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.

4 Local authorities' legal duties towards children looked after

General duties

When looking after a child the local authority is required to safeguard and promote his or her welfare, 1 and to make use of such services as would be available for children were they cared for by their parents. 2 The local authority must also take steps to promote appropriate personal relations and direct contact between the child and any person with parental responsibilities. 3 In discharging its responsibilities the local authority must consult with, and have regard to the views of the child, his or her parents, any person with parental rights and any other person whose views may be relevant when making decisions, 4 and it must take account of the child's religious persuasion, racial origin and cultural and linguistic background. 5

Although the child's welfare must generally be the paramount consideration, the local authority may exercise their powers with respect to a looked after child in a manner inconsistent with that general duty, in order to protect members of the public from serious harm. 6

Scottish ministers may prescribe the manner in which local authorities discharge their responsibilities towards looked after children and have done so in both secondary legislation and guidance, 7 which contains detailed descriptions of good practice in supporting looked after children and their families. 8

The local authority may terminate the placement where for any reason it appears to the local authority that it is no longer in a child's best interests to remain in a placement and shall make arrangements to terminate the placement as soon as is practicable. 9

Children looked after by the local authority are included in the indicative list of children whose needs local authorities should consider in planning their services. 10 All these duties apply whether the child is looked after at home, in residential or foster care or in a residential school. 11 For example the local authority may facilitate contact with an absent parent for a looked after child living at home under local authority supervision.

Children's views and wishes

Irrespective of the basis on which the child is looked after, every child has the right to an opportunity to indicate whether he or she wishes to express views, to express those views and to have them taken into account in any decision-making processes affecting him or her. 12 This right applies in both children's hearings and court proceedings, and in local authority administrative decision-making processes. 13 It is qualified only by constraints of practicality and the need to take account of the child's age and maturity when having regard to his or her views. Even if a child's views cannot practicably be sought before the local authority applies for a child protection order, it must seek and have regard to his or her views when the child becomes looked after.

For this statutory right to have practical effect children and young people will usually need skilled support from adult carers and professionals. Guidance states that public services should be planned and delivered on the basis of partnership with parents and children and sets out the professional practice required to achieve this. Consulting children and taking account of their views is a dynamic and continuing process, not an event, and should permeate all legal and local authority decision-making. Children, and their parents and other relevant family members, should have sufficient information at an early stage both verbally and in writing, including advice about, and the opportunity to discuss the various consequences of decisions they may take. They should be actively involved in assessments, decision-making meetings, reviews and case conferences and should be given help to express their views and to prepare their own written reports or statements for meetings. Professionals should listen to and take account of their views. There should be clear and accessible means for children and parents to challenge decisions with which they disagree and to make a complaint, with access to independent advocacy. Administrative arrangements, for example the location and timing of meetings, should take account of both parents' and children's needs. 14

Provision for children's needs

The law requires local authorities to make appropriate arrangements to meet the child's educational needs and to ensure continuity of education. 15 When placed away from home the child has the right to be brought up in accordance with his or her religious persuasion. 16 The local authority must ensure medical assessment of the child's health status and need, and ensure that arrangements are in place for the provision of health care, including medical and dental care and treatment. 17 Any placement in a residential setting must be demonstrably appropriate to the child's needs. 18

Right to contact with family

When a child is looked after away from home he or she is entitled to contact with any family member who has parental responsibility for him or her. 19 There is no statutory duty upon the local authority to promote direct contact with people who do not have parental responsibility for the child. In practice local authorities should help the child sustain any significant relationships with relatives and friends that are likely to promote his welfare or facilitate the upbringing of the child by his family. 20 The local authority may provide travelling, subsistence and other expenses to any parent, relative or other person connected with a looked after child to enable contact if the person would not be able to visit the child without undue hardship. 21

Sibling relationships

Sibling relationships are important in sustaining children's personal identity and supporting stability in placements. 22 Brothers and sisters in care are too often placed separately and many do not have contact with each other whilst in care. Failure to protect sibling relationships for looked after children may breach ECHR rights to respect for their family life. 23 Local authorities must place siblings together wherever possible, and, if this is not appropriate or feasible, the children should be placed in foster homes as near together as is appropriate or practicable. Siblings placed in different residential establishments should have regular contact. 24

The legal requirement to place siblings together is qualified by the need to ensure that this is consistent with coexisting duties to safeguard and promote the child's welfare and to ascertain the child's views. Any decision to place siblings separately or deny contact should be justified on welfare grounds. 25 Guidance stipulates that where it is not practicable or in the best interests of siblings to be placed together frequent contact should normally be arranged and reunification considered at each statutory review. 26

Some sheriffs hearing children's cases are now scrutinising local authorities' plans for placement of siblings, reasons for decisions to place children separately and arrangements to ensure continuing contact. 27

Back to top