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2.1.5 Residence Order/Child Arrangements Order Procedure

SCOPE OF THIS CHAPTER

Note: from April 2014, Residence Orders and Contact Orders were replaced by Child Arrangements Orders. Prior to April 2014, a Residence Order was a Court Order made under section 8 of the Children Act 1989, settling the arrangements as to the person with whom a child was to live.

This procedure should be read in conjunction with the Permanence Planning Strategy.

For further information please refer to the Residence Order/Child Arrangements Order Allowances - Children's Financial Review Procedure.

AMENDMENT

This chapter has been updated in February 2015 to reflect the name change from Head of Service to Children's Service Manager, Regulated Services and the effect of the Children and Families Act 2014 with respect to ‘Child Arrangements Orders’.


Contents

1. Introduction
2. Who May Apply
3. Parental Responsibility
4. The Circumstances in which a Child Arrangements Order may be Made
5. Approval of Child Arrangements Order for Looked After Children
6. Process
  6.1 Contact
7. Report to the Court
8. Discharge or Variation of Residence Order/Child Arrangements Order
9. Residence Order/Child Arrangements Order Allowances
  9.1 General Principles
  9.2 Residence Order / Child Arrangements Order Allowances
  9.3 If an Allowance is Payable
  9.4 Payment and Review
  9.5 Notifications
  9.6 Foster Carers Applying for a Child Arrangements Order
  9.7 Child Arrangements Order Allowances to Prevent a Child Becoming a Looked After Child (LAC)
  9.8 Residence Order / Child Arrangements Order Allowances where Applicant is not a Former Foster Carer of the Child
10. Matters to be Considered in Determining Eligibility for a Child Arrangements Order Allowance
11. Calculation of Allowances Payable
12. Residence Order / Child Arrangements Order Agreement
13. Review of Residence Order / Child Arrangements Order Allowances
14. Children not Known to Lincolnshire County Council
15. Child Protection Concerns


1. Introduction

Residence Allowances were introduced as part of the Children Act 1989 and the purpose of them was to enable a child to be legally cared for by another family where otherwise financial constraints would prevent this.

Criteria for payment of an allowance

Lincolnshire County Council will only pay Residence Order/Child Arrangements Order allowances in respect of children

  • Who immediately prior to the Residence Order/Child Arrangements Order being made, were looked after by the Local Authority;
  • Where a child is subject to a Residence Order/Child Arrangements Order as part of a disposal of Care Proceedings; and
  • The local authority supports the placement of the child with the person(s) taking the Child Arrangements Order.
In all situations where Lincolnshire County Council is involved in care proceedings, consideration should be given as to whether the child could more appropriately be placed with a relative or friend as an alternative to being placed with foster carers, pending the final hearing. If permanency is agreed as the Care Plan consideration should be given to placing the child with a relative or friend under a Child Arrangements Order or Special Guardianship Order as an alternative to placing the child in care or for adoption.


2. Who May Apply

Applications for Child Arrangements Order may be individual or joint. Joint applicants do not need to be married. Applicants must be 18 or over.

The following people may apply:

  1. A parent or guardian;
  2. A step-parent who has treated the child as 'a child of the family;
  3. Any other person who has obtained the consent of all those with parental responsibility;
  4. Any person who, if the child is in care, has the consent of the local authority;
  5. Any person who has obtained the permission of those who already have a Residence Order/Child Arrangements Order for the child;
  6. Anyone who the child has lived with for at least 3 years;
  7. 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:

  1. The child him/herself if the court is satisfied that he/she has sufficient understanding to make the application;
  2. Any person with a genuine interest in the child's welfare.


3. Parental Responsibility

The holder of a Residence Order/Child Arrangements Order has 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. The parents 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 three months;
  • The sterilisation of a child.


4. The Circumstances in which a Child Arrangements Order may be Made

The Court may make a Child Arrangements Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.


5. Approval of Child Arrangements Order for Looked After Children

Where a child is a Looked After Child, the decision to support the making of a Child Arrangements Order should be taken at the Looked After Children Review and be endorsed as part of the child's permanence plan. The manager of the relevant Children's Team must approve the Child Arrangements Order option. 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 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 a Child Arrangements 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, Lincolnshire County Council will consider whether the application for a Child Arrangements Order by a relative or friend will avoid the child being a LAC and the process above will need to be followed.

