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Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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Chapter 12 Foster Carer Reviews and Termination of Approval

Relevant Regulations 25 and 26

In this chapter:

1. Introduction
2. When to Involve the Fostering Panel
3. Foster Carer Review Meetings prior to Fostering Panel Consideration
4. When to convene an early Foster Carer Review
5. Who should be consulted in relation to Foster Carer Review
6. The Development of a Recommendation arising from a Foster Carer Review
7. The Function of the Foster Carer Review in relation to the Training and Support of Foster Carers
8. When Foster Carers go beyond their terms of approval on an emergency basis
9. Frequency of Checks within the Foster Carer Review process
10. Notifications
11. Termination of Approval
12. Investigation of Allegations about Foster Carers
13. Regulation 26, Review of Approval: Further Provision
a. Differently constituted review panel and agency decision maker
b. Further representations

1. Introduction

As with all the regulations in Part VII, references to local authorities and their duties under this regulation should be taken to include registered fostering providers.

Regulation 25(1) and (2) provides clear specific timescales within which the first and subsequent reviews of a foster carer must be considered by the Fostering Panel as follows:

  • within one year of the original decision to approve;
  • every three years following that first review (regulation 25(1)(a) and (b)).

In addition, the local authority must review a carer's approval at panel where they think it "is necessary or appropriate to safeguard the welfare of any child who has been placed with that carer" (regulation 25(1)(c) and (8)).

The current National Care Standards state that there should be an annual review to look at all matters including training and support to carers, the information provided to them and the levels of supervision they should receive. Although annual reviews are no longer prescribed in regulation, authorities may have well established annual review or appraisal processes which could be continued as best practice.

Foster care reviews not considered by the Fostering Panel may be arranged in a different way from the more formal presentations to panel for review of continued approval in regulation 25(1) and (2). They should balance an appropriate level of objective reflection about how carers are responding to the challenges of the task with an opportunity to value the contribution of the carers. They can identify both what the carers might do to develop their skills and also what the local authority could do in supporting them and providing training opportunities.

2. When to Involve the fostering panel

Given that not all Foster Carer Reviews are considered by the Fostering Panel, the following should be regarded as indicators that panel involvement is required (in addition to the requirements set out in section 1 above):

  • where termination is being considered;
  • where there is a request to vary the terms of approval;
  • where there are contentious issues or disagreement between carers and social workers;
  • where there has been an allegation;
  • where there has been a significant change of circumstances;
  • to celebrate long service;
  • progression to the next level of a skills-based fostering programme, where this exists.

3. Foster Carer Review Meetings prior to fostering panel consideration

Regulation 25(5)(ii) provides flexibility around the requirement for referral to the fostering panel for a recommendation on the continued suitability of the foster carers. This requires a written report of "any meeting arranged by the local authority at which the approval of the foster carer is reviewed".

This raises the possibility of the review discussion happening prior to the consideration by the fostering panel, with a report of the review and supporting documentation brought to panel for the recommendation.

Where the substantive review discussion is happening at a separate meeting, local authority procedures should define how it will be managed. It should be chaired by someone independent of the foster carer, not the line manager of the carer's supervising worker.

4. when to convene an early foster carer review

Any significant change may signal the need for an early review ( i.e. sooner than the prescribed timescales set out in section 1 of this chapter). Factors prompting an early review could include the following:

  • a carer's ill health;
  • an allegation;
  • a significant practice concern ( e.g. breach of confidentiality);
  • a new relationship; or
  • a significant placement disruption.

Given the level of discretion within the regulatory framework, Local Authorities will also need to determine when these early foster care reviews require the oversight of the Fostering Panel. As a general rule, if an issue is sufficiently serious to warrant an early review, the rigour and independence of Fostering Panel consideration will normally be required.

5. Who should be consulted in relation to a foster carer review

Regulation 25(2)(c) indicates those who should be consulted and asked to provide views in advance of the Foster Carer Review. This should be regarded as a minimum and authorities should have further guidance for staff to ensure that all relevant views are considered, covering at least the following:

1. Consideration should be given to how the views of children in foster care are gathered and who should do this in relation to their view of their particular foster home. This includes recording any views expressed by children who have joined and left the foster home during the year. Imaginative and creative approaches to this consultation should be encouraged to avoid this becoming a tick box exercise.

2. The foster carers should be asked to provide their comments in writing in advance of the review.

3. All members of the foster carers' household should have the opportunity to contribute their views. This includes anyone on an adult placement in a household and the sons and daughters of foster carers, who should be given the opportunity to express their views independently of their parents.

