Are sgo's a minefield worth crossing 2.1
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Are sgo's a minefield worth crossing 2.1






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Are sgo's a minefield worth crossing 2.1 Are sgo's a minefield worth crossing 2.1 Presentation Transcript

  • Welcome! Nigel Priestley: Senior Partner Ridley & Hall Huddersfield
  • Are Special Guardianship Orders a minefield worth crossing?
    • Care Order
    • or
    • Special
    • Guardianship Order?
  • Advantages of a Care Order
    • LA Duty to promote welfare of the child and contact
    • Carers are not “alone” with damaged children
    • Buffer at contact
    • Access to CAMHS
    • “Looked after” status –Education and school choice
    • Non-means tested annually up-rated Fostering Allowances
    • Post 16/18 provision for child
  • Disadvantages
    • Ongoing involvement of Local Authority
    • “Stigma” of being a “looked after” child
    • LA’s can – do remove settled children
    • LA’s unilaterally vary support plans
  • Care Planning
    • So when Childrens Services ask Legal Services to start Care Proceedings but really want an SGO…..!
  • Must a Carer accept an SGO?
    • See Re K (Care Order or Residence Order)
    • 1995 1 FLR 675
    • Held (1) A CO could have some financial advantages for grandparents and indirect advantages for the children
    • (2) “It was difficult to conceive of circumstances in which it would not be wrong in principle to oblige grandparents, who had not applied for and did not desire a RO, to accept such an order”
    • For RO – Read SGO?
  • Should I be tempted by an SGO?
    • Special Guardianship orders came into force in December 2005
    • Intended to fill the gap between Adoption at one end of the spectrum ROs/long term fostering at the other end
    • As part of the Assessment process an assessment for support is carried out
  • Special guardianship Guidance
    • Don’t read the Regulations without reading the Guidance issued by Department for Education and Skills
    • This is s7 Local Authority Social Services Act 1970 (LASSA) Guidance – it’s to be complied with by LAs “unless local circumstances indicate exceptional reasons”
  • Legal Framework
    • Relevant provisions for financial support are s14F Children Act 1989
    • The Special Guardianship Regulations 2005 (SI2005/1109)
    • Reg 6 address the circumstances when support is payable
    • Reg 13 sets out the financial considerations the LA must take into account
  • What does this mean in practice?
    • The assessment is a wide ranging assessment that covers health education as well as finance
    • The regulations governing assessment are extremely detailed
    • The result should be a plan that is clear – Reg. 14 “The plan should be set out in writing in a way everybody affected by it can understand
    • Someone has to monitor the provision of the services in the plan
  • Special Guardianship Advantages
    • Gives Parental Authority
    • Ends Statutory role of LA
    • Can claim benefits
    • In theory, provides for support package financially, educationally financially
  • Disadvantages of SGO’s
    • Does it in practice prevent further court proceedings?
    • Who pays then for legal representation?
    • You are on your own – child no longer “looked after”
    • How does holder enforce a Support Plan?
    • Significant issues re Financial Support
  • But what SGO Allowance will be paid?
    • SGO Allowances are:
    • Means tested
    • Subject to Annual review
    • Like Fostering Allowances, they are not regarded as family income for the calculation of means tested benefits and for tax
    • And can be significantly lower
  • In practice what can happen?
    • Q . What happens when a District Judge, a Local Authority, an unrepresented Kinship Carer and a hard-pressed Children’s Guardian get together on a Discharge of a Care Order?
    • A. A reduction in payment from £317 per fortnight to £107.30!
    • For Foster Carers it can lead to financial loss – loss of skill payments in the long term, loss of loyalty payments.
  • The Problem for Kinship Carers
    • There is a shortage of over 10,000 Foster Carers
    • There is an increasing reliance on Kinship Carers
    • BUT…
    • Has your LA actually got a policy approved by the Cabinet setting out the level of the Special Guardianship Allowance?
    • When was it approved?
    • Have you ever asked to look at it?
    • How has the Allowance been set?
  • What should Local Authorities be Paying?
    • Para 65 of the Guidance says
    • “ In determining the amount of any ongoing financial support, the Local Authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The Local Authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the Local Authority would consider paying the family.”
  • Why is this important? Consider B v Lewisham LBC [2008] EWHC 738
    • Lewisham is the leading case on SGO Allowances
    • It was decided by Black J
    • Lewisham did not appeal
    • They applied its principles across the board
    • They had tied the level of the SGO Allowance to the level of the Adoption Allowance
  • What did Lewisham say?
    • Lewisham argued that the phrase “should have regard to” did not mean “must be the same as”
    • submitted that its Special Guardianship Support Scheme was properly tied to the Adoption Support Scheme which was nearly identical in terms.
