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Legislation and

Guidance

These pages outline the legislation, policy and guidance that specifically relates to children in care in the UK. National policies which aim to improve the life chances for all children, including looked after children, are covered in the England, Wales, Northern Ireland and Scotland sections.

KEY LEGISLATION

Children Act 1989

Sets out many of the duties, powers and responsibilities local authorities hold in respect of their looked after children and care leavers.

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.

In 2015 new regulations relating to the Children Act came in to force. Among other things, these regulations set out arrangements for local authorities considering ceasing to look after a child. (see below)

View the Children Act 1989

The Children Act 1989 – Guidance and Regulations
Volume 2 care planning, placement and case review

(Department for Education, 2015) Updates the 2010 edition of the guidance. Describes the key principles underpinning the 1989 Children Act. Also consolidates information previously contained in a series of updates and supplements, including: contact with siblings, contact with youth justice services, out of authority placements, long-term foster placements, ceasing to look after a child, fostering for adoption and the delegation of decision making about looked after children to their carers. Aimed at local authority workers with responsibilities for looked after children.

Download The Children Act 1989 guidance and regulations volume 2: care planning, placement and case review (PDF)

Other Relevant Legislation in England includes:

CARE STANDARDS ACT 2000

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.

Download the National Minimum Standards here

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
  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

Children (Leaving Care) Act 2000
Sets out duties local authorities have to support young people leaving care from 16 to 21 years of age.

View the Children (Leaving Care) Act 2000

Adoption and Children Act 2002
Updated the legal framework for domestic and inter-country adoption, and places a duty on local authorities to maintain an adoption service and provide adoption support services.

View the Adoption and Children Act 2002

Children and Adoption Act 2006
Gives courts more flexible powers to facilitate child contact and enforce contact orders when separated parents are in dispute.

View the Children and Adoption Act 2006

Children and Young Persons Act 2008
Legislates for the recommendations in the Department for Education and Skill’s 2007 Care Matters white paper to provide high quality care and services for children in care.

View the Children and Young Persons Act 2008

Download the Care Matters white paper (PDF)

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.

View the Children and Families Act 2014

The Children and Social Work Act 2017

The Children and Social Work Act 2017 (the Act) is intended to improve support for looked after children and care leavers, promote the welfare and safeguarding of children, and make provisions about the regulation of social workers.

The Act sets out corporate parenting principles for the council as a whole to be the best parent it can be to children in its care. These are largely a collation of existing duties local authorities have towards looked after children and those leaving care.

Local authorities will be required to publish their support offer to care leavers and to promote the educational attainment of children who have been adopted or placed in other long-term arrangements.

The legislation extends the current considerations of the court when making decisions about the long-term placement of children to include an assessment of current and future needs and of any relationship with the prospective adopter.

View the Children and Social Work Act 2017

Children and Social Work Act 2017 – statutory guidance (2018)
The Department for Education (DfE) has published statutory guidance for local authorities, relevant partners and others who contribute to services provided to children in care and care leavers in England. The guidance sets out seven principles that local authorities must have regard to when exercising their functions in relation to children and young people in care including: acting in their best interests, and promoting their physical and mental health and well-being; encouraging children and young people to express their views, wishes and feelings, and to take these into account; helping children and young people gain access to and make the best use of services provided; promoting high aspirations, and seeking to secure the best outcomes; ensuring safety, and stability in their home lives, relationships and education or work; and preparing the children and young people for adulthood and independent living.

Further information: Applying corporate parenting principles to looked-after children and care leavers: statutory guidance for local authorities (PDF)


Local offer for care leavers: statutory guidance
The Department for Education (DfE) has published guidance for local authorities on the local offer for care leavers as required under Section 2 of the Children and Social Work Act 2017.The guidance gives details of the services and support that may assist care leavers in, or moving to, adulthood and independent living that the local authority provides in relation to: health and wellbeing; relationships; education and training; employment; accommodation; and participation in society.

Further information: Local offer guidance: guidance for local authorities (PDF)


Extending personal adviser support to age 25: statutory guidance

The Department for Education (DfE) has published statutory guidance for local authorities in England around extending personal adviser support to all care leavers up to the age of 25. This new duty, introduced through the Children & Social Work Act 2017, commences from 1 April 2018. Information for local authorities on the new burdens assessment for extending personal adviser support to age 25 has also been published.

