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COMMENTARY AND CONSULTATION QUESTIONS
PART I - GENERAL
Regulation 1- Citation and commencement
It is planned that these Regulations will come into force in early 2009 and will form part of a suite of new Regulations coming into force on or around that date following implementation of the Adoption and Children (Scotland) Act 2007.
The Scottish Government will shortly be advertising for a contractor to provide training on all the new Regulations and on the new provisions of the 2007 Act.
Regulation 2-Interpretation
The Regulations are to be made under powers in the Social Work (Scotland) Act 1968 ("the 1968 Act") and the Children (Scotland) Act 1995 ("the 1995 Act"). Where an expression or term is used in these Regulations it shall have the same meaning as in those Acts unless a separate definition is provided. For ease of reference a list of those terms as defined in the 1968 Act (section 94) and the 1995 Act (section 93) are provided in Annex A. Regulation 2 sets out those terms which are defined separately for the purposes of the Regulations.
Q1. Please consider the definitions and comment as you feel appropriate.
PART II- PLANNING FOR LOOKED AFTER CHILDREN
Regulation 3- duty of local authority to make a care plan in respect of a child
One of the key thrusts of Getting it right for every child in kinship and foster care is that good planning for the child's long term future should happen at an early stage and that a child should not be moved about between placements unnecessarily. This regulation places a duty on local authorities to make a care plan.
Q2. In line with Getting it Right for Every Child, we have been asked to consider using the term 'child's plan'. Do you agree with this suggestion?
Q3. Statistics published in November4by the Scottish Government indicates that 25% of looked after children do not have a current care plan. How could regulations be strengthened to ensure this important requirement is met?
Q4. Should the regulation contain a timescale e.g. 2 weeks by which the care plan should be drafted?
Q5. The regulation states that the information about the child in Schedule 1 should be obtained and recorded. Should anything else be added to Schedule 1?
Q6. Should adherence to the Code of Practice on records management be specifically mentioned?5
Regulation 3(3)(c) reflects the Government's policy as set out in Getting it right for every child in kinship and foster care that a child's wider network should be explored as possible carers before placing the child in another care setting.
Regulation 4 -Matters to be addressed in a care plan
This regulation sets out what is to be included in a child's care plan. The list is set out in Schedule 2 which is split into two parts. Part I covers all looked after children, including those who will remain with their birth parents. Part II applies to those children whom the local authority consider need to be placed for a period of time. Where a child needs to be placed with a carer in an emergency, we suggest that only the information in Part I will be needed initially, with the information in Part II being added as plans develop.
Q7. Is the list in Schedule 2 complete? If not what needs to be added?
Regulation 4(4) prescribes those persons who must agree the care plan with the local authority, as far as is reasonably practicable before the child is looked after. Subsection (6) specifies those who should be given a copy of the care plan. This will include the foster carer.
Q8. Do we need to add anyone else? Should there be any caveats or exceptions e.g. for child protection purposes?
Regulation 5 - considerations to which a local authority should have regard in making a care plan
This regulation applies to all children who are or will be looked after by a local authority. The local authority must have regard to the nature of the service to be provided in the immediate and longer term, taking into account the information in Schedule 1; alternative courses of action, including assessing family and friends of the child as potential carers; plans for meeting the long term needs of the child, with a view to creating permanent, sustainable arrangements for the child; whether they need to seek a change in the child's legal status; the arrangements that will be made for when the child is no longer looked after; the views of the child, if he or she is mature enough, his or her parents and other relevant people, what the child's religious, racial and cultural needs are and anything else the authority feels is relevant.
Q9. Government is keen to ensure children and young people are enabled to participate in planning and decision making around their care, for example through independent advocates. Is this an area that should be covered in these regulations?
Regulation 6- considerations to which a local authority shall have regard in making a care plan for a child…where the local authority are considering placing the child
If the local authority are considering making arrangements for the child to be placed elsewhere than with their parents, they must, as well as considering the matters in regulation 5, consider the matters in regulation 6. These are the contact arrangements and any arrangements that need to be made with regard to the child's health or educational needs. If the child is to be placed in a residential placement, the local authority need to consider whether that is the most appropriate setting for his or her needs.
