Delegation of Authority to Foster Carers and Residential Workers
Scope of this chapter
This chapter sets out the arrangements for delegation to carers of the authority to make decisions relating to children in care, in line with the Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2013 (which amend the Care Planning, Placement and Case Review (England) Regulations 2010), and revised Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review, which the Committee for Health and Social Care have adopted as best practice.
‘Carer’, in this context, means the foster carer or manager of the small family group home where the child resides. This will include Connected Persons given temporary approval as foster carers but will not include Private Foster Carers.
Principles:
- Authority for day-to-day decision making about a child in care should be delegated to the child’s carer(s), unless there is a valid reason not to do so;
- A child in care’s Placement Plan 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 child’s views, and consideration should be given as to whether a child is of sufficient age and understanding to take some decisions themselves.
Managing the relationship between the parent or others with parental responsibility for a child in care, the Committee, foster carers or the Manager of the Residential Unit is challenging, particularly as those providing the day-to-day care do not hold parental responsibility ( unless the child is living at home) It is essential to fulfilling the Committee’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.
Poor planning around delegation of authority can delay decision making and lead to children missing out on opportunities that enable them to experience a fulfilled childhood and feel part of the foster carer’s family or the daily life of their children’s home. Children in care say that problems obtaining consent from parent’s or those with parental responsibility and the Committee to everyday activities make them feel different from their peers and cause them embarrassment and upset. Failure to delegate appropriately, or to make clear who has the authority to decide what, can make it more difficult for foster carers and residential workers to carry out their caring role and form appropriate relationships with the children in their care.
Best practice guidance is clear that effective delegation of decision making makes a huge difference to the lives of children in care. Authority for day-to-day decision making should be delegated to foster carers unless there is a valid reason not to. Every child in care must have a Placement Plan which sets out the plan for their day-to-day care and how decisions about them will be made. This plan should include what decisions should be made by their foster carer and where decision making is not delegated to the foster carer the reasons should be clearly explained in the child’s Placement Plan. Decisions about delegation of authority must be made within the context of:
- The child’s Permanence Plan, which sets out the Committee’s plan for achieving a permanent home for the child; and
- The legal framework for Parental Responsibility in The Children (Guernsey and Alderney) Law 2008
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 Committee 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).
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 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, in consultation with the child’s birth parents with whom the Committee share Parental Responsibility (Children (Guernsey and Alderney) Law 2008 – Section 9.1(c);
- 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.
Foster carers act as agents for the Service. They act under its guidance, direction and authority. ‘Delegated Authority’ refers to the arrangement for all or some of the responsibilities held by a person or body with ‘parental responsibility’ (‘PR’) being discharged by another person acting on behalf of that person or body
The child’s parents do not lose Parental Responsibility when the child is received into care. Where the child is voluntarily accommodated, the Committee does not have Parental Responsibility (In a voluntary accommodation situation those with PR have delegated some of their responsibilities to the Committee by agreement and such agreement can be revoked at any time). The Committee shares Parental Responsibility with those others who have Parental Responsibility where there is a Care Requirement, Interim Community Parenting Order, Community Parenting Order, or an Emergency Child 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 Committee 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. The Committee cannot restrict a person’s exercise of their Parental Responsibility, including their decisions about delegation, unless there is a Care Requirement, Interim Community Parenting Order, Community Parenting Order or an Emergency Child Protection Order in place.
Where a child is subject to a Care Requirement, Interim Community Parenting Order, Community Parenting Order or Emergency Child Protection Order, the Committee 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 Requirement or Interim Community Parenting Order or Community Parenting Order).
Where a parent is unable to engage in the discussions about delegation of authority for whatever reason, or refuses to do so, the Committee will need to take a view. If there is a Care Requirement or the Committee has an Interim Community Parenting Order or Community Parenting Order, then they can exercise their Parental Responsibility without the parent. Where the Committee 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 Community Parenting Order or Care Requirement, the child cannot be removed from the Bailiwick of Guernsey for a period of more than 28 days without written consent of everyone with Parental Responsibility and 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). The Committee 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 received into care.
