Memorandum from the Department of Health
2002 (S.I. 2002/57)
1. The Committee has requested a Memorandum on the
(1) Given that "foster parent" is defined
in regulation 2(1) as a person with whom a child is placed or
may be placed under these Regulations, explain the intended effect
of the words "and except in Parts IV and V of these Regulations,
includes any person who is not a foster parent but with whom a
child is placed by a local authority under regulation 38(2)".
Should not these words have read "except that, in Parts IV
and V of these regulations, it does not include a person with
whom a child has been placed by a local authority under regulation
2. A foster parent is a person with whom a child
may be placed under these Regulations, which establish a complex
scheme to govern the approval of persons as foster parents, and
the placement of children with them. Regulation 38(2) creates
an exception to this scheme, permitting a local authority on certain
conditions to place a child with a person who is not approved
as a foster parent. These Regulations are to have only a limited
application in respect of such a person, since it would defeat
the object if Parts IV and V applied to them.
3. The Department agrees that the Committee's wording
is preferable, but nonetheless considers that the intended meaning
of the definition is clear.
(2) As regards regulation 39(3), explain how paragraph
19 of Schedule 2 to the Children Act 1989 qualifies the duty in
4. Regulation 39(2) requires a responsible authority
arranging to place a child outside England to ensure, so far as
reasonably practicable, that the requirements which would have
applied under these Regulations had the child been placed in England,
are complied with. Regulation 39(3), which restates regulation
10(3) of the Foster Placement (Children) Regulations 1991, provides
that the duty in regulation 39(2) is, in the case of a placement
of a child by a local authority outside England or Wales, subject
to paragraph 19 of schedule 2 to the Children Act. By that paragraph,
a local authority seeking to arrange a placement of a child outside
England and Wales, must obtain, in the case of a child in their
care, the approval of the court, and in the case of any other
child they are looking after, the approval of all those with parental
responsibility. A court may decide not to give its approval, or
to make some other order instead.
5. Thus, regulation 39(3) provides an important signpost,
indicating that compliance with the duty in regulation 39(2) is
but one part of the overall picture, and that if paragraph 19
of Schedule 2 is not complied with, such a placement may not be
(3) As regards the effect of regulation 48(2)
and (3) in relation to a failure to comply with the provisions
of regulations 4(b), 6(3), 9, 10, 11(b), 43(1) and 45(5), does
the Department wish to add anything to its memorandum of 21 January
2002 in relation to the similar point raised on regulations 11,
43 and 51 of S.I. 2001/3969, 3965 and 3968 respectively?
6. The Committee is referred to the Department's
memorandum of 21 January 2001, to which the Department does not
wish to add anything further.
(4) Explain the reference in regulation 48(4)
to regulation 32, given that regulation 48(1) does not make contravention
of that regulation an offence.
7. The reference to regulation 32 is inadvertent.
It will be removed at the earliest opportunity.
4 February 2002