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

PART III GENERAL MATTERS AFFECTING LOOKED AFTER CHILDREN, REGULATIONS 6 AND 7

These are general provisions for looked after and prospectively looked after children, although they are about unrelated matters.

Regulation 6, Death of a looked after child,

Under regulation 6, a local authority are required to notify the Scottish Ministers immediately in the event of the death of a child who is looked after by them. Also, they must, so far as is reasonably practicable, notify every parent of the child and every person who has any parental responsibilities or parental rights in relation to the child, except where the child is living with such a person.

Notifying the Scottish Ministers

If any looked after child or young person dies (whether he or she was living at home or was placed away from home) the local authority looking after the child must notify the Scottish Ministers (formerly the Secretary of State). This is done by advising the Social Work Inspection Agency, SWIA, whose contact details are:

Telephone: 0131-244 4735
Fax: 0131-244 5496
Website: www.swia.gov.uk

When a child looked after by them dies, the local authority should contact SWIA within one working day, by telephone, fax or email. They should give SWIA the name of the child, his or her date of birth, the legal circumstances in which he or she was being looked after and where, and brief details of the cause and circumstances of his or her death, if known. This information should be confirmed immediately in writing and a copy of the death certificate should be forwarded as soon as it is available. Within 28 days, the local authority should send SWIA a detailed report and supporting information. It may not always be possible to supply complete information at this point if, for instance, a police investigation is still being carried out and/or criminal proceedings are outstanding. However, as full a report as possible should be supplied, with a supplementary report sent in as soon as the additional information is available.

Reports will be acknowledged in writing. The local authority may be asked for supplementary information, including information from other agencies involved with the child. The Scottish Ministers will, through SWIA or any other relevant agency, advise the local authority about their conclusions and indicate what, if any, further action they will take or require the local authority to take. The Scottish Ministers may take steps to:

• examine the arrangements made for the child's welfare during the time he or she was looked after;
• assess whether action taken or not taken by the local authority may have contributed to the child's death;
• identify lessons which need to be drawn to the attention of the local authority immediately concerned and/or other authorities or other statutory agencies;
• review legislation, policy, guidance, advice or practice in the light of a particular case or any trends emerging from deaths of children being looked after.

Local authorities should also be aware of their duties to notify "without delay" the Scottish Commission for the Regulation of Care, the Care Commission, about the death of any service user, including a looked after child. This is in regulation 21 of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002, S.S.I. 2002/114.

Notifying parents and other relevant persons

This will obviously require sensitivity and should be addressed as soon and as openly as possible. Where the address of the parents is not known, other statutory agencies may be able to assist in identifying or finding them or other persons concerned; and it may also be appropriate to seek the help of other agencies in notifying the persons concerned where they live some distance outwith the local authority area. It may not be possible to enlist the help of authorities outwith the UK. If a person to be notified has been identified but is living outside the UK, the local authority may have to give the information about the child's death in writing, although this is not an ideal way to communicate it. Where the person is a UK citizen living abroad, the British consulate in the country concerned may be able to assist.

Arrangements for the funeral

Where parents retain their parental responsibilities, they have responsibility for all the funeral arrangements unless they delegate that to the local authority or cannot be found. Support and assistance should be provided to parents to help them make arrangements and give other help which may be required, including bereavement counselling. It may be helpful for support to be provided by someone who has been through a similar bereavement.

Where the local authority has parental responsibilities and rights through a permanence order, they should discuss who is to make the funeral arrangements with the parents, and anyone else with responsibilities or rights under the order. Again, support and assistance should be provided to parents and others, including bereavement counselling

The local authority may arrange for the child's body to be buried or cremated. Generally, however, the local authority should help those with parental responsibilities to take responsibility for arranging the funeral and burial or cremation. Where parents or persons with parental responsibilities cannot be found, efforts to find them should not delay the funeral. The funeral should be conducted in accordance with the child's religious persuasion. Where parents or persons with parental responsibilities cannot be found but there is information about a child's religious and cultural heritage, advice should be sought immediately from that community to ensure compliance with any requirements. Local authorities are not authorised to cremate a child's body where this does not accord with the practice of the child's religious persuasion.

Sections 28 and 29(2) of the Social Work (Scotland) Act 1968 as amended by the 1995 Act enable local authorities to:-

• cause to be buried or, unless it is not in accordance with the practice of the child's religious persuasion, cremated, the body of any deceased child who immediately before his or her death was being looked after by the local authority;
• recover from the estate of the deceased person or from any person liable to maintain him or her immediately before his death expenses incurred in connection with the burial or cremation;
• make payments to the parents, relatives or other persons connected with a child who had been looked after by the local authority for purposes of any of those persons attending the child's funeral if it appears to the local authority that those persons would not otherwise be able to attend without undue hardship and the circumstances warrant the making of such payments.

The local authority may recover from any parent of the child, including through summary recovery as a civil debt, any expenses they have incurred through the burial or cremation of a child who was under sixteen when he or she died. Whilst many parents will wish to take responsibility for or contribute towards the costs of the burial or cremation, some may be unwilling or unable to do so. This issue should be handled with particular sensitivity.

