second session v2

8/9/2019 Second Session v2

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SOCIAL WORK LAW & POLICY 2010 Tuesday 27 th April 2010

This session will cover the following areas: Legal definitions of children and their powers and rights An outline of the law relating to family relationships Local authority duties to children in need and to looked after children Alternative family arrangements involving adoption and private fostering Rights in rented accommodation Homelessness

Reading The reading for this seminar is:

This handout Crossan v South Lanarkshire Council [2006] CSOH 2814 (this should be available as

a document on WebCT or

Baillie et al , Social Work and the Law in Scotland , Chapter 14

Structure of the session I would intend to start with a brief discussion of the questions on disability issued at the lastsession (these can be found here: http://tgg1971.wordpress.com/2010/03/04/questions/ ),followed by any questions on the reading in this handout and a brief lecture on adoption andprivate fostering and then the remainder of the time working on questions based on thematerial.

SECTION A CHILDREN

A.1 Definitions of child When a young person is treated for legal purposes as a child and the age at which they havethe legal right or capacity to do certain things varies considerably depending on the context.The main ages and their consequences are shown on the table on the following page.Regardless of any of these ages the age of majority, where, for all legal purposes, anindividual is treated as an adult is 18. 1 The achievement of capacity by a child to take certaindecisions means that there is then no longer anyone else who can decide for her/him. Forexample, once a child is 16 then in law she/he has the capacity to take any decisionsregarding medical and other care, regardless of her/his actual capacity. In such cases a parentcan no longer decide on the childs behalf and other provisions, for example the Adults withIncapacities (Scotland) Act 2000 will have to be invoked.

A.2 Childrens righ tsAlthough these feature in international agreements, principally the United NationsConvention on the Rights of the Child, there is no coherent statement of childrens rights inScots Law, though the UK Government has to report periodically on implementation of theconvention. Most recently the Scottish Executive produced a report on implementation up to2007. 2 In the absence of a coherent list, rights conferred on children at various ages arefound scattered through other law and legislation, examples are:

(a) the right to a share of a parents estate on death;

1 Age of Majority (Scotland) Act 1969, s 1.2 A Report on Implementation of the UN Convention on Human Rights in Scotland 2002-2007 , available here .
http://tgg1971.wordpress.com/2010/03/04/questions/http://tgg1971.wordpress.com/2010/03/04/questions/http://tgg1971.wordpress.com/2010/03/04/questions/http://www.scotland.gov.uk/Publications/2007/07/30114126/0http://www.scotland.gov.uk/Publications/2007/07/30114126/0http://www.scotland.gov.uk/Publications/2007/07/30114126/0http://www.scotland.gov.uk/Publications/2007/07/30114126/0http://tgg1971.wordpress.com/2010/03/04/questions/


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(b) the right to be supported by a parent up to the age of 18 (or up to 25 if in education ortraining), this right extends to give a claim against the biological father even if he hasno parental responsibilities or rights, and a claim can also be made against anyonewho has accepted a child into her/his family; 3

(c) a right of access to personal information kept about him/her provided that they have a

general understanding of what it means to exercise the access right,4

children aged 12or over are deemed to have such an understanding;

(d) the right to have her/his views taken into account when major decision is being takenabout her/his life; 5

(e) the right to have her/his views taken into account in a variety of court and otherproceedings; 6

(f) the right to attend a childrens hearing concerning her/him; 7 and(g) the right of children who have been looked after to certain aftercare services. 8

In addition, children may be able to rely on the rights protected under various articles of theEuropean Convention on Human Rights and exercise the right given to sue local authoritiesunder the Human Rights Act 1998. 9

3 Family Law (Scotland) Act 1985, s 1.4 Data Protection Act 1998, s 66.5 Children (Scotland) Act 1995, s 6.6 For example, Children (Scotland) act 1995, s 16.7

Children (Scotland) Act 1995, s 45(1)(a).8 Children (Scotland) Act 1995, ss 29 & 30.9 Sections 6 & 7.


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Age Consequences8 orover

can be prosecuted for criminal offence (Criminal Procedure (Scotland) Act 1995, s 41) 10

12 orover

can make a will (1989 Act, s2)deemed to understand what is involved in instructing a solicitor (1989 Act, s2)must consent to adoption (Adoption and Children (Scotland) Act 2007, s 32)

Under16

although can be prosecuted for crime will no rmally be referred to childrens hearing (Criminal Procedure (Scotland) Act 1995, s 42)can only enter into transactions of type which children of that age and circumstances would commonly enter into, provided that transactionreasonable (1989 Act, s2)can only consent to medical treatment if practitioner given treatment considers her/him to be capable of understanding the nature &possible consequences of the treatment (1989 Act, s2)can instruct solicitor in relation to civil matter if has general understanding of what it means to do so can also raise civil action (1989 Act,s2)parent has duty to ensure that child attends school or is otherwise provided with efficient education (Education (Scotland) Act 1980, ss 30& 31)

16 orover

can marry (Marriage (Scotland) act 1977, s 1)parental responsibilities and rights aside from responsibility to provide guidance cease (1995 Act, ss 1 & 2)

can only be referred to a childrens hearing if already subject to supervision requirement (1995 Act, s 93(2)(b))capacity to enter into any transaction (i.e. contracts & consent to medical treatment), though transactions at age 16 & 17 may, subject tolimitations, be set aside if prejudicial application to set aside can be made up to 21 (1989 Act, ss 1 & 3)

Under18

subject to parental right to provide advice (1995 Act, s 1(2)(b))covered by child welfare provisions of Children (Scotland) Act 1995, e.g. provision of accommodation, provision of services to children(1995 Act, s 93(2)(a))

can be referred to childrens hear ing if subject to existing supervision requirement (1995 Act, s 93(2)(b))can be subject of adoption order (Adoption and Children (Scotland) Act 2007, s 119(1))right to financial support from parent (Family Law (Scotland) Act 1985, s 1)

18 orover

no longer any parental responsibilities/rights (though if in education/training can claim support) (1995 Act, s 1 (2)(b);Family Law (Scotland)Act 1985, s 1)able to vote & stand for parliament/local government (Local Government (Scotland) Act 1973, s 29; Representation of the People Act1983, ss 1 & 2; Electoral Administration Act 2006, s 17)

1991 Act = Age of Legal Capacity (Scotland) Act 19911995 Act = Children (Scotland) Act 1995

10 Though there is currently a proposal to raise this to 12, Criminal Justice and Licensing (Scotland) Bill 2009, clause 38.


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A.3 Parental Responsibilities and Rights in relation to Children In the language of the Children (Scotland) Act 1995, parents have responsibilities to theirchildren, and the legal emphasis is on these responsibilities rather than the rights that parentshave. Rights are specifically expressed to be held by a parent in order to enable him to fulfilhis parental responsibilities in relation to his child. 11The responsibilities of a parent to a child

under 16 are:12

(a) to safeguard and promote the health, development and welfare of the child;(b) to provide direction to the child appropriate to his/her age, this implies that as the

child gets older the responsibility to direct lessens;(c) in cases where the child is not living with the parent (e.g. because the parents are

separated or divorced) the parent has to maintain regular co ntact and personalrelations with the child;

(d) to act as the childs legal representative, e.g. in relation to entering contracts andmanaging property, as we will see below when the child gets older he/she acquiresmore capacity to do these things him/herself.

For children of 16 and 17, the parent has a responsibility to provide guidance appropriate tothe childs age, though the right to give such guidance expires on the childs 16th birthday.In all cases the responsibilities are to be fulfilled only where this is practicable and in theinterests of the child, fulfilment will also be subject to any court orders about parentalresponsibilities.

Parents have the right, until the child reaches the age of 16: 13 (a) to have their children living with them or to regulate their residence;(b) to control, direct or guide their childrens upbringing in a manner appropriate to the

age of the child;(c) to maintain direct contact on a regular basis with any child who is not living with

them and to maintain personal relations with the child;(d) to act as their childrens legal representative.

Where more than one person has parental rights in respect of a child they may exercise theirrights independently of each other.

A.3.1Who holds parental responsibilities and rights?All mothers have these responsibilities and rights - only an order made by a court can takeany of them away.

