Delegation of Authority to Foster Carers and Residential Workers

1. Scope of this Chapter

The chapter sets out the arrangements for delegating to carers authority to make decisions regarding Looked after Children and Young People in their care.

Carer in this context, means the foster carer including friends and family foster carers, residential workers/managers and supported accommodation. 

The delegation of better and more appropriate decision making will help all carers to carry out their parenting role, take responsibility and become more involved in wider decision making about the children and young people they care for whilst continuing to receive appropriate support.

This will enable our looked after children and young people to enjoy a normal childhood and family life and avoid them missing opportunities and feeling any different to their peers. It will also support our looked after children and young people to have confidence in their relationships with their carers thus supporting the development of trusting secure attachments.

2. Guiding Principles

• Authority for day-to-day decision making about a Looked After child should be delegated to the child's carer(s), unless there is a valid reason not to do so;
• A Looked After child's Placement Plan/Agreement should record who has the authority to take particular decisions about the child. It should also record the reasons where any day-to-day decision is not delegated to the child's carer;
• Decisions about delegation of authority should take account of the Looked After child's views, and consideration should be given as to whether a Looked After child is of sufficient age and understanding to take some decisions themselves;
• The Local Authority's policy should take account of  the need to maximise, wherever possible, the authority for the day- to- day decision making that is delegated to the looked after children's carers, particularly when the placement is intended to be long term.

3. Delegation of Authority

In fulfilling the Local Authority's duty to safeguard and promote the child's welfare it is essential that, wherever possible, the most appropriate person to take a decision about the child has the authority to do so, and that there is clarity about who has the authority to decide what.

Decisions about delegation of authority must be made within the context of:

• The child's Permanence Plan, which sets out the local authority's plan for achieving a permanent home for the child; and
• The legal framework for Parental Responsibility in the Children Act 1989.

4. Delegation in the Context of the Permanence Plan

When deciding who should have authority to take particular decisions, the most appropriate exercise of decision-making powers will depend, in part, on the long term plan for the child, as set out in the child's Permanence Plan.

• Whatever the Permanence Plan, the carer should have delegated authority to take day-to-day parenting decisions. This enables them to provide the best possible care for the child.
• Where the plan is for long term foster care / Fostering for Adoption the foster carers should have a significant say in the majority of decisions about the child's care,
• Where the plan is for the child to return home, the child's parents should have a significant role in decision-making.

5. Delegation in the Context of the Law on Parental Responsibility 

The child's parents do not lose Parental Responsibility when the child is Looked After.

Where the child is voluntarily Accommodated under Section 20 of the Children Act 1989 the local authority does not have Parental Responsibility.

The Local Authority shares Parental Responsibility with the child's parents where the child is subject to an Interim Care Order or Care Order.

Providers of care such as Foster Carers, Residential Carers and/or Supported Accommodation Providers do not hold parental responsibility for a child or young person in their care.

Where children are placed at home under a Care Order, Parental Responsibility is shared between the parents and the Local Authority.

A Local Authority cannot restrict a person's exercise of their Parental Responsibility including their decisions about delegation unless there is a Care Order in place.

Decisions about delegation should be kept under review through the care planning process, which parents should be involved in, where reasonably practicable and appropriate for the child.

It is important to build effective relationships between parents and others with Parental Responsibility so that they understand that appropriate delegation is in the best interests of the child. Where parents initially feel unable to delegate, this may change over time as trust develops, so decisions should be kept under review.

Where a parent is unable to engage in discussions regarding the delegation of authority for whatever reason or refuse to do so, the Local Authority will need to take a view. If the Local Authority shares parental responsibility by virtue of a Care Order, they can exercise their parental responsibility for the child. Where the Local Authority does not share parental responsibility, they can still do what is reasonable in the circumstances to safeguard the child's welfare.

There are some decisions where the law prevents authority being delegated to a person without Parental Responsibility. These include applying for a passport (a child aged 16 and over who has mental capacity to do so can apply for their own passport).