The intending applicant will need to make the application to court, but if Lincolnshire County Council supports the plan in a) or b) above, the child's social worker will provide information and guidance.


6. Process

Processes for assessing and approving applicants who seek Child Arrangements Order in respect of children who are LAC or who are at risk of becoming a Looked After Child should be as rigorous as arrangements made for assessing and approving other alternative carers.

In reaching the decision to approve and support a person applying for a Child Arrangements Order, 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.

If the application is being made in support of a child who is a LAC and Lincolnshire County Council supports the application, financial assistance may be granted to pay for the application. In these cases the child's social worker must seek permission from Children's Service Manager - Regulated Services.

When an application for a Child Arrangements Order is requested or considered for a LAC, the child's social worker will:-
  • Provide full information in writing to the prospective applicants which will explain the effects a Child Arrangements 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 (financial support does not apply if the child is to live with a parent or step-parent);
  • Ensure information is given in a way that takes into account any special needs of those people being interviewed, e.g. use of interpreter, large print.

The allocated social worker should record the information on the child's electronic record. Court timescales will need to be clarified. A Social Care 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 (see Section 11, Calculation of Allowances Payable) of the child, parents and the applicant. The information gathered will form a Social Care Assessment.

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, and other statutory checks undertaken for the assessment.

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 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 should be seen to allow them the opportunity to express their wishes and feelings.

The child needs to know and have an understanding of his/her birth origins as well as to be aware of the implications of Residence Order/Child Arrangements Order. She /he should be seen alone if the child is old enough (e.g. over 5 years) and 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.

6.1 Contact

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. However there may be child protection concerns and consideration may need to be given to on-going supervisory arrangements, how able the applicants are to supervise contact and ensure the child's safety. A recommendation regarding contact may be made to the Court.


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 and to Legal Services for approval.

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 Section 7 or a Section 37 report from the Local Authority. If the child is already known to Lincolnshire County Council, the report should be completed by the child's social worker. The author of the report must attend the court with the applicants.

Upon the making of an Order the child's social worker will record the Child Arrangements Order or Special Guardianship Order as a new Legal Status in the Legal section of MOSAIC.


8. Discharge or Variation of Residence Order / Child Arrangements Order

A Residence Order / Child Arrangements Order can be varied or discharged on the application of:

  • Holder of the Residence Order / Child Arrangements Order;
  • The local authority in whose name a Care Order was in force before the Residence Order / Child Arrangements Order was made;
  • Anyone with a Residence Order / Child Arrangements Order in respect of the child before the current Residence Order / Child Arrangements 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 Residence Order / 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 Residence Order / 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 Residence Order / Child Arrangements Order, vary or discharge the Order in the absence of an application.


9. Residence Order/Child Arrangements Order Allowances

9.1 General Principles

Residence Order Allowances were introduced as part of the Children Act 1989 and the purpose of them was to enable a child to be legally cared for by another family where otherwise financial constraints would prevent this. They were superceded in April 2014 by the Children and Families Act 2014. The Orders 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. (This is an amendment by Section 37 of The Children and Young Person's Act 2008 to the Children Act 1989 (Section 9(6) - duration of Residence Orders where this type of Order is in force).

Residence Order / Child Arrangements Order allowances (see Residence Order/Child Arrangements Order Allowances - Children's Financial Review Procedure) are considered where there are financial or support needs in respect of a child which will be recognised through the payment of an allowance. Financial support from Local Authorities must compliment and not duplicate financial support available through benefits and tax credits systems.

9.2 Residence Order / Child Arrangements Order Allowances

Lincolnshire County Council will only pay such allowances in respect of children:

  • Who immediately prior to the Residence Order / Child Arrangements Order being made, were Looked After by the Local Authority;
  • Where a child is subject to a Residence Order / Child Arrangements Order as part of a disposal of Care Proceedings;
  • Where a child would otherwise have to be Accommodated by the Authority; and
  • The local authority supports the placement of the child with the person(s) taking the Residence Order / Child Arrangements Order;
  • The Local Authority will consider discretionary payments for carers with a Residence Order / Child Arrangements Order who are experiencing financial problems. This is subject to a financial assessment.

