Memorandum submitted by the Family Rights
Group
THE ROLE OF THE STATE IN SUPPORTING RELATIVES
RAISING CHILDREN WHO CANNOT LIVE WITH THEIR PARENTS
1. WHO ARE
WE?
This response has been developed by Family Rights
Group in consultation with the Kinship Care Alliance
Family Rights Group is the charity in England
and Wales that advises parents and other family members whose
children are involved with, or require, social care services.
We run a confidential telephone advice service for families.
Established as a registered charity in 1974,
we work to increase the voice children and families have in the
services they use. We promote policies and practices that assist
children to be raised safely and securely within their families,
and campaign to ensure that support is available to assist grandparents
and other relatives who are raising children who cannot live with
their parents.
Since 2006 Family Rights Group has been meeting
regularly with a number of voluntary organisations working with
family and friends carers, local authorities and academics in
the field, under the auspices of the Kinship Care Alliance.
The Alliance meetings are Chaired by The Fostering Network
and serviced by Family Rights Group. Members of the Alliance include
Barnardo's, BAAF, Family Welfare Association, National Children's
Bureau, NCH, The Grandparents' Association and Voice. Initially
brought together to influence the Green Paper: Care Matters:
Transforming the lives of children and young people in care,
this Alliance has proved an important vehicle for developing
a joint policy agenda designed to:
— prevent children from being unnecessarily
raised outside their family; and
— enhance outcomes for children who
cannot live with their parents and who are living with relatives.
Since the Alliance was formed there have
been some significant welcome developments:
— The Review of Child Care Proceedings[12]
encourages the use of Family Group Conferences and recommends
that all family and friends care options should have been explored
before care proceedings are started.
— The inclusion of provisions in the
Children and Young Persons Bill to ensure that looked after children,
who cannot return home, are, wherever possible, placed with relatives
who are approved as local authority foster carers, and hence are
paid accordingly.
— The government's pledge to introduce
a new framework for family and friends care as part of revised
Children Act guidance to be completed in 2009.
Nevertheless we have significant concerns about:
— The notable absence in the Bill of
provisions to ensure effective support for those caring for children
who are not looked after but who are on the edge of care.
— The lack of detail as to what the
family and friends care framework will entail.
This submission, drawn up by Family Rights Group
following consultation with the Kinship Care Alliance, describes
what we are seeking to achieve, summarises findings from research
on family and friends care and sets out detailed recommendations.
2. WHAT WE
ARE SEEKING
TO ACHIEVE
SUMMARY OF
KEY RECOMMENDATIONS
Consistent with the proposals in Care Matters
and the Children and Young Persons Bill (CYP Bill) these recommendatiopns
seek to:
— enable more vulnerable children
who cannot live with their parents to be raised by relatives rather
than being taken into, or remaining in, the care systems;
— ensure that children being raised
by relatives and friends are recognised as children in need and
are thus entitled to an assessment by the local authority of their
specific needs;
— require local authorities to
provide suitable support services, including assistance with contact
arrangements, to children being raised by family and friends carers;
— enable family and friends to
get public funding to secure as necessary a legal order to safeguard
a child; and
— ensure that family and friends
carers who are raising children who cannot live with their parents
are entitled to a national financial allowance, so as to avoid
being plunged into financial hardship as a result of becoming
carers.
3. THE CONTEXT
FOR FAMILY
AND FRIENDS
CARE
Introduction
There are no official statistics of the total
number of children living with relatives but the estimated figure
is between 200,000-300,000[13]
children, only a small proportion of which are looked-after[14]
children.
The agencies involved in the Kinship Care Alliance
are also aware of many more relatives who, with the right support
and assistance, could and would wish to care for children who
cannot live with their parents.
