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Looked After Children (Scotland) Regulations: Analysis of Responses to First Consultation

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Along with answering the questions that followed after every regulation, respondents also provided general comments on the regulations.

The comments were as follows:

Respondents wondered if the draft regulations were sufficiently restructured? A number of agencies commented that the place of residential care alongside foster care as a placement option was not fully reflected.

Care planning process: comments were made which reflected both whether the terminology made sense to the children or young people concerned - especially when they remained at home under supervision - and also whether the definition should be refined with clearer definitions of 'children placed by the local authority'; 'looked after child' and 'accommodated child'.

Respondent(s) raised the question, "Do we need to establish agreed terminology for children who are at home or with kinship carers that reflects their reality e.g. supervised with parents or supported with relatives/friends?"

Respondent(s) also raised the question, "Would a better division be into the 3 main groups of children for whom the local authority has statutory responsibility and within these groups regulate the appropriate care planning process, information to be gathered and reviewing arrangements with the relevant attached schedules?"

Current regulation 18 - Monitoring of placement and regulation 19 - Termination of placement are not reflected.

Regulations on residential establishments: response from SIRCC focused on a specific concern following the impact of changes brought in by the Regulation of Care Act 2001 in relation to independent providers.

A couple of responses drew attention to the overall length of achieving permanence/adoption for young children, quoting examples of the process in America. Would require timescales which covered both the care planning aspect in these regulations and also the subsequent steps through the adoption panel, role of the Children's Hearing and the completion of the legal process which will be in the other regs.

Also comment in relation to fostering panels, about consistency with the composition and operation of adoption panels.

"In line with the GIRFEC agenda and concern about early effective intervention, what is happening about vol. 1 of Scotland's Children which set the scene for this early assessment and intervention?"

The definition of 'child' in Part 1 of the 1995 Act was to someone under 18. The definition in Part 2 is as given in the consultation document on page 17. One concern was the definition of the age 16 and how it related to the school leaving age which has implication for the throughcare and after care provisions.

Multi-agency working - A number of responses made considerable reference to multi agency working and the need to be clear about respective responsibilities. This particularly referred to health, especially access to mental health services, but also to the education responsibilities of the local authority.

One response referred to the situation in the Republic Of Ireland where apparently health services have a requirement to give priority to LAC children in accessing services. Another alternative may be to consider strengthening the availability 'in-house' for specialist advice e.g. child or clinical psychologists and educational psychologists dedicated to 'looked after' children.

One respondent (?) raised the question, "If the main concept is of a multi-agency Child's Plan based on a single shared assessment, then where does the overall responsibility lie for ensuring that all elements of the plan are carried out by all the different agencies?"

Comments both from the part of the local authority responsible for the care plan for a looked after child and also from some agencies focused on groups of vulnerable children wanted more 'clout' on behalf of 'looked after' children, but what is possible if the care plan is only one element of the overall plan? Or can the primary responsibility for the care plan for this group give at least some of this clout?

The following sections are responses to the Consultation Questions

Part I - GENERAL

Regulation 1 - Citation and commencement and Regulation 2 - Interpretation

Q1. Please consider the definitions and comment as you feel appropriate.

Comments made by respondents included:

There was a general consensus on the need to use the term 'kinship care/rs' rather than relatives/ relative care/rs and the question, " will widening the group have knock on implications?" was raised.

Respondents asked if 'a definition of private fostering, covering kinship arrangements where children are not looked after and not with a defined 'relative' should be included'?

'Registered fostering service' - add 'independent fostering provider' along with voluntary organisation.

Under ' parent', clarification was requested about the definition of 'father'. Does this include fathers who are not named on the birth certificate/may not have parental responsibilities (which has changed) and how would you then define?

'Relevant person' was defined under the 1995 Act, but has been open to question. The Children's Commissioner provided fuller information on the subsequent ruling which allowed some foster carers the status of 'relevant person'. Some further clarification is needed about this definition and also how this affects the definition of 'foster', as it states this refers to someone who is not a relevant person.

One respondent had concerns around definitions which did not take into account the Regulation of Care Act 2001, with particular reference to 'fostering agency', 'registered fostering service' and 'residential establishment'.

Part II - PLANNING FOR LOOKED AFTER CHILDREN

Regulation 3 - duty of local authority to make a care plan in respect of a child

Q2. In line with Getting it Right for Every Child, we have been asked to consider using the term 'child's plan'. Do you agree with this suggestion?

Responses were divided fairly evenly into three - those who on balance wanted to keep ' care plan', those who preferred ' child's plan' (with the option to call it the young person's plan) and those who suggested another variation. Many comments reflected various views around whether or not they liked the terminology or thought it would be preferable to young people. Others were concerned that the change would lose some recognition of the need to plan work with a child's family as part of meeting the child's needs.

Comments made included:

Appears more complex than simply changing terminology and replacing 'Care Plan' with 'Child's Plan'.

These regulations are about the specific area of care planning for a child 'looked after' by the local authority.

A question raised was;

"Would 'Child's Plan' refer to the whole multi agency process which may have existed before there was consideration of the child becoming looked after, rather than the plan that the local authority must develop in relation to its responsibilities to children for whom it now has statutory responsibility?"

Q3. Statistics published in November by the Scottish Government indicates that 25% of looked after children do not have a current care plan. How could regulations be strengthened to ensure this important requirement is met?

Any alterations to the regulations that reflect the comments about what constitutes a robust assessment and care planning process should contain elements that would lend themselves to inspection.

One respondent identified the problem of identifying the plan. It may be spread amongst various reports and in different parts of files. However, the aim should be one assessment, one report, one plan - clearly identifiable within the child's records.

The nature of the planning process does not always fit neatly with these regulations. The regulations are about collecting certain information and making a care plan. The process itself is about evaluating and analysing information and making a quality assessment. Need to ensure consistency in relation to both the terminology about the assessment process - terms such as the Integrated Assessment Framework; a GIRFEC assessment; a comprehensive assessment, emerged amongst others. How do these fit with timescales and appear in care plans?

One respondent indicated that they have no locus to inspect and wondered "how would we propose to monitor compliance?" Some agencies suggested that inspection provision should be introduced.

Second, the different elements that formed part of the care plan. There was reference to initial arrangements in planning a placement, an action plan for next steps in the intervention, long term planning and the ongoing multi agency responsibility for a child's development in the different domains.

One option would be to add in 3 (2) (a) some reference to the need to evaluate and analyse the information gathered and form an assessment. It could also help to clarify the key aspects of a care plan in more detail in 3 (1) (a) and make provision for the actual care plan, which is likely to be a summary of the assessment, and the documentation of the assessment itself to be clearly identifiable and accessible for each child. This is an area which would lend itself to fuller attention in guidance.

It was suggested that "a revision of the LAC materials would also help". If the general comments about restructuring in relation to different groups of 'looked after children' are taken further, this would also address the comments made about distinguishing between the different contents of a care plan for those at home and those who are accommodated.

Comment was also made about the value of accountability and staff supervision within local authorities and was suggested that this could be covered in guidance.

One respondent looked for good agency monitoring and adequate resources rather than more regulation.

Q4. Should the regulation contain a timescale e.g. 2 weeks by which the care plan should be drafted?

This question received a mixed response, reflecting both the aspects of a care plan that respondents had in mind and also finding the balance between avoiding delay and ensuring the quality of the plan.

Comments made by respondents included:

Timescales for the initial plans following accommodation were proposed in days, particularly by children and young people who needed to know what was happening.

One respondent suggested, removing the term 'so far as reasonably practicable' from the beginning of regulation 3. Assume this means there should be some written initial plans as a starting point in any situation. This would fit with another comment from another L.A. about 'sound and considered planning from the point of engagement with child and family'.

A number of responses reflected the need to set expectations that assessments were completed quickly and that action plans were made which identified what needed to happen, within what timescales, the resources required for interventions and the hoped for outcomes.

Q5. The regulation states that the information about the child in Schedule 1 should be obtained and recorded. Should anything else be added to Schedule 1?

There were a number of respondents who were content with the regulation as it stands. However, there were a range of responses suggesting a number of additions.

