PVG SCHEME ADDITIONAL GUIDANCE ON FOSTER CARE, KINSHIP CARE & ADOPTION

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1 PVG SCHEME ADDITIONAL GUIDANCE ON FOSTER CARE, KINSHIP CARE & ADOPTION The PVG Scheme is established by the Protection of Vulnerable Groups (Scotland) Act 2007 ( the PVG Act ). Chapter 2 of the PVG Scheme Guidance which is available at provides guidance on regulated work; this note provides supplementary guidance on fostering, kinship care and adoption to assist individuals and organisations to implement the legislation. It will be necessary to refer to the PVG Act and secondary legislation for more information; all legal rights and obligations are contained in the legislation and this guidance is an interpretive aid only. A. FOSTER CARE For the purposes of the PVG Act, a foster carer, in relation to a child, is an individual other than a parent of the child:- (a) (b) with whom the child has been placed under section 26(1)(a) (placement by councils) of the Children (Scotland) Act 1995 ( the 1995 Act ), who looks after the child in pursuance of arrangements made by a council under section 26(1)(c) (arrangements for accommodating children) of the 1995 Act, (c) who (i) (ii) maintains the child as a foster child for the purposes of the Foster Children (Scotland) Act 1984, or otherwise looks after the child in circumstances in which that Act applies by virtue of section 17 of that Act, or (d) who looks after the child in pursuance of (i) a permanence order, or (ii) a supervision requirement. What Disclosures can be Requested in Relation to Foster Care? 1. Foster Carer A person who acts as a foster carer is doing regulated work with children under the PVG Act and as such is eligible to join the PVG Scheme and request a PVG Scheme Record. V1 May

2 Foster carers are approved by the local authority (or by registered fostering agencies working on behalf of the authority). The carer is subject to reviews of their approval thoughout their time as a foster carer to assess their suitability. A child may be placed with a foster carer By virtue of a decision of the children s hearing (child is subject to a supervision requirement); or By a local authority exercising its powers under section 26 of the Children (Scotland) Act 1995 ( the 1995 Act ) in conjunction with the requirements of the Looked After Children (Scotland) Regulations 2009; or By a local authority following a decision of the court to grant a permanence order in respect of the child. The permanence order vests in the authority to right to determine the child s residence. 2. Other Family Members or Friends of the Foster Carer Regulation 10(2)(i) of the Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 makes provision for an Enhanced Disclosure for an individual over the age of 16 years residing in the same household as an individual being assessed as to their suitability to be a foster carer within the meaning of section 96 of the PVG Act. This allows an Enhanced Disclosure with a children s suitability check to be requested for such persons. However, this does not extend beyond individuals residing in the same household. This means therefore that Enhanced Disclosure checks are not available for other family members or friends who have contact with the foster child (e.g. grandmother, aunt, daughter s boyfriend etc.) but who do not reside in the same household. B. KINSHIP CARE Kinship care is a full-time care arrangement provided by a child's extended family or persons with whom the child has had a pre-existing relationship. There are two recognised forms of kinship care - formalised kinship care in respect of a child who is looked after by the local authority and informal kinship care where the child is not looked after by the local authority. Kinship Care for Looked After Children - The Looked After Children (Scotland) Regulations 2009 (at Regulation 10), which came into force in September 2009, allow local authorities to approve a person as a kinship carer who is suitable to provide care for a child who is looked after by that authority. A kinship carer must be related to the child, or be a person known to the child and be someone with whom the child has a pre-existing relationship. What Disclosures can be Requested in Relation to Kinship Care? 1. Kinship Carer who is a Foster Carer Although kinship carers have a separate identity under the Looked After Children (Scotland) Regulations, they will be regarded as foster carers for the purposes of the PVG Act if they are V1 May

