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Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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Chapter 2 - An Overview of the Looked After children (Scotland) Regulations 2009 and Guidance

In this section:

1. The Status of the 2009 Regulations
2. The Status of this Guidance
3. The Definition of a Looked After Child
4. The Duties of a Local Authority in relation to a Looked After Child

1. The Status of the 2009 Regulations

These regulations replace the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996. They also affect parts of the Residential and Other Establishments (Scotland) Regulations 1996 where they apply to the placement of a child or young person in residential care.

The 2009 Regulations bring together the regulation of care planning services with care provision for those children separated from their birth parents.

The 2009 Regulations outline the requirements when children are looked after by kinship carers.

2. The Status of this Guidance

This guidance replaces Volume 2 of Scotland's Children, Scottish Office, Edinburgh 1996 covering the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996.

3. The Definition of a Looked After Child

The definition of a 'looked after' child is in section 17(6) of the 1995 Act, as amended by Schedule 2, para 9(4) of the 2007 Act. A child is looked after when he or she is:

(a) provided with accommodation by a local authority under section 25 of the 1995 Act; or

(b) subject to a supervision requirement made by a children's hearing, in terms of section 70 of the 1995 Act; or

(c) subject to an order, authorisation or warrant made under Chapter 2, 3 or 4 of Part II of the 1995 Act, and according to which the local authority has responsibilities in respect of the child. These include a child protection order, a child assessment order, an authorisation from a justice of the peace to remove a child to a place of safety or maintain a child in a place of safety, removal to a place of safety by a police constable, or a warrant to keep a child in a place of safety made by a children's hearing or a sheriff; or

(d) living in Scotland and subject to an order in respect of whom a Scottish local authority has responsibilities, as a result of a transfer of an order to it under the Children (Reciprocal Enforcement of Prescribed Orders) etc. (England and Wales and Northern Ireland) (Scotland) Regulations 1996. These 1996 Regulations were made under section 33 of the 1995 Act; or

(e) subject to a permanence order made after an application by the local authority under section 80 of the 2007 Act.

4. Duties of the Local Authority in relation to a Looked After Child

A local authority has a range of statutory duties to a child looked after by it, as laid out in section 17 of the 1995 Act:

  • to safeguard and promote the child's welfare, taking the welfare of the child as its paramount concern;
  • to make use of services that would be available for the child were he or she cared for by his or her parents;
  • to take steps to promote regular and direct contact between the child who is looked after and any person with parental responsibilities, so far as is practicable, appropriate and consistent with the duty to safeguard the child's welfare;
  • to provide advice and assistance with a view to preparing the child for when he or she is no longer looked after;
  • to find out and have regard to, so far as is practicable when making decisions about the child, the views of the child, his parents and any other person whom the local authority think is relevant; and
  • to take account, so far as is practicable, of the child's religious persuasion, racial origin and cultural and linguistic background.

Authorities may deviate from complying with these duties only when it is necessary to protect members of the public from serious harm, and then only to the extent required to achieve such protection for the public as set out in section 17(5) of the 1995 Act.