Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

GUIDANCE ON LOOKED AFTER CHILDREN (SCOTLAND) REGULATIONS 2009 AND THE ADOPTION AND CHILDREN (SCOTLAND) ACT 2007 superseded by 2011 guidance at https://www.webarchive.org.uk/wayback/archive/20150220122853/http://www.gov.scot/Publications/2011/03/10110037/0

INTRODUCTION AND GENERAL THEMES AND PRINCIPALS

The principal relevant primary legislation to which this guidance refers are the Children (Scotland) Act 1995 and the Adoption and Children (Scotland) Act 2007. Both acts and their attendant regulations embody principles and themes which are explicit in places and implied throughout.

The key principles are:

• To give paramount consideration to the welfare of the child
• To consider the views of the child
• To avoid delay and to make the minimum necessary intervention to a child's life

These principles are derived from the primary legislation referred to above. Other legislation such as the Regulation of the Care Act is reflected in the themes of: transparency in all intervention with children and their families; respect for diversity; ensuring equality of service; and being responsible about and accountable for the collection and storage of information. These central principles and themes have been developed to address national concerns about assessment planning and decision making pathways for many of Scotland's most vulnerable children. This guidance therefore considers the application of these principles and practice. Legal requirements empower and require what we do in our systems and practices. Legal pathways, and guidance, lie within a broader landscape of change and development, the contours of which affect children, families and service providers. This introduction sets out some key features of the policy landscape, identifies relevant sources of information and details forthcoming developments.

A major development has been GIRFEC (Getting it right for every child) which has Child Protection at its centre. How we approach making appropriate arrangements for children and young people through adoption, kinship care and fostering and how we approach child protection are inextricably linked. The challenges of risk assessment, information sharing maintaining a focus on positive outcomes for a child or young person are the same. The principles and themes identified earlier must permeate all practice. Practitioners irrespective of location and job title require a solid understanding of key concepts in child development and also of local structures, processes and requirements that support practice. It is essential that children, young people, their families and their carers experience joined up practice and service across all areas. There are clear connections between the principles, values, methods and intended outcomes for children outlined by GIRFEC and the precision of legislative requirement in adoption, fostering and kinship care. To this end, the guidance has been developed in parallel with the revision of the national Child Protection and Risk Assessment Guidance 2010, a revised Code of Practice on Additional Support for Learning and Safe and Well in schools. These developments have taken place within the wider early year's framework which sets up generic unifying expectations for a diverse children's workforce. The forthcoming reform of the structure and methods of the scrutiny bodies as they relate to children and young people will also reflect these developments.

This guidance will published shortly after the introduction of the Children's Hearing Scotland Bill which was introduced on 23 rd February, 2010. This Bill will underpin reform of the Children's Hearing system, alongside GIRFEC the Early Year's framework and Equally Well and is intended to be part of reform which seeks to address Scotland's cycles of poverty, underachievement and inequalities in health and outcome. The Children's Hearings Bill supports a hearing system, which, like the legislation which is the subject of this guidance, has the welfare principle and child's best interest as paramount concern; promotes the voice of the child and encourages effective participation by the child; lets children have their say on issues which affect them and have their views heard by panel members trained to the highest standard. It also gives children the right to see relevant papers, gives children in situations of risk a unlimited right of privacy in their discussion with panel members, when that is needed and appropriate, gives children a fair hearing when it appears that they have committed an offence and endorses the principle of the minimum necessary intervention.

