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Legislation for England, Wales, Scotland and Northern Ireland
Legislation for fostering varies across the UK and it is important that you know what applies to the country in which you live. Listed below is the relevant legislation, regulations and guidance for each of the 4 UK countries.
1.Legislation for England
The Law and Fostering
Most of the law relating to the safeguarding and promoting the welfare of children is contained within the Children Act 1989, Guidance and Regulations Volume 4 Fostering Services, the Care Standards Act 2000, the Adoption and Children Act 2002 and the Children Act 2004.
Children Act 1989: care planning, placement and case review
On Monday 06 July, the Department for Education published an updated and revised version of the Children Act 1989 guidance and regulations volume 2: care planning, placements and case review, setting out what you must do to comply with the law.
You can access this document here
This statutory guidance applies to LAs, children’s services directors, social workers, front-line managers and service commissioners for looked-after children; and is also relevant to Children’s Trust partner agencies and looked-after children service providers, including private, voluntary and public sector providers and foster carers. The document consolidates a number of separate documents previously published, including ‘Delegation of authority to foster carers’.
There are regulations contained within the Fostering Services Regulations 2011 and associated National Minimum Standards that provide a clear framework for Fostering Service Providers, Foster Carers and associated staff.
The legal framework is complex and you are not expected to know all of it! It is important, however, that Foster Carers understand the general principles contained in the legislation, the implications of any court orders that apply to children and young people that are in foster care, and the expectations placed upon Foster Carers under the law.
There are lots of new words that you will hear if or when you start fostering. We have set out the basics here. And if you want to find out more about the legal framework there are plenty of books and websites available.
The Children Act 1989 – General Principles
The Children Act 1989 is the main piece of legislation governing work with children and their families.
The key principles of the Act can be summarised as follows:
The Welfare Principle – safeguarding and promoting the welfare of children, including protecting the child from harm or abuse. The child’s welfare should be the ‘paramount’ consideration of anybody dealing with a child.
Partnership – it is expected that all professionals supporting and working on behalf of children and young people should work in partnership with families. This includes Foster Carers. Compulsory powers should only be used when this is better for the child than working with the family on a voluntary basis. Promoting and maintaining contact between children and their families should be a priority wherever possible.
The importance of the child’s family is highlighted and the expectation is that, whenever possible, children and young people should be brought up in their own immediate or extended families.
The wishes of the child and/or their parents – finding out and taking account of the wishes of the child and/or their parents in making decisions about the child’s future.
The importance of considering key aspects of the child’s background is highlighted – the child’s religious persuasion, racial origin, cultural and linguistic background, and a child’s particular needs as a result of any disability, must be taken into account in planning for the child.
What is parental responsibility?
Parental responsibility is defined in the Children Act 1989 as all the rights, duties, powers, responsibility and authority a parent has for a child or young person and their property. As children grow older they assume greater responsibility for themselves. Parents never lose their responsibility for their child, even when they share it with the Social Services Department when the child is subject to a Care Order. The only exception is when a child is adopted.
Legal status of children in foster care
All children and young people in foster care are the responsibility of the Local Authority from which the child and young person originates. The key responsibility remains with the Local Authority even if they are placed with a voluntary or independent fostering provider.
Looked after children
The term ‘looked after’ is a shortening of the phrase ‘looked after by the Local Authority’. It was introduced by the Children Act 1989. Children and young people are ‘looked after’ if there is a Care Order. This means that the Local Authority shares parental responsibility with one or both birth parents.
Children and young people who are ‘accommodated’
The word ‘accommodated’ refers to children and young people who are provided with accommodation by the Local Authority as a result of a voluntary agreement with parents or others with parental responsibility. Such children/young people are not usually subject to any court orders. Young people over the age of 16 can ask to be accommodated without the agreement or consent of their parents.
Implications for Foster Carers:
This is a voluntary arrangement made with the parent’s or parents’ agreement. When a child is accommodated, the parental responsibility remains with the parent/s. They have the right to remove the child at any time.
If parent/s demand to take a child back without that being part of the plan for the child, Foster Carers can take reasonable steps to protect the child by contacting their supervising social worker or duty officer and, if necessary, the police in an emergency.
If it is in the best interests of the child who is accommodated to become subject of a Care Order, the Local Authority can apply to the court.
The main Court Orders are:
Emergency Protection Order (EPO)
The Children Act 1989 sets out the responsibilities of the Local Authority to protect children if it is assessed that a child or young person is suffering or likely to suffer significant harm.
The Local Authority can apply to the court for an Emergency Protection Order if there is an urgent need to protect a child or young person. The order gives the applicant the power to remove or detain the child for up to eight days (extendable for up to 15 days).
The Order could contain directions about the amount of contact (including no contact) the child should have with his/her parents and family, and about medical examination or treatment of the child.
