January 2025
Q1. Do you agree or disagree that there is a need for a universal definition to describe ‘care experience’?
c) Neither agree nor disagree
At this stage it is unclear to us whether a universal definition of ‘care experience’ would provide direct benefit to children and young people. While we are supportive of calls for the use of less stigmatising language and the provision of clarity, we note that the terms of the consultation paper do not propose what the Government would envisage the definition of care experience to be. As such it is difficult to give a human rights analysis of the proposals.
Until we see a definition and understand its intended impact through legislation, we are unable to fully understand the impact or provide advice.
While we recognise that there was a recommendation within the Promise to create a universal definition of ‘care experience’, we are concerned about the potential for unintended consequences of introducing a legal definition. This is a term which currently has different meanings depending on the context in which it is used. The criteria for receiving a SAAS bursary is different from that to receive throughcare/ after care services and both of these are different to the assessment for provision of Universal credit.
It is unclear whether the intention of this policy change is that provision of all benefits/ services be brought in line with each other.
We note that there are some consequences to be considered about the effect this could have on the wider rights of all children. Broadening access entitlements of one group must not inadvertently narrow those for another or detrimentally exclude some care experienced children and young people if a narrow definition is taken. A Children’s Rights Impact Assessment should be undertaken and enable any mitigations to be considered.
Any change to the existing provisions should be to make things clearer for care experienced children and young people and help them access their rights more easily. Any change should not be at the expense of care experienced children and young people being able to understand their rights and entitlements. Caution should be taken to be clear what impact any change of definition would have on those.
Being care experienced isn’t necessarily a straightforward status, there is an element of choice in whether you consider yourself to come within it. Establishing it as a legal definition could take away some of this choice for individuals.
There is potential that it could cause confusion for young people by creating false expectations. If a person was legally defined as ‘care experienced’ they still might not be entitled to all the same benefits. For example, while they might be entitled to the bursary, they might not be entitled to throughcare and aftercare.
This contrasts to the term ‘looked after’ which has a specific and important legal definition within the 1995 Act and signals that there is state intervention in the child’s life and corporate parenting responsibilities. This is distinct and it is important to preserve the status of ‘looked after’.
At present, access to benefits and entitlements are judged differently. This opens a bigger debate about how we ensure that children and young people receive the right type of support at the right time in their lives. This is an evaluation which needs to take place and would not be resolved by a definition of ‘care experienced’ alone.
We urge Scottish Government to address an outstanding issue relating to s29 of the Children (Scotland) Act 1995. This defines that a child can be entitled to aftercare services on leaving care at the age of 16 if they were ‘looked after’ by the local authority. This means that a child could have been subject to an order from birth to age 15 and 11 months but if they were removed from the order before their 16th birthday, they would not be entitled under this provision to aftercare services.
This is an issue which needs to be explicitly resolved, simply establishing a universal definition of ‘care experience’ may not resolve this. We believe there needs to be a widening of provision of aftercare services, to ensure that a young person will receive these services based on their needs.
We agree with the consultation paper that –
‘There are many different reasons as to why children and young people may come into contact with the care system, but they will all require support that recognises their experiences, and to help them to thrive into the future’
Q2. What are your views on the potential advantages of developing a universal definition of ‘care experience’?
We have outlined this in response to Question 1.
Q3. What are your views on the potential disadvantages of developing a universal definition of ‘care experience’?
We have outlined this in response to Question 1.
Q4. Do you have any views on the definition of ‘Care Leaver’ as set out above?
Q5. Do you have any views on the statutory definition of ‘Looked After’ as set out above?
This is a legal definition which has been in place for some time and has an established position within our legal system. In-depth analysis of the potential impact of changing this would be required.
Q6. What experience of care would you expect to be covered by any definition of “care experience”?
• Looked After at Home
• Kinship Care (looked after children who have been placed with kinship carers by the local authority)
• Kinship Care (non-looked after children who live with a kinship carer, these children may be subject to an order under Section 11 of the Children (Scotland) Act 1995 or may be living in a completely private arrangement with extended family, with no local authority involvement )
• Foster Care
• Residential Care
• Residential Special School
• Supported Accommodation
• Secure Care
• Adoption
• Other – please provide details
We would have some concerns about how children and young people might be expected to evidence their status, for example if they had been in kinship care – what must they provide to show this and would this create a barrier for some?
As outlined above, we are keen to see further work aimed at understanding the particular needs of different care experienced children and young people to ensure they receive the right support at the right time.
Q7. Do you have any other comments about a proposed universal definition of ‘care experience’?
We look forward to seeing the full proposed recommendations alongside a CRIA.
Q8. Do you have any comments on the existing language of care?
We broadly support proposals to modernise language, particularly when children and young people are involved in formal processes like Children’s Hearings. We note that clarity and simplicity are not necessarily the same thing; over-simplification risks losing the legal clarity necessary to justify intervention. It is important that children and young people are able to understand their situation and the processes that are going on around them, this includes the reasons they have been referred to the Reporter, and to a Hearing. This is important for allowing children and young people to meaningfully participate in decisions, in line with UNCRC Article 12.