Wider family matters

Chapter 5: Legal options for securing family and friends care

This chapter looks at various legal options for securing arrangements when a relative or friend is caring for a child, whether or not the Local Authority is, or has been, involved. It looks at these options in terms of the child's legal status and the carer's position.

Table A at the end of Chapter 5 compares the features of different kinds of arrangements/orders.

Residence orders

If you have a residence order:

1. You have parental responsibility for the child, as do the parents.
The Children Act 1989 says that anyone with parental responsibility can act ‘independently' of others with parental responsibility. This means that unless a court order says otherwise you can make day-to-day decisions about the child without getting anyone else's agreement. If the parents do not agree with your decisions or seem to be interfering in a way that is affecting your care for the child, you may need to think about seeing a mediator or getting the court to sort it out.

Bob and Sharma have just been given a residence order for their three nieces and want them to move to a school nearer to their home. Their mother doesn't want them to move from their school, as it is near to where she lives and she currently picks them up for tea three times a week. Bob and Sharma find the journey too difficult, given that they are also working. They could consider mediation to reach a resolution or may need to go to court to apply for a specific issue order if things don't work out with the mother.

2. You have the right to decide where the child lives, with some restrictions:

• Parents still have the right to agree or withhold agreement to the placement for adoption and/or the adoption of their child.
• You will need the permission of all others with parental responsibility if you want to take the child out of what is known as ‘the jurisdiction' of the court, that is England and Wales, for more than a month.
• You will also need the permission of all others with parental responsibility if you want to change the child's surname. If they disagree, you will need to get the court's permission.

Can I apply for a residence order?

You can apply for a residence order if you fall into any of the following categories:

• You have had the child living with you for at least three out of the past five years.
• You are a Local Authority foster carer who has had the child living with you for at least a year.
• You are the child's guardian.
• You have the consent of:

1. another person with a residence order;
2. the Local Authority if the child is in care on a care order; or
3. everyone with parental responsibility, usually parents, but can include step-parents and guardians.

If you do not fall into the above categories, you will need to apply for the permission (‘leave') of the court to go ahead and apply for a residence order.

If you need to apply for permission, you will have to show amongst other things that your application will not be unduly disruptive for the child. If the child has been living with you for some time, or the child is clearly at risk if s/he remains with the parents, there should be no problem in obtaining the court's permission.

Our advice is for you to put in your application for leave to apply at the same time as your application for a residence order. If you are worried you cannot afford a solicitor, contact Family Rights Group to ask for the DIY Residence Order pack or download it .

When the court looks at an application for a residence order, it has to make a decision based on the child's best interests. When considering whether to make any order in relation to a child's upbringing, the court will need to consider the matters set out in Table B at the end of Chapter 5.

If I have a residence order can I appoint a guardian?

No. The residence order does not give you the right to appoint a guardian in the event of your death.

In what circumstances should I consider applying for a residence order?

A residence order may be necessary if:

• you are not yet caring for the child but have concerns about their well-being and you wish to offer them a safer, happier environment;
• you are looking after the child but the parents are not happy with the arrangements and want the child back, and you think this is against the child's interests; or
• the child is clearly stressed because the current arrangements are not secure.

What are the benefits of a residence order?

• The child's arrangements should be secure.
• You will have parental responsibility, and can make most of the decisions about the child's life.
• Everybody including the parents, school, Children's Services and family doctor should be clear that the child lives with you and that you have legal rights and responsibilities.

Are there any drawbacks to a residence order?
While the advantages may well seem overwhelming for you and the child, there are a number of hurdles to cross, and future restrictions that you should be aware of before you start the process.

• Unless you are on income support or on a very low income, you are unlikely to get any help with your legal costs, which can be very expensive. Advice is available from Family Rights Group and The Grandparents' Association can also share with you their experiences of carers making their own applications (see Parenting and Families section, Chapter 11.)
• An application can be very stressful, especially if the case is contested.
• The Local Authority has no obligation to give you any financial support although they have the power to pay you a residence order allowance. If you are currently a foster carer receiving a fostering allowance, it may not be in your financial interests to apply for a residence order even though this may be the best thing in other respects. Indeed our survey showed that very few grandparents received financial help from the Local Authority on the making of a residence order. If you have had no involvement with Children's Services there is little likelihood of you receiving a residence order allowance. If the child has been on a care order, Children's Services may withdraw all support on the making of a residence order. This may prove difficult if you have concerns about protecting the child, for example, from a violent parent. You may feel that the existing care order provides you with more security.
• The residence order normally only lasts until the child is 16. However, you can ask the court to exercise its power to extend it to 18, giving your reasons.
• The parents have the right to apply for the residence order to be discharged. Although the court will only discharge the order if it considers this is in the child's best interests, it can be extremely stressful and costly for you to respond to the application. Grandparents in our survey had spent many thousands of pounds on legal costs over the years. If parents make repeated applications which the court refuses, you can ask the court for an order to stop them making further applications without the court's permission (CA 1989 s.91 (14)). You will need to give a good reason for this.
• The residence order gives you no power to appoint a guardian for the child in the event of your death. It therefore makes it very difficult to plan with any sense of security.
• Although a residence order gives you parental responsibility, the parents will also have this. The experience of grandparent carers surveyed by Family Rights Group was that some professionals would not accept the word of a carer with a residence order where a parent disagreed with a course of action, for example medical treatment. In this case you may have to go back to court to get a specific issue or prohibited steps order.