A childs biological father also has these responsibilities and rights, but only if: he was married to his child's mother at the time of the child's conception (or at any timeafter that);

he has been given them by a court order; he has made and registered, together with the mother, a Parental Responsibilities and

Parental Rights Agreement; 14 or

11 Children (Scotland) Act 1995, s 2(1).12 19956 Act, s 1(1).13 1995 Act, s 2.14 The form can be found here and is set out in The Parental Responsibilities and Parental Rights Agreement

(Scotland) Amendment Regulations 2006 (SSI 2006/255). Registration is required for the agreement to becomeeffective, and this takes place in the Books of Council and Session. Similar provisions apply in respect of acquisition of parental responsibilities and rights by another female parent, 1995 Act, s 4A.
http://openscotland.net/library3/social/prapform.pdfhttp://openscotland.net/library3/social/prapform.pdfhttp://openscotland.net/library3/social/prapform.pdfhttp://openscotland.net/library3/social/prapform.pdf


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he is registered as the father on the birth certificate of the child, though this will only apply to births registered after 4 th May 2006. 15

People who simply have care or control of a child do not have parental responsibilities orrights, instead, section 5 of the 1995 Act makes the following provision:

(1) Subject to Subsection (2) below, it shall be the responsibility of a person who hasattained the age of sixteen years and who has care or control of a child under that age,but in relation to him either has no parental responsibilities or parental rights or does nothave the parental responsibility mentioned in Section 1(1)(a) of this Act [i.e. theresponsibility to safeguard and promote the childs health, development and welfare], todo what is reasonable in all the circumstances to safeguard the child's health,development and welfare; and in fulfilling his responsibility under this Section the

person may in particulargive consent to any surgical, medical or dental treatment or procedure where--

(a) the child is not able to give such consent on his own behalf; and(b) it is not within the knowledge of the person that a parent of the child wouldrefuse to give the consent in question.

(2) Nothing in this Section shall apply to a person in so far as he has care or control of achild in a school.

A.3.2 Court orders and parental responsibilities 16 Anyone with an interest, this would include the child concerned, can apply to court for anorder regarding parental responsibilities or rights, though local authorities are not permittedto make such applications. 17. Application may take the form of a self standing applicationrelated to parental responsibilities and/or rights or may be part of an action concerned withsome other issue. The 1995 sets out a non-exhaustive list of the types of order which a courtmay make: it may deprive someone of all or any parental responsibilities and/or rights; it mayimpose responsibilities or confer rights; it can regulate with whom the child is to live (aresidence order); regulate contract with a person with whom the child is not living (a contactorder); deal with a specific question which has arisen (a specific issue order); and, finally, theorder can take the form of an interdict prohibiting a step taken in fulfilment of parentalresponsibilities or exercise of parental rights. 18

In determining actions involving parental responsibilities and rights the court has to take intoaccount a number of considerations

(a) The court must regard the welfare of the child as its paramount consideration.(b) The court must not make any order about parental responsibilit ies or rights unless

it considers that making the order would be better for the child than making no order

15 Registration as father on a birth certificate in another part of the UK which confers parental rights there willnot have this effect in Scotland if registration took place before this date, D v Childrens Reporter 2009 Fam LR88.16 1995 Act, s 11.17 1995 Act, s 11(5). Application for an order can be made even though an adoption order in respect of a childhas been made, and an order can be made in other proceedings without application by any of the parties if thecourt considers that the order should be made, see 1995 Act, s 11(3) & (4). Restrictions on the ability to applyfor an order exist once a permanence order has been made in respect of a child, of the orders listed later only aspecific issues order can be applied for.18 Though it may be that the same effect can be achieved through a specific issue order. In M v C 2002 SLT (Sh

Ct) 82 a specific issue order was granted to prevent the chil ds mother from changing the childs surname. Theright to attend a Childrens Hearing relating to a child is not a parental responsibility/right and therefore cannotbe conferred by a court order, Principal Reporter v K [2010] CSIH 5.


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at all. This emphasises a strategy of minimum intervention.(c) The child involved must be given an opportunity to indicate if he/she wishes to express

a view about any order and if the child does wish to express a view he/she must begiven an opportunity to do so and the court must have regard to any viewsexpressed before making an order. In order to allow this to happen, a chi ld must be

notified of applications for orders dealing with responsibilities and rights and on thenotification there is a form which the child can return indicating whether he/shewishes to express a view. If the child does, the form allows him/her to nominatesomeone to communicate his/her views to the court or to write to the judgeexpressing his/her views. The procedural rules also envisage the judge eitherspeaking to the child directly or sending someone to speak to the child on his/herbehalf.

(d) The need to protect the child from any abuse or risk of abuse which might affecther/him. Abuse is defined widely and includes violence, harassment, threateningconduct and any other conduct giving rise to, or likely to give rise to, physical or mentalinjury, fear alarm or distress, as well as domestic abuse and abuse of a person other thanthe child. 19

(e) Whether two people would have to co-operate with one another as respects mattersaffecting the child. 20 This involves a question as to whether two (or more) people whohave to co-operate would be able to do so. 21

If, during the course of the hearing on an application related to parentalresponsibilities/rights, the judge considers that any of the non-offence grounds of referral to achildren's hearing exist, the judge may refer the case of the child to the reporter. 22

The effect of an order conferring parental rights on one person is not, automatically, to

remove them from another person having parental rights. For example, if the court were tomake a residence order in favour of a wife that would not automatically deprive the husbandof the right to have the child living with him. Deprivation of rights occurs only where thecourt expressly takes them away from someone who previously enjoyed them. 23

SECTION B LEGALLY RECOGNISED RELATIONSHIPS

B.1 Marriage

B.1.1 FormalitiesBefore marriage can take place certain formalities must be fulfilled -

both parties must be over the age of 16; both must be of sound mind; both must be free of any legal disability which would prevent them marrying (for

example if one of the parties is already married to someone else or if the intendingcouple fall within the forbidden degrees of relationship); and

one must be male and the other female.

19 1995 Act, s 11(7B) & 7(C).20 1995Act, s 11(7D).21

See Treasure v McGrath 2006 Fam LR 100.22 1995 Act, ss 12 and 54. 23 1995 Act, s 11(11).


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Prior notice of the intention to marry must be given to the Registrar of Births Deaths andMarriages who will exhibit a public notice of the intended marriage. After the requisiteperiod the marriage may take place, and the ceremony may be either civil or religious.

B.1.2 Consequences of marriage

There is no obligation on the wife to take her husband's family name. The main legalconsequences of marriage are.

(a) Adherence . This simply means that the parties are obliged to live together as husbandand wife.

(b) Aliment . This is an obligation of mutual financial support. It is now the case that,depending on their relative financial positions, the husband has a duty to aliment thewife or vice versa. The obligation exists both while the parties are living together andwhile they are separated; it terminates on divorce.

(c) Property . Historically, Scots law operated a system by which the property of the wifebecame the property of the husband and the wife had effectively no power to dealwith it herself. That situation has now changed and the basic rule is one of separateproperty, that is, that the husband and wife each own their own property. 24 Theprincipal exceptions to this are wedding presents which are intended to be gifts toboth of the spouses, items which are bought jointly with both spouses contributing,and what are described as "household goods". These are defined as:

any goods (including decorative or ornamental goods) kept or used at anytime during the marriage in any matrimonial home for the joint domesticpurposes of the parties to the marriage, other than-

(a) money or securities;(b) any motor car, caravan or other road vehicle;(c) any domestic animal. 25

There are three points worth noting about this. First, it introduces a legal presumption

that the spouses own equal shares in the property affected, this presumption applies inthe absence of agreement between wife and husband (or in the absence of anyagreement that can be proved), it is quite possible for them to agree that a car or a catis jointly owned. 26 Secondly, the presumption applies only to items used for jointdomestic purposes so that anything bought by one spouse for his/her exclusive use orfor use in his/her trade or business is not covered by the presumption. Finally, thepresumption of ownership of equal shares is not overcome simply because the itemwas bought by one spouse alone or the spouses contributed unequally to the purchase.

(d) Succession . Where two people have been living together and one dies, the survivor isin a much better position when it comes to succession if he/she was married to thedeceased. This is true both where the person dies leaving a will (testate succession)and where the person dies without leaving a will (intestate succession). In the formercase the spouse cannot be completely cut out of the estate because he/she has legalrights in the estate which cannot be defeated by a will. The right is to either one third(if the deceased leaves surviving children) or to one half (if there are no survivingchildren) of the moveable estate left after payment of debts etc. (Moveable estate isessentially everything apart from land and buildings). In the case of intestacy, thespouse's rights are described as prior rights and consist of the right to the house he/shewas living in at the time of the death (if owned by the deceased), to the furnishings inthe house and to financial provision out of the estate (there are financial limits, which

24 Family Law (Scotland) Act 1985, s 24.25 Family Law (Scotland) Act 1985, s.25(3).26 Legally the form of ownership involved is common ownership rather than joint ownership.


