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 Children and parents, responsibilities and rights

1 Aldgate J and Hill M (1995) 'Child Welfare in the United Kingdom' in Children and Youth Services Review Vol 17 (5) pp 575-597l

2 Caroline Ball (1998) 'Regulating child care: from the Children Act 1948 to the present day' in Child and Family Social Work Vol 3 pp 163-171

3 Scottish Home and Health Department and Scottish Education Department (1964) Children and Young Persons Scotland: report by the Committee appointed by the Secretary of State for Scotland (The Kilbrandon Report) Cmd. 2306 (Edinburgh, HMSO)

4 Report of the Inquiry into the Removal of Children from Orkney in February 1991 HC Papers 1992-1993 No 195; Report of the Inquiry into Child Care Policies in FifeHC Papers 1992-1993 No 191; The Scottish Law Commission (1992) Report on Family Law (No 135); Social Work Services Group (1993) The Future of Adoption Law in Scotland; The Social Work Services Inspectorate (1992) Another Kind of Home: a review of residential child care; Reporters to Children's Panels: Their Role, Function and Accountability, The Scottish Office (1992);

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

6 Sutherland (1999) p73; For discussion of children's legal capacity see Thomson (2002) pp187-197

7 'Transaction' is defined in Age of Legal Capacity (Scotland) Act 1991, section 9 and includes the capacity to make a will, giving consent which has legal effect, and bringing, defending or taking part in civil legal proceedings.

8 Sutherland (1999) p 73

9 For discussion see Thomson (2002), pp 187-197

10 Wilkinson and Norrie (1999) 2.32

11 ibid, 2.62-2.68

12 Hamilton v Fife Health Board 1993 SC 369

13 Age of Legal Capacity (Scotland) Act 1991

14 Age of Majority (Scotland) Act 1969

15 Age of Legal Capacity (Scotland) Act 1991, s7

16 Marriage (Scotland) Act 1977, s1

17 Children and Young Persons (Scotland) Act 1937, s18 prohibits the sale of tobacco to children under 16 years

18 Road Traffic Act 1988, s101

19 Representation of the People Act 1969

20 Licensing (Scotland) Act 1976, s68

21 Age of Legal Capacity (Scotland) Act 1991, s1

22 ALC(S)A 1991, s2(1)

23 ALC(S)A 1991, s2(4); see also Children (Scotland) Act 1995, section 90 requiring the child's consent to any examination or treatment ordered by a children's hearing or a court as part of a warrant or supervision requirement

24 ALC(S)A 1991, s2(4A)

25 Cleland and Hall Dick (2001) p119

26 Gillick v West Norfolk and Wisbech Area Health Authority [1986] A.C. 112; The Department of Health and Social Security issued guidance to area health authorities on family planning services. The guidance included a section dealing with contraceptive advice and treatment for young people under sixteen years which stated that in exceptional cases a doctor exercising clinical judgment should decide whether to prescribe contraception to a young person without parental involvement and consent. Victoria Gillick, who had daughters under 16 years wrote to her local area health authority asking for assurance that, whilst they were under 16 years, her daughters would not be given contraceptive advice or treatment without her knowledge and consent. The area health authority refused to give such an assurance and Mrs Gillick began legal action to have the guidance declared unlawful because it infringed parental rights and duties. After losing at first instance, the Court of Appeal allowed Mrs Gillick's appeal on the basis that a girl under 16 was incapable either of consenting to medical treatment or of validly prohibiting a doctor from seeking the consent of her parents. The Department of Health and Social Security appealed to the House of Lords which ruled by a majority that contraceptive advice and treatment are essentially medical matters. There is no statutory limit on the age of the persons to whom contraceptive facilities might be supplied; that a girl under the age of 16 years had the legal capacity to consent to medical examination and treatment, including contraceptive treatment, if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment and any parental right to control a child deriving from parental duty was a reducing right which existed only in so far as it was required for the child's benefit and protection and depended on the degree of intelligence and understanding of that particular child and a judgment of what was best for the welfare of the child.