4. The foster carers' social worker should be required to provide a report for the review and the local authority may wish to provide a standard framework for this. As a minimum, the format should include details of the original and current terms of approval and an invitation to comment upon the extent to which the foster carers have met the requirements of the role.

5. The social workers for any child in placement during the year under review should be asked to provide a report. When any child leaves the foster home, end of placement comments should be obtained and recorded in the carers' record.

6. Any comments of birth parents and any other members of the children's families may be noted in records, but authorities should also consider specifically how they seek the views of birth family members on their experience of their child in foster care. Creativity and flexibility of approach should be adopted to increase the likelihood of meaningful consultation.

7. As foster carers are encouraged to work as part of a team, note should be made of any other feedback from other workers who have contact with the foster carers and, where relevant, their permission received to share such comments with the carers.

In all feedback from other staff within the local authority and their use of the fostering service, it is important to record not only any issues arising that need to be addressed, but also any commendations which can be made explicit.

6. The Development of a Recommendation arising from a Foster Carer Review

Regardless of the precise format and procedures for the review, Fostering Panels are required to make a recommendation on the suitability of the foster carers. This is to enable the local authorities, in the form of the agency decision maker, to decide whether to confirm the terms of approval, vary them or terminate the approval. Where authorities have a number of different fostering schemes, additional assessment may be required to establish that the foster carers are prepared and supported to take on additional or specialist tasks, e.g. in relation to disability or therapeutic fostering.

The Foster Carer Review should also consider whether the terms of approval meet the needs of the specific local authority's population. This is to avoid foster carers being under-utilised or over-stretched. See also Chapter 10 of this Guidance regarding the Fostering Panel's role in this context.

7. The Function of the Foster Carer Review in Monitoring the Training and support of foster carers

Regulation 25(2)(b)(i) and (ii) expects the review to address both the continued suitability of the foster carers for the task and also their own development. Regarding learning and development the Foster Carer Review should consider the following

  • the availability of opportunities for development to be provided by the local authority;
  • the willingness and commitment of carers to access these opportunities.

Each fostering household should have an allocated supervising social worker to offer supervision and support, and regularly monitor and review each foster carer's learning and development needs.

Local authorities should provide a mix of training provision that meets with the needs of their particular size and geographical location. This should include the following:

  • regular core areas that all carers need post approval;
  • skills development and access to new ideas to extend their abilities;
  • child specific training that assists carers caring for specific children ( e.g. in relation to disability);
  • task specific training that assists carers taking on new roles ( e.g. participating in a Children's Hearing or giving evidence in court)

Such training may be provided internally, by paying for carers to attend external training or by the provision of materials for carers to access at home, including access to online materials. Increasingly, as foster carers are expected to take on professional roles, it will important to explore ways of formally accrediting the training provided to foster carers.

In planning ongoing training and support, attention should be paid not only to the approved foster carers but also to other members of the fostering household, especially children and any adults living in the home. The Foster Carer Review is an important opportunity to reflect upon the needs of the whole fostering household, not just the approved foster carers.

8. When carers go beyond their terms of approval in an emergency

In an emergency, a local authority may place a child with an approved foster carer beyond their approval terms for no longer than 3 working days (regulation 36(1)(b)). In this situation, the local authority should review the carer's approval at a fostering panel as soon as possible.

In placing a child in an emergency, the local authority must also carry out their duties under regulation 36, and review the child's case in terms of regulations 38 and 39. (Please also see guidance on Chapter 15 Review of the Child's Case)

9. Frequency of checks within the foster carer review process

As outlined above, local authorities should consider reviewing foster carers' approvals annually whether these involve the fostering panel or not. To support this review process local authorities should seek up-to-date Enhanced Disclosures every two years. Once the Protection of Vulnerable Groups Scheme ( PVG) is in force, carers will be Scheme Members.

An Enhanced Disclosure check should be sought for any young person in the household who becomes 16 years of age. This should be carried out when the 16 th birthday is reached, and not await the carer's next review. Such a check should also be carried out when anyone who is 16 or over joins the household, as soon as this happens.

For medical checks, there should be a medical update as part of every annual review, considered along with the original medical assessment. In addition, and as a minimum, a full health assessment should be carried out again at the second three year review, i.e. the seven year review; and thereafter every six years. A full health assessment should also be carried out when circumstances indicate this is needed; or when there is to be a significant change in the carer's remit; or when there are significant health concerns.

