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2.13 Financial Assistance in Relation to Child Arrangements Orders

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 chapter was added to the Procedures Manual in December 2014.


Contents

  1. Legislative Context
  2. Types of Financial Assistance
  3. Principles Underlying the Provision of Financial Assistance for Child Arrangements Orders
  4. Assistance with Legal Fees Where a Child is Subject to a Care Order
  5. Assistance with Legal Fees Where a Child is Not Subject to a Care Order
  6. Specific and/Or Time-Limited Assistance for Children Subject to Child Arrangements Orders
  7. On-going Financial Support on a Set Payment Basis Where a Child is Subject to A Care Order
  8. On-going Financial Support on a Set Payment Basis Where a Child is Not Subject to a Care Order
  9. Exceptions to the Criteria


1. Legislative Context

Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replace Contact Orders and Residence Orders.

A Child Arrangements Order means a court order regulating arrangements relating to any of the following:

  1. With whom a child is to live, spend time or otherwise have contact; and
  2. When a child is to live, spend time or otherwise have contact with any person.

The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.

The ‘contact’ aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.

A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.

Child Arrangements Orders are private law orders, and cannot be made in favour of a local authority. Where a child is the subject of a Care Order, there is a general duty on the local authority to promote contact between the child and the parents. A Contact Order/Child Arrangements Order can be made under section 34 of the Children Act 1989 requiring the local authority to allow the child to have contact with a named person.

A court which is considering making, varying or discharging a Child Arrangements Orders, including making any directions or conditions which may be attached to such an order, must have regard to the paramountcy principle, the ‘no order’ principle and the welfare checklist under the Children Act 1989.

Interim Child Arrangements Orders can be made.

In some circumstances, it will be appropriate for the local authority to provide financial assistance to applicants for a Child Arrangements Order. The circumstances under which the local authority provides such assistance and the nature of such assistance are dealt with in this Procedure.

It must be borne in mind, however, that there will be cases in which the Department will need to exercise discretion and take into account the individual needs of users in circumstances which are either non-standard or exceptional (see Section 9, Exceptions to the Criteria).


2. Types of Financial Assistance

Essentially, there are three types of financial assistance which may need to be considered in relation to Child Arrangements Orders:

  1. Assistance with legal fees when a party is applying to court for a Child Arrangements Orders;
  2. Specific and/or time-limited assistance in order to facilitate a placement becoming operational;
  3. On-going financial support on a set payment basis.

These categories of financial assistance would be met from the Children and Families Budget. However, depending on the nature and purpose of the assistance, it may be attributed to either the Boarding Out or the Section 17 section of the Budget.

Authority to pay financial assistance will vary according to circumstances. Delegations are specified in each of the sections below.


3. Principles Underlying the Provision of Financial Assistance for Child Arrangements Orders

The financial assistance is for an agreed plan which is in the child's best interests.

The assistance will:

  1. Help to achieve the discharge of a Care Order in relation to the child; or
  2. Prevent a child becoming subject to a Care Order, assuming that there are grounds for such an order and that one would be granted by a court.

Financial assistance should not normally constitute income maintenance in cases where a child is not subject to a care order. This is unless the carer’s income falls within the relevant Department for Work and Pensions benefit rates and the carer is ineligible to make a claim for benefit.


4. Assistance with Legal Fees Where a Child is Subject to a Care Order

In cases where the child is subject to a Care Order, a successful application for a Child Arrangements Order by foster parents, relatives or others would result in the child no longer being in local authority care.

The cumulative cost of the child remaining in care, in terms of boarding out payments, additional allowances, social work and administrative time and so on, far exceeds the likely cost of assisting the applicant with legal fees in these circumstances. It is therefore cost-effective to provide financial assistance.

The local authority's Legal Services Section will not (indeed cannot) represent foster parents, relatives or others in making applications for Child Arrangements Orders in the case of a child who is subject to a Care Order to the local authority. Legal representation must therefore be undertaken by an "independent" representative. An application for legal aid will be means and merit tested and the carer(s), on current criteria, may not be eligible for legal aid.

