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

16. Current legislative arrangements

Rather than reverting to the pre-Covid-19 legislative arrangements in relation to the three-child placement limit, an improvement has been introduced to provide greater flexibility into the care planning of children in need of foster care placements, whilst continuing to ensure they receive high-quality care from foster carers who are not over-burdened. The need for a further layer of exemption from the placement limit, for specific children in specific circumstances, has been highlighted, and was incorporated into the 2009 Regulations via the Looked After Children (Scotland) Amendment Regulations 2021 which introduced Regulation 27B to the 2009 Regulations.

Regulation 27B establishes that:

• if a child is residing with a foster carer under an emergency or short-term arrangement which involves more than three unrelated children all residing with that foster carer (under Regulation 27A(2)(b))

and

• exceptional circumstances exist so that the welfare of the child, and of any other child placed with the foster carer, would be safeguarded and promoted by continuing the placement, such placements can continue (subject to referral to the fostering panel as set out below and in section 5).

If such a situation arises, the local authority must make a referral to the fostering panel within four weeks of the date that the child was placed with the foster carer (or as soon as practicable thereafter). As is required practice for all referrals to the fostering panel, the local authority must provide the panel with information about the foster carer, their household and family (under Schedule 3 of the 2009 Regulations), and any other information the local authority considers to be appropriate.

The result of these changes is that, where previously it was only possible for more than three unrelated children to reside with the same foster carer for a four-week period, such arrangements can now continue in the longer term, if this arrangement is appropriate for the child and all other members of the household, including the foster carers. This adds a degree of flexibility which will be of benefit to children in certain circumstances. Bearing in mind the original purpose of the placement limit, this is rightly only possible in exceptional circumstances: where such an arrangement safeguards and promotes the welfare of all of the children in the placement. Clearly, if this would overburden the foster carer, it is unlikely that this will safeguard or promote the welfare of the children.