Amendments to the Looked After Children (Scotland) Regulations 2009 will support the rights of brothers and sisters in care to live together.

The regulations, which come into force in stages, from 31 March 2021, create a duty on local authorities to place siblings together in kinship care, foster care and residential care, whenever it is appropriate.

The definition of sibling in the regulations is “a person who has at least one parent in common with the child” and has been extended to include “any other person with whom the child has lived or is living, and with whom the child has an ongoing relationship with the character of a relationship between siblings.”

Siblings going through the care system in Scotland are routinely separated, which has created an additional layer of trauma and harm for these children. A major review of Scotland’s care system found that the phenomenon had profound and often life-long consequences for those children.

Brothers and sisters in the care system in England and Wales are also being separated. A Freedom of Information request found that more than 12,000 children in England and Wales had been separated from one another inside the care system last year.

The explanatory note for the changes is very helpful, and so we’re adding key segments from the note below. It’s important to mention that these new regulations only apply to Scotland.

EXPLANATORY NOTE

These Regulations amend the Looked After Children (Scotland) Regulations 2009 (“the 2009 Regulations”). The 2009 Regulations make provision for the duties and functions of local authorities in respect of children who are looked after by them in terms of section 17(6) of the Children (Scotland) Act 1995 (“the 1995 Act”).

Siblings

Regulation 3(2) inserts a new definition in regulation 2 (interpretation) of the 2009 Regulations to clarify that “sibling of the child” means a person who has at least one parent in common with the child, and any other person with whom the child has lived or is living, and with whom the child has an ongoing relationship with the character of a relationship between siblings.

Regulation 3(3) amends regulation 4 (assessment) of the 2009 Regulations so that, where appropriate, a local authority must also take into account views of any sibling of the child. Regulation 3(3)(c) omits regulation 4(5) of the 2009 Regulations in consequence of the new regulation 5A (duty to place siblings together) inserted by regulation 3(5).

Regulation 3(4) amends regulation 5 (child’s plan) of the 2009 Regulations in relation to taking account of the views of any sibling before preparing the child’s plan.

Regulation 3(5) inserts a new regulation 5A (duty to place siblings together) in the 2009 Regulations. This provides that the local authority must, where appropriate, place the child and any sibling of the child who is also looked after with the same carer or in the same residential establishment, or in homes which are near to each other. In determining what is appropriate the local authority must be satisfied that the placement safeguards and promotes the welfare of the child (the paramount consideration). A local authority may only place a child in homes that are near together rather than in the same placement if that better safeguards and promotes the welfare of the child.

Regulation 3(10) amends regulation 35(b)(iii) (child placed in residential establishment: information to be supplied) of the 2009 Regulations to clarify that arrangements for contact with the child’s family includes contact with their siblings.

Regulation 3(11) amends regulation 36(3)(e)(i) (emergency placement with carer) of the 2009 Regulations to include reference to the duty to promote contact with siblings in section 17(1)(d) of the Children (Scotland) Act 1995 (section 17(1)(d) is inserted by section 13 of the Children (Scotland) Act 2020).

Regulation 3(12) makes amendments to schedule 1 (information relating to the child) in relation to siblings.

Regulation 3(13) makes amendments to schedule 4 (matters and obligations to be covered in foster and kinship placement agreements) with regard to contact with siblings.

Placement limit

Regulation 3(8) inserts a new 27A(2)(c) in the 2009 Regulations to provide that there is a further exception to the placement limit referred to in regulation 27A(1) where regulation 27B(4) applies.

Regulation 3(9) inserts a new regulation 27B into the 2009 Regulations to provide a procedure for the local authority to follow if it considers that it is in the best interests of a child to continue the current short term or emergency placement of a child, despite the placement limit.

Regulation 3(6) amends regulation 20 (functions of the fostering panel) of the 2009 Regulations in consequence of regulations 27A(2)(c) and 27B.

Regulation 3(7) amends regulation 25(1)(a) (reviews and termination of approval) of the 2009 Regulations in consequence of regulation 27B(4).

The latest child welfare developments that should be right on your radar:

Facebook stepping up fight against child abuse on platform, adds new tools & policies (Global)

Bill against children’s corporal punishment in Islamabad passed (Pakistan)

Ditch The Label launches free mental health courses for children and families (Global)

The latest child welfare items that should be right on your radar:

• Public Health England launches free three-week children’s mental health course for parents
• Research: What’s the household composition of families in the family justice system?
• House of Commons Library: tackling loneliness (includes content about children and families)

Welcome to another week.

