Looked After Children (Scotland) Amendment Regulations 2021: children's rights and wellbeing impact assessment

CRWIA – Stage 3 - Publication Template

CRWIA title: The Looked After Children (Scotland) Amendment Regulations 2021
Date of publication: 24 February 2021

Executive summary

The amendments to the Looked after Children (Scotland) 2009 Regulations will have a positive impact on children and young people. This allows for compliance with UNCRC requirements: Article 3 (best interest of the child): the best interests of the child must be a top priority in all decisions and actions that affect children; United Nations (UN) Guidelines (article 17) for the Alternative Care of Children states that “siblings with existing bonds should not be separated unless there is clear risk or it is otherwise in the child’s best interests.”

There has been growing evidence on the importance of maintaining sibling relationships, to ensure where possible that children who are looked after away from home are brought up together. In most circumstances, separating siblings adds to the trauma already suffered by children.

Section 13 of the Children (Scotland) Act 2020 amends section 17 of the 1995 Act to provide that the local authority must take such steps to promote personal relations and direct contact between a looked after child and their siblings, as appear to the local authority to be appropriate, having regard to the local authority’s duty to promote the welfare of the child.

This replicates the duty that local authorities have to promote personal relations and contact between a looked after child and those with parental responsibilities and rights. The duty applies not only to siblings, but also to any other person with whom the child has lived and with whom the child has an ongoing relationship with the character of a relationship between siblings. Two people are defined as siblings if they have at least one parent in common. This could be a biological parent or a parent by operation of adoption law or by virtue of the Human Fertilisation and Embryology Act 2008.

Section 13 of the Children (Scotland) Act 2020 also amends section 17(3) of the 1995 Act. The effect is that, before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of siblings and any other person with whom the child has lived and with whom the child has an ongoing relationship with the character of a relationship between siblings.

Article 12 of UNCRC requirements (respect for the views of the child): Children have the right to an opinion, and for it to be listened to and taken seriously, is also enabled here by amending the 2009 regulations.

Background

The Looked After Children (Scotland) Regulations 2009 (“the 2009 Regulations”), supplemented by guidance, specify how local authorities are to care for children in public care. They make provision for the duties and functions of local authorities in respect of children who are looked after by them in terms of section 17(6) of the Children (Scotland) Act 1995.

The need to amend the 2009 Regulations relates to two matters:

• The need for local authorities to have regard to the welfare of the child in relation to sibling placements and;
• Exception of foster placement limits to allow extension of emergency placements.
• Publication of Children's Social work 2018/19 Statistics

Scope of the CRWIA, identifying the children and young people affected by the policy, and summarising the evidence base

The change to 2009 Regulations is likely to potentially affect children and young people of all ages and from all backgrounds. The change will have more of an impact on children involved in court proceedings about the arrangements for their upbringing; looked after children and those involved in the Children’s Hearings System.

A variety of sources were used to help understand the likely impact of the amendments to the 2009 Regulations. In addition to the continuing close engagement with a wide range of stakeholders, the sources of information which informed the scope of the CRWIA included:

• The conclusions from the Independent Care Review – the Care element is very clear that “Care: Where living with their family is not possible, children must stay with their brothers and sisters where safe to do so and belong to a loving home, staying there for as long as needed.” The-Promise.pdf (carereview.scot)
• Key stakeholder groups such The Fostering Network, Social Work Scotland, CELCIS Improving Care Experiences group, and the Care Inspectorate all meet regularly. Outputs from these groups ensures timely delivery of a high quality service and the further improvement development work which is required, such as the work being taken forward in relation to the Review of Care Allowances

Children and young people’s views and experiences

Children and Young People Survey for Children (Scotland) Act

Two versions of the Children Scotland Bill consultation document were available - a main document containing 54 questions, and a child friendly version containing 16 questions. Both documents contained a mix of closed and open questions. The young persons’ survey asked respondents to identify which age category they belonged to. Nearly half (46%) were aged 16 or under. 294 children and young people responded to the survey.

Analysis of the child friendly version of the Children (Scotland) Bill consultation showed that young people were supportive of being allowed to keep in contact with their brothers and sisters, however, responses were more split between always being allowed (31%) and only when it was good for the child (44%).

One key recurring message was a need for the child’s best interests, their welfare and their voice to be of paramount importance in any changes to the legislation.

The Promise – conclusions from the Care Review – published Feb 2020.

The Care Review, took place between February 2017 and February 2020. The Care Review listened very carefully to those with experience of living and working in and around the ‘care system’ to properly understand what needs to change.