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need not concern us here, on the value of these rights). After claiming prior rights,the spouse is also entitled to claim his/her legal right to a share of the estate.

B.2 Separation and Divorce

B.2.1 SeparationSeparation may take place simply by agreement with agreement also on financial support. Inother cases a judicial separation may be sought or application made to court to regulatefinancial arrangements between the parties.

B.2.2 Grounds for divorceLegally speaking, there is only one ground for divorce in Scotland: irretrievable breakdownof marriage. This ground was introduced by the Divorce (Scotland) Act 1976 which alsoprovided that this breakdown was to be established by reference largely to the grounds of divorce which existed prior to 1976. Breakdown, therefore, may be evidenced by:

Adultery; Unreasonable behaviour; 1 years non-cohabitation where the defender in the divorce action consents; 27 2 years non-cohabitation where the defender does not consent. 28

Use of these grounds is illustrated in the table above 29

B.2.3 Divorce procedureMost divorces now take place in the sheriff court. As well as specific provisions referringcertain disputes to mediation, there are also provisions for self-service divorces. These aremainly available where the parties agree and there are no children and no disputes overfinancial provision.

B.2.4 Financial provision on divorceThere are two types of financial provision to be considered on divorce - provision for

children and provision for the other spouse. The first of these generally takes the form of acontinuing payment of aliment. In the second case, the statutory guidelines which now existencourage 'clean break' settlements. i.e. settlements where there is no continuing payment toan ex-spouse, rather payment is a lump sum at the time of divorce. In most cases thesefinancial provisions will be agreed between the parties, if not there are statutory rulesgoverning the settlement. As between spouses these essentially involve equal sharing of resources. In arriving at their decision the court has to take into account a number of factorsincluding, for example, any economic advantage obtained by one spouse from thecontributions of the other or any economic disadvantage suffered by one in the interests of

27

Reduced from 2 years by the Family Law (Scotland) Act 2006, s 11(a).28 Reduced from 5 years by the Family Law (Scotland) Act 2006, s 11(b).29 Though see the note on the reliability of these statistics here .

Grounds 1985 2007 2008Adultery 1760 (13%) 131 (1%) 94( < 1%)Behaviour 5020 (38%) 875 (7%) 796 (7%)2 years non-cohabitation 4665 (35%) 946 (7.5%) 916 (8%)5 years non-cohabitation 1791 (13%) 182 (1.5%) 130 (1%)1 years non-cohabitation 3003 (23.5%) 2976 (26%)2 years non-cohabitation 7602 (59.7%) 6324 (55%)
http://www.gro-scotland.gov.uk/statistics/divorces-and-adoptions/points-to-note-on-divorce-statistics/unreliability-of-ground-for-divorce-statistics.htmlhttp://www.gro-scotland.gov.uk/statistics/divorces-and-adoptions/points-to-note-on-divorce-statistics/unreliability-of-ground-for-divorce-statistics.htmlhttp://www.gro-scotland.gov.uk/statistics/divorces-and-adoptions/points-to-note-on-divorce-statistics/unreliability-of-ground-for-divorce-statistics.htmlhttp://www.gro-scotland.gov.uk/statistics/divorces-and-adoptions/points-to-note-on-divorce-statistics/unreliability-of-ground-for-divorce-statistics.html


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the other. This would allow the courts to compensate a wife for giving up her career to allowthe husband to pursue his.

B.2.5 Children in divorceOne matter which has to be resolved, and is usually resolved by agreement, is the residence

of and contact with any children of the marriage. The court must consider whether an order inrelation to parental responsibilities and rights 30 should be made or whether the case of thechild should be referred to the Reporter. The court is also empowered to delay grant of decree of divorce until it is in a position to do one of these two things. The notions of custody and access were replaced, by the 1995 Act, with references to residence orders andcontact orders.

B.3 Civil Partnerships These were introduced by the Civil Partnerships Act 2004, which came into force during2005 and allows same sex couples to formalise their relationship. Before this can take placethe parties must meet certain criteria: they must be aged 16 or over, they must be of the samesex (though this requirement can be fulfilled if one has a gender recognition certificate whichin most cases will mean that that they are recognised as being the other gender from theirbiological birth gender), they must not be within the forbidden degrees of relationship, andthey must be legally free to enter the partnership, i.e. they must not still be married or inanother civil partnership. The ceremony must be preceded, as in the case of marriage, bynotice given to the Registrar, which is then published.

The effect of a civil partnership is to put the couple legally in the same position as husbandand wife, for example:

(a) A partner (including a non-entitled partner) can take advantage of the provisions of the Matrimonial Homes (Family Protection)(Scotland) Act 1981.

(b) Partners have legal rights in succession.(c) There are rights to aliment and to financial provision on dissolution of the partnership.(d) A partner will have the same benefits and pension entitlements as a husband/wife

would have.(e) Discrimination on the grounds that someone has entered a civil partnership is illegal

in the same way that discrimination against people on the grounds that they aremarried is illegal.

The partnership can be dissolved on the same grounds as apply in the case of divorce, with anadditional ground that an interim gender recognition certificate has been granted to one of the

partners. The consequence of this is, of course, that the partners will no longer be legallyregarded as being of the same sex and therefore civil partnership is no longer appropriate.Where dissolution proceedings are started then, as with divorce proceedings, the court must,in cases where it appears that there are real prospects of reconciliation, continue the case toallow efforts to be made to effect a reconciliation.

SECTION C - OCCUPANCY RIGHTS

Under the previous law the only person with a legal right to occupy a home was the personwho was the owner or tenant of the property, or who enjoyed some other permission from the

30 These orders are discussed more fully below.


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owner to occupy it. The difficulty in this was that the ownership or tenancy of the familyhome was usually taken in the name of the husband alone, with the consequence that the wifehad no legally recognised right of occupation. She could therefore be ejected from the familyhome and had no legal power to prevent this or to resume occupation after it had happened.The Matrimonial Homes (Family Protection)(Scotland) Act 1981 provides a partial remedy

for this. It does this by defining the spouse who is the owner or tenant of the family home(referred to in the Act as the matrimonial home) as an 'entitled spouse' and the other spouse asa 'non-entitled spouse', and by granting all non-entitled spouses what is referred to as an'occupancy right' in the family home. 31

The precise content of this occupancy right depends on whether or not the non-entitledspouse is in occupation of the matrimonial home. If she is the right is to remain inoccupation and to have free access to the home: if not the right is to be allowed to enter andoccupy the matrimonial home. Should access be refused or should the non-entitled spouse beexcluded from the home the occupancy right can only be enforced by application to court.

The situation noted above, where the title to the matrimonial home was in the name of onlyone of the spouses is now rarer, it is much commoner now for the title to be taken in thenames of both husband and wife. Where this is the case both have property rights, includingoccupancy rights, in the home regardless of the 1981 Act.

Wherever occupancy rights exist either spouse can apply to court for an order enforcing therights, restricting the occupancy rights of the other spouse, regulating the exercise of the otherspouses occupancy rights, or protecting the occupancy rights of the spouse applying for theorder. Either spouse may also apply for an exclusion order excluding the other spouse fromthe matrimonial home.

The non-entitled spouse will lose the benefit of the occupancy right if he/she has ceasedcohabitation for two years and during that period did not occupy the family home.

C.1 Transfer of TenancyIn the situation where one spouse is the legal tenant of the matrimonial home (and thereforethe entitled spouse), tenant the non-entitled spouse may apply to court for the tenancy to betransferred to them. Before granting such an order the court must consider all thecircumstances 32 of the case and in particular: the conduct of the spouses; the respective needsand resources of the spouses; the needs of any children; 33 the extent of any business use of the home by one of the spouses; and any offer by the entitled spouse to provide

accommodation for the non-entitled spouse.