Implications for Foster Carers:
The parents cannot remove the child from the foster home without the permission of the Social Services Department
The Foster Carer needs to ensure that any directions given by the court are adhered to.
Child Assessment Order
A Child Assessment Order can be applied for in non-emergency situations where there are suspicions of harm or lack of parental co-operation, but not grounds for an Emergency Protection Order or Care Order. It is used to get urgent medical examination or psychiatric assessment of the child.
This order is for a maximum of 7 days and the period of assessment and starting date is decided by the court. In rare cases, the child could be assessed away from home.
Implications for Foster Carers:
It is unlikely that Foster Carers will be involved with any child or young person who is subject to such an order.
Interim Care Order
An Interim Care Order will often follow an Emergency Protection Order and gives the court time to collect more information whilst protecting the child. The Local Authority decides where the child will live.
An Interim Care Order is made for not more than eight weeks. Further Interim Care Orders can be made which last up to four weeks but they should be kept to a minimum to avoid delay in making a decision.
The child may be asked to have a medical examination or psychiatric assessment.
Implications for Foster Carers:
The parents may not remove the foster child without the permission of the Social Services Department.
Usually parents will have contact with their child under interim orders.
There may be specific restrictions or conditions attached to the order e.g. contact.
A Care Order is usually made to protect a child from harm, abuse or neglect and states that the Local Authority must look after the child and provide somewhere for him or her to live.
A Care Order gives the Local Authority parental responsibility jointly with the parent or parents.
The court can direct who the child should have contact with, where and what sort of contact it should be etc. In rare situations, a court can decide to restrict or stop contact if it is harming the child, or is not in his or her best interests.
Unless overturned the care order can last until the child reaches the age of 18.
The court process leading up to the making of a care order is called Care Proceedings.
Implications for Foster Carers:
The parents may not remove the foster child without the permission of the Social Services Department.
Children should be encouraged to see their families and friends unless the court states otherwise.
Foster Carers should work closely with and consult parents as agreed in the plan for the child.
Foster Carers need to be aware of any specific restrictions or conditions attached to the order.
The role of the Family Court Adviser
In all care proceedings a Family Court Adviser is appointed to represent the interests of the child and provide a report for the court. The Family Court Adviser is a social worker who is not employed by social services. They will want to talk to the child, usually on more than one occasion, and may also arrange for the child to be legally represented at the hearing.
A Contact Order sets out the contact (visiting arrangements etc) between a child/young person and his or her parent(s), or others mentioned in the order such as grandparents or former Foster Carers.
Parents or other relatives may apply for a contact order to stay in touch with their child/young person. In fact anyone may apply including the child/young person and also Foster Carers if the child has been living with them for three years.
The order often specifies the frequency and the arrangements for the contact e.g. where and when it should take place.
Contact can take the form of visits but may be letters or phone calls.
Implications for Foster Carers:
Carers should allow the child to visit, stay with, write or speak on the phone to those named in the order according to the arrangements agreed by the court.
A Residence Order states who a child shall live with. That person shares parental responsibility with the parents. It could be a grandparent or other relative. The child will not be in care.
In certain circumstances, Foster Carers may apply for and be given a residence order:
With the co-operation of the Social Services Department if the child has lived with them for less than 3 years
in their own right, after 3 years.
Prohibited Steps Order
A Prohibited Steps Order specifies that certain things cannot happen without the court’s permission e.g. a child should not be taken out of the country.
Specific Issue Order
A Specific Issue Order means that the court will decide on what should be done and how it should be done in the best interests of the child e.g. where there is a disagreement about how a child should be brought up with regard to schooling, religion, health care etc.
Other orders that you might come across:
• Supervision Order
• Family Assistance Order
• Guardianship or Special Guardianship Order
• orders made in matrimonial proceedings
• orders made in criminal proceedings e.g. supervision order, community service.
Fostering Services Regulations and National Minimum Standards 2011
The above named regulations and standards are published under the Care Standards Act 2000.
The regulations are mandatory and fostering service providers must abide by them. The inspectors working for Ofsted take account of how well the fostering service providers meet the national minimum standards under the five Every Child Matters Outcomes, and how well the service is managed. The inspection reports for each fostering service provider are available either from the providers themselves or via the Ofsted website.
