SWSG Guidance Package, Index Ref F.2

27 July 1983

Dear Colleague

HEALTH AND SOCIAL SERVICES AND SOCIAL SECURITY ADJUDICATIONS ACT 1983

Summary

1. This Circular draws the attention of local authorities and courts to the provisions of the Health and Social Security Adjudications Act 1983 which received Royal Assent on 13 May 1983, advises on the proposed timetable for implementation of the Act’s provisions and identifies preparatory action by the Department and local authorities that will be necessary. Please note that the contents of this circular will be reviewed following implementation of the Children Act 1995.

Structure and Content of the Act

2. The Health and Social Services and Social Security Adjudications Act 1983, as the name implies, contains a number of wide-ranging amendments to legislation in the health and social services field, only some of which are of direct relevance to the courts and the local authority social work departments in Scotland. These are:

Section 2 - support financing of community services in Scotland;

Section 7 - amendments to the law on assumption of parental rights and access to children in care in Scotland comprising Circular SWSG13/83 gives details about the coming into force of section 7 of the 1983 Act.

a. an amendment to section 16 of the Social Work (Scotland) Act 1968 on the requirement to notify parents when a resolution is passed assuming parental rights;

b. a new right of application to the Courts where a resolution under section 16 of the 1968 Act is in force in respect of a child and the local authority having parental rights and powers refuses or terminates access to the child on the part of its parent or guardian;

c. a provision for the Secretary of State to draw up a code of practice on questions relating to access by parents or guardians to children in care or under supervision under the Social Work (Scotland) Act 1968; and

d. provision to enable a sheriff in considering a case under b. above to appoint a person to represent the child’s interest in certain circumstances.

Section 8 - new provision to regulate the provision and use of secure accommodation for children. Circular SWSG12/83 provides details about the coming into force of section 8 of the 1983 Act.

Section 9 and Schedule 2 - miscellaneous amendments to enactments relating to children and young persons in Scotland.

Section 10 - restructuring of the Central Council for Education and Training in Social Work.

Sections 18-24 - new statutory powers for local authorities to make and recover charges for services provided under the Social Work (Scotland) Act 1968, including the recovery of contributions in respect of children in care, the simplification of charging procedures for short-term residential accommodation, and the recovery, in certain circumstances, of sums due for longer-term residential accommodation. Circular SWSG14/83 provides details on the coming into force of sections 18 and 19 of the 1983 Act. Circular SWSG15/93 gives details about the coming into force of sections 21-24 of the 1983 Act.

Section 31 - power of the Secretary of State by regulations to repeal or amend local Acts consequential on the Health and Social Services and Social Security Adjudications Act 1983.

A more detailed summary of the provisions of each of the above sections is provided at Annex A.

Arrangements for Commencement

3. Except for sections 32-34, which relate to commencement, extent and short title, all the substantive provisions of the new Act will come into force on such day or days as the Secretary of State by Commencement Orders appoints. The Health and Social Services and Social Security Adjudications Act 1983 (Commencement No 1) Order 1983) was made on 5 July 1983 and provides for the bringing into force of a number of the provisions mentioned above on the following dates:

a. On 15 August 1983

Section 7(1) - revised requirement to notify parents or guardians of a parental rights resolution under section 16 of the Social Work (Scotland) Act 1968.

Section 9 and Schedule 2 - all of the miscellaneous amendments to Scottish legislation to children.

Section 20 - power of the local authority to limit to the minimum rate the charge for the first 8 weeks of any stay in residential accommodation.

Section 29(1) and Paragraph 5 of Schedule 9 - amendment to the Nurseries and Child Minders Regulation Act 1948.

Section 30 and Schedule 10 (part) - Consequential repeals.

Section 31 - power of the Secretary of State to make regulations to amend or repeal local Acts.

b. On 1 January 1984

Section 8 - secure accommodation for children in Scotland.

Sections 18 and 19 - local authorities’ powers to charge for certain social work services under the 1968 Act, including contributions for children in care.

Section 30 and Schedule 10 (part) - Consequential repeals.

c. On 1 April 1984

Section 10 and Schedule 3 - reconstitution of the Central Council for Education and Training in Social Work.

Section 30 and Schedule 10 (part) - consequential repeals.

4. Section 2(support financing of community services), section 7(2) and (3) (remaining provisions on parental rights and access to children in care) and sections 21-24 (recovery of charges for residential accommodation) will be brought into force by further commencement order(s). The timing of these will depend on the preparation of directions, guidance, codes of practice, or regulations about which there will be further consultation with the Convention of Scottish Local Authorities, the Association of Directors of Social Work and other interested parties (see also paragraphs 7-13 below).

5. Except for those provisions which come into force on 15 August 1983 further circulars will be issued before any of the provisions in the Act are implemented, giving notice of the Secretary of State’s intentions and of what is involved for the Courts, local authorities and voluntary bodies as appropriate. In the case of section 2, circulars would be issued jointly be SHHD and SWSG to health boards and local authorities on the use of NHS resources of finance community service. For sections 21-24, see Circular SWSG15/93.

Preparatory Work

6. In the meantime there is a good deal of work to be done to prepare for the implementation of provisions in the Act, and much of this will involve local authorities. The areas to which their attention is particularly drawn are described in the following paragraphs.