Our question this week, is just this: how do you feel about the Children’s Care Review, so far?

What happens when survivors and victims of domestic violence engage in a domestic abuse bill going through Parliament? This was the question we explored in our latest story for The Independent.

From personal experiences of male and female victims of domestic violence, to the people, peers and charities developing the government’s pioneering domestic abuse bill, the article examines how legislation with so much at stake plays out in the real world.

You can read the article for free by registering online (also free), with the Independent.

The Ministry of Justice has moved forward with two new amendments to the Family Procedure Rules (FPR), one of which allows for the Rules to be temporarily modified in the event of a public emergency. The second amendment clarifies a rule relating to serving parties in family law proceedings.

The Family Procedure Rules, which set out the procedures used in family courts in England and Wales, also outline pre action protocols and include the forms used for family court hearings.

The decision to amend the FPR took place without a formal consultation, which could raise concerns about the intent behind an amendment allowing relaxations of the Rules where an incident is deemed to be a public emergency.

The amendments, announced on Wednesday, follow a landmark case which found that the government had a duty to consult the Children’s Commissioner and other bodies representing the rights of children in care where amending rules and regulations could significantly impact children’s welfare.

The case, which was brought by charity Article 39 last year, challenged the government’s decision to relax core safeguards for children in care during the Covid-19 pandemic without holding a formal consultation with the Children’s Commissioner and other organisations and departments working inside the children’s care system.

Handing down its judgment, the Court of Appeal found that the government had been wrong not to launch an official consultation before introducing the easements, and re-iterated the circumstances in which a consultation was necessary. These include, where there is a statutory duty; where a promise to consult has been made; where there is an established practice of consultation; and where it would be conspicuously unfair not to have a consultation.

The judges in the Court of Appeal also set out the key reasons for a consultation, namely to improve the quality of decision making; that those affected may have a right to be consulted by regulatory change and feel injustice if they are not; and that the consultation is part of a wider democratic process.

The explanatory memorandum for the new amendments said that a consultation about the amendments was unnecessary, and that the new amendment relating to public emergencies in particular — rule 36.3 — was an “enabling provision” allowing for the temporary modification of rules (to be made by a Practice Direction), and was not a provision that would “of itself have immediate or direct effect.”

The memorandum said that while an official consultation had not been carried out, the FPR Committee had “liaised” with the Civil Procedure Rule Committee regarding new rule 36.3, and that a mirroring provision would be inserted in the Civil Procedure Rules 1998.

No direction is offered in the memorandum as to what might constitute a public emergency for rule 36.3 to be enabled, which could also spark concerns from child welfare charities and stakeholders that the new rule could be misused.

The explanatory note included an impact assessment for the amendments which simply said,”There is no, or no significant, impact on business, charities or voluntary bodies. There is no, or no significant, impact on the public sector. An Impact Assessment has not been prepared for these Rules because no, or no significant, impact on the private, public or voluntary sectors is foreseen.”

The Education Committee will launch an inquiry into children’s care homes, it announced today.

The Committee has decided to launch the investigation following ongoing concerns about the levels of care children inside England’s care homes receive and consistently poor outcomes for children in care.

In a tweet published today, the Committee said it would be “welcoming contributions from anyone with experience of working in children’s homes, and young people who live or who have lived in a children’s home.”

The press release offers the following statistics on children in care:

• Just 7% of looked-after children achieve a good pass in GCSE English and Maths compared with 40% of non-looked after children;
• Approximately a quarter of both homeless people and those in prison are care-leavers;
• Looked-after children are four times more likely to have a special educational need (SEN) than other children;
• Children aged 16-17 living in children’s homes are 15 times more likely to be criminalised than their peers of the same age.

The Committee will be looking into several areas incuding:

• The data on academic outcomes and progression to destinations such as employment, apprenticeships and higher education for children and young people living in children’s homes.
• What can be done to improve educational and longer-term outcomes for children and young people living in children’s homes.
• The disproportionately high rates of criminalisation of young people in children’s homes.
• What further support is needed to improve outcomes for children with special educational needs in children’s homes.
• The quality of care, support and safeguarding in children’s homes.
• The impact of the Covid-19 pandemic on the children’s residential care sector, and on the demand for children’s home places.

