Embedding children's rights: position statement

6. Family Environment and Alternative Care

Relevant UNCRC Articles: 5, 9-11, 18(1-2), 20-21, 25, 27(4)

This cluster group focuses on the needs of children within families and the care system.

6.1 Support for Joint Parenting

LOIPR request: 24(b) support for joint parenting.

The Scottish Government believes both parents should be fully involved in a child's life, so long as this is practical and in the child's best interests. Section 16 of the Children (Scotland) Act 2020 (2020 Act), yet to be commenced, amends the Children (Scotland) Act 1995 in relation to court cases involving matters such as parental responsibilities and rights. The amendment adds as a factor that the court must consider when deciding whether or not to make an order, the effect that the order might have on the involvement of the child's parents in bringing the child up.

The Scottish Government recognises that primary legislation is only part of the action necessary to improve the operation of family justice. A Family Justice Modernisation Strategy (2019) sets out the work that is ongoing by the Scottish Government and others, including work that can be delivered via secondary legislation or by improved guidance, areas covered by the 2020 Act, and areas that are for longer-term work. It also includes work on prioritising sibling relationships for children in care.

During the reporting period, the Scottish Government provided funding through the Children, Young People and Families Early Intervention Fund for organisations that provide counselling, mediation, child contact centres and a range of high quality resources. The Scottish Government also provides funding to Shared Parenting Scotland.

During the pandemic, the Scottish Government recognised the importance of shared parenting arrangements, where the public health position allowed us to do so. For example, there was a specific exemption in the restrictions on gatherings and travel where the purpose of the gathering or travel was to facilitate shared parenting arrangements.

Shared Parental Leave and Flexible Working

Parental leave and flexible working are reserved matters, however the Scottish Government supports a gender-balanced use of employee benefit and family-related leave. In December 2019, the Scottish Government responded to the UK Government's Good Work Plan consultation by recommending to UK Ministers the improvement of shared parental leave by giving partners an additional 12 weeks paid leave on a non-transferable basis. We have also called on the UK Government to offer flexible working from day one of employment.

Parental Leave Following Miscarriage or Stillbirth

The Scottish Government has committed to ensuring that families who experience miscarriage or stillbirth are entitled to three days of paid leave. We will implement this commitment within the public sector and are calling on the UK Government to make the necessary changes to employment law to make this available for everyone.

6.2 Early Intervention/Prevention

LOIPR request: 25(a) the provision of preventive services to help avoid the use of alternative care.

The Children (Scotland) Act 1995 (1995 Act) promotes the rights of children who are considered 'in need' and supports an early intervention approach to ensure that the best interests of the child are prioritised. The 1995 Act also states that public authorities should ensure, where safe to do so, that children should be brought up by their family; and usually by their parents, with responsibilities for their care being shared. Part 12 of the Children and Young People (Scotland) Act 2014, which came into force in August 2016, sets out responsibilities of local authorities to provide services to children, young people and pregnant women who they consider to be at risk of becoming looked after. Children's services planning partnerships develop plans to respond to the needs of this cohort.

Whole Family Wellbeing Funding

The Programme for Government 2021-22 announced investment of £500 million to support whole system transformational change to shift investment towards early intervention and prevention activities and to ensure families can access support before they reach crisis point. We want families to be able to access the support they need, when they need it, for as long as they need it. This will mean family support services working collectively in a multi-agency and multi-disciplinary way to meet the spectrum of support needs for the whole family. Our ambition is that from 2030, we will be investing at least 5% of all community-based health and social care spend in preventative whole family support measures. In 2022-2023 we are supporting:

• Local areas, through Children's Services Planning Partnerships (CSPPs), to build local service capacity and transform family support services.
• Three CSPPs to accelerate plans and provide local learning that can be shared nationally.
• New, Scottish Government-led national policy delivery that supports the development of transformational approaches at a national level.

6.3 Looked After Children and Young People

Under the Children (Scotland) Act 1995, 'looked after children' are broadly defined as those in the care of their local authority, sometimes referred to as a 'corporate parent'. There are many reasons children may become looked after, including: because they face abuse or neglect at home; are unaccompanied minors seeking asylum, or who have been illegally trafficked into the UK; or the child's behaviour requires it.

Part 9 of the Children and Young People (Scotland) Act 2014 sets out that corporate parents (listed in the Act) are required, amongst other duties, to promote the interests of looked after (or former looked after) children, assess the needs of looked after children for services and support, and seek to provide opportunities for those young people to participate in activities to promote their wellbeing. All children and young people who need to enter care should be treated with fairness and respect regardless of background.