Where a Care Order is in place, the child cannot be removed from the UK for more than a month without written consent from all those who hold parental responsibility or the leave of the court.

A Local Authority cannot decide that a child should be known by a different surname or be brought up in a religion other than the one they would have been brought up in had they not been looked after.

See also Section 10.4, Consent to Life-ending Withdrawal of Medical Support.

Section 20 Accommodation

The child's Care Plan, including delegation of authority to the Local Authority or child's carer, should (where the child is under 16), as far as is reasonably practicable, be agreed with the child's parents and anyone else who has Parental Responsibility.

If the young person is 16 or 17 the care plan should be agreed with them in discussion with their parents who retain parental responsibility for them until they reach adulthood.

As stated above, where the Local Authority does not have Parental Responsibility, they can still do what is reasonable in the circumstances for the purpose of safeguarding and promoting the child's welfare, ensuring that the reasons for the action taken are clearly recorded and communicated to the child, the carer and parents.

Care Order

The Local Authority should, wherever possible and appropriate; consult parents and others with Parental Responsibility for the child. The views of parents and others with Parental Responsibility should be complied with unless it is not consistent with the child's welfare and should factor in the child's wishes dependent on their age and level of understanding.

If the Local Authority has a Care Order, there remains a legal duty to consult parents. Where there is a disagreement between the Local Authority and the parents, the Local Authority can if it is considered to be in the child's best interests override a parent's wishes. The reasons for this need to be clearly recorded on the child's file and communicated to parents.

6. The Child's Ability to Make Decisions Themselves

Any decision about delegation of authority must consider the views of the child or young person.

In some cases a child or young person will be of sufficient age and understanding to make decisions themselves.

The Local Authority should, where appropriate, consider seeking the child's view on their preferred decision maker.

When deciding whether a particular child or young person has sufficient understanding to make a decision, the following questions should be considered:

• Does the child or young person understand the question being asked of them?
• Do they appreciate the options available to them?
• Are they able to weigh up the pros and cons of each option?
• Can they provide a clear personal view on the matter, as distinct from repeating what someone else thinks they should do?
• Is the child or young person reasonably consistent in their view on the matter, or are they constantly changing their mind?
• In terms of this decision is the child being placed under any undue pressure from any party.

Some decisions cannot be made until a young person reaches a certain age, regardless of their competence (e.g. tattoos are not allowed for a young person under age 18 and some piercings until age 16).

7. Types of Decision and Who Should Make Them

Decisions about the care of a child or young person being looked after are likely to fall into three broad areas:

• Day to day parenting decisions, for example;
• Routine but longer term decisions';
• Significant Events.

Day to Day Parenting Decisions

All decisions should be delegated to the child's carer (and/or the young person if they can make any of these decisions themselves).

Any exceptions or reasons for not delegating day-to- day parenting decisions to the carers should be set out in the placement plan within the child's care plan.

Decisions about activities that have a risk assessment carried out by the activity's organisers / supervisors (e.g. school trips or activity breaks) should be delegated to the carer. There is no expectation or requirement for the Local Authority to duplicate any current risk assessments.

Reasons not delegate certain decisions in this area may reflect the child's individual needs, the child's experiences at home and in other care settings and where there are significant risks associated with the child's behaviour, friendships etc. The Placement Plan/Agreement should reflect such situations and clarify for the carer, child and parents who needs to be consulted when decisions are made and/or whether Risk Assessments are required to address particular risks/vulnerabilities for the child.

Routine Longer Term Decisions

This category of decisions will require skilled partnership work to involve the relevant people. The child's Permanence Plan will be an important factor in determining who should be involved in each decision.

Where a decision has been made that the child's placement is their long term placement, the Placement Plan/Agreement needs to be reviewed to ensure that the delegation of authority reflects this placement status.