Often family members start to look after a child
because there is a crisis in the parental home. For example, there
may have been incidents of violence, alcohol or drug misuse, mental
or physical illness, disability, a death, separation, divorce,
domestic abuse, imprisonment, or any combination of these. The
children concerned are likely to have experienced trauma and possibly
inadequate or inappropriate parenting as a result of being exposed
to any of these circumstances. Some relatives and friends who
step in to care for the child in an emergency may be dealing with
a situation that starts as a short term arrangement but becomes
open ended with no clear indication as to how long it will continue.
In many cases it becomes clear later that the children are with
them indefinitely.
What do we know about family and friends care?
The research findings on family and friends
care (also known as kinship care) suggest that "carers' commitment
and willingness to continue against the odds benefits the children
they are looking after, but the good outcomes for these children
are sometimes achieved at the expense of the kin carers themselves."[15]
Many family and friends carers are struggling to survive financially,
emotionally and socially, receiving little, if anything, from
the state to meet the child's needs, despite having no financial
liability for them in law.[16]
There are well evidenced advantages[17]
for children who cannot live with their parents to being raised
by family and friends:
— Children in family and friends care
tend to be in more stable placements than those placed with unrelated
foster carers.
— Children feel loved and report high
levels of satisfaction.
— Children appear to be as safe and
their behaviour is perceived to be less of a problem when compared
to children with unrelated foster carers.
— Children placed within their family
can more easily maintain a sense of family and cultural identity.
— Contact with family members is more
likely to be maintained.
However the difficulties children and carers
encounter are also well evidenced:
— Family and friends carers are more
likely to be older, in poorer health and in more disadvantaged
circumstances when compared to unrelated foster carers, yet receive
significantly less support.
— Some family and friends carers incur
large legal costs in securing the care of children at risk of
ill treatment.
— There are wide variations between
local authorities in policies, support, finance and attitudes
towards family and friends care and in numbers of children placed
with family and friends.
— Access and entitlement to support,
including financial support is based on legal status and not on
need, resulting in some carers suffering significant financial
hardship.
— Assessment of the placement depends
on legal status rather than need, thus risking inconsistent and
inappropriate assessments. Some family and friends carers are
subject to full fostering assessments that are essentially geared
to non relatives while others have no assessment.
— Some children are taken to relatives
in an emergency by local authorities, who then deny responsibility
for the placement. This can leave the child and relatives without
support and confused as to their rights and responsibilities (please
see Appendix B for examples from Family Rights Group's advice
and advocacy service of such cases).
— Despite the benefits to children
of maintaining contact with their parents, siblings and other
significant people in their lives, managing contact arrangements
can cause significant difficulties for family and friends carers
yet support is rarely available. Family and friends carers receive
significantly less support in managing such arrangements than
non-related foster carers.[18]
— Family and friends foster carers
are still facing discrimination by some local authorities, despite
the legal ruling that they should be paid the same rate of fostering
allowance whether they are a family and friends carer or a "stranger"
foster carer.[19]
A recent survey found that 25 authorities admitted to paying their
family and friends foster carers at a lower rate than their other
foster carers.[20]
We share the views expressed in Care Matters
that family and friends care needs to be the option of first resort
for children coming into state care (which often is not the case)
and that more children could be placed in family and friends care.
However it is crucial that the needs of family
and friends carers are addressed if these children are to reach
their full potential. The overwhelming evidence from our advice
work is that the more informal the arrangement the less likely
the family member who takes on the care of the child is to receive
support.[21]
This lack of support is likely to have a detrimental effect on
the child, and sometimes causes the placement to break down and
the children to end up in the state care system after all.
How can family and friends carers access support
services?
