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Analysing The Legal Options Open To Relatives Of Children Social Work Essay

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Published: Mon, 5 Dec 2016

A kinship care arrangement is an agreement that is commonly made between the parent of the child, the local authority and a close relative such as a grandparent or aunt on a short or long term basis, the kinship carer must be approved by Warwickshire Fostering Panel. Where the child is accommodated by the local authority that is often subject to an Interim Care Order the kinship agreement is reviewed under the Child in Need procedures (Warwickshire County Council 2009).191

Kinship care is the arrangement made in agreement with the parent of the child and a close relative such as a grandparent or aunt on a short or long term basis. These arrangements will be reviewed under the Child in Need procedures (Warwickshire County Council 2009).

Kinship foster care is an arrangement between the parent, the local authority and the relative. In these situations, the child is accommodated by the local authority, often subject to a Care or an Interim care order and the relative is approved as a foster carer by Warwickshire’s Fostering panel for the specific child.

The Children’s Act (CA) 1989 has a propensity towards the placement of a child in the care of the by a local authority with a relative, friend or other person connected with them, unless that would not be practicable or in line with the child’s welfare (www.childrenscommissioner.gov.uk accessed 10/06/2010) The CA 1989 sets out a number of duties and responsibilities for local authorities. In section 23 it states that local authorities must provide accommodation and maintenance for any child whom they are looking after by placing him with family kinship carers if necessary and available subject to assessment of their suitability (Herbert 1993). Therefore the CA 1989 stipulates that the option of kinship care should be examined in considering long-term options when placing a child or young person. (Warwickshire County Council 2009).

The Children’s Act 1989 has a tendency where the child in looked after by the local authority to see the child placed with a relative, friend or significant other (www.childrenscommissioner.gov.uk accessed 16/01/2011). 32

Kinship foster carers are being increasingly encouraged to look at Residence Orders and Special Guardianship Orders as a means of extricating children from the looked after system and having more autonomy themselves as carers. However as we shall see there are inherent difficulties for kinship carers in taking out legal orders on children in their care. In this assignment, I will firstly look at legislation around kinship care in more detail with an outline of Warwickshire’s policies and procedures about kinship care. In the next section I will highlight the case/assessment I was involved in and my specific legal roles and responsibilities within this. Finally there will be an examination of kinship care legislation and how it relates to anti-oppressive practice and the rights of service users and/or carers. Finally there will be a short evaluation and conclusion.

Specific piece of legislation and associated policy and procedure –

The LA must have a clearly defined role in enabling the parent of the child to have some input in the care arrangements of their child in accordance with section 20 of the Children’s Act 1989. Where the local authority places children in kinship care arrangement they also must assess the kinship carer(s) on line with existing legislation that applies to unrelated foster carers therefore have a responsilities to ensure that the kinship care receive financial support in line with boarding out regulations (Warren-Adamson 2009). If a child looked after by the LA is placed with a family member or significant other for a period exceeding 6 weeks then that carer(s) then they should be approved as a foster carer (Warwickshire Council 2009).123w

At the heart of routes into kinship care lies the legal responsibilities of local authorities as defined in legislation. The local authority needs to be clear whether their involvement is “enabling” a parent to make arrangements for their child’s care (ie kinship care) or whether they are “placing” the child with a relative or friend which means that the child is accommodated in accordance with S20 of the Children Act 1989 (kinship foster care) (Warren-Adamson 2009). Where the local authorities place such children, responsibility lies with the local authority to ensure they assess the kinship carers in line with policies and procedures which exist for unrelated foster carers and fostering regulations are imposed including the responsibility to financially support under boarding out Regulations. Where a placement of a Looked After Child with a relative or friend is proposed for a continuous period of six weeks or more, the placement may only continue after six weeks if the relative or friend is approved as a foster carer (Warwickshire County Council 2009).

