Children and Young People (Scotland) Act 2014 part 11 - continuing care: guidance

Appendix A: Legislative Framework

This guidance should be read in conjunction with the following legislation:

Education (Additional Support for Learning) (Scotland) Act 2004

The Education (Additional Support for Learning) (Scotland) Act 2004 provides the legal framework for identifying and addressing the additional support needs of children and young people who face a barrier, or barriers, to learning. The Act aims to ensure that all children and young people are provided with the necessary support to help them work towards achieving their full potential. It also promotes collaborative working among all those supporting children and young people and sets out the rights of children, young people and parents within the system. The Act has been subsequently amended by the Education (Additional Support for Learning) (Scotland) Act 2009, the Children and Young People (Scotland) Act 2014 and the Education (Scotland) Act 2016.

Children and Young People (Scotland) Act 2014

The Children and Young People (Scotland) Act 2014 is a significant piece of legislation, which introduced major changes to the 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) was 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, young people between nineteen and up to age twenty-six who were formerly looked after have 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. 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 modernised the regulation of care services and, through section 73, strengthened the section 29 of the Children (Scotland) Act 1995.

Section 73(1) amended 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) also gave the 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 Looked After Children (Scotland) Regulations 2009^[62] replaced 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 brought 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. Subject to specific exemptions, all corporate parents must have regard to this guidance. Compliance is 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.

United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

The UNCRC (Incorporation) (Scotland) Act 2024 is a landmark piece of legislation which incorporates the UNCRC requirements and Optional Protocols 1 and 2 directly into Scots law within the limits of devolved competence. Scotland is the first country in the UK, and the first devolved nation in the world, to incorporate the UNCRC. Most of the provisions in the Act will have come into effect by July 2024.

Section 6 of the Act makes it unlawful for a public authority to act in a way that is incompatible with the UNCRC requirements. Although the duty to act compatibly with the UNCRC requirements applies only when public authorities are exercising powers conferred by Acts of the Scottish Parliament or common law, public authorities are encouraged to uphold children’s rights regardless of the legal source of their powers. Under the Act, listed public authorities will be required to report not only on the actions they have taken to comply with the compatibility duty, but also on how they are securing better or further effect to children's rights more generally.

Non-statutory guidance on taking a Children’s Rights approach is available^[63] and statutory guidance on the Act will be published in due course. The Children’s Rights page of the Scottish Government website is a useful source of information about the Act and supporting resources.