National Guidance on Part 13 of the Children and Young People (Scotland) Act 2014: Support for Kinship Care

PART TWO: SUPPORT FOR KINSHIP CARE AND KINSHIP CARE ASSISTANCE

Eligibility for kinship care assistance

39. The 2014 Act sets out the parameters of kinship care assistance with the 2016 Order supplementing those provisions. A local authority must provide kinship care assistance in such a way as to safeguard, support and promote the wellbeing of an eligible child as stated in article 3 of the 2016 Order. Kinship care assistance is available for both adults and children who meet the eligibility criteria.

40. Under section 71 of the 2014 Act, a local authority must make arrangements to secure that kinship care assistance is made available for a person residing in its area who falls within the following categories of people:

• A person who is applying for a kinship care order in relation to an eligible child who is below the age of 16;
• A person who is considering applying for a kinship care order in relation to an eligible child who is below the age of 16;
• A person with a kinship care order in relation to an eligible child who is below the age of 16;
• A child subject to a kinship care order who is deemed by a local authority to be an eligible child;
• An eligible child who has reached the age of 16, who was subject to a kinship care order immediately prior to their 16 ^th birthday;
• A person who is a guardian of an eligible child who is below the age of 16 by virtue of an appointment under section 7 of the 1995 Act;
• An eligible child who has a guardian appointed under section 7 of the 1995 Act.

41. Under section 71(5) of the 2014 Act, an eligible child is defined as 'a child who the local authority considers to be at risk of becoming looked after'. The local authority has a responsibility to determine whether or not a child is at risk of becoming looked after. This is an ongoing responsibility and is in line with their existing responsibilities to all children in their area. Under article 5 of the 2016 Order, the definition of an eligible child is extended to include a child who was previously looked after.

Assessing whether or not a child is at risk of becoming looked after

42. Local authorities will need to determine whether or not a child is an eligible child. Local authorities will not always know when a child is the subject of a KCO, or has a guardian, so this process should commence when the child, kinship carer or guardian presents to, or otherwise comes to the attention of, the local authority social work service. It should be a relatively straightforward matter to establish whether or not a child has previously been looked after. However, establishing whether a child is at risk of becoming looked after is more difficult.

43. Article 6 of the 2016 Order states that in determining whether a child is at risk of becoming looked after a local authority must consider whether the child's wellbeing is being, or is at risk of being, adversely affected by any matter, such that the child is at risk of becoming looked after. GIRFEC provides a series of tools which can and should be used to assist any such consideration, and these are discussed in Appendix D.

44. The Scottish Government expects that for the purposes of Part 13 of the 2014 Act, and the 2016 Order, a child at risk of becoming looked after is generally one who cannot live with their parents and therefore would be at risk of becoming looked after away from home. In most cases we would expect that they would have been placed in kinship care or with a guardian by the local authority social work service. This is underpinned by the principle of a placement being in a child's best interests. A child can be considered to be placed by the local authority social work service when:

• a) Local authority social workers have assessed that the child's needs require them to be removed from the care of their parent(s); and
• b) It remains unsuitable for the child to return to the care of their parent(s); and
• c) The kinship care placement or guardianship arrangement meets local authority requirements.

45. In relation to assessing whether the child's needs require them to be removed from the care of their parent(s), social workers should do this using an established integrated assessment.

46. Dependent on local structures, the placing of a child would generally be undertaken by a local authority social work service. There may be some emergency situations where a local authority social work service is notified after the child is placed in kinship care or with a guardian. In these cases, the local authority must determine whether or not they would reasonably have placed the child with the kinship carer or guardian if they had knowledge of the family circumstances at that time.

47. 'Unsuitable for the child to return to the care of their parent(s)' should be interpreted as the grounds for the child's removal from their parent(s) remain, or new ones have been discovered.

48. To ensure the placement meets local authority requirements, local authorities will need to ensure the wellbeing needs of a child placed with a kinship carer or guardian are met. As is current good practice, local authority and criminal record checks of the carer and any other adults residing in the household will be undertaken. Local authorities may wish to develop or adapt an assessment to be satisfied that the placement is appropriate.

