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Site updated:

4 July 2009

Family - In Scotland

Children in need: being looked after by the local authority

This information applies to Scotland

Why are children looked after by the local authority

There are a number of reasons why a child may be ‘looked after’ by the local authority. Most often it is because the child’s parents are unable to care for him/her, have been neglecting him/her or the child has committed an offence. The local authority has specific responsibilities and duties towards a child who is being looked after or who has been looked after.

The child may be:-

in local authority accommodation under a voluntary arrangement, where the child’s parents agree to the child being accommodated or
in local authority accommodation or at home, under compulsory measures decided by a children’s hearing or a court.

Children’s hearings and court orders

A child can be subject to an order from a children’s hearing and an order from the sheriff court at the same time.

Children’s hearing

A children’s hearing is a formal meeting of three children’s panel members for the local area, a Children’s Reporter, and normally a social worker, who has visited the family and prepared a report. It is called to consider a child’s case and whether or not the child is ‘at risk’ and requires to be supervised and/or protected. A children’s hearing may be called after a child has been removed from home to a safe place in an emergency. The other types of situations that may mean the Children’s Reporter calls a hearing are when a child is:-

beyond parental control
falling into bad association or exposed to moral danger
suffering from lack of parental care
a victim of a serious criminal offence
failing to attend school regularly
found to have committed an offence
suspected of misusing alcohol or any drug
suspected of misusing any volatile substance by inhaling it, for example, glue sniffing.

A child can only be called to a children’s hearing if s/he is under 16 or under 18 and already subject to an order from a children’s hearing. In all cases if the child is old enough, s/he should be given the opportunity to put forward his/her view of the situation. Legal representation may be available at a children's hearing when it is likely that the child will be placed away from home or if the case is unusually complex.

When the hearing has discussed the details of the child’s situation, it can either discharge the case or make an order called a ‘supervision requirement’. In some cases, the supervision requirement will have a condition attached to it that the child must live away from home, either with foster parents, in a children’s home or at a special residence where the hearing believes the child will receive the right help or supervision (see under heading Where the child lives).

A supervision requirement lasts for one year unless the hearing decides it should be reviewed earlier than this. At any time three months after the supervision begins a parent or a child can ask for the children’s hearing to review the supervision requirement. A social worker can ask for a review at any time.

Parents or a child who is old enough can appeal against any decision made by a children’s hearing. This must be done within 21 days of the decision being made and the appeal is made to the sheriff court. Legal aid is available for an appeal.

Court orders

The sheriff court can make a number of orders for the protection and supervision of children. The main orders that can be made are:-

a child protection order - an application may be made by any person who is concerned for a child, or by the local authority. The order may state that the child should be removed to a safe place or that the child cannot be removed from the place where s/he is staying. A child protection order lasts for 8 days but must be reviewed within that period either by the court or a children’s hearing.
a child assessment order - an application can only be made by the local authority. It lasts for a maximum of seven days. It may not involve the child being away from home but will mean that the child has to be taken to a particular place to be assessed.
an exclusion order - can only be applied for by the local authority. It can last for six months and may mean that a person who is suspected of abusing a child has to leave or stay away from the child and his/her home.
a parental responsibilities order - can only be applied for by the local authority. It can last until a child reaches the age of 18. It transfers parental responsibilities and rights from the child’s parents to the local authority.
a parenting order – can by applied for by the local authority or by the Reporter to the Children’s Panel. It can last for up to twelve months and requires the parent(s) to undertake guidance and counselling and other activities as directed by the court to improve their parenting skills. Breach of a parenting order is a criminal offence.

Anyone whose child is the subject of a court order, or the child him/herself, will need expert advice about his/her rights. S/he should contact a Citizens Advice Bureau, a specialist organisation (see under heading Useful organisations) or a solicitor. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

Rights when a child is being looked after

The child’s rights

If you are a child being looked after by the local authority you have a right to be consulted about what is happening to you. This does not mean that you will always get what you want, but that your views should be taken seriously.

Some local authorities may appoint children’s officers who are responsible for helping children to understand what is happening to them. Voluntary organisations may also be able to provide advice or representation direct to children. For information about useful organisation, see under heading Useful organisations.

In formal legal procedures, such as children’s hearings and courts, you have rights to be represented independently.

The parents’ rights

If you are the parent of a child who is being looked after by the local authority, what rights you have will depend on how the child came to be looked after.

