Legal practice framework FAQ

This statutory guidance sets out a “framework for the provision of support” for family and friends carers – also known as kinship carers. It provides guidance on local authorities’ duties towards children and young people who are living with family members, friends or “other people who are connected
with them,” without their parents.

The statutory guidance requires all local authorities in England to have a published family and friends care policy. It also requires each authority to identify a senior manager with responsibility for overseeing this area of child welfare.

This guidance applies to all Ukrainian children and young people living in kinship arrangements in England.

The statutory guidance includes a lot of other important information that practitioners should consider when supporting kinship families. It is recommended that the guidance is read in detail by practitioners supporting Ukrainian children and young people living in kinship arrangements. The guidance can be
found here.

Section 17 of the Children Act 1989 places a general legal duty on local authority’s children’s services departments in England to work to keep children who are in need:

• Safe
• Well cared for
• At home unless this would place them at risk.

To help achieve this, local authorities must provide a range and level of services in their local area to help children in need and their families.

The duties under section 17 of the Children Act 1989 apply to any child living within a local authority’s area in England, regardless of the child’s immigration status or family arrangement.

A child in England may be ‘in need’ if they need help from local authorities to support their development or be healthy. Disabled children are always classed as in need. For other children, local authorities need to complete an assessment to determine whether they fit this category. A local threshold document should set out how the local authority’s children’s services department carries out assessments and decides whether a child is in need enough to receive local services.

Whilst it is likely that children who have had to leave Ukraine because of the conflict are ‘children in need’ due to their experiences and displacement, local authority’s first need to complete an assessment before responding to them as such.

Assessment:
A child in need assessment is about making sure a child has what they need to be healthy and develop well. Working Together to Safeguard Children is statutory guidance which sets out services and what professionals need to do to keep children safe and promote their welfare. It explains the parameters
and principles of good quality assessments. This guidance applies to all assessments carried out under the Children Act 1989. This means it applies to child in need assessments as well as child protection assessments.

Practitioners should remember to work in partnership with the children and families when completing an assessment.

Private fostering is when someone who is not a parent or a ‘close relative’ is looking after a child or young person under the age of 16 (under 18 if they are disabled) for 28 days or more. The carer must be doing this in their own home. A ‘close relative’ is a grandparent, sibling, aunt, uncle or step-parent. The arrangement must be made by the child’s parent or legal guardian, not by the local authority.

When a child is being fostered privately, parental responsibility remains with the child’s parents. It is not shared with the private foster carer, but the private foster carer can make day-to-day decisions. The law and practice guidance about private fostering comes from:

• The Children (Private Arrangements for Fostering) Regulations 2005
• Private fostering statutory guidance
• National minimum standards.

The UK government advice is to apply the private fostering framework to any child or young person who is living in the UK without a parent or legal guardian, regardless of whether the arrangement fits the statutory definition of private fostering.

Some children and young people who have travelled to the UK without their parent or legal guardian have been sponsored under the Homes for Ukraine scheme. These children will already be known to the Home Office and DHLUC as “eligible minors” and will be known as such on their case management system ‘Foundry’. Local authorities have access to this system and there is guidance here. It is likely there will be a notification system within local authorities to ensure social work teams are made aware
of these children and can follow the necessary steps set out below.

Other children and young people may have arrived in the UK with a parent or legal guardian, but may be living without them as the parent or legal guardian has returned to the Ukraine. They may have arrived in the UK with an adult relative who is not their legal guardian, or have arrived in the UK without a parent or legal guardian before the extension of visa schemes included ‘eligible minors’. These children may not initially be known to social work teams through any established notification system, but there will still be necessary steps to follow below to ensure their well-being is safeguarded.
It is also important that their information is up to date on ‘Foundry’ and they may need to be “reclassified” as “eligible minors”. There is information about these situations here.

Type of arrangement and legal duties – quick guide:
It is important to be clear that the private fostering framework does not applyif the carer is a legal guardian.

Type of arrangement and legal duties – further information:
If a child or young person is living with a Homes for Ukraine sponsor, is under 16 and the sponsor is not a close relative, this is a statutory private fostering arrangement. All private fostering responsibilities and procedures must be followed in these cases.

