The Independent Review of Children’s Social Care made multiple recommendations to reset the children’s social care system. Among these are a set of recommendations which aim to prevent children coming into the care system at all, including improving services so that children can remain safely with their parents. Connected to this are recommendations that promote the involvement of extended family as carers if parents are unable to provide appropriate care. It has always been accepted that growing up in the care system carries a range of challenges and many disadvantages for the child.
Evidence indicates that kinship placements are a positive alternative to mainstream foster care, particularly where this builds on existing relationships and allows the child to remain connected with their origins.
Potential impact
Children in kinship placements are less likely than those in mainstream foster care to experience placement disruption. The Care Review’s aim to strengthen support for kinship carers is much needed. At the same time, there does need to be a thorough analysis of the potential impact of these recommendations. The last major innovation intended to divert children from a life in care was the special guardianship order (SGO). The way in which SGOs have developed, particularly as a resolution to care proceedings, is a reminder to explore the unintended consequences of well-intentioned initiatives.
Special guardianship was introduced for children where the evidence indicated that a child needed a permanence placement but where adoption was not an option. It was expected that this would be mainly older children and it was assumed that foster carers, with whom the child had an existing relationship, would become permanent legal guardians with the child no longer being in care.
In Re S (A Child)[2007] EWCA Civ 54, Re AJ (A Child) [2007] EWCA Civ 55 & Re M-J (A Child) [2007] EWCA Civ 56 the Court of Appeal endorsed, respectively, a SGO to an unrelated foster carer and adoption orders to family members. The court emphasised that there is no presumption as to which of an adoption or SGO should be made and expressly disagreed with a submission that SGOs had effectively replaced adoption orders in kinship placements. However, Re B (A Child) [2013] UKSC 33 & Re B-S (Children)[2013] EWCA Civ 1146 and the “nothing else will do” test, together with cultural and professional attitudes towards kinship adoption, has meant that adoption of children by family members has become very rare, and SGOs have become the default legal framework for kinship carers in care proceedings.
The reduction in adoption orders being made, in inverse proportion to the number of SGOs, corroborates information from local authorities that placement orders are being refused in favour of SGOs to family members. In 15 years, the SGO has morphed from being a way to offer permanence to older children in foster care to being a kinship placement option for very young children who would otherwise have been placed for adoption. This increased use of SGOs has created a funding challenge for local authorities. Many kinship special guardians are on low incomes, often grandparents reliant on pensions, and have a statutory entitlement to financial support at a rate comparable to the basic fostering rate. This has resulted in significant ongoing financial commitments from local authorities to support children for whom they had not budgeted.
The Care Review recommends that all kinship carers, with SGOs or child arrangement order (CAO) for a child who would otherwise be in care, should receive non-means tested allowances at fostering rates and paid leave equivalent to adoption leave and pay. The cost-benefits of this are calculated on the basis of a number of kinship foster carers being more willing to care for a child under private law (SGO and CAO) orders and reducing placement disruptions attributable to financial stress. It fails to consider the vicious circle in which local authorities may be caught – if children’s services budgets are committed to long-term financial support of carers, the resources available for other services, including early intervention services, may have to be reduced. If the financial element of kinship care support was to be funded centrally authorities could target their resources locally to support children remaining with their birth parents.
SGO support
SGO support is currently only mandatory where the child has been looked after by a local authority immediately before the making of an order. Orders made in private law proceedings are not usually eligible for financial or other support. If the availability of support services significantly improves with the aim of persuading foster carers to apply for a private law order, it is likely that the demand for those services will also increase. This may come from carers who are not currently eligible for support. The Family Rights Group estimates that there are around 200,000 children in kinship arrangements. The majority of those are informal family arrangements and there is often no real motive for those carers to seek an order. If allowances and paid leave become available automatically on the making of an order, there will be a greater incentive for kinship carers to apply for orders. In addition to the increased costs to councils of funding allowances, more applications will put more pressure on the over-stretched family court system and on legal aid funding.
The review recommends that legal aid be made available for family members considering becoming kinship carers, and this reflects recommendations from the Public Law Working Group that kinship carers should have access to independent legal advice when considering an SGO during care proceedings. This was identified as a key objective by the Ministry of Justice in 2019. The review recommends this be implemented immediately and extended to potential kinship carers at an “early stage” to support their decision making. This implies access to legal advice at the family network plan (FNP) stage as well as during legal proceedings. The review suggests that involving family in the FNP will divert children away from becoming looked after or involved in care proceedings. There is no consideration of the position of the child’s parents who are not entitled to legal aid until a local authority has issued a Public Law Outline letter. Under the proposals in the review, if a potential kinship carer is identified at an early stage, they could make a private law application supported by legal aid, but the parents would not have the automatic entitlement to legal aid that they would have in care proceedings. This is an oversight given the review’s strong focus on family help being consistent.
Over the last few years, considerable work has been done to make sure that kinship carers put forward as potential special guardians in care proceedings are assessed for their capacity to offer appropriate care to a child. In March 2021, the president of the Family Division issued guidance on best practice for special guardianship orders. CAOs are not subject to the same comprehensive assessment requirements. Kinship carers are not able to make applications for SGOs without giving three months’ notice and it is likely, particularly if there is no advantage in eligibility for support, that CAOs could become the preferred legal framework. This could raise real concerns about court proceedings for a CAO: currently the child will not be a party to the proceedings and so a Cafcass children’s guardian will not be appointed automatically; the local authority will not be a party to the proceedings or be required to produce an SGO-level assessment; and the parents will not be entitled to automatic legal aid and would have to apply for “exceptional” funding (a time-consuming and frequently unsuccessful process).
In Re W (Residence Order: Appeal) [2014] EWCA Civ 1065 a local authority was heavily criticised by the court for brokering the placement of children with their grandmother as an alternative to issuing care proceedings. The authority was said to have bypassed the safeguards against state interference in family life, sidestepped the need to prove threshold criteria and effectively started “back door” care proceedings. It is not difficult to see how a proposal for councils to support family network plans for kinship placements underpinned by private law orders might attract similar criticism. Such state involvement risks breaching the Article 6 (right to a fair trial) and Article 8 (right to a private and family life) rights of the children concerned and their parents.
Conclusion
The recommendations of the Care Review to promote and support the greater use of kinship care for children is well intentioned and likely to improve the lives of children needing alternative carers. There are, however, potential pitfalls. As discussions take place to turn the review’s recommendations into an active change agenda, we must explore possible unintended consequences in detail so we do not unintentionally disadvantage those we aim to help.