Family and friends care arrangements generally
fall into certain key legal categories, with associated routes
to support services:
(a) Looked after children: When Children's Services
has concerns about a child's safety and well-being, and they decide
it is unsafe for the child to remain at home, then, provided they
have the necessary authority, they can place the child with a
relative where this is consistent with the child's welfare. Such
authority is derived from either the parents' agreeing to the
plan (in which case the child is accommodated) or where such agreement
is not forthcoming, they have been granted a care order (in which
case the child is in care). Although there is some poor practice,
with local authorities sometimes refusing to accept responsibility
for such children,[22]
the local authority will normally approve the child's relatives
as foster carers in these circumstances and thus is under a duty
to support them accordingly.[23]
This is consistent with the existing provisions in s.23(6) Children
Act 1989 (CA) and will be reinforced by the proposed amendments
in the Children and Young Persons Bill—see s.22C CA in clause
9.
Children on the edge of care who are not looked
after: Relatives will often take precipate action to prevent children
unnecessarily entering the care system. If, for example, a local
authority suspects a child is at risk of harm, the local authority
is required by s.47 CA to instigate child protection enquiries,
and to take necessary action including drawing up a plan to ensure
the child's safety and well-being. Sometimes arrangements will
be made between the parents and relatives with the strong encouragement
of the local authority that the child goes to live with relatives.
Such children are clearly very vulnerable and as such are on the
edge of care but because the relative has stepped in, they do
not become looked after. In these circumstances, whilst closely
monitoring the care of the child with the relative, the local
authority has the power to provide support services if the child
is assessed as being a child in need under s.17 (as amended by
the CYP Bill) and Part III CA generally, but it is not under a
duty to support the arrangement and often fails to do so, as evidenced
by the research above. As a result many such arrangements come
under considerable strain and may even break down.
(b) Other legal arrangements can include the
carer being granted a residence order in which case the local
authority has a discretionary power but is not required to pay
a residence order allowance (schedule 1, para 15 CA) or a special
guardianship order in which case the local authority has the power
to provide financial and other support under the statutory system
created to provide special guardianship support (s.14F CA). Further
information about the legal arrangements can be found in Appendix
A.
4. NEW DETAILED
RECOMMENDATIONS
The rest of the briefing sets out detailed recommendations
to promote wider use of family and friends care for children on
the edge of care and to improve their access to support services
in such placements:
4.1 Enabling more children to live with family
and friends rather than in the state care system
A recent study[24]
found that social workers initiated only 4% of family and friends
placements, so if relatives do not put themselves forward, it
is unlikely that the local authority will place the child with
them. Yet some relatives are providing a lot of support to the
child's parents (who may be their own son, daughter, sister or
brother) and are fearful that presenting themselves as potential
carers might be perceived by the parent as undermining them. Others
may not have a full picture of what is going on and do not realise
the situation is as serious as it is, and even if care proceedings
are initiated, they may not be eligible for legal aid and may
be very unclear as to their options.
The proposals below are consistent with the
recommendations of the Department for Constitutional Affairs,
Department for Education and Skills and Welsh Assembly Government
Review of Child Care Proceedings (2006).
(a) Family group conferences
Family group conferences are a proven effective
way of identifying and enabling family members to come forward
as potential carers.
Family group conferences are family-led decision
making meetings. Parents, relatives and friends develop a plan
for the child's care, following significant earlier preparation
by an independent co-coordinator who explores the issues with
each person attending the meeting. The family plan addresses child
welfare and/or protection concerns including those identified
and communicated to the family by the local authority. The child
is supported to be involved in the meeting, with the use of an
advocate where appropriate. The family plan is approved by the
local authority provided it satisfactorily addresses the welfare
and protection concerns.
FGCs are a proven mechanism to enable partnership
between the state and families at all key decision making points
for a child including:
— As a means of engaging the family
to identify and support care arrangements for vulnerable children
and their parents.
— As a way of identifying alternative
care arrangements within the family when the parent cannot continue
to look after the child, including identifying necessary support
packages to avoid the child being received into state care.
— As a means of planning for the child
to see members of their family and to return home safely to their
family network from state care wherever possible.
— Prior to "pathways" planning
for children leaving local authority care.
However, although the number of family group
conferences taking place in England and Wales is increasing, whether
or not a family is offered a family group conference is still
ad hoc, dependent upon where the family lives and who their
social worker is. A legislative lead is therefore required to
achieve a more consistent national approach.
