Private fostering in Scotland: practice guidance for local authority children's services

6. Legislation - Overview

The legislation governing the roles and responsibilities of those involved in the provision of the care for children in private fostering arrangements in Scotland is covered by the Foster Children (Scotland) Act 1984 ("the 1984 Act") (as amended) and The Foster Children (Private Fostering) (Scotland) Regulations 1985 ("Regs").

The statutory responsibility for securing and monitoring the welfare of any child in a private fostering arrangement lies with the local authority. It is the duty of every local authority to secure the welfare of children within their area who are foster children ( section 3 the 1984 Act).

There is a legal obligation on any parent to inform the relevant local authority if a child is to be cared for in a private fostering arrangement at least two weeks prior to the start of the arrangement ( Reg 3 (1)).

There is also a duty on the private foster carers to advise the local authority about any private fostering arrangement within the same timescale except in an emergency ( section 5 of the 1984 Act). If the child is received in an emergency the private foster carer must notify the authority at the earliest opportunity and no later than 1 week after receiving the child ( section 5(2) of the 1984 Act). The local authority will then be able to carry out its responsibilities to supervise the care and make the necessary checks to ensure the safety of the child (ren).

The relevant local authority is the authority for the area where the child is to reside.

Where a private fostering arrangement is already in existence but no previous notifications made, or an emergency arrangement is made, legislation requires the carer and parent to notify the local authority Children's Services within 1 week of receiving the child (Reg 3(2)). A children's services worker should discuss the matter with the child's Named Person, who will be in a position to provide an overview of the child's circumstances and wellbeing, visit at the earliest opportunity and within 2 weeks of the notification being received to see the child, the child's parents (if possible), the carers and other members of the carer's household. An assessment should be carried out and written records kept about the suitability of the arrangements, including the appropriate level of Disclosure checks on all adult residents within the household at the earliest opportunity. If safety or welfare concerns are identified these should be addressed immediately through appropriate child protection procedures. (The local police should be informed immediately if any risk of significant harm to a child is suspected).