Child Arrangements Orders and Derbyshire Support Scheme

1. Introduction

The Children Act 1989 introduced Residence Orders and the purpose of them was to enable a child to be legally cared for by another family where otherwise financial constraints would prevent this. In April 2014, they were replaced by Child Arrangements Orders.

Criteria for payment of an allowance

Derbyshire County Council will only pay Residence Order/Child Arrangements Order allowances in respect of children:

• Who immediately prior to the Residence Order / Child Arrangements Order being made, were Looked After by Derbyshire County Council;
  and/or
• Where a child is subject to a Residence Order / Child Arrangements Order as part of a disposal of Care Proceedings;
  and/or
• Where a child would otherwise have to be Accommodated by Derbyshire County Council;
  and
• Derbyshire County Council supports the placement of the child with the person(s) taking the Residence Order / Child Arrangements Order.

In all situations where Derbyshire County Council is involved in care proceedings, consideration should 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 pending the final hearing. If permanency is agreed as the Care Plan, consideration should 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.

Derbyshire County Council will only provide financial assistance for legal advice for a Child Arrangements Order once it has been assessed that the child cannot be cared for by parents / Parental Responsibility holders because it would be unsafe to do so. In cases where the Child Arrangements Order is the better option for the child and/or the carers/parents preferred option, but not the only option, then support will be progressed via a private family arrangement. Whether or not legal advice is funded it will be clearly documented that this is a family choice that the Local Authority are facilitating and that the child would not otherwise be in care and therefore not eligible for other support

2. Who May Apply

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:

1. A parent or guardian;
2. A step-parent who has treated the child as 'a child of the family;
3. Any other person who has obtained the consent of all those with Parental Responsibility;
4. Any person who, if the child is in care, has the consent of the local authority;
5. Any person who has obtained the permission of those who already have a Residence Order / Child Arrangements Order for the child;
6. Anyone who the child has lived with for at least 3 years;
7. A local authority foster parent if the child has lived with them for at least 1 year immediately preceding the application to court.

The following people may apply with the leave of the court:

1. The child him/herself if the court is satisfied that he/she has sufficient understanding to make the application;
2. Any person with a genuine interest in the child's welfare.

3. Parental Responsibility

The holder of a Child Arrangements Order has 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. 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 everyone with Parental Responsibility, for example:

• Change of the child's name;
• The removal of the child from the United Kingdom for longer than 3 months;
• The sterilisation of a child.

4. The Circumstances in which a Child Arrangements Order may be Made

The Court may make a Child Arrangements Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.

5. Approval of a Child Arrangements Order for a Looked After Child

Where a child is a Looked After Child, Derbyshire County Council will consider whether to support the making of a Child Arrangements Order at the Looked After Child Review. It supported, this will be endorsed as part of the child’s Permanence Plan. If the child is the subject of on-going legal proceedings, the child's social worker will reflect the review decisions in the child's Care Plan and in the recommendation to the Court. The applicant(s) will be advised by the child’s social worker whether Derbyshire County Council supports the application.

If the child is looked after under section 20 of the Children Act 1989, and a plan for an application for a Child Arrangements Order has been agreed at the Looked After Children Review, the child's social worker will 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. In this instance, the intending applicant 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 to assist with the application.

6. Process for Assessing and Approving Applicants

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 are as rigorous as arrangements made for assessing and approving other alternative carers.

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.

If the application is being made in support of a child who is a Looked After Child and Derbyshire County Council supports the application, financial assistance may be granted to pay for the application. The decision on whether to approve financial support is the responsibility of the Head of Service Locality. Applications for financial support should be submitted to the child’s social worker who will then arrange for these to be considered.

When an application for a Child Arrangements Order is requested or considered for a Looked After Child, the child's social worker will:

• Have regard to the need to safeguard and promote the welfare of the child and to treat the child’s best interests as paramount;
• Provide full information in writing to the prospective applicants which will explain the effects a Child Arrangements Order will have with regard to the applicants relationship with the child, the birth parents and the Local Authority;
• Consider any special needs of the applicant that require information to be shared in another format, e.g. large print, different language, use of an interpreter;
• Obtain the views of people who hold parental responsibility for the child including birth fathers who do not hold parental responsibility, of the intention of the foster carers or other persons, to apply for a Child Arrangements Order;
• Ascertain the child's wishes and feelings regarding the proposed application and consider the child's need for support and /or counselling;
• Undertake an assessment of the proposed applicants to determine whether the placement will meet the child's long term needs;
• Consider if Section 17 support may apply if the child is deemed a Child in Need;
• Advise the prospective applicants that they can seek independent legal advice;
• Arrange for an assessment of financial/on-going support, by the Financial Team (financial support does not apply if the child is to live with a parent or step-parent);
• Ensure information is given in a way that takes into account any special needs of those people being interviewed, e.g. use of interpreter, large print;
• Clarify and communicate the Court timescales;
• Commence a Social Care Assessment (see below.)

