Developing a universal definition of 'care experience': consultation

Consultation Section 1: Developing a Universal Definition of ‘Care Experience’

A definition provides a collective understanding of the meaning of a word or phrase. A universal definition would mean that there is a single description that everyone understands to be the meaning of a word or phrase.

The Promise tells us that the term ‘care experience’ has meaning for many people and that it can be helpful as an understanding of personal identity and in understanding shared experiences.

As well as providing a sense of identity, there are existing supports and entitlements available to people with care experience, particularly young people with care experience. This is relevant in areas such as education, including further and higher education. However there is not currently one cross-sector definition which is commonly understood and used in practice; or that acknowledges the individual experience of care that different people can have.

This means that eligibility for existing supports is not currently connected by a universal definition. This means that while eligibility for some existing supports may be linked to legal provisions^[1], such as having been ‘looked after’^[2], the wording used to define who is eligible to access support can vary between different organisations.

For example, the definition of ‘care experience’ published by Universities Scotland and the definition used by the Care Inspectorate are worded differently, but could, in practice, cover the same individuals so they can access certain rights and entitlements. However, the lack of a concise and shared definition might cause confusion about who is included with both service providers and those with experience of care.

Examples of existing supports for people with care experience where the organisations administering support determine eligibility using their own definitions include:

• Support for Care Experienced Students

The Student Awards Agency Scotland (SAAS) is an Executive Agency of the Scottish Government which administers financial support to Scottish domiciled students studying a course of Higher Education in the UK. Since the 2017/18 Academic Year, SAAS have been administering a bespoke bursary for students who have care experience.

The Care Experienced Students Bursary (CESB) is available to students with care experience studying a full-time undergraduate course of Higher Education or a full-time course of Further Education. Students with care experience in Higher Education who need help with their accommodation costs during the summer period may also be eligible to apply for the Summer Accommodation Grant. The CESB is available to students who have experienced a range of types of care including kinship care and having been ‘looked after’ at home, however local authority involvement is required.

• Care Experienced Children and Young People Fund (Scottish Government)

The Care Experienced Children and Young People Fund is a targeted resource provided to local authorities to support children and young people with care experience from birth to the age of 26. The term ‘care experienced’ refers in this context to anyone who has been or is currently in care at any stage in their life, no matter how short, including adopted children and young people who were previously ‘looked after’.

The care may have been provided in one of many different settings such as in residential care, foster care, kinship care, or through being ‘looked after’ at home with a supervision requirement. This could include children and young people who are on the edges of care and who need support in order to avoid becoming care experienced. The funding is provided to local authorities and aims to improve the educational outcomes and experiences for children and young people with care experience.

As well as national level funding and support, there is local level funding and non-financial support available to people with care experience which is managed by, for example, local authorities or higher and further educational institutions which use operational definitions and eligibility to set out who is able to access this.

• Funded early learning and childcare for two-year-olds with a care experienced parent

As well as their duty to provide access to funded early learning and childcare (ELC) to all eligible pre-school children (including care experienced two-year-olds), local authorities have powers to provide discretionary access to funded ELC to any other child, as they see fit. Scottish Government and COSLA agreed in 2021 that all local authorities will use these discretionary powers to provide early access to funded ELC to the children of care experienced parents, when the child turns two. Statutory guidance for local authorities provides high level guidance that they should use of a wide definition of 'care experience', and a pragmatic and sensitive approach to establishing eligibility. (Eligible 2 year olds - Early learning and childcare: statutory guidance)

Existing Support for Children and Young People with Care Experience

There are existing supports that people with care experience are entitled to at different stages of their journey through care. As set out below, these are aligned to statutory definitions and the legislation also sets out duties and responsibilities on the organisations that are legally required to provide support.

‘Looked After’

Section 17(6) of the Children (Scotland) Act 1995 (“the 1995 Act”) sets out that certain references in that Act to a child who is “looked after” by a local authority, refer to a child -

• for whom they are providing accommodation under section 25 of the Act;
• who is subject to a compulsory supervision order or an interim compulsory supervision order and in respect of whom they are the implementation authority (within the meaning of the Children's Hearings (Scotland) Act 2011, “the 2011 Act”);
• who is subject to an order in accordance with which, by virtue of regulations made under section 33(1) of the Act or section 190 of the 2011 Act (effect of orders made outwith Scotland), they have responsibilities as respects the child, or
• in respect of whom a permanence order has, on an application by them under section 80 of the Adoption and Children (Scotland) Act 2007, been made and has not ceased to have effect.

Section 24 of the Children (Care and Justice) (Scotland) Act 2024 also inserted a new section 17A into the 1995 Act, with the effect that children detained in secure accommodation under certain criminal justice provisions are treated as “looked after” children.

