SCOPE OF THIS CHAPTER
Note: from April 2014, Residence Orders and Contact Orders were replaced by Child Arrangements Orders. Prior to April 2014, a Residence Order was a Court Order made under section 8 of the Children Act 1989, settling the arrangements as to the person with whom a child was to live.
This chapter was added to the manual in July 2014. It has been adapted from a chapter in the Lincolnshire Children's Services Procedures Manual. It contains information on Child Arrangements Order (known until April 2014 as Residence Orders) including who can apply for such an order, and the circumstances in which Child Arrangements Order allowances will be paid by the Local Authority.
The Children Act 1989 introduced Residence Orders; in April 2014, they were replaced by Child Arrangements Orders. Child Arrangements Orders can be granted in private law custody disputes to determine where a child should live but also in any 'family proceedings' concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.
In all situations where Derbyshire County Council is involved in care proceedings, consideration will be given as to whether the child could more appropriately be placed with a relative or friend as an alternative to being placed with foster carers. If permanency is agreed as the Care Plan, consideration might also be given to placing the child with a relative or friend under a Child Arrangements Order or Special Guardianship Order as an alternative to placing the child in care or for adoption. Where criteria are met, carers will be offered the opportunity of being assessed in relation to eligibility for an allowance, see Section 9, Discharge or Variation of Child Arrangements Order.
Child Arrangements Orders are also a way to provide someone who is not a legal parent of a child with Parental Responsibility but such cases are rare.
A Child Arrangements Order comes to an end when a child reaches 18 unless the Court specifies that it should end earlier or another Order is made that discharges it.
There are no statutory leaving care services available to young people who were subject to a Child Arrangements Order unless they become Looked After beyond 16 years of age. However, Section 17 continues to apply to all children in need.
Applications for Child Arrangements Orders may be individual or joint. Joint applicants do not need to be married. Applicants must be 18 or over.
The following people may apply:
The following people may apply with the leave of the court:
The holder of a Child Arrangements Order shares Parental Responsibility for the child and will have clear responsibility for the day-to-day decisions about caring for the child.
The child's parents continue to hold Parental Responsibility if a Child Arrangements Order is made to only one of them or to another and their exercise of parental responsibility is unfettered unless it has been restricted by the Court in some way. The parents retain the right to consent or not to the child's adoption or placement for adoption.
In addition there are certain steps in a child's life which require the consent of every-one with Parental Responsibility, for example:
Where a child is a Looked After Child, the decision to support the making of a Child Arrangements Order should be part of the care planning for the child. If the child is subject of on-going legal proceedings, the child's social worker will need to reflect the review decisions in the child's Care Plan and in the recommendation to the Court.
If the child is looked after under section 20 of the Children Act 1989, and a plan for a Child Arrangements Order application was agreed at the Looked After Children Review, the child's social worker will need to support the applicant in making the application for a Child Arrangements Order. The Local Authority cannot apply for a Child Arrangements Order.
Where there are child protection concerns and the child is not yet a Looked After Child, Derbyshire County Council will consider whether the application for a Child Arrangements Order by a relative or friend will avoid the child being a Looked After Child and the process above will need to be followed.
The person seeking the Child Arrangements Order will need to make the application to court, but if Derbyshire County Council supports the plan, the child's Social Worker will provide information and guidance.
If a Child Arrangements Order allowance is thought to be appropriate (and it is agreed by the Head of Service (Localities) that an assessment can be recommended) a report should be presented to the Assistant Director for a decision.
If the application is being made in support of a child who is already a 'Looked After Child' and Derbyshire County Council supports the application, financial assistance may be granted to pay for the application. In these cases the child's Social Worker must seek permission from the Head of Service (Localities) and the Assistant Director.
Processes for assessing and approving applicants who seek Child Arrangements Orders in respect of children who are looked after or who are at risk of becoming a Looked After Child need to be sufficiently rigorous as the proposed arrangement requires.
