Part One:Services In Relation To Children At Risk Of Becoming Looked After And The Legal Framework
Children (Scotland) Act 1995
(Scotland) Act 1995 (the 1995 Act) provides a major part of the
legal framework for child welfare and protection in Scotland. There
are three main themes that run through the Act:
a) The child's views should be taken into account in decisions that affect their lives;
b) The welfare of the child is the paramount consideration;
c) No court or hearing should make an order, unless the court or hearing considers that to do so would be better for the child than making no order at all (known as the 'no order' principle).
The Act also provides for an early intervention approach with a provision on local authorities' duties in relation to children 'in need' (section 22).
24. The key principles underpinning the 1995 Act are:
- Each child has a right to be treated as an individual
- Each child who can form a view on matters affecting him or her has the right to express those views if he or she so wishes
- Parents should normally be responsible for the upbringing of their children and should share that responsibility
- Each child has the right to protection from all forms of abuse, neglect or exploitation
- So far as is consistent with safeguarding and promoting the child's welfare, the public authority should promote the upbringing of children by their families.
- Any intervention by a public authority in the life of a child must be properly justified and should be supported by services from all relevant agencies.
Adoption and Children (Scotland) Act 2007
25. The Adoption and Children (Scotland) Act 2007 modernised the system of adoption in Scotland and introduced Permanence Orders to provide long-term security for children who could not live with their families. The 2007 Act provides new provision for the distribution of parental responsibilities and rights.
Children's Hearings (Scotland) Act 2011
The Children's Hearings (Scotland) Act 2011 restates the child-centred, participative nature of the hearings system but also sets out fundamental structural changes. These include the creation of a National Convener and a national body, Children's Hearings Scotland ( CHS), to support this role. This Act also updated some procedural issues; for example, it introduced pre-hearing panels and extended the definition for relevant persons. It also modernised the grounds for referral and placed the right to legal representation on a permanent statutory footing.
Social Care (Self Directed Support) (Scotland) Act 2013
26. The Social Care (Self-Directed Support) (Scotland) Act 2013 (the 2013 Act) makes legislative provisions relating to the arranging of care and support ("community care services" and "children's services") in order to provide a range of choices to individuals as to how they wish their support to be provided. The Act is underpinned by four statutory principles, which should guide and inform the assessment process and any subsequent provision of choice as part of wider support planning. The principles of collaboration, informed choice, involvement and participation and dignity are important as they articulate the underlying spirit of the legislation. The 2013 Act introduces the language of self-directed support into statute. It places a duty on local authorities to offer four options to individuals who they assess as requiring care and support under section 12A of the Social Work (Scotland) Act 1968, section 3 of the 2013 Act (support for adult carers) and section 22-24 of the 1995 Act. It requires authorities to explain the nature and effect of all four options and provide information and assistance to individuals in order that they can make an informed choice about the options available.27. Under Section 8: Choice of Options: Children and Family Members of the 2013 Act, where the local authority is providing services to a child or a member of a child's family under section 22 of the 1995 Act, the local authority must give the supported person the opportunity to choose from the four self-directed support options. Furthermore, the supported person must, as far as practical and taking into account the maturity of the child, have regard to any views expressed by the child under section 8 (6)(c) of the 2013 Act. This is highly likely to be relevant for children who are deemed by a local authority to be at risk of becoming looked after. Furthermore, this could be key for engaging with families and empowering them to seek their own solutions.
28. The local authority retains some discretion with regards the offer of option one - a direct payment. The accompanying Statutory Guidance (2014) suggests that there are a number of circumstances when it is not possible, or appropriate, to offer all of the options and local authorities can use a "duty of care" discretion. This may include, for example, where a child's safety would be put at risk by having a direct payment, if there is evidence that the money will not be used to meet their needs, or when assessments are undertaken at acute points of crisis therefore the offer of the four options would only be given after the initial crisis has been resolved and longer term support is required.
Public Bodies (Joint working) (Scotland) Act 2014
29. The Public Bodies (Joint Working) (Scotland) Act 2014 requires integration across health and social care for adult services, with local discretion to include integration of children's services. The Act provides for nationally agreed outcomes on health and wellbeing to be set out by Scottish Ministers. The Act establishes integration joint boards and integration joint monitoring committees as the partnership arrangements for the governance and oversight of health and social care services. There is a requirement on partnerships to strengthen the role of clinicians and care professionals, along with the third and independent sectors, in the planning and delivery of services. Partnerships will be jointly accountable to Ministers, Local Authorities, NHS Board Chairs and the public for delivering the nationally agreed outcomes. This legislation is highly relevant where children's services have been included through integration and thus, has consequences for the joint delivery of services as the health of the child or parents is a common factor when children are on the edge of care.