10. Notifications

Notices of re-approval, revision of approval, or withdrawal of approval must be sent to the foster carer and to any other local authority using the foster home (regulation 25(5)(b)). As a matter of good practice, the outcome of the Foster Carer Review should normally be discussed with any other authorities who may have a child in placement before a final decision is reached. If the outcome is that a recommendation for termination of approval is to be made, plans for ending the placement of any children placed in the foster home will need to be made and, where relevant, a Children's Hearing review arranged. If a child has to be removed immediately to safeguard and protect his or her welfare, a child care review should be held as soon as possible. If the child is subject to a supervision requirement, such a removal, an 'emergency transfer', must be notified to the Principal Reporter immediately, in terms of s72 of the 1995 Act. There has to be a review hearing within seven days of the move (s72(2)).

The foster carer's right to complain about or ask for reconsideration under regulation 26 of any decisions resulting from a review must be explained to him or her. If a foster carer decides to make a complaint or ask for reconsideration, the child may be allowed to remain in the placement until the complaint is investigated, or the decision reconsidered, provided this will not be detrimental to his or her welfare.

11. Termination of approval

The approval of foster carers may be terminated for many different reasons, ranging from the mutually agreed termination - such as retirement, transferring to another local authority or taking up another form of employment - through to more contentious terminations, resulting, for example, from complaints or allegations (see section 12 below).

Whatever the specific context of the termination of approval, the following principles should inform the approach taken by local authorities:

  • ensuring that children's interests remain paramount;
  • learning lessons from the termination of approval, particularly where there have been upheld complaints and allegations or shortfalls in the support and supervision provided;
  • balance and fairness in the management and recording of disagreements.

In arranging a review which is considering termination of approval, the foster carers should understand this in advance. Where carers are retiring, the timing of the review should dovetail with their plans, including the planned ending of any placement and any formal marking of their contribution.

Where the review is being asked to consider terminating approval at the initiation of the local authority, the reasons for this need to be clearly laid out and shared as fully as possible with the foster carers prior to discussion at the review . Third part information will usually be withheld unless permission to share has been given. It should be noted that it is not possible to guarantee total confidentiality to third parties.

The carers should be given an opportunity to submit representations and encouraged to provide their views in writing prior to the panel. Representations by carers are allowed when there is a review or appeal panel, regulation 26(c), and this would also be good practice when there is a recommendation for termination of approval at review under regulation 25.

Reasons for seeking a termination of approval include the following:

  • where carers are under stress because of events in their own lives and the family placement worker considers they need a break or a suspension for a period;
  • where carers have demonstrated very limited skills and are rarely used;
  • where investigations into allegations or significant concerns have found them to be upheld.

Regardless of whether the carers have chosen to resign or their social worker is requesting termination of approval, it is important that a recommendation to terminate approval both states the reasons for this, and also makes a statement about whether at a later date the carers would be able to re-apply to that local authority, and what would need to be addressed if this should occur. Carers should also be aware that this information would be shared with any other local authority or agency they might approach in the future.

The aim for any local authority in providing a fostering service should be to keep to the minimum number of contentious terminations of approval. Achieving this first of all requires a robust assessment and preparation process, complemented by high quality support and advice regarding safer caring practices and recording practices. The high quality supervision of foster carers includes being open about any emerging concerns so that they can be appropriately addressed at an early stage rather than left to escalate to a point where termination of approval become inevitable.

12. Investigation of allegations about foster carers

Having an allegation made about you is a distressing experience for anyone. Given the nature of the role, foster carers are particularly vulnerable to facing allegations about the quality of care provided. This can be particularly stressful for foster carers because their home life is so bound up with their fostering role.

Although harrowing, it is in everyone's interest that all significant allegations are investigated in a through and timely way. A rigorous investigation means that on those rare occasions when children are mistreated in foster care appropriate steps to safeguard them can be taken. Alternatively, a thorough and impartial investigation means that a line can be drawn under unfounded allegations so that the reputation of foster carers can be protected.

Successful allegation management means supporting all those parties involved in the process - the child or young person making the allegation, other children in the household, and the foster carer who is subject to the allegation - and carrying out the investigation as quickly, fully and fairly as possible.

The most strenuous checks cannot provide an absolute guarantee of safety. There is always a risk, fortunately small, that adults who intend to harm children will be approved as foster carers. Children and young people may make allegations for the following reasons:

  • They've actually been abused in foster care;
  • They've been abused in the past and they want to draw attention to this fact;
  • They have misinterpreted actions or intentions ( e.g. in relation to physical touch);
  • They may be seeking to pressurise the social worker into allowing them home;
  • They feel abused by the 'care system' and take this out on those caring for them;
  • The allegation may gain the attention and immediate visit from their social worker;
  • They may have been influenced by a member of their birth family to make an allegation;
  • They hold a personal grudge against the foster carer.