Some comments made by respondents include:

Schedule 1 (unlike Schedule 2) is not in 2 parts, separating what is required for all children and the additional information needed if a child is accommodated.

Various comments were made about information gathered on other people. Point 1 in Schedule 1 asks for details of relevant people, while 8 refers to 'significant'. Information required about both as well as clarity about the distinction! (further comments here re. interpretations of 'relevant'!).

In point 7 of this schedule, it was noted that it may not be appropriate to note whereabouts of siblings placed for adoption.

Suggestions made by respondents included:

A number of respondents wanted to see some specific reference to the views/wishes/understanding of the child and the parents to the overall situation and to the different information gathered within this schedule.

Some of the responses seeking much fuller detail in Schedule 1 linked this to the sort of information that would be gathered in making a full assessment, such as a chronological history and genogram; the components of the Assessment Triangle; using the GIRFEC headings of safe, healthy etc. and following those lines. It may be helpful to reach a view on the preferred framework for an assessment and include that.

It was suggested that this should cover the comments seeking more detail about other health and development aspects such as mental health (a recurring concern), child's emotional functioning and also details of other people who may have cared for the child in the past, key people in the child's life - friends and activities, contact with the Children's Hearing, any history of offending. If the Schedule gave a clearer steer on an assessment framework much of this could be incorporated in guidance.

Some of the additional information suggested had particular relevance for choosing an appropriate placement: such as any risks posed by the child to others, or that would place a child at risk in certain placements; any individuals that should not have contact with the child; written permissions for school trips, holidays etc.; actual medication, allergies, dislikes, pets.

Other information might be relevant regardless of whether the child was at home, with kinship carers or accommodated, but the pace of gathering it might vary depending on whether it is part of the assessment process over a certain time period or would have immediate implications for placement.

Areas such as sexual orientation, sexual health and lifestyle issues would come in here, as would aspects of disability, such as means of communication, support services required; exposure to known causes of harm such as trauma or abuse; significant behavioural or care issues that would affect placement and how they would be managed, but which may also be a significant reason for involvement with a child at home.

It was also noted that in relation to long term planning, there may be family members not currently involved or significant to the child but may become an option if the child is accommodated. A change of wording may help open this up with more detail in guidance.

Reference was also made to the wording in regulation 3.2.(c) and getting the balance right between ensuring that every effort is made in finding out if there is an appropriate placement for a child with kinship carers but also acknowledging where there is risk, where it may not be in the best interests of a particular child - or extraneous reasons such as cost may feature. (?guidance)

Other points made were;

more detail about different names people may be known by;

specific details on contacting individuals - both family members and professionals such as GP, health visitor;

'ethnicity' should now be used in place of 'race' and 'culture' added.

Q6. Should adherence to the Code of Practice on records management be specifically mentioned?

Respondents were generally favourable to including this. Some expanded this by indicating the value of dialogue with other disciplines and suggesting that even across a local authority there may be different views that could helpfully be discussed if there is to be informed ownership. More detail of what this involves could be provided in guidance.

One respondent indicated that this may not be straightforward, referring to the 8 principles of Data Protection and the principle of holding only the amount of personal information as is absolutely necessary.

Not specifically in response to this question but in considering later who got copies of the care plan in writing, there was comment on the need for a policy on destruction of paper records no longer required.

It was suggested that any regulation should be included in Part VI - records.

Regulation 4 - matters to be addressed in a care plan

Q7. Is the list in Schedule 2 complete? If not what needs to be added?

One respondent commented that there is no reference to the Single Shared Assessment. Attention was drawn in one response also to reg. 4 (1) (c) and the implication that in an emergency placement the more limited information in Part 1 of Schedule 2 was required.

Suggestions made by respondents were as follows:

Should be a comprehensive list of the prescribed contents of a child's plan, clear statement of the child's needs and how they will be met with a list of services

Part 1, Point 1 - add in the need for a contingency plan.

A number of additions were suggested to Part 1 point 2, including needs arising from the child's ethnicity, culture, religion and language. Health needs should cover mental health with any therapeutic needs, ophthalmic and dental needs. Could consider social and leisure needs.

Part 1 - include a statement of the intended outcomes with clear milestones of what needs to be done, targets, indicators and repercussions of not achieving these. Need to distinguish between immediate needs and the longer term planning.

The health service should be listed in Part 1 point 3 (are there complications in such references to services from agencies who are not directly responsible for the care plan?).

Should be more specific reference to the responsibilities of different parts of the local authority? What about other agencies who may have responsibilities for services - such as voluntary or independent providers? Query here about the use of 'relevant person'.

Views of the child and those with parental responsibilities on the plan need to be recorded.

Some of the comments could be incorporated in wording changes - here especially strengthening responsibilities - and the more detailed comments covered in guidance. The term 'corporate parenting' came up with a request to define this and also querying its source. As it does not occur in the regulations, it would not come into the interpretation, but the concept could be included in guidance.

Add in proviso to withhold the address of a child from certain individuals if the safety of the child indicates this.

In Part 2/Schedule 2, point 6 could be rephrased to clarify the position of (foster) carers.

Point 7 - contact is a complex area that may need more guidance. A particular point raised (by the Children's Commissioner) referred to availability of confidential telephone contact with a trusted person for children in residential/ secure units.

Point 8 - reword to emphasise wherever possible the arrangements should end in a planned way and in line with the plan to secure the stability/permanence of the care of the child or transition to adulthood.

Q8. Do we need to add anyone else? Should there be any caveats or exceptions e.g. for child protection purposes?

One respondent raised the question, "What about those bodies who have responsibility for providing the services listed in the plan?" Overall bodies, such as health and education (service provision) and the particular providers such as schools or colleges. They may, however, require only those parts of the plan relating to their role.

Respondents commented as follows:

Depending on ability to participate, the child should be included in the list of people to agree the plan and their views should be sought on who receives a copy, e.g. where other people are expressing an interest and asking for the information (the grandparents' self help group wished for access for grandparents where they have been interested and involved but are unable to provide care).

The caveats were around withholding the information where there were child safety issues. This should be clearly recorded, both to ensure protection but also to document the status of concerns where there are allegations but limited information about the substance of that or possible malicious allegations. Could be covered in more detail in guidance.

Various members of the family network might have a role in the plan, not only those offering direct care. Issues raised about a heightened need for sensitivity about the privacy of the child and the parents when the child is placed in the wider family/community.

Space for both more flexibility in who should have access to the plan, with reference to those with a professional service delivery need and those who matter to the child where the child agrees and also appropriate safeguards. More detail could come in guidance.

A respondent raised points about the purpose of seeking agreement and the consequences of non agreement, when implementation may only have a chance of being possible if supported by compulsory measures. Non-agreement is likely to require changes of plan. Guidance may need to address these situations in more detail as they are fundamental to the potential conflicts between the local authority responsible for the care plan and the Hearing where the consequences are often contested.

A respondent noted that 4.4 and 4.6 included reference to 'parents', but in reality these may be estranged parents with different views.

Another response raised the question of parents whose responsibilities had been removed. This question also brought up further questions about the definition of 'relevant person' as it used the terminology in the interpretation in the 1995 Act about the 'person ordinarily with charge or control..' minus the caveat about 'by reason only of his employment'.

Regulation 5 - considerations to which a local authority should have regard in making a care plan

Q9. Government is keen to ensure children and young people are enabled to participate in planning and decision making around their care, for example through independent advocates. Is this an area that should be covered in these regulations?

Comments made by respondents were as follows:

Regulations should recognise and emphasise the rights of children to be involved and the provision that would enable this to happen.

There could be direct inclusion of the right of children to information about the options available to them to express their views, including advocates (but not exclusively) and also the requirement to ensure this is child friendly and age appropriate.

One of the respondents thought that it should be enshrined that a child is entitled to have a representative at discussions about their care plan who is not the Named Person under GIRFEC but seen as completely independent.

Guidance should discuss in more detail all aspects such as when a child needs a known, trusted person and when that person needs to be seen as 'independent'.

There was also a detailed response received from a respondent about 'access by children to legal advice, legal aid and the use of legal practitioners in certain circumstances' . It was suggested that this could be expanded in guidance.

