Staying together and connected: getting it right for sisters and brothers: national practice guidance

Part 3: 15. Children in Fostering Families – Exceptional Circumstances

Amendments to the Looked After Children (Scotland) Regulations 2009 have been introduced to remove a barrier to children living together in foster care, where this meets their needs and is the right thing for each of them. What is best for each child is the primary consideration, and is itself dependent on whether the foster care family has the capacity to meet all of the children's needs without becoming over-burdened.

Where more than three unrelated children are placed together in foster care on a short term or emergency basis the amendments enable a greater degree of flexibility to enable them to continue living together. To consider and decide if there are exceptional circumstances which mean such placements should continue in the longer term is complex work, requiring skilled assessment of children's needs and foster carer's capacity, strong collaborative working, and sound professional judgement.

Prior to this, the final report of Scotland's National Foster Care Review, published in 2013, recommended the introduction of a maximum placement limit for foster care for unrelated children.^[138] In order to improve the quality of care to individual children, and to help reduce the burden placed on some carers, a maximum limit of three unrelated children in a fostering household was recommended. The Review recommended the limit be subject to some exemptions in emergency situations, or to provide children with short-term placements. Such exemptions must be for no longer than 28 days. The Scottish Government agreed with these recommendations, and that the placement limit should be entered into statute.^[139] In recognition of the need to keep brothers and sisters together, groups of three or more siblings were not, and are not, subject to this placement limit. The placement limit was introduced by the Looked After Children (Scotland) Amendment Regulations 2014, which introduced Regulation 27A: Placement Limits to the Looked After Children (Scotland) Regulations 2009 (the 2009 Regulations).

Regulation 27A(1) sets out that a local authority must not place a child with a foster carer where the placement would result in more than three children being placed with that foster carer at the same time. Regulation 27A(2) outlines the exceptions to this, namely: in cases of emergency or for short-term arrangements of less than four weeks (27A(2)(b)); and when a group of more than three siblings are being placed in foster care (27A(2)(a)). Regulation 2 of the 2009 Regulations (as amended by Looked After Children (Scotland) Amendment Regulations 2021) establishes that the interpretation of siblings includes those who have at least one parent in common, and those with whom a child has lived or is living, and with whom they have an ongoing relationship with the character of a relationship between siblings. For more detailed guidance about definitions and interpretations of siblings relationships, please see Part 1: Chapter 5 of this guidance.

In the wake of Covid-19, due to growing concern that increasing numbers of children could require foster care placements for reasons associated with the pandemic, the placement limit was temporarily removed. This was via paragraph 10(5) of Schedule 3 of the Coronavirus Scotland Act 2020, which stated that Regulation 27A of the 2009 Regulations should be treated as if it was repealed. This temporary provision expires on 30^th September 2021, due to no longer being necessary and proportionate in relation to the pandemic.