Children and Families Bill

Memorandum submitted by The Fostering Network (CF 12)

1. The Fostering Network is a charity and a membership organisation which brings together individuals and organisations involved in providing foster care across the UK. We have approximately 57,000 individual members and nearly 400 organisational members – both local authorities and independent fostering providers. Our views are informed by our members, as well as by research. In this way, we aim to be the voice of foster care. Our core purpose is to ensure that the best possible care is delivered to children who are fostered; this means that legislation and policy, and relevant practice within the system, must meet the best interests of the individual child. We advocate for a system which works well for children in care and for foster carers and fostering services.

2. The Fostering Network is convinced that improving arrangements that lead to the best long-term future for children in care is of the utmost importance. We therefore welcome the Government’s intentions to make improvements to the adoption system. However, we believe that the range of permanence options needs to be strengthened as part of this reform; to prioritise adoption above the other options can have unintended consequences which can undermine the other options. Securing a permanent placement for every child in care that meets their unique needs should be our ambition, regardless of whether this is secured through a return home, a special guardianship order with a relative or foster carer, or a long term permanent foster care placement. It is from this perspective that we offer a number of observations on the bill.

3. Fostering for adoption addressed in clauses 1 and 6 of the bill. The Fostering Network has no objection to the basic principle of fostering by prospective adopters in those cases where this is best for the child, and we share the concern that it is undesirable for children to experience unnecessary moves prior to forming attachments with a long-term carer. Indeed many foster carers go on to adopt a child in their care, and we believe they should be supported to do so – where this is consistent with the child’s welfare. However the proposal does carry the risk of subverting the role of the foster carer before a decision is made by the court, which is to support the child to make the transition to whatever long-term plan is decided for the child by the local authority and the courts, and to facilitate contact with family, and continuity of schooling and community contact where this is deemed to be consistent with the welfare of the child.

4. The Fostering Network has serious concerns about the provisions of the bill as currently drafted. We strongly oppose the proposals to introduce fostering for adoption before the local authority has decided that adoption should be the plan, and whilst adoption is merely being considered alongside other care options such as return to the birth family or placement within the wider family, or indeed long-term foster care. If the Government is minded to reinforce fostering for adoption in law this should only apply after the decision has been taken by the local authority that the child should be adopted (whilst a court decision is awaited). The Government’s proposal issued in March 2012, on which public consultation was based, was that fostering for adoption placements would take place after the local authority has decided that adoption is the right course for the child, but before the court has confirmed the decision (Department for Education, Action Plan for Adoption: Tackling Delay, paragraph 59, page 25). We note that as recently as 4 December 2012 Edward Timpson MP, Under-Secretary of State, told the Select Committee on Adoption Legislation that this was the Government’s position (See Select Committee on Adoption Legislation, Oral and Written Evidence, p.516).

5. However, we would have concerns even if fostering for adoption were available at this later stage of decision making. Members of the extended family who could potentially act as carers are frequently not identified until care proceedings are already underway. This means that a prospective adopter would be identified from the new adoption register before a prospective family member adopter or carer. The issue may well be aggravated if care proceedings are reduced to 26 weeks, as proposed in Clause 14. This could, and should, be partially addressed by introducing a requirement that a family group conference should be held prior to commencement of court proceedings. Once a child has been placed in a "fostering for adoption" placement, there may be a reluctance to move the child both by local authorities and by the courts, even though in the absence of such an attachment a different long-term option may have been in the best interests of the child. In particular, this will be at the expense of the child’s rights to remain in his/her family, and with his/her siblings, where it is in his/her best interests to do so.

6. Above all, we have concerns about the proposal as drafted because it undermines some fundamental principles of the Children Act 1989 in the way that it amends Clause 22 of that Act. Where adoption is just one of the options under consideration, and a fostering for adoption placement is made, the bill removes the presumption in the Children Act that placement with the birth family or wider family should be given priority and it does not even replace it with a requirement that family placement should be considered. It should be remembered that the proposals will apply to children placed in care on a voluntary basis, as well as to those who have been removed from their parents. In addition, even where adoption is just one of the options under consideration, a fostering for adoption placement will remove the requirement on local authorities to endeavour to place a child with his/her siblings, to place a child as near as possible to his/her home or school, and, if the child is disabled, to place the child in a situation adapted to his/her particular requirements.

7. Special guardianship

Like adoption, special guardianship is a permanent arrangement, and the child is no longer in care. It has proved particularly popular in situations where a relative steps in and offers a home to a child who would otherwise be adopted or fostered. The research evidence shows that children being made subject to special guardianship orders have substantially the same needs as children who are adopted. We support the proposals to strengthen adoption support and can see absolutely no reason at all not to similarly strengthen support for special guardians. To this end we fully support the proposals drafted by Family Rights Group to strengthen special guardianship support.

