The problem - who is responsible? Excluded and on the streets

I am concerned that new legislation (in England) threatens foster carers with a fine or prosecution if their fostered child is excluded from school and does not comply with his/her exclusion conditions or take up the offer of alternative education. When a young person I was looking after was excluded for five days, a covering letter said he must not be seen in any public place without justification or we could be fined or prosecuted. Out of 150 children we have fostered, a minority were difficult to control and would have no intention of staying off the streets. I fear the law has been structured to protect the corporate parent from prosecution, while leaving the foster carer vulnerable.
TM (location withheld)

Our advice columnist this issue is Lynn Woodhouse, advice and mediation worker. To comment on anything in this article, see contact details at the foot of the page.

Lynn replies...

For many years the Fostering Network has argued that foster carers should be part of the professional team established around a looked-after child. Foster carers are crucial in securing good outcomes for young people, particularly in respect of their education. So it is reasonable to expect that they will be regarded as fellow professionals with the same rights as the other members of that professional team. Conversely, foster carers should not have additional pressures placed on their ability to perform their fostering role, which other members of the team do not.

Legislation

The legislation referred to in TM's problem is the Education and Inspections Act 2006 and its associated guidance that came into force in late 2007. Section 104 of this legislation places a duty on the parent of an excluded pupil to "ensure that the pupil is not present in a public place at anytime during school hours" on any day which is covered by a notice given to the parent. It further goes on to state that if this occurs "the parent commits an offence".

It could be considered that the foster carer is not the parent of the looked-after person but that the local authority is the corporate parent. The Children Act 1989 and subsequent legislation makes it quite clear that a foster carer does not have parental responsibility for a looked-after child and that the parental responsibility remains with the parent/s or is shared by the local authority and parent if the local authority has applied for an appropriate order. However, the guidance attached to the Education and Inspections Act 2006 offers a definition of parent as "any person who, although not a natural parent, has care of a young person."

It adds that "having care of a young person means that a person with whom the child lives and who looks after the child, irrespective of what their relationship is with the child, is considered to be a parent".

There appears to be a conflict within law that could work to the detriment of the foster carer.

How will this affect foster carers?

Under this legislation a foster carer could be given a penalty notice if the young person in their care fails to comply with the notice under section 104. There could, of course, be certain young people who they are caring for who will not comply, and the question would then have to be, who is responsible for making them comply? The Education and Inspection Act 2006 clearly points to it being the foster carer's responsibility, as the person with care of the young person. However, the foster carer is not and should not be alone in this responsibility. At the young person's review and in their care plan it should be clear what the plan is for their education. It should state by whom and how this is to be put into action and what is to be done if this proves problematic.

It is important in certain circumstances for foster carers to be able to make day-to-day decisions and choices in respect of the education of the young people in their care. In this respect they can be regarded as a parent in education law. However, some young people are transitory in their fostering placement and it is these young people who are less likely to comply.

It is also important to note that a penalty notice can also be issued for failing to attend school regularly or to attend an alternative provision, situations which could easily occur with a disaffected young person in a fostering home.

What would help?

Local authorities are required by the 2006 Act to draw up their own codes of conduct to ensure penalty notices are issued consistently.

• Foster carers could be clearly identified within the code of conduct and in the process to be followed.
• The definition of "what is a parent" within education law could be amended to provide clarity around a foster carer.
• The law currently has exceptions listed, for instance traveller families. A similar exception to the law could be considered for foster carers.
• The guidance to schools on exclusions recommends that they make alternative provision for looked-after children from day one of the exclusion. If all local authorities did this, the risk of foster carers receiving a penalty notice would be greatly reduced.

The Government has recognised the special needs of looked-after young people within its guidance on exclusions. It has made various recommendations that should effectively mean fewer looked-after children being excluded from school now and in the future. If this proves to be the case, foster carers have little cause for concern. However, as this legislation and guidance are relatively new, the impact is not clear and this could be a real worry to foster carers who already face a very difficult job.

Encouragingly, earlier this year, then children's minister Kevin Brennan stated in a letter to all education authorities in England:

"Excluded pupils are often those who can least afford to have their education disrupted. We therefore expect first day provision to be made for any child in the care of a local authority who is excluded from any school as a basic requirement of good corporate parenting."

So perhaps the question should not be how to keep a young person indoors during a school exclusion, but why has the education authority not provided alternative provision?

The Fostering Network's view is that foster carers are members of a team that includes the social worker for the child and the local authority as corporate parent.

It is, therefore, inappropriate for a foster carer to face a penalty notice in respect of the young person placed with them. All team members need to work to solve the problem and to positively benefit the young person.

This response is an overall description of the law. Anyone with a particular problem with legal aspects must seek professional advice, either through the Fostering Network's legal helpline or a qualified expert.

Further Resources

Guidance on education-related parenting contracts, parenting orders and penalty notices, revised edition September 2007
http://publications.teachernet.gov.uk/

Improving Behaviour and Attendance: guidance on exclusion from schools and pupil referral units, September 2007
www.teachernet.gov.uk/wholeschool/behaviour/Exclusion/guidance2007/

Advisory Centre for Education
www.ace-ed.org.uk

General advice line (Mon-Fri 10am - 5pm)
t 0808 800 5793
Exclusion information line (24hr answer phone)
t 020 7704 9822
Exclusion advice line (Mon-Fri 10am-5pm)
t 0808 800 0327
TEXT your question to ASKACE268808

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