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282 <h2>
282 Delegation of Authority to Foster Carers and Residential Workers
282 </h2>
284 </div>
287 <div id="scope_box">
288 <h3>
288 SCOPE OF THIS CHAPTER
288 </h3>
289 <p>
289 This chapter sets out the arrangements for delegation to carers of the authority to make decisions
relating to Looked After children, under 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.
289 </p>
290 <p>
290 'Carer', in this context, means the foster carer or registered manager of the children's home
where the child resides. This will include Connected Persons given temporary approval as foster
carers, but will not include Private Foster Carers.
290 </p>
291 <p>
291 <span class="bold">
291 NOTE
291 </span>
291 -
291 <span class="italic">
291 The policy should be signed by the Director of Children's Services and the Lead Member for
Children.
291 </span>
291 </p>
292 <p>
292 <span class="bold">
292 Principles
292 </span>
292 :
292 </p>
293 <ul>
294 <li>
294 Authority for day-to-day decision making about a Looked After child should be delegated to the
child's carer(s), unless there is a valid reason not to do so*;
294 </li>
295 <li>
295 A Looked After child'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;
295 </li>
296 <li>
296 Decisions about delegation of authority should take account of the Looked After child's views,
and consideration should be given as to whether a Looked After child is of sufficient age and
understanding to take some decisions themselves.
296 </li>
297 </ul>
298 <p class="tiny_text">
298 *'The carer' means the foster carer or registered manager of the children's home where the child
resides.
298 </p>
299 <h3>
299 RELEVANT LOCAL GUIDANCE
299 </h3>
300 <p>
300 <a href="files/ch_scheme_del_dec_making.pdf" target="_blank" rel="noopener">
300 Children's Services Scheme of Delegated Decision Making
300 </a>
300 </p>
301 <h3>
301 AMENDMENT
301 </h3>
302 <p>
302 This chapter was reviewed in October 2017. The Bexley Children's Services Scheme of Delegated
Decision Making has been added. This sets the authority needed to effect key decisions and others
who should be consulted. Please reference relevant local guidance above.
302 </p>
303 </div>
304 <div id="sections">
306 <h3 id="sections_list">
306 Contents
306 </h3>
307 <ol>
308 <li>
308 <a href="#del_auth">
308 Delegation of Authority
308 </a>
308 </li>
309 <li>
309 <a href="#perm_plan">
309 Delegation in the Context of the Permanence Plan
309 </a>
309 </li>
310 <li>
310 <a href="#law">
310 Delegation in the Context of the Law on Parental Responsibility
310 </a>
310 </li>
311 <li>
311 <a href="#compet">
311 The Child's Competence to Make Decisions Themselves
311 </a>
311 </li>
312 <li>
312 <a href="#types">
312 Types of Decision
312 </a>
312 </li>
313 <li>
313 <a href="#educ">
313 Delegation Relating to the Child's Education
313 </a>
313 </li>
314 <li>
314 <a href="#health">
314 Delegation in the Context of the Child's Health
314 </a>
314 </li>
315 <li>
315 <a href="#pl_plan">
315 The Placement Plan
315 </a>
315 </li>
316 </ol>
317 <h3 id="del_auth">
317 1. Delegation of Authority
317 </h3>
318 <p>
318 It is essential to fulfilling the local authority'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.
318 </p>
319 <p>
319 Decisions about delegation of authority must be made within the context of:
319 </p>
320 <ul>
321 <li>
321 The child's Permanence Plan, which sets out the local authority's plan for achieving a permanent
home for the child; and
321 </li>
322 <li>
322 The legal framework for Parental Responsibility in the Children Act 1989.
322 </li>
323 </ul>
324 <p>
324 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.
324 </p>
325 <p>
325 Where a particular decision is not delegated to a child's carer and rests with the local
authority, 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).
325 </p>
326 <h3 id="perm_plan">
326 2. Delegation in the Context of the Permanence Plan
326 </h3>
327 <p>
327 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 permanence plan. For example:
327 </p>
328 <ul>
329 <li>
329 Where the plan is for the child to return home, the child's parents should have a significant
role in decision-making;
329 </li>
330 <li>
330 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;
330 </li>
331 <li>
331 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.
