- Legislative Context and Introduction
- Who May Apply
- Parental Responsibility
- Approval of a Child Arrangements Order for a Looked After Child
- Process and Assessment
- Report to the Court
- Process Following the Granting of an Order
- Discharge or Variation of Child Arrangements Order
- Child Arrangement Order Allowances
- Foster Carers Applying for a Child Arrangements Order
- Children not Known to Derby City Council
- Child Protection Concerns
- Appendix 1: Special Guardianship Order Allowances and Child Arrangements Order Allowances
1. Legislative Background and Introduction
Residence Orders were introduced by Children Act 1989 and were 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 applied even where no application had been made and included adoption proceedings. Under the Children and Families Act 2014 which became effective on 22nd April 2014, residence orders were replaced by Child Arrangements Orders. All Residence Orders made before 22nd April 2014 are deemed to be Child Arrangements Orders. A Child Arrangements Order is an order that relates to either or both of the following:
- With whom the child concerned is to live, spend time or otherwise have contact; and
- When the child is to live, spend time or otherwise have contact with any person.
In all situations where Derby City Council is involved in care proceedings, consideration will be given as to whether the child could more appropriately live with a relative or friend under a Child Arrangements Order or Special Guardianship Order as an alternative to being placed with foster carers. Where specified criteria are met, carers will be offered the opportunity of being assessed in relation to eligibility for an allowance, see Section 10.3, Eligibility.
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.
A child may also be subject to a Supervision Order (for more information, please see the Supervision Orders Procedure).
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:
- A parent or guardian;
- A step-parent who has treated the child as 'a child of the family;
- Any other person who has obtained the consent of all those with parental responsibility;
- Any person who, if the child is in care, has the consent of the local authority;
- Any person who has obtained the permission of those who already have a Child Arrangements Order for the child provided that order regulates the arrangements relating to with whom the child should live or when the child is to live with that person;
- Anyone who the child has lived with for at least 3 years;
- 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:
- The child him/herself if the court is satisfied that he/she has sufficient understanding to make the application;
- Any person with a genuine interest in the child's welfare.
3. Parental Responsibility
The holder of a Child Arrangements Order which regulates with whom the child should live (or when the child is to live with that person) has or 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 for the child, and a child arrangement order is made to only one of them or to another person then their exercise of parental responsibility is unfettered unless it has been restricted by the Court in some way. The parents with parental responsibility 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:
- Change of the child's name;
- The removal of the child from the United Kingdom for longer than a month.
4. Approval of a Child Arrangements Order for a Looked After Child
Where a child is a Looked After Child, the decision to support the making of a Child Arrangements Order which regulates with whom the child should live 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 Arrangement 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 that 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, Derby City Council must consider whether the application for a Child Arrangements Order by a relative or friend will avoid the child becoming a Looked After Child and the process above will need to be followed.
The person seeking the child arrangement Order will need to make the application to court, but if Derby City Council supports the plan, the child's social worker will provide information and guidance.
If the application is being made in support of a child who is already a looked after child and Derby City Council supports the application, financial assistance may be granted to pay for the application. In these cases the Deputy Head of Service must seek agreement from the Head of Service.
5. Process and Assessment
In reaching the decision to approve and support a person applying for a Child Arrangements Order being one which regulates with whom the child should live, 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:
- Provide full information in writing to the prospective applicants which will explain the effects the 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;
- Advise the prospective applicants that they can seek independent legal advice;
- Arrange for an assessment of financial/on-going support, by the Financial Review Team if the carers meet the eligibility criteria (see below) (Financial support does not apply if the child is to live with a parent or step-parent).
The allocated social worker should record the information on the child's electronic record. Court timescales will need to be clarified. A Social Care Single 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 the 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 the Child Arrangements Order. She /he should be seen alone if the child is old enough and is willing to be seen alone. 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 or incorporated into the terms of the Child Arrangements Order. If there are any child protection concerns consideration may need to be given to on-going supervisory arrangements. In these circumstances, how able the applicants are to supervise contact and ensure the child's safety should also be assessed. 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 statutory Order.
7. 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 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 Team Manager for the child who will quality assure it and then send it to Legal Services for a final ' legal check'. 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 will request a s.7 or a s.37 report from the Local Authority and will usually do so if the child is an open case to Derby City Council or if there has been a recent assessment of the child's needs. Where the child is not known or there has not been recent involvement, CAFCASS should complete these reports. The author of the report must attend the court with the applicants.
