The Law and Fostering in England

The main legislative body in England is the UK Parliament and responsibility for fostering rests with the Department for Education. The information listed below is for guidance only and not intended to be a comprehensive guide to all legislation relating to children and young people in foster care in England.

Most of the law relating to safeguarding and promoting the welfare of looked after children and the approval and assessment of foster carers is contained within the Children Act 1989, Guidance and Regulations Volume 4 Fostering Services, the Care Standards Act 2000, the Adoption and Children Act 2002, the Children Act 2004 and the Children and Young Persons Act 2008.  Specific requirements relating to placement planning for looked after children are contained in the Children Act 1989 regulations and guidance Vol 2, care planning, placement and case review (June 2015) which also contains as section on the delegation of authority to foster carers.

The Fostering Services Regulations 2011 and National Minimum Standards as amended provide a clear framework for Fostering Service Providers, Foster Carers and associated staff with regard to how fostering services should be delivered, how foster carers should be assessed and what foster carers can expect to receive by way of support. The Regulations and Standards are used by OFSTED when inspecting fostering service providers.

Regulations, guidance and legislation can be found at: https://www.gov.uk/government/publications/fostering-services-national-minimum-standards

General Principles

The Children Act 1989 is the primary legislation governing work with children and their families.
The key principles of the Act can be summarised as follows:

The Welfare Principle –
Safeguarding and promoting the welfare of children, including protecting the child from harm or abuse. The child’s welfare should be the ‘paramount’ consideration of anybody dealing with a child.

Partnership Working –
it is expected that all professionals supporting and working on behalf of children and young people should work in partnership with families. This includes foster carers. Compulsory powers should only be used when this is better for the child than working with the family on a voluntary basis. Promoting and maintaining contact between children and their families should be a priority wherever possible.
The importance of the child’s family is highlighted and the expectation is that, whenever possible, children and young people should be brought up in their own immediate or extended families.

The wishes of the child and/or their parents –
Finding out and taking account of the wishes of the child and/or their parents in making decisions about the child’s future.
The importance of considering key aspects of the child’s background is highlighted – the child’s religious persuasion, racial origin, cultural and linguistic background, and a child’s particular needs as a result of any disability, must be taken into account in planning for the child.

What is parental responsibility?
Parental responsibility is defined in the Children Act 1989 as all the rights, duties, powers, responsibility and authority a parent has for a child or young person and their property.
As children grow older, they assume greater responsibility for themselves. Parents never lose their responsibility for their child, even when they share it with the Social Services Department when the child is subject to a Care Order. The only exception is that when a child is adopted; the new adoptive parents obtain parental responsibility for the child and the birth parents lose it.

The term ‘looked after’ is a shortening of the phrase ‘looked after by the Local Authority’. It was introduced by the Children Act 1989. Children and young people are ‘looked after’ if there is a Care Order. This means that the Local Authority shares parental responsibility with one or both birth parents.

The word ‘accommodated’ refers to children and young people who are provided with accommodation by the Local Authority as a result of a voluntary agreement with parents or others with parental responsibility. Such children/young people are not usually subject to any court orders. Young people over the age of 16 can ask to be accommodated without the agreement or consent of their parents.

More than one order can be made in respect of an individual child or young person. Foster Carers should be informed of any court orders and any restrictions applying to the child or young person or contact with her or his family. It may be appropriate for Foster Carers to have a copy of the Court Order. This should be discussed at the start of the placement. The main court orders in respect of looked after children are:

Emergency Protection Order (EPO)

The Local Authority can apply to the court for an Emergency Protection Order if there is an urgent need to protect a child or young person. The order gives the applicant the power to remove or detain the child for up to eight days (extendable for up to 15 days).

Interim Care Order

An Interim Care Order will often follow an Emergency Protection Order and gives the court time to collect more information whilst protecting the child. The Local Authority decides where the child will live.

An Interim Care Order is made for not more than eight weeks. Further Interim Care Orders can be made which last up to four weeks but they should be kept to a minimum to avoid delay in making a decision.

Care Order

A Care Order is usually made to protect a child from harm, abuse or neglect and states that the Local Authority must look after the child and provide somewhere for him or her to live.

