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Kinship care consultation response
05 November 2026
(Last updated: 5 Nov 2026 12:55)
KINSHIP CARE CONSULTATION
QUESTIONS.
Consultation Question 1.
3.73 We provisionally propose to adopt the definition of kinship care contained in section 22I of the Children Act 1989 (and set out at paragraph 3.48 of this consultation paper) for the purposes of our proposed kinship care order and kinship parental responsibility agreements.
Do consultees agree?
Response: We agree with this proposal. If there were different definitions of kinship care in different situations, it would be a recipe for confusion.
Consultation Question 2.
3.88 We ask for consultees’ views on whether a child in a kinship care arrangement in England and Wales, as defined in this consultation paper, should automatically
come within the category of a “child in need”.
Response: We would not support making all children in a kinship care arrangement a “child in need”, largely for the reasons set out in paragraph 3.85 of this consultation. We can see such a move placing significant burdens on local authorities in situations where scarce resources could better be used in cases of greater need. If the intention is to provide a comprehensive scheme for children in kinship care arrangements across England and Wales, the difficulties outlined in paragraph 3.87, above, would also seem to militate against this approach.
Consultation Question 3.
4.84 We provisionally propose that it should be possible for a court to make an interim special guardianship order where special guardianship has been raised in the
course of public law care proceedings.
Do consultees agree?
Response: We would agree that it should be possible for the court to make an interim special guardianship order. The making of such an order would, of course, be a matter for the judge dealing with the individual case, where the particular facts of the case would be considered. There may be cases where such an order would not be appropriate, but there will also be cases where it would be beneficial. In our experience, potential special guardians often lack the necessary background information about the child’s needs and the level of support which may be available. The use of an interim order may avoid cases where the arrangement subsequently fails, causing inestimable further harm to the child when they have to leave a home which they thought was going to be their ‘forever home’.
Although, obviously not consistent with running alongside an interim care order, there may be situations where the holders of an interim SGO would be assisted if they had the enhanced PR associated with a final order. We have in mind issues around keeping contact arrangements safe for the child or where a child has medical needs and the parent’s views do not align with the child’s best interests. We would suggest that it should be possible for the judge to include enhanced PR in the interim order if the welfare of the child requires it.
Consultation Question 4.
4.90 We ask for consultees’ views on whether, and if so how, the existing requirements for the special guardianship assessment set out in the Schedules to the Special Guardianship Regulations in England and Wales respectively, should be modified to address the specific nature of a kinship special guardian.
Response: We would suggest three ways to improve special guardianship assessments, based on our members' fairly extensive experience of carrying out these assessments:
1. Keep one standard, but make the Schedule speak to kinship.
We would be wary of anything that reads as a lighter assessment for family. The order lasts until the child is 18, the children have usually been through the same harm as those placed with strangers, and a thin assessment is how placements break down later. The better answer is the same rigour applied to the right questions.
2. What the Schedule should ask in kinship cases and currently does not, or not clearly.
How the carer parented the child's parent, what they understand about how things went wrong, and what would be different this time.
The carer's ability to protect the child from their own son, daughter or sibling, and to manage family time when loyalties are divided. This is the heart of most kinship cases and deserves its own heading.
The change of role within the family (grandparent to parent, aunt to mother figure) and its effect on the carer's other children and relationships.
The care the child is actually receiving, where they are already living with the carer. Observation of real care should carry more weight than a hypothetical account of parenting capacity.
The carer's age and health across the whole life of the order, with a named contingency plan if they can no longer care.
The financial and housing cost to the carer of taking the child, including giving up work, and what the local authority will do about it. The support plan should be assessed and costed alongside the carer, not added at the end.
Whether the carer has had independent legal advice and understands what the order does and does not give them.
3. What is often disproportionate in kinship cases.
Requirements borrowed from fostering and adoption practice that tell the court little about a relative: exhaustive education and employment histories, fostering standards on bedrooms and home conditions applied rigidly, and personal references from people who know less about the family than the assessor does by the end. The safeguarding checks (police, local authority, medical) should stay exactly as they are.
4. Time.
None of the above is achievable in the six or eight weeks that kinship carers are often given once a parent has been ruled out. If the Schedule were to be amended, we would link this to a realistic minimum timescale and to the child living with the carer for a period before a final order, wherever that is possible.