The Care Review heard over 5,500 experiences. Over half were children, young people and adults who had lived in care. The rest were families and the paid and unpaid workforce.

The Promise states “Scotland already has a presumption that children will stay together with their brothers and sisters. That presumption must be fully implemented and closely monitored.

Relationships that are important to the child - It is not only sibling relationships that are important to children but cousins, step-siblings and a range of other relationships including former carers. All children must be supported to continue relationships that are important to them, where it is safe to do so. This reflects the overall understanding that consistent, loving relationships keep children safe and that Scotland must listen to and do what children want and need.”

The Promise, Chapter 4 Care p 61-62

Children and Young People on the Board of Our Hearings Our Voice (OHOV)

The OHOV Board members were surveyed to gain their views on the proposed changes to the 2009 Regulations in respect of keeping brothers and sisters together where it is safe to do so. Overall the children and young people thought the proposals were a very positive step. They understood the limitations and the reasons why it may not be possible in every single circumstance but noted that even when siblings aren’t really close, they are still siblings and have a bond that should be supported by being together.

Key Findings, including an assessment of the impact on children’s rights, and how the measure will contribute to children’s wellbeing

The Scottish Government has found that the proposed amendments will further comply with the Articles of the UNCRC and that these will have a positive impact on children and young people.

Impact on Children’s Rights.

Article 3 – best interests of the child - is key to the policy intention of the amendments to the 2009 Regulations – recognising the importance of sibling relationships by placing a duty on local authorities to place child siblings together, where it is in both of their interests to do so. This is a positive impact for this article.

The paramount principle of the welfare of the child at the centre of decision making, remains. There may be competing interests between children and the welfare of each child will require to be considered. In some situations, the relationship between siblings may be inappropriate or harmful. The amending Regulations will be accompanied by practice guidance which draws out some of the complexities in more detail.

United Nations (UN) Guidelines (no 17) for the Alternative Care of Children states that siblings with existing bonds should not be separated unless there is clear risk or it is otherwise in the child’s best interests.

The Promise (conclusions of the Independent Care Review) highlights the need for a strong legal framework that acknowledges protects and promotes sibling relationships with those in and on the edges of care. The report advocates for legal protections that must include the right to time together, meaningful participation in decision-making about their siblings and clear, simple rights to appeal.

Article 8 – protection and preservation of identity - is relevant in relation to a child’s relationship with siblings, who are considered family relations in the implementation handbook for the Convention published by UNICEF.

Article 8 is relevant in relation to the provisions in the children (Scotland) Act 2020:

• placing a duty on local authorities in relation to looked after children up to promote contact with their siblings; and
• introducing factors to be considered by the court before making an order under section 11(1) of the 1995 Act, including the effect the order may have on the involvement of the child’s parents in bringing the child up and the child’s important relations with other people.

The amendments to the regulations will have a positive impact on this article.

Article 12 - Respect for the views of the child - is key to the policy intention that the views of the child are considered in proceeding and decisions that affect them.

Article 12 is relevant as it introduces a duty for local authorities to take the views of siblings including child siblings when making a decision to promote personal relations and contact between a looked after child and their siblings.

The amendments to the regulations will have a positive impact on Article 12.

Article 16 -Every child has the right to privacy. The law should protect the child’s private, family and home life.

Article 16 is relevant in relation to the current duty on local authorities in relation to looked after children to promote contact with their siblings and the amendments to the 2009 regulations that siblings should be placed together where it is safe to do so;

The amended regulations will have a positive impact on Article 16.

Article 20 - If a child cannot be looked after by their family, governments must make sure that they are looked after properly by people who respect the child’s religion, culture and language.

Article 20 is relevant in relation to the current duty on local authorities in relation to looked after children to promote contact with their siblings and the amendments to the 2009 regulations that siblings should be placed together where it is safe to do so;

The amendments to the regulations will have a positive impact on article 20.

Article 25 - If a child lives away from home (in care, hospital or in prison, for example), they have the right to a regular check of their treatment and the way they are cared for.

Article 25 is key to the policy intention that the welfare of the child is paramount in consideration.

The amendments to the regulations will have a positive impact on Article 25.

Measures contribution to children’s wellbeing.

Safe:

Ontological security of children and young people is realised by keeping siblings together where it is safe to do so.

Achieving:

Securing safe, stable, loving and permanent homes for every looked after child at the earliest opportunity is key to children succeeding, including in education.