Removal of Children from their Families

LOIPR request: 25(b) preventing the arbitrary removal of children from their families.

A principle of the Children (Scotland) Act 1995 is that any intervention with children and their families must be properly justified and supported by relevant services and agencies. Legislation in Scotland is built upon these principles and checks and balances within the system ensure that where professionals consider that children cannot remain safely in their family, plans are multi-agency and premised upon these legal principles.

The Scottish Government is taking steps to promote and support kinship care arrangements and will set a Recommended National Allowance for foster and kinship allowances. This investment will mean that no matter which area of Scotland children are living in, their caregivers will receive at least the Scottish Recommended Allowance to care for them. Discussions with COSLA to find a way forward on the introduction of the Scottish Recommended Allowance, which were paused during COVID, have now resumed.

The Kinship Care Collaborative was established in November 2021 to improve outcomes for children and young people in kinship care and better support their carers and the professionals who work with kinship families. Supporting the Collaborative are three working groups which are exploring issues relating to: definitions of kinship care within legislation and guidance; support, resourcing and good practice; and how best to improve consistency of service provision and visibility of kinship carers within communities. As part of the work of the Collaborative, we will also seek the views of children and young people in kinship care, and those of their carers. Our expectation is that the Collaborative will deliver tangible change for kinship carers to enable them to be better equipped to care for and nurture the children they are looking after.

We also provide £324,000 per annum so that the Kinship Care Advice Service for Scotland (KCASS) can provide information, advice and support to kinship families across Scotland, and develop networks of knowledge for professionals working with them.

The Scottish Government is continuing to fund intandem, Scotland's mentoring programme for children and young people looked after at home, with £750,000 provided each year since its launch in November 2016. Intandem is delivered by Inspiring Scotland and provides mentors for young people aged between 8-14 years who are looked after by their local authority but living at home. The programme is now being expanded to include some children and young people living in kinship arrangements. The programme has attracted 12 partner agencies in 19 local authority areas to help enable children and young people to: increase self-confidence; improve self-esteem, improve social relationships; engage with the local community; and reduce isolation. To date, intandem has made over 525 matches between children and volunteer mentors, with the average mentoring relationship lasting 16 months.

6.4 Keeping The Promise

LOIPR request: 25(d) providing stability for children in care.

Improving the life experiences of children and young people with experience of care is a priority for the Scottish Government. In 2017, we instructed a root and branch independent review of the Care System in Scotland to consider what needs to change to ensure Scotland's children grow up loved, safe and respected so they can reach their full potential. Running from 2017 to 2020, the review listened to over 5,500 voices, over half of which were our children and young people who have experience of the care system. The conclusion of this work was The Promise, which set out over 80 conclusions in a clear statement of what needs to change to support our Care Experienced children, young people, adults and families across Scotland.

In 2021, the Scottish Government established The Promise Scotland, which is responsible for driving the work of change demanded by the findings of the Independent Care Review, by leading and collaborating with partners across Scotland. The proposed and planned work, which is detailed in Plan-21-24, Change Programme ONE and on The Promise Scotland website, will involve a wide range of organisations working towards shifts in policy, practice and culture to Keep The Promise.

The Scottish Government is fully committed to delivering the transformational change required to Keep The Promise by 2030. To support this, on 30 March 2022, we published the Promise Implementation Plan, which sets out the actions and commitments we will take to Keep The Promise.

The Promise Implementation Plan also sets out our vision to deliver the ambition and ethos reflected in The Promise's 'A Good Childhood'. This requires a fundamental change in the way that care looks and feels for children, families and caregivers in Scotland. Our new approach to care is supported by six key principles which will guide our policy and delivery decisions. These are thematic in nature, applying equally wherever a child lives, and should promote transformational change in the way Scotland cares for its children, reducing poverty, inequality and giving children with care experience the best chance of the life they rightly deserve. The principles focus on meaningful relationships, family support, health and wellbeing, support for caregivers, smooth transitions and reducing the stigma that can isolate children, young people and families who have experience of care. We are currently working to develop a comprehensive, evidence-based work programme, with key delivery milestones, and will engage with partners and people with care experience to implement this between now and 2030.

We have also taken early key actions to Keep The Promise such as ensuring that where living with their family is not possible, children can stay together with their brothers and sisters if it is safe to do so. This is set out in section 13 of the Children (Scotland) Act 2020 and the Looked After Children (Scotland) Amendment Regulations 2021, which came into force in July 2021. Where it is not appropriate for brothers and sisters to live together, steps should be taken to help them stay in regular touch with each other and to nurture their relationships.