Secure Accommodation

7. When section 8 is implemented and the relevant regulations are made, it will be possible to place or hold children in secure accommodation only if that accommodation has been approved for that purpose by the Secretary of State. Annex B describes the types of facilities and levels of control of children which, in the Secretary of State’s view, are to be regarded as constituting secure accommodation. Any local authority or voluntary body (including List D schools) which wishes to apply for such approval by the Secretary of State of accommodation in a residential establishment in their management, should do so as soon as possible, and not later than 31 August 1983, to Social Work Services Group, 43 Jeffrey street, giving details of the accommodation involved. The Central Advisory service will carry out the necessary inspection of the accommodation in order to provide a basis for a decision by the Secretary of State when section 8 and the accompanying regulations come into force.

8. Local authorities and voluntary bodies should note that the Secretary of State is concerned about the practice of using single secure separation rooms for children. He considers that the need for continued use of such accommodation should be reviewed by local authorities and the relevant voluntary bodies, and that efforts should be made to introduce alternative arrangements to supervise those children who have from time to time been placed in such accommodation. Any application by a local authority or voluntary body for the approval of a single separation room as secure accommodation will need to be accompanied by a full account of why alternative arrangements are not possible in the particular circumstances. Circulars SWSG12/83, 13/83, 4/85, 8/88 and 12/88 provide further guidance on secure care.

Guidance on Assumption of Parental Rights Procedures

9. During the preparation of the new legislation the Convention of Scottish Local Authorities and the Association of Directors of Social Work agreed to support the preparation of a circular offering guidance on procedures for the assumption of parental rights and powers under section 16 of the 1968 Act. That Circular, SWSG4/84, duly issued and takes into account reviews undertaken by individual local authorities of their own procedures.

Access to Children in Care

10. It would be possible to implement separately the arrangements to enable a parent or guardian to apply to a course for an access order where a local authority which has assumed parental rights refuses or terminates access to the child in care (new sections 17A-D in section 7(2)). However, the Secretary of State considers that it would be more appropriate for these provisions to be implemented when the new statutory code of practice has been prepared which will deal with wider issues in the field of arrangements by local authorities and voluntary organisations for access to children in their care or under their supervision (new section 17E in section 7(2)). Following consultation with interested parties, the code of practice issued under Circular SWSG11/86.

Reviewed Arrangements for the Central Council for Education and Training in Social Work

11. Section 10 and Schedule 3, provides for the reconstitution of the Central Council for Education and Training in Social Work (CCETSW). The number of members (excluding the Chairman) is reduced from 64 to 25 who will be appointed by the Secretary of State for Social Services after consulting any bodies that appear to him to be appropriate. SWSG will be responsible for providing advice on appropriate nominations for appointments for Scotland bearing in mind that the reduced membership of the Council means that the number of Scottish places is unlikely to be more than 3. The new arrangements will formally take effect on 1 April 1984. However, to ensure a smooth transition it is hoped to make appointments to the new Council in sufficient time for it to operate as a "Council-Designate" for up to 3 months in advance of that date. Representative bodies in Scotland with an interest in social work training, have been approached for suggested nominations for Scottish representatives. In the meantime the existing members of the present Council - whose term of office would otherwise expire on 30 September 1983 - will be invited to continue to serve during the transitional period up to 1 April 1984. The new Council will be invited to establish a new Scottish Committee as provided for in section 10 and schedule 3 to replace the present Scottish advisory Committee to the existing Council. Further advice on these arrangements will be issued in due course.

Charges for local authority social work services, including contributions for children in care

12. Sections 18 and 19 of the Act amend the 1968 Act and provide revised powers for authorities to charge for certain social work services and to recover contributions in respect of children in care. Similar powers are given to local authorities in England and Wales under section 17 and 19. The Convention of Scottish Local Authorities has agreed, in consultation with its members and the local authority associations in England and Wales, to prepare guidance on the exercise of these powers in order to provide for consistent and appropriate practice by authorities north and south of the Border. The Secretary of State considers that it would be desirable for such guidance to be agreed and available in advance of the sections of the Act being implemented on 1 January 1984.

Supplementary

13. Copies of this circular are being sent to the Directors of Social Work, the Reporters to the Children’s Panel, the Chairman of the Children’s Panels and the Children’s Panel Advisory Committees, the Official Correspondents of List D Schools, voluntary adoption societies in Scotland and other voluntary child care organisations.

14. Copying the legislation referred to herein may be purchased from HMSO, 71 Lothian Road, Edinburgh.

Contact Point

15. Please direct any enquiries about the details of particular sections of the Act should be addressed to the officers listed in Annex C. Any general inquiries about the Circular should be addressed to Mr Trevor Hall, Social Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA (telephone 0131 244 5455).

Yours faithfully

GAVIN ANDERSON

ANNEX A

HEALTH AND SOCIAL SERVICES AND SOCIAL SECURITY ADJUDICATIONS ACT 1983

OUTLINE OF MAIN PROVISIONS AFFECTING THE WORK OF LOCAL AUTHORITIES AND VOLUNTARY BODIES IN THE FIELD OF SOCIAL WORK

PART I - COMMUNITY CARE

Support Financing of Community Services

1. Section 2 would insert a new section 16A into the National Health Service (Scotland) Act 1978 to replace that which was inserted into the 1978 Act by section 4(2) of the Health Services Act 1980. It would enable the scope of the support finance scheme to be extended to include payments to local authorities, voluntary agencies and certain other organisations towards expenditure incurred in the provision of education and housing, as well as social work services. The revised arrangements for the scheme, and the terms on which such payments might be made, would be prescribed in directions made by the Secretary of State. Health boards and the Convention of Scottish Local Authorities will be consulted before any changes are made to the present arrangements for the support finance scheme: meanwhile, the scheme will continue to be operated on the basis of the arrangements set out in NHS Circular No 1980 (GEN)5, and SWSG Circular No 2/1980, of 14 March 1980.