The local authority will provide financial assistance for legal fees where the following criteria are met in full:

  1. The child in question is subject to a Care Order;
  2. The application for a Child Arrangements Order is part of a plan agreed at the statutory child care Review (see form CC 2(h));
  3. The applicant cannot otherwise obtain legal aid for the application.

The financial assistance for legal fees in the above circumstances will come from the Boarding Out section of the Children and Families Budget and will be payable to the applicant after the application has been heard, and on receipt of an invoice from the Solicitor who acted on behalf of the applicant.

Authority to provide assistance in these circumstances is delegated to the Children’s Services Delivery Manager.


5. Assistance with Legal Fees Where a Child is Not Subject to a Care Order

There are circumstances in which a party would initiate proceedings independently of the local authority with a view to seeking a Child Arrangements Order. The applicant may be a relative of the child, partner of a parent or friend of the child and the local authority will not necessarily become involved in the application proceedings.

In these circumstances, the local authority will not assist the applicant with the cost of legal fees.

In circumstances where a party intervenes in on-going proceedings initiated by the local authority (e.g. by a grandparent lodging a counter-application for a Child Arrangements Order during care proceedings), the local authority will not assist with legal fees.

The provision of such assistance as a matter of course might encourage applicants who may not subsequently have the support of the local authority, or it might prematurely commit the local authority to placing a child in circumstances which have not been fully approved.

The non-assistance outlined above does not rule out later consideration of the applicant as a potential carer for the child or a Child Arrangements Order application at a later date - which might then qualify for local authority financial support.

In cases where the local authority is supporting a relative in applying for a Child Arrangements Order as an alternative to care proceedings, a contribution towards legal fees will be considered in exceptional circumstances, provided the following criteria are met:

  1. The relative is ineligible for legal aid;
  2. There are clear grounds for care proceedings;
  3. The relative's application is part of a plan made at a Child Protection Conference/Review or Planning Meeting.

In deciding whether the "exceptional circumstances" apply, the decision will be made by the Children’s Services Delivery Manager.


6. Specific and/Or Time-Limited Assistance for Children Subject to Child Arrangements Orders

Where a Child Arrangements Order has been made and the local authority has been a party to the proceedings or where the local authority has had grounds for care proceedings but has agreed to support a relative in applying for a Child Arrangements Order, financial assistance could be provided with the aim of helping set up the placement and/or to help the carer(s) overcome problems of immediate cost/ care arrangements.

This assistance should be practical, specific and time-limited and the carer(s) should be assisted in claiming all benefits for which they are eligible, as the long term basis for financing the arrangement.

In circumstances where a Child Arrangements Order has been made and the local authority has had no involvement in the case, financial assistance of a specific or time-limited nature could be provided under Section 17 only if there was a probability of the child becoming looked after by the local authority.

Any financial assistance in both circumstances outlined above is subject to the set financial delegations limits operated by the Department.


7. On-going Financial Support on a Set Payment Basis Where a Child is Subject to A Care Order

Foster Parents who are caring for a child who is subject to a Care Order are currently in receipt of the Boarding Out and additional allowances. They are not eligible to claim Child Benefit or child tax credit.

There are existing, current placements where there is no need for continuing social work support and where it would be in the child's best interest for the carer to apply for a Child Arrangements Order, hence removing the child from the care system.

Provided that this is so, it is clearly cost-effective for the local authority to continue to provide some financial assistance to these carers.

On-going financial assistance at the appropriate Boarding Out rate for the age of the child (less Child Benefit rate and child tax credit) will be provided to these carers from when they obtain a Child Arrangements Order, provided the following criteria are met:

  1. The child has been the subject of a Care Order (Interim or full);
  2. The application for a Child Arrangements Order is part of a plan agreed at a statutory child care review.

The onus is on the social worker to establish that all benefit entitlements have been claimed.

The financial assistance will include additional allowances such as holiday/birthday/Christmas payments. It will not include any other payments.

