Who this guide is for
This guidance is designed to help foster carers with whom children have been accommodated. It is not applicable where children live at home under a compulsory supervision order or other order, or are accommodated in residential or secure units.
This guidance is based on Scottish Law and regulation as at the time of writing. The law in this area is extensive and includes several statutes, together with accompanying regulation, including but not limited to:
- the Children (Scotland) Act 1995
- the Data Protection Act 1998
- the Children's Hearings (Scotland) Act 2011
- the Age of Legal Capacity Act 1991
- the Education (Scotland) Act 1980
- the Children and Young Persons (Scotland) Act 2014
- the Vulnerable Witnesses (Scotland) Act 2004
The purpose of the guidance
This guidance is intended to provide foster carers with an understanding of decision making about children: who can make decisions and why, what decisions a child can make, and the powers of carers to make decisions about the children they are caring for. It is not intended to be a definitive guide to the law and practice. It is a tool to ensure that the rights of children and the rights and responsibilities of parents are respected and supported, while the welfare and wellbeing of children in care is safeguarded and promoted. It is intended to provide carers with the confidence to participate effectively in planning and in the care of the child.
While this guidance is intended to serve as a practical reference point for foster carers, it should not be regarded as exhaustive or exclusive. This guidance does not constitute legal advice. Users may need to consult with others such as the child's local authority, any fostering agency or a source of legal advice.
What children and young people say
Studies and surveys have shown that children in care want to grow up just like everyone else and that means to be able to experience the same things as other children - friendships, activities, holidays and family times. Decision making should support this and not be exercised with such caution and risk-aversion that the child's experiences are restricted and controlled beyond what is reasonable and compatible with their needs.
Who is a Child?
Although the age of majority (full adulthood) in Scotland is 18, for most purposes the legal status of child ends at the 16th birthday. After that age one can make most adult decisions: where one lives, to get married, to work full time (after the school leaving date), but there are limitations. One cannot drink, smoke or get a tattoo, or serve in the front line of the armed forces until age 18. There are limits to entering into contracts, and there are extra protections. For the purposes of being in care, young people aged over 16 but under 18 years of age can be subject to compulsory supervision orders, or can be accommodated by the local authority if their welfare requires it. These young people are children for these purposes, and have rights as former looked after children which can subsist to the age of 25. For other purposes they have the same powers and rights as their contemporaries.
Principles behind making decisions about children
It is very clear in the United Nations Convention on the Rights of the Child that the child must be at the heart of all decision making - not just to have a view - but that those decisions must be in the best interests of the child. Our law is compliant with this - so anyone who must make a decision about a child must make that decision for the benefit of the child - that includes people with parental responsibilities and rights, carers, local authorities, courts and children's hearings.
Delegated authority is not a term used in Scottish law. In Scotland, those caring for children, who are not their own, have powers of decision making in their own right. These will be explained in detail in the body of this guidance.
Email: Heather Brown