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					                  SUPPORT: A LAWYER’S GUIDE THROUGH THE JUNGLE




What is a Kinship Carer?
A kinship carer is a local authority foster carer who is looking after a child who is related to
him/her.


The Problem:
Kinship carers are the unsung heroes and heroines of the care system. They step in to
look after the child of a relative in order to keep the child within the family and/or to
secure their welfare. Research shows that children brought up by kinship carers are better
off than children who are adopted. The carers often make huge sacrifices to bring up
children who may be severely disturbed. Nonetheless, local authorities regularly try to
deploy their services on the cheap. They tend to be reluctant to accept initially that they
are foster carers at all, rather than operating under a “voluntary arrangement”. Even if
recognised as foster carers, kinship carers often receive lower rates of payment than non-
kinship carers. They rarely get the same levels of support as professional foster carers.


The Solution:
A. There are three main areas where Judicial Review is available to assist kinship carers
gain the support they need:


        1.      To establish that a local authority has obligations towards the kinship carer
                and the child as foster carers;
        2.      To secure appropriate financial support;
        3.      To secure other support and resources.


It is important to note, as Mr Justice Munby emphasised in the case of R(P) -v- Essex
County Council [2004] EWHC 2027 (Admin) at para. 33, that an application for judicial
review is a review of the legality of the decision and the process by which it is reached not
a welfare decision (unless the decision is Wednesbury unreasonable).


B. It is vital to get the right Order.



                                                  1
Establishing the status of the carer
1.     Once there is an interim care order, local authorities are generally prepared to
       accept that kinship carers have the status of foster carers. However, there may still
       be an argument as to the appropriate rate of payment (see paragraph 9 below).
       For financial reasons local authorities consistently attempt to argue that children
       who have been placed with a relative in circumstances where there is no care
       order are being placed under a voluntary arrangement rather than under their
       statutory obligations to look after children. On this basis they will then attempt to
       provide the carers with financial support (if any) at much lower rates than would
       be paid to a foster carer. Very often the local authority will still dictate to the
       kinship carer how the child should be looked after and especially what level of
       contact there should be with the child’s parent.


2.     It is necessary to look at the relevant provisions of the Children Act 1989:


       Section 17 of the Act imposes a duty on the all local authorities to safeguard and
       promote the welfare of children in their area who are in need.


       Section 17(10) states that a child shall be taken to be in need if:


       (a)    he is unlikely to achieve or maintain, or to have the opportunity of
              achieving or maintaining, a reasonable standard of health or development
              without the provision for him of services by a local authority under this Part;
       (b)    His health or development is likely to be significantly impaired or further
              impaired without the provision for him of such services; or
       (c)    He is disabled [see 17(11) for definition of disabled].


              and “family” in relation to such a child includes any person who has
              parental responsibility for the child and any other person with whom he
              has been living.


       Section 20(1) of the Act provides:


       “(1)   Every local authority shall provide accommodation for any child in need

                                               2
       within their area who appears to them to require accommodation as a
       result of -


       (a)     There being no person who has parental responsibility for him;
       (b)     His being lost or having been abandoned; or
       (c)     The person who has being caring for him being prevented (whether
               or not permanently, and for whatever reason) from providing him
               with suitable accommodation or care.”


Section 20(6) imposes a duty upon a local authority before providing
accommodation to ascertain the child’s wishes and to give due consideration to
those wishes so far as is reasonably practicable and consistent with its welfare.


Section 20(7) prohibits a local authority from providing accommodation for a child
if a person who has parental responsibility and is willing and able to provide or
arrange for accommodation, objects.


Thus a local authority has a duty to provide accommodation for a child in need
where his previous carer has been prevented from providing him with suitable
accommodation or care.


Section 22(1) defines a child who is “looked after” by a local authority as a child
who is (a) in their care; or (b) provided with accommodation by the authority in the
exercise of any functions which are social services functions within the meaning of
the local authority Social Services Act 1970 (apart from certain excepted functions).