In reaching the decision to approve and support a person applying for a Child Arrangements Order, the authority will have due regard to research findings relating to the placement of children with relatives, the proven benefits and desirability of continuity for children and the other potential gains that may accrue from placement within the extended family, with a known carer or within the child's wider community network.
When an application for a Child Arrangements Order is requested or considered for a Looked After Child, the child's social worker will:
The allocated social worker should record the information on the child's electronic record. Court timescales will need to be clarified. An Assessment should be commenced.
In all cases, there will need to be an assessment of the needs of the child, the suitability of the applicant(s), the proposed contact arrangements and the support needs of the child, parents and the applicant.
The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service (DBS) of all adults in the house over the age of 18 years,
Any action/counselling must be recorded on the child's electronic record. Ideally counselling should take place prior to any application being lodged with the Court and the applicant should be advised to seek legal advice where appropriate. The purpose of counselling is to ensure that the applicant, the child and the child's birth parents fully understand the nature and implications of Child Arrangements Order and that their wishes and feelings are considered.
The applicants should be advised of the personal information which will be required for the Court report.
The applicants should be seen at home both jointly and separately. The child should also be seen in the company of the applicants to enable an assessment of the interaction and relationships. Any other members of the household should be interviewed and appropriate counselling provided.
The child needs to know and have an understanding of his/her birth origins as well as to be aware of the implications of a Child Arrangements Order. She /he should be seen alone if the child is old enough (e.g. over 5 years) and it is important to note that even young children can understand the difference between a 'parenting' parent and a 'birth' parent. It is essential that the child's views are recorded and taken into account. Where a child has strong bonds with the birth parents it is crucial that this matter is given careful consideration and contact issues addressed.
Counselling the birth parent or anyone who has Parental Responsibility for the child is essential. The Social Worker for the child is responsible for undertaking this. In addition the birth parent should be advised of the availability of independent support arrangements and how to access these. Any birth parent not agreeing to the application should be advised to engage a solicitor as soon as possible.
Issues of any on-going contact should be discussed fully with all parties. Such arrangements may be made informally if all parties are in agreement. However there may be child protection concerns and consideration may need to be given to on-going supervisory arrangements, how able the applicants are to supervise contact and ensure the child's safety. A recommendation regarding contact may be made to the Court. However, contact is ultimately a matter for those with parental responsibility and this should be kept in mind when considering the merits of a child's future being secured through the mechanism of a Child Arrangements Order.
If the child is a Looked After Child, or known to the Local Authority, the Court will usually order a report from the local authority.
The social worker or social workers preparing the Court report should be suitably qualified and experienced. If the applicant is an existing foster carer, the supervising social worker will complete the sections on the carers and the child's social worker will complete the sections on the child and birth family.
Once completed, the Court Report should be submitted by the author(s) to the Service Manager and to Legal Services if this is consider appropriate.
In cases where the child is already subject to Court proceedings, the social worker will need to reflect the plan for a Child Arrangements Order in the Care Plan and in the recommendation of the final court report.
If the child is not already subject to on-going court proceedings and an application for a / Child Arrangements Order is made, the Court may request a s.7 or a s.37 report from the Local Authority, and will usually do so if the child is already known to Derbyshire County Council. The author of the report must attend the court with the applicants.
Upon the making of an Order the child's social worker will record the Child Arrangements Order or Special Guardianship Order as a new Legal Status in the Legal section of ICS.
Upon the making of an Order the child's Social Worker will record the Child Arrangements Order as a new Legal Status in the Legal Section on the electronic file.
When a child is placed with a carer on a Child Arrangements Order and the carer is entitled to financial help, the child will have a Plan in place.
If there is an on-going plan already in place, the financial need would be added to the current plan on the electronic record and the service provided to meet this need would be "Child Arrangements Order - Financial Support".
