4 December 1985

Dear Sir/Madam

THE FOSTER CHILDREN (PRIVATE FOSTERING)(SCOTLAND) REGULATIONS 1985

Summary

1. This Circular draws the attention of local authorities to the Foster Children (Private Fostering)(Scotland) Regulations 1985 which have been made by the Secretary of State and come into effect on 1 April 1986. Copies of the regulations can be purchased from HMSO, 71 Lothian Road, Edinburgh EH3 9AZ.

The Effect of the Regulations

2. The detailed effects of the regulations are set out in the Explanatory Memorandum at Annex A to this circular. Briefly the regulations deal with

a. the responsibility of a parent (including any guardian or other relative having charge of a child) to notify the local authority where they intend to make arrangements for the child to be fostered within the meaning of sections 1 and 2 of the Foster Children (Scotland) Act 1984;

b. the local authority’s duty to obtain information about the child and his family, and to investigate the suitability of the proposed arrangements;

c. the local authority’s duty to notify the parent and the prospective foster parent of their observations on the suitability of the placement;

d. monitoring by the local authority, of the arrangements for the care of the child in the foster home; and

e. prohibition of any person disqualified by virtue of section 7 of the 1984 Act from advertising his services as a private foster parent.

The detailed provisions of the 1984 Act were outlined in the Annex to Circular SWSG1/85.

Co-operation between local authorities

3. Primary responsibility for action under the 1984 Act and the regulations lies with the local authority for the area in which the foster parent lives. Where the child’s normal home is in the area of a different local authority, there should be collaboration between the two authorities, particularly in the collection of information about the background of the child and his family and the proposed placement.

Application of the Regulations to certain forms of Respite Care

4. Some kinds of arrangements for respite care of children with special needs or handicap may, because of the length of period involved, result in a child becoming a foster child within the meaning of sections 1 and 2 of the 1984 Act. The requirements of the new regulations, including notification to the local authority and monitoring of placements, will then apply to such cases. However, where the respite care arrangements directly involve the local authority or a voluntary organisation (for example by making arrangements for a placement of a child with special needs with approved foster parents), they are covered by the Boarding Out and Fostering of Children (Scotland) Regulations 1985, which have been circulated separately with Circular SWSG15/85.

Medical Considerations

5. The regulations require that when notified of a proposed placement the local authority should:-

a. obtain a statement prepared by a doctor as to the health of the child;

b. obtain a statement prepared by a doctor confirming that the proposed foster parent has no medical problems likely to affect adversely his ability to look after the child.

It should not be necessary for the child or foster parent to have a full medical examination for the purposes of providing such certificates unless there are special circumstances. Authorities should make arrangements with their local health boards for the provision of such certificates and for the interpretation of medical information through authorities’ medical advisers. The Scottish Home and Health Department are therefore writing to health boards enclosing a copy of the regulations and of this circular and drawing attention to their terms.

Assessment of the suitability of the Foster Home

6. The regulations require the local authority to carry out an assessment of the suitability of the foster home and this should include some formal enquiries about the background of the foster parent and so far as possible other members of the household. In practice this would involve:-

a. a check of the local authority’s own records;

b. a check of the records of the local authority for the child’s home area if different; and

c. reference to the relevant health board.

In the last case this will usually be best done through a specific officer nominated by the health board to co-ordinate arrangements for the provision of advice and information to the local authority. If the proposed foster parent already has children, the health visitor may have significant information to be taken into consideration in assessing the suitability of a person to look after children, but she should not be expected to visit the home for the purposes of gathering such information.

Supervision of Children in Private Foster Homes

7. It is important that local authorities visit the child with the foster parent quickly to ensure that the arrangements are working out well; the regulations therefore require such a visit within one week of placement. In cases where little or no notice has been given to the local authority in advance of the placement the visit to the child with the foster parent will in effect form part of the authority’s process of assessment of the appropriateness of the arrangements. The frequency of visits to the foster home after the first visit will depend on the authority’s assessment of what is necessary in the interests of the child. In the early stages fairly frequent visits may sometimes be necessary; where a placement continues satisfactorily for some time visits at less frequent intervals may be appropriate. The regulations therefore provide that for the first year there should be visits at least every 3 months; but thereafter the minimum frequency can be decreased to twice a year.

