Scenario 5 – Safeguarding concerns arise in relation to children living with a relative

Immigration:

Depending on the outcome of the child protection enquiries, the families’ immigration status might need to be considered. Practitioners should keep under active review whether it is appropriate to refer the children and uncle for legal advice on their immigration position at all stages outlined below.

Legal responsibilities and status:

After receiving the referral from the sponsors, the local authority must decide whether the children need:

• Any immediate protection or immediate services or
• Whether to start a child in need assessment under section 17 of the Children Act 1989 or
• Whether to start child protection enquiries and assessment under section 47 of the Children Act
  1989

If the local authority suspects significant harm then child protection enquiries must be made. If the children’s parents can be located and are alive, the local authority must tell the children’s parent, the children and the sponsors what action (if any) they plan to take unless doing that may place the child at risk of harm (page 34 paragraph 80, Working Together 2018).

If the uncle was granted legal guardianship for children in Ukraine and then travelled to England, his Ukrainian order would usually be recognized ‘by operation of law’ pursuant to Article 23 of the 1996 Hague Convention, unless any grounds for non-recognition are established under Article 23. It may be appropriate for a request for co-operation to be made under the 1996 Hague Convention via the English Central Authority for background information on the children’s circumstances in Ukraine, and, in particular, any previous court  proceedings leading to the appointment of the uncle as a guardian, and any previous child protection measures taken there. This may also assist with identifying the children’s parents and their circumstances, although the extent to which this information can be obtained may depend on the capacity and functioning of the Ukrainian Central Authorities / competent authorities.

The guidance for local authorities on making a request to the Central Authority can be found here.

Statutory guidance says it is important for wider family members to be able to contribute to decision making, and be involved early on, when there are concerns a child may not be safe and well cared for at home. This is to see if they can support the child and their carer and in the event a child cannot remain safely with their carer, whether the child should be placed with family members. In this case, this will include the children’s parents in Ukraine. 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’ and may be appropriate here. A Family Group conference can include family members and anyone else who cares about the children, both in the UK and anyone living in Ukraine.

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.

‘Working Together to Safeguard Children’ (at page 30) says where the child has links to a foreign country, a  social worker may need to work with colleagues abroad. Cooperation may be required with the Central Authority under the 1996 Hague Convention on Parental Responsibility and Protection of Children.

The guidance for local authorities on making a request to the Central Authority can be found here.

If the children are placed on a child protection plan following any child protection enquiries, the safeguarding concerns may be adequately addressed and resolved through this process. However, if concerns increase and the local authority are concerned about the children remaining in their uncle’s care, they may wish to initiate the formal pre proceedings process. As the uncle has parental responsibility for the children, he would be eligible for non means tested legal aid to receive advice and representation during the pre-proceeding process. The parents would also be eligible for non means tested legal aid whether they are in the UK or overseas.

If the local authority’s safeguarding concerns remain or develop further during or following the pre proceedings process, they may seek to accommodate the children under section 20 of the Children Act 1989 or make an application to the Family Court for an interim care order under section 31 of the Children Act 1989. As the uncle has parental responsibility for the children he will be eligible for non means tested legal aid to receive advice and representation during the court proceedings. This legal aid will also be available for the child’s parents, whether they are in the UK or overseas.

If care proceedings are initiated in England under  section 31, the parents, if they are in Ukraine, or elsewhere overseas, and still have parental responsibility  for the children, would also be automatic respondents to the care proceedings. They would have legal aid to be represented in the English care proceedings, which would be non-means tested. If the Public Law Outline pre-proceedings process is initiated, they would have legal aid for representation at any pre-proceedings meetings, and advice on pre-proceedings processes, which would be non-means tested.

If a Ukrainian child is taken into care, it may be appropriate for the Local Authority to notify the Ukrainian Embassy as per the guidance on care proceedings involving children with foreign nationality, unless this would place the child or their family members at risk.

If there are other prospective carers for the children resident overseas, who underwent assessment, they might be able to make an application for party status in the care proceedings (subject to the court considering this to be in the children’s best interests). Legal aid may be available for them to make an application for party status and have legal advice but this would be means tested. The local authority may also consider providing any potential kinship carers overseas with financial assistance to secure independent legal advice.

Available support:

Local authorities will need to consider how to support the children and their carers, whatever stage of involvement they may be with the children. They will need to consider the Family and Friends Care Statutory Guidance, in particular what their local Family and Friends Care policy says about what support might be available to them.

Guidance for local authorities on working with foreign social services can be found in the International Kinship Care Guide.