If the child is being accommodated by the local authority under voluntary measures, as a parent you retain full parental rights

If the child is subject to a supervision requirement or an order of the court, as a parent you retain full parental rights, although these may be limited by the children’s hearing or the court

If the local authority has a parental responsibilities order for your child, you have no parental rights, except for the right to consent or refuse to give consent to the child’s adoption.

The care plan

Every child who is being looked after by the local authority must have a care plan. The child, the parents and the prospective carers (if the child will be living away from home) should be involved in producing the care plan.

The care plan should include information about:

any services to be provided for you, including any special arrangements to meet any religious, linguistic, racial or cultural needs and
your care, education and health needs and
the local authority’s responsibilities and
your responsibilities and
your parents’ responsibilities and
details of where you will be living, and who is responsible for the accommodation and
the contribution that your parents will make to the child’s day-to-day care and
the arrangements for involving your parents in decision making and
the arrangements for contact between you and your parents and
how long the arrangement is likely to last and details of how the arrangement will come to an end and
plans for how you will be helped to return to your parents or other arrangements that may be made for you at the end of the placement.

The care plan should be clear and easy to understand and the local authority should ensure that everyone affected by it understands what it means. You and your parents should be given copies of the plan.

Challenging decisions

If you are a parent or a child who is unhappy with some aspect of the way in which you or your child is being looked after you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on the nearest CAB.

Where the child lives

Your rights as a child or parents to be consulted about where the child lives depends on whether the child is being looked after under compulsory measures or whether the arrangement is voluntary.

If you are unhappy with any aspect of the accommodation provided for you or as a parent are unhappy, you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

Types of accommodation

Staying with your parents

Although you are being looked after by the local authority you might remain at home with your parents under a supervision requirement. The local authority has to visit regularly to ensure that the terms of the supervision requirement are being met.

Foster care

Foster care means that the local authority arranges for you to live with foster carers in their own home. It enables you to be cared for in a family environment. The fostering may be for a brief period, for example when your parents are temporarily unable to look after you because of illness in the family. The intention will be that you return to your parents as soon as possible. If it is not going to be possible for you to return to your parents you may remain with foster carers for a longer period.

Foster carers are recruited and selected by the social work authority. Relatives and friends of children can be used as foster carers but they will also have to be assessed and approved by the local authority.

Children’s homes

Children’s homes can either be administered by local authorities or by private or voluntary organisations such as Barnardo’s. They are run by paid staff. In general, children placed in children’s homes tend to be older. If you are under 12 you will be placed wherever possible in foster homes.

Residential schools

You might be placed in a residential school for a variety of reasons such as a problem of persistent truanting or difficult behaviour in school or criminal offences. These homes tend to be larger than children’s homes and provide a more structured and disciplined environment, similar to that of a boarding school.

Contact between the child and her/his family

What is contact

When you are living away from home the local authority has a duty to promote contact between you and your parents and other members of your family, so long as this is consistent with your welfare. Your parents also have a responsibility to maintain contact with you.

Voluntary arrangements

If you are accommodated under voluntary arrangements, all the people involved should try to agree the terms of contact with you. The local authority cannot stop contact between you and your parents. If the local authority is concerned that contact should be restricted or stopped it must refer your case to the children’s hearing for consideration, or apply to court.

Compulsory measures

If you are being looked after away from home under compulsory measures, arrangements for contact may have been made by the children’s hearing or court. If arrangements for contact have not been made by the children’s hearing or the court, the arrangements will have to be agreed between the local authority, and you and your parents.

Disputes about contact

Any arrangements for contact should only be changed, stopped, increased or restricted after they have been considered at a regular review meeting about you, unless the local authority considers that there is an emergency.

If, after a review, a local authority considers that arrangements for contact should be changed for whatever reason, it must refer the matter to the children’s hearing for consideration.

If you or your parents are unhappy with the decision of the children’s hearing, you can appeal.

If you are unhappy with any aspect of the contact arrangements you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

Practical problems with contact

Local authorities have a responsibility to encourage contact between you and your parents. They have powers to help you to overcome difficulties with the practical arrangements, for example by making payments for travel expenses. A parent who needs practical help with keeping contact should ask her/his social worker for help.

Aftercare services

Young people can leave care at 16 but, if it is in their best interests, should not have to leave before they are 18.

There are special arrangements for young people leaving care. Most young people over school-leaving age are not entitled to benefits and instead are supported by the local authority.