This guidance also embraces developments in a national approach towards improving the outcomes for children and young people who are looked after by the local authority. The term "Corporate Parent" has no legal status but encompasses the statutory duties on all parts of the local authority to co-operate in promoting the welfare of the children and young people who are looked after by them, and the duty on other agencies to co-operate with local authorities in fulfilling that duty. This requires a child centred approach to service delivery and a shift from "corporate" to "parenting". Good parenting demands continuity, and organisations by their nature are continuously changing, staff move on, elected members change as do the structures and procedures. Good Corporate Parenting manages these changes whilst giving individual children a sense of stability. This concept of stability, often described as permanence, is seen as fundamental to an appreciation of what local authorities should be striving for when exercising their responsibilities towards children and young people. The concept of "permanence" is an important framework for bringing together knowledge about child development, the development of attachment between children and adults, and the way in which this in turn leads to the creation of life long positive relationship. In practical terms, children require to be brought up in an environment which is safe, nurturing, predictable, consistently and continuously available. The daily experience of the child should be one that makes them feel that they are "cared for" and cared about, as well as one in which physical needs are met. Such an environment supports children's emotional and psychological development by promoting self esteem, resilience, hope and optimism for the future. It is recognised that children's parents/direct care-givers are critical to this process. It is parental capacity or lack of it that determines whether statutory involvement is required in order to ensure that children experience an upbringing which is characterised by nurture, comfort, consistency and stability. Parental capacity will be affected by a range of factors: previous experiences; family support; health education; use or misuse of substances including alcohol; community support; etc. These elements form the basis of the GIRFEC "child's world" assessment framework which is vital to an approach which on the one hand supports children remaining within their families wherever it is safe to do so but will identify risky or dangerous situations at an early stage. Early intervention and support for parents may ensure that they are able to meet children's needs, to offer them permanence within their family origin. Sadly however, there are those parents who, because of a range of factors, are unable or unwilling to modify their behaviour so as to meet the present or long term needs of their children.

When action is taken to remove children from such situations through child protection procedures it is imperative that they are able to experience, as soon as possible, all the features of a permanent care placement. Such a placement may be achieved through alternative family members, foster carers or adoption. The guidance sets out, in detail, the expectations in relation to the assessment and care planning for children in these circumstances, and also promotes best practice as regards the recruitment, assessment and support of a range of carers including adopters.

The Adoption and Children (Scotland) Act has its origins in the work of the Adoption Policy Review Group convened by the Scottish Government in 2001. The focus of the group was to consider the effectiveness of existing legal framework in meeting the needs of children separated from their birth families and whose future becomes dependent on the actions of local authorities. The work of the group culminated in the publication in 2005 of the report " Adoption: better choices for our children". The report identified the positive contribution which adoption can make to the lives of children, and recommended proposals, incorporated into the Act, to ensure that the adoption process reflects contemporary family structures, best practice and research.

The Act has also introduced a new order, the Permanence Order, which is intended to be used in those situations where the local authority will continue to have responsibility for a child or a young person. The order is designed to remove uncertainty from a child's life and to empower his or her carers so that the daily experience of the child is of nurture and predictability; of someone being there for him or her. To this end the guidance draws extensively on material developed as part of the Getting it right for every child in foster care and kinship care strategy (2007).

Ambitious targets have been set for working with children and young people in Scotland, to achieve the following national outcomes:

• that our young people are successful learners, confident individuals, effective contributors and responsible citizens;
• that our children have the best start in life and are ready to succeed
• that we have improved the lives of children and young people and families at risk

This guidance is intended to support the work of all those who take part in the assessment and planning process for children and young people, in the provision of resources in the recruitment, assessment and support of carers and those individuals who through kinship, foster-care or adoption offer children and young people on a daily basis, nurture, respect, comfort and all the many experience which will make for a happy childhood and adolescence.

The welfare of the child is paramount

Local authorities have duties under section 22 of the 1995 Act to 'children in need', to promote the welfare of children in need, including that they shall "so far as is consistent with that duty, promote the upbringing of such children by their families". Guidance for children in need services is provided in Volume One of Scotland's Children, Scottish Office, Edinburgh, 1997. However, local authorities' duties when children are or may be 'looked after' are separate. They are primarily set out in section 17 of the 1995 Act and then supported by the regulations. One of those duties is about the paramountcy of children's welfare, which may be simply stated as putting children's welfare first.

