Decision Making Guidance for Foster Carers

Chapter one

The Legal Context

1. Understanding how children come into care

The rights of children to be parented by their parents, the rights of parents to bring up their children, and the right to respect for family life are all very strongly protected in Scottish law. The principle of minimum intervention underpins much of child law, thus the state may only intervene where there is a strong reason, and only if it is in the best interests of the child. Because of this, it takes a decision by a court or a children's hearing to remove a child from the care of their parents, except in an emergency. You should make sure that you know which of the following applies to a child who is being cared for by you, and that you are kept informed of any changes.

Important Point

Before making an order about a child, the court or children's hearing must consider that:

• the order is necessary
• the order is in the best interests of the child
• it is better that the order be made than not
• the child must have the opportunity to say whether they want to express a view, be given the opportunity to do so, and if they do, the view must be taken into account in accordance with the age and maturity of the child (this does not apply in child protection orders)

1.1 Section 25 agreement (Children (Scotland) Act 1995)

A parent or a person with parental responsibilities and rights (PRRS) can agree that the child is to be accommodated by the local authority.

The technicalities of a s.25 agreement include:

• A formal agreement is not always signed by parent/s but it is best practice that it should be to avoid any misunderstandings
• It gives a child looked after status
• It places an obligation on the local authority to safeguard and promote the health, welfare and development of the child
• The parent can remove the child at any time until a period of 6 continuous months has passed
• After the 6 month period a parent can only remove the child after giving the local authority 14 days notice in writing
• If the child is over 16 years of age the parent cannot remove him or her without their consent

1.2 Child Protection Order

A child protection order (CPO) is an emergency order granted where the court is satisfied that a child is at immediate and serious risk. It is an order made by a sheriff. Most CPOs are applied for by local authorities. The CPO can keep a child where they are (i.e. a hospital), or authorise their removal to a place of safety. A place of safety is never the child's usual home. The CPO is very short-lived being only 2 working days if it is not continued by a children's hearing for another 6 working days it will cease to have effect. A child who is subject to a CPO is a looked after child. Parental responsibilities and rights are not removed, but those with PRRS are likely to have their contact with the child strictly regulated or stopped for the duration of the CPO, and cannot exercise their right to decide where the child will live. The parent/s or other people may not be permitted to know the whereabouts of the child.

1.3 Decision of a Children's Hearing

A children's hearing can place a child in the care of someone other than a parent or person with parental responsibilities and rights. This may be through a compulsory supervision order, or an interim (temporary) order such as an interim compulsory supervision order or an interim variation of a compulsory supervision order. A child subject to any of the above orders is a looked after child, even if living at home.

1.4 Permanence Order

Where a child is not likely ever to return home, a permanence order may be applied for at the sheriff court. This order is a very flexible tool which can respond to the child's particular needs and circumstances. Some parents may lose all of their parental responsibilities and rights, many only lose some of them. The local authority always gains the right to decide where the child will live and the parent always loses it. The person or persons who the child is to live with may gain some of the parental responsibilities and rights. Children subject to a permanence order are looked after children.

1.5 Emergency Action other than child protection orders

In an emergency a child may be removed to a place of safety by a police constable (any police officer is considered to be a constable). The child may only be removed for a period of 24 hours, and is considered to be looked after while those measures are in force.

1.6 Order from England, Wales or Northern Ireland

A child living in Scotland may be subject to an order made in England, Wales or Northern Ireland. Under the Children (Reciprocal Enforcement of Prescribed Order) etc. (England and Wales and Northern Ireland) (Scotland) Regulations 2009 we will recognise these children as being looked after.

Important Point

When a child is subject to any of these, the primary responsibility for their welfare lies with the local authority. Carers' responsibilities include their responsibility to work with the local authority for the benefit of the child.

