Children Looked After by Local Authorities: The Legal Framework

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6 Kinship care

Legal status of relatives and friends

A relationship by blood or marriage, other than parenthood does not confer any responsibility for a child on the related person. Extended family relationships have legal significance only for the law on testamentary succession, incest and prohibition of marriage between certain relatives. 1 Relatives, other than parents, have no automatic parental responsibilities and rights unless they have been appointed by a parent as the child's guardian, or they have been awarded any or all of the parental rights and responsibilities by a court. 2 Extended family have no automatic rights to contact with looked after children and no standing in legal proceedings concerning children. They may not refuse consent to a child's adoption and adoption removes all existing legal relationships with birth family relatives, including grandparents. 3 After consulting on proposals for reform of family law the Scottish Executive decided against giving extended family members' additional rights to contact on the basis that these should be determined by a court according to the circumstances of each case, taking into account the child's views and welfare. 4

Nevertheless a person with whom the child lives may have significant responsibilities towards the child even if they do not have parental responsibilities and rights. The Act defines a child's family as including 'anyone with whom the child has been living'. 5 This may include people not related to the child. A person, other than a foster carer, may acquire an obligation to financially maintain a child if they accept the child into their family. 6 Any person over 16 years of age who has charge of, or control over, a child under sixteen years is required to do what is reasonable in the circumstances to safeguard and promote a child's health, development and welfare. They may consent to medical treatment if necessary. 7 The duty to safeguard and promote the welfare of a child in their care, implies that a person with charge and control, but without parental responsibilities has the right to act in such a way as to fulfil that responsibility. 8

The legislative requirement of a person with charge and control to safeguard and promote the child's welfare applies to relatives with short- and long-term care of the child. It may also include people with whom the child does not reside, if they have substantial care of the child at other times, such as grandparents providing respite care. 9 It does not apply to a person who has care or control of a child in school, such as a teacher or classroom assistant. 10

The statutory concept of a relevant person is significant here too. The status of relevant person confers the right to be notified of, receive grounds of referral for and attend a children's hearings. 11 Relevant persons may respond to grounds put by a children's hearing, have a representative assist them at a hearing and be legally represented in related court proceedings. 12 They also have rights of appeal against decisions made by a hearing and may apply for the suspension, pending appeal, of any supervision requirement made. 13 The local authority must notify 'relevant persons' of a child's placement away from home. 14 The decision as to whether a person is a relevant person may be made prior to a hearing taking place, by the principal reporter, by a children's hearing, or a court. 15

A person who ordinarily has charge of, and control over, a child, other than by reason only of his employment, but does not have parental responsibilities may nevertheless be a relevant person for the purposes of a children's hearing and other legal proceedings. 16 Long-term foster carers may be relevant persons. 17 The person must be 'exercising control over the child' at the time of the hearing and at the time of exercising any right deriving from status as a relevant person. 18 A person who does not meet the criteria for definition as a relevant person has no right to be heard in a hearing or related proceedings. However, any person who claims to have a legitimate interest in the child may apply separately for a court order for example regarding contact or residence. 19 Persons with an interest may include grandparents or other relatives.

In defining a 'relevant person' therefore, the law generally recognises the importance of relationships with relatives and significant others according to the extent of their contribution to the child's day-to-day care. Where a relative or any other person is providing substantial care and support to the child, he or she is both required and entitled to be fully informed and participate in legal decision-making processes about the need for compulsory measures of supervision and what form these might take.

Legislation requires local authorities to consult 'any … person whose views the local authority consider to be relevant', before deciding to look after a child. 20 However, the emphasis in administrative decision-making is on involving birth parents. There is a requirement to agree the care plan with a parent, or, in the absence of parent(s), a person ordinarily with charge or control over the child. Parents are defined as genetic or legal parents 21 or persons with parental responsibilities. It is clearly good practice to involve relatives caring for a child in care planning and statutory reviews, but there is no legal requirement to do so if the local authority is actively involving the child's parents. A Scottish study found little consistency, even within authorities, about the status of, or support for, extended family placements. In some cases family carers were closely involved in planning for children; in others they were not sufficiently informed or involved in planning or decision-making for the child, being consulted as 'carers' only on the child's progress in their care. 22

Placement of looked after children with relatives

When placing children in domestic households, local authorities should generally place them with approved foster carers. 23 The local authority may place the child with a relative or any other suitable person, such as a neighbour or family friend. 24 The local authority may make an immediate placement with a relative or a friend who is not an approved foster carer for a maximum of six weeks, if they are satisfied that the foster placement is the most suitable way of meeting the child's needs, they have completed the necessary preliminary enquiries and have reached a written agreement with the carer about the child's care and arrangements for the placement. 25 Thereafter they should ensure that if the placement is to continue the carer is approved as a foster carer.