The principle of paramountcy of children's welfare is found in various wordings in sections 11, 16 and 17 of the 1995 Act and sections 14 and 84 of the 2007 Act. The duty in section 16(1) of the 1995 Act is on courts and children's hearings when making decisions, and the section says that "the welfare of the child throughout his childhood shall be their or its paramount consideration." Section 17 of the 1995 Act sets out local authority duties towards 'looked after' children and authorities are required to "safeguard and protect" children's welfare as their "paramount concern", section 17(1)(a). Section 84 of the 2007 Act says that courts, when "considering whether to make a permanence order and, if so, what provision the order should make" must "regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration." And finally, section 14 of the 2007 Act deals with the principle for all adoption agencies and their decisions about adoption, and also for courts when they are making decisions about adoption. Section 14(3) says that courts and agencies must "regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration."

The APRG Report, which led to the 2007 Act, refers to the benefits to children when "the three "roles" of birth parent, person with daily care and person with legal responsibility are combined in the same person". The regulations for 'looked after children' highlight the particular task of the social work services in holding in balance the interests of children and their birth parents within the context of the child's welfare. This emphasis on seeing the child within the context of his or her family combines a general belief in the value of family life with the needs of each individual child. The challenge to social work agencies is to be able to articulate clearly and objectively the elements of 'family life' that are essential to the well-being of children, the absence of which would be detrimental to their development; and to evidence the degree they are available - or not available - to a particular child. In order to do this, agencies need to have an understanding of the theories and research about the needs of vulnerable children and the impact of different types of parenting relationships, abilities, environments and care on their welfare. As the knowledge base increases, the challenge to agencies is to ensure that, at all levels and in all aspects of children and families services, there is a consistent understanding of the criteria for intervention and for provision of those services. This consistency should range from decision-makers and those responsible for the service through to those providing direct care or support

The terminology of both 'safeguarding' and 'promoting' the welfare of children indicates the need for services to go beyond ensuring safety to actively promoting good care. This covers both the provision of family support services where children remain on supervision with their birth parents or within their kinship network and also where there is alternative care away from home. The APRG Report, underpinning the 2007 Act, has as one of its principles the desirability of care with substitute parents where children cannot be brought up by their birth parents. The regulations and guidance address the provision of kinship care, foster care and adoption services. In promoting the welfare of children, agencies in their criteria for and preparation of kinship carers, foster carers and adopters also need to be clear about what constitutes positive reparative parenting. Statutory agencies also need to have regard to their responsibilities as 'corporate parents' in their aspirations for those in their care and the nature of that care.

Not all children or young people are best placed within families and where residential care is the preferred option, the responsible statutory agencies should again have regard to their responsibilities as 'corporate parents' in their aspirations for those looked after in this way, and the nature of how such care is provided.

Consideration of the child's views

The need for consideration of the child's views is specifically requested at various points in the legislation and regulations. This guidance assumes that at all times children's views and understanding are central. Tuning into children's perceptions of their situations and enabling them to express their views is, however, a skilled task particularly when children or young people may be feeling very vulnerable, angry or distressed; lack trust in adults; be struggling with a conflict of loyalties or have had little opportunity to develop their skills of communication. Making this 'real' for children and young people in this guidance presupposes that consideration has been given to the quality of the direct service to them. Where children or young people are separated from their birth parents, their current carers would be expected to have an important role to play in this. Their social worker should provide the link to knowledge and understanding of their family circumstances and should have the time and training to carry out their responsibilities to the children and young people. All children should also have the opportunity of access to an independent person equipped and trained to help them articulate their views, especially in court, Children's Hearings or other key decision making fora. This person should be unencumbered by any other responsibilities or interest in the case. Agencies currently use different ways to provide this opportunity, such as using an independent children's advocacy service, children's rights officers within a local authority or Who Cares? Scotland.

Agencies should also consider how they provide a supportive climate for enabling children to express views by their strategies for consulting and involving children in the services that are directly concerned with their care.