C.2 Cohabiting CouplesIn the case of a man and a woman living together as if man and wife or a same sex coupeliving together as if they were civil partners there is also the possibility that one has a title to

31 Similar rights apply in the case of civil partnerships, Civil Partnerships Act 2004, s 101. Where an entitledspouse ceases to be entitled, for example because he is ejected from a tenancy, then the non-entitled spouse willlose her occupancy right since this is dependent on the existence of an ent itled spouse, Morgan v Morgan &Kyle & Carrick DC 2000 Hous LR 9032 For example, which of the parties would be the less troublesome neighbour, Soutar v McAuley , Dundee Sh Ct,

31st

March 2010.33 See Guyan v Guyan 2001 Hous LR 99, noting that in balancing the interests of adults and children, childrenhave to come first. In this case the spouse with care of children obtained the tenancy.


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the shared home and the other does not. In such cases the non-entitled partner may apply tocourt for the grant of occupancy rights. This grant may be made for up to six months, but isrenewable for further six month periods. Where such an order is in force or where bothpartners are 'entitled' the provisions set out above in relation to occupancy rights, exclusionorders and transfer of tenancy apply to the non-entitled partner. 34

SECTION D - MEASURES DIRECTED AT DOMESTIC VIOLENCE

As well as providing some protection for non-entitled partners, the 1981 Act also contained anumber of measures directed at providing protection against domestic violence. Theseoriginally extended only to spouses and to cohabitants living as if husband and wife, butsimilar provision is now made in the Civil Partnership Act 2004 for civil partners and forthose living as if they were civil partners.

D.1 Exclusion OrdersA spouse/civil partner/cohabitant holding an order conferring occupancy rights 35 can apply tocourt for an exclusion order suspending the occupancy rights of the other. This can be doneboth where there is an entitled and non-entitled partner and where the title to the property isheld in common and both partners are effectively entitled partners. It is now clear that thepartner applying for the exclusion order need not be in occupation of the matrimonial homewhen the application is made.

There are two requirements to be fulfilled before the court can grant the order. Firstly, theorder must be necessary to protect the applicant or any child of the family from actual orthreatened conduct of the other partner which would be detrimental to their physical ormental health. Secondly, the court must not make an order if it would be unjustified orunreasonable to do so.

D1.1 Need for ProtectionIn the first place making the order must be necessary. The implication is that there must beno other remedy, for example an interdict, 36 which will provide the necessary protection. Onthe other hand it does not mean that an applicant must proceed in stages, first of all seekinginterdict and then, if that is unsuccessful, applying for an exclusion order.

The threat must come from some conduct on the part of the other partner, the provision willtherefore not cover the case where the upset arises simply from the desire of the other partnerto remain in the home despite the break-up of the relationship. Finally it should be noted that

actual physical injury need not have occurred for an order to be granted, similarly, there is noneed for the behaviour to be violent or notably offensive, in one case the conduct wascharacterised as involving imposition of the husbands aspirations for reconciliation in such away as to continuously upset and distress his wife. 37

The courts have formulated four relevant questions to be considered in deciding on this typeof/

34 See Soutar v McAuley , Dundee Sh Ct, 31 st March 2010 for a case involving parties living together as if civilpartners.35 For ease of explanation these will be collectively referred to as partners.36

The behaviour involved may be such that it is difficult to frame an interdict to prevent it, Roberton v Roberton 1999 SLT 38.37 Roberton v Roberton 1999 SLT 38.


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of application. They are:(a) What is the nature and quality of the alleged conduct?(b) Is the court satisfied that the conduct is likely to be repeated if co-habitation

continues?(c) Has the conduct been, or, if repeated would it be, injurious to the physical or mental

health of the applicant spouse or any child of the family?(d) If so, is the order sought necessary for the future protection of the physical or mental

health of the applicant or child? 38

D1.2 Unjustified or UnreasonableIn deciding on whether granting the order would be unjustified or unreasonable the Actdirects the court to consider a number of factors. These include the conduct of the parties, therespective needs and resources of the parties, the needs of any children, and the offer by anentitled partner to make accommodation available to the non-entitled partner. In the specificcase of tied housing where there is a requirement that the non-applicant partner reside therethe courts must consider that requirement and the possible consequences of making anexclusion order in deciding whether or not it is unjustified or unreasonable to make the order.

When the court makes an exclusion order it must also, if requested to do so by the applicant,grant a warrant for the ejection of the other partner from the home and/or an interdictpreventing the other partner from entering the matrimonial home without the permission of the partner applying for the order. The court may also grant an interdict prohibiting the otherpartner from entering or remaining in a specified area in the vicinity of the matrimonialhome.

Pending the grant of a full exclusion order the court may make an interim (temporary) order,this may only be done if the non-applicant partner has been afforded an opportunity of beingheard or represented before the court prior to the order being made.

D.2 InterdictsIn general terms an interdict is an court order ordering an individual to desist from a course of conduct which is causing or is likely to cause injury (whether physical, mental or financial) ordetriment to another. One legal text notes that 'on general principle, interdict is available toprohibit any act which amounts to an invasion, or a threat of invasion, of the legal rights of the party seeking interdict.' Normally breach of the terms of an interdict is a civil matter andwill only be punished if the person who has obtained the interdict takes proceedings to bringthe offender before the court. If this is done the offender can be punished since they are

effectively guilty of contempt of court. Specific provision is made in relation to interdicts incases involving domestic violence, though the terminology varies depending on the nature of the relationship. The ability to apply for an interdict exists even where parties are livingtogether and is such cases does not depend on having or exercising an occupancy right.

The first category are matrimonial interdicts. A matrimonial interdict is one which either:(a) restrains or prohibits any conduct of one spouse towards the other spouse or a child

of the family; or(b) prohibits a spouse from entering or remaining in:

i. a matrimonial home (an interdict to prevent this can only be granted if the personagainst whom it is sought is the subject of an exclusion order excluding them from

38 McCafferty v McCafferty 1986 SLT 650.


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the matrimonial home or where the court has refused leave to exercise occupancyrights);

ii. any other residence occupied by the applicant spouse;iii. any place of work of the applicant spouse;iv. any school attended by a child in the permanent or temporary care of the applicant

spouse.

The court can attach a power of arrest to the interdict which gives the police the power toarrest the person subject to the interdict if there is reasonable cause to suspect that a breach of the interdict has taken place. There are two circumstances in which the power of arrest mustbe attached to a matrimonial interdict:a) where the interdict is ancillary to an exclusion order or interim exclusion order;b) where the non-applicant spouse has had the opportunity of being heard or represented

before the court, and attaching the power of arrest is necessary to protect the applicantfrom a risk of abuse in breach of the interdict.

A matrimonial interdict with a power of arrest attached must be notified to the non-applicantspouse and the Chief Constable.

The power of arrest is to the effect that a constable may arrest if breach of the interdictis suspected and it is considered that there would be a risk of abuse or further abuse if the person breaching the interdict were not arrested. Once the spouse has beenarrested he must be detained until charged with an offence arising from thecircumstances of the arrest. If he is not so charged he must be brought before thesheriff and if the sheriff is satisfied that there is a prima facie breach of interdict, andthat there will, if detention is not ordered, be a substantial risk of abuse or furtherabuse in breach of the interdict he/she may order further detention for up to two days.

Similar provisions to those set out in relation to married couples exist for civilpartners. Where the partners are living together as husband and wife or as civilpartners the interdict is referred to as a domestic interdict and is available on the sameterms as a matrimonial interdict except that an interdict prohibiting entry to the familyhome may only be granted if it is ancillary to an exclusion order or if an ordergranting or extending occupancy rights is recalled.

D.3 Protection from Harassment Act 1997This allows a victim of harassment to claim damages for any injury suffered because of the

harassment or to seek either an interdict or a non-harassment order to prevent futureharassment. Breach of a non-harassment order will be a criminal offence.

D.4 Protection from Abuse (Scotland) Act 2001A person who is applying for, or who has obtained, an interdict for the purpose of protectionagainst abuse may apply to the court for a power of arrest to be attached to the interdict underthis Act. The court must attach a power of arrest to the interdict if satisfied that-(a) the interdicted person has been given an opportunity to be heard by, or represented

before, the court; and(b) attaching the power of arrest is necessary to protect the applicant from a risk of abuse in

breach of the interdict.


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Abuse includes violence, harassment, threatening conduct, and any other conduct giving rise,or likely to give rise, to physical or mental injury, fear, alarm or distress and conduct includesspeech and presence in a specified place or area.

The court must specify a date of expiry for the power which must be not later than three years

after the date when the power is attached. Procedures on breach of an interdict containing apower of arrest are as set out above in relation to matrimonial interdicts.