3 providing care for a child who is looked after by the local authority. A looked after child may be placed with a kinship carer- By virtue of a decision of a children s hearing (child is subject to a supervision requirement); By the local authority exercising its powers under section 26 of the 1995 Act in conjunction with the requirements of the Looked After Children (Scotland) Regulations; or By the local authority following a decision of the court to make a permanence order in respect of the child. Kinship carers are therefore also foster carers for the purposes of the PVG Act definition where they are caring for a looked after child. Kinship carers who are foster carers can therefore join the PVG Scheme and PVG disclosures will be available for them. 2. Other Family Members or Friends of the Kinship Carer who is a Foster Carer If the kinship carer is a foster carer, then Regulation 10(2)(i) of the Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 (which refers to an individual over the age of 16 years residing in the same household as an individual being assessed as to their suitability to be a foster carer) will also apply here and will allow an Enhanced Disclosure with a children s suitability check to be requested for such persons. However, this does not extend beyond individuals residing in the same household. This means therefore that Enhanced Disclosure checks are not available for other family members or friends who have contact with the child (e.g. grandmother, aunt, daughter s boyfriend etc.) but who do not reside in the same household. Kinship Care for Children who are NOT Looked After Children this is an arrangement where the child is looked after by a person or persons who are not their natural parents, e.g. a relative or a family friend. This arrangement may have been agreed with the parents or it may have emerged over time. It may have had limited social work involvement. Kinship carers under this arrangement will not be foster carers and as such will not be eligible for PVG Scheme membership. However, if the arrangement is made with a non-relative and qualifies as a private fostering arrangement under the Foster Children (Scotland) Act 1984 then this will be fostering for the purposes of the PVG Act. The local authority is required to receive notification of private fostering arrangements under the 1984 Act and has certain duties in respect of monitoring the arrangements. C. ADOPTION What Disclosures can be Requested in Relation to Adoption? 1. Adopters Where the Child is not Subject to Supervision Requirement or Permanence Order V1 May

4 Adoptive or prospective adoptive parents are not doing regulated work within the meaning of the PVG Act and therefore not entitled to join the PVG Scheme where the child they are looking after is not subject to a permanence order or a supervision requirement. They are, however, entitled to an Enhanced Disclosure with a children s suitability check under Regulation 10(2)(e) of the Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 when they are being assessed by an adoption agency as to their suitability to adopt a child. 2. Other Family Members or Friends of the Adopter Where the Child is not Subject to Supervision Requirement or Permanence Order An individual over the age of 16 years residing in the same household as an individual being assessed for adopting a child is also entitled to an Enhanced Disclosure with a children s suitability check under Regulation 10(2)(f) of the Police Act 1997 (Criminal Records) (Scotland) Regulations Again, this does not extend beyond individuals residing in the same household so that Enhanced Disclosure checks are not available for other family members or friends who have contact with the child (e.g. grandmother, aunt, daughter s boyfriend etc.) but who do not reside in the same household. 3. Adopters Where the Child is Subject to Supervision Requirement or Permanence Order In many cases prospective adopters will be caring for children who, although placed with them for adoption, remain subject to a supervision requirement or a permanence order. If this is the case then the prospective adopters will be foster carers in terms of section 96 of the PVG Act as they will be providing care for children who are subject to the supervisory jurisdiction of the local authority (and the children s hearing where there is a supervision requirement). In such cases they will be carrying out regulated work with children and entitled to join the PVG Scheme. It will be for the local authority in each case to provide information on the nature of the placement and details of the legal basis on which they are making the placement. 4. Other Family Members or Friends of the Adopter Where the Child is not Subject to Supervision Requirement or Permanence Order As mentioned above, Regulation 10(2)(i) of the Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 makes provision for an Enhanced Disclosure for an individual over the age of 16 years residing in the same household as an individual being assessed as to their suitability to be a foster carer within the meaning of section 96 of the PVG Act. Where the child to be adopted is subject to a supervision requirement or permanence order, this regulation will therefore also allow an Enhanced Disclosure with a children s suitability check to be requested for members of the same household in such situations. However, again this does not extend beyond individuals residing in the same household. This means therefore that Enhanced Disclosure checks are not available for other family members V1 May

