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10th May 2024

Maria Wright explores kinship care arrangements in eprivateclient

Maria Wright explores kinship care arrangements in eprivateclient
Maria Wright
Maria Wright
Senior Associate

Maria’s article was published in eprivateclient, 10 May 2024, and can be seen here.

Strengthening 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. 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 for children who may otherwise be placed with strangers in care.

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 2020 study of grandparents’ experiences of kinship care referred to their experiences of having to ‘roll back the years’ – often playing a vital role in repairing the harm children have suffered in their early childhoods (Hingley-Jones et al (2020).

Recently, the government has published a kinship care strategy – ‘Championing Kinship Care’. 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. It 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.’

Whilst this is a step in the right direction in terms of recognition and potential resourcing, there are still large numbers of informal kinship care arrangements where carers do not have parental responsibility for the children they are caring for.

However, for kinship carers who seek to formalise their care arrangements, the prospect of initiating court proceedings and undergoing assessments may be daunting. That said, it can be important for a kinship carer to have a legal right to make decisions about the child, and to protect them from harm. There are various options for kinship carers to formalise arrangements, including Child Arrangements Orders and Special Guardianship Orders, and receiving advice about advantages and disadvantages of formalisation is of vital importance.

For example, 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 and 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 Arrangements 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. An applicant for a Special Guardianship Order must give three months’ notice to their local authority prior to making the court application 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. Ensuring that kinship care arrangements are properly supported can be essential to ensure that kinship care arrangements do not break down.

Going forward, 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 already ‘fully engaged in active projects’. 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.