The general principle should be that where a person/s is seeking to make a permanent and substantial commitment towards a child by means of a Child Arrangements Order, this commitment should be taken to include a willingness to meet costs associated with such a commitment.

The amount of the Residence Order / Child Arrangements Order should:

  • Be calculated individually;
  • Be assessed by completing a 'Residence Order / Child Arrangements Order Financial Support Means Test';
  • This is assessed only via the DfE calculator;
  • Not include any reward element;
  • Take into account the financial resources of the Residence Order / Child Arrangements Order holder including any financial benefit arising from the placement of the child i.e. Child Benefit, Tax credit;
  • Take into account the financial needs /resources of the child, if any, excluding mobility/attendance allowance;
  • Be calculated using the equivalent age related fostering allowance rate as the starting point for the calculation, at the age of the child when the order being made.

The payment of a Residence Order / Child Arrangements Order allowance may affect receipt of benefits and advice should be sought of the Inland Revenue.

It is not the function of the Lincolnshire County Council to accept responsibility for income maintenance.

There are no leaving care services available to young people who were subject to a Residence Order / Child Arrangements Order, unless they are Looked After beyond 16 years of age

9.3 If an Allowance is Payable

Once a decision has been made that an allowance is payable, you would be informed in writing of the details:

  • How the decision was reached;
  • The amount of the allowance;
  • The date of the first payment;
  • The method and frequency of the payment;
  • The arrangements for review, variation and termination of the allowance and the requirement for full financial detail to be provided;
  • Your responsibility to notify us of any changes in your circumstances or those of the child.

The allowance will be fixed at the relevant rate at the point of the order being made and will not rise in line with any annual increases. It will be paid 52 weeks of the year and is to cover all related costs of caring for the particular child.

9.4 Payment and Review

Payment commences as from the date of the Residence Order / Child Arrangements Order, or if the child is placed after this date, from date of placement.

The allowance is reviewed annually and this is to determine that the allowance is still appropriate.

The Directorate will contact the family with the Residence Order Allowance / Child Arrangements Order to confirm that the arrangement is still in existence.

Lincolnshire County Council will review allowances payable and in order for allowances to continue up to 18 years of age and in certain circumstances, we will need to confirm that the young person:

  • Continues to reside full time in your care - up to 18 years;
  • Is not in receipt of any benefits other than EMA (or equivalent) for training/education in their own right.

And in addition that the financial circumstances of the carers in receipt of the allowance remain unchanged

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.

Payment of the Residence Order Allowance / Child Arrangements Order will automatically end when:

  • The child ceases to live with the family with the Residence Order / Child Arrangements Order;
  • Reaches 18 years of age. For young people in employment a contribution to the residence order allowance will be considered as part of the annual review of the allowances.

9.5 Notifications

The Residence / Child Arrangements Order allowance is payable in respect of the child who is subject to a Residence Order / Child Arrangements Order who is resident with you. If your circumstances alter so that this is no longer the case you must notify Lincolnshire County Council of any significant changes in the family:

  • The child ceases to have a home with them;
  • The child ceases full time education or training and commences employment;
  • The child qualifies for welfare benefits in his/her own right;
  • The child attains the age of 18 and is not in education or training;
  • Change of address;
  • The child dies;
  • There is a change in financial circumstances or the financial needs or resources of the child which may affect the amount of financial support payable to the adoptive parent.

9.6 Foster Carers Applying for a Child Arrangements Order

Where foster carers are applying for a Child Arrangements Order, in respect of a child they have been fostering, and Lincolnshire County Council supports this plan, the carers will receive a Means tested Residence Order / Child Arrangements Order allowance until the child is 18, minus Child Benefit and Child Tax Credits that become payable to the foster carer on obtaining a Child Arrangements Order.

9.7 Child Arrangements Order Allowances to Prevent a Child Becoming a Looked After Child (LAC)

Lincolnshire County Council has discretion under Section 17 of The Children Act 1989 to make payments, to support a placement which prevents a child becoming a LAC. Child Arrangements Order may be sought by a member of the child's family or anyone the child has lived with for a period of one year before the order is made.