2. Understanding parental responsibilities and rights (PRRs)

2.1 Who has parental responsibilities and rights?

A person has parental responsibilities and rights if:

• she is the mother of the child (unless removed by a court)
• he is the father of the child and
• he was married to the mother of the child at the time of conception or subsequently or
• he is named as father on the birth certificate of the child and the birth was registered or the registration was amended after the fourth of May 2006. This applies only to children whose births were registered in Scotland. The situation with regard to children who were born and their births registered outside Scotland can be complex.
• both birth parents have signed and registered an agreement under s. 4 of the Children (Scotland) Act 1995
• he or she was granted parental responsibilities and rights by a court.
• he or she has adopted the child
• parental responsibilities and rights were granted by a court. (see permanence orders 1.4).
• he or she was named as guardian in a will by someone who has since died.
• he or she was granted a residence order by a court and the child is still resident with them.

2.2 How are parental responsibilities and rights lost?

Parental responsibilities and rights (PRRs) can only be removed by a court order. Failure to exercise PRRs or having no contact with the child does not mean that PRRs can be lost. The parent's ability to exercise his or her PRRs may be suspended but not removed as the effect of a child protection order or an order by a children's hearing.

2.3 What are parental responsibilities?

Section 1 of the Children (Scotland) Act 1995 states that parental responsibilities are:

• to safeguard and promote the child's health, development and welfare - this means that the duty to make sure that the child is looked after properly, goes to school, eats well, goes to medical and dental appointments and has all the everyday care that he or she needs to grow up healthy and secure.
• to provide, in a manner appropriate to the stage of development of the child - (i) direction; (ii) guidance, to the child - this means providing children with the rules and boundaries that they need, and with the support to make good decisions.
• if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis - this is for the benefit of the child not the parent.
• to act as the child's legal representative - This means to act for the child by entering into transactions on behalf of the child that have legal effect. This means making decisions for the child in respect of transactions when the child is not able to make that decision (see Chapter one 3). Examples include; managing the child's money, obtaining services for the child.

2.4 What are parental rights?

Section 2 of the Children (Scotland) Act 1995 states that parental rights are:

• to have the child living with them or otherwise to regulate the child's residence - this only applies while the child is under 16 years of age. You will see that it allows a parent to decide that the child should live with someone other than them. (see Chapter one 1 for s. 25 agreements). If the child is subject to a supervision order, the order may suspend that right but not remove it. Only a court can do that. A court may regulate the residence of the child where there is a dispute between parents or where another person has applied for such an order. This is known as a residence order or is sometimes miscalled a section 11 order.
• to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing - this parallels the responsibility above and gives parents the power to carry out their responsibility. As carer you are carrying this out for the parent which is why you are in a subordinate position.
• if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis - this parallels the responsibility above and gives parents the power to carry out their responsibility, but the interests of the child trump the right of the parent. This right is the reason that contact cannot just be regulated by carers or social workers, but needs a decision by a court or a children's hearing.
• to act as legal representative for the child - this parallels the responsibility above and gives parents the power to carry out their responsibility.

Common Myths

Being on the birth certificate gives all dads parental rights and responsibilities whenever the child was born

If your child is subject to a compulsory supervision order you have lost your parental responsibilities and rights

If you do not or cannot exercise your parental responsibilities and rights they will disappear

The parent of a child under 16 who is a parent has parental responsibilities and rights with respect to that child's child.

If someone has a residence order, it will remove the parental responsibilities from people who do have parental responsibilities and rights.

A person with parental responsibilities and rights can give them to another person by writing a letter to say that the person has them.

Useful links:

For legal advice contact Scottish Child Law Centre, Clan Child Law or the Scottish Family Law Association

http://www.sclc.org.uk/ or

http://www.clanchildlaw.org/

http://www.familylawassociation.org/index.asp

Scottish Government Child protection Guidance

http://www.gov.scot/Resource/0045/00450733.pdf

3. Understanding capacity - what decisions children can make

3.1 What is capacity?

Put simply, capacity is the understanding to make decisions that have legal consequences. The Age of Legal Capacity (Scotland) Act 1991 says:

s.1 (1) (a) "a person under the age of 16 years shall… have no legal capacity to enter into any transaction."

But there are exceptions:

s.2 (1) "A person under the age of 16 years shall have legal capacity to enter into a transaction - (a) of a kind commonly entered into by persons of his age and circumstances, and (b) on terms which are not unreasonable."