Section 22(3) states:


       “It shall be the duty of a local authority looking after any child -
       (a)     to safeguard and promote his welfare; and
       (b)     to make such use of services available for children cared for by
               their own parents as appears to the authority reasonable in his case.


Section 23 of the Children Act states:

                                         3
            (1)     It shall be the duty of any local authority looking after a child -
                    (a)     when he is in their care, to provide accommodation for him;
                            and
                    (b)     to maintain him in other respects apart from providing
                            accommodation for him.
            (2)     A local authority shall provide accommodation and maintenance for
                    any child whom they are looking after by-
                    (a)     placing him (subject to subsection (5) and any regulations
                            made by the secretary of state) with -
                            (i)     a family;
                            (ii)    a relative of his;
                            (iii)   any such suitable person, on such terms as to
                                    payment by the authority and otherwise as the
                                    authority may determine.


3.   A number of local authorities have attempted to argue that where a child is placed
     with a relative even in circumstances where this is at the request of a social worker,
     the arrangement is a voluntary one and the child does not constitute a “looked
     after” child even though the child is plainly a child in need within Section 17. This
     is the new battleground.


4.   Mr Justice Munby made the point in R (P) -v- Essex County Council [2004] EWHC
     2027 (Admin) that it is not open to a local authority to repackage a duty that is
     owed under Section 20 as being a Section 17 duty. Once the conditions in Section
     20(1) are satisfied, then subject only to Sections 20(6) and 20(7), it is the duty of the
     local authority to provide accommodation under Section 20 with all the
     consequences that flow from that.


5.   See also R (on the application of H) v Wandsworth London Borough Council; R (on
     the application of Barhanu) v Hackney London Borough Council; R (on the
     application of B) v Islington London Borough Council [2007] 2 FCR 378.


6.   See also: R (G) -v- Barnet [2001] EWCA Civ. 540 where Ward LJ stated that
     Sections 22 + 23 have to be construed purposefully.

                                                4
7.   The Court of Appeal in London Borough of Southwark v D [2007] EWCA Civ 182
     considered when a s20 duty arose. The claimant was asked by a social worker to
     care for a child who was the child of a former boyfriend. When the claimant
     applied for financial assistance, the local authority refused on the basis that the
     child was not a "looked after" child. The judge found a s20 duty and the local
     authority appealed.


8.   At paragraph 49 the Court said
            “we accept that there might be occasions when a private arrangement is
            made without such direct contact. We accept that there might be cases in
            which the local authority plays a part in bringing about such an
            arrangement. However, where a local authority takes a major role in
            making arrangements for a child to be fostered, it is more likely to be
            concluded that, in doing so, it is exercising its powers and duties as a public
            authority pursuant to sections 20 and 23. If an authority wishes to play
            some role in making a private arrangement, it must make the nature of the
            arrangement plain to those involved. If the authority is facilitating a
            private arrangement, it must make it plain to the proposed foster
            parent that s/he must look to the parents or person with parental
            responsibility for financial support. The authority must explain that
            any financial assistance from public funds would be entirely a matter
            for the discretion of the local authority for the area in which the foster
            parent is living. Only on receipt of such information could the foster
            parent give informed consent to acceptance of the child under a
            private fostering agreement. If such matters are left unclear, there is a
            danger that the foster parent (and subsequently the court) will conclude
            that the local authority was acting under its statutory powers and duties
            and that the arrangement was not a private one at all.


     At paragraph 55 the court said:
         "The pre-conditions to disposal under section 23(2) and 23(6) are the
         same, namely that the child must be a looked-after child. In our
         judgment, the child is being looked after by the local authority as
         soon as the section 20(1) duty arises. It is not necessary that the child

                                            5
          should have been accommodated for 24 hours before s/he is being
          looked after. We accept Mr O'Brien's submission that the child
          becomes looked-after when it appears to the local authority that (for
          one of the reasons set out in the section) the child appears to require
          accommodation for more than 24 hours. If that condition is satisfied,
          as it was here, the section 20(1) duty arises immediately and the
          authority must take steps to ensure that accommodation is provided.
          Either it can provide it itself by making a section 23(2) placement or it
          can make arrangements for the child to live with a relative, friend or
          connection, pursuant to section 23(6)."