Conversely, for a special guardian who is not related, we would want more information to be gathered on motivation, on the child's identity, and on how links with the birth family will be kept alive, so the argument for different emphasis runs in both directions.
Consultation Question 5.
4.104 We provisionally propose that when making a special guardianship order:
(1) the court should be required to consider the potential for the reunification of
the child to the parents’ care; and
(2) the default should remain for the order to be made for the duration of the
child’s minority.
Do consultees agree?
Response:
- SGOs were enacted in recognition of the fact that some children required permanence and stability but (for whatever reason) were not suitable for adoption. We would argue that the permanence of the order gives the child, who may have experienced considerable instability and uncertainty, a safe and stable foundation to re-build their life on. If the proposed carer is unable to commit to that, then an alternative, such as a child arrangements order, may be the more appropriate route.
- We would agree that the default should be the duration of the child’s minority.
Consultation Question 6.
4.105 We ask for consultees’ views on when a court makes a special guardianship order:
(1) if the default duration (until the child reaches 18) remains, it should be possible for the court to attach a review date; and
(2) if a review is included, whether this should be after a defined period of time,
or when certain conditions are met.
Response:
- We would be concerned about this proposal. Firstly, it may undermine the sense of permanence and stability needed by the child. Secondly, we anticipate that some parents may misuse such a provision to undermine the child’s placement.
- We remain of the view that, if such a review is needed, a special guardianship order may not be the right order for the child in those circumstances.
Consultation Question 7.
4.122 We provisionally propose that the UK Government consider revising the guidance on special guardianship support plans to emphasise the importance for local authorities to consider what support is needed to ensure contact between a child in kinship care under a special guardianship order, and their parents.
Do consultees agree?
Response: In many cases, managing contact between the child and one or both of the parents is one of the most taxing and fraught duties carried out by those caring for children under an SGO. This is particularly the case when parents are struggling with mental health issues and/or substance abuse. Rather than being ‘brushed under the carpet’, we take the view that the issue should be resolved before the final order is made so that the special guardians are quite clear what support (if any) they can expect from the local authority around this.
Consultation Question 8.
4.125 We provisionally propose that the court should, when making a special guardianship order, be required to consider whether the best interests of the child require an order to be made under section 91(14) of the Children Act 1989, requiring any person other than the special guardian to obtain permission before being able to
apply for any order under section 8 of the Children Act 1989.
Do consultees agree?
Response: We are not convinced that the proposal would add anything to the current scheme. Sections 91(14) and section 91A of the Children Act 1989, together with Practice Direction PD12Q provide a comprehensive and comprehensible scheme for making orders of this kind. The court has the power under s91A to make an order of its own motion. We do not think that the proposed addition would add anything to this scheme.
Consultation Question 9.
4.135 We provisionally propose that a local authority should be under a duty to investigate whether the child has any family members abroad who may be suitable prospective special guardians.
Do consultees agree?
Response: We would agree with this, although we would anticipate that local authorities may appreciate limits on how far they are required to go to meet such a duty. Such investigations can be costly and time-consuming.
Consultation Question 10.
5.57 We provisionally propose that where a child is living with a kinship carer as defined in section 22I of the Children Act 1989 (but where the child has not been living with the kinship carer for at least one year immediately before the application, such that section 10(5B) of the Children Act 1989 is not satisfied), the kinship carer be eligible to apply for a child arrangements order without first requiring permission from the court to do so.
Do consultees agree?
Response: We would agree with this proposal. If permission is sought by a kinship carer who is actually caring for the child, it is, in our experience, almost inevitable that permission would be granted.
Consultation Question 11.
5.58 We provisionally propose that when making a “live with” child arrangements order in favour of a kinship carer, the court should be required to consider the potential for reunification of the child with their parents when deciding on the duration of the order.
Do consultees agree?
Response: We are concerned by the proposal that “live with” child arrangements orders may have a shorter duration than the statutory one. We feel that this could be undermining of the placement and would put the burden on the kinship carer to apply to the court if the hoped-for reunification cannot occur. This will lead to more litigation in the child’s life and instability. It should be for the parent to apply for the discharge of the order when they are able to show that they can safely resume the care of the child.
