Adoption: better choices for our children

10. Fostering Issues

Summary

10.1 The Group considered a range of issues arising from current statutory provisions for fostering, including support, allowances, restrictions on who can foster, assessment of carers for immediate placement, and private fostering.

10.2 The Group's major recommendations are:

• the support needs of children and carers should be should be re-assessed following a Permanence Order and support should continue to be available to children and carers if a s.11 order is made in respect of a looked after child (10.7 and 10.11)
• there should be a nationally agreed scheme of adequate allowances for foster carers (10.14)
• adults of the same sex living in the same household should be allowed to foster children (10.19)
• carers looking after children in immediate placements should be fully assessed within four months (10.24)
• kinship care and private fostering should be examined further (10.48 and 10.52)

Issues with fostering

10.3 The Permanence Order proposed by the Group is intended inter alia to address the legal status of children in long-term fostering. ¹ The Group also examined a range of issues arising from the current arrangements for fostering which have either led to practical problems or been the subject of criticism. The issues considered were identified in Choices for Children or arose from consultation or the Group's own discussions. ²

Public fostering

Support for children and carers in long-term placements

10.4 There is extensive statutory provision and guidance on the duties of local authorities to assess and meet the needs of looked after children and support foster carers. ³ For looked after children, local authorities must assess the child's needs and draw up a care plan which details how these needs are to be met. ⁴ Care plans must be reviewed on a regular basis, generally every six months. ⁵ For foster carers, local authorities must agree - in writing - the support and training they will provide to the carer. ⁶ Local authorities may also pay allowances and reward payments to foster carers. ⁷

10.5 Children in long term placements, and their carers, should continue to have access to support from the local authority. The Group has therefore recommended that children on a Permanence Order continue to be looked after children. ⁸ This approach will ensure both the maximum use of Permanence Orders - as carers need not be concerned about losing support - and that children and carers receive the help they need from the local authority.

10.6 The Group recognised that in some cases when a Permanence Order is made the support needs of the child and the carers might change. Reviews of the care plan might need to be less frequent. The making of a Permanence Order would therefore be a suitable opportunity to re-assess the support needs of the family and to draw up a new care plan, and agreement with the foster carers, reflecting those needs.

10.7 The Group recommends that the support needs of the child and the carer should be assessed on the making of a Permanence Order for a child in foster care, and new plans should be put in place to meet those needs.

Applications for s.11 orders for children who are or were looked after.

10.8 The Group expects that s.11 of the 1995 Act, which allows the court to make orders governing the residence and contact arrangements for a child, will continue to be used as a means of securing long-term arrangements for some looked after children, even after the introduction of the proposed Permanence Order. This course of action might be attractive to carers and children who do not need the same degree of continuing involvement and support of the local authority, and it can be particularly appropriate when care is being provided by relatives of the child.

10.9 The Group believes that this option should continue to be available in appropriate cases. However, carers can currently be deterred from pursuing this option as they would, generally, lose their support from the local authority and the child would cease to be looked after if the order is granted.

10.10 The Group believes that when a s.11 order is obtained by a carer in respect of a looked after child, the local authority should have a duty to assess the support needs of the child and the carers, and produce a plan for support. This is similar to the Group's recommendation on support after an adoption order. ⁹ The local authority should also have a duty to review the plan at the request of the child or carer until the child reaches 18. With these support arrangements, s.11 orders granted for looked after children would resemble the Special Guardianship orders being introduced in England and Wales. ¹⁰ Scotland would therefore benefit from two possible arrangements for non-adoptive permanent placements - Permanence Orders and s.11 orders - both of which would offer support to the child and carers.

10.11 The Group recommends that, when a s.11 order has been granted for the long-term security of a looked after child, the local authority should assess and plan to meet the support needs of the child and the carers.