If the child or young person is living with a Homes for Ukraine sponsor, is over 16 and the sponsor is not a close relative, local authorities should undertake a private fostering assessment. On a case by case basis local authorities can use their discretion and expertise in assessing risk and need to decide whether private fostering responsibilities and procedures should be continued beyond an initial period of assessment and follow up welfare visits. This should be based on an assessment of the arrangement’s strengths, vulnerabilities and needs. As the young person is over 16, this is not a statutory private fostering arrangement.

If the child or young person is living with a Homes for Ukraine sponsor together with a close adult relative, and is under 18, local authorities should undertake a private fostering assessment. On a case by case basis local authorities can use their discretion and expertise in assessing risk and need to decide whether private fostering responsibilities and procedures should be continued beyond an initial period of assessment and follow up welfare visits. This should be based on an assessment of the arrangement’s strengths, vulnerabilities and needs. As the young person is living with a close adult relative in the household, this is not a statutory private fostering arrangement. An analysis of the relationship between the child or young person and their close adult relative, and assessment of the care the child or young person is receiving from them, is likely to be needed. In some situations, the sponsor’s role will primarily have been to meet visa entry requirements, and it is the parent’s intention that the adult relative will be taking responsibility for the care of the child or young person. In some situations, the parent may be in close contact with the child or young person and adult relative, and be involved in decision-making for the child.

If a child or young person is living with a close adult relative in their own accommodation, and the relative is not a legal guardian, government advice is for local authorities to undertake a private fostering assessment. As the young person is living with a close adult relative, this is not a statutory private fostering arrangement. Therefore, families may decline the private fostering assessment, and the local authority is under no legal obligation to pursue it. If the family consent to the assessment, on a case by case basis local authorities can use their discretion and expertise in assessing risk and need to decide whether private fostering responsibilities and procedures should be continued beyond an initial period of assessment and follow up welfare visits, given the nature of the close relative relationship. This should be based on an assessment of the arrangement’s strengths, vulnerabilities and needs. An analysis of the relationship between the child or young person and their close adult relative, and assessment of the care the child or young person is receiving from them, is likely to be needed. In some situations, the parent may be in close contact with the child or young person and adult relative, and be involved in decision-making for the child.

Please see here for more information about how parental responsibility might operate depending on the visa scheme the child is here under and the kinship arrangement.

Where a child is looked after in the care system and in the care of a family or friend this is called kinship foster care. Local authorities are under a general legal duty to keep any child who is looked after in the care system safe and well cared for (see section 22(3) of the Children Act 1989). This duty applies to any child looked after in the care system, whether they are “in care” under a court order or a voluntary arrangement.

There are a range of things local authorities must do as part of keeping to this duty. Including making sure the views of parents (and other important family members) are gathered and are taken into account when any key decisions are being made about their child (see section 22(4) and (5) of the Children Act 1989). This duty applies regardless of the parents’ location. For more information about these duties please see here.

Anyone who is approved as a kinship foster carer should receive a fostering allowance from the local authority for the child. This applies whether the kinship foster carer is caring for the child under a court order, voluntary arrangement, has temporary approval as a foster carer or has been fully assessed and approved as a foster carer.

For more information about kinship foster care, including local authorities’ duties towards the carer and child and about the fostering allowance, see section on kinship foster care.

A Ukrainian child may need to be accommodated by their local authority, either because their sponsorship arrangement has broken down and another match has not been possible, or due to safeguarding concerns. The local authority has a duty to consider placing a child with a family member or friend, who would then need to become a kinship foster carer as the child is looked after.

Local authorities have duties towards looked after children who leave the care system to move to a kinship arrangement, or who return to the care of their parents.

If a child was previously looked after in the care system, the type of support provided by local authorities differs to a child who was not. For example, children who were previously looked after in the care system are automatically eligible for priority school admission.

Children who were looked after in the care system may be entitled to leaving care support, including access to ongoing support from a personal adviser. This includes children who were looked after in kinship foster care. See our advice sheets relating to support (Children’s services duties to young people leaving care and Financial support for young people leaving care).

A kinship carer caring for a Ukrainian child, may in some circumstances consider applying for a special guardianship order or a ‘lives with’ child arrangements order. These orders give the carer parental responsibility for the child, and a parent retains their parental responsibility. It is important that the carers get legal advice before deciding whether to apply for an order. This advice would need to address what, if any order is right for the child, what process they will need to follow, what assessments may be undertaken, the implications in relation to decision making about the child, and the short and long term implications for financial and other support. The carers should also engage, wherever possible with the child’s parents or legal guardian before deciding whether to apply for an order.

