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16th May 2024

Maria Wright discusses the complexities of formalising kinship care arrangements in Today’s Family Lawyer

Maria Wright discusses the complexities of formalising kinship care arrangements in Today’s Family Lawyer
Maria Wright
Maria Wright
Senior Associate

Maria’s article was published in Today’s Family Lawyer, 16 May 2024, and can be seen here.

The complexities associated with formalising kinship care arrangements: Legal solutions to promote children’s best interests

Children who are cared for by relatives other than their parents are often referred to as living in kinship care arrangements. The 2021 census found that there were 121,000 children in England and Wales living in some form of kinship care. Significantly more children live in a kinship care arrangement than are in the care system, or who have been adopted.[1] The 2020 report by the Kinship Care Taskforce referred to kinship case as the ‘unacknowledged third pillar of the children’s social care system’ – providing homes and care for children who may otherwise be placed with strangers in care. [2]

Most kinship carers in England and Wales are grandparents who step in to care for children at times of crisis. Carers in these circumstances may not have had time to fully assimilate what this will mean for them and the support they might need. A study by Hingley-Jones and others (2020) refer to grandparents in this situation as having to ‘roll back the years’ – repairing the harm children have suffered in their early childhoods. [3] There is a wealth of research about the challenges and adversities experienced by kinship carers and the children they care for, children who have often experienced trauma in their early years and who may require reparative care, additional emotional support.

Recently, the government has published a kinship care strategy – ‘Championing Kinship Care’ – which aims to provide better support and information for kinship carers. The strategy was built off the back of the review of social care, ‘Stable Homes, Built on Love’, which identified the vital role kinship carers play, and the better outcomes for children placed in kinship care, subject to those arrangements being properly supported. The government’s kinship care strategy envisages that by ‘receiving the right support at the right time, kinship carers will be empowered to provide care for children that allows them to thrive.’[4]

Whilst the kinship care strategy is a step in the right direction in terms of recognition and potential resourcing, there are still large numbers of kinship carers who care for children informally, meaning that they do not have parental responsibility for the children they are caring for.

One key challenge for kinship carers may be taking the steps to legally formalise their care arrangements through the family justice system. This will often involve initiating court proceedings and may also involve undergoing assessments – a step which may be daunting particularly if a carer has looked after a child for many years. Research has established that black and Asian children are less likely to be placed in formal kinship care arrangements, and there is a need for further research to understand the reasons behind this. However, it can be important for a kinship carer to take steps to ensure that they have a legal right to make decisions about the child, and to protect them from harm. For kinship carers, receiving support and advice in relation to these options is of vital importance, particularly as there are various options which give rise to different legal statues and entitlements to support.

For example, some kinship carers may need parental responsibility for the children they are caring for. Parental responsibility can be delegated to a kinship carer, but this will not be an appropriate solution in all cases. Parental responsibility refers to the ‘rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’ Without formal parental responsibility, a kinship carer may find themselves in a position where they have no legal status in relation to the child to make decisions about their welfare including their medical and educational care.

Court orders may assist kinship carers in navigating the dynamics of the relationship between other holders of parental responsibility e.g. the child’s parents. They may make provision for the time the child will spend with their parents but provide a legal recognition that a child lives with them. A Special Guardianship Order will give kinship carers an elevated parental responsibility which may be exercised to the exclusion of any other holders of parental responsibility.

Court orders can provide security and certainty for children who may move across national borders. If a child is removed from the care of a kinship carer to another country, and that kinship carer does not have parental responsibility, it may be very difficult to secure the child’s return and establish that the carer had rights of custody for the purposes of the 1980 Hague Child Abduction Convention (even if they have been caring for the child for many years). Similarly, a Child Arrangement Order or a Special Guardianship Order made in favour of a kinship carer allows them to remove the child from the UK for up to one month (in the case of a Child Arrangements Order) or up to three months (in the case of a Special Guardianship Order) without the consent of any other holders of parental responsibility.

It may be possible for kinship carers to access support from their local authority for the child they are caring for, particularly if they are seeking to apply for a Special Guardianship Order. An applicant for a Special Guardianship Order must give 3 months’ notice to their local authority prior to making the court application. This is to enable the local authority to undertake an assessment and make a recommendation as to whether an SGO should be made. As part of this, the local authority may assess the child’s need for special guardianship support services, which can include financial support in some circumstances. Where a child is not ‘looked after’ by a local authority before the SGO is made, the local authority has a discretion over whether to undertake an assessment of the child’s needs for these services. Ensuring that kinship care arrangements are properly supported can be of vital importance in avoiding the breakdown of those arrangements and ensuring that children’s needs are met.

As can be seen, there are complexities associated with formalising kinship care arrangement which may be daunting for carers. The Kinship Care Strategy suggests that work will be done with the Law Commission to ‘review legal orders and statuses for kinship carers…understanding how we can both simplify and streamline these’. However the Law Commission website suggests that its resources are ‘fully engaged in active projects’ and it is unclear when this will happen. In the meantime, charities such as Kinship and the Family Rights Group operate as a foundation supporting this ‘third pillar of the social care system’ through the provision of guidance and support for kinship carers. Until there is a properly resourced system for formalising kinship care arrangements, children may continue to live with relatives who do not have parental responsibility for them, potentially exposing them – and their carers – to unsupported and unstable arrangements which do not fully promote their best interests.

[1] First Thought Not Afterthought: Report of the Parliamentary Taskforce on Kinship Care (2020)

[2] Ibid 7

[3] Hingley‐Jones, H., Allain, L., Gleeson, H. and Twumasi, B., 2020. “Roll back the years”: A study of grandparent special guardians’ experiences and implications for social work policy and practice in England. Child & Family Social Work, 25(3), pp.526-535.

[4] Championing kinship care: the national kinship care strategy ( p13.