Publicity Arrangements

8. The regulations lay a new obligation on the parent (or other relative of a child looking after him) to notify the local authority of a proposed new placement. Also, although section 5 of the 1984 Act (and its predecessors) already requires foster parents to notify the local authority when they receive a child into their home, it is not clear how far that requirement is known or complied with at present. Regulation 9 therefore requires the parent or other responsible relative of a child who was placed with foster parents prior to 1 April 1986 to notify the local authority of the circumstances not later than 22 May 1986 so that the local authority can investigate the suitability of the placement if that has not already been done. Local authorities and others concerned with the welfare of children should therefore take steps to alert parents and foster parents of their obligations. To help with this, a leaflet is being prepared for distribution to interested parties the text of which is at Annex B to this Circular. Printed copies will be made available as soon as possible to local authorities as well as to other appropriate groups such as Citizens Advice Bureaux, health visitors and other organisations who are likely to come into contact with families who are already involved in private fostering arrangements or where this might be considered in the future.

Operation of Transitional Provisions in Schedule 1 to the 1984 Act

9. With the coming into operation of these regulations the transitional provisions contained in paragraphs 4 and 5 of Schedule 1 to the 1984 Act will cease to apply.

Contact Point

10. Any enquiries about the terms of this Circular should be addressed to Mr M J Hunter, Social Work Services Group, Room, James Craig Walk, Edinburgh EH1 3BA

(telephone 0131 244 5479).

Yours faithfully

J W SINCLAIR

ANNEX A TO CIRCULAR SWSG16/85

THE FOSTER CHILDREN (PRIVATE FOSTERING)(SCOTLAND) REGULATIONS 1985

Explanatory Memorandum

Introduction

This note explains the effect of these regulations, which relate to the responsibilities of parents and prospective foster parents of foster children within the meaning of sections 1 and 2 of the Foster Children (Scotland) Act 1984, and the responsibilities of local authorities in connection with such children. The regulations stem from the provisions of the Foster Children (Scotland) Act 1984 (referred to as the "1984 Act") which consolidated the relevant provisions of the Children Act 1958 and certain provisions of the Children Act 1975; notes on the terms of the 1984 Act are contained in the Annex to Circular SWSG1/85. The regulations come into effect on 1 April 1986.

The provisions of the regulations are not described in every detail, particularly where their meaning is self-evident and the Memorandum would simply have to repeat their terms; but in most cases their effect is described in rather less technical language than the regulations themselves use.

Regulation 1 lays down that the regulations will come into operation on 1 April 1986.

Regulation 2 deals with the meaning of certain terms as used in the regulations. To avoid confusion it should be particularly noted that "foster parent" has a different and much wider meaning than in the Boarding Out and Fostering (Scotland) Regulations 1985 which deal with fostering under the Social Work (Scotland) Act 1968.

Notification by Parent etc

Regulation 3 derives from section 4 of the 1984 Act and deals with the requirements on parents to notify local authorities of a private foster placement, the form such notification should take and the information required by an authority to assess whether a placement appears appropriate to a child’s needs.

Paragraph 1 requires that in the normal case any person who intends to enter into private fostering arrangements must give notification of their intention to the relevant local authority at least 2 weeks before the placement. The relevant local authority is the authority for the area where the child is to be placed, and that authority will be responsible for carrying out the duties laid on authorities by the regulations.

Paragraph 2 deals with the circumstances where a child is placed in an emergency with a foster parent or "becomes a foster child" (see sections 1 and 2(2)(f) of the 1984 Act) while being looked after by someone other than his parent, guardian or relative.

In those circumstances the parent of the child is required to notify the local authority for the area in which the child is placed within 7 days after the child is placed with the foster parent or become a foster child.

Paragraph 3 provides that the notification by a parent must say in writing where the placement is; and empowers authorities to require a parent to provide (either in writing or however they consider appropriate) as much of the information in the schedule to the Regulations as they consider necessary in order to decide whether the placement is appropriate to the child’s needs.

Paragraph 4 provides that a "parent" who is required to notify the local authority for the purposes of this regulation includes a guardian or relative who is looking after the child and who is proposing to arrange a private foster placement.

Regulation 4 relates to the action required by the local authority on receipt of a notification. The authority must enquire into the circumstances of the child’s placement to determine whether it is or will be appropriate to his needs; and for that purpose they must:-

a. visit the child and his parent; guardian or relative (depending on the source of notification);

b. obtain a statement prepared by a fully registered medical practitioner on the child’s health;

c. as far as practicable ascertain the child’s wishes and feelings regarding the placement having regard to his age and understanding; and

d. check with the regional or islands council for the child’s home area, if different, whether they consider that a foster placement would be detrimental to his interests.