Special guardianship

What is a special guardianship order?

It is an order that the court has been able to make from December 30, 2005. It is more secure than a residence order because a parent cannot apply to discharge it unless s/he has the permission of the court to do so. However, it is less permanent than an adoption order because it does not end the legal relationship between the child and his/her birth parents. This means that when a child is made the subject of a special guardianship order, s/he remains a member of his/her birth family even though s/he is living on a legally secure basis with his/her special guardian.

When can the court make a special guardianship order?

The court may make a special guardianship order to provide legal security for a child who is living with someone other than his/her parents.

There are various conditions that must be fulfilled in order for you to make an application to court for a special guardianship order.

• You can apply for a special guardianship order if:
  
  
• you are over 18; and
• you are not a parent of the child.
• You can apply on your own or jointly with another person.
• You cannot make an application for a special guardianship order unless you have given notice to the Local Authority of your intention to apply for the order at least three months before the application is made.
• Once you have given this notice you have the right to apply for a special guardianship order if you fall into a particular category of person described below. Otherwise you will need the leave (permission) of the court.

The court can also make a special guardianship order in other family proceedings when there is a question about the welfare of the child, even if no application has been made.

How do I apply for a special guardianship order?

The steps you need to take to apply for a special guardianship order will depend on whether you fall into a category of person who has a right to apply for an order or whether you need the permission of the court to do so.

You have a right to apply for a special guardianship order if:

• You already have a residence order on the child;
• You are an approved Local Authority foster carer and you have had the child living with you for at least one year before the application is made;
• You are not an approved Local Authority foster carer but you have had the child living with you for at least three out of the last five years preceding the three-month notice period referred to above;
• You have the consent of:
  
  
• Each person holding a residence order on the child;
• The Local Authority if the child is already in care under a care order; or
• In any other case, those with parental responsibility (usually the parents, but it may also include step-parents, guardians etc.); or
• You are a guardian of the child.

If you do not fall into any of the above categories, you will have to ask the court for leave to be able to make an application for a special guardianship order (CA 1989 s.14A).

What is the Local Authority's involvement in a special guardianship application?

The Local Authority has a central role in the proceedings. You cannot make an application for a special guardianship order unless you have given notice to the Local AUthority of your intention to apply at least three months before the application is made. The Local Authority then needs to present an assessment to court (CA 1989 s.14A).

What is the effect of a special guardianship order?

• The special guardian may appoint a guardian for the child after their death.
• A special guardianship order lasts until the child reaches 18 unless it is revoked.
• A special guardianship order automatically discharges an existing care order (CA 1989 s.91 (5A)).
• Parents retain parental responsibility and their legal relationship with the child. However, as a special guardian you also have parental responsibility for the child which you can exercise to the exclusion of anyone else with parental responsibility. This means you can make all the major decisions about a child's upbringing and you do not have to consult with the parents about these decisions (CA 1989 s.14C (1)).

There are some limitations to this as follows:

• You cannot change the child's surname nor take him/her outside England and Wales for a period of more than three months without the consent of everyone with parental responsibility or the leave of the court (CA 1989 s.14 (3) and (4)).
• You cannot override the parents' rights in relation to the child's adoption or placement for adoption (CA 1989 s.14C (2)).
• Even though you have this ‘exclusive' parental responsibility, you still need to get the consent of each person with parental responsibility where this is required by law (CA 1989 s.14C (2)).
• You must notify each parent who has parental responsibility or the child's guardian if the child dies (CA 1989 s.14 (5)).

Where there is a dispute about the exercise of parental responsibility, the court has the power to make a prohibited steps or specific issue order alongside a special guardianship order to resolve the disagreement. This might arise if the parent was unhappy about a decision you had made about the child's upbringing, such as immunisations or medical treatment. In these circumstances, if the parent exercises their right to apply for one of these orders, the court would decide the issue in dispute.

For further information, contact Family Rights Group advice line. You can download an advice sheet with more information about special guardianship.

Guardianship

This is not to be confused with special guardianship.

How do I become a guardian?

You can become a guardian in two different ways:

• If you have been appointed as a guardian in the parents' will or other written document signed and dated by the parents with parental responsibility. This will only take effect if:

1. there is no living parent with parental responsibility; and
2. there is no one alive with a residence or special guardianship order (CA 1989 s.4 (1)).

Note: If the parents were not married and the father did not have parental responsibility then only the mother will have the power to appoint a guardian on her death.

• If there was no will or other document appointing a guardian, you can apply to court to be appointed guardian on the death of both of the parents or, if the father does not have parental responsibility, on the death of the mother only.