PART II - CHILDREN AND YOUNG PERSONS

Notification of Parents or Guardians of the Assumption of Parental Rights and Powers Under Section 16 of the Social Work (Scotland) Act 1968

2. Section 7(1) amends Section 16(5) of the Social Work (Scotland) Act 1968 so as to require that where a local authority by resolution vest the parental rights and powers in regard to a child in care in themselves or in a voluntary organisation having the care of the child, they must serve notice in writing to that effect on the parent or guardian whose rights and powers are being assumed in every case where the authority know of that person’s whereabouts. This will give him the opportunity if he so wishes of serving a counter notice under section 16(7) of the 1968 Act objecting to the resolution. Authorities will no longer therefore be allowed not to serve such a notice where a parent or guardian has given prior written consent to the passing of a resolution.

Termination or Refusal of Access by Parents or Guardians of Children Subject to Section 16 Resolutions: Applications for Access Orders to the Sheriff

3. Section 7(2) inserts 4 new sections (17A-17D) into the 1968 Act which contain provisions relating to the powers of local authorities and voluntary organisations to terminate or refuse access by a parent or guardian to a child in respect of whom there is in force a resolution under section 16 of the 1968 Act vesting the parental rights and powers of that person in the authority or organisation.

4. New section 17A provides that access to a child by a parent or guardian cannot in these circumstances be terminated or refused by the local authority or voluntary organisation without their having first notified the parent or guardian to that effect in a form to be prescribed by the Secretary of State. The notice must inform the parent or guardian of his right to apply to the Sheriff for an access order under new section 17B. Where access is being terminated this takes effect from the date when the notice is served. New section 17B enables the Sheriff to make an access order which will require the local authority or voluntary organisation to allow access to the child by the parent or guardian subject to such conditions as may be specified in the order with regard to commencement, frequency, duration or place of access or to any other matter for which it appears to the Sheriff that provision ought to be made in that connection. Such an access order may be varied or discharged by the Sheriff on the summary application to him by the parent or guardian, local authority or voluntary organisation.

5. New section 17(C)(1) and (2) provides that where an access order is made under section 17B the Sheriff may make an emergency order suspending the operation of the access order for up to 7 days where he is satisfied that continued access to a child by his parent or guardian in accordance with the terms of the access order will put the child’s welfare seriously at risk. Sub-section (3) provides that where during the period of operation of an emergency order the local authority or voluntary organisation apply to the Sheriff for the variation or discharge of the access order, the operation of the access order will remain suspended until the date on which the application to vary or discharge it is determined or abandoned.

6. Section 17D provides that the welfare of the child is to be the first and paramount consideration for the court in determining applications for, and appeals relating to, access orders, and their variation and discharge, and for emergency orders.

7. Section 7(3) amends sections 18A [ Section 18A was inserted into the 1968 Act by section 78 of the Children Act 1975 but is not yet in force.] of the Social Work (Scotland) Act 1968 by including proceedings under the new sections 17B and 17C within the scope of the Sheriff’s power under section 18A. This has the effect that in any proceedings before the Sheriff for an access order, or its variation or discharge, or for an emergency suspension order, the Sheriff is to consider whether it is necessary to appoint a person to safeguard the child’s interest in those proceedings.

Code of Practice with regard to Children in Care or Subject to a Supervision Requirement under the Social Work (Scotland) Act 1968

8. Section 7(2) also inserts a new section 17E into the 1968 Act. This requires the Secretary of State to prepare and from time to time revise a code of practice with regard to access to children who are in care or who are subject to a supervision requirement under section 44 of the 1968 Act. The Secretary of State is required to consult such bodies as appear to him to be concerned, and to lay copies of the code and of any alteration in the code before Parliament. The code of practice will come into effect unless either House passes a resolution requiring the code or any alteration in it to be withdrawn, in which case the Secretary of State is required to prepare a new code. The Secretary of State is also required to publish the code for the time being in force.

Secure Accommodation for Children

9. This section should be read in conjunction with the circulars referred to after paragraph 9 of the main body of this Circular. Section 8 contains provisions aimed at ensuring that Scottish legislation with respect to the placing and keeping of children in secure accommodation is compatible with the European Convention on Human Rights. The sections takes the form of various amendments of the Social Work (Scotland) Act 1968, whereby any decision to place a child in secure accommodation is to proceed from the authority of a Children’s hearing or the Sheriff as the case may be. In addition regulations are to be made by the Secretary of State in consequence of the amendments relating to various matters governing the use of secure accommodation. These include powers relating to the Secretary of State’s approval for the provision and use of secure accommodation by local authorities or voluntary organisations.

10. Section 8(1) inserts a new paragraph into section 32(2) of the 1968 Act. This contains a new condition with respect to a child being in need of compulsory measures of care, namely that he is in the care of a local authority and his behaviour is such that special measures are needed for his adequate care and control.

11. Section 8(2) repeals the definition of "secure accommodation" in section 59a(3) of the 1968 Act. That definition had only been for the purposes of the grant-making provisions in section 59A. The term is however re-defined for the 1968 Act in the new section 58A(2) - see paragraph 14 below.

