Appendix 5: Safeguarding and children and young people in care legislation, and statutory & non-statutory guidance

Wales

Scotland

Northern Ireland

England

UK

14.5 Looked After Children (Source: RCPCH, Child Protection Companion – Chapter 14: Special Circumstances, n.d.)

14.5.2. Legal

14.5.2.1. All relevant services and partners, including Health Boards and bodies, are the ‘corporate parents’ of ‘looked after’ children in care and young people eligible for ‘leaving care’ services. The ethos of this is to adopt a sense of vision and responsibility to the children and young people in their care and ask the question “would this be good enough for my child?”

14.5.2.2. It is vital to ascertain the child’s legal status to determine whether the Local Authority has legal obligations in respect of the child as a looked after child. For example, they may be living at home but legally are a looked after child because they are subject to a Court order; conversely, they may be living away from home but not be a looked after child as a Kinship Care or private Court order attaches no obligation to the Local Authority in terms of the child.

14.5.2.3. Looked after children may be:

• Accommodated on a voluntary basis under either section 20 – Children Act 1989 (c.41) in England or section 76 – Social Services and Well-being (Wales) Act 2014 – anaw 4 in Wales. Parents retain full parental responsibility for their children when they are accommodated.
• Subject to an interim care order under section 38 – Children Act 1989 (c.41) or a care order under section 31 – Children Act 1989 (c.41). Here, parental responsibility is shared between the local authority and birth parents and the local authority may exercise their parental responsibility, against parents’ wishes, if they are satisfied that it is necessary to safeguard and promote the child’s welfare section 33 – Children Act 1989 (c.41).
• Authorised to be placed for adoption, where the adoption agency (the local authority) has parental responsibility and may determine how both parents and prospective adopters may exercise their parental responsibility (section 25 – Adoption and Children Act 2002).

14.5.2.4. Following the making of an adoption order adoptive parents gain full parental responsibility as if they are birth parents.

14.5.2.5. Additional cohorts of children and young people are also subject to Looked After Children statutory duties and assessments, usually under section 20 – Children Act 1989 (c.41) in England or section 76 – Social Services and Well-being (Wales) Act 2014 – anaw 4 in Wales:

• Those on remand (children and young people who have been charged with a criminal offence and denied bail can be remanded to a looked after accommodation or youth detention accommodation)
• In England those who have reached the threshold with short respite breaks – total break exceeds 17 days in one placement, more than 75 days per year and/or take place in more than one residential setting. In Wales the threshold is 120 days in total in any period of 12 months
• Child or young person seeking asylum or refuge (CYPSAR) under the age of 18 years old (as determined by Local Authority).

14.5.2.5.1. Those deemed Looked After Children in Scotland:

• Subject to a Compulsory Supervision Order (CSO) or an Interim Compulsory Supervision Order whether or not the child is living at home. The Order will have been issued by a Children’s Hearing under the Children’s Hearings (Scotland Act) 2011 (asp 1).

• Received into care by the Local Authority under the Children (Scotland) Act 1995 (c.36) Section 25. The Local Authority is obliged to accommodate a child where there is no-one who has parental responsibility for him, he is lost or abandoned or where the person who normally cares for him is prevented from providing the child with suitable accommodation or care. Typically, this will be in the case of a child or young person seeking asylum or refuge (CYPSAR). It also includes the child or young person whose parent has been admitted to hospital and there is no-one else to care for the child or young person or where the parent is incapable or unwilling to care for the child be that a temporary or permanent situation. Often the parent will consent to the child’s or young person’s reception into care, but this agreement may be withdrawn by the parent at a later date.  Under section 25 a local authority may also provide accommodation for a child within their area if they consider that to do so would safeguard and promote the child’s welfare.
• A Permanence Order has been granted, which has removed Parental Rights and Responsibilities from the birth parent and transferred these to the Local Authority. The duty is on the Local Authority to apply for this under the Adoption and Children (Scotland) Act 2007. In some instances, the child’s carers or parents will share these PRRs with the Local Authority.
• Subject to one of the short-term Orders issued by a Court or Children’s Hearing, including a Child Protection Order, a Child Assessment Order or a Parental Responsibilities Order or an Emergency Protection Order implemented by a police officer.
• Where the child has short-term planned periods during which they are looked after by approved foster carers, where a single placement lasts more than four weeks and the number of days in a 12-month period exceeds 120. It is important that parents’ rights and responsibilities for their child are respected, and agencies are sensitive to these family circumstances.
• A child may be subject to a court order made elsewhere in the UK that is similar in nature to a court order or children’s hearing order in Scotland. The Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 provide for the conversion of certain orders (Care Orders, Supervision Orders and Education Supervision Orders) made elsewhere in the UK into a Scottish Compulsory Supervision Order (CSO). For such a conversion to take place, it needs to be agreed with the Scottish LA. For children placed cross-border from other parts of the UK into Scotland (into either foster or residential care) the child remains the responsibility of the placing local authority.
• Where a child is remanded in custody by a Court, the Local Authority will be responsible for the placement of that child, who will become a looked after child.

14.5.2.6 In 2022/23, there were approximately 107,000 looked after children in the UK (NSPCC Learninxzaq1g, Children in care: statistics briefing, 2024) and this constantly flowing population move in and out of care and become Care Leavers – there are specific definitions for who is deemed a care leaver not simply when a young person reaches 18 years old (National Institute for Health and Care Excellence, NICE guideline Looked-after children and young people, 2021).

