Private fostering
Section 44: Amendments to notification scheme
173.The law on private fostering arrangements and the role of local authorities with respect to them is set out in Part 9 of, and Schedule 8 to, the Children Act 1989 and in the Children (Private Arrangements for Fostering) Regulations 1991.
174.A privately fostered child is one who is under the age of 16 (under 18 if he is disabled) and who is cared for and accommodated by someone other than a parent, other person with parental responsibility or close relative. A child is not privately fostered if the person caring for them has done so for fewer than 28 days and does not intend to do so longer than that. There are a number of exemptions from this definition set out in Schedule 8 to the Children Act 1989.
175.The current legislative provisions relating to private fostering, referred to in these notes as the notification scheme, require those involved in a private fostering arrangement to give the local authority advance notice of it. Privately fostered children are not ‘looked after’ children in the terms of section 22 of the Children Act 1989 and local authorities do not get involved in the making of such arrangements, but they have to satisfy themselves that the welfare of privately fostered children in their area is satisfactorily safeguarded and promoted. They also have powers to impose requirements on arrangements and to prohibit them altogether.
176.The amendments in subsections (2) to (5) extend the duties of local authorities in cases where a child is proposed to be, but is not yet, privately fostered.
177.Subsection (2) amends section 67(1) of the Children Act 1989, under which local authorities are required to satisfy themselves that the welfare of privately fostered children is being satisfactorily safeguarded and promoted, so that the duty also applies in respect of children who are proposed to be privately fostered.
178.Subsection (2) also amends the duty on local authorities under section 67(1), which requires them to secure that such advice is given to those caring for privately fostered children as appears to the authorities to be needed. The amendment extends the duty to include advice to prospective foster carers and/or to parents. The intention is that local authorities should be able to give such advice, for example, where one proposed fostering arrangement has been prohibited by the local authority and no other is currently contemplated. The parents may need advice then on what alternative arrangements can be made for the care of their child.
179.Section 67(2) of the Children Act 1989 gives the Secretary of State the power to make regulations about visits by the local authority to privately fostered children and imposing requirements which are to be met by local authorities in carrying out their functions under section 67.
180.The new subsection (2A), inserted by section 44(3), provides that the regulations made under section 67(2)(b) may say what local authorities have to do when they are told that a child is going to be privately fostered. The intention is that these regulations will require local authorities to carry out proper checks on, and satisfy themselves of the suitability of, a proposed arrangement or exercise their powers to prohibit, or impose requirements on, the arrangement before the child is privately fostered.
181.Subsection (4) amends section 67(3) of the Children Act 1989. The existing reference in this section to a person authorised “to visit privately fostered children” was not very apt for a case where he is, under this provision, inspecting premises for children who are proposed to be privately fostered.
182.Subsection (5) amends section 67(5) so that the current duties of a local authority where it is not satisfied that the welfare of a privately fostered child is being satisfactorily safeguarded or promoted will apply in the case of children who are proposed to be privately fostered.
183.New section 67(6), inserted by subsection (6), gives the Secretary of State the power to make regulations requiring local authorities to monitor the way in which they discharge their functions under Part 9 of the Children Act 1989. It is intended that such monitoring might include keeping a record of notifications received, monitoring compliance with timescales for visits and recording any prohibitions or requirements imposed along with reports of any visits and the outcomes of notifications. This information could then be collated in an annual report to Local Safeguarding Children Boards. The intention of this provision is to increase the focus of local authorities on private fostering.
184.Subsection (7) inserts a new paragraph 7A into Schedule 8 of the Children Act 1989. This will require local authorities to raise public awareness of the requirement to notify the local authority of private fostering arrangements.
185.Subsection (8) provides that the new regulation-making powers inserted into the Children Act 1989 by this section will, with respect to Wales, be exercised by the National Assembly for Wales.
Section 45: Power to establish registration scheme in England
186.Subsection (1) gives the Secretary of State the power to set up through regulations a scheme for the registration of private foster carers. More detail of the scheme is provided in the rest of the section.
187.Subsection (2) provides for regulations to make supplementary provision relating to the registration of people for private fostering and sets out some matters in relation to which such provision can be made.
188.Subsection (2)(a) says that the regulations may make provision as to how a person applies for registration and as to the procedure to be followed by the authority in considering an application. It is supplemented by subsection (3), which highlights that the regulations may make it an offence for a person, in an application for registration as a private foster carer, knowingly to make a statement which is false or misleading in a material way.
189.Subsection (2)(b), which makes for provision in the regulations as to the requirements to be satisfied before a person may be registered, is supplemented by subsection (4), which sets out some detail of what these requirements might include. These are the requirements with which all prospective private foster carers will need to comply in order to be registered.
190.Subsection (2)(c), which concerns the circumstances in which a person is disqualified from being registered, is supplemented by subsection (5), which sets out in more detail the circumstances in which regulations may say that a person is disqualified. Subsection (6) allows the regulations to provide that the authority may determine whether a person is or is not disqualified. This means that even if someone might otherwise be disqualified the authority could decide that nevertheless they should be able to be registered.
191.Subsection (2)(f), which makes provision in the regulations as to the imposition by a local authority of conditions on registration and as to the variation or cancellation of conditions, is supplemented by subsection (7), which makes provision for what these conditions might include. These conditions are requirements imposed at the discretion of local authorities only on particular people. For example, a condition would be appropriate where a local authority wanted a particular person to do something to become suitable for private fostering (e.g. does something to their premises).
