Creating placement choice - legislation
Law and standards
The Law and Standards sections apply to England only.
A brief indication of how the law changed upon full implementation (September 2004 and September 2005) of the Adoption and Children Act 2002 is inserted in italics.
Compliance with statute and regulations is mandatory; compliance with standards is taken into account by the CSCI when registering and inspecting fostering service providers.
The foster care services of local authority and independent fostering providers operate within the same legal framework provided by:
- The Children Act 1989
- The Fostering Services Regulations 2002
- The Arrangements for Placement of Children [General] Regulations1991 as amended
- The Children Act [Miscellaneous Amendments] [England] Regulations 2002
- The Review of Children’s Cases Regulations 1991
- The Review of Children’s Cases [Amendment] [England] Regulations 2004
All fostering services are registered and inspected by the Commission for Social Care Inspection, in the context of compliance with regulations and the Fostering Services National Minimum Standards.
Where children are in foster care provided by independent fostering providers, the relevant local authority [the 'responsible authority’] remains legally responsible for them and they remain 'looked after’.
National Minimum Fostering Standard 8
Fostering service providers must ensure that they offer carers only if they represent appropriate matches for a child for whom a local authority is seeking a carer.
Delegation of fostering duties by local authorities to independent service providers
Partnership Arrangements: Regulation 40  Fostering Service Regulations 2002
Independent service providers can undertake fostering duties on behalf of partner local authorities as detailed in a written agreement - Regulation 40  which sets out:
- which of its duties the local authority proposes to delegate in accordance with this regulation [most independent service providers do not wish to have the supervision of the child in placement under Regulation 35 delegated to them by the local authority]
- the services to be provided to the local authority by the registered person
- the arrangements for the selection by the local authority of particular foster parents from those approved by the independent service providers
- a requirement for the registered person to submit reports to the local authority on any placement as may be required by the authority
- the arrangements for the termination of the placement.
Particular child placements with independent service providers ['spot purchases’]
Regulation 40 
Where a local authority proposes to make an arrangement with an independent service provider in respect of a particular child the local authority shall enter into an agreement with the registered person in respect of that child which sets out:
- details of the particular foster parent with whom the child is to be placed
- details of any services the child is to receive
- the terms (including as to payment) of the proposed foster placement agreement
- the arrangements for record keeping about the child, and for the return of records at end of the placement
- a requirement for the registered person to notify the local authority immediately in the event of any concerns about the placement
- whether and on what basis other children may be placed with the foster parent.