Information for Professionals

What you need to know about sibling separation and contact, the law and good practice.

This section of our website is aimed at professionals working with children, young people and families. It will grow over time and if you think information is missing, then please get in touch.

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Human Rights - Family Life

In terms of the Human Rights Act of 1998, public authorities (including local authorities, courts and children’s hearings) have a duty to act compatibly with certain rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).

Those rights include the right to respect for “family life” specified in Article 8 of ECHR. The existence of “family life” depends on “the real existence in practice of close personal ties” and includes a sibling relationship.

Article 16 of the UNCRC (United Nations Convention on the Rights of the Child) states that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence.”

The United Nations Committee on the Rights of the Child’s 2016 Concluding observations on the UK expressed its concern about:

“Children placed at a distance from their biological families which prevents them from keeping in contact, and siblings being separated from each other without proper reason;

… The Committee recommends that the State party: …(c) Wherever possible find a placement for the child which will facilitate contact with his or her biological parents and siblings;” (paragraphs 51 and 52)

Law & guidance on the placement of siblings

The United Nations has issued Guidelines for the Alternative Care of Children including in Guideline 17: “Siblings with existing bonds should in principle not be separated by placements in alternative care unless there is a clear risk of abuse or other justification in the best interests of the child. In any case, every effort should be made to enable siblings to maintain contact with each other, unless this is against their wishes or interests.”

Guidance has been developed to assist with implementation of the Guidelines:  “As a general rule, siblings should not be separated from each other in care placements unless there are compelling reasons for doing so. These reasons must always be in the best interests of any of the children concerned.  While this may seem an obvious policy directive, the number of documented cases where siblings are separated without regard to their best interests made it necessary to stipulate it as a general principle of the Guidelines.”

National policy should: “Provide suitable guidance on the importance of keeping siblings together” and “Require planning and placement processes to take into account the need to place a child with his/her siblings unless this is not in the best interests of the child” (Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children’, CELCIS 2012, p. 38, 71, 74).

Duty to safeguard and promote the welfare of looked after children

Local authorities have a duty to safeguard and promote the welfare of a child looked after by them (Section 17(1) Children (Scotland) Act 1995).  In terms of the Children and Young People (Scotland) Act 2014, sections 95 and 96, the local authority must exercise that duty in a way which is designed to safeguard, support and promote their wellbeing, under reference to the SHANARRI indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included.

Duty to assess

Regulation 4(5) of the Looked After Children (Scotland) Regulations 2009 states:

“(5) Where [the local authority are considering placing a child with a kinship carer, or a foster carer, or in a residential establishment]; and … any other child in the same family is looked after or about to be looked after, the local authority must, in making their assessment take into account the need to ensure, where practical and appropriate, that those children are placed with the same carer or in the same residential establishment or in homes as near together as is appropriate or practicable.”

The Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007 adds:

“…local authorities should try to ensure that siblings (children in the same family) are placed together, except where this would not be in one or more of the children’s best interests. Where this proves impossible, they should, wherever possible, be placed near each other. The views of each child should be ascertained, as far as is possible given their age and understanding. The regulation uses the term “any other child in the same family” rather than sibling. This highlights the need for awareness of the child‟s view of „siblings‟.

Many families have complex structures with full, half and step siblings and research has shown that children’s perception of brothers and sisters and who is in their family is rooted as much in their living experience as biological connectedness. In initial planning for children, especially when they face a separation from their parents, the emphasis should be on maintaining as much as possible of familiar and comforting relationships. Longer term planning needs to be based on a fuller assessment of the nature and quality of different sibling relationships.

This provision has implications for agencies’ policies on the recruitment, payment and housing of foster carers, and on the maintenance of reasonable vacancy levels in foster and residential care, so that placements able to accommodate sibling groups are not filled up with single children. …

Where siblings are placed separately, reunification should be considered at the first and all subsequent reviews, particularly where separation was dictated by a shortfall of placements. In a small number of situations, the relationship between siblings may be inappropriate or dangerous. …” (p.43)

Law & guidance on sibling contact

“Where siblings are separated, [national policy should] facilitate contact so that meaningful links can be maintained.” (Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children’, CELCIS 2012, p. 95).