Regulation 6 - considerations to which a local authority shall have regards in making a care plan for a child…where the local authority are considering placing the child

Q10. Are there any further matters that need to be considered when placing children elsewhere than with their parents?

Comments made were as follows:

Support for the intention in the consultation document to include 'racial and cultural heritage' alongside religious persuasion in the final regulations - with the proviso that the term 'ethnicity' is used in place of 'race'.

Regulation 6 should also include reference to having regard to distance; existing relationships of importance to the child; community ties; (positive resilience factors); additional supports needed in school, access to specialist services (medical, therapeutic); communication needs (English not first language), communication difficulties; sexual orientation; social and emotional needs/level of functioning. (Much of this mirrors the additional information sought about the child in Schedule 1).

Regulation 6.(1)(d) should also apply to placement in foster care - reflects the general point about incorporating both residential and foster care in this Part in relation to care planning.

Also a couple of comments about continuing the integration of kinship care by including a reference in regulation 6. It does come in regulation 3.2.(c) but the general comments about restructuring the regulation bearing in mind the different groups of 'looked after' children are relevant here.

Regulation 7 - review of children's cases

Q11. Do you agree with the 6 month timescale? If not what would you propose and why?

Regulation 8 - time when a case is to be reviewed

Q12. Do you agree with these timescales? If not what would you propose and why?

Q13. We believe there is scope for improvement in the process here and would be interested in your comments.

Regulation 9 - review of a child's case: permanence order

Q14. Do you have any comments?

Comments made by respondents;

Need to clarify how regulations 7 and 8 work together, as regulation 7 indicated that in carrying out a review the LA should make a plan for the long term needs of a child within 6 months, which some respondents interpreted as a 'six month review'.

Do the reviewing requirements in regulations work together in tandem with best practice in care planning and reflect the key concerns at different points in the process? Need to ensure that in writing these regulations, there is clarity about the potential purposes of reviews at different stages and that the timescales reflect this.

For young people especially, 6 weeks to the first review seemed a very long time.

In many placements there may be issues of the appropriateness of the placement emerging from the reality. There were a number of comments later about availability of choice when a child is accommodated and the impact on both the child and on others in the household or unit providing the care.

There are also frequently issues around the immediate arrangements made either for services such as education or health or contact that need reviewed fairly quickly.

A number of respondents commented about the need to avoid delay and facilitate a robust planning process.

Some agencies appeared to use extra reviews to keep this moving initially whereas others used other forums. Comments such as those from the Grandparents self help group stressed the need for the process to be transparent and all stages clearly recorded and shared as appropriate. As the reviewing system is a formally recognised mechanism which is regulated it should dovetail with the care planning.

Need to recognise the various steps contributing to the care plan, such as assessment - both the specific areas that are the concern of the LA, relating to their area of responsibility, the decisions they must make about safe and nurturing care for children and also the multi agency aspects.

This should be followed by a plan for intervention with clear objectives; explicit agreements with parents and child as appropriate about what needs to change etc.; how that will monitored and then the next steps depending on whether the initial expectations are met.

The regulations as they stand provide timescales which are important but offer little about the purposes of the reviews at different stages. One specific suggestion made, for example, was to state that a draft plan should be prepared for submission to the 6 week review.

How well do these regulations and timescales fit with Hearing reviews and other responsibilities? When was an extra review by the LA required in relation to the Hearing requirements? The normal reviewing system should be aware of the role of the Hearing and addressing any issues already where a referral to the Reporter is required under 73 (4).

It would be helpful to check that these two systems can operate effectively without unnecessary additional meetings. One particular comment related to 8 (3)(b), which was obviously added to include the planned permanence order, about whether it would be necessary to apply to the principal reporter if a child was not already on supervision ( e.g. accommodated on a voluntary basis).

Some comments questioned the combining of the review regime for children placed and not placed within the same regulation and suggested separating them for clarity.

There was a counter query about why there were differences and whether all children should be reviewed in the same way regardless of where they were living. There may not be the issues around initial arrangements for children who are separated from their parents or any queries arising from the placement chosen, but the need to move forward the assessment and planning process is equally important if necessary changes, outcomes and services required to achieve these are to be identified and implemented quickly.

A range of views about frequency of reviews when there was a permanence order (some of this could also apply to short term placements in respite care). This was around getting the balance between sensitivity about not over regulating and reviewing situations where that could feel incongruent with the aim of stability and security in the placement but having some 'bottom lines'.

Most respondents felt comfortable with once a year, with the option for an extra review if there was an issue.

Need to define the purpose of reviews at these later stages - at this stage, the care plan should be set and the whole purpose of a PO would be that the secure base for a child is finalised. Anxieties about unsettling a placement may be reduced by explicit recognition in regulations that this type of review may be about support needs or the child's overall development and needs but not about re examining the 'care plan'.

Allied to this were hesitations in commenting in any detail on this aspect of permanence orders without access to the draft regulations anticipated for these. In particular this related to the wording about 'agreement' as it is anticipated that this will not be only area where there may be disagreements and how disagreement is handled will be vital.

If children are looked after at home, those placed with kinship carers and those accommodated by the local authority are separated out in relation to the assessment and care planning process, the review requirements could link specifically to this with a clearer connection between what needs to be done and reviewed and the appropriate timescales for this.

If the current structure is considered adequate, then there is still a need to look at regulations 7 and 8, ensure that the different timescales fit together, that there is a sensible link with the requirements in relation to the Hearing and that any variations for different groups such as those looked after at home or reviews following a permanence order take account of the responses received.

Possibly schedules and certainly guidance could lay out more in relation to the purposes of reviews at different stages and best practice in making best use of the review arrangements.

Regulation 10 - Recording review information

Regulation 11 - Health requirements

Q15. Is this provision satisfactory for identifying needs and ensuring they are met, particularly while the child is looked after and accommodated?

Generally responses reflected the wish to be judicious about the extent to which children where actually examined and the need to be sure that was necessary.

Respondents made comments that include the following:

Attention was drawn to the provision for the consent of older children and that this should be clear at the outset in regulation 11.

There may, however, be cause for an actual examination where immediate medical information in needed to ensure that any urgent medical needs are met in a placement and also to document a significant deterioration in health. It was considered an examination within the last 3 months 11.(1)(b) did not make sense, as circumstances may have deteriorated considerably in that period - which may be precisely why the child is being placed by the LA.

In a planned placement, there was more likely to be parental cooperation with establishing the child's health needs. An examination in an emergency placement with parental opposition may add to the existing stress for a child. In some of these situations, however, medical information and evidence may be necessary. This would suggest a need for some flexibility around actual examinations in regulations, but emphasis on the need for a comprehensive health assessment within timescales and expansion in guidance. Any necessary examinations could be included when a child was less stressed.

A different dimension related to children with complex disabilities who may be using short term placements . This may require a lot of work prior to a placement, not only in drawing together the medical information, but also in explaining this to respite carers and where necessary providing training. One suggestion linking this regulation with regulation 15 was about the extent to which these children may already be reviewed because of their health and education needs and how this would fit with 'looked after' reviews that acknowledged the 'care' element' without over-reviewing'.

In relation to the medical assessment, the use of the term 'registered medical practitioner' was queried because of the growing and valuable role played by 'looked after' child's nurses. This emphasised the broader 'social' model of assessment of health needs, ensuring it covers both the full range of health needs where children may need attention such as ophthalmic, as well as medical and dental aspects and particularly the whole range of mental health and lifestyle needs.

This widens the regulation on health requirements beyond direct medical treatment needs, to the broader responsibilities for attention to healthy lifestyles. It also recognises the importance of mental health and therapeutic dimensions as part of the whole gamut of emotional, social and behavioural challenges within the looked after population.

A couple of additional comments in this respect focused on particular issues of concern about services to secure units - particularly 'home visits' there, and more generally the clear responsibility for services when children were placed at a distance and across the boundaries of different Health Boards.

Regulation 12 - Notification of occurrences involving the child

Regulation 13 - Death of a child

Regulation 14 - Arrangements for child to be cared for by parents

Regulation 15 - Application of regulation to short term placements

Q16. Are these provisions appropriate and efficient?

