Foster Children (Scotland) Act 1984

Foster children for the purposes of the Act

Transitional provisions, consequential amendments and repeals.

1

Subject to section 2, a child is a foster child for the purposes of this Act if

• (a) below the upper limit of the compulsory school age, and

• (b) his care is undertaken . . . by a person who is not a relative or guardian of his.

. . ..

Exceptions to section 1

2

• (1) A child is not a foster child while he is being looked after by a local authority or is boarded out by an education authority.

• (2) A child is not a foster child while he is in the care of any person—

• (a) in premises in which any parent, adult relative or guardian of his is for the time being residing;

• (b) in any residential establishment;

• (c) in any school within the meaning of the Education (Scotland) Act 1980;

• (d) in any hospital or in any accommodation provided by a care home service registered under Part 5 of the Public Services Reform (Scotland) Act 2010;

• (e) in any home or institution not specified in this section but maintained by a public or local authority; or

• (f) if he has been in that person’s care for a period of less than 28 days and that person does not intend to undertake his care for any longer period.

• (3) A child is not a foster child while he is in the care of any person in compliance with a supervision order within the meaning of the Children and Young Persons Act 1969 or a supervision requirement . . . or a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46) .

• (4) A child is not a foster child while he is liable to be detained under the Mental Health (Care and Treatment) (Scotland) Act 2003.

• (5) A child is not a foster child—

• (a) while he is placed in the care ... of a person who proposes to adopt him under arrangements made by an adoption agency within the meaning of section 1 of the Adoption Act 1976 or section 119(1) of the Adoption and Children (Scotland) Act 2007 (asp 4) . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) The reference in subsection (1) above to a child being looked after by a local authority shall be construed as if it were a reference to which section 17(6) of the Children (Scotland) Act 1995 applies.

Duties of local authorities

Local authorities to ensure well-being of and to visit foster children

3

• (1) It shall be the duty of every local authority to secure the welfare of children within their area who are foster children.

• (2) Every local authority shall cause such children to be visited by officers of the authority in accordance with regulations made under subsection (3), who shall give such advice as to the care and maintenance of the children as may appear to be necessary.

• (3) The Secretary of State may make regulations requiring foster children in a local authority’s area to be visited by an officer of the local authority on specified occasions or within specified periods of time.

• (4) Subsections (1) and (2) are without prejudice to the provisions of Part II of the Children (Scotland) Act 1995 .

Notification of fostering to local authorities

Notification by parents

4

• (1) The Secretary of State may by regulations make provision for requiring parents whose children are, or are going to be, maintained as foster children to give to the local authority for the area where the children are, or are going to be, living as foster children, such information about the fostering as may be specified in the regulations.

• (2) Regulations under this section may include such incidental and supplementary provisions as the Secretary of State thinks fit.

Notification by persons maintaining or proposing to maintain foster children

5

• (1) A person who proposes to maintain as a foster child a child not already in his care shall give written notice thereof to the local authority in whose area the premises in which the child is to be kept are situated, not less than two weeks before he receives the child, unless he receives him in an emergency.

• (2) A person who maintains a foster child—

• (a) whom he received in an emergency, or

• (b) who became a foster child while in his care,

shall give written notice thereof to the local authority in whose area the premises in which the child is being kept are situated not later than one week after he receives the child or, as the case may be, after the child becomes a foster child.

• (3) A notice under subsection (1) or (2) shall specify the premises in which the child is to be or is being kept.

• (4) Where a person who is maintaining a foster child changes his permanent address or the premises in which the child is kept, he shall give written notice to the local authority—

• (a) not less than two weeks before the change or

• (b) if the change is made in an emergency, not later than one week after the change,

specifying the new address or premises; and if the new premises are in the area of another local authority, or of a local authority in England or Wales, the authority to whom the notice is given shall inform that other authority and give them such of the particulars mentioned in subsection (5) as are known to them.

• (5) At the request of the local authority, a person maintaining or proposing to maintain a foster child shall give them, so far as known to him, the following particulars—

• (a) the name, sex and date and place of birth of the child; and

• (b) the name and address of every person who is a parent or guardian or acts as a guardian of the child or from whom the child was or is to be received.

• (6) A person maintaining or proposing to maintain a foster child need not give a notice under subsection (1) or (2) if the child has within the last 3 months been maintained by him as a foster child but ceased to be a foster child while in his care or on removal from his care.

• (7) A local authority may exempt any person from the duty of giving notices under this section, and any such exemption may be granted as regards all or any such notices for a specified period, and may be revoked at any time by notice in writing served on that person.

