What do we mean by kinship care?
Kinship care is the arrangement whereby a family member is caring for another child of the family for example a grandparent looking after their grandchild, a sibling looking after a younger sibling or an aunt or Uncle looking after their niece or nephew. There is no prescriptive form for this type of arrangement or the form it takes. Such an arrangement could happen for a number of reasons for example one or both of the childs’ parents having passed away; the child being removed by the local authority and rather than being put into Foster care being placed with family members; or an informal agreement between the family due to varying different circumstances.
What are the legal implications of kinship care kinship care?
Kinship care can often start as an informal agreement or arrangement but sometimes it will be legally formalised. This can happen in a variety of ways. If the child has been placed with the family by social work, then there may be a referral to the Children’ s Reporters Administration (SCRA or the “Children’s Panel”) where the arrangement may be formalised by a compulsory supervision order being made. Such an agreement can also be by consent with the children’s parents (so a referral to the children’s reporter may not be required) or there may have been a wishes set out in a will aim at that the family member becomes The Guardian of the child.
However what is the legal status of the kinship agreement? Quite often people wish to take steps to legalise such a situation. One way to do so is by applying for a residence order from the court. This is done by raising a court action using a document called an initial writ. This is a document which sets out the orders a party is seeking and why they are seeking them. The orders sought can vary, so for example they could contain craves for orders for residence, parental rights and responsibilities and to be appointed guardian of the child. The specific orders sought will depend on the specific circumstances of the child and the family living situation. These types of orders are known as “section 11” orders.
If a child has been placed in a kinship care arrangement then the social work department will often remain involved and assist in supporting the family through this. They may also be in a position to help finance actions being raised.
Having section 11 orders granted can provide certainty and stability for children, as it finalises where children will be living throughout their childhood. It can also assist children who have been subject to compulsory supervision orders and the children’s hearing system (CHS) as the granting of such orders can lead to termination of the compulsory supervision order and remove the chid from the CHS allowing them to go forward without having to attend regular reviews etc.
Often if there have been wishes left in a will it will be appropriate for those to be formalised by seeking a residence order and having that person formally appointed as The Guardian of the children. There can be difficulties as if the other parent is alive and holds parental rights and responsibilities the action may well be defended so it is important anyone who is a kinship carer takes full and proper advice from a solicitor prior to raising a court action.
Can legally formalising kinship care arrangements cause any issues?
Generally, legally formalising a kinship care arrangement can be of great benefit both to the child and the carer. It offers security and stability and signals that the child will reside with the kinship carer for the rest of their childhood.
However, there may be financial implications for example in respect of the kinship care allowances which are received and any benefits eligibility whilst having a kinship placement in your care. The granting of a court order could affect these payments and the process in place from local authority to local authority can differ greatly so it is important you discuss this with your relevant social worker and local authority to understand which option is best for you.
There may also be issues if the other parent is alive and wishes to challenge the orders you seek (known as a defended action)
It is vital that you take independent legal advice to fully understand your options and consider what is best for your family situation. We can assist with this should you wish to discuss further.