Are you looking after grandchildren, nieces and nephews or other children in your family? I am not referring to the odd babysitting or for a couple of hours after school – I am talking about children who are living under your roof because they are unable to live with their own parents. You might be looking after children because they can’t live at home because of fears about their safety or they weren’t being cared for properly.
There are many grandparents, aunties and uncles and even older siblings who are stepping forward to care for children when their own parents can’t. After all – that’s just what families do for each other.
But are you getting all the support and help that you are entitled to? Or have you just been getting on with it because that’s just what families do for each other?
Did you know that you may be entitled to help and financial support from social services if a social worker asked you to look after the children and to keep them in your care.
Social Services have an obligation to provide accommodation for any children whose parents are unable to provide them with suitable care or a home. All children deserve to be safe and to be cared for properly and if this can’t be with their parents then the next best place is with their extended family.
If you have come forward and opened your home to children having been asked by social services to help, this enables the Local Authority to fulfil its legal duty to accommodate those children by placing them with you. This situation would classify those children as being “looked after.” This is a very important definition because if it applies to children in your care then you would be considered as a family and friends foster carer meaning that you should have received an offer of financial support from the Local Authority. A family and friends fostering allowance should be paid to you as recognition of the financial consequences of your position. Are you receiving any payment?
But this is important - the Local Authority is not obliged to provide financial support if there is a “private arrangement” between you and the parents that the children should live with you. There are many families who have such arrangements and which haven’t involved social services. The agreement is just between the family and no-one else. If this is you then you should be looking at your legal position for the children and also securing any additional payments from the government in terms of child benefit and other additional money such as tax credits. The presence of a Court Order confirming that the children live with you will help in any claim for additional payments.
The problem comes when there is a blurred line between what is said to be a “private arrangement” and the children being classed as “looked after”. One entitles you to support from social services the other doesn’t. This can lead to disagreements between carers and the Local Authority about how and why children found themselves placed within their extended family and whether they are actually “looked after” children. These arguments have come before the court as families have argued about entitlement to support from social services which has resulted in guidance being given to help identify children who should fall under the category for that support. The Local Authority will have certain duties towards families including the duty to provide financial support if (a) they played a major role in making the arrangements for the children and (b) that those arrangements were not made directly between the family members themselves.
What has clearly been said is that social services must be explicit with a family including giving clear information about financial arrangements and if it fails to do this then a court is likely to conclude that the Local Authority is making the placement rather than it being a private arrangement. It must be right that you can only give informed consent to accept a child into your home on a private fostering arrangement if you are in receipt of all the relevant and important information that you need to make such a big decision. If there has been no discussion with you about the legalities, the options or the financial arrangements then you could have a complaint. How can you understand your entitlements, your rights or what you might expect?
When you were asked whether you were able to care for the children were you given clear advice and information about your legal and your financial position? Were you recommended to get good legal advice so that you can make the best decisions for the children and your family. If not – you may need to do this now.
What about your legal position with the children? This is really important. You are probably caring for them out of the goodness of your heart but you are likely to have no legal rights over them. You have no right to make decisions about their day to day care or upbringing even though, in reality, you are probably doing this. If they need medical treatment you have no rights to agree to it – which will cause a real problem if you find it difficult to get hold of their parents or to get their cooperation. You might have an emergency situation on your hands but their parents are on the only people able to give consent.
If it is anticipated that these children are going to be with you for the foreseeable future then you are going to need some legal rights to care for them properly and to be acknowledged as their carer. Your options are court orders. You could have a Child Arrangements Order confirming the children live with you and which would see you sharing legal rights with their parents, or a Special Guardianship Order which would give you grater rights. Adoption is a third option but is now extremely rare following the introduction of Special Guardianship Orders. These were specifically brought in for children who were anticipated to remain in the care of extended family members and which give a greater degree of certainty, stability and permanence than a Child Arrangements Order. The Special Guardianship Order may also entitle you to ongoing practical and potentially financial support from social services by way of a Special Guardianship Allowance.
Our experience is that there are lots of families who are stepping in to look after children and it is not unusual for the adults to have little information about their positions generally. This may well be your situation and there could be practical and financial support available for you but you just don’t know it. Take advice if only at an initial meeting – it may be worth it if it leads you to getting just a little extra support.
By family and divorce solicitor, Mandy Rimmer
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