A Care Order gives the Local Authority parental responsibility jointly with the parent or parents.

The court can direct who the child should have contact with, where and what sort of contact it should be etc. In rare situations, a court can decide to restrict or stop contact if it is harming the child, or is not in his or her best interests.

Unless overturned the care order last until the child reaches the age of 18.

SGO’s were introduced as an amendment to the Children Act 1989 by the Adoption & Children Act 2002, and implemented on the 30 December 2005. This followed a review of adoption in 2000 which had recommended that a new legal order was needed to meet the needs of children separated from their birth parents which would offer more security to the children and their carers than provided by long-term fostering – but without severing all legal ties with their birth parents, as is the case with Adoption.

Anyone with whom the child has been living for 12 months or more can apply to the Court for a Special Guardianship Order. This can include foster carers, grandparents, or family and friends foster carers.

The key issue is that there is an established relationship between the child and the person applying for the SGO. If the person applying for an SGO has previously been the child’s foster carer, they will be entitled to a package of support from the local authority, including financial assistance.

The Special Guardianship (Amendment) Regulations 2016
This amendment takes effect from 29th February 2016.

These Regulations amend the Schedule to the Special Guardianship Regulations (2005) (“the 2005 Regulations”) which prescribes the matters to be dealt with by local authorities in reports they prepare for the court in applications for special guardianship orders.

The amendments do not apply where a local authority has been placed under a duty to report prior to the date that these amendments come into force (regulation 3).

Regulation 4 amends paragraph 1 of the Schedule to the 2005 Regulations (matters in respect of the child) by requiring the report to deal with any harm which the child has suffered and any risk of future harm to the child posed by their parents, relatives or any other person considered relevant, for example a partner of the parent. It also amends the provision relating to the child’s needs to ensure that both the child’s current needs and their likely future needs are dealt with in the report.

Regulation 5 amends paragraph 4 of the Schedule to the 2005 Regulations (matters in respect of the prospective special guardian or, where more than one, each of them). It replaces the provision relating to the prospective special guardian’s relationship with the child with a more detailed provision requiring an assessment of the nature of the child’s relationship with the prospective special guardian both at the time of the assessment and in the past. It also substitutes a new and more detailed provision relating to the parenting capacity of the prospective special guardian.

Full regulations can be downloaded here

Interim Guidance on Special Guardianship Orders – 2019

Interim Guidance was issued by the Family Justice Council on 24th May 2019 in response to some of the issues identified in Re P-S (Children) (2018) EWCA Civ 1407. Its primary purpose is to address cases where an extension to the statutory 26-week time limit is sought in order to assess potential special guardians, more fully, within public law proceedings.

The interim guidance states:

  1. Alternative carers should be identified as early as possible and where possible preior to to the issue of proceedings.
  2. Assessments should be commenced promptly and be evidence based, balanced and child centred. If a full assessment is required it will usually require a 3 month timescale.
  3. The assessment report must comply with the schedule as set out in Regulation 21, Special Guardianship Regulations 2005 as amended by the Special Guardianship (amendment) regulations 2015.
  4. The identification of the carers should NOT be governed by the parent’s approval or disapproval but must be focused on the child’s interests.
  5. If the viability assessment is negative, the local authority must notify the subject of the assessment of the procedure to challenge the assessment including the procedure for any application to the court either seeking leave pursuant to section 10(9) of the Children Act 1989or to be joined as a party. Any challenge must be pursued promptly within a short timescale.

Extensions will be permitted beyond 26 weeks

  1. If the application has a sound basis, an extension beyond 26 weeks should be permitted if it is, "necessary to enable the court to resolve the proceedings justly"[section 32(5) Children Act 1989] and as such will be readily justified as required by section 32(7) of the Act.
  2. Where a viability assessment is positive, the parties and the court should, when making directions for a full SGO assessment, consider, and if necessary make orders relating to, the time the children will spend with the proposed carers. An evidence-based assessment which does not include any assessment of the proposed carers ’relationship with the child is likely to be regarded as incomplete.
  3. If the court approves an extension, consideration will need to be given to the legal framework. It may not be possible for the child to be placed pursuant to an interim care order under the current regime imposed by Regulation 24 of The Care Planning, Placement and Case Review (England) Regulations 2010. In these circumstances, an alternative approach would be placement pursuant to section 8 of the Act: a Child Arrangements Order and an interim supervision order to provide support for the placement, particularly during any transition period. The court should bear in mind the consequences arising out of any change to the legal framework, particularly if it impacts upon the child’s status as a “looked after” child pursuant to section 22 of the Act.

