought. 19 Local authorities may act on reasonable concerns about the risk of harm to a child but their action must be proportionate to achieve the child's protection.
Judicial and administrative procedures for making decisions about children's welfare should not infringe Convention rights under Article 6, the right to a fair trial in respect of all civil and criminal matters, or Article 8, the right to respect for private and family life. 20 A court order or supervision requirement affecting parental responsibilities and rights is a state action interfering with family life. In these circumstances the child's welfare may be a paramount, but not the only, or even the deciding, consideration. Courts may have to balance the child's interests with other legitimate interests. 21 ECHR compliant practice requires that decision making processes be transparent and accountable and that parents have an opportunity to participate in important decisions affecting their family life. 22 Local authorities must fully inform parents and family members, involve them in plans and decisions and give them sufficient opportunity to make representations and influence decision-making processes. 23
Convention rights apply equally to children and adults. Although ECHR does not distinguish children and parents' rights separately, the European Court of Human Rights has taken into account the United Nations Convention of the Rights of the Child ( UNCRoC) when interpreting European Convention rights as they apply to children and young people. 24
Legislation allows Scottish ministers the power to say how public authorities should carry out their statutory functions. 25 Scottish ministers have prescribed how local authorities should discharge their responsibilities towards looked after children in both secondary legislation 26 and guidance. 27 Guidance does not impose duties on local authorities. It does not have the force of law. Local authorities have discretion as to whether or not to follow it in any particular case. Where their actions are subject to challenge in the courts, public authorities may have to justify departure from government guidance. 28 They should have at least considered the guidance and have good reason for deviating from it. 29 The court will determine the significance of failure to follow guidance in each case. 30
Structure of this report
This paper maps the legal framework as it applies throughout a child's journey through public care and supervision. It begins with a description of the legal status, rights and responsibilities of children and their families and examines how these are affected by children being looked after. It then describes the routes by which children may become looked after by local authorities and the duties and powers of local authorities and other public services as a consequence. Thereafter it discusses specific issues relating to kinship care and disability. The next section considers the different ways in which children may cease to be looked after and the legal requirements of local authorities and others in providing further support. The report then examines regulation and quality assurance mechanisms for care services. It concludes with an overview of emerging themes and considers how well the legal framework supports good outcomes for looked after children and provides effective redress when things go wrong.