Types of kinship care assistance prescribed by the 2016 Order

49. The types of assistance which are categorised as kinship care assistance are set out in article 4 of the 2016 Order. It is this assistance which requires to be made available.

Provision of advice and information for kinship carers

50. Research has highlighted the importance of information and advice on a range of issues for current or prospective kinship carers. For many kinship carers, the new caring role will be a time of incredible uncertainty and challenge in their lives. There will be a need for specific advice on legal and financial matters. Managing often difficult family relationships and supporting children who will often be upset and distressed will be very demanding. For many kinship carers, the financial pressures of this new caring role are an additional burden. Information should be provided in a timely and accessible manner. Information should be available in a range of languages and formats on request.

51. Under article 4(a) and (b) of the 2016 Order, where a person is considering applying for, or is applying for, a kinship care order in relation to an eligible child (below the age of 16), the type of assistance which is categorised as kinship care assistance is the provision of such information and advice as that person may reasonably require for the purpose of making a decision about that matter.

52. To assist a person in making a decision to apply for a kinship care order, it is reasonable to expect local authorities include information about:

• What is a kinship care order;
• What are benefits and limitations of a kinship care order;
• How to find and instruct a solicitor;
• How to apply for Legal Aid to finance an application for a kinship care order;
• How to apply to a local authority for support towards the financial costs of an Order;
• What happens at a hearing on a kinship care order application at the Sheriff Court;
• How the child's, their parents and their kinship carers views are taken into account by the court in connection with the application;
• What happens when a kinship care order is granted;
• What may happen when a kinship care order is not granted;
• Relevant complaint procedures (i.e. in relation to court procedure, local authority processes);
• Details of local and national advice and support networks.

53. It should be recognised that engaging in court proceedings is an emotional and challenging time for any family. For families with new kinship caring responsibilities, there are many pressures. Some kinship carers may face divided loyalties in taking court action involving a transfer of parental responsibilities and rights from parents (who are often their own children or younger siblings). Local authorities should recognise that families may require emotional and practical support when involved in this process. Persons seeking a kinship care order should have had the opportunity to discuss all the implications fully with someone with knowledge of kinship care. This may be with a local authority social worker. They can also signpost kinship carers to national and local support networks; for example, there is a specific value in local support groups providing peer support for kinship carers through the legal process.

54. Where a person already has a kinship care order or has been appointed a guardian of an eligible child under 16 years in terms of an appointment under section 7 of the 1995 Act, article 4(d) and (f) of the 2016 Order provide that the type of assistance which is categorised as kinship care assistance is the provision of such information and advice as that person may reasonably require in relation to the kinship care order. Kinship carers and guardians may require information and advice on a wide range of matters related to caring for children. Research has identified the following areas:

• Knowledge of child development and the impact of abuse and neglect on children;
• Managing relationships with parents and contact;
• Supporting relationships with siblings and the wider family;
• Supporting children and young people who are displaying emotional and behavioural difficulties;
• Support in how to talk with children about why they are cared for by kinship carers or guardians; for example, due to bereavement, parental mental health issues, parental imprisonment, parental drug and alcohol use, parental learning disabilities and a wide range of other reasons;
• Concerns about who cares for children in the future;
• Concern about their wider caring responsibilities.

55. There is a valuable role for third sector organisations and local support groups in providing information and advice to kinship carers and guardians. There can be a specific value in peer support models for kinship carers and guardians in reducing isolation and stigma. Local groups can provide a strong support network for kinship carers, guardians and children. It should be acknowledged that there may be specific needs for younger kinship carers and guardians, sole male kinship carers and guardians and others. Advice in person, telephone, written materials and online may be required.