There are 31 fostering standards which are encompassed under two main headings:
Standards 1 to 12 – Child Focused Standards
1. The child’s wishes and feelings and the views of those significant to them
2. Promoting a positive identity, potential and valuing diversity
3. Promoting positive behaviour and relationships
4. Safeguarding children
5. Children missing from care
6. Promoting good health and wellbeing
7. Leisure activities
8. Promoting educational attainment
9. Promoting and supporting contact
10. Providing a suitable physical environment for the child
11. Preparation for a placement
12. Promoting independence and moves to adulthood and leaving care
Standards 13 to 31 – Standards of the Fostering Service
13. Recruiting and assessing Foster Carers who can meet the needs of looked after children
14. Fostering Panels and the fostering service’s decision maker
15. Matching the child with a placement that meets their assessed needs
16. Statement of Purpose and Children’s Guide
17. Fitness to provide or manage the administration of a fostering service
18. Financial viability and changes affecting business continuity
19. Suitability to work with children
20. Learning and development of Foster Carers
21. Supervision and support of Foster Carers
22. Handling allegations and suspicions of harm
23. Learning, development and qualifications of staff
24. Staff support and supervision
25. Managing effectively and efficiently and monitoring the service
27. Fitness of premises for use as fostering service
28. Payments to Foster Carers
29. Notification of significant events
30. Family and friends as Foster Carers
31. Placement Plan and Review
Implications for Foster Carers:
Foster Carers should have some knowledge of what is contained within the regulations and standards.
Foster Carers should be particularly aware of the expectations detailed under the following individual standards:
Standard 1 ascertaining the child’s wishes and feelings
Standard 2 promoting a positive identity and valuing diversity
Standard 4 safeguarding children
Standard 6 promoting health and wellbeing
Standard 8 promoting educational achievement
Standard 9 promoting and supporting contact
Standard 12 promoting independence and preparing for adulthood
Standard 20 learning and development of Foster Carers
Standard 21 supervision and support of Foster Carers
Standard 22 handling allegations against Foster Carers
Other relevant Legislation
The Children and Families Act 2014
Children with Special Educational Needs (SEN) and disability support needs
The Children and Families Act 2014 requires changes to practice to enable improved outcomes for CYP (0-25) with SEN and/or disabilities by providing integrated and outcome-focused intervention from across education, health and social care.
The SEN and disability support changes came into force on 1 September 2014. A very useful document, ‘SEN and disabilities: a guide for parents and carers’, which also explains the system, particularly from the perspective of foster carers and looked-after children, is available to download at:
It also includes, as an annex, a note on transitional arrangements from the old to the new system.
The young people materials to the SEN and disability reforms consist of four leaflets with corresponding videos and posters. These are available to download at
The ‘Changes to the SEN and disability support system: easy-read guide for children and young people’ can be accessed at https://www.gov.uk/government/publications/send-support-easy-read-guide-for-children-and-young-people
The Contact a Family website link might also be helpful at: http://www.cafamily.org.uk
2.Legislation for Wales
The main legislative body in Wales is the National Assembly for Wales.
Local authorities have a key role in providing social care for both adults and children, and support to carers. Their functions extend to providing care for those with mental health needs, for disabled persons and for children who need to be taken into local authority care. Local authorities are also responsible for providing adoption services, and for investigating and intervening to protect children from abuse and neglect.
In addition to their general powers, Welsh Ministers have some specific grant-making powers in the field of social care. They may pay grants to organisations providing training in social care work or to those undertaking such training (section 76(4) of the Care Standards Act 2000). The Welsh Ministers may provide grants to any person to promote the welfare of children and their parents, to support parenting (section 14 of the Education Act 2002) and to provide accommodation in children’s homes (section 82 of the Children Act 1989).
A Welsh Minister is usually appointed to be responsible for social care alongside health matters and he or she is served by the Welsh Government Department for Health and Social Services.
The laws on social care will change in Wales on 1 April 2016. The Social Services and Well-being (Wales) Act 2014 will make important changes to the way social services are delivered, primarily through promoting people’s independence to give them stronger voice and control. The Act will put greater onus on local authorities to provide preventative services which will delay, reduce or prevent needs for care and support. The Act gives local authorities an updated set of duties and functions in relation to improving the well-being of people who need care and support and carers who need support.
The Welsh Government has also introduced the Regulation and Inspection of Social Care (Wales) Bill into the National Assembly. If passed, it will reform the regulatory regime for care and support services in Wales, and also reform the system of regulation of those who work in the sector and provide care for vulnerable adults or children.
Foster Care and Family Placement Services
On 1st April 2011, parts of the Children and Young Person’s Act 2008 were implemented in Wales, and some changes were also made to the Children Act 1989, which remains central to the law concerning children in Wales. There are a number of regulations and guidance concerning the application of the law for the benefit of looked after children and their families, the most important of these for foster carers are:
The Fostering Services Regulations (Wales) 2003 and the National Minimum Standards
The national minimum standards for fostering services are issued by the National Assembly for Wales under sections 23 and 49 of the Care Standards Act 2000. The National Assembly for Wales will keep the standards under review and may publish amended standards as appropriate.
The national minimum standards for fostering services focus on achievable outcomes for children and young people – that is, the impact on the individual of the services provided. There are 53 regulations and 33 standards grouped under a series of key topics and all fostering service providers should aim to provide the best care possible for the children in their care under these standards and to safeguard and promote the welfare of each individual child.