Further information: Extending personal adviser support to all care leavers to age 25: statutory guidance for local authorities (PDF)

Promoting the education of children in care and care leavers: statutory guidance
The Department for Education (DfE) has published statutory guidance setting out the duty local authorities in England have to promote the educational achievement of looked after children and care leavers, and on the role of the designated teacher for children and young people in care and care leavers.

Further information: Promoting the education of looked-after children and previously looked-after children (PDF)
The designated teacher for looked after and previously looked-after children: statutory guidance on their roles and responsibilities (PDF)

The main legislative body in Scotland is the Scottish Government. The Scottish Government has introduced a wide range of law and guidance that has relevance for foster care. Scotland’s care and justice system for children and young people is called the Children’s Hearing System.

KEY LEGISLATION

Children (Scotland) Act 1995

Sets out many of the duties, powers and responsibilities local authorities hold in respect of their looked after children and care leavers.

View the Children (Scotland) Act 1995

Adoption and Children (Scotland) Act 2007

Sets out the law relating to adoption.

View the Adoption and Children (Scotland) Act 2007

Looked After Children (Scotland) Regulations 2009

Sets out what should be included in a child’s plan. Also includes legislation around foster and kinship care.

View the Looked After Children (Scotland) Regulations 2009

Children’s Hearings (Scotland) Act 2011

Governs the children’s hearing system. The Act updates the old system and strengthens the place of children, ensures better support for families, and ensures consistency across Scotland.

View the Children’s Hearings (Scotland) Act 2011

Children and Young People (Scotland) Act 2014

Updates the law on creating a child’s plan, corporate parenting, aftercare, continuing care, kinship care and the adoption register.

View the Children and Young People (Scotland) Act 2014

Regulations and Guidance

Staying put Scotland

Providing care leavers with connectedness and belonging (Scottish Government, 2013)

Guidance for local authorities and other corporate parents which outlines an explicit philosophy of care and emphasises the importance of relationship based practice and extended and graduated transitions.

Download Staying put Scotland: providing care leavers with connectedness and belonging (PDF)

The Continuing Care (Scotland) Order 2015

Introduces welfare assessments and extends support to care leavers to age 21. https://www.legislation.gov.uk/sdsi/2015/9780111026618/pdfs/sdsi_9780111026618_en.pdf

Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007 (Scottish Government, 2011)

Guidance from the Scottish Government for local authorities in Scotland regarding looked after children and their duties under the Looked After Children (Scotland) Regulations 2009 and Adoption and Children (Scotland) Act 2007.

Download Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007 (PDF)

Good Practice Guidance

Getting it Right for Every Child

Getting it Right for Every Child: Guidance on Overnight Stays for Looked After and Accommodated Children

Managing Allegations against Foster Carers (2013)

Managing Allegations Against Foster Carers and Approved Kinship Carers: How Agencies Should Respond

The most important legal provisions for foster carers in Wales are found in Regulations and Guidance.  The regulations in the other UK nations are different. These were revised and replaced during 2019, and are now issued under the Regulation and Inspection of Social Care Act 2016.  In addition, the Welsh Government has issued a range of guidance which can be found below.

KEY LEGISLATION

Children Act 1989

Sets out many of the duties, powers and responsibilities local authorities hold in respect of their looked after children and care leavers.

View the Children Act 1989

Children (Leaving Care) Act 2000

Sets out duties local authorities have to support young people leaving care from 16 to 21 years of age.

View the Children (Leaving Care) Act 2000

Adoption and Children Act 2002

Updated the legal framework for domestic and inter-country adoption, and places a duty on local authorities to maintain an adoption service and provide adoption support services.

View the Adoption and Children Act 2002

Children and Adoption Act 2006

Gives courts more flexible powers to facilitate child contact and enforce contact orders when separated parents are in dispute.

View the Children and Adoption Act 2006

Children and Young Persons Act 2008

Legislates for the recommendations in the Department for Education and Skill’s 2007 Care Matters white paper to provide high quality care and services for children in care.

View the Children and Young Persons Act 2008

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.

