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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 9. Support in Non-adoptive Permanent Placements
This chapter is concerned with children who are 'looked after' and for whom permanent arrangements are planned away from home in non-adoptive placements. Family and other private arrangements, which have not involved local authorities in making placements, are beyond the scope of this Paper, although some may be covered by the private fostering provisions ( see Chapter 12 below); and many such arrangements do raise serious questions about general support needs for families.
Where local authorities are making arrangements for children to be cared for on a permanent basis, short of adoption, by someone other than birth parents, part of the planning should be to consider what support is needed for the children and their carers. The type of and arrangements for support depend on what permanent legal provisions are made for the children.
- If children remain on supervision requirements or cared for under s.25 of the 1995 Act, they obviously continue to be 'looked after' by the local authority. Children are cared for on a permanent basis under these provisions, even although neither are designed for permanent care - see Chapter 1, Legal Options for Children.
- If children are subject to PROs, they are 'looked after' by the local authority.
- If children are cared for under a residence order, s.11 of the 1995 Act, they are not 'looked after' by the local authority.
(a) Support where children are 'looked after'.
Where children are 'looked after' on a permanent basis, the 'looked after' duties apply as set out in s.17 of the 1995 Act and the LA Regs. Support systems should be provided accordingly, depending on individual needs, whether children are cared for in institutions, by approved foster carers or family or friends.
Where children are 'looked after' with approved foster carers, the carers are eligible for Fostering Allowances, under reg.9 of the F Regs. Although these are not mandatory, every local authority pays them. However, there are great variations in practice about how allowances are calculated and paid. There is a view that fostering allowances should be fixed on a national level, so that the amounts paid are the same throughout the country.
There are also issues where children are 'looked after' and cared for by family members or friends. If children are on supervision, the carers do not need to be approved foster carers under reg.7 of the F Regs, because of reg.15(1)(b) of the same regulations: see Chapter 8, Public Fostering. This allows supervision requirements to name carers on whom a lesser amount of checks have been carried out. The children are 'looked after' but carers are not paid Fostering Allowances as such. Payments can be made to such carers, but are often at different and lower rates than to approved carers. Some family carers where children are on supervision are approved as carers under reg.7, but may not be paid the same allowances as unrelated carers.
If children are 'looked after' long-term under s.25 of the 1995 Act or on PROs, and are with foster carers, these carers must be approved under reg.7 of the F Regs and are eligible for Fostering Allowances. There is anecdotal information to suggest that not all family carers are approved; and that if they are, they do not necessarily receive the same allowances as unrelated carers. There could be a successful legal challenge by a family carer who could show a lesser level of allowance and support than that paid to an unrelated carer. In the case of R. (on the application of L. (A child) v Manchester City Council [2002] 1 F.L.R. 43, Munby, J. held that the Council's policy of discriminating against relative foster carers in relation to allowance payments was neither necessary nor proportionate and breached the child's rights under Article 8 of E.C.H.R., the right to respect for family life.
(b) Support for children subject to s.11 residence orders.
These children cease to be 'looked after' when a s.11 order is granted, if they were previously cared for under s.25; or shortly thereafter at a hearing, if they were previously on a supervision requirement. The carers are usually family or friends or former foster carers. These children have no further entitlement to 'looked after' services, and carers are not eligible for Fostering Allowances. This may be welcomed by carers and children, as there is no more 'interference' from the local authority, but many carers express a need for some continuing support, particularly when children become adolescents. There are many anecdotal examples of children who were formerly 'looked after' and who, in their teens, face difficulties and problems which can be traced back to the experiences that resulted in them becoming 'looked after' in the first place. Although these children were formerly 'looked after', they have no entitlement to the 'After-care' services in s.29 of the 1995 Act, because they will have ceased to be 'looked after' long before reaching the threshold criterion of their school leaving age, s.29(1).
Carers of children on s.11 orders (and other carers who are neither parents nor foster carers) can receive payments from local authorities, in terms of s.50 of the Children Act 1975, as amended by s.71 of the 2001 Act. This allows local authorities to pay what are often referred to as 'Residence Allowances' for children up to the age of 18. However, these are discretionary payments and a number of authorities do not make them.
If there is a new option for permanence as outlined in Chapter 1, pg. 14, the 'Enhanced Residence Order', this would be expected to have a support framework. The availability of such an option might replace s.11 orders for many 'looked after' children, and reduce the support problems for children in the future.
QUESTIONS:
28. Should there be changes to the support system for children 'looked after' on a permanent fostering basis?
29. Should there be changes to the support available to children who were 'looked after' and are then cared for on a s.11 order?
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