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Good Practice Guidance for working with Children and Families affected by Substance Misuse
Appendix 1: Legal Framework
Statutory duties upon local authorities
The Social Work (Scotland) Act 1968
Section 12 of the Social Work (Scotland ) Act 1968 places a general duty upon local authorities to promote social welfare in their areas and to provide advice, guidance and assistance for certain categories of people in need, aged over 18 years.
The Children (Scotland) Act 1995
Children in need (sections 22, 23 and 24)
Section 22 of the Act requires local authorities:
- to safeguard and promote the welfare of children who are in need in their area
- so far as is consistent with that duty, to promote the upbringing of children by their families
- by providing a range and level of services appropriate to the children's needs.
Services may be provided to a child or members of his or her family, and may be in kind, or in exceptional circumstances, in cash. Children in need in an area are likely to include children of parents who have problems associated with their use of either drugs or alcohol or both, and young people who provide care or support for parents who misuse drugs or alcohol, often termed 'young carers'.
Section 93 (4) defines a child in need as:
Being in need of care and attention because
- s/he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him/her services by a local authority
- his/her health or development is likely significantly to be impaired, or further impaired, unless such services are so provided
- s/he is disabled
- s/he is affected adversely by the disability of any other person in his/her family.
For the purposes of support for children in need and their families under Part II of the Act 'child' means a person under the age of 18 years. 'Family', in relation to a child, includes any person who has parental responsibilities for a child and any other person with whom the child has been living.
Child protection inquiries (Section 53)
Section 53 requires local authorities to make enquiries into the case of any child where they receive information that the child may be in need of compulsory measures of supervision. If, as a result of their enquiries, the local authority believes that a child may be in need of compulsory supervision they must pass any information on to the Authority Reporter, for consideration for the need for a children's hearing.
Duty to provide local authority accommodation (Section 25)
Section 25 places a duty on the local authority to provide accommodation for children where this is necessary to safeguard and promote their welfare and gives local authorities powers to provide accommodation for children in need.
Child Protection Order (Section 57)
Any person who has reasonable grounds to believe that a child is being treated or neglected so as to suffer significant harm, or will suffer such harm, may apply to a Sheriff for a Child Protection Order authorising a child's removal to, or retention in, a place of safety. Most applications are made by local authorities. If an application is made by a local authority, additional requirements may be that:
- the local authority has reasonable grounds to suspect that the child is being or will be treated or neglected so as to suffer significant harm
- they are making inquiries to investigate this
- the inquiries are being frustrated because access to the child is unreasonably denied.
A Child Protection Order may last up to eight working days following implementation. A children's hearing must be held on the second working day following implementation to confirm that the Child Protection Order is still necessary, unless the Reporter has decided that the conditions for the making of the Order are no longer appropriate, or unless a parent has already applied to the Sheriff for termination or variation of the Order. Either the child or the child's parents may apply to have the Child Protection Order varied or terminated within two days of the Sheriff making the Order or within two days of the Children's Hearing continuing it.
Exclusion Order (Section 76)
The Act enables a Sheriff to make an order excluding a named person from a household on application by a local authority. The Sheriff must be satisfied that:
- the child has suffered or is likely to suffer significant harm because of the behaviour of the named person
- that it is necessary to make an Exclusion Order against the named person to protect the child, and that this will be a better safeguard for the child than taking him or her away from the home
- that if the Order is made, there will be an appropriate person in the household to care for the child.
An Exclusion Order can last for up to 6 months. A Sheriff may grant a Child Protection Order instead of an Exclusion Order if satisfied that the relevant conditions are met.
Child Assessment Order (Section 55)
When there is concern for a child's safety or welfare, all attempts to assess the child and his or her circumstances on a voluntary basis have failed and professionals lack sufficient information to decide whether action is needed to protect the child, the local authority may apply to a Sheriff for a Child Assessment Order. This requires the parent(s) to produce the child for any necessary assessment to find out whether s/he has suffered is likely to suffer significant harm. The Sheriff must satisfy him or herself that the local authority has reasonable cause to suspect that the child is being so treated (or neglected) that s/he is suffering or is likely to suffer significant harm, and assessment is required to establish whether this is in fact the case.
A Child Assessment Order may last for up to seven days and may involve the child being looked after away from home whilst assessment takes place. Assessment may include medical or psychological examination and may involve specialist professionals. A Sheriff must grant a Child Protection Order instead of a Child Assessment Order if satisfied that the relevant conditions are met.
Emergency Protection Measures (Section 61)
Section 61 makes provision for a local authority or any other person to make application in an emergency to a justice of the peace for an authorisation to remove a child to a place of safety or to prevent a child being removed from a place where s/he is being accommodated. The child may be kept in a place of safety for up to 24 hours. In certain circumstances a police constable may remove a child to a place of safety for a maximum of 24 hours.
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