View the Children and Families Act 2014

Social Services and Well-being (Wales) Act 2014

Implemented in April 2016, Part 6 covers Welsh local authorities’ duties to children in their care.

View the Social Services and Well-being (Wales) Act 2014

Regulation and Inspection of Social Care (Wales) Act 2016

Makes provision for the registration and regulation of providers of social care services including adoption and fostering services and advocacy services.

View Regulation and Inspection of Social Care (Wales) Act 2016

Regulations & Guidance

The following regulations were introduced following the 2014 and 2016 Acts.

When I am ready – Good Practice Guide for making arrangements for young people leaving care.

Guide for practitioners involved in making and supporting arrangements for young people leaving care. Supplements the Statutory Code of Practice relating to Part 6 of the Social Services and Wellbeing (Wales) Act 2014 which out a local authority’s legal responsibilities in respect of post-18 living arrangements for young people in care.

View When I am ready – good practice guide

Social Services and Well-being (Wales) 2014

Part 6 Code of Practice (looked after and accommodated children)

Statutory guidance which covers care and support planning, placements, keeping in touch, the role and functions of the Independent Reviewing Officer, leaving care, post-18 living arrangements, secure accommodation, children in other types of establishments and responding to the death of a looked after child.

Download Social Services and Well-being (Wales) 2014: Part 6 Code of Practice (looked after and accommodated children) (PDF)

Social Services and Well-being (Wales) 2014

Part 10 Code of Practice (Advocacy)

Covers access to and provision of advocacy services for looked after children.

Download Social Services and Well-being (Wales) 2014: Part 10 Code of Practice (Advocacy) (PDF)

The Local Authority Fostering Services (Wales) Regulations 2018

This is statutory guidance issued by the Welsh Ministers under section 29 of the Regulation and Inspection of Social Care (Wales) Act 2016 (“the Act”). It applies from 29 April 2019.

The Act, The Regulated Fostering Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019 (“the Regulations”) and this statutory guidance replace requirements previously put in place under the Care Standards Act 2000, the Fostering Services (Wales) Regulations 2003and the associated National Minimum Standards.

https://www.legislation.gov.uk/wsi/2018/1339/contents/made

The Regulated Fostering Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019

Parts 2 to 11 of the Regulations, made under section 27 of the Act, set out the requirements on a service provider in relation to the standard of service that must be provided. Parts 12 to 16 of the Regulations, made under section 28 of the Act, set out the duties placed on the designated responsible individual in relation to a regulated service.

https://www.legislation.gov.uk/wsi/2019/169/contents/made

The Fostering Panels (Establishment and Functions) (Wales) Regulations 2018 

These Regulations set out the requirements on fostering services providers (both local authorities and independent providers) in relation to the establishment and functions of fostering panels. They are intended to replace and update the requirements in Part IV of The Fostering Services (Wales) Regulations 2003 (‘the 2003 Regulations’).

www.legislation.gov.uk/wsi/2018/1333/contents/made

Fostering is a devolved issue and therefore differs from the rest of the UK. The main legislative body for Northern Ireland is the Northern Ireland Assembly.

KEY LEGISLATION

Children (Northern Ireland) Order 1995

Sets out many of the duties, powers and responsibilities local authorities hold in respect of their looked after children and care leavers.

View the Children (Northern Ireland) Order 1995

The Foster Placement (Children) Regulations (Northern Ireland) 1996
The Regulations provide that an authority must compile and maintain a record for each foster parent it has approved or placed a child with. Find out more here. http://www.legislation.gov.uk/nisr/1996/467/contents/made

The Arrangements for Placement of Children (General) Regulations (Northern Ireland) 1996

 http://www.legislation.gov.uk/nisr/1996/453/contents/made

The Representations Procedure (Children) Regulations (Northern Ireland) 1996

www.legislation.gov.uk/nisr/1996/451/contents/made

The Review of Children’s Cases Regulations (Northern Ireland) 1996 www.legislation.gov.uk/nisr/1996/461/contents/made

Children (Leaving Care) Act (Northern Ireland) 2002

Sets out duties local authorities have to care leavers up to the age of 21.

View the Children (Leaving Care) Act (Northern Ireland) 2002

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. View the Children (Leaving Care) Regulations (Northern Ireland) 2005