1. Statement of Purpose
• Standard 1 – Statement of Purpose
2. Fitness to provide or manage a fostering service
• Standard 2 – Skills to carry on or manage
• Standard 3 – Suitability to carry on or manage
3. Management of the fostering service
• Standard 4 – Monitoring and controlling
• Standard 5 – Managing effectively and efficiently
4. Securing and promoting welfare
• Standard 6 – Providing suitable foster carers
• Standard 7 – Valuing diversity
• Standard 8 – Matching
• Standard 9 – Protecting from abuse and neglect
• Standard 10 – Promoting contact 1
• Standard 11 – Consultation
• Standard 12 – Promoting development and health
• Standard 13 – Promoting educational achievement
• Standard 14 – Preparing for adulthood
5. Recruiting, checking, managing, supporting and training staff and foster carers
• Standard 15 – Suitability to work with children
• Standard 16 – Organisation and management of staff
• Standard 17 – Sufficient staff/carers with the right skills/experience
• Standard 18 – Fair and competent employer
• Standard 19 – Training
• Standard 20 – Accountability and support
• Standard 21 – Management and support of carers
• Standard 22 – Supervision of carers
• Standard 23 – Training of carers
• Standard 24 – Case records for children
• Standard 25 – Complaints Procedure
• Standard 26 – Administrative records
7. Fitness of premises for use as fostering service
• Standard 27 – Premises
8. Financial requirements
• Standard 28 – Financial viability
• Standard 29 – Financial processes
• Standard 30 – Payments to carers
9. Fostering panels
• Standard 31
10. Short-term breaks
• Standard 32
11. Family and friends as carers
• Standard 33
The fostering services providers to which these standards apply are:
• local authority fostering services
• independent fostering agencies which carry out fostering functions on behalf of local authorities
• voluntary organisations providing fostering services in their own right, under s59 of the Children Act 1989.
They are ‘minimum’ standards, rather than ‘best possible’ practice. Many fostering services providers will more than meet the national minimum standards and will aspire to exceed them in many ways. The standards are designed to be applicable to the wide variety of different types of fostering services providers, and to enable rather than prevent individual providers to develop their own particular ethos and approach to care for children with different needs.
Although the standards are issued for use by the Inspectorate in regulating fostering services providers, they will also have other important practical uses.
They may be used by providers and staff in self-assessment of their services, they provide a basis for the induction and training of staff, they can be used by parents children and young people as a guide to what they should expect a fostering service to provide and to do, and they can provide guidance on what is required when setting up a fostering service. Those involved with fostering services in any way are encouraged to make full use of these standards in these ways.
Children and Families Act 2014
• encourages ‘fostering for adoption’ which allows approved adopters to foster children while they wait for court approval to adopt.
• introduces a 26 week time limit for the courts to decide whether or not a child should be taken into care. In some cases, this limit may be extended by eight weeks.
• introduces ‘staying put’ arrangements which allow children in care to stay with their foster families until the age of 21 years. This is provided that both the young person and the foster family are happy to do so.
For more information go to: http://www.legislation.gov.uk/ukpga/2014/6/contents/enacted
Other Statutory Guidance:Read more
National Minimum Standards for Fostering Services (Wales) – available online at http://gov.wales/topics/health/publications/socialcare/guidance1/nmsfostering/?lang=en
Delegated Authority to Foster Carers – available online at http://gov.wales/topics/health/publications/socialcare/guidance1/delegatedauthority/?lang=en
Managing Allegations & Serious Concerns about foster carers http://gov.wales/docs/dhss/publications/110627toolkitguide.pdf
This Protocol and Tool Kit has been developed by Welsh Government to assist fostering services in the public and independent sectors and child protection managers in dealing with allegations against foster carers.
Induction Framework for Foster Carers and Short Break Carers in Wales, Care Council for Wales – available at http://www.ccwales.org.uk/foster-care-and-short-break-care/
When I am Ready – Guidance for Local Authorities ‘When I am Ready’ is the Welsh Government scheme which supports care leavers who want to continue living with their foster carers once they turn 18 (same as Staying Put)
3. Legislation for Scotland
The main legislative body in Scotland is the Scottish Parliament and what follows below is a summary of the main points of the law as it affects fostering in Scotland.
The devolved Government for Scotland is responsible for most of the issues of day-to-day concern to the people of Scotland, including health, education, justice, rural affairs, and transport.
The Scottish Government was known as the Scottish Executive when it was established in 1999 following the first elections to the Scottish Parliament. The current administration was formed after elections in May 2011.
Current LegislationRead more
The main legislation relevant to foster carers and those looking after children in Scotland is outlined below. This is not a detailed description of law applying in Scotland but is offered for guidance only.