Determining which allegations should be upheld, and which are caused by some of the factors outlined above, is a far from straightforward matter, and any investigation into malpractice will inevitably strain the relationship of trust between the foster carer and the local authority.

Particularly care needs to be taken regarding whether a child making an allegation should remain in the foster home while the investigation takes place. This decision should be carefully considered, based upon the fullest possible information, including the following:

  • The seriousness of the allegation;
  • The immediacy of any risk posed to the child or young person;
  • The anticipated resilience and response of the foster carers or other members of the household subject to the investigation;
  • The anticipated likelihood of the foster carers or other members of the household placing undue pressure on the child or young person making the allegation, or interfering with or undermining the investigative process;
  • The duration of the placement (the argument in favour of continuity of care, for example, may well be stronger for a child who has been settled in a foster home for a considerable time).

Blanket rules about always removing children or never removing children should be avoided, with the specific circumstances of each case carefully considered on its own merits. (Please also see Best Practice Guidance: Responding to Allegations Against Foster Carers).

The support provided to foster carers should include the following:

  • Independent Information and Advice (for example, from Fostering Network Scoland, Fosterline Scotland.)
  • Confirmation in writing as soon as possible about the nature of the allegation and the procedures being followed;
  • Emotional support during the investigation process;
  • Regular updates about the progress of the investigation.

If allegations against carers are upheld local authorities should have clear procedures about what further steps they will take, and how the investigation process will lead to a Foster Carer Review and the development of a recommendation. Further guidance on this issue can be found at the child protection Best Practice Guidance.

Unfortunately, the often private nature of fostering means that many investigative processes reach unsatisfactory conclusions, where allegations are left 'unfounded' or 'unsubstantiated.' Local Authorities should seek to be as clear as possible about the outcome of allegation investigation processes and take a balanced and measured approach to the information retained on the foster carer's file.

Sometimes, although a child protection or criminal threshold has not been reached regarding an allegation, practice concerns remain regarding foster carers. Local authorities should develop specific processes to consider the implications of any statutory investigation for the approval status of foster carers. Sometimes, with more straightforward allegations, this can be achieved through an immediate Foster Carer Review. In other circumstances, further discussion and analysis will be required to establish which, if any, of the arising practice concerns require consideration by the Fostering Panel.

In considering such reports, Fostering Panels will need to take account of the following:

  • the seriousness of the allegation;
  • the plausibility of its refutation;
  • whether, as outlined above, the child or other person making the allegation may have a reason for making a mistaken, false, or exaggerated allegation;
  • the previous fostering history of the foster carers;
  • the strengths and weaknesses of the foster carers; and
  • whether there were any particular stresses in the placement which could have contributed to the situation (for example, a lack of support or over use of the foster carers by the local authority).

Where it proves necessary to review foster carers' approval and this leads to a recommendation for alteration or termination of approval, the reasons and the conclusions the local authority have reached should be explained carefully to them. As with all review decisions, the local authority must give written notice of their decision (regulation 25(5)((b)(i)) and the reasons should also be given and explained. Foster Carers should be told of their right to complain and separately to ask for a further review in terms of regulation 26.

13. Regulation 26, Review of approval: further provision

As with other regulations in Part VII, references to local authorities and their duties under this regulation should be taken to include registered fostering providers.

This is about reviewing decisions of authorities, as listed in regulation 26(1) and (2)(a)-(c):

  • to approve applicants as foster carers;
  • not to approve applicants as foster carers;
  • to vary foster carers' terms of approval; or
  • to terminate foster carers' approval.

These may be more generally called appeals against the decisions. The provisions in regulation 25 are for those arrangements by authorities in line with their responsibilities routinely to review carers. Regulation 26 applies to reviews requested by foster carers or prospective foster carers, when local authorities make one of the decisions listed and the carers or prospective carers wish the decisions to be reconsidered. The right is not open-ended: requests for reviews of appeals against decisions must be made within 28 days of notice being given of decisions (regulation 26(3)).

It must be remembered that the right to seek a review under this regulation applies to prospective carers who have been approved under regulation 22(3), as well as to other decisions about approvals, etc. While carers who have been approved as they wanted are unlikely to ask for a review, there will be carers who have been approved but are not happy with the terms of the approval and wish to have a review.

From the beginning of their contact with local authorities, prospective foster carers should have written information about the difference between complaints against the way the local authority delivers its services and reviews of decisions made in relation to their wish to foster. Regulation 26 is purely about reviews of/appeals against decisions.

