16 Overview of the framework
In Scots law children's rights to support, protection and services generally flow from statutory duties placed on public authorities from which rights may be implied. 1 There are few provisions in law specifically for looked after children as a discrete group. Nevertheless there are significant legal rights and entitlements, such as those relating to legal capacity, education and health services, which apply equally to looked after children, as to any other child. To realise their rights, the law giving rights and entitlements to all children should be given adequate effect for looked after children. There are statutory provisions requiring local authorities to provide services to safeguard and promote the welfare of children who are in need of care and attention by virtue of their vulnerability, which includes children who are looked after. 2
The statutory framework for assessment, planning and review of children's care, whether placed away from home or under supervision at home, is comprehensive. This framework is underpinned by statutory principles. These place the child's welfare as the paramount consideration in decision-making by any public authority including courts and children's hearings. They require consultation with, and involvement of children, parents and other people important to the child, and permit only the least coercive intervention by any public authority necessary to safeguard and promote the child's welfare. 3
Secondary legislation provides, in directions and regulations, statutory minimum requirements for information gathering to inform assessments. It prescribes the scope and substance of planning for children's care and supervision. It sets minimum standards for local authorities' contact with looked after children. And it describes requirements for consultation with children and families and their participation in the planning and review of their support by public agencies. Compliance with the regulations ought to ensure a consistent standard of local authority practice.
Considering the legal framework and relevant research and inspection findings together, key themes emerge as significant in shaping public authorities' care and support for looked after children. These influence the experiences of, and outcomes for, looked after children and their families:
- interpretation and application of the 'minimum intervention' principle
- incorporation of the European Convention of Human Rights into domestic law
- the interface between Parts I and II of the Children (Scotland) Act 1995
- the contribution of the child's wider family
- the role of national guidance
- the public perception of what it means to be looked after
The minimum intervention principle
The Children (Scotland) Act requires courts and children's hearings to consider whether the making of an order or supervision requirement is likely to bring about a better outcome for the child than making no order. Courts in both private and public law proceedings are required to apply the same test. 4 This has been variously described as: the 'no order' or minimum intervention principle, 5 the non-intervention principle 6 and the principle of minimum necessary intervention. 7 These statutory provisions limit compulsory intervention by the state in the legal relationships between parents and children to the minimum necessary to ensure adequate safeguards for children.
Minimum intervention as expressed in the Act relates to judicial decision-making by courts and children's hearings. However, minimum intervention also appears as a guiding principle for professional practice. Statutory guidance states that one of the themes in support of the legislative framework for children's support and protection is that, so far as is consistent with safeguarding and promoting the child's welfare, public authorities should promote the upbringing of children by their families and any intervention by a public authority in the life of a child must be properly justified and supported by services from all relevant agencies working in collaboration. 8
Local authorities have a general duty to provide services for children in need. 9 Services for individual children provided on a voluntary basis at their families' request are characterised as 'family support'. Intervention designed to establish whether the child is in need of compulsory measures of supervision, is characterised as 'child protection', and in the first instance takes the form of investigative assessment. 10 When concerns about a child's safety are substantiated, this may lead to a child's registration on the child protection register, bringing into play an administrative framework for inter-agency planning and monitoring, underpinned by national and local guidance. It may also lead to the child's referral to the reporter or the children's hearing. In the light of the serious consequences of child abuse and criticism of local authorities and other agencies in reports of public inquiries into child deaths, public services have tended to prioritise effort and resources on child protection, rather than preventive support services.