(b) Independent advice and advocacy
To support family and friends in understanding
their options, having their views taken into account and to create
a working partnership between family members and local authorities,
relatives, as well as parents, need access to independent advice
and advocacy once s.47 child protection enquiries are initiated.
Identifying and supporting relatives to come
forward as carers—new recommendations
1. All children with their families are offered
a family group conference prior to care proceedings being initiated
(or immediately afterwards in an emergency).
2. A new duty is placed upon children's services
to ensure the provision of local family group conference service
and independent family advice and advocacy services and that this
duty is properly funded by central government.
4.3 Systems for providing support
There is considerable research evidence that
family and friends carers do not receive adequate support, particularly
when they are raising vulnerable children outside the looked after
system. The system for supporting family and friends care therefore
needs to be fundamentally revised.
Family and friends support needs fall into two
categories which should be addressed in distinct ways:
— Immediate/short term needs where
family and friends come forward to care for a child in an emergency
to avert the need for the child to be taken into state care.
— Longer term needs where family and
friends take on the care of a child on a long term or permanent
basis.
4.3.1 Meeting immediate short term needs of children
and carers where the child is not looked after
The immediate support needs for carers of children
who are not looked after are best met by services being provided
under s.17 CA where the child is in need as defined in s.17(10).
The support available under this section should be enhanced by
the provisions in the CYP Bill to enable cash help to be provided
(see clause 24). Yet evidence from our advice line suggests that
some local authorities are refusing to even assess a child's need
for support unless s/he is at risk of harm. By going to live with
a relative the immediate risk of harm has normally been removed
and in such circumstances neither the child or carer's acute needs
are therefore assessed, let alone met. This could be overcome
if the child/carer had a prima facie right to assessment
of their needs under s.17 Children Act 1989, as is the case for
disabled children. This would enable them to have better access
to immediate support particularly where they have stepped in to
care for a child or a group of siblings in a crisis without having
the opportunity to reflect on the details of how they will manage
and where the child(ren) has acute needs as a result of earlier
abuse.
Meeting short term needs—new recommendations
1. The definition of who is a child in need
in s. 17(10) be amended to include:
(d) children being cared for by
family members or friends.
4.3.2 Meeting needs where and friends take on
the care of a child on a long term or permanent basis
Currently, the only way in which such carers
can be guaranteed access to the support they need is for the child
to be "looked after" ie to be and remain formally in
the state care system as described above. Yet there may be no
other good reason why the child needs to be in care. We therefore
recommend:
That a family and friends care support system
needs to be developed on a statutory basis for family and friends
carers who have an established caring arrangement of a child who
is not, or does not need to remain, looked after. This would entail:
(i) The local authority being under a duty to
establish family and friends care support services, including
commissioning services from the voluntary sector. This would mirror
the duties introduced under the Adoption and Children Act 2002
in respect of adoption and special guardianship.
(ii) Support groups being available for carers,
to combat the isolation many find themselves in when taking on
a parenting role and dealing with the complex needs of vulnerable
children which they had not planned for.
(iii) Support for contact arrangements. It has
long been established that by far the majority of children who
are looked after return home to their families whether during
their minorities or after they leave care at 18[25]
and that contact is the key to early discharge from care.[26]
There is also evidence that, although contact is important for
children's well-being even where they will never return to the
parental home, it can be problematic in practice and requires
support to work effectively. Yet family and friends carers are
often left alone to manage difficult contact arrangements as compared
with unrelated foster carers.[27]
For example there may be tensions between the adults, or the children
may experience confused emotions and display challenging behaviour,
all of which needs to be worked through. Specific services, including
mediation should be available to promote positive relationships
for such children.
(iv) Children who are being raised by family
and friends carers on a long terms basis (more than 28 days) and
cannot live with their parents, having a right to an assessment
of their needs and access to such support services.
