The Scottish Government

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BACKGROUND

Regulations dealing with looked after children and their carers are currently contained in the Arrangements to Look After Children (Scotland) Regulations 1996; the Fostering of Children (Scotland) Regulations 1996 and, to a lesser extent, the Residential Establishments - Child Care (Scotland) Regulations 1996.

There have been a number of recent policy developments that have necessitated an update of the existing regulations. These include

• the publication of Getting it right for every child in kinship and foster care in December 2007 ¹;
• recommendations by the Adoption Policy Review Group ( APRG), set out in the report Adoption: better choices for our children (June 2005) www.scotland.gov.uk/Publications/2005/06/27140607/06107. particularly chapter 10 on Fostering Issues;

• the introduction of the permanence order by the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") which is a new order to replace existing parental responsibilities orders (section 86 of the Children (Scotland) Act 1995);
• the policy direction being set by Getting it Right for Every Child
• the recent Protection of Vulnerable Groups (Scotland) Act 2007, although implementation of this is not planned until summer 2009;
• specifically, the recommendation in the SWIA report into the Western Isles case ² that the Scottish Executive should seek to amend the fostering regulations and relevant guidance so that relatives and friends must be formally approved as carers for a child who is looked after when that child is placed with them as a condition of a supervision requirement made by a children's hearing and
• the recent Historical Abuse Systemic review, which has implications for record keeping in residential establishments ³.

The Scottish Government has decided to reflect the Getting it Right approach in terms of the way that the regulatory framework is structured, by seeking to make the child and his or her needs the starting point of the legislation. These new Regulations will apply to all looked after children and their carers, whether the children are cared for at home, by other people known to them ('relative carers'), by foster carers or in a residential care setting. They therefore replace the existing Regulations referred to above. The Residential Establishments - Child Care (Scotland) Regulations 1996, except for Regulation 17, are not amended nor repealed by the proposals as they make provision in respect of residential establishments where a looked after child may be placed. Regulation 17 of those Regulations is, however, incorporated into the draft Regulations and appears at regulation 21.

'Looked after' is defined in section 17(6) of the Children (Scotland) Act 1995 ( "the 1995 Act") and generally means a child -

• for whom the local authority is providing accommodation because no-one has parental responsibility for him or her; (s)he is lost or abandoned; or the person who has been caring for him or her is no longer able to do so. This may be temporarily or permanently the case;
• who is subject to a supervision requirement from a children's hearing;
• who is subject to certain orders under the 1995 Act; or
• who is the subject of a permanence order or permanence order proceedings

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