The Children (Scotland) Act 1995
This Act puts children first. Each child has the right to:
• be treated as an individual;
• form and express views on matters affecting him or her, and have these taken account of; and
• be protected from all forms of abuse, neglect or exploitation. Parents and local authorities have rights and responsibilities in achieving the balance of care.
• The Act is accompanied by regulations and guidance.
Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003
Sets out the aftercare services for young people who have been in care. Also provide for through care preparation for young people leaving care.
Looked after children (Scotland) Regulations 2009
These regulations replace the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996.
They also affect parts of the Residential and Other Establishments (Scotland) Regulations 1996 where they apply to the placement of a child or young person in a residential establishment. They bring together the regulation of the care planning services offered to looked after children and their families with the care provision required when children are separated from their birth parents. They also reflect more detailed and consistent requirements when children are looked after by kinship carers.
This guidance replaces that provided in Volume 2 of Scotland’s Children, Scottish Office, Edinburgh, 1996, covering the Arrangements to Look After Children (Scotland) Regulations 1996 and Fostering of Children (Scotland) Regulations 1996.
The definition of a “looked after‟ child is in section 17(6) of the 1995 Act, as amended by Schedule 2, para 9(4) of the 2007 Act. A child is looked after when he or she is:
(a) provided with accommodation by a local authority under section 25 of the 1995 Act; or
(b) subject to a supervision requirement made by a children’s hearing, in terms of section 70 of the 1995 Act; or
(c) subject to an order, authorisation or warrant made under Chapter 2, 3 or 4 of Part II of the 1995 Act, and according to which the local authority has responsibilities in respect of the child. These include a child protection order, a child assessment order, an authorisation from a justice of the peace to remove a child to a place of safety or maintain a child in a place of safety, removal to a place of safety by a police constable, or a warrant to keep a child in a place of safety made by a children’s hearing or a sheriff, or
(d) living in Scotland and subject to an order in respect of whom a Scottish local authority has responsibilities, as a result of a transfer of an order to it under the Children (Reciprocal Enforcement of Prescribed Orders etc. (England and Wales and Northern Ireland) (Scotland) Regulations 1996. These 1996 Regulations were made under section 33 of the 1995 Act. Or
(e) subject to a permanence order made after an application by the local authority under section 80 of the 2007 Act.
A local authority has a range of statutory duties to a child looked after by it, as laid out in section 17 of the 1995 Act:
• to safeguard and promote the child’s welfare, taking the welfare of the child as its paramount concern;
• to make use of services that would be available for the child were he or she cared for by his or her parents;
• to take steps to promote regular and direct contact between the child who is looked after and any person with parental responsibilities, so far as is practicable, appropriate and consistent with the duty to safeguard the child’s welfare;
• to provide advice and assistance with a view to preparing the child for when he or she is no longer looked after;
• to find out and have regard to, so far as is practicable when making decisions about the child, the views of the child, his parents and any other person whom the local authority think is relevant; and
• to take account, so far as is practicable, of the child’s religious persuasion, racial origin and cultural and linguistic background.
Authorities may deviate from complying with these duties only when it is necessary to protect members of the public from serious harm, and then only to the extent required to achieve such protection for the public, section 17(5).
At every step along the way, local authorities and any agencies acting on their behalf need to be able to demonstrate their processes and be accountable for all decisions made. This requires clear and effective record keeping.
The Children and Young People (Scotland) Act 2014
This Act of the Scottish Parliament makes provision about the rights of children and young people; makes provision about investigations by the Commissioner for Children and Young People in Scotland; makes provision for and about the provision of services and support for or in relation to children and young people; makes provision for an adoption register; makes provision concerning children’s hearings, detention in secure accommodation and consultation on certain proposals in relation to schools; and for connected purposes.
The relevance of this act to foster carer is that all teenagers in residential, foster or kinship care who turn 16 are now entitled to remain in their care setting until they reach the age of 21. This is known as “Staying Put”.
This is in addition to the Scottish Government’s commitment to provide support until reaching the age of 26 for care leavers to help them move into independent living at a pace which suits them.
The new duties require corporate parents to work together to enable children in care to overcome barriers and achieve their best. All corporate parents will be required to develop and publish a plan of how they are going to meet their corporate parenting duties and the Act also introduces a new reporting and accountability structure, with national progress on improving outcomes reported by Scottish Ministers to the Parliament every three years, with the first report due in April 2018.
For more information visit: http://www.legislation.gov.uk/asp/2014/8/2014-03-28
Foster Care and Family Placement Services
The Scottish Commission for the Regulation of Care
The Regulation of Care (Scotland) Act 2001 set up the Care Commission, to register and inspect all the services regulated under the Act, taking account of the national care standards issued by Scottish Ministers. On 1 April 2011 a new independent scrutiny and improvement body replaced the Care Commission – Social Care and Social Work Improvement Scotland (SCSWIS).
