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I start this chapter with a pertinent quote from a young person who was interviewed as part of the Care Inquiry (2013), reminding us that a legal framework, which is fit for purpose, alone does not necessarily guarantee good outcomes for foster children:

I think what's important is for the Government to stop making new laws and work instead with what we have already and try and develop it for the better. What's important is for them to try and find ways of catering for all of us as individuals so that we grow up and become successful young people who were in care, not young people who are not successful because they were in care.

(Care Inquiry, 2013, p24)

A similar message was conveyed to the UK Government some 68 years before by Sir Walter Monkton, the author of the Dennis O'Neill Inquiry (Home Office, 1945), when he suggested that further regulatory change was not what was needed to safeguard foster children. He believed that the then 1933 Boarding-out Regulations (Home Office, 1933) were still fit for purpose and that, rather than instigating change, their requirement should be treated as a minimum, not a barely attainable maximum (Home Office, 1945, p18).

However, relentless changes in the last 60 years to legal regulation and social services’ organisational structures, relating to social work with children and families, are, in part, testament to the words of neither Sir Monkton nor the young person giving evidence to the Care Inquiry being heeded. The legislative frameworks for children looked after by the State, and foster care, have been in a regular state of flux since 1945. The seeming belief that changing the detail of the law, and the structure of organisations, will improve children's life chances, rather than addressing why such changes have not, in the last 68 years, in the main led to radically improved outcomes for children for whom the State acts as the corporate parent, has been a hallmark of children and families social policy in the UK. However, an interruption to this pattern more recently, in the field of child protection, was the Government-commissioned report (Munro, 2011), which tried to address some of the more complex matters relating to social work with children and families, about social work practice itself, among other matters.

Laws, regulations, guidance and standards provide a framework for what must be, as well as what can be done. However, as noted above, legal regulation cannot by itself safeguard foster children's interests. As Brammer writes:

Policies, legislation, structures and procedures are, of course, of immense importance, but they serve only as a means of securing better life opportunities for each young person. It is the robust and consistent implementation of these policies and procedures which keeps children and young people safe.

(Brammer, 2010, p166)

In other words, it is the quality of the implementation of law, regulations, guidance and standards that makes a difference to young people and children who are fostered.

Following the Conservative and Liberal Democrat Coalition Government coming to power in May 2010, the new Government continued the work started by the previous Labour Government, regarding improving the quality of the lives of children looked after, and foster care. The outputs of this work were the current Standards, Guidance and Regulations governing foster care which came into force in 2011, replacing those that had been in place since 2002. However, no sooner than the 2011 Standards, Guidance and Regulations for foster care were in place, and before it was possible to see if they made a difference to the quality of foster carers’ and foster children's lives, the Government embarked on an ‘improving foster care agenda’(Department of Education, 2012a; Harber and Oakley, 2012). This new agenda was, in part, in recognition that the State still had a long way to go before foster children as a group, rather than individual foster children, who often do extremely well, could be said to be thriving. Harber and Oakley remind us that foster care is still not realising the positive potential of many children, and argue that reform of foster care is still needed to enable foster children to thrive:

They are not being lifted to achieve everything that we should hope that they do. Evidence of these poor outcomes is easy to find:

 Around half of children in care have been diagnosed with a mental disorder;

 Educational outcomes are appalling, with only around a third of children in care achieving the expected Key Stage 2 level in English and Maths (compared to 74 per cent in the general population of children);

 Twice as many 19 year olds who were previously in the care system are now not in education, employment or training (33 per cent) than for the general 19-year-old population (16 per cent); and over the longer-term, over a quarter of all adults serving custodial sentences previously spent time in care and almost half of all under 21 year olds in contact with the criminal justice system have spent time in care.

It is a tragedy that the 48,530 children currently in foster care in England are at risk of poor outcomes and life chances.

(Harber and Oakley, 2012, p8)

At the time of writing some aspects of the Government's ‘improving foster care’ initiative had come to fruition, but others, such as guidance on long-term foster care and commissioning of foster care placements, were still being developed. ‘Fostering for adoption’, a development introduced in the Children and Families Bill 2013, is already having an impact on, and implications for, fostering services (Department of Education, 2013a; Simmonds, 2013).

There are a number of texts that cover law relevant to social work, children looked after and foster care (Brammer, 2010; Davis, 2010; Laird, 2010; Lawson, 2011a; Brayne and Carr, 2013). There are also a number of best practice guides that include the legal and policy framework for specific areas of foster care. These include: fostering panels (Borthwick and Lord, 2011); foster carer reviews (Brown, 2011); parent and child fostering (Adams and Dibben, 2011) and fostering for adoption (Simmonds, 2013). Specific areas of the legal and policy framework for foster care will be re-visited in more detail throughout the book where relevant.

Lawson lists the legislation and guidance relevant to foster care in England (Lawson, 2011a, pp9–11) and reminds us that the regulations, statutory guidance and NMS are not just relevant to staff of fostering services: it is essential that everyone who works with children and young people in foster care is aware of what they say (2011a, p9). Knowledge of the law can enable social workers to facilitate good quality foster care, and inform them about how to use the law as leverage, to ensure foster carers, foster children and their families receive the services, safeguards and quality of support to which they are entitled by law.

In the UK, legislation about the welfare of children and young people focuses on the best interests of children. This is stated in primary legislation in England, Wales, Scotland and Northern Ireland. The Children (Northern Ireland) Order 1995, the Children Act (Scotland) 1995, the Children Act 1989 and the Children Act 2004 all state that children's welfare has to be the paramount consideration. This also has to be the case for foster care. The welfare of a specific foster child, or a hypothetical foster child that might be placed with a foster carer in the future, has to be the paramount consideration for social workers.