Minimum Necessary Intervention

Any intervention into family life may be experienced as an intrusion. In the regulations and guidance, interventions will range from compulsory supervision of a child or young person who remains at home through to the most significant intervention of the legal transfer of a child from one family to another through adoption. Clearly, the more significant and long lasting the intervention, the greater the onus to establish the necessity for that decision. In doing this, there are two key aspects to consider. Firstly, what are the disadvantages for the child in the status quo - such as lack of safe care, distress from uncertainty about future plans, exposure to ongoing conflict? Secondly, what are the potential the gains for a child in seeking a particular order? Agencies may consider here what they hope to achieve for all children who are looked after and their aspirations for these children, together with the most effective ways to offer them the stability and care they require. Outcome studies and comparable information gathered by individual agencies should inform decision making and contribute to monitoring the effectiveness of services, to add to the information base on necessary intervention.

In looking at the options for children who required secure long term care, the discussions and consultation prior to the 2007 Act indicated not only the disadvantages of those available at that time, but also pointed out that one of the main options, PROs, were seldom used. The introduction of the Permanence Order is intended to provide 'clear and unambiguous long-term legal security for children and carers'. Its effectiveness will depend on its positive use.

Equality and Diversity

Both the 1995 Act and the 2007 Act require consideration of and respect for the ethnicity, religious persuasion and cultural and linguistic backgrounds of children. In addition, statutory bodies and other service providers are subject to the equality legislation. And specifically under the 2007 Act and the regulations there have been changes in who can apply to be assessed to adopt or foster. Agencies therefore need to address a) any barriers to access to services to ensure equal opportunities for all; and b) the diversity needs of each individual service user.

Avoidance of delay

The need to make decisions within a timescale which meets children's needs is particularly pertinent to permanency planning. Allied to this, in introducing the 2007 Act there was recognition of the effect of prolonged uncertainty on children and their need for stability, predictability and the opportunity to form secure attachments. This has wider application to children and young people who are 'looked after' and need to know the direction of planning in each individual situation. As in previous regulations, the secondary legislation made under the 2007 Act includes guidelines and timescales for different parts of the planning and decision-making processes. While adherence to these is necessary, experience has shown that timescales alone do not prevent all delay. The guidance expands on the regulations in indicating what should be happening within timescales, where these are set out. Many of the decisions to be made are difficult and potentially contentious; and plans may not be accepted or agreed by everyone. This calls for planning and decision-making processes that are well informed, professionally sound and appropriately scrutinised. Confidence in the quality of processes is the key to minimising delay. Delay may arise as a consequence of the involvement of more than one agency.

Under the GIRFEC approach, when two or more agencies need to work together to provide help to a child or young person and family, there will be a Lead Professional to co-ordinate that help. This is not a concept embodied within the legislation, but it is becoming part of the national practice landscape. The role of the Lead Professional is to:

• make sure that the child or young person and family understand what is happening at each point so that they can participate in the decisions that affect them;
• be the main point of contact for children, young people, parents and family members, bringing help to them and minimising the need for them to tell their story several times;
• promote teamwork between agencies and with the child or young person and family;
• ensure the child's plan is implemented and reviewed;
• be familiar with the working practices of other agencies;
• support other staff who have specific roles or who are carrying out direct work
• or specialist assessments; and
• ensure the child or young person is supported through key transition points, particularly any transfer to a new Lead Professional.

For looked after children and other children who may need adoption, the role of the Lead Professional will normally be the local authority social worker.

Openness and transparency

This is not an explicit principle but is an assumption based both on accepted practice and also on the regulations where provision of reports to certain individuals is required. This principle applies to all relevant reports produced by the social work services regardless of whether that is specified in regulations. From the time when children become looked after, there is some level of statutory intervention in their lives and this must be addressed. To do this effectively, it is vital that, at all stages, everyone fully understands the reasons for intervention and what follows from that.