It was envisaged that many foster carers would apply for special guardianship orders for older children in their care. Whilst we know that there have been cases of successful orders in such situations, we also know that many foster carers are reluctant to apply for such orders because they fear that the support they would receive would be inadequate. Indeed it is a requirement of the regulations that financial support is reviewed annually and that it would be exceptional for any fee payment to continue for more than a year. We believe that more foster carers would apply for special guardianship orders if they could be guaranteed continued financial support at the same level and that the regulations should be amended to indicate this is allowed. Even when foster carers continued to receive financial support at the same level, there would nonetheless be a financial gain to local authorities from special guardianship, since the same level of social work support would not be required.

8. Young People remaining with their foster carer until the age of 21

For many young people in foster care, their foster carer may well be the most significant adult in their life. Many will form bonds which endure into adulthood. Yet in law, this relationship ceases to be supported at age 18. In the view of the Fostering Network, more should be done to ensure that foster carers can assist the young people they have fostered into adulthood, where there is a mutual desire on the part of the young person and the foster carer that this should happen.

9. Local authority care ceases for almost all children at the age of 18. What happens next is at the local authority’s discretion. For many young people, funding for foster care stops on their 18th birthday and they are required to move unless the foster carer continues to offer them a home for free. The vulnerability of young people leaving care is well documented.

10. In 2008, the Government set up the Staying Put pilot to assess the benefits of allowing children to stay in care and with foster carers past the age of 18. The £4.5 million pilot scheme enabled people in 11 areas of England to stay with their foster carers until they turned 21. The Staying Put pilots reported in February 2012 and showed that there were significant benefits to young people who chose to stay on. It demonstrated that having established family relationships and stability make a positive difference to young people in care as they become adults. However, there have been no moves to roll out the scheme nationally. This means young people are missing out on the opportunity to stay on in a supportive family environment. It has been left to councils to decide what level of provision to fund. This means that it is still only a power the local authority can choose to exercise, rather than a duty to provide a service that has been proved to be beneficial.

11. The Fostering Network would like to see an amendment to the bill to create a duty on local authorities to provide Staying Put provision for young people up to the age of 21 where this is mutually agreed by the young person and the foster carer. Children’s services departments should not be asked to bear the extra costs – rather all the costs borne by other services for less satisfactory arrangements should be considered and funding diverted to such schemes.

12. Strengthening support for care leavers until they are 25. The Bill proposes to strengthen the requirements on local authorities to promote the educational attainment of looked after children. We support these proposals but believe that the duty on local authorities should be extended to cover care leavers up to the age of 25.

13. In addition, the current guidance places a duty on local authorities to continue support for care leavers only as long as they are in education or training. This excludes the most vulnerable, who are less likely to remain in education or training. We want to see this duty of support extended to all care leavers.

14. Contact. Contact with family (birth parents, siblings, and wider family members) is one of the most important issues affecting the welfare of the child. There are rare exceptions when contact with some or all of these is not in the best interests of the child, but we support the principles of the Children Act 1989 that contact should be promoted unless it is damaging. Currently contact with parents is given particular priority, but we believe that consideration of contact with siblings, in particular, should be strengthened, and could be reflected in the bill. Managing contact arrangements is one of the key roles of foster carers.

15. Prohibiting contact is far more draconian than restricting it, and demands a far higher threshold of justification in terms of the welfare of the child (Children Act 1989) and in relation to proportionality under the European Convention on Human Rights. This is how it should be. Clause 7 of the bill strengthens the wording of the Children Act so that in the exceptional cases where contact is refused following authorisation by the court, the local authority need no longer strive to promote contact between the child and the birth family. The Fostering Network is clear that contact has to be refused in specific circumstances. S34(4) of the Children Act already allows a local authority to refuse contact, and in our view no new legislation is needed on this point.

15. Restriction of contact also has to be carefully considered. This may relate to the

practicality of arrangements as well as to their emotional impact on the child. In the Fostering Network’s view restriction of contact is already adequately governed by the principle of the welfare of the child, a paramount consideration under the Children Act, and by the concept of "reasonable" contact also contained in the Act.

16. Clause 7(4) empowers the Secretary of State to lay down in regulations the

issues to which a local authority must have regard when deciding whether

contact is consistent with safeguarding and the child’s welfare. It is our view that additional regulations are unnecessary and will fetter the discretion and judgement of the local authority whose decision can rightly be challenged in court.

March 2013

Prepared 8th March 2013