The local authority should plan from the beginning of the placement for what will happen when the young person stops being looked after.

As a young person leaving care you must be consulted about what will happen and should be given information and advice about making choices about your future.

If you are not going to return to live with your parents the local authority should consider how you can plan for living independently, or in supported accommodation.

The local authority should draw up a Pathway Plan which draws up the support and guidance provision for you. This may include:

advice and information
assistance in cash or in kind
help with the costs of education and training
accommodation. The local authority may be able to help you find a place in supported ccommodation.
help in making or maintaining contact with your family.

A useful leaflet aimed at young people thinking about leaving care is available from Scotland’s Commissioner for Children and Young People (SCCYP) and can be downloaded from their website: www.sccyp.org.uk. For more information on young people leaving care you should contact her/his local Citizens Advice Bureau.

Complaints about services for children in need

The local authority complaints procedure and the Care Commission

A child or a parent may wish to complain about:-

the local authority refusing to provide a service; or
the way that a decision was made about providing a service; or
problems which arise once a service has been provided; or
the standard of care provided, including a complaint about a particular member of staff.

It is also against the law for a local authority to discriminate against you because of your race, sex, sexual orientation or because you have a disability. If you feel you have been discriminated against you can make a complaint about this.

You have a choice about who to complain to about a social service provided by the local authority. You can either:-

use the local authority complaints procedure. It has a duty to ensure that a child and her/his family know about the procedure and how to use it; OR
make a complaint to the Care Commission which is the body responsible for the regulation of care services and is independent of the local authority. Sometimes the Care Commission may want you to use the local authority complaints procedure first, but you do not have to.

The Care Commission

Compass House
11 Riverside Drive
DUNDEE
DD1 4NY

Tel: 01382 207100
Fax: 01382 207289
Lo-call: 0845 603 0890
Website: www.carecommission.com

If you have a complaint about a particular member of staff you could complain first to the person’s line manager or, if the member of staff is registered with the Scottish Social Services Council, directly to the Council.

Scottish Social Services Council

Compass House
11 Riverside Drive
Dundee
DD1 4NY

Tel: 01382 207101
Lo-call: 0845 60 30 891
Website: www.sssc.uk.com

Further action

Within the local authority complaints procedure

If you are unhappy with the response from the local authority you can ask for a review of its decision. If you are still unhappy after the review you can take the complaint further in a number of ways outlined below.

The Care Commission

If you did not complain to the Care Commssion in the first instance you can make the complaint to the Care Commission after using the local authority complaints procedure. If you are unhappy with the Care Commission ‘s decision you can complain to the Scottish Public Services Ombudsman.

The Scottish Public Services Ombudsman

You can complain to the Scottish Public Services Ombudsman after the complaint has been through the normal complaint process.

You must put your complaint in writing to the Ombudsman and you should include any letters to and from the organisation you are complaining about. Send your letter to:-

The Scottish Public Services Ombudsman
4 Melville Street
Edinburgh
EH3 7NS

Tel: 0800 377 7330
Text phone: 0790 049 4372
Fax: 0800 377 7331
E-mail: ask@spso.org.uk
Website: www.spso.org.uk

Complain to the Scottish Minister

You may want to complain to the relevant Scottish Minister about what you think is a failure of the local authority to comply with one of its legal duties, for example, under the Children (Scotland) Act 1995. You will need the help of an experienced adviser to do this. You should consult your local Citizens Advice Bureaux.

Take legal action

Depending on the nature of the complaint you may be able to take legal action in one of the following ways:-

apply for judicial review
raise a court action because of discrimination on grounds of race, sex, sexual orientation, disability or religion
claim a breach of human rights.

You will need the help of a solicitor to take legal action and legal aid may be available to do this.

Useful organisations

Scottish Child Law Centre

54 East Crosscauseway
Edinburgh
EH8 9HD
Tel: 0131 667 6333
Fax: 0131 662 1713
Freephone: 0800 328 8970 (for under 18s)
Website: www.sclc.org.uk

The centre provides free legal advice to children and young people, professionals or members of the public on any aspect of the law relating to children.

Who Cares? Scotland

Oswald Chambers
5 Oswald Street
Glasgow
G1 4QR
Tel: 0141 226 4441
Fax: 0141 226 4445
E-mail: enquiries@whocaresscotland.net
Website: www.whocaresscotland.net

This organisation provides advocacy services for young people in care or leaving care.