The Interim Guidance can be found here

For further information about SGO please click here

Child Arrangements Order
There will no longer be ‘Contact’ (previously known as Access) or ‘Residence’ (often referred to as child custody) orders in proceedings regarding children. Instead these orders are replaced by a Child Arrangement Order. This type of order will regulate arrangements relating to any of the following:-

  • with whom a child is to live, spend time or otherwise have contact, and
  • when a child is to live, spend time or otherwise have contact with any person”

The rationale behind the new order is “to move away from loaded terms such as residence and contact which have themselves become a source of contention between parents, to bring greater focus on practical issues of the day to day care of the child.”

The Order sets out the contact (visiting arrangements etc) between a child/young person and his or her parent(s), or others mentioned in the order such as grandparents or former foster carers.

Parents or other relatives may apply for to stay in touch with their child/young person. In fact; anyone may apply including the child/young person and also carers if the child has been living with them for three years.

The order often specifies the frequency and the arrangements for the contact e.g. where and when it should take place. Contact can take the form of visits but may be letters or phone calls.

The Order confers parental responsibility on the carer and puts him/her on a similar legal footing as the birth parents. A child or young person who is the subject of a Child Arrangements Order is not a “looked after Child” and the order ceases when the child is 18.

Foster carers may apply for a Child Arrangements Order

Prohibited Steps Order
A Prohibited Steps Order specifies that certain things cannot happen without the court’s permission e.g. a child should not be taken out of the country.

Specific Issue Order
A Specific Issue Order means that the court will decide on what should be done and how it should be done in the best interests of the child e.g. where there is a disagreement about how a child should be brought up with regard to schooling, religion, health care etc.

Child Assessment Order
A Child Assessment Order can be applied for in non-emergency situations where there are suspicions of harm or lack of parental co-operation, but not grounds for an Emergency Protection Order or Care Order. It is used to get urgent medical examination or psychiatric assessment of the child.

Parental responsibility is defined in the Children Act 1989 as all the rights, duties, powers, responsibility and authority a parent has for a child or young person and their property.

As children grow older, they assume greater responsibility for themselves. Parents never lose their responsibility for their child, even when they share it with the Social Services Department when the child is subject to a Care Order. The only exception is that when a child is adopted; the new adoptive parents obtain parental responsibility for the child and the birth parents lose it.

Foster carers do not have parental responsibility for their foster child.

Delegated authority is all about giving children in care as normal lives as possible, with the same opportunity as other children, and with foster carers being able to make every day decisions without having to ask a social worker for their consent. Every local authority is required to have a published policy setting out its approach to delegation of authority in respect of looked after children in foster care. Volumes 2 and 4 of the Children Act 1989 statutory guidance confirm that, except where there are factors that dictate the contrary, foster carers should be given delegated authority to make day-to-day decisions about health, education, leisure, etc and the matters to be delegated to them recorded in the child’s Placement Plan.

Overnight Stays, school trips and holidays:
In making decisions whether or not to allow a looked after child to stay overnight with a friend, go on holiday with a friend’s family, or go on a school trip, foster carers and responsible authorities should consider the following:

  • Are there any restrictions in the child’s care plan or placement plan
  • Are they any court orders prohibiting or restricting overnight stays or holidays
  • Are they any factors in the child’s background, past experience or behaviour that preclude the trip or holiday
  • Are there any grounds for concern that the child might be at risk in the household concerned or from activities proposed
  • What is the age and understanding of the child about the trip
  • What are the reasons for the stay/trip
  • How long is it for

Looked after children should always be told of the criteria that will be used to make decisions, and once these factors have been considered and weighed, they should be told of the reasons for the decision being made. Needless to say, contact details for where the child will be staying and information about all activities to be undertaken should be provided to the foster carers, in the same way as for your birth child.

