Its #TimeToDefine kinship care – here’s why and how we might start

All the different types of kinship care arrangement would then be anchored to that definition, gathered in one place. Time To Define calls for a definition to be the first step in establishing an improved framework for supporting children raised in kinship care and kinship carers.

Time to define struck a chord. In May 2022, in a major milestone for our campaign, the Independent Care Review of Children’s Social Care in England recommended there should indeed be a clear definition of kinship care enshrined in primary legislation. Organisations and individuals including the Local Government Association, Kinship Carers UK, and Buttle UK all endorsed our call for a definition of kinship care. As did former Home Secretary, the Rt Hon Alan Johnson. The proposal featured in Liberal Democrat MP, Munira Wilson’s Kinship Care Bill. In November 2022 the Labour Front Bench endorsed it too.

But why is defining kinship care so important?

The status quo

At present, primary legislation does not include a definition of kinship care in England.

There are several types of kinship care arrangement. From kinship foster care and special guardianship through to private fostering and private family arrangements. The law provides for some of these arrangements in scattered provisions across different sections of the Children Act 1989. These provisions are often buried within sections of the law which apply more broadly, making it particularly difficult for families and non-specialist practitioners to find and understand their relevance to kinship care. Nothing in the primary legislation makes plain the link between these provision - that these are all ways in which a child can be raised in kinship care. In the case of private family arrangements[1] this is only contained in statutory guidance for local authorities which does not apply to other public bodies.

This may sound like simply an argument to ‘tidy up’ up the legal framework. But it is contributing to a wider, systemic problem that kinship care is too often overlooked and undervalued. With significant, real-world consequences for children and families.

When it comes to government policymaking, this means the unique circumstances and characteristics of kinship care are often not considered. It’s no surprise then that in local practice, kinship care is often an afterthought rather than the first thought when the state has concerns that a child cannot remain with their parents.

On the ground, kinship carers can quickly run into a myriad of confusion and misunderstanding. At the very moment when the child they are caring for needs stability and support, kinship carers find they are having to constantly explain who they are and what they need – including in hospitals and in school.  Clare, a member of our kinship carers panel, shared her experience of trying to get her kinship care arrangement recognised by the hospital when seeking treatment for her nephew. 

Where to start and what requires attention

Today, Family Rights Group has published its second paper in our Time to Define series. The paper provides a draft definition of kinship care. We have drawn on our legal and social work expertise and direct work with families to do this. We've worked with members of our kinship carers’ panel to test out and think through language and practicalities.

Our new paper is a starting point for developing a definition of kinship care for primary legislation. Our focus has been on a definition broad enough to ensure that no kinship carers or kin children are left out. But sufficiently precise so families and practitioners are clear about relevant detail, rights, and duties. We have reviewed and drawn on the existing domestic legal and practice framework[2] and a wider body of material including language used within the UN Guidelines on the Alternative Care of Children. 

The draft aims to address some notable gaps and anomalies in the existing legal framework. For example:

• Consistent with what kinship carers have told us, it incorporates a list of individuals who can potentially be kinship carers. The list attempts to reflect those categories of friends and family which research, practice and families tells us are often kinship carers, while not excluding rarer but nevertheless relevant kinship care arrangements.

• It seeks to accurately define ‘private family arrangement’, addressing inconsistencies in statutory guidance

• The draft addresses some kinship carers who have previously been overlooked, such as a former stepparent who has parental responsibility for the child they are raising or the ex-partner of the child’s parent who did not marry or enter into a civil partnership.

These are far from the only questions about the current legal framework which government needs to urgently wrestle with. By way of a snapshot:

• A private fostering arrangement comes about only after the child has been with the kinship carer for 28 days. Prior to this, the arrangement appears to have no status of any kind. It is simply not perceived in the current legal framework

• Former stepparents without parental responsibility who take on the care of the child are deemed to be privately fostering after 28 days. Prior to that however it is not clear what the status of the arrangement is

• There is a lack of coordination in relation to kinship arrangements and the benefits system. For example, a private fostering arrangement is recognised after 28 days, yet it is 56 days before (without agreement) that carer could take over the claim for child benefit for the child

• That same 56-day rule applies even where the Family Court has made a child arrangements order for a significant but time-limited period (pending the conclusion of public or private law proceedings).

Next steps

We are calling on the government, in its forthcoming response to the Independent Review, to commit to publishing a draft definition of kinship care and to carry out a wide and inclusive consultation on it. This should ensure that all those with a stake in or impacted by the child welfare and family justice sectors with insights relevant to kinship care can contribute. Thereafter, legislation should be brought forward and accompanying statutory guidance. Our proposal can serve as a solid foundation on which government can begin to construct, and consult on, new legislation.

[1] Our proposed definition for private family arrangement is where a close family member who does not hold parental responsibility, raises the child without there being prior involvement of the local authority and without matters being considered by the Family Court.

[2] Language in current statutory guidance in particular the Family & Friends Care Statutory Guidance, 2011; language and meaning of key terms in the Children Act 1989 and the Care Planning, Placement and Case Review (England) Regulations 2010

Caroline Lynch is a principal legal adviser at Family Rights Group. This blog was first published on the Family Rights Group website.