Child Arrangements Order Allowances
SCOPE OF THIS CHAPTER
Child Arrangements Orders may be made by the court under section 8 (amended) and 10 of the Children Act 1989. Such orders are often granted where parents of a child or children separate and there is a dispute about where the children should live, or with whom they should spend time.(1) They replaced Residence and Contact Orders respectively.
(1) The term 'Child Arrangements Order' includes both orders directing with whom a child is to live (formerly residence orders) and orders directing with whom the child is to spend time (formerly contact orders). The power to pay an allowance relates only to the 'live with' type of order. References in this chapter to Child Arrangements Orders are therefore to that type of order.
This chapter should be read in conjunction with: BMBC Adoption, Special Guardianship and Child Arrangements Order Allowances Policy.
Contents
1. Introduction
Most Child Arrangements Orders are made in private law proceedings where the local authority is not involved. Such orders can however also be made in respect of children who are currently placed with foster carers, including Independent Foster Agency Carers and Connected Person Foster Carers either temporarily or fully approved. In other cases, the local authority may support a family member to apply for an order. The local authority itself cannot apply for such an Order, but it can support foster carers to apply. Alternatively, where a child is the subject of a care order, the local authority can apply for the discharge of the order and invite the court to make a Child Arrangements Order in favour of a Foster Carer.
A Child Arrangements Order can therefore arise in any of the following circumstances:
- As a result of private law proceedings where the local authority is not looking after the child and is not considering looking after the child;
- As a result of private law proceedings brought by family members who are caring for the child as an alternative to the child becoming a Child in Care. Such an application will usually be supported by the local authority, which may contribute to the court fees and / or other legal costs;
- As a result of private law proceedings brought by connected person foster carers of a Child in Care. This will usually be supported by the local authority. In most such cases, the child will be accommodated under s20 as opposed to a Care Order;
- At the conclusion of an application for discharge of a Care Order, where the child's Final Care Plan is permanency with the Foster or Connect Person carers long-term and the child's assessed needs can be met by the carers without the continuing need for a Care Order;
- At the conclusion of care proceedings, where the outcome of the decision-making process is that the child's Final Care Plan is for the child to be permanently cared for long-term with family members, but the child's assessed needs do not require the child to be subject to a Care Order.
In all of these cases, the court will also have the option of making a Special Guardianship Order.
Child Arrangements Orders can be made until the child reaches 18 years.
There is no statutory right for a person in whose favour a Child Arrangements Order has been made to receive a financial assessment in relation to Child Arrangements Order allowances. However, the local authority has a power to make a discretionary contribution to a person in whose favour a Child Arrangements Order has been made, except where the order is made in favour of a parent. This allowance, known in Barnsley as a Child Arrangements Order Allowance, is seen as a contribution towards the child's maintenance; there is no power to include any element of reward in the calculation of the payment.
The power to pay an allowance is contained in Children Act 1989, Schedule 1 para 15:15(1)Where a child lives, or is to live, with a person as the result of a child arrangement order, a local authority may make contributions to that person towards the cost of the accommodation and maintenance of the child. (2)Sub-paragraph (1) does not apply where the person with whom the child lives, or is to live, is a parent of the child or the husband or wife or civil partner of a parent of the child.
2. Eligibility
The statutory power to pay an allowance is not restricted to cases where the child is a Child in Care, or indeed to cases where the local authority has pre-existing involvement. However, Barnsley MBC has adopted the following policy in relation to the decision whether to pay an allowance in individual cases:
A Child Arrangements Order Allowance may be considered:
- Where an approved foster carer or Connected Person Foster Carer (including temporary approval) applies to the court for a Child Arrangements Order with the support of the Council, in respect of a child who is already a Child in Care (whether accommodated under s20 or the subject of a Care Order); or
- Where the local authority has issued care proceedings and where a court is satisfied that the child cannot remain in the care of the parent, but decides that it is in the child's best interests to make a Child Arrangements Order in favour of a foster carer, Connected Person Foster Carer or other adult connected with the child instead of a Care Order;
- Where a Child Arrangements Order is made in favour of a relative or other person connected with the child and such an application is supported by the local authority and is a clear alternative to applying for a Care Order and there is sufficient evidence to satisfy the threshold criteria for the making of a care or Supervision Order.
