Contact: Gill Horrobin Tel: 01962 847263 email: [email protected]

1 Summary

1.1 This report summarises the position regarding the current smoking policy within family placement, both fostering and adoption. It outlines the legislation within which the services operate, the recent guidance provided by national bodies and the development work undertaken which has resulted in new proposals for a revised policy framework on this subject. Included within the developments are the views of health professionals and legal representatives, all of which have culminated in the proposals detailed within this report and subsequent recommendations.

1.2 Social care professionals who make placement decisions on behalf of vulnerable children must give a high priority to the present and future health of these children. The issue of smoking and foster carers is controversial and requires that the rights of substitute carers to smoke must always be balanced against the rights of children to remain healthy. This is especially true for children in care, who frequently come into the care system with neglected or impaired health. The Corporate Parent has a responsibility towards children in care that has to be balanced against the rights of carers to do as they wish in their own homes.

2 Recommendations

That the Executive Member for Children and Families approves the following changes to the current policies:

· The adoption of the position of the British Association for Adoption and Fostering (BAAF), in stating that Hampshire will not approve applicants who smoke to adopt or foster children aged under 5 or with respiratory problems, unless those children are known to them;

· That placing social workers include, in each family placement agreement, a commitment from the carers that they will not expose the children in their care to smoke;

· That placing social workers include, in each family placement agreement, a statement of the reasons for considering that the placement will meet the needs of the child to be placed, and, where that family smokes, what action will be taken to reduce the risk to the child;

· That Household Reviews of Foster Carers will cover the issue of smoking;

· That regular joint campaigns with the PCT on the dangers of smoking take place.

3 Background

3.1 The health, safety and wellbeing of children and young people are at the heart of policies and practice related to children in care. This includes taking into consideration the effects of smoking on children who are in foster care and those placed for adoption, and recognising the important role that carers and social workers have in protecting all aspects of a child's health while they are in care.

3.2 The health of children in care is as much about their emotional ability to make attachments and to grow up in a family , as it is about their physical health. Whilst the risks of smoking are known and local authorities have a duty to take every possible step to protect children from those risks, they also have a duty to make the best possible match for a child, taking many factors into consideration. The over riding factor is that for the vast majority of children substantive family care is preferable to residential care.

4 Legislation and Guidance Governing Professional Practice

4.1 In assessing foster carers and adopters, social workers operate informed by a number of pieces of legislation, Regulation and guidance issued by Government, as well as by practice guidance issued by professional associations and bodies. Of relevance here are:

· Arrangement for the Placement of Children (General) Regulations 1991

· Fostering Services and Regulations 2002

· Adoption Agency Regulations 2005

· National Minimum Standards for Fostering and Adoption

· BAAF Practice Note 51 `Reducing the Risks of Environmental Tobacco Smoke for Looked After Children and their Carers' (2007)

· Fostering Network Policy Paper ` Foster Carers and Smoking' (June 2007)

4.2 Whilst the National Minimum Standards (NMS 6 and 12) make reference to the importance of carers promoting the health of children, they also (NMS 32) encourage local authorities to assess family members and friends. The Regulations emphasise the importance of individual assessment taking into account all the strengths of the carer/s. The assessments are presented to Family Placement Panels (fostering and adoption) where medical and legal expert opinion is available, balancing the potential strengths and weaknesses of each family.

5 Current Policy in Adoption and Fostering

5.1 Adoption: Hampshire currently follows the earlier BAAF guidance (1993) whereby no child of 2 years of age or under is placed with smokers - this includes social smokers and those that smoke outside. Children with asthma/other respiratory problems/disabilities are not placed with smokers. If carers smoke one cigarette anywhere they are classed as smokers. Anyone who smokes and who contacts Hampshire with an interest in adoption, is informed of this and also that Hampshire is considering new BAAF guidelines which advise that we should not be placing children under 5 with smokers. Prospective applicants are also informed that social workers will most certainly choose a non-smoking family over a smoking one when considering placement of children aged 3+ years.

5.2 Fostering: Hampshire does not place any child 0-3yrs with anyone who smokes. Children with asthma/other respiratory problems/disabilities are not placed with smokers. At the panel which approves foster carers, if applicants smoke, the Medical Advisor offers help in stopping. The department does not accept the fact that people say they smoke in the garden - a child aged 0-3 years would still not be placed with them.

5.3 Family and Friends Placements (Fostering): The nature of family and friends foster care is very different from that of County carers. There are additional complex issues to consider. Any risk to the health of a child resulting from such a placement will need to be weighed against the potential benefits to a child of being placed with people who are part of their family (or friends) and with whom they are likely to have a pre-existing bond. Children generally have better outcomes in such placements and an assessment of need is made in each case as to whether the best interests of an individual child would be served by living with family and friends, even where there may be some doubt as to their ability to provide a smoke-free home for that child. Hampshire family and friends foster carers represent a significant resource to children who have to live away from home. Currently, 27% of all children fostered with Hampshire approved foster carers are fostered with family or friends (as at June 2008). This represents 22% of all Hampshire children in care who are fostered (including those in independent placements).

