s.38(6) v Regulation 24

What do the numbers mean?

The importance of these provisions is in care proceedings where a child has been removed from the care of their parents and placed with a family member who can care for the child during proceedings.

Care proceedings will be initiated due to concerns about how the children are being cared for by their parents and sometimes there will be enough concern that the children cannot stay at home. Most people prefer children to live within their families if possible, rather than them going into local authority foster care. If children are placed with family members or friends there must be some consideration as to the legal rights and responsibilities of those family members and what the status of the child is in their care. Where the Local Authority seek for the children to be placed within the family under an interim care order it is because the Local Authority feel parental responsibility needs to be shared between the parents and the local authority during the proceedings and assessment process.

There are two ways in which children can be placed with a family member or friend under an interim care order:

Section 38(6)

If a child is placed with a family member under s.38(6) of the Children Act 1989, this is a specific placement where the child can be assessed. Under this section, the child can stay with the family member or friend under an interim care order for the purposes of assessment during proceedings. In some cases, this can be positively assessed as a long-term placement for the child. It is important to note that this is an assessment for the child and the extent to which the relatives can meet the child’s needs. A placement under s.38(6) can be forced upon a Local Authority by the court whereas a placement under the provision below cannot.

Regulation 24

The second way is to place a child with family members or friends (sometimes called “connected persons”) as temporary foster carers. The Local Authority can temporarily approve the family members as foster carers for a period of 16 weeks. This power comes from the Regulation 24 of the Care Planning, Placement and Case review Regulations 2010. During this period the Local Authority has to assess the family member or friend as a potential foster carer for the child.

At the start of this placement, the Local Authority has to conduct a viability assessment. However, there is no need for them to believe that they will pass a full fostering assessment. The provision therefore does allow for short notice placements to take place. The Local Authority can extend the temporary approval of the family member as a foster carer by 8 weeks, meaning that the child can be placed under Regulation 24 for a period of 24 weeks. This is a long time in a child’s life without full approval and without having passed a full assessment.

If such a placement is being considered with a family member for your child, you can object to the relative being suggested and give reasons why you feel this is not the right placement. The court has to make a decision based on the overall needs and welfare of your child.

For specific advice or further information, please contact us on 0800 011 6666