All of the above information will be recorded by the child’s social worker on the child's electronic record. 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 information gathered will form a Social Care Assessment.

The assessment of the applicants will 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, and other statutory checks undertaken for the assessment.

The applicants will be advised of the personal information which will be required for the Court report.

The applicants will be visited at home both jointly and separately. The child will also be visited in the company of the applicants to enable an assessment of the interaction and relationships. Any other members of the household will also be interviewed and appropriate counselling will be provided.

The child will be visited and invited to express their wishes and feelings.

The child needs to know and have an understanding of their birth origins as well as to be aware of the implications of a Child Arrangements Order. They will 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 will be advised of the availability of independent support arrangements and how to access these. Any birth parent not agreeing to the application will be advised to engage a solicitor as soon as possible.

7. Contact

Issues of any on-going contact will 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.

8. Report to the Court

If the child is a Looked After Child, or known to the Local Authority, the Court will order a report from the local authority.

The social worker or social workers preparing the Court report will 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.

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 section.7 or a section.37 report from the Local Authority. If the child is already known to Derbyshire County Council, the report will be completed by the child’s social worker. The author of the report must attend the court with the applicants.

9. Discharge or Variation of a Residence Order / Child Arrangements Order

A Residence Order / Child Arrangements Order can be varied or discharged on the application of:

• Holder of the Residence Order / Child Arrangements Order;
• The local authority in whose name a Care Order was in force before the Residence Order / Child Arrangements Order was made;
• Anyone with a Residence Order / Child Arrangements Order in respect of the child before the current Residence Order / Child Arrangements Order was made; or
• With the leave of the court:
  • The child's parents or guardians;
  • Any step parent who has Parental Responsibility;
  • Anyone who had Parental Responsibility immediately before the current Residence Order / Child Arrangements Order was made;
  • The child (if the court is satisfied that the child has sufficient understanding).

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 Residence Order / 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 Residence Order / Child Arrangements Order, vary or discharge the Order in the absence of an application.

10. Residence Order / Child Arrangements Order Allowances

10.1 General Principles

Residence Order Allowances were introduced as part of the Children Act 1989 and the purpose of them was to enable a child to be legally cared for by another family where otherwise financial constraints would prevent this. They were superseded in April 2014 by the Children and Families Act 2014 which introduced Child Arrangements Order Allowances. The 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. (This is an amendment by Section 37 of The Children and Young Person's Act 2008 to the Children Act 1989 (Section 9(6) - duration of Residence Orders where this type of Order is in force).

Child Arrangements Order allowances are considered where there are financial or support needs in respect of a child which will be recognised through the payment of an allowance. Financial support from Local Authorities must complement and not duplicate financial support available through benefits and tax credits systems.

10.2 Residence Order / Child Arrangements Order Allowances

Unless there are exceptional circumstances, Derbyshire County Council will only play such allowances in respect of children:

• Who immediately prior to the Residence Order / Child Arrangements Order being made, were looked after by Derbyshire County Council; and/or
• Where a child is subject to a Residence Order / Child Arrangements Order as part of a disposal of Care Proceedings; and/or
• Where a child would otherwise have to be Accommodated by Derbyshire County Council; and
• Derbyshire County Council supports the placement of the child with the person(s) taking the Residence Order / Child Arrangements Order.

The general principle is that where a person/s is seeking to make a permanent and substantial commitment towards a child by means of a Child Arrangements Order, this commitment should be taken to include a willingness to meet costs associated with such a commitment subject to the ability to do and means testing. Payments are subject to discretion and a degree of professional judgment.

Derbyshire’s usual current payment rates per child are as detailed in the table below. Entitlement to the full rate is subject to a means test to take into account the individual circumstances of each household. Derbyshire reviews its rates annually to ensure that they are normally sufficient to contribute to the costs of raising a child.

The amount of the Residence Order allowance / Child Arrangements Order allowance will be calculated individually;

• Taking into account the need to safeguard and promote the child’s welfare and treat the child’s best interests as a primary (particularly important) consideration;
• Be assessed by completing a 'Residence Order / Child Arrangements Order Financial Support Means Test';
• This is assessed via the DfE calculation methodology;
• Not include any reward element;
• Take into account the financial resources of the Residence Order / Child Arrangements Order holder including any financial benefit arising from the placement of the child e.g. child benefit or tax credits;
• Take into account the financial needs/resources of the child (if any) excluding mobility/attendance allowance;
• Take into account any special needs or expenditure that may justify a higher rate than one based on the usual full rates in the table above (e.g. childcare) (such decision to be made by the Head of Service Locality).

The payment of a Residence Order / Child Arrangements Order allowance may affect receipt of benefits and advice should be sought from HMRC.

It is not the function of the Derbyshire County Council to accept responsibility for income maintenance.

