Private Foster Care - The Custody Minefield

Private Foster Care

You may have become aware of a campaign in the media advising doctors, schools and other organisations and individuals to advise Social Services if they become aware that a child (under the age of 16, or with a disability and under the age of 18) is living with anyone other than their parents for more than 28 days. Such an arrangement is referred to as ‘private fostering’ when those arrangements have been made informally by the parents. The title 'Private foster carer' is used for the people, other than family members, who have children live with them for more than 28 days at the request of the parent(s) or others with legal parental responsibility for the children.

The campaign is being co-ordinated by the British Association for Adoption and Fostering (BAAF) and has its own website www.privatefostering.org.uk.

Please be aware that the information on their website does not make clear that family members need not be reported to Social Services if they are caring for children. While there is a page which helps a child to identify if they are being privately fostered or being cared for by family members, that distinction is not repeated on other pages which an adult is more likely to refer to. It also does not define what a relative, or distant relative is.

The website is additionally confusing in that it gives an example of a warning sign should a parent turn up to school and say their niece or nephew is living with them. If the adult is genuinely the aunt or uncle, they are legally entitled to have the children live with them (so long as they have the consent of someone with parental responsibility for the children) without Social Services being involved.

The legal acts and statutory instruments which set out the law on these matters are:

The Children (Private Arrangements for Fostering) Regulations 2005

The Children Act 1989 s.66-70

Schedule 8 of The Children Act 1989 - Privately Fostered Children

Concerns about the children's welfare

If there are concerns regarding the children's welfare, then you should of course contact Social Services, but otherwise, the parents are legally entitled to ask a relative to look after their children without any involvement from Social Services whatsoever.

Who would be considered to be a relative?

A step-parent, grandparent, brother, sister, aunt or uncle (whether full blood, half blood or by marriage).

A child is not considered to be in private foster care if:

they stay with a non-relative for less than 28 days and there is no intention that they stay with that non-relative for longer;
they live in a property where there is also living either their parent or an adult with parental responsibility for them,
they live with a relative who has assumed responsibility for their care;
they are staying in a health service hospital, residential care home, nursing home or mental nursing home or in any other home or institution maintained by the Secretary of State;
they are at a boarding school.

Children are also not considered to be in private foster care if they are being looked after by the local authority, are in a children's home or live in accommodation provided by or on behalf of a voluntary organisation. Refer also to Schedule 8 of the Children Act 1989.

Guidance for non-relatives who are, or intend to be, private foster carers

I am not a relative, but the children live or will be living with me. What should I be doing?

If you are asked to be a private foster carer for children, and are not a relative (as defined above), you must notify the local authority of the intended arrangement six weeks before the children come to live with you.

If the children already live with you, or it is impractical to give six weeks notice due to circumstances (e.g. the parent is taken into hospital on short notice), you should notify Social Services immediately that you have been asked to care for the children.

You must also notify Social Services 48 hours before the children come to live with you.

What happens if I don't notify Social Services?

You are breaking the law, and could face prosecution.

When I contact Social Services, what information should I provide them with?

You should provide the following (or as much of this information as you are able to):

The name, sex, date and place of birth, religious persuasion, racial origin and cultural and linguistic background of each child who you intend to privately foster;
Your name and current address and any addresses where you have lived in the last 5 years;
The name and current address of the parents of the children and any other adults with parental responsibility for the children (and if different, the names and addresses of the people with whom the children lived beforehand);
The names and current addresses of any siblings of the children and the arrangements for their care (in the event they are not also coming to live with you);
The names and addresses of any other people who are or were involved (directly or indirectly) in arranging for the children to be privately fostered;
The date upon which the private fostering will start, or did start;
How long it is intended that the children will live with you;
Any offence of which you or anyone in your household or employed within your household has been convicted;
Any prohibition placed on you or any other member of your household (including employees) which prevents you from being a foster carer.

Does anyone else have a duty to notify Social Services of the indended or actual foster care arrangements?

Yes. The parents must notify Social Services (as must any other adult with parental responsibility who is aware of the arrangement) as soon as they become aware of the arrangement. The parents (and any other with parental responsibility for the children) must also notify Social Services 48 hours before the children are due to become privately fostered.

In relation to the children's care, what should I be doing?

Ensure your plans have considered the following:

Where the children will go to school;
How they will keep in contact with other family members;
How they will keep in contact with friends;
Which doctors surgery they will be registered at;
What, if any special dietary requirements the children have;
The suitability of the children's accommodation;
How you will meet any special needs that the children have;
How decisions will be taken regarding school, medical treatment etc;
How you will manage financially;
How you will cope with such things as collecting/dropping off to school;
How you will cope should you or they be ill (e.g. what practical support do you have);
What arrangements you have made regarding the children's religion and religious practice.

After having been notified, what should Social Services do?

Initially, Social Services should:

Visit your home.
Speak to you and all members of your household.
Speak to the children concerned (unless the Social Workers deems this inappropriate e.g. due to their age and understanding).
Conduct an assessment which should consider whether the children's needs and welfare will be met under the proposed arrangements e.g. is the accommodation suitable, what will be the impacts on the children's schooling, will any special medical or educational needs be met, are you capable of meeting the children's needs.
That there has been consideration as to financial matters and contact between the children and adults with parental responsibility for the children.
Speak to, and if possible, visit every adult who has parental responsibility for the children.
Check that no member of your household has been barred from fostering a child.

What happens if Social Services feel I am unsuitable to be the children's foster carer?

Ask them to provide you with a written report explaining why. You can make an appeal to the Court, should you wish to do so, under paragraph 8 of Schedule 8 of the Children Act 1989. Your appeal must be made within 14 days of your having been notified of Social Services having refused your being the children's foster carer.

You can also appeal to the Court if you feel that any of Social Services conditions or recommendations are unreasonable.

Once the private fostering arrangement has commenced, what will Social Services role be?

Social Services should:

In the first year of fostering, visit the children every six weeks, and in the second year, visit at least every 12 weeks.
Additional visits should be made if requested by the children, the private foster carer or any adult with parental responsibility for the children.
The Social Worker should see the children on their own unless the Social Worker deems this to be inappropriate.
When visiting the children, the Social Worker should satisfy themselves that the children's welfare needs are being met.
Produce a written report after each visit.

Should I inform Social Services of changes in circumstances?

Yes, and in particular, you must notify Social Services if:

Your address changes;
Anyone in your household (including employees) is convicted of a criminal offence;
Anyone in your household (including employees) has been disqualified from being a private foster carer;
Anyone ceases to be a part of your household (employees leave or are sacked, or if a member of the household moves out);
The private foster care arrangement comes to an end, and provide Social Services with the name and address for the children's new carers, and explain their relationship to the child (e.g. the children have gone back to live with the parents).
The children will be staying with someone else for more than 27 days. In these circumstances, you must provide Social Services with the name and address for the children's new carers, and explain their relationship to the child.

You should inform Social Services of any change in circumstances in advance of the change happened, or at least within 48 hours of the change having taken place.

The parents, and anyone else with parental responsibility for the children should also notify Social Services if their own address changes.