Farah Ahmed analyses the impact that a shortage of foster placements in the United Kingdom is having on public law proceedings.
Introduction
It will come as no surprise that there is currently a real shortage of foster placements across the board in the United Kingdom. One can offer various reasons as to why that may be, ranging from fewer families wanting to sign up; resources and budget constraints meaning carers are no longer wanting to care; to complex needs of the children meaning that specialised placements are required.
Just over 400,000 children (which is approximately 3% of children) are in the social care system at any one time according to Barnado’s, with fostering applications falling steadily over the years. In 2019 the applications were 18% lower than in 2018. This is against the backdrop of Ofsted finding that in 2022 one in eight fostering households had deregistered.
Options available
What is clear, is that like most issues within the public law system, the fostering system is in dire need for funding and investment with targeted recruitment. But until then what can necessarily be done?
The options at present where a foster placement is not available are as follows:
Regulation 24 – a family/friend foster placement
This is always the most attractive option. It requires a prompt and efficient assessment, which depending on local practices should not take long. It is envisaged however that to pass this assessment may be difficult for a number of families. We have all come across cases where a family member has not passed an assessment for sometimes the most spurious of reasons. Therefore with decreasing numbers of foster placements available perhaps some creative thinking is needed with regulation 24 assessments. It may be that in future the threshold is brought lower to ensure more and more family members pass this assessment.
This is less than ideal but there has to be some form of realism in relation to the assessment process of a Regulation 24 of a family/friend placement, particularly in circumstances where the consequences of the child remaining at home are significantly worse.
S38(6) – home placement/placement with family
Under s 38(6) where the court has made a child the subject of an interim care or interim supervision order, the court may direct the medical or psychiatric examination or other assessments of the child. The court must be satisfied that this is “necessary to assist the court to resolve the proceedings justly”.
Historically this has been used as a tool by the Local Authority to sanction a placement at home or with a family/friend who did not pass a Regulation 24 assessment. However Re Y (A Child) (s38(6) assessment) [2018] EWCA Civ 992 and Re H (A Child: S 38 (6) Assessment) [2023] EWHC 1083 established that a placement under s 38(6) must have the primary purpose of an assessment of the child. It is likely therefore that where Local Authorities attempt to rely on s38(6) to avoid statutory approval processes like Regulation 24/Placement with Parents Regulations, they will face pushback from the court.
ICO – placement at home
It seems in some instances that children remain at home under an interim care order, where the Local Authority place increased resources and services into the family on the strict proviso that there is an ongoing search for foster placements. It is always temporary and the key is to ensure that it is safe. Again one cannot fail to see the problematic position the court is faced with where the Local Authority arrive at court stating that the Re C (A Child) (Interim separation) [2019] EWCA Civ 1998 test for separation is met only to be informed that there are no foster placements.
In addition, if one is representing a parent and faced with the LA seeking removal but suggesting the child should remain at home pending a foster placement being found, one is more likely to be successful in arguing that the test for removal is not in fact met and that the Local Authority can and should continue to manage the situation at home.
Residential children’s home
For most children this is less desirable than a foster placement, given that the very essence of a foster placement is to provide the support and nurture that a placement with a foster family brings. Furthermore it is anticipated that such a placement is for older children rather than the most vulnerable and young. In any event it is most likely that even within this regard there are insufficient placements available, and those which are available raise their own questions of registration and suitability.
In Re S (Child in care: unregistered placement) [2020] [EWHC] 1012 Cobb J expressed concern about the placement of a 15 year old girl in a holiday cottage with 3 members of staff:
“We are particularly concerned that increasing numbers of children under the age of 16 are being placed in situations where either the provider is only offering support and not care or care is being provided but the provider is operating illegally (an unregistered setting) it is unacceptable for any child or young person to be placed in a setting that does not meet their needs and keep them safe, for any amount of time”.
Conclusions/Discussions
The court can make rigorous decisions when faced with the prospect of an interim care order being sought by the Local Authority where separation is being argued but no foster placement is available. The parameters for any consideration of interim care plans are limited but not proscribed. As was made clear by Ryder LJ (as he was) at [98] in Re W (Care Proceedings: Functions of the Court and Local Authority) [2013] EWCA Civ 1227, the court “becomes the decision maker until the full order is made”. The court can put pressure on a Local Authority to undertake further assessments or conduct wider searches. But practically speaking if there are no foster placements available then there is only so much the court can do.
At present there is no case law on the matter of reduced foster placements in existence and the impact that this has in proceedings. It is anticipated that the situation will only be further tested to the extreme over the years to come and the Local Authorities, courts and professionals involved in children cases will have to think creatively to ensure the fundamental principles of the Children Act are upheld and children’s welfare is prioritised.
October 2025
Farah Ahmed is a member of the Family Law Department at 18 St John Street Chambers. Farah has considerable experience in serious and complex public law cases and has regularly been instructed on behalf of Local Authorities, Parents, Children’s Guardians and the Official Solicitor.
For more information on Farah and the rest of the department, please contact a member of the family clerking team on 0161 278 8263 or via email family@18sjs.com