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Contents

1. Purpose
2. Current Legislation
3. Application for CRB Disclosure
4. Assumptions about use of Provisions
5. Principles Governing Decision as to whether a Check is Appropriate
6. Link with Vetting and Barring Scheme

1. Purpose

The purpose of the guidance is threefold:

• Firstly, it is intended to clarify eligibility for Disclosure checks among those involved in fostering. However, the existence of a legal provision for a check does not necessarily mean that a check will be appropriate in a particular case. 
• The second aim of this guidance is, therefore, to outline the Government's expectation of when checks should be requested, in circumstances when it is possible - but not mandatory - to do so.  In practice this relates principally to adults outside the fostering household who are not approved foster carers but who may, nonetheless, be involved in the care of the child or who may have unsupervised access to a child in foster care. 
• The third aim is to provide practical guidance on how the applications should actually be made, in order to ensure that all applications are consistent.

This guidance takes account of, and is consistent with, Local Authority Circular LAC(2004)4 which relates to the delegation of decisions on 'overnight stays' for Looked After children.

2. Current Legislation

The requirements for Criminal Records Bureau (CRB) checks for foster carers and other adult members of the fostering household are set out in the Fostering Services Regulations 2011. The Fostering Services Regulations provide that Disclosure checks should be obtained on those working for any fostering agency, and Schedule 3 provides details of the particular requirements. Paragraph 13 of Schedule 3 requires enhanced Disclosure checks to be obtained on prospective foster carers, and standard Disclosure checks on adult members of their households, while the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 provide for the CRB to carry out a check on the prospective foster carers themselves and anyone living in the same household.

Whilst the fostering legislation does not require any other person to be subject to checks, other individuals may be eligible for a Standard Disclosure under the terms of the Criminal Justice and Court Services Act 2000, which allows the CRB to carry out a check when someone is involved in caring for, training, supervising, or being in sole charge of a child in foster care. Anyone who does this on a regular basis would be eligible for an Enhanced Disclosure. However, no Disclosure check can be carried out on those who simply come into contact with the foster child. 

For example, many fostering providers will seek to identify, as part of the approval process for a prospective carer, any individuals who may play a significant role in providing support for those carers. These may be back-up carers, or regular baby-sitters. In view of the regular, unsupervised access such individuals may have to looked after children, it may be appropriate for Disclosure checks to be carried out. However, in order for a check to be requested, the fostering provider would need to be aware of such arrangements and approve them; the individual's involvement would therefore need to be agreed on a relatively formal basis with the fostering provider.

3. Applications for a CRB Disclosure

As set out in Section 2, Current Legislation allows for Disclosures to be requested on individuals outside the fostering household providing that certain criteria are met.  In order to ensure that applications for Disclosure checks are carried out quickly and efficiently, the Department for Children, Schools and Families agreed with the CRB on the term 'foster carer support' to describe such a role.  This means that when the CRB application form is being completed, the term "foster carer support" should be used (in section B of the application form) to describe the position being applied for.

NB It should also be noted that, under current legislation, anyone caring for the fostered child for more than 24 hours must be an approved foster carer.

4. Assumptions about use of Provisions

Local Authority Circular LAC(2004)4 which remains valid, addresses in detail issues relating specifically to overnight stays.  The following guidance builds on this and concerns other circumstances when a Disclosure check is possible and may be appropriate, for example when a child attends regular, one to one music lessons after school.  However, the guiding principle must be that Looked After children should, as far as possible, be granted the same permissions to take part in normal and acceptable age-appropriate peer activities as would reasonably be granted by the parents of their peers and we would expect the foster carer to have made the same enquiries as any other parent would in this situation.  This is made clear in LAC (2004)4. 

Consequently, Criminal Record Bureau (CRB) checks on any individuals who are outside of the fostering household should be very much the exception and in the majority of cases it will be for the foster carer, in consultation as necessary with the provider, to make a decision about the appropriateness of the activity, in the same way as any other parent.  In some instances, an individual may already have been subject to a CRB check if he/she is a properly qualified member of a particular profession. 

5. Principles Governing Decision as to whether a Check is Appropriate

Decisions as to whether a check is appropriate should always be based on an assessment of risk to the child, including the following factors:

• The extent to which the individual concerned will be alone with the child
• The regularity of the contact
• Any relevant restrictions contained, for exceptional reasons, in the child's Care Plan or foster placement agreement, or any court orders, which restrict the child from particular activities
• The foster carer's own knowledge of the person concerned
• Any grounds for concern that the child might be at significant risk in the household concerned or from the activities in question
• Any other factors or characteristics which may make the child more vulnerable than any other child in the circumstances in question
• What is known about the individuals concerned including whether they are properly qualified in the activity, and/or the nature of the activity

It is important that the legal provisions to carry out checks on individuals who are in contact with fostered children are applied with common sense and that the above factors are given careful consideration before a Disclosure is requested.  Fostering providers may want to consider the need for further detailed guidance for their foster carers in order to ensure that their policies are transparent and consistent, and that foster carers understand the circumstances in which they should discuss the need for possible checks with their fostering provider.

It is also important that any individuals who may need to be checked are aware of this beforehand and that they are willing to co-operate with such a request.  Foster carers should therefore be encouraged to discuss the possibility with the individuals who will be supporting them.  This is an issue which fostering providers may want to cover in their own guidance.

6. Link with Vetting and Barring Scheme

Registration with the vetting and barring scheme (VBS) has been halted to allow the government to remodel the scheme back to proportionate, common sense levels.

The proposed changes should become law in early 2012. In the meantime, the Regulations introduced in October 2009 continue to apply.

Existing arrangements under the scheme which will continue include the following:

• Since January 2009, the Independent Safeguarding Authority (ISA) has been making independent barring decisions. It will continue to maintain two constantly updated lists, one for those barred from working with children, the other for those barred from working with vulnerable adults.
• Existing requirements concerning Criminal Records Bureau (CRB) and Access Northern Ireland checks will remain in place, and those entitled to such checks can continue to apply for them.
• Employers are still legally obliged to refer information to the ISA if they have moved or removed an individual because they have harmed or there is a risk of harm to a member of a vulnerable group.

End