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 child in care 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.
All decisions in this category should be delegated to the child’s carer (and/or the child if they can take any of these decisions themselves). Any exceptions and reasons for this should be set out in the child’s Placement Plan within their Care Plan.
Decisions about activities where risk assessments have been routinely carried out by those organising / supervising the activity, e.g. school trips or activity breaks, should be delegated to the child’s carer. There is no expectation that the Committee should duplicate risk assessments.
Reasons not to delegate to the carer may include, if the child’s individual needs, past experiences or behaviour are such that some day-to-day decisions require particular expertise and judgement. For example, where a child is especially vulnerable to exploitation by peers or adults, where overnight stays may need to be limited, the foster carer or children’s home may need the Committee to manage this.
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 the decision. For example, if the plan is for the child to return home, their parents should be involved in a decision about the type of school the child should attend and its location, because ultimately the child will be living with them. Where the plan is for long term foster care, or care in a small group home until age 18, then while the child’s parents must be involved (unless there is a Community Parenting Order and the Committee believes there are grounds not to involve them), where possible the school choice should fit with the foster carer’s family life as well as be appropriate for the child.
This category of decisions is likely to be more serious and far reaching. Where the child is voluntarily Accommodated, the child’s birth parents or others with Parental Responsibility should make these decisions. Where the child is under a Care Requirement, Interim Community Parenting Order, Community Parenting Order or Emergency Child Protection Order, decisions may be made by the birth parents or others with Parental Responsibility, which includes the Committee, depending on the decision and the circumstances. Such decisions should, however, always take account of the wishes and feelings of the child and their carer. See also Section 7, Delegation in the Context of the Child's Health.
Decisions on what school the child attends and whether a child can change school can only be taken within the statutory care planning process. The choice of a pre-school setting or school should be discussed and agreed by the holders of Parental Responsibility. If the foster carer decides to move house or is caring for a child on a long term basis and wants the child to attend a different school, this will need to be agreed at a statutory review meeting. The impact a move of school will have on the child must be a key focus in the discussion.
Foster carers should be able to engage fully with the child's school and take routine daily decisions in order to make the child's education as normal as possible. Carers should maintain contact with the school and discuss the child's progress. They should attend meetings and sign home/school agreements and homework planners. In a medium to long-term placement, the foster carers should usually be the people 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 foster carer should ensure that the social worker and, if appropriate, those with parental responsibility are kept informed about the child's progress at school, particularly if there are any problems.
In short term placements those with Parental Responsibility should be consulted with regard to their wish to attend parents meetings and they may choose to attend alongside the foster carer or separately.
Children in care should have the same opportunities as any child to take full advantage of extra-curricular education initiatives. Foster carers should be delegated the task of providing agreements and signatures for these from the outset of a placement, wherever possible
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 foster 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 home. Unless parents have expressed particular wishes about what they want their child to be told, and how, foster carers should respond as any reasonable parent would.
All children who go to school will participate in physical education - this does not require consent. Foster carers should be able to give consent to children participating in extra-curricular sports activities and activities, such as scouts or guides. This will need to be discussed with parents where a child is in short term foster placement to ascertain their support for this on an ongoing basis where possible.
Delegated authority to give such consents should be discussed at the start of the placement and the decision recorded in the Placement Plan
In England the Education Act 1996 defines ‘parent’ as including a person who has care of the child in question. The Education (Guernsey) Law 1970 defines ‘parent’ as "in relation to any child or young person, includes a guardian and every person who has the actual custody of the child or young person. 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 College of FE. 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.