While there is no question about the need for open, transparent and comprehensible processes, the content of the information and materials considered is frequently sensitive. The principle of openness needs to be balanced by respect for the private and family lives of all those involved, including the children and young people.

Regulations and guidance also address the maintenance of records and access to these.

Case Records

It is obvious that, not only do local authorities and other agencies have duties in the regulations made under the 1995 and 2007 Acts, they also need to be able to demonstrate how they have carried out those duties. Individuals acting on behalf of agencies need to be accountable for their actions; and local authorities and agencies are themselves accountable for their decisions. This requires attention to be paid to their case records. In different parts throughout the regulations under the 1995 and 2007 Acts, there are specific requirements about the various records for looked after children, foster carers, kinship carers, adoptive parents and children placed for adoption.

In particular, regulations under the 1995 and 2007 Acts address the establishment of records, what must be included in them and the requirements surrounding retention. These should be read in the context of the wider responsibility of agencies for the quality of all their records and the manner in which records are managed . The Code of Practice on Records Management, 2003, sometimes referred to as the 'section 61 Code', gives good practice guidance to local authorities about keeping, managing and disposing of records for which local authorities are responsible under the Freedom of Information (Scotland) Act 2002. Local authorities and agencies should ensure that all records required under the regulations covered by this guidance conform to the Code so far as is appropriate, and particularly in how they are established, managed and stored. However, it must be remembered that information in these records is 'personal data' and its access to them is not governed by the 2002 Act but by the Data Protection Act 1998 or, for adoption agency records, by the relevant adoption regulations. Access requests may say they are made under the 2002 Act, but these should be treated as being made under the 1998 Act.

Local authorities and agencies should have both a clear overall approach to the establishment, maintenance and monitoring of all their social work records; and also have statements in their procedures about the purpose of the various kinds of records they maintain. Other service providers, whether for the support of vulnerable families or for the provision of fostering and adoption services, will primarily be working within agreements with local authorities. In this area, as in any other, they will need to conform to the legislation which applies to local authorities for whom they are providing a service. It would be logical and good practice to apply this also to any independent work arising, for example, from self-referrals.

Establishing records

For each of the duties covered by the regulations under the 1995 and 2007 Acts, agency procedures should ensure not only that the content of records conforms to regulations, but also that the records fulfil their purpose as working tools for complex social work tasks. They are likely to contain many different types of information and need to be ordered in a way that makes them accessible. Issues applying to all these records include:-

• Transparency of the agency process that can be evidenced to other relevant individuals and bodies, including courts.
• Accessible key documents relating to assessment, planning and decision making, to bring consistency and coherence to the process, especially when workers change.
• Evidence of consultation and the views of key participants.
• Clarity as between agency and other reports, and information from other organisations and third parties. This should include clarity about of what information has been shared, what is confidential and how views from other organisations and individuals have been taken into account.
• Appropriate use of checklists to ensure that statutory notifications and agency procedures are followed, balanced by a professional understanding of the needs of the individuals using the service.
• Robust practical and administrative systems to ensure confidentiality, security, efficiency and effectiveness of records, whether paper or computer based. This includes indexes both to the information within a particular record and links to other relevant records.
• Evidence of monitoring the work in each case to address agency accountability.
• Awareness of the responsibilities of the local authority under section 17 of the 1995 Act both towards children and young people who are looked after and the resources provided for them through foster care, kinship care and adoption, including demonstrating that the local authority has maintained the centrality of the child's interests. This should be based on the aspirations articulated in strategies such as "Getting it right for every child", GIRFEC, which define the aims of any service for children and assess how this will be achieved through the care provided for the child.

Retention of and access to records

There are different minimum periods for which different records must be retained. Social work records in this area of work are frequently extensive, contain sensitive personal information and may be kept for very long periods. One of the principles of the data protection legislation is that information about individuals should only be kept for as long as it is necessary to do so. When there are regulatory timescales for keeping records, that is one reason for retaining information. Therefore, each authority and agency which keeps such information should be clear about its purpose and need for its retention, and base their procedures on this understanding.

