5 Placements
36. Clauses 7 to 10 of the Bill as introduced made
provision about supporting children placed with family and friends,
requiring children to be placed in a local authority's own area
wherever possible, for that accommodation to be near the child's
school and for a child's case to be reviewed whenever the authority
is considering a change in accommodation for a child who is fostered
or who is in a children's home. The provisions gave rise to some
concern, both in debate in the Lords and in evidence to us.
37. The Children's Services Development Group, a
consortium of specialist children's services providers, told us
that there was a possibility under the terms of the Bill that
children with acute and complex needs would be placed in inappropriate
provision near to their homes rather than more in suitable provision
further away, and might also be unduly influenced by the costs
involved.[41] On the
other hand, the Fostering Network and the Every Disabled Child
Matter group were concerned that the Bill did not impose a duty
on local authorities to make sufficient and diverse quality placements
available in their local areas, and that authorities might therefore
continue to make out of authority placements routinely.[42]
38. At Committee stage in the Lords the Government
came forward with a series of amendments to address these issues.[43]
We asked the Minister to explain what the amendments were intended
to achieve. He told us:
"The reason that those clauses have been
withdrawn and replaced by a single new clause, as well as other
changes to the schedule, is that it became apparent that the tensions
between the different duties and factors that come into play when
making a placement decision about a child may not have been clear
enough in the previous clauses. We wanted to take the opportunity,
having had the Bill scrutinised and given it some more thought,
to be absolutely clear about that.
"Perhaps the easiest way for me to try to
explain this […] is that where the state is getting involved
in family life in this way and decisions are being taken about
whether to take a child away from their family and place them
somewhere else, we must make it clear what the principles involved
are. There are phrases in the Bill that have a technical meaning,
which I will try to explain.
"The first phrase in the Bill is 'consistent
with the child's welfare'. When a local authority has to take
the decision on whether it is safe to allow a child to remain
with their parents—it must be our assumption that the starting
point is that a child should live with their own parents—they
have to decide whether it is consistent with the child's welfare
to do so. What that means, technically, is whether it is safe
for that child to stay with their parents. If it is safe, the
child should continue to live with their parents. In layman's
terms, that is what it means.
"However, if the local authority decides
that it is not safe for the child to live with their parents,
there is a different test when they decide where to place that
child. The overarching structure of that test is the phrase stating
that they need to place the child in order to 'safeguard and promote
the child's welfare.' That means, in law, something very different
from 'consistent with the child's welfare.' To 'safeguard and
promote the child's welfare' means that they should attempt to
place the child where they will flourish—where is the best
place for that child to flourish? That is a very different test.
It is not up to the state to decide whether my child would be
better off living with your family, because they would flourish
there; it is up to the state to decide whether my child is safe
remaining with my family.
"Once the state takes charge as the parent,
it is the state's responsibility and we are re-stating that. That
is what we are doing by tabling this new clause; we are re-stating
that, at that point, it is the job of the state to place the child
where that child will flourish. Then we are underneath that overarching
roof, putting in various rafters that hold that roof up […]
"First and foremost, placing the child with
family or friends should be taken into consideration, and relatives
in particular, if possible, because we take the position that
that is a responsibility that the state should take into account
[…] but there is not an absolute duty to do so. Beyond that,
you need to look at factors like whether they can be placed within
the authority. In other words, can you place them within their
area? Can you place them near their school? Can you place them
in such a way that it will not be disruptive to them? […]
"In considering whether the child should
go back to their parents, the test is stronger and quite rightly
so in relation to the state's involvement in family life. That
test is: is that child safe living with their parents? If the
answer to that question is yes, they go back to their parents
even if it is a dodgy area. The state does not have the right
to pick and choose who the parents are.
"Having said that, if it is not safe and
the local authority is considering a placement there is a duty
to consider whether they can place the child with family and friends
and that is a stronger duty than the other duties. However, it
is entirely consistent that they might decide, given that the
test in this case is to safeguard and promote the child's welfare,
that the aim would be better served by placing the child somewhere
out of that area. It is completely open to the local authority,
in exercising that judgment, to take that decision."[44]
39. We note the Minister's comments that placement
with family and friends is the first option to be considered
if a child cannot remain with his or her parents, but that there
is no duty to place a child with family or friends. The welfare
of a child and his or her ability to thrive must always be paramount,
but, given that, we expect the benefits of a placement with family
and friends to be considered seriously before other options are
chosen.
40. Since our meeting with the Minister, the Government
has proposed a further amendment, to be considered at Report stage
in the Lords, to provide explicitly that local authorities make
available appropriate accommodation for the children they look
after in their area. In particular, the children that a local
authority will be under a duty to accommodate within its area
are those "whose circumstances are such that it would be
consistent with their welfare for them to be provided with accommodation
that is in the authority's area".[45]
We understand this to mean that no child should be placed outside
his or her home area without a positive decision that this is
in the best interests of the child, but that equally a child should
not be forced to remain in the local area if placement elsewhere
is considered more appropriate.