There are many different reasons as to why children and young people may come into contact with the care system, but they will all require support that recognises their experiences, and to help them to thrive into the future.

The term ‘looked after at home’ is used where a child is looked after at home, there is a supervision requirement in place and support is being given to the child and their family by the local authority, rather than separating the child from their family. ‘Looked after away from home’ is a term that describes where a child is being cared for away from their family home in one of the care settings described later in this paper.

Our ‘looked after children’ policy is part of Getting It Right For Every Child (GIRFEC). GIRFEC is the Scottish Government’s national approach to improving outcomes and supporting the wellbeing of children and young people. It is our commitment to provide all our children and their families with the right support at the right time, so that every child and young person in Scotland can reach their full potential.

GIRFEC provides the universal and consistent framework for practitioners, together with families, to assess a child or young person’s needs, identify their strengths and any challenges they face, and consider the most appropriate offer of timely, coordinated support.

Corporate Parenting

The Children and Young People (Scotland) Act 2014 (“the 2014 Act”) makes provision for corporate parenting. This refers to the formal and local partnerships between all services responsible for working together to meet the needs of looked after children, young people and care leavers.

The 2014 Act introduced new duties and responsibilities for Scottish public bodies defined as corporate parents, effective from April 2015.

A good corporate parent will want the best outcomes for their looked after children, accept responsibility for them, and make their needs a priority. To help public services be good corporate parents, we have published:

• statutory guidance on corporate parenting
• guidance for councils and community planning partnerships on being a good corporate parent
• Corporate parenting - turning legislation into practice together report

‘Care Leavers’

A ‘care leaver’ is a young person who ceased to be ‘looked after’ on, or at anytime after, their sixteenth birthday. In legislation, this is outlined in Guidance on Part 10 (Aftercare) of the 2014 Act, as defined above, and also reflected in section 29 of the 1995 Act on aftercare.

Local authorities have a statutory duty to advise, guide, and assist care leavers until their nineteenth birthday and a power to do so until their twenty-sixth birthday. Section 29 of the the 1995 Act requires local authorities to carry out a needs assessment for each young person who ceases to be looked after on, or after, their sixteenth birthday, with a view to determining what advice, assistance and support the authority should provide. The 2014 Act introduced ‘continuing care’ provision and extended the entitlement to aftercare support for people leaving care up to their twenty-sixth birthday. Care leavers are also eligible for Care Leaver Council Tax Exemption until they are 26 years of age.

Statutory definitions linked to duties and entitlements make it clear to the practitioners and people who support care experienced people, as well as people with care experience themselves, what help and support they can legally access and should be offered. It also makes it clear who has legal rights or duties to support care experienced people, ensuring that they remain accountable for doing so.

Following the outcome of this consultation, consideration will be given to how any universal definition of ‘care experience’ might interact with existing legislative definitions, duties and requirements to support people with experience of care.

Potential Impacts of a Universal Definition of ‘Care Experience’

This consultation is seeking views on the potential advantages and disadvantages of developing a universal definition of ‘care experience’.

Potential advantages of introducing a universal definition could include that it provides clear, national direction and a single description of what is meant by ‘care experience’. The Promise tells us that some people with experience of care feel that this carries a sense of stigma. Changing and improving the language of care is a key part of normalising this language and ensuring that it is used in a considerate and consistent way. This is particularly important for practitioners and wider organisations in taking a trauma-informed approach. A universal definition of ‘care experience’ could also provide a potential route towards increasing access to rights and entitlements that some people with experience of care are currently unable to, or have difficulty in, accessing.

There could, however, be disadvantages to developing a universal definition of ‘care experience’. This could include that it is felt adding another definition to the care landscape could complicate this further and add confusion around the supports and entitlements available at different stages of a person’s journey through care.

Q1. Do you agree or disagree that there is a need for a universal definition to describe ‘care experience’ ?

a) Agree strongly

b) Agree

c) Neither agree nor disagree

d) Disagree

e) Disagree strongly

Q2. What are your views on the potential advantages of developing a universal definition of ‘care experience’?

Q3. What are your views on the potential disadvantages of developing a universal definition of ‘care experience’?

Q4. Do you have any views on the definition of ‘Care Leaver’ as set out above?

Q5. Do you have any views on the statutory definition of ‘Looked After’ as set out above?

Potential Scope of a Universal Definition of ‘Care Experience’

We know that lots of organisations use different definitions of care experience. We are asking you to consider what experiences of care should be considered in a universal definition’. This could be based on the care settings that a person has experienced during their journey through care. We know that everyone has a different experience of care and that there are many settings in which a person can be ‘in care’. This includes:

• Looked After at Home – where a child or young person lives with their parents or carers under a Compulsory Supervision Order (CSO) which is made by a sheriff or children’s hearing. A child looked after at home continues to live at their normal residence (usually the family home), but receives regular visits from social workers with a plan in place to ensure that the conditions of their CSO are being met.