The current regulation 6(3) specifies that the child should be brought up as far as possible in accordance with his religious persuasion. We intend that the final version of the regulation will also cover issues such as racial and cultural heritage.
Q10. Are there any further matters that need to be considered when placing children elsewhere than with their parents?
Regulation 7- review of children's cases
This regulation places a duty on the local authority to make sure that the care plan is kept up to date as the child's situation develops. This includes developing a plan to meet the long term needs of the child in terms of stability and security within 6 months of the child becoming looked after.
Q11. Do you agree with the 6 month timescale? If not what would you propose and why?
Regulation 8 - Time when a case is to be reviewed
Regulation 8 determines when and how often a local authority is to review the case of a child placed and looked after by them, except where the child is placed by means of a permanence order (see regulation 9). If a child is looked after and placed with a foster carer, a relative carer or in a residential establishment, the first review should be 6 weeks after the placement, with a second review 3 months later and thereafter, reviews every 6 months.
If the child is looked after but not placed by the local authority, the first review should be within 3 months and then at 6 monthly intervals.
Q12. Do you agree with these timescales? If not what would you propose and why?
A review must always be carried out before the child is referred to the Principal Reporter; before the local authority apply for a permanence order; and where practicable under any other circumstances when a children's hearing is convened in respect of the child.
Q13. We believe there is scope for improvement in the process here and would be interested in your comments.
Regulation 9 - Review of a child's case: permanence order
For those children who are placed with their carer by means of a permanence order, the type and regularity of the review will be agreed between the local authority, child and carer for each individual case. This is to reflect the general policy behind a permanence order that it should provide the child with stability and consistency and free him or her from reviews that are not essential.
Q14. Do you have any comments?
Regulation 10 - Recording review information
Any meetings about the child and any decisions made will need to be recorded in writing.
Regulation 11 - Health requirements
This regulation sets out what needs to be done with regard to the health needs of looked after child, before placing him or her.
Q15. Is this provision satisfactory for identifying needs and ensuring they are met, particularly while the child is looked after and accommodated?
Regulation 12 - Notification of occurrences involving the child
Regulation 12 sets out when a carer must notify the authority of serious incidents involving the child and what the local authority must do in their turn.
Regulation 13. - Death of a child
This regulation sets out what must be done if a looked after child dies. The local authority must notify Scottish Ministers and, as far as possible, any parent of the child, unless the child was living with the parent at the time of his or her death.
Regulation 14 - Arrangements for child to be cared for by parents
In certain circumstances a local authority can make arrangements for a looked after child to be cared for by his or her own parents or someone who has parental responsibility for him. Such an arrangement would be subject to the terms of a supervision requirement from the children's hearing and should not return the child to the care of a parent from whose care the child was removed.
Regulation 15 - Application of regulation to short-term placements
This regulation replicates what currently exists. A series of short, planned placements which include overnight stays may be treated as a single placement provided they meet the criteria set out in regulation 15(1). The requirements of the Regulations apply e.g. the placements must be subject to a care plan and must be reviewed, but the requirements do not need to be repeated for each placement in the series.
Q16. Are these provisions appropriate and efficient?
Regulation 16 - notification by local authority on placement of a child
This regulation deals with what needs to be done when a local authority places a child with a carer. Information needs to be given to -
- the child's parents or any other relevant person, unless they have already received a copy of the care plan; or where such notification is not in the child's best interests or where a legal order has been made specifying that they should not receive the information.
- the local authority where the child is going to be living (if it is a different local authority area) unless the placement is to last for less than 28 days
- the health board where the child is going to be living unless the placement is to last for less than 28 days
If the child has significant medical or additional support needs notification will still apply regardless of whether the placement is to last for more than 28 days.
PART III- PLACEMENTS
Regulation 17- decision to place a child in a foster placement
This regulation sets out what a local authority must do before they place a child with a foster carer. They must ensure that placement in a foster placement and with the particular foster carer is in the best interests of the child and that the carer has been approved. The duties referred to in 17(1)(d) include ascertaining the child's views and the views of the relevant people, as appropriate. Regulation 17(1)(e) provides that the local authority must have first explored the child's wider network as potential carers, as set out in Getting it Right for Every Child in Kinship and Foster Care6.
Q17. Do these cover the requirements in full? If not, what is required?