Comments/suggestions made by respondents were;

12 - is this sufficiently comprehensive or does it set the bar too high? One example given was an expectation that the authority would be notified if a child was more that 5 days out of school. Another example was notification of a child protection issue in the placement affecting the child.

12.(1)(c) what is the definition of 'without lawful authority'?

12 (2) - should there be any caveats about notifying a particular person if there are safety issues?

13 death of a child - should be guidance on 'notifying Scottish Ministers'.

Should notification to 'parent' also include 'anyone with parental responsibilities? Also suggested that there should be a cross reference to Protecting Children and Young People - Interim guidance for CPCS conducting a significant case review (possibly in guidance?)

There was also a suggestion that where parents cannot be contacted, special attention should be paid to the information about the child's religious persuasion and appropriate notifications made especially where certain rituals are important within a short time period, or there are religious practices that are important for siblings who may also be known.

It was suggested that regulations 12 and 13 should come after regulation 15.

It was also pointed out that notification to the Care Commission needs to be added.

The grandparents support group also brought up the question of other relatives. Much of this would be better in guidance where there could be more about understanding the family network, what child's views are generally about their involvement, who is key etc. This response also referred to relatives potential to help such as contributing bone marrow.

Regulation 14 - wording caused some confusion. In particular 14 (2)(b) where there was concern that this could be read as a blanket ban where children where removed a long time ago and circumstances had changed considerably. Can a child go back to a parent from whom they were removed under the conditions specified? Or should 'was' read 'is'?

A further comment related to what was meant by 'care for' as in some instances contact arrangements may be significant but when would these be termed as 'caring for the child'?

SCRA raised the compatibility of 14 1. with Sect. 26 of the 1995 Act and whether it fits with the approach of placement within the wider family wherever possible.

Regulation 15 - some concern that this regulation could imply the need for annual care plans. Some responses found this regulation cumbersome. Reference to minimum bureaucracy while providing safe care and the recognition that many of these respite placements last many years, whilst on the the other hand, some of these placements may involve a series of different short term placements with different service providers.

Regulation 16 - was noted that this was similar to the old regulation 7, but did not include notification to education. If this was added there could also be more in guidance about involving the specific schools or colleges.

Also a general comment about ensuring that notifications also cover all moves and changes of school/ health needs and not just when initially placed. Equally it was hoped that the proviso in 16.2 for placements under 28 days should not weaken the need to make those notifications in the sort of circumstances in 16 2.a and b.

Part III - PLACEMENTS

Many of the responses here demonstrated the concern expressed in the general comments under point 1 about what applies to all placements in foster or residential care.

The second point arising here relates to the inclusion of kinship care and whether some aspects of the schedules etc apply to all types of carers or whether sufficient space is made for developing a service more tailored to the needs of kinship carers. At present they do seem to be treated the same with the same schedules etc. This may or may not be compatible with the work of the task group on kinship care.

Regulation 17 - Decision to place a child in a foster placement

Q17. Do these cover the requirements in full? If not, what is required?

A number of respondents felt that the wording could be clearer and questioned the need for two sections within 17. This was thought to come from adding in kinship care but using different terminology in the different sections about foster carer, carer and family member.

Questions raised by respondent(s) included;

" Are sections 1 and 2 expected to apply to different situations and if so what are they?"

"Should regulation 17 be headed as relating specifically to planned placements?"

"What about the child's view and any choices they have?"

Suggestions made by respondents included;

Differentiating between 17 .2. and emergency placements under regulation 18. It was suggested that stipulations in regulation 17 include that there has been an assessment of the child's needs and that they cannot be met using resources other than placement.

If planned placements are covered in regulation 17 there should be the opportunity to explore family network but there may also be a need for parallel planning - more about doing this could be covered in guidance. When the child is not to be placed with a family member there is a need to account for the decision reached and record the reasons.

Some suggestions for wording in regulation 17 related to further issues that needed covered in deciding that the placement is in the best interests of a child - such as type of placement, views of child eg pets etc factors about the child - ethnicity, religion, sexual orientation etc. information about other children in the proposed household, impact on others in the placement.

One respondent suggested to think about a schedule and add something about the information needed about choosing a placement if a child is being placed away from home and adding something in this regulation about that schedule.

Q18. The Scottish Government propose to accept this recommendation from APRG. Do you have any comments?

All respondents, but one, agreed with the proposal to accept the recommendation from APRG. The one opposing comment was from one of the two faith-based responses. A number of replies simply said 'yes' and agreed with the change. Others assumed it would happen.

Some of the respondents who supported the change provided comments as follows:

Those respondents who had a particular interest in this area, emphasised the equality dimension. There was a strong sense of urgency amongst these responses.

The others were from the potential service delivery agencies who brought up some points that could be covered in guidance such as training for social workers, panel members and agency decision makers and also practice issues around including and managing the views of children, young people and their parents.

Q19. Do these Schedules contain all the appropriate material that a carer and an agency need to have discussed before the child is placed with that carer?

Comments made by respondents included:

In relation to both schedules there was comment on the wording 'as if the child was a member of the carer's family' - this is long standing terminology. In relation to foster care it does not take into account training and approaches to foster care especially around safe caring which reflects what may need to be managed differently with looked after children.

For the current strategy of incorporating kinship carers then the statement of the intent about treating the child as part of family sits ill as that is why they have become involved!

A general comment related to information about areas such as drug/alcohol misuse or other aspects of family history where there may be safety issues.

Use of these schedules - it was pointed out that they are not just discussed but are written and signed - more details could be given in guidance?

Comments on schedules were limited as the intention was stated to have a separate schedule for kinship carers but this was not here. Various comments were made about the status of kinship carers and their responsibilities v-a-v foster carers. Highland noted that foster carers are members of t FN and get extra insurance cover as carers.

Schedule 3 does not include the child's views.

Comment was also made here about what to do prior to an emergency placement with unapproved kinship carers. - eg. interview proposed carers; details of members of household; check if child minder (effect on registration?); inspect accommodation; departmental checks; confirm they are a relative or friend; obtain permission for other checks; provide information about references needed and further steps in the process. Where should this come?

Schedule 5 - Note the heading of this schedule was 'foster PLACEMENT agreement' The content is taken from the existing foster CARER agreement and was generally treated as such apart from those responses which that assumed it was a mistake! There is no equivalent to the placement agreement. This also links with the question on regulation 21 and the information given to anyone caring for a child.

Some comments here were about the range of foster carer approval - numbers etc and link with going over numbers. Some issues about managing this need to be in guidance but there is a need to think about what should be in regulations here.

Should the care agreement include notice from carers who wish to terminate a placement and reasonable expectations eg re. transporting children to school? Another suggestion was the possibility of at least one unannounced social work visit a year. ADSW - suggested rewording schedule 5e to say the carer will support the child in transfer to another placement. TFN made similar comments about negative wording - it should be about obligation to support transition etc.

In relation to the obligations to support foster carers it was suggested that Schedule 5 should include information about the out of hours service and what provision the fostering agency have in place to handle emergencies, both directly to support carers and also the requirements about involving the care authority for a child.

Suggestions made were as follows:

Other wording was suggested such as ' providing a safe place, actively promoting a child's welfare, working in partnership with the LA to implement the care plan, providing for the child as they would for a member of their family……'

Respondents also suggested about adding something about 'the procedure for supporting children when complaints/ allegations made?

Q20. Do you agree that, if they are willing, any adults remaining in the household should be assessed with a view to approval as foster carers for the child and that the child should be allowed to continue to live in that household during the approval process?

There was general welcoming of flexibility here to facilitate continuity for a child who was well established in a household.

It was pointed out that where it was a couple, then both would have been approved and any other adults in the household would have been checked. There was a difference between what might happen in an emergency and the longer term considerations.

Comments:

The drafting needs to ensure the balance between minimum disruption for a child and proper safeguards.

Comments reflected a range of experiences. Some of this was about the nature and intention of the placement - whether it was long term or permanent where the child already saw him/her self as part of that family and any need for extra support might come from the carer's network/ family who may not be approved which links with emergency provisions. Support from another carer in an emergency would not cause the same issues. In the longer term there was emphasis on establishing the views of the child and assessing the whole situation.