In cases where the child is not a LAC and a prospective applicant for a Child Arrangements Order makes an enquiry about support services, this will be the subject of an Social Care Assessment by the FAST team. If it is felt that without financial assistance, the child would be likely to become a Looked After Child, a request to undertake a financial assessment can be made to Children's Service Manager - Regulated Services.

9.8 Residence Order / Child Arrangements Order Allowances where Applicant is not a Former Foster Carer of the Child

Payment of a Child Arrangements Order Allowance is at the discretion of Lincolnshire County Council and paid in line with the criteria laid out in Section 9.2, Residence Order Allowances / Child Arrangements Order. The allowance is paid upon the making of an Interim Order or Child Arrangements Order following an assessment.


10. Matters to be Considered in Determining Eligibility for a Child Arrangements Order Allowance

Applicants should be informed that, in exceptional circumstances, if it can be demonstrated that additional costs are incurred to meet the special needs of a child, the allowance may be increased but it may not exceed the basic fostering allowance paid to Lincolnshire County Council foster carers.

The decision whether applicants for a Child Arrangements Order and the payment of an allowance is required in order to maintain the placement will be based on the following criteria:-

  • Needs of the child/ren, including age, number of children placed, assessed cost of caring for the child/ren;
  • Information that all State Benefits have been explored and applied for where appropriate;
  • All legal steps to obtain parental contribution have been explored.

Applicants for Child Arrangements Order should be helped to access any benefits to which they are entitled; this includes Child Benefit and Child Tax Credit which has been or can be claimed for that child.

The local authority must also take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of being granted a Child Arrangements Order in respect of a child. Financial support cannot duplicate any other payment available to the holder of the Child Arrangements Order.

Financial support to applicants of Child Arrangements Order (where the child in question is the subject of a plan approved by the local authority) must be considered and approved by the Children's Service Manager, Regulated Services.


11. Calculation of Allowances Payable

The Residence Order / Child Arrangements Order allowance is worked out using the standardised DfE means test, taking into account:-

  • The carer's financial resources;
  • Cost of looking after the child minus Child Benefit and Child Tax Credit which has been or can be claimed for that child;
  • The child's financial needs and resources.

The level of financial support will be calculated by initially by Mouchel Assessment Team, and finally by the Children’s Financial Review (CFR).

The Children’s Service Manager, Regulated Services will inform the child's social worker, via the Children’s Financial Review Team of the decision to make the payment.

The Children's Service Manager, Regulated Services should write to the holder or applicant of the Residence Order / Child Arrangements Order setting out the amount of financial support agreed by the Children's Service Manager, Regulated Services 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;
  • Your responsibility to notify us of any changes in your circumstances or those of your child.

If there is an on-going plan already in place, the financial need would be added to the current plan on MOSAIC and the service provided to meet this need would be "Residence order -financial support", when all the other needs are met.

If the case will remain open just 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 "Residence order - financial support". The Plan will be recorded in the MOSAIC by the Lead Social Worker before their involvement is completed. This is to remain open to Children's Financial Review Team as the key team where there is no Social Worker involvement.


12. Residence Order / Child Arrangements Order Agreement

Those in Receipt of Residence Orders / Child Arrangements Order are to agree that they will inform Lincolnshire County Council immediately of any significant changes in the family:

  • The child ceases to have a home with them;
  • The child ceases full time education or training and commences employment;
  • The child qualifies for welfare benefits in his/her own right;
  • The child attains the age of 18 and is not in education or training;
  • Change of address;
  • The child dies;
  • There is a change in financial circumstances or the financial needs or resources of the child which may affect the amount of financial support payable to the adoptive parent.
Where information has been given orally, the adoptive parents must confirm the information in writing within 7 days


13. Review of Residence Order / Child Arrangements Order Allowances

Payment of Residence Order / Child Arrangements Order allowances will be reviewed on an annual basis. Please refer to Residence Order/Child Arrangements Order Allowances - Children's Financial Review Procedure for detail.


14. Children not Known to Lincolnshire County Council

If a child is normally resident in another local authority and has been placed in Lincolnshire to prevent the child becoming a Looked After Child, the placing authority should normally have make the decisions about financially supporting the placement and be responsible for supporting the placement. Generally such agreements should have been made before placement.


15. 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 to the FAST team.

End