Families can be referred to Family Rights Group advice line for information and advice about both types of orders. Families may also find it helpful to view our online resources, including:

• Get help and advice page for kinship carers who have special guardianship orders
• Get help and advice page for kinship carers who have “lives with” child arrangements orders
• Advice sheet 2a) Special Guardianship: an introduction
• Advice sheet 2d) DIY special guardianship orders: private law proceedings
• Advice sheet 3e) Practical and financial support for special guardians
• Advice sheet 2i) The Education system in England information for kinship carers

Ukrainian children subject to a special guardianship order or a child arrangements order may be eligible for support according to the Special Guardianship Regulations 2005.

The Human Rights Act 1998 applies to all public bodies. This includes local authorities. This means they must take account of a person’s rights under the European Convention on Human Rights. This include working with children and families in ways which are consistent with the right to respect for their family life. This right can only be interfered with if it is necessary and ‘proportionate’.

This means:

• They should only make decisions about how a child should be cared for where that is necessary to achieve the aim of keeping the child safe and well.
• Any actions they take should be no more than what is needed to achieve that aim.
• Making sure their decision-making processes are fair and involve children and parents. There should be ways to challenge decisions. And for families to raise complaints.

Actions and decisions taken by local authorities must also take account of the human rights of children which are also protected under the United Nations Convention on the Rights of the Child.

Regardless of a child’s living situation, their nationality, immigration status or whether they are habitually resident in England, a local authority’s duties under section 17 (child in need) and section 47 (child protection enquiries) of the Children Act 1989 remain. These duties apply whether and how they are living with parents, friends, family or connected persons.

A local authority has a duty to complete child protection enquiries when:

• It has concerns a child is suffering significant harm
• It has concerns a child is likely to suffer significant harm
• A child is in police protection; or
• A child is under an emergency protection order.

Local authorities should continue to use the existing Working Together to Safeguard Children statutory guidance. Statutory guidance ‘Volume 1 Children Act 1989: Court orders and pre proceedings’ also provides guidance on involving wider family members. It says it is important for them be able to
contribute to decision-making, and to be involved early on, when there are concerns a child may not be safe and well cared for at home.

Wider family meetings, such as family group conferences, are an important way of involving the family early both to identify support but also to explore alternative permanence options for the child. A Family Group conference can include family members both in the UK and anyone living overseas. More
information about Family Group Conferences can be found here.

There are many resources to assist practitioners completing initial assessments of wider family members and friends, including Family Rights Group’s Initial Family and Friends Care Assessment: A good practice guide.

There is additional information regarding safeguarding Ukrainian children and young people living under the Homes for Ukraine scheme here. This contains links and resources regarding safeguarding risks such as modern slavery, trafficking, sexual and criminal exploitation. Local authorities may need to be particularly mindful of the potential risks posed by individuals applying to be Homes for Ukraine sponsors, given the additional vulnerability of children and young people fleeing war and experiencing loss and displacement.

Where any child is facing a breakdown in their care arrangements, and where there is no obvious person to care for them, local authorities may need to consider their duty to accommodate under section 20 of the Children Act 1989.

In situations where a child’s parent, or anyone with parental responsibility for them, is unable to care for them, a local authority must prioritise placement with other family members (section 22C (7) of the Children Act 1989). This includes consideration of family members who may be settled as a refugee in another country. The International Kinship Care Guide offers more detailed advice on how to manage legal, immigration, record checks and other practical issues. Local authorities will need to consult with the child’s parents and the child (where age appropriate) for their views on alternative arrangements.

If a Homes for Ukraine sponsor wishes to end an arrangement for a child or young person living with them without a parent or legal guardian, they must inform the local authority immediately. Local authorities will need to consult with a parent or legal guardian and the child (where age appropriate) for their views on alternative arrangements.

If a sponsorship arrangement breaks down, is ended for safeguarding concerns, or ends for any other reason, local authorities will need to consult with a parent or legal guardian for their views on alternative arrangements. But in any event, local authorities may need to consider their duty to
accommodate under section 20 of the Children Act 1989 to ensure the child or young person remains safe.