Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

Guidance on the Looked After Children (Scotland) Regulations 2009 and Adoption and Children (Scotland) Act 2007 superseded by 2011 guidance at


Regulation 48, Arrangements with registered fostering service

This is the regulation which provides the basis for local authorities being able to make arrangements with a "registered fostering service (" RFS") to carry out certain functions on their behalf. The particular functions which they may delegate are those in Parts VI (Fostering Panels), VII (Fostering), VIII (Fostering and Kinship Care Allowances) and X (Emergency Measures). Regulation 48(2), which lists the functions which may be delegated, was amended by the Looked After Children (Scotland) Amendment Regulations 2009, SSI 2009/290

Registered Fostering Services are defined in regulation 2. They must be registered as a fostering service under Part 1 of the Regulation of Care (Scotland) Act 2001, that is as a service in terms of section 2(14)(b) of the 2001 Act. They must be voluntary organisations, in terms of section 7(6) of the 2001 Act.

The delegation permitted by local authorities under this regulation is of some of their fostering functions, but local authorities retain overall responsibility for every looked after child and the provisions made for those children. The relevant other Parts of the regulations (Parts VI, VII, VIII and X) are written in terms of the local authority, and therefore in delegating these functions, authorities should be clear that all services are carried out in accordance with the regulations. Where the regulations in Parts VI, VII, VIII and X say "local authority", that includes a RFS unless the context otherwise requires.

In deciding whether to enter into an agreement with a RFS, regulation 48(3) tells the local authority what steps they must take. There are four requirements. The local authority must:

  • be satisfied about the capacity of the RFS to discharge duties and functions on their behalf (paragraph (3)(a));
  • be satisfied that the arrangements are the most suitable way for them to discharge their duties and functions (paragraph (3)(b));
  • have a written agreement with the RFS about the matters in Schedule 7, Part I, (paragraph (3)(c); and
  • must make a written agreement with the RFS for every child they place through the RFS, about the matters in Schedule 7, Part II, (paragraph (3)(d)).

Suitability of the arrangements to discharge the local authority duties and functions

Every local authority, in their Children's Services Plan, have a responsibility to monitor, review, and plan for a whole range of services for vulnerable children and their families. This includes the nature and range of services required and how these will be provided. As part of their strategic planning, the local authority should have a clear understanding of the numbers and needs of looked after children in their area, the changing patterns of looked after children, and also the number and nature of fostering services required in meeting those needs. For fostering, this will include ongoing debate about how much of these services the local authority will provide directly themselves and the extent to which they will use the RFS. Both cost and quality will be key factors, as local authorities have a responsibility both for good financial management, and also for ensuring a quality of provision in foster care that meets all their duties in legislation and regulations, and under the National Care Standards. Local authorities also require to take account of concerns expressed in different Scottish Government strategies about the outcomes for looked after children.

Regulation 48(4) requires the local authority to review their arrangements with a RFS at intervals not more than 12 months. An local authority's arrangements with a RFS must be appropriate and the criteria for reviewing them under this paragraph should follow on from that. Regular review is vital to ensure continuity in planning for children so that both the local authority and the RFS may plan ahead; changes in contracts at short notice are avoided; and proper provision is made for individual placements if a contract alters.

For some authorities, it may be most relevant to include certain RFSs on their list of approved suppliers for 'spot purchases' of resources, as needed, but with the assumption that they will aim to place most children with their own foster carers. Other local authorities may wish to make an arrangement for a RFS to provide a defined number of placements each year, or to focus on a particular type of fostering placement such as foster carers for adolescents, children who need therapeutic foster care or short term assessment placements. Where this is the case, there should also be a mechanism within the local authority for deciding which children they wish to refer to the RFS.

Capacity of the registered fostering service

Each local authority which enters into an agreement with a RFS must be satisfied that the RFS can discharge the duties and functions defined in the agreement. In terms of quality, the RFS's annual Care Commission report will provide the foundation for assessing this. This should give information about the organisation and management of the RFS and a number of indicators about the quality of delivery.

The other aspect of RFSs' capacity is their ability to provide the numbers of foster carers for different local authorities, and to recruit carers to meet specific needs. This is another issue where the 12 monthly review of arrangements, under regulation 48(4), is important in setting realistic targets and establishing a climate where RFSs can work in partnership with local authorities, both in meeting ongoing needs and also in developing new initiatives.

Written agreements

There are two types of agreements provided for in regulation 48(3)(b) and (c) and Schedule 7, Parts I and II. A Part I agreement between a local authority and a RFSs must obviously be carefully negotiated and the expectations and requirements of both sides recorded in writing. The basic elements of such an agreement, the contract between the local authority and the RFP, are contained in Schedule 7, Part I. This covers the general matters and obligations, and both parties would benefit from legal advice. The Part I agreement should include confirmation that a Part II agreement must always be made for every child placed by the local authority, with the implementation of this as a social work task.

Part II agreements must be made for every child placed by a local authority with a RFS. They set out details of: the foster carer with whom the child is to be placed; any services the child is to receive; and of the proposed foster carer agreement under Schedule 6, and the proposed foster placement agreement for the child under Schedule 4.

Regulation 49, Visits by local authorities

The intention of regulation 49 is to require a local authority to make sure that one of their "officers" visits a child when the local authority has placed him or her with a foster carer approved by a RFS. These visits are in addition to the visits to children in looked after placements, required by regulation 46. Please see guidance on Regulation 46. Regulation 49 visits must be carried out by someone from the local authority. They cannot be delegated to the RFS.

Regulation 49 requires the local authority to visit a child place with RFS carers:

  • within 28 days of the child's placement;
  • within 14 days from when the RFS tells the local authority that the child's situation requires a visit; and
  • within three days from when the local authority is told that the child's welfare is not being safeguarded or promoted.

These visits are in the context of the agreement made by the local authority with the RFS, to carry out certain duties and functions on their behalf. The expectations of that RFS should be in line with the looked after duties on local authorities. The visits under regulation 49, from the child's own local authority, should be seen as additional to other visits. The importance for the child of a tangible link back to their birth family and home area should be borne in mind in any such arrangements. This is discussed in the guidance about the child's plan under regulation 5 (Guidance on Child's plan can be found here)

Inevitably crises will happen, and this regulation underlines the overall responsibility of the local authority to children they place. In practice, efforts should be made to keep such events to a minimum by good communication between the fostering service and the local authority, so that any stresses or tensions surrounding the placement are identified and responded to quickly.

Where a RFS has agreed to carry out some of the functions of visiting the child in placement on behalf of the local authority, under regulation 46, it should be clear that these are visits for the child separate from the RFS's support to their foster carers and reports should be provided to the child's local authority.

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