Delegated Authority Guidance
This document acknowledges the work of the Fostering Network.In February 2014, this procedure replaced the previous chapter Policy and Guidance: Delegation of Decisions on Overnight Stays for Looked After Children to Carers.
1. Delegated Authority
The revised Statutory Framework for Fostering and Care Planning and the Foster Carers' Charter emphasise the importance of foster carers being able to take a range of decisions about the day to day aspects of the lives of the children and young people they care for.
The project 'Like Everyone Else' (The Fostering Network 2009-2011) highlights the confusion and uncertainty that exists for many children and young people and their carers about what they can and cannot participate in. The same project confirmed that parents needed reassurance that they were not being excluded from their child's life, especially where long term or permanent fostering is the plan.
The Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2013, which came into force on 1st July 2013,introduce an explicit requirement for a Looked After child's Placement Plan (the part of the child's Care Plan concerning their day to day care) to state how authority to take decisions has been allocated in specified decision-making areas. This is a requirement for all children, not just those placed with a foster carer. These include: medical and dental treatment; education; leisure and home life; faith and religious observance; use of social media; and any other matters considered relevant in relation to the particular child.
The Fostering Network defines delegated authority as:
- Reducing the child's sense of difference;
- Reducing delay in decision-making;
- Producing more thoughtful thinking about who is best placed to do what;
- Ensuring discussion and forward planning regarding agreement and consent issues;
- Ensuring that foster carers are part of the team around the child;
- Ensuring clarity and transparency;
- Ensuring better use of existing processes and roles.
The Fostering Network further confirms that delegated authority is not about:
- Blanket responses and approaches;
- Fashions and fads in child care;
- Foster carers 'going it alone';
- Excluding parents or encroaching on their rights;
- Excluding social workers;
- Foster carers being exposed and punished when things go wrong;
- Reducing attention to assessing risk.
This guidance is for social workers in fieldwork and residential services working with children placed with foster carers or in residential settings.
2. Legislation and Guidance
This guidance is issued with reference to:
- The Children Act 1989;
- The Care Planning, Placement and Case Review (England) Regulations 2010;
- The Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2013;
- The Children Act 1989 Statutory Guidance - Vol: 1 Court Orders;
- The Children Act 1989 Statutory Guidance - Vol: 2 Care Planning, Placement and Case Review (2010);
- The Children Act 1989 Statutory Guidance - Vol: 4 Fostering Services;
- National Minimum Standards for Fostering Services 2011;
- IRO Handbook 2010.
3. Parental Responsibility
The law defines Parental Responsibility as:
"All the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his property"
If a child is subject to a Care Order, an Interim Care Order or an Emergency Protection Order then the local authority also has Parental Responsibility (PR) which they share with the parents or any others awarded Parental Responsibility. In these circumstances, the local authority may limit the extent to which parents and others may exercise their Parental Responsibility.
When a child is Accommodated by agreement under Section 20, then parents and any others with Parental Responsibility retain their Parental Responsibility and the local authority does not have Parental Responsibility.
No one who holds Parental Responsibility for a child can give up or transfer their Parental Responsibility to another person. However, in certain circumstances, the person who has Parental Responsibility may arrange for some or all of their responsibilities to be met by someone else. This is 'delegating authority' and may be used, for example for medical appointments or school trips.
All delegations must be agreed with those who hold Parental Responsibility; carers never have Parental Responsibility for the child in their care and only make decisions acting on behalf of the local authority and parent.
The law also states that where someone does not have Parental Responsibility but does have care of a child they may take reasonable steps to safeguard or promote the child's welfare. This means that in an emergency, if no agreement has been made about what to do, then the carer may do what is reasonable in order to safeguard the child. Statutory guidance says that what is reasonable will depend upon the urgency of the situation and how practical it is to consult the person who has Parental Responsibility.
Carers need authority to make day to day decisions for the child or young person they are caring for. This could include matters relating to health, education including school trips, leisure activities, overnight stays, holidays, and personal issues such as haircuts. Carers, particularly foster carers, should be supported to make reasonable and appropriate decisions within the authority delegated to them, without having to seek consent unnecessarily and will make those decisions, as any good parent would, by assessing the needs of the child and any risk.