The visit or visits at a. above must be made either before the placement is made or within 2 weeks of the authority receiving notice of the placement.

Regulation 5 prescribes the checks an authority must undertake on the household of the private foster parent when they are notified of a placement either by the parent (under regulation 3) or by the foster parent (as required by section 5 of the 1984 Act). These are:-

a. to obtain a certificate prepared by a fully registered medical practitioner stating whether the foster parents have any medical problems likely to affect adversely their ability to act as foster parents;

b. to interview the foster parents;

c. to visit the premises where the child will be placed and check that they are adequate to the child’s needs;

d. to satisfy themselves that a placement in these premises with the foster parents would not be detrimental to the child’s welfare;

e. to consider a written report on the outcome of the checks listed above, together with any other relevant information, and decide whether the placement is appropriate to the child’s needs.

Notifications by a Local Authority

Regulation 6 deals with the outcome of an authority’s assessment of the placement.

i. Where the authority consider that a proposed or existing placement is not appropriate to the child’s needs, paragraph 1 requires them to give written notification immediately to the parent, guardian or relative and the foster parent. The notification is to say what action the authority consider necessary to make the placement appropriate to the child’s needs or what arrangements would promote more effectively the child’s welfare.

ii. Where an authority are satisfied that the placement is appropriate, they are required by paragraph 2 to give written notification immediately to the parent, guardian or relative and the foster parent that they have no observations on the placement and propose no further action.

Visiting of a Foster Child by a Local Authority

Regulation 7, which derives from section 3(3) of the 1984 Act, requires local authorities to take such action as is necessary to ensure that a foster placement continues to be appropriate to the child’s needs. In particular it lays down minimum requirements for visiting the child. The authority must arrange a visit to the child within one week of placement, or (where the foster parent notifies the authority after the placement has taken place) within one week of being notified. Thereafter the requirements for visits are as follows:-

i. for the first year of a placement, every 3 months;

ii. in other circumstances, every 6 months;

and

iii. at any other times when the authority think it necessary.

The authority are required to ensure that written reports are made on each visit. If, following a visit or for any other reason, the authority decide that a placement is no longer appropriate to the child’s needs, they must notify the foster parent immediately, and such a notification must include the material prescribed in regulation 6(1). This action does not affect the power of an authority under section 12 of the 1984 Act to seek a court for removal of a child.

Advertisements relating to the Fostering of Children

Regulation 8, which is derived from section 14(2) to (4) of the 1984 Act, prohibits a person disqualified from keeping foster children by virtue of section 7 of the 1984 Act from advertising their services either in arranging for, or in undertaking private foster care.

Transitional

Regulation 9 is designed to ensure that existing private fostering arrangements are brought within the scope of the new procedures. The parent of a child who became a foster child or who was placed with a foster parent before the regulations came into effect must notify the local authority for the area in which the child has been placed within 8 weeks - ie by 22 May 1986. The requirements in regulation 3 about what notifications from parents etc should contain are applied to notifications in these circumstances, and the same obligation lies on the local authority to carry out the necessary investigations under the regulations.

Schedule: This sets out information on a child and his parent (including the relative or guardian) which must be provided to the local authority on request for the purposes of regulation 3(3)(b) to enable the local authority to assess the appropriateness of the placement.

ANNEX B TO CIRCULAR SWSG16/85

TEXT OF ADVICE LEAFLET FOR THOSE INVOLVED IN PRIVATE FOSTERING

NB: Below is the text of a leaflet which is being prepared by SWSG for distribution to those involved in private fostering. Printed versions of the leaflet are being prepared and will be distributed separately as soon as possible.

PRIVATE FOSTERING - A GUIDE TO THE LAW

Changes were made in 1985 to the law on "private fostering" - that is arrangements made by parents to have their children looked after by someone who is not related to the children. This leaflet summarises the main points of the law as it stands, and explains the effect of regulations on private fostering which have been made by the Secretary of State for Scotland [ The Act of Parliament is the Foster Children (Scotland) Act 1984. The regulations are the Foster Children (Private Fostering)(Scotland) Regulations 1985] .

What is private fostering?

