Foster Carers: Great responsibility but little protection

27th October 2016

Foster carers work with some of the most vulnerable young people and hold considerable responsibility when it comes to caring for them, yet the importance of their role is not reflected in the protection afforded by UK whistleblowing law.

Last month foster carers voted to unionise in an effort to further their struggle to obtain employment rights. Section 43K of PIDA grants protection to employees, as well as certain workers, contractors, trainees and agency staff who raise concerns about wrongdoing, risk or malpractice which is in the public interest. The definition of worker is by no means exhaustive, meaning some workers do not qualify for whistleblower protection and foster carers fall into this gap. This legal lacuna means foster carers wishing to raise concerns about poor practice, and child protection more generally, do so with a sense of trepidation; there is no legal recourse available should their disclosures lead to victimisation.

A shocking case recently reported on BBC Radio’s File on 4 revealed the serious risks involved when foster carers are ignored. According to the report, Norfolk Social Services moved a child out of her family home as her father was violent and her mother was a drug addict and alcoholic. Due to the family’s volatile nature a court order was obtained which stated that, though the child could visit her family, all visits must be short, occasional and highly supervised. The child was later moved to a new foster carer who lived just five minutes from her birth family, and began regularly visiting them unsupervised. Her former foster carer was troubled with the move and met with social services to state that not only was she visiting the family unsupervised, but that he had concerns about a man close to the family who had made inappropriate remarks to two of his foster children, and rubbed his foot up and down one of their legs. Social services ignored these concerns and neither sought a new location for the girl or intervened to ensure that all visits took place under the terms of the court order. As the girl made more visits to the family the man in question was able to obtain her phone number. The man subsequently arranged to meet the girl in an isolated location where he sexually assaulted her. The perpetrator is now serving a prison sentence after admitting sexual activity with a minor but, had the foster carer been listened to, it is possible the girl could have been spared her ordeal.

The fear that nothing will be done is frequently cited as one of the biggest barriers to whistleblowing but for foster carers the fact they are not protected by PIDA means they have no legal remedies should those they complain to subject them to mistreatment. They can have children taken out of their care and in extreme cases lose their livelihoods if made the subject of malicious allegations. The fact they need raise their concerns to the very bodies who have control over the children in their care, currently and in the future, can leave them the victims of an imbalance they have no legal means of addressing.

This leaves foster carers in an unenviable position; they shoulder a lot of responsibility but have no legal recourse in the event they are mistreated after reporting issues. Whistleblowing protection was established to encourage people to raise concerns and, where that protection is lacking, it is only natural that people feel less inclined to speak out.

When PIDA was first introduced parliament intended to provide a broad range of workers with whistleblower protection, but with ever more complicated working arrangements successive governments have failed to fill the gaps which have emerged. Piecemeal reform, such as the introduction of protection for NHS job applicants, as well as evolving case law, create further loopholes and perpetuate a complex situation whereby some and not others are protected. A holistic look at the categories of workers who continue to fall through the gaps is needed, and foster carers are definitely one such group.

Lessons from Rotherham, Oxford and Rochdale must be heeded. In each case the fear that nothing would be done or that speaking out would lead to retaliation held people back from voicing their concerns. Including foster carers in the scope of PIDA will not only encourage them to speak up about wrongdoing that affects young people, but it will hopefully deter malpractice as well.

Tom Casey