Two further points worth mentioning are:

  • There is no statutory duty to obtain DBS checks in relation to a private household where a child may stay overnight or visit, or who the child may accompany on holiday or a school trip
  • There is no requirement for the adults in the household that the child visits or accompanies on holiday to be approved as a foster carer, as the child remains formally placed with their usual foster carers.

Further information:
Children Act 1989 Guidance and Regulations, Vol 2, Care planning, placement and review (June 2015) contains a full description of the regulations concerning delegated authority and a pdf of the relevant section can be found here.

A useful checklist entitled “Things you need to know about delegated authority” can also be found here.

Kinship care is the care given to a child whose parents are unable to provide the care and support for a child and this responsibility is taken on by a family member such as a grandparent, aunt, uncle, sibling or other connected adults to the child such as godparents or close friends of the family. For these associations Kinship Care can also be termed as `Family and Friends` care or `Connected Persons` care.

A Kinship carer is a person who is looking after a child of a relative or friend on a full time basis; this can also be a temporary or permanent arrangement and can also be on a formal or informal basis. The placement of a child with an unrelated person by their parent(s) is known as Private Foster Carer.

It is important to understand the difference between an informal kinship care arrangement and that of an approved kinship foster placement. In general terms an informal kinship carer will care for a child following an agreement between themselves and the parents when they are no longer able to care for the child themselves and wish to avoid the child going into care. For example, grandparents might step in to look after a child if the parents are unable to cope, perhaps due to bereavement, drug or alcohol problems, or mental health issues.

This type of arrangement does not involve the local authority and the carers do not generally receive a fostering allowance. If the carer feels they may not be able to meet the needs of the child due to finances, they may consider requesting a `Child in Need` assessment from the local authority (see below).

In Kinship Foster Care, the local authority will approach a relative or friend (a connected person) and ask them to care for the child. Sometimes the child will already be in foster care with an unrelated foster carer or sometimes the local authority will seek a kinship foster placement to avoid taking a child into foster care. The key difference is that the local authority places the child with the Kinship Foster Carer and therefore has financial responsibility for them.

Where the local authority places the child with a relative or connected person, they are referred to as a looked after child and the local authority will exercise parental responsibility for the child. Kinship foster carers undergo a fostering assessment and once approved will receive a fostering allowance to help support the child. The financial support should be equal to the allowances/fees provided to other foster carers within that local authority (National Minimum Standard 28.7).

When informal arrangements of care for a child or young person are made with people who are not connected or family members then this is classed as a private fostering arrangement. If it is to continue beyond a period of 28 days, the local authority should be informed and an assessment of the placement should take place. There is no entitlement to financial support from the local authority and Private Foster Carers are not assessed as foster carers.

An assessment of a child in need is carried out under section 17 of the Children Act 1989. Under section 17 the child is not looked after by the local authority and will not have a care plan but there may be the requirement to implement a child in need plan or a child protection plan. When a plan is put in place social workers or other professionals may be required to visit the child periodically.

Anyone can contact social services if they have concerns about a family, or believe that a child may be in need. An assessment is made where more than advice or information is required and it appears you might need services to assist you and the children in your family.  The assessment is usually carried out by a social worker and the child will be identified as a child in need if without the provision of additional services they are unlikely to achieve or maintain a reasonable level of expected health and or development.

The main legislative body in England is Parliament and primary responsibility for fostering in England is held by the Department for Education. The legislation listed below is for guidance only and not intended to be a comprehensive guide to all legislation relating to children and young people in foster care in England.

Children Act 1989 – the primary legislation governing looked after children and fostering services. Available online at www.legislation.gov.uk/ukpga/1989/41/contents.