SECTION E WELFARE OF CHILDREN AND FAMILIES

The statutory provisions considered below are only one part of the picture as far as provisionof services to children and families is concerned. These are now provided against thebackdrop of Getting it Right for Every Child (GIRFEC). This had its genesis in a review of the childrens h earing system, but developed into an approach concerned with all children.There are 10 core components of the GIRFEC approach, set out in the box below. Inaddition, the approach identifies a number of objectives for children, which are for them to besuccessful learners, confident individuals, effective contributors and responsible citizens.

The Core Components of GIRFEC

A focus on improving outcomes for children, young people and their families basedon a shared understanding of well-being

A common approach to gaining consent and to sharing information where appropriate An integral role for children, young people and families in assessment, planning and

intervention A co-ordinated and unified approach to identifying concerns, assessing needs,

agreeing actions and outcomes, based on the Well-being Indicators Streamlined planning, assessment and decision-making processes that lead to the right

help at the right time Consistent high standards of co-operation, joint working and communication where

more than one agency needs to be involved, locally and across Scotland A Lead Professional to co-ordinate and monitor multi-agency activity where

necessary Maximising the skilled workforce within universal services to address needs and risks

at the earliest possible time A confident and competent workforce across all services for children, young people

and their families The capacity to share demographic, assessment, and planning information

electronically within and across agency boundaries through the national eCareprogramme where appropriate

The approach is based on progressive support for children and families based on anassessment of their needs against these outcomes. The support starts with the basic supportprovided by universal services such as education and health and moves on up in a spiral fromthere. This is represented in the material prepared as part of GIRFEC in the graphicreproduced as Figure 1 below, s tarting in the centre with normal support and moving out to


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more intensive support. In a slide show 39 setting out GIRFEC it is noted that: In GIRFECthere are no thresholds - but depending on need, action should be taken .

Figure 1 Figure 2

Assessment under GIRFEC makes use of a number of tools, including the well-beingindicators, i.e. the extent to which the child is safe, healthy, achieving, nurtured, active,respected, responsible and included (see Figure 2) and the My World Triangle (Figure 3).There is also guidance on producing a childrens or young persons plan. 40

39 Available here . 40 Available here .

Figure 3
http://www.scotland.gov.uk/Topics/People/Young-People/childrensservices/girfec/Practitioners/ToolsResources/GIRFECMay09http://www.scotland.gov.uk/Topics/People/Young-People/childrensservices/girfec/Practitioners/ToolsResources/GIRFECMay09http://www.scotland.gov.uk/Topics/People/Young-People/childrensservices/girfec/Practitioners/ToolsResources/GIRFECMay09http://www.scotland.gov.uk/Publications/2007/01/22142141/0http://www.scotland.gov.uk/Publications/2007/01/22142141/0http://www.scotland.gov.uk/Publications/2007/01/22142141/0http://www.scotland.gov.uk/Publications/2007/01/22142141/0http://www.scotland.gov.uk/Topics/People/Young-People/childrensservices/girfec/Practitioners/ToolsResources/GIRFECMay09


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The Children (Scotland) Act 1995 made important changes in the field of child care, althoughsome of the law is similar to, if not identical with, that which was in place before April 1997.The legislation is supplemented by three volumes of guidance, which is in the process of being revised: The Children (Scotland) Act 1995 Guidance and Regulations . Volume 1 dealswith support and protection for children and families, volume 2 with children being looked

after, and volume 3 with adoption and parental responsibilities orders. In addition there are anumber of Statutory Instruments which are relevant, the main one being the Looked AfterChildren (Scotland) Regulations 2009.

As well as duties under the 1995 Act, local authorities may have a duty to provide services tochildren under legislation which applies to both adults and children, the main examples of this are the Mental Health (Care and Treatment)(Scotland) Act 2003 and the Chronically Sick and Disabled Persons Act 1970.

E.1 Services for ChildrenThe 1995 Act adds to the overall obligation on local authorities to promote social welfareunder section 12 of the 1968 Act. The authority must produce a plan for services for childrenand must publish information about the services it provides. More specifically it has a dutyto promote the welfare of children in need by providing services to them.

E.1.1 The duty to promote welfareUnder section 22(1) of the 1995 Act the local authority has a duty is to provide services tosafeguard and promote the welfare of children in need and, as far as consistent with this, topromote the upbringing of children by their families. The services which are to be providedencompass not only those provided by the social work department, but any services providedby the local authority, e.g. housing and education.

The definitions in the box below of the terms used in setting out this duty clarify what itinvolves

In providing services the authority is bound to take into account the religious persuasion,racial origin and cultural and language background of the child. 41 Services can be provided

41 1995 Act, s 22(2).

Definitions

Child = a child under the age of 18.

in need = in need of care and attention because either:i the child is unlikely to achieve or maintain or have the

opportunity to achieve or maintain a reasonable standard of

health and development unless services are provided;iiii the childs health or development is likely to be significantly

impaired or further impaired unless services are provided;iii the child is disabled;iv the child is adversely affected by the disability of another

member of his/her family.

disabled = chronically sick or disabled or suffering from a mental disorder.


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directly for or to the child or, provided the objective is to safeguard and promote the welfareof the child, to the family as a whole or to any other member of the family. Services caninclude assistance in cash or in kind. 42 In addition, it is possible for the authority to makepayments under self-directed support to the child (if old enough) or to the child s family, butthese can only cover services under section 22(1) of the 1995 Act. 43

Although looked at as a whole section 22 might appear to impose a clear duty on localauthorities which could be owed to specific, individual, children in need and which wouldgive rise to an enforceable right enjoyed by such children, this is not the view the courts havetaken. The only Scottish case is Crossan v South Lanarkshire Council 44 which will bediscussed in class.

E.1.2 Assessment Although the original legislation says little or nothing about assessment, it is clear from theguidance which accompanied the original implementation of the 1995 Act that children whomay be in need must be assessed to establish what needs they might have and whether it isnecessary for the local authority to provide services to the child and/or the child's family.The point is made in the guidance that the assessment necessary, in terms of scope and depthwill differ as between different children, notes that where assessments are being carried outfor different purposes they should as far as possible be combined, and recommends theguidance on community care assessments as a model. In the process of assessment the localauthority has considerable discretion and it is clear that the resources available to theauthority are a relevant factor both in the assessment of needs and in the decision as toprovision of services. It should be noted that the definitions of need etc set out above leaveconsiderable scope for discretion.

Guidance now suggests that the purpose of the assessment is the production of a child's oryoung persons plan. 45 There should be such a plan [w]henever a child or young person,family or professional thinks a plan would help to identify and meet needs. Creation of sucha plan will require some degree of assessment. The assessment should take place in thecontext of the tools provided under the GIRFEC approach.

The nature and complexity of the assessment will depend on the nature and complexity of thechilds needs, as will the number of agencies involved in the assessment. I n some cases asimple, brief assessment carried out by the social work department will be all that is required,in other cases those involved with the childs health and education will also need toparticipate and the process of assessment will be more complex. The creation of the plan willrequire a contribution from all agencies involved with the child as well as from the child andfrom his/her family. 46 The information to be recorded in the plan should include: concerns ormatters to be tackled; partners to the childs or young persons plan; summary of analysis of the childs or young persons circumstances; desired outcomes and milestones for achievement; what should be done to improve a childs circumstances; agreed action to betaken; resources to be provided; contingency plans; monitoring, review and lead professionalarrangements; childs or young persons view (and those of parents/carers): and, any

42 1995 Act s 22(3).43 Scottish Government, National guidance on self-directed support (2007), Section 12.44 [2006] CSOH 28.

45 Scottish Executive, Guidance on the Childs or Young Persons Plan , 2007.46 It should be noted that quite apart from guidance it is clear that parents have a right to be involved in meetingswhere decisions are taken about their children by virtue of Art 8 of the European Convention on Human Rights.


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compulsory measures considered to be necessary.

E.1.3 Children affected by disabilityLocal authority duties towards children affected by disability are contained in section 23 of the 1995, set out in the box below.

Essentially the duties are to carry out an assessment of a child affected by disability (note thatthe disability may not be the child's, he/she might be affected by disability of a carer) onrequest of the child's carer, to provide services to minimise the effect of the disability and toallow the child to live a life which is as normal as possible. Although the Act gives the right

(1) Without prejudice to the generality of subsection (1) of section 22 of this Act, servicesprovided by a local authority under that subsection shall be designed

(a) to minimise the effect on any (i) disabled child who is within the authority's area, of his disability; and(ii) child who is within that area and is affected adversely by the disabilityof any other person in his family, of that other person's disability; and

(b) to give those children the opportunity to lead lives which are as normal aspossible.

