Select Committee on Children, Schools and Families First Report

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    "The reason that those clauses have been withdrawn and replaced by a single new clause, as well as other changes to the schedule, is that it became apparent that the tensions between the different duties and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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