Duty to looked after children  

Local authorities have a duty to safeguard and promote the welfare of a child looked after by them (Section 17(1) Children (Scotland) Act 1995).  In terms of the Children and Young People (Scotland) Act 2014, sections 95 and 96, the local authority must exercise that duty in a way which is designed to safeguard, support and promote their wellbeing, under reference to the SHANARRI indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included.

Section 17(1)(c) of the Children (Scotland) Act 1995 directs the local authority to “take such steps to promote … personal relations and direct contact between the child and any person with parental responsibilities …”. There is no equivalent duty in relation to sibling contact.  The issue of sibling contact is sometimes overlooked in assessment, care planning and preparation of reports.

Duty to assess

The local authority is under a duty to assess the child’s need for contact with family members where the local authority are considering placing a child away from the birth parents, with kinship carers, foster carers or in a residential unit (Regulation 4(3) & (4) Looked After Children (Scotland) Regulations 2009).

The Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007 specifies:
“Contact should include not only parental but also sibling contact.” (p.41)
“Where it is not in children’s best interests for them to be placed together, or this has proved unachievable, then it may be appropriate for frequent contact to be maintained. This should be recognised in its own right and not purely as part of contact with parents.” (p. 43).

Children’s Hearings (Scotland) Act 2011

A children’s hearing or court, when making, varying or continuing a CSO (Compulsory Supervision Order) or ICSO (Interim CSO), must consider contact between the child and a specified person or class of person, who could be a sibling (Children’s Hearing (Scotland) Act 2011 s29A). In certain circumstances, a sibling may be deemed a relevant person in respect of another sibling, but rarely will a sibling meet the strict legal test.

Views of the Child in Decision-Making

When making decisions about a looked after child, the local authority has a duty to ascertain the views of the child, his parents (or anyone else with parental rights) and any other person whose views the local authority consider to be relevant to the matter to be decided (Section 17(3) Children (Scotland) Act 1995). “Any other person” could include a sibling. The local authority must have regard to those views, so far as practicable (Section 17(4) Children (Scotland) Act 1995).  If the looked after child concerned wishes to express his views, the local authority must take account of his age and maturity in assessing the weight to be accorded to those views.

Similarly, “A Children’s Hearing, pre-hearing panel or the sheriff…must, so far as practicable and taking account of the age and maturity of the child- (a) give the child an opportunity to indicate whether the child wishes to express the child’s views; (b) if the child wishes to do so, give the child an opportunity to express them; and (c) have regard to any views expressed by the child” (Section 27(3) Children’s Hearings (Scotland) Act 2011). A child aged 12 or over shall be presumed to be of sufficient age and maturity to form a view (Section 27(4) Children’s Hearings (Scotland) Act 2011).

Promoting sibling relationships

Anyone making an assessment, recommendation or decision about a sibling relationship, should consider the following:

1. The expressed opinions and views of children about their sibling relationships and their satisfaction with contact.
2. Identification of sibling relationships as characterised by the child.
3. The ability and willingness of carers to facilitate agreed sibling contact.
4. The facilitation of face-to-face sibling contact where possible.
5. Frequent contact in a relaxed, natural setting, involving activities and avoiding office-based contact.

It should be remembered that there will be some situations in which an assessment will lead to a conclusion that sibling contact will not safeguard and promote the welfare of a child looked after by them.  Where that is the case, any assessment and report should set out the concerns identified in relation to sibling contact.

(Extract from Clan Childlaw, ‘Promoting Sibling Contact for Looked After Children’ p.8)

 

Research on supporting sibling relationships

read the research

Promoting sibling relationships

A small number of third sector agencies specialise in supporting sibling relationships.

find out more

The information contained in this website should not be used as a substitute for the individual advice and assistance of a solicitor. If you have a legal problem or legal question you should contact a solicitor about it.

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It’s all about sibling separation, contact and what it means for you!

© 2018 Stand Up For Siblings

 

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