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.

13 Monitoring performance

The Chief Social Work Officer

Regional local authorities were required to establish a Council committee to oversee social work services, and to appoint a professionally qualified Director of Social Work. 1 Local government reorganisation in 1994 removed these statutory requirements enabling the new unitary authorities to align functions such as housing and social work in multi-purpose service departments managed by officers with a range of professional or administrative qualifications. Local authorities must now have a Chief Social Work Officer ( CSWO) with a qualification in social work to ensure that the local authority carries out professional responsibilities appropriately. 2

National guidance states that the CSWO should have oversight of all social work services provided or purchased by the authority. 3 The CSWO is also accountable for certain decisions taken by the local authority. For example a child may not be placed in secure accommodation without authorisation from a children's hearing unless the CSWO is satisfied that the criteria for such an authorisation are met, that a secure placement is in the child's best interests and that the proposed placement is appropriate to the child's needs. 4 The CSWO is responsible for ensuring an independent mechanism for the regular review of the case of any child placed in secure accommodation. 5

The CSWO is required to have attained one of the following qualifications: (i) the Certificate of Qualification in Social Work; (ii) the Certificate in Social Services; or (iii) the Diploma in Social Work, or their approved equivalents in previous qualifications or other jurisdictions. 6 The post of CSWO is designated as a 'child care position'. A person who has been convicted of certain offences against children, or who is deemed unsuitable to work with children may not apply for, offer to do, accept or do any work related to the post of CSWO. 7

Regulation of services

National inspectorates in social work, 8 education 9 and a central advisory body in the NHS 10 separately inspect social work and related services, schools, including residential special schools, and hospital services for vulnerable people including older people and people with learning disabilities or mental illness.

Until recently local authorities and health boards were separately responsible for regulating day care and residential services for adults and children provided by the voluntary and independent sectors, and residential homes providing nursing care. In 2001 legislation was enacted providing for independent regulation and inspection of all social care and some independent health services by a national non departmental public body, the Scottish Commission for the Regulation of Care (the Care Commission). 11 The Care Commission has statutory responsibility for furthering improvement in the quality of care services and now regulates and inspects adoption, fostering and day care services for children provided by local authorities and independent providers in the voluntary and private sectors, and will, in future, inspect certain services which require approval by Scottish ministers, such as secure accommodation for children and voluntary adoption agencies. Residential schools for children with special educational needs which provide care and support to their pupils such as to bring their services within the definition of a care service will also be inspected by the Care Commission. 12

Scottish ministers are required to prepare and publish care standards for services subject to regulation by the Care Commission and review them when appropriate, in consultation with appropriate persons or groups of persons. 13 Standards for all the services subject to regulation by the Care Commission are underpinned by common core principles, developed on behalf of Scottish Ministers by the National Care Standards Committee: dignity, privacy, choice, safety, realising potential, equality and diversity. These principles specify service users' personal rights which should be promoted by providers' compliance with the care standards. The Care Commission must have regard to the standards in making any decision about registration, inspection and regulation of a care service. The courts will also consider the standards when considering appeals or prosecutions for offences under the Act. 14

Scottish ministers also have extensive powers to make regulations imposing requirements on care services, in consultation with appropriate stakeholders 15 and any regulations must be approved by the Scottish Parliament. 16 The Commission may impose a range of sanctions for non compliance with standards and regulations including improvement notices, 17 condition notices 18 and withdrawal of registration. 19 The standards should be taken account of in proceedings for urgent cancellation of registration of services, 20 or an appeal by a local authority against a decision of the Commission, 21 or in respect of any registration offence under the Act. 22 In determining whether to register an applicant the Commission may take into account the requirements of any other enactment it considers relevant. 23

New regulations prescribe requirements for the conduct and management of care services. 24 These supersede earlier regulations made under the Children (Scotland) Act 1995 relating to residential establishments for children. 25 The earlier regulations remain in force but aspects of these now apply only to residential units controlled or managed by a local authority, because the provisions under which other voluntary and independent sector establishments were registered have been repealed. 26 For example the legal requirements to include certain matters in a statement of functions and objectives now apply only to local authority children's homes. 27 The remainder of the regulations continue to apply to all establishments which provide residential accommodation for children. 28