The Fostering of Children (Scotland) Regulations 1996 precluded children being placed with same sex couples. One of the Scottish Government's aims within the Getting it Right for Every Child in Kinship and Foster Care is to improve recruitment and to broaden the pool of potential suitable foster carers. Removal of this prohibition would assist in this aim. In addition the APRG recommended the removal of this restriction. This was accepted by the then Scottish Executive.
Q18. The Scottish Government propose to accept this recommendation from APRG. Do you have any comments?
Each carer will need to be approved either under regulation 25 (foster carers) or 26 (relative carers); and have entered into a written agreement on the matters set out in Schedule 5 (planned placement) or Schedule 3 (emergency placement). Regulation 2(d) sets out that the placement must not take the carer outwith the terms of his or her approval e.g. does not take them over the number of children they are approved to care for.
Q19. Do these Schedules contain all the appropriate material that a carer and an agency need to have discussed before the child is placed with that carer?
The regulation also makes provision about what should happen if a foster carer dies or ceases to live in the household.
Q20.. Do you agree that, if they are willing, any adults remaining in the household should be assessed with a view to approval as foster carers for the child and that the child should be allowed to continue to live in that household during the approval process?
Regulation 18 - Emergency placement
This regulation deals with what must happen when a child requires to be placed in an emergency. The child may be placed with either a carer who is already approved or with someone known to the child, if that is the best way of meeting the child's needs. If he or she is placed with an already approved carer, the placing social worker must ensure that the additional child or children does not take the carer over his or her approval limit.
Q21. Do you agree? Does this provide sufficient protection for the child? The carer? The social worker?
Whoever the child is placed with, even if with a relative or friend, the placement must be reviewed within 72 hours. If the carer is already an approved carer, the carer and the local authority must draw up an agreement based on Schedule 3 at the time of placement. If the child is placed with someone known to the child who is not an approved carer, the local authority must prepare a care plan as set out in regulations 3 and 4.
Q22. Do you agree? Does this process and timescale provide sufficient safeguards for the child and those responsible for his or her care?
Regulation 19 - review following emergency placement
Within 72 hours of the child being placed, the local authority must review the child's case to determine whether the placement continues to be in the best interests of the child. If that is the case, a care plan must be prepared as set out in regulations 3 and 4 and the local authority must determine that all the requirements of regulation 17(1)(a) to (e) and (2) are met (see the comments on regulation 17 above).
Q23. Do you agree? Does this process and timescale provide sufficient safeguards for the child and those responsible for his or her care?
The policy intention is that, if the person with whom the child is placed is not an approved foster carer and if the plan is for the child to remain with that carer for longer than 72 hours, an assessment process should be started and completed within 6 months.
Regulation 20- recommendations by a local authority
This regulation will apply when a local authority submits a report to a children's hearing in respect of a child. The local authority can recommend who the child should be placed with. Policy intention is that if they recommend that the child should be placed with someone who is not already an approved foster carer, then the local authority should carry out an assessment within 6 months of the carer's suitability; prepare a plan for supporting the child and the carer; and provide the carer with information on what the way forward might be when the supervision requirement comes to an end.
Q24. Do you agree with these proposals?
Regulation 21 - information to be supplied to persons in respect of each child placed in a residential establishment
This regulation replicates regulation 17 of the Residential Establishments - Child Care (Scotland) Regulations 1996.
Q25. Does it cover all the requirements for children who are placed in residential establishments? If not, please specify.
PART IV - PANELS
Regulation 22 - appointment and composition of fostering panels.
Regulation 22 specifies that any fostering agency registered with the Care Commission should appoint a panel to approve their foster carers. This regulation and regulation 23 make a distinction between the fostering panel, which is the wider pool of those who can serve at a meeting of the fostering panel and a meeting of the fostering panel, which is the group of individuals acting together to make recommendations on any one occasion.
Regulation 22 will prescribe the number of members that a fostering panel ( i.e. the wider pool) should have. For smaller agencies, the regulation allows for the appointment of joint fostering panels.
Q26. Do you agree with prescribing these numbers in Regulations, or should it be at an agency's discretion?
Q27. If you agree, what is a reasonable number of members for a fostering panel, to achieve the balance between each member having sufficient expertise, but not being unduly overloaded? What about for a joint fostering panel, across agencies? Should the number of members be the same?