9.    The Southwark case, which has an “interesting” approach to s.23 still appears to
      confirm that once the local authority has a duty to accommodate a child under
      Section 20, the child becomes a “looked after” child and the local authority
      assumes the financial obligations which flow from that.


Collins v Knowsley MBC [2008] EWHC 2551 (Admin); R (On the application of A) v
Coventry City Council [2009] EWCH 34 (Admin)
10.   These two cases also looked at the regulatory framework arising from s23 CA
      1989. They both involved teenagers who ended up living with friends’ parents
      as a result of their own family breakdown. Neither LA was involved in the setting
      up of the placement but became aware of it as a result of the carers requesting
      financial support.


11.   Both carers judicially reviewed their LA’s, stating the children were looked after
      by the LA and both cases were found in their favour. In the first case, the mother
      had died and the stepfather had alcohol problems; he eventually died as well.
      The court held that, as there was no one with parental responsibility for the child
      concerned, she was therefore a looked after child, under s22 CA 1989 and the
      placement with her boyfriend’s mother was under s23(2). The stepfather’s death
      was not the deciding factor, however, as the LA was ordered to pay the fostering
      allowance from the date she first moved to the carer’s home, before he died.




                                            6
12.   In the second case, although the LA argued that this was a private fostering
      arrangement, the court held that


      ‘where a local authority takes a major role in making arrangements for a child to be
      fostered, it is more likely to be concluded that, in doing so, it is exercising its powers
      and duties as a public authority pursuant to sections 20 and 23.’


      These decisions could potentially increase the number of looked after children
      in this age range, where before LA’s have regarded them as private fostering
      arrangements.


      Holman J in Re H at 101 said:


           “What is perhaps more significant from London Borough of Southwark v D
            is that the Court of Appeal approached the matter as ultimately a question
            of fact, see paragraph 49:

                  "... in some circumstances, a private fostering arrangement
                  might become available in such a way as to permit a local
                  authority, which is on the verge of having to provide
                  accommodation for a child, to 'side-step' that duty by helping
                  to make a private fostering arrangement. However, it will be a
                  question of fact as to whether that happens in any particular
                  case."

            At paragraph 58 they ask:

                  "The question is what did Southwark in fact do?"

      In each case therefore it is vital to consider what the local authority did!”



FINANCIAL ARRANGEMENTS
13.   The leading case is R (L & Others) -v- Manchester City Council [2001] EWHC
      Admin. 707, (2002) 1 FLR 43, 8 CCLR 268, in which the Administrative Court
      considered the legality of Manchester’s policy of paying substantially lower

                                              7
      weekly allowances to relative foster carers than to non-relative foster carers. In
      his judgment Mr Justice Munby accepted that the central issue was whether
      Manchester had exercised its discretion in an unlawful manner in the
      formulation and implementation of its policy on payments to relative foster
      carers (para. 59). The discretion had to be exercised according to the following
      conventional public law principles:


      (1)    It must be formulated and implemented so that it can be exercised
             flexibly.


      (2)    It must be formulated and exercised according to the needs of the
             children concerned and having regard to its advantages and
             disadvantages in the individual case.


      (3)    It must be exercised without reliance on irrelevant considerations.


      (4)    It must be formulated and exercised without disregard of relevant
             principles.


      (5)    It must not be exercised in a perverse manner.


      (6)    It must be formulated and exercised in the light of the aim of the
             statutory framework within which it is comprised.


      (7)    It must not be formulated or exercised so as to conflict with any duties
             within that framework.