3.2 So in practical terms what can children do?

3.2.2 Making purchases

These are small purchases, usually for cash, that are purchases normal for the age and stage of the child - from sweets paid for with pocket money, to the shoes and makeup/video games that are typical teen buys. (Pets are excepted for the protection of the animals)

3.2.3 Obtaining services

Children are entitled to obtain services for themselves when they understand enough about what the service is. It will be up to the service provider to decide whether the child understands enough. Children cannot enter into contract so if the service requires payment it will likely require an adult to enter into the contract under the parental right and responsibility to act as the child's legal representative.

3.3 Typical services available to children are:

3.3.1 Advocacy

Scottish Government guidance on looked after children recommends the use of advocacy services. To require parental or adult permission before allowing a child to have access to advocacy can prevent or delay a child from accessing such services and put them at a disadvantage in meetings and children's hearings. Conversely a child cannot be forced to accept such services if they do not wish to do so. (see Chapter three - confidentiality)

3.3.2 Counselling

Counselling services are frequently offered through schools and children should be able to self-refer where appropriate.

3.3.3 Court support and victim support

Services which support victims and witnesses are also services which a child should be able to decide to use and even to self-refer for help.

3.3.4 Sexual Health Advice

A child has a right to access sexual health services in total confidence. The provider of the service will be responsible for considering whether the child has capacity and whether there are any child protection steps that need to be taken. (see Chapter 3 on confidentiality) If you become aware that the child has used such a service, you may be required to notify social work, depending on the individual circumstances of the child, particularly if the child is known to be putting themselves at risk. You may not, however, know that they have accessed the service. For more information about medical treatment see section two on Medical Decisions.

Important Point

Services which require payment require a contract and children aged under 16 years of age cannot generally enter into such contracts.

Children without capacity may also use services - (see your powers to obtain services in Chapter two 4)

4. Medical, Legal and Educational Legal decisions

The Age of Legal Capacity (Scotland) Act 1991 (the 1991 Act) makes specific provision for medical and legal decisions, and the Education (Scotland) Act 1980 (the 1980 Act) governs decisions about schooling.

4.1 Medical decisions

s. 2 (4) of the 1991 Act states: "A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature of the procedure or treatment."

Important Point

Over 16 years of age, the young person is an adult and unless he or she has restricted capacity due to learning difficulties or other circumstances which restrict capacity, has full capacity with regard to medical decisions. If the young person is unable to make decisions a welfare guardianship will be needed - or a power of attorney.

Scottish Government Guidance on Looked After Children states that young people should take increasing responsibility for their own health. (See p 21 of guidance)

http://www.gov.scot/Resource/Doc/344490/0114631.pdf

A child may choose to leave the decision to adults or prefer to be part of decision making with parents/carers. A child making his or her own medical decisions usually only becomes an issue if the child wants to make a decision that the adults find difficult. This may be when the child is refusing treatment, or when it is to do with being sexually active. Where the child wishes to make a decision without the support or knowledge of parents or carers then the medical professionals will also have to consider whether the child is able to manage all aspects of treatment. For example: the child may be able to decide on treatment, but would not be able to manage medication where there are complex side-effects or where there are interactions between medication and diet.

Important Point

A person with parental responsibilities and rights cannot over-ride the decision of the medical practitioner about capacity.

4.1.1 Who is a qualified medical practitioner?

Qualified medical practitioners do not only doctors, but also nurses, midwives, physiotherapists, clinical psychologists and other medical professionals. Persons such as lay counsellors would not be included in the definition.

4.1.2 What is a medical treatment or procedure?

This has a wide meaning and includes all the medical and dental treatments that you would expect. It does not include donation of organs for transplant, participation in clinical medical trials or storage of gametes. It does include decisions about the use of their cells in medical research.

Where a child has been subject to a medical treatment order (commonly called sectioning), the meaning of medical treatment is very wide and includes many things including habilitation. (assistance for a person with a disability to develop maximum independence and capability).

Important Point

Where a child has the capacity to make medical decisions they have the right to full medical confidentiality. This is, of course, subject to child protection.

4.1.3 Are condoms included in medical treatment?

The provision of Condoms is not medical treatment and therefore it is legal for non-medical practitioners to provide them to children under 16 years of age.

