Appendix A: Legislative Framework
This guidance and accompanying Regulations should be read in conjunction with the following legislation:
Children and Young People (Scotland) Act 2014
The Children and Young People (Scotland) Act 2014 is a significant piece of legislation, introducing major changes to planning, operation and delivery of children's services in Scotland. The Act is particularly important for looked after children and care leavers, putting 'corporate parenting' (Part 9) onto a statutory footing, extending 'aftercare' support to a wider population of care leavers (Part 10) and introducing a new provision of 'Continuing Care' for some care leavers (Part 11). The Act also requires all adoption agencies to use Scotland's Adoption Register (Part 14), and amends the Children (Scotland) Act 1995 to ensure assessments consider a child or young person's 'wellbeing' (section 95).
Children (Scotland) Act 1995
The Children (Scotland) Act 1995 centres on the needs of children and their families. It sets out the duties and powers available to public authorities to support children. The following sections relate to Throughcare and Aftercare and Continuing Care duties:
Under section 17 the local authority has a duty to provide advice and assistance with a view to preparing a child for when he or she is no longer looked after by a local authority.
Section 21 sets out details of co-operation between authorities and other bodies.
Section 29 sets out the main local authority responsibilities to young people who leave care.
Under section 29(1) there is a duty to advise, guide and assist those less than nineteen years old unless the local authority is satisfied that the young person's welfare does not require it. Section 29(1) is amended by section 66(2) of the 2014 Act to make any young person at least age sixteen but not yet nineteen who ceases to be looked after by a local authority on or after their sixteenth birthday eligible for Aftercare services from their local authority.
a) Under section 29(2), as amended by section 66(2) of the 2014 Act there is a duty to provide young people between nineteen and up to age twenty-six, regardless of their placement type while looked after, with the opportunity to apply to their local authority for Aftercare.
b) Section 29(3) states that assistance may include assistance in kind or in cash.
c) Section 29(5) currently provides that a local authority must, in relation to any person to whom they have a duty under section 29(1) or who makes an application under section 29(2), carry out an assessment of that person's needs. New subsection 5A provides that if, after carrying out that assessment, the local authority is satisfied that a person who applies to them under section 29(2) has eligible needs which cannot be met by other means, the local authority must provide them with such advice guidance and assistance as it considers necessary for the purposes of meeting those needs. A local authority may, but it is not legally required to, provide Aftercare to a care leaver beyond the age of twenty-six (new subsection (5B).
Section 30 sets out when local authorities may give financial assistance towards the education or training expenses of those who have ceased to be looked after.
Regulation of Care (Scotland) Act 2001
The Regulation of Care (Scotland) Act 2001 modernises the regulation of care services and, at section 73, strengthens the provisions of section 29 of the Children (Scotland) Act 1995.
Section 73 (1) amends section 29 to include duties on local authorities to:
- Carry out an assessment of the needs of young people who have been looked after who they have a duty or power to advise, guide or assist under section 29;
- Establish a procedure for considering representations, including complaints, made to them about the discharge of their functions under section 29.
Section 73(2) gives Scottish Ministers a power to make regulations about:
The manner in which assistance is to be provided under section 29 to young people who have been looked after;
- Who is to be consulted in relation to an assessment of needs;
- The way an assessment is to be carried out, by whom and when;
- The considerations to which the local authority are to have regard in carrying out an assessment;
- The recording of the results of an assessment; and
- Procedures for considering representations including complaints.
Children (Leaving Care) Act 2000
The Children (Leaving Care) Act 2000 changed the system for providing services to young people leaving care in England and Wales. Its aim was to keep young people in care until they are prepared and ready to leave; to improve the assessment, preparation and planning for leaving care; to provide better personal support for young people after leaving care and to improve the financial arrangements for care leavers. Section 6 of the Children (Leaving Care) Act 2000, which deals with access to social security benefits for some young people leaving care, also applies to Scotland.
Looked After Children (Scotland) Regulations 2009 and Adoption and Children (Scotland) Act 2007
The Guidance on the Looked After Children (Scotland) Regulations 2009 and Adoption and Children (Scotland) Act 2007 replace the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996. They also affect parts of the Residential and Other Establishments (Scotland) Regulations 1996 where they apply to the placement of a child or young person in a residential establishment. They bring together regulation of the care planning services offered to looked after children and their families with the care provision required when children are separated from their birth parents. They also reflect more detailed and consistent requirements when children are looked after by kinship carers.
Social Work (Scotland) Act 1968
The Social Work (Scotland) Act 1968 sets out the legislative framework for raising complaints to the local authority about the service they have provided or how an appeal has been handled. Current Guidance and Directions on the 1968 Act procedure were laid out in Circular Number SWSG 5/1996 of 15 March 1996.
Children and Young People (Scotland) Act 2014: Statutory Guidance on Part 9: Corporate Parenting
The Children and Young People (Scotland) Act 2014: Statutory Guidance on Part 9: Corporate Parenting provides corporate parents with information and advice about how they should fulfil the duties set out in the 2014 Act. These duties come into force on 1 April 2015. Subject to specific exemptions, all corporate parents must have regard to this guidance. Compliance will be monitored through reviews of corporate parenting reports (carried out by Scottish Ministers) and independent inspection.
The guidance sets out the parameters within which corporate parents should develop their own approaches, either individually or in partnership. Those approaches should also be shaped by the corporate parent's primary functions, and informed by the needs, views and experiences of looked after children and care leavers.
Other legislation relevant to looked after children and care leavers in Scotland includes:
- Support and Assistance of Young People Leaving Care in Scotland Regulations and Guidance on Services for Young People Ceasing to be Looked After by Local Authorities published in 2004
- Human Rights Act 1998
- Data Protection Act 1998
- Mental Health (Care and Treatment) (Scotland) Act 2003
- Local Government in Scotland Act 2003
- Protection of Vulnerable Groups (Scotland) Act 2007
- Equality Act 2010
- Social Care (Self-Directed Support) (Scotland) 2013
- Public Bodies (Joint Working) (Scotland) Act 2014