Jacqui Gilliatt sets out some practice points arising out of a recent case involving section 17 and Child Arrangements Orders.
An issue recently arose in a case where a mother had agreed that her children should live temporarily with their grandmother, a month later gave s 20 consent for this and a month later the local authority issued proceedings. At the first hearing it was agreed that a child arrangements order should be made in favour of the grandmother (who was not present or represented at the hearing) with a supervision order to the local authority. Mother’s contact was to be supervised, sometimes by the local authority and sometimes by the grandmother. (For more on s 20 see my article)
The local authority then realised that they would be unable to offer supervised contact – effectively they had a policy not to do so under s 17 of the Children Act 1989 for a period of more than 3 months. They also realised that they would be unable to make payments to the grandmother as a kinship foster carer because the children were no longer looked after and they said that grandmother would no longer be eligible and would have to rely on additional benefits only, making her worse off by something like £300 a week. The local authority also considered that it would be unable to make a supervising social worker available to the grandmother, though it was not explained why this would not be done as a result of the supervision order.
The local authority brought the case back to court suggesting that the situation should revert back to s 20 as a way of getting round the policies they had. Another possible solution might have been to make an interim care order, but issues of proportionality and necessity would arise and avoiding the impact of the local authority’s policies did not strike me as a good enough reason for higher level intervention.
The grandmother had not been present or represented at the hearing and had not received any legal advice. Ironically, because of the child arrangements order she became eligible for legal aid. She had quite clearly not been aware of the danger of the child arrangements order and it is not clear whether she was even asked whether she wanted one, although it seems that the local authority said she did.
The Judge was not impressed! She felt that the local authority had invited the court to make an order which the court would not have made, had it been aware of the consequences, albeit that this may have been because they did not realise there were any. The grandmother was at court but had not managed to get representation or advice in time for the hearing and was not therefore sure whether she wanted the child arrangements order to continue or not. The Judge declined to do anything until the grandmother could get advice and the local authority agreed to supervise contact and make the additional payments until she could do so and the best path forward was clear.
A number of practice points arise:
- Is it a lawful policy to have that s 17 funds cannot be used to pay for supervised contact for more than 3 months? I think not, although I do sympathise that many local authorities have to cut £millions from their budgets and it has to come from somewhere. The trouble is so many other budgets have been cut that the availability of contact centres generally is much thinner on the ground and some charge a fee which families on benefits are unlikely to be able to afford. In any event the local authority should look at the needs of the particular child and family. The particular local authority does not seem to have a published policy on support for contact to non-looked after children.
- Is it a lawful policy not to pay kinship carers the same amount whatever the legal regime governing the placement, at least while proceedings are on foot? I know some local authorities do but many take the line that s 17 payments are discretionary and regular payments will only be made if the carer has no entitlement to other sources of income such as benefits. I think this is a policy which is usually set by the council rather than the officers. I have looked at the local authority’s published policy as to s 17 payments and it says that in any event ‘payments should be no greater than the current Income Support levels’.
- Should local authorities always ensure before ‘delegating’ any of their responsibilities to family members that those family members get proper legal advice, paid for by the local authority if necessary? It seems to me the answer must be yes and at the very least the local authority should be aware of the impact of different regimes in light of its own policies and be ready to advise the court and the parties and affected carers of this.
- Is there any difficulty with reverting back to s 20 in these circumstances? Possibly, the mother could not be bound by any agreement not to change her mind without giving written notice – though she would be doing so after full legal advice. It has the potential drawback of removing her ability to make an application for contact under s 34 and it does not make it easy to make an application for a child arrangements order, though I think this is possible. The grandmother would lose her entitlement to legal aid, though she could be made a party to the care proceedings and if eligible for legal aid, get it that way.
- If the local authority had been suggesting a care order was necessary I would have asked the court to direct the attendance of a decision maker of appropriate level who could speak to the policy and the reasons for its application to a particular case.
- Advocates asking for courts to make orders affecting family members should make sure that the family member has been genuinely consulted with full information and get the social workers to check with managers at a higher level what effect the making of a private law order and cessation of looked after status might have.
I was left uncertain whether the particular local authority really did have a policy that contact supervision could only be offered under s 17 for a 3 month period or whether it was a rule of thumb which could be disapplied in individual cases. It is quite common in my experience for Special Guardianship orders to be made with contact to parents being supervised by a local authority for longer than that.
I would be very interested to hear if others have come across these sorts of difficulties.