Foster carers should be absolutely clear from the outset about their responsibilities in relation to medical treatment. The child’s health plan must set out the details of the child’s health needs and how they will be met. The Placement Plan should clearly show where and when the foster carers have delegated authority to take decisions or give consents in relation to a child’s health. The Placement Plan can be used by the foster carer as evidence of their delegated authority – should they need to present this to a health professional, for example. Foster carers should be given a copy of the signed consent form (completed by those with Parental Responsibility) for routine medicals, immunisations, dental, optician and general treatment. If the child is subject to a legal order giving the Committee Parental Responsibility then the Committee can give consent (usually not below the level of Service Manager) subject to consultation with those who share Parental Responsibility.
A person reaches maturity for the purposes of consent to medical treatment at the age of 16. However, the ability to give legally valid consent to medical treatment is not determined solely according to chronological age. A child below the age of 16 may be regarded as competent to consent to treatment if he / she have attained a level of maturity that the doctor believes enables him / her to make an informed decision. In this situation, the child may be described as Gillick competent – Please refer to sub-heading below.
Children below the age of 16 can lawfully receive medical advice and treatment, in the absence of consent of a person with Parental Responsibility, provided that the particular child has achieved a degree of maturity which enables him / her to fully comprehend the implications of the treatment being proposed – Please refer to sub-heading below.
Dentist
Foster carers should be able to consent to routine examinations and treatment wherever possible. It is important that it is made clear in the Placement Plan whether or not foster carers have delegated authority to take the child to the Dentist.
Immunisations
Foster carers should be given delegated authority, whenever possible, to consent to immunisations. Parents may have concerns about particular immunisations, and this should be explored with them at the beginning of the placement and any issues detailed in the Placement Plan.
Non-routine medical treatment
Children should not normally 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 sustain an injury or require emergency treatment. The Placement Plan should include who can give consent to treatment and in what circumstances so that undue delay is avoided, for example by foster carers having to contact the emergency duty team out-of-hours or a manager having to go to the hospital to sign a consent form. It should be noted that even where authority has not been delegated, foster carers can do what is reasonable in an emergency to keep a child safe.
Foster carers may consent to emergency medical treatment as the person who has care of the child but must try to gain consent in advance if possible by contacting the Committee and others with Parental Responsibility (either directly or via the Committee) and must inform the Committee and others with Parental Responsibility (directly or indirectly) of any consent given immediately after where this has had to be exercised. Delegated authority should be discussed at the outset of the placement and the Placement Plan should make clear what has been delegated.
Optician
Foster carers should be able to sign consent for routine eye and sight tests and the provision of glasses.
Routine medicals
Foster carers should be able to sign consents for routine medicals whenever possible, for example at school or child in care medicals. They should inform the child’s social worker when these are taking place and of the outcome. They should provide the medical practitioner with sight of the signed consent form from those with Parental Responsibility where applicable which sets out the authority delegated to foster carers
Children who are in care need consistency and stability, therefore careful consideration needs to be given to any babysitting arrangements.
Arrangements for child sitting of children in foster placement should be consistent with the attributes of good parenting. Generally adults in the foster carer's own support network will be used as child sitters and identified as part of the foster carer's initial assessment and annual review in recognition that this is a standard form of support for most placements. Such adults could provide a range of support from babysitting to covering short periods of continuous care including overnight care, for example in long term foster placements. Child sitters should not be under 18 years of age unless in exceptional circumstances this has been explicitly agreed with the Service.
Use of the adult sons and daughters of the foster carer to provide babysitting should be agreed as part of the Placement Planning Meeting at the beginning of the placement and reviewed subsequently. This decision would therefore include input from those with Parental Responsibility, child (if old enough to express their wishes and feelings), carer, child's social worker and supervising social worker.
A balance will need to be struck between normalising family experience for the child in placement with a requirement to take an informed decision as to the ability of the proposed babysitter to meet the needs of the individual Child in Care together with their awareness of safer caring practice
This is unlawful in Guernsey in relation to those under 18 years of age.