Where the carer believes that there are issues which it would be in the best interests of the child for them to decide and these are not covered by the Placement Plan, then the carer should discuss this with the child's social worker; foster carers should also discuss their concerns with their supervising social worker. The carer could also consider discussing these issues with the IRO, or advocate if the child has one.
4. Placement Plans
The Statutory Guidance on Care Planning, Placement and Case Review which came into force on 1 April 2011 requires the local authority to ensure that a Placement Plan is in place. It sits within the overall Care Plan and must be drawn up before the child is placed or, if that is not possible within five day of the start of the placement.
The Placement Plan should clearly set out the arrangements for the child to live with and be cared for by the foster carer. Specifically details any arrangements for the delegation of authority from parents to the local authority and from the local authority to the foster carer must be addressed so that all parties are clear about everyone's roles, who is responsible for each task and who is giving consent for that ask to be undertaken.
The Placement Plan should assist carers in understanding what decisions they can make.
Children should be enabled and supported to take part in age-appropriate peer activities as would normally be granted by the parent to their children. Within the framework of the Placement Plan, decision-making and any assessment of risk to the child regarding these activities should be undertaken on the same basis as a reasonable parent would do.
Children are encouraged and enabled to make and sustain friendships, which may involve friends visiting and reciprocal arrangements to visit friends' homes. Children can stay overnight with friends if foster carers consider it appropriate in individual circumstances. Subject to the requirements of Care or Placement Plans this should take place without a requirement that friends' parents should be police or Disclosure and Barring Service (DBS) checked. Only in exceptional cases should there be restriction on carers agreeing overnight stays.
Children's health must be promoted in accordance with their Placement Plan and carers must be clear about what responsibilities and decisions are delegated to them and in what circumstances consent for medical treatment needs to be obtained.
The Placement Plan must enable carers understand what decisions about contact are delegated to them, in line with the child's care plan, and make those decisions in the child's best interests.
In writing the Placement Plan the wishes and feelings of children and young people should be taken into account and clearly articulated.
There are some circumstances in which the consent of the person or persons with Parental Responsibility are essential and cannot be delegated to another. These include removal of a child from the country and general anaesthetic.
Where authority has been delegated, the person who holds Parental Responsibility still remains liable in law for failure to meet any part of their Parental Responsibility, unless the person to whom authority has been delegated made a criminal or negligent decision.
A young person aged 16 years, or a young person who is considered by medical staff to have sufficient understanding of the implications of treatment can consent or withhold consent for their own medical treatment.
Decisions regarding the level of delegated authority should be based on good quality assessments of need and risk for the individual child and foster carer. The balance and distribution of responsibilities should support the key relationship between the young person and their carer in long-term and permanent placements.
5. Birth Parents and Others with Parental Responsibility
Parents should be given all the information they need to enable them to reach a decision about delegation of authority. They must also be given full opportunity to discuss any concerns they may have with their child's social worker.
Parents must be supported and kept fully informed as is possible about any decisions made about their child so that they play as full a part as possible in their children's lives. Research conducted by The Fostering Network as part of the 'Like Everyone Else' project demonstrated that for many parents, feeling excluded and/or confused about how everything works contributed to some parents feeling the need to hold on tightly to the issues they feel they can control like haircuts and holidays.
The delegated authority should be revisited at every review by the IRO along with any other plans and the overall Care Plan. Parents, foster carers and the child should all be involved in planning and the review. Any changes to the delegated authority must be incorporated into the child's Placement Plan by the social worker.
See also: Looked After Reviews Procedure.
7. Resolving Differences of Opinion
The child's social worker, the carer and the supervising social worker (if the child is cared for by a foster carer) form the team around the child as the key professionals working with the child. As such this team and its positive functioning are essential to ensure successful problem solving and conflict resolution in making sure that the placement is a successful one for the child or young person.
In dealing with any issues that may arise, good communication between these professionals will be required at all times, particularly if issues arise which lead to tension. Such communication should not wait for routine visits or statutory reviews.
A change in the child's social worker or the supervising social worker for foster carers is also something which can lead to all parties feeling anxious and/or vulnerable. Active consideration should be given to convening a meeting to establish the new relationships and the principles for working productively together.