Under the new rules, brothers and sisters also have new rights to appropriately participate with support, including advocacy services, in Children's Hearings where contact with their siblings is being considered. Guidance to help social workers and other practitioners to implement the legislation was published in July 2021. (Advocacy in the Children's Hearings System is discussed at section 3.13.)

To further support stability for children in care, local authorities in Scotland provide a rights respecting, relationship-based social work service to children and young people. This includes consistency of social worker to ensure that the child has that relationship-based contact regardless of where they are living. If a different social worker is involved, perhaps due to the fact that the previous social worker is no longer employed by the local authority, then every effort will be made to ensure stability for the child including remaining in their current living arrangements.

Scotland's Adoption Register

The Scottish Government set up Scotland's Adoption Register to increase the number of children who are adopted and, through the Children and Young People (Scotland) Act 2014, placed the Register on a statutory footing. Since its establishment in 2011, the Adoption Register has facilitated 783 matches with adoptive families.

Alternative Care Placements

LOIPR request: 25(c) preventing the placement of children in unregulated alternative care.

Alternative care placements in Scotland are regulated by the Care Inspectorate, with the exception to this being kinship care where family or friends care for children. These care placements, including fostering, adoption and residential care, are all subject to regulation, reporting and inspection measures. Children and their families can make complaints about their care placements through the placing local authority and/or to the Care Inspectorate directly. Care placements are regularly reviewed with multi-agency professionals and the child and family are encouraged to share their views on both the plan for their care and the care environment experienced.

6.5 Support for Young People Leaving Care

LOIPR request: 25(e) support for children leaving care.

The Children and Young People (Scotland) Act 2014 brought forward a number of provisions to ensure a gradual, supported transition of young people out of care. Continuing Care allows an eligible care leaver to remain in their care setting up to their twenty-first birthday. This encourages and enables care leavers to maintain their positive relationships with carers, and to move towards independent living at a pace that suits them. Additionally, the Act extended the upper age of eligibility for Aftercare, which requires a local authority to provide support, based on an assessment of need, up to a care leaver's twenty-sixth birthday.

Non-statutory guidance on Aftercare and Continuing Care was co-produced with the care sector and published in November 2016.^. The Guidance advises that young people should be involved in planning for when they will cease to be looked after as soon as possible and the presumption should be that they will 'stay put' for as long as possible or until a time when they feel ready to move on. The Scottish Government continues to work with local authorities and stakeholders to improve implementation of policy and create positive transitions for care leavers.

The data for young people eligible for continuing care is based on the information provided by local authorities through the Children Looked After in Scotland (CLAS) statistics collection. We are aware that implementation of the policy has been inconsistent across Scotland. In 2022, CELCIS published Continuing Care: An Exploration of Implementation, a report commissioned by the Scottish Government. The evidence provided in the report, whilst qualitative in nature, provides valuable insight into the perceived barriers and enablers to consistent implementation of continuing care across different parts of the sector. Officials will continue to work with the care sector to better understand existing barriers and to promote effective practice.

The Scottish Government has also implemented policies that provide further support and opportunities for people with care experience. This includes Council Tax exemption, and a Care Experience Bursary to enable Care Experienced people of any age to access further and higher education. Further to this, the Scottish Government has committed to £10 million of funding to introduce a Care Experience Grant providing an annual payment of £200 for young people with care experience between the ages of 16 and 26 years. Measures to support young care leavers into housing are discussed at section 7.38.

Support for Care Experienced Children During COVID

We are aware of the impact that the COVID-19 pandemic has had on our Care Experienced population. Many young people highlighted that they experienced isolation and loneliness as a result of lockdown, many of whom may not have had immediate family networks to rely on for support. In response, care leavers were included in the second phase of the Connecting Scotland programme, which provided digital technology and access to disadvantaged groups across Scotland. As part of this roll-out, over 4000 care leavers were provided with digital access which enabled better access to remote support and provided opportunities for them to stay connected with family and friends.

In addition, as part of the Winter 2020 Support package, funding of approximately £400,000 was provided to Who Cares? Scotland to fund their helpline throughout the winter period. The helpline provided access and signposting to help and support and was also used to provide ad hoc financial support for Care Experienced young people who were struggling with food/fuel payments. Over 400 young people who previously had not been engaged with Who Cares? Scotland made contact through the helpline. Furthermore, as part of the Scottish Government's 2021 Summer Offer for children and young people, approximately £200,000 of funding was allocated to Staf (Scottish Throughcare and Aftercare Forum) and Who Cares? Scotland to provide a programme of activities and events for young people with care experience.