Notification by persons ceasing to maintain foster children

6

• (1) If a foster child dies, the person who was maintaining him shall give, not later than 48 hours after the death, written notice of the death to the local authority and to the person from whom the child was received.

• (2) Where a foster child is removed or removes himself from the care of the person maintaining him, that person shall give, not later than 48 hours after the removal, the local authority and the person from whom the child was received the name and address, if known, of the person (if any) into whose care the child has been removed.

• (3) Where a foster child ceases to be a foster child on his removal from the care of the person maintaining him that person need not give notice under subsection (2) but shall at the request of the local authority give them the same particulars as would have been required to be stated in the notice.

• (4) A local authority may exempt from the duty of giving notices under this section, and any such exemption may be granted as regards all or any such notices for a specified period, and may be revoked at any time by notice in writing served on that person.

Disqualification for fostering

Persons disqualified from keeping foster children

7

• (1) A person shall not maintain a foster child if—

• (a) an order removing a child from his care has been made against him under this Act or any Act repealed by this Act or under section 12 of the Foster Children Act 1980;

• (b) an order has been made under the Children and Young Persons Act 1933, the Children and Young Persons Act 1969, or the Children and Young Persons (Scotland) Act 1937, or a supervision requirement has been made under the Social Work (Scotland) Act 1968 or under section 70 of the Children (Scotland) Act 1995 and by virtue of the order or requirement a child was removed from his care;

• (ba) by virtue of a compulsory supervision order or an interim compulsory supervision order, a child was removed from the person’s care;

• (c) he has been convicted of any offence specified in Schedule 1 to the said Act of 1933 or Schedule 1 to the Criminal Procedure (Scotland) Act 1995, or has been placed on probation or discharged absolutely or conditionally for any such offence;

• (ca) the person has been convicted of a relevant offence;

• (d) his rights and powers with respect to a child have been vested in a local authority under section 2 of the Children Act 1948 or under section 16 of the Social Work (Scotland) Act 1968 or in a local authority in England or Wales under the said section 2 or section 3 of the Child Care Act 1980;

• (dd) his parental rights and parental responsibilities (within the meaning of the Children (Scotland) Act 1995) have been transferred, by an order under section 86(1) of that Act, to a local authority;

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) an order has been made under section 43 of the Adoption Act 1958, section 34 of the Adoption Act 1976 or section 34 of the Adoption (Scotland) Act 1978 for the removal of a protected child who was being kept or was about to be received by him, ...

• (g) he is disqualified from fostering a child privately (within the meaning of the Children Act 1989) by regulations made under section 68 of that Act,

• (h) all his parental responsibilities and parental rights have been extinguished by a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (asp 4)

unless he has disclosed that fact to the local authority and obtained their written consent.

• (2) Where subsection (1) applies to any person, otherwise than by virtue of this subsection, it shall apply also to any other person who lives in the same premises as he does or who lives in premises at which he is employed.

• (3) A person who lives in the same premises as a barred person shall not maintain a foster child.

• (4) In subsection (3) (and in section 15(2A)), “ barred person ” means a person who is barred from regulated work with children (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)).

• (5) In this section, “compulsory supervision order” and “interim compulsory supervision order” have the meanings given by sections 83 and 86 of the Children’s Hearings (Scotland) Act 2011 (asp 1) .

• (6) In this section, “relevant offence” means any of the following offences when committed against, or in relation to, a child—

• (a) an offence under section 136, 140 or 144 of the Health and Care Act 2022 (virginity testing),

• (b) an offence under section 137, 141 or 145 of that Act (offering to carry out virginity testing),

• (c) an offence under section 138, 142 or 146 of that Act (aiding or abetting etc a person to carry out virginity testing),

• (d) an offence under section 148, 152 or 156 of that Act (carrying out hymenoplasty),

• (e) an offence under section 149, 153 or 157 of that Act (offering to carry out hymenoplasty), and

• (f) an offence under section 150, 154 or 158 of that Act (aiding or abetting etc a person to carry out hymenoplasty).

Control by local authorities of fostering

Power to inspect premises

8

Any officer of a local authority authorised to visit foster children may, after producing, if asked to do so, some duly authenticated document showing that he is so authorised, inspect any premises in the area of the authority in which foster children are to be or are being kept.

