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What action is the Welsh Government considering and why?

Following discussion with Heads of Children’s Services, the Children’s Commissioner for Wales and feedback from the sector, interim flexibilities were granted to the Adoption Agencies (Wales) Regulations 2005 and the Fostering Panels (Establishment and Functions) (Wales) Regulations 2018 to ensure the delivery of services within the adoption and fostering sectors continued during the pandemic.

Welsh Government is now intending to introduce subordinate legislation (Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020) in order to give these flexibilities a legal basis for a fixed period.

1.    Adoption Agencies (Wales) Regulations 2005

These Regulations set out the process for assessing the suitability of people to adopt a child and the suitability of children to be adopted. 

A.    Easements of certain procedural requirements in stage 1 and stage 2

The Adoption Agencies (Wales) (Amendment) Regulations 2020 and the Adoption Agencies (Wales) (Amendment) (No. 2) Regulations 2020 came into force on 1st April 2020. Due to the COVID-19 pandemic, Welsh Government recognised that stakeholders may not be able to comply with some of the requirements outlined in the new two stage assessment process for prospective adopters that was introduced by the new Regulations. 

Within the new process, all of the basic statutory checks to ascertain 'eligibility' to be assessed as an adopter should be undertaken in stage one of the new process and the formal assessment of 'suitability' which is undertaken during stage two can only commence when these are completed and are satisfactory. 

Understandably routine business such as medical assessments has not been prioritised by the NHS during the current time which could create delays in processing adopter applications.

Administrative flexibilities were granted on the 1st April 2020 to enable stage 1 and stage 2 of the two stage assessment process to run concurrently. This could mean, for example, that health assessments are undertaken during stage 2 of the process.

The requirement remains however that all the necessary checks need to be fully completed before an adopter is approved.

Applicants will not be able to access the Independent Review Mechanism (IRM) where their applications are unsuccessful for reasons relating to DBS, health or local authority checks which result in findings associated with child protection issues, as would have been the case if these checks were completed in stage 1. Adopters will be able to access the IRM after stage 2, if their application fails for any other reason not relating to these checks.

The proposed Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020 will give this easement legislative effect for a specified period. 

B.    Easements of timescales for completion of stages 1 and 2 and length of time prospective adopter can pause between stage 1 and 2

The proposed Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020 will also provide an easement in some timescales relating to the two stage process as follows:

  • timescales for stage one and stage two of the process from 2 months (stage 1) and 4 months (stage 2) remain in place but agencies will only be required to meet the timescales where reasonably practicable during the outbreak
  • the 6 month limit on the length of time a prospective adopter could leave between stage 1 and stage 2 will be removed

2.    Fostering panels (Establishment and Functions) (Wales) Regulations 2018  

These Regulations (1) specify the process for approving a person as a local authority foster parent. They include a requirement that a fostering services provider should, as part of the assessment process for prospective foster carers, ‘obtain details of health (supported by a medical report)’.

During the pandemic we are aware that the NHS has significantly reduced ability to provide these health assessments for prospective foster parents as priorities have been refocussed towards dealing with the emergency situation.

We realised the impact that this would have on progressing placements for vulnerable children both during and after the crisis and that there needed to be some flexibility introduced to enable the assessment of prospective foster parents to continue during this period. 

On the 11th May 2020 administrative flexibility was introduced which allowed two separate processes to be adopted in Wales for the medical assessments of prospective foster carers:

  • for those individuals who are able to access a face to face medical consultation, the original process should be followed and the prospective foster carer should continue to access an assessment from a GP
  • for those prospective foster carers who are unable to access a face to face consultation with a GP, a medical self-declaration form can be completed

The terms of approval for those applicants where assessments conclude without a full medical report, may be restricted to ‘short term’ to reflect the limitations in place at the time of the assessment. 

All approvals made by services utilising the self-declaration of health form will be subject to an early annual review process. This will be undertaken as soon as reasonably practical and within six months, following the current restrictions being lifted. The early annual review should include a full adult health assessment and report, to inform the review and any recommendation in respect of continued approval and status of such approval.

The proposed Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020 will bring the self-declaration process for medical assessments within the legislative framework for a specified period.

3.    Care Planning, Placement and Case Review (Wales) Regulations 2015

The proposed Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020 will extend the period from 16 to 24 weeks during which a person related to or otherwise connected with a child may receive temporary approval to act as a local authority foster parent for that child. 