Extensive research into statutory child protection processes, linked to implementation of the Children Act 1989, identified an unhelpful dichotomy between family support for children in need and child protection for children at risk of abuse and neglect. 11 Studies found that local authorities' emphasis on child protection inquiries brought too many families into the child protection system when the child's primary need was for services and family support. Concurrently the emphasis on investigation of alleged abuse meant that families became angry, alienated and bewildered, received little support, and scarce social work resources were expended with little apparent benefit. 12
Findings from audit and inspection indicate that Scottish local authorities' response to families in difficulty is similarly determined by whether a child is assessed as a child in need or a child at risk. As a consequence intervention may focus too narrowly on risk without sufficient consideration of needs, or vice versa. 13 Activity defined as child protection is prioritised over preventive, remedial or therapeutic support, limiting intervention to families where there is a need for compulsory measures of supervision and reinforcing an emphasis on evidence gathering for compulsory intervention. Other agencies begin to frame referrals in terms of child protection in order to obtain services for vulnerable families. As a result fear, often unjustified, of their children's removal hinders families in difficulty from seeking early help. 14 This is a false dichotomy. Assessment of the action needed to safeguard and promote a child's welfare requires consideration of both risk and needs, and intervention to address both aspects; reducing risk and meeting needs.
To limit as far as possible local authorities' compulsory interference with family life demands that they invest more effort earlier, offering 'maximum support' to help parents discharge their parental responsibilities and rights effectively before a family reaches the threshold for compulsory measures. If the local authority's intervention does not improve the child's welfare and the grounds for compulsory measures of supervision exist, the minimum intervention principle does not justify continuing intervention on a voluntary basis even if the parents co-operate. That would deprive children of the protection of the children's hearings and the courts, and deprive families of their right to subject the local authority's assessment of the need for intervention to independent review by a judicial tribunal.
At present public authorities' interpretation of the minimum intervention principle conflates judicial intervention affecting the legal relationships between parents and children with local authorities' statutory responsibilities to support and protect children. In a context of resource pressures, applying the minimum intervention principle raises the threshold for accessing help from the local authority far too high. But where parents co-operate with the local authority's intervention but still fail to meet their children's needs, 'minimum intervention' as it is presently interpreted, risks placing parents' rights over children's safety.
Looking after children represents significant interference by a public authority in family life. Incorporation of the ECHR into domestic law now makes unlawful any action by a public authority which breaches a Convention right. 15 Public authorities include local authorities, health services, courts and children's hearings. Compulsory intervention in family life must be justified, not only in terms of domestic statute, but also within the terms of ECHR. Failure to do so may give rise not only to judicial review of a public authority's decisions but also, now, to legal proceedings in the domestic courts for reparation and damages. 16
A court order or supervision requirement affecting a person's parental responsibilities and rights is a state action interfering with family life and therefore engages Article 6 rights to a fair trial. Decision-making processes must be transparent and accountable and parents must have an opportunity to participate in important decisions affecting their family life. 17 ECHR compliant practice requires the local authority to fully inform and involve parents and family members of plans and decisions and to give them sufficient opportunity to make representations and influence decision-making processes. 18
Professionals' practice needs to be considered in terms of human rights compliance at each stage of assessment, planning, implementation and review, taking into account the individual circumstances and needs of the child and family concerned. Local authorities may act on reasonable concerns about the risk of harm but the action must be proportionate to achieve the child's protection, without undue interference with the family's Article 8 rights to respect for their family life. In these circumstances the child's welfare may be a paramount, but not the only or even deciding consideration, and courts may have to balance ensuring the child's welfare with other legitimate interests. 19
Interface between Parts I and II of the Act
In England and Wales, children's legislation codified child law in one statute with overarching principles applying to all legal proceedings affecting children. English courts are empowered, with parental consent, to make a family assistance order in private law proceedings, requiring the local authority to provide advice, guidance and assistance for the family for up to six months if the court considers that the child's welfare requires it. 20 By contrast, in Scotland there is a tradition of distinct separation between Parts I and II of the Children (Scotland) Act 1995 as relating to private law and public law proceedings respectively. 21
The two parts were developed and drafted separately with Part I originating in a Scottish Law Commission report on family law reform with recommended provisions appended to the report. Part I deals primarily with disputes between private individuals about the care of children, frequently between separating parents. The court must judge between options which may be finely balanced, either of which may meet a child's welfare needs adequately. Part II proceedings, on the other hand, are concerned with establishing the nature and extent of risk or harm to which a child may be exposed and the appropriate role for the relevant public authorities to play in protecting the child and promoting his or her welfare. Local authorities may not apply for public law orders for residence or contact. This is designed to prevent public authorities circumventing carefully worked out procedures and provisions which safeguard families from unwarranted intervention. 22 Public law is characterised as dealing with the relationships between private individuals and the state. Part II provisions prescribe the range and nature of actions which local authorities may take in respect of children in need and at risk.
