If a child is unable to live with their parents, for example due to lack of parental care, parental substance abuse or other risk of harm to the child, the local authority has a duty to consider the child's extended family as alternative or kinship carers before considering foster care.
The term 'kinship care' is defined in the Children (Scotland) Act 1995 ("the 1995 Act ") as a care arrangement in which a child is looked after by someone "who is related to the child (through blood, marriage or civil partnership) or with whom the child has a pre-existing relationship." This means that grandparents, aunts, uncles, adult siblings, and even family friends all fall within the range of individuals the local authority should consider as alternative carers when placing a child away from the care of their parents.
Informal Kinship Care
Kinship care arrangements can arise without the involvement (or knowledge, in some cases) of the local authority – for example when a child's parents have made arrangements directly with extended family about where the child should live. Such arrangements can operate successfully on an informal basis, particularly where the issues are short term and/or there is a good working relationship between parents and wider family. However, as a family situation evolves, the child's welfare may require their place of residence with a kinship carer to be legally secured. This can also enable the kinship carer to access financial support towards the cost of caring for the child, which can be important if the arrangement is to be longer term. Given the complex family dynamics which are often present in these cases, identifying the best legal route for the child may not be straightforward.
Section 25 consent
It may be appropriate for kindship care arrangements to be formalised even where there is agreement between the child's parents and the kinship carer about the care arrangements for a child, in order to provide a degree of stability for both the child and the kinship carers. In those circumstances, the local authority may ask the child's parents to give formal consent under section 25 of the 1995 Act to the child residing elsewhere. This is often referred to as "a section 25 agreement". The parents can, however, withdraw their consent at any time, and in that event other legal steps may be required.
Compulsory Supervision Order
If the child has been referred to the Children's Reporter, their residence may be secured by the Children's Hearing making a Compulsory Supervision Order ("CSO") which includes a condition stipulating where the child is to live and with whom they are to have contact. A CSO can last for a maximum of one year but can be reviewed at any time at the request of the local authority or after three months at the request of a parent or other relevant person. Accordingly, a CSO does not provide long term security for the child or family. It is, therefore, often necessary as part of the child's permanent plan that other legal routes are considered.
The local authority may consider securing a child's kinship care placement by applying for a Permanence Order. A Permanence Order can only be applied for by the local authority (i.e. not by kinship carers) and, if granted, has the effect of depriving the child's birth parents of their parental responsibilities and rights. In some cases birth parents will retain some limited right to contact with the child, but only if this is deemed to be in the child's best interests. Otherwise, upon granting of a Permanence Order parental rights and responsibilities for the child vest in the local authority (or in some cases directly with the kinship carer). However, Permanence Orders are rarely the most appropriate way of securing a child's long term placement with a kinship carer as the local authority requires to have ongoing involvement in matters concerning the day to day upbringing of the child which may be unnecessary and impractical.
Although adoption may be considered as a part of permanence planning for a child in kinship care, due to the family dynamics and relationships involved, kinship adoptions are relatively uncommon. Adoption severs the legal relationship between birth parents and child, and the adoptive parents become the child's legal parents. Post-adoption the child has a new legal identity, and so in a kinship care situation that could result in the legal relationship between a child and their carers changing, for example, from aunt and niece to mother and daughter. Adoption in kinship care cases is likely only to be appropriate where the child is very young and therefore will have no memory of their birth parents and there is little or no relationship between the birth parents and the rest of the family.
Section 11 orders
In long term kinship care cases, often the most appropriate route to secure stability for the child is for the kinship carer to apply for a court order under section 11 of the 1995 Act. A section 11 order can be used to confer parental rights and responsibilities on the kinship carer, including determining where a child is to live. Unlike adoption or permanence orders, the making of a section 11 order does not automatically remove the birth parents' parental responsibilities and rights so the kinship carer would have a duty to consult with the child's birth parents about important decisions affecting the child's welfare. To avoid future conflict on these matters, the court can also be asked to make a specific issue order under section 11 to regulate a distinct issue such as which school the child should attend, consent to medical treatment, or the ability of the kinship carer to travel abroad with the child.
In considering whether to grant an order under section 11, the court will consider three principles; firstly, the welfare of the child which is the paramount consideration, secondly, the views of the child where they have (if it is practicable for them to express and view and they wish to do so )and thirdly, whether making such order would be better for the child than no order at all.
Brodies family law team are experienced in advising individuals and local authorities in matters relating to kinship care. Please get in touch for more information.