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

PART X EMERGENCY MEASURES, REGULATIONS 36 TO 41

Regulations 36 to 41, Emergency placements

These regulations cover the requirements when children have to be placed in an emergency. The term 'emergency' suggests a sudden event or change which needs immediate intervention and which will inevitably be traumatic for children. Given their statutory responsibilities, authorities are inevitably in a position where they are required to react to a wide range of circumstances in which children are vulnerable. Some children in previously unknown families may suddenly require placement because of significant incidents which put them at risk. Other children may belong in families new to the local authority area. Many children, however, are already known to the local social work services and may already be receiving a service, either as children in need or because they are subject to home supervision requirements.

Local authorities should monitor the number of children who are placed in an emergency, as well as those placed through planned interventions. This should help authorities in the planning of their emergency placements services.

Wherever possible, the potential need for vulnerable children to move from their birth parents to other placements should be considered as part of all assessments. Some children may be on the 'at risk' register, others may be reviewed as 'looked after children' while still at home. Where there are indications that situations are deteriorating or there are new risk factors or a families are recognised as chaotic and volatile, every effort should be made to identify protective factors in children's environments, and people who could assist in emergencies. While it may not be possible to predict exact events, support services for children at home should aim to build up expertise in understanding the children's world and developing strategies for minimising trauma when the inevitable crises occur.

Contact and withholding child's address

Regardless of where a child is placed in an emergency, immediate arrangements should be made for him or her to have contact with those who are important to him or her and/or familiar. However, this is subject to contact being appropriate and not contrary to the terms of any court order or hearing warrant, etc. The local authority must ensure that social workers and everyone around the child are aware of any restrictions about contact for the safety of the child, and any prohibitions on disclosing the child's address. Local authorities should ensure they have rigorous procedures to ensure that a child's address is not disclosed when that is prohibited and/or not in the child's interests.

Duty to provide information about the child

There is a duty in regulation 36(5) on the local authority to provide the person with whom the child is placed in an emergency with information about the child's background, health and emotional development. Although there is no corresponding duty in regulation 37 (emergency placement in residential establishment), a local authority should provide similar information to the unit at the time of the placement. While providing the information may be difficult in some circumstances, local authority procedures at this crucial time for a child should prompt workers to make every effort to obtain as much as possible, both to ease the transition for the child and to enable the carer or establishment to respond appropriately to the child. This may include ensuring that workers, including out-of-hours staff, have ready access to information already available about the child and his or her family; and also having procedures and systems which give as much space as possible to the social worker to concentrate on the needs of the child and communicating with parents or whoever is available with information about the child. Tuning in to the needs of siblings at this time is particularly important.

It is also vital to check if there are any important objects, items or photographs that should accompany the child.

Identifying resources in an emergency

Between them, regulations 36 and 37 cover four placement options in an emergency:

• an approved kinship carer, regulation 36(1)(a); or
• an approved foster carer, regulation 36(1)(b); or
• someone who is known to the child and has a pre-existing relationship with the child, regulation 36(1)(c); or
• a residential establishment, regulation 37(1).

A child may not be placed with any person or in any particular residential establishment where this is contrary to any order, authorisation or warrant already in place, regulation 36(4) and 37(2).

Placement with approved kinship carer

This may occur where the need for such a placement has been anticipated, for example where a parent has a deteriorating condition or where a parent's mental health difficulties or substance abuse are known to create crises when an identified kinship carer may step in. The kinship carer should already be approved by the local authority, have signed the kinship care agreement in Schedule 5 and had an opportunity to discuss this fully. In addition, the carer should have had time to consider the matters and obligations in the Schedule 4 placement agreement about the child who is already known to them. These materials should address the duties on the carer as referred to in regulation 36(3). However, special attention should be given at the time of placement to contact arrangements, especially as there may be specific requirements made by a court or hearing in the case of an emergency placement under a child protection order or hearing warrant.

Placement with approved foster carer

As with an approved kinship carer, any approved foster carer will already have signed a foster carer agreement in Schedule 6. Where the local authority consider that they may want to place a child with foster carers in an emergency, they may wish to ensure that the foster carer agreement used specifically covers in principle all the carers' duties in regulation 36(3). The Schedule 4 placement agreement for a specific child may need to follow later when a child is placed in an emergency, and any more specific details about contact and social work supervisory visits can be added at that point.

However, as with all emergency placements, special attention should be given at the time of placement to contact arrangements, especially as there may be specific requirements made by a court or hearing in the case of an emergency placement under a child protection order or hearing warrant.

