SUFS’ campaign to change the law on siblings
When SUFS launched as a partnership in 2018, we resolved to work together to improve and change legislation, policy and practice. We hoped that by pooling our expertise and experience and speaking out together, we could collectively have a bigger impact than each of us individually could and thereby contribute to lasting change for care experienced brothers and sisters in Scotland.
One of the reasons so many brothers and sisters have lost touch in care is that, whereas in Scots law local authorities have had a legal duty to promote contact between children in their care and their parents, the law has not – until now – contained similar legal duties in relation to brothers and sisters who are separated when one or more of them are looked after by the local authority. This has meant sibling relationships have regularly been overlooked and their value to children not respected. Separating brothers and sisters when they enter care is commonplace and they have not been adequately supported to stay close and spend time together.
We knew that if sibling rights were better protected in legislation, public authorities would be forced by law to change their practices as well as, importantly, the resources they allocated to supporting children’s sibling relationships.
SUFS was delighted when in August 2020 the Scottish Parliament passed the Children (Scotland) Act 2020, which makes significant amendments to the law to help care experienced brothers and sisters stay in each other’s lives.
Over the last 3 years we have worked hard to influence the changes to the law by:
Raising awareness of the experience of children and young people, and care experienced adults, to demonstrate why the current situation simply has to change. We did this through the SUFS website and events, training for frontline professionals working with children nationwide, media coverage (press, radio and tv), social media and speaking to politicians, civil servants and the Independent Care Review. SUFS received early and firm support from First Minister Nicola Sturgeon, Minister for Children and Young People Maree Todd and Commissioner for Children and Young People Bruce Adamson, and we worked closely with the Independent Care Review whose final recommendations in February 2020 highlighted the importance of sibling relationships as a key theme.
Writing a joint SUFS response
Writing a joint SUFS response when in 2018 the Scottish Government consulted the public on its plans to update the Children (Scotland) Act 1995 and create a Family Justice Modernisation Strategy, which included plans to make the changes relating to siblings.
Submitting joint written evidence
Submitting joint written evidence in 2019 on the Children (Scotland) Bill to the Scottish Parliament Justice Committee, the committee charged with scrutinising the details of the proposed changes to the law. A number of SUFS members gave evidence at committee meetings which discussed the proposals in detail. Who Cares? Scotland member Oisin King, who gave evidence alongside their Chief Executive Duncan Dunlop, had a huge impact on the parliamentary debate when he shared his experience of being separated from his baby sister in care and the emotional toll of the very restricted contact they had which took place in an unnatural, supervised setting. Read more here.
Pushing for amendments
Pushing for amendments to the text of the draft law, which we believed would increase its impact in practice. We closely followed the debates in Parliament and sent supplementary evidence in February, a Briefing at stage 2 in June and a Briefing at stage 3 in August to make the case for stronger provisions, which MSPs agreed with and put into the final Act.
Huge credit for the changes we are seeing goes to the young people who shared their experience of separation from brothers and sisters publicly, including Osin, Chloe and Danielle, Theighan and Sophia, Dionne, Helen and Amy, and in doing so brought so many people on board who are in a position to make change happen. Instrumental too have been the examples of good practice SUFS partners have shared, showcasing the positive work they and others are doing to support siblings in the care system, and demonstrating that much more can and must be done for all children in care in Scotland. Stand Up for Siblings winning an award for the partnership in The Herald Society Awards in November 2019 also helped raise the profile of the issue. So too did court cases in the highest courts in Scotland about the State’s obligation to protect children’s right to family life with their siblings.
A major development was and will continue to be the great emphasis placed on supporting sibling relationships in The Promise, the recommendations of the Independent Care Review published in February 2020. The Promise provides the blueprint for fundamental change for years to come and SUFS was delighted to have had the opportunity to feed into the Review’s work on brothers and sisters.
What does the new law say?
The new legislation puts detail into Scots law about sibling rights. Although already protected as part of the right everyone has to family life in Article 8 of the European Convention on Human Rights and Article 16 of the United Nations Convention on the Rights of the Child, the new detailed legislation will make it much easier to ensure siblings are supported to stay in each other’s lives.
The law takes a broad view of who is a sibling and includes relationships where children have lived together and see themselves as brother and sisters. This was one of the points we pushed hard for in recognition of the range of relationships care experienced children may have with the character of a sibling relationship.
When the Children (Scotland) Act 2020 comes into force from 26 July 2021:
- Local authorities will have a legal duty to support care experienced brothers and sisters’ relationships where they aren’t able to live together. This should have been happening under regulations and guidance before, but the Bill has much stronger legal duties. Now authorities will have a duty to a child looked after by them to take such steps to promote, on a regular basis, personal relations and direct contact between the child and their siblings, as appear appropriate having regard to their duty to safeguard and promote the child’s welfare.
- When taking decisions about a child in their care, a local authority will have to ask the child’s brothers and sisters for their views on what should happen.
- Children’s Hearings and sheriffs will, when making, changing or continuing compulsory supervision orders, have a duty to consider contact with siblings who children are not living with.
- Children’s Hearings will have to give brothers and sisters the chance to take part in a Hearing that is making decisions that will affect contact between them and their brother/sister. Siblings will have the right to be notified of a Hearing, to be provided with paperwork that is relevant to them, to be able to attend the Hearing, to be represented at the Hearing and to seek review of decisions after 3 months. New Rules set out the criteria for who can take part and how (see The Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Amendment Rules 2021).
- Local authorities will have a legal duty to place siblings, where appropriate, with the same carer or in the same residential establishment, or in homes which are near to each other (see The Looked After Children (Scotland) Amendment Regulations 2021)These new regulations also refine the foster placement limit.
- When courts are making decisions about children in family law disputes (usually decisions about children who are not in the care system), like where children are going to live and who they have contact with when parents split up, the court must take account of children’s important relationships, like those with their brothers and sisters and grandparents. The Act also makes it crystal clear that siblings, including children under 16, can seek from a court order on sibling contact.
Implementation of the legislation in practice will be key to transforming lives
Now that the new attention turns to making sure the changes happen soon in practice, and The Promise is realised in full.
In these most difficult of times, children need their close relationships and support more than ever and they must never lose out on that as an unintended consequence of stretched resources.
SUFS partners will continue to push for change and support the work to make the changes in the new law a reality as soon as possible.