      (8)    It must be formulated and exercised so as to adequately safeguard the
             right to respect for family life guaranteed by Article 8 of the Convention
             and so as to avoid discrimination in breach of Article 14 (para. 68).


14.   Mr Justice Munby held that the policy of the Defendant Council in paying
      different rates to relative and non-relative foster carers was unlawful for, inter
      alia, the following reasons:

                                            8
(i)      the policy imposed an arbitrary and inflexible cash limit on the amounts
         that could be paid to relative foster carers (para. 78(1));


*(ii)    the policy fixed the level of payments to relative foster carers so low as to
         make it inevitable that there would be a conflict with the welfare
         principle and Manchester’s statutory duty, in particular under Section
         22(3)(a) of the Children Act (see para. 78(2));


*(iii)   the policy was Wednesbury unreasonable for a number of reasons (see
         para. 78(3)). The policy was unreasonable having regard to the combined
         effect of inter alia:


         1.      the Manchester policy on short-term relative foster care payments
                 did not come close to the national standard or Manchester’s own
                 standards on foster care payments (para. 22).


         2.      the maternal grandparents in the L case were being paid a little
                 under one-fifth of Manchester’s normal rate which was itself lower
                 than the National Foster Care Association’s minimum
                 recommended rate (para. 24);


         *3.     the great difference of fostering rates between relative and non-
                 relative foster carers, short-term relative carers and long-term
                 relative carers and between the Manchester short-term rates and
                 national rates for doing the same job demonstrated perversity (para.
                 72(c);


         4.      the lack of any age uplifts for relative foster carers demonstrated
                 that the policy was not about children’s needs (para. 72(d));


         *5.     there was no evidence that the disadvantages to the children of the
                 financial limit imposed by the Local Authority and the impact on
                 their needs was a factor taken into account in formulating the

                                        9
                        policy. A rational policy should identify the discrepancy and give
                        adequate reasons for nonetheless perpetuating it (see para. 72(g));


              *6.       the approach that family members should be treated differently as a
                        matter of principle was irrational. In relation to both relative and
                        non-relative foster carers, the route into foster care and the
                        applicable legal framework were the same - so the Local Authority’s
                        obligations should be the same in relation to both. “The fact that
                        the future outcome may be different (a section 8 order as against
                        long-term foster care) cannot justify the policy: one cannot justify
                        present and actual discrimination by some future and contingent
                        distinction”. (See para. 72(h))


      *(iv)   the policy discriminated against relative foster carers and those children
              in care who were fostered by relatives rather than by non- relatives (para.
              78(4)).


      (v)     there was some plausibility in the Claimant’s contention that Manchester
              had failed to consider and take into account certain material factors
              when formulating its policy. These included the fact that Manchester had
              never considered the possible effect of the policy in discouraging
              potential family foster carers (see paras 78 + 73).


15.   Considering the contention that the policy was in breach of Articles 8 and 14 of
      the Convention, Mr Justice Munby concluded that:


      (i)     where fundamental human rights are engaged, the decision must
              be subjected to “the most anxious scrutiny”: see R -v- Secretary of
              State for the Home Department ex parte Mahmood [2001] 2 FCR 63
              (para. 94).


      (ii)    the right of children to be brought up by their own family is one of the
              most fundamental rights in a democratic society: (para. 94);



                                               10
      (iii)     Manchester’s policy failed to meet the Convention tests of necessity and
                proportionality. Accordingly the policy involved breaches of both Articles 8
                and 14 of the Convention. (See paras. 97 + 98).


16.   Most local authorities operate a two tier scheme for financial support to foster
      carers:


      (1)       A weekly allowance which is meant to be related to the cost of looking after
                the child;


      (2)       An additional fee which is usually only paid to professional foster carers.


