Welcome!

Nigel Priestley: Senior Partner

Ridley & Hall

Huddersfield

www.ridleyandhall.co.uk

Are Special Guardianship

Orders a minefield worth crossing?

Care Order

or

Special

Guardianship Order?

Advantages of a Care Order LA Duty to promote welfare of the child and

contact Carers are not “alone” with damaged

children Buffer at contact Access to CAMHS “Looked after” status –Education and school

choice Non-means tested annually up-rated

Fostering Allowances Post 16/18 provision for child

Disadvantages

Ongoing involvement of Local Authority “Stigma” of being a “looked after” child LA’s can – do remove settled children LA’s unilaterally vary support plans

Care Planning

So when Childrens Services ask Legal Services to start Care Proceedings but really want an SGO…..!

Must a Carer accept an SGO? See Re K (Care Order or Residence Order)

1995 1 FLR 675

1. Held (1) A CO could have some financial advantages for grandparents and indirect advantages for the children

(2) “It was difficult to conceive of circumstances in which it would not be wrong in principle to oblige

grandparents, who had not applied for and did not desire a RO, to accept such an order”

For RO – Read SGO?

Should I be tempted by an SGO?

Special Guardianship orders came into force in December 2005

Intended to fill the gap between Adoption at one end of the spectrum ROs/long term fostering at the other end

As part of the Assessment process an assessment for support is carried out

Special guardianship Guidance

Don’t read the Regulations without reading the Guidance issued by Department for Education and Skills

This is s7 Local Authority Social Services Act 1970 (LASSA) Guidance – it’s to be complied with by LAs “unless local circumstances indicate exceptional reasons”

Legal FrameworkRelevant provisions for financial

support are s14F Children Act 1989 The Special Guardianship

Regulations 2005 (SI2005/1109) Reg 6 address the circumstances

when support is payable Reg 13 sets out the financial

considerations the LA must take into account

What does this mean in practice? The assessment is a wide ranging

assessment that covers health education as well as finance

The regulations governing assessment are extremely detailed

The result should be a plan that is clear – Reg. 14 “The plan should be set out in writing in a way everybody affected by it can understand

Someone has to monitor the provision of the services in the plan

Special Guardianship

Advantages

Gives Parental Authority Ends Statutory role of LA Can claim benefits In theory, provides for support

package financially, educationally financially

Disadvantages of SGO’s

Does it in practice prevent further court proceedings?

Who pays then for legal representation? You are on your own – child no longer

“looked after” How does holder enforce a Support

Plan? Significant issues re Financial Support

But what SGO Allowance will be paid?

SGO Allowances are:

Means tested Subject to Annual review Like Fostering Allowances, they are not

regarded as family income for the calculation of means tested benefits and for tax

And can be significantly lower

In practice what can happen?

Q. What happens when a District Judge, a Local Authority, an unrepresented Kinship Carer and a hard-pressed Children’s Guardian get together on a Discharge of a Care Order?

A. A reduction in payment from £317 per fortnight to £107.30!

For Foster Carers it can lead to financial loss – loss of skill payments in the long term, loss of loyalty payments.

The Problem for Kinship Carers

There is a shortage of over 10,000 Foster Carers There is an increasing reliance on Kinship Carers

BUT…

Has your LA actually got a policy approved by the Cabinet setting out the level of the Special Guardianship Allowance?

When was it approved? Have you ever asked to look at it? How has the Allowance been set?

What should Local Authorities be Paying?

Para 65 of the Guidance says“In determining the amount of any ongoing financial support, the Local Authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The Local Authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the Local Authority would consider paying the family.”

Why is this important?

Consider B v Lewisham LBC [2008] EWHC 738

Lewisham is the leading case on SGO Allowances

It was decided by Black J Lewisham did not appeal They applied its principles

across the board They had tied the level of the

SGO Allowance to the level of the Adoption Allowance

What did Lewisham say? Lewisham argued that the phrase

“should have regard to” did not mean “must be the same as”

submitted that its Special Guardianship Support Scheme was properly tied to the Adoption Support Scheme which was nearly identical in terms.

During the hearing Her Honour Judge Black noted paragraph 52 of the Adoption Support Guidance was almost identical in terms to paragraph 65 of the Special Guardianship Guidance.  

They argued… that there was a distinction between a

foster carer caring for a “Looked After Child” and a child where the carer held Parental Responsibility and was making a permanent commitment to a specific child.

