Delegation of Authority to Foster Carers and Residential Workers

It is essential to fulfilling the local authority's duty to safeguard and promote the child's welfare 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.

The expectation must be that the assessment and approval of foster carers, their training and previous experiences of, for example, caring for their own children, will equip them with the skills and competence to undertake the day-to-day caring task, including taking day-to-day decisions about their foster child's care. Any skills gaps should be urgently addressed so that foster carers are able to carry out their parenting role effectively.

Where a particular decision is not delegated to a child's carer and rests with the local authority, there is a clear system in place for ensuring that decisions can be made by the appropriate person in a timely way, with arrangements in place to cover sickness and annual leave. Details of these arrangements are given to parents, carers and children (subject to age and understanding).

South Tyneside’s policy on delegated authority recognises that decisions about day-to-day care are best made by those who know the young people or who will get to know them best. It acknowledges that decision-making can be contentious and that those making the decisions will need support and advice to ensure that cared for children do not miss out in any way.

Principles:

• Authority for day-to-day decision-making about a cared for child should be delegated to the child’s carer(s), unless there is a valid reason not to do so;
• A child in care should have a completed delegated authority decision support tool which 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 cared for child’s views, and consideration should be given as to whether a cared for child is of sufficient age and understanding to take some decisions themselves.

South Tyneside Council commits to ensuring that children will have the best possible care whilst being cared for and will ensure that care is provided in a manner that is as close to family life as possible, working with parents whenever possible to ensure that the best care possible is provided;

Within this context South Tyneside Council understands that decisions regarding key aspects of care need to be made and that this inevitably means decisions needing to be taken at the right and appropriate level. There is an acknowledgement that this may involve risks at times as young people are given the opportunity to develop, enjoy new experiences, mature and also have fun!

South Tyneside will strive to ensure that decisions are made in a timely manner so that young people do not miss out on opportunities.

The Council will ensure that staff are familiar with this policy and its requirements and understand their role and responsibilities as defined below. It will also ensure that there is a good teamwork in evidence with regard to this area.

In line with statutory guidance, the Council will ensure that there is clarity with young people, carers, parents and professionals concerning day-to-day decision-making, and that this is delegated to carers unless there is a good reason not to do so. In such circumstances, the Council will expect that the reasons for this are recorded within the Placement Plan;

There is an expectation by the Council that the Placement Plan will contain details of authority concerning decision-making in terms of who can take necessary decisions concerning all aspects of the young person’s life. This will include important decisions as well as day-to-day decisions.  The Council expects that these decisions have been fully discussed with everyone who is working with the young person, including the young person. It is expected that the Placement Plan, including the delegation of authority is kept under review at each review of the young person's Care Plan.

South Tyneside will ensure that in day-to-day practice young people, parents and carers are consulted as to whether the young person has sufficient understanding to take some decisions themselves.

Where a long-term commitment has been made to a child, South Tyneside will ensure that carers are listened to with regard to important decisions such as a change in school or important care planning decisions.

South Tyneside will seek, listen to and take account of the views of young people, their parents, carers, and professionals in how the area of delegation of authority is working and how this can be improved. It will also ensure, depending on age, that young people understand the meaning of delegated decision-making.

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. For example:

• Where the plan is for the child to return home, the child's parents should have a significant role in decision-making;
• 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, including longer term decisions such as which school the child will attend;
• 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.

The child's parents do not lose Parental Responsibility when the child is cared for. 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 does have Parental Responsibility where there is a care order or emergency protection order. The foster carer never has Parental Responsibility.

Where a child is being voluntarily accommodated, 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 child is 16 or 17 the Care Plan should be agreed with them. A local authority cannot restrict a person's exercise of their Parental Responsibility, including their decisions about delegation, unless there is a care order or an emergency protection order in place.

Where a child is subject to a Care Order or Emergency Protection 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.

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 through the care planning process, which parents should be involved in, where reasonably practicable (whether the child is voluntarily Accommodated or under a Care Order).

Where a parent is unable to engage in the discussions about delegation of authority for whatever reason, or refuses to do so, the local authority will need to take a view. If the local authority has a Care Order, then they can exercise their Parental Responsibility without the parent. 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.

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 or over who has the mental capacity to do so can apply for their own passport). Where there is a Care Order, the child cannot be removed from the UK for more than a month without written consent of everyone with Parental Responsibility or the leave of the Court (where the child is voluntarily accommodated the necessary consents must be obtained as for a child outside the care system). 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 become cared for.

See also: Section 7.4, Consent to Life-ending Withdrawal of Medical Support.

Any decision about delegation of authority must consider the views of the child. In some cases a child will be of sufficient age and understanding to make decisions themselves. For example, they may have strong views about the often contentious issue of haircuts, and if the child is of sufficient age and understanding, it may be decided that they should be allowed to make these decisions themselves.

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

• Can the child understand the question being asked of them? 
• Do they appreciate the options open to them? 
• Can they weigh up the pros and cons of each option? 
• Can they express a clear personal view on the matter as distinct from repeating what someone else thinks they should do? 
• Can they be reasonably consistent in their view on the matter, or are they constantly changing their mind? 

Regardless of a child's competence, some decisions cannot be made until a child reaches a certain age, for example, tattoos are not permitted for a person under age 18 and certain piercings are not permitted until the child reaches age 16.

Where appropriate, consider seeking the child's views on the preferred decision maker.

Decisions about the care of a cared for child are likely to fall into three broad areas:

• Day-to-day parenting, e.g. routine decisions about health/hygiene, education, leisure activities;
• Routine but longer term decisions, e.g. school choice;
• Significant events, e.g. surgery.

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.

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.

The Care Planning, Placement and Case Review (England) Regulations 2010 (as amended) require that each cared for 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;
• 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 and any associated actions (e.g. a requirement for the carer to notify the local authority that a particular decision has been made) should be clearly set out in the Placement Plan. Placement Plans must be agreed with the child's carer, and are likely to be most effective when drawn up in a placement planning meeting which involves everyone concerned, including the carers.

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, so that when the decision arises, delay can be avoided.

For some decisions that are made by a person other than the child's carer, it may be expected that the carer will implement the decision. For example, parents or the local authority may agree to the provision of Children and Young People's Mental Health Services, but ask the carer to take the child to appointments. This is not delegation of decision making to the carer, as the decision will have been taken by those with Parental Responsibility and a medical professional, but it will enable the delivery of the service to continue without the need for ongoing support from social workers. The child's Placement Plan should make clear what the expectations of the carer are in such cases.

The appropriate distribution of decision making powers is likely to change over time, as the child matures and circumstances change. The Placement Plan 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.