This week marks Kinship Care Week, an opportunity to celebrate and recognise the important role that kinship carers play in the lives of children and young people.
What is kinship care
A kinship carer is family member or friend who steps in care for a child, or children, when they can no longer live with their parents due to lack of care, substance abuse, or other risk factors. The local authority has a duty consider the child's extended family as alternative carers before foster care. Kinship care is defined in the Children (Scotland) Act 1995 ("the 1995 Act"), and involves a child being looked after by someone related to them or with whom they have a pre-existing relationship. This can include grandparents, aunts, uncles, adult siblings, and family friends.
Informal and formal arrangements
Kinship care can be informal, where parents arrange for the child to live with extended family or friends without any local authority involvement. These informal arrangements can be successful but may require further legal security for the child's welfare and financial support in the longer-term. This can also be important for other reasons, such as enabling the kinship carer to access financial support. Formalising kinship care can provide stability, and parents may give formal consent under section 25 of the 1995 Act. If consent of the parent is withdrawn, other legal steps may become necessary.
A Compulsory Supervision Order (CSO) can secure a child's residence through the Children's Hearing system. CSOs last up to one year and can be reviewed if necessary, however, again, they do not provide long-term security. Permanence Orders, which can only be applied for by the local authority, can secure a child's placement but do involve ongoing local authority involvement. Permanence orders have the effect of depriving the child's birth parents of their parental rights and responsibilities. Adoption may also be considered as part of a longer-term plan for permanence; however, it is rare in kinship care circumstances. Kinship carers usually do not become adoptive parents due to conflicting family dynamics and the fact that adoption has the effect of severing the relationship between the birth parents and the child, meaning the child's adoptive parents become their legal parents.
Section 11 orders
In circumstances where longer term arrangements for kinship care are necessary, the kinship carer can apply to the court for an order under section 11 of the 1995 Act. This can be to confer parental rights and responsibilities on the kinship carer or, for example, to deal with where a child should live or go to school. It is worth noting that the granting of orders upon a person under section 11 of the 1995 Act does not automatically remove the birth parents' rights or responsibilities. This means that the kinship carer would still require to consult with the child's birth parents about important decisions affecting the child.
The paramount consideration for the court when considering whether to make an order under section 11 is what is in the best interests of the child. The court will also take account of child's welfare considerations, their views, and whether it is better that an an order made than no order is made at all.
When a child or children cannot continue to reside with their parent or parents, kinship care can offer a solution which keeps the child within a community of people they know and trust. In this sense kinship care can provide a level of certainty which can be formal or informal and may or may not involve the local authority.
Brodies family law team have vast experience in advising clients in matters relating to kinship care. To find out more, please get in touch with one of our family lawyers.
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Senior Solicitor