The wording here is about 'household' but options may be wider in the longer term such as the former carer's kinship network but this would depend on circumstances. Most were happy to have an enabling regulation but guidance could cover exploring the range of options.

Regulation 18 - Emergency placement

Q21. Do you agree? Does this provide sufficient protection for the child? The carer? The social worker?

A few responses here related to regulation 18 overall and not just to the over numbers question posed. The general comments were about the range of circumstances covered by this and separating out those situations where an emergency placement was considered with someone who was not approved. This has come up in different places -where should it be handled and how? There was also comment on terminology - ' a person known to the child' and how this fits with what is used elsewhere eg. Regulation 20. What about a relative who emerges but is not directly known to the child?

There was a spread of views on going over numbers. The general view tended towards having some flexibility but with clear safeguards.

Suggestions included -

assessing the balance of risks between going over numbers and not accommodating a child who was at risk; providing protection and taking into account the implications for foster carers, their children and other children in placement; the different reasons why flexibility may be acceptable such as keeping siblings together, carers whose initial approval may have been cautious in the early stages but had scope for expansion, carers whose circumstances may change such as older children leaving home; need for some oversight and protocols for this such as senior manager permission, return to Fostering Panel to review approval, tight time limits, requirement to establish views of those already in the household (note Highland response with clear steps and criteria with written request and reply specifying any risks, carer capacity, views of children placed and carers children and time limit)

The general view was to leave some element of flexibility with provision for safeguards which could be covered in more detail in guidance.

A few comments referred to who was responsible for this issue. It should not be the placing social worker - it was up to the service provider. Where the resource is coming from an outside provider they should take responsibility for ensuring an appropriate resource is offered and any implications for other children placed by other authorities are addressed.

Q22. Do you agree? Does this process and timescale provide sufficient safeguards for the child and those responsible for his or her care?

Regulation 19 - Review following emergency placement

Q23. Do you agree? Does this process and timescale provide sufficient safeguards for the child and those responsible for his or her care?

There was general agreement that an early review was needed in emergency situations - either 72 hours as in draft regulations or 3 working days. Some separating out of placement with approved or unapproved carers was again raised and the need for an early visit and requirement to see the child. This was particularly important if there were any specific risks.

It was pointed out that Disclosure checks could not be carried out in this timescale. There needs to be some clarity about what can and should be done within the 72 hours, what should be in regulation and what in guidance. The next steps relate both back to the care planning regulations 3 and 4 and also to question 24 on timescales for assessing non approved kinship carers.

Care Planning - On care planning there was concern about what was realistic - it should be possible to expect clarification of roles and expectations, checks to ensure the basic child's wellbeing and that placement is meeting their current needs, that their views have been sought . A full formal care plan based on a comprehensive assessment would take longer.

Regulation 20 - Recommendations by a local authority

Q24. Do you agree with these proposals?

There was some confusion here about how the policy intent would be incorporated in regulations. SCRA gave a full response in this area both about the timescale for assessment and also about regulation 20 and how well it fitted with other regulations/ requirements eg as drafted it doesn't cover all reports but only those 'requested by the reporter……', it appears to be enabling the LA to do what it can already and it covers only some of the options eg. Regulation 18 allows the LA to place with 'a person known to the child' but such a person may not fit the categories in regulation 20. See also the interaction between this regulation and rule 20 (6) of the Children's Hearing (Scotland) Rules '96.

Some comments made were;

"Should the relevant person or relative be approved before submitting a report to the Hearing? What happens if relatives or friends do not cooperate?"

Responses to question 24 to a considerable extent depend on the task group.

There were different views on the extent to which the assessment should mirror a full foster carer assessment.

6 months appeared a long time for many of these situations and there was a suggestion of an interim assessment by 6/8 weeks focusing on the short term needs of the child and the carer's capacity to meet those needs or alternatively an assessment to be completed in 3 months.

One response assumed that the preamble to this should read 6 weeks not 6 months.

Responses also demonstrate what different agencies do in the interim eg. use of Section 22. Should this tie in with 6 week review of child?

Note also that the policy intent included providing the carer with information on what the way forward might be when supervision comes to an end - where? How is this anticipated being incorporated? This is a whole area that also requires guidance.

Regulation 21 - Information to be supplied to persons in respect of each child placed in a residential establishment

Q25. Does it cover all the requirements for children who are placed in residential establishments? If not, please specify.

The comments about the content of regulation 21 are in the context of the overall questions of 'why this is here and does it fit'?

If the aim is to have more consistency across the different provision for accommodating children then should it not be better integrated in this section of the regulations and recognise that residential staff and foster carers require similar information to care appropriately for children. Suggestions for additions include - involvement with other agencies; requirement about the ending of a placement; ethnicity, religion, culture, sexual orientation; child's wishes and feelings; something for residential care equivalent to the placement agreement for foster carers; copies of existing education support plans and education history (wording linked to ASL (Scotland) Act 2004; arrangements to meet health needs including eye and dental plus comprehensive health care advice; risk assessment and how risks can be managed; agreements and arrangements around contact; support from other people agencies re. rehabilitation; arrangements if placed outwith home area.

Part IV - PANELS

Regulation 22 - Appointment and composition of fostering panels

Q26. Do you agree with prescribing these numbers in Regulations, or should it be at an agency's discretion?

Responses about the desirability of specifying numbers for fostering panels were split with slightly more in favour than against. Within that, some responses in favour of setting a minimum when asked to define that minimum indicated that they had the minimum for a quorum or the size of an individual panel in mind, not the overall pool.

Comments made by respondents were;

There were some comments that the wording here was confusing and did not distinguish sufficiently clearly between the requirements of regulations 22 and 23. with regard to the 'fostering panel'.

Suggestions of a minimum for the pool of panel members appeared to reflect agency arrangements and a couple of the larger authorities had a number of fostering panels to cover all the business and so had a large pool - eg 35 was quoted - to reflect this.

Given this, some agencies put the emphasis on the need for flexibility to reflect very different sizes of agencies while others thought some sort of parameters would be helpful. What these should be was less clear!

Q27. If you agree, what is a reasonable number of members for a fostering panel, to achieve the balance between each member having sufficient expertise, but not being unduly overloaded? What about for a joint fostering panel, across agencies? Should the number of members be the same?

Apart from the few who specified numbers, most responded to this question with various comments about the need for a balance between agency representatives and others independent of the agency; a range of expertise both professional and lay; a structure for ensuring that experienced panel members did not all rotate off at the same time; some reflection of the community served and awareness of potential issues around gender, culture and ethnicity. The overall pool also had, on a practical level, to cover holidays, illness etc.

Answers would suggest a need for wariness about being too prescriptive, especially as there is no clear consensus on this but robust expectations about how the panel demonstrates that it has sufficient independence and relevant breadth of experience for the task.

Presumably, numbers for the pool should ensure these are sufficient to service the number of individual panels needed to manage the business by the particular agency and conform to the quorum for these .

A particular point relating to local authorities was that many extended the range of expertise available to them by calling on other parts of the authority such as education or housing rather than purely social work.

Joint Panels - a few respondents commented on joint panels, generally along the lines of needing clear arrangements to cover all aspects of how they would be managed. Generally if these were to be included the view was that their membership should be comparable to other fostering panels.

One respondent indicated their experience of coming to an agreement with a neighbouring authority about use of their panel in the event of an appeal. This would suggest that there may be different ways for small agencies to work together to ensure a sound panel process, joint panels not being the only option. Any of these would need careful consideration and clarity about the decision making process and any differences in agency policy.

Additional comments were about what could be covered in guidance and also the role now of the Care Commission in monitoring the quality of the functioning of panels.

Q28. Do you agree with these provisions? Should there be other provisions, such as the need for panel members to be Disclosure Scotland checked?

Responses often linked with question 27. Most assumed that Disclosure checks would be required though there were comments made about distinguishing between agency members who were already checked and non agency members. Currently this is covered by the Care Commission inspection and accepted as a requirement although there may be queries about frequency. The Care Commission noted the anticipated change to the vetting and barring Scheme due to be introduced next year. Others referred to developing practices about use of references, L.A. checks and CVs.

Q29. Is it necessary to have a medical adviser or could this role be covered in some other way e.g. by written reports from the applicants' GPs?