It was, therefore, argued that this was more like adoption so it set it the SGO allowance at a figure equivalent to the adoption support rates.

Lewisham said that they had had regard to the fostering rates and they then made “appropriate“adjustments.

And Black J said

that the terms of paragraph 65 did not entitle the Local Authority to disregard fostering rates although they could take into account some differential expenses.

she was not convinced that fostered children are more expensive to care for than those under Special Guardianship.

She ruled that it was not open to the Local Authority to simply disregard fostering rates.

And added

that the Local Authority was not free to dictate that some types of placement would carry a significant financial disadvantage in comparison with others

or that they would impose a financial strain on a Carer such that they would be forced to use another type of placement.

Which meant…

Para 65 required a close relationship between Fostering Allowances and SG Allowances

Core Allowance plus enhancements forms the maximum Special Guardianship payment

And this does not include the transitional period for foster carers

remuneration Followed in Barrett v Kirklees MC

[2010] EWHC 467 (Admin)

So this means what? If your LA scheme doesn’t use the

fostering allowance as a starting point, it may be unlawful

Where a carer is offered a SGO allowance significantly different to that they would have received as a foster carer it may be suspect

BUT…

There are still many local authorities that have not applied the Lewisham and

Kirklees judgements

Fostering Network says…Minimum weekly allowances for fostered children,

from April 2011 (2010 rates in brackets)Outside London: Age 0-4: £131.47(£125.09) Age 5-10: £149.76 (£142.49) Age 11-15: £186.43 (£177.38) Age 16+: £226.74 (£215.74)

In London:– Age 0-4: £154.30 (£146.81)– Age 5-10: £175.90 (£167.36)– Age 11-15: £219.05 (£208.42)– Age 16+: £266.01 (£253.10)

Out of borough placements

s14A(7) – written notice of Intention to apply for an SGO must go:

(a) if a ‘looked after’ child to that local authority

(b) otherwise to LA in whose area individual is ordinarily resident

There are no short cuts!

s14A(8) imposes on any local authority who receives a notice a duty to prepare a prescribed report for the court.

s14A(11) provides: “the court may not make an SGO unless it has received a report (under (8))

So which authority is responsible?

O v L I and Orkney Island Council [2009] EWHC 3173 (Fam)

Where a previously ‘looked after’ child to Orkney was placed in Cambridgeshire

And…

GC v LD & Others [2009] EWHC 1942 (Fam)

On which authority pay allowances when a ‘looked after’ child becomes subject to an Interim Residence Order

Even then things go wrong

What happens to an agreed SGO Support Package when an application is made for an SGO…

But the judge decides that a Residence Order is appropriate?

The answer may be Judicial Review when the LA reneges on its plans!

Is the child ‘looked after’?

Its important!

Regulation 11 – Special Guardianships Regs. 2005 provides:

a ‘looked after’ child must be assessed for support services

a child (where not looked after) may be assessed

- its discretionary

‘Looked after’ children

- the new battleground!

With budgets under pressure…

D v SouthwarkAppeal by a local authority against a decision that they had to pay for the

child's accommodation and maintenance while she was being

looked after by a friend of the father. Appeal dismissed.

The local authority had argued in the original judicial review that it was

under no duty to care for child as they had merely acted as facilitators in

creating a private fostering arrangement.

But the CoA said…In rejecting their appeal, Smith

LJ conceded that there might be times when a local authority could 'side-step' their duties in this manner and that a private arrangement need not involve

them. However in this case the local authority had played a major role in the settling the child and so were exercising

their duties under s 20 of the Children Act.

This decision has been followed in:

A (R on the application of) v Coventry City Council [2009] EWHC 34 (Admin)

SA v KCC [2010] EWHC 848 (Admin)

- but Kent have appealed!- and the Department for Education have intervened

The Battle lines are drawn.

As the cuts bite…

Who will support Special Guardians and Kinship Carers in general?

If an SGO is made:

Will allowances come under strict scrutiny? Will holders of SGO’s have the same

experience of Adopters with Post Adoption Support?

Nigel Priestley: Senior Partner

Ridley & Hall

Huddersfield01484 538421

Nigel.priestley@ridleyandhall.co.uk

http://uk.linkedin.com/pub/nigel-priestley

Nigel Priestley

nigelpriestley