If the case is to remain open just to deliver financial support, the Key Team will cease their involvement by transferring the case to the Children's Services Placements Finance Team with the role added of U6 Financial Review only. A task will need to be sent to the Financial Review Team notifying them of the transfer. The case will then be held by the Financial Review Team as an open referral with Key Worker role U6. The Locality will remain responsible for supporting the Children's Services Placements Finance Team with information for the annual reviews, see Section 10.6, Payment and Review Process.
On receipt of the task, the Finance Team will check that the Child Arrangements Order is recorded and will then add a review identifying a due date for the first review.
A Child Arrangements Order can be varied or discharged on the application of:
Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there has been a significant change in circumstances since the Child Arrangements Order was made.
The court may during any family proceedings in which a question arises about the welfare of a child who is subject to a Child Arrangements Order, vary or discharge the Order in the absence of an application.
Derbyshire County Council aims to promote the welfare and improve the outcomes for children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected with them.
Derbyshire County Council is committed to supporting family/friend carers in a variety of ways.
The majority of children and young people can and will have their needs met using universal and targeted services, but the Child Arrangements Order Allowance Scheme recognises that some children and their prospective permanent carers may have additional needs arising from their individual circumstances. Those needs or some of those needs may give rise to eligibility for assistance.
Therefore the scheme exists to provide in proper cases essential financial support to underpin Care Plans and arrangements for children and young people to live with family, friends and other carers where the Local Authority has usually been involved.
The Children Act 1989 sets out a number of duties and responsibilities which are placed on Local Authorities and have as an aim the placement of children with family or friends if a child cannot live with a birth parent(s). Child Arrangements Order Allowances were introduced as a possible means to support this.
Local Authorities are required under Section 17, Children Act 1989 to:
The option of providing support without a Legal Order should also be considered where all parties are in agreement that no Order is necessary to underpin the care arrangements applying the so called 'no order principle'. Where a Legal Order is required, Child Arrangements Order should be considered as a means of preventing children and young people from becoming and/or remaining looked after, and to provide them with a stable home.
In promoting stable family placements for children, consideration will be given to the payment of a Child Arrangements Order Allowance and reasonable support with legal and court costs.
In special circumstances a request for financial support at a higher rate than the usual Child Arrangements Order Allowance may be considered by the Assistant Director. This will require a report setting out the individual circumstances, the child's assessed needs, the funding request and how that would enhance the welfare of the particular child.
There is no absolute right to an assessment for support for carers with Child Arrangements Order. However, Local Authorities have the power to pay a Child Arrangements Order Allowance in a proper case where this is the most appropriate way to safeguard and promote the child's welfare. (Children Act 1989, Schedule 2, Section 15). This means that Local Authorities have a discretionary power to make payments towards the cost of maintenance and accommodation of a child who is the subject of a Child Arrangements Order.
Derbyshire's Child Arrangements Order Allowance is set at 66%/two thirds of the Fostering Network recommended minimum fostering allowance. This is not an arbitrary figure. It is based on the Fostering Network's calculation that it costs 50% more to raise a child in foster care than in their own home and in formulating this policy due consideration has been given to the responsibilities, roles and duties underpinning the respective orders and arrangements. For example, a Child Arrangements Order confers Parental Responsibility on the holder but this is shared and thus does not effectively place the ultimate decision making burden on any one individual.
It is also a private law order which does not entail an obligation to work within the looked after children's system which is an onerous and specialised task requiring assessment and training. It is perhaps for these reasons that there is currently no legal obligation to meet the National Minimum Fostering Standards 2011 which mean carers under Child Arrangements Orders are not subject to on-going monitor and review. This is reflected in the level of the allowance being set at 66% / two thirds of the equivalent fostering allowance for children within that age band. It also reflects the added burdens and responsibilities which are assumed by those who choose to be special guardians for children and the role they play.
The child's Social Worker must advise potential Child Arrangements Order applicants in writing of the availability of financial support and inform them of the provision and criteria for Child Arrangements Order allowances.