331 </li>
332 </ul>
333 <p>
333 See also
333 <a href="files/ch_scheme_del_dec_making.pdf" target="_blank" rel="noopener">
333 Children's Services Scheme of Delegated Decision Making.
333 </a>
333 </p>
334 <h3 id="law">
334 3. Delegation in the Context of the Law on Parental Responsibility
334 </h3>
335 <p>
335 The child's parents do not lose Parental Responsibility when the child is Looked After. Where the
child is voluntarily Accommodated under Section 20 of the Children Act 1989, the local authority
does not have Parental Responsibility. The local authority does have Parental Responsibility where
there is a care order or emergency protection order. The foster carer never has Parental
Responsibility.
335 </p>
336 <p>
336 Where a child is being voluntarily accommodated, the child's Care Plan, including delegation of
authority to the local authority 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. A local
authority cannot restrict a person's exercise of their Parental Responsibility, including their
decisions about delegation, unless there is a Care Order or an Emergency Protection Order in
place.
336 </p>
337 <p>
337 Where a child is subject to a Care Order or Emergency Protection Order, the local authority
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.
337 </p>
338 <p>
338 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 Order).
338 </p>
339 <p>
339 Where a parent is unable to engage in the discussions about delegation of authority for whatever
reason, or refuses to do so, the local authority will need to take a view. If the local authority
has a Care Order, then they can exercise their Parental Responsibility without the parent. Where
the local authority 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.
339 </p>
340 <p>
340 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 Care Order, the
child cannot be removed from the UK for more than a month without written consent of everyone with
Parental Responsibility or 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). A local authority
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 become Looked After.
340 </p>
341 <p>
341 See
341 <a href="files/ch_scheme_del_dec_making.pdf" target="_blank" rel="noopener">
341 Children's Services Scheme of Delegated Decision Making.
341 </a>
341 </p>
342 <h3 id="compet">
342 4. The Child's Competence to Make Decisions Themselves
342 </h3>
343 <p>
343 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.
343 </p>
344 <p>
344 When deciding whether a particular child, on a particular occasion, has sufficient understanding
to make a decision, the following questions should be considered:
344 </p>
345 <ul>
346 <li>
346 Can the child understand the question being asked of them?
346 </li>
347 <li>
347 Do they appreciate the options open to them?
347 </li>
348 <li>
348 Can they weigh up the pros and cons of each option?
348 </li>
349 <li>
349 Can they express a clear personal view on the matter, as distinct from repeating what someone
else thinks they should do?
349 </li>
350 <li>
350 Can they be reasonably consistent in their view on the matter, or are they constantly changing
their mind?
350 </li>
351 </ul>
352 <p>
352 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.
352 </p>
353 <p>
353 Where appropriate, consider seeking the child's views on the preferred decision maker.
353 </p>
354 <h3 id="types">
354 5. Types of Decision
354 </h3>
355 <p>
355 Decisions about the care of a Looked After child are likely to fall into three broad areas:
355 </p>
356 <ul>
357 <li>
357 Day-to-day parenting, e.g. routine decisions about health/hygiene, education, leisure
activities;
357 </li>
358 <li>
358 Routine but longer term decisions, e.g. school choice;
358 </li>
359 <li>
359 Significant events, e.g. surgery.
359 </li>
360 </ul>
361 <h4>
361 Day-to-day Parenting
361 </h4>
362 <p>
362 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.
362 </p>
363 <p>
363 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 Children's Social Care should duplicate risk
assessments.
363 </p>
364 <p>
364 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
local authority to manage this.
364 </p>
365 <h4>
365 Routine but Longer Term Decisions
365 </h4>
366 <p>
366 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 residential unit until age 18, then while the child's parents must be involved (unless
there is a Care Order and the local authority has decided 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.
366 </p>
367 <h4>
367 Significant Events
367 </h4>
368 <p>
368 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 Order or Emergency Protection Order,
decisions may be made by the birth parents or others with Parental Responsibility, which includes
the local authority, 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
368 <a href="#health">
368 Section 7, Delegation in the Context of the Child's Health
368 </a>
368 .
