Dear Concerned aunt 123
Thank you for your post. My name is Suzie and I am FRG’s online adviser.
I am sorry to hear the difficulties you are currently facing, and of the death of your brother earlier this year.
You have explained that after your brother died, you immediately took on the care of your nephew. Children’s services subsequently became involved and made an application to the Family Court for an interim care order. The court made an interim care order on 14 April, and your nephew has since been placed with a maternal cousin.
The care proceedings are ongoing and you have been positively assessed as a possible special guardian for your nephew, as has the maternal cousin with whom he is living. You understand that children’s services are likely to propose a long-term plan that your nephew should continue to live with the maternal cousin under a special guardianship order. You would like to be joined as a party to the care proceedings as you would like your nephew to live with you. You are concerned that children’s services have not observed your contact with your nephew.
Significant harm
Significant harm is the degree of harm a child must be suffering (or at risk of suffering) before children’s services may apply for a public law order, such as a care order.
Significant harm is a phrase introduced by the Children Act 1989. The Act does not define ‘significant’. The question of whether or not harm is ‘significant’ relates to the impact on a child’s health or development. Physical abuse, sexual abuse, emotional abuse and neglect are all categories of significant harm. It can also include harm caused by seeing someone else being mistreated. For example, by witnessing domestic abuse.
Before the court can consider making a care order children’s services must prove that a ‘threshold’ has been met. Children’s services must be able to provide to the court that:
- • The child is suffering (or is likely to suffer) significant harm, and
• That harm is the result of the care being given to the child at home OR to the child being beyond the parents’ control.
A court will only make an
interim care order if it has reasonable grounds to believe that a child is suffering or is likely to suffer significant harm. In making an interim care order, the court’s decision must be limited to issues that cannot wait until the final hearing and the child’s removal from the family home can only be ordered if it is necessary to ensure the child’s immediate protection. In all cases, the court must be satisfied that making an interim care order is in the child’s best interests.
It is not possible to specifically advise you on what children’s services considered significant harm in relation to your nephew, which led them to issuing care proceedings. However, you may find an explanation about their concerns, which led to them issuing proceedings in your special guardianship assessment. You should have been provided a copy of this assessment. If you do not have a copy of the assessment, you should request one by writing to your nephew’s social worker. In addition, if you become a party to proceedings (see below), you will be entitled to receive a copy of all of the court papers, which will include information about the threshold criteria that were met, to enable the court to make an interim care order.
Special guardianship order
You have mentioned that you have been positively assessed as a possible special guardian for your nephew, and so it may be helpful to have some information about special guardianship. A special guardianship is a court order that says a child will live permanently with someone (who is not their parent) until they are 18. A person with parental responsibility is responsible for the care and wellbeing of the child. This includes, providing a home for the child, protecting and caring for the child and consenting to the child’s medical treatment.
A person with special guardianship has exclusive parental responsibility. This means that although the special guardian should consult with parents about important decisions relating to the child, the special guardian can make the final decision. You can find more information and advice on special guardianship
here
Final care plans for your nephew, and the final hearing
In respect of long-term arrangements, you have said that children’s services have completed a positive assessment for you as a potential special guardian for the children. You have mentioned that the maternal cousin has also been positively assessed as a long-term carer for the child and that children’s services are supportive of her. You have not mentioned whether your nephew’s mother is putting herself forward as a carer for her son. The court will look at all options for your nephew, including living with his mother. If he cannot live with his mother, then the court will consider family and friends care.
As part of the care proceedings, children’s services will need to draw up a final care plan for your nephew. The care plan should be a detailed plan which covers how the child’s needs will be met and the arrangements for your nephew’s care now and in the future. The care plan must set out:
- • Where the child will live and why this is best for them
• Long term plans for the child
• How the child’s needs will be met including their education, health and developmental needs, including social and emotional and development
• Contact arrangements – with their parents, siblings and wider family and friends’ network
• Name of the child’s independent reviewing officer
Then, at the final hearing, the judge will look at what the care plan and options for a child’s long-term arrangements. The final decisions that are made in care proceedings are about:
- • The best long-term care arrangements for the child
• Who the child should have an ongoing relationship with and stay in touch with. This includes who the child should see, how often and other such arrangements. This often referred to as ‘contact arrangements’
• Whether any kind of court order is needed to put those arrangements in place.
From what you have shared it sounds like the options before the court are likely to be whether to make special guardianship orders in favour of you or the maternal cousin. The court will need to consider your nephew’s wishes and feelings. His views will be considered in light of his age and maturity. As he is 13 years old, his views should be given greater weight.
All parties to the care proceedings will be able to put their views to the court either by writing a witness statement or giving oral evidence at the final hearing. This will be a chance for different people involved in the case to explain their point of view or their recommendations.