It will not include any enhancements to the Boarding Out rate that have been made when the child was on a care order. However, where children have additional assessed needs requiring extra financial support e.g. for a medical condition, the carer should be encouraged to claim the relevant benefit such as Disability Living Allowance.

Fee Paid Carers

Where a foster carer is receipt of a professional fee for more than one child, it should be made clear which fee is attached to the Child Arrangements Order. The carer should not be in receipt of two 1st placement fees. In all cases advice must be sought from the Adoption or Fostering Team Manager.

The on-going payments will be subject to annual review. The review will check that the Child Arrangements Order remains in force, and that the child continues to reside with the carer(s) on the same basis as when the Child Arrangements Order was made.

Reviews will be the responsibility of the Finance Section.

Payments of any kind will normally cease when the Child Arrangements Order is discharged or when the child reaches the age of 16. However if a child is in full time education post-16 discretionary payments can be agreed if this meets the child’s needs. To be decided by the Head of Service Delivery (Fieldwork)

Payments under this category will come from the Boarding Out section of the Children and Families Budget and must be approved by the Children’s Service Manager.

The payment rate will be the equivalent of the weekly boarding out rate minus the weekly child benefit rate and child tax credit for that child.

Once it has been agreed what financial support is to be made to a carer taking out a Child Arrangements Order, the social worker should provide the carer a summary of this, on headed notepaper and signed by the Children’s Service Delivery Manager. The summary should stipulate:

Whether the Department will help with legal costs What specific or time-limited assistance will be provided. What on-going financial support will be provided and for how long. That the arrangements will be subject to annual review.


8. On-going Financial Support on a Set Payment Basis Where a Child is Not Subject to a Care Order

There will be circumstances where a Child Arrangements Order is made and the local authority has had no involvement in the case. In such circumstances, a request for on going financial assistance on a set- payment basis will not be accepted.

This does not rule out an application for financial assistance under Section 17 should there be a likelihood of the child becoming looked after by the local authority. Any assistance in these circumstances will be time-limited and subject to a full assessment of need.

There will be circumstances where a Child Arrangements Order is made and the local authority has been a party to the proceedings. There may also be circumstances where there are or were grounds for care proceedings but the local authority has agreed to support a relative in applying for a Child Arrangements Order.

In most cases of a relative or friend applying for a Child Arrangements Order, there may be entitlement to Pension Credit (if they are over 60 years of age) from the Department for Work and Pensions or Child Tax Credit from the Inland Revenue. Similarly, low wage earners may be eligible for Working Tax Credit as well as Child Tax Credit, which would take into consideration the child subject to the Child Arrangements Order. A Child Arrangements Order Allowance is disregarded in the calculation of Pension Credit, Working Tax Credit and Child Tax Credit.

Carers with a Child Arrangements Order will be able to claim Child Benefit and may in certain circumstances be eligible for Guardian’s Allowance. (If advice is needed please consult with the Social Services Department Welfare Benefits Group or other welfare benefits advisor).

On-going financial assistance will be provided in circumstances where the local authority has been a party to proceedings or has supported the Child Arrangements Order application as an alternative to care and in cases where, without financial support, the applicant would be unable to meet the basic needs of the child (i.e. this would exclude payments to cover hobbies / sports activities etc.)

The financial assistance provided in these cases will be subject to annual review.

The carer will be required to notify the Department of any change in circumstances. The review will also check that the Child Arrangements Order remains in force and that the child continues to reside with the carer on the same basis as when the Child Arrangements Order was made. Reviews will be the responsibility of the Finance Section.

Financial assistance in the above circumstances will be provided under Section 17 of the Children Act but will come out of the Boarding Out section of the Children and Families Budget.

Payments will be subject to the set delegation limits operated by the Department.


9. Exceptions to the Criteria

There will almost certainly be cases which do not meet the criteria for financial assistance but which merit consideration.

In an attempt to be flexible while providing consistency across the Department, exceptional cases must be referred to the Head of Service Delivery (Fieldwork) who will decide on the merits of the case and, if appropriate, propose amendments or additions to the criteria in the light of case experience.

End