Consultation Question 12.
5.59 We provisionally propose that the court should, when making a “live with” child
arrangements order in favour of a kinship carer, be required to consider whether
the best interests of the child require an order to be made under section 91(14) of
the Children Act 1989, requiring any person other than the kinship carer to obtain
permission before being able to apply for any order under section 8 of the Children
Act 1989 (a child arrangements order, prohibited steps order, or specific issue
order).
Do consultees agree?
Response: We would repeat our answer to Question 8.
Consultation Question 13.
5.60 We ask consultees who are, or have been, kinship carers holding a “live with” child arrangements order:
(1) to share their experience on whether when making the order, the court also
imposed a requirement on the parents of the child to obtain permission before
making any future application; and
(2) if no requirement for permission was made, to share their views on whether
they think it would have been helpful for such a requirement to have been
included.
Response: Not applicable
Consultation Question 14.
5.77 We ask for consultees’ views on whether in all applications for a child arrangements “live with” order where the applicant is (or will be) a kinship carer, a welfare report under section 7 of the Children Act 1989 should form a mandatory part of the Child Impact Report.
Response: In an ideal world, and with sufficient resources, it would be difficult to argue against this suggestion. We are, however, only too aware of the limited resources available to Cafcass and the additional burdens that this would place upon them.
Consultation Question 15.
5.78 We ask for consultees’ views on whether when considering a section 8 order
application by a kinship carer there are any factors which a Child Impact Report, or
a welfare report under section 7 of the Children Act 1989 (if mandatory) should be
required to investigate, which are not already contained within the section 1(3) of the
Children Act 1989 welfare checklist.
Response: We would suggest that the issues which we set out in point 2 to our response to Question 4 are equally relevant to this situation.
Consultation Question 16.
6.53 The current fostering regulations in England apply equally to prospective kinship foster carers and unrelated foster carers. In relation to assessment criteria, review and visits procedures, and other post-approval requirements, we ask consultees for their views on:
(1) whether there is merit in introducing regulations that are adapted specifically
to kinship foster care, as distinct from unrelated foster care; and
(2) if so, what adaptations would be appropriate?
Response: Whilst it may be appropriate to adapt the regulations to reflect the realities of a placement with kinship carers, it should not be a lighter standard than the level of scrutiny applied to other foster carers. The children have usually been through the same trauma and harm experienced by children placed with strangers. The issues which we raised in our response to Question 4 of the consultation apply with equal force in foster care as well. There needs to be an examination (in the case of a grandparent) of how they parented the relevant child’s parent, whether the proposed foster carer can protect the child from any threats from other family members and whether they can manage the conflicts which inevitably arise around managing contact between the parent and the child. The safeguarding checks should not be diluted, and a realistic timescale would be necessary as we have argued in our answer to Question 4.
Consultation Question 17.
6.57 We provisionally propose that local authorities should be required to use a
prescribed kinship foster care assessment form when assessing kinship foster
carers.
Do consultees agree?
Response: We would agree with this. One form would bring consistency across local authorities. CoramBAAF’s Form K is already widely used and would be a sensible starting point. The form would need to cover the issues which we have highlighted in our reply to Question 4 and should leave sufficient room for the assessor’s analysis. A checklist form tells the court very little about whether the proposed placement will be stable and permanent or the reasoning behind the recommendation.
Consultation Question 18.
6.60 We provisionally propose that the statutory requirement for visits and reviews in
England should be varied as follows:
(1) local authority visits to children in kinship foster care placements should be
conducted at least every 6 months, rather than every 3 months; and
(2) subsequent local authority reviews of children in kinship foster care
placements should be conducted at least every 12 months, rather than every
6 months.
Do consultees agree?
Response: We would not agree with this proposal. Nagalro members have extensive experience of carrying out assessments of this kind. We would argue that many kinship placements actually need more oversight, not less. Kinship carers are often being asked to manage family time with the child’s parents, who may be hostile, unwell or taking illicit substances. The carers are likely to find themselves caught between conflicting loyalties. Visits and reviews are often where problems or gaps in support first come to light. Hence, increasing the time between these risks the placement breaking down because no one noticed that there was a problem. If there were to be any reduction, we would suggest that this should only take place when the placement has been stable for at least 12 months. Additionally, the child, carer, social worker or Independent Reviewing Officer should be able to ask for more frequent visits or reviews at any point.