Power to impose requirements as to the keeping of foster children

9

• (1) Where a person is keeping or proposes to keep foster children in premises used (while foster children are kept in them) wholly or mainly for that purpose, the local authority may impose on him requirements as to—

• (a) the number, age and sex of the foster children who may be kept at any one time in the premises or any part of them;

• (b) the accommodation and equipment to be provided for the children;

• (c) the medical arrangements to be made for protecting the health of the children;

• (d) the giving of particulars of the person for the time being in charge of the children;

• (e) the number, qualifications or experience of the persons employed in looking after the children;

• (f) the keeping of records.

• (2) A requirement imposed under paragraphs (b) to (f) of subsection (1) may be limited by the authority so as to apply only when the number of foster children kept in the premises exceeds a specified number.

• (3) A person shall, after such time as the local authority may specify, comply with any requirement imposed on him under this section whenever a foster child is kept in the premises in question.

• (4) A requirement imposed under this section shall be imposed by notice in writing addressed to the person on whom it is imposed and informing him of his right under section 11(1) to appeal against the requirement and of the time within which he may do so.

Power to prohibit the keeping of foster children

10

• (1) Where a person proposes to keep a foster child in any premises and the local authority are of opinion that it would be detrimental to that child to be kept by him in those premises, the local authority may prohibit him from doing so; and if the premises are not for the time being used by him for the keeping of any foster child and the local authority are of opinion that it would be detrimental to any foster child to be kept by him in those premises, the local authority may prohibit his use of the premises or the keeping of any foster child.

• (2) Where a local authority impose a requirement on any person under section 9 as respects any premises, they may prohibit him from keeping foster children in the premises after the time specified for compliance with the requirement unless the requirement is complied with.

• (3) A prohibition imposed under this section shall be imposed by notice in writing addressed to the person on whom it is imposed and informing him of his right under section 11(1) to appeal against the prohibition and of the time within which he may do so.

Proceedings

Appeal to sheriff against requirement or prohibition imposed under section 9 or 10

11

• (1) A person aggrieved by a requirement imposed under section 9, or by a prohibition imposed under section 10, may appeal to the sheriff within 14 days from the date on which he is notified of the requirement or prohibition; and where the appeal is against a requirement imposed under section 9, the requirement shall not have effect while the appeal is pending.

• (2) Where the sheriff allows an appeal under subsection (1), the sheriff, instead of cancelling the requirement or prohibition—

• (a) may vary the requirement or allow more time for compliance with it; or

• (b) if an absolute prohibition has been imposed, may substitute for it a prohibition on using the premises after such time as the sheriff may specify unless such specified requirements as the local authority had power to impose under section 9 are complied with.

• (3) Any requirement or prohibition specified or substituted under this section by the sheriff shall be deemed for the purposes of this Act, other than this section, to have been imposed by the local authority under section 9 or, as the case may be, section 10.

Removal of foster children kept in unsuitable surroundings

12

• (1) If the sheriff is satisfied, on a complaint of a local authority, that a foster child is being kept or is about to be received—

• (a) by any person who is unfit to have his care, or

• (b) in contravention of section 7 or of any prohibition imposed by a local authority under section 10, or

• (c) in any premises or environment detrimental or likely to be detrimental to him,

the sheriff may make an order for his removal to a place of safety until he can be restored to a parent, relative or guardian of his or until other arrangements can be made with respect to him.

• (2) On proof that there is imminent danger to the health or well-being of the child, the power to make an order under this section may be exercised by a justice of the peace acting on the application of a person authorised to visit foster children.

• (3) An order under this section made on the ground that a prohibition of a local authority under section 10 has been contravened may require the removal from the premises of all the foster children kept there.

• (4) An order under this section may be executed by any person authorised to visit foster children or by any constable.

• (5) For the purposes of section 25of the Children (Scotland) Act 1995 (and for the reason mentioned in subsection (1)(c) of that section) a child removed under this section shall be regarded as requiring accommodation.

• (6) Where a child is removed under this section, the local authority shall, if practicable, inform a parent or guardian of the child, or any person who acts as is guardian.

Search warrants

13

A refusal to allow the visiting of a foster child or the inspection of any premises by a person authorised to do so under under this Act shall be treated, for the purposes of 36 of the Children’s Hearings (Scotland) Act 2011 (asp 1)(child assessment orders) as giving the local authority reasonable cause for the suspicion mentioned in subsection (2)(a) of that section.

Advertisements

Prohibition of advertisements relating to the fostering of children

14

• (1) No advertisement indicating that a person will undertake, or will arrange for, the care and maintenance of a child shall be published, unless it truly states that person’s name and address.

• (2) The Secretary of State may by regulations prohibit the parent or guardian of any child from publishing or causing to be published any advertisement indicating that foster parents are sought for the child.