Provision of advice and information for eligible children

56. In the case of an eligible child under the age of 16 who is the subject of a kinship care order, the type of assistance which is kinship care assistance is the provision of such advice and information as that child may reasonably require for the purpose of facilitating the placement under the kinship care order as provided in article 4(c) of the 2016 Order. In the case of an eligible child who was the subject of a kinship care order immediately before their 16 ^th birthday, the type of assistance which is kinship care assistance is the provision of such advice and information as the child may reasonably require for the purpose of facilitating a transition following placement under a kinship care order as provided in article 4(e)(i) of the 2016 Order. This type of assistance may be provided up to the age of 18. This means eligible children should have access to information and advice when subject to a kinship care order and following a kinship care order.

57. The 2016 Order also states that the provision of such information and advice as a child may reasonably require for the purposes of facilitating a child's placement with a guardian who was appointed in respect of that child under section 7 of the 1995 Act, is kinship care assistance (article 4 (g)(i)).

58. Children may require information and advice on a wide range of matters relating to their kinship care order or guardianship. Research has identified the following areas:

• Understanding the reasons why they are cared for by their kinship carer or guardian;
• Supporting contact with parents and siblings;
• The need to reduce any stigma through having opportunities to meet other children and young people cared for by kinship carers or guardians;
• Having access to befriending and mentoring opportunities;
• Additional support at school may be required for children who have experienced disrupted education due to their earlier experiences;
• Knowledge of and access to advocacy services.

59. For some children who are the subject of a kinship care order, or who have a guardian, the experience of abuse and trauma in their earlier lives will require timely access to therapeutic support services. This wellbeing need is unlikely to be met through services which are generally available to children and would require a targeted intervention and a Child's Plan.

60. The level of information and advice that each child will reasonably require will differ from child to child. In providing advice and information, a local authority should take into consideration the age, maturity and communication needs of the child. Different methods of communication may be needed for each child, and particular attention should be given to ensuring all children have equal opportunities to access advice and information.

Provision of a financial allowance

61. Research has highlighted the significant financial impact on kinship carers in caring for children and the disproportionate number of kinship families who live in poverty across Scotland. It should be recognised that the financial pressures on families can place a strain on the long term stability of a placement. It should also be recognised that the kinship carers' and guardians current financial circumstances will change due to their new caring responsibilities. For example, a kinship carer or guardian may no longer be able to work full-time and care for the children.

62. Child benefit and child tax credits are intended to cover the cost of accommodation and maintenance of a child, and kinship carers and guardians should be encouraged to ensure they are fully aware of the benefits which they are, or may become entitled to. However, there are additional costs associated with caring for a child in kinship care, such as (but not restricted to) increased travel costs related to family contact. A financial allowance is intended to help with these costs, and this is not a top up of benefits. It is intended to ensure that eligible children who are the subjects of a kinship care order or who have a guardian are not disadvantaged compared to their peers.

63. Under article 4(d)(ii) of the 2016 Order, kinship care assistance includes the provision of an allowance for a person in whose favour a kinship care order in relation to an eligible child (under the age of 16) subsists.

64. Under article 4(f)(ii) of the 2016 Order, kinship care assistance includes the provision of an allowance for a person who is not the parent of the child who is appointed under section 7 of the 1995 Act as a guardian for an eligible child (under the age of 16).

65. Under article 4(e) (ii) of the 2016 Order, where the local authority considers it appropriate, kinship care assistance includes the provision of an allowance where it considers appropriate, to a child who has attained the age of 16 where:

• a) Immediately before turning 16, the child was subject to a kinship care order, and,
• b) The child is an eligible child.

66. Under article 4(g) (ii) of the 2016 Order, where the local authority considers it appropriate, kinship care assistance includes the provision of an allowance in relation to an eligible child who has a guardian by virtue of an appointment under section 7 of the 1995 Act.

67. Advice and information on the calculation of financial allowances can be found in Appendix E.

Assistance with the financial cost of an Order

68. As set out in the 2016 Order article 4(b)(ii), kinship care assistance includes the provision of financial support towards the cost of applying for a kinship care order to a person who is applying for a kinship care order in relation to an eligible child under 16. All persons seeking a kinship care order should be encouraged to apply to the Scottish Legal Aid Board for legal aid to support the court action. Legal aid is not always available and the applicant may have to make a financial contribution towards the costs of their case. Once the Board has made a decision on whether a person is eligible and, if so, what level of support they will provide, the local authority should consider what support they will provide to help an eligible person meet any contribution to legal costs.