Consultation Question 19.
7.97 We provisionally propose that it should be possible for a child’s parents to enter into an agreement with a child’s kinship carer(s) to share parental responsibility for a
child.
Do consultees agree?
Response: See our response to Question 20 below
Consultation Question 20.
7.98 We provisionally propose that a kinship parental responsibility agreement should require the consent of all parents with parental responsibility, and of any other
individuals who hold parental responsibility for the child, before the agreement is
made.
Do consultees agree?
Response:
Whilst it is difficult to argue that such agreements should be possible without the consent of everyone who has parental responsibility, we would point out the reality of situations where such agreements may be used. The parents will often have separated in highly acrimonious circumstances; there may be a history of domestic abuse or real risks to one parent’s safety. It is by no means guaranteed that both parents can be found quickly.
An alternative approach would be to develop the use of delegating parental responsibility under s2(9) Children Act 1989. This provision is relatively little used, and we have not been able to find any reported authorities on the subject. Nonetheless, it is a tool used by local authorities to allow foster carers to exercise a defined level of parental authority. It is also, we understand, required by some cruise lines when children are taken on a cruise by someone other than their parent (usually a grandparent). The cruise line, we understand, requires the person caring for the child to have delegated parental authority from the parents so that they can legitimately give consent in the event that the child (for example) requires medical treatment.
The advantage of this approach would be that it could be developed without the need for any primary legislation and would need only some approved forms and guidance on how such documents should be completed.
The concept of delegating parental responsibility would, we would suggest, sit more comfortably with the voluntary nature of the arrangement.
Consultation Question 21.
7.99 We provisionally propose that, where parental responsibility for a child is shared
using a kinship parental responsibility agreement, it should not be possible for the
agreement to provide for either the parents or kinship carer to exercise enhanced
parental responsibility. By enhanced parental responsibility, we mean parental
responsibility that can be exercised by one of its holders to the exclusion of any
other holders.
Do consultees agree?
Response: We would agree.
Consultation Question 22.
7.100 We provisionally propose that:
(1) only kinship carers who fall within both the definition of kinship carer in
section 22I of the Children Act 1989, and the definition of relative in section
105 of the Children Act 1989 (that is “a grandparent, brother, sister, uncle or
aunt (whether of the full blood or half blood or by marriage or civil partnership)
or step-parent”) should be able to enter into a kinship parental responsibility
agreement;
(2) it should be possible for a prospective carer under a kinship parental
responsibility agreement to satisfy the definition in section 22I of the Act
based on caring for a child at a date after the kinship parental responsibility
agreement is made, with this date to be specified in the agreement;
(3) the number of kinship carers with whom parental responsibility can be shared
should be limited to two in each agreement; and
(4) it should only be possible for there to be one kinship parental responsibility
agreement with respect to a child at any one time.
Do consultees agree?
Response: We have no views on this issue
Consultation Question 23.
7.101 We provisionally propose that a kinship parental responsibility agreement should:
(1) take effect on the later of the date on which it is received and recorded by the
Central Family Court and any commencement date set out in the agreement;
(2) be brought to an end by:
(a) the expiry of the period set out in the agreement;
(b) an order of the court made on the application of any person who has
parental responsibility for the child, removing parental responsibility
from the person to whom it was provided by the agreement;
(c) an order of the court made on the application of the child with
permission of the court, removing parental responsibility from the
person to whom it was provided by the agreement, such permission
only to be granted where the court is satisfied that the child has
sufficient understanding to make the application; or
(d) the child reaching the age of 18; and
(3) be for such period as the parties specify subject to a minimum duration of one
year.
Do consultees agree?
Response: We agree with these proposals
Consultation Question 24.