41. We acknowledge the Government's attempts to
address problems with the original text of the Bill. We recognise
that the issue is likely to be a matter for debate once again
when the Bill reaches the Commons. We hope that the Government
will continue to take the constructive approach that it has done
in the Lords when the debate continues in this House.
Post-18 fostering
42. The Howard League for Penal Reform[46]
and the Fostering Network[47]
both express disappointment that, despite its being discussed
in the Care Matters process, there is no provision in the
Bill on the issue of enabling young people to stay with former
foster carers between the ages of 18 and 21. The Fostering Network
told us that while authorities may make informal arrangements
to continue fostering beyond 18 "there are no guarantees
of any support for the foster carer or young person, there may
be no training available, there are no agreed standards that govern
the provision of this service, and often there will be a lack
of clarity concerning financial support. In addition some local
authorities do not even provide this option at present."[48]
43. The Minister said that arrangements were being
piloted to make it easier for young people to stay with their
foster carers between 18 and 21, given that young people generally
leave home at the age of 24:
"They are legally adults when they reach
the age of 18. Clearly there are complexities around the financial
implications for all concerned in doing that. It already happens,
but it is reported back to us that it is very tricky. Sometimes
local authorities wonder whether what they are doing is entirely
legal. So we are piloting arrangements, because we want to be
able to allow young people, who have been looked-after up to the
age of 18, to have more permanency and stability and to stay with
foster carers if they can up to the age of 21."[49]
44. We asked if legislation would be required to
implement changes. The Minister told us:
"It may do, but that depends on what evidence
comes out of the pilot. We need to understand more clearly the
various implications of allowing young people to stay with their
foster carers up to 21, in terms of benefits and taxation and
the legal status of that relationship between the foster carer
and the young person. We have powers to regulate the carers of
18 to 21-year-olds under existing legislation, or under the Health
and Social Care Bill if it proves necessary. It may be possible
to do it through secondary legislation."[50]
45. We note the Minister's outline of what the
Government is doing to pilot post-18 fostering arrangements, and
we ask him to provide further information about the pilots, where
they are being held and the issues that they are designed to clarify.
46. We note the Minister's comments about the possible
ways of bringing forward legislation on this issue if it is required.
Given that the opportunity for further legislation is likely
to be limited in the near future, we recommend that the Government
considers amending the Bill to provide for regulations in respect
of post-18 fostering if the pilots require it, following the example
of proposals for independent reviewing officers already in the
Bill.
Private fostering
47. The Bill extends the time limit before provisions
in the Children Act 2004 relating to the introduction of a registration
scheme for private fostering arrangements cease to have effect.[51]
NCH told us:
"From our experience supporting private
foster carers, many of the children being cared for are very vulnerable
having limited or no contact with their parents. NCH is of the
view that more needs to be done both at a central and local level
to increase the number of registered private foster carers. This
would help prevent these vulnerable children slipping through
the net. There could be significant merits to introducing a more
formal requirement to register private foster carers. This is
an area that must be sufficiently addressed as part of the Care
Matters reforms."[52]
48. The Minister told us:
"The reason that we have not [introduced
the registration system] is that we are convinced that we should
give more time to allow the notification system to work. There
are only two years of statistics so far available within the notification
system, and to give it an opportunity to work, we think that it
needs more time […]. We want to ensure that we have enough
evidence, because it is a significant area of regulation to get
into, where you require prior registration of any private fostering
arrangement."[53]
49. As the NCH told us, some children in private
fostering arrangements are amongst the most vulnerable but may
not be known to social or other services. The official figure
for private fostering arrangements that have been notified is
1,250. BAAF says that some estimates suggest that there may be
around 10,000 privately fostered children. The Minister says
that he wants more time for the voluntary notification system
for private fostering to work effectively. Given the concerns
about some of the children in this situation, we ask the Government
to give its assessment of the numbers of children in private fostering
arrangements, to set out how it intends to increase levels of
notification, and to explain its criteria for assessing whether
the voluntary system is working or not. The Bill would allow another
three years for a registration system to come into being. If it
becomes apparent before then that the voluntary notification system
is not operating effectively, the Government should immediately
bring forward a registration scheme, having put in place the necessary
arrangements in advance.
41 Ev 33, para 24 Back
42
Ev 42, para 12; Ev 38, para 26. Back
43
Principally what is now clause 8 of the Bill. Back
44
QQ 52 and 53 Back
45
New clause 'General duty of local authority to secure sufficient
accommodation'. Back
46
Ev 47 Back
47
Ev 42 Back
48
ibid, para 5 Back
49
Q 54 Back
50
Q 55 Back
51
Clause 32 Back
52
Ev 63, para 16.2 Back
53
Q 48 Back
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