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.

Footnotes for Monitoring performance

1 Social Work (Scotland) Act 1968, s2 (repealed by the Local Government (Scotland) Act 1994)

2 Local Government (Scotland) Act 1994, s45, amending s3 of the Social Work (Scotland) Act 1968

3 Circular SWSG 2/95 CSWO: Responsibilities

4 The Secure Accommodation (Scotland) Regulations 1996, regulation 6: Children subject to certain supervision requirements - interim placement

5 ibid, regulation 15: Review of the use of secure accommodation

6 The Qualifications of Chief Social Work Officers (Scotland) Regulations 1996, regulation 3

7 Protection of Children (Scotland) Act 2003, s11 (Schedule 2, paragraph 6(c))

8 Social Work Inspection Agency ( SWIA)

9 HMI Education ( HMIE), formerly Her Majesty's Inspectorate of Schools

10 formerly the Scottish Health Advisory Service ( SHAS); its functions are now discharged by a non-departmental public body, NHS Quality Improvement Scotland

11 Regulation of Care (Scotland) Act 2001, s1`

12 ROC(S)A 2001, s2(4)

13 ROC(S)A 2001, s5

14 ROC(S)A 2001, ss 5(3) and 5(4)

15 ROC(S)A 2001, ss 28 and 29

16 ROC(S)A 2001, s81

17 ROC(S)A 2001, s10

18 ROC(S)A 2001, s13

19 ROC(S)A 2001, s12

20 ROC(S)A 2001, s18

21 ROC(S)A 2001, s39

22 ROC(S)A 2001, s 5

23 ROC(S)A 2001, 9(2)(b)

24 The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 No 114

25 The Residential Establishments - Child Care (Scotland) Regulations 1996,

26 Social Work (Scotland) Act 1968 (ss 60-68)

27 The Residential Establishments - Child Care (Scotland) Regulations 1996, Part II, regulation 5(1)

28 The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 No 114, regulation 2 - 'interpretation'; 'residential establishment' has the meaning given to that term by section 93(1) of the 1995 Act.

29 The Regulation of Care (Requirements as to Care Services)(Scotland) Regulations 2002

30 bid, regulation 5

31 The Regulation of Care (Scotland) Act 2001 (Commencement No. 2 and Transitional Provisions) Order 2002 No. 162 (C. 8)

32 Social Work (Scotland) Act 1968, s5B

33 Social Work (Representations Procedure) (Scotland) Directions 1996 check; Circular SWSG 5/1996

34 Commissioner for Children and Young People (Scotland) Act 2003, s4

35 CC&YP Act 2003, s7(1)

36 CC&YP Act 2003, s7(2)

37 Scottish Public Services Ombudsman Act 2002

38 ibid, s5

39 ibid, s14

40 X (Minors) v Bedfordshire County Council [1995] 2 AC 633

41 D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; This Court of Appeal judgment concerned three conjoined appeals in respect of claims for damages as a result of clinical negligence in responding to allegations of child sexual abuse and Munchausen's by proxy. The appellants argued that application of the 'public policy test to deny public authority liability breached these families' Article 6 Convention rights to a fair trial, and that examination of the facts would have revealed breaches of Article 8 rights. The appeals failed. The court considered the extent of any duty of care by healthcare professionals or social workers. It reviewed the ECHR judgements and confirmed that a preliminary assessment by the domestic court of whether it was fair, just and reasonable to impose liability did not breach Article 6. The ECHR cases indicated that there was no general immunity in the UK precluding the applicants from suing the relevant public authorities - they had had access to the courts to consider the basis of their claims under the general principles of the law of negligence. The problem was that if the preliminary procedure determined that it was not fair, just and reasonable to hold the public authorities liable, the applicants had no remedy and that could amount to a breach of Article 13. However the Human Rights Act 1998 now make public authorities' liability for breach of Convention rights directly justiciable in domestic courts and a series of domestic and ECHR decisions indicate that such claims will require examination of the facts in most circumstances. On appeal, the House of Lords affirmed that in some circumstances public authorities will have a duty of care toward the children on whose behalf they intervene.

42 Barret v LBC Enfield [2001] 2 AC 550; A young person had been made the subject of a care order aged 10 months and remained in local authority care until he was seventeen years old. He raised an action against the local authority alleging that he suffered severe psychological problems as a result of the local authority's negligent mishandling of his case. He argued that the local authority failed to plan for his adoption by another family, had failed to adequately plan and monitor his care, and mismanaged an attempt at rehabilitation with his mother. As a young adult he had serious difficulties with relationships, substance abuse and self harm and was poorly equipped for employment. The House of Lords ruled that there was a case to answer overturning previous decisions that local authorities could not normally be sued for negligent failures in professional practice.

43 Lister v Hesley Hall [2001] UKHL 22 - The claimants were resident in a boarding house attached to a school owned and managed by the defendants between 1979-1982. The warden of the boarding house, without the defendants' knowledge, systematically sexually abused the claimants. They claimed damages against the managers of the school. The House of Lords ruled that there was a sufficiently close connection between the work that the warden had been employed to do and the abusive acts for those acts to be regarded as having been committed within the scope of his employment and the defendants should be held vicariously liable for them; DS v Gloucestershire County Council [2001] Fam. 313; conjoined cases in which the plaintiffs appealed against an earlier judgement that they could not sue the local authorities who had looked after them as children. The plaintiffs, now adults, had been in the care of their respective local authorities and placed with foster carers. They alleged that they had been sexually abused by their foster fathers and brought actions against the local authorities claiming damages for personal injury, including psychiatric damage, suffered as a result of the negligence and breach of the local authorities' duty of care towards them. The Court held that the question to be considered in child abuse cases was the nature of the actions and the decisions of the local authority which were said to have been negligent and whether these amounted to a breach of an existing duty of care to which the alleged damage could be linked. The first case disclosed reasonable grounds for bringing the claim which had a real prospect of success and therefore the appeal was upheld and the case against the local authority allowed to proceed. The evidence in the second case indicated that it had no real prospect of success and therefore the appeal was dismissed.

44 Antisocial Behaviour etc. (Scotland) act 2004, section 136, amending the C(S)A 1995, sections 70 and 71

45 Children (Scotland) Act 1995, s71(1A), as inserted by ASB Act 2004, s136

46 C(S)A 1995, s70(7A), as inserted by ASB Act 2004, s136

47 C(S)A 1995, s70(7D) and (7E), as inserted by ASB Act 2004, s136

48 ASB etc. Act 2004, section 137

49 The Scottish Executive (2005) Guidance on Local Authority Accountability

50 ibid, paragraphs 16 and 22

51 ibid, paragraph 43

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