Abstract
Recent legislation
Children and Young People (Scotland) Act 2014 (www.legislation.gov.uk/asp/2014/8/contents)
On 1 April 2015, Parts 9, 10 and 11 of the Act came into force, which deal with corporate parenting, after care and continuing care.
All teenagers in residential, foster or kinship care who turn 16 will now be entitled to remain in their care setting until they reach the age of 21. Care leavers are entitled to support to help move on to independent living until they are 26.
Public bodies, as corporate carers, have to work together to enable children in care to overcome barriers and achieve their best. This continues the commitment for a multi-disciplinary approach towards providing support for children under GIRFEC (Getting it right for every child).
All corporate parents will be required to develop and publish a plan of how they are going to meet their corporate parenting duties. Every corporate parent must now comply with a new reporting and accountability structure that requires them to demonstrate every three years how they have progressed on improving outcomes for the children whom they ‘parent’.
Recent case
Decision of the Second Division, Inner House, Court of Session in the petition by AB and CD to the nobile officium
A report appeared in the March 2014 edition of this journal about the case in Edinburgh where a Sheriff found two local authority social workers to be in contempt of court. The matter involved a decision by a Children’s Hearing, which had been appealed to the Sheriff. She had substituted her decision with that of the Hearing and stipulated the frequency of contact between a mother and her children, who had been removed from the mother’s care. Workers had initially obtempered (complied with) the Sheriff’s order in relation to facilitating contact, but when it became apparent that this was causing the boys distress and was jeopardising their placement with their foster carers, they suspended contact. The Sheriff concluded that this amounted to an affront to the authority of the court.
Three judges in the Appeal Court found that there had been no contempt and exonerated the social workers. The Sheriff was criticised for the way in which she had acted, by proceeding at her own instance and without any form of written application setting out the precise nature of the alleged contempt on which the social workers’ lawyers could have addressed her. It was noted that a court should avoid an ‘overly protective attitude towards its own earlier decision’.
They also found that a failure to comply with the decision of the court is not, in itself, contemptuous. Differences of opinion and errors of judgement may occur when professionals are executing their duties, but these do not amount to any affront to the court. In Lord Malcolm’s decision he made the point that ‘the two social workers with the best interests of the children in mind did what they considered was right and proper … and with the burden of a duty to safeguard the welfare of the children, adopted a precautionary approach’. He also commented that had the social workers not acted as they did and harm had come to the children, the workers would bear ‘the brunt of strident criticism’.