There are two main instances in which a child or young person becomes ‘Looked After at Home’:

• As a starting point for planned intervention, where the balance of risk indicates that it is not essential to remove the child from the care of their parents or primary carer(s), but that the situation must be monitored.
• Where children are returning home after being looked after away from home, where some risks may still remain and home supervision aims to help reunite the family.

When a child becomes looked after at home, their parents or primary carer(s) must work with the relevant local authority as a 'corporate parent' to ensure that the child is living in a safe and nurturing environment. The corporate parent's duties, including care planning and reviewing, are the same for children looked after at home as for those looked after away from home. Home supervision aims not only to ensure the wellbeing of the child or young person, but also to support parents.

• Kinship Care - Kinship care is where a child is unable to live with their birth parent and resides instead with a relative or other individual with whom they have a pre-existing relationship e.g. a sibling, or close family friend, as outlined in the Looked After Children (Scotland) Regulations 2009. The carer is referred to as a ‘kinship carer’. Under the Regulations, a kinship carer is defined as "a person who is related to the child (through blood, marriage or civil partnership) or a person with whom the child has a pre-existing relationship".

Kinship care includes both:

• Looked after children who have been placed with kinship carers by a local authority.
• Non-looked after children who live with a kinship carer (these children may be subject to an order under Section 11 of the Children (Scotland) Act 1995, as defined above, or may be living in a completely private arrangement with extended family, with no local authority involvement).
• Secure Care – Secure accommodation is a form of residential care that deprives children under the age of 18 of their liberty. It is for the small number of children who require to be deprived of their liberty owing to the risks their behaviour may pose to themselves, or others in the community. Secure care aims to provide intensive support and safe boundaries to help these highly vulnerable children to move forward positively and re-engage in their communities.
• Residential Care – Residential care homes offer children and young people a safe place to live together with other children, away from home. They provide care and support and, in some cases, education. In Scotland, care home services for children and young people are provided by local authorities, private firms, voluntary organisations and health boards. Children in a residential care home will have a child’s plan for their care for the people looking after them to follow and review.
• Residential Special School - A residential special school is a school whose sole or main purpose is to provide education that is particularly suitable for the additional support needs of the pupils in attendance there, and which also provides a school care accommodation service. The school may be a public school (i.e. a school managed by an education authority), a grant-aided school, or an independent school. An independent school must be registered in the Register of Independent Schools. All school care accommodation services must be registered as such with the Care Inspectorate.

Foster Care – When a child cannot be cared for by their birth parents, or by kinship carers (extended family or close friends), they can be cared for by an approved foster carer. Foster care can be a temporary arrangement that can end when a child returns to their birth parents or is adopted. Other placements can be long term if this is in the best interests of the child.

In relation to adoption, this is a legal process offering permanence to children who may have been in care. Once a child is adopted, they are no longer considered to be in care, or ‘looked after’. Therefore, while adopted children and young people are no longer in care, they will have experience of one or more of the above listed care settings and therefore be ‘care experienced’.

Unaccompanied Asylum-Seeking Children are children and young people under the age of 18 who arrive in Scotland without parents or guardians.

There are currently more than 500 Unaccompanied Asylum-Seeking Children being looked after by local authorities in Scotland, in addition to hundreds more care-experienced young people who are 18 or older, who arrived in Scotland as Unaccompanied Asylum-Seeking Children.

Local authorities must provide accommodation for any child who has been found in their area, where that child is not accompanied by a person who has parental responsibility for them. This is covered in under section 25 of the 1995 Act. As such, local authorities are usually obliged to provide Unaccompanied Asylum-Seeking Children with accommodation and safeguarding, from which point they become ‘looked after’ within the meaning of section 17(6) of the 1995 Act. Most (but not all) Unaccompanied Asylum-Seeking Children arrive in Scotland at the age of 16 or 17, and the majority live in supported accommodation. This can either mean that they stay with a host family, or that they live with some degree of independence in flats, with support staff being available to help them.

Q6. What experience of care would you expect to be covered by any definition of “care experience”?

• Looked After at Home
• Kinship Care (looked after children who have been placed with kinship carers by the local authority)
• Kinship Care (non-looked after children who live with a kinship carer, these children may be subject to an order under Section 11 of the Children (Scotland) Act 1995 or may be living in a completely private arrangement with extended family, with no local authority involvement )
• Foster Care
• Residential Care
• Residential Special School
• Supported Accommodation
• Secure Care
• Adoption
• Other – please provide details

Q7. Do you have any other comments about a proposed universal definition of ‘care experience’?