Foster Care Fortnight: The legal rights of foster carers

This year Foster Care Fortnight runs from 13 - 26 May. It is The Fostering Network’s annual campaign to show how foster care transforms lives. Research from The Fostering Network highlights that there are nearly 44,000 foster families in England and nearly 40% of foster carers work alongside their caring responsibilities, but what are their employment rights for parental leave when they foster a child?

Here, we take a look at some of the ways in which employers can support employees who have foster care responsibilities. The focus is on foster parents who are not fostering to adopt. However, those fostering to adopt will have additional rights on top of those listed below.

In short, the rights to leave that foster carers (who are not fostering to adopt) have compared to maternity leave for biological parents or adopted parents are limited. Much of the support that employees who are foster carers receive is dependent on whether their employer has any kind of policy around foster care leave. Having said that, foster parents have the same statutory rights as other employees (for example, the right to request flexible working) and will also be protected if they need to take time off to care for the children in their care.

Flexible working requests (and changes that will be made in April 2024)

From 6 April 2024, the legislation governing flexible work requests has been updated, for instance:

• making the right to request flexible working a ‘day one right’,
• employees being able to make two requests (instead of one) in a twelve month period, and
• less information needing to be included in a request (including employees no longer being required to explain how their proposed flexible working arrangement would impact the employer).

These changes will potentially be a huge benefit for foster parents and carers who also work as it will mean that more individuals will be able to request flexible working arrangements, potentially to reduce childcare costs and spend more time with their children before/ after school etc. Employers should be aware that while foster children are in their foster carer’s care they are as responsible for the day-to-day care of a child as though they are a biological or adoptive parent. This means that flexible working requests from foster carers should be considered on exactly the same basis as any other request.

It is important to note that the right remains a ‘right to request’ not a ‘right to’ flexible working, and employers may still be entitled to reject it, so long as the reasons fall into one or more of the statutory grounds for refusal.

Given the potential limitations of flexible working requests, what other employment rights relating to time off does a foster carer have?

Emergency leave

Employees who are carers (whether that be for their children or sick or elderly relatives) are typically entitled to emergency leave if anything sudden were to happen to their dependants. If they haven’t already, it is good practice for employers to extend any enhanced emergency leave privileges to foster carers, so that they can take time off to deal with any serious issues that may arise to those in their care such as illness or injury. Foster carers would have the statutory right to take time off to care for their foster child as they are a dependant.

Carer’s Leave

From 6 April 2024, carers can benefit from the new right to unpaid Carer’s Leave introduced under the Carer’s Leave Act 2023. Subject to certain exceptions, this new type of statutory leave permits employees to take a week’s unpaid leave to care for a dependant if they have a long-term care need. The definition of “dependant” includes a child, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder), or the wider catch-all provision of a person who reasonably relies on the employee for care. A foster child is likely to fall within this definition.

What other support can be offered to foster carers?

Support for employees who are training to become foster carers

Would-be foster carers have to go through rigorous assessment and training before they are approved to foster a child. If an employee is going through the process, which can require in-person sessions during the working day, then an employer should try and support employees where possible to be able to take the time off they require to complete the assessment/ training.

Mental health support for employees during and after their period of fostering

While hugely rewarding, being a foster carer can be an emotional rollercoaster. Carers deal with the emotions a biological parent would in terms of supporting their child, but also the added pressures of having to bond quickly with a child who may come from a difficult background which can make building a relationship with them more challenging. Carers also regularly deal with the situation where a child they have built a strong bond with leaves their care at some point, which can be an emotional time. Setting up support groups for parents is a great way for parents to support each other at work, sharing advice and their troubles with one another – and foster carers should be encouraged to join these groups by their employers. Many businesses also have Employee Assistance Programmes, where employees can speak to trained counsellors about any issues they are having, and foster carers should be made aware of these programmes so they can speak to someone if they are struggling.