12. Section 8(3) amends the regulation-making power of the Secretary of State in section 60 of the 1968 Act, which relates to the control of establishment. It gives him the power in regulations:

a. to make provision for him to approve the accommodation to be provided and used in residential establishments as secure accommodation;

b. to prescribe the minimum age below which a child may not be placed or kept in secure accommodation except with the Secretary of State’s consent;

c. to make special provision for different types of accommodation (including secure accommodation) in residential and non-residential establishments.

13. Section 8(4) inserts 7 new sections (sections 58A to 58G) into Part III of the 1968 Act relating to the circumstances and procedures to which Directors of Social Work, the Managers of residential establishments, children’s hearings and Sheriffs will have to have regard in considering the use of secure accommodation for the purposes of the 1968 Act. These are described below.

14. New section 58A deals mainly with the placing and keeping of children in secure accommodation. Sub-section (1) provides that a child who is made subject to a supervision requirement under the 1968 Act may not be placed or kept in secure accommodation except under the new provisions inserted into the 1968 Act. Sub-section (2) defines secure accommodation as accommodation provided in residential establishments for the purpose of restricting children’s liberty. Such establishments will have to be approved for that purpose in accordance with regulations made under section 60 of the 1968 Act, as amended by section 8(3) of the 1983 Act.

15. Sub-section (3) of the new section 58A specifies criteria on which a children’s hearing must be satisfied before they may include as a condition of a supervision requirement made under section 44(1)(b) a provision with regard to residence in secure accommodation in a named residential establishment. These criteria, relating to the child’s behaviour are

a. that he has a history of absconding, and

(i) he is likely to abscond unless he is kept in secure accommodation; and

(ii) if he absconds, it is likely that his physical, mental or moral welfare will be at risk; or

b. that he is likely to injure himself or other persons unless he is kept in secure accommodation.

The condition which the hearing may makes is that the child is to be liable to be placed and kept in the secure accommodation at such times as the person in charge of the residential establishment, with the agreement of the Director of Social Work, considers it necessary. The imposition of such a condition by a children’s hearing will not, therefore, require that the child be kept in secure accommodation. Rather it will provide authority to the head of the establishment concerned, with the agreement of the Director of Social Work, to place a child in secure accommodation if he considers it necessary, in the circumstances, at any given time during the currency of the condition imposed by the hearing. The child may therefore be removed from secure accommodation whenever the person in charge and the Director of Social Work consider it appropriate without the need to convene a hearing to review the supervision requirement.

16. Sub-section (4) provides new powers for the Secretary of State to make regulations governing the placement of children in secure accommodation in the interim period before their case is considered by a children’s hearing. These regulations will relate to (a) children who are already subject to a supervision requirement but not to a condition about residence in secure accommodation, and who will have to be brought before a hearing to review that requirement; and (b) children who are not subject to any supervision requirement but who are being cared for by a local authority or voluntary organisation, and who therefore need to be referred as in need of compulsory measures of care. The regulations will set down the circumstances which will have to be satisfied before such an interim placement is made. It is proposed that they will be the same as the criteria set out in sub-section (3) described in para 15 above, but there may be cases where different provision is needed and power is taken to deal with this by regulation if required.

17. New Section 58B also deals mainly with matters to be set out in detail in regulations. The regulations will specify the following matters:

a. the maximum period for which a child may be kept in secure accommodation without this being authorised by a hearing or the Sheriff;

b. the period within which a local authority must refer a case to the Reporter;

c. the right of a child or his parents to require an early review of a placement not authorised by a hearing.

Provision is also made that where application is made to the Sheriff for a finding under section 42 of the 1968 Act that grounds of referral are established, the children’s hearing may authorise that the child be detained in secure accommodation pending the Sheriff’s decision and/or the disposal of the case by the children’s hearing, provided that the hearing is satisfied that the criteria under new section 58A(3) relating to placement in secure accommodation are met.

18. New section 58C requires a condition about residence in secure accommodation to be reviewed when the local authority so recommends by a children’s hearing and otherwise as will be prescribed by the Secretary of State in regulations. It also provides for the condition to be reviewed when the supervision requirement itself is being reviewed but that it may also be reviewed separately from a review of the supervision requirement itself. In particular sub-section (3) provides that a condition authorising residence in secure accommodation will cease to have effect 3 months after it was made unless it has been reviewed and the condition has been ordered to continue; and sub-section (4) provides that where a condition is continued under sub-section (3) it will cease to have effect after a further 9 months unless further reviewed and continued. Thereafter the condition would have to be reviewed every 12 months if it is to continue in force. Sub-section (5) attracts the provisions of sections 44 and 48(5) of the 1968 Act so that arrangements for review of conditions about residence in secure accommodation will otherwise be similar to the arrangements for review of supervision requirements under Part III of the 1968 Act. Sub-section (6) gives the Secretary of State power to vary the periods in sub-sections (3) and (4) within which reviews must be conducted, should this be desirable in the light of experience.

19. New section 58D provides that where a child or his parent appeals to the Sheriff against a decision by a children’s hearing to impose a condition authorising the use of secure accommodation under section 58A(3) and the Sheriff is satisfied that the decision of the children’s hearing is not justified in all the circumstances, he must be direct that the condition shall cease to have effect.

