Publication - Independent report

Children looked after by local authorities: legal framework

Published: 14 Sep 2006
Directorate:
Children and Families Directorate
Part of:
Children and families, Education
ISBN:
1905501110

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

132 page PDF

365.6 kB

132 page PDF

365.6 kB

Contents
Children looked after by local authorities: legal framework
11 Pathways through local authority care

132 page PDF

365.6 kB

11 Pathways through local authority care

Permanent substitute care

There is no legal limit on how long a child may be looked after by a local authority, whether on a voluntary or compulsory basis. However where a child is looked after away from home and there is no realistic prospect of the child's return to his or her birth family, the local authority should put in place stable and legally secure arrangements for the child's long-term care. The needs of young children are likely to be best met in a permanent placement with a substitute family. Older children also need stability and security but their needs may require a range of responses depending on their circumstances.

Traditionally the policy and legal framework has sought to promote stable long-term care for looked after children, through adoption, which terminates existing family relationships. In the light of evidence that parents and other family members who cannot safely look after their children can nevertheless make a continuing contribution to their positive development and welfare, 1 professional practice has adopted a more flexible approach. After extensive review and consultation, 2 the Scottish Executive has introduced a Bill in the Scottish Parliament to reform adoption law. 3

Parental responsibilities orders

A parental responsibilities order may be appropriate to secure a child's settled placement in the long-term, or to enable the local authority to acquire appropriate decision-making powers when it is no longer necessary for a child to be subject to compulsory measures of supervision but he or she cannot return to live with his or her family of origin. The local authority may apply to a sheriff for an order awarding them parental rights and responsibilities. 4 A parental responsibilities order has the effect of transferring parental responsibilities and rights from the child's parent(s) or any other person with parental rights and responsibilities. The local authority acquires all parental responsibilities and rights other than the right to agree to an application or order relating to adoption of the child. 5

A sheriff may make a parental responsibilities order where he is satisfied that each relevant person:

  • agrees that the order should be made
  • he or she is not known, cannot be found or is incapable of agreement
  • is withholding agreement unreasonably, or has persistently failed to safeguard and promote the child's health, development and welfare, or, if the child is not living with the relevant person, failed to maintain a personal relationship with the child
  • has seriously ill-treated the child and as a consequence of the ill-treatment the child is unlikely to return to the care of that person

The local authority may place the child with relatives or the child's parents, 6 but the local authority retains the right to direct where the child shall reside and with whom he or she has contact until the child reaches 16 years, subject to the views and wishes of the child and the requirement that any action by the local authority is consistent with its duty to safeguard and promote the child's welfare. A parental responsibilities order lasts until the child reaches 18 years and the child remains looked after by the local authority whilst subject to a parental responsibilities order.

The local authority must allow the child reasonable contact with any relevant person, that is anyone who had parental responsibilities and rights, or who had charge and control of the child, before the making of the order, and also any person in whose favour there had been a residence or contact order in respect of the child. The child, the local authority or any person with an interest may apply to a sheriff for an order allowing contact with the child at any time and the sheriff may make an order regarding contact with the child even if no one has applied for such an order. 7

Adoption

The legal framework for adoption is currently set out in the Adoption (Scotland) Act 1978 as amended by subsequent legislation. An adoption order creates in law new parental relationships for the child, giving adoptive parents rights and responsibilities and extinguishing the responsibilities and rights, and any duty to financially maintain the child vested in a birth parent or guardian. 8 On application by a local authority a court may make an order declaring a child free for adoption and this too has the effect of removing parental responsibilities and rights from the child's parent(s) or guardian and transferring these to the local authority. 9 If the child has not been adopted within 12 months after a freeing order has been made, the child's parent may apply to the court to have the order revoked so that he or she may resume his or her parental responsibilities and rights. 10

The definition of a looked after child 11 does not include children freed for adoption and therefore they are not looked after by the local authority, although the local authority acquires parental responsibilities and rights in respect of the child. Some 'freed' children will be subject to supervision requirements and these children are looked after. If a placement is not made within six months of the order declaring the child free for adoption the local authority must review the child's case, and carry out further reviews at least every six months thereafter until the child is placed with prospective adopters. 12 There is no statutory requirement for care planning for children prior to their adoption, or for periodic review for children placed but not adopted. BAAF recommends that local authorities should treat children freed for adoption as they do children looked after and undertake planning and review to the same standards. 13

Policy approaches to permanence fluctuate between welfare approaches promoting partnership with birth parents and families and those promoting adoption as the most effective way of securing children's right to a permanent family. The latter has gained ground in Britain and the US but the former is more prominent in Australia. Neither should be exclusive. Adherence to one or other position may have unforeseen consequences; a particular emphasis on adoption may make parents reluctant to seek early help, and inhibit working in partnership with families; too great an emphasis on care in families of origin may expose some children to unacceptably high risks. 14

The Adoption and Children (Scotland) Bill currently before the Scottish Parliament includes a new legal order, the permanence order, enabling a sheriff, on application by a local authority, to allocate parental rights and responsibilities between the local authority and other people interested in the child's welfare including carers and birth parents. 15 The Bill also proposes that birth parents whose parental rights and responsibilities have been removed may apply for continuing contact with a looked after child. 16 These and other provisions in the Bill hold out the prospect of a more flexible approach to substitute long-term care for looked after children.