6.6 National Care Service (Scotland) Bill

The National Care Service (Scotland) Bill, which was introduced to the Scottish Parliament on 20 June 2022, seeks to improve the quality and consistency of social services in Scotland. The Bill includes the proposal to give the Scottish Ministers powers to transfer relevant functions from local authorities or from Health Boards^[22]. It is a framework Bill and the transfer of any of the local authority functions would be under secondary legislation. At this stage, a decision has not been taken on whether to transfer children's services. In considering the proposals for including children's services within the National Care Service (NCS), and the development of the NCS as a whole, the Scottish Government will seek to give further effect to the rights of children, ensuring compatibility with the UNCRC requirements.

6.7 Young Carers

Stakeholder request: measures to support Scotland's young carers.

There are an estimated 30,000 young carers in Scotland (unpaid carers under 18 years of age)^[23]. The Carers (Scotland) Act 2016 (2016 Act) seeks to make a meaningful difference to the lives of unpaid carers, including young carers, and those that they care for. For young carers, provisions in the 2016 Act include the right to a young carer statement (YCS) to identify each young carer's personal outcomes so that their eligible needs are supported. This involves an outcomes-based conversation about the young carer's personal circumstances and must include information about the impact of caring on their wellbeing and whether the care they provide is appropriate. Personal outcomes may include their wish to, for example, work or undertake studies or training. Local authorities must also consider whether the support provided to a carer should take the form of, or include, a break from caring. The Scottish Government is establishing a right to breaks from caring through the National Care Service (Scotland) Bill, to support all carers to protect their wellbeing and sustain caring relationships. When a young carer turns 18 years of age, their YCS will continue until they are provided with an adult carer support plan.

Other provisions in the 2016 Act include: duties on local authorities and Health Boards to jointly prepare a Local Carer Strategy; duties on local authorities to establish and maintain an Information and Advice service for relevant carers, as well as to involve carers in decisions about carer services; and a duty on Health Boards to ensure carers are involved in the hospital discharge of cared-for persons. The Scottish Government has also prepared and published a Carers' Charter, setting out the rights of carers as provided for under the 2016 Act.

We are continuing to work with a range of partners, including the Scottish Young Carers Services Alliance, to ensure the successful implementation of the 2016 Act, and are focusing on priorities highlighted in the National Implementation Plan for the Act, which was refreshed in September 2021. We have funded partners to develop resources aimed at supporting young carers to understand their rights under the Act, including a Carers Act - Young Carers Jargon Buster. In addition to this, we continue to fund the annual Young Carers Festival and annual Carers Parliament where the rights of young carers are discussed and highlighted to all those who attend.

National Carers Strategy

We are currently developing a National Carers Strategy, after having consulted on a draft Carers Strategic Policy Statement between September and December 2019. The final draft of the Strategy has now been shared with key stakeholders. The Strategy will focus on carers, including young carers, and their needs, setting out how policies across the Scottish Government can work together with other public bodies. It will help support carers in a meaningful and sustainable way as we recover from the pandemic and go through the cost of living crisis. We have engaged with young carers about the Strategy's scope and purpose to ensure that this is shaped by those who best understand the many challenges faced.

Advice and Support for Young Carers

We continue to fund Young Scot to provide an exclusive platform for young carers with tailored e-vouchers, discounts and opportunities to help support young carers' wellbeing and enable them to relax and have fun. This package is available to all young carers aged 11 to 18 years. In 2020-21, we provided an additional £300,000 in funding for this package to ensure that young carers could continue to access opportunities during the pandemic which were safe and had a particular focus on maintaining mental health and wellbeing. In January 2022, we invested an extra £234,000 to continue to expand the Young Scot Young Carers Package. In recognition of the fact that transitioning from being considered a young carer to an adult carer can be difficult, the package now includes a transition bundle to provide extra support as young carers approach 19 years of age.

We also continue to fund a full-time Education Officer post in Carers Trust Scotland. The post holder has been working closely with the Scottish Government, Education Scotland, the General Teaching Council for Scotland and the Scottish Qualifications Authority to ensure that education staff are aware of young carers and have the understanding and resources to be able to support them appropriately.

The Young Carer Grant supports eligible young carers aged 16 -18 years old with a payment of £326.65, which can be applied for annually, to help them access life opportunities which are the norm for many other young people. Figures published in September 2022 demonstrated that the Scottish Government had paid out more than £2 million by 31 July 2022 to eligible young carers since the Young Carer Grant opened in October 2019.