There was very clear support for the role of the medical adviser. All the agency responses supported this. The only alternative views, reflecting the value of reports from the GP who knew the applicants, came from those not directly involved in this aspect of service delivery. Normal practice is for the medical information to be provided by the GP with the role of the medical adviser being to interpret this for the panel and link this to knowledge of the fostering task.

Comments were added about the need for this advice from the M.A but that it was not necessary for the adviser to attend all panels or be part of the forum.

Q30. Should there be a duty on agencies to review the membership of the panel on a regular basis?

Those who chose to comment on this question were comfortable with a duty to review panel membership and agreed it should be a clear open process and ensure competence. Reference was made to National Standards and the provision of an annual report on the panel. This could cover membership. The only proviso was about ensuring that in doing this, it did not lead to a complete change of membership at one time!

Regulation 23 - Meetings of the fostering panel and joint fostering panel

Q31. Is this a reasonable approach? What should the quorum be set at ?

Suggestions of the number for a quorum were generally in the range of from 3 to 5. however, one respondent suggested 7.

Some looked at questions 26 - 31 as a whole and emphasised the various aspects of ensuring a competent, independent panel not just numbers. Some clearly were concerned about practical difficulties and the need to be realistic about achievable minimums.

Can regulations and guidance achieve a balance here between an absolute minimum that ensures a panel can go ahead and the desirable number that normally should be achieved?

Another respondent suggested both a minimum of 5 and also some requirement about the balance between agency staff and independent members. A general comment referred overall to the desirability to be consistent across fostering and adoption panels especially where they are carrying out comparable tasks in approving applicants.

Q32. Should there be any other provisions made e.g. the meeting cannot be held without the medical adviser/without sufficient secretariat support to record discussions and decisions?

Linked to question 29, the general view was that the medical adviser's view needed to be provided but they did not need to attend all panels.

Most respondents felt that it was important to have sufficient secretariat support but not all thought it should be in regulations - it was commonsense! Generally this was not questioned but agencies were wary of too much prescription that might lead to cancellations and unnecessary delay.

Other comments referred to the need to record recommendations, timescales for achieving this and the purpose of minutes.

The response which suggested a higher quorum also referred to the inclusion of a legal adviser.

This was not specifically addressed in the consultation but may have relevance when linked to question 33 and any consideration of plans for children.

Regulation 24 - Functions of a fostering panel

Q33. Do you think anything else needs to be added?

Respondents came up with three concerns, viz,

First, the potential advice role of a panel eg about proceeding with an enquiry or application where there were particular concerns. This would bring up issues such as the status of advice and implications for the recommendation process and right of appeal which would require guidance.

Secondly, there was a suggestion of a role for the panel in planning permanence short of adoption and matching these children. This links with comments about the extent to which permanence may be reflected in these regulations.( see also re. question 14) and which panel would be considering permanence cases.

Thirdly, in regulation 24 there was no reference to problems emerging before the first review of foster carers at one year or anything specifically about the use of the panel for complaints/ allegations against carers, possible de-regulation and appeals.

Regulation 25 - Approval of foster carers by a fostering agency

Q34. Should any change be made to this list? Should any changes be made to Schedule 4?

In general, most comments about additions to the list in Schedule 4 related to the more robust process used by agencies in ensuring safe care for children such as interviewing referees; inclusion in point 11 of other relevant applications such as to adopt, private fostering ; checks on other adults in the household.

Some anticipated the implementation of the vetting and barring scheme. Other comments about more general areas such as looking for guidance on recording 'personality' and ensuring the views of children in the family are elicited and recorded, link more to the comments from some agencies indicating that this list in the schedule was only a part of a wider process, the key part of which was the assessment and preparation of foster carers. This would suggest including in regulation 25 the need for a full assessment alongside gathering the specific information in schedule 4.

A couple of other comments added here related more to regulation 25 than to the schedule. These were about timescales for the agency decision and how this is done and also about providing the opportunity for applicants to foster to attend the panel. This would also show parity with the approval to adopt.

Q35. Is it useful to have this provision? Are there any problems that might arise?

Comments were very mixed ranging from considering that it may be useful in certain limited circumstances to finding it unhelpful. Where it might be considered it was suggested that there should be clarity about the need to share information and to set up good communications and agreements governing arrangements.

A distinction was drawn in responses from other situations where an approved foster carer might wish to move to another service provider but still be caring for a child from the original agency that approved them. Reference was made to the Fostering Network Protocol.

The overall impression was that agencies were very wary of carers continuing to be approved by 2 agencies at the same time for reasons such as all the potential tensions between different support arrangements and policies; who got priority in making placements; ensuring that children already in placement got full consideration if a child was being placed by a second agency; carer accountability; different financial provision.

The only example given of potential use of this option was of a foster carer with a long term/permanent fostering placement from one agency moving to another area where they may offer to provide some short term or respite care locally.

Regulation 26 - Approval of relative carers by a fostering agency

Q36. Do you agree with the proposals generally? Is there anything else that should be included?

Q37. Are there any of the provisions set out in Schedule 4 which should not apply to relative carers?

Regulation 27 - Agreements with foster carers and relative carers

Q38. Do the contents of the Schedule cover all that is needed?

Q39. Using the draft Schedule 5 as a model, what should such a Schedule contain?

Very few responses covered all these questions and most made some reference to the ongoing work of the Reference Group with the overall feeling that their comments to this consultation could only be limited at this stage.

Generally the comments reflected the impression that the present draft regulations had not fully incorporated the kinship care strategy and there were differing views about the extent to which the regulations should be similar to those for foster carers and the extent to which they must reflect the differences in that form of care. Clearly this debate will have progressed much further through other channels and there is a timing issues here for completion of these regulations.

Respondents made comments as follows:

Comment was made on the current terminology which causes confusion as much of regulations 26 and 27 refer to relatives (presumably as defined in the interpretations at the beginning) but within regulation 26 there is also inclusion of a 'person known to the child' as also in regulation 18 on emergency placement.

Using 'kinship carers' terminology might help to clarify parts of these regulations but the wider question is about whether there should be a clearly identified section within the regulations about all stages of the process for kinship carers as per the conclusions of the Reference Group.

This also links with question 24. As part of this consultation some of the points made where:-

The need for a proportional approach balancing the responsibility to safeguard the child with recognising the value of kinship care.

Some reference to the need for 'flexibility' in standards which still give consideration to the quality of care and nurturing of the child.

The extent to which the kinship carer assessment runs alongside the planning process for the child plus different stages in this, including emergency placements.

The need for parallel but not necessarily identical processes for agency decision making, training, support and dealing with complaints/ allegations.

Importance of the views of child, parents and other family members throughout.

Clarity on the nature of the agreement between the agency and the kinship carers - expectations of each other and where and how this will be monitored or reviewed.

Contact arrangements may be more complex in kinship placements and there were also some specific comments about the schedules such as in Schedule 5 6(b) alerting birth parents about events /progress of the child unless the L.A. need to bridge communication difficulties as an example of what one agency referred to as 'normalising' the experience.

Avoiding interference with voluntary kinship care arrangements where children are not 'looked after' and may be supported through section 50.

Queries about when payments would start and the link with approval. What about situations where the Hearing specified placement with a kinship carer who was unapproved and where the L.A did not agree with the placement?

It is likely that the comments elicited by the consultation are only part of those that will either be resolved by the Reference Group or will be raised in relation to these regulations once that work is complete.

Regulation 28 - Reviews and terminations of approval

Q40. Do you have any views on these provisions? Could they be strengthened in any way?

There was overall agreement with the first review within a year but more mixed views about whether subsequent reviews should be annually, partly for resource reasons - some suggested less frequently unless there was cause such as change of terms of approval.

One of the respondent clarified a point about this in that they suggest a 'review' every 2 nd or 3 rd year and in other years a review chaired by someone other than a line manager for the case. Presumably the bi- tri- annual review is more formal and goes to the panel. This indicates that some of the responses may be not be separating out reviews at the fostering panel from some other form of internal review.

As regulations do not specify that all reviews are held at the fostering panel, guidance could address the options. It was indicated that it would be helpful to include that the review should be linked to the carer's assessment process for all new carers especially if competency based. Regardless of how reviews are carried out it was suggested that the views of children and birth parents are sought.

