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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 14 Case Records and Allowances

Relevant Regulations 31, 32, 33, 42, 43

In this chapter:

2. Introduction
3. Records in relation to Foster Carers
4. Records in relation to Looked After Children
5. Allowances

1. Introduction

Good record-keeping is not just a procedural requirement. It is the foundation of all high quality social care with children, both in relation to the children we serve and those directly caring for looked after children. Good record-keeping increases accountability, encourages reflective practice and promotes better decision-making. Children, parents and foster carers should be aware of what information is held about them and who will have access to this information.

Equally importantly, the placement of children should be sufficiently resourced to enable them to fulfil their potential and avoid being further disadvantaged by entering the Looked After Children system. Recording and financial support are the two issues addressed in this chapter.

2. Records to be held in relation to foster carers

Regulations 31 and 32 detail the specific requirements for the establishment and retention of records on foster carers. They should be read in the context of the overall responsibilities of local authorities for all case records.

In establishing such records, agencies need to consider two broad groups:

  • Approved foster carers who have had children placed with them, regulation 31(1) to (3)
  • Prospective foster carers, regulation 31(4) and (5).

There is no specific mention of approved foster carers who have not had children placed with them, but it would be good practice for authorities and agencies to treat their records as they would treat those of carers who have had placements. Approved carers who have not had placements will be rare, but they are not just prospective carers so they should be treated as falling within the scope of regulation 31(1) to (3).

Regulation 31(2) and (3) defines the information which must be included in the record for approved carers. Local authority procedures should include any further information that will add to the usefulness of records. It is particularly important to ensure that records are clear about the reasons for all decisions taken, from the initial approval, variations of the terms of approval, through to any allegations and termination of approval (for whatever reason). Carers should be aware of the range of information in their records and their rights of access to them, especially if there are any contentious issues.

Regulation 31(3) addresses what should be in foster carer records about the placements they have offered. Agency procedures should be clear about the information which should be held in carers' records, as opposed to in the children's records. The provision specifies the basic information about children placed, with names and dates and also the circumstances of any terminated placements. The information gathered for carers' approvals and reviews should be in the carers' records, and this would include information from children's social workers, and also the views of children placed with the carers.

Retention of Day to Day Records

Many foster carers also keep daily diaries or logs. Local authorities and agencies will need to ensure that information contained in these, including that kept on computers, is retained in such a way as to be accessible in the future. This information is often very important to formerly looked after adults and/or when there are issues about the care received by children.

Records related to Prospective Carers

Authorities and agencies must also keep records on prospective foster carers and these are covered by the same retention requirements as other foster carers' records, in regulation 32. An enquirer should be treated as becoming a prospective foster carer when the local authority or agency commences preparation work. A prospective carer who is not approved by the local authority after assessment is covered by the term, as well as one who has withdrawn, for whatever reason, before going to the panel.

Authorities and agencies need to have clear procedures for the range of records they keep about prospective foster carers at the different stages of their applications. As well as conforming with the regulations, it is essential for management purposes to have information not only about prospective carers but also the way in which the applications are processed and progressed.

Some people may only make initial enquiries and go no further, so that no specific individual information on their circumstances will be known beyond name and address. The key point for starting an individual prospective foster carer record will be when he or she provides fuller information about his or her circumstances and preparation work is started. This will normally be through an initial interview or when they complete an application form.

When prospective foster carers do not progress to approved carers, there should be consideration, firstly, about closing any record started; and secondly, about clarity for doing this. This may be a simple note that they did not wish to take their interest further, and which may or may not be accompanied by a reason for this decision. Other prospective foster carers may not proceed on the advice of the agency; a difficulty affecting their application may have been identified or there may have been a clear decision not to approve them.

Where a prospective carer has been refused approval, the full report to the panel and others papers, along with the agency decision maker's reasons must be retained in the records.

Both the prospective foster carer and the local authority or agency need to be clear about the status of any information in these records and any disagreements should be noted. There are many reasons why prospective foster carers do not become approved foster carers. Some may enquire again, either to the same local authority/agency or to another one. Where information is being shared, it must be fair and accurate so that genuine concerns are identified to protect children, but prospective foster carers are not lost because there is an inaccurate or distorted record. Procedures should also cover how consent is obtained to share such information between authorities and agencies. Where local authorities are involved this will be addressed through explaining the use of local authority checks.

Retention of Foster Carer Records

Regulation 32 states that records on approved and prospective foster carers should be retained for 25 years. There is a requirement for keeping them in an accessible form; and they are confidential, with access only through the relevant legislation, the Data Protection Act 1998 or a court order.

