SCOPE OF THIS CHAPTER
This policy deals with Residence Orders and Allowances in relation both to children looked after, and to children within the community.
Children Act 1989 (as amended), Sections 8 to 15 and Schedule 1
In March 2013, this chapter was extensively amended and should be read in its entirety.
A Residence Order may be used to increase the degree of legal permanence in a placement with relatives or friends, or a long-term fostering placement, where this would be in the child's best interests. A child will no longer be a Looked After Child once a residence order is made and the fostering placement comes to an end.
Where a child would otherwise have to be placed with strangers, a placement with family or friends may be identified as a preferred option and the carers may be encouraged and supported to apply for a Residence Order where this will be in the best interests of the child.
A Residence Order confers Parental Responsibility, to be shared more equally with the parents than with Special Guardianship, which in some cases may be a more appropriate arrangement.
The holder of a Residence Order does not have the right to consent to the child's adoption nor to appoint a guardian; in addition, he/she may not change the child's name nor arrange for the child's emigration (the child cannot be taken out of the country for more than one month) without the consent of all those with Parental Responsibility or the leave of the court.
Whilst support may continue for as long as the Residence Order remains in force, the aim will be to make arrangements which are self-sustaining in the long run.
The making of a Residence Order can now be made until the child is 18 and will have the effect of discharging a Care Order.
The following people may apply for a Residence Order: without first obtaining permission from the court:
- A parent or guardian;
- A party to a marriage (whether the marriage is subsisting or not) where the child was brought up as a child of the family;
- A person with whom the child has lived for 3 years. (This need not be continuous but must not have started more than 5 years before or ended more than 3 months before the making of the application);
- A local authority foster carer with whom the child has lived for 1 year;
- Where a Residence Order is already in force, a person who has the consent of those in whose favour the Residence Order was made;
- Where the child is Looked After, a person with the consent of the relevant local authority;
- In any other case, a person who has the consent of all those with Parental Responsibility.
Anyone else who wishes to apply, including the child, must apply to the court for leave to make the application for a Residence Order.
A Residence Order has the following advantages:
- It gives Parental Responsibility to the carer whilst maintaining the parents' Parental Responsibility;
- The child will no longer be Looked After and there need be no social work involvement, therefore, unless this is identified as necessary;
- There is no review process;
- The child will not be Looked After and so less stigma is attached to the placement;
- Any contact is likely to be agreed and if considered necessary by the Court, set out in a Contact Order;
- The carer with a residence order can apply to have the child returned and seek assistance from the court and/or the police should another person refuse to hand over the child.
A Residence Order has the following disadvantages:
- It is less secure than Adoption or Special Guardianship in that an application can be made to revoke the Residence Order. However, the Court making the order can be asked to attach a condition refusing a parent's right to seek revocation without leave of the court;
- There is no formal continuing support to the family after the Order is made although in some instances, a Residence Order Allowance may be payable by the local authority;
- There is no professional reviewing of the arrangements after the Order unless a new application to court is made, for example by the parents for contact or revocation. (NB New applications to court may be expensive to defend, and the carers would have to bear the cost if not entitled to assistance with legal costs).
2. Financial Support
Financial support is intended to supplement existing means of support available to families and the child or children who are subject to a residence order. Carers must be given advice of entitlements to employee's rights to leave and pay, benefits, tax credits and allowances, and these should be taken into account when considering amounts of financial support.
The payment of residence order financial support is aligned with those payments for Special Guardianship and Adoption Financial Support, and is based on fostering payments as a maximum level of support.
All residence order allowances are means tested in line with the nationally prescribed means test.
Residence order financial support will only be paid in respect of a child/ren who are or have been looked after by the Local Authority, or where the Local Authority is supporting a Care Plan for a residence order to prevent a child/ren coming into its care.
In cases where the Local Authority has not been involved, a request for financial support should be looked at in the light of individual circumstances. Consideration must be given to whether financial support is required to safeguard the child (thus avoiding a need for the child to come into care) and/or to ensure that the child can continue to be cared for by family/friends. A core assessment is required to determine individual need and any support arising from this assessment will be subject to the same nationally prescribed means test.