69. The application for civil legal aid is decided on two principles, merit (whether there is a legal basis for the case and whether it is reasonable to grant legal aid in the circumstances) and financial eligibility. Addressing the merit of an application would be relatively simple when the child is already residing with an adult who has no parental responsibilities or rights. It may be more complicated in assessing merit when the child is still residing with their parent/s.

70. The other criteria for assessing legal aid eligibility are the financial means of the applicant. A kinship carer would not qualify for legal aid if their disposable annual income (their income after taking off allowances for outgoings, people who are dependents and other essential expenses) is above £26,239 or their disposable capital is above £13,017 (from 6 April 2015) ³. In applications that do qualify, an applicant may be asked to pay a contribution towards their legal aid bill. ⁴

71. If an application for legal aid is unsuccessful the local authority will wish to take this into account when assessing how much they will contribute to legal costs. A local authority is not required to cover the full cost of an application for a kinship care order (although they may). However, they must provide financial support towards this cost as set out in article 4(b) of the 2016 Order. This is intended to bridge some of any gap in funding for the application. Local authorities will wish to consider the merits of each case before determining their financial contribution.

Application for kinship care assistance

72. Kinship care assistance of the type described in article 4(a), (b)(i), (c), (d)(i), (e)(i), (f)(i) and (g)(i) - that is, information and advice - should be available to eligible children, kinship carers and guardians without any particular application procedure.

73. Article 7 of the 2016 Order states that a person who seeks kinship care assistance of a type described in article 4(b)(ii), (d)(ii), (e)(ii), (f)(ii) or (g)(ii) - that is, in the form of an allowance or financial support towards the cost of an application for a kinship care order - must apply to a local authority.

74. A local authority must publish information on the application process for kinship care assistance of this type as set out in article 9(1)(c) of the 2016 Order. It is not intended that this should be an onerous or lengthy process, and local authorities may design the application process to best fit their own needs.

Notification of a decision on kinship care assistance

75. Article 8(1) of the 2016 Order states that a local authority must notify a person who applies for kinship care assistance in the form of financial support or an allowance as described in article 7 of its decision and the reasons for that decision as soon as reasonably practicable (it is recommended that this should normally be 4 weeks from the date of application to the local authority). Where the applicant disagrees with the decision they should be provided with information about the local authority's complaints procedure.

76. Article (8)(2)(a) of the 2016 Order states that a local authority must notify a person who is eligible for kinship care assistance in the form of financial support or an allowance with details of the way the amount has been determined. Article (8)(2)(b) states that, where kinship care assistance is to be paid by instalments, the local authority must give notification of the amount of each instalment, the frequency of the payment, the period for which kinship care assistance is to be paid and the date of the first payment. Local authorities may make a decision to make a single payment of financial assistance. If so, article (8)(2)(c) states that they must give notification of the amount and the date the payment is to be made.

77. It is recommended that any entitlement to a financial allowance provided as kinship care assistance is reviewed annually by a local authority. Where there is a change of circumstance, it is recommended that a kinship carer notifies the local authority as soon as is reasonably practicable.

Publication of information on kinship care assistance

78. Under article 9 of the 2016 Order, a local authority must publish information in relation to the provision of kinship care assistance in that local authority's area, including:

a) the local authority's policy in relation to the provision of kinship care assistance;

b) the local authority assessment criteria for a kinship care placement;

c) the local authority's application process for kinship care assistance in relation to a financial allowance or financial support towards the cost of an application;

d) the rate at which allowances are payable:

e) any further information that the local authority considers relevant.

79. A local authority must keep published information under review and, where appropriate, publish revised information. The information should be provided in a timely and accessible manner. Information should be available in a range of languages and formats on request. It is recommended that local authorities should include information about their complaints procedures within their publication of information on kinship care assistance.