3 Becoming looked after
The law relies on well-established legal principles, rules and presumptions which shape decisions made by courts. Some are derived from case law, others from scientific hypotheses and research findings and yet others reflect the political ideologies underpinning policy from which legislation emerges. 1 Some legal presumptions stem from leading decisions in private law proceedings concerning disputes between parents about their care of and contact with children. Public law proceedings concerning children's welfare depend first and foremost on professionals' assessment of children's needs. Nevertheless 'private law' presumptions may be influential in shaping judicial decisions, particularly where these involve disputes about contact and placement between the local authority, parents and extended family. Child welfare decision-making is also feeling the increasing influence of the European Court of Human Rights.
In making decisions about looked after children, local authorities, courts and children's hearings must have the child's welfare as their paramount consideration. 2 Children's hearings and the courts decide whether to authorise intervention by local authorities and consider plans for children at risk or in trouble, and the courts make decisions about children's long-term future for example where local authorities are seeking parental responsibilities orders or adoption, and hear appeals by parents and children against disposals by children's hearings or lower courts. Legal decision-making will depend on the facts and circumstances in each case but will also be informed by what courts think important in determining their best interests.
Importance of family relationships
Children's legislation reflects some key policy assumptions about parenting and the state's responsibility to promote children's welfare. 3 These are that families should normally be responsible for the upbringing of their children, that parents should share that responsibility, and 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. 4
Scottish courts have considered that stability and continuity of relationships and care is likely to be in a child's best interests and in private law proceedings have favoured maintenance of the status quo, unless this is demonstrably likely to put a child at risk. 5 Where there are competing claims between parents and extended family or foster carers both Scottish and English courts have also attached importance to children being brought up by their natural parents wherever possible and evinced 'a certain preference' for mothers' residence rights. 6 But the courts will give priority to maintaining stability for the child with the result that 'the longer a settled environment has lasted, the more that will be required to persuade the court that alteration in his present circumstances will better enhance his or her welfare'. 7
Presumption in favour of contact
The Children (Scotland) Act makes explicit that a parent who is not living in the child's household should maintain personal relations and direct contact with the child on a regular basis. 8 This reflects the underpinning principle that parents should normally be responsible for the upbringing of their children and should share that responsibility, even if parents separate. 9 Local authorities have a duty, so far as is consistent with their duty to promote children's welfare, to promote the upbringing of children in need by their parents. 10 Where children are looked after away from home the frequency and quality of contact will have a significant impact on the likelihood of reunification and reintegration into their family. 11
Support for parental contact is strong in both domestic and European law. ECHR case law states that, in taking action to protect a child from harm, member states have a margin of appreciation, in the exercise of statutory discretion. However, even if removing a child from his or her parent's care is both legitimate and necessary, the local authority should consider carefully whether any further restrictions on parental rights and access are absolutely necessary because of the risk that these will effectively curtail family relationships between the parents and children. 12
Until the early 1980s parental contact with children in care was entirely at the discretion of local authorities. Even after legislative change social workers and courts failed to effectively promote parental contact despite evidence of its importance for reunification. 13 The Children Act 1989 introduced a presumption of parental contact with a right of appeal against any proposed termination of contact. This is mirrored in the later Scottish legislation. Some commentators argue that a 'pro-contact' orientation takes insufficient account of contextual factors such as the possibility of domestic violence or relevant family socio-economic characteristics, at least in private law proceedings. 14 If anything there remains a tendency for local authorities, in view of practical and administrative constraints, to limit contact with children looked after to the primary carer and to overlook the importance of involving other family members and fathers in particular. 15
The local authority must have regard to the child's religious persuasion, racial origin and cultural and linguistic background when making any decision with respect to a child who is, or is about to be, looked after. 16 European law prohibits discriminatory treatment in respect of any of the Convention rights. 17 Taken together these provisions should give sufficient protection for a child's personal, cultural and social identity whilst they are looked after. However Scottish local authorities do not consistently record information about the ethnic and cultural origins of families with whom they work, and are not well placed to provide for their needs. 18 National guidance states that the needs of a child looked after away from home are likely to be best met in a family with a similar racial, religious, cultural and linguistic background. Where this is not possible, the guidance states that both foster carers and social workers should have, or obtain, the knowledge and understanding they need to help the child maintain his or her heritage. 19
The Scottish Executive has issued non statutory advice to local authorities about meeting the needs of looked after children linked to personal and social identity. This advises that before placing a child, a systematic assessment will be necessary which should include how the child's racial, religious, cultural and linguistic needs will be addressed whether placed at home, in foster care, in residential care or with adoptive parents. 20