17.   The Manchester case decided that it is irrational and unlawful to pay lower weekly
      allowances to kinship carers than to non-kinship carers. Mr Justice Munby
      regarded this as a clear breach of the local authority’s duty under section 22(3)(a)
      to safeguard and promote the welfare of the child. Since the purpose of the
      weekly allowance is to meet the cost of bringing up the child, there can be no
      legitimate basis for a distinction between different types of carer. While most local
      authorities have now adopted a uniform rate for weekly allowances for kinship and
      non kinship carers, some still attempt to pay lower rates to kinship carers who have
      not yet been approved by the appropriate panel. Such a policy is most unlikely to
      be lawful as it is difficult to see how it could be argued that the local authority has
      adhered to its duty to promote the interests of the child.


18.   The position is more complicated where the issue of fees is concerned. There are a
      whole range of different local authority fee schemes. Some simply differentiate
      between professional and non-professional foster carers. Some offer fees to carers
      who have particular training and qualifications. Some offer enhancements to
      carers who are looking after children with particular difficulties or disabilities.
      There is no clear case law in relation to the legality of fee schemes which
      differentiate between kinship and non-kinship carers.


19.   It is arguable that at the heart of the Manchester judgment was the rationale that it
      is irrational and unlawful to differentiate between kinship and non-kinship carers,

                                              11
      particularly as such discrimination is likely to discourage kinship carers from
      coming forward and is therefore contrary to Article 8. On the other hand local
      authorities argue that it is lawful to pay an additional fee to professional foster
      carers to encourage them to come forward and look after children who are in
      need.


20.   The legality of such arrangements probably depends to a large extent upon the
      nature of the individual scheme. For instance, some authorities have policies
      which simply state that a fee is payable to all carers or that an enhancement is
      available to carers looking after a certain number of children. In relation to a
      scheme of this sort, it is probably unlawful to discriminate between kinship and
      non-kinship carers. A number of authorities claim that schemes for enhanced fees
      are open to all carers including kinship carers. Very often this is pure window
      dressing as the schemes are not publicised to kinship carers. Where there is such a
      scheme, the local authority ought to publicise its provisions to kinship carers and
      to devise a proper programme of clear criteria for the scheme and assessments to
      determine whether the child meets those criteria, e.g. whether the child has the
      appropriate disability. There is a clear onus on the local authority to demonstrate
      that any differential treatment can be justified as necessary and proportionate.



Support / Resources
21.   Most local authorities still fail to give kinship carers the same support they
      routinely give to professional foster carers. On the basis of the Manchester case it is
      difficult to see how any local authority could justify differential treatment. The
      fundamental duty to safeguard and promote the welfare of the child imposed by
      Section 22(3)(a) and the irrationality of differential treatment would make such a
      position untenable. While a local authority may have a duty in any event to
      provide the support/resource that your client needs, the prospects of achieving it
      are likely to be greater if you can establish that professional foster carers are
      routinely provided with it. A prime example is respite care. Other examples are
      the provision of a link social worker, training or holiday breaks.


Getting the Right Order


                                             12
(i) Residence Allowances
Local authorities have, for years, been keen for relative/kinship carers to apply for a
Residence Order. Many have a specific policy to encourage this step. Beware!
Financial support is discretionary, means-tested, annually reviewable and the
holders are on their own. The payment is taken into account for means-tested
benefits.


(ii) Special Guardianship Orders
    a. This “super” Residence Order has some benefits. When an assessment is
        taking place as to whether the Special Guardianship Order is appropriate,
        there should be an assessment of the support that the holders of such an
        order require. The level of the allowance seems to be set at the same level
        as residence orders or adoption support payments. The support
        assessment should involve education and health where appropriate. But
        payments are means tested and annually reviewable. They are not taken
        into account for means tested benefits. It can be a significant
        disadvantage that the child ceases to be a “looked after” child.


    b. Beware courts making Interim Residence Orders to Grandparents in
        Care Proceedings/application for an SGO
       See GC v LD and others [2009]EWHC 1942 (Fam)


       Child taken into care by one local authority Kingston - interim residence
       order made in favour of grandmother, who lives in the area of another local
       authority Lancashire - steps taken towards the making of a special
       guardianship order in favour of grandmother. Question arose as to which
       local authority should be responsible for financial support for the child.
       Held, original local authority should be responsible until special
       guardianship order made, thereafter grandmother's local authority.


