2.1.6 Residence Order Procedure |
SCOPE OF THIS CHAPTER
This procedure should be read in conjunction with the Permanence Planning Procedure.
For further information please refer to the Residence Order Payment Review Procedure and the Residence Order Guidance.
AMENDMENTS
This chapter was updated in June 2011 and should be re read.
Contents
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 allowances in respect of children
- who immediately prior to the residence order being made, were looked after by the Local Authority
- where a child is subject to a Residence 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 residence order
2. Who May Apply
Applications for Residence Orders may be individual or joint. Joint applicants do not need to be married. Applicants must be 18 or over.
The following people may apply:
- A parent or guardian
- A step-parent who has treated the child as 'a child of the family
- Any other person who has obtained the consent of all those with parental responsibility
- Any person who, if the child is in care, has the consent of the local authority
- Any person who has obtained the permission of those who already have a residence order for the child
- Anyone who the child has lived with for at least 3 years
- A local authority foster parent if the child has lived with them for at least 1 year immediately proceeding the application to court
The following people may apply with the leave of the court:- The child him/herself if the court is satisfied that he/she has sufficient understanding to make the application
- Any person with a genuine interest in the child's welfare
3. Parental Responsibility
The holder of a Residence 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 Residence Order may be Made
The Court may make a Residence 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 Residence Order for Looked After Children
Where a child is a Looked After Child, the decision to support the making of a Residence 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 Residence Order option. If the child is subject of ongoing 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 Residence Order 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 Residence Order. The Local Authority cannot apply for a Residence 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 Residence 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 Residence Orders 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 residence 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 Head of Service - Regulated Services.
When an application for a Residence 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 Residence 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
- Foster carers applying for a Residence Order should be given the Fostering Network leaflet "Foster Carers and Residence Orders."(copies kept by the Fostering Team)
- 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 Residence 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
- Undertake an assessment of financial/ongoing support, (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 Core 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 Core Assessment.
The assessment of the applicants should include their medical history, the references received and the Criminal Records Bureau (CRB) of all adults in the house over the age of 16 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 understands the nature and implications of Residence 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. 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 ongoing 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 ongoing 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 Residence Order in the Care Plan and in the recommendation of the final court report.
If the child is not already subject to ongoing court proceedings and an application for a Residence Order is made, the Court will request a s.7 or a s.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 Residence Order or Special Guardianship Order as a new Legal Status in the Legal section of ICS.
8. Discharge or Variation of Residence Order
A Residence Order can be varied or discharged on the application of:
- Holder of the Residence Order
- The local authority in whose name a Care Order was in force before the Residence Order was made
- Anyone with a Residence Order in respect of the child before the current Residence 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 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 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, vary or discharge the Order in the absence of an application.
9. Residence Order Allowances
9.1 General Principles
The payment of a Residence Order allowance can be made to relatives or friends, but not to parents or step parents.
Residence Order allowances are considered where there are financial or support needs in respect of a child which will be recognised through the payment of an allowance. Residence order allowances are paid and vary according to the age of the child. Financial support from Local Authorities must compliment and not duplicate financial support available through benefits and tax credits systems.
- Family members agree with the local authority to apply to court for a Residence Order and the child or young person would be accommodated if the application was not made, or
- A child or young person is accommodated and a family member or friend agrees to apply to court for a Residence Order so that they can be discharged from care, or
- A child or young person is fostered and the foster parents agree to apply to court for a Residence Order, or
- The child is subject to a Residence Order but due to changes in circumstances there is a risk of the child needing to be looked after if support through an allowance is not made
Residence Order allowances should be available in exceptional circumstances to:
- Provide sufficient income for the child or young person to be brought up without hardship
- Provide a support package to meet the special needs of the child or for both reasons
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 Residence Order, this commitment should be taken to include a willingness to meet costs associated with such a commitment.
The amount of the Residence Order should:-
- Not include any reward element
-
Take into account the financial resources of the Residence Order holder including any financial benefit arising from the placement of the child e.g. child benefit, Tax credit or any benefit which has been or can be claimed for that child
- Take into account the financial needs /resources of the child, if any, excluding mobility/attendance allowance
The payment of a Residence Order allowance may affect receipt of benefits and advice should be sought of the appropriate Benefit Agency.
It is not the function of the Lincolnshire County Council to accept responsibility for income maintenance.
9.2 Foster Carers Applying for a Residence Order
Where foster carers are applying for a Residence Order, in respect of a child they have been fostering, and Lincolnshire County Council supports this plan, the carers will receive a Residence Order allowance until the child is 18, minus any welfare benefits, including child benefit and tax credits that become payable to the foster carer on obtaining a Residence Order. This payment will not be subject of a means test, however should be reviewed annually.
All other financial support/ongoing support packages in respect of a Residence Order as requested by a former foster carer will be subject to an assessment by FAST team, a means test and a decision by Head of Service.
9.3 Residence 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. Residence Orders 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 Residence Order makes an enquiry about support services, this will be the subject of an Initial Assessment by the FAST team, followed by a Core Assessment. 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 Head of Service.9.4 Residence Order allowances where Applicant is not a Former Foster Carer of the Child
Payment of a Residence Order Allowance is at the discretion of Lincolnshire County Council. The allowance is paid upon the making of an Interim Residence Order or Residence Order following an assessment.
10. Matters to be Considered in Determining Eligibility for a Residence Order Allowance
The child's social worker must advise potential Residence Order applicants in writing of the availability of financial support and inform them of the provision and criteria for Residence Order allowances. 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. Applicants must be informed that if they intend to request an additional allowance, evidence must be provided at application and review of the need for the additional allowance.
All applicants must be informed that the allowance paid will be subject to an annual review.
The decision whether applicants for a Residence 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 Residence Orders should be helped to access any benefits to which they are entitled; this will usually include child benefit and tax credits such as Child Tax Credit and Working Tax Credit or any benefit which has been or can be clamed 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 Residence Order in respect of a child. Financial support cannot duplicate any other payment available to the holder of the Residence Order.
Financial support to applicants of Residence Orders (where the child in question is the subject of a plan approved by the local authority) must be considered and approved by the Head of Service Regulated Services.
11. Calculation of Allowances Payable
The Residence Order allowance is worked out using the standardised means test, taking into account:-
- The carer's financial resources
- Cost of looking after the child minus child benefit, tax credit or any benefit 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 Mouchel who will inform the child's social worker. The child's social worker will pass to the Head of Service Regulated Services for agreement.
The Head of Service Regulated Services will inform the child's social worker of the decision to make the payment
The child's social worker should write to the holder or applicant of the Residence Order setting out the amount of financial support agreed by the Head of Service 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
A copy of this letter should be sent to the Finance Officer.
If there is an ongoing plan already in place, the financial need would be added to the current plan on ICS 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 ICS by the Lead Social Worker before their involvement is completed.
The Lead Social Worker will also record a Residence Order Review with the due date in a year's time and the person responsible for the referral would be the Team Manager/Practice Supervisor. After this is completed, the Lead Social Worker Involvement is ended. (However the case should remain open to the Key Team as a U6 Financial Assistance only)
12. Residence Order Agreement
Those in Receipt of Residence Orders 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
13. Review of Residence Order Allowances
Payment of Residence Order allowances will be reviewed on an annual basis. Please refer to Review of Residence Order Allowance 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.
16. 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.
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