Fostering Law in Scotland and its Interface with Immigration and Asylum Law

Terms used in this paper

(i) 'Parental responsibilities' means parental responsibilities and rights in relation to a child or children in terms of ss 1 and 2 of the CSA 1995. These may be exercised by birth mothers and or fathers and by other people who have acquired them by court order or will or adoption.

(ii) References to 'parent” or “parents' include anyone who has parental responsibilities and rights, whether they are birth parents or others.

(iii) 'Looked after' means cared for by a local authority under s 17 of the CSA.

1. What is fostering?

Fostering law is about situations when arrangements are made for a young person under 18 to live in a family home with carer(s) who are not people with parental responsibilities. For example, when birth parents are not able to care for their child or when it is not safe for them to do so.

The arrangements may be made

by local authorities - 'public fostering'; or
by parents - 'private fostering'.

'Public fostering' is where local authorities makes arrangements for 'looked after' children.

'Private fostering' is where parents make arrangements for their own children, because they are not able in the short or long term, for whatever reasons, to care for their children at home.

However, when parents make arrangements for their children to stay with their close relatives, or for them to stay with friends or neighbours for less than 28 days, the law does not treat this as 'fostering', although the word may be used in a non-legal sense about the arrangements.

Fostering arrangements covered by the law may be for any length of time, from very short-term, to long-term and permanent.

There are two completely different types of fostering - s 2(14) of the Regulation of Care (Scotland) Act 2001. The type depends on who makes the arrangements. Local authorities have duties in both types, but the duties are very different. Fostering is either:

public fostering; or
private fostering.

Where children and young people are with their parents in the UK, and the family are refugees or asylum seekers, the children may have arrangements made for them under either system. If the local authority are 'looking after' them, then they may be cared for in the public fostering system - see s 17 of the CSA about 'looked after' children. If their parents make private arrangements for them, then these may take them into the private fostering system.

Children and young people who are unaccompanied refugees or asylum seekers should be cared for by local authorities in the 'looked after' system - see s 17 of the CSA. They may be placed with carers in the public fostering system although they may be placed in other ways, such as in residential units. They will not be part of the private fostering system because they do not have parents to make these arrangements for them.

However, there may be refugee or asylum seeking children who are living with other family members in the UK. These arrangements may fall into the private fostering system if the relatives are not within the narrow range set out in that system - see below.

2. Public Fostering (references to 'fostered children' mean publically fostered children)

Arrangements are made by a local authority under s 26 of the CSA 1995. This is one of the ways in which local authorities can make arrangements for 'looked after' children: see s 17 of the CSA.

Local authorities do not have parental responsibilities for fostered children except for those who are looked after on a PRO under s 86 of the CSA.

All fostered children are 'looked after and placed' away from home. They are covered by the duties in the CSA 1995, ss 17, 29, 30 and 31.

All fostered children are also covered by two sets of regulations:

Arrangements to Look After Children (S) Regulations 1996 (SI 1996/3262) (LA Regs 1996) and
Fostering of Children (S) Regulations 1996 (SI1996/3263) (F Regs 1996).

All fostered children must have their cases reviewed regularly - s 31 CSA and LA Regs 1996 and must have care plans drawn up by their local authorities.

LA Regs 1996.

All fostered children must have medical assessments and treatment arranged for them, subject to children's rights to refuse - LA Regs 1996.

All fostered children must be placed with foster carers approved under the F Regs 1996.

All fostered children must have individual foster care agreements for them set up between the local authority and foster carers - F Regs 1996.

The rights of and duties towards publically fostered children are not affected by their immigration status and are just the same as those owed to children with full entitlement to reside in the UK.

However, if/when children return home from public foster care and cease to be 'looked after' they lose the rights owed to publically fostered children. They are no longer 'looked after' and local authorities no longer owe any 'looked after' duties to them.

3. Private fostering

Private fostering arrangements are private ones made by parents, where:

the children are placed with any other individuals or couples (not close relatives) in the carers’ own houses; and
the placement is for more than 28 days at a time; and
the children are under school-leaving age.

Private fostering law is in:

Foster Children (Scotland) Act 1984 (1984 Act); and
Foster Children (Private Fostering)(Scotland) Regulations 1985 (SI 1985/1789) (1985 Regs).

So the 1984 Act applies where the arrangements:

are with any individuals who are not close relatives (see below); and
last more than 28 days; and
the children are under school-leaving age.

If the arrangements are made to place children with individuals who are close relatives, that is, fathers without responsibilities, grandparents, adult siblings or aunts and uncles, the arrangements are not covered by private fostering law. Local authorities have no duties. These arrangements are neither public nor private fostering. If the arrangements are with any other individuals, including more distant relatives or close friends, they are covered by private fostering law.

If the arrangements are made by refugees or asylum seekers for their children, the same rules apply as for anyone else:

who are the children placed with? and
how long is the arrangement for?

When the 1984 Act applies, the parents and the prospective carers of children must notify the local authority where the children are to live not less than two weeks before the arrangement starts, unless it is an emergency. When there are emergency arrangements, notifications must be within one week of their starting.

Local authorities do not 'looked after' privately fostered children. But they have duties to 'inspect' and monitor arrangements made.

Local authorities do not have parental responsibilities for privately fostered children.

Notified local authorities have a duty to be satisfied about the well-being of privately fostered children. The children must be visited within one week of the start of placement and on a regular basis after that. These visits must be at least every three months when a child has lived with the carers for less than a year; in any other case at least every six months; and on such other occasions at lesser intervals as the local authority consider necessary - 1985 Regs, reg 7(1).

Local authorities can impose conditions on arrangements when they feel these are appropriate - s 9 of the 1984 Act.

Local authorities can prohibit private foster care arrangements in any particular premises when they believe they are not in children's interests - s 10 of the 1984 Act.

Some people may be disqualified from providing private fostering - s 7 of the 1984 Act.

When local authorities are not happy with arrangements they will try to arrange for children to return to their parents. If this is not possible, the children may become 'looked after' under the CSA 1995 and may become publically-fostered.

Private foster carers do not have parental responsibilities but they do have rights to control because they are acting for the parents and they have a duty to safeguard and protect the children they are caring for - s 5 of the CSA 1995.

One of the difficulties in practice is that many families do not know that they have a duty to notify private arrangements, or else deliberately fail to tell local authorities about them.

The immigration and asylum status of children is not affected when they are privately fostered.

Their rights to services under s 22 of the CSA (children in need) are also unaffected. If children are not entitled to children in need services when living with their families, because of their immigration status, they will not become entitled to children in need services just because they are privately fostered.