Where a local authority is notified of a child from abroad under 16 who is being privately fostered questions can arise as to the duties that then arise for that local authority.
This is likely to occur where a foreign national child is brought to the United Kingdom by a parent, a relative or an agent but is then placed with someone to whom the child is not, or is very distantly, related to whilst the parent, relative or agent returns to the child’s country of origin. The reasons for bringing the child to the United Kingdom will have varied. At one end of the spectrum the family will have hoped that by living here the child will have enhanced educational and employment opportunities. At the other the child may be destined for exploitation and abuse in domestic servitude and/or as an opportunity for benefit fraud.
In either case it is likely that the child was brought into the United Kingdom illegally or at best came on a visitor’s visa, which will have expired after six months at most. Therefore their presence in the United Kingdom will not be lawful. The child may have a right to international protection under the Convention Relating to the Status of Refugees or the European Convention on Human Rights if they are being subjected to exploitation or abuse but whilst they are in an abusive placement they will not be able to seek such protection. If the placement is benign the adults involved are likely to believe that if they disclose that the child does not have any immigration status he will be sent back to their country of origin. Therefore they will take no action to regularise his or her status.
If the child is under 16 and has been living with and is being cared for by an adult who is not his parent or a relative as defined by Section 105 of the Children Act 1989 (that is a grandparent, brother, sister, aunt, uncle or step parent) for 28 days or longer he will be a privately fostered child for the purposes of Section 66 of the Children Act 1989. The appropriate local authority will then have a duty arising from Section 67 of that Act to satisfy itself that his welfare is being satisfactorily safeguarded and promoted.
There are widespread concerns that local authorities are generally not fully compliant with this duty. In particular, there are concerns that they are not making the necessary enquiries to ensure that privately fostered children from abroad are properly protected. Paragraph 8.4 of the Children Act 1989 Guidance on Private Fostering (2005) (statutory guidance issued under Section 7 of the Local Authority Social Services Act 1970) states that children’s services should check a privately fostered child’s passport in order to satisfy itself about his immigration status. However, it would appear that very few local authorities do this. This means that many children are not assisted to regularise their immigration status and only discover that they have not right to live here when they become adults.
Paragraph 8.4 also goes on to recommend that, where a child is not lawfully present in the United Kingdom, the local authority should seek assistance from the authorities in the child’s country of origin or International Social Services with a view to tracing the child’s parents and arranging for the child to be returned to them, if appropriate. Of course, such a decision would not be appropriate if there were any reasonable grounds to suspect that any child protection concerns would arise if the child were to be returned. It would also not be necessary if proper arrangements had been made in relation to the private fostering arrangements and the child had leave to remain here or could obtain such leave. However, a failure to make such enquiries may result in a child remaining in an inappropriate and abusive placement, about which his parent is unaware of or has colluded with.
The fact that the child has been separated from his or her parents and that there is no-one with parental responsibility for him or her in the United Kingdom will also be a very relevant factor to be taken into account when considering the capacity of the private foster carer to care for the child using the Framework for the Assessment of Children in Need and Their Families as required by paragraph 3.3 of the National Minimum Standards for Private Fostering (2005).
The importance of recognising the special circumstances of unaccompanied children “separated from their country of origin and without the care and protection of their parents or legal guardian” is recognised at paragraph 3.58 of the Framework document. This paragraph goes on to recognises that “these are children who may become lost to statutory agencies, whose well-being or need for immediate services may be overlooked and for whom subsequent planning and intervention may be less than satisfactory”
The law also requires a local authority to check whether certain formalities were completed before the child was placed with a private foster carer. For example paragraph 1(a) of Schedule 2 to the Children (Private Arrangements for Fostering) Regulations 2005, requires a local authority to establish that the intended duration of the private fostering arrangement is understood and agreed between the parent of the child concerned or anyone with parental responsibility for him and the proposed private foster carer. This is clearly an important requirement, which could go some way to protect children from exploitation and abuse where a parent has been deceived by a human trafficker into permitting their child to be brought to the United Kingdom or has sent him here for an indefinite period of time irrespective of his welfare needs. .
When a child who has previously been privately fostered becomes 16 a local authority’s duty to him or her under Section 67 comes to an end. However, they remain unaccompanied minors and children’s services will continue to be under a duty arising from Section 11 of the Children Act 2004 to have regard to the need to safeguard and promote his or her welfare.
Where a local authority discovers that there is no one in the United Kingdom with parental responsibility for a child from abroad and welfare concerns arise, the local authority will have to consider whether, despite being provided with accommodation by his or her private foster carer, he or she is a child in need under Section 17 and whether his welfare needs are being safeguarded and promoted. There may be a variety of circumstances in which a child could be said to be a child in need. He may be a trafficked child who is being subjected to abusive treatment as a domestic servant. He may have unmet emotional and health needs which are not being met by his private foster carer. His future welfare may be being jeopardised by his immigration status not being regularised.
If it appears that he has unmet needs and his welfare is not being safeguarded and promoted, it would be appropriate for the local authority to consider whether it should be providing him with accommodation under Section 20(1) of the Children Act 1989. The basis for such provision would be that he is a child in need and his need for accommodation primarily arises from the fact that there is no-one with parental responsibility for him in the United Kingdom or that he has been abandoned.