The principles and arrangements for contact need to be established and formalised in the Placement Plan and then reviewed at each statutory review. It may be possible for foster 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, agreed beforehand and detailed in the Placement Plan. It is not normal practice for foster carers to supervise contact or for this to occur within their own home. In exceptional circumstances where this is agreed the foster carer must have received adequate training for these tasks and a risk assessment undertaken
This is often not straightforward and can be a fraught area for foster carers and children. It is an important issue which can require sensitive attention, 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 foster carers, wherever possible. However, the issues need to be fully explored with those with Parental Responsibility 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 statutory reviews.
Holidays outside Guernsey and Alderney and School Trips
There are quite complicated rules on whether the consent of those with parental responsibility is required for a child placed with foster carers to go on holiday.
The position is summarised below:
A: Child is voluntarily accommodated When a child is voluntarily accommodated the consent of a person with parental responsibility will be required for any trips/holidays of any duration including trips within the jurisdiction of Guernsey and Alderney (e.g. a camping trip to Herm or a day trip to Alderney).
All those with Parental Responsibility should be consulted and ideally the consent of all obtained. It will be important to check there are no existing restrictions on the child leaving the jurisdiction.
B: Child is subject to a Community Parenting Order or a Care Requirement
When the child is:
- Subject to a Community Parenting Order or a Care Requirement (including Interim Orders); and
- The Committee has arranged or consents to the trip; and
- The trip is for no longer than 28 days;
- The consent of a person with Parental Responsibility is not required. However, the Committee should consult all those with Parental Responsibility (as far as is reasonably practicable) and have regard to any objections they may have to the proposed trip. It is important to note the distinction between seeking consent of those with Parental Responsibility and consulting those with Parental Responsibility.
Where the grounds above are satisfied you do not need consent but you should still consult.
Whenever the Committee consults on proposed trips, it is reasonable to provide those with Parental Responsibility sufficient details about the proposed trip for them to take an informed view (e.g. destination/ nature of accommodation/ any activities etc).
Plans for taking a child on holiday should be discussed with the child's social worker at the earliest opportunity as they will need to decide if it is in the child's best interest and discuss with others, including those with Parental Responsibility for the child.
Any issues about the impact on contact arrangements should be raised before the child is aware that there is the opportunity to go on holiday. It is essential that the child's social worker knows the details of the holiday destination. The possibility of a child accompanying their foster carer on a family holiday abroad should be discussed sensitively with those persons with Parental Responsibility for the child and their agreement sought 'in principle'. This is best done when the child or young person comes into care. Those individual's 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 be made at short notice so that foster carers can take advantage of holiday deals or a trip at short notice due to an offer or for personal reasons. It would be best practice for the child's social worker to arrange to obtain a passport by the second Child In Care Review wherever possible.
Consents and passports are also relevant in relation to school trips abroad. In all cases where a foster carer is taking a child on holiday they should ensure that adequate travel insurance is in place to cover the child concerned.
Foster carers will also require a letter of authorisation from the Committee which they take with them to provide explanation to border officials, for example, why foster carers have a child with a different surname in their care. In order to seek the letter of authorisation the child's social worker will require certain information from the foster carer including
- Destination and dates;
- Travel details e.g. airline, ferry;
- Addresses of accommodation;
- Sleeping arrangements and any safe care issues including discussion of how to manage issues should bedrooms/family rooms be shared;
- Insurance details including cover for the child concerned.
C: School Trips
The position in relation to seeking consent for School Trips is governed by the above principles.
Where a child is voluntarily accommodated the school may liaise directly with those with parental responsibility, although they should be encouraged to liaise with the Committee. Risk assessments for school trips and outings are the responsibility of schools.
Foster carers should be delegated the task of providing agreements and signatures for local school trips from the outset of a placement, wherever possible. Where this is not delegated the reason should be made clear in the Placement Plan.