The local authority may make payments to any person who has parental responsibilities for the child, or any relative, friend or any other person connected with the child, to pay travelling, subsistence or other expenses incurred in attending the child's funeral, where it appears that the person concerned could not otherwise attend the child's funeral without undue financial hardship and that the circumstances warrant the making of the payment. This provision might apply where the child has been placed a long way from home and the carers and the other children in the placement wish to travel to the funeral, or where the child's family are living on a very restricted budget and have no capacity to cover unforeseen expenses. These payments are not recoverable by the local authority.

Where the child has been looked after away from home, particularly if he or she has been in a long-term family placement, the carers may feel distressed that they are not able to organise the funeral. Depending on the cause of death, sometimes feelings of anger are expressed by parents or carers that more could have been done to prevent the death. Details should be provided in the report to the Scottish Ministers about how such issues have been dealt with if they have emerged.

Information should also be provided in the report to Scottish Ministers about any bereavement counselling that has been made available to parents, carers, siblings, other children in the placement, and to any other persons for whom it may be needed.

Support of staff and carers involved with the child and family

Staff and foster families who have been closely involved with a child who dies while being looked after, or who make the funeral arrangements or provide bereavement counselling, may need support to come to terms with the events. Authorities should make this available where necessary. The Fostering Network may be able to put foster carers in touch with other foster carers whose foster children have died. Where necessary, authorities should also provide support to staff and others about dealing with the media.

Regulation 7, Recommendations by the local authority to the Principal Reporter

Section 56(2) and (7) of the 1995 Act is the main provision for requests from the Principal Reporter for local authority reports, for investigative purposes and for hearings when these have been arranged. The local authority have a duty to provide that report, including all information they consider relevant. While the Principal Reporter and the local authority are two separate bodies with their own specific responsibilities, the expectation is that all key information should be shared fully and honestly.

Regulation 7 makes specific provision for the part of the local authority report with the placement recommendation for the child, including living at home. There is a list of the different options the local authority may recommend for where the child should live when subject to a supervision requirement:

(a) remain at home or otherwise live with someone who has parental responsibilities or rights; or

(b) placement with a kinship carer who has been approved under regulation 10 and entered into a kinship carer agreement under regulation 12; or

(c) placement with a foster carer who has been approved under regulation 22 and entered into a foster carer agreement under regulation 24;

(d) placement with someone who is not a " Relevant persons" and where the requirements of regulation 36 are met; or

(e) placement in a residential establishment.

When the local authority are recommending a supervision requirement for the child to live anywhere except with a relevant person, the report also has to meet the requirements of rule 6 of the Children's Hearings (Scotland) Rules 1996, SI 1996/3261. The report must therefore cover the needs of the child and the suitability of the placement recommended and the person(s) who will be providing care.

The local authority should provide information about the placement options considered and why they think the recommended one is in the best interests of the child. This should include, where appropriate, the views of the child on the recommendation(s). Information should cover the efforts made to identify a suitable placement for the child within his or her kinship network, and where this is not the recommended option, the reasons for this.

Where the placement recommended is with a kinship carer is already known and has been assessed and approved under PART V KINSHIP CARE of the regulations, the report to the Children's Hearing should summarise a range of matters:

• why this particular member of the child's network is considered best placed to meet the child's needs;
• his or her ability to keep the child safe and care for them appropriately;
• the benefits to the child of remaining within the kinship network; and
• any acknowledged areas of vulnerability where the local authority will offer support.

Where placement with an approved foster care is recommended, the reasons for this should be stated. While it may not be possible in an emergency placement for details of the foster placement to be provided immediately, when a supervision order is being considered, the specific foster placement being recommended will be known. The recommendation should include information about the foster placement identified and its appropriateness in meeting the needs of the child. This should be done through a summary of the foster placement, including confirmation that the proposed carer has been approved as a foster carer and the terms of the approval. However, it is not necessary to provide the Children's Hearing with the full assessment report which led to the approval of the foster carer.

Where the local authority is recommending placement with someone who is not a " Relevant persons" and where the requirements of regulation 36 (Emergency placement with carer) are met, the report to the Children's Hearing should explain how those requirements are met. Regulation 36 is about emergency placements, but regulation 7 cross-refers to its requirements; basically as a minimum to be met when making this type of recommendation. The report has to indicate how the person was identified and how the pre-existing relationship with the child was established and evaluated. The person has to be someone who is known to the child and has a pre-existing relationship with him or her. The report also needs to confirm: that the person has signed a written agreement to carry out the duties in regulation 36(3); that such a placement would not be contrary to any existing supervision requirement, order, warrant, etc or return the child to a place from where he or she had been removed under an order, etc, regulation 36(4); and that they have provided the person with the information listed in regulation 36(5).

Where placement in a residential establishment is recommended, the reasons for this should be stated. The recommendation should include information about the residential establishment identified and its appropriateness in meeting the needs of the child.