We are presently in the middle of Kinship Care Week in Scotland. The purpose of this campaign is to raise awareness of "forgotten families" and the work that kinship carers do for children that they look after.

Kinship care involves a child being looked after by an extended family member or close friend if he or she is unable to remain in the care of his or her birth parents.

The term "kinship carer" is defined in the Looked After Children (Scotland) Regulations 2009 as "a person who is related to the child (through blood, marriage or civil partnership) or a person with whom the child has a pre-existing relationship." It is far from a new phenomenon and includes children who have been placed with a kinship carer by virtue of intervention by the local authority/children's hearing system/court and those who are living with kinship carers as a consequence of a private family arrangement.

In terms of children placed with kinship carers in situations other than through private arrangement, this can include a placement by virtue of a voluntary care arrangement in terms of Section 25 of the Children (Scotland) Act 1995, temporarily through a Child Protection Order in terms of Section 37 of the Children's Hearing (Scotland) Act 2011, through a Compulsory Supervision Order in terms of Section 83 of the Children's Hearing (Scotland) Act 2011, or by court order such a residence order in terms of Section 11 of the Children (Scotland) Act 1995 or permanence order in terms of Section 80 of the Adoption and Children (Scotland) Act 2007.

Statistics, though varying, have generally shown an upward trend in the number of children being looked after by relatives or family friends. Numerous research studies have highlighted the benefits of kinship care for children as an alternative care arrangement where a child cannot remain living with his or her birth parents. Some research even indicates that outcomes for children who remain with extended family are consistently better than those looked after by those outwith their family, in foster care or in residential care. Emphasis is placed on the stability of kinship care placements, which are less likely to break down than other placements.

In 2007, the Scottish Government and the Convention of Scottish Local Authorities (COSLA) enshrined into policy a commitment to kinship care in their joint strategy "Getting it Right for Children in Kinship and Foster Care." The ethos of this policy is that kinship care ought to be considered first and foremost when children cannot continue to live with their parents, unless there are substantive reasons to indicate that this would not be suitable.

It is important that kinship carers have support from the local authority and access to legal advice to make decisions that are best for the child or children in their care. For the majority of kinship carers, birth parents will retain parental rights and responsibilities in relation to the child. If it becomes clear that rehabilitation of a child or children to the care of their parents is ruled out for the long-term future of that child, consideration of the legal routes to secure the child's residence with kinship carers is considered. In cases involving looked after children, this is dealt with in the Child's Plan prepared by the local authority social work department.

In many cases, kinship carers are advised to pursue orders in terms of Section 11 of the Children (Scotland) Act 1995 for parental rights and responsibilities and a residence order regulating the child's placement with their kinship carer. There are many advantages to kinship carers in pursuing such orders, including having certainty, having the ability to contribute to making important decisions in respect of the child in their care and being able to offer the child stability and reassurance on their future residence and care arrangements.

Brodies LLP has seen an increasing number of instructions in such cases, having fostered good links with kinship carers and support groups. We have a team of solicitors with considerable experience of child law matters. In many cases, local authorities will fund the cost of pursuing such actions. If you are a kinship carer looking for advice on considering options to secure the future of a child in your care, please get in touch.


Garry Sturrock

Senior Associate