Routes into being looked after
Children may be looked after by local authorities on a voluntary basis, because they are provided with accommodation at their parent's or their own request, or there is no person with parental responsibilities and rights able to care for him, or to do so would promote and safeguard the child's welfare. They may be looked after because they are subject of a court order or compulsory measures of supervision. In Scotland a child under compulsory measures of supervision may be looked after by a local authority whilst living at home with his or her family. In other UK jurisdictions a child living at home subject to a supervision order is not 'looked after', although children subject to care orders remain looked after if placed with parents while a care order is in force. 21
The use of voluntary and compulsory routes into public care follows different patterns in Scotland and England. Following implementation of the Children Act 1989 the proportion of looked after children under compulsory arrangements fell significantly in England and Wales, although the number of care and supervision orders is now increasing. In contrast after implementation of the Children (Scotland) Act 1995, the use of voluntary arrangements to look after children declined from 30% in 1992 to 23% of all looked after children in 2002. 22
Accommodation provided on a voluntary basis
Parents may ask a local authority to provide a child or young person with accommodation. The local authority may provide accommodation on a voluntary basis for a child under 16 years only with the consent of persons who have parental responsibilities and rights. 23 The local authority must provide accommodation for a child in their area if it appears that he or she needs it because no one has parental responsibility for him or her, he or she is lost or abandoned, or whoever has been looking after the child can no longer do so. 24 In all other circumstances the local authority may provide accommodation for a child if they consider that would safeguard and promote his welfare. 25
A young person aged 16 years may consent to being accommodated. 26 The local authority may provide accommodation for a young adult aged between 18 and 21 years if the local authority thinks that would safeguard and promote his or her welfare. 27 The local authority's duties in respect of looked after children under 18 years would apply in these circumstances, but only to the extent that the young adult consents to the local authority discharging its statutory responsibilities.
Any parent or person with parental responsibilities may remove a child accommodated on a voluntary basis from a placement at any time, unless there is a residence order requiring the child to reside with another person and that person has asked the local authority to accommodate the child. 28 When a child has been looked after away from home for more than six months, a person with parental responsibilities and rights must give at least fourteen days notice in writing of any intention to remove the child from local authority accommodation. 29
Compulsory measures of supervision and court orders
A child subject to a supervision requirement made by a children's hearing, or an order, authorisation or warrant made by a court or children's hearing or an order from a court in another part of the UK and living in Scotland, is deemed to be looked after by the local authority. 30 An order made by a court in England and Wales or Northern Ireland will have effect as if it were a supervision requirement made by a children's hearing. 31 The child may be residing at home or directed to reside in accommodation provided or arranged by the local authority. 32
A local authority is required to give effect to a supervision requirement made by a children's hearing. 33 Nevertheless it is not uncommon for local authorities to fail to implement their statutory duties in respect of supervision requirements. One review of young people under supervision found that in a fifth of cases there was no social worker allocated to work with the young person. 34
If the child is living at home or with relatives or friends the local authority should check whether the child is actually living there and take reasonable steps to ensure that the child is complying with any conditions imposed by the supervision requirement. 35 Although regulations allow a local authority to place a child with his or her parent(s) they must not place the child with a parent from whom the child was removed by virtue of an order, authorisation or warrant made under Part II of the Act, and any placement with parents shall be subject to the terms of any supervision requirement or other order, authorisation or warrant under Part II. Essentially this means that a local authority may not ignore a court's or children's hearing direction to place a child away from home. Nevertheless if a local authority is unable to immediately implement a condition of residence as directed by a hearing they may make suitable alternative arrangements for up to 22 days from the date of the hearing's decision, and, if unable to place the child as directed within that period must refer the child's case to the reporter for a review hearing. 36
Effect of court orders
The Children (Scotland) Act 1995 introduced court orders for the purposes of assessment and protection of children at risk of significant harm. 37 A local authority may apply to a Sheriff for a court order authorising assessment or removal of a child from his or her carers, 38 or an order excluding from the child's household a named person who poses a risk to the child. 39 Children subject to a child protection order or a child assessment order are looked after by the local authority for the duration of the order.
A child assessment order requires any person in a position to do so (usually a parent or person with whom the child is residing) to:
- produce the child to an officer of the local authority or someone authorised by the local authority to perform an assessment
- permit that person or any other authorised person to carry out an assessment in accordance with the order
- comply with any other conditions of the order 40
The child assessment order may specify where the child is to be kept and for how long, and include directions as to contact with any person during the assessment.