Care Standards Act 2000 – sets the regulatory and inspectoral regime and establishes National Minimum Standards. Available online at www.legislation.gov.uk/ukpga/2000/14/contents

Children (Leaving Care) Act 2000 – the primary legislation governing services for care leavers. Available online at www.legislation.gov.uk/ukpga/2000/35/contents

Children Act 2004 – requires local authorities to promote educational achievement of looked after children. Available at www.legislation.gov.uk/ukpga/2004/31/contents

Children and Young Persons Act 2008 – amends the Children Act 1989 regarding placement of looked after children, and strengthens visiting requirements and the role of the independent reviewing officer. Available at www.legislation.gov.uk/ukpga/2008/23/contents

Fostering Services (England) Regulations 2011 – regulate all fostering services, replacing the Fostering Services Regulations 2002. Available online at www.legislation.gov.uk/uksi/2011/581/contents/made

Independent Review of Determinations (Adoption and Fostering) Regulations 2009 – extends the Independent Review Mechanism (IRM) to fostering. Available online at www.legislation.gov.uk/uksi/2009/395/contents/made

Care Planning, Placement and Case Review (England) Regulations 2010 – specify requirements for care plans and placement plans, placement decisions, monitoring and review of looked after children. Available at www.legislation.gov.uk/uksi/2010/959/contents/made

Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2015 – these Regulations amend the Care Planning, Placement and Case Review Regulations 2010 and also amend the Fostering Services Regulations 2011.Available online at: Care Planning and Case Review

Care Leavers (England) Regulations 2010 – designed to ensure that young people leaving care receive the same support that would be expected of any reasonable parent. Available at www.legislation.gov.uk/uksi/2010/2571/made

Implementation of Children and Social Work Act 2017 Sections 1-7 – The Department for Education has published statutory guidance aimed at local authorities and other agencies to help these organisations to implement the changes to the legislative framework for looked-after and previously-looked after children, and care leavers introduced by sections 1 to 7 of the Children and Social Work Act 2017.

The statutory guidance relating to sections 1 to 3 of the Act will come into force from April 2018 and is aimed at commissioners of services for care leavers and looked-after children, and partner agencies and providers of services for care leavers and looked after children:

Additional documents published include:

The revised statutory guidance relating to sections 4 to 7 of the Act is aimed at local authorities, schools and school governing bodies:

Statutory guidance

Children Act 1989 Guidance and Regulations Volume 4: Fostering Services (2011) – contains the requirements set out by government to support local authorities, working with fostering service providers, in giving the best possible care and support to children in foster care. Replaces the Children Act 1989 Guidance and Regulations Volume 3: Family Placements (1991). Available at www.education.gov.uk/publications/standard/publicationDetail/Page1/DFE-0

Assessment and Approval of Foster Carers: Amendments to the Children Act 1989 Guidance and Regulations Volume 4 (2013): This guidance amends the assessment and approval process, and includes guidance on the usual fostering limit, terminations of approval and the IRM. Available at: www.education.gov.uk/aboutdfe/statutory/g00225430/assess-approv-foster-care.

Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review (2010) – provides a central reference point for local authority work with looked after children. Available at www.education.gov.uk/publications/standard/publicationDetail/Page1/DCSF

Delegation of Authority: Amendments to the Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review(2015). This Guidance places requirements on local authorities with regard to delegating authority to foster carers in respect of the children in their care. Available at: Volume 2: Care Planning, Placement and Case Review

Volume 4: Fostering Services – updated to reflect the inclusion of `Delegation of authority to foster carers` in Volume 2.

Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (2010) – statutory guidance on how to meet the requirements of the Care Leavers (England) Regulations 2010. Available online at

http://media.education.gov.uk/assets/files/pdf/p/volume%203%20planning%20transition%20to%20adulthood%20for%20care%20leavers.pdf

IRO Handbook: Statutory Guidance for Independent Reviewing Officers and Local Authorities on their Functions in Relation to Case Management and Review for Looked After Children (2010) – guides independent reviewing officers in the discharge of their responsibilities towards looked after children, with the aim that they receive the support and services required to meet their full potential. Available at www.education.gov.uk/publications/standard/Lookedafterchildren/Page1/DCS

Sufficiency: Statutory Guidance on Securing Sufficient Accommodation for Looked After Children (2010) – explains the duty of local authorities to secure sufficient accommodation within their area to meet the needs of looked after children. Available at www.education.gov.uk/publications/standard/Lookedafterchildren/Page1/DCS

A guide to inter-agency working to safeguard and promote the welfare of children is available in the Working Together to Safeguard Children pdf

