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7.1.3 Persons Disqualified from Fostering

SCOPE OF THIS CHAPTER

This procedure applies to all new applications for approval as foster carers and to all foster carers who have already been approved as foster carers.

RELEVANT LEGISLATION AND GUIDANCE

Fostering Services (England) Regulations 2011

The Children Act 1989 Guidance and Regulations Volume 4: Fostering Service (2011), Approving and supporting foster carers

Fostering National Minimum Standards, Standard 13

Criminal Justice and Court Services Act 2000

See also Fostering Panel Procedure

AMENDMENT

This chapter was updated in August 2016 with links to relevant legislation.


Contents

  1. Persons Disqualified from Fostering
  2. New Applications 
  3. Approved Foster Carers 

    Appendix 1: Fostering Services Regulations - PART 1, SCHEDULE 4 Offences specified for the purposes of regulation 26

    Appendix 2: Offences Against A Child (as defined in Section 26 of the Criminal Justice and Court Services Act 2000)

    Appendix 3: Offences Against A Child (as defined in the Sexual Offences Act 2003)


1. Persons Disqualified from Fostering

A person is disqualified from acting as a foster carer for the agency (unless a relative of the child or already acting as a foster carer) if (s)he or any adult member of the household has been cautioned for or convicted of a specified offence committed at the age of 18 or over.

A specified offence is defined as an offence against a child*, an offence specified in Part 1 of Schedule 4 of the Fostering Services Regulations 2011, the importation/possession of indecent photographs of a child under 16 and any other offence which involves bodily injury to a child (other than common assault or battery). (See Appendix 1: Fostering Services Regulations - PART 1, SCHEDULE 4 Offences specified for the purposes of regulation 26).

*A list of these offences is set out in the Criminal Justice and Court Services Act 2000, except that it does not include an offence contrary to section 9 of the Sexual Offences Act 2003 (sexual activity with a child) where the offender was under 20 when the offence was committed and the child was aged 13 or over.

In addition, a person is disqualified from acting as a foster carer for the agency (unless a relative of the child or already acting as a foster carer) if (s)he or any adult member of the household has been cautioned for or convicted of an offence specified in paragraph 1 of part 2 of Schedule 4 of the Fostering Services Regulations 2011 committed at the age of 18 or over OR falls within paragraph 2 or 3 of Part 2 of Schedule 4, notwithstanding that the offences listed have been repealed. See Appendix 2: Offences Against A Child (as defined in Section 26 of the Criminal Justice and Court Services Act 2000) and Appendix 3: Offences Against A Child (as defined in the Sexual Offences Act 2003).


2. New Applications

Where Disclosure and Barring Service checks reveal that an applicant for approval as a foster carer is a disqualified person, the applicants must be advised that their application cannot proceed. This must be confirmed in writing to them, together with the reasons, and retained with their application form. The file should also be closed electronically.

Where the applicant is seeking approval as a Family and Friend Foster Carer and the person would otherwise be regarded as disqualified, an application for consent to proceed with the assessment in relation to the particular child can be considered by the Agency Decision Maker (Fostering) on the recommendation of the Fostering Panel.

In these circumstances, the assessing social worker responsible for carrying out the checks on the prospective foster carer should prepare a report on the application setting out:

  1. The reasons for the application;
  2. The circumstances surrounding the conviction or caution which would result in the person being disqualified unless consent is given;
  3. An assessment of whether the placement would meet the child's needs despite the conviction/caution; and
  4. A recommendation as to whether the application should proceed.

The assessing social worker will arrange with the Panel Administrator a date for the Panel to consider the report and a copy of the report should be sent to the Panel Administrator 10 working days before the relevant Panel meeting.

The Panel minutes will be sent to the Agency Decision Maker (Fostering), who will consider the recommendation of the Fostering Panel on any such applications.

The decision of the Agency Decision Maker (Fostering) will be recorded in writing and a copy placed on the case record of the applicant. A copy of the decision will also be sent to the person concerned. The decision will also be entered on the electronic records.