This is an issue that can cause considerable disagreement. There needs to be clarity about what foster carers can decide in relation to the ownership and use of mobile telephones and for this to be detailed in the Placement Plan. As a general principle, foster carers with young people in long-term placements should be responsible for making decisions regarding the possession and use of mobile phones. For children placed on a short term basis this requires consultation with those with Parental Responsibility. Any restrictions should be specified at the time of placement or discussed in statutory reviews. Persons with Parental Responsibility may need help to understand that foster carers who are caring for other children in the household need to be able to operate as consistently as possible with all the children. Foster carers 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.
There should be no restrictions on foster carers taking family pictures of the fostered child, or the child and their friends. The foster carer does not need consent for this. It is important that fostered children have a record and memories of their childhood and photographs can be a helpful way for fostered children to make sense of their history.
Decisions on whether the foster carer can consent to other types of photographs or media activity can be more problematic due to issues of confidentiality and safeguarding. Foster carers may also need to limit a child's use of mobile phones or social networking sites in order to implement house rules or due to safeguarding concerns. 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 the 'lead' in these decisions.
- School photographs - foster 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 foster 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 foster 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.
Early anticipation and discussion about a child taking part in hazardous activities can save much distress and disappointment. Views will vary on what activity may be considered 'hazardous' or 'risky'. Recent best practice advice seeks to challenge the risk-averse culture. Foster carers should be able to act more often as 'any good parent would'. However, prior consultation with parents and collaboration over these types of decisions are necessary and it is important that foster carers work within the Committee’s policies in relation to any restrictions on certain activities and in ensuring any necessary insurance is in place.
If authorised to take decisions for a range of anticipated activities that can cause injury, for example, skating, riding, sailing, wall climbing and karting, the foster carer would need to ensure that the child or young person had the correct safety equipment, adequate preparation and, where applicable, is supervised by a recognised instructor or supervising organisation. More unusual requests should be discussed at a statutory review meeting and a decision on delegated authority agreed.
Difficulties obtaining permission for sleepovers is often highlighted as a particular concern by children in care. Children in care should as far as possible be granted the same permissions to take part in normal and acceptable age appropriate peer activities as would normally be granted by the parents of their peers. The Government's intention is that foster carers should be able to make decisions about overnight stays and visits to friends as if the fostered child was their own child, and act as any protective parent would. The authority delegated to the foster carer to make decisions on overnight stays should be set out in the Placement Plan in consultation with parents. Parents make judgements about whether or not there are known risks to staying in a particular household or visiting relatives and similar judgements should be made for children in foster care by their responsible carers. Judgement should be based on a reasonable assessment of risks.
If in doubt about the appropriate decision or if there is reason to consider that a child may be at specific risk staying in a particular household, the foster carer should consult the social worker for advice. In making decisions about whether or not to permit a Child in Care to stay overnight with a friend or have a holiday with friends or relatives of the foster carers, foster carers and the Committee should consider the following:
- Whether there are any restrictions contained for exceptional reasons in the Care Plan, including the Placement Plan;
- Whether any court orders restrict the child from making a particular overnight stay, visit or holiday;
- Whether any factors in the child's past experience or behaviour would preclude an overnight stay, visit or holiday;
- Whether there are any grounds for concern that the child may be at significant risk in the household concerned or from the activity proposed;
- The age and level of understanding of the child concerned;
- What is known about the reason for the overnight stay, visit or holiday
- The length of stay.
In all cases foster carers should be made urgently aware of any individuals, addresses or areas which may place a child at risk and this information should be included in the Placement Plan There is no duty for an Enhanced DBS check to be sought in relation to adults in a private household where a child may stay overnight or visit or who the child may accompany on a holiday or school trip. Enhanced DBS checks should not normally be sought and will not be required for children to visit friends or go on overnight stays. Children may also stay overnight or go on holiday in certain circumstances (e.g. long term foster carer) with friends and relatives of foster carers as a form of child sitting and as a normal part of everyday life and there is no requirement to approve that person as a foster carer as the child will remain formally placed with their usual foster carer Foster carers should always have contact details for the household in which the child will be staying. They should make contact with the household beforehand as would any good parent to assist in assessing the request and to confirm arrangements and to ensure the household where the child will be staying has, in turn, the contact details of the foster carer.