(2) For the purposes of this Chapter of this Part a person is disabled if he is chronically

sick or disabled or has a mental disorder (as defined in section 328(1) of the MentalHealth (Care and Treatment) (Scotland) Act 2003 (asp 13)).

(3) Where requested to do so by (a) a child's parent or guardian; or(b) a mental health officer (as defined in section 329 of the Mental Health (Careand Treatment) (Scotland) Act 2003 (asp 13)) who

(i) has responsibility under that Act or the Criminal Procedure (Scotland)Act 1995 (c.46) for a child's case; and(ii) makes the request for the purposes of either of those Acts,

a local authority shall, for the purpose of facilitating the discharge of such duties as theauthority may have under section 22(1) of this Act (whether or not by virtue of subsection(1) above) as respects the child, carry out an assessment of the child, or of any otherperson in the child's family, to determine the needs of the child, or of any other person inthe child's family, to determine the needs of the child in so far as attributable to hisdisability or to that of the other person.

(4) In determining the needs of a child under subsection (3) above, the local authorityshall take account

(a) where it appears to them that a person (the carer) provides a substantialamount of care on a regular basis for the child, or for another person in the child'sfamily who is being assessed under that subsection, of such care as is being soprovided; and(b) in so far as it is reasonable and practicable to do so, of

(i) the views of the parent or guardian of the child, and the child; and(ii) the views of the carer,

provided that the parent, guardian, child or carer in question has a wish, or as the casemay be, a capacity, to express a view.


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to require an assessment only to the carer, the guidance indicates that requests from childrenshould be complied with.

In terms of section 24of the 1995 Act, the child's carer 47 has a right to request (and must beinformed about this right 48) an assessment of his her ability to continue to provide care for the

child and this assessment must then be taken into account in any decision about provision of services for the child.

One of the difficulties with the provisions relating to children affected by disabilities is thatthey interact with a number of other pieces of legislation in ways which are not entirely clear.The most important piece of legislation is the Chronically Sick and Disabled Persons Act1970, particularly section 2 (below). The important point about this piece of legislation isthat it has been decided by the courts that the role of discretion is less in cases where theservices set out in section 2 are concerned. This section involves three stages of decisionmaking: does the child have needs? - resources and other factors can be taken into account intaking this decision; do the needs call for the provision of one of the listed services? -resources are also relevant here; if the answer to both of these questions is yes then the localauthority must provide the service and cannot use lack of resources as an excuse for non-provision. The result is that in some cases a service user will have an enforceable right to aparticular service. This can be distinguished from the position regarding services providedunder section 22 of the 1995 Act to children affected by disability. 49 Chronically Sick and Disabled Persons Act 1970, s 2 Where a local authority having duties to chronically sick and disabled persons (being persons in need)in terms of section 12 of the Social Work (Scotland) Act 1968 [duties to disabled children (within themeaning of Chapter 1 of Part II of the Children (Scotland) Act 1995)] are satisfied in the case of anyperson to whom that section applies that it is necessary in order to meet the needs of that person forthat authority to make arrangements for all or any of the following matters, namely -(a) the provision of practical assistance for that person in his home;(b) the provision for that person of, or assistance to that person in obtaining, wireless, television,

library or similar recreational facilities;(c) the provision for that person of lectures, games, outings or other recreational facilities outside

his home or assistance to that person in taking advantage of educational facilities available tohim;

(d) the provision for that person of facilities for, or assistance in, travelling to and from his homefor the purpose of participating in any services provided under arrangements made by theauthority under section 12 or, with the approval of the authority, in any services otherwisethan aforesaid which are similar to services which could be provided under sucharrangements;

(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure hisgreater safety, comfort or convenience;

(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise andwhether provided under arrangements made by the authority or otherwise;

(g) the provision of meals for that person whether in his home or elsewhere;(h) the provision for that person of , or assistance to that person in obtaining, a telephone and any

special equipment necessary to enable him to use a telephone,then, subject to the provisions of section 5 of the Social Work (Scotland) Act 1968, it shall be the dutyof the local authority to make those arrangements under section 12 of the Social Work (Scotland) Act1968 [section 23(1) of the Children (Scotland) Act 1995].

47

Unless the care is provided under a contract of employment or as a volunteer.48 1995 Act, s 24A.49 See Crossan v South Lanarkshire Council [2006] CSOH 28.


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E.1.4 Day care servicesLocal authorities are obliged to provide such services for children in need, and may providethem for other children

E.2 Provision of Accommodation

Local authorities have a duty to provide accommodation to children fulfilling the criteria setout in section 25 of the 1995 Act, i.e., where there is no-one with parental responsibility forthe child; where the child is lost/abandoned; or where the child's normal carer is unable toprovide the child with suitable accommodation or care either temporarily or permanently.This last criterion has been interpreted widely by the courts in England and Wales, taking theview that the carer will be unable to provide suitable accommodation, for example, where thechilds carer is seriously ill or unable to control the child, the child has assaulted her/his carer or where the child is not prepared to be accommodated by the carer. 50

Before providing accommodation the authority must have regard to the views of the child, if she/he wishes to express a view, taking into account the childs age and maturity, 51 and as faras having regard to the childs views is practicable. There is no requirement to comply withor follow the views expressed by the child and in the English courts there has been somediscussion about whether a child aged 16 or over can be forced to accept accommodation, theprevailing view appears to be that she/he cannot. 52

Local authorities also have the power under section 25 of the 1995 Act to provideaccommodation to any other child and to anyone between 18 and 21.

Any person holding parental responsibilities and certain parental rights in respect of the child(at least the rights of residence and guidance) can remove the child from the accommodationprovided by the local authority at any time, provided that they are willing and able to provideaccommodation for the child and that, where the child has been accommodated for more than6 months, 14 days notice of the intention to take the child away is given. Should the localauthority feel that it is inappropriate for the child to be taken away they may be able to useemergency child protection procedures or to make use of section 5 of the Act (see above).

SECTION F - CHILDREN LOOKED AFTER BY THE LOCAL AUTHORITY

F.1 When is a child looked after?A child will be looked after if he or she is:

(a) being provided with accommodation under section 25 of the 1995 Act, and this

accommodation has been provided for at least 24 hours;(b) subject to a supervision requirement, even if they are staying at home;(c) subject to a variety of authorisations or warrants, for example, a child protection

order, child assessment order, warrant for apprehension and/or detention issued by ahearing or sheriff court under the 1995 Act, providing the order imposesresponsibilities on the local authority;

(d) the subject of a permanence order made in respect of her/him;or(e) subject to an order made elsewhere in the UK under which the local authority has

responsibility for her/him, e.g. a care order made in England or Wales.

50

See, for example, R(L) v Nottinghamshire CC [2007] EWHC 2364 (Admin)51 Children aged 12 or over are deemed to have sufficient maturity to express a view.52 R(G) v London Borough of Southwark [2009] UKHL 29.


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F.2 Duties towards looked after children.Specific local authority duties towards looked after children are set out in section 17 of the1995 Act, supplemented by regulations: 53

(a) The local authority must treat as its paramount concern safeguarding and promotingthe welfare of the looked after child, this includes a duty to provide assistance to the

child to prepare him for when he is no longer looked after.54

(b) To make use of such services available for children cared for by their parents as

appears to be reasonable.(c) To promote personal relations and direct contact between the child and anyone having

parental responsibilities for him. 55 (d) In taking decisions the views of a prescribed range of people must, as far as

reasonably practicable, be obtained and had regard to. 56 (e) The childs religious persuasion, racial origin, and cultural and linguistic background

must be taken into account. 57

The local authority is not always bound by these duties and can exercise its powers in relationto a looked after child inconsistently with them in cases where it considers it necessary to doso in order to protect members of the public from serious physical or other harm 9.58

F.3 Assessment and production of the child s plan.A local authority must obtain certain information about and then carry out an assessment of any child who is about to be or who becomes looked after. 59 The assessment is then to beused as the basis for preparing a care plan (the childs plan) for the child. 60 Detailedrequirements are set out in the Looked After Children (Scotland) Regulations 2009 (LACRegs) for assessment and for the plan, supplemented by guidance which is in the process of revision. C hildrens and young persons plans will provide a format for these care plans,although the regulations also specify that the plan must contain certain information.