Long term

  • what long term trends, challenges and opportunities might affect the proposal?
  • how does the proposal prevent / mitigate the bad effects in these trends or facilitate / make the most of the good effects?

The proposed Regulations will be introduced for an interim period and will be in force up to end of March 2021. They can be revoked at any time if the situation with the pandemic improves.

Not being able to approve prospective adopters or foster carers during the pandemic will have a detrimental effect on children in care. 

Delayed placement with adoptive families during care proceedings means that children have to live longer with uncertainty and experience further insecurity throughout the process as they will remain within the fostering system longer. It becomes more difficult to place a child the older they get.

Children have usually come into care as a result of abuse or neglect, and will have experienced adverse childhood experiences (ACEs) or some form of early trauma. This may lead to attachment issues, disruptive patterns of behaviour or therapeutic needs, which may escalate if the child does not receive the care and support he or she needs. Stable foster placements provide a safe environment in which these children can develop and thrive, and achieve their personal outcomes. It is therefore imperative that delays in placing a child with caring foster parents are minimised as much as possible during the COVID-19 crisis.

Any pressure would also have an adverse impact on the wider placement system and in particular foster care capacity. If children cannot move on to their permanent families, for example through an adoption placement, then they are not freeing up foster care placements for other vulnerable children who are entering the care system.  This will result in a negative supply of care placement places available to meet the need of vulnerable children. 

The proposed Regulations will provide easements to the pressures on the adoption and fostering services during the pandemic which will allow for children within the care system to be placed with both approved adopters and foster carers as outlined in their care plan.

Prevention

  • how does the proposal support the breaking of negative cycles such as poverty, poor health, environmental damage and loss of biodiversity?
  • does the proposal treat a symptom or the underlying cause? If so how? If it treats a symptom, what can be done about the underlying cause?
  • how could the proposal minimise its own negative impacts e.g. minimising waste and resource use, emissions and impact on air quality, negative impact on social / community cohesion?

The primary aim of fostering and adoption services is to provide stable placements for looked after children, so that their care and support needs can be met and their personal well-being outcomes achieved. These children have usually come into care as a result of abuse or neglect, and will have experienced adverse childhood experiences (ACEs) or some form of early trauma. This may lead to attachment issues, disruptive patterns of behaviour or therapeutic needs, which may escalate if the child does not receive the care and support he or she needs. Good foster /adoption placements provide a supportive family-based environment in which children are kept safe and receive the love and support they need in order to thrive.  

The circumstances of these children will differ according to their individual needs and family circumstances. Placements can be short term or long term/ permanency option for a child within the foster care setting and permanency for adoption placements. Fostering services in particular need to be flexible enough to meet these diverse individual needs and circumstances.

The legislation will prevent an adverse impact on children in care as there would be a ‘bottleneck’ in the care system if prospective adopters and foster carers cannot be approved. This would prevent the adoption service from progressing and would also impact foster care placements as children would not be able to move through the system to free up these placements. If foster carers are not approved, there is the risk that there will not be enough placements in Wales to support our children in the care system. The continuous flow of foster care approval is essential to ensure the care system operates effectively.

The arrangements within the Regulations are a systematic change, and will have no direct impact on the child; the relaxation in some provisions ensures that there is a steady flow of adopters and foster carers within the system to ensure children can be matched with their forever families or placed in a stable foster household.

Integration

  • how could this proposal connect and contribute to different public policy agendas and generate multiple benefits e.g. how can a transport project support improvements in health, culture or worklessness?
  • what practical steps have you taken to integrate your proposal with Prosperity for All - our National Strategy, well-being objectives and plans, as well as those of other public bodies and Public Service Boards, to maximise the proposal’s contribution across the seven well-being goals? 

Well-run fostering and adoption services which meet the needs of the children and young people within the care system will have beneficial impacts upon other parts of the care sector and beyond. A stable foster care/adoption placement reduces the likelihood of a child’s needs escalating. It provides a safe home environment which will have a positive impact on the child’s physical, mental and emotional health and well-being (reducing the need for health interventions), and provides a stable base for the child to engage with education and training (leading to higher levels of educational attainment and greater employability). It can also reduce the need for youth justice interventions; and by enabling a smoother transition from care (especially for permanent placements such as adoption), can reduce the incidence of youth homelessness or housing need post-18.

Collaboration

  • who are the partners that have a shared interest in this proposal?
  • how have those partners been involved in developing the proposal and planning its delivery, and what contribution will they make to it?

