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Legislation for England

The Law and Fostering

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, the Children Act 2004 and the Children and Young Persons Act 2008.

The Care Planning, Placement and Case Review (England) Regulations 2010, which came into effect on 1st April 2011, bring together all the provisions in previous regulations relating to the placement of children by Local Authorities and include provisions for the placement of looked after children with Foster Carers.

The Fostering Services Regulations 2011 and National Minimum Standards provide a clear framework for Fostering Service Providers, Foster Carers and associated staff with regard to how fostering services should be delivered and what foster carers can expect to receive by way of support. The Regulations and Standards are used by OFSTED when inspecting fostering service providers.

Amendments have been made to the Care Planning, Placement and Case Review (England) Regulations 2010 and Fostering Service Regulations 2011 and these came into effect on 1st July 2013.  This amendment, called The Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2013 can be found at: http://education.gov.uk/uksi/2013/984/contents/made

The Department of Education has also published new Statutory Guidance on:

            1.  Delegation of Authority to Foster Carers

            2.  Assessment and Approval process for foster carers

The new Guidance the replaces paragraphs within the Children Act 1989 Guidance Volume 2: Care Planning, Placement and Case Review; and Volume 4: Fostering Services.

Guidance relating to the Delegation of Authority to foster carers provides for:

  • Authority for making  day to day decisions about a looked after child or young person to be delegated to the foster carers, unless there is a valid reason not to do so;
  • The looked after child’s placement plan should record who has the authority to take particular decisions about the child. It should also record the reasons for any decisions that are NOT delegated to the foster carer
  • Decisions about delegated authority should take the child’s views into account and should consider whether the looked after child/young person is able to make some decisions themselves
  • Each local authority is to publish a policy setting out its approach to delegation of authority to foster carers

A guide to delegating authority to foster carers – things you need to know is available here (PDF)

Guidance relating to the assessment and approval of foster carers includes:

  • The assessment process
  • Sharing information for the purpose of assessments
  • The independent review mechanism (IRM)
  • Reviews and Terminations of Approval, including changes to terms of approval

The Guidance also covers:

  • The usual fostering limit– clarifies that terms of approval must be compatible with numbers of children placed, regardless of any exemption in place
  • Terminations of Approval– including reminding fostering services that if a foster carer gives written notice of their resignation, that this takes automatically takes effect after 28 days even when the notice is withdrawn
  • Changes of approval category – clarifies that a change to a foster carer’s approval category can be implemented immediately if the foster carers provides written agreement to the change, and there is a written statement concerning the foster family’s support needs.
  • The Decision Maker – including clarifying that decisions made after a review of a foster carer’s approval, should be made by the agency decision maker

New Statutory Guidance – England

The Department for Education (DfE) has published a number of revised and amended guidance documents relating to regulations about looked after children, foster care and adoption. The new guidance documents are available from the DfE website or using the links provided below:

Assessment and approval of foster carers – Statutory guidance on the assessment and approval process for foster carers of looked-after children, as amended.

The Children Act 1989: Care planning, placement, case review – Statutory guidance setting out the functions and responsibilities of local authorities and partner agencies under Part 3 of the Children Act 1989, which concerns the provision of local authority support for children and families.

The Children Act 1989 guidance volume 1: court orders – Statutory guidance issued under section seven of the Local Authority Social Services Act 1970 and providing a complete account of the range of court orders set out in the Children Act.

Children Act 1989 Guidance and Regulations: Volume 4 – Statutory guidance setting out the functions and responsibilities of LAs and independent fostering agencies in relation to fostering services for looked-after children


The Children Act 1989 - General Principles

The Children Act 1989 is the primary 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 and feelings of the child  - 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 as parental responsibility then transfers to the adopters.

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.

Court Orders

More than one order can be made in respect of an individual child or young person. Foster Carers should be informed of any court orders and any restrictions applying to the child or young person or contact with her or his family. It may be appropriate for Foster Carers to have a copy of the Court Order. This should be discussed at the start of the placement.

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.

Care Order

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.

Contact Order

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.

Residence Order

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
  • Wardship
  • orders made in matrimonial proceedings
  • orders made in criminal proceedings eg supervision order, community service.

Fostering Services Regulations and National Minimum Standards

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
26. Records
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 


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