20. New section 58E makes similar provision with respect to the authorisation of detention in secure accommodation by the Sheriff or a children’s hearing under place of safety warrants issued under section 37, 40 or 42 of the 1968 Act. Under sub-section (1) the sheriff of the children’s hearing must be satisfied that the criteria specified in section 58(3) apply before they may authorise the detention of the child in secure accommodation. Sub-section (2) provides that in the special case of warrants or detention under sections 40 and 42 the Secretary of State may make regulations to amend, vary or disapply any of the conditions specified in section 58A(3).

21. New section 58F contains power for the Secretary of State to regulate procedures generally for placing children in secure accommodation, and for referring cases to a children’s hearing for review. It also enables the Secretary of State to set out the reporter’s duties where the placing of children in secure accommodation may be involved and to make provision for informing parents about a child’s placement in secure accommodation.

22. New section 58G enables the Secretary of State to make transitional arrangements relative to the introduction of the new provisions.

Miscellaneous Amendments of Enactments Relating to Children and Young Persons

23. Section 9 introduces Schedule 2 to the Act which contains amendments to various enactments relating to children and young persons. The provisions of direct relevance to Scotland are summarised below.

Repeal of Power of Local Authorities to Inspect the Books of Registered Adoption Societies (Paragraphs 1(a) and 39 of Schedule 2)

24. Paragraph 1(a) brings into force the repeal of section 33 of the Adoption Act 1958, so far as concerns Scotland, by the Adoption (Scotland) Act 1978 and paragraph 39 repeals the equivalent provision in section 10 of the Adoption (Scotland) Act 1978. The repealed provisions, which enabled a local authority to require any registered adoption society to produce such of their books etc as the authority wished to inspect, and no longer needed since the Secretary of State now has responsibility for the approval etc of voluntary adoption societies under sections 4 to 7 of the Children Act 1975.

Power of Local Authorities to Receive into Care a Child Subject to Private Fostering Arrangements Under Section 7(4) of the Children Act 1958 (Paragraph 2)

25. This provision substitutes a new section 7(4) of the Children Act 1958 and reinstates the previous effect of the section, viz that a local authority may take into care a child who is privately fostered where in the opinion of the local authority the private fostering provision is unsatisfactory, irrespective of whether the conditions at section 15(1)(a)-(c) of the Social Work (Scotland) Act 1968 apply to the child. The previous effect of section 7(4) of the 1958 Act as it applies to Scotland was unintentionally narrowed by consolidation of the child care legislation for England and Wales. Circular SWSG1/85 provides guidance on the Foster Children (Scotland) Act 1984. SWSG15/85 contains advice on the Boarding-Out and Fostering of Children (Scotland) Regulations 1985.

Amendment of Section 15(3)(a) of the Social Work (Scotland) Act 1968 Relating to the Circumstances where a Parent or Guardian may take away a child received into care (Paragraph 4)

26. This provision clarifies the effect of sub-section (3A) of section 15 of the 1968 Act which was inserted by section 73 of the Children Act 1975. The sub-section was to ensure that the parents or guardians of a child received into care under section 15 could not remove that child from care, where the child had been in the care of the local authority the preceding 6 months, without giving 28 days notice "notwithstanding that no" resolution was in effect in respect of either or both parents or guardians under section 16 of the 1968 Act; otherwise an offence under section 17(8) of the 1968 Act would be committed. The amendments in paragraph 4 clarify that it is only the parent or guardian whose parental rights and powers have not been assumed under section 16 who may give the 28 days’ notice and take the child away at the end of that period without committing an offence under section 17(8). If a parent or guardian whose parental rights and powers have been assumed purports to give notice and takes the child away he would be committing an offence. The amendment into provides that the notice to be given must be in writing.

Application of the Welfare Principle to Children in the Care of Voluntary Organisations (Paragraph 5)

27. This provision amends section 20 of the 1968 Act so as to ensure that a voluntary organisation has the same duties as a local authority to further the best interests of a child in its care and to afford opportunities for the child’s proper development; in reaching any decision relating to the child (sub-section (1)); by making use of facilities and services available for the child in care of his own parents as appears reasonable (sub-section (2)); and in regard to responsibilities to a child where the voluntary organisation has parental rights and powers by virtue of a resolution under section 16(1)(b) (sub-section (3)).

Extended Power of the Secretary of State to Consent to Emigration of a Child in Care of a Local Authority or Voluntary Organisation in company with a friend (Paragraph 6)

28. Section 23 of the 1968 Act permits emigration of a child in the care of a local authority or voluntary organisation with the permission of the Secretary of State. Sub-section (2) permitted emigration of a child to join "a parent, relative or friend" but it permitted emigration in company with "a parent or relative" only. The amendment enables the Secretary of State to give his consent for a child to emigrate in company with "a parent, relative or friend", thus facilitating the emigration of a child in company with, for example, foster parents who are neither "parents" or "relatives" as defined in the 1968 Act.

Amendment to restriction on prosecution of children for offences (Paragraph 7)

29. Section 31(1) of the Social Work (Scotland) Act 1968 provides that no child shall be prosecuted for any offence except on the instructions of the Lord Advocate, or at his instance, and section 30 provides that the term "child" includes (firstly) a child under the age of 16, and (secondly) a child aged 16 or 17 respect of whom a supervision requirement of a children’s hearing is in force. Paragraph 7 amends section 31(1) and provides that 16 and 17 year old offenders will invariably be prosecuted in court in the first instance. This amendment brings section 31(1) into line with present practice and removes the distinction between children aged 16 and 17 who are not subject to a supervision requirement and are susceptible to prosecution in the courts without the instructions etc of the Lord Advocate, and those of that age who are subject to a requirement and can only be prosecuted if the Lord Advocate so instructs.