Any person who has serious concerns about a child's safety or welfare may apply to a sheriff for a child protection order. A child protection order requires any person in a position to do so to produce the child to the applicant (usually, but not always, a local authority). The order authorises the removal and keeping of the child in a place of safety or the prevention of the child's removal from a place in which he is being accommodated. It may include a direction prohibiting any person's contact with the child or impose conditions on contact with the child as the sheriff considers appropriate. 41 The order may also include direction in relation to the exercise or fulfilment of any parental responsibilities or rights in respect of the child if necessary to safeguard and promote the child's welfare; this may include directions in relation to examination of the physical or mental state of the child, assessment or interview or any resulting treatment.
If the applicant is not a local authority, he or she must give notice of the making of a child protection order to the local authority in which the child normally lives and to the principal reporter. If, in an urgent situation, it is not immediately practicable to make an application to a sheriff, a justice of the peace may authorise a local authority to remove a child to a place of safety for up to 24 hours, or a police officer may act to remove a child to a place of safety. Equally these short-term emergency measures may prevent any person from removing a child from where he or she is then accommodated. 42
A child who is the subject of a child assessment order or a child protection order, or subject to emergency measures for his or her protection is looked after during the period of the order or authorisation, unless the local authority has no responsibilities in relation to the order. If a local authority is not the applicant for a child protection order or authorisation of emergency child protection measures and is neither providing accommodation for the child, nor assigned a role in implementing the order or authorisation, the child is not 'looked after'. For example medical staff or a hospital trust could apply for a child protection order and the child remain in hospital, pending consideration of the case by the children's hearing.
In any event, the local authority will quickly become involved because it has a duty to assist the principal reporter's initial consideration of the child's case, provide information for any children's hearing, 43 and give effect to certain disposals by the reporter or the children's hearing. 44 In practice the majority of child protection order applications are made by local authorities.
Court orders and other measures for the child's protection do not confer parental responsibilities on the local authority or remove parental responsibilities and rights from the parent or carer, but effectively determine how they should be carried out in the interim. 45 This contrasts with the Children Act 1989 in which an order equivalent to the Scottish child protection order confers parental responsibility on the applicant local authority who shares it with the parent for the duration of the order (and any subsequent interim or full care orders). 46
Research into the use of these new court orders for the protection of children found significant reduction in the use of emergency orders for children's removal, although some rise from 1997 and very limited use of child assessment orders and exclusion orders. Practitioners reported that the provisions appeared to have brought about greater scrutiny and rigour in decision-making about children's removal, and a perception that the Act had enhanced parents' rights. Nevertheless despite stronger powers for parents and children to challenge hearings' and courts' decisions, practitioners suggested that parents and children are not well-equipped to make use of new provisions for 'procedural justice' and the threshold of risk before local authorities intervene is potentially too high. 47
In summary, the routes into being looked after are twofold. Parents may choose that their child be looked after by a local authority, and some young people over 16 years may opt to be looked after. Or children and young people may be compelled to be looked after by a court or children's hearing against their own, or their parents' wishes. Children may also be looked after whilst still living at home but only on a compulsory basis. The local authority's duties and powers in respect of children in these diverse circumstances are the same.
Children may change from being looked after on a voluntary basis to being looked after on a compulsory basis and back again. In most cases parents retain all parental responsibilities and rights for looked after children, but if children are subject to court orders or compulsory measures of supervision their exercise of parental responsibilities and rights is subject to any terms and conditions imposed by a court or children's hearing.
When does the local authority acquire parental responsibilities?
The local authority will acquire parental responsibilities and rights for a minority of children, 48 in respect of whom a court has granted a parental responsibility order 49 or an order freeing the child for adoption. 50 The child remains looked after whilst subject to a parental responsibility order and the local authority continues to have the same duties towards him or her as with all looked after children, with additional duties and powers as set out in Part I of the Children (Scotland) Act 1995. The right to consent, or to refuse consent, to an order freeing the child for adoption or an adoption order remains with the parent(s) and does not transfer to the local authority. 51 A child subject to a freeing order is not 'looked after'.
If a parent, or anyone else with parental responsibilities and rights has been deprived of parental responsibilities and rights by a court order, they may not apply for an order seeking residence or contact with the child. Otherwise any person who claims an interest may apply, including third parties such as grandparents. 52