Legislation for Scotland

New Children and Young Peoples’ Bill

The Children and Young People (Scotland) Bill has been introduced to the Scottish Parliament on Thursday 18th April 2013.

The Scottish Government has great ambitions to that Scotland is an excellent country to grow up in. They plan on doing this by putting children and young people right in the middle of planning and their services and also making sure that their rights are respected across the public sector.

Aileen Campbell, Minister for Children and Young People, said:

“This Government’s vision for children and young people is clear: We want Scotland to be the best place in the world for them to grow up. A place where rights are respected and where children can access all the opportunities and support they need, when they need it.”

The Bill and accompanying documents have been published on the Scottish Parliament website:

http://www.scotland.gov.uk/Topics/People/Young-People/legislation

The devolved Government for Scotland is responsible for most of the issues of day-to-day concern to the people of Scotland, including health, education, justice, rural affairs, and transport.

The Scottish Government was known as the Scottish Executive when it was established in 1999 following the first elections to the Scottish Parliament. The current administration was formed after elections in May 2011.

The Scottish Cabinet has made a commitment to introduce new legislation for social work services.

Future Legislation is likely to:

Shift the focus from the language of welfare to wellbeing
Recognise the partnership between individuals and the state
Reflect the principles of personalised services while recognising the compulsory nature of some practice
Embed the new national priorities and performance improvement arrangements for social work services
Clarify the role of the Chief Social Work Officer

Current Legislation

The main legislation relevant to foster carers and those looking after children in Scotland is outlined below. This is not a detailed description of law applying in Scotland but is offered for guidance only.

The Children (Scotland) Act 1995

This Act puts children first. Each child has the right to:

be treated as an individual;
form and express views on matters affecting him or her, and have these taken account of; and
be protected from all forms of abuse, neglect or exploitation. Parents and local authorities have rights and responsibilities in achieving the balance of care.
The Act is accompanied by regulations and guidance.

Looked after children (Scotland) Regulations 2009

These regulations replace the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996.

They also affect parts of the Residential and Other Establishments (Scotland) Regulations 1996 where they apply to the placement of a child or young person in a residential establishment. They bring together the regulation of the care planning services offered to looked after children and their families with the care provision required when children are separated from their birth parents. They also reflect more detailed and consistent requirements when children are looked after by kinship carers.

This guidance replaces that provided in Volume 2 of Scotland’s Children, Scottish Office, Edinburgh, 1996, covering the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996.

The definition of a “looked after‟ child is in section 17(6) of the 1995 Act, as amended by Schedule 2, para 9(4) of the 2007 Act. A child is looked after when he or she is:

(a) provided with accommodation by a local authority under section 25 of the 1995 Act; or
(b) subject to a supervision requirement made by a children's hearing, in terms of section 70 of the 1995 Act; or
(c) subject to an order, authorisation or warrant made under Chapter 2, 3 or 4 of Part II of the 1995 Act, and according to which the local authority has responsibilities in respect of the child. These include a child protection order, a child assessment order, an authorisation from a justice of the peace to remove a child to a place of safety or maintain a child in a place of safety, removal to a place of safety by a police constable, or a warrant to keep a child in a place of safety made by a children's hearing or a sheriff, or

(d) living in Scotland and subject to an order in respect of whom a Scottish local authority has responsibilities, as a result of a transfer of an order to it under the Children (Reciprocal Enforcement of Prescribed Orders etc. (England and Wales and Northern Ireland) (Scotland) Regulations 1996. These 1996 Regulations were made under section 33 of the 1995 Act. Or
(e) subject to a permanence order made after an application by the local authority under section 80 of the 2007 Act.

A local authority has a range of statutory duties to a child looked after by it, as laid out in section 17 of the 1995 Act:

to safeguard and promote the child's welfare, taking the welfare of the child as its paramount concern;
to make use of services that would be available for the child were he or she cared for by his or her parents;
to take steps to promote regular and direct contact between the child who is looked after and any person with parental responsibilities, so far as is practicable, appropriate and consistent with the duty to safeguard the child’s welfare;
to provide advice and assistance with a view to preparing the child for when he or she is no longer looked after;
to find out and have regard to, so far as is practicable when making decisions about the child, the views of the child, his parents and any other person whom the local authority think is relevant; and
to take account, so far as is practicable, of the child's religious persuasion, racial origin and cultural and linguistic background.

Authorities may deviate from complying with these duties only when it is necessary to protect members of the public from serious harm, and then only to the extent required to achieve such protection for the public, section 17(5).

At every step along the way, local authorities and any agencies acting on their behalf need to be able to demonstrate their processes and be accountable for all decisions made. This requires clear and effective record keeping.

Foster Care and Family Placement Services

The Scottish Commission for the Regulation of Care

The Regulation of Care (Scotland) Act 2001 set up the Care Commission, to register and inspect all the services regulated under the Act, taking account of the national care standards issued by Scottish Ministers. On 1 April 2011 a new independent scrutiny and improvement body replaced the Care Commission - Social Care and Social Work Improvement Scotland (SCSWIS).

The standards will be taken into account by the Care Commission in making any decision about applications for registration (including varying or removing a condition that may have been imposed on the registration of the service).