27 ALC(S)A 1991, section 2(2)

28 ALC(S)A 1991, s2(3)

29 ALC(S)A 1991, s2(4A) and 2(4B)

30 Edwards and Griffiths (1997) p 34

31 ALC(S)A 1991, s3

32 ALC(S)A 1991, s3(2)

33 Children (Scotland) Act 1995, s15(2)(a)

34 C(S)A 1995, s1(2)(a),

35 C(S)A 1995, s1(2)(b)

36 C(S)A 1995, s93(2)(a)

37 C(S)A 1995, s93(2)(b)

38 See for example C(S) Act 1995, s29; local authorities' duties in respect of advice, guidance and assistance for young people formerly looked after by local authorities persist in respect of young people until they are 19 years, and powers to provide assistance until the young person is 21 years. Local authorities may also contribute to the costs of accommodation and maintenance for a young person in full-time education beyond 21 years, until they complete their course (C(S)A 1995, section 30(3)).

39 C(S)A 1995, s1

40 McKeen v Chief Constable of Lothian and Borders Police 1994 SLT 93; a father's unsuccessful action for damages for loss of society of child following police removal of child from father with legal custody and placement with mother who then removed child from the country.

41 Norrie (1995) pp 36-10

42 C(S)A 1995, s1

43 C(S)A 1995, s2

44 The legal status of father or mother may be assigned to adoptive parents or parents who have conceived by assisted reproductive treatment by a court under provisions in the Adoption (Scotland) Act 1978 (section 12) or the Human Fertilisation and Embryology Act 1990 (section 30).

45 C(S)A 1995, s3(1)(a)

46 C(S)A 1995, s3(1)(b)

47 C(S)A 1995, s93(2)(b) (a)(b)(c)

48 C(S)A 1995, s93(1)

49 Family Law (Scotland) Act 2006, s23, amending the C(S)A 1995, s3

50 C(S)A 1995, s4

51 C(S)A 1995, s11

52 children's hearings (Scotland) Rules 1996, rule 12(1)

53 ibid, rule 5(3)(b)

54 C(S)A 1995, s93 (1)

55 Adoption (Scotland) Act 1978, s18(7)

56 C(S)A 1995, s2 (2)

57 Kelly v Kelly 1997 SLT 896; a married father raised an action on behalf of his unborn child seeking to prevent the mother from terminating her pregnancy. The action was unsuccessful because a foetus has no legal persona and no right in law to continue to exist in the womb of the woman carrying it, but this case confirmed that a non-resident father with parental responsibilities and rights could act as a child's legal representative.

58 ALC(S)A 1991, section 1(3)(g)

59 Norrie (1995) pp 36-10

60 C(S)A 1995, s7

61 C(S)A 1995, s 8(5)(a); note that parental rights last only until a child is 16 years

62 Norrie (1999) 16.04 p 510

63 Children Act 1989, s33(3)

64 C(S)A 1995, s3(4)

65 C(S)A 1995, s86

66 Adoption (Scotland) Act 1978 s18(5)

67 Adoption (Scotland) Act 1978, s12

68 C(S)A 1995, s18(1) and (2); Intentional failure to comply may lead to conviction and a Level 1 fine

69 C(S)A 1995, s25(7)

70 Social Work (Scotland) Act 1968, s78

71 The Arrangements to Look After Children (Scotland) Regulations 1996, Regulation 19(2)

72 Antisocial Behaviour etc. (Scotland) Act 2004, Part 9, ss102-117

73 AB(S)A 2004, s102-103

74 AB(S)A 2004, s108

75 AB(S)A 2004, s109

76 Scottish Executive (2005) Guidance on Parenting Orders - Antisocial Behaviour etc (Scotland) Act 2004

77 Adults With Incapacity (Scotland) Act 2000, s1(4)

Back to top