Legal Update: Staying put arrangements

Almost 75 per cent of looked-after children in the UK are in foster placements. Significant changes to the law ushered in by the Children and Families Act 2014, which came into effect this month, will allow young people the opportunity to stay in their foster placements until the age of 21.

Looked-after children who are placed in foster care will usually become "former relevant children" when they turn 18 and enter adulthood. They are no longer looked-after children but are young people to whom their respective local authorities may still owe social care duties. If assessment and planning for those young people is done properly, such processes should start when the child turns 16. The local authority should turn its attention to assessing the young person's needs as they transition to adulthood. This will usually commence with a needs assessment and lead towards the production of a pathway plan, which will set out the blueprint for the young person's immediate and longer-term future as they prepare to leave the care of the local authority. It has long been the assumption for young people living with foster carers that they will leave their foster carers or families and move into semi-independent accommodation or even into their own non-supported accommodation if they are assessed as able to make that transition.

However, the concept of staying put has grown in prominence in recent years, and evidence from the Staying Put pilot scheme found that those who were able to live with their foster parents until 21 had higher educational attainment and earnings.

According to guidance published in 2010, local authorities should develop Staying Put policies; however, in practice, many local authorities did not publish policies, and it was perceived that change benefitting young people leaving care could not be achieved through guidance alone.

The changes to the law are contained in section 23CZA(3) of the Children and Families Act 2014, which amends section 23C of the Children Act 1989.

The changes introduce a duty on local authorities to provide staying put arrangements to those already living with a foster parent. It does not impose an obligation on either the looked-after child or the foster parent to continue with a foster arrangement until their 21st birthday but if it is the wish of both parties, there will be support to enable this to continue. Previously, if a foster parent wished to continue to look after the child after they turned 18, the lack of financial support could have made this untenable. However, with the changes, part of the duty of the local authority is to help with financial assistance.

Determining suitability

The suitability of a staying put arrangement will be determined following an assessment of "preparations for ceasing to be looked after" under paragraph 19BA where it covers in more detail what is required of the local authority - namely that they "provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement". The advice, assistance and support must be provided if the local authority determines that it would be appropriate to do so and both the eligible child and the foster carer wish to make a staying put arrangement.

This builds on previous provisions for local authorities to create a plan for young people in the foster system as they transition into adulthood and now staying put arrangements can form part of these considerations. Of course, key to the new arrangements is that the welfare of the young person is the central consideration. The only exception to the duty of facilitating staying put schemes is "if the local authority considers that the staying put arrangement is not consistent with the welfare of the former relevant child".

Guidance for local authorities is said to be forthcoming to assist them in carrying out their duties and functions in relation to these young people.