Applicants should be informed that in special circumstances, if it can be demonstrated that extra costs are incurred to meet the additional needs of a child, the allowance may be payable at a higher rate. Initially, this would be time limited to six months but prior to the end of the six month period, the applicant will be contacted and advised that the higher rate will reduce to the standard rate at the end of the six month period unless they make contact and are able to demonstrate that the special circumstances remain the same.
All applicants must be informed that the Child Arrangements Order Allowance paid will be subject to an annual review.
Derbyshire County Council does not pay a Child Arrangements Order allowance when the order places the child in the care of a person who is his/her parent or step-parent. Assistance might however be available under Section 17 of the 1989 Children Act if the child is assessed as a 'child in need'.
Derbyshire County Council will ordinarily only assess in relation to the payment of a Child Arrangements Order allowance in respect of children:
Please also note that if the Local Authority opposed the Child Arrangements Order application but the applicant is successful in their application, the Local Authority will assess the applicant for eligibility of the allowance as if they had been in support of the placement.
Anyone currently receiving a Child Arrangements Order Allowance from Derbyshire County Council who would not fit the above criteria, will not lose their allowance with the introduction of this revised policy. It will continue to be reviewed annually to determine eligibility for an allowance.
The general principle should be that where a person/s is seeking to make a major commitment towards a child by means of a Child Arrangements Order, this commitment by the individual should be taken to include a willingness to meet costs associated with such a commitment. To this there will however be exceptions.
The Child Arrangements Order allowance will:
In exceptional circumstances a request for a higher payment may be considered by the Assistant Director on production of a report setting out the individual circumstances, the child's assessed needs and the funding request.
It is not the function of the Derbyshire County Council to accept responsibility for income maintenance. Help in determining eligibility to benefits can be provided by:
Derbyshire's Welfare Rights Service who can be contacted on 0845 1202985 Monday to Friday 11.00am - 4.30pm.
The payment of a Child Arrangements Order Allowance may affect receipt of benefits and advice should be sought of the appropriate Benefit Agency.
The Local Authority will consider a settling in payment and/or 'one off' payments under Section 17, for carers with a Child Arrangements Order who are experiencing financial problems. These discretionary payments can be considered whether the applicant would or would not be eligible for Child Arrangements Order Allowances. Eligibility for these Section 17 payments will be decided by the relevant Head of Service (Localities).
The Assistant Director will inform the child's Social Worker of the decision to make the payment and following a financial assessment, how much that allowance will be.
Payment commences as from the date of the Child Arrangements Order or from the point at which it is approved.
The Children's Services Placements Finance Team will write to the holder or applicant of the Child Arrangements Order setting out the amount of financial support agreed by the Assistant Director and information in relation to the following:
The case will remain open to the Local Authority to deliver financial support. The Plan would be a Child in Need Plan with the only need identified being the Financial Need and the service provided to meet this need would be "Child Arrangements Order- financial support". The Plan is recorded by the Social Worker before their involvement is completed. The Locality is responsible for supporting the Children's Services Placements Finance Team with annual reviews where necessary. For the first annual review this will usually be the previous Social Worker. For any future reviews, the Locality Duty Service will assist. The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.
The allowance is reviewed annually and this is to:
When a review is due, a Financial Assessment Review form will be generated by the Children's Services Placements Finance Team (regulated services) for completion by the carer. The team will review cases on an annual basis and will record any changes and outcomes onto the electronic record as a financial review. The carers will be required to complete an allowance review questionnaire. This will include entitlements to child benefit and tax credits.
In order for allowances to continue up to 18 years of age, Derbyshire County Council will need to confirm that the young person:
If an overpayment has been made for example because it is found that the child is no longer resident, or for any other reason, the Local Authority will recover the overpayment.
The Child Arrangements Order Allowance will change as the child moves into the next age band as set out in fostering allowances.