There are four main types of care arrangements for kinship care in England and Wales, which are mainly determined by the legal status of the child who has been accommodated by the local authority.

In England and Wales there are four types of kinship care these are determined by the legal status of the child that is being accommodated.

Fostered with a family or friend –

This where the child is subject to an Interim Care Order the court would normally request that any kinship carer be assessed and approved by Warwickshire Fostering panel.60w

Where a child is subject to a Care Order or Interim Care Order, any potential kinship foster carers would need to be assessed and approved by Warwickshire’s Fostering Panel. This will not apply to children who are in family proceedings where there is no order as the child can be placed following the viability assessment with the agreement of the court.

This also applies where an ICO is made and the court attaches a s38 (6) for a period of assessment (Warwickshire County Council 2009). During this period the child will be subject to statutory reviews and an assessment for support including financial will be undertaken. In effect it is a foster placement and will continue until the child /ren is 18 and the carers will be entitled to Boarding out payments through Fostering regulations. This could be seen as the least preferred option particularly for younger children to remain in the care system and the carers not having any parental responsibility over the child. However some Kinship carers may prefer to retain the support of social workers and have the security of ongoing allowances for the child/ren.

Residence order

A Residence Order is an order that a court can be asked to make in Family Proceedings under section 8 Children Act 1989. This order lasts until a child is 16 or 18 years old, and the carers must share decision making for the child with the birth parent/s. The birth parents retain rights to go back to court to challenge the order.

A Residence order is settled by the court and determines with whom the child lives, it provides Parental Responsibility to the kinship carer for the lifetime of the order.

The residence order usually lasts until the child turns 16 years of age unless due to exceptional circumstances there is justifiable reason that the order be extended beyond the child’s 16th birthday

Order aloows

Special guardianship order

Special Guardianship orders where introduced in the the Adoption and Children Act 2002 it encourages flexibility with regards to the lenghth of the placement. This order recognizes that long term fostering or adoption might not be an option and that this type of order gives parental responsibility until the child is 18.

The Adoption and Children Act 2002 introduced Special Guardianship orders to promote flexibility into considerations around care of the child in particular in providing options for permanency for children who are unable to live with their parents and for whom adoption would not be appropriate (Farmer 2009). Under the Adoption and Children Act 2002, carers including kinship can apply for a Special Guardianship Order in respect of the child.

Living with family and friends in network support –

This is often used initially as a short term measure where the child is accommodated under Section 20 of the Children’s Act 1989 but looked after by a family member or significant other until an agreement has been reached by the birth parent and the local authority .

This is where a child is placed in agreement with a member of the close family. In this scenario a child may have been accommodated under sec 20 CA 1989 temporarily until a family relative comes forward and agreement is reached between birth parent, relative and the local authority.

The Children and Young Persons Act 2008 further encourages the use of kinship foster care, so that where it promotes a child’s welfare, local authorities will have to give preference to placing a child with a relative. This legislation builds on the CA 1989 and Adoption Act 2002 in promoting and extending kinship care as the preferred option in care proceedings. There is a requirement under the Children and Young Persons Act 2008 for the local authority to give preference to placement with a foster parent who is a relative, friend or other person connected with the child over other forms of placement (Farmer 2009). In terms of child protection, family and friends foster care is governed by the Fostering services regulations (2002) and therefore a family and friends foster placement is subject to the same checks and monitoring procedures as non relative foster placements.

Assessment

There is a six week timescale to complete the kinship assessment, the fostering team has the responsibility for completing this within the timescale set out in line with the Fostering Regulation’s 2002. A viability assessment Schedule 3 of the fostering regulation 2002 requires that there is a detailed report complete with references be submitted to the Fostering Panel for approval. (Warwickshire Fostering Services 2002).

The viability assessment must pay close attention to the circumstances around the reason why the kinship arrangement is needed. The assessment includes the family to look at creating a kinship arrangement that will at best be accepatable to the child, the local authority shpuld consider the child extended family as an alternative to the mainstream fostering system, when completing the assessment.

