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

1. Introduction

For all young people, a successful transition to independent adulthood depends on having the right support at the right time. The right support and the right time might be very different for each individual depending on their circumstances. Too often care leavers are expected to look after themselves much sooner than their peers^[3] and in many cases, before they are ready.

Maintaining nurturing, positive relationships through Continuing Care is a key factor in helping young people achieve a successful and sustained level of developmentally appropriate independence, with a range of healthy inter-personal relationships, social supports and networks.

Continuing Care enables young people to retain a day-to-day relationship with their carer, and an on-going relationship with the local authority and other corporate parents (see Part 9 (Corporate Parenting) of the 2014 Act). In this sense, Continuing Care is about facilitating relationship-based practice with young people, and providing them with a continued feeling of belonging, permanence and stability to support and prepare them as they transition towards an appropriate level of independence. Like all young people, those leaving care need supportive relationships to enable them to thrive as they move into adulthood.

The Scottish Government is clear that a looked after young person leaving care should be allowed to remain in their care placement until the time is right for them to move on with a suitable care plan in place. Local authorities should work within the enabling spirit of the legislation to provide caring environments for all looked after young people as they transition to more independent living where appropriate and at a time and pace that suits them.

The priority must be that all looked after children will have a care plan which meets their individual circumstances and allows them to remain in their care placement if at all possible.

Continuing Care enables a young person to remain in the home they were in when they were looked after. Local authorities should consider Continuing Care among all the options available to young people ceasing to be looked after. It should not be used as an alternative where continuing to be looked after under the Children (Scotland) Act 1995^[4] is in the best interest of the young person. A young person who is currently looked after should remain looked after up until the age of eighteen years if that is in their best interest.

1.1. Policy and Legislative Context

Continuing Care was introduced by Part 11 of the Children and Young People (Scotland) Act 2014 (“the 2014 Act”). The 2014 Act inserted a new section 26A into the Children (Scotland) Act 1995 (“the 1995 Act”) to place local authorities under a duty to provide Continuing Care in certain circumstances. Under Part 11 of the 2014 Act, eligible young people have the opportunity to remain in their care setting up to their twenty-first birthday.

1.2. Children and Young People Act (Scotland) 2014

The 2014 Act introduced Continuing Care, providing eligible care leavers with the option to continue with the accommodation and assistance they were provided with immediately before they ceased to be looked after. The 2014 Act encourages early offers of support rather than crises responses.

Underpinned by the Scottish Government’s commitment to the United Nations Convention on the Rights of the Child (“UNCRC”), and Getting it right for every child (GIRFEC), the 2014 Act established a new legislative framework for services to work together to support children, young people and families.

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

The UNCRC (Incorporation) (Scotland) Act 2024 (“the 2024 Act”) 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. Most of the provisions in the Act will have come into effect by July 2024.

Section 6 of the 2024 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 UNCRC rights regardless of the legal source of their powers. More detail can be found at Appendix A: Legislative Framework.

1.4. Staying Put Scotland

Staying Put Scotland^[5] was published by the Scottish Government in 2013 to provide guidance for local authorities and other corporate parents on supporting looked after children and young people to remain in care, as part of a staged transition towards adulthood and greater independence.

This guidance played an important role in the shift away from a culture of young people in care being expected to leave home at 16. The guidance pre-dates the 2014 Act and other key developments, such as The Promise and the incorporation of the UNCRC into Scots law through the 2024 Act. While culture and practice has moved on significantly, the wider principles are still relevant today:

From Staying Put Scotland, 2013

• Young people are encouraged, enabled and empowered to remain in positive care settings until they are ready to move on. Local authorities and their partners – as corporate parents – will want to ensure that looked after young people are not only aware of their right to remain in their home, but that they have opportunity to exercise that right. They must be provided with information about the options available to them (in a timely manner), and given the support to evaluate those options properly; this may involve direct work with a young person to highlight the long term benefits of certain choices, in light of their personal circumstances.
• No looked after young person leaves care without the skills and support necessary for success. As if they were their own children, staff across local authorities – and all agencies with corporate parenting responsibilities – will want to ensure that a looked after young person leaves care with the practical skills and networks of supportive relationships that underpin successful adult life. This relies on proper needs-led, child-centred assessment, a commitment to providing training and / or practical support, and access to a range of accommodation options. As part of the assessment corporate parents will want to satisfy themselves that care leavers demonstrate an appropriate level of “emotional readiness”.
• Local Authorities and their corporate parenting partners will have made explicit their commitment to the ‘Staying Put Scotland’ approach. Local Children’s Services Plans and other relevant planning documents should be clear about the locality’s commitment to care leavers, and support for the ‘Staying Put Scotland’ approach. These plans will not only detail the policies and procedures which will make this practice real for looked after young people, but they will also identify the measures of success (i.e. outcomes for care leavers). Clear and explicit statements in strategic plans also encourage organisations to own the Staying Put agenda at a corporate level.

1.5. The Promise

In 2016, the First Minister announced “an independent, root and branch review of the care system” to look at “the underpinning legislation, practices, culture and ethos”. The Promise was the outcome of that review; the Promise^[6] outlines the transformational change that is required to ensure that services are centred around people to create a country that cares.

To keep the Promise we are working to ensure that services are effective. To be effective they must:

• be shaped around children, young people and families instead of around policy areas, budgets, legislation or monitoring;
• meet the needs of children, young people and families and stand ready to be accessed where they are needed and when they are needed; and
• listen to care experienced children and young adults in the delivery, inspection and continuous improvement of services and of care.

One of the foundations on which the Promise is built is Voice:

‘Children must be listened to and meaningfully and appropriately involved in decision-making about their care, with all those involved properly listening and responding to what they want and need. There must be a compassionate and caring decision-making culture focussed on children and those they trust’.^[7]

Additional information on the legislative and policy framework is set out in Appendix A.