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 Introduction

1 Local authorities have statutory duties to safeguard and promote the welfare of people in their area, including children in need of services to support their welfare and development and looked after children in particular. (Social Work (Scotland) Act 1968, s12; Children (Scotland) Act 1995, ss 22 and 17)

2 Acts of the UK Parliament ( AP) Acts of the Scottish Parliament ( ASP)

3 Data Protection Act 1998, Schedule 1: Data protection principles and interpretation

4 Freedom of Information (Scotland) Act 2002

5 UK jurisdictions are: England and Wales, Scotland, and Northern Ireland

6 The Scotland Act 1998, s29
(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as …
(d) it is incompatible with any of the Convention rights or with Community law …

7 European Convention for the Protection of Human Rights and Fundamental Freedoms entered into force in September 1953.

8 European Convention on Human Rights, Article 1; member states may also be held accountable for any human rights violations which they commit outwith their own territory - Louzidou v Turkey (1955) 20 EHRR 99

9 ECHR, Article 2

10 ibid, Article 5

11 ibid, Article 3

12 ibid, Article 8

13 ibid, Article 10

14 ibid, Article 6

15 Human Rights Act 1998, s3

16 HRA 1998, section 6

17 HRA 1998, section 7; Barret v LBC Enfield [2001] 2 AC 550

18 Cameron, K 'Social Work Practice and the Human Rights Act 1998' in Baillie et al (eds) (2003)

19 Intervention by public authorities in Scotland is provided for under the Children (Scotland) Act 1995. The Act makes the welfare of the child the paramount consideration in decision making by public authorities and states that orders for compulsory intervention should be made only when that seems likely to be better for the child than making no order.

20 McMichael v UK (1995) EHRR 205

21 Norrie (2001) 'A Child's Right to Care an Protection' in Cleland A and Sutherland E (2001) Children's Rights in Scotland paragraph 8.20, p144

22 Kathryn Cameron 'Social Work Practice and the Human Rights Act 1998' in Baillie et al (eds) (2003); Norrie (2001) supra

23 Dundee Citv Council, Petitioners Inner House - Court of Session, Scottish Opinions 27 Feb 2004, per Lady Cosgrove at paragraph 22 (appeal by local authority against sheriffs interlocutor dismissing the local authority's application for a freeing order on the basis that the parents ECHR rights under Articles 6 and 8 had been breached.)

24 Norrie (2001) in 'A Child's Right to Care an Protection' in Cleland A and Sutherland E (2001), p135

25 Social Work (Scotland) Act 1968, section 5(1): Local authorities shall perform their functions under this Act and under Part II of the Children (Scotland) Act 1995 under the general guidance of the Secretary of State (now Scottish Ministers, by virtue of the Scotland Act 1998, s52(1)).

26 The Arrangements to Look After Children (Scotland) Regulations 1996; The Fostering of Children (Scotland) Regulations 1996

27 Children (Scotland) Act 1995 Regulations and Guidance Volume 2: Children Looked After by Local Authorities

28 Scotland's Children: The Children (Scotland) Act 1995 Regulations and Guidance Volume 1: Support and Protection for Children and their Families, p viii

29 Robertson v Fife Council 2002 S.L.T. 951, per Lord Hope at paragraph 33; The House of Lords upheld an appeal against refusal of leave to apply for judicial review of a local authority's decision not to provide residential and nursing care. The judgement noted that local authorities are required to follow statutory guidance and deviate from it only where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.

30 F v Kennedy (No 2) 1993 SLT 1284, per Lord Justice Clerk (Ross) at p1289: The Court of Session held that recommendations in the Cleveland inquiry report described good practice in interviewing children who were thought to have been sexually abused and should in general be followed. However a failure to follow the guidelines did not mean that, when hearing a proof to establish grounds for referral to a children's hearing, a sheriff was not entitled to accept the children's evidence as reliable. (see Kearney 'The Sheriffs and the Sheriff Court' in Baillie et al (eds) (2003))

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