Children (Scotland) Act 1995 and 2014: The Two Laws Behind Kinship Care Orders

Two Acts of the Scottish Parliament underpin everything about kinship care orders in Scotland. When a social worker mentions "Section 11" or a council letter references "Part 13 eligibility," they are pointing at specific sections of these two laws. Understanding what each one does — and how they connect — makes the rest of the process far less opaque.

The Children (Scotland) Act 1995: Your Route to Legal Rights

The 1995 Act is the foundation. It defines parental responsibilities and rights (PRRs) in Scots law and creates the mechanism for a court to transfer or share those rights.

Section 1 sets out parental responsibilities: safeguarding the child's health, development, and welfare; providing direction and guidance appropriate to the child's stage of development; maintaining personal relations and direct contact if not living with the child; and acting as the child's legal representative.

Section 2 defines the corresponding parental rights: having the child live with you (or regulating where they live), controlling, directing, or guiding the child's upbringing, and maintaining personal relations and contact.

Section 11 is the critical provision. It empowers the Sheriff Court (or Court of Session) to make orders about PRRs — granting them, removing them, or varying them. When a relative applies for a residence order under Section 11, they are asking the court to grant them the Section 2(1)(a) right to have the child live with them, along with whatever other PRRs the sheriff considers appropriate.

Who Can Apply

Section 11(3)(a)(i) is broad: any person claiming an interest in the child's welfare can apply. That includes grandparents, aunts, uncles, adult siblings, and close family friends. Unlike England and Wales, there is no preliminary "leave" application — you establish your standing directly in the Initial Writ by setting out your relationship to the child and your role in their care.

The Welfare Principle

Section 11(7) establishes two rules that govern every decision:

1. The welfare of the child is the paramount consideration — the sheriff's primary question is always what is best for this child
2. The no-order principle — the court will not make an order unless doing so is better for the child than making no order at all

These principles mean the court is not choosing between you and the birth parents as though it were a contest. It is evaluating whether formalising the child's placement with you serves the child's interests better than leaving things as they are.

The Children and Young People (Scotland) Act 2014: Your Route to Financial Support

The 2014 Act came nearly twenty years after the 1995 Act and addressed a gap that had left thousands of kinship carers struggling: there was a court order, but no statutory framework for financial support.

Part 13 of the 2014 Act created the concept of a Kinship Care Order — not as a new type of court order, but as a statutory label. Section 72(1) defines a Kinship Care Order to include a Section 11 order giving a qualifying person the right to have the child live with them, a residence order having that effect, or a Section 11 order appointing them as the child's guardian.

In other words, the court still grants a Section 11 order. But when that order meets the Part 13 definition, it triggers local authority duties to provide kinship care assistance.

What Part 13 Requires

Section 71 places duties on local authorities to make kinship care assistance available to qualifying carers. This includes:

• Financial support (the kinship care allowance, paid at the Scottish Recommended Allowance rate)
• Advice and guidance on legal proceedings
• Help with the costs of court applications
• Support services for the carer and child

The catch is the "eligible child" test under Section 71(5). The local authority must assess whether the child was:

1. At risk of becoming looked after (the local authority considers the child to be at risk of becoming looked after), or
2. Previously looked after by a local authority before the Kinship Care Order

If neither applies, the council may classify you as a non-supported kinship carer, and the Part 13 financial duties do not engage.

Qualifying Person

Section 72(2) defines who counts as a qualifying person: someone related to the child (including by marriage, civil partnership, or half-blood), a friend or acquaintance of a relative, or someone with another connection as Scottish Ministers may specify. Birth parents are explicitly excluded under Section 72(3).

How the Two Acts Work Together

The 1995 Act gives you legal rights through the court. The 2014 Act gives you financial support through the council. They run on parallel tracks:

A common mistake is assuming that one process handles both. It does not. You need to apply to the court and to the council, usually at the same time. The court will not assess your financial needs, and the council cannot grant you legal rights.

Recent Reforms

The Children (Scotland) Act 2020 updated some procedural aspects of the 1995 Act framework, particularly around children's participation in court proceedings. The historic presumption that only children aged 12 or over were mature enough to express views has been removed — sheriffs now presume every child can form and express a view unless shown otherwise.

The Kinship Care Assistance (Scotland) Order 2016 filled in the operational detail of Part 13, specifying exactly how local authorities must assess eligibility and what forms of assistance they must consider.

The Kinship Care Orders in Scotland guide covers both Acts in practical detail — the court process under the 1995 Act, the council assessment under the 2014 Act, and how to run both applications at the same time so you are not waiting years for support you could access in months.

The law is more straightforward than it looks. One Act for rights, one Act for support, and a clear path through both.

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