As with overnight stays, the statutory guidance concerning visiting friends is clear. Unless there is a reason for not delegating authority, the foster carer should be authorised to act as a good parent in decisions regarding visits to friends.
Young people aged 16 or 17 are presumed to be capable of consenting to their own medical treatment, provided the consent is given voluntarily and they are appropriately informed regarding the particular intervention. If the young person is capable of giving valid consent, then it is not legally necessary to obtain consent from a person with Parental Responsibility. It is, however, good practice to involve the young person’s family in the decision-making process – unless the young person specifically wishes to exclude them – if the young person consents to their information being shared.
Children under 16 – the concept of Gillick competence and Fraser Guidelines
When deciding whether a child is mature enough to make decisions, people often talk about whether a child is 'Gillick competent' or whether they meet the 'Fraser guidelines'.
Gillick competency and Fraser guidelines refer to a legal case which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent. But since then, they have been more widely used to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.
The two terms are not interchangeable. Rather, they are two different concepts: Fraser guidelines referring to specific guidance that must be followed by the health-care professional to provide specific treatment to a child: and Gillick competence referring to the ability of the child to give consent.
- 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; - 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. - Fraser Guidelines
The Fraser Guidelines relates specifically to the capacity of a child under the age of 16 to receive information and make a decision concerning contraception.
A doctor must be satisfied that:- The child will understand the advice;
- The child cannot be persuaded to tell his or her parents or allow the doctor to tell them that they are seeking contraceptive advice;
- The child is likely to begin or continue having unprotected sex with or without contraceptive treatment;
- The child's physical or mental health is likely to suffer unless he or she receives contraceptive advice or treatment;
- That it is in the child's best interest that they receive contraceptive advice, treatment or both without parental consent. Where a doctor is confident the above criteria has been met and the child 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.
- Where Fraser Guidelines Have Not Been Met
Where a child under the age of 16 lacks capacity to consent, 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.
Where a young person of 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/young person or to severe permanent injury. Legal advice must be sought.
Where necessary, the courts can overrule a refusal to consent by a person with Parental Responsibility.
Delegated authority will be fully discussed, agreed and recorded at the start of every placement in the Placement Plan and foster carers or residential staff, parents and young people (where appropriate) will have an opportunity to contribute to this process.
The Care Planning, Placement and Case Review (England) Regulations 2010 (as amended) , although UK regulation, is held as best practice within the Bailiwick of Guernsey. It is required that each child in care’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.
It is the responsibility of the child’s social worker to complete the Placement Plan. The Placement Plan should be completed in advance of a planned move and discussed and agreed in the Placement Planning Meeting. Where this is not possible the Placement Plan must be completed within five working days of the child being placed.
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 Committee 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. The child’s social worker should pre populate the Placement Plan as far as possible in advance of the Placement Planning Meeting
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 Committee may agree to the provision of Child and Adolescent 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 Placement Plan, and therefore the arrangements for delegated authority, must be used as a working tool rather than a one off document. The Placement Plan must be kept up-dated and reviewed at each statutory Child in Care Review chaired by the Independent Reviewing Officer. The first review will be particularly important and the time for participants in the meeting to pay attention to how the delegated authority is working in practice and to any areas of consent and decision making which were not anticipated or detailed sufficiently at the initial Placement Planning meeting. Subsequent review meetings provide opportunities to evaluate how the arrangements for delegated authority are working, to agree what changes need to be made, if any, to ensure that the arrangements are having the maximum positive impact on the child’s life. 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.
- The Fostering Network's tool-kit for supporting good practice around delegation of authority to foster carers;
- Supporting Placement Planning – Handbook on Delegated Authority by the Fostering Network;
- General Medical Council guidance on consent for children;
- British Medical Association toolkit on consent decisions for children.
Last Updated: April 4, 2023
v66
You can translate the content of this page by selecting a language in the select box.
Copyright © tri.x