Announcing the inqiury, Robert Halfon MP, Chair of the Education Committee, said:

“With many children in care struggling to achieve good basic qualifications and leavers more likely to end up in prison or on the streets, those in the care system are falling behind every step of the way. As part of the Committee’s unerring focus on supporting disadvantaged groups, this inquiry will get to the bottom of why children and young people living in children’s homes are facing such an uphill struggle to get on in life.

There is also worrying evidence of the consequences of a lack of oversight in some homes. The most basic of rights for a child must be to have somewhere safe to live, where they are not at risk of abuse or preyed on by gangs. We will be examining whether more needs to be done to protect young people in unregulated provision.

Children coming into care will already have had a traumatic start to their lives. We therefore owe it to them to ensure that their homes are safe and secure and that they are given every helping hand to access the ladder of opportunity and succeed in education and beyond.”

Australia’s Prime Minister, Scott Morrison, has endorsed legislation which will abolish Australia’s family courts.

The Federal Circuit and Family Court of Australia Bill will merge Australia’s existing Family Court network with the Federal Circuit Court, to create a single point of entry for family law cases and which will work under a universal set of rules, procedures, and practices.

The merger of the two courts will create one court, called the Federal Circuit and Family Court of Australia.

The aims of the merger are to ensure that Australian families have a consistent and clear pathway to use, to enable their family law disputes to be heard in the federal courts; to improve the efficiency of the court system; and ensure outcomes for families are timely, well informed and cost effective.

A ‘division one’ with family court judges and a specialist appeals court will also be created under the new proposals.

The bill is now set to pass after winning support from independent senator Rex Patrick, who has said the changes must include the retention of a minimum number of family law judges.

Opponents of the bill, which include law societies, legal centres and women’s legal support groups say the court merger will jeopardise the outcomes of family law cases and place victims of domestic abuse and violence at risk of further harm. Political parties including Labor and the Greens have also expressed concerns about the move.

A letter released by Australia’s Law Council opposing the bill has been signed by 155 stakeholders in Australia’s family justice system. The letter, published on February 16 and addressed to Australia’s Attorney-General Christian Porte, warns that the abolition of the standalone Family Court will have a devastating impact on families and dismantle ‘expertise’ developed within the Family Court.

Senator Patrick said critics of the merger did not understand the bill and that the changes would make it much easier for families to navigate the court system, particularly those without legal representation.

The decision to dismantle the Family Court in Australia will likely come as a shock to other countries like the UK, who have long considered Australia to be a pioneer of the family court system. Credited with the creation of the first in-house family consultants; the introduction of alternative dispute resolution in the form of conciliation conferences; and the development of a specialist appellate division in the Family Court of Australia, the country has been a source of inspiration for legal bodies and experts in Britain since the 1970s.

So why has Australia decided to get rid of its standalone Family Court? Much like the family courts in England and Wales, Australia’s family justice system has been buckling under the weight of ever growing case loads, and ineffective processes and procedures which have consistently failed to protect the most vulnerable inside its territories for decades.

Will the British government follow suit? If it does, much like Australia’s government, it will have to face strong opposition.

The child welfare items that should be right on your radar:

• Update: Family Division’s Transparency Review (media reporting in the family courts)
• Government consultation on extending or changing children’s social care easements during the Coronavirus pandemic
• WHO issues guidance for children living with chronic pain

A survey produced by the Nuffield Family Justice Observatory is hoping to gather information from parents and relatives who have experienced supervision orders in England and Wales.

Supervision orders, which must be applied for through the family courts, give local authorities the power to monitor a child’s needs and progress, and should involve social workers offering the family as a whole all the help and support they need.

It’s important to add that a supervision order doesn’t give local authorities parental responsibility over children and doesn’t give them the right to remove children from parents. Parents always keep their parental responsibility during the life of a supervision order.

The research project is being carried out on behalf of the President of the Family Division’s Public Law Working Group.

The Observatory is looking specifically into cases where the supervision order was made with regard to at least one child, and as a standalone action without any other connecting orders.

The organisation would like to hear from parents and family members who have been involved in care proceedings in the last six years where a supervision order was made and who are happy to fill out the survey.

Families can also register to take part in a focus group or interview about supervision orders, and can do so by contacting Judith Harwin (j.e.harwin@lancaster.ac.uk) or Lily Golding (l.f.golding@lancaster.ac.uk; 07511 555990) at Lancaster University.

The survey, which can be accessed here, runs until 8 March 2021.