You can find details information and advice about what to expect at the final hearing
here
In terms of how you will contest children’s services’ plan for your nephew to live with the material cousin, ultimately you will need to demonstrate to the court that his needs are best met in your care. It will be for the judge or magistrates hearing the case to decide between placing your nephew with you or the maternal cousin. It is important to remember when making a decision, the child’s best interests will be the court’s paramount consideration. In determining what is in the child’s best interests, the court will look at the ‘welfare checklist’.
The welfare checklist is a list of things set out in section 1(3) of the Children Act 1989. The court must take into account:
- • The child’s wishes and feelings (bearing the child’s age and understanding)
• The child’s needs (physical, emotional and educational)
• The likely effect on the child of any changes in their circumstances
• The child’s age, sex and background (and any other relevant characteristics)
• Any harm the child has suffered (or any risk of harm)
• The parents’ ability to meet the child’s needs
Children’s services observing contact
It is concerning that children’s services have not visited you during contact sessions with your nephew. We would advise making a formal request to children’s services to come and observe contact, noting that they should not reach a final conclusion about the best care plan for your nephew without observing your relationship and time together. It may be worth proposing alternative contact arrangements. For example, proposing that you spend time with your nephew on a week day, to enable the social worker to observe contact. If they are not receptive to this request, this may be something you can raise with the court as a gap in evidence.
Becoming a party to proceedings
From what you have said, it sounds as though the care proceedings are moving towards a final hearing. You have said that you will be applying to become a party to the care proceedings This is a good idea, as it will ensure your wish to become a carer for your nephew will be heard.
You can do this by issuing an application to become a special guardian. When issuing this application, it can be joined to children’s services application for a care order and be heard at the same hearings with the same parties.
It is not always necessary to issue an application to become a special guardian, because the court has the power to make a special guardianship order at the final hearing in care proceedings, without a separate application having been made.
Alternatively, you can just ask the court to make you a party to the care proceedings. It will be up to the Judge or Magistrates hearing the case as to whether you will be made a party and they will consider whether you have a distinct case to present to the court. As you have been positively assessed as a potential special guardian for your nephew, the court may see it as a beneficial to have you joined as a party to proceedings.
Whether you decide to make an application for special guardianship or to join the care proceedings, you will be making the application in existing care proceedings. This means you will need to complete
court form C2. To complete this form you will need the name of the court, case number and details of the other parties. A fee of £155 is payable when making this application. You may be able to get help paying all or part of the fee from the court, you can find further information on
gov.uk website .
When you are made a party to proceedings you should receive a copy of the court bundle. The court bundle will include all assessment reports, children’s guardian’s analysis and recommendations, a care plan and written statements from the social worker and family members. As a party to proceedings, you will also have the opportunity to provide a statement to the court.
You should also receive a copy of the court order listing the issues resolution hearing or the final hearing. Our dedicated
issues resolution hearing and
final hearing pages offer information and advice on the purpose of each hearing. If you do not know the date of the next hearing you should ask the children’s social work or children services’ legal team to confirm.
Contact between your nephew and his sibling
You have raised a concern that contact between your nephew and his paternal sibling has not been considered. Children’s services have a legal duty to promote contact between a child and their siblings and contact arrangements should form part of their placement plan. This
table looks at the law and guidance about contact that applies when a child is looked after in the care system. Children’s services have a legal duty to take into account your nephew’s views on sibling contact. As he is 13 his views on contact will be important and should be taken into account by children’s services.
Legal advice
Legal representation can be costly. You may be interested in looking at ‘flexible instruction’ of a solicitor. This means that instead of instructing a solicitor for the full length of the case, you can seek advice at specific stages of proceedings. For example, you can get some initial advice on your special guardianship assessment or assistance in writing you statement for the final hearing. Or for representation at the final hearing
To find a solicitor, search using the
‘how to find a solicitor’ function on the Law Society website. Look for someone who is a child law specialist. Or who has
‘Children Law Accreditation’ . For information about finding a solicitor and working with them, please see our top tips guide
Working with a solicitor .
If you are not successful in securing legal representation before the final hearing, then you should still pursue a special guardianship within the care proceedings. You can find detailed information and advice about how to do this as a litigant in person in our
DIY special guardianship orders: care proceedings advice sheet.
Next steps
In terms of next steps I would advise:
- 1. Writing to children’s services making a formal request for them to observe contact between you and your nephew
2. If you are made a party to proceedings, ask for a full copy of the court bundle. This will help you prepare for the final hearing and in the care proceedings
3. Prepare for the final hearing by seeking independent legal advice and/or reviewing the final hearing section of our Care (and related) proceedings page.
If you would like to discuss the situation with an adviser, please call our freephone advice helpline on 0808 8010366; the lines are open Monday to Friday from 9.30am to 3pm. Or please reply to this post if you have further questions.
Best wishes
Suzie
