Relevant legislation

The policy and legislative landscape in Scotland for children’s care and protection is complex – it includes the Children’s Hearings System, local authorities, health boards, the police, and the voluntary sector.

Two acts form the basis for children’s residential care in Scotland. The Children (Scotland) Act 1995 is the legislative framework for children’s services, with an emphasis on the care, wellbeing, and welfare of children in Scotland and requires decisions on where a child should live to be taken by the Children’s Hearings System; and the Children and Young People(Scotland) Act 2014, strengthened children’s rights by introducing Corporate Parents, the name given to a person or organisation who has responsibilities for children in care.

The decision for any child or young person to be cared for in residential child care must be agreed through a Children’s Hearing, unless in an emergency.

Other important legislation includes the UNCRC (Incorporation) (Scotland) Act 2024, which gained Royal Assent in January 2024, and provides important protection for the human rights of children and young people in Scotland. This makes it unlawful for public authorities, including the Scottish Government, to act incompatibly with the requirements of the United Nations Convention on the Rights of the Child (UNCRC). The Children (Care and Justice) (Scotland) Act 2024 makes changes to the law relating to the care of children and the involvement of children in the criminal justice system.

In Scotland, young people have the legal right to remain where they are living while in care until the age of 21, if it is the right thing for them and this is what they want to do. This is called ‘Continuing Care’ and is enshrined in the Children and Young People (Scotland) Act 2014.