Fair play for kinship carers

Whether a child is “placed” with a carer or simply “enabled to live” with them can make a big difference to remuneration

The High Court’s recent decision in SA v a Local Authority has caused financial anxiety for many authorities because it required a child’s grandmother to be paid foster carer rates instead of less generous kinship carer rates. This article looks at the underlying principles behind the decision, and other recent decisions on “implied fostering”.

Question one – was the council obliged to find accommodation for the child?

Basically, there are two questions which need to be answered yes for a family or friendship carer to be entitled to fostering allowance. The first question is whether the council was obliged under section 20 of the Children Act 1989 to accommodate a child.

Section 20(1) sets out cases in which a local authority is obliged to provide voluntary accommodation and care for a child. The duty arises if a number of conditions are met. Typically, these are that the child must appear to a council to (a) be a child in need; and (b) require accommodation; and (c) for that requirement to have arisen because the child’s parent or other carer could not provide suitable accommodation or care.

So section 20(1) is likely to be triggered where it becomes clear that, despite the provision of parental support services, there is no realistic prospect of a child’s carer being able to provide suitable care in the near future. This is what happened in this case. The child would have continued to suffer severe neglect if she stayed with her mother, who had drink and drugs problems.

Question two – was the child “placed” with the family member?

Under current case law, a distinction is drawn between a child being “placed” with a relative or other connected person and a child being merely “enabled to live” with them (section 23(6) Children Act 1989).

The carer will only be treated as a foster carer if what the authority has done can properly be described as placing the child.

In SA, the court held that the child had been “placed” with her grandmother. The authority asked the grandmother to help out and was closely involved in the care arrangements. The degree of involvement meant that the child was “placed” with her grandmother.

A similar case was Southwark LBC v D (2008) where a family friend agreed to an authority’s request to let a child live with her as she was not considered safe at home. The Court of Appeal held that the family friend was to be treated as a foster carer.

What are the underlying principles?

A common factor in SA and Southwark was that the arrangements were initiated by the authority. However, this is not a mandatory requirement. In R (A) v Coventry CC (2009) a family friend was held by the High Court to be a foster carer despite having taken in a homeless 14-year-old child of her own volition.

What made the difference was that the authority subsequently said, when the arrangement came under pressure, that it would provide financial assistance (which it failed to do) to prevent the child being taken into care.

Possibly, then, the common thread is that the successful cases involve authorities to some degree taking advantage of a person who has stepped in to help a child in crisis. This offends the court’s sense of justice and is likely to encourage them to find a solution which favours the person who has helped a child.

Ed Mitchell is a solicitor and editor of Social Care Law Today

This article is published in the 10 June 2010 edition of Community Care magazine under the headline When is a Relative ‘Helping Out’ Entitled to Foster Allowance?