7.102 We provisionally propose the following process for the making of a kinship parental responsibility agreement:
(1) the parents and the kinship carer must sign the document before a justice of
the peace (a magistrate), a justices’ clerk, an assistant to a justices’ clerk, or
a court official who is authorised by the judge to administer oaths;
(2) the parents and the kinship carer must provide evidence of their identity;
(3) the parents must provide evidence that they have parental responsibility for
the child;
(4) the kinship carer must provide evidence that they are within the category of
people entitled to apply for a kinship parental responsibility agreement;
(5) the application form must require the parties to list all those who already have
parental responsibility for the child, thus ensuring that there is no pre-existing
kinship parental responsibility agreement with respect to the same child;
(6) the kinship parental responsibility agreement and the supporting evidence
must be sent to the Central Family Court, with the agreement to be recorded
and sealed by the Court; and
(7) copies of the sealed kinship parental responsibility agreement must be sent
by the Court to the parents and kinship carer(s).
Do consultees agree?
Response: We agree with these proposals
Consultation Question 25.
7.114 Section 66 of the Children Act 1989, uses the terms “a privately fostered child” and “to foster a child privately”. We have been told that some stakeholders find this
language confusing, because, for example, of the potential for confusion with
children being looked after by the local authority who have been placed with foster
carers. We ask for consultees’ views on whether and why they find these terms
confusing.
Response: We are not, generally, involved in private fostering arrangements and so have no representations on this part of the consultation
Consultation Question 26.
7.115 We ask for consultees’ views on whether a child cared for by a foster carer in the child’s own home, in the absence of any parent or other person with parental
responsibility for that child, should fall within the definition of a privately fostered
child.
Response: We are not, generally, involved in private fostering arrangements and so have no representations on this part of the consultation
Consultation Question 27.
7.116 We ask for consultees’ views on whether a child who is not disabled and is aged 16 or 17 should fall within the definition of a privately fostered child, if they are living in an arrangement that would, but for their age, be classed as a private fostering arrangement.
Response: We are not, generally, involved in private fostering arrangements and so have no representations on this part of the consultation
Consultation Question 28.
8.20 We provisionally propose that
(1) A kinship care order should be introduced; and
(2) when making a decision about whether to make, vary or discharge a kinship
care order,
(a) the welfare of the child shall be the court’s paramount consideration;
and
(b) the court shall be required to have particular regard to the matters
contained in the “welfare checklist” in section 1(3) of the Children Act
1989.
Do consultees agree?
Response: We would support the concerns expressed in paragraphs 8.9 and 8.10 of the consultation document and would not support the creation of a new kinship care order. Our concerns can be summarised as follows:
- Unnecessary complexity. The proposals would create two parallel systems of court orders for those wishing to regulate the residence of a child and parental responsibility for the child. Resolving which route to take will be quite unnecessarily complex. It is worth pointing out that these proposals are made in a landscape where the availability of publicly funded legal advice and representation is quickly diminishing and, if recent political pronouncements are to be believed, will not be increasing in the foreseeable future. This year, LexisNexis published a report showing the expansion of ‘legal aid deserts’ across England and Wales. In family law, the report showed that 4.15m people now live in an area where access to publicly funded advice is below 10 per cent of the need. The number of ‘legal aid deserts’ in family law has increased from six local authority areas in 2022 to 15 within four years. As Kirsty Brimelow KC, the Chair of the Bar Council, has said, this ‘ leads to more litigants-in-person trying to navigate the complex legal system with little or no support.
- The current system of orders, moving along a spectrum from a child arrangements order, through special guardianship and on to adoption, provides a rational basis for a legal system. Whilst there may be scope to amend and improve matters, for example by allowing interim SGOs, we are not convinced that a separate stream of orders, only available to kinship carers, is justified or particularly helpful.
- In our experience, the most pressing needs for kinship carers are financial and therapeutic support. To put it bluntly, when kinship carers protested recently in London, they were pushing empty shopping trolleys because they could not afford to feed themselves and the children they were caring for.
- The other area where improvement is needed is around providing potential kinship carers with more information about the child and their likely future needs. This, again, does not require a new type of order, but rather a system within the present scheme to ensure that the relevant information is shared with those offering to care for the child.
Having set out our position in relation to the need for KCOs we have not responded to the consultation questions which follow, save for questions 68 – 70.
Consultation Question 29.
8.38 We provisionally propose that to apply for a kinship care order appointing them as a child’s kinship guardian, an applicant must
(1) be aged 18 or over;
(2) be a kinship carer (defined as we propose in Consultation Question 1) for the
child; and
(3) have provided care and support for the child in a kinship care arrangement for
at least 28 days immediately preceding the application for a kinship care
order.