       This case has significant implications for many kinship carers who live in a
       different part of the country from their children and who then take on their
       grandchildren’s’ care.

                                      13
           c. How is the Special Guardianship Allowance to be calculated?


              In B v Lewisham [2008] EWHC 738, the High Court ruled that
              Lewisham’s special guardianship support scheme was unlawful, as it
              allied special guardianship allowances with adoption allowances rather
              than fostering rates and failed to follow the special guardianship
              Guidance. Although this case deals with a child with special needs, the
              ruling has implications for all special guardianship funding.


Attached is a Comparison Table in relation to the Orders.




                                            14
                               COMPARISON TABLE


                 Special              Residence Order      Fostering/            Private
                 Guardianship                              Kinship Care          Fostering

Exercise of      Special Guardian     Birth Parents        Local Authorities     Birth Parents
Parental         exclusively
Responsibility                                             Birth Parents
                 Birth parents
                 limited to consent
                 to adoption and
                 where more than
                 one consent is
                 required
Approval Basis   Appointed by the     Appointed by the     Approved by the       Assessed, but
                 court subject to a   court subject to a   local authority       not approved
                 court report         court report                               by local
                                                           With kinship          authority –
                                                           carers– often not     may be
                                                           in time but           prohibited if
                                                           eventually!           assessed as
                                                                                 unsuitable
Duration         Permanent            Until the            General               Subject to
                 lifelong             Residence Order      Fostering – as        decision of
                 relationship         ceases               long as you want      birth parents
                                                           to foster


                                                           Kinship Care –
                                                           Whilst the
                                                           Placement
                                                           remains the Care
                                                           Plan for the child.
Placement        None – unless        None – unless        Statutory visits to Statutory visits



                                          15
Supervision     Supervision         supervision order   the child            to the child
                Order.              made
                They are on their                       Supervisory visits
                own!                                    to the carer
Reviews         Annual review of    Regular review if   Statutory reviews Regular Child
                special             supervision order   of the child         in Need
                guardianship        made                                     reviews
                allowance and                           Annual review or
                support services                        carer's approval
Support         Possibly:           Social work/multi   Statutory visits     Statutory visits
Services        Counselling,        agency resources    and services for     As Assessed
                advice and                              "paid" carers.
                information         Provision of        "looked after"
                Support groups      equipment           child impacts on
                Contact support                         education and
                Therapeutic                             CAMHS,
                services                                Provision of
                Training                                equipment
                Mediation
                Short breaks


Financial       Special             Residence Order     Weekly               No statutory
support         Guardianship        Allowance- 2/3(?)   payments – but       entitlement
Payable in      Allowance: not      Fostering           can be difference
certain         taken into          Allowance           between
circumstances   account for Means                       paid/kinship
                Tested benefits     One off payments    rates


                Can be less than    Taken as income     Birthday,
                Fostering           for Means Tested    Christmas and
                Allowance           benefits            holiday
                                                        allowances
                One off payments



                                        16
                                                         Fees and
                                                         enhancements
                                                         for "paid" carers
Basis of           May be means      May be means        Automatic           Section 17
financial          tested            tested              payment based       payment
support                              Annually reviewed   on schedule of      Discretionary
                                     Discretionary       payments




Nigel Priestley
Senior Partner with Ridley & Hall
Solicitors
Queens House
35 Market Street
Huddersfield
HD1 2HL


Tel: 01484 – 538421
Fax: 01484 – 533076
E-mail: nigel.priestley@ridleyandhall.co.uk
Website: www.ridleyandhall.co.uk




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