In Warwickshire, procedures have been published for placements for looked after children with family and friends/ kinship carers in line with Fostering Regulations 2002. ‘An assessment report detailing as far as is practicable information required in Schedule 3 of the Fostering Regulations 2002,. (Warwickshire Fostering Services 2004 p36). It is then the responsibility of the fostering team to ensure that a full application is completed within the time scale required, and that the fostering panel is provided with all the necessary information and documents in order to make a decision.

A viability assessment should be undertaken in the first instance on all prospective kinship carers offering a home to the child. This assessment should be undertaken jointly between the child’s social worker and the fostering social worker. This allows for the identification of the most appropriate match and enables potential problems to be identified at an earlier stage. The viability assessment can be a route into private proceedings such as Special Guardianship or Residence Order

Where a child is subject to a Care Order or Interim Care Order, any potential kinship foster carers would need to be assessed and approved by Warwickshire’s Fostering Panel. During this period the child will be subject to statutory reviews and an assessment for support including financial will be undertaken,

Some children who are subject to interim care orders may have, in the course of the proceedings, kinship carers identified.

Context of the case/situation and your specific legal roles and responsibilities within this

The case has been open since June 2009, following Jane being taken to A&E by her parents as they reported her being in pain. A body scan revealed that Jane had multiple fractures diagnosed as non-accidental. A strategy meeting and child protection conference concluded that Jane is made subject of a child protection plan. A working agreement stated that any contact between Jane and her parents was to be supervised by maternal grandmother. The maternal grandmother moved to the area and now lives with the family and continues to follow the working agreement. Jane is still subject of a child protection plan, as well as LAC procedures and is subject of an Interim care order made in December 2009.

The Kinship Foster Care Assessment form is completed where a child is looked after and subject to a statutory order. A Kinship care Referral Form is passed to my fostering team to assess the applicant’s ability to meet the child’s current and future needs; a viability assessment for emergency approval of kinship foster carers (Reg 38) was undertaken by the child’s social worker and a decision made that further assessment was appropriate.

The court directed they wanted initial kinship assessments undertaken on maternal grandparents who was currently caring for Jane. I was allocated the kinship assessment of the maternal grandparents, I was asked to undertake an initial 6 week Kinship Assessment; taking into account the Christmas period, the assessment was submitted to Warwickshire Fostering Panel in January 2011 for endorsement and then subsequently submitted to court at the Finding of fact hearing.I recommended approval of gransparents as carers under reg 38 and assessed them as suitable for a full kinship assessment to take place if the court desired at a later date.

When a child needs to be a Looked After child, the Family and Friends carers need to be assessed and approved to become Family and Friends Foster Carers (Warwickshire County council 2009). The Local Authority concluded a Finding of fact hearing at court in April 2010 concluding that Baby A had sustained injuries whilst in the care of her parents which holds them both responsible in the absence of admission of guilt. A Final Hearing is scheduled for January 2011 when full kinship assessments will be submitted pending approval at Warwickshire fostering panel.

The purpose of the initial assessment is to ensure that the child’s needs remain central to the process in determining whether or not the child should be placed with the applicant to be assessed. Where it is decided that the child should be placed on a fostering basis, the Kinship Foster Care Assessment (Parts 1,2,& 3) must be presented to the Warwickshire County Council Fostering Panel for approval with the Child’s Matching Matrix.

Critical evaluation of the legal provisions drawing on a relevant literature and research base

The legal provisions do not at present put a strict requirement on local authorities in exploring Kinship options with carers but rather makes explicit that is the preferred course of action. The provision of a Family Group conference to assist determining the child’s best interests within the family was not utilized in my assessment process.