Decisions regarding, for example, the choice of school, should be made in discussion with the child's Social Worker, Carer, Parents, and the appropriate Manager within the Education for Looked after Children Service and should be linked to the child's Personal Education Plan, Education, Health and Care Plan etc.

Significant Events

This category of decisions is likely to be more serious and far reaching. These may include consent to medical and or dental treatment.

Where the child is under a Care Order, decisions may be made by the birth parents or others with Parental Responsibility which includes named Senior Managers within the Service. Such decisions should always take account of the wishes and feelings of the child and their carer.

Where the child is voluntarily accommodated, the child's birth parents or others with Parental Responsibility should make these decisions.

8. The Placement Plan/Agreement

This policy is designed to inform the discussions that need to take place at the point a child is placed and when the Placement Planning Meeting takes place. Such discussions should take account of the child's individual circumstances when detailing how authority for decision-making is to be delegated. Children's Placement Plans/Agreements should take account of the principles set out in the policy, as well as of the statutory guidance on which the policy is based.

The Care Planning, Placement and Case Review (England) Regulations 2010 (as amended) require that each looked after child's Placement Plan must make clear who has the authority to take decisions in key areas of the child's day-to-day life, including:

• Medical or dental treatment;
• Education;
• Leisure and home life (note: includes overnight stays with friends);
• Faith and religious observance;
• Use of social media; and
• Any other areas of decision-making considered relevant with respect to the particular child.

The person(s) with the authority to take a particular decision or give a particular consent must be clearly named on the Placement Plan/Agreement and any associated actions required should be clearly set out in the Placement Plan/Agreement, for example, a requirement for the carer to notify the Local Authority that a particular decision has been made.

Placement Plans must be agreed with the child's carer and must be finalised at the Placement Planning Meeting which involves everyone concerned, including the carers and the child/young person. These need to be review as part of Statutory Visits by the child's Social Worker and as part of the LAC Review Process. Where the child is placed in Foster Carer, delegated authority will be discussed as part of visits by the Supervising Social Worker.

Where a decision is not delegated to the child's carer, but can be predicted in advance, the agreement of those with Parental Responsibility to the decision should be sought in advance and recorded in the Placement Plan/Agreement, so that when the decision arises, delay can be avoided, for example, agreement in principle to a child being included in carers family holidays.

In some circumstances it might be expected that the carer will implement decisions that have been made by others, for example, the child's parents or the Local Authority may agree to the provision of Child and Adolescent Mental Health Services but asks the carer to take the child to appointments. This is not delegation of authority to the carer but it will enable the child to receive a service, supported by their carer.

The appropriate distribution of decision making powers is likely to change over time, as the child matures and circumstances change. The Placement Plan/Agreement forms a part of the child's overall Care Plan. Decisions about delegation of authority should be considered at each review of the Care Plan.

How will this process happen?

In the first instance, the details of the decision making delegated to the carer will be set out in the Placement Plan initiated when the child is placed and finalised at the Placement Planning meeting. The Placement Planning should, ideally, be held before the child is placed; if this is not possible due to the urgency of the situation it should be held as soon as practicable bearing in mind that the Placement Plan must be prepared within 5 working days of the child being placed. The Placement Plan / delegated authority agreement should be signed by the carer, parents, child/young person and the child's Social Worker.

Parents will be invited to the meeting unless there is a clear reason why this is not appropriate.  The children/young people may be invited where they are of an age and understanding.

Any exceptions to the delegation of authority to the carer in respect of day to day decisions will be recorded in this document as will the reasoning.

The issue of delegated authority will be re-visited at each Looked after Child's Review and will be a point of discussion at each statutory visit to a child in placement in terms of considering whether the agreements in place are still the most appropriate or need to be updated to reflect any change in circumstance.

9. Delegation in the Context of the Child's Education

The Education Act 1996 defines "parent" as including a person who has care of the child in question. Therefore a child's foster carer or residential worker is deemed a parent for the purposes of education law.