The specific circumstances in which provision of financial support may be paid are as follows:
- Where it is necessary to ensure that the holders of a residence order can look after a child;
- Where the child needs special care which requires a greater expenditure of resources by reason of illness, disability, emotional or behavioural difficulties or the continuing consequences of neglect - and the child's condition is serious and long-term;
- Where it is necessary for the local authority to make any special arrangements to facilitate the placement by reason of the age or ethnic origin of the child or the desirability of the child being placed with siblings or a child with whom he/she has previously shared a home;
- Where such support is to meet the recurring costs of travel for visits for the child to members of the birth family/significant others;
- Where the local authority considers it appropriate to contribute towards expenditure on legal costs, including Court fees (in cases where the residence order is supported by the local authority), or expenditure on accommodating the child (e.g. adaptations to the home, furniture, clothing or transport).
2.3 Types of Payment
Payments under a residence order may be made in the following ways:
- Regular payments - which will be based upon the developmental age of the child and reviewed annually by the local authority, any change in circumstances will be considered;
- Lump sum payments (settling in costs, special needs and adaptations), which will cover items or adaptations that are required as a consequence of assessment of each child's individual needs. Payment may be in installments and will end at a time specified by the local authority.
Financial support will not generally include the "reward" element which may be payable to foster carers and neither will payments be made so as to provide an income.
2.4 Assessment for Financial Support
Where regular financial support is considered appropriate, the amount to be paid to will be determined by an assessment of their means. This will take account of the carers income and resources (excluding their home), reasonable outgoings and commitments, and the financial needs and resources of the child. (N.B. Support provided under Criteria (v) to assist with legal costs or expenses associated with the child's introduction to the placement will not be subject to an assessment of means).
As part of this assessment, the carers should be asked to complete an Initial Household Income Assessment Form (IHIA) with support from the welfare rights worker and the completed form should be forwarded to the Finance Department. The Children's Service Manager will decide the level of support having regard to this assessment, and obtain budgetary approval as necessary depending on the amount.
The carers will be sent written confirmation of the decision to provide financial support. This will include the amount and terms of the support and information about annual reviews. Any payment will be backdated to the date of the application (not to the date of commencement of the placement).
2.6 Terms and Conditions
If it is decided that financial support should be given to holders of a residence order, payment may be subject to conditions and a date specified by which the condition is to be met.
Prior to making financial support available to carers, they will be required to inform Children’s Social Care:
- Of changes to their home address;
- If the child (for any reason) no longer lives with them;
- If there are any changes to their financial situation/the resources of the child;
- If the child ceases full time education;
- Or any other change in circumstances.
Where information is given orally, this must be confirmed in writing within 7 days.
Should carers fail to comply with the requirements, the authority may suspend payment of the financial support provided.
2.7 Annual Review of Support
Holders of residence orders must also agree to complete and supply the authority with an annual statement of their circumstances for the annual review.
The carers should specify the following in the statement:
- Their financial circumstances;
- The financial needs and resources of the child or children;
- Their home address and whether or not the child or children live at home with them;
- If there have been any changes to their own or the child/children's circumstances.
The Local Authority will carry out an annual review of the financial support, taking into account the information given. Any proposed variation or termination of the financial support must be notified to the person(s) concerned in writing. This notification must include the reasons for the variation or termination together with information on how an appeal can be made. Any decision to vary or terminate should also consider whether it is appropriate to seek to recover all or any of the financial support already paid.
Should carers fail to supply an annual statement, the authority must send a written reminder and give 28 days to comply. If they fail to comply, the authority may suspend payment of the financial support provided.
2.8 Ending of Financial Support
Financial support will end in the following circumstances:
- When a child reaches age 18, unless he/she continues in full time education or training when support may continue until the end of the course of education or training being undertaken, subject to any other financial support the child may be entitled to receive;
- Where a child ceases full-time education or training or commences employment;
- Where a child qualifies for income support or job seekers allowance in his/her own right;
- Where circumstances have changed significantly and the criteria are no longer met;
- If a child leaves the home and this is regarded as a permanent departure. Temporary absences do not apply, e.g. boarding school, hospital, and respite care;
- The child dies;
- The residence order is revoked.