In my assessment the legal options open to Kinship carers did not sit well with my applicants who remained of the view that they wished Baby A to return to the care of her parents and they were only coming forward reluctantly as an additional option. A good way forward would have been the use of a family group conference which is the recommended way for kinship care assessments to be discussed and considered they are especially appropriate for assessing kinship care placement possibilities because they can provide a means to engage wider family to take responsibility about child and are found to have worked in greater take-up of kinship care (Hunt 2004).

Hunt et al (2004) found that carers are often marginalized in the legal arena despite the amount of contact they have with the child pre-proceedings. It is felt their voice is not heard but rather the perspective of the local authority is given precedence which includes the organization’s own priorities above and beyond those of the child or carers. The use of family group conferences is still the exception rather than the rule and they also find the assessment process intrusive and stressful.

There are major financial implications for Kinship carers. Grandparents as in my case, often live in poorer accommodation and experience more financial hardship than non-related carers (Colton et al 2008). A major legal landmark in financial arrangements for Kinship foster care was the ‘Munby judgement’ in 2002 which ruled it unlawful for local authorities in the UK to treat Kinship carers differently from non-related carers. It was ruled discriminatory and to have breached the child’s right to family life under Article 8 of the European Convention on the Rights of the child (Colton et al 2008). Therefore in Warwickshire kinship foster carers are assessed, supervised and monitored under Fostering regulations and have access to the Boarding out allowances for the children.

According to Farmer & Moyes (2008) Kinship care occupies an uneasy position on the boundary between the public and private spheres of caring and this leads to a situation where some kin carers struggle to care for needy children with low levels of support and financial help. When carers had been assessed as foster carers, over time social workers tried hard to persuade them to apply for Residence Orders. The effect would be to end social work visits and to move carers to a payment system that was discretionary and set at lower rates than the fostering allowances. Some carers resisted Residence Orders because they felt the need to maintain social services involvement in disputes with the children’s parents and to ensure adequate financial support. For other carers the attraction of Residence Orders was that it was thought to normalise the family situation.

The introduction of Special Guardianship appears to offer both opportunities and risks. Local authorities committed to enabling practice with kin carers may use it well. However, it could also be used to restrict services for kin carers. At present kin carers’ commitment and willingness to continue against the odds benefits the children they look after, but the good outcomes for these children are sometimes achieved at the expense of the kin carers themselves. It can be argued Local authorities will promote Residence orders and Special Guardianship as a means of reducing case loads and restricting financial commitment to the care of children. Equally it can be seen to be in the best interests of the child not to have the stigma of being a ‘looked after child’ and that their kinship carer should be allowed to get on with caring for the child without state interference when assessed as suitable.

In a discussion document published by the Joseph Rowntree Foundation, ‘Friends and Family Care’ in 2002, issues were found with kinship care arrangements that hindered the development of this alternative to statutory foster care. These difficulties were also encountered in my assessment, as there is uncertainty about how kinship carers are assessed, supported, trained and paid. This ambivalence about support arrangements fed into my initial assessment as I was not in a position to answer the questions directed at me by the prospective carer (JRF 2002). As the Joseph Rowntree research has discovered, kinship carers are unlikely in many cases to want to fight on a legal front with the parents. The implications for this are that kinship carers are less likely to go for Special Guardianship Orders, given the limitations of financial support and potential problems with birth parents. The kinship carers may resent the intrusion the assessment process will entail into their lives by statutory services and feel they are being monitored and placed under surveillance (JRF 2002).

However based on outcomes for children, it could be argued that an increase in Special Guardianship for example increases the likelihood of possible reunion and integration with birth parents at some point. In unrelated foster carer, children are much more likely to go down the route of permanency or adoption thus reducing or eradicating any likelihood of reintegration within the birth family unit (Argent 2009). Argent believes we should move away from the emphasis on permanency for children within Kinship care to stability. Kinship care does change family relationships and can mean splits with divided loyalties particularly with the birth parents and grandparents. In the initial assessment I conducted the grandparents were anxious not to take away the birth parents legal rights to make decisions on their child. They felt they could care for Baby A if necessary until at some point she can be rehabilitated back to her parents care.