The key partners with an interest are local authorities and other agencies such as health and education which form part of the corporate parent with responsibility for the child. Also key stakeholders are the Regional Adoption Agencies; Independent Fostering Services (IFAs) providers; Third sector providers for both fostering and adoption organisations and also private foster care/special guardian/kinship providers. Care experienced children and young people, parents of children in care, foster parents, adoptive parents and those organisations which advocate on their behalf, will also have an interest.  

These Regulations are being introduced in response to the concerns these constituencies of interest have raised. The approach we have taken addresses these concerns. A formal consultation has been undertaken on the proposed Regulations. Details of this consultation can be found in the consultation summary report and Welsh Government response.

Involvement

  • how have people affected by the proposal been involved in developing it?
  • what matters to the people affected by the proposal and how might they be involved in its delivery?

The changes have been brought about in response to requests from stakeholders within the adoption and fostering sector to ensure that the flow of adoption and fostering placements continue during the COVID-19 pandemic. Local authority fostering and adoption agencies, independent fostering services providers, and third sector organisations which advocate on behalf of children and young people were invited to share their views as part of the consultation process.

Welsh Government collaborated with Public Health Wales, Primary Health officials, Children’s Commissioner for Wales, Care Inspectorate Wales, Adoption and Fostering Association (AFA) Cymru and National Adoption Service to develop the changes contained within the legislation.

Impact

  • what are the main arguments for and against the proposal? Please refer to evidence; acknowledge significant gaps in our knowledge and describe any plans to fill them
  • how widely have you explored these arguments through involvement and collaboration?

The arguments for introducing these regulations are set out within the full Integrated impact assessment.

Costs and savings

  • what will the proposal cost and how will it be funded?
  • how might costs be reduced through involvement and collaboration, across Welsh Government and/or with external stakeholders?
  • are there savings and how will these be realised?

The Regulations relate to procedural flexibilities to enable the adoption and fostering system to flow during the pandemic. 

Adoption Agencies (Wales) Regulations 2005 (S.I. 2005/1313 (W. 95)

There is the prospect of additional costs being experienced which could be associated with conducting stage 2, which is the intense assessment part of the process, but the stage 1 information resulting in a halt to the process. These costs would be impossible to quantify as it would depend entirely on the amount of work undertaken in stage 2 before the stage 1 information becomes available.

Given the current situation with the pandemic and the need to ensure the adoption process continues, the benefit of the amendment far outweighs the risk of any increased costs. The sector have been consulted and have actively requested that the amendment comes into force on an interim basis to ensure that prospective adopters can continue to be assessed and approved.

Benefits

The adoption agencies are able to undertake their assessments in as timely a way as possible. If they were undertaking the two stage assessment process in compliance with the Adoption Agencies (Wales) Regulations 2005, there would be a vast delay in completing stage 1 checks before being able to undertake stage 2. The delay would have a detrimental effect on the number of prospective adopters being available for the children who continue to come through the courts by way of placement orders.

Care Planning, Placement and Case Review (Wales) Regulations 2015 (S.I. 2015/1818 (W. 261)

The amendment to Regulations 26 and 27 will allow a responsible authority to use the temporary approval of a connected person, pending a full fostering assessment and approval, for up to 24 weeks.  As it stands the Regulations allow for up to 16 weeks under Regulation 26 and then allows for an additional eight weeks, subject to the provisions of Regulation 27.

The provisions of Regulation 27 will therefore be removed which currently include:

(a)    the Local Authority considering whether this is still the most appropriate placement
(b)    seeking the views of the fostering panel
(c)    informing the Independent Reviewing Officer (IRO)
(d)    the nominated officer (decision maker) making the decision to extend from 16 weeks to  up to 24 weeks.

The amendment will provide an approximate cost saving as follows:

  • social worker’s time in providing an updated report (up to two hours)
  • quality assurance of the report from the assessor’s manager (up to one hour)
  • panel members (a quoracy of 5) reading and attending panel for that particular item (up to two hours)
  • administrative time (up to one hour)
  • IRO time in reading the report and panel recommendation (up to one hour)
  • senior officer in reading report, panel recommendation and making a  decision (one to two hours)

Benefits

The amendment will provide time savings to the process associated with temporarily approving a connect person as a foster care.

Mechanism

Is legislation proposed? 

The need for the Regulations has been identified as part of the contingency planning for issues that may arise from the spread of COVID-19. Due to the limited time available to prepare the proposed Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020 and the changes made are temporary (less than 6 months duration), a Regulatory Impact Assessment has not been produced. 

