Born into care in Scotland: circumstances, recurrence and pathways

2. Legal and policy context

The legal framework around child protection and child welfare varies significantly across the UK (see Bunting et al., 2018; McGhee et al., 2018 for a discussion). One of the distinguishing features of the Scottish system is the role that Children's Hearings play. The Children's Hearings System was established in 1971, following the recommendations of the Kilbrandon Report^[5] and is administered by the Scottish Children's Reporter Administration (SCRA) and Children's Hearings Scotland. It was designed to be a welfare-based system based on 'needs not deeds', and took over from the courts most of the responsibility for dealing with children and young people who commit offences, or who are in need of care and protection. This stemmed from the principle that children who commit offences have the same problems (or needs) as children who lack adequate care and protection and it is these needs that are to be addressed by a Children's Hearing. In June 2013, the Children's Hearings (Scotland) Act 2011 came into force, replacing some aspects of the previous Children (Scotland) Act 1995.

Anyone may make a referral to the Children's Reporter where there are concerns about a child, and some professionals (police and social work) have a statutory responsibility to do so where they believe a child may be in need of compulsory measures of intervention. The Reporter decides whether there is sufficient evidence and an apparent need for compulsory measures of supervision, and if so, a Children's Hearing is arranged. These are tribunals of three trained volunteer Children's Panel Members that bring together parents, children and professionals, and provide a non-adversarial forum where the welfare of the child is paramount.

Children's Hearings decide if, in order to safeguard and promote welfare, a child is in need of compulsory measures of supervision and if so, may issue a Compulsory Supervision Order (CSO) (under Section 83 of the Children's Hearings (Scotland) Act 2011), confirming the type of care/residence needed (at home or away from home, generally in kinship or foster care). The Hearing (or Sheriff Court) can make an Interim Compulsory Supervision Order (ICSO), as a temporary order until a final decision is reached. CSOs must be reviewed by a Children's Hearing within a year of the date of making the order.

In some cases, urgent action may be required to protect a child from actual or likely harm before compulsory measures of supervision can be put in place by the Hearings System. The most commonly used measure to protect a child in these emergency situations is a Child Protection Order (CPO). This is made by the Sheriff (under Section 38 or Section 39 of the Children's Hearings (Scotland) Act 2011) and permits the removal (or keeping) of a child to a place of safety. A CPO must be reviewed by a Children's Hearing on the second working day after it is made. If continued by the second working day Hearing, the CPO ends on the eighth working day and then Children's Hearings proceedings take over to decide if longer-term measures are required to protect the child. The police also have the power to remove a child to a place of safety, under section 56 of the Children's Hearings (Scotland) Act 2011. This provision lasts 24 hours, allowing time for a CPO application to be made to the Sheriff, and the Reporter must be informed as soon as practicable.

Separately from the CHS, children can also become looked after away from home under Section 25 of the Children (Scotland) Act 1995. If a parent subsequently objects, and requests the child be returned home, but concerns about the welfare of the child remain, a CPO can be sought by the local authority, which triggers referral to the CHS. Alternatively, the child may have been referred to the Reporter whilst the Section 25 order was in place because it was felt that compulsory measures of supervision were required. In both cases, if grounds for referral are accepted, a Hearing may decide to make a CSO.

The local authority must carry out an assessment of needs for all looked after children, and based on that assessment prepare a plan, as outlined in Section 34 of the Children and Young People (Scotland) Act 2014. A child's plan sets out the child's wellbeing needs, the targeted interventions designed to meet those needs, and who is to provide them. The Looked After Children (Scotland) Regulations 2009 and associated guidance set out timescales for reviews, and that where a child been looked after away from home for six months and "she/he has not returned home by this stage or if significant progress towards that has not been achieved, then the review should consider whether a plan for permanence away from birth parents is required" (Scottish Government, 2011, p. 130). Following a Permanence Panel, if the Agency Decision Maker for a local authority decides that a Permanence Order (PO) or adoption is required and the child has a CSO, the Children's Reporter must be notified, and a Children's Hearing arranged to provide advice to the Sheriff about the local authority's plan for the child as part of the application for the PO or Adoption Order.

The Sheriff Court makes decisions in relation to parental responsibilities and rights. Section 11 of the Children (Scotland) Act 1995 enables the court to deprive adult(s) of parental responsibilities and rights and transfer some or all of those responsibilities and rights to another adult, or decide they should be shared with another adult. Where the applicant is a family member, the order granted by the Court is referred to as a Kinship Care Order (KCO), a term introduced by the Children and Young People (Scotland) Act 2014. The Adoption and Children (Scotland) Act 2007 introduced POs and Permanence Orders with Authority to Adopt (POAs). The court can also make an Adoption Order, which transfer the parental responsibilities and parental rights in relation to a child to the adoptive parent(s).

Whilst a referral to the Children's Reporter and an application for a CPO cannot be made until a child is born, the Scottish Government's focus on early engagement and planning is part of the GIRFEC (Getting it right for every child) approach to improving outcomes and supporting the wellbeing of children.^[6] Pre-birth child protection processes involve social workers and other professionals in assessing the risk of harm to unborn children, with national guidance on child protection having made reference to unborn babies since 2010 (Scottish Government, 2010, 2014)^. This guidance has been recently updated (Scottish Government, 2021) and clearly sets out the timescales for pre-birth assessment and planning, and the responsibilities of relevant agencies.

Where there are professional concerns about an unborn child, an inter-agency child protection case conference (CPCC)^[7] should be held, no later than 28 weeks gestation (or within 21 days of concerns being raised if later in pregnancy), to agree a plan to minimise risk of harm to the child. Where the child is believed to be at actual or potential risk of significant harm, their name should be placed on the Child Protection Register (CPR) and a multi-agency Child Protection Plan developed. This should reference how best to support parents and what steps need to be taken at birth, including seeking a Section 25 arrangement, referral to the Reporter and/or application for a CPO. The legal outcomes for the child, if subsequently referred to the Children's Reporter at birth include a CSO at home, or the temporary or permanent removal from the care of their parents. If removed from their parents, where reunification is not deemed possible, alternative permanent care may be sought via a KCO, a PO, or adoption.

In October 2016, the First Minister announced an independent, root and branch review of the care system in Scotland, to look at the underpinning legislation, practices, culture and ethos. Three years later, the Independent Care Review published its findings in February 2020. The Promise (Independent Care Review, 2020) sets out five foundations – voice, family, care, people and scaffolding – which underpin the changes and improvements the review heard were needed. With full commitment from all political parties, the First Minister, together with many organisations, institutions, communities, groups and individuals all across Scotland, pledged to #KeepThePromise. Plan 21-24 followed (The Promise Scotland, 2021), which mapped and sequenced the calls to action outlined in The Promise, identifying the five priority actions for the next three years.

Whilst far from exhaustive, this section has set out some of the legislative and policy framework which impacts on infants in Scotland who become looked after away from home and their families, who are the focus of this research.