Where there are differing views about how the child will be cared for within the placement or about an aspect of delegated authority which the professionals and those with Parental Responsibility cannot resolve a meeting should be convened by the social worker which will be chaired by the Independent Reviewing Officer (IRO) to reach a resolution. The role of the chairperson is to facilitate the discussion between professionals and those with Parental Responsibility, enabling negotiation between parties to reach agreement. At all times, the adults involved should keep in mind the findings of 'Like Everyone Else'. Walsall Children's Services expectation is that such meetings will be the exception and that the team of key professionals around the child will work to resolve disagreements without recourse to this type of meeting.
8. Guidance on Areas of Decision Making and Consent
There are a number of key areas where decisions will need to be made for a child or young person or consent will be required.
It is important to remember that parents must always agree to authority being delegated unless there is a Care Order in place and Walsall Council consider that it is the child's best interests to limit the parent's ability to exercise their Parental Responsibility. However, the presumption should be that where possible, even with a Care Order, parents should be involved in decisions about their child's life.
8.1 Health ~ including routine medicals, immunisations, non routine treatment, dental treatment, optician, dentist
The child's Placement Plan should clearly show which areas of the child's health needs the carer has delegated authority to take decisions or give consent. The Placement Plan could be used by carers as evidence of their delegated authority if required.
Routine medicals: Carers should be able to agree to routine medicals and given delegated authority in this area. Whenever possible carers should also be given delegated authority to consent to immunisations. Parents may have concerns about particular immunisations and this should be explored with them at the beginning of the placement.
Non routine treatment: Children should never have to wait for pain relief or emergency treatment as a result of confusion about who has authority to give consent. Situations may arise where children will sustain an injury or require emergency treatment – for example, because they have appendicitis or a broken bone. The Placement Plan should include who can give consent to treatment in these scenarios so as to avoid, as far as possible, situations where it is necessary to contact the local authority's out-of-hours service or to cause an officer from the local authority to have to go to the hospital to sign a consent form.
It should be noted, however, that even where authority has not been delegated, carers can do what is reasonable in an emergency to keep the child safe.
Surgery and other invasive treatments: In some cases children may require invasive medical procedures. These may be planned, or unplanned but predictable – for example, if a child has a long standing medical condition that results in frequent unplanned surgery. In other cases, invasive intervention may be required in an emergency. Carers should not automatically be barred from consenting to such procedures. Delegated authority should be discussed at the outset of the placement and the Placement Plan should make clear what has been delegated.
Dental checks and treatment: Carers should be able to consent to routine examinations and treatment wherever possible. There are no consent forms for routine dental examinations and treatment. The documents signed by adults accompanying children to the dentist are the means by which the dentist claims fees and payments. Presenting the child is assumed consent for the procedures that follow.
Optician checks and treatment: Carers should be able to sign consent for routine eye and sight tests and the provision of glasses.
8.2 Education ~ including school trips, choice of school, changing or moving school, time out of school
Choice of school: The choice of an early years setting or school should be discussed and agreed by the holders of Parental Responsibility at the statutory review meeting. The child's social worker should have a discussion with the Virtual School for Looked After Children to ensure that their expertise and knowledge is available to the carers and those with Parental Responsibility in making this decision. The carers should then be able to accept the place and sign any relevant forms.
Changing or moving school: If the foster carer decides to move house or the carer wants the child to attend a different school, this will need to be agreed at a review meeting. The impact on the child should be a significant factor in this discussion and the views of the Virtual School should be sought. The carer should be able to complete the practical steps to implement the agreed actions. When this is being considered for a child or young person about to sit their SATS or a young person in Year 10 or above, agreement to any move must be given by the Designated Officer; for Walsall this is the Assistant Director.
Meeting with school staff: In a medium to long-term placement, the carer should usually be the person to meet school staff to discuss progress and share information that the school needs to know in order to help the child succeed. Between reviews, the carer should ensure that the social worker and, if appropriate, the parent is kept informed about the child's progress at school, particularly if there are any problems. This includes active participation in the child's Personal Education Plan (PEP).
Sex education: Children will receive education about sex and relationships at school, unless parents have decided to withdraw their children from such lessons. However, the arrangements in schools for how sex education is delivered in the curriculum may differ. A child's participation in the school's provision for sex and relationship education should be discussed at the Placement Planning meeting and parents wishes identified and recorded. If it is agreed beforehand that the child attends, the carer should be able to consent on any school documentation. There will also be occasions when issues around sex and relationships arise in the foster or residential home. Unless parents have expressed particular wishes about what they want their child to be told – and how – carers should respond as any reasonable parent would.
