What will the Children (Care, Care Experience and Services Planning) (Scotland) Act change?

Aftercare will be expanded to a wider group of care experienced children and young people, by introducing a right for those who were previously looked after but left care before the age of 16 to apply for aftercare up to age 26. This will be subject to an assessment of their needs by local authorities.

Local authorities will also be able to grant young people further financial support around education and training.

The Scottish Government will create regulations to deliver a right to independent advocacy for care experienced people. This will mean that all care experienced people will have a lifelong entitlement to advocacy support. 

The Scottish Government will create regulations which will set out how public authorities and others must promote understanding of care experience. As part of this work, the Scottish Government will create a definition of 'care experience,' and develop guidance.

The Scottish Government will review the impact of delays in decisions relating to children having a permanent home to live in.

Families will have the right to request FGDM in the areas where it is available. Local authorities who provide FGDM must promote it and publish information on how it can be accessed.

Scottish Government will also produce guidance on FGDM services, setting out the purpose, principles and expectations for how FGDM is applied in practice.

Local authorities must assess the needs of some kinship carers, and some kinship carers will be able to request an assessment of their support needs.

Local authorities already have a clear duty under the Children (Scotland) Act 1995 s25, to provide accommodation for children (anyone under 18) who do not have a home with family or carers. This has always included children who have previously left care. The changes to s25 will make sure that if a child becomes homeless after leaving care they will be treated as a child and, if they agree to it, will be in the ‘care system’ and accommodated.

The Act makes sure 16-17-year-old children who do not have a permanent home are treated as children and, if they agree to it, are provided accommodation and support under s25. This includes children living in temporary accommodation for adults experiencing homelessness, or living in other accommodation which does not meet their needs. 

Local authorities already had the choice to provide s25 accommodation under the Children (Scotland) Act 1995 for young people – aged 18 to 21 – if they thought it was needed to safeguard or promote their welfare. The Act makes this duty stronger:

• Local authorities must decide if a young person (aged 18 to 21) needs s25 accommodation to safeguard or promote their welfare. If they do, and if the  young person agrees, then the local authority must provide accommodation and support under s25.  
• Local authorities must provide s25 accommodation to young people who could not get continuing care because the carers couldn't provide a continuing care placement— as long as the young person agrees. 
• All young people will have the right described above— but for care leavers and young people who have not been able to get continuing care, this is the right to return to being accommodated. It is not a right to return to care: young people cannot be in care.

What is "s.25 accommodation"? 

A child who is accommodated under s25 will be in care. A child who is 16 or 17 has to agree to being accommodated, and in the ‘care system’.

Under s25, a local authority can decide whether to give a child a care placement in foster care, kinship care or residential care— or they can make another arrangement. Accommodation for children has to meet their needs, and local authorities have to assess the needs of all children in the ‘care system’.

A young person who is given accommodation under s25 is not in care. Only a child can be in care.

Young people would be unlikely to be accommodated in foster or residential care. The Act means that local authorities will have to make appropriate arrangements to accommodate young people—this might include supported accommodation with other young people, a short-term tenancy, a tenancy with support, or even support in a permanent tenancy.

Arrangements will be made to meet the young person's support needs, and the young person will have to agree to any accommodation. The young person will not have to go through the system for adults experiencing homelessness, or stay in accommodation for adults experiencing homelessness.

All care leavers who are in care and accommodated when they leave care over the age of 16 are entitled to continuing care— to stay on in the same place with the same care and support, until they are 21. They can move on before they are 21 if they are ready to.

Changes to continuing care set out in the Act mean that young people who can't get continuing care in the placement they are in when they leave care, and young people who find themselves without a home after leaving continuing care will now have the right to s25 accommodation and support until they are 21. 

The Act gives local authorities the option to provide continuing care to young people up to the age of 25, to support a young person's welfare.

Corporate parenting responsibilities will be extended to support anyone under the age of 26 who has previously been in care. Corporate parenting plans must also set out how they intend to keep the promise, and national corporate parenting guidance must be produced.

The Scottish Government will have powers to request certain care providers disclose financial and other relevant information about the operation of their services to enhance financial transparency. This includes those who run residential care homes, secure accommodation or school care accommodation, but who are not local authorities.

If the Scottish Government think that excessive profit is being made, they will have the power to limit profits. However, there will be exemptions for non-profit organisations.

Scottish Ministers will arrange for a register of foster carers to be created, though the details of how this will work are still being decided.

The register is intended to:

• increase safeguarding;
• provide data to enable a better understanding of where more foster carers are needed; and
• improve the status of foster carers through registration and regulation like many other members of the workforce.

The Scottish Recommended Allowance for foster and kinship carers will be uprated in line with inflation, and local authorities will be required to publish the rates they pay.