If you are a guardian of a child you can appoint another person to be guardian in the event of your death (CA 1989 s.5 (4)).

What are the advantages of being a guardian?

• You will have parental responsibility for the child on a long-term basis.
• You will be able to make future plans for the child, by appointing a guardian on your death.
• You will be entitled to a state benefit called a ‘guardians allowance' (see Chapter 8).

Adoption orders

What is the legal effect of adoption?

An adoption order legally transfers a child from one family to another. Once the order is made, the birth parents of the child are no longer his/her legal parents and they lose parental responsibility. The adopters obtain parental responsibility for the child and become the child's parents. The child is therefore treated as if s/he had been born to the adopters.

You can apply to court for an adoption order if you are already raising a child who:

• has been placed with you for adoption by the Local Authority/adoption agency and has lived with you for more than ten weeks; or
• you are a Local Authority foster carer and the child has been living with you for one year; or
• you have been raising the child under another arrangement for three out of the last five years (ACA 2002 s.42).

But if the child has not been placed with you for adoption by an adoption agency, you cannot make the application for an adoption order unless you have given notice to the Local Authority of your intention to apply for an adoption order three months before you make the application.

You can make the application either on your own or jointly with another person including a partner, whether gay or heterosexual. If you are married or in a civil partnership, you need to apply jointly with your spouse/civil partner unless s/he cannot be found or is incapable of making the application, or you have separated and the separation is likely to be permanent.

The adoption agency has to file a report on your suitability before the hearing. At the hearing the court will consider:

• whether adoption is in the child's best interests;
• whether parental consent has been given or should be dispensed with; and
• whether future contact with the birth parents, other members of the family or friends is in the child's best interests.

Further information about the steps that must be followed before a child can be placed with you for adoption can be found in Family Rights Group's advice sheet on adoption.

What if the parents object to me adopting the child?
If the child has been placed with you by an adoption agency, which may be the Local Authority, it is very likely that the question of whether or not the parents consent will have been addressed, and it is unlikely that this will need to be reconsidered at the adoption hearing.

If the child has not been placed by an adoption agency but has been living with you under another arrangement and you want to adopt him/her, you will not only have to give the Local Authority notice of your intention to apply for an adoption order as described above but also you will need to convince the court as to why adoption is in the child's best interests. If you are asking for the parents' consent to be dispensed with, you will have to supply convincing reasons that ‘the child's welfare requires their consent to be dispensed with' (ACA 2002 s.52 (1)).

What are the advantages of an adoption order?

• The child knows with absolute certainty that you are his/her legal carer(s) and that this is a permanent state of affairs.
• It overcomes any difficulties in sharing parental responsibility with parents. You will have absolute say over the child's upbringing, unless the parents obtain a court order to the contrary, for example about contact.
• As an adopter you have the right under the Adoption and Children Act 2002 to an assessment of your need for adoption support services. There is a commitment in the Act to provide support to adoption placements. The support available must include: support groups; a single Local Authority point of contact for advice; assistance with contact; counselling and therapeutic services; and financial support. Despite these improvements under the law, some adopters may continue to find it difficult to get the particular support they need.

What are the disadvantages of an adoption order?

• If you are a relative, an adoption order could cause legal confusion in your family situation. For example, if you are a grandmother caring for your grand-daughter, although the mother of the child will continue to be your daughter, she is no longer seen in law as the child's mother, and you are; the child's brothers and sisters (if any) will no longer be legal brothers and sisters and the child's mother will become the child's sister! The child's father, paternal grandparents and all relatives on that side of the family will no longer be relatives in law. This complicated state of affairs can therefore have quite a serious impact on a child's sense of identity and esteem.
• You will also have to undergo a lengthy assessment, which you may find intrusive, before the court can make an adoption order.

As a carer, when should I consider adoption?

• When the child's parents have disappeared or clearly want the child to be adopted.
• When Children's Services have been looking after the child and are authorised to pursue a plan for adoption for him/her. You will need to apply to the adoption agency to be approved as an adopter for him/her. Otherwise they may place the child with other approved adopters. Alternatively you may want to apply for a residence order or special guardianship order.

In this situation you need to take urgent advice from a solicitor specialising in child care law (see Chapter 7) or from Family Rights Group's advice line. You can download advice sheets for families about adoption which include more information about placement orders and placement by consent.

Step-parent parental responsibility

There has been an amendment to the Children Act enabling step-parents to acquire parental responsibility either by:

• formal agreement with both the parents with parental responsibility using a prescribed form; or
• order of the court.

If you are a step-parent and wish to acquire parental responsibility, you need to find out if both the parents agree to this. If they do, you need to contact the court office to ask for a step-parent parental responsibility agreement form and ask them to take you through the steps that are required.

You can only acquire parental responsibility in this way if you are or have been married to the parent of the child.

If one or both the parents do not agree but you still want parental responsibility because you are looking after the child, you can consider applying for a residence order.

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