Local authority procedures should provide information about the precise steps that prospective and approved foster carers can take. As a matter of course, this should be included in any written communication of decisions about approval, variation or termination. Procedures should include provision for the social workers who may have been assessing or supporting the applicants or carers to be notified about the decisions and the possibility of requests for review, when carers or prospective carers are thought to be unhappy with what has been decided. These workers should make contact with the person(s) concerned, to ensure that they have received notice of the decision. This will help avoid any unnecessary debate about the timescale for making requests under regulation 26. If there has been any delay between the day on which notice of the decision was sent and the receipt of this, the local authority should take note of this and not bar the request.

Regulation 26(4) onwards lays out what the local authority must do when they receive a request for a review. They must refer the case to a fostering panel, a differently constituted one from that which originally made the recommendation (regulation 26(4) and (5)). There is no timescale within which the panel must be arranged although there are timescales about the final stages (regulation 26(8)). After the review panel makes its recommendation, the local authority's decision must be made within 14 days; and the foster carer or prospective foster carer must then be informed of the decision within seven days. Local authority procedures should provide further details of how the review will be conducted and the local authority's time-frame. The review is likely to be an important event for the carer or prospective carer. For some, there will have been a huge emotional investment in the wish to foster, and others may have seen fostering as a career and it is a significant part of his or her identity, particularly if he or she has been fostering for a period. Regulation 26(10) makes it clear that once a decision has been made under this review provision, there is no further right to review, so it is important for everyone, including the local authority, that the process is fair and well managed.

The time-frame between receipt of the request and the date of the panel is therefore important. It must reflect a balance between the avoidance of a protracted process and the need to ensure that the carer or prospective carer has time to consider any further evidence he or she would wish to put forward. It is recommended that the review panel should be held within a period of one to three months after receipt of the request.

There are two broad areas for agencies to consider in relation to this regulation:

1. establishing a "differently constituted fostering panel" and a different agency decision maker; and

2. further representations from the foster carer or prospective foster carer.

These are outlined more fully below

Differently constituted review panel and agency decision maker

It is clearly fair that, in the circumstances of a review request, a different panel and an alternative agency decision maker are used. Regulation 26(5) says that the panel must be "differently constituted" and it is good practice for authorities to use a different agency decision maker. They should all have had no part in the earlier recommendation and decision. For large local authorities, this may pose no difficulty. Small local authorities and small registered fostering services need to have established arrangements in advance of any such request, in order to be able to establish the necessary panel. This should ensure that the agency's procedures and practice are compatible and meet the requirements of the Regulation of Care (Scotland) Act 2001.

In some instances, this may include making reciprocal arrangements with a neighbouring local authority or another comparable agency, service or supplementing existing panel members with an experienced person from another local authority or agency, someone who has expertise in the area of work. Where a specific issue such as a medical concern was a key factor, it will be important to ensure an alternative medical adviser can attend. Legal advice to the panel should also be considered.

Authorities and agencies should consider having more than one agency decision maker as a matter of general policy, to cover holidays, illness, etc. This will also be helpful for making decisions after a regulation 26 review. If a local authority or agency only has one agency decision maker, they should make established arrangements with another local authority or agency, perhaps on a reciprocal basis, so that they are prepared for regulation 26 review decisions

Further representations

Regulation 26(6) details the information that must be provided to the review panel. This is: the original decision and the reasons for it; the information provided to the panel which made the assessment when the carer or prospective carer was assessed under regulation 22; "any further representations" from the carer or prospective carer; and "any other relevant information". This gives scope for consideration of how the person requesting the review can put forward his or her case. These representations could include additional written information and references, and statements from others supporting him or her. As with other panels, questions may arise again about third party information and its confidentiality. There could be more pressure at this stage, about obtaining further information on the reasons for turning down an application or terminating or restricting approval. It may be necessary to contact individuals who provided significant confidential information, to discuss their concerns further and the extent to which it is necessary to share some of that information. Legal advice should be sought on this.

The carer or prospective carer should also be invited to attend for all or part of the panel, and to bring someone with them for support. Independent advice and information for foster carers may be obtained from the Fostering Network Scotland, through its Fosterline Scotland.

Where this review follows a termination or variation of approval of an existing foster carer, there must be ongoing discussion with the social workers for any children in placement, and any other local authority or agency which may also have children in placement or where there is derivative approval. Regulation 26(11) requires the local authority to intimate the decision after the review to any other local authority or agency which has given derivative approval of the carer; and that other local authority or agency must vary or terminate their approval as well, and notify the carer.