In some instances, to keep siblings together, or simply to identify a foster placement, it may become necessary to consider approaching foster carers about a placement which takes them beyond their terms of approval. Where this is being considered in an emergency, the team leader of or other identified person in the family placement team should be approached first. Many foster carers find it difficult to say 'no' in an emergency, and all local authorities and registered fostering services have a duty of care to their foster carers and their families. Any approach to extend carers' terms of approval must therefore be based on knowledge of their ability to manage an extra placement.

If, by the time of the review in three working days (regulation 38(2)), it is clear that the placement is continuing, the agency decision maker should be informed of the extension of the carers' remit and asked to approve this. Any such request should include a brief risk assessment; comment on any additional supports that are being provided for the carers; and plans to monitor the impact on the carers, any children of the carers and existing children in placement, as well as the child(ren) placed in the emergency. The social workers for children already placed should be notified. Where the extra placement in an emergency is short-term or only intended to last until a longer placement becomes available, the emergency extension of the terms of approval should cease once the child has moved on. The carers' support worker should keep in close touch with the situation and ensure the placement does not exceed a maximum period agreed at the outset. If a particular placement settles down and works well for all concerned, consideration of an alteration to the terms of the carers' approval should be addressed at the foster carers' review. Consideration should be given to bringing forward the timing of this review, to allow for objective discussion of the issues before the placement becomes a fait accompli.

Placement with unapproved carer

An emergency carer in regulation 36(1)(c) will normally be someone who could be a kinship carer but has not yet been approved. This could be because a kinship care assessment is underway but not completed when the emergency placement is needed; or the person may only come forward at the time of the emergency. He or she may be prepared to offer short-term care but not wish to be assessed and approved as a kinship carer, although this is a matter for ongoing discussion between the person and the local authority.

As with all emergency placements, special attention should be given at the time of placement to contact arrangements, especially as there may be specific requirements made by a court or hearing in the case of an emergency placement under a child protection order or hearing warrant.

The first stage of an emergency placement with an unapproved carer is about what should be done within the first three working days. In an emergency, the local authority should have procedures to cover:

a) steps that must be taken before the child actually moves in with the unapproved carer, including a check of local authority records; a visit to the address where the child will be placed, to establish that it is safe for the child and also who is in the household; if the need for emergency placement is about child protection, an explicit discussion about keeping the child safe in the particular context of the carer's position in the child's network.

b) the agreement that needs to be discussed with and signed by the prospective emergency carer. This should be based on the duties which the carer has under regulation 36(3).

Placement in a residential establishment

Regulation 37 allows for an emergency placement in a residential establishment for a period not exceeding 3 working days. The requirements are brief and purely address the need to establish that such a placement is the most suitable way of meeting the child's needs and that full consideration was given to the possibility of placing with a carer under regulation 36. For some children or young people, placement in a residential establishment may be the most appropriate choice, based on the available information at the time or the circumstances leading to the need for a placement. Clearly residential establishments have duties towards children placed under regulation 37 comparable to those laid out for emergency carers in regulation 36. These should be established in line with the appropriate provisions for all registered and inspected units.

Many of the emergency placements in residential establishments will be of older children or young people and the duties laid out for emergency carers in regulation 36(3)(b) to (e) and (5) are relevant for residential units also. In emergency placements, there may be many gaps in information about a child or young person so there is a need to build up the assessment. The circumstances leading to the emergency placement may form a significant part of this. Obviously, young people will vary as to whether a traumatic event will lead them to talk about themselves or close off communication. The establishment will need clear information both about respect for confidentiality and also what may need to be shared with the local authority.

There is a requirement in regulation 36(5) for the local authorities to give information about the child to the carer. A residential establishment will need similar information in order to provide appropriate care for the child and this should be provided as soon as possible. If an emergency residential placement continues after the three day review, regulation 41(4) imposes various duties on the local authority, including providing information in terms of regulation 35.

Reviews of emergency placements

After every emergency placement, the child's case should be reviewed within three working days. This is required by regulation 38(2) (for placements with carers under regulation 36); and regulation 41(2) (for placements in an establishment under regulation 37). Wherever possible, the time and date of this review should be set when the child is being placed. Local authority procedures should be clear about where these reviews will be held, so that there is capacity to carry them out in the necessary time frame.

Thereafter, if the child continues in the emergency placement, his or her case must be reviewed within six weeks, under regulation 39(3), where the placement is with a carer under regulation 36. Following a child's placement in a residential establishment, a child care review must be arranged within six weeks under regulation 45(2)(a), which is part of the general review requirements.

Many local authorities have established independent reviewing teams and the point at and means by which they become involved in emergency placement reviews should be clarified with them. Depending on local arrangements and service capacity, it may be more realistic for the three working day review to be held within the practice team; and then, if the child continues in the emergency placement, the case may be referred to the independent reviewing officers to arrange the six week review required under regulation 39(3). Where the local authority does not have independent reviewing officers or they do not become involved until after the six week review, that review of the emergency placement should be chaired by a senior social worker or team leader who has not been directly involved in the emergency admission, to establish an element of independence, especially if there are contentious matters.