There are no leaving care services available to young people who are subject to a Residence Order / Child Arrangements Order unless they are Looked After beyond 16 years of age.

10.3 If an Allowance is Payable

Once a decision has been made that an allowance is payable, the care will be informed in writing of the details:

• How the decision was reached;
• The amount of the allowance;
• The date of the first payment;
• The method and frequency of the payment;
• The arrangements for review, variation and termination of the allowance and the requirement for full financial detail to be provided;
• The carer's responsibility to notify us of any changes in their circumstances or those of the child.

The allowance will be fixed at the calculated rate at the point of the order being made. It will be paid 52 weeks of the year and is intended to contribute to related costs of caring for the particular child.

10.4 Payment and Review

Payment commences as from the date of the Residence Order / Child Arrangements Order, or if the child is placed after this date, from date of placement.

The allowance is reviewed annually and this is to:

• Determine that the allowance is still appropriate. If information is not shared with Derbyshire County Council in a reasonable timeframe by carers then any resulting overpayments will be recovered by the Authority.

The Authority will contact the carers with the Residence Order Allowance / Child Arrangements Order to confirm that the arrangement is still in existence.

Derbyshire County Council will review allowances payable an in order for allowances to continue up to 18 years of age, and in certain circumstances we will need to confirm that the young person:

• Continues to reside full time in your care - up to 18 years;
• Is not in receipt of any benefits other than EMA (or equivalent) for training/education in their own right; and
• The financial circumstances of the carers in receipt of the allowance remain unchanged.

Payment of the Residence Order / 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:

• Ceases to live with the family with the Residence Order / Child Arrangements Order; or
• Reaches 18 years of age. For young people in employment a contribution to the residence order allowance will be considered as part of the annual review of the allowances.

10.5 Notifications

• The Residence / Child Arrangements Order allowance is payable in respect of the child who is subject to the Residence Order / Child Arrangements Order and who is resident with you. If your circumstances alter so that this is no longer the case you must notify Derbyshire County Council of any significant changes in the family; The child ceases to have a home with t you;
• The child ceases full time education or training and commences employment;
• The child qualifies for welfare benefits in their own right;
• The child attains the age of 18 and is not in education or training;
• Change of address;
• The child dies;
• There is a change in financial circumstances or the financial needs or resources of the child which may affect the amount of financial support payable to the carer.

10.6 Foster Carers Applying for a Child Arrangements Order

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 receive a means tested Child Arrangements Order allowance until the child is 18. ( minus any welfare benefits, including child benefit and tax credits that become payable to the foster carer on obtaining a Child Arrangements Order).

10.7 Child Arrangements Order Allowances to Prevent a Child Becoming a Looked After Child

Derbyshire County Council has discretion under paragraph 15 of Schedule 1 to The Children Act 1989 to make payments, to support a placement which prevents a child becoming a Looked After Child. The Child Arrangements Order may be sought by a member of the child's family or anyone the child has lived with normally for a period of one year before the order is made.

In cases where the child is not a Looked After Child, and a prospective applicant for a Child Arrangements Order makes an enquiry about support services, this will be subject to a Social Care Assessment. If it is felt that without financial assistance, the child would be likely to become a Looked After Child, a request to undertake a financial assessment can be made to the Locality Head of Service.

10.8 Residence Order / Child Arrangements Order Allowances where Applicant is not a Former Foster Carer of the Child

Payment of a Child Arrangements Order Allowance is at the discretion of Derbyshire County Council and paid in line with the criteria laid out in Section 10.2, Residence Order Allowances / Child Arrangements Order. The allowance is paid upon the making of an Interim Order or Child Arrangements Order following an assessment.

10.9 Matters to be Considered in Determining Eligibility for a Residence Order Allowance/Child Arrangements Order Allowance

The decision whether applicants for a Residence Order/Child Arrangements Order and the payment of an allowance is required in order to maintain the placement will be based on the following criteria:

• The criteria in Section 10.2, Residence Order Allowances / Child Arrangements Order;
• Needs of the child/ren, including age, number of children placed, assessed cost of caring for the child/ren, the need to safeguard and promote the welfare of the child and the best interests of the child;
• Information that all State Benefits have been explored and applied for where appropriate;
• All legal steps to obtain parental contribution have been explored.

Applicants for Residence Order/Child Arrangements Order should be helped to access any benefits to which they are entitled; this includes Child Benefit and Child Tax Credit which has been or can be claimed for that child.

The local authority must also take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of being granted a Residence Order/Child Arrangements Order in respect of a child. Financial support cannot duplicate any other payment available to the holder of the Residence Order/Child Arrangements Order.

The local authority will consider discretionary payments for all carers with a Residence Order / Child Arrangements Order who are experiencing financial problems or where the child is assessed as having additional needs that require financial support. Decisions on discretionary payments will be made by the Head of Service Locality.