In preparing the plan the local authority must, as far as reasonably practicable, obtain certaininformation set out in Schedule 1 (see box below). In addition the authority must obtain awritten assessment of the childs health and of her/his need for healthcare.

53 Looked After Children (Scotland) Regulations 2009, SSI 2009/210 (LAC Regs).54 1995 Act, s 17(2).55 This obligation is also likely to be implied by Art 8 of the European Convention on Human Rights.56 1995 Act, s 17(3) & (4). Those who have to be consulted are the child, the childs parents, anyone other thana parent who holds parental rights in respect of the child, and anyone else whose views the authority consider tobe relevant to taking the decision, for example a sibling.57 1995 Act, s 17(4)(c).58

19965 Act, s 17(5).59 LAC Regs, regs 3 & 4.60 LAC Regs, reg 5.


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Information to be obtained by the local authority in respect of a child to be orbeing looked after by them1. Name, sex, date and place of birth and present address of the child, their parents and anyrelevant person.2. Nationality, race, religion and language.3. Physical description.4. Present legal status of the child, including any statutory responsibility the local authorityhas for the child.5. Why consideration is to be given to the child being looked after by the local authority.6. Previous history of involvement of the child with any local authority or other relevantorganisation.7. Details of any brothers and sisters, including their dates of birth, addresses and any detailsin respect of their being looked after by a local authority.8. The extent of contact with members of the childs family and any other significant personwho does not live in the same household as the child.

9. Th e childs health history, current state of health and development and existingarrangements for their medical and dental care.10. The childs education history and current arrangements for provision of education. 11. Personality and social development.12. Interests and recreational activities.

After the information has been obtained the local authority must carry out an assessment of the child. What the assessment is to cover for all children is set out in regulation 4 of theLAC Regs and in the box below. In making the assessment the local authority must seek andtake account of the views of:

(a) the child;(b) the childs parents; (c) anyone else with parental responsibilities/rights in relation to the child; and(d) anyone else the local authority considers to be appropriate.

Where the child is to be placed away from home a number of additional matters must formpart of the assessment:

(a) there must be an assessment of contact arrangements with the childs family andothers and whether changes need to be made to them;

(b) where the placement will be in a residential establishment there must be anassessment whether that placement is appropriate;

(c) where more than one child is to be looked after, the assessment must take into accountthe need to ensure, where this is practicable and appropriate, that they are placedtogether or, at least, close together.


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Matters to be covered in assessment of child

(a) the childs immediate needs and how those needs can be met; (b) the childs long term needs and how those needs can be met; (c) proposals for safeguarding and promoting the childs welfare; (d) proposals for making sustainable and long term arrangements for the care of the child;(e) the nature of the services proposed for the child in the immediate and long term with

particular regard to the information specified in Schedule 1;(f) alternative courses of action including the possibility of making an arrangement in

accordance with regulation 8 or approving a person as a kinship carer;(g) whether the local authority should seek a change in the c hilds legal status; (h) the arrangements which require to be made for the time when the child will no longer be

looked after by the local authority;(i) the existing health arrangements for the child and whether there is a need to change such

arrangements taking into account the information specified in paragraph 9 of Schedule1;

(j) having regard to the information specified in paragraph 10 of Schedule 1, the childseducational needs, the proposals for meeting those needs, and the proposals forachieving continui ty in the childs education;

(k) the childs religious persuasion and the need for the child to continue to be brought up inaccordance with their religious persuasion; and

(l) any other matter relating to the welfare of the child either in the immediate or long termas appears to the local authority to be relevant.

F.4 The child s plan.After completing the assessment the local authority then has to produce a care plan for thechild (childs plan). In preparing this plan it must consult, so far as reasonably practicableand consistent with the interests of the child with:

(a) the child, taking account of his age and maturity;(b) the childs parents; (c) anyone with (or who has had, to the knowledge of the authority) parental

responsibilities or rights in respect of the child;(d) anyone who has, or who the authority is aware has had, charge of or control over the

child; and(e) anyone else the authority considers appropriate.

The plan as finally formulated must include the matters required by the LAC Regs and set outin the box below:

Once the plan is agreed a copy must be provided to the child if, having regard to his age andmaturity, the authority considers that he is capable of understanding the meaning and effectof the plan. A copy must normally also be provided to th e childs parent and to any personwith parental responsibilities or rights in respect of the child, though this will not apply if theauthority is of the view that, taking into account its duties towards looked after children andthe terms of any order warrant or authorisation affecting the child, it would not be in thechilds best interests for a copy of the childs plan to be given to someone in one of theseclasses.


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F.5 Arrangements for the Care of Looked After Children

F.5.1 Introduction.Looked after children can be accommodated in a variety of settings. In some cases the settingwill be regulated by the terms of a supervision requirement made by a childrens hearing inrespect of the child 1. Where a placement is made by a childrens hearing, that placement willnot be subject to the arrangements and regulations discussed here. Otherwise, arrangements

will have to be made by a local authority to arrange for the care of children who are lookedafter and this can be done by arranging foster care, kinship care and residential care. In some

Contents of the childs plan

The childs plan must include (a) The assessments and the findings flowing from this;(b) Arrangements concerning the matters specified in Part I of Schedule 2, i.e.

a. The local authoritys immedia te and longer-term plans for the child.b. Details of any services to be provided to meet the care, education and health

needs of the child.c. The respective responsibilities of

i. the local authority;ii. the child;

iii. any person with parental responsibilities for the child;iv. any foster carer or kinship carer of the child;v. the designated manager of that establishment who is responsible for the

care of the child whilst in that establishment where the child has beenplaced in a residential establishment; and

vi. any other relevant person.(c) In each case where the local authority are considering placing or have placed the

child with a kinship carer, with a foster carer or in a residential establishmentarrangements concerning the matters specified in Part II of Schedule 2, i.e.

a. The type of accommodation to be provided and its address together with thename of any person who will be responsible for the child at thataccommodation on behalf of the local authority.

b. The contribution the childs parents or any other person will ma ke to thechilds day to day care.

c. The arrangements for involving those persons and the child in decision

making.d. The arrangements for contact between the child and any of the categories of persons mentioned in section 17(3)(b) to (d) of the 1995 Act and, if appropriate, the reasons why contact with such a person would not bereasonably practicable or would be inconsistent with the childs welfare.

e. The expected duration of arrangements and the steps which should be takenin bringing the arrangements to an end including arrangements for the returnof the child to their parents or other suitable person.

(d) The nature of services proposed for any person to ensure the arrangementsconcerning the matters specified in Part I or II of Schedule 2 are met;

(e) The health assessment referred of the child referred to above.


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cases, authorities will have to find accommodation in an emergency, for example if a child isremoved from home on a child protection order. Below we will consider the specific rulesapplying to each type of care, considering general requirements applying to more than one of them at the end.

One general restriction is that placements are subject to the terms of any supervisionrequirement made by a childrens hearing, any order, authorisa tion or warrant granted underPart II, Chapters 2, 3 and 4 of the Children Scotland Act 1995, and any permanence order.The main warrants, orders and authorisations are warrants issued by a childrens hearing toobtain the attendance of a child, child protection authorisations and orders, child assessmentorders, warrants to keep a child when a hearing is unable to determine his case, exclusionorders and parental responsibilities orders. In addition, the authority may not return the childto anyone from whose care he or she was removed by virtue of any order, authorisation orwarrant.

F.5.2 Care by parents.A looked after child can be cared for by her or his parents or by someone having parentalrights and responsibilities in relation to him 61 unless he or she is being provided withaccommodation under section 25 of the 1995 Act, at least as long as the conditions givingrise to the local authority duty to accommodate continue to exist. 62

F.5.3 Kinship care.Kinship care provides a mechanism for the appointment of someone known to the child orwho is a member of his family to care for him without involving the full approval processrequired to approve foster carers. The two classes of individual who can be approved in thisway are those who are related to the child by blood, marriage or civil partnership or thosewho are known to the child and with whom the child has a pre-existing relationship. 63

In order to approve such an individual as a kinship carer the local authority must first, as faras reasonably practicable, obtain specified information about him, including full personaldetails, details of those in his household, his religious persuasion and ability to care for achild of any particular religious persuasion, racial origin or cultural or linguistic background,his capacity to care for his own other children, his motivation and references. 64 On the basisof this information the local authority then has to carry out an assessment of the suitability of the individual to care for a child and decide whether to approve him as a kinship carer. 65 Approval will be as a kinship carer for a specific child.