3. Approved Foster Carers

Where information is provided or updating Disclosure and Barring Service checks reveal that an approved foster carer has been convicted of or cautioned for a criminal offence as a result of which he or she will become a disqualified person unless consent is given, an urgent review of the foster carer's approval should be held - see Review and Termination of Approval of Foster Carers Procedure - and a written report detailing the circumstances leading to the conviction/caution, together with background information from the foster carer's file, must be presented to the Fostering Panel as soon as possible. The report should contain a recommendation on whether consent should be granted to allow the foster carer to continue to be approved as a foster carer for the child or children currently in placement.

A copy of the report should be sent to the Panel Administrator at least 10 working days before the relevant Panel meeting.

Where such information is received, the social worker for any child currently in the placement must be informed and plans for the termination of the placement will also need to be considered as appropriate.

Where the report recommends the termination of approval of the foster carer, the report should be presented to the earliest possible Fostering Panel.

The Agency Decision Maker (Fostering) will consider the recommendation of the Fostering Panel on any such applications.

The decision of the Agency Decision Maker (Fostering) will be recorded in writing and a copy placed on the case record of the foster carer.

Written notice of the decision, together with reasons, must then be sent to the foster carer as soon as practicable.


Appendix 1: Fostering Services Regulations - PART 1, SCHEDULE 4 Offences specified for the purposes of regulation 26

Offences in England and Wales

  1. Any of the following offences against an adult:
    1. An offence of rape under section 1 of the Sexual Offences Act 2003;
    2. An offence of assault by penetration under section 2 of that Act;
    3. An offence of causing a person to engage in sexual activity without consent under section 4 of that Act, if the activity fell within subsection (4) of that section;
    4. An offence of sexual activity with a person with a mental disorder impeding choice under section 30 of that Act, if the touching fell within subsection (3) of that section;
    5. An offence of causing or inciting a person with mental disorder impeding choice to engage in sexual activity under section 31 of that Act, if the activity caused or incited fell within subsection (3) of that section;
    6. An offence of inducement, threat or deception to procure sexual activity with a person with a mental disorder under section 34 of that Act, if the touching involved fell within subsection (2) of that section; and
    7. An offence of causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception under section 35 of that Act, if the activity fell within subsection (2) of that section.


Appendix 2: Offences Against A Child (as defined in Section 26 of the Criminal Justice and Court Services Act 2000)

Section 26 - Meaning of "offence against a child".
  1. For the purposes of this Part, an individual commits an offence against a child if:
    1. He commits any offence mentioned in paragraph 1 of Schedule 4;
    2. He commits against a child any offence mentioned in paragraph 2 of that Schedule; or
    3. He falls within paragraph 3 of that Schedule;

And references to being convicted of, or charged with, an offence against a child are to be read accordingly.

SCHEDULE 4- MEANING OF "OFFENCE AGAINST A CHILD"

This schedule has no associated Explanatory Notes.

  1. The offences mentioned in paragraph (a) of subsection (1) of section 26 are:
    1. An offence under section 1 of the M1 Children and Young Persons Act 1933 (cruelty to children);
    2. An offence under section 1 of the M2 Infanticide Act 1938 (infanticide);
    3. An offence under section 5 of the M3 Sexual Offences Act 1956 (intercourse with a girl under 13);
    4. An offence under section 6 of that Act (intercourse with a girl under 16);
    5. An offence under section 19 or 20 of that Act (abduction of girl under 18 or 16);
    6. An offence under section 25 or 26 of that Act (permitting girl under 13, or between 13 and 16, to use premises for intercourse);
    7. An offence under section 28 of that Act (causing or encouraging sexual exploitation of, intercourse with or indecent assault on, girl under 16);
    8. An offence under section 1 of the M4 Indecency with Children Act 1960 (indecent conduct towards young child);
    9. An offence under section 54 of the M5 Criminal Law Act 1977 (inciting girl under sixteen to incest);
    10. An offence under section 1 of the M6 Protection of Children Act 1978 (indecent photographs of children);
    11. An offence under section 1 of the M7 Child Abduction Act 1984 (abduction of child by parent);
    12. An offence under section 160 of the M8 Criminal Justice Act 1988 (possession of indecent photograph of child);
    13. An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (abuse of trust).