Power of Sheriff to dispense with hearing of evidence under Section 42 of the 1968 Act (Paragraph 8)

30. Section 42 provides that if a child or his parents do not accept a ground of referral to a children’s hearing, or if the child is too young or unable to understand a ground (or an explanation of it by the hearing), then unless the hearing decides to discharge the referral, application must be made to the Sheriff for a finding on whether the grounds are established. A Court of Session decision in 1981 was to the effect that in every such case the Sheriff is obliged to hear evidence before he can be satisfied that the grounds are established. This applies even if the grounds are not in dispute, for example if the child or parents have subsequently changed their minds and inform the Sheriff that they are now prepared to accept the grounds, or if the child’s understanding f them is not material to the case (for example where the ground of referral is parental ill-treatment of a very young child and the parents are ready to accept this). The amendments contained in paragraph 8 give the Sheriff power, if he is satisfied with the circumstances of the case, to dispense with the hearing of evidence.

Operation of Voluntary Adoption Societies as Non-Profit Making Bodies (Paragraphs 22 and 38)

31. Section 4 of the Children Act 1975, implemented on 15 February 1982, and the equivalent re-enacted provision in section 3 of the Adoption (Scotland) Act 1978 provide for the approval of voluntary adoption societies by the Secretary of State. The previous provision of the Adoption Act 1958, which was repealed with effect from 15 February 1982, required adoption societies to be registered by a local authority and included a prohibition on the registration of a body whose activities were carried on for profit. This insistence that a voluntary adoption society should not be a profit-making body was not carried through to the provisions of the 1975 Act, and the present amendments have the effect of requiring that adoption societies to be approved by the Secretary of State under section 4 of the 1975 Act or section 3 of the 1978 Act (when in force) be voluntary organisations. A voluntary organisation in these Acts is defined as "a body, other than a public or local authority, the activities of which are not carried on for profit". Circulars SWSG 12 and 14 of the 1984 Act provide guidance on adoption societies and contain a list of societies currently approved by the Secretary of State.

Amendment to Adoption and Custody Legislation including certain related cross-border provisions (Paragraph 1(b), 25, 26, 42, 43, 44 and 45

32. These provisions contain drafting and technical amendments intended to clarify some ambiguities in references to "custody" in the Adoption Act 1958, Part II of the Children Act 1975 (not yet in force) and the Adoption (Scotland) Act 1978 (not yet in force). They make clear that references to "custody" in the relevant provisions are for Scotland references to "care and possession" some consequential amendments are made to tidy up points of cross-Border application between Scotland, England and Wales in connection with adoption and custody legislation for England and Wales where references to "custody" have been translated to "actual custody" in the relevant English and Welsh legislation. Paragraphs 33, 34, 37 and 58-60 contain parallel amendments for England and Wales. Circular SWSG10/85 provides guidance on Part II of the Children Act 1975 and note the amendments made by the Children (Scotland) Act 1995 (which is not yet in force).

Revised Powers for the Secretary of State to make Regulations to establish Panels under Section 103 of the Children Act 1975 (Paragraph 28)

33. This provision makes 2 adjustments to the powers of the Secretary of State in section 103 of the 1975 Act to establish a panel of persons to act for various functions under the 1975 Act (in particular curators ad litem and reporting officers for adoption, and persons to represent the interests of a child in certain proceedings before a children’s hearing or the Sheriff). The amendment provides that in regulations:

a. the Secretary of State may establish one or more panels in Scotland for this purpose; and

b. the Secretary of State may provide for the defrayment by local authorities of expenses incurred by members of a panel and for the payment by the local authorities of fees and allowances for members of such a panel. Circulars SWSG8/84 and 11/85 provide guidance on the implementation of section 103 of the 1975 Act.

Amendment to Section 18(6) of the Adoption (Scotland) Act 1978 on Consent by a Parent or Guardian to an Order Freeing a Child for Adoption (Paragraph 40)

34. This provision clarifies an incorrect consolidation of section 14(7) of the Children Act 1975 as re-enacted in section 18(6) of the Adoption (Scotland) Act 1978. The amended provision makes it clear that before the court makes an order freeing a child for adoption it must satisfy itself that each parent or guardian who can be found has been given the opportunity of making a declaration that he prefers not be to be involved in future questions concerning the child’s adoption. Circular SWSG14/84 provides guidance on freeing orders.

Amendment to Section 24(2) of the Adoption (Scotland) Act 1978 (Paragraph 41)

35. This corrects an omission in the consolidation in the 1978 Act of section 22(5) of the Children Act 1975. The intention was that an adoption order cannot be made in cases where the adopters have made or received a prohibited payment in connection with the adoption; this is now covered by a reference to the adopters having contravened a statutory prohibition about payment.

Amendment of Section 10 of the Child Care Act 1980: Powers and Duties of Local Authorities in England and Wales with respect to children committed to their care: Application to the Adoption (Scotland) Act 1978 (Paragraph 47)

36. This deals primarily with the powers of local authorities in England and Wales with respect of children committed to their care. However, the amendment to section 10 of the Child Care Act 1980 made by this provision makes it clear, inter alia, that a local authority in England or Wales is not empowered by that section to consent or refuse to consent to the making of an order freeing a child for adoption under section 18 of the Adoption (Scotland) Act 1978 or to agree or refuse to agree to the making of an adoption order in Scotland or an order under section 49 of the Adoption (Scotland) act 1978.