The new regulations cover broadly the same areas for the purposes of the Care Commission's regulatory responsibilities, including provision regarding the fitness of managers and, employees, and suitability of premises and facilities. 29 They introduce a requirement for care providers to prepare, in consultation with the service user and, where appropriate, any representative, a written personal plan for each service user within a month of having started to provide the service, describing how the person's health and welfare needs will be met. 30 The provider should review the personal plan with the service user regularly, at least once within every six month period, and make any necessary revisions. This duty is in addition to the local authority's statutory duty to prepare a written care plan for every child looked after, although in practice one should meet the requirements of the other.

Transitional arrangements provide that establishments registered under repealed provisions are deemed to be registered, and therefore subject to regulation under, the new arrangements pending the outcome of any application for renewal of registration. 31

Part III of the 1996 regulations imposes duties on local authorities with respect to residential placements. These include the requirement to provide the person in charge with written information about the child and agree arrangements to safeguard and promote the child's welfare including family contact, education and health care with the person in charge.

Enforcement of local authorities statutory duties

If local authorities fail to carry out their statutory duties in respect of looked after children there are few effective sanctions or remedies for looked after children and their families. Those that do exist are often cumbersome, slow and expensive, with no guarantee of a good outcome for the child or family concerned.

Complaints procedures

Service users may complain to the local authority which is legally required to have a procedure for considering representations and complaints about any of their social work functions including child care services. 32 The procedure should be consistent with national directions and guidance and include an element of independent review if the service user is not satisfied with the local authority's initial response. 33

The Children's Commissioner

The Office of Commissioner for Children and Young People was established to promote and safeguard the rights of children and young people. Primary legislation prescribes the following functions:

  • to promote awareness and understanding of the rights of children and young people
  • to keep under review the law, policy and practice relating to the rights of children and young people with a view to assessing the adequacy and effectiveness of such law, policy and practice
  • to promote best practice by service providers
  • promote, commission, undertake and publish research on matters relating to the rights of children and young people 34

The Commissioner does not have powers to investigate individual cases, but may carry out an investigation into whether, by what means and to what extent, a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people. 35 Such investigations must raise an issue of particular significance to children and young people generally or to particular groups of children and young people and not duplicate work that is properly the function of any other person, such as a regulatory or inspection body. 36 The Commissioner is independent of the Scottish Executive and Parliament, and will report annually to the Scottish Parliament on the exercise of her functions.

The role of the Commissioner is still evolving and the office is consulting children and young people on its forward priorities. Amongst issues emerging early in its development are concerns from looked after young people and staff about pressure upon young people to leave care before they reach 18 years.

The Public Service Ombudsman

The Office of Public Service Ombudsman ( OPSO) was established in 2002 to consider complaints about public services. 37 Service users may apply to the public services ombudsman to investigate the handling of their case by the local authority if there has been an administrative failure, failure to provide a service or failure in a service provided. 38 If a complaint is upheld the ombudsman may require the local authority to provide an apology and take action to put right any injustice that has occurred. This may include financial reimbursement for any losses the claimant has sustained and modest financial redress. The ombudsman may also require the local authority to take more general action to prevent the problem reoccurring including changing their policy or procedures. Reports of investigations by the ombudsman will be published. Failure to co-operate with the ombudsman or to take action in respect of the ombudsman's investigation could result in application to the Court of Session who may deal with the person as if the person had committed a contempt of court in relation to the Court of Session. 39

Judicial remedies

Anyone may apply to the Court of Session for judicial review of a decision or action by a local authority. The function of judicial review is to scrutinise the exercise of power by public agencies where an individual alleges that the authority has acted unfairly or illegally. The process is not an appeal against the public authority's decision or action but a consideration of whether the decision made by the public authority was legal, that is within its statutory powers, properly taken according to appropriate procedures and, taking into account all the relevant circumstances, within the range of decisions a reasonable public authority could make. Incorporation of ECHR has added the tests of lawfulness and proportionality to judicial review, so that the court will assess whether the decision was in pursuit of a lawful aim and whether the decision or action taken went beyond that which was strictly necessary to achieve the lawful aim. The court may set aside the original decision and remit it back to the public authority to reconsider appropriately in the light of the court's judgement.

