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A chance to change law on fostering to fit this century

Foster carers do an incredibly difficult job, often in extremely tough circumstances.

Jimmy and Christine Johnstone know that very well. The Glasgow couple have fostered children for many years, but when they came across a uniquely challenging situation they had not faced before, support was wanting.

Their determination to stand up for themselves could finally help to bring the law for all foster carers into the 21st century.

Describing their motivation for becoming foster carers, Jimmy Johnstone wrote recently: “We wanted to make a home for young people who needed one. We tried to do right by the children in a system that exploited us and neglected them with terrifying consequences. When we discovered that we had no rights and no redress, we knew we had to change the law.”

The Johnstones argued a lack of action by Glasgow City Council over concerns about their own safety, as well as that of a child, left them with no choice but to seek legal action.

The issue came to a head when a young person in their care with extreme mental distress became a danger to themselves and others, including the Johnstones.

Mr and Mrs Johnstone still wanted to care for and protect the child, but required expert support as a matter of urgency. Under the council’s specialist Treatment Foster Care service, they argued they expected that expert support would be provided. However, when they asked for help, they said there was none to be found.

Mr Johnstone describes it as “a deeply traumatic and dangerous situation that brought us to our knees”. Citing health and safety standards, he was told by Glasgow City Council that since the Johnstones were not employees, it had no duty of care towards their safety.

Mr Johnstone described it like this: “We were in fear of our lives and the child’s. We begged for help and were met with a staggering level of disregard.”

The Johnstones were part of a specific model of foster care, but the outcome of their court case will affect all foster carers in Scotland – estimated at around 4,000 people.

The case centres on whether foster care – traditionally seen as a vocation which is done “for the love of the children” – should instead be seen as a job.

In the past, children were placed in foster care without a clear protocol for regular checks on their welfare and how the placement was working.

Changes in child protection laws mean that a local authority which places a child in foster case now imposes a series of conditions on the placement. There are regular inspections, appraisals for the foster parents, reports, reviews, disciplinary hearings if necessary, paid holidays and expenses.

In the Johnstone case, the agreement under the specific model was even more onerous. They couldn’t have any other jobs, had to attend weekly meetings and give one month’s notice to end the arrangement.
With rights and obligations being created, the Johnstones argued at an Employment Tribunal that a contract was being created and that they were workers – with the associated rights to a minimum wage, holidays and more.

In 2017, the Employment Tribunal found that their fostering agreement with the council’s Treatment Foster Care service did amount to a contract of employment. The decision was appealed by the council, which claimed foster carers were “neither workers nor employees”.

On 23 October, I represented the Johnstones at the Employment Appeal Tribunal (EAT), with Aidan O’Neill QC and backed by trade union The Independent Workers of Great Britain.

At the hearing, Lord Summers –Scotland’s specialist employment law judge – noted that the world had moved on in terms of foster carers, with the clear implication that the law has not kept pace.

When Lord Summers delivers his full judgment in the next few weeks, it will have major consequences for all local authorities in Scotland. If he decides in the Johnstones’ favour, backdated holidays for at least two years and a minimum wage differential for five/six years will be applied. There could also be a knock-on impact for English foster carers.

If the Johnstones win, foster carers could finally get the financial recognition that their emotional and physical commitment to giving children a real chance in life truly deserves.

This article originally appeared in The Scotsman on 4 November.