This means, for example, that a foster carer should be treated like a parent with respect to information provided by a school about the child's progress; should be invited to meetings about the child; and should be able to give consent to decisions regarding school activities. This excludes giving agreement to a child been taken out of school in term time. This decision is made by a Senior Manager in exceptional circumstances only.

Young people can sometimes apply in their own right for a place at Sixth form or FE College. If they are of compulsory school age their application must also be signed by a parent (which in the context of education includes foster carers or residential workers) confirming their approval of the application.

Once they are over compulsory school age they can apply in their own right without the need for parental consent. Young people can also appeal against the refusal of a sixth form place along these lines.

10. Delegation in the Context of the Child's Health

The legal position concerning consent and refusal of health treatment for those under 18 years old is set out in Chapter 3 of the Department of Health's Reference Guide to Consent for Examination or Treatment, (2nd Edition 2009). This includes specific reference to Young people aged 16 or 17 and the judgement for a "Gillick competent" child aged under 16.

10.1 Young People aged 16 or 17

Young people aged 16 or 17 are presumed to be capable of consenting to their own medical treatment provided that consent is given voluntarily and they are appropriately informed regarding the particular treatment. If the young person is capable of giving valid consent, then it is not legally necessary to obtain consent from the person with parental responsibility. However, it is good practice to involve the young person's parents and carers in the decision making process unless the young person specifically wishes to exclude them.

10.2 Children under 16 – the concept of Gillick competence

1. Child 'Gillick Competent
   
   A child of under 16 may be Gillick Competent to consent to medical treatment, i.e. they  have sufficient understanding  to enable them to understand fully what is involved in a proposed intervention. Deciding whether or not a child is Gillick Competent can be a difficult judgment, and legal advice should be sought as necessary.
   
   The understanding required for different interventions will vary considerably. Thus a child under 16 may have the capacity to consent to some interventions but not to others. The child's capacity to consent should be assessed carefully in relation to each decision that needs to be made.
   
   In some cases, for example because of a mental disorder, a child's mental state may fluctuate significantly, so that on some occasions the child appears Gillick Competent in respect of a particular decision and on other occasions does not. In such cases, legal advice may be sought.
   
   If the child is Gillick Competent and is able to give voluntary consent after receiving appropriate information, that consent will be valid and additional consent by a person with parental responsibility will not be required. It is, however, good practice to involve the child's family in the decision-making process, if the child consents to their information being shared;
2. Child Not 'Gillick Competent
   
   Where a child under the age of 16 lacks capacity to consent (i.e. is not Gillick Competent), consent can be given on their behalf by any one person with Parental Responsibility. Consent given by one person with Parental Responsibility is valid, even if another person with Parental Responsibility withholds consent. However, legal advice may be necessary in such cases.

10.3 Refusal of Consent

Where a young person aged 16 or 17 who could consent to treatment or a child under 16 who is Gillick Competent, refuses treatment, it is possible that such a refusal could be overruled by a Court if it would in all probability lead to the death of the child or to severe permanent injury. Legal advice must be sought in such circumstances.

The Care Planning, Placement and Case Review (England) Regulations 2010 (as amended) require that each looked after child's placement plan must make clear who has the authority to take decisions regarding the child's health's including medical or dental treatment.

10.4 Consent to Life-ending Withdrawal of Medical Support

The High Court in Herefordshire Council –v- M and F and others (Re YY (Children: Conduct of the Local Authority)) stated that the making of a decision which is likely to result in the death of a looked after child (such as the withdrawal of life support treatment) comes within a small category of cases where, notwithstanding the local authority's powers to exercise corporate parental responsibility under section 33(3)(b) Children Act 1989, the consequences of the exercise of that particular act of parental responsibility are so profound and have such an impact on the child, and/or the Article 8 rights of other parties who share parental responsibility, that the matter must come before the High Court for its consideration and determination. In such cases, therefore, urgent legal advice must be sought, even if all parties are in agreement that medical treatment should be withdrawn.