PART III - THE CENTRAL COUNCIL FOR EDUCATION AND TRAINING IN SOCIAL WORK

37. Section 10 and schedule 3 provide for the reconstitution of the Central Council for Education and Training in Social Work. Section 10 outlines the powers of the Council to provide for social work training (sub-sections (3)-(5)), enables the Council to conduct examinations and research (sub-section (6)) and, subject to directions made by the Secretary of State, empowers the Council to give grants and allowances to persons undertaking social work training (sub-sections (7)-(10)). Sub-section (11) empowers the Secretary of State to make regulations to extend the social work training functions of the Council and to increase the maximum number of members of the Council. Sub-section (14) provides that the powers to give directions include power to make different provision in relation to England, Scotland, Wales. Sub-section (15) enables regulations under sub-section (11) to make different provision in relation to England, Scotland, Wales and Northern Ireland.

38. Schedule 3 contains detailed provision regarding the constitution of the Council including matters relating to membership, the Council’s Committee structure, the Council’s proceedings, appointments of staff, payments of allowances to members and other administrative details. Inter-alia, Schedule 3 provides that:

(a) The council will consist of a chairman and not more than 25 other members (Paragraph 1).

(b) If the Secretary of State so directs, the Council will appoint Committees to advise the Council on the exercise of its functions so far as they relate to Scotland, Wales and Northern Ireland (Paragraph 12); where such Committees are appointed the Council may determine that they shall also perform any functions of the Council so far as they relate to Scotland, Wales or Northern Ireland (Paragraph 13).

(c) No person shall be appointed as chairman of a Committee of the Council unless he is a member of the full Council (Paragraph 15).

PART VII - CHARGES FOR LOCAL AUTHORITY SERVICES

Charges for Local Authority Services

39. Section 17 deals with charges for local authority services in England and Wales only. Section 18 deals with the provision of services by Scottish local authorities under the Social Work (Scotland) Act 1968. It substitutes two new sub-sections, (1) and (1A), for section 87(1) of the 1968 Act. The new provisions are permissive and local authorities are not required to charge at all, if they so wish, for the services in question. There are all local authority services under the 1968 Act other than the provision of accommodation which is dealt with separately in section 87(3) and (4) of the 1968 Act as read with the appropriate sections of the National Assistance Act 1948.

40. The two new sub-sections provide that subject to the arrangements laid down elsewhere in the 1968 Act for recovery of contributions in respect of maintainable children and to the other provisions of section 87, a local authority may recover such charge (if any) as they consider reasonable for the service provided under the 1968 Act. However, if a person availing himself of such a service is able to satisfy the providing authority that he cannot afford to pay the normal charge, he will not then be required to pay more for it than the authority consider he can reasonably afford.

Contributions in Respect of Children in Care

41. Sub-Sections (6) and (7) of section 19 modify the provisions in section 78 of the 1968 Act as to persons liable to make contributions in respect of children in care and introduce, in new section 78A, new provisions for assessment by local authorities of contributions in respect of children in care.

42. section 19(6)(a) removes the previous requirement in section 78 that a maintainable child over 16 years of age had to be in remunerative employment before contributions were recoverable from him. The circumstances in which a local authority may seek to recover a contribution from a maintainable child over 16 years of age are governed by the amendments made by section 19(7) (see next paragraph). Section 19(6)(b) by inserting a new sub-section into section 78 of the 1968 Act excludes from the categories of parents liable to make contributions in respect of a maintainable child those who are in receipt of supplementary benefit of Family Income Supplement.

43. Section 19(7) inserts section 78A into the 1968 Act, which sets out the basis on which local authorities are to assess an appropriate contribution which they may seek to recover in certain circumstances in respect of children in care or under their supervision under the 1968 Act.

a. The charging provisions of section 87 of the 1968 Act do not apply to the provision of services under the 1968 Act for maintainable children.

b. Local authorities have discretion not to seek recovery of a contribution in any particular case where they consider this is to be appropriate.

c. The amount of any contribution to be recovered has to be reasonable.

d. Where a contribution is to be recovered, this can be either a standard contribution determined by the local authority in respect of all maintainable children in the care of the authority or under their supervision; or such other contribution as the authority consider reasonable in the circumstances of the case.

Power of Local Authority to limit charge for residential accommodation to minimum rates

44. Section 20 modifies the requirement of Section 22(2) of the National Assistance Act 1948, which applies to Scotland by virtue of section 87(3) of the 1968 Act as amended by sub-section (2) of this section, by enabling local authorities to limit the payment required of a person for whom accommodation is provided under the 1968 Act to the minimum weekly rate prescribed in regulations under section 22 of the 1948 Act, irrespective of that person’s means, for the first 8 weeks of any stay.

Recovery of Funds due to Local Authority where persons in residential accommodation have disposed of assets (see Circular SWSG15/93)

45. Section 21 sets out (sub-sections (1) and (3)) the circumstances in which persons, who have had assets transferred to them by someone residing, or about to reside, in Part III accommodation are liable to pay to the local authority concerned part or all of any outstanding sum assessed as due for such accommodation (sub-sections (7) and (7)). Part III accommodation is defined in sub-section (8) for Scotland as accommodation provided under the Social Work (Scotland) Act 1968. Sub-section (2) defines the assets to which the section applies while sub-sections (4) and (5) define the extent of the liability of the persons who have received such assets.