Sottish Ministers will issue guidance about the use of restraint and seclusion to managers of residential care homes, secure accommodation or school care accommodation.

Scottish Ministers will publish reports on the deaths of all children who were in the care of a local authority at the time of their death.

The reports will include the numbers of deaths, age ranges, causes of deaths where known, and any reviews that have been carried out.

Where peer support services are available for those who have experience of adoption, local authorities must promote them and encourage people to use them.

There are several changes the Act will make to the Children’s Hearings System, advancing many of the recommendations in ‘Hearings for Children’, the Hearings System Working Group’s Redesign Report.

These include:

Single member hearings and pre-hearing panels

Panel Chairs will be able to sit alone for certain preliminary, procedural decisions, and – in some circumstances – for Interim Compulsory Supervision Orders (temporary orders where a decision has not been made, to set out where a child must live or conditions to be followed.)

Selection of members and continuity of membership

As much as possible, the same chairing member will follow the child through the process— from the pre-hearing panel through all their Children’s Hearings.

Appointment and remuneration

Chairs of panels will be remunerated, and there is provision for there to be ‘specialist’ panel members— such as someone with a particular expertise in child services or healthcare, or whose particular legal knowledge is required in a complex case.

This change is not to replace the volunteer component of the tribunal model, but to offer a level of remuneration in recognition of the expanded scope and complexity of the Chairing Member role.

Children’s attendance

Children will no longer be obliged to attend their Hearing. They can attend— and should when necessary for a fair hearing, or to assist the Hearing in making decisions.

The Hearing must have regard to whether the child would have the capacity to understand proceedings, and whether their attendance would place their health, safety or development at risk.

There will be some situations where the child must attend— such as where the grounds of referral relate to a conflict with the law, and the consequences for the child may include long-term disclosure of criminal offences, or restriction or deprivation of liberty.

Role of the Principal Reporter

The Principal Reporter will offer the opportunity, where appropriate, for a child and family to discuss things with them prior to their scheduled hearing, particularly around the grounds of the hearing (why the hearing is taking place) and if the child should attend.

Establishing Grounds

There are a number of things the Act changes in relation to establishing grounds. There will be an enhanced role for the Principal Reporter to help children and relevant person(s) to understand the statement of grounds. There will then be different options on how to proceed, depending on if there is agreement on the grounds, or if there is not agreement. If there is not agreement,a single member hearing with the Chair will help resolve this. If there is still no agreement, a Sheriff will have the role of establishing grounds, supported by new processes to eliminate unnecessary grounds hearings.

Where children aren’t capable of understanding grounds, rather than being referred to a Sheriff, there will now be a hearing for a decision to be made. However, grounds could still go to a Sheriff if a request has been made by – or on behalf of – the child, or where the hearing considers it necessary.

Relevant Persons

Existing powers around managing attendance of relevant persons, or excluding relevant persons, have been clarified. This includes removing automatic relevant person status, via a high bar test which establishes if relevant person status continuing would be cause serious harm to the child, or infringe on their rights. A relevant person's right to require a review of a Compulsory Supervision Order has also been changed.

Timescales for grounds

Following an application, a hearing must take place within 28 days, with a determination made no later than 90 days from when the application was made. There must also be an annual report on timescales produced by Scottish Ministers.

Availability of Advocacy

There will be new duties on local authorities, police, health boards and the Principal Reporter to provide children with information about the referral, the children’s hearings process and the availability of advocacy. Advocacy will be considered at all stages of a child’s engagement with the Children’s Hearings System.

Duration of interim compulsory supervision orders

The maximum duration of an Interim Compulsory Supervision Order (ICSO) has been changed for non-urgent extensions, moving to a maximum of 44 days from when the first order is made (instead of 22 days.)

Reporter powers

The Principal Reporter will have the power to call a review hearing in certain circumstances, without the need for new grounds to be investigated and established during the relevant period.

The Reporter will also be provided with information from the local authority on whether the family have had Family Group Decision Making, to decide if this should be offered before a hearing referral.

Legal Aid

There will be an automatic right to access legal representation for children referred to the Hearings System on justice grounds.

Places of Safety

Scottish Ministers through regulations could have the power to change the Criminal Justice (Scotland) Act 2016, so that children who have been arrested will be taken to a place of safety rather than a police station.

The statutory duties placed on local authorities and health boards, to jointly plan and deliver three year Children’s Services Plans (CSP), will now be extended to Integrated Joint Boards. The children’s service plans outcomes reports must also contain a section on how they are keeping the promise.

Scottish Ministers must prepare reports on Children’s Services Plans, on the availability of Family Group Decision Making and on whether the promise is being kept.

Scottish Ministers must also carry out a review of the implementation of this Act 2 years following Royal Assent.