Clan Childlaw's Legal Policy Manager Katy Nisbet writes about the importance of the right to Continuing Care and considers Clan Childlaw's role in helping children to access their rights.

Clan Childlaw is Scotland’s law centre for children and young people.  We exist to protect and strengthen children’s rights and improve their lives.  While Clan’s doors are open to all children and young people facing challenges, most of our cases involve care experienced children and young people.  It is clear from these cases that the system designed to help children and young people when they need protection and support is severely under pressure, and as a consequence it often fails to take care of those most in need.

The Right to Continuing Care

All local authorities in Scotland have a duty to provide ‘Continuing Care’ to young people who are looked after and accommodated when they turn 16.  This means that all children who are in foster, kinship, or residential care at age 16 should be able to stay put in their current care placement until they turn 21. There are some exceptions to this, including when a child is in secure accommodation when they turn 16, or when a kinship or foster carer is no longer able to look after them. Otherwise, the only reason for a local authority not to support a child to stay on in Continuing Care is where there is evidence that staying in the placement will have a serious adverse impact on their welfare.

Implementation Gaps

The right to Continuing Care is hugely important. The transition to adulthood is an incredibly challenging time for care experienced young people. An ordered, slow, supportive approach which allows children to stay on in care settings and maintain relationships with carers is recognised as the best approach to this transition.  Unfortunately, failure to implement the right to Continuing Care is one area where we often see rights breaches and we regularly work with young people who have not been able to access their right to Continuing Care.  And a recent CELCIS report published in March also highlights this as an issue. 

The CELCIS Report on Continuing Care

The CELCIS report Continuing Care: An Exploration of Implementation echoes Clan’s observations, and our client’s real lived experiences. The report concludes that, despite individual good practice examples, there remains considerable variation and inconsistency in understanding, interpretation, and implementation of Continuing Care duties. This is particularly interesting as the research canvassed views of people working in local authorities responsible for putting these rights into practice.

At Clan Childlaw, we frequently work with children who have been ruled out of Continuing Care because the carer is unable to continue to provide a placement. Although this is a valid exception under the law, the CELCIS report acknowledges this is an area of concern.  The report found that the use of this exception – particularly by residential care homes where funding for placements will be reduced for young people in Continuing Care – focuses decision-making on resources and capacity, and away from the individual needs of the young person.  This focus on capacity and resources needs to be addressed if Scotland is ever going to achieve universal and consistent Continuing Care.

As well as highlighting the areas in which local authorities are failing to implement their Continuing Care duties, the CELCIS report spotlights practice that is working.  Where Continuing Care is working well, it is treated as the default. This in turn enables advance planning and budgeting within local authorities to continue supporting young people after they turn 16. Successful services showed an ethos of nurturing, person-centred care. They made it very clear that Continuing Care should not be configured in response to finances, but instead tailored to young people’s needs.  The report found that to ensure good practice happens across Scotland there needs to be clarity around the legislation, guidance, and practice.

What is Clan Childlaw doing to help?

At Clan we learn from our casework. We offer help and advice to children and young people all over Scotland, so we can see patterns with the type of problems that young people have in different local authority areas. We recognize that there are huge regional variations in the provision of Continuing Care and adopt a local approach in every case we have.  We know what policies are in place in different areas and understand the different levels of knowledge of these rights and duties within social work and legal departments across the country.   

We believe that children and young people must not pay the price for local authorities’ problems with resources for Continuing Care.  And while Clan has no remit in relation to resourcing of local authorities, we are doing what we can to address this problem:

  • Where a child or young person is not provided with Continuing Care, working with a lawyer from Clan Childlaw empowers them to challenge decisions that do not take account of their needs. We can help to reduce the risk of homelessness or uncertainty as they transition into adulthood.

  • Our free helpline provides information and guidance on the legal duty to provide Continuing Care. We enable carers, advocacy and key workers to support children and young people to stand up for their rights when they are concerned that their needs are coming second.

  • Many of the recommendations from the CELCIS report could be put into everyday practice if there was a better understanding of the duties. We offer training on Continuing Care so that adults who support young people in their transition to adulthood can give young people reliable, independent information about their rights.

By using the law and taking a child centred approach, we enable children and young people to stay in positive care settings where that is appropriate and to move on with support where that is not.  We work all over Scotland, so if you need help or know a child or young person that does, please contact us.

Find out more

You can find out more about the challenges and successes of implementing Continuing Care in the CELCIS report.

Continuing Care: An Exploration of Implementation 

Clan Childlaw offers regular lawyer-led training about children's rights and the law in Scotland. This training is an important part of our mission to protect and strengthen children’s rights and make their lives better. If you would like to request training on a particular topic, including Continuing Care, please get in touch on [email protected]

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