Before making a placement with an approved kinship carer the local authority must besatisfied that: 66 (a) the placement is in the best interests of the child;(b) the placement of the child with the particular kinship carer is in the best interests of

the child:(c) the kinship carer is a suitable person to care for the child, based on the local

authorities assessment of him;

61 LAC Regs, reg 8(1).62 LAC Regs, reg 8(2).63 LAC Regs, reg 10(1) & (2).64

LAC Regs, reg 10(3)(b).65 LAC Regs, reg 10(3)(b).66 LAC Regs, reg 11(2)


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(d) the local authority has taken into account all the information available to it which isrelevant to performing its duties towards looked after children;

(e) the kinship carer has entered into a kinship carer agreement with the local authorityregulating his relationship with the authority; and

(f) the kinship carer has entered into a kinship placement agreement with the local

authority, setting out the responsibilities of the carer and the local authority in respectof the particular placement.

Kinship care is also governed by regulations as to notification, review, short-termplacements, termination and records considered below. Allowances are to be paid by the localauthority to kinship carers. 67

F.5.4 Foster care:

F.5.4.1 Fostering panels. 68 Fostering panels carry out various functions in relation to arrangements for children to becared for by foster carers. The functions of the fostering panel include consideration of thecase of every foster carer and proposed foster carer referred to it by the local authority. 69 Itmust also make recommendations on:

(a) whether a prospective foster carer is, or existing foster carers continue to be, suitableto be foster carers;

(b) the suitability of a prospective foster carer for a particular child, any child, or certaincategories of child;

(c) the maximum number of children a particular foster carer may have in his home atany one time.

The panel also has other functions noted in passing below.

F5.4.2 Approval and review of foster carers.Approval as a foster carer will only be given after an investigation by the local authority andafter consideration of the prospective foster carers by the fostering panel. The panel will thenmake a recommendation to the local authority, though the final decision on the prospectivecarer is made by the local authority. 70 In making the decision that a prospective foster carer issuitable to be approved as a foster carer the local authority must be satisfied that he has beeninterviewed by or on behalf of the authority and that he is a suitable person with whom toplace a child or children.

Approval may be restricted to a particular child or children, or to certain categories of children (for example those over a certain age), or it may be unrestricted, approving the fostercarer for all children. 71 It may also limit the number of children which a foster carer may havein his home at any one time.

Once a foster carer is approved, he or she must enter into a foster carer agreement with thelocal authority which will cover the support, including financial support, and training to be

67 LAC Regs, reg 33.68 LAC Regs. regs 18 to 20.69

Prospective foster carers must be given the opportunity to meet the panel70 LAC Regs, reg 22.71 LAC Regs, reg 22.


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given by the local authority, complaints procedures, procedures for placement, confidentialityobligations and the foster carers obligation not to use corporal punishment on any child. 72

After approval the foster carers suitability must be reviewed, initially within twelv e monthsof approval and then at least every three years.

Anyone approved as a foster carer can seek a review of the terms of that approval. Reviewcan also be requested of a decision not to approve a person as a foster carer, to vary the termsof an approval after review or to terminate approval after review. Where review of a decisionis sought the case must be referred to a fostering panel which is constituted differently fromthe panel involved in the original decision. Once the panel has made a recommendation thelocal authority must take a decision, and there is no further review of this decision providedfor in the regulations.

F.5.4.3 Foster care: arranging a placement.A child can only be placed in foster care with an approved foster carer and proposedplacements will be considered by the fostering panel. Before making an individual placementthe local authority must be satisfied that: 73 (a) the placement is in the best interests of the child;(b) the placement of the child with the particular foster carer is in the best interests of the

child:(c) it has taken into account all the information available to it which is relevant to

performing its duties towards looked after children;(d) it has given full consideration to the possibility of arranging for the child to be care for

by his parents or by a kinship carer(e) the foster carer has entered into a foster carer agreement with the local authority

regulating their relationship with the authority;(f) the foster carer has entered into a foster placement agreement with the local authority,

setting out the responsibilities of the carer and the local authority in respect of theparticular placement; and

(g) the terms of the foster carers approval are consistent with the placement.

Once a placement has been made with a foster carer it will be subject to regulations as tonotification, review, short-term placements, termination and records considered below.

F5.5 Residential care.An alternative to foster care is placement in a residential setting. A decision to place a child

in a residential establishment will be the result of the assessment and planning processdescribed above, although separate regulations, which impose specific duties, continue toregulate some aspects of residential care. 74 The managers of the residential establishmentmust ensure that the child:(a) receives an efficient and adequate education;(b) is, as far as possible, able to attend such religious services and religious instruction as

might be appropriate(c) is able to maintain hygiene; and(d) receives medical treatment is available

72 LAC Regs, reg 24 & Sch 6.73

LAC Regs, reg 27(2).74 Residential Establishments Child Care (Scotland) Regulations 1996, SI 1996/3256; SecureAccommodation (Scotland) Regulations 1996, SI 1996/3255.


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F5.6 Emergency placements: not involving a residential establishment.In some cases it will not be possible for a placement to be planned and accommodation willhave to be found for a child in an emergency.

Local authorities have the power to make an emergency placement of a child for a period of up to three working days. 75 This can involve the child being looked after by an approvedfoster carer, someone who is approved as a kinship carer in relation to the child, or anyperson who is known to and who has a pre-existing relationship with the child. Before theplacement is made, the authority must be satisfied that an emergency placement is the mostsuitable way of meeting the childs needs and obtain the written agreement of the carer tocomply with certain duties, which include a duty to care for the child as if she or he were amember of the carers own family and in a safe and appropriate manner, to allow visiting bythe local authority or someone authorised by the authority, to allow the child to be removed if the placement is terminated, to keep information obtained in their role as a carer confidential,and to allow contact with the childs family. The carer must be provided with informationabout the childs background and health and em otional development.

A review of the childs case must be held within three days of the placement to determinewhether it continues to be in the best interests of the child. After the review the localauthority may conclude that the placement is no longer in the interests of the child, in whichcase alternative arrangements will be required or it might be the case that the emergency haspassed. On the other hand, if the conclusion is that the placement continues to be in the bestinterests of the child it can allow the placement to continue for a further period of up totwelve weeks from the end of the original three day period, with a further review within sixweeks of that date. If it does this it must then, unless this has already been done, carry out afull assessment and prepare a childs plan for the child.

An emergency placement cannot be continued beyond this twelve-week period unless itbecomes, effectively, either a kinship care placement or a foster care placement, havingfollowed the procedures which require to be followed for such placements. Where theoriginal placement is not with an approved carer, but is with someone known to the child andwho has a pre-existing relationship with him, the alternative is for the person to be approvedas a kinship carer for the child and for the procedure involved in making arrangements forkinship care to be carried out.

F5.7 Emergency placements: residential establishments .76

An emergency placement, for up to three days, can be made in a residential establishment.Before making such a placement the local authority must be satisfied that it is the mostsuitable way of meeting the childs needs, and it must have given full consideration to thepossibility of other forms of emergency placement.

Any emergency residential placement must be reviewed within three working days. If thereview concludes that the placement continues to be in the childs best interests , then thechild will continue in the placement. The local authority must then, if this has not alreadybeen done, carry out a full assessment and prepare a childs plan for the child, supply the

75 LAC Regs, reg 36(1).76 LAC Regs, regs 37 & 41.


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interests 1. Anyone who received notification of the placement being made must be notified of its termination 2.

SECTION G - AFTERCARE 83

G.1 Powers and dutiesLocal authorities have certain powers and duties to provide assistance to young people whohave been looked after by them. In order to qualify, the young person must have been lookedafter on his/her 16 th birthday or later and must no longer be looked after. The duty is toprovide guidance and assistance (including financial assistance) to people between the agesof 16 and 19 unless the local authority is satisfied that the guidance or assistance is notneeded for the welfare of the person involved.

The powers are:(a) to provide guidance and assistance (including financial assistance) if asked to do so

by someone aged between 19 and 21;(b) to provide financial support to people aged 16-21 to help with education, training or

employment costs or with accommodation/maintenance associated with theeducation/training/employment. The authority can continue to provide support pastthe 21 st birthday of the person concerned if their education/training continues.

Under recent regulations local authorities have more specific duties towards children andyoung people who are either about to stop being looked after or have been looked after untilfairly recently.

G.2 Who is covered?The regulations ident

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