In reality the two parts are interdependent. Part I sets out the parental responsibilities and rights which may be vested in a local authority by provisions in Part II, by the making of a parental responsibilities order or an order freeing the child for adoption under the Adoption (Scotland) Act 1978. There is provision for a sheriff or a judge dealing with a private law action to refer a child to the reporter if he or she considers that one of the grounds indicative of a need for compulsory measures of supervision are satisfied, and the ground will be treated as having been established for the purposes of referral to a children's hearing. 23 And, although local authorities are prohibited from applying for an order under Part I of the Act, it is possible that another public authority could do. For example a health board might apply for a specific issue order in respect of medical treatment if a parent refused consent. 24
When a question regarding the welfare of a child arises the Children Act 1989 enables an English court to make any order whether a 'private' or 'public' order in any family proceedings, whether or not the order has been asked for. 25 The Children (Scotland) Act 1995 contains similar provision. 26 In Scotland, sheriffs have been reluctant to make 'private law' orders when a supervision requirement is in force. But a supervision requirement cannot place directions or responsibilities upon adults involved with the child. To make a placement with a relative legally secure, the child must continue to be looked after or the relative carer must make a private law application in separate legal proceedings whilst a suspension requirement remains in force. Local authorities rarely provide support for relatives in doing so and may play no part, even if they have parental responsibilities and rights for the child.
The Adoption and Children (Scotland) Bill proposes a new permanence order to secure permanence for looked after children when adoption is not appropriate. This order gives the local authority parental rights and responsibilities and allows the court to allocate rights and responsibilities to other adults including the child's carers or birth parents. 27 If a child is securely placed with relatives there may not always be a need for the local authority to retain parental responsibilities. A more flexible approach to the use of Section 11 orders in Scottish public law proceedings, in addition to the proposed permanence order, would provide courts with a wider range of options when making decisions about the long-term care of looked after children with kinship carers, subject to existing safeguards.
Recent court decisions have weakened the wall between Parts I and II of the Act. It is now established, albeit in the sheriff court and therefore not binding on subsequent courts, that a local authority looking after a child may become a party to private law proceedings and provide relevant information to inform the court's decision. 28 And in holding applications for contact and residence orders in respect of a child under supervision as competent, the Court of Session has stated that 'the two Parts of the Act do not operate as separate and distinct schemes … the primary purpose which underlies both Parts, and is either explicit or at least implied throughout, is to ensure the welfare of the child.' 29
The contribution of a child's wider family
Statutory provisions for planning, monitoring and supervision of placements for looked after children apply to kinship care. Local authorities have diverse approaches to recruiting and supporting extended family to provide care for looked after children, and involving them in care planning. 30 Kinship carers may be no more involved in decision-making than unrelated foster carers. They may have limited training and support to cope with their role, and usually receive a much lower rate of financial support. 31 Kinship placements offer the potential to maintain existing attachments, relationships and routines. Equally there may be additional pressures arising from the carers' relationship to the child's birth parents, the immediate or emergency nature of many such placements and lack of preparation and training for the task of caring for children who may have experienced trauma, separation and disruption.
The legal framework relating to 'relevant persons' for the purposes of children's hearings offers a model for policy on kinship care. The legal requirement to consult, inform and involve relevant persons in children's hearings reflects the nature and extent of their involvement and contribution to a child's welfare. Rather than just a resource to help the local authority provide appropriate accommodation for a looked after child, the kinship carer should be treated as a key supportive adult for the child alongside professionals in the decision-making network. When it is clear a child cannot live with his or her birth family the local authority should consult kinship carers about longer term plans and fully involve them in decision-making. Proportionate intervention requires that the local authority should provide practical as well as emotional support to enable the relative or friend to assume parental responsibilities and rights commensurate with the child's welfare, rather than continuing to rely on compulsory intervention. Where kinship carers have acquired parental responsibilities, local authorities generally withdraw practical and financial support, but this is a matter of practice rather than a legal requirement.