8. Process Following the Granting of an Order
Upon the making of an Order the child's social worker will record the Child Arrangements Order or Special as a new Legal Status in the Legal section on the electronic file.
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 Arrangement Order -financial support".
If the case is to remain open just to deliver financial support, the key team will cease their involvement and the case will be transferred to the Connected Persons Team.
9. Discharge or Variation of Child Arrangements Order
A Child Arrangements Order can be varied or discharged on the application of:
- Holder of the Child Arrangements Order;
- The local authority in whose name a Care Order was in force before the Child Arrangements Order was made;
- Anyone with a Child Arrangements Order in respect of the child before the current Child Arrangement 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 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 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.
10. Child Arrangements Order Allowances
10.1 Vision and Purpose of the Scheme
Derby City 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.
Derby City 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 Allowance scheme which applies when a Child Arrangements Order is made which regulates with whom a child should live, 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 financial 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.
10.2 Legal context for payments and support
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 Orders Allowances have been introduced as a possible means to support this.
Local Authorities are required under section 17, Children Act 1989 to:
- Safeguard and promote the welfare of children within their area who are in need; and
- So far as is consistent with that duty, to promote the upbringing of such children by their families, by promoting a range and level of services appropriate to these children's needs.
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, a 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 where the order regulates with whom the child should live.
There is no absolute right to an assessment for support for carers with these orders. However, Local Authorities have the power to pay such allowances in an appropriate case where this is the most likely way to safeguard and promote the child's welfare. (Children Act 1989, Schedule 2, Section 15). Case law has evolved in such a way that it puts carers of children on child arrangement Orders on the same legal footing as Special Guardians in their entitlement to be paid allowances.
10.3 Eligibility for assessment for an allowance
The child's social worker must advise potential applicants for a Child Arrangements Order which regulates with whom the child should live, in writing of the availability of financial support and inform them of the provision and criteria for allowances.
All applicants must be informed that the payment of these allowances will be subject to an annual review.
Derby City Council does not pay an 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'.
Derby City Council will ordinarily only assess in relation to the payment of a Child Arrangement Order Allowance (being an order which regulates with whom the child should live) in respect of a child:
- Who immediately prior to the Order being made, was Looked After by the Local Authority for a period of at least 3 months and the application is part of his/her care plan and has been confirmed with the Independent Reviewing Officer through the reviewing process;
- Who is subject to a Child Arrangements Order (which regulates with whom that child should live) as part of a disposal of Care Proceedings or as a direct alternative to care proceedings, whether or not the child was looked after by the Local Authority for a period of at least 3 months;
- The local authority supports the placement of the child with the person(s) applying for the Order;
- Following an assessment of the circumstances of the child and carer, the Head of Service agrees that the case is exceptional;
- In all cases, the applicant must live within the United Kingdom.
Please also note that if the Local Authority opposed the 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.
10.4 Calculation of Allowances Payable
The Child Arrangements Order allowance will:
- Not include any reward element;
- Be means tested and take into account the financial resources of the holder of the Order including any financial benefit arising from the placement of the child e.g. child benefit, Tax credit or any benefit which has been or can be claimed for that child. Derby City Council uses the Department for Education and Skills recommended standardised means test model;
- Take into account the financial needs/resources of the child (if any) excluding mobility/attendance allowance/benefits related to disability;
- Be ordinarily set at the equivalent age related basic fostering allowance rate at the point of the order being made and increase annually in line with the fostering allowance rate.
This is illustrated in Appendix 1: Special Guardianship Order Allowances and Child Arrangements Order Allowances.
It is not the function of Derby City Council to accept responsibility for income maintenance. The payment of the allowance may affect receipt of benefits and advice should be sought of the appropriate Benefit Agency.
10.5 Discretionary Payments
The Local Authority will consider requests for a settling in payment and /or 'one off' payments under section 17 of the Children Act, for carers with a Child Arrangements Order (which regulates with whom the child should live) who are experiencing financial difficulties. These discretionary payments can be considered whether the applicant would or would not be eligible for Allowances. Eligibility for these Section 17 payments will be decided by the relevant team manager. No retrospective requests will be considered and carers will always be expected to produce receipts for items they are allowed to purchase themselves.