Legal liability for injury and loss

A person who suffers personal injury, including physical, emotional or mental injury or financial loss may raise a legal action for damages against the person or organisation responsible. Traditionally cases brought for harm caused by the actions or omissions of public services such as social work or the police have been unsuccessful. 40 Courts have tended to resist holding public services liable for harm to individuals as not in the public interest because the fear of legal action rather than the demands of the service would direct practice, and bring about defensive practices. Also contesting such actions would direct public money away from services. More recently the English appeal court has held that following incorporation of ECHR into UK domestic law it will no longer be lawful to hold that public authorities do not owe a duty of care to children when investigating suspected child abuse or bringing care proceedings. Each case must now be determined on its own facts. 41 This judgment extends local authorities accountability, through the courts, to their service users. Although not binding on Scottish courts this judgment is likely to be influential in deciding similar cases involving compulsory measures of care and supervision in Scotland. It does not affect claims arising before incorporation of ECHR.

Therefore a local authority may now be more likely to be held liable for personal injury suffered by a person in their care or using their services. If a looked after child experiences poor standards of care or multiple placements because of poor planning or suffers abuse because of negligent professional practice, and, as a consequence, their emotional development and subsequent mental health is impaired, a local authority may be found liable for damages. 42 However there are a number of hurdles to a successful claim. The injured person must establish that the local authority owed the claimant a duty of care to avoid the injury complained of, that the authority breached the duty of care and the alleged injury is a consequence of the breach.

Local authorities may also be held vicariously liable for injury caused by the wrongful act of their employee. Liability will depend on the connection between the wrongful act and the employment. If the wrongful act was authorised by the employer, or closely linked to the range of activities for which the person was employed, or the employment provided an opportunity for the wrongful act the employer may be held liable, even if there was no fault on the employer's part. For example if a residential care worker has responsibility for the care and supervision of a vulnerable young person and sexually abuses them, the employing organisation may be held liable for any injury to the physical or mental health of the young person and be required to pay damages. 43

New statutory provisions for enforcement

Formerly supervision requirements made by children's hearings placed obligations only upon the child subject to compulsory measures. Primary legislation gives children's hearings new powers to place such duties on a local authority as may be required to enable a child to comply with the requirement. Such duties may include directions to secure or facilitate the provision of specified services for the child, other than those normally provided by a local authority. 44 Where duties have been imposed on a local authority as part of a supervision requirement, the local authority must perform those duties. 45 Neither legislation, nor guidance gives examples of what duties may be imposed, giving wide discretion to the hearing.

Where it appears to a children's hearing that a local authority has failed to give effect to a supervision requirement, for example by failing to perform duties imposed on it by the terms of the requirement, the hearing may direct that the principal reporter give notice to the local authority that he or she intends to apply to a sheriff for an order compelling the local authority to give effect to the supervision requirement. 46 The local authority then has twenty one days within which to comply with the duty. The hearing should reconvene twenty eight days after notifying the local authority. If it then appears that the local authority is still failing to give effect to the supervision requirement the hearing may direct the principal reporter to apply to a sheriff for the order compelling compliance with the supervision requirement. 47 If granted the sheriff's order is final. Failure by the local authority to comply with the terms of any order would be treated as contempt of court.

A comparable power of enforcement in relation to provision of education has been enacted, enabling a children's hearing to refer to Scottish ministers where it appears that an education authority is failing to make appropriate educational provision for an excluded pupil. 48

The Scottish Executive has issued detailed guidance on these provisions. 49 This states that the Executive expects the majority of cases to be resolved by discussion and agreement between the local authority and partner agencies, or the reporter, preferably without recourse to the new legislative provision. 50 The guidance directs panel members to use their powers only in circumstances where the local authority's failure is likely to have a serious impact on the young person. These include failure to allocate a social worker or to deliver key services or support measures. 51 SCRA reports that there have been no applications under either of these provisions since commencement in January 2005.

Back to top