(v) Improved communication, co-ordination, understanding
and prioritisation of the needs of these children and their birth
families, including carers, by public agencies including schools,
CAMHS, and housing and between adults and children's services,
for example in addressing the impact of parental alcohol and substance
misuse.
(vi) Government funding being available to local
authorities to fulfil such duties.
Meeting longer term needs of carers and children—new
recommendations
In order to ensure carers receive the support
they needs to meet the needs of these children, we recomend that:
1. A new statutory framework is introduced
that places local authorities under a statutory duty to provide
children being raised by family and friends, their carers and
birth parents with support services including support with contact
and respite care.
2. Government provides local authorities
with the funds to enable them to run and commission such support
services, including sustainable support groups.
4.4 Financial support
In law, at least, relatives and friends are
not financially liable for the children they are raising. Therefore
it follows that, if the parents cannot provide, the core financial
needs of caring for such children should be met by central government.
Family and friends carers, who are caring for more than 28 days
for children who cannot remain at home with their parents and
are not looked after, should be entitled to a national financial
allowance.
4.4.1 National financial allowance—detailed
proposal
A national non-means tested financial allowance
to cover the real costs of raising a child should be paid to relatives
or other persons already connected to the child,[28]
who take on the care of a child for more than 28 days continuously
in the following circumstances:
(a) Where the child comes to live with the carer
as a result of plans made within a section 47 child protection
enquiry; or
(b) Where a child comes to live with the carer
following a section 37 investigation;
(c) Where a carer has secured a Residence Order
or Special Guardianship Order to avoid a child being looked after,
and there is professional evidence of the impairment of the parents'
ability to care for the child; and/or
(d) Where the carer has a Residence Order or
Special Guardianship Order arising out of care proceedings; or
(e) Where the carer has a Residence Order, Special
Guardianship Order following the accommodation of a child.
These criteria are designed to ensure that the
financial allowance will only be received where:
(a) the carer is raising the child; and
(b) the parent is unable to care for the child
and there is judicial or professional evidence of this.
4.4.2 Legal costs
Where a child is living with a relative with
the consent of the parent but without a legal order, the carer
may face continual problems because they do not have parental
responsibility for the child, yet going to court might upset the
fragile relationship that they have negotiated. Moreover such
a carer may have to overcome more hurdles than an unrelated foster
carer to obtain a legal order, such as residence or special guardianship
order. That's why we welcome the provisions in the Children and
Young Persons Bill to remove the leave requirement for relatives
applying for a residence or special guardianship order after one
year of caring for the child. However many family and friends
carers are left with crippling legal bills when applying to court,
for example for a residence or special guardianship order to provide
permanence and legal security for the child. Others find that
without financial means, they have to represent themselves, which
can be very traumatic, particularly in contested cases.
4.4.3 Ending financial discrimination against
family and friends carers
There will always be cases where children are
placed with family and friends carers but remain looked after
children because there are ongoing welfare or protection issues.
These carers will access support through the fostering system
like any other approved foster carers. However, currently some
receive less support than unrelated foster carers.[29]
When this was challenged legally it was held that it was unlawful
to discriminate against family and friends carers by paying them
less than unrelated foster carers.[30]
Nevertheless information from our advice services suggests that
the practice does appear to be continuing in various forms. Research
evidence also indicates that family and friends carers are far
less likely to have the support of an allocated family placements
social worker.[31]
Government guidance needs to be issued to ensure that family and
friends foster carers are no longer discriminated against in terms
of the financial allowance they receive.
Financial support—New recommendations
1. Family and friends raising a child who
cannot live with their parents for more than 28 days should be
entitled to a national allowance to cover the core financial costs
of caring for such child.
2. Relatives and friends should be entitled
to receive public funding for legal proceedings which secure the
chil'd future with them on a non-means and non-merits tested basis.
3. Government guidance needs to be issued
to ensure that family and friends foster carers are no longer
discriminated against in terms of the financial allowance they
receive.