The regulation also specifies that fostering agencies must be satisfied as to the qualifications for membership of a fostering/joint fostering panel.
Q28. Do you agree with these provisions? Should there be other provisions, such as the need for panel members to be Disclosure Scotland checked?
Q29. Is it necessary to have a medical adviser or could this role be covered in some other way e.g. by written reports from the applicants' GPs?
Q30. Should there be a duty on agencies to review the membership of the panel on a regular basis?
Regulation 23 - meetings of the fostering panel and joint fostering panel
Regulation 23 makes provision for a quorum for a meeting of a fostering panel.
Q31. Is this a reasonable approach? What should the quorum be set at ?
Q32. Should there be any other provisions made e.g. the meeting cannot be held without the medical adviser/without sufficient secretariat support to record discussions and decisions?
Regulation 24- functions of a fostering panel
This regulation sets out the functions of a fostering panel . These are to consider the applications of prospective foster carers; to make recommendations as to whether they are suitable and if so, how many children can be placed with them; to consider the reviews of foster carers as appropriate. If the fostering panel is established by a local authority, the authority can ask the panel to consider any relevant issues.
Q33. Do you think anything else needs to be added?
Regulation 25 - approval of foster carers by a fostering agency
Although the fostering panel makes a recommendation, the final decision to approve someone as a foster carer, and what the terms of that approval might be, is taken by the agency. This regulation details what the decision maker at the agency has to consider. In due course, once the Protection of Vulnerable Groups Act 2007 is implemented, any carer of a looked after child will be required to be a member of the Vetting and Barring Scheme to be established by that Act.
Q34. Should any change be made to this list? Should any changes be made to Schedule 4?
Regulation 25(3) states that a fostering agency may approve as a carer a person currently approved by another fostering agency, provided the approval is limited to the categories and numbers of children the carer is already approved for. This provision is in the current Fostering of Children (Scotland) Regulations 1996.
Q35. Is it useful to have this provision? Are there any problems that might arise?
Regulation 26 - approval of relative carers by a fostering agency?
This regulation sets out a procedure for approving a relative or person known to the child as a carer for a looked after child. The reference group set up as part of Getting it right for every child in kinship and foster care will be considering this in more detail and will report to the Scottish Government and to COSLA later in 2008.
Q36. Do you agree with the proposals generally? Is there anything else that should be included?
The draft provisions refer to Schedule 4, which has been drafted with regard to foster carers not known to the child. The intention is that a separate Schedule will be created.
Q37. Are there any of the provisions set out in Schedule 4 which should not apply to relative carers?
Regulation 27 - agreements with foster carers and relative carers
Schedule 5 sets out what should be agreed with a foster carer when a child is placed with them.
Q38. Do the contents of the Schedule cover all that is needed?
We propose a separate Schedule to cover agreements with relative carers.
Q39. Using the draft Schedule 5 as a model, what should such a Schedule contain?
Regulation 28 - reviews and terminations of approval
This regulation specifies that the decision to approve a foster carer should be reviewed annually and what should be considered during that review. If for any reason the fostering agency considers that the carer is no longer suitable to care for a child or children, the agency must terminate the carer's approval. The review may also lead to a change in the terms of the carer's approval.
The recent report 7 by the Care Commission found that 50% of fostering agencies did not review their foster carers on an annual basis, despite this being a requirement in the existing Regulations.
Q40. Do you have any views on these provisions? Could they be strengthened in any way?
Any decisions on these issues must be given to the carer in writing.
Where a carer has been approved by more than one fostering agency using the provision in these Regulations for derivative approval, and one of the agencies terminates or revises the approval, that agency must notify the others of that decision and the reasons for that decision.
Q41. Do you have any views on these provisions? Is there anything that might prevent this happening?
Regulation 29 - Review of approval: further provision
This regulation allows both foster carers and relative carers to ask for a review of a decision made by the fostering agency with regard to their approval. Foster carers are already able to request a review of the approval process via the Care Commission. This will allow them and relative carers to ask for a review of the actual decision.
Q42. Do you agree with this approach?