Do consultees agree?
Consultation Question 30.
8.39 We provisionally propose that
(1) a relative, friend or person connected with the child who does not meet the
requirements set out in Consultation Question 1 may apply for an interim
kinship care order if they have obtained the permission of the court to make
the application; but
(2) this should not extend to an individual who is a parent of the child in respect
of whom a kinship care order is sought.
Do consultees agree?
Consultation Question 31.
8.40 We provisionally propose that it should be possible for more than one kinship carer jointly to apply for a kinship care order appointing them as a child’s kinship
guardians.
Do consultees agree?
Consultation Question 32.
8.41 We provisionally propose that the court may make a kinship care order if it
considers that the order should be made, even though no application for a kinship
care order has been made.
Do consultees agree?
Consultation Question 33.
8.59 We provisionally propose that a kinship care order grant a kinship guardian parental responsibility for the child for the duration of their appointment.
Do consultees agree?
Consultation Question 34.
8.60 We further provisionally propose that when making a kinship care order, the court should be required to consider how, having regard to the particular circumstances of the case, parental responsibility should be exercised for the duration of the order.
Do consultees agree?
Consultation Question 35.
8.61 We provisionally propose that the court be able to direct as part of a kinship care order that a person with parental responsibility named in the order shall be entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child. This would mean that such a person would gain what we have referred to in this consultation paper as “enhanced parental responsibility”.
Do consultees agree?
Consultation Question 36.
8.62 We ask for consultees’ views on whether the court’s power to grant enhanced
parental responsibility to a holder of parental responsibility (as envisaged in
Consultation Question 35 above) in a kinship care order, should be limited to a
particular category of holders of parental responsibility.
Consultation Question 37.
8.63 We further provisionally propose that the court be able to direct, as part of a kinship care order, that restrictions shall be attached to the exercise of any person’s
parental responsibility (including the exercise of enhanced parental responsibility).
Do consultees agree?
Consultation Question 38.
8.64 We provisionally propose that whilst a kinship care order is in force with respect to a child
(1) no person shall
(a) cause the child to be known by a new surname; or
(b) remove the child from the United Kingdom
without either the written consent of every person who has parental
responsibility for the child or the permission of the court; but
(2) it shall be possible for a person named in the kinship care order to remove the
child from the United Kingdom for no longer than such a period as the court
shall specify when making the kinship care order, to a maximum of three
months.
Do consultees agree?
Consultation Question 39.
8.72 We provisionally propose that when making a kinship care order, the court must
(1) consider how the relationship between the child and the parents should be
managed; and
(2) set out in the kinship care order the extent to which the child is to spend time
or otherwise have contact with the parents.
Do consultees agree?
Consultation Question 40.
8.73 Additionally, we ask for consultees’ views on whether, when the court is considering whether to make a kinship care order, there should be a rebuttable presumption that the involvement of a parent (which may be direct or indirect) in a child’s life will further their welfare.
Such a presumption would reflect the presumption currently contained in section
1(2A) of the Children Act 1989, and would apply unless there is evidence before the
court that the parent’s involvement in the child’s life would put the child at risk of
suffering harm, whatever the form of the involvement.
Consultation Question 41.
8.78 We provisionally propose that where support for those involved in the kinship care arrangement has been assessed by the local authority, the final kinship care order should record the assessed level of support, and a kinship care support plan should be attached to the order.
Do consultees agree?
Consultation Question 42.
8.79 We ask for consultees’ views on
(1) the extent to which a local authority should be required to assess the support
needs of those involved in a kinship care arrangement when a kinship care
order is sought; and
(2) how any such requirement might operate.
Consultation Question 43.
8.86 We provisionally propose that a kinship care order may be made in respect of a
child appointing a kinship guardian for such period as the court considers
appropriate, save that the order shall in any event cease to have effect when the
child reaches the age of 18.
Do consultees agree?
Consultation Question 44.
8.87 We provisionally propose that there should be no minimum period of appointment for a kinship guardian.
Do consultees agree?
Consultation Question 45.
8.93 We provisionally propose that it should be possible for the court to make an interim kinship care order, which would
(1) have effect for a period specified in the order, which would be no longer than
a maximum period to be set out in statute; and
(2) automatically cease upon the earlier of the disposal of the application for a
kinship care order by the court, or the child reaching the age of 18.