There are two broad groups to consider. Firstly, those who are or have been looked after by a local authority, whether they returned home, were adopted or remained in foster or residential care. Secondly, those who have offered and/or been approved to provide care for children, as foster carers, kinship carers or adopters. The primary reasons for retaining records are different as between these two groups. This underpins the differentials in the retention periods. For agencies complying with the regulations, it is important that their procedures address the individual retention requirements including closure, archiving and destruction of records.

It is also necessary for agencies to have procedures about requests for access to their records and the services required in response. Existing procedures and systems will need to be up-dated in line with changes under the 2007 Act and developments in information legislation. Procedures should take account of the possibility that access requests may say they are under the Freedom of Information Act 2002. In fact, they are applications about 'personal data' and should be treated as being made under the 1998 Act, or the adoption regulations as appropriate.

There are different rules about how adoption agency records and how looked after and foster and kinship carers' records may be accessed. Access to records which are not adoption ones is governed by agencies the Data Protection Act 1998 as well as the Data Protection (Subject Access Modification) (Social Work) Order 2000, SI 2000/415. The 1998 Act has two broad purposes:

a) to give individuals 'subject access' rights, to access personal information held about them (with some restrictions to protect the subject and third parties); and

b) to provide a legal framework for the handling of all personal information.

Most 'subject access' requests will be from adults who were looked after, or from parents of currently looked after children or from former or current foster or kinship carers. However, a young person who is under 16 has the right to seek access to his or her own records, in terms of section 66 of the 1998 Act, when he or she "has a general understanding of what it means to exercise that right." There is no lower age limit. A young person who is 16 or over has full adult capacity to exercise rights under the 1998 Act.

Further information and about data protection issues generally may be obtained from the Information Commissioner for the UK.

For adoption records held under the Adoption Agencies (Scotland) Regulation 2009, there are access provisions in the Adoption (Disclosure of Information and Medical Information about Natural Parents) (Scotland) Regulations 2009. Adoption records held under the Adoption Agencies (Scotland) Regulations 1996 are accessed under those regulations. These records are 'subject access' exempt in terms of the Data Protection (Miscellaneous Subject Access Exemptions) Order 2000, S.I. 2000/419 and the Data Protection (Miscellaneous Subject Access Exemptions) (Amendment) Order 2000, S.I. 2000/1865, with access being under the 1996 Regulations.

Agencies responsible for these records should have guidelines for staff in responding to a range of situations including:-

• Adopted adults who may seek information under adoption regulations; and also adults who have spent significant periods of time 'looked after' and have made 'subject access' requests under the Data Protection Act 1998. In reality there are similar needs between these two groups and this is a complex area of work in its own right, with many dilemmas and areas of discretion. This is an area where work may be carried out directly by local authorities or through an agreement with a registered provider. The extent of this work should be monitored and accounted for in local authorities Children's Services Plans and Adoption Services Plans.
• Requests both internally and from other agencies for information about previous applications to adopt, foster or become kinship carers for a child. These may be either about people who have successfully provided care in the past returning to offer further care or about people who have withdrawn at an earlier point or been turned down. Careful consideration needs to be given to the sharing of information where there has been previous contention about suitability for the task.
• Appropriate responses to historical allegations of abuse.

For all these records, both when they are established and also when providing access at a later date, agency procedures should include guidance on all aspects of 'third party' material. These should cover all situations, whether information is provided by a third party or about a third party. Good practice in active cases should manage all aspects of this information, which may come from other individuals or from other organisations or professions who may have different guidelines. Good practice in active cases will then provide a solid base for considering requests in the future. Any decisions about information given in confidence, or balancing risks to individuals of sharing potentially damaging material, should be clearly recorded with reasons. This is within a context where the guiding principle should be the sensitive application of openness and honesty.