Regulation 30 - payment of allowances
( NB there is a typing error in the draft regulations. Regulation 30(1) should read 'A fostering agency shall', rather than ' a local authority shall.' The paragraph below sets out the policy intention.)
This regulation mirrors the existing regulation governing allowances, except for the fact that it now states that a fostering agency 'shall' rather than 'may' pay allowances to carers with whom a child is placed under these Regulations. This includes both foster carers and relative carers of looked after children, who have been approved under regulation 25 or 26 of this draft. The policy intention is that allowances will continue to be paid to foster carers who care for children beyond their 16 th birthday up till the age of 18.
Q43. Do you have any comments?
PART V - ARRANGEMENTS WITH VOLUNTARY ORGANISATIONS
Regulation 31- arrangements with voluntary organisations
This regulation allows local authorities to enter into arrangements with voluntary organisations and to place children with these organisations. The term 'voluntary organisation' is defined at regulation 2.
The regulation sets out those matters which the local authority must carry out before they make any such arrangements. These include checking that the organisation is appropriately registered with the Care Commission; that it has the capacity to carry out the duties on behalf of the local authority; that this is the most suitable way for the duties to be carried out; and that they have entered into a written Service Level Agreement ( SLA) with that organisation, as set out in Schedule 6.
Q44. Is there anything else that should be listed here? Do the matters in Schedule 6 cover all the issues to be dealt with in an SLA?
Local authorities will be required to review the agreements at least every 3 years.
Regulation 32 - Circumstances necessitating visits by local authorities
This regulation will ensure that in certain circumstances the local authority arranges for someone representing them to visit every child placed with a foster carer from outwith the local authority area. This allows the local authority to designate someone from another local authority to visit the child on their behalf, if the child is placed at a distance from the local authority who has responsibility for them. These circumstances are: within 28 days of the placement; where the organisation or establishment notify the authority that a visit is needed, within 14 days of being notified; where the authority are notified that the welfare of the child may not be being promoted, as soon as possible, but certainly within 7 days; otherwise at least every 6 months.
Q45. Do you agree with these reasons and timescales?
Q46. We propose that the final version of the Regulations will contain similar provisions for children placed in a residential care home outwith their local authority area, except that they should be visited every 3 months. Do you agree? If not, please specify your proposed alternative.
Q47. Are there any other ways we can ensure that a child's 'home' local authority continues to be involved when the child is placed outwith the area?
PART VI - RECORDS
Regulation 33 - establishment of records for looked after child.
This regulation sets out what needs to be included in a child's record ( a copy of the care plan; a copy of the information from Schedule 1; other documents relating to the child's welfare and the child's care) This regulation will apply to any child looked after by the local authority, including those in residential care and those accommodated with a kinship carer.
Q48. Is there anything else that should be recorded?
Q49. Do you feel that adherence to the Code of Practice on records management should be required through guidance?8
Regulation 34 - establishment of case records for carers with whom a child is placed.
This regulation sets out the information to be kept with regard to foster carers. The record should contain the agreements made with the carer; reports of any reviews and any variations or termination of approval. The record should also contain a record of the children placed with the carer and a note of when the placement started and finished and the reasons for the placement coming to an end.
Q50. Is there anything else that should be recorded?
Q51. Should there be a similar record for kinship carers?
Regulation 34(4) requires the fostering agency to compile a record on each prospective foster carer who is not approved, including the information obtained during the process leading up to the decision not to approve.
Q52 Do you agree that this should happen?
Regulation 35 -Retention and confidentiality of records
This regulation provides that a case record relating to a looked after and accommodated child should be kept till his or her 75 th birthday or, if the child dies before the age of 18, for 25 years after his or her death.
The record for a foster carer or prospective foster carer should be kept for 10 years from the date of the termination of his or her approval or until his or her death if earlier.
Q53. Regulations 35(1) and (2) replicate existing provisions with regard to retention of records. We are considering whether these should be updated. In your view, what should the retention period be and why?
Regulations 35(3) and (4) set out how the records should be kept and how access can be gained to them if needed.
Q54. Do you have any comments?
Regulation 36 - Revocation
This regulation revokes
- The Arrangements to Look After Children Regulations 1996.
- The Fostering of Children (Scotland) Regulations 1996
- Residential establishments - Child Care (Scotland) regulations 1996- regulation 17
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