In relation to the concern about lack of annual reviews of carers, these was a comment that the Care Commission inspections were sufficient to monitor this.

A couple of agencies noted that there was no requirement to take terminations to panel - although most probably could or would under 21 ?1 (c) (ii) - and should there be a right of appeal?

One made a link back to this in response to question 41 in clarifying the connection about a clear termination process - presumably if there are significant concerns- and the responsibility to communicate with other agencies who may use the carers concerned.

Q41. Do you have any views on these provisions? Is there anything that might prevent this happening?

There were limited comments on this as it appeared logical.

Any comments made were linked to views about derivative approval, whether respondents saw themselves being involved in these situations and, if so, the agreements they might have made about communication on any issue.

It was indicated that it would be good practice if there was potential for de- registration to alert other agencies about this prospect. This all underlined the need for good protocols.

This should also cover the responsibilities of the carers and also the other agency to give due consideration to this sort of notification.

Regulation 29 - Review of approval: further provision

Q42. Do you agree with this approach?

There was a general consensus here that firstly there should be a general right to appeal if approval was not given and secondly that the terminology should be clear.

Other comments made by respondents included:

The use of the word 'review' of approval was seen as confusing and other options such as 'appeal' or 're-consideration' would distinguish this part of the process.

It was also important to be clear about the difference between re-considering or appealing a decision not to approve an applicant and any complaint about the agency procedures or handling of the application.

Some responses detailed their particular process of managing appeals and presumably guidance could address this.

The inclusion of relative carers in this provision prompted a few more comments about the procedures for approval and review of kinship carers.

Regulation 30 - Payment of allowances

Q43. Do you have any comments?

While there was general agreement with the thrust of this regulation there was some questioning about the wording and whether it achieved that intention.

In particular while the replacement of 'may' by 'shall' was welcomed, the words 'if any' and 'if they see fit' did not seem to fit with this. #

Comments relating to allowances and foster carers were about setting a national rate; questions about any potential effects of DWP regulations for carers of young people over 16 and also the issue of child benefit which relatives might receive but not foster carers; need for more clarity about payments up to 18 ie until? 19 th birthday and payment until 21 if in fulltime education.

One respondent highlighted a need to separate out essential payments to foster carers from financial provision for kinship carers.

From other individual responses it appeared that the main issues here were about resources for paying kinship carers the same level of allowances as foster carers and the implications of supporting two groups of kinship carers - those where the child is placed under these regulations and those where there is a more informal arrangement.

This may be either where a child may be supported from the outset with kinship carers without being 'looked after' or where there is an 'exit strategy' from the 'looked after' system but kinship carers may be disadvantaged.

Part V - ARRANGEMENTS WITH VOLUNTARY ORGANISATIONS

Regulation 31 - Arrangements with voluntary organisations

Q44. Is there anything else that should be listed here? Do the matters in Schedule 6 cover all the issues to be dealt with in an SLA?

Most respondents either accepted regulations in this area or did not comment.

Two respondents, however, chose to comment here on the implications of adding in the terminology 'independent providers' in this part. One respondent stated that this should specify 'not for profit' while the other opened up the debate raising the question of the rate of charging, which may be the same whether they are operating for profit or not. Should this be tightened up or do they need to be allowed to operate for profit? This was not raised in the consultation and is obviously a wider policy issue.

A couple of comments linked the requirement to be satisfied that a provider is a registered fostering service with what they would need to know about safe caring practices and recruitment of staff, staffing levels and qualifications; data protection and confidentiality; allegations; human rights; complaints procedures; monitoring.

Presumably there is a cross over here between what can be presupposed by being registered as a fostering agency and what an authority entering into a service level agreement ( SLA) needs to satisfy itself about.

Other areas more directly related to SLAs would be expectations about support of carers and use of respite care; expectations of the placing agency about support of any child, services to be provided by the L.A. and duties to be retained by them ; sharing of information about significant changes in family circumstances (? the carer's family); frequency of review of the agreement about a particular child rather than the overall SLA with the agency (?annually rather than 3 yearly); provisions for safeguarding children's rights and quality standards.

Under schedule 6. 2. there was comment on adding more details about the services a particular child might need such as assistance with schooling and health needs and also with parental contact. This may be more appropriately addressed in guidance and ensuring that any needs under the care plan are carried through.

Note. A question was raised by one agency about the omission from draft regulation 31 of 16.3. of the 1996 fostering regulations about a voluntary agency not placing a child outside the British Isles.

Regulation 32 - Circumstances necessitating visits by local authorities

Q45. Do you agree with these reasons and timescales?

Overall, those who went beyond accepting this regulation felt that the expectations were minimal. From an agency's perspective, if there were concerns the 'welfare of a child may not be safeguarded or promoted' then 7 days was a long time and 3 days was suggested by some. Equally there were questions about the adequacy of the other timescales such as sooner than 28 days initially and 3 monthly rather than 6 monthly intervals. It was noted here that the regulation about monitoring placements generally was absent from the regulations and this raised the question both of the reason for this and why children placed at a distance should receive a different service. This needs some clarification as a reading of the regulation itself suggests that regulation 32 applies wherever a child may be placed by a voluntary agency on behalf of the local authority while the consultation specifically referred to children placed outwith the placing local authority area and replies reflected this. There are a range of circumstances here - local authorities placing children with their own carers, placing them within their area through a voluntary service provider and placing them at a distance which could be via a voluntary provider or another local authority. Does this regulation cover all situations where a child should be entitled to an accountable support service?

Generally, the view expressed by most young people via Who Care's Scotland was that visits should be more frequent. Some responses emphasised the significance for a child of retaining their link with their 'home' authority and all that meant in terms of both family links and their familiar community.

One respondent commented on the importance of consistency for these children and access to a trusted person who can carry out the corporate responsibility for the child.

Some responses illustrated how they tried to address some of this through involvement of children's right's officers and Who Cares. There may be potential here for the development of independent support organisations for looked after young people but the link with the home authority and their responsibility would still remain. Others would normally not delegate unless the placement was at a considerable distance for example over 100 miles.

Some concern was expressed about arrangements when it was necessary to delegate some elements of visiting and monitoring - such as funding and reimbursement. This could be a considerable concern in areas where voluntary and independent providers had a number of carers who looked after children from different parts of Scotland with the consequent effect on the host authority for resources and competing demands. This is an area where some guidelines on both finance and other agreements between authorities would help.

One agency also raised the question of placements in England which were hardest to support (these were more likely to be residential). It was generally assumed that the home local authority would retain responsibility for reviewing.

Q46. We propose that the final version of the Regulations will contain similar provisions for children placed in a residential care home outwith their local authority area, except that they should be visited every 3 months. Do you agree? If not, please specify your proposed alternative.

Most replies indicated that many of the comments in question 45 about children in foster care applied equally to children in residential care.

As noted, a number thought 3 monthly visits should also apply in foster care too. Specific situations might require more. The home authority should visit following any complaint, allegation or difficulty in a placement.

A few responses considered that young people in residential care should be visited more often that those in foster care with suggestions of monthly or 6 weekly. The rest considered that arrangements for both groups should be consistent. The young people who expressed their opinion were concerned about any disparity and highlighted in particular the isolation a child can feel especially if at a distance - and if appointments get cancelled!

Q47. Are there any other ways we can ensure that a child's 'home' local authority continues to be involved when the child is placed outwith the area?

Personal contact was valued and ensuring that visits were sustained, agreed through any interagency agreements and the possibility of external monitoring by the Care Commission.

The imaginative use of technology with a newsletter, email, telephone to keep in contact was also suggested.

Best use of the review and care planning processes also came in here including the importance of the through care and after care provisions and that forum's quality indicators.

Part VI - RECORDS

Regulation 33 - Establishment of records for looked after children

Q48. Is there anything else that should be recorded?

A number of responses did not seek to add any specific additions to the regulations on this. Of those who made suggestions these fell into two broad groups - other more formal documentation that should be there and 'softer' information that a child might appreciate at a later stage.