All providers must provide a statement of function and purpose when they are applying to register their service. On the basis of that statement, the Care Commission will determine which standards will apply to the service that the provider is offering.

The standards will be used to monitor the quality of care services and their compliance with the Act and the regulations. If, at inspection, or at other times, for example, as a result of the Care Commission looking into a complaint, there are concerns about the service, the Care Commission will take the standards into account in any decision on whether to take enforcement action and what action to take.

If the standards were not being fully met the Care Commission would note this on the inspection report and require the agency to address this. The Care Commission could impose an additional condition on the agency's registration if the agency persistently, substantially, or seriously failed to meet the standards or breached a regulation.

If a voluntary or independent agency does not then meet the condition, the Care Commission could issue an improvement notice detailing the required improvement to be made and the timescale for this. Alternatively, the Care Commission could move straight to an improvement notice. The Care Commission would move to cancel the registration of any voluntary or independent agency if the improvement notice does not achieve the desired result. In extreme cases (for example, where there is serious risk to a person's life, health or wellbeing) the Care Commission could take immediate steps to cancel the registration of a voluntary or independent agency without issuing an improvement notice.

If the Care Commission determines that the services provided by a local authority acting as a fostering agency are consistently failing to meet the standards, the Care Commission will bring this to the attention of the Scottish Executive.

Regulations must be followed. In some cases not meeting a regulation is an offence and the provider may be prosecuted. Breaking or not meeting any regulation is a serious matter. Decisions by the Care Commission on what to do when standards or regulations are not met will take account of all the relevant circumstances and be proportionate.

The standards cover the following activities:

• recruiting, selecting, approving, training and supporting foster carers;
• matching children and young people with foster carers;
• supporting and monitoring foster carers; and
• the work of agency fostering panels and other approval panels.

The national care standards for foster care

Services for children (standards 1 to 4)

These standards are for children and young people who go to stay with foster carers.

1. Informing and deciding
2. Promoting good quality care
3. Helping you as an individual
4. Expressing your views

Services for foster carers (standards 5 to 12)

These standards are for people who are or who wish to become foster carers. They also set out how agencies should work to recruit families for children.

5. Assessing and approving carers
6. Completing the application
7. Information and advice
8. Practical help
9. Allowances and expenses
10. Fees
11. Reviews
12. The fostering panel

Management and staffing (standard 13)

The standards in this section are addressed to everyone who uses the foster care service. They reflect the importance of knowing that the people who are responsible for the agency have the necessary experience, skills and training.

13. Management and staffing of the agency

The principles behind the standards

The standards are based on a set of principles. The principles themselves are not care standards but reflect your recognised rights. These principles are the result of all the contributions made by the Care Commission, its working groups and everyone else who responded to the consultations on the standards as they were being written. They recognise that services must be accessible and suitable for everyone who needs them, including people from ethnic minority communities. They reflect the strong agreement that your experience of services is very important and should be positive, and that you have rights.

The principles are dignity, privacy, choice, safety, realising potential and equality and diversity.

A Glossary of Terms used in the Regulations and Standards

Abuse

Something that causes actual or likely significant harm to a child. It may be physical, emotional or sexual or neglect of a child.

Advocate

A person independent of any aspect of the service or of any of the agencies involved in purchasing or providing the service, who acts on behalf of, and in the interests of the person using the service.

Bullying

The intentional or perceived causing of pain, distress, anxiety, humiliation or social exclusion to one child by one or more other children, by physical or verbal means, or through damage or loss of property.

Care plan

An agreed plan for looking after a child and meeting his or her needs, made by a placing authority under Children (Scotland) Act 1995 requirements.

External manager

The person or group of people, sometimes a board or committee, responsible for the work of the agency but not involved in day-to-day management.

Family placement

A service which links a child to another whole family or individual especially recruited and prepared for the purpose, in whose home the child regularly spends short periods.

Fostering panel

A panel which is set up to consider whether to recommend approval of foster carers. The local authority decides the number of people to be appointed to the panel, at least one of whom will be a medical adviser. It should reflect the background and heritage of the children who are likely to need placement and the foster carers likely to seek approval.

Fostering or family placement agency

A local authority or independent service responsible for the recruitment, assessment, approval and training of foster carers.

Matching

The process of linking an individual child with a particular carer or carers who can best meet the child's needs.

Placement

An agreement for a child to stay with a particular foster family. This may be a longer-term placement or a short break.

Prospective foster carers

Individuals who have expressed an interest in fostering or who are in the process of application, assessment or approval.

Respite care or 'short breaks'

There are many kinds of arrangements for respite care or short breaks for children. These include provision within a child's home, daytime care, occasional overnight stays and regular periods of care with an approved family or foster carer, or in a residential home and shared care arrangements with foster or other family carers. Children who stay away from home overnight are looked after by the local authority and the Arrangements to Look After Children (Scotland) Regulations 1996 apply.

Shared Care Scotland

National organisation promoting and supporting short breaks.

Whistle-blowing

The disclosure by an employee (or professional) of confidential information that relates to some danger, fraud or other illegal or unethical conduct connected with the workplace, be it of the employer or employees. (Lord Barrie QC 1995)