5 or friends who have contact with the child (e.g. grandmother, aunt, daughter s boyfriend etc.) but who do not reside in the same household. D. CARE OF LOOKED AFTER CHILDREN WHO ARE IN FOSTER CARE OR KINSHIP CARE BY / CHILD MINDERS / BABYSITTERS/RESPITE FOSTER CARERS Foster carers and kinship carers of looked after children should be able to make use of care by other people, such as baby sitters and childminders, in the same way as other adults who care for children. 1. Childminders A childminder while looking after children is doing regulated work with children and therefore eligible for PVG scheme membership. A foster or kinship carer would be able to ask about Scheme membership before leaving the child in a childminder s care. 2. Babysitters Whether or not babysitting falls within the definition of regulated work with children depends on the nature of the babysitting. The PVG Act says that work does not include work which is done in the course of a family relationship. This means, if the babysitting is done in the course of a family relationship, it is not work within the meaning of the PVG Act and cannot then be regulated work with children. A family relationship includes a relationship between two individuals who live in the same household and treat each other as though they were members of the same family. However, an individual who is not in a family relationship with the child but who is a friend of the parent or the family and who baby sits a child in a private arrangement made between a child s parent or guardian and the babysitter is doing regulated work with children, unless the babysitter does not receive any payment or other commercial consideration for the babysitting. If a friend acting as a babysitter does not receive any payment, then the babysitter will not be doing regulated work. A babysitter who is neither a family member nor a friend will be doing regulated work with children whether or not they are paid for the work. If the babysitter is doing regulated work, the person who is offering the babysitting work would be entitled to request a PVG Disclosure in the form of a Statement of Scheme Membership for the babysitter. An Enhanced Disclosure would not be available. 3. Respite Carers for Foster Carers The need for respite care in the context of looked after children will be considered as part of the care planning and care assessment and set up through the local authority. Respite is likely to be required for children with special needs, disabilities or particularly challenging behaviour or mental health conditions and may be for a few hours per week, occasional weekends including overnight stays or sometimes longer depending on the needs of the child and placement provider. V1 May

6 It will be for the local authority to determine the status of any respite carer in each individual case prior to any application for PVG Scheme membership being made. The determining factor will be the legal basis of the placement with the respite carer. Local authorities will require to consider carefully the circumstances of in each case and determine the status of that carer. The respite carer will be a foster carer for the purposes of the PVG Act where- - the child has been placed with them by the local authority (under s26 of the 1995 Act) or arrangements made under s26(1)(c); - the carer is looking after the child in pursuance of a supervision requirement this means that the children s hearing has authorised that the child may reside with the carer; - the carer is looking after the child in pursuance of a permanence order this means that the local authority has made a decision to place the child with that carer. E. OTHER POSITIONS ENTITLED TO ENHANCED DISCLOSURES THE POLICE ACT 1997 (CRIMINAL RECORDS) (SCOTLAND) REGULATIONS 2010: Authorities dealing with care of children should note that there are some other positions for which Enhanced Disclosures with suitability information relating to children can be sought under the Police Act (Criminal Records) (Scotland) Regulations These include - an individual seeking appointment as a member of an adoption panel or joint adoption panel under Regulation 3 or 5 of the Adoption Agencies (Scotland) Regulations 2009 (regulation 10(2)(a)) an individual seeking appointment as a member of a fostering or joint fostering panel under Regulation 17 or 19 of the Looked After Children (Scotland) Regulations 2009 (regulation 10(2)(b)) an individual appointed or seeking appointment to a panel established under s101(1) of the 1995 Act (Regulation 10(2)(d)) (panels for curators ad litem, reporting officers and safeguarders) proceedings in respect of a guardianship order under section 11 of the 1995 Act (Regulation 10(2)(g)) PVG Scheme Membership is not available for such positions. V1 May

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