14.5.2.6.1. Children and young people in care are on a journey through the care system and the outcomes are determined based on court decisions (care proceedings) and formal social care review processes. Formal Looked After Children reviews are held 3–6 monthly by the Local Authorities. Health is an important partner in these meetings. Children, young people and   parents/carers also contribute.  Permanence-planning is essential for the child to receive the stability, security and safety that enables a child to enjoy their life and achieve their potential. Outcomes that should achieve permanence for a child include:

• Return to birth family
• Long term foster care with an approved foster carer or a relative or friend formally approved as a kinship carer by the local authority and in some instances in long term residential care placements.
• Permanent placement with a family member or carer under legal mechanisms such as court orders made under Section 11 of the Children (Scotland) Act 1995 (which include Kinship Care Orders as defined in Children (Scotland) Act 2014, section 72), and Permanence Orders made under the (Adoption and Children (Scotland) Act 2007.
• Placement for adoption and eventual adoption order granted; in Scotland, Permanence Order- with or without authority to adopt under the Adoption and Children (Scotland) Act 2007 (asp 4)

In Scotland, there are other options for securing the child’s residence away from home that do not provide the same level of certainty. These are:

• Accommodation by the Local Authority under Children (Scotland) Act 1995 (c.36)

• compulsory supervision requirement under the Children’s Hearings (Scotland Act) 2011 (asp 1)

14.5.2.6.2. Placements are varied and include foster care in a family home (emergency, respite, long-term), residential school, residential home, semi-independent living, with prospective adoptive parents or placed with birth family with an order in place (also known as looked after at home)

14.5.2.6.3. National Institute for Health and Care Excellence (NICE) have published a public health guideline (National Institute for Health and Care Excellence,) and set of quality standards (National Institute for Health and Care Excellence, NICE Quality Standard Looked-after children and young people, 2013), covering the health and wellbeing of looked-after children and young people (from birth to 18 years) and care-leavers (including young people planning to leave care or under leaving care provisions). This requires multi-agency working and vision across new Integrated care systems (ICSs) to achieve.

14.5.2.6.4. CoramBAAF Adoption and Fostering Academy is a charitable organisation that supports and promotes the needs of children in care and provides resources, research, and health guidance for Local Authorities and Health Professionals and advises the Government on relevant matters. There are many charitable organisations supporting children in care and care-leavers including Become, Barnardo’s, and the Fostering Network.

14.5.2.6.5. Looked After Children services are subject to regular government inspections with the aim of monitoring and improving standards.

14.5.2.7 Consent and parental responsibility 

14.5.2.7.1 Guidance has been produced by the General Medical Council

• General Medical Council, Protecting Children and Young People, 2024
• General Medical Council, 0–18 years, 2018
• General Medical Council, Confidentiality: good practice in handling patient information, 2017
• General Medical Council, Decision making and consent, 2024
• 14.5.2.7.2 The same principles for consent apply for children and young people in care but it is important to review who has parental responsibility (PR) and who the accompanying carers are.

14.5.2.7.3 Consent in Scotland

The Children (Scotland) Act 2020 (asp16),   the recent incorporation into Scottish Law of the UNCRC and taking account of the recommendations of The Promise the participation of the child and seeking the child’s views at every stage of their looked after experience is of fundamental importance.

Therefore, now more than ever, we have to reinforce the rights of the child in Scotland. The prevailing legislation in this regard is still the Age of Legal Capacity (Scotland) Act 1991 (c.50)  Section 2 (4) states that:

“A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment”.

14.5.2.7.4. If the health professional believes that the child has capacity to consent, then only the child can consent or not consent. The parent’s consent or otherwise is legally irrelevant, although good practice would be to work with the family where the child is happy for this to take place.

14.5.2.7.5 In England, Northern Ireland and Wales, consent or authorisation can be given by:

• A child of 16 years and over
• A child or young person who has the maturity and understanding to make the decision
• A person with parental responsibility
• A court. If the child is subject to an interim care order, Emergency Protection Orders (EPO) or child assessment order the court may give consent (the local authority will transmit the request). If proceedings are ongoing, the court may also order the nature of the examination and who should perform it
• The local authority if they have joint parental responsibility e.g. interim care order (ICO)

14.5.2.7.6. For children and young people in care, parental responsibility (PR) may sit with:

The child’s birth parents +/- local authority

• A local authority in whose favour the court has made an interim care order, a care order or a placement order
• A prospective adopter with whom the child has been placed under a placement order

14.5.2.7.7. Birth parents no longer have parental responsibility once an adoption order has been granted (and the child is no longer in care). The exercise of Parental Responsibility (PR) can be restricted by a court order. If a child is being accommodated (often described as voluntary care section 20 – Children Act 1989 (c.41)), or is the subject of an interim supervision order or a supervision order, the local authority does not have PR. However, if the child is the subject of an interim care order or a care order, the local authority has the power to determine the extent to which other people who hold it may exercise PR.

14.5.2.7.8. As per the General Medical Council’s (GMC) guidance for all doctors, emergency treatment can be provided without consent to save the life of, or prevent serious deterioration in the health of, a child or young person (i.e. in the best interests of the child).

14.5.2.7.9. Specific consent should be considered for specific investigations for clinical illness particularly blood borne infection screening (usually human immunodeficiency virus (HIV), Hepatitis B & C, and syphilis).

14.5.2.7.10. Statutory health assessments often include third party information relating to birth family and this should be considered before sharing outside of Looked After Children procedures. GMC guidance on confidentiality should be consulted, which states that information can be shared if it is anonymised as far as possible to serve the purpose if consent cannot be obtained due to inability to trace the patient.