Evaluation of the potential or otherwise for the legal provisions in question to promote anti-oppressive practice, including the rights of service users and/or carers

Do the processes involved in assessment discriminate against certain family structures, which through cultural or ethnic influences are more fluid and less easy to strictly monitor in terms of statutory checks through the Criminal Records Bureau? The Children Act 1989 requires that local authorities operate a policy of “least intrusive intervention” when working with children and families in their area. However clearly assessing Kinship foster carers requires adhering to Legislation, policy, standards and procedures we use on unrelated foster carers who are prepared for the level of intrusion and assessment of their lives. Argent (2009) highlights assumptions that are often made by social work teams that families from minority ethnic groups prefer to manage kinship care without outside help or have a great deal of difficulty in accessing it. On the other hand Argent also states that some minority ethnic groups do have a strong tradition of kinship care which continues without recourse to legal undertakings.

It can be argued that the legal provisions for the long-term care of children have been extended through legal developments such as Mumby 2005 and Special Guardianship orders. Both developments give Kinship carers financial help and support to provide the same standard of care you would expect with unrelated foster carers. Local authorities now have legal responsibilities to continue to support Kinship carers particularly financially which is a major development given historically that kinship carers have been some of the most disadvantaged carers (Farmer 2009).

However research has demonstrated that very unsatisfactory placements with family and friends lasted significantly longer than those in unrelated care ( Farmer & Moyes 2008). Some placements continued because there was little social work monitoring and any referrals about difficulty (often from family members) were disregarded. In other situations, social workers had allowed standards to fall considerably below those that would have been accepted for other children (Farmer & Moyes 2008). It would be very difficult to remove a child from a kinship placement even if standards were not what you would expect from mainstream foster care. There is a danger that children’s rights will be compromised due to the increasing push for Kinship arrangements possibly at the expense of their quality of life.

In conclusion the most important aspect of examining Kinship care is outcomes for the children affected. Therefore have the legal options for Kinship care helped secure better long-term futures for the children? Evidence suggests that children who were placed with their grandparents were the least likely to experience disruption when compared with other family or friends (Hunt et al., 2008). Only 8 per cent of the placements with grandparents disrupted compared with 27 per cent of those with aunts and uncles and 30 per cent of those with other relatives and friends. From my assessment it appeared that the grandparents had a real commitment to their grandchild and were prepared to come forward to ensure she had the best options available if she could not live with her parents.

Evidence also seems to suggest that placements with kin carers who had been approved as foster carers were significantly less likely to disrupt than those where they had not been approved. This could be because the approval process weeded out kin carers with greater difficulties and conversely because approved kin foster placements received better levels of support and financial assistance. Therefore the requirement to do assessments legally could be seen to ensure that there is monitoring and evaluation of potential kinship carers’ capacity and awareness.

Should there be more clearly defined legislation around financial assistance for kinship carers in line with general benefit payments payments?. The research study revealed that financial support for kinship carers was provided within strict local eligibility criteria and limits, in accord with the local authority’s ‘extended family and friends’ policy. Payments were normally made at around two and half times unemployment support levels and payments were made from the ‘children in need’ local authority budget (Farmer, Moyes 2005). It appears local authorities around the country for both kinship and unrelated foster care set very different payment thresholds which could be seen to be discriminatory and arbitrary.

However evidence suggests that kinship care benefits children as opposed to stranger care and it seems legislation has played an active role in promoting the use of kin care. There now appears to be recognition of the problems Kinship foster carers face in balancing their desire to care for the child/ren with managing relationships with birth parents, the change in lifestyle that inevitably arises particularly for grandparents and the financial consequences. It is to be hoped in an era of ever increasing constraints on local authority budgets that Kinship foster carers continue to be supported in order to provide the same standard of care we expect of unrelated carers for children.


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