Nationally agreed foster care allowances

10.12 Local authorities and other agencies use a variety of different ways to calculate and pay allowances and fees to foster carers. While this reflects the discretion given to local authorities to pay foster carers according to local circumstances, such variation is seen as unjust to foster carers and may affect the recruitment of foster carers and therefore the service provided to children needing care in the area. The Scottish Office guidance on the 1995 Act says:

Whilst there will be some local variations, the costs of fostering will not differ markedly across Scotland. It will aid recruitment and retention, be more comprehensible and fair to foster carers, and prevent competition emerging between local authorities if … national agreements on rates of payment are continued and, if possible, extended. ¹¹

The Fostering Network's minimum recommended allowances, which are used by the Inland Revenue for taxation of the foster care work force, are widely accepted to reflect the true costs of looking after children within the looked after system.

10.13 The Group believes that the basic allowances for foster carers should be the same across the country and should reflect the true cost of bringing up a child. This would assist in the recruitment and retention of foster carers as well as being fair. Local authorities should retain some discretion, for example over additional reward payments for carers, to cater for local circumstances.

10.14 The Group recommends that a nationally agreed scheme of adequate allowances should be introduced for foster carers.

Restrictions on who may foster

10.15 Under current regulations, a same-sex couple living together are not allowed to foster children. ¹² The same provision effectively prohibits fostering in households where there are two unrelated adults of the same sex who are not in a same-sex relationship. This has led to problems, for example when a former foster child over 18 years old continues to live in the household of a single foster carer of the same sex. ¹³

10.16 To a large extent, the consultation responses agreed that this situation needs to be changed to allow fostering by a single person or by two people, whatever their sex or sexual orientation The responses also indicated that the current provisions acted as a disincentive for some people who might otherwise apply to become foster carers, and might contravene the ECHR as they discriminate against same-sex couples.

10.17 The Group has considered the available research on same-sex parenting and found that there is no reliable research evidence that suggests that same-sex couples should be excluded from adopting or fostering. ¹⁴

10.18 Changing the provisions to allow same-sex couples to foster would bring the rules into line with current fostering law and practice in England and Wales, where assessment of potential foster carers is based on their ability to offer care on a continuing basis for vulnerable children. There are no definitions of who may and who may not foster. Such a change would also remove the difficulties over households containing two unrelated adults of the same sex who are not in a relationship.

10.19 The Group recommends that the restriction on fostering by adults of the same sex living in the same household should be removed. This would ensure that no potential foster carers are deterred from coming forward to be assessed.

Emergency and immediate placements

10.20 The Group considered current provisions for emergency and immediate placements into foster care. ¹⁵ An emergency placement is when the child needs foster home urgently, for example a placement has broken down at the weekend. The child is placed with an approved foster carer. ¹⁶ An immediate placement is when it is in the child's best interests to be placed with a relative or friend, who is not an approved foster carer, and there are good reasons why the child should not wait in another placement while the carers are approved. ¹⁷

10.21 For emergency placements, local authorities can place the child with the foster carers for up to 72 hours without a foster placement agreement, which is required before placement in all other cases, provided certain other conditions are met. ¹⁸ The Group considered that this provision was not as clear as it could be, in particular there was a cross reference to the provisions on immediate placements. Supported by the responses to consultation, the Group recommends that the emergency placement provision should be clarified and should be self-contained, without cross-reference to other regulations.

10.22 For immediate placements, local authorities can place the child with the relative or friend of the child, for a period of up to six weeks, provided certain conditions are met. ¹⁹ For the placement to continue the relative or friend should be approved as a foster carer by the local authority. Alternatively, a children's hearing can place a child with a relative or friend with whom a child has been placed under the immediate placement provisions. ²⁰ The latter provision is discussed further below.

10.23 There was agreement in the consultation responses that the time limit of six weeks was not sufficient to carry out a full assessment of the placement and the carers, and should be extended to allow the assessment to be carried out within a prescribed but realistic time period. There was also agreement that, within a six week period, there should be an interim assessment and approval of the relatives or friends which is more rigorous than that required under the current provisions. The initial assessment should determine whether the child should stay in the placement while the full assessment was being carried out.