368 </p>
369 <h3 id="educ">
369 6. Delegation Relating to the Child's Education
369 </h3>
370 <p>
370 The Education Act 1996 defines 'parent' as including a person who has care of the child in
question. 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.
370 </p>
371 <p>
371 Young people can sometimes apply in their own right for a place at sixth form or FE college. 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.
371 </p>
372 <h3 id="health">
372 7. Delegation in the Context of the Child's Health
372 </h3>
373 <h4>
373 Young people aged 16 or 17
374 </h4>
375 <p>
375 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.
375 </p>
376 <h4>
376 Children under 16 – the concept of Gillick competence
376 </h4>
377 <ol style="list-style-type:lower-roman">
378 <li>
378 <span class="bold">
378 Child 'Gillick Competent
378 </span>
378 <br />
379 <br />
380 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.
380 <br />
381 <br />
382 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.
382 <br />
383 <br />
384 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.
384 <br />
385 <br />
386 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;
386 </li>
387 <li>
387 <span class="bold">
387 Child Not 'Gillick Competent
387 </span>
387 <br />
388 <br />
389 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.
389 </li>
390 </ol>
391 <h4>
391 Refusal of consent
391 </h4>
392 <p>
392 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.
392 </p>
393 <p>
393 Where necessary, the courts can overrule a refusal to consent by a person with Parental
Responsibility.
393 </p>
394 <p>
394 For further information, see
394 <a
href="https://www.gov.uk/government/publications/reference-guide-to-consent-for-examination-or-tre
atment-second-edition" target="_blank" rel="noopener">
394 Department of Health and Social Care's Reference guide to consent for examination or treatment
394 </a>
394 , second edition 2009.
394 </p>
395 <h3 id="pl_plan">
395 8. The Placement Plan
395 </h3>
396 <p>
396 The Care Planning, Placement and Case Review (England) Regulations 2010 (as amended) require that
each Looked After child'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:
396 </p>
397 <ul>
398 <li>
398 Medical or dental treatment;
398 </li>
399 <li>
399 Education;
399 </li>
400 <li>
400 Leisure and home life;
400 </li>
401 <li>
401 Faith and religious observance;
401 </li>
402 <li>
402 Use of social media; and
402 </li>
403 <li>
403 Any other areas of decision-making considered relevant with respect to the particular child.
403 </li>
404 </ul>
405 <p>
405 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 local authority 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.
405 </p>
406 <p>
406 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.
406 </p>
407 <p>
407 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 local authority 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.
407 </p>
408 <p>
408 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. Decisions about delegation of authority should be considered at each review of the Care
Plan.
408 </p>
409 <h4>
409 Further sources of information
409 </h4>
410 <p>
410 Other departmental advice and guidance:
410 </p>
411 <ul>
412 <li>
412 The Children Act 1989 Guidance and Regulations, Volume 2: Care Planning, Placement and Case
Review;
412 </li>
413 <li>
413 The Children Act 1989 Guidance and Regulations - Volume 4: Fostering Services;
413 </li>
414 <li>
414 The Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments)
Regulations 2013;
414 </li>
415 <li>
415 <a href="http://www.minimumstandards.org/contents_fost.html" target="_blank" rel="noopener">
415 Fostering Services: National Minimum Standards
415 </a>
415 .
415 </li>
416 </ul>
417 <h4>
417 Associated resources (external links)
418 </h4>
419 <ul>
420 <li>
420 <a
href="https://www.thefosteringnetwork.org.uk/advice-information/looking-after-fostered-child/del
egated-authority" target="_blank" rel="noopener">
420 The Fostering Network's tool-kit for supporting good practice around delegation of authority
to foster carers
420 </a>
420 ;
420 </li>
421 <li>
421 <a href="http://www.gmc-uk.org/guidance/ethical_guidance/children_guidance_index.asp"
target="_blank" rel="noopener">
421 General Medical Council guidance on consent for children
421 </a>
421 ;
421 </li>
422 <li>
422 <a href="https://www.bma.org.uk/advice/employment/ethics/consent" target="_blank"
rel="noopener">
422 British Medical Association toolkit on consent decisions for children
422 </a>
422 .
422 </li>
423 </ul>
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