3. Case Records for Looked After Children

Regulations42 and 43 set out the requirements in relation to case records for looked after children.

It is important that records include:

  • A chronology of significant events in the child's life to which all relevant services contribute;
  • Consistent recording of all staff contacts with children and families, including details of when the child has been seen;
  • Decisions taken and reasons for these;
  • A distinction made between facts and opinions;
  • Outcomes of interventions; and
  • Details of the child's views.

Records for children, including child protection, should be regularly reviewed and monitored by managers or others with a quality assurance role.

The importance of Chronologies

Chronologies are a useful tool for identifying, analysing and responding to patterns or an accumulation of concerns which contribute to the overall assessment of risks and needs and supporting informed decision-making about children's lives. These must be kept up-to-date and accurate and regularly reviewed.

The range of information which local authorities must include in their case records for looked after children is listed in regulation 42(2) . In thinking about the effectiveness of these records, both as a working tool and also for looked after children to access in the future, local authority procedures should also highlight the principles of good record keeping to all staff and carers. It is important to consider both the quality of the content and the accessibility of important material. The manner in which records are kept should facilitate anyone legitimately accessing them, to identify the planning pathway for the child while he or she is looked after, and to understand the child's development and progress.

Questions to consider when auditing case files

There are some key questions to ask when considering the information identified in regulation 42(2) and how carefully and effectively it is prepared and collated.

1. Do the reports demonstrate, both internally and to other agencies (especially the Children's Hearing system and courts) why the local authority decision was 'in the best interests of the child'? How did they balance the benefits and risks in difficult decisions; what was their evidence; whose views did they seek; and how did they evaluate opposing views?

2. How well do and did the local authority consistently carry out their responsibilities for the wellbeing and development of the child, whether in line with their general duties under section 17 of the 1995 Act or in terms of parental responsibilities and rights under a Parental Responsibilities Order or permanence order? Did they always act as a 'concerned parent?'

3. Would an adult who had been looked after as a child gain a sense that they and their parents had been listened to, even if the local authority did not always do as they wished? Would they be able to get an understanding of their time in the care system, why certain plans were made and also what their life was like? This is the sort of information which can fill in gaps in a disrupted childhood.

Retention of Records

Records for looked after and placed children are now on a similar footing to those for adopted children in terms of the length of time they have to be retained by local authorities. Regulation 43(1) requires a child's records to be kept for 100 years from the his or her date of birth, unless the child dies before the age of 18, in which case the period for retention is 25 years from the date of death. While the time as looked after may be brief for many children, others may spend many years of their childhood in various care placements. Their future needs for access to information about their past history may therefore be comparable to that of adopted adults. There is now a growing awareness of the issues around post-care access to records.

Linking of Sibling Records

Particular attention should be paid in local authority procedures to recording links to other records and information, given the frequency with which plans must be made for different members of sibling groups. In complex families comprising full, half and step siblings, children may have been accommodated at different ages and at different stages of the family history. One family may include siblings who were for example:

  • brought up by paternal relatives who have little contact; or
  • in kinship care; or
  • adopted together or separately; or
  • fostered; or
  • in residential care.

There may possibly be other siblings who remained at or returned home. For many adults whose birth families have been fragmented, there is as strong a wish to find out about their siblings as about their birth parents. It is therefore logical that there are similar procedures to cover all the records for all the children concerned, when the local authority has been involved in planning their placement. This is true whether the children were ultimately adopted or remained looked after and placed.

Retention of Records for those Looked after at Home

Regulation 43 regarding the retention of records applies to children who are placed by the local authority. For children who are looked after at home, there will obviously need to be an active working record while the local authority are involved. Local authorities should consider how long to retain these records once a case is closed.

The minimum period should be while there are still children or young people in the family under the age of 18. Children in the family may be referred or re-referred for support or move elsewhere and come to the attention of another local authority. In keeping records for longer periods, the local authority must consider the reasons for doing so. Apart from legitimate research purposes, possible requests for access may relate to older children who were adopted or accommodated before a more recent family history of children looked after at home. There may also be challenges to local authorities from adults who remained at home under supervision and who later question why they were not removed for their wellbeing or safety. Overall, it would be good practice to retain the records of each child looked after at home for a minimum period of 30 years from the date of the child's 18 th birthday.

Assistance in relation to Access to Records

Access to children's looked after records is governed by the Data Protection Act 1998 and the Data Protection (Subject Access Modification) (Social Work) Order 2000, SI 2000/415. Local authorities should have clear, robust and sympathetic procedures and systems to assist people who wish to access looked after children's records:

  • adults who were looked after in the past;
  • young people who were and are still looked after; and
  • the parents of younger children who wish to access their children's information.