The key people to include in reviews, in addition to the chair, are:

• the child, if old enough;
• the child's parent(s) and any other person with parental responsibilities;
• the child's carers or a staff member from the residential establishment which is caring for the child;
• the child's social worker;
• a social worker from the family placement team or the manager of the residential establishment;
• any other worker who was known to be actively involved in working with the child prior to the emergency placement

Three working day reviews

The purpose of and requirements for the three working day review are listed in regulations 38(2) and (3) and 41(2) and (3). The main functions are to cover a range of matters.

• Ensuring that all the requirements in regulations 38(2) and (3) or 41(2) and (3) are met, particularly deciding "whether placement continues to be in the best interest of the child".
• Ensuring that all the practical arrangements for the care of the child have been attended to, such as immediate clothing and equipment needs, transport to school, medication and dietary requirements.
• Obtaining the views of all concerned about the impact on the child of the placement, and in particular to establish the child's views.
• Where there are ongoing child protection concerns, confirming that all relevant people know how to keep the child safe.
• Where a young person's behaviour is placing him or her at risk, considering the management of this.
• Considering whether the particular placement provided for the child is in his or her best interests, and is the most suitable possible one.
• Where the placement is with approved foster or kinship carers, checking that a Schedule 4 foster carer or kinship care placement agreement has been completed.
• Where the placement is with a carer who is not an approved one, ensuring that the initial checks have been made and information gathered for the review. This is crucial because the local authority is unlikely to have detailed information on the carer in the same way as they would for an approved one. Also, this will make it easier to reach an informed decision about continuing with the placement. If the child remains in the emergency placement, these checks and information may form the early steps of a kinship carer assessment.
• Ensuring that the local authority is fully informed about the child's legal status, and about other services, agencies etc which may have responsibilities towards the child and/or be involved in the child's welfare. These may include: whether there is a pre-existing child's plan or any other support plan for the child or his or her family through the Health Board, education department or any other agency; the Children's Hearing system and dates of further hearings; any ongoing police or other child protection investigations; information about any other court orders for contact or residence in existence through private law applications, including under section 11 of the 1995 Act; and any other relevant issues such as immigration status or visa requirements.
• Where the child is already subject to a supervision requirement, discussing whether a review hearing should be requested, to take account of the child's change of circumstances.
• Where there is a child protection order, ensuring that everyone is aware of dates of hearings and the rights to seek a review of the order.
• Where it is clear that the child continues to require the placement, discussing plans for ongoing contact, where this is appropriate and safe.
• Establishing whether: the information required under regulation 3 has been gathered; and whether a comprehensive assessment for the child has been completed under regulation 4, leading to the child's plan under regulation 5. If there is a child's plan, this should be up-dated in light of the need for the emergency placement. If this has not been started or completed, and the child continues to be placed, there must be discussion about how the work should be initiated and carried out, including what should be done by the time of the six week review. This is in line with the duties in regulation 38(4).
• Explaining the purpose of the assessment and the plan to the child, as appropriate given his or her age, and to the parents. Particular attention should be paid in this to those families where children may have experienced various brief periods of placement and returning home quickly, with the assessment and planning process often interrupted.
• Identifying any support services that may already be in place and need to be transferred to the child's placement, and/or any new services that are required
• Establishing whether there are any further options to pursue within the child's network, if the child has not been placed with kinship carers or someone otherwise known to him or her.
• If possible, identifying the arrangements for the six week review. A six week review of a continuing emergency placement with carers is required under regulation 39(3). A six week review of a continuing emergency placement in a residential establishment is required under regulation 45(2).
• Ensuring that everyone is clear about the duties on the local authority when the decision is for the placement to continue, and who is responsible for these. For a placement with carers, the duties are in regulation 38(4), to obtain information, make an assessment and a child's plan (see para 11 above); and regulation 40, notifications of the placement to certain agencies and people. For placement in a residential establishment, the duties are in regulation 41(4). These refer not only to obtaining information, making an assessment and making a child's plan, but also to regulations 34 and 35, about notifications and provision of information. Please see guidance on Children placed in residential establishments.