The role of statutory guidance
Statutory guidance does not impose duties on local authorities. However public authorities are required to have regard to such guidance and should take account of other documents such as codes of practice and national standards. They may be required to justify departure from it in legal or other proceedings where a user of services has suffered loss or damage as a result. Much of the guidance issued for implementation of the Children (Scotland) Act 1995 remains pertinent and is still in force as guidance issued under statute. There is evidence that local authority social workers are not making routine use of guidance. 32 Guidance on support, care and protection for children now needs revision to take account of ECHR and make more explicit the links between statutory requirements and expected outcomes for children. It should be made much more readily accessible to practitioners and students.
Looked after or not looked after?
There is some confusion about the legal status of children placed away from home when a placement is linked to more than one set of statutory responsibilities, for example to educate children 33 or to support disabled children through provision of respite care. 34 Some argue that to treat children placed in educational or respite placements as looked after by the local authority compromises parental responsibility.
Being looked after has no effect on the child's legal status or on the responsibilities and rights of parents, other than the constraints which may be imposed by conditions attached to a supervision requirement. Being looked after places certain duties in respect of the child, and his or her family, on the local authority, with a view to ensuring the child's welfare needs are met appropriately. A child is looked after by virtue of any of the provisions set out in section 17(6) of the Children (Scotland) Act 1995. The education authority is part of the local authority and the local authority is providing accommodation for the child, albeit for the purposes of attending appropriate education. Equally social work services may place a child in a residential school in order to meet their social and emotional needs and, if not subject to compulsory measures, he or she will be placed under the provisions of the Children (Scotland) Act 1995 enabling the local authority to provide accommodation for the child. 35
It is for the local authority to determine whether it is providing accommodation for a child under one or other of its statutory powers, under children's or education legislation. That may lead to children in the same circumstances, residing in the same place being deemed to be looked after or not, depending on which decision-making process within the local authority led to their placement. Where children are receiving substantial care and support alongside education in a residential setting the status of being looked after provides important safeguards for their welfare.
The question for the local authority is whether, in the absence of a legal duty to provide accommodation, it should exercise its powers to provide accommodation for a child to safeguard and promote his or her welfare. If so the child is looked after by the local authority throughout the period he or she is residing in accommodation provided or arranged by the local authority and is not in his or her parents' or family's care. This renders the local authority accountable to the child and family (and the courts) for the performance of their duties, but does not affect the child or family's status at all. Being looked after does not infringe or erode parental responsibilities and rights in any way.
The statutory framework for looked after children is comprehensive. But inevitably it focuses on process; on what things should be done. Real protection for children's rights and welfare depends on how well, and to what effect, local authorities implement their legal duties. Research and inspection provides evidence that local authorities' compliance with existing law, for example to complete care plans, to give good effect to supervision requirements, to place children in suitable placements and to keep brothers and sisters together is often not good enough. More law or different law is, of itself, unlikely to improve practice.
Furthermore the impact of services is affected by the availability of resources and support from other agencies, for which the legal framework is weak, both in statute and application. There are few potential sanctions upon public authorities, in social care, education and health services, which fail to perform their statutory duties properly. When sanctions are available they depend on service users raising legal actions in the courts. Although important, both to remedy injustice and clarify the law, legal proceedings are cumbersome, slow and expensive. The victims of failures in public services may be least well equipped to use such remedies. And the damage is already done. To deliver effective support, improve outcomes for looked after children and secure their legal rights requires a stronger knowledge and understanding of their existing legal responsibilities amongst practitioners, and that agencies help them meet these responsibilities to good effect.