Access by a young person under the age of 16

A young person who is under 16 has the right to seek access to his or her own records, in terms of section 66 of the 1998 Act, when he or she "has a general understanding of what it means to exercise that right." There is no lower age limit. A young person who is 16 or over has full adult capacity to exercise rights under the 1998 Act.

Local authorities should ensure that their procedures and systems for accessing looked after records reflect the recommendations about these matters in the Shaw Report: Historical Abuse Systemic Review: Residential Schools and Children's Homes in Scotland 1950 to 1995, led by Tom Shaw, and published on 22 November 2007.

Further information and advice about data protection issues generally may be obtained from the Information Commissioner for the UK

4. Allowances

Regulation 33 covers payments to both foster and kinship carers. Guidance for kinship carer payments is under Part V. The aim of the Concordat with local government, which runs to 2011, is that this group of looked after children should be on an equal footing with those in foster care so far as financial support is concerned, because similar issues apply to them as to children in foster care.

Regulation 33 makes provision for the local authority to pay such allowances "as they see fit" to a range of people:

(a) a foster carer or kinship carer;

(b) the carer of a child subject to a supervision requirement from the Children's Hearing, when he is she is not the child's parent; and

(c) anyone with parental responsibilities and rights under a permanence order with whom the child is residing.

In considering the payment of allowances, the local authority should be conscious of their overall responsibilities towards children who are looked after and accommodated by them. There is a strong expectation that the care provided will reflect the quality of care that children would receive from concerned parents. The emphasis on family-based care reflects a belief in good parenting. This places an expectation about the provision of care by foster carers. This is within the context of the wider governmental strategies at any time, about the aspirations for all Scotland's children and any additional concerns about vulnerable groups of children.

Expectations to be made of carers in relation to allowances

Foster carers are therefore charged with providing not just basic care but optimum care for looked after children. This includes:

  • a healthy diet and good physical care;
  • opportunities for stimulation and exercise;
  • development of social skills and participation in activities in the community;
  • building self esteem, including good presentation and acceptability by peers;
  • a safe and comfortable environment;
  • full inclusion in special celebrations such as birthdays, Christmas or other cultural or religious events;
  • promoting and developing educational opportunities.

Fostering allowances should ensure that children are offered high quality physical care and provision, and also that they have the opportunities to fill some of the gaps in experience that are often found in looked after children. Within the fostering household, children should not experience any sense of disadvantage, nor should the lifestyle of the foster family be financially disadvantaged by the placement.

While there is no statutory amount stated for allowances, the Fostering Network provides a recommended rate for children at different ages and stages, and this is updated annually. This guidance recommends that local authorities pay attention to this in setting their own allowances.

Allowances and Benefits

The issue of the interplay between fostering allowances and benefits is complex and open to continuing change in the wider benefits system. Added to this is the question of fees, where these are offered, and tax implications. Social workers who assess and support foster carers should have basic information about the range of financial implications for carers and be able to access more extensive advice on such matters.

Fee Payments

Regulation 33 does not make any reference to fees to foster carers. In order to sustain some very challenging children in foster care, extra financial support was offered originally through enhanced allowances. There were concerns about this approach of identifying and potentially labelling children as "difficult", and the potential for such payments to cease as a result of the improvement in children's development attributable to good foster and residential care. It is open to local authorities to decide whether to offer a reward element for foster carers, over and above the allowances paid for the cost of providing care. An increasing number do this, normally as fees, so that foster carers are regarded as self employed. There are a number of reasons for this including:

  • the growing recognition of the level of skills required for fostering and an expectation that carers participate in ongoing training;
  • the inclusion in the criteria for approval of foster carers of their ability to work as part of a team, and therefore be included as a full member of the local authority team alongside professional staff;
  • the range of tasks expected of foster carers being extended beyond direct care of children, to provision of reports; record keeping which may be evidenced in assessments, care planning and court processes; and participation in meetings;
  • the need to recruit an increasingly resourceful and skilled pool of foster carers leading to consideration of foster carers as an alternative home-based career for people who had the necessary attributes. Foster care needed, therefore, to be a realistic and viable alternative.

Local authorities and registered fostering services should ensure that their handbook for foster carers covers these issues.

Payments to non-approved carers

Local authorities should also have schemes and systems for paying allowances to those covered in regulation 33(1)(b) and (c) if such carers are not foster or kinship carers.