192.Subsection 2(j) makes for provision in the regulations as to other requirements that might be imposed on local authorities or registered persons. It is supplemented by subsection (8), which makes provision for a requirement that a registered private foster carer obtain the consent of the authority before privately fostering a child so that the authority can check on the appropriateness of the arrangement for that particular child. If the authority is not satisfied with the arrangements for that child, then they may prevent the care of that child with that private foster carer. This will not affect the registered status of the private foster carer. Subsection (8) also makes provision relating to the giving of such consent by the authority.
193.In relation to subsection 2(j), subsection (9) makes provision for a requirement that authorities undertake annual inspections in relation to registered private foster carers (whether or not they are at the time privately fostering children) and for the payment of fees by registered persons in respect of such inspections.
194.Subsections (10) to (13) deal with offences. Subsection (10) makes provision for regulations which may authorise a local authority to issue a notice to any person whom they believe to be privately fostering a child in their area while unregistered; and which may provide that a person would be guilty of an offence if, without reasonable cause, he/she continued to privately foster a child when such a notice was in force.
195.Subsection (11) makes provision for regulations which may provide for the offence of breach of requirements without reasonable excuse.
196.Subsection (12) makes provision for regulations which may provide for an offence where a person who is disqualified from registration fosters a child privately, unless he is disqualified because he lives in the same household as someone who is disqualified or in a household in which such a person is employed and did not know and had no reasonable grounds for believing that the other person was disqualified. This offence carries a more severe penalty, including possible imprisonment, reflecting the greater seriousness of the offence.
197.There is no offence merely for breach of a condition imposed by the local authority. If there was breach of a condition, the local authority would have to de-register the person before any criminal offence could bite.
198.Subsection (14) will enable the repeal of those parts of the Children Act 1989 which will be incompatible with the registration scheme and to add functions under this provision to the functions listed in Schedule 1 of the Local Authority Social Services Act 1970 (making them social services functions).
Section 46: Power to establish a registration scheme in Wales
199.Section 46 confers the same power on the National Assembly for Wales as Section 45 confers on the Secretary of State.
Section 47: Expiry of power in sections 45 and 46
200.Subsection (1) provides that if no regulations have been made under section 45 within fours years of Royal Assent, that section will cease to have effect at that time.
201.Subsection (2) makes the same provision for Wales.
202.Subsections (1) and (2) operate independently, so if regulations are not made in England within the four year period, the power in section 45 expires even if regulations have been made under section 46 in Wales (and vice versa).
Section 48: Child minding and day care
203.This section gives effect to Schedule 4.
Schedule 4: Child minding and day care
204.This Schedule makes minor amendments to Schedule 9A of the Children Act 1989 which was introduced by the Care Standards Act 2000.
205.Paragraph 2 enables conditions imposed by a court or tribunal upon a child minder or day care provider's registration to be treated in the same way as conditions imposed by the registration authority. This will clarify the status of conditions imposed by a court or tribunal and the enforcement action that may be taken by the registration authority if these conditions are breached.
206.Paragraph 3 makes clear that fees for registration as a child minder or day care provider are payable on application for registration and are non-refundable.
207.Paragraph 4 creates more flexibility in the way that the registration authority can levy ongoing fees by removing the requirement that fees be 'annual'.
208.Paragraph 5. Under Schedule 9A, a person may be disqualified for registration for child minding or day care. That has the result not only that the person may not be registered, but that he may not be concerned in certain ways with the provision of day care (paragraph 4(4) of the Schedule) or be employed in the provision of day care (paragraph 4(5)). However, disqualification may be waived (paragraph 4(3A)). The purpose of the amendment is to clarify that waiver of disqualification may be granted not only for registration itself but also for the purposes of the prohibitions in paragraphs 4(4) and 4(5).
209.Paragraph 6 removes the requirement upon the registration authority to make an assessment as to whether all persons looking after children are suitable to do so, and all persons living or working on the day care premises are suitable to be in regular contact with children. As part of its determination as to whether the applicant is qualified for registration, the registration authority will check that the employer has appropriate procedures in place to make suitability assessments, thereby enabling him to qualify for registration. The registration authority will continue to assess the suitability of the person in charge of a day care setting and to assess that the applicant is qualified for registration under section 79F.
210.Paragraph 7 provides that Part 10A of the Children Act 1989 does not apply to the provision of day care in a hotel (or other similar establishment) for children staying in that hotel where the day care is provided only between the hours of 6.00 p.m. and 2.00 a.m. and the person providing the day care (which could be the hotel or an agency) does so for no more than two different clients at the same time.
211.Paragraph 8. At present a person who is disqualified from registration for providing day care may not be concerned with the management of day care, or have any financial interest in the provision of day care. Paragraph 7 removes the prohibition on disqualified persons having a financial interest in day care, and limits the scope of the prohibition relating to management to disqualified persons who are directly concerned with the management of day care.
212.Paragraph 9 clarifies that unincorporated associations can be registered in their own name rather than in the name of individuals who make up a particular association. It ensures that enforcement action can be taken against the association as a whole as well as, where appropriate, against responsible individuals.
Section 49: Payments to foster parents
213.This section relates to payments made to foster carers in England and Wales.
214.Subsection (1) enables an order to be made making provision for the level of payments to be made to foster parents caring for looked after children placed with them by local authorities (including those with whom children are placed through independent fostering agencies) and to foster parents caring for children placed with them by voluntary organisations. Subsection (2) provides for such an order to be made by the Secretary of State in relation to England and by the Assembly relation to Wales.
215.Subsections (3) and (4) amend the Children Act 1989 to ensure that the discretion given to local authorities and voluntary organisations to decide rates of payment to foster carers is subject to an order under this section.
216.Subsection (4) of section 66 provides that the first order by the Secretary of State making provision for payments to foster carers must be approved by resolution of both Houses of Parliament.