If the child is subject to a supervision requirement, the local authority may recommend to a children's hearing that the child be placed away from home with a relative or friend providing that the other requirements of an immediate placement with a relative or friend have been fulfilled. If the hearing attach a condition of residence with a relative or friend who is not an approved foster carer to a supervision requirement the placement may last longer than six weeks without the local authority having to approve the carer as a foster carer. 26 Guidance suggests that these placements with persons who are not approved foster carers should be distinguished from other foster placements. 27 In England and Wales legislation prescribes that a relative or friend caring for a looked after child, who does not have parental responsibility for him or her, should be designated a local authority foster parent. 28 The Children Act 1989 places a specific duty on local authorities in England and Wales to place a child with a parent, person with parental responsibility or a relative, friend or someone otherwise connected to the child unless that is not practicable or consistent with the child's welfare. 29 Regulations make provision for the assessment of carers in these placements and support for the placement including contact with the child and carers at intervals equivalent to those in other placements. 30

In Scotland there is no statutory presumption in favour of a child being placed with a parent, relative or friend where possible and appropriate. Guidance describes accommodating a child on a voluntary basis with a relative or friend as likely to be unusual, and states that such arrangements should be a matter for negotiation between parents and relatives, with assistance from a social work department to facilitate this if necessary. 31 Guidance also states that a placement with relatives or friends should be the preferred placement for a child subject to a parental responsibilities order, and that carers for children subject to parental responsibilities orders should be approved foster carers. This indicates a degree of ambivalence about formalising the role of extended family in supporting vulnerable children and confusion about the locus of responsibility of the local authority. The local authority is required to have the child's welfare as its paramount consideration in considering the suitability of any placement. 32 Whether the child is looked after on a voluntary or compulsory basis should be irrelevant in determining whether or not to place a child with a relative or friend. If the local authority considers that a child in need requires accommodation to safeguard and promote his or her welfare, placement with a friend or relative, if feasible, may be a less intrusive method of promoting and safeguarding the child's welfare than placing the child with strangers. If such a placement looks likely to last longer than six weeks the local authority should take steps to approve the carer, unless the child is subject to a supervision requirement with a condition of residence with that carer. Approval is not legally required in those circumstances although training and support for the carers equivalent to that of approved foster carers may be required to safeguard and promote the child's welfare and as a matter of good professional practice. Supervision of the placement by regular visits at prescribed intervals remains a statutory requirement. 33

Payment to kinship carers

The local authority may place a child with a family, a relative or other suitable person on such terms as to payment by the local authority or other person as the local authority may determine. 34 This gives the local authority absolute discretion as to the rates of payment to any carers, including foster carers, for any child whom they look after. The Fostering Network ( TFN), representing foster carers, has set national rates of payment. Local authorities may have regard to these rates but are not legally required to adopt them. Whilst most Scottish adoption agencies base their fostering allowances on TFN's rates, there is wide variation in payment for services provided by carers. 35 In many instances local authorities pay carers who are relatives or friends lower rates for fostering a looked after child. The legality of this has been tested in both English and Scottish courts.

In England the principle has been established that relative carers looking after children on behalf of the local authority should receive the same rates of remuneration as unrelated foster carers. 36 The English Administrative Court quashed a local authority's policy to pay family carers lower rates on the basis of procedural impropriety. 37 Although this, by itself, could have disposed of the case the judge went on to state that the policy itself was unlawful because it imposed an arbitrary and inflexible limit on the amounts paid to relative foster carers and the level of payments were fixed so low as to conflict with the welfare principle. The court ruled that the policy was not one which a reasonable local authority would impose and it was discriminatory, affecting both short-term foster carers who are relatives and looked after children who are fostered by relatives rather than non-relatives. It also failed to comply with the ECHR tests of 'proportionality' and 'necessity' when there is interference by a public authority with a Convention right. The policy breached Article ECHR 14 because it made fostering a looked after child less attractive for relatives, and did not take into account the financial needs of the foster family and whether it would interfere with the child's and carer's right to respect for family life under Article 8. The claimants were awarded damages.

In Scotland a similar application to the Court of Session for judicial review was made by a relative with whom a local authority had placed, separately, two groups of children whom they were looking after following the making of child protection orders and supervision requirements. 38 The carer challenged the local authority's decision to pay a lower allowance than that received by non related foster carers, for the second group of children placed under a link carer scheme, citing similar grounds to those in the English case. The Scottish court ruled that legislation gives a local authority 'virtually unfettered discretion' as to payment of carers for looked after children and that Article 8 did not confer a freestanding right for carers to any financial support from the state. 39

The court considered the English ruling but held that the cases were different. The English case concerned long-term rather than short-term relative carers and challenged the legality of a policy rather than, as in the Scottish case, the application of a link carer scheme. However the argument that there is a significant difference between care provided by relative link carers and that provided by unrelated foster carers, and the conclusion as a result that relatives will always require fewer resources may be difficult to sustain. The case was not appealed. Although an outer house judgement by a single judge, not binding other courts, 40 this is the most authoritative interpretation of the law as it currently stands, and is discouraging of equivalence between kinship carers and foster carers.