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When is Same-Sex Parenting a Private Fostering Arrangement?

Kate Tompkins, barrister, of 36 Bedford Row considers the implications of private fostering arrangements in respect of children born to same-sex couples.

Kate Tompkins, barrister, 36 Bedford Row











Kate Tompkins, barrister, 36 Bedford Row

A child born to a same-sex couple may be considered the subject of a private fostering arrangement where the person caring for the child and providing the child with accommodation is not the legal parent of the child and/or does not have parental responsibility for the child. An example of such a situation is where a female couple separate, having conceived a child at home (or at a fertility clinic outside the UK) with a donor, and the non-birth mother (not a legal parent) cares for and accommodates the child with the agreement of the birth mother.

Section 66(1) of the Children Act 1989 defines a privately fostered child as:

"(a) a child under the age of 16 and who is cared for, and provided with accommodation in their own home by, someone other than -

(i) a parent of his;

(ii) a person who is not a parent of his but who has parental responsibility for him; or

(iii) a relative of his."

Sub-section (2) of section 66 states:

"A child is not privately fostered if the person caring for and accommodating him -

(a) has done so for a period of less than 28 days; and

(b) does not intend to for any longer period."

It is important for those who are privately fostering or who may privately foster a child to know that there is a burden on them and on any other person involved in the arrangement to notify the local authority of the same either at least 6 weeks before the placement is to begin or as soon as possible upon the arrangement being made (Regulation 3 of the Children (Private Arrangements for Fostering) Regulations 2005)). The information which the private foster parent must give, set out in Sch 1 to the regulations, is quite extensive.

Upon receiving notification of a proposed or actual private fostering arrangement the local authority has a duty towards the child who is the subject of the arrangement. The duty is set out in section 67 of the Children Act 1989 and requires the local authority to satisfy itself that the welfare of the child who is or is proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted and to secure that such advice is given to those concerned with the child as appears to the local authority to be needed.

In order to satisfy itself the local authority is required by regulations 4 and 5 of The Children (Private Arrangements for Fostering) Regulations 2005, within 7 working days of notification, to appoint an officer who must:

i. visit the premises where it is proposed that the child will be cared for and accommodated;

ii. visit and speak to the proposed private foster carer and all members of their household;

iii. visit and speak to the child alone, when considered appropriate;

iv. speak to, and if practicable to do so, visit every parent or person with parental responsibility for the child;

v. establish the matters set out in Schedule 2 (if a proposed placement) and Schedule 3 (if placement already in existence); and

vi. submit a written report to the local authority.

The local authority is authorised by section 67(3) of the Children Act 1989 to inspect the premises and the children there at any reasonable time if they have reasonable cause to believe a child is being privately fostered or it is proposed that a child should be.

The matters to be established by the local authority in Schedule 2 to the 2005 Regulations are:

i. that the intended duration of the arrangement is understood by and agreed between the parents of the child or any other person with parental responsibility, and the proposed private foster carer;

ii. the wishes and feelings of the child about the proposed arrangement;

iii. the suitability of the proposed accommodation;

iv. the capacity of the proposed private foster carer to care for the child;

v. the suitability of other members of the household;

vi. that arrangements for contact between the child and his parents, any person who has parental responsibility for him and other significant persons to him, have been agreed, understood and are satisfactory;

vii. that the parents of the child or any other person with parental responsibility for him and the proposed private foster carer have agreed financial arrangements for the care and maintenance of the child;

viii. that consideration has been given to, and necessary steps have been taken to make arrangements for care of the child's health;

ix. that consideration has been given to, and necessary steps have been taken to make arrangements for care of the child's education;

x. how decisions about the care of the child will be taken; and

xi. whether the proposed private foster carer, the parents of the child and any person with parental responsibility for the child, or any other person concerned with the child are being given such advice as seen by the local authority to be necessary.

The matters to be established by the local authority in Schedule 3 differ only slightly from those in Schedule 2.

Where a local authority is not satisfied that a child is being satisfactorily safeguarded and promoted, the local authority is obligated by section 67(5) of the Children Act 1989 to take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by a legal parent, a person who has parental responsibility or a relative, so long as it is considered to be in the best interests of the child to do so.

The local authority is thereafter obliged to keep an eye on the situation by visiting no less frequently than every 6 weeks in the first year and every 12 weeks in the second and subsequent years pursuant to regulation 8 of The Children (Private Arrangements for Fostering) Regulations 2005.

The level of interference by the local authority in the private life of a separated same-sex couple (where both parents are not deemed legal parents and/or both do not have parental responsibility) who agree for one parent to care for the child is incomparable to the case of a heterosexual couple who make the same agreement and attract absolutely no local authority involvement in their family life.

31/7/14