10.24 The Group recommends that immediate placements should last for up to four months, subject to an interim assessment and approval, during which time a full assessment and approval should be carried out. The provisions on immediate placements should also have minimal cross reference to other regulations.

Placement recommendations by local authorities to children's hearings

10.25 Children on supervision requirements can be placed with carers either:

• if the carers are fully approved foster carers; or
• if the local authority has carried out the procedures for emergency or immediate placement with the carers and thinks the placement is the best choice for the children. ²¹

The latter provision allows longer term placements with family and friends who have not been approved as foster carers, and who either do not want to apply to be approved or who the local authority does not wish to seek to approve for whatever reason. It also allows placement with prospective adopters who have not been approved as foster carers (such people will have been approved as adopters). ²² These provisions therefore allow flexibility, and they also allow a child to be put in a long-term placement with carers who remain formally unapproved.

10.26 The consultation responses showed concern at the lack of a systematic approach by local authorities to assessing and approving carers in these circumstances, particularly those who are related to the children. Some detected unwillingness amongst local authorities to approve relatives as foster carers, possibly to avoid becoming liable to provide financial support. One response wanted formal assessment processes for relative carers, while another one said that more formality was not necessary if good reports were available, but that "some agreed areas for assessment of family and friends as carers would help".

10.27 The Group recognised the value of flexibility in the placements available to children's hearings. However, there was also a need for a systematic approach to ensure placements were suitable. If the Group's recommendation on assessment in immediate placements is implemented, no child should be placed long-term by a children's hearing with carers who have not been properly assessed.

Children looked after under s.25 of the 1995 Act

10.28 Under s.25 of the 1995 Act, local authorities must provide accommodation for children residing in their area who require accommodation because:

(a) no-one has parental responsibility for them;

(b) they are lost or abandoned; or

(c) the person who has been caring for them is prevented from providing suitable accommodation or care. ²³

A local authority may also provide accommodation for any child within their area if they consider that to do so would safeguard or promote the child's welfare. ²⁴ A child provided with accommodation for more than 24 hours is a looked after child. ²⁵

10.29 Questions can arise about whether a child has been accommodated by a local authority under s.25, and should therefore be treated as a looked after child. ²⁶ For example, where a child is living with friends or family, the child may be treated as looked after if the placement was organised directly by the local authority (or a voluntary organisation). However, if the placement was arranged by a birth parent, even with the help and agreement of the local authority, the child might not be treated as looked after. This distinction has important implications for the assessment and services the child will receive.

10.30 To ensure consistency of approach across Scotland, the Group recommends that clear guidance is issued by the Scottish Executive to local authorities on the circumstances in which children should be regarded as accommodated under s.25.

Respite care provided under s.25 of the 1995 Act

10.31 A related issue concerns children and young people needing respite care. ²⁷ When a local authority provides respite care for more than 24 hours, the legal grounds for providing the care is normally regarded as s.25 of the 1995 Act, and the child is considered to be looked after.

10.32 However, children who need respite care might not have any other needs that would justify the local authority looking after them. For these children, and their families, being looked after can be overly intrusive and burdensome. It can also be wasteful for the local authority.

10.33 The Group recommends that clear guidance is issued by the Scottish Executive to local authorities on the use of s.25 to provide respite care to children for periods of more than 24 hours at a time.

10.34 The Group considered the monitoring arrangements for children who are in consecutive periods of respite care, amounting to continuous time in care away from home, without this position being regularly reviewed. The Group concluded that no specific system of monitoring was necessary. Whether respite is provided by local authorities or voluntary agencies, they can be expected to monitor use of their resources and become aware if and when these situations arise. However, both local authorities and voluntary agencies need to keep information about the services being provided to specific children and families, to assure themselves, through assessment and ongoing support, that respite care is required in each case and is in children and families' best interests. The quality of all respite care services should be monitored through the approval and review processes for the carers who provide them, such as inspection by the Care Commission.

