The Fostering Agreement
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- Author:FosterWiki
- Published:March 2022
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The Fostering Agreement
Introduction to the Fostering Agreement
When foster carers are approved by a panel they sign a Fostering Agreement with their providers. This is a written agreement that identifies the contractual obligations and expectations between you and the fostering provider.
It sets out everything the foster carers are expected to do and obliged to abide by, and the same for the fostering provider. When both have signed the agreement it is an acceptance of those terms and conditions by both yourself and your fostering provider.
An example of a fostering agreement can be found here https://www.herefordshire.gov.uk/downloads/file/16045/fostering_agreement.pdf
Is the Fostering Agreement a legal document?
Yes, it is, as set out in The Fostering Services (England) Regulations 2011, section 5, matters and obligations in Foster Care Agreements and in the Scottish and Welsh counterparts.
What is in the Fostering Agreement?
This is set out in fostering regulations by the individual governments of the UK. They are all pretty similar to the UK one, The Fostering Services (England) Regulations 2011, schedule 5.
What must be recorded in the Fostering Agreement
- The terms of the foster carer’s approval.
- The support and training to be given to the foster carer.
- The procedure for the review of approval of the foster carer.
- The procedure in connection with the placement of children and the matters to be included in any placement plan.
- The arrangements for meeting any legal liabilities of the foster carer arising by reason of a placement.
- The procedure available to foster carers for making complaints and representations.
What foster carers agree to
- To care for any child placed with them as if the child was a child of the foster parent’s family and to promote that child’s welfare having regard to the long and short-term plans for the child.
- To give written notice to the fostering service provider without delay, with full particulars, any intended change of the foster parent’s address, any change in the composition of the household, any other change in the foster parent’s personal circumstances and any other event affecting either their capacity to care for any child placed or the suitability of the household, and any request or application to adopt children, or for registration as an early years provider or a later years provider under Part 3 of the Childcare Act 2006.
- Not to administer corporal punishment to any child placed with the foster parent.
- To ensure that any information relating to a child placed with the foster parent, to the child’s family or to any other person, which has been given to them in confidence in connection with a placement is kept confidential and is not disclosed to any person without the consent of the fostering service provider.
- To comply with the terms of any placement plan.
- To comply with the policies and procedures of the fostering service provider issued under regulations 12 and 13.
- To co-operate as reasonably required with the Chief Inspector and in particular to allow a person authorised by the Chief Inspector to interview the foster parent and visit the foster parent’s home at any reasonable time.
- To keep the fostering service provider informed about the child’s progress and to notify it as soon as is reasonably practicable of any significant events affecting the child.
Can providers change the content of the fostering agreement?
The agreement is set out in fostering regulations so it can’t be changed that much, the only changes that can be made are to the terms of approval that will be written in the agreement (ie how many children you are approved for, age ranges, only respite etc) and if those terms of approval change you will receive an amended copy of the Foster Care Agreement to sign.
Providers should not change the basic framework and contents of the Fostering Agreement.
History, politics and legal challenges
In recent years there has been an increasing number of legal challenges around the Fostering Agreement and the working status of foster carers. It has long been claimed by providers and government alike that the agreement is not a contract. This has prevented carers from acquiring a legal working status and basic employment rights.
The legal challenges have been that foster carers should be classified as workers specifically Limb (b) workers as the fostering agreement is a contract. A limb (b) worker is someone who is a ‘dependent contractor’, they are registered as self-employed but provide a service as a part of someone else’s business, ie they work and are contracted to one organisation, in the case of a foster carer, one local authority or agency.
The argument has hinged on whether The Fostering Agreement is a contract or not, in the past, it has also hinged on the argument that The Fostering Agreement and the work as foster carers are ‘set in statute’ which in other words means it is set out in the law, in this case, the Children’s Act and Fostering Regulations around the UK.
This argument has since been challenged by Lord Justice Bean in the NUPFC case (see below).
In 1998 a precedent was set in this case, it ruled that the Fostering Agreement was not a contract because it was set in statute, ie set in law in the Fostering Regulations and The Children’s Act.
In 2020 in the case of Johnston v Glasgow city council the judge ruled that the Johnstone’s agreement with the council was a contract and were employees of Glasgow City Council. However in this case the Johnstone’s were part of a very specific multi-treatment team and as well as the Fostering Agreement other things were added to their specific contract, so it did not follow that mainstream foster carers in Glasgow City Council, with only the basic Fostering Agreement contract, were also employees.
In 2021 Lord Justice Underhill in the court of appeal found that the Fostering Agreement was a contract and that Foster Carers were workers.
Lord Justice Underhill overruled W v Essex saying that declared that the definition of ‘worker’ extended to persons who are party to a foster care agreement with the fostering services provider as set out in the Fostering Service Regulations 2011. In other words, the court was satisfied that the foster care agreement did constitute a contractual agreement between the two parties, a contract.
He went on to say that he could only rule within the scope of this specific case, that of foster carers having the right to unionise and form the National Union of Professional Foster Carers.
However, he stated that the exclusion of foster carers from employment rights is generally dependent on W v Essex County Council (see above) and that line of authority turns entirely on the question of whether the relationship between the foster carers and fostering services is a contractual one.
Lord Justice Bean said that foster carers not being workers hinged on W v Essex in which Lord Justice Stuart-Smith ruled that the relationship was not contractual due to it being set out in legislation. However, he said he found this “puzzling” as “there are other types work, such as teaching and nursing, where pay and conditions are determined nationally pursuant to statutory powers (set out in law) and cannot be varied by the parties”
Therefore foster carers should be no different to teachers and nurses and should have a right to employment status.
He went on to say “I respectfully suggest that it may require reconsideration, either by the Supreme Court or by Parliament.”
The full summery can be found here https://fosterwiki.com/wiki/the-rights-of-foster-carers/ and full court ruling can be found here https://oldsquare.co.uk/wp-content/uploads/2021/04/NUPFC-for-hand-down-approved-002.pdf?fbclid=IwAR1x0lCPyMHvovGXb1STYNLWJcWYd7JJW-g2YgAmp7hs_McQxh62M8BnuY8
Links
- The Children’s Act 1989
https://www.legislation.gov.uk/ukpga/1989/41/contents - The Care Standards Act 2000
https://www.legislation.gov.uk/ukpga/2000/14/contents - The Fostering Services (England) Regulations 2011
https://www.legislation.gov.uk/uksi/2011/581/schedule/5/made
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