Six week reviews

If the three day review has led the local authority to continue an emergency placement with carers (regulation 39(3)) says there must be another review within six weeks of the original date of placement. If the three day review has led the local authority to continue an emergency placement in a residential establishment (regulation 45(2)(a)) says there must be another review within six weeks of the original date of placement. The six week review has to look at the matters listed in regulations 38(3) or 45(5) respectively. The issues covered above, for three working days reviews, will continue to be relevant. If the child continues to be looked after and placed after the six week review, further reviews will be required in due course under regulation 45(3) for carer placements, or regulation 45(2) for residential placements, within three months and then a further six months. Please see guidance on Frequency of reviews under regulation 45

Extension of emergency placements with carers

If the three working day review has led the local authority to continue an emergency placement with carers, regulation 39(1) says that the placement may continue for up to 12 weeks from the original date. Regulation 39(2) only allows the placement to continue for more than 12 weeks in certain circumstances. If the child is with an approved kinship carer, all the placement requirements for kinship care in regulation 11 must be met. If the child is with an approved foster carer, all the placement requirements for foster care in regulation 27 must be met.

If the child is with an unapproved carer, the placement under this regulation will not be able to continue after the 12 week period unless he or she has been approved as a kinship carer by that time (regulation 39(2)(c)(ii)). The local authority also have to be satisfied that the placement is in the child's best interest and that the placement requirements for kinship care in regulation 11 are met. However, if a Children's Hearing make a supervision requirement or vary an existing one and name the unapproved carer as the where the child is to live, the placement could continue on that basis. The local authority report recommending this would have to set out that this is in the best interest of the child and that the terms of regulation 36 were met, under regulation 7(2)(d). Please see guidance on Recommendations by the local authority to the Principal Reporter.

Suitability of placement in longer-term planning

Emergency placements are at the other end of the spectrum from the careful matching in adoption or permanent placements. For all looked after children placed by local authorities, there are the systems for the review of children's plans and needs, regulations 44 and 45. Where children are placed with kinship carers, one of the key themes throughout is intertwining the threads of the children's needs with the ability of the kinship carers to respond to those needs. For other children who are placed by local authorities, there are also the annual reviews of foster carers or inspections of residential establishments. Of course there are overlaps and sharing of information, but the regulations for emergency placements highlight the importance of asking at an early stage whether this resource (possibly the best option at a time of crisis) continues to be suitable for a longer placement. It is important to acknowledge this issue early on in placement, so that the child and carers are not left in an uncomfortable limbo and that active plans are made to seek a more appropriate placement in a positive manner.

There are various issues to consider for longer-term planning, of which the following are examples.

• Efforts are usually made to find foster placements for younger children, while adolescents may be more likely to be placed in a residential establishment. This may be based on limited knowledge of individual children and young people, with restricted time to discuss the options with them. Further assessment may indicate that, for some young children, a family represents a frightening environment and they may not be able to contain their panic, so a specialist residential placement may prove more suitable. On the other hand, some teenagers may flourish given individual attention in a family placement. Views of the most suitable type of placement may therefore be influenced by greater knowledge of the individual.
• There are particular challenges for residential establishments, especially if they have a broadly defined remit, to cater for a mix of incoming children and young people while trying to provide stability for longer term residents.
• Many children are accommodated as sibling groups. For larger groups, the dilemma often starts when they are accommodated in an emergency. Is it more important to keep them together, even if this means residential care for very young children? Or would it be better to split them up, so that the little ones have a more manageable family experience? If children require long-term care, or eventually plans for permanence or adoption are made, such arrangements at the outset of placements may have a significant impact on all the plans thereafter. This calls for early attention to sibling relationships, including contact arrangements between separated siblings in their own right, apart from contact with parents. Attention also needs to be paid to those situations where sibling relationships are so distorted as to put certain children at risk, especially if they share a bedroom. At the same time, there are other siblings whose relationship has been adversely affected by dynamics within their birth family and who need to learn together about healthier ways of interacting. Where siblings have been split in an emergency, and it is clear that the aim should be to reunite them while they continue to need placement, there needs to be an active plan to achieve this.
• Some children may have particular needs arising from their ethnicity, religion or culture but which cannot be immediately met in an emergency. Support to them and education of their carers may be of immediate help, but attention must be given to finding more suitable alternatives if long-term arrangements are likely. This is better for the children and their welfare than leaving them in a less well-suited placement, and then facing further dilemmas about uprooting them from foster carers with whom attachments have been formed.
• Foster carers may be very willing to help out in an emergency but then find that a placement is lasting longer than anticipated. This may cause the equilibrium of the household to be unsettled, with ongoing stress for themselves, their own children, other children in placement and the incoming child. Foster carers' support workers need to be alert to these situations and help carers contribute to early reviews, so that placements which may not be sustainable are identified early, and ended in a planned way, with minimal negative messages to the child or family.
• Although careful matching of placements may not be realistic in an emergencies, local authorities constantly need to review their number and range of resources, and those they may call on from registered fostering providers. This is to enable them increase their potential to offer children placements which meet their needs as fully as possible in emergency, temporary situations.