Arrangements with voluntary organisations

10.35 Arrangements may be made between local authorities and voluntary organisations in relation to fostering for looked after children. ²⁸ The Group discussed what exactly voluntary organisations could do, including arrangements for their fostering panels. ²⁹

10.36 Consultation responses indicated that voluntary organisations should be able to carry out all appropriate fostering functions under the regulations, and particularly to be able to run their own fostering panels. This would allow them to assess carers, approve them and carry out their annual reviews. Fostering agencies are now to be inspected by the Care Commission which should ensure that they meet the necessary standards in their activities. There also needs to be a wider definition of "foster carer" in the regulations, to include those approved by voluntary organisations.

10.37 The Group recommends that the regulations should allow all fostering providers, whether local authorities or voluntary organisations, to carry out their own assessment, approval, reviewing and de-registration processes.

Assessment of foster carers' new partners

10.38 The assessment of foster carers' new partners is largely an issue of good practice, as is the related question of whether (and how many) checks are made on regular overnight visitors to a foster carer's house. One consultation response commented that there should be an assessment of new partners which "should include all statutory checks, a reflection on lifestyle changes, commitment as a couple to the fostering task, and where there might be children of the new relationship, their place in the fostering family."

10.39 The Group recommends there should be clear guidance from the Scottish Executive to local authorities that:

• where a prospective foster carer acquires a partner during the assessment process, the partner should be jointly assessed; and
• where a foster carer acquires a partner after approval, that approval is reviewed, including an assessment of the partner, and the matter is taken back to the fostering panel.

In support of this, the fostering regulations should specify that such a review should be considered by the fostering panel. ³⁰

Checks on households which looked after children are visiting

10.40 Across Scotland there is a wide variation in practice on checks on households where looked after and accommodated children propose to spend time, whether for overnight stays or other sorts of stays that allow access by adults and others to these children.

10.41 For looked after young people, this issue is a crucial one because the need to have checks on friends and their families before being allowed to stay with them is seen as stigmatising in nature and a barrier to forming normal peer group relations.

10.42 This comes out clearly from the Group's consultation with young people, which found this was a contentious and frequently highlighted issue. ³¹ Young people described how they found it upsetting, difficult, restrictive and stigmatising. A number of young people identified the impact which it had on their friendships and their childhood experience:

I would just be going about with my friends and they would ask me stay over. I would go home and ask and it would be like, 'Well, not really, has that person had a police check?'... It is really hard when you are wee. It kind of takes away from your childhood. (Young man, 17 years)

10.43 A further complication is the practice some local authorities have of carrying out checks on all adults and young people who are in contact with all members of the fostering household, including the birth children. This is seen as burdensome and mitigates against the normal growth and development of peer group associations for all the children in the foster home. This is resented as intrusive by all the children involved.

10.44 Consultation responses indicated that guidance on this matter would be welcomed and that regulations were unnecessary. In fact, the then Social Work Services Inspectorate of the Scottish Executive undertook consultation across Scotland about this issue, following work with young people in the looked after and accommodated system by the Fostering Network in Scotland. Draft Guidance was issued for consultation in 2004.

10.45 The Group recommends that the issue of checks on those in contact with looked after children should be dealt with by the current consultation and guidance process being carried out by the Scottish Executive.

Kinship care

10.46 This term is used for a wide range of arrangements where children are cared for by relatives for considerable periods, if not permanently. While many of these situations are covered by the looked after system, the majority are thought to be informal family arrangements with little or no involvement with social work departments or other support services. Some of the consultation comments highlighted concerns about the lack of systems for assessing family and friends as carers.