School trips: Risk assessments for school trips and outings are the responsibility of schools. Carers should be delegated the task of providing agreements and signatures for these from the outset of a placement, wherever possible. Where this is not delegated, the reason should be made clear.
Longer school trips / trips involving more hazardous activity: Longer school trips at home or abroad that require additional funding from the local authority, and trips which involve potentially hazardous activities, will require carers to consult with the child's social worker. There may also be implications for contact which will need to be resolved. Where consent is necessary from the local authority and/or the parents, it is important that this request is made as early as possible in order to avoid the child missing out on an opportunity. The LA should operate on the general presumption that unless the child is likely to be put at a particular risk of harm which cannot be mitigated, he or she should be allowed to go on the trip. Risk assessments are the responsibility of the school.
Time out of school: We recognise and value the importance of education as a protective factor for all children and children placed with carers are expected to achieve 100% attendance. Time out of school is not an area where authority will be delegated and permission for a child to be taken out of school during term time must always be sought from the Assistant Director for Specialist Services.
Holidays during term time: We recognise the importance of education as a protective factor for all children and children placed with carers are expected to achieve 100% attendance. Permission for holiday during term time is not an area where authority will be delegated and permission will not be given for children to take holiday during term time.
8.3 Leisure ~ including overnight stays, visiting friends, personal allowance, holidays in the UK and abroad, haircuts, contact, photography and other media/social media activity
Overnight stays: The Government's intention is that carers should be able to make decisions about overnight stays as if the child was their own child, and act as a protective parent would. The authority delegated to the carer to make decisions on overnight stays should be set out in the Placement Plan, along with any restrictions on overnight stays that may be necessary in exceptional circumstances. Volume 2, chapter 3, of the Children Act 1989 Statutory Guidance covers this matter in the section Shared Responsibilities and Consents.
Visiting friends: As with overnight stays, the statutory guidance concerning visiting friends is clear: unless there is a reason for not delegating authority, the carer should be authorised to act as a good parent in decisions regarding visits to friends. Where this is not delegated, the reason should be made clear.
Personal allowance: Children should be given a personal allowance appropriate to their age and understanding, in line with the element within the care allowances and with what is said within the Placement Plan. Children should be encouraged and supported to save through opening a savings account with WalSave (Walsall Credit Union), a building society or a bank.
Haircuts: This is often not straightforward and can be a fraught area for carers, children and young people. It is sometimes the only area in which birth parents feel they can have their say and it is important that this does not become a battle ground which will impact on the child. It is important as hair care and style may have cultural or religious significance for families. Decisions about the timing of, and arrangements for, haircuts should be delegated to those with whom the child lives, wherever possible. However, the issues need to be fully explored with parents at the outset. Arrangements should be agreed at the Placement Planning meeting and recorded in the Placement Plan; arrangements should be revisited, as necessary, in reviews.
Holidays in the UK: Most holidays will require discussion with the parent and consultation with the local authority for funding and implications for contact arrangements. It is also necessary for the local authority and parents to know the whereabouts of children. Carers should ensure that the local authority is given adequate notice of the intention to take a child on holiday. Consent to take a child out of school during term time will not be delegated or agreed and the key team of professionals should ensure that all parties are aware of this at the first planning meeting.
Holidays abroad: The possibility of children accompanying their carers on a family holiday abroad should be discussed with parents 'in principle' when they become Looked After. The parents' views and concerns should be known at the outset. In all cases, there should be clarity at the outset about consents, passports and the possibility that arrangements can allow for short notice – so the carers can take advantage of a cheap holiday deal or a trip at short notice for personal reasons. Consents and passports are also relevant in the case of school trips abroad. Consent to take a child out of school during term time will not be delegated or agreed and the key team of professionals should ensure that all parties are aware of this at the first planning meeting.
Accessing educational and leisure activities: Looked-after children should have the same opportunities as any child to take full advantage of extra-curricular education initiatives. Carers should be delegated the task of providing agreements and signatures for these from the outset of a placement, wherever possible.
Sports activities/organisations: All children who go to school will participate in physical education – this does not require consent. Carers should be able to give consent to children participating in extra-curricular sports activities and activities, such as scouts or guides. Delegated authority to give such consents should be discussed at the start of the placement and the outcome recorded in the Placement Plan.
