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 Overview of the framework

1 Norrie (2001) 'A Child's Right to Care an Protection' in Cleland A and Sutherland E (2001) Children's Rights in Scotland p132

2 Children (Scotland) Act 1995, s22; children in need are defined as '…a child…in need of care and attention because (i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part [Part II of the Children (Scotland) Act 1995] services by a local authority; (ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided; (iii) he is disabled; or (iv) he is affected adversely by the disability of any other person in his family [C(S)A 1995, s93(4)]

3 C(S)A 1995, s16

4 C(S)A 1995, ss11(7) and 16(3)

5 Edwards and Griffiths (1997) p 194

6 Tisdall (1997) p 85

7 See Hill, M (2002) 'Introduction: adoption and fostering in Scotland' in M Hill (ed) Shaping Childcare Practice in Scotland London, BAAF quoted in Kendrick, A, 'Children Looked After in Residential and Foster Care' in Baillie et al (eds) (2003) Social Work and the Law in Scotland

8 The Children (Scotland) Act 1995 Regulations and Guidance Volume 1: Support and Protection for Children and their Families Volt 1, p vii

9 C(S)A 1995, Part II, Chapter 1 - Support for Children and their Families

10 C(S)A 1995, Part II, Chapter 3 - Protection and Supervision of Children, section 53 and sections 55 preliminary and investigatory measures, 57 - measures for the emergency protection of children

11 Department of Health (1995) Child Protection: Messages from Research (London, HMSO) - overview of 20 research studies

12 ibid, pp 54-55

13 The Scottish Executive (2002) Its Everyone's Job to Make Sure I'm Alright Chapter 4, 4.50-4.53; The Scottish Executive (2002) Growing Support, Chapter 2, paragraphs 3-23

14 The Scottish Executive (2002) Growing Support, Chapter 3, paragraphs 36-44

15 Human Rights Act 1998, s6

16 HRA 1998, s7

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

18 See Dundee Cite 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.)

19 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, p 144

20 ibid, s16

21 Wilkinson and Norrie (1999) paragraph 9.57

22 Norrie (2003) An overview of the Children (Scotland) Act 1995: SCRA National Training (unpublished paper)

23 C(S)A 1995, s54

24 Blackie, J and Patrick, H 'Medical Treatment' in Cleland A and Sutherland E (2001) Children's Rights in Scotland

25 Children Act 1989, s9

26 Children (Scotland) Act 1995, s11(3)(b)

27 Adoption and Children (Scotland) Bill, s84; see also Alexandra Plumtree (2003) Choices for Children in Fostering and Adoption: a discussion paper on legal issues Adoption Policy Review Group pp 13-15

28 McLean v Dornan 2001 SLT (She Ct) 97; a grandparent sought parental responsibilities and rights and a residence order in respect of a looked after child subject to a supervision requirement placed with foster carers. The local authority intended that the child's foster carers would adopt him and a freeing application was already underway. The local authority sought to enter the private law proceedings to provide defences against the grandparent's application. On appeal the sheriff principal held that although a local authority may not apply for an order under section 11 of C(S)A 1995 this should not prevent the views of a local authority being taken into account by a court when dealing with an application by a person who is entitled to seek such an order if the local authority has responsibilities in relation to the child to whom the application relates.

29 P v P 2000 SCLR 477, at 483

30 The Scottish Executive (2002) Growing Support; A Review of Support to Vulnerable Families with Young Children, Chapter 3, paragraphs 68-70

31 Broad, B (2001) 'Kinship Care: Supporting children in placements with extended family and friends' Adoption & Fostering Volume 25 Number 2 (2001)

32 Murray et al (2002) Children (Scotland) Act 1995: Home Supervision

33 Children in residential special schools may have their placement specified in a Record of Needs as appropriate to meet their needs. An education authority may secure provision of boarding accommodation for pupils for whom education as boarders is considered by the education authority and their parents as desirable [Education (Scotland) Act 1980, s7(6)]

34 Joseph Rowntree Foundation Research Findings No 420 (April 2000) Disabled Children at Residential School; Joseph Rowntree Foundation Research Findings No 378 (March 1998) Disabled Children and the Children Act 1989

35 Children (Scotland) Act 1995, s25

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