Joint Committee on Statutory Instruments Nineteenth Report


Memorandum from the Department of Health


1. The Committee has requested a Memorandum on the following points:

(1) Given that "foster parent" is defined in regulation 2(1) as a person with whom a child is placed or may be placed under these Regulations, explain the intended effect of the words "and except in Parts IV and V of these Regulations, includes any person who is not a foster parent but with whom a child is placed by a local authority under regulation 38(2)". Should not these words have read "except that, in Parts IV and V of these regulations, it does not include a person with whom a child has been placed by a local authority under regulation 38(2)."?

2. A foster parent is a person with whom a child may be placed under these Regulations, which establish a complex scheme to govern the approval of persons as foster parents, and the placement of children with them. Regulation 38(2) creates an exception to this scheme, permitting a local authority on certain conditions to place a child with a person who is not approved as a foster parent. These Regulations are to have only a limited application in respect of such a person, since it would defeat the object if Parts IV and V applied to them.

3. The Department agrees that the Committee's wording is preferable, but nonetheless considers that the intended meaning of the definition is clear.

(2) As regards regulation 39(3), explain how paragraph 19 of Schedule 2 to the Children Act 1989 qualifies the duty in regulation 39(2).

4. Regulation 39(2) requires a responsible authority arranging to place a child outside England to ensure, so far as reasonably practicable, that the requirements which would have applied under these Regulations had the child been placed in England, are complied with. Regulation 39(3), which restates regulation 10(3) of the Foster Placement (Children) Regulations 1991, provides that the duty in regulation 39(2) is, in the case of a placement of a child by a local authority outside England or Wales, subject to paragraph 19 of schedule 2 to the Children Act. By that paragraph, a local authority seeking to arrange a placement of a child outside England and Wales, must obtain, in the case of a child in their care, the approval of the court, and in the case of any other child they are looking after, the approval of all those with parental responsibility. A court may decide not to give its approval, or to make some other order instead.

5. Thus, regulation 39(3) provides an important signpost, indicating that compliance with the duty in regulation 39(2) is but one part of the overall picture, and that if paragraph 19 of Schedule 2 is not complied with, such a placement may not be made.

(3) As regards the effect of regulation 48(2) and (3) in relation to a failure to comply with the provisions of regulations 4(b), 6(3), 9, 10, 11(b), 43(1) and 45(5), does the Department wish to add anything to its memorandum of 21 January 2002 in relation to the similar point raised on regulations 11, 43 and 51 of S.I. 2001/3969, 3965 and 3968 respectively?

6. The Committee is referred to the Department's memorandum of 21 January 2001, to which the Department does not wish to add anything further.

(4) Explain the reference in regulation 48(4) to regulation 32, given that regulation 48(1) does not make contravention of that regulation an offence.

7. The reference to regulation 32 is inadvertent. It will be removed at the earliest opportunity.

4 February 2002

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