4.1.4 What about the morning after pill?

The law makes specific provision for chemists/pharmacists to prescribe this. The chemist/pharmacist should undertake a child protection assessment.

Useful links:

Action for Sick Children toolkit to support foster carers

http://www.ascscotland.org.uk/default.asp?page=85

Scottish Government guidance on sexually active children

http://www.gov.scot/resource/doc/333495/0108880.pdf

Scottish Government guidance on health assessments

http://www.gov.scot/Publications/2014/05/9977

4.2 Legal decisions, instructing legal representation

A child does not need capacity to have legal representation if they are accused of a criminal offence, but they do need capacity in civil law matters. Once the sixteenth birthday has passed, a young person is an adult with regard to instructing legal representation unless they lack capacity.

s. 2 (4A) of the 1991 Act states: "A person under the age of sixteen years shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so; and ….a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such an understanding."

(see Chapter two 13 - criminal matters)

Typical civil law matters that a child might need to consult a solicitor about:

• children's hearings
• human rights
• compensation
• family law disputes
• education

useful links:

Scottish Child Law Centre

http://www.sclc.org.uk/

Children and Young People's Commissioner Scotland

http://www.cypcs.org.uk/

Scottish Legal Aid Board

http://www.slab.org.uk/

Scottish Family Law Association

http://www.familylawassociation.org/

4.3 Useful things to know about children and lawyers

• It is the lawyer who decides on the child's capacity.
• The child does not have to be over 12 to have capacity. Children as young as 8 have had legal representation.
• You certainly can arrange the appointment and take the child but the lawyer will see the child without you, at least at the start.
• The parent has no right to know anything about it. They do not have to be told that the child is seeing a lawyer. If a parent contacts the lawyer they will be told very firmly that the case cannot be discussed with them without the permission of the child. The lawyer will not even have to confirm that the child is a client. However a parent's income will be taken into account by the Scottish Legal Aid Board in civil cases unless the parent is the opponent.
• The child may be eligible for help with legal expenses - but unless the matter is to do with a children's hearing, their parents' resources will be taken into account unless the child and parent are on opposite sides. Your resources will not be taken into account.
• If the child is the client they will have total client confidentiality - unless they choose to share with you.
• They do not need the permission of anyone to obtain legal advice - not a parent, you, a children's hearing, social work -anyone!
• The child can stop the process at any time (unless it is a criminal matter), and the lawyer may reassess capacity, if they feel that the child is losing capacity due to stress.

4.3 Education

The Education (Scotland) Act 1980 s. 28 states "children must be educated in accordance with their parent's wishes" but children also have powers to make decisions. This area of law can be complex, and what follows here and in Chapter 2:3 are only the most common examples. In most cases where problems arise it will generally be essential to obtain specific advice.

4.3.1 Exclusion

A child who has been excluded has the right to appeal the exclusion and should be fully involved in the return to school meetings. You are entitled to support any child who wishes to appeal exclusion.

4.3.2 Restricting information

A child does have the right to make a formal request to the school, in writing, for information to be withheld from someone (usually a parent) if the sharing of that information will cause considerable distress or harm to themselves or another person, and that distress is unwarranted. It will be up to the school or educational authority to decide whether to agree to withhold the information.

4.3.3 Additional Support Needs

A child cannot make a referral to the Additional Support Needs Tribunal for Scotland about themselves, although they may attend children's hearings and do have a right to a view. There are plans to change this. Young people (age 16 and over) can make referrals.

Useful links:

Scottish Information Commissioner

http://www.itspublicknowledge.info/home/ScottishInformationCommissioner.aspx

Lets Talk ASN is a free service for the parents of children with additional support needs

http://www.educationscotland.gov.uk/resources/l/genericresource_tcm4646802.asp

Enquire

http://enquire.org.uk/

Common Myths

Children get to make decisions only when they get to age 12.

A child cannot make a decision unless it is in the care plan that they can.

A child's decision about exercising their capacity can be over-ruled by the local authority.

A child who has capacity must also have the consent of the parent in decisions.

If a professional assesses a child as having capacity for their service, this can be over-ruled by social workers if they do not agree that the child has capacity.

Capacity should only be assessed by psychologists.