Basically the term applies to a child under school leaving age who is being cared for by someone other than a relative or guardian, whether or not any payment is involved. Normally a child will have to live with such a person for at least a month before he is regarded as having been fostered; and children who are legally in the care of a local authority or a voluntary organisation or who are subject to a supervision requirement from a children’s hearing are not included. There are some other exceptions, and the details are given in the Note at the end of the leaflet. If you are not sure whether any arrangement you have in mind for your child would involve "private fostering" you should consult a solicitor or your local authority.

What does the law require?

a. Parents who propose to have a child fostered privately - or who have already made such arrangements - must tell the local authority.

b. Anyone who receives a child under a private fostering arrangement must also tell the local authority.

c. A local authority who are told of a private fostering arrangement must check that the arrangements proposed will be appropriate for the child and visit the child at regular intervals to make sure he is properly looked after.

What do parents have to do?

A parent who intends to make a private fostering arrangement must tell the local authority in writing at least 2 weeks before the child is placed with the proposed foster parents. The local authority must be told where the child will be living, and must be given whatever other relevant information they consider necessary. If a child has to be privately fostered in an emergency, the parents must tell the local authority in writing within 7 days, giving the same details. The same applies if a child becomes a "foster child" while living with someone who is not related to him.

What about private foster arrangements made before the new law came into effect?

Parents have to tell the local authority of these arrangements by 22 May 1986 - 8 weeks after the new regulations came into operation.

What do the prospective foster parents have to do?

Anyone who is proposing to look after a foster child must tell the local authority of their intention at least 2 weeks before the event. Where a child has been placed in an emergency, the local authority must be told within one week. These are similar to the obligations placed on the child’s parents.

What are the responsibilities of the local authority?

When the local authority are told of a proposed private fostering arrangement they have a number of duties (a) at the time of the child’s placement and (b) afterwards, to look after the child’s welfare. These are described below.

Duties at the time of notification

The local authority has to visit the parents and the child and discuss the proposed placement with them. Wherever possible the visit will be made before the child is actually placed; if this is not possible, the local authority will visit the parents and the child separately.

The local authority must also check the suitability of the foster parents and their household. This will involve visiting the foster parents’ home, getting evidence that there are no health problems, and checking the foster parents’ background with the relevant authorities. If the local authority are satisfied that there are no difficulties about the child living with the foster parents, they will notify all the parties immediately.

Duties after the child has been placed

The local authority must visit the child in the private foster home within one week of placement. In the case of an emergency placement, the visit must be made within one week of the local authority being notified. After this initial visit the local authority must visit the foster home at least every 3 months for the first year, and at least every 6 months after that.

What happens if the local authority are unhappy about the placement?

After carrying out the checks at the time of notification or as a result of a subsequent visit to the child the local authority may not consider that the placement is satisfactory. In that case they may impose conditions on the placement, or may prohibit it altogether. If necessary the local authority may ask the courts to order that the child is removed from the foster parents and in such circumstances the court has power to order the removal of the child immediately to a place of safety. In some circumstances the child may be received into the care of a local authority until his immediate future can be clarified.

Can foster parents advertise?

The only restriction which the law puts on advertising in relation to private fostering arrangements is that certain persons who are disqualified by section 7 of the Foster Children (Scotland) Act 1984 from acting as private foster parents to a child are prohibited from advertising their availability to act as a foster parent.

How do I obtain further information?

This leaflet gives only an outline of the main points of the law on private fostering. Anyone who is uncertain about how private fostering affects them and/or their children should consult a solicitor or seek advice from their local authority.

NOTE OF WHEN A CHILD IS REGARDED AS A ‘FOSTER CHILD’

A child is a foster child for the purposes of the law if he is -

a) below the school leaving age; and

b) he is looked after for more than 6 days by a person who is not a relative or guardian (but see 7 and 8 below).

BUT

A child is not a foster child if (among other things):

1. he is in the care of a local authority or a voluntary organisation;

2. he is under a supervision requirement from a children’s hearing;

3. he is being looked after by someone else at the place where his parent, guardian etc is living;

4. he is in a residential establishment or other home or institution run by a public authority;

5. he is a boarder in a school;

6. he is in a hospital or nursing home;

7. he is looked after for less than a month by someone who over the past year has not had foster children for more than three months;

8. he is looked after for less than a month by someone who over the past year has not looked after him or another child for more than 3 periods of a week or more;

9. he is placed for adoption.

SOCIAL WORK SERVICES GROUP