Photographs and other media activity: There should be no restrictions on carers taking family pictures of the child in their care, or the child and their friends. The carer does not need consent for this. It is important that children have a record and memories of their childhood and photographs can be a helpful way for children to make sense of their history. Decisions on whether the carer can consent to other types of photographs or media activity can be more problematic, however, as issues of confidentiality and safeguarding can often be present. The issue of the age and competency of a young person to make informed decisions also has to be factored into the considerations of 'who decides what'. It should be assumed that young people over 16 would be very much the 'lead' in these decisions.
School photographs: Carers should be enabled to give consent for formal school photographs. They should be encouraged to ensure children have school and group photographs taken as part of their life history.
Other types of photographs/wider media activity: Many children love to be able to take part in activities that may lead to publicity in the media. Others wish to engage in paid or voluntary activities which drive improvements in care and that may attract media attention. While this should be normally encouraged and celebrated, the issues of 'who consents', needs to be judged in relation to particular known risks to the safety of an individual child. Young people and carers often feel they are struggling with blanket policies in these areas so individual consideration of each case is important. Any restrictions on a child's photograph or name appearing in the media should be based on good explanations and clearly specified in the Placement Plan.
Social Media: Social networking ~ Facebook, Bebo, Myspace and other sites ~ whether on a computer or mobile phone has increasingly become a way in which teenagers and others organise their lives and keep in contact with their friends. It has both advantages and risks which need to be recognised and managed for all children. Concerns about use of social media and how children and young people will be supported to learn about safe use of both the internet and social networking sites should be discussed and included within the Placement Plan. Carers, and foster carers in particular and social workers may wish to refer to 'Social networking and Facebook information for foster carers' or www.thinkuknow.co.uk.
Mobile telephones: This is another area with scope for considerable disagreement. As a general principle, carers with young people in long-term placements should be responsible for making decisions regarding the possession, use and call payment of mobile phones. Any restrictions should be specified at the time of placement or discussed in reviews. Parents may need help to understand that carers who are caring for other children in the household need to be able to operate as consistently as possible with all the children. Carer, and foster carers in particular and social workers may wish to refer to the Fostering Network Pathways Through Fostering book Safer Caring, or to check other resources available from www.fostering.net or www.ceop.police.uk on this topic.
Contact: The principles and practice of the contact need to be established and formalised in the Placement Plan and the statutory review is the place for agreeing any changes in these. It may also be possible for carers, particularly in well established placements, to undertake a degree of decision-making in respect of some contact arrangements if the parameters for this are clear and agreed beforehand. Any task that involves carers, and foster carers in particular, in supervising contact or facilitating contact in the home requires that the carers have received adequate training for these tasks and that the necessary risk assessments have been undertaken.
Body piercings: Given its popularity, this merits discussion between the social workers, parents and carers before the request – or demand – for it arises. In long-term placements of older children, the judgement of the carers should generally prevail: they should be able to weigh up the arguments for and against giving permission and be confident to make decisions which do not accord with the child's wishes (if appropriate). In general, a young person should understand the health and aesthetic implications of piercing. There will be circumstances when social workers, carers or parents disagree, but have to accept that the young person is of an age to make such a decision for themselves. It should be noted that, in English law, it is illegal for under 16s to have their genitals pierced. It is also illegal for females under 16 to have their breasts pierced, although this does not apply to males under 16.
9. Areas where Carers Cannot Give Consent
Faith and religious observance: A child in the care of the Local Authority cannot be brought up in a religion that is different to the one they would have otherwise been brought up in. This does not mean that, where necessary, a child cannot be placed with a foster family of a different faith, if this family is appropriate to meet the child's wider needs. However, it does mean that the foster carers cannot actively seek to persuade the child to change their religion. If a fostered child is considering changing their religion, even if they are over 16, foster carers should seek advice and guidance about how they respond to this. Full consideration in a review needs to be given to the long-term implications for the child of departing from the faith of the family of origin. Attendance by the Looked After child with the foster carer at their place of worship should be discussed with birth parents and incorporated into the Placement Plan.
Taking a child abroad: Even with a passport, a Looked After child cannot be taken abroad without the written consent of someone holding Parental Responsibility.Tattoos: UK law is clear: 18 is the minimum age for a person to have a tattoo. The issue of parental consent, therefore, does not arise.