In each of the above cases, an allowance will not be paid unless it has been decided that:
- The making of a Child Arrangements Order in respect of proposed cares would be in the child's best interests; and
- This reflects the child's plan for permanence; but
- This would not have been practicable without the payment of an allowance, having fully taken into account the financial and domestic circumstances of the applicant.
The situation when this is most likely to happen is where foster carers are caring for a child and acquiring Parental Responsibility forms part of their overall wish to care for the child on a permanent basis.
There are also situations where somebody with whom the child is not living wishes to acquire Parental Responsibility and care for the child on a similar basis. This may include a relative of the child or a non-relative with whom the child has formed a relationship.
Allowances will not normally be paid where a child is not, and is not at risk of becoming, looked after. This reflects the Council's policy that priority should be given to its duty to promote the upbringing of children within families by reducing the need for children to become or remain Children in Care and is in accordance with statutory guidance. (2) Exceptionally, an allowance may be considered in other cases, where the child is not, and is not at risk of becoming, a Child in Care.
There is no power to pay an allowance if the person with whom the child lives or is to live is a parent of the child or husband, wife or civil partner of a parent of the child.
The allowance ceases to be paid if the child no longer lives with the carer on a full time basis, if the Child Arrangements Order is discharged, if the annual review of the carer's financial circumstances establishes that they are no longer eligible for payment. Annual review may also lead to the level of payment being varied. Whilst carer's financial circumstances remain unchanged, the allowance will be paid up to the young person's 18th birthday unless the court has provided that that the order will expire before then.
Recipients of Child Arrangements Order Allowances will be provided with written materials describing how the scheme works and the expectations they must comply with.
(2) Family and Friends Care: Statutory Guidance for Local Authorities para 4.6
3. Assessment for Child Arrangements Order Allowance
The weekly level of payment is determined by a financial assessment (means test). The Child Arrangements Order Allowance is based on the local fostering rate. The rate of payment is linked to the age of the child. A deduction is made in respect of Child Benefit and Tax Credits paid for the child. See BMBC Adoption, Special Guardianship and Child Arrangements Order Allowances Policy.
Exceptional payments in the form of time limited or single payments may be made when: the child has particular or special needs which result in additional expenses over and above the general maintenance allowance.
Any requests for exceptional payment of Child Arrangements Order Allowance will be subject to a prior assessment, coordinated by the Service Manager with the prior agreement of the Head of Service.
Consideration may be given to assistance by way of a financial contribution towards legal and court costs but this will be dependent on individual circumstances. Such assistance will only be considered when the local authority supports the carer's proposal to apply for a Child Arrangements Order. The applicants will be expected to apply for Legal Aid if it is available to them. Any support with legal costs of conducting proceedings will be subject to a condition that the local authority will pay no more than the applicable legal aid rates for the work undertaken.
For approved foster carers who have been fostering a child who becomes the subject of a Child Arrangements Order, transitional payments may be made in respect of the carer's Fostering Fees that cease to be paid when a Child Arrangements Order is made. Details of transitional payments where these apply will be included in the Proposal letter. See BMBC Adoption, Special Guardianship and Child Arrangements Order Allowances Policy.
4. Review of Allowance
The Child Arrangements Order Allowance will be the subject of annual review, which will be administered by the Finance Section. A review can take place sooner if:
- The carer reasonably requests this;
- The local authority becomes aware of a change in financial circumstances; or
- There is reason to believe that the arrangements may no longer be the most appropriate way of meeting the child's needs.