3. Legal Requirements
The Children (Scotland) Act 1995 outlines the duties and powers to provide aftercare support for young people who are looked after by local authorities (including looked after in the community). There is a duty for providing on-going aftercare, until at least a young person's 19th birthday, and the power to continue to provide support until 21 if their welfare requires it. New Regulations and Guidance published in 2004, extended responsibilities for supporting young people leaving care to include a new duty to assess a young person's aftercare needs and to establish clear plans for aftercare support. 16
If a young person is looked after and accommodated on their 16 th birthday, they are entitled to aftercare, which may include financial support and advice and assistance until they reach the age of 21. 17
The Children (Scotland) Act 1995 centres on the needs of children and their families. It sets out the duties and powers available to public authorities to support children. The following Sections relate to throughcare and aftercare duties:
- under Section 17 the local authority has a duty to provide advice and assistance with a view to preparing a child for when he or she is no longer looked after by a local authority;
- Section 21 sets out details of co-operation between authorities and other bodies;
- Section 29 of the Act sets out the main local authority responsibilities to young people who leave care after school age;
- under Section 29(1) there is a duty to advise, guide and assist those under 19 unless the local authority is satisfied that the young person's welfare does not require it;
- under Section 29(2) there is a power to provide advice, guidance and assistance to young people between 19 and 21 who apply to the local authority, unless the authority is satisfied that the young person's welfare does not require it; and
- Section 29(3) states that assistance may include assistance in kind or in cash. 18
Due to care and protection needs, supervision requirements should not be terminated just by the fact of a young person appearing or being sentenced at court. Remaining on a supervision requirement allows for the young person's care needs to continue to be met, family work to continue and support to achieve reintegration.
If a young person who is subject to a supervision requirement through the Children's Hearing system is sentenced to a custodial sentence, either to a Young Offenders Institution or to secure care, an emergency 72 hour Looked After Review should be held; as outlined in Looked After Children's (Scotland) regulations and Guidance 38(2) and 41(2). This young person is likely to have either a named person or lead professional. Communication between the named person and the custodial setting should not cease but work in tandem for release and re-integration.
If sentenced to secure care or custody, the young person should be aware of their entitlements upon release. The community based social worker should be involved in the planning for the young person (in line with GIRFEC) as soon as a sentence is given to ensure the young person's needs and risks are addressed and to improve transitions and reintegration. Post release meetings, coordinated by the named person/lead professional, should also be attended and work undertaken with the family, where appropriate, prior to the young person's release.
In Scotland, local authorities have a statutory responsibility to provide throughcare services to individuals sentenced to prison terms of over 4 years and for those sentenced to Supervised Release Orders and Extended Sentences. Local authorities also have statutory responsibility to offer voluntary aftercare to other prisoners in the first 12 months of their release from prison 19 . The Scottish Government published National Outcomes and Standards for Social Work Services in the Criminal Justice System in 2010 20 , which outline the responsibilities for local authority social work departments in respect of these services.
The Criminal Justice and Licensing Act 2010 has also introduced supervision for young people, as defined in the Children (Scotland) Act 1995 to a period of supervision if sentenced to custody, and young people under 18 have a supervision element attached to any Community Payback Order made.