The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 5(2), (3) and (4) of the Social Work (Scotland) Act 1968, sections 17(2) and (3), 31 and 103(2) and (3) of the Children (Scotland) Act 1995 and sections 110 and 117 of the Adoption and Children (Scotland) Act 2007 and all other powers enabling them to do so.
These 2009 Regulations revoked and replaced both the Fostering of Children (Scotland) Regulations 1996 and the Arrangements to Look After Children (Scotland) Regulations 1996
The Regulations should be read with the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003; and the Residential Establishments - Child Care (Scotland) Regulations 1996, which remain in force.
Reference: The Looked After Children (Scotland) Regulations 2009. SSI 2009/210
These Regulations introduce a number of new measures and some new duties on local authorities. These include:
the recognition of a separate group of carers, known as “kinship carers”, who care for children who are formally “looked after” in terms of section 17(6) of the 1995 Act. The Regulations make separate provision for the assessment and approval of kinship carers;
the duty to produce a ‘child’s plan’ for each child has been strengthened by removing the previous condition “so far as practicable”;
there are new duties to consult with the child (taking into account their age and maturity) at different stages throughout the Regulations;
changes to the composition of fostering panels which now must have a minimum of 6 members and a quorum of 3. Local authorities will now also have the power to appoint a legal adviser for the purpose of advising the foster panel;
a new power to extend emergency placements in certain circumstances for a further 6 week period.
The Regulations make provision for looked after children and their carers as follows:
Part II establishes the care planning process, including gathering information on the child; assessment of that information and the formation of the 'child's plan'. There is a new requirement that the child (depending on their age and maturity) should be consulted before the plan is prepared.
Part III makes general provision affecting all looked after children. It prescribes the notification requirements where a looked after child dies. It also provides for the local authority to make recommendations on the child’s placement to a children’s hearing.
Part IV makes provision for a looked after child to be cared for by their parents at home. It also establishes the notification requirements should the child die, suffer serious illness or injury, or absent themselves.
Part V concerns kinship care. It makes provision for the assessment and approval of kinship carers, placement of the child with kinship carers and establishes the agreement which must be in place between the local authority and the kinship carer. It also makes provision for the compilation of case records for kinship carers and for the retention and confidentiality of those records.
Parts VI and VIII concern foster care.
Part VI establishes fostering panels and makes provision for their constitution, composition and functions. The Regulations place a new requirement on local authorities to ensure the panel has six members and a quorum of three.
Part VII concerns the assessment, approval and placement of a child with a foster carer. It establishes the agreement that must be in place between the local authority and the foster carer and a further agreement that must be in place with regards to the particular looked after child being placed. It also provides for the review of the foster carer’s approval, enabling local authorities to terminate the approval or vary the terms. The Regulations further provide for the compilation of case records for foster carers and for the retention and confidentiality of those records.
Part VIII makes provision for the payment of allowances to kinship and foster carers.
Part IX establishes the notification procedure and information required for a child placed in a residential establishment. Detailed provision on residential establishments is contained in the Residential Establishments - Child Care (Scotland) Regulations 1996 which remain in force.
Part X makes provision for local authorities to place a child in an emergency placement with a kinship or foster carer, a person known to the child or in a residential establishment. It also provides for the review and extension of emergency placements and the notification requirements for the placement or extension.
Part XI makes provision for the establishment of a case record for the child and for the retention and confidentiality of the case record.
Part XII establishes the review processes for the child’s case, where they are looked after at home by their parents, placed with a kinship or foster carer or in a residential establishment or subject to a permanence order. This Part also makes provision for the child to be visited in their placement at set intervals.
Part XIII makes provision for the local authority to delegate certain duties and functions (in relation to these Regulations) to a ‘registered fostering service’. This allows local authorities to make arrangements with bodies who are registered under the Regulation of Care (Scotland) Act 2001. In practice this means that providers must operate under the principle of ‘not for profit’ in respect of providing fostering services in Scotland, as the Regulation of Care (Scotland) Act states that in order to register, a person providing an adoption or fostering service must be a ‘voluntary organisation’.
Statutory instruments (Regulations, Statutory guidance etc.) are sometimes known as secondary or delegated legislation, Statutory Instruments enable provisions contained within Acts of Parliament to be brought into force without the need for a new Act. These instruments may be amended or revised by later legislation. The pdf we reproduce here may not, therefore, be the latest version (it is included only to integrate the material into the site as a whole for education purposes). the following link is the latest official version;
The Looked After Children (Scotland) Regulations 2009. SSI 2009/210 - latest version
(These Regulations make provision with respect to residential establishments in which a child who is looked after by a local authority under the Children (Scotland) Act 1995 may be placed. They supersede the Social Work (Residential Establishments – Child Care) (Scotland) Regulations 1987 (S.I. 1987/2233).
Part II of the Regulations deals with the conduct of residential establishments and requires them to be conducted in a way which is conducive to the best interests of the children resident in them (regulation 4). Each establishment is required to prepare a statement of functions and objectives setting out the responsibilities of managers (regulation 5 and the Schedule). Minimum requirements are specified regarding fire precautions, sanctions, log books, records, education and health care (regulations 9-15).
Part III of the Regulations prescribes the information to be supplied to persons in respect of each child placed in a residential establishment.
Two main changes are made to the Regulations. Some of the regulations from the Social Work (Residential Establishments – Child Care) (Scotland) Regulations 1987 have been removed to the Arrangements to Look After Children (Scotland) Regulations 1996 (S.I. 1996/3262) which deal with matters relating to the nature, review and termination of placement of such children. A new regulation has been introduced which places a specific duty on managers of residential establishments to have in place procedures for the appointment and vetting of staff (regulation 8).)
The Secure Accommodation (Scotland) Regulations 1996 No.3255/S245
(These Regulations are concerned with the use of secure accommodation for any child who is being looked after by a local authority or for whom the local authority is responsible under Criminal Procedure legislation. They replace the four sets of secure accommodation regulations which are extant.
The main changes introduced by these Regulations are a reduction of the maximum period during which a child may be kept in secure accommodation without the authority of a children’s hearing or a sheriff from 7 days to 72 hours and a correspondingly shorter period within which a children’s hearing shall be convened to consider the child’s case. They make provision for the establishment of a Secure Placement Review Panel by local authorities responsible for secure accommodation to review the case of any child detained in secure accommodation by local authorities by virtue of the Criminal Procedure (Scotland) Act 1995.)
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