Whilst local authorities are responsible for the children’s social care system the proposed changes are not anticipated to result in any extensive additional costs or significant changes to working practices.

The needs of businesses in the social care sector at this time have been considered in the preparation of the Regulations; the amendments will reduce or eliminate burdens on agencies and are intended to support children’s social care services to meet their statutory obligations more flexibly during the pandemic. 

Conclusion

How have people most likely to be affected by the proposal been involved in developing it?

The Association for Adoption and Fostering Cymru (AfA Cymru) and the National Adoption Service in Wales outlined the situation associated with the approval of prospective adopters and foster carers due to the COVID-19 pandemic and provided data associated the number of prospective adopters and foster carers and children in the care system that would be affected if the movement of children’s placements within the care system (including placements with adoptive families) came to a standstill.

Welsh Government collaborated with Public Health Wales, Care Inspectorate Wales, Primary Health Officials, National Adoption Service, AFA Cymru and the Children Commissioner for Wales to develop proposals to ensure that the assessment of prospective adopters and foster carers could continue during the pandemic.

A consultation with stakeholders was undertaken to gain further views on the proposed legislation during July and August 2020. 

The Regulations will ensure flexible arrangements can be utilised where necessary to allow the continuation of adoption and fostering services during the pandemic.

What are the most significant impacts, positive and negative?

These Regulations introduce temporary arrangements to enable the adoption and fostering process to progress during the COVID-19 pandemic.The regulation provisions, will provide flexibility by easing of certain procedural requirements associated with the stage 1 and stage 2 of the Adoption Agency (Wales) Regulations 2005, which will enable stage 1 and stage 2 of the two stage assessment process to run concurrently. 

They will also allow for the easements of timescales for completion of the assessment stages 1 and 2, and the length of time prospective adopter can pause between stage 1 and 2. For example: 

  • the 6 month limit on the length of time a prospective adopter could leave between stage 1 and stage 2 will be removed

The regulations (1) will also allow, the easement of the requirements which govern the process for obtaining details of a health, medical report for prospective foster carers. The arrangements allow for a prospective foster carer (if he/she is unable to access their own GP) to undertake a self-medical assessment until such time it can be reviewed and followed up by their GP and regulated foster care provider. 

The provisions also allow for an extension of the period which a person who is related to or otherwise connected with a look after child may receive temporary approval (from 16 to 24 weeks) to act as a local authority foster parent for that child.

In light of the impacts identified, how will the proposal

  • maximise contribution to our well-being objectives and the seven well-being goals; and/or,
  • avoid, reduce or mitigate any negative impacts?
  • a prosperous Wales – neutral impact
  • a resilient Wales – neutral Impact
  • a healthier Wales – the Regulations will have a positive impact on the mental health and lifestyles of people using adoption and fostering services allowing service providers to continue to place children within the care sector in adoption or foster care placement, without incurring any necessary delays as a result of pandemic’s social restrictions. 
  • a more equal Wales – the Regulations allow people to continue to be able to access to high quality, regulated adoption and foster care services, which enable children, young people to fulfil their potential in a supportive family setting.
  • a Wales of cohesive communities – neutral impact
  • a Wales of vibrant culture and thriving Welsh language – the Regulations take into account the provision of Welsh language when assessing prospective foster carer and adopters. They also allow for the continuation and consideration of a child’s heritage and culture to be taken into account when placing them into a family setting. 
  • a globally responsible Wales – neutral impact
  • the Regulations will provide easements to the pressures on the adoption and fostering services during the pandemic which will allow children within the care system to be placed with approved adopters and foster carers, thus having a positive impact on the areas mentioned above. 

How will the impact of the proposal be monitored and evaluated as it progresses and when it concludes?

Officials will monitor the arrangements set out in the legislation in consultation with the fostering and adoption sectors, to ensure that service provision remains efficient and robust. In addition the outcomes of these Regulations will be measured as part of the wider programme of work to measure the impact/outcomes of the COVID-19 pandemic.

Footnotes

(1) Please note that the inclusion of the easement relating to the Fostering Panels (Establishment and Functions) (Wales) Regulations 2018 and the use of the self-declaration health form for prospective foster carers was not taken forward in The Adoption and Fostering (Wales) (Miscellaneous Amendment) (Coronavirus) Regulations 2020 which came into force from 1st November 2020.