The information below gives an overview of the legislation applying to fostering in England:
information relating to the different types of Court Order that may be applied is also included.
The primary legislation governing work with children and their families is The Children Act 1989 and the Act’s main principles in summary are:
1) The Welfare Principle –
this is concerned with safeguarding and promoting the welfare of children and includes the protection of a child from harm or abuse. Any person dealing with a child should always have the child’s welfare as their primary consideration.
2) Partnership Working –
all professionals working and supporting children and young people should work in in partnership with families. This applies also to foster carers. Compulsory powers are only used when this is deemed better for the child than working with the family on a voluntary basis. Wherever possible, promoting and maintaining contact between children and their families should be the priority.
The expectation is that whenever possible children and young people should be brought up in their own or extended families. This highlights the importance of a child or young persons family.
3) Priority to the wishes of the child and/or their parents –
Special importance is attached to the consideration of key aspects of a child or young person’s background. This will include their racial origin, religion, linguistic and cultural background. When planning arrangements for a child or young person any special needs arising from their being disabled must also be taken into account. This will also include any educational, complex or therapeutic needs required to be met.
Defining parental responsibility.
The Children Act of 1989 defines parental responsibility as all the rights, duties, power, responsibility and authority a parent has for a child or young person and their property.
Children assume greater responsibility for themselves as they grow older. Parents never lose responsibility for their child – even when it is shared with the Social Services Department if their child becomes subject to a Care Order. The only exception to this occurs when a child is adopted and then the new adoptive parents assume full parental responsibility. When this happens the birth parents lose responsibility for their child or young person.
Looked after children.
‘Looked after’ is the term commonly used and it is a shortening of ‘looked after by the Local Authority’. This phrase was introduced by the Children Act of 1989. Simply children and young people become ‘looked after’ if they have become subject to a Care Order. When this is in place, responsibility is shared between the Local Authority and one or both birth parents.
The legal status of children/young people in foster care.
The Local Authority in the area where a child or young persons birth family is resident have the responsibility for the child or young person when they are taken into care. The ultimate responsibility remains with that particular Local Authority irrespective of whether the child or young person is placed in local authority foster care or with an IFA (independent fostering provider).
Children and young people classed as ‘accommodated’.
Children and young people are described as being ‘accommodated’ when they are provided with accommodation by the Local Authority as a consequence of a voluntary agreement with parents or others with parental responsibility. Such children or young people are not usually subject to any court orders. Once a young person is over the age of sixteen they can request to be accommodated without the consent or agreement of their parents.
The implications for foster carers.
• This remains a voluntary agreement made with the parent’s or parents’ When a child or young person becomes ‘accommodated, the parental responsibility remains with the parent(s). At any time they have the right to remove the child.
• Should the parent(s) demand to take a child back and this is not allowed for within the plan for that child, there are reasonable steps foster carers may take to protect the child. This may mean contacting the supervising social worker or duty officer. In the case of an emergency the foster carers can also contact the police. In some cases the Local Authority may choose to apply to the court for the child who is accommodated to become the subject of a Care Order.
Types of Court Orders.
Foster carers should always be informed of any court orders or restrictions applying to a child or young person that could affect their family. In certain instances the carers may have a copy of the Court Order. Any restrictions or Court Orders should always be discussed at the commencement of the child or young person’s placement. The most common court orders are:
If a child or young person is at risk from harm, neglect or abuse a Care Order is put in place by the Local Authority to provide protection. The Authority has to look after the child and provide them with somewhere to live. Under the Care Order the Authority shares responsibility jointly with the parent(s). The court makes the decision as to who the child or young person can have contact with; what kind of contact it should be and where it may take place. Contact may not always be in the interests of the child and so the court has the power to stop it taking place. The court process that results in the making of a Care Order is called Care Proceedings. Unless the court decides otherwise, children should be given encouragement to remain in contact with their families and friends. A Care Order, if not overturned, can remain in place until a child or young person reaches the age of eighteen. Foster carers will be expected to work closely in consultation with the parents to follow the child or young persons care plan – as well as remain aware of any conditions or restrictions set out in the Care Order.
Emergency Court Order (EPO).
If there is an urgent need for a Local Authority to protect a child or young person who might be at significant risk of harm, or is already suffering from abuse they can apply to the court for an EPO. When in force it gives the Local Authority the power to remove or detain the child for up to eight days – this can be extended up to fifteen days. The Order may contain specific directions regarding the amount of contact – which may also mean no contact to be allowed between a child or young person with their parents. It may also have specific instructions covering any medical treatment that may be required by the child or young person. Under an EPO parents are not permitted to take a child from the foster home without the permission of the Social Services Department. It is the responsibility of the foster carer to make sure that any directions from the court are observed and adhered to.
Interim Care Order (ICO).
It is usual for an Emergency Protection Order to be followed up with an Interim Care Order.
An Interim Care Order is made for a period not exceeding eight weeks. Additional ICO’s can be made each of which will be no longer than four weeks. This is because the original order is placed to give the Local Authority more time to find out about the child or young persons circumstances and determine what action to take. Taking out repeated ICO’s is discouraged as being likely to delay a decision. The ICO allows a reasonable amount of time for any medical and/or psychiatric assessments to be arranged. An ICO will usually permit a child’s birth parents to have contact but there may be specific conditions or restrictions to be observed. Foster parents should be aware that under an ICO birth parents are not allowed to remove their child/young person without the permission of the Social Services Department.
Child Assessment Order
There are many non-emergency situations where there may be grounds for suspicion that a child is at risk of harm or neglect. Applying for a Care Order or Emergency Protection Order may not be justified so a Child Assessment Order can be applied for. This lasts for a maximum of seven days and allows for a medical examination and/or psychiatric assessment of the child to be made.
Other types of Orders a Court may make.
Special Guardianship Order (SGO) – implemented in 2005 this order was introduced to address the situation around long-term fostering where more security is desirable in maintaining the foster parent/child relationship without cutting all legal ties with the birth parents – as happens with adoption. Central to an SGO is the existence of an established relationship between the child or young person and the SGO applicant. Anyone who has looked after a child for twelve months or longer can apply to the Court for an SGO. Grandparents and foster carers may be included.
Child Arrangements Order – this will usually specify the frequency and arrangements for contact; these can stipulate where and when or if contact is to be by phone only. Contact may be with others mentioned in the Order such as grandparents.
Prohibited Steps Order – this ensures certain things are not allowed to take place without the court’s permission examples being a child being removed from school or being taken abroad.
Fostering legislation in England.
The overall legislative body in England is Parliament. The Department of Education has the responsibility for fostering in England. The 1989 Children Act is the primary legislation which governs looked after children and fostering services.
In summary: to provide a highly professional service we are guided by:
- The Children Act 1989:ensuring that the child’s welfare is always paramount
- The National Minimum Standards
- The Fostering Service Regulations 2011
- The Care Standards Act 2000
"My link worker has been very helpful, she is easy to talk to and reliable."
"I enjoy being a foster carer, I find it very fulfilling."
"The reward has been from my foster child seeing her blossom and flourish."