Children and Young People (Scotland) Act 2014
30. The Children and Young People (Scotland) Act 2014 (the 2014 Act) was passed by the Scottish Parliament on 19 February 2014, and received Royal Assent on 27 March 2014. The legislation is a key part of the Scottish Government's strategy for making Scotland the best place in the world for children to grow up. By facilitating a shift in public services towards the early years of a child's life, and towards early intervention whenever a family or young person needs help, the legislation encourages preventative measures, rather than crises' responses. Underpinned by the Scottish Government's commitment to the United Nations Convention on the Rights of the Child 1989 ( UNCRC), and the national approach, Getting it Right for Every Child ( GIRFEC), the 2014 Act also establishes a new legal framework within which services are to work together in support of children, young people and families.
31. Composed of 18 distinct Parts, the 2014 Act makes important changes to the development of services for children and their families. In summary, the Act:
- Places new duties on Scottish Ministers and public bodies to report on the steps they have taken to give further effect to the UNCRC requirements. (Part 1)
- Strengthens the powers of the Commissioner for Children and Young People in Scotland to enable investigations to be conducted in relation to matters concerning individual children and young people. (Part 2)
- Establishes a structure for the 'integrated' planning and delivery of all children's services in a local authority area. (Part 3)
- Provides for child and young people (up to their 18th birthday) and beyond, if still at school, to have a Named Person who is a single point of contact with responsibility for promoting, supporting and safeguarding the child's wellbeing. (Part 4). This part of the 2014 Act is not yet in force.
- Ensures that there is a single planning framework (the Child's Plan) for children who need support to meet their wellbeing needs which require targeted intervention. (Part 5). This part of the 2014 Act is not yet in force.
- Increases the amount and flexibility of early learning and childcare available to all 3 and 4 year olds, and to vulnerable 2 year olds. (Part 6)
- Introduces a coordinated approach to consultation and planning on all early learning and childcare, day care and out of school care provided by local authorities. (Part 6, Part 7 and Part 8)
- Places corporate parenting duties on a range of publicly funded organisations in respect of looked after children and care leavers, increasing the breadth and depth of support available to those groups of children and young people. (Part 9)
- Extends eligibility to aftercare assistance up to an individual's 26 th birthday. (Part 10)
- Introduces 'continuing care', through which eligible care leavers will have the opportunity to continue with the accommodation and assistance they were provided with before they ceased to be looked after. (Part 11)
- Increases the support available to children at risk of becoming looked after. (Part 12)
- Specifies the type of court order that will be recognised as a kinship care order for the purposes of receiving kinship care assistance and sets out the duties of the local authority to make arrangements to ensure that assistance is made available to kinship cares who are seeking, or who have obtained a kinship care order, to parent-appointed guardians and to eligible children and young people. (Part 13)
- Places Scotland's National Adoption Register on a statutory footing. (Part 14)
- Strengthens existing legislation on school closures. (Part 15)
- Makes changes to the children's hearing system. (Part 16)
- Provides for free school meals to be made available to certain pupils, creates a new right to appeal a local authority decision to place a child in secure accommodation under section 44 of the Criminal Procedure (Scotland) Act 1995, amends the system of children's legal aid, extends the licencing of child performances and provides that the wellbeing of a child should be considered in exercising certain functions of the 1995 Act. (Part 17)
- Establishes a holistic understanding of child wellbeing for the purposes of the 2014 Act. (Part 18)
Part 12 of the 2014 Act and the Relevant services in relation to children at risk of becoming looked after etc. (Scotland) Order 2016
32. Part 12 of the 2014 Act and the 2016 Order came into force on 31 st August 2016. The Order supports the implementation of Part 12 (see Appendix A for full content of the 2016 Order).
33. Under section 68(1) of the 2014 Act, local authorities must
relevant services must be made available for the following persons:
a) Each eligible child residing in its area
b) A qualifying person in relation to such child
c) Each eligible pregnant women residing in its areas
d) A qualifying person in relation to such a woman.
34. Under article 2 of the 2016 Order, relevant services for the
purpose of section 68 (1) of the Act are specified as:
c) Family group decision-making services which means a service which is designed to facilitate decision-making by a child's family in relation to the services and support required for the child; and
d) Support services in relation to parenting which means a service which is designed to increase parenting skills.
35. Under section 68(3) of the 2014 Act, an eligible child is defined as 'a child who the local authority considers to be at risk of becoming looked after' or, who falls within such other description as the Scottish Ministers may by order specify. The local authority has a responsibility to determine whether or not a child is at risk of becoming looked after.
36. Under article 3(2) of the 2016 Order, a local authority must consider whether the child's wellbeing is being, or is at risk of being, adversely affected by any matter, such that a child is at risk of becoming looked after. The local authority must only provide relevant services where the local authority considers that the likely benefit to the eligible child's wellbeing outweighs any likely adverse effect. As far as reasonably practical, the local authority must ascertain and have regard to the views of the child and such persons the local authority considers appropriate (article 3(4)).
37. Under article 4 of the 2016 Order, local authorities must publish, in such a manner as they consider appropriate, information about the provision of relevant services; the ways in which persons can contact the local authority about the provision of those relevant services; and others matters about the provision of relevant services that the local authority considers appropriate.
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