Staying together and connected: getting it right for sisters and brothers: national practice guidance

3. Policy and legislative context

3.1 Children's Human Rights

Scotland's vision is for a society where children's human rights are embedded, protected and upheld, wholly and meaningfully, across every aspect of their lives.^[4]

The United Nations Convention on the Rights of the Child (UNCRC) lays out the rights of all children and young people. The UNCRC sets out that children's views must be taken into consideration in decisions affecting them. Every child has a right to respect for their family life, including with siblings, under Article 16 of the UNCRC. Children who are unable to live with their families have a right under Article 20 of the UNCRC to special protection and assistance, because of the additional support they may require securing all their rights. Although the UNCRC is already an underpinning framework for considering children's rights, Scotland is set to be the first country in the UK to directly incorporate the UNCRC into domestic law. This will make it unlawful for public authorities to act in ways which are not compatible with children's rights under the UNCRC, and it will give children more legal power to enforce their rights.

Guideline 17 of the United Nations Guidelines for the Alternative Care of Children clarifies that brothers and/or sisters with existing bonds should not be separated by placements in care unless there is a clear risk to a child, or it is otherwise in the child's best interests. In each case, every effort should be made to enable siblings to keep in contact with one another, unless this does not promote their wishes or interests.

Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) recognises the right to respect family life. "Family life" can also exist between siblings^[5]. It is unlawful for public authorities to act in ways which are not compatible with ECHR rights.

3.2 Keeping The Promise

In February 2020, Scotland's Independent Care Review concluded with the publication of The Promise.^[6] This ground-breaking review, driven by those with experience of care, sets great ambitions for change to transform the ways in which infants, children, young people and their families are supported to stay together.

Scotland is committed to Keeping The Promise. This requires urgent and immediate change, and work to implement long lasting transformational change. It asserts and requires:

• Love to no longer be the casualty of the 'care system,' but the value around which it works.
• Deliberate, persistent attention to upholding safe, loving relationships that are important to children and young people.
• Wherever safe to do so, Scotland to make sure children stay with their families and families are actively supported to stay together.
• Children, young people and their families to be listened to, respected, involved and heard in every decision that affects them.^[7]

The Independent Care Review heard much from brothers and sisters whose contact with the care system led to their separation, and often the deep pain of this experience. It also heard about the important relationships children built with other children they lived with when they were living away from their family. The Promise called for a stronger legal framework to acknowledge, protect and promote brother and/or sister relationships and rights; the enabling of good practice relating to brother and/or sister relationships; and support to enable the workforce to undertake high quality assessments of the relationship needs of children with brothers and sisters, and to meet these needs.^[8] This Practice Guidance is designed to contribute to Keeping The Promise for brothers and sisters.

3.3 Getting it right for every child

Getting it right for every child (GIRFEC) provides Scotland with a consistent framework and shared language for promoting, supporting, and safeguarding the wellbeing of children and young people. In line with the United Nations Convention on the Rights of the Child (UNCRC), the approach was developed based on evidence and is internationally recognised^[9]. It is locally embedded and positively embraced by practitioners across children's services; changing culture, systems and practice to improve outcomes for children, young people and their families.

The values and principles of GIRFEC and its effective implementation ensure a rights-respecting and strengths-based approach, placing the child and family at the centre. GIRFEC ensures support for families through a clear point of contact, often referred to as a named person, available to every child in Scotland who can be contacted if there are concerns about any aspect of a child's wellbeing. Recognising a holistic understanding of the child's world, GIRFEC presents the opportunity to address a child's wellbeing needs at all stages of their childhood. When talking about a child's wellbeing, we consider the 'wellbeing indicators' understood as: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included.

Should a child need support for any aspect of their wellbeing from more than one agency or organisation, GIRFEC supports coordination and joint working through a lead professional. This includes the development of a Child's Plan using the National Practice Model to assess the strengths and wellbeing needs of the child, while also analysing the wider settings of the family and community.

To create the Child's Plan, in line with Article 12 of the UNCRC where a child has the right for their views to be shared and heard while decisions are being made about their lives, the child and their family joins practitioners through regular multi-agency meetings, sometimes known as the 'Team Around the Child'. Working together with families is key to the GIRFEC approach.

3.4 Corporate Parenting

Corporate Parenting is set out in the 2014 Act and it requires all public sector organisations (named in schedule 4 of the Act) to collaborate with each other to take actions necessary to uphold rights and safeguard wellbeing of looked after infants, children, young people and care leavers up until they turn 26. This means all public sector organisations must think carefully about their organisation's role and to listen to what looked after children and care leavers need so that no unnecessary disadvantages are experienced. It is not simply the responsibility of social work departments within local authorities to ensure these needs are met and upheld; it is a shared and collaborative responsibility in which each corporate parent has a unique role to play. This includes all services and departments within a local authority such as housing, education and leisure, as well as social work services. Corporate parents must understand and embrace this role and work proactively together to pursue positive outcomes both for individual brothers and sisters, and for all care experienced brothers and sisters at a systemic level.