The offences mentioned in paragraph (b) of that subsection are:

  1. Murder;
  2. Manslaughter;
  3. Kidnapping;
  4. False imprisonment;
  5. An offence under section 18 or 20 of the Offences against the M9 Person Act 1861 (wounding and causing grievous bodily harm);
  6. An offence under section 47 of that Act (assault occasioning actual bodily harm);
  7. An offence under section 1 of the M10 Sexual Offences Act 1956 (rape);
  8. An offence under section 2 or 3 of that Act (procurement of woman by threats or false pretences);
  9. An offence under section 4 of that Act (administering drugs to obtain or facilitate intercourse);
  10. An offence under section 14 or 15 of that Act (indecent assault);
  11. An offence under section 16 of that Act (assault with intent to commit buggery);
  12. An offence under section 17 of that Act (abduction of woman by force or for the sake of her property);
  13. An offence under section 24 of that Act (detention of woman in brothel or other premises).

A person falls within this paragraph if:

  1. He commits an offence under section 16 of the Offences against the M11 Person Act 1861 (threats to kill) by making a threat to kill a child;
  2. He commits an offence under section 7 of the M12 Sexual Offences Act 1956 (intercourse with defective) by having sexual intercourse with a child;
  3. He commits an offence under section 9 of that Act (procurement of defective) by procuring a child to have sexual intercourse;
  4. He commits an offence under section 10 of that Act (incest by a man) by having sexual intercourse with a child;
  5. She commits an offence under section 11 of that Act (incest by a woman) by allowing a child to have sexual intercourse with her;
  6. He commits an offence under section 12 of that Act by committing buggery with a child under the age of 16;
  7. He commits an offence under section 13 of that Act by committing an act of gross indecency with a child;
  8. He commits an offence under section 21 of that Act (abduction of defective from parent or guardian) by taking a child out of the possession of her parent or guardian;
  9. He commits an offence under section 22 of that Act (causing sexual exploitation of women) in relation to a child;
  10. He commits an offence under section 23 of that Act (procuration of girl under 21) by procuring a child to have sexual intercourse with a third person;
  11. He commits an offence under section 27 of that Act (permitting defective to use premises for intercourse) by inducing or suffering a child to resort to or be on premises for the purpose of having sexual intercourse;
  12. He commits an offence under section 29 of that Act (causing or encouraging sexual exploitation of defective) by causing or encouraging the sexual exploitation of a child;
  13. He commits an offence under section 30 of that Act (man living on earnings of sexual exploitation) in a case where the prostitute is a child;
  14. She commits an offence under section 31 of that Act (woman exercising control over prostitute) in a case where the prostitute is a child;
  15. He commits an offence under section 128 of the M13 Mental Health Act 1959 (sexual intercourse with patients) by having sexual intercourse with a child;
  16. He commits an offence under section 4 of the M14 Sexual Offences Act 1967 (procuring others to commit homosexual acts) by:
    1. Procuring a child to commit an act of buggery with any person; or
    2. Procuring any person to commit an act of buggery with a child.
  17. He commits an offence under section 5 of that Act (living on earnings of male sexual exploitation) by living wholly or in part on the earnings of sexual exploitation of a child;
  18. He commits an offence under section 9(1)(a) of the M15 Theft Act 1968 (burglary), by entering a building or part of a building with intent to rape a child;
  19. He commits an offence under section 4(3) of the M16 Misuse of Drugs Act 1971 by-
    1. Supplying or offering to supply a Class A drug to a child;
    2. Being concerned in the supplying of such a drug to a child; or
    3. Being concerned in the making to a child of an offer to supply such a drug.
  20. He commits an offence of:
    1. Aiding, abetting, counselling, procuring or inciting the commission of an offence against a child; or
    2. Conspiring or attempting to commit such an offence.


Appendix 3: Offences Against A Child (as defined in the Sexual Offences Act 2003)

Click here to view Appendix 3: Offences Against A Child (as defined in the Sexual Offences Act 2003)

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