March 2008
APPENDIX A
The legal status of family and friends care
placements includes:
— A private, consensual arrangement
between the parents and the carer which, if the latter is not
a relative within the definition in s.105 CA, involves a private
fostering arrangement. There is no support entitlement automatically
associated with such arrangements although the child may receive
services if deemed to be a child in need (s.17 CA).
— Residence orders which do not trigger
any entitlement to support but may lead to a discretionary payment
of a residence order allowance under schedule 1 paragraph 15 CA
(the rate may vary over time and from one authority to another).
The child may receive services if deemed to be a child in need
(s.17 CA).
— Special guardianship orders which
can entail financial and other support being provided (s.14F CA)
if the child or special guardian is assessed as needing support,
but again this is discretionary.
— Foster care which carries with it
a right to receive payment and other support as required by s.23
(2) CA 1989 and the Fostering Services Regulations 2002.[32]
12 Review of the Child Care Proceedings System in
England and Wales (2006) Department of Constitutional Affairs
and Department for Education and Skills and Welsh Assembly Government. Back
13
Richards A and Tapsfield R (2003) Funding Family and Friends
Care: The Way Forward (Family Rights Group). Back
14
A child is looked after when s/he is in care under a care or emergency
protection order or when s/he is accommodated by agreement with
the parents or others with parental responsibility (s.22(1) Children
Act 1989). Back
15
Farmer E and Moyers S (2005) "Children Placed with Family
and Friends: Placement, Patterns and Outcomes", Report to
the DfES, School for Policy Studies, University of Bristol. Back
16
Parents are liable to support their children (s.1 Child Support
Act 1991); relatives and friends are not unless they adopt the
child and hence become the legal parents. It is therefore the
responsibility of the state to support family and friends caring
for children when the parents cannot, yet such support is not
forthcoming. Back
17
Roskill C (2007 forthcoming) Wider Family Matters (Family
Rights Group); Doolan et al (2004) Growing up in the
Care of Relatives and Friends (Family Rights Group); Hunt
J (2003) Family and Friends Care; Scoping Paper for Dept
of Health; Broad, B (ed) (2001) Kinship Care: the placement
of choice for children and young people (Russell House). Back
18
Farmer and Moyers (2005), ibid. Back
19
The Queen on the application of L and others v Manchester City
Council; the Queen on the application of R and another v Manchester
City Council [2001] Family Law Reports 43. Back
20
The Fostering Network Survey of allowances and fee payment schemes
2007-08: recommended minimum allowances. Back
21
A family and friends carer's ability to access to support is determined
by their legal status as carers (as set out in Appendix A). If
they are approved local authority foster carers they should have
access to equivalent support to unrelated foster carers, but in
all other cases, where the arrangement is either informal or is
secured by a special guardianship or residence order, the provision
of support is discretionary and the exercise of this discretion
varies hugely between authorities. Back
22
See Southwark LBC -v- D [2007] EWCA Civ 182; [2007] 1 FLR 2181
The government has indicated that it intends to issue strong guidance
discouraging such poor practice in the forthcoming revised Children
Act. Back
23
S.23(2) CA. Back
24
Farmer and Moyers (2005) ibid. Back
25
Bullock R, Gooch D and Little M. (1998) Children Going Home:
the reunification of families (Aldershot, Ashgate). Back
26
Rowe J et al (1984) Long Term Foster Care (Batsford,
London). Back
27
Farmer and Moyers (2005) ibid. Back
28
This could include family friends. Back
29
Farmer and Moyers (2005) ibid. Back
30
The Queen on the Application of L and others -v- Manchester City
Council; The Queen on the Application of R and another -v- Manchester
City Council [2002] 1 FLR 43. Back
31
Farmer and Moyers (2005) ibid. Back
32
The Fostering Services Regulations 2002, Regulations 17, Department
of Health 2002. Back
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