The Legal Context

Children Act 1989

All child care law relating to children being accommodated by the Local Authority comes under the Children Act 1989. The main principals of the Children Act are that:

  • The best place for children to be looked after is within their own homes.

  • The welfare of the child is the paramount consideration.

  • Parents should continue to be involved with their children and any legal proceedings that may concern them, and that legal proceedings should be unnecessary in most instances.

  • The welfare of children should be promoted by partnership between the family and the Local Authority.

  • Children should not be removed from their family, or contact terminated, unless it is absolutely necessary to do so.

  • The child's needs arising from race, culture, religion and language must be taken into account.

There are a number of terms that are used which come from the Children Act 1989 and are useful to know.

Parental Responsibility: This summarises the duties, rights, powers and responsibilities of a parent in respect of their child.

People other than parents can acquire shared parental responsibility. The Local Authority acquires parental responsibility if a Care Order or Emergency Protection Order is made. However, in the case of a Care Order the extent to which parental responsibility can be exercised by a parent may be limited by the Local Authority. If a Residence Order is made, parental responsibility can be awarded to the person looking after the child. Parents can delegate responsibility to someone else without losing it themselves.  This is something that should be discussed at Placement Planning Meetings when a child or young person is first placed with you and may need to be updated at subsequent statutory reviews.

Children Being 'Looked-after' by the Local Authority:  Accommodation may be provided on a voluntary basis and this comes under Section 20 of the Children Act 1989. When a child or young person is accommodated under Section 20 the person with parental responsibility (PR) may remove the child at any time, except when someone else who has PR under a Residence Order agrees with the accommodation. If this happens, the foster carer should inform the child's social worker and fostering social worker as soon as possible.  If there is a particular risk to the child or young person if they were removed the police may also need to be involved to protect the child or young person. Young people aged 16 and over may choose to be, or remain, accommodated against the wishes of someone with parental responsibility. This would be assessed by a Social Worker.

The Act states that, if reasonably practicable, a child should be placed with a person whom he or she knows, should be placed as near to his or her home as possible and siblings should stay together. If a child has a disability, the accommodation should be suitably equipped.  These are all things that would need to be considered when considering where a child or young person should be placed.

Children may be looked-after under a Court Order. This may be an Emergency Protection Order, Remand, or an Interim or Full Care Order. A parent may not remove a child if he or she is subject to a legal order.

Children and young people can be placed with foster carers under any of these orders.  It is important as foster carers that you know which legal arrangement the child or young person is looked after as it will affect who has parental responsibility of the child or young person.  If court proceedings are in process the legal status may change while the child or young person is placed with you.  If, as a foster carer, you are not sure of the legal status of the child or young person you should ask the social worker for this information.

Welfare of the Child This is the most important principle of the Children Act and one that is regarded as paramount by a court in considering any question of the child's upbringing. When the court is making a decision it must use the following checklist as it decides what to do:

  • The wishes and feelings of the child, as far as the court can find these out.

  • The physical, emotional, and educational needs of the child.

  • The likely effects on the child of any changes in his or her circumstances.

  • The age, sex, background and any other characteristics of the child that the Court considers to be relevant.

  • Any harm which the child has suffered, or is at risk of suffering.

  • How capable each parent or other relevant person is of meeting the child's needs.

  • The range of power available to the Court under the Children Act.

Duty to Investigate (Section 47). This is the part of the Children Act which gives the local authority the duty to investigate if there are concerns regarding any child or young person who is suffering, or likely to suffer, significant harm. This also includes children and young people in foster care.  If there is any information which causes the local authority to be concerned about a child or young person then the local authority has to make any enquiries which they believe is necessary to enable them to decide whether there needs to be any action taken in order to safeguard the child or young person’s welfare.