Abstract
Recent legislation
The Looked After Children (Scotland) Amendment Regulations 2014 (www.legislation.gov.uk/ssi/2014/310/contents/made)
These Regulations have the effect of limiting the number of children who may be placed with a foster carer at any one time.
A local authority must not place a child with a foster carer where the placement would result in more than three children being placed with that foster carer at any one time. This will not apply where:
a group of more than three siblings is being placed by a local authority; when an emergency placement of a child with a foster carer does not exceed three days; or in the case of a short-term placement of less than four weeks.
Recent publications
Foster care review (www.celcis.org/resources/foster_care_review_final_report)
The Scottish Government is undertaking a programme of work to implement the recommendations of the foster care review which made recommendations for improvement in six areas, namely: placement descriptors, a national foster carer database, placement limits, learning and development, foster care allowances and foster care fees.
The reference group will oversee progress and advise those involved in taking forward work on each of the recommendations.
Recent policy and practice developments
Permanence applications
The acknowledged delay in processing permanence applications through the court has resulted in at least one authority adopting a change in practice. All permanence applications in this authority are made directly to the Court of Session rather than at the local Sheriff Court.
This may result in a short-term amelioration of the problem of delay in the court process but there are inevitable consequences. Firstly, most local authority solicitors will not have rights of audience before the higher court and so counsel will need to be employed, which is very expensive. The authority solicitor will usually be present at the court proceedings to instruct counsel. Given that a large number of the cases are continued to accommodate parental needs (to instruct a solicitor/counsel; to attend court; the fall out of chaotic lifestyles), it is likely that the same delays encountered in the Sheriff Courts will occur in the Court of Session. Once cases are continued, the difficulty is identifying several days in a row where all parties are free and this will be the case no matter which court is involved.
The parents will in the majority of cases need to apply for legal aid due to the complexity and seriousness of the cases. It is uncertain what view the Scottish legal Aid Board will take if this policy is adopted on a wider scale of making applications to the Court of Session.
Similarly, if this becomes universal practice, rather than each of the six sheriffdoms dealing with their own adoption applications, the Court of Session will become the central court and there will be an inevitable clogging of the system.
It is understandable for the local authority to take this step in response to the sometimes glacial progress of adoption applications. A concerted national policy and commitment to reducing delay is needed.
Other local authorities have sought interim permanence orders, rather than going through the Section 95 process at the Children’s Hearing if the authority wishes to make or vary a Compulsory Supervision Order after the adoption application has been sought. Again, this is an understandable way of avoiding uncertainty and delay, but is contrary to the objective of the 2007 Act which was to keep the child’s needs at the centre of any process
Some solicitors have noted that Sheriffs expect Permanence Order with Authority to Adopt applications to be abandoned where prospective adoptive carers have been identified so that a direct petition can be made by them.
Adoption and fostering panels
A Sheriff queried whether the local authority solicitor can also act impartially as the legal adviser at adoption and fostering panels.
Counsel’s opinion was obtained in which the point was well made that no such conflict arises and the Sheriff appeared to accept this interpretation. It was agreed that should Sheriffs adopt a contrary view, it would have far reaching ramifications particularly for solicitors working in smaller authorities.
Recent cases
These are available on the Scottish courts website: www.scotcourts.gov.uk.
M v Fife Council 2014 GWD 32-630 at Kirkcaldy Sheriff Court
A Sheriff Court ruling held that the Equality Act must be applied in favour of a disabled young person who required an additional year at school.
This deals with discrimination on the grounds of disability and age and is the first non-employment-related age discrimination case to be determined in the UK. It is interesting that the pursuer was 18 years of age; we normally associate age discrimination with older people.
The child attended an independent school, which meant that the legislation applied was in relation to goods and services and public functions; otherwise if the child had attended a state school, the Sheriff stated that it would have been determined by a special tribunal and not the court.
The local authority refused to fund an additional year at secondary school for a disabled child after staff at the school and the college he had attended on a transition basis both recommended that he remain at the school for what would be his seventh year at secondary school.
M's mother applied to Fife Council for funding for an additional year at school. This application was refused on the grounds that once the child attained the age of 18, the local authority believed that they owed no further duties to the child in terms of the Education (Additional Support for Learning) (Scotland) Act 2004. The Sheriff held that the local authority had failed to carry out an equality impact assessment, and had failed to undertake any assessment of the reasonableness of the proposed extra year. Their policy put disabled pupils at a substantial disadvantage compared to non-disabled pupils and the child’s age was used inappropriately as a reason for not continuing to provide funding for his place at the school.
The Sheriff awarded the pursuer £43,410 -- the cost of the additional school fees and the sum of £2,500 in respect of injury to the child’s feelings.
This decision is being appealed
X and Y
Dumfries Sheriff Court
5 January 2015
A child’s birth mother objected to the application of the child’s stepmother to adopt the 14-year-old child. The child and father supported the application. It could not be established that the birth mother was unable to satisfactorily discharge her parental responsibilities and was unlikely to be able to do so in the future, nor that the child’s welfare required the making of the order. The Sheriff instead awarded Parental Rights and Responsibilities to the stepmother, along with a joint residence order with the father. This secured the domestic setting that provided the child with stability and love, without severing the relationship with his mother and differentiating him from his birth siblings.
Petition for Judicial Review of the Children and Young People (Scotland) Act 2014 relating to the ‘named person’
Outer House, Court of Session
22 January 2015
In Part 4 of the legislation a named person is assigned for each child in Scotland. The aim is that the named person will act as a single point of contact for help, support or advice for children, parents and those working with children to go to if they need help with a particular issue. It has been a controversial proposal, seen by some as an unjustifiable state interference into the rights of children and in a way that undermines the role of the parent.
Four charities and three individuals raised a petition for judicial review contending that the legislation was incompatible with some rights guaranteed under the European Convention on Human Rights and with the law of the European Union on data protection.
The petition was refused by Judge Pentland in the Court of Session. He ruled that:
Part 4 (Named Persons) of the Act does not contravene ECHR rights, EU law or fundamental common law rights. This applies also to the information sharing provisions of the legislation, which the court found were not in breach of the Data Protection Act. The subject matter of the provisions is within the devolved competence of the Scottish Parliament. The charities which brought the Petition had no standing to do so as they lacked ‘sufficient interest’ to be entitled to seek judicial review.
It is probable that this decision will be appealed.