The more formal additions were:- Supervision Orders from the Hearing or other legal orders; notifications under regulation 16; any complaints or allegations by the child and how these were followed up; any record of offending or assessment of risks to or by the child; a chronological history; assessment of the child's needs; contact details; changes of placement; links to pathways planning, carefully referenced; record of special educational needs.

There was also comment on ensuring that children's views are well represented and information about how these have been taken into account.

There was a heartfelt plea from the young people about ensuring that the main records are all there and presumably in good order!

The 'softer' type information ranged from day to day records and information from carers through details of optical or other routine care and information about emotional wellbeing to such items as photographs, school reports and details of other achievements, letters especially anything tangible about birth parents and the child's early life. Some of this presumably is relevant primarily to children who spend a large part of their childhood in the looked after system and relates to the extent to which these children have needs that are comparable to adopted children. There is also the point referred to by a couple of respondents here and also in question 54 on access about who should hold some of this type of information, what should accompany young people both as they move and when they leave the care system, what should be copied for safekeeping. Young people felt there should be some choices here for them and also raised the question of paying at a later stage for accessing records. They considered they should have a right to certain information such as photographs and there should be a duty on authorities to safeguard items of importance to their personal history.

Q49. Do you feel that adherence to the Code of Practice on records management should be required through guidance?

Of those who replied to this question, all (18) but one were in agreement. The one who did not agree referred to their existing guidance. Another response, however, indicated the value of having consistency across the country.

The view of one respondent was that the Code of Practice needs to be better understood and specific guidance about its application to managing children's records would be helpful.

Alongside this there were the Information Commissioner' s comments in relation to various questions in this section about adherence to the data protection legislation, the principles underlying this, the need for very clear fair processing protocols and not keeping records for longer that can be established to be necessary.

One respondent stated that it was not for that office to comment on whether and what records were compiled but where this happened adherence to data controllers obligations must be addressed.

There are likely to be a number of particular issues for agencies which hold such comprehensive records for many years to consider. Further work under the heading of the Code of Practice would fit here with the expression of need for training and guidance on the issues.

Another respondent noted that the Code of Practice is presented as 'desirable' and that it would therefore be difficult to include in these regulations a requirement for adherence. They suggested wording along the lines of 'an agency should pay due regard to….' or 'agencies are expected to comply with…'

Regulation 34 - Establishment of case records for carers with whom a child is placed

Q50. Is there anything else that should be recorded?

There was welcome for the wording that records had to be maintained and not just opened!

It was pointed out that while reviews of approval were included it did not specifically state the inclusion of the original approval.

There is also a link here between earlier comments about Schedule 5 and what is headed a 'placement' agreement but covers mainly the area of a carer agreement. The record should include both.

Some responses identified that any complaints by or against carers should be recorded with details of how these were handled and the outcome. This would obviously include any child protection allegations and investigations. Again the views of the child - and the birth family - came up and how the child's view of the placement would feature. The carer's needs for training and support was also identified.

As in question 48 there was a mix of what other formal reports should be held and other softer information. This related to day to day case records, the issues coming up and who is resident in the household at different times including their views on the ongoing fostering experience.

Q51. Should there be a similar record for kinship carers?

All those who made a specific response to this question (24) were in favour of keeping a separate kinship carer record.

It was pointed out by one respondent that this would end the placing of kinship carer's information on the child's record which sometimes happens if no separate record is made. It was noted that this would be a more limited record than that for foster carers as kinship carers are doing a particular task, issues arising would be in the child's file and there would not be the same information about a carers development in providing a broader service for the agency.

Q52 Do you agree that this should happen?

Again, all those who answered this question (25) agreed. The principle reason given for this was the fact that people may apply again to different agencies and in some instances there may be safecaring concerns.

Additional comment reflected the different groups that may be covered - some people may enquire but simply not take it any further at the time, others may embark on an assessment but withdraw perhaps because of a change of circumstance and others may go through a formal process whereby the agency decides to discontinue the assessment. There are likely to be variations here about the extent of records held and any timescales.

The Care Commission pointed out that any such record should be available to the subject who should have access to an appeals process on content. There would need to be some system for ensuring that any disputed information can be checked and the outcome appropriately recorded. (note also the IFO's comments on fair process)

In addition to answering this particular question, comment was made here in relation to regulation 34 (2) about the use of the word 'termination' which was regarded as negative given that there are many reasons for a child leaving a placement. Transfer was suggested in its place.

Regulation 35 - Retention and confidentiality of records

Q53. Regulations 35(1) and (2) replicate existing provisions with regard to retention of records. We are considering whether these should be updated. In your view, what should the retention period be and why?

Responses were spread between those who were satisfied with the current timescales on this, those who recommended extension of the time period to retain either children's records, carers' records or both and a couple, including the Information Commissioner's office who suggested caution on the basis that the time for retaining children's records could be seen as excessive.

This would argue for the need to be clear about why any extension of the current timescales was necessary. In relation to the child's record, the reason given was greater longevity. The suggested alternatives were 85, 90 or 100 years from the birth of a child.

Presumably such timescales are most relevant to adults whose care experiences have left them in a comparable position to adopted children who may have little knowledge of their early life. This question may come up again in those draft regulations and raises the question of whether fostering records should have the same timescales.

One respondent raised the question of whether despite greater longevity there is any likelihood of people over 75 seeking access to such records. The assumption in all these responses was about access by the individual concerned.

A further point raised was about access by other interested parties including relatives. This is not addressed by the regulations.

One of these responses was about the general point of interest in family history which may not be seen as a sufficient reason to retain such detailed personal records. The other point was about retention of the records of children placed by the local authority who had died before the age of 18. The question here was about the potential relevance to siblings who may be much younger than a child who also may have died at a young age. The much shorter timescale here may create a different argument for retention.

A respondent also raised the issue of this regulation being confined to 'placed' children. Other records on children and their families may not need to be kept so long but with families being more fluid and moving around records of involvement with a different adults about their care of children may continue over an extended period.

The argument for increasing the timescale for retention of carers' records has a different origin in that the main argument was about historical abuse investigations as allegations can take many years to surface.

The most frequent recommendation for increase was to 25 years.

One agency noted they already kept these for 75 years - this was the one who had indicated in question 49 that they had their own code of practice on record keeping.

An alternative from one agency was to retain those records which contained information on any child care or protection concerns longer with this decided by the Agency Decision Maker. This would reduce the number of detailed records kept and confine them to those where there was a defined reason but could be complex to administer.

One respondent suggested 30 years for records of both carers whose approval was terminated (presumably where there were concerns and not just because they had retired or resigned) and also those who were not approved. This brings in another group not covered by the current regulations.

As suggested by one respondent, some of these other categories could be covered by guidance.

Q54. Do you have any comments?

Those who responded to this question were split into two groups - those who commented on the specific question and those who used it as an opportunity to make a final general comment!

The specific comments included -

support for giving fostering records the same priority as adoption records;

need for clarity about access to records in line with data protection including carers access to their records;

access by regulatory bodied (Care Commission); awareness of changing technology and ensuring that with such long timescales, records remain readable;

provision for safe destruction of records including computer records;

clarity around backup copies both about what is needed and what should be destroyed;

safe secure storage and other resource problems;

concerns expressed by young people about knowing who would have access and giving their permission.

One particular issue that came up from two perspectives was on one hand a recognition of the value for some adults of finding original documents, letters or photographs and the views of young people of what should be in their possession. Again, this is probably more an area for guidance.

Those who added more general comments here highlighted the following areas:-

  • The need to take full account of national standards
  • Support for providing a framework for kinship care
  • Concern that children do not become 'looked after' unnecessarily
  • Need for cohesion with the outcome of the Reference Group
  • Need for separate sequences for foster and kinship carers
  • Need to ensure an independent voice for the child

(Note 1.- a number of comments were made about inaccuracies in numbering in some regulation and in cross referencing. This has not all been detailed on the basis that in the final version this will be checked thoroughly.

Note 2. A couple of other queries were passed to this consultation but did not fit the remit. The first was about the provision of certain types of health care through home visits to young people insecure care. The second was about obtaining a passport for a child who was accommodated on a voluntary basis and parents are no longer available to sign agreement. These are obviously real issues but cannot be resolved here.)

Regulation 36 - Revocation