10.6 Payment and Review Process
The Head of Service 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 Finance Team will write to the holder or applicant of the Order setting out the amount of financial support agreed by the Head of Service and information in relation to the following:
- How the decision was made;
- Whether financial support is be paid in regular instalments and if so, the frequency of payment;
- The amount of financial support;
- The period for which the financial support is to be paid;
- When payment will commence;
- Conditions for continuing payment and date by which conditions are to be met, i.e. annual review;
- Arrangements and procedure for review, variation and termination of the allowance;
- It is the carer's responsibility to notify the Local Authority of any changes in their circumstances or those of the child.
The case will remain open to the Council 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 arrangement order - financial support". The Plan is recorded by the Social Worker before their involvement is completed. The Connected Persons Team will assist the finance team with annual reviews where necessary. For the first annual review this will usually be the previous social worker. Reviews may only involve confirming with professionals who know the child that the placement continues to meet his/her needs. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, a new adult in the home, it would normally be necessary to conduct a new assessment of needs.
The allowance is reviewed annually and this is to:
- Establish that the young person continues to meet the requirements for an allowance;
- Complete a financial review;
- Determine that the allowance is still appropriate and consistent with legislation and departmental policy.
When a review is due, a Financial Assessment Review form will be generated by the Finance Team 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, Derby City Council will need to confirm that the young person:
- Continues to reside full time in the care of the Child Arrangements Order holder;
- Is continuing to have his needs met by the carers;
- Is not in receipt of any benefits other than specific grants to support training/education in their own right. For young people in full time employment, the allowance will cease. An appeal can be considered if the young person's circumstances are exceptional;
- And in addition that the carers in receipt of the allowance remain financially eligible.
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 in to the next age band as set out in fostering allowances.
Payment of the Allowance will automatically end when:
- The child ceases to live with the Child Arrangements Order holder before 18;
- The child is in full time employment; or
- Reaches 18 years of age.
The allowance is only payable in respect of the child who is subject to a Child Arrangements Order and that order regulates with whom the child should live and who is resident with the person named in the order.
Those in receipt of allowances must agree that they will inform Derby City Council immediately of any significant changes in the family set out below:
Where information has been given orally, the carers must confirm the information in writing within 7 days.
Derby City Council must be informed of the following:
- The child or young person ceases to have a home with the person who holds the Child Arrangements order;
- The child or young person ceases full time education or training and commences employment;
- The child or young person qualifies for welfare benefits in his/her own right;
- Change of address;
- The child or young person dies;
- There is a change in financial circumstances or the financial needs or resources of the child and/or the carer which may affect the amount of financial support payable to the carer.
The Locality, reception service or Connected Persons team must notify the 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 Finance Team if they are made aware that the arrangement has ended and the child is no longer living with the holder of the order, so that payments can be stopped.
The Finance Team must alert the Connected Person's Team if they receive information from the holder of the order 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 Child Arrangements Orders are unable to live with their parents due to Child Protection concerns, it is therefore important that the re caption service is made aware that the child is no longer living with the holder of that Order.
10.8 When a Child Arrangement Allowance is not granted
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 Head of Service.
The Local Authority remains required to:
- Safeguard and promote the welfare of children within their area who are in need;
- So far as is consistent with that duty, to promote the upbringing of such children by their families, by promoting a range and level of services appropriate to these children's needs. Children Act 1989 S.17.
The Local Authority may consider a settling in payment or discretionary payment. Eligibility for these Section 17 payments will be decided by the relevant manager.
11. Foster Carers Applying for a Child Arrangements Order
Where foster carers are applying for a Child Arrangements Order (which regulates with whom the child should live), in respect of a child they have been fostering, and Derby City Council supports this plan, the carers will ordinarily receive an 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 arrangement 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 the child. This will not be subject to a means test. This should be reviewed annually.
Christmas, birthday and holiday allowances will cease at the point that the order is made.
Any enhancements that had been paid due to the complexity of the 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 Connected Person's team, 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.
If the applicant is a foster carer from an independent fostering agency placement, they would not be financially disadvantaged by gaining a child arrangement order in respect of the child provided it regulates that the child should live with them. However, any State benefits that the carers are eligible to claim as the holders of such an order for the child will be deducted.
In special circumstances a request for a higher payment may be considered by the Head of Service 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:
- Such an enhancement was previously paid as part of the fostering allowances;
- The child's specific care needs require additional financial support.
12. Children Not Known to Derby City Council
If a child is normally resident in another local authority and has been placed with a family in Derby 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 Derby 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.
13. Child Protection Concerns
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 the Derby and Derbyshire Safeguarding Children Boards' Procedures.