Nurtured:

Children and young people in care generally want to see and keep in touch with their brothers and sisters and ideally continue to live with them. They often want to see them more than they do. Children and young people can experience strong feelings of loss and anxiety in relation to being separated from their siblings. When children and young people don’t see their brother(s) and sister(s) they worry how they are doing, including being concerned for those they have never met. When looked after children and young people are separated there is a high risk that contact will be irregular, limited, or non-existent. This can be a source of distress for children and young people, and is an issue that also concerns professionals. A duty to keep siblings together will help children and young people feel nurtured.

Respected:

Recognition of the immense importance of life-long sibling relationships and supporting children to maintain this consistency in their lives. Preserving relationships that are important to a child is as important as building attachments with new carers and family and is key to equipping a child to grow up with the necessary skills to develop and maintain healthy adult relationships.

Responsible:

When children and young people are placed together older siblings can take the initiative and assist their young siblings with tasks or activities. This allows the older sibling to have a sense of responsibility.

Included:

The Children (Scotland) Act places a duty on local authorities to promote sibling personal relations and the amendments to the 2009 regulations further support that duty by ensuring local authorities keep siblings together where it is in the child’s best interest to do so.

CLAN Childlaw Report – Promoting Sibling Contact for Looked After Children

Family Life In terms of the Human Rights Act of 1998, public authorities (including local authorities, courts and children’s hearings) have a duty to act compatibly with certain rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”). Those rights include the right to respect for “family life” specified in Article 8 of

Any interference by a public authority in family life must be lawful and “a proportionate response to a legitimate aim.”

It follows that local authorities, courts and children’s hearings need to consider whether there are close personal ties between siblings in care. If those ties are present, then “family life” between those siblings, in terms of Article 8, exists and any interference by a public authority must be lawful and proportionate. To be lawful, the interference must be conforming to or permitted by law (which could be a statute, a regulation or common law). To be proportionate: (1) the objective of the interference must be sufficiently important to justify limiting the fundamental right; (2) the interference must be rational, fair and not arbitrary; (3) the interference must be kept to a minimum, so far as is reasonably possible; and (4) the interference must involve the striking of a fair balance between the rights of the individual and the interests of society. If the interference is unlawful or disproportionate, the Article 8 rights of each sibling will be violated.

It is important to be aware also of the terms of the United Nations Convention on the Rights of the Child (UNCRC). Although the

Article 16 of the UNCRC is in the following terms:

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.”

All of the duties imposed on local authorities in promoting sibling contact and keeping sibling together where safe to do so must be read in the context of the obligation on public authorities to act compatibly with the rights under ECHR, including the Article 8 right to respect for family life.”

CLAN Childlaw Promoting Sibling Contact for Looked After Children

Monitoring and review

Ongoing monitoring and evaluation of the impact of this legislation will be carried out. Feedback from children and young people and key stakeholders in the sector will be invited to provide views and information as to how the changes are being carried out in practice. The review will be led by the Formal Care and Corporate Parenting Team in Scottish Government. The first review is planned for a full year after the regulations come into force.

Bill - Clause

The looked After Children (Scotland) Amendment Regulations 2021

Aims of measure

To ensure that given the provisions in section 17(6) of the Children (Scotland) Act 1995, and the Children (Scotland) Act 2020, in relation to sibling contact, that we are doing all we can to protect sibling relationships provided for in secondary legislation, especially in relation to the placement of siblings by local authorities. The need for local authorities to have regard to the welfare of each child in relation to sibling placements, and an exemption to the foster placement limit for emergency placements in exceptional circumstances for a specific child.

Likely to impact on . . .

These changes are likely to impact on children and young people from all ages and all backgrounds who are looked after and accommodated by their local authority. The change will have more of an impact on children involved in court proceedings about the arrangements for their upbringing; looked after children and those involved in the Children’s Hearings System.

Compliance with UNCRC requirements

• Article 3
• Article 8
• Article 12
• Article 16
• Article 20
• Article 25

Contribution to local duties to safeguard, support and promote child wellbeing

These amendments meet wellbeing indicators:

• Safe
• Achieving
• Nurtured
• Respected
• Responsible
• Included

CRWIA Declaration

Authorisation

Policy lead

Hannah Graham Corporate Parenting and Formal Care
Team Leader
Promise Policy Hub
Strategy, GIRFEC and Promise Division

Date

10/02/2021

Deputy Director or equivalent

William Scott-Wilson
Deputy Director
Strategy, GIRFEC and Promise Division

Date

11/02/2021