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Publication - Publication

Children looked after by local authorities: legal framework

Published: 14 Sep 2006
Directorate:
Children and Families Directorate
Part of:
Children and families, Education
ISBN:
1905501110

This report describes key aspects of the law as it applies throughout a child's journey through public care and supervision.

132 page PDF

365.6 kB

132 page PDF

365.6 kB

Contents
Children looked after by local authorities: legal framework
Footnotes for Becoming looked after

132 page PDF

365.6 kB

Footnotes for Becoming looked after

1 Christine Piper (2000) 'Assumptions about children's best interests' Journal of Social Welfare and Family Law 22(2); Norrie (1999) 10.09-10.10

2 C(S)A 1995, s16 and s17(1)(a)

3 C(S)A 1995, s2(2) and s22(1)(b)

4 Children (Scotland) Act 1995 Regulations and Guidance Support and Protection for Children and their Families pvii

5 Brixey v Lynas 1994 SLT 847; J v C [1970] AC 668

6 Norrie (1999), 10.19-23, 10.15

7 Norrie (1999), 10.17; Osborne v Matthan 1998 SLT 1264

8 C(S)A 1995, s1(1)(c)

9 Children (Scotland) Act 1995 Regulations and Guidance Support and Protection for Children and their Families pvii

10 C(S)A 1995, s22(1)(b)

11 Millham, S, Bullock, R, Hosie, K and Little, M (1986) Lost in Care: The Problems of Maintaining Links between Children in Care and their Families (Gower, Aldershot): DHSS research study, quoted in Ball (1998)

12 Johansen v Norway Application no: 00017383/90, 07.08.1996, paragraph 64; 1997 23 EHRR 33

13 Amendment to child care legislation in 1983 required local authorities to notify parents of any intention to terminate contact with their child in care and enabled parents to apply to a court for an access order, see Ball (1998)

14 Piper (2000) p 264

15 The Scottish Executive (2002) Growing Support; A Review of Support to Vulnerable Families with Young Children, Chapter 3, paragraph 72 and The Scottish Executive (2002) Its Everyone's Job to Make Sure I'm Alright; Chapter 3, paragraph 3.34

16 C(S)A 1995, s17(4)(c)

17 ECHR, Article 14

18 The Scottish Executive (2002) Growing Support, Chapter 1, paragraphs 17-19; Chapter 2, paragraph 20 and The Scottish Executive (2002) Its Everyone's Job to Make Sure I'm Alright Chapter 2, paragraph 2.3, Chapter 7, paragraphs 7.54-7.55

19 Children (Scotland) Act 1995 Regulations and Guidance Volume 2: Children Looked After by Local Authorities, Chapter 3, paragraph 83, p 62

20 Social Work Services Inspectorate (1998) Valuing Diversity: Having Regard to the Racial, Religious, Cultural and Linguistic Needs of Scotland's Children The Scottish Office

21 Children Act 1989, section 22(1) and Children Order (Northern Ireland) 1995, section 25(1); both define children looked after as children in the care of the local authority or provided with accommodation by the local authority

22 McGhee, J and Francis J 'Protecting children in Scotland: examining the impact of the Children (Scotland) Act 1995' Child and Family Social Work 2003 (8) p140

23 C(S)A 1995, s25(6)

24 C(S)A 1995, s25(1)

25 C(S)A 1995, s25(2)

26 C(S)A 1995, s25(7)(a)

27 C(S)A 1995, s25(3)

28 C(S)A 1995, s25(6)

29 C(S)A 1995, s25(7)

30 C(S)A 1995, s17(6)

31 The Children (Reciprocal Enforcement of Prescribed Orders etc. (England and Wales and Northern Ireland)) (Scotland) Regulations 1996

32 Norrie (1995) 36-49

33 C(S)A 1995, section 71(1)

34 Audit Scotland (2002) Dealing with offending by young people: performance audit

35 C(S)A 1995, section 71(2)

36 children's hearings (Transmission of Information etc.) (Scotland) Regulations 1996, Regulation 4

37 There is no statutory definition of 'significant harm'; to reach a threshold which warrants a court order authorising compulsory assessment or a child's removal from home, the child must be suffering or likely to suffer harm which is serious and not of a minor, transient or superficial nature (Norrie (2004) p114). This is a matter to be determined in the light of all the circumstances of the case and will depend on a wide range of factors, including the nature and extent of the alleged harm, the child's age and stage of development, any protective factors within the child's family; the availability of alternative courses of action; the parents' willingness to cooperate with statutory agencies and allow access to the child where necessary, and the views and wishes of the child. See Guidance and Regulations Volume 1 Support and Protection for Children and their Families p 60-61

38 C(S)A 1995, s55 -child assessment order ( CAO); C(S)A 1995, s57 -child protection order ( CPO)

39 C(S)A 1995, s76 - exclusion order; an exclusion order provides for the exclusion of a named person from the child's household or immediate environs as an alternative to the child's removal from his or her family, provided that a safe adult continues to reside in the family home who is capable of caring for the child appropriately. As this order relates to an adult rather than a child it will not be discussed here. See Children (Scotland) Act 1995 Guidance and Regulations Volume 1 Support and Protection for Children and their Families p 66-71

40 C(S)A 1995, s55(3)

41 C(S)A 1995, s58

42 C(S)A 1995, s61

43 C(S)A 1995, s56(2) and s56(7)

44 The Reporter may refer the case to a local authority with a view to their making arrangements for the advice, guidance and assistance of the child and family on a voluntary basis (C(S)A 1995, section 56(4)(b)); or a children's hearing may make a supervision requirement, or continue the hearing and issue a warrant to keep the child in a place of safety (C(S)A 1995, s69) which may require the local authority to place the child in a residential or other establishment.

45 Norrie (1995) pp 36-111

46 Children Act 1989, s44(4) - emergency protection order

47 McGhee, J and Francis, J (2003) 'Protecting children in Scotland: examining the impact of the Children (Scotland) Act 19995' Child and Family Social Work 8, pp 33-142

48 4% of children looked after in 2002-2003 (Children's Social Work Statistics 2002-2003, The Scottish Executive, table 2)

49 C(S)A 1995, s86

50 Adoption (Scotland) Act 1978, s18(5)

51 Norrie (1999) 17.13

52 Beagley v Beagley 1984 SLT 202 HL, see Jamieson (1995) p 85