The standards will be taken into account by the Care Commission in making any decision about applications for registration (including varying or removing a condition that may have been imposed on the registration of the service).
All providers must provide a statement of function and purpose when they are applying to register their service. On the basis of that statement, the Care Commission will determine which standards will apply to the service that the provider is offering.
The standards will be used to monitor the quality of care services and their compliance with the Act and the regulations. If, at inspection, or at other times, for example, as a result of the Care Commission looking into a complaint, there are concerns about the service, the Care Commission will take the standards into account in any decision on whether to take enforcement action and what action to take.
If the standards were not being fully met the Care Commission would note this on the inspection report and require the agency to address this. The Care Commission could impose an additional condition on the agency’s registration if the agency persistently, substantially, or seriously failed to meet the standards or breached a regulation.
If a voluntary or independent agency does not then meet the condition, the Care Commission could issue an improvement notice detailing the required improvement to be made and the timescale for this. Alternatively, the Care Commission could move straight to an improvement notice. The Care Commission would move to cancel the registration of any voluntary or independent agency if the improvement notice does not achieve the desired result. In extreme cases (for example, where there is serious risk to a person’s life, health or wellbeing) the Care Commission could take immediate steps to cancel the registration of a voluntary or independent agency without issuing an improvement notice.
If the Care Commission determines that the services provided by a local authority acting as a fostering agency are consistently failing to meet the standards, the Care Commission will bring this to the attention of the Scottish Executive.
Regulations must be followed. In some cases not meeting a regulation is an offence and the provider may be prosecuted. Breaking or not meeting any regulation is a serious matter. Decisions by the Care Commission on what to do when standards or regulations are not met will take account of all the relevant circumstances and be proportionate.
The standards cover the following activities:
• recruiting, selecting, approving, training and supporting foster carers;
• matching children and young people with foster carers;
• supporting and monitoring foster carers; and
• the work of agency fostering panels and other approval panels.
The national care standards for foster care
Services for children (standards 1 to 4)
These standards are for children and young people who go to stay with foster carers.
1. Informing and deciding
2. Promoting good quality care
3. Helping you as an individual
4. Expressing your views
Services for foster carers (standards 5 to 12)
These standards are for people who are or who wish to become foster carers. They also set out how agencies should work to recruit families for children.
5. Assessing and approving carers
6. Completing the application
7. Information and advice
8. Practical help
9. Allowances and expenses
12. The fostering panel
Management and staffing (standard 13)
The standards in this section are addressed to everyone who uses the foster care service. They reflect the importance of knowing that the people who are responsible for the agency have the necessary experience, skills and training.
13. Management and staffing of the agency
The principles behind the standards
The standards are based on a set of principles. The principles themselves are not care standards but reflect your recognised rights. These principles are the result of all the contributions made by the Care Commission, its working groups and everyone else who responded to the consultations on the standards as they were being written. They recognise that services must be accessible and suitable for everyone who needs them, including people from ethnic minority communities. They reflect the strong agreement that your experience of services is very important and should be positive, and that you have rights.
The principles are dignity, privacy, choice, safety, realising potential and equality and diversity.
4. Legislation for Northern Ireland
The main legislative body in Northern Ireland is the Northern Ireland Assembly and what follows below is a summary of the main points of the law as it affects fostering in Northern Ireland.
If you are interested in foster care in Northern Ireland, or are currently a foster care in Northern Ireland, you can contact the Regional Adoption and Fostering Service: http://www.adoptionandfostering.hscni.net/
Individual Health and Social Care Trusts may also provide publications tailored to aspects of foster care.
Guidance and regulationsRead more
Current Northern Ireland legislation relating to fostering includes:
• The Children (Northern Ireland) Order 1995
• The Children (Private Arrangements for Fostering) Regulations (Northern Ireland) 1996
• The Foster Placement (Children) Regulations (Northern Ireland) 1996
• The Arrangements for Placement of Children (General) Regulations (Northern Ireland) 1996
• The Review of Children’s Cases Regulations (Northern Ireland) 1996
• The Placement of Children with Parents etc. Regulations (Northern Ireland) 1996
• The Representations Procedure (Children) Regulations (Northern Ireland) 1996
Primary legislationRead more
The law reflects changing social attitudes and assumptions and undergoes constant reform in the courts as established principles are interpreted, clarified or reapplied to meet new circumstances. However, substantial changes to the law are the responsibility of government through the enactment of primary legislation.
Although loosely termed “primary legislation” in Northern Ireland, Orders in council made under either the Northern Ireland Acts 1974 and 2000 are regarded as “delegated or subordinate legislation” at Westminster and are termed statutory instruments.