Arrears of Contributions charged on interest in land in England and Wales or secured over interest in land in Scotland (see Circular SWSG15/93)

46. Sections 22 and 23 provide that where a person has an interest in land in England, Scotland or Wales and avails himself of Part III accommodation, as defined in section 21(8), the local authority concerned may, in order to recover any unpaid sum assessed as due for that accommodation, either create a charge in their favour on that interest in land (if the interest in land is in England or Wales) or (if the interest in land is in Scotland) make and record or register in the Scottish land registry a charging order in their favour over that interest in land. The charging order is in security of the debt owed to the local authority. Only one interest in land can be affected by the land charge or charging order. Regulations will be made under section 23(5) and (6) with respect to the form of and relative machinery for, charging orders. These will be circulated before section 23 comes into effect with a more detailed commentary.

Interest on sums charged on secure over interest in land (see Circular SWSG15/93)

47. Section 24 specifies when interest will be payable on any amounts charged on or secured over interest in land arising from sections 22 or 23. The local authority concerned will set the rate of interest at a level which seems to them to be reasonable.

PART IX - SUPPLEMENTARY

Minor and Consequential Amendments: Nurseries and Child Minders Regulation act 1948

48. Section 29 and Part I of Schedule 9 effect a number of minor and consequential amendments arising from the Act. Paragraph 5 amends section 3(3) of the Nurseries and Child Minders Regulation Act 1948 to provide that local authorities may charge such fee as they consider reasonable for issuing a copy of a certificate under section 3 of the 1948 Act.

Repeals of Existing Enactments

49. Section 30(1) and Part I of Schedule 10 repeal various enactments - including

(a) the whole of the Health Visiting and Social Work (Training) Act 1962;

(b) sections 14(2), 31(2) and 59A(3) of the Social Work (Scotland) Act 1968, and certain words in sections 59A(1) and 78(1)(b);

(c) sections 109(3) and parts of section 72 of the Children Act 1975;

(d) sections 10, 27(4) and (5) and 28(8) and (9) of the Adoption (Scotland) Act 1978.

ANNEX B

ACCOMMODATION IN RESIDENTIAL ESTABLISHMENTS TO BE APPROVED AS SECURE ACCOMMODATION UNDER SECTION 60(1) OF THE SOCIAL WORK (SCOTLAND) ACT 1968 AS AMENDED

See note at paragraph 9 of the main body of circular which lists subsequent circulars that have been produced on secure care.

1. Section 58A (1) of the Social Work (Scotland) Act 1968, as inserted by Section 8(4) of the Health and Social Services and Social Security Adjudications Act 1983, provides that a child subject to a supervision requirement under the 1968 Act may not be placed or kept in secure accommodation except under the provisions of the 1968 Act; Section 58A (2) defines "secure accommodation" as accommodation provided in a residential establishment in accordance with regulations made under Section 60(1) of the 1968 Act, for the purpose of restricting the liberty of children, and of the 1968 Act, for the purpose of restricting the liberty of children, and Section 60(1) of the 1968 Act, as amended by Section 8(3) of the 1983 Act, enables the Secretary of State to make regulations for the granting of his approval for the provision and use of accommodation as secure accommodation.

2. What constitutes restriction of liberty of a child in care is ultimately a matter for the Courts. This note, however, is concerned with the nature of the provision and use of accommodation as secure accommodation, for which the Secretary of State’s approval will be required under the Secure Accommodation (Scotland) Regulations 1983. SWSG12/83 refers.

3. The Secretary of State considers that his approval will be necessary for accommodation which is to be provided and used in residential establishments for the supervision and control of children, where the supervision of control takes the form of:

(a) Locking the child up at any time in a single room, whether on his own or in the company of a responsible adult or adults;

(b) Locking the internal doors of the accommodation provided to confine the child to a particular section of the residential establishment, whether the child is on his own or in the company of a responsible adult or adults.

4. The Secretary of State considers that his approval will not be needed for accommodation which is to be provided and used in residential establishments for the supervision and control of children, where that takes the following form and is in other respects acceptable to the Fire Prevention Officer, is consistent with building regulations, and is conducive to a domestic atmosphere within the residential establishment:

(a) The locking of external doors and gates at night, consistent with normal domestic security.

(b) The locking of external doors and gates during the day time where the purpose is to prevent intruders from gaining access to the home, provided that children are not prevented from going out.

(c) The normal securing of windows.

(d) Normal control under staff or other responsible adults, provided that it is exercised in a manner consistent with good child care practice.

5. Local Authorities, voluntary organisations and others managing residential establishments are reminded that certain procedures or facilities at their establishments, which may be intended for the better running of the establishment and security of the establishment and its residents, may nonetheless have the effect of restricting the liberty of children at the establishment. Careful consideration must therefore be given as to whether procedures and facilities with respect to organisation and safety may also have a purpose of restricting liberty, and whether there is a consequent need for the Secretary of State’s approval for the accommodation as secure accommodation. Any points of difficulty arising should be discussed with SWSG.

ANNEX C

ENQUIRY POINTS FOR PARTICULAR SECTIONS OF THE ACT