    • During the hearing Her Honour Judge Black noted paragraph 52 of the Adoption Support Guidance was almost identical in terms to paragraph 65 of the Special Guardianship Guidance.  
  • They argued…
    • that there was a distinction between a foster carer caring for a “Looked After Child” and a child where the carer held Parental Responsibility and was making a permanent commitment to a specific child.
    • It was, therefore, argued that this was more like adoption so it set it the SGO allowance at a figure equivalent to the adoption support rates.
    • Lewisham said that they had had regard to the fostering rates and they then made “appropriate“adjustments.
  • And Black J said
    • that the terms of paragraph 65 did not entitle the Local Authority to disregard fostering rates although they could take into account some differential expenses.
    • she was not convinced that fostered children are more expensive to care for than those under Special Guardianship.
    • She ruled that it was not open to the Local Authority to simply disregard fostering rates.
  • And added
    • that the Local Authority was not free to dictate that some types of placement would carry a significant financial disadvantage in comparison with others
    • or that they would impose a financial strain on a Carer such that they would be forced to use another type of placement.
  • Which meant…
    • Para 65 required a close relationship between Fostering Allowances and SG Allowances
    • Core Allowance plus enhancements forms the maximum Special Guardianship payment
    • And this does not include the transitional period for foster carers
    • remuneration
    • Followed in Barrett v Kirklees MC [2010] EWHC 467 (Admin)
  • So this means what?
    • If your LA scheme doesn’t use the fostering allowance as a starting point, it may be unlawful
    • Where a carer is offered a SGO allowance significantly different to that they would have received as a foster carer it may be suspect
    • BUT…
    • There are still many local authorities that have not applied the Lewisham and Kirklees judgements
  • Fostering Network says…
    • Minimum weekly allowances for fostered children, from April 2011 (2010 rates in brackets)
    • Outside London:
    • Age 0-4: £131.47(£125.09)
    • Age 5-10: £149.76 (£142.49)
    • Age 11-15: £186.43 (£177.38)
    • Age 16+: £226.74 (£215.74)
    • In London:
            • Age 0-4: £154.30 (£146.81)
            • Age 5-10: £175.90 (£167.36)
            • Age 11-15: £219.05 (£208.42)
            • Age 16+: £266.01 (£253.10)
  • Out of borough placements
    • s14A(7) – written notice of Intention to apply for an SGO must go:
    • (a) if a ‘looked after’ child to that local authority
    • (b) otherwise to LA in whose area individual is ordinarily resident
    • There are no short cuts!
    • s14A(8) imposes on any local authority who receives a notice a duty to prepare a prescribed report for the court.
    • s14A(11) provides: “the court may not make an SGO unless it has received a report (under (8))
  • So which authority is responsible?
    • O v L I and Orkney Island Council [2009]
    • EWHC 3173 (Fam)
    • Where a previously ‘looked after’ child to Orkney was placed in Cambridgeshire
    • And…
    • GC v LD & Others [2009] EWHC 1942 (Fam)
    • On which authority pay allowances when a ‘looked after’ child becomes subject to an Interim Residence Order
  • Even then things go wrong
    • What happens to an agreed SGO Support Package when an application is made for an SGO…
    • But the judge decides that a Residence Order is appropriate?
    • The answer may be Judicial Review when the LA reneges on its plans!
  • Is the child ‘looked after’?
    • Its important!
  • Regulation 11 – Special Guardianships Regs. 2005 provides:
    • a ‘looked after’ child must be assessed for support services
    • a child (where not looked after) may be assessed
    • - its discretionary
    • ‘ Looked after’ children
    • - the new battleground !
    With budgets under pressure…
  • D v Southwark
    • Appeal by a local authority against a decision that they had to pay for the child's accommodation and maintenance while she was being looked after by a friend of the father. Appeal dismissed.
    • The local authority had argued in the original judicial review that it was under no duty to care for child as they had merely acted as facilitators in creating a private fostering arrangement.
  • But the CoA said… In rejecting their appeal, Smith LJ conceded that there might be times when a local authority could 'side-step' their duties in this manner and that a private arrangement need not involve them. However in this case the local authority had played a major role in the settling the child and so were exercising their duties under s 20 of the Children Act.
    • This decision has been followed in:
    • A (R on the application of) v Coventry City Council [2009] EWHC 34 (Admin)
    • SA v KCC [2010] EWHC 848 (Admin)
    • - but Kent have appealed!
    • - and the Department for Education have intervened
    • The Battle lines are drawn.
  • As the cuts bite…
    • Who will support Special Guardians and Kinship Carers in general?
    • If an SGO is made:
    • Will allowances come under strict scrutiny?
    • Will holders of SGO’s have the same experience of Adopters with Post Adoption Support?
  • Nigel Priestley: Senior Partner Ridley & Hall Huddersfield 01484 538421 [email_address] Nigel Priestley nigelpriestley