Payment of the Child Arrangements Order Allowance will automatically end when:
The Child Arrangements Order Allowance is only payable in respect of the child who is subject to a Child Arrangements Order and who is resident with the person named in the Order.
Those in receipt of Child Arrangements Order Allowances are to agree that they will inform Derbyshire County Council immediately of any significant changes in the family: for the carers themselves, their children and the child/children subject to the Child Arrangements Order.
Where information has been given orally, the carers must confirm the information in writing within seven days.
Derbyshire must be informed of the following:
The Locality Office must notify the Children's Services Placements Finance Team if they are informed of a change of address for the family to ensure that payment is sent to the correct address. They must also notify the Children's Services Placements Finance Team if they are made aware that the arrangement has ended and the child is no longer living with the Child Arrangements Order holder, so that payments can be stopped.
The Children's Services Placements Finance Team must make a referral to Call Derbyshire if they receive information from the Child Arrangements Order holder that raises concern about the child's welfare or if they fail to return the annual financial review form after the second reminder has been sent. Many of the children subject to a Child Arrangements Order are unable to live with their parents due to child protection concerns, it is therefore important that Call Derbyshire make the relevant Area aware if the child is no longer living with the Child Arrangements Order holder.
The applicant will be informed of this in writing and the reasons for the refusal clearly set out. Reasonable time will be given to allow the applicant to make representation to the Assistant Director.
The Local Authority remains required to:
The Local Authority may consider a settling in payment or discretionary payment. Eligibility for these Section 17 payments will be decided by the relevant Head of Service (Localities)*.
Where foster carers are applying for a Child Arrangements Order, in respect of a child they have been fostering, and Derbyshire County Council supports this plan, the carers will ordinarily receive a Child Arrangements Order allowance until the child is 18. This is to support a Plan for the child and is considered under 'special circumstances'. The allowance will be minus any welfare benefits, including child benefit and tax credits that become payable to the foster carer on obtaining a Child Arrangements Order.
Fostering payments will cease from the date of the Order.
In the case of foster carers only, this payment is set at the same rate as the fostering allowance for a child in that age band. This will not be subject to a means test but a financial assessment will be applied which takes account of benefits etc. This should be reviewed annually.
Christmas, birthday and holiday allowances will cease at the point that the Order is made, however where this has been paid prior to these procedures, they will continue to be paid up until the next annual review.
Any enhancements that had been paid through Derbyshire's Children First Scheme (Disability) in relation to a child's additional or specific needs will be paid for a transitional period of two years and will then be reviewed to determine whether the additional support is still required.
At the end of the two year period and following review by the child's Locality Social Care Office, a decision will be made to continue enhanced payments, reduce them or cease payments. Payment of any on-going additional allowance beyond two years would need to be justifiable and reviewed annually to ensure that it remains appropriate. Professional advice may be sought to ascertain whether or not the exceptional circumstances continue to exist and whether the specific needs require additional financial support. The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.
The additional allowance would not be guaranteed, although the basic fostering allowance would be.
In the case of the Foster Plus Scheme, payments will reduce over the two year period in order to assist the former foster carers to make the financial adjustment from fostering to the new legal status.
If the applicant is a foster carer from an independent fostering agency placement, the above would apply.
In special circumstances a request for a higher payment may be considered by the Assistant Director on production of a report setting out the individual circumstances, the child's assessed needs, the funding request and how it would enhance the welfare of the particular child. And if:
If a child is normally resident in another Local Authority and has been placed with a family in Derbyshire for whatever reason, it is expected that the placing Authority should have made the decisions about financially supporting the placement prior to it being made and be responsible for any financial support agreed.
If Derbyshire as the resident Authority is requested to financially support the placement of a child that moves into their area, this will be subject to the same full assessment as any other new referral.
If any Child Protection concerns arise within the course of assessment or the provision of support services, the worker should immediately consult with their line manager and refer the matter following Child Protection procedures.
Only valid for 48hrs