5.3.1 When assessing family members or friends as prospective foster carers, there should be an analysis of risks and benefits to the child of the placement, e.g. the possible health risks to the child of carers smoking, against the security for the child of the bonding already in place between him/her and the prospective carer.

6 Recent National Guidance

6.1 The Fostering Network (a national organisation) believes that all fostering services should be moving towards a position where children and young people in care are only placed in smoke-free homes. They advise that fostering services should move in a planned way over time to ensure that children are placed with foster carers who do not smoke. They advise this should be done by:

· Recruiting foster carers who do not smoke or at the very least, at an early stage in the recruitment process, assisting those who do smoke to give up by fully informing them of the risks and providing appropriate support to them in giving up;

· Careful matching in placements and by helping current foster carers to give up or moderate their smoking through providing a range of support mechanisms, whilst mitigating against possible future claims from children/parents whose health may have been impaired by not living in a smoke-free environment.

They also advise that recruitment and retention processes should address the issue of smoking in a robust and open manner.

6.2 BAAF recommends that no `stranger' carer who smokes should be approved to care for a child under the age of 5 years and that this should apply to both fostering and adoption applicants (Practice Note 51, 2007). This is because of the particularly high health risks for very young children and toddlers who spend most of their day physically close to their carers.

6 Consultation

7.1 Legal Opinion: View of an Experienced Barrister Specialising in Public Child Care Law:

7.1.1 Counsel states that action should be taken to do everything reasonable to ensure children in care are not placed in smoking households. However, she concludes that, under the relevant legislation,  the assessment of foster carers must follow a fair process, taking into account all relevant circumstances, including the strengths and weaknesses of the applicants, and any views they express. A decision to place a child with a particular family involves balancing any risk to the child against the benefit to that child of having a loving home. Therefore, a "blanket" ban on approval of individuals who smoke is likely to be unlawful as it would mean the Council was not properly taking all relevant factors into account when making its decision on whether particular carers should be approved - in legal parlance, it would amount to a fetter on the exercise of the Council's discretion, and therefore be ultra vires.

Counsel also advises that at present the law supports the relationship between the Council and foster carers being regarded as being distinct to that of an employer/employee relationship, as there is no employment contract., and therefore any ban on smoking could not be introduced via a change to such a contract. Further, a foster carer's home is exempt from the legislation requiring premises to be smoke free.

There is a possibility that children placed with carers who smoke and who later develop a (passive) smoking related disease could seek to claim in the future against the council for negligence. This must be balanced with the much more immediate risk of the possible detriment to a child by delaying or refusing a placement with family or friends on the grounds that there are smokers in such a placement. In either case a clear record of carers assessments, clear policy about carers who smoke and particular clearly recorded reasons for placing any child with carers who smoke, will enable the authority to account for its decisions if called upon to do so.

7.2 Primary Care Trust: View by Director of Public Health

7.2.1 The Director of Public Health has read the Position Statement provided by officers and supports the position outlined; namely, that:

· Recruitment and retention processes address the issue of smoking in a robust and open manner;

· The department assists those who do smoke to give up by fully informing them of the risks and providing appropriate support to them in giving up;

· Wherever possible children should be placed with carers known to them;

· Risk assessments are carried out whereby the benefits for the child in the arrangement need to be balanced against any risks;

· The health of children in care is as much about their emotional ability to make attachments and grow in a family, as it is about their physical health;

· The current policy needs to be updated to match recent advice from the BAAF, in that no child under 5 years and no child with a respiratory illness is placed with carers who smoke, unless those carers are known to them.

7.3 In addition to the above consultations, there has been significant involvement from officers (front line to senior managers), plus with the nurses for children in care and foster carers, all of whom support the proposed changes to the current policy.

8 Conclusion

8.1 Whilst there are a number of recommendations for which Executive Member approval is sought, it is proposed that the following aspects of current good practice continue:

· Promotion of the National Minimum Standards for Foster Care in emphasising health awareness;

· Informing applicants for fostering and adoption of the impact on health of smoking for themselves and those in their care;

· Promoting access for applicants and carers to smoking cessation programmes;

· Warning applicants that smoking may impact on their approval or on the match to a child if they are approved;

· Following the relevant Regulations in ensuring that each assessment and each placement of a child, takes into account all of the circumstances of the family, including the full range of the child's needs and any attachments the child might have to the family under consideration.

9 Legal implications

9.1 Legal advice has been sought throughout the development of this policy, details of which are included in Section 7.1 of this report.

10 Financial implications

None

11 Personnel implications

None

12 Impact assessment

12.1 Race and equality impact assessment has been considered in the development of this report and no adverse impact has been identified. The aim of the proposals are to ensure all children's individual needs are considered and responded to when making all placements

13 Crime prevention issues

13.1 There is no identifiable impact on crime prevention contained in these proposals

14 Views of the Local County Councillor

14.1 The proposals in this report affect children and carers across all Electoral Divisions, therefore specific consultation has not been carried out.

Action 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

NB: the list excludes

1. Published works

2. Documents which disclose exempt or confidential information as defined in the Act.

None