Short Breaks: Statutory Guidance on how to Safeguard and promote the Welfare of Disabled Children using Short Breaks (2010) – seeks to improve outcomes for disabled children through short breaks provision. Available online at www.education.gov.uk/publications/standard/publicationDetail/Page1/DCSF

Promoting the Educational Achievement of Looked After Children: Statutory Guidance for Local Authorities – statutory guidance which came into force in 2010. Available at https://www.education.gov.uk/publications/standard/Childrensworkforce/Pa

Statutory Guidance on Promoting the Health and Well-being of Looked After Children – statutory guidance which came into force in 2009. Available at http://www.education.gov.uk/childrenandyoungpeople/families/childrenincare/a0065777/promoting-health-and-wellbeing

Statutory Guidance on Children Who Run Away or go Missing From Home or Care. – statutory guidance which was updated January 2014. Available at https://www.gov.uk/government/publications/children-who-run-away-or-go-missing-from-home-or-care

Corporate parenting: statutory guidance – The Department for Education (DfE) has published statutory guidance for local authorities, relevant partners and others who contribute to services provided to children in care and care leavers in England.

The guidance sets out seven principles that local authorities must have regard to when exercising their functions in relation to children and young people in care including:

  • acting in their best interests, and promoting their physical and mental health and well-being
  • encouraging children and young people to express their views, wishes and feelings
  • to take the views, wishes and feelings of those children and young people
  • helping children and young people gain access to and make the best use of services provided
  • promoting high aspirations, and seeking to secure the best outcomes
  • ensuring safety, and stability in their home lives, relationships and education or work
  • to prepare the children and young people for adulthood and independent living.

For further information, please click here.

Extending personal adviser support to age 25: statutory guidance – The Department for Education (DfE) has published statutory guidance for local authorities in England around extending personal adviser support to all care leavers up to the age of 25. This new duty, introduced through the Children & Social Work Act 2017, commences from 1 April 2018. Information for local authorities on the new burdens assessment for extending personal adviser support to age 25 has also been published.

Source: DfE  Date: 26 February 2018
Further information: Extending personal adviser support to all care leavers to age 25: statutory guidance for local authorities (PDF)
Extending personal adviser support to age 25: new burdens assessment (PDF)
Local offer for care leavers: statutory guidance – The Department for Education (DfE) has published guidance for local authorities on the local offer for care leavers as required under Section 2 of the Children and Social Work Act 2017.The guidance gives details of the services and support that may assist care leavers in, or moving to, adulthood and independent living that the local authority provides in relation to: health and wellbeing; relationships; education and training; employment; accommodation; and participation in society.

Source: DfE  Date: 26 February 2018
Further information: Local offer guidance: guidance for local authorities (PDF)

Promoting the education of children in care and care leavers: statutory – The Department for Education (DfE) has published statutory guidance setting out the duty local authorities in England have to promote the educational achievement of looked after children and care leavers, and on the role of the designated teacher for children and young people in care and care leavers.

Source: DfE  Date: 26 February 2018
Further information: Promoting the education of looked-after children and previously looked-after children (PDF)
The designated teacher for looked after and previously looked-after children: statutory guidance on their roles and responsibilities (PDF)

Arrangements for Care Leavers Aged 18 Years and Above: ‘Staying Put’ Guidance 

The Department for Education (DfE) has issued new guidance on the ‘Staying Put’ arrangements, which allow young people aged 18 and above who were previously looked after, to carry on living with their former foster carers. Further details and a link to the full guidance document can be found at https://www.gov.uk/government/publications/staying-put-arrangements-for-care-leavers-aged-18-years-and-above

Family and friends carers: information leaflet

Support that may be available to family and friends carers. It is intended to help those family members or friends access services in their local area and national helplines.

https://www.gov.uk/government/publications/family-and-friends-carers-information-leaflet

The Fostering Services Regulations 2011 and National Minimum Standards as amended provide a clear framework for Fostering Service Providers, Foster Carers and associated staff with regard to how fostering services should be delivered, how foster carers should be assessed and what foster carers can expect to receive by way of support. The Regulations and Standards are used by OFSTED when inspecting fostering service providers.

Regulations, guidance and legislation can be found at: NMS Fostering Services (pdf)