The Children (Northern Ireland) Order 1995 (S.I. 1995/755 (NI 2))
The Children Order is the principal statute governing the care, upbringing and protection of children in Northern Ireland. It affects all those who work with and care for children, whether parents, paid carers or volunteers. The Order reformed, and brought together, most of the “public” and “private” 1 law relating to children relating to children in a single coherent statutory framework along the lines of the Children Act 1989 in England and Wales.
The Children Order is a large piece of legislation consisting of nearly 200 Articles (arranged into 12 Parts) and 10 Schedules.
Principles of the Children OrderRead more
Children do best in families
The Children Order believes that there are unique advantages to a child being brought up within his or her own family. In practice, this means that the Order sees families as a major way of supporting and helping children. The Children Order gives HSS Trusts the power, and in some circumstances the duty, to help children by providing services to their families.
At the other end of the scale, where a child may have been harmed perhaps through abuse or neglect, there should be strong efforts made to keep the child with his or her own family, moving adults out if necessary. Only in the last resort and to protect the child, should a child be removed from the family setting.
Children do best in families. This means that wherever possible children should be brought up and cared for in their own families. This is a key principle and professionals have a duty to work to keep children in their homes, wherever possible.
The welfare of the child must come first
This principle is called the “welfare principle” or the “paramountcy principle”. Where there are family tensions, it may be that a child’s welfare comes second to that of adults who are much better placed to make their views known and to take action. The Children Order reverses this – in court, a child’s welfare comes first.
It is not always clear what is best for the welfare of a child in any particular circumstance. The Children Order gives some guidance on this – Article 3 contains a list of elements which a court must consider when trying to reach a clear picture of what the child’s welfare is in any particular case. This is known as the welfare checklist.
When the look at the “welfare checklist” you will see that one way of finding out what is best for a child is to ask the child! However, this is only one of the factors to be considered and the child’s view has to be seen in light of his or her age and understanding.
The general philosophy of the Children Order is that primary responsibility for raising children rests with parents. Parental responsibility for the welfare of their children remains with them, even after a family break up unless a court says otherwise. The Children Order defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This includes the entitlement to make all major decisions about a child – name, education, place of residence, medical treatment etc.
Who has parental responsibility?
When a child is born to married parents, both have parental responsibility from birth3. If the parents are unmarried, the mother alone has parental responsibility from birth. The (biological) father may acquire parental responsibility by formal agreement with the mother or by court order5. From 15 April 2002, an unmarried father who jointly registers the birth of his child with the child’s mother will acquire parental responsibility for that child. When a father does not have parental responsibility his is not entitled to make decisions about his children such as a change of name, education, place of residence, etc unless the child’s mother or other persons with parental responsibility agree. A mother’s parental responsibility or that of a married father can only be ended by the making of an adoption order.
Individuals other than parents can acquire parental responsibility. Such individuals may acquire this by:
• adoption order, in which case the adoptive parent(s) acquire all the responsibility formerly held by the parent(s) and that of the parent(s) is extinguished:
• being appointed guardians (after a parent’s death) giving the guardians all the parental responsibility that parents would have;
• residence order, in which case their parental responsibility is subject to certain limitations;
• parental order (under the Human Fertilisation & Embryology Act 1990), full and permanent parental responsibility is conveyed by this order to a married couple of a child born in surrogacy, where at least one of the couple is a genetic parent of the child.
Parental responsibility is acquired by HSS Trusts by:
• the making of an emergency protection order which gives an HSS Trust temporary and limited parental responsibility;
• the making of a care order or interim care order. An HSS Trust acquires parental responsibility which is shared with the parent(s) or guardian. The Trust is entitled to decide the extent to which the parent(s) or guardian exercise their parental responsibility, and has the right to decide where and with whom a child lives;
• the making of a freeing for adoption order. An HSS Trust acquires sole parental responsibility for the child – the parental responsibility of the birth parent(s) or other is extinguished.
Working in partnership succeeds best for children
The idea of partnership is central to the way the Children Order operates. The Order recognises that professionals such as social workers should work in partnership with parents to keep children safe and promote their welfare. Because the Order also recognises that children should be given a voice in what happens to them, it gives opportunities for working in partnership with children as far as their age and development allows. The Order also emphasises the importance of different professionals working in partnership, and this includes those from both statutory and voluntary bodies.
The Children Order recognises that sometimes it will be necessary to act against parents’ wishes where the child is at risk. However, the aim is to work with parents through voluntary arrangements wherever possible. Even where children are considered at risk, parents should be kept informed and consulted at each stage. They should be invited to conferences between professionals where abuse is suspected and they should be helped to take an active part in the discussion and decision making process. Children too may be invited to this kind of meeting.