3.5 Legislative framework for brothers and sisters

This guidance is developed within the rights-based and relationship-focused policy context that has been outlined here. It is designed to be practical, and a useful tool to support children and young people to know their rights, and for, practitioners, carers and strategic leaders to know their responsibilities and how best to meet them.

Above all, local authorities have a duty to safeguard and promote the welfare of a child looked after^[10] by them (Section 17(1) of the Children (Scotland) Act 1995 (the 1995 Act)). This must be undertaken in a way which is designed to safeguard, support and promote their wellbeing (Section 95 and Section 96 Children and Young People (Scotland) Act 2014), with reference to the Getting it right for every child wellbeing indicators.

3.6 Placing brothers and sisters together

The Looked After Children (Scotland) Regulations 2009, as amended by the Looked After Children (Scotland) Amendment Regulations 2021 says that where the local authority is considering placing a child with a kinship carer, a foster carer, or in a residential placement, and any brothers or sisters of the child are also looked after or about to be looked after, the local authority must, where appropriate, place the sisters and/or brothers together (with the same carer or in the same residential placement) or in homes near to one another.

Prior to this legal change, local authorities had to consider the need to ensure brothers and/or sisters were placed together, where this was practical and appropriate, in their assessments. This legal change strengthens the earlier Regulations.

Deciding if it is "appropriate" to place sisters and/or brothers together involves considering, as a paramount consideration, whether living together would safeguard and promote the welfare of the child. Safeguarding and promoting the welfare of other children who would be affected must also be considered, for example, children already living in the home.

Where it is not appropriate for brothers and/or sisters to live together, the local authority must place them in homes which are near to one another (if this itself is appropriate). The intention is that brothers and/or sisters can be part of the same community, helping to make sure that their relationship can be supported more readily.

3.7 Views of brothers and sisters

The views of brothers and sisters must be actively sought, listened to, recorded in writing, and considered when decisions are being made about children in care. This includes taking account of brothers' and sisters' views about a child coming into care, and when any other important decisions are being made.

This is a recent legal change under Section 13 of the Children (Scotland) Act 2020 (the 2020 Act) which amends Section 17(3) of the 1995 Act to add siblings to the persons the local authority has a duty to ascertain the views of before making decisions about a child who is looked after by them, or whom they are proposing to 'look after'. The local authority must ascertain these views so far as reasonably practicable (Section 17(3) of the 1995 Act) and have regard to them so far as practicable (Section 17(4) of the 1995 Act).

3.8 Building relationships and staying in touch

When children are in care, their local authority must ensure that they are supported and helped to keep in touch with their brothers and sisters if they are not all living together.

This can be achieved by them seeing each other and spending quality time together wherever this is deemed safe and appropriate; by chatting on the phone, texting or speaking online; through letters, or any other way of keeping connected which is best for (and preferably chosen by) the sisters and brothers, whenever and wherever this is deemed safe and appropriate. This is supported by a recent legal change under Section 13 of the 2020 Act, which amends Section 17(1) of the 1995 Act to include siblings in the categories of persons to whom the local authority has a duty to take steps to promote, where appropriate, on a regular basis, personal relations and direct contact (which means face-to-face contact). This must be carried out in a manner which has regard to local authorities' overarching duties to safeguard and promote the child's welfare.

3.9 Legislative changes – what does this all mean?

Taken together, these legal changes mean that when a decision is taken that a child needs to be cared for away from home (or when considering moving a child already in care to a new placement), and at all subsequent reviews, local authorities must place sisters and/or brothers together (where it would be appropriate to do so). Where there is evidence that living together is not in the best interests of brothers and/or sisters, the local authority must promote and facilitate direct contact and personal relations between them (where appropriate) on an ongoing, regular basis to ensure they remain connected and that their relationships are sustained. If sisters and/or brothers are separated, they must be able to live near to one another, unless there are clear reasons for them not to do so.

Above all, decisions should always be made with the aim of safeguarding and promoting the welfare of the child as the paramount consideration.

However, decisions about appropriateness in this context are not always straightforward. Children's lives, needs, circumstances and family networks can be complex. There can be situations where the rights and needs of one child may appear to contradict those of one or more of their brothers and sisters.

This guidance is designed to support practitioners in making assessments and decisions in the context of such tensions and complexity.

3.10 Other important legal changes

Legislative changes within Sections 14 and 25 of the 2020 Act relate to Children's Hearings' consideration and involvement of sisters and brothers. Section 14 creates an explicit duty on Children's Hearings and on a Sheriff, when making, changing, or continuing a Compulsory Supervision Order for a child, to consider contact between the child and any siblings they are not living with.

Section 25 establishes a new way for taking part in Children's Hearings and the Rules for Children's Hearings have been changed to say that brothers and sisters must be given the opportunity to participate in their sibling's Children's Hearing, if the Children's Hearing is likely to make a decision significantly affecting contact (or the possibility of contact) between them and their sister or brother.

Children's Hearings Scotland (CHS) have made updates to the Panel Practice Manual (for Panel Members) to reflect how these changes should be interpreted within Children's Hearings. As such, guidance in relation to these legislative changes as they pertain to Hearings specifically is out with the scope of this document.