10.47 From these responses, the issues with kinship care include:

• the growth and extent of kinship care across Scotland;
• the support needs of kinship care;
• the underlying assumptions and value base of kinship care;
• the need for a consistent realistic level of support from social work and other agencies in kinship care arrangements;
• the need for an agreed, consistent level of financial support for kinship carers across Scotland;
• the underlying status of and proposed developments for kinship care.

In 2004, the then Social Work Services Inspectorate of the Scottish Executive commissioned research into the prevalence of kinship care across Scotland and associated issues.

10.48 The Group recommends that the issues surrounding kinship care should be examined following the current research being carried out by the Scottish Executive.

Private fostering

10.49 It is important to distinguish "private fostering" from "public fostering". Public fostering is the provision of fostering services to children who are looked after by local authorities. This can be done by the local authorities, or by organisations in the voluntary sector. Public fostering is governed by statute, and detailed guidance and regulation.

10.50 Private fostering, on the other hand, is where parents make arrangements with people who are not close relatives to care for their children. ³² If these arrangements last for more than 28 days both parents and carers have a duty to report the arrangement to the relevant local authority, who must inspect and monitor the accommodation and other aspects of the arrangements, although they do not assess and approve the carers as such. ³³ There is very little public awareness of these legal requirements and local authorities themselves are often unsure of their scope, although they will now be inspected by the Care Commission to see how well they perform this function. ³⁴

10.51 The consensus of the responses to consultation on private fostering was that the current system needed reform, although the nature of that reform differed between respondents. There was support for some form of registration and/or assessment of arrangements and/or carers, but no consensus on how this would be done, or whether the tasks should be carried out by local authorities or the Care Commission.

10.52 This is a complex issue, and there is limited information about a number of areas, including:

• what is the practice of individual local authorities?
• which private fostering arrangements are notified and which are not?
• what, if any, information is available to the public, either nationally or locally?
• what are the views of the users of private fostering services, children, birth families and/or carers, who are or may be involved in private fostering?

Some of this information will become available as the Care Commission starts its work of inspection and registration, but the Group concluded that private fostering needs more investigation and discussion than is possible within its timeframe. The Group recommends that a Working Party should be set up to carry forward further consideration and discussion on private fostering.

Recommendations of Chapter 10 - fostering issues

74. The support needs of the child and the carer should be assessed on the making of a Permanence Order for a child in foster care, and new plans should be put in place to meet those needs. (10.7)

75. When a s.11 order has been granted for the long-term security of a looked after child, the local authority should assess and plan to meet the support needs of the child and the carers. (10.11)

76. A nationally agreed scheme of adequate allowances should be introduced for foster carers. (10.14)

77. The restriction on fostering by adults of the same sex living in the same household should be removed. (10.19)

78. The emergency placement provision should be clarified and should be self-contained, without cross-reference to other regulations. (10.21)

79. Immediate placements should last for up to four months, subject to an interim assessment and approval, during which time a full assessment and approval should be carried out. If this recommendation on assessment in immediate placements is implemented, no child should be placed long-term by a children's hearing with carers who have not been properly assessed. (10.24 and 10.27)

80. Clear guidance should be issued by the Scottish Executive to local authorities on the circumstances in which children should be regarded as accommodated under s.25 and the use of s.25 for respite care. (10.30 and 10.33)

81. The regulations should allow all fostering providers, whether local authorities or voluntary organisations, to carry out their own assessment, approval, reviewing and de-registration processes. (10.37)

82. There should be clear guidance from the Scottish Executive to local authorities on the procedures when a prospective foster carer acquires a new partner during or after the assessment process. (10.39)

83. The issue of checks on those in contact with looked after children should be dealt with by the current consultation and guidance process being carried out by the Scottish Executive. (10.45)

84. The issues surrounding kinship care should be examined following the current research being carried out by the Scottish Executive. (10.48)

85. A Working Party should be set up to carry forward further investigation and discussion on private fostering. (10.52)