Courts will not intervene in family life unless the welfare of the child requires it
The Children Order states that a court shall not take action by making a court order “unless it considers that doing so would be better for the child than making no order at all. This is known as the “no order” rule. The idea that no action by a court may be preferable to action, is an important one. It reflects the value the Order places on family life and the idea that no-one should intervene in family life without good cause.
In practice this means that families who are experiencing difficulties are encouraged to work out their own solutions with the welfare of the children in mind. Only where this proves impossible will a court take action. In all cases where children’s welfare or safety are concerned, the courts will consider whether it is better for the court to make an order, or whether voluntary arrangements are possible which will safeguard the child without an action from the court.
Principles to be followedRead more
An HSS Trust has a duty to safeguard and promote the welfare of children whom it is looking after and to make such use of services available for children cared for by their own parents as appear reasonable (Article 26(1)).
Before making any decision, an HSS Trust must, as far as practicable, ascertain the wishes and feelings of the child, his parents or other people with parental responsibility, and any other person with a reasonable interest. The Trust must give due regard to those wishes and feelings, having regard to the child’s age and understanding, and the child’ religious persuasion, racial origin, and cultural and linguistic background (Article 26(2) and (3)).
Placement of looked after children
An HSS Trust should, if practicable and consistent with a child’s welfare, ensure that they are placed near home, and that siblings are accommodated together, and that where a child is disabled, the accommodation is suitable to the child’s particular needs (Article 27(8) and (9)).
The Trust should if practicable and consistent with the child’s welfare, make arrangements to Before making any decision, an HSS Trust must, as far as practicable, ascertain the wishes and feelings of the child, his parents or other people with parental responsibility, and any other person with a reasonable interest. The Trust must give due regard to those wishes and feelings, having regard to the child’s age and understanding, and the child’ religious persuasion, racial origin, and cultural and linguistic background (Article 26(2) and (3)).
Foster care for looked after children
Children may be placed with foster carers, who may include the child’s relatives. Before a child can be placed with any foster carers, they must have been approved by a Trust and the approval must be reviewed regularly. An agreement must be signed by the foster carers and HSS Trust in respect of each child placed. The child must be visited at specific intervals which vary according to the length of time a child has been in the placement. The Trust must keep records of foster children and of visits to foster homes.
Contact for looked after children
An HSS Trust has a duty to promote contact between children it is looking after and their parents, relatives, friends and other people connected with them, so far as is practicable and consistent with the children’s welfare (Article 29). The Trust has power to help with the cost of visits to or by the child in cases of hardship (Article 30).
When a child is in care (i.e subject to a care order or interim care order), an HSS Trust must allow the child reasonable contact with his or her parents or guardian and anyone previously providing care for him or her under a court order, until and unless an order to the contrary is made (Article 53(1)). Any of the above persons, or the HSS Trust or the child, or anyone with the court’s leave, may apply to the court for an order defining the contact that is to take place (Article 53(2) and (3)).
An HSS Trust may apply to the court for an order for permission to refuse contact between the child and a parent, guardian or previous carer. In an emergency, to safeguard the child’s welfare, the Trust may refuse contact for a maximum of 7 days without an Article 53(4) order (Article 53(4) and (6)).
Implementation of the Children Order required the production of a very considerable body of supporting Regulations and Guidance. This body of work provides further information and advice on the Order.
The Children Order series of Regulations consists of the following:
Volume 1: Court Orders and Other Legal Issues
Volume 2: Family Support, Child Minding and Day Care
Volume 3: Family Placements and Private Fostering
Volume 4: Residential Care
Volume 5: Children with a Disability
Volume 6: This guidance has been superseded
Volume 7: Schools Accommodating Children
“Co-operating to Safeguard Children” – This guidance is intended to assist Area Child Protection Committees develop strategies, policies and procedures to safeguard children who are assessed to be at risk of significant harm. It fully replaces the guidance previously provided in “Co-operating to Protect Children”, Volume 6 of the Children Order Regulations and Guidance.
Independent Fostering Agencies (28 February 2002)
This guidance was issued to HSS Boards and Trusts to provide them with guidelines on how to deal with independent fostering agencies. Attached to the circular was a good practice guide “Working with Independent Fostering Agencies” produced by the British Agencies for Adoption and Fostering (BAAF). This good practice guide provides advice on policies, practices and procedures to ensure that children’s needs are met as fully as possible when placed in foster care provided by independent fostering agencies.
Children (Leaving Care) Act (Northern Ireland) 2002
Sets out duties local authorities have to care leavers up to the age of 21.
Children (Leaving Care) Regulations (Northern Ireland) 2005
Supports the provisions of the Children (Leaving Care) Act (Northern Ireland) 2002. Sets out in more detail the matters to be taken into account when assessing and meeting the needs of those preparing to leave care and care leavers.
Further information on the law in Northern Ireland can be found at: http://www.dhsspsni.gov.uk/index/hss/child_care/looked-after-children/foster-care.htm