Do consultees agree?
Consultation Question 46.
8.94 We ask consultees for their views on whether the provisionally proposed maximum duration of an interim kinship care order should be:
(1) 8 weeks;
(2) 16 weeks;
(3) 26 weeks; or
(4) some other period.
Consultation Question 47.
8.110 We provisionally propose that
(1) a child may not apply to vary or discharge a kinship care order of which they
are the subject without the permission of the court; and
(2) the court may only grant permission to make such an application if is satisfied
that the child has sufficient understanding to make the proposed application.
Do consultees agree?
Consultation Question 48.
8.111 We provisionally propose that the court should, when making a kinship care order, consider whether the best interests of the child require an order to be made under section 91(14) of the Children Act 1989, placing restrictions on the making of
applications
(1) to vary the order;
(2) to discharge the order; or
(3) seeking a direction about how the provisions of the order should operate
by any person other than the kinship guardian.
An order under section 91(14) of the Children Act 1989 would have effect for a fixed
period, and would prevent a named person from applying to vary or discharge the
kinship care order, or to seek a direction about how it should operate, without first
obtaining the permission of the court.
Do consultees agree?
Consultation Question 49.
8.112 We provisionally propose that the making of a care order in relation to a child who is the subject of a kinship care order should not automatically discharge the kinship care order.
Do consultees agree?
Consultation Question 50.
8.113 We provisionally propose that the court may vary or discharge a kinship care order upon the application of a local authority designated in a care order with respect to the child.
Do consultees agree?
Consultation Question 51.
8.118 We invite consultees’ views as to whether it should be possible for a kinship care order to contain provisions for a review of the order, or of any named provisions
(such as a parental involvement provision) contained in the order, after a period
specified when the order is made.
Consultation Question 52.
8.122 We ask for consultees’ views on
(1) how a kinship care order could operate in a case where the kinship carers live
overseas; and
(2) how any problems with the use of kinship care orders in an international
context could be avoided.
Consultation Question 53.
8.126 We ask for consultees’ views as to the court process to be followed when an
application is made for a kinship care order.
Consultation Question 54.
8.135 We ask for consultees’ views as to the process which should be used to assess the suitability of the proposed arrangement to meet the child’s needs, when an application is made for a kinship care order.
8.136 In particular, we ask for consultees’ views on
(1) who should prepare any such assessment or report;
(2) whether there should be a requirement to notify the local authority before an
application for a kinship care order is made, and, if so, what that should be;
and
(3) the matters which should be covered by any assessment or report, and the
extent to which these should be variable depending on the characteristics of
the kinship care order sought.
Consultation Question 55.
8.138 We ask for consultees’ views as to how best to ensure that the child’s views are heard, both at the time the kinship care order is made and subsequently.
Consultation Question 56.
8.141 We ask for consultees’ views on whether, when care proceedings are brought by a
local authority and the court is considering whether to make a kinship care order
within those proceedings:
(1) the potential kinship guardian should automatically be granted party status
within the care proceedings; or
(2) the court should be required to consider at an early stage whether to make
the potential kinship guardian a party to the proceedings.
Consultation Question 57.
8.152 We provisionally propose that when a kinship care order is in force in relation to a child, no person shall be permitted to apply for
(1) a special guardianship order; or
(2) a child arrangements order;
in relation to that child. As an exception to this rule, a person may apply for such a
special guardianship order or a child arrangements order at the same time as they
make an application to discharge the kinship care order, and replace it with the
order sought.
Do consultees agree?
Consultation Question 58.
8.153 We provisionally propose that when a kinship care order is in force in relation to a child, no person shall be permitted to apply for
(1) a prohibited steps order; or
(2) a specific issue order;
in relation to that child.
Do consultees agree?
Consultation Question 59.
8.161 We provisionally propose that, if kinship care orders are introduced, a kinship carer (as defined in our proposed definition) should no longer be able to apply for a
special guardianship order in relation to the child for whom they are caring.
Do consultees agree?
Consultation Question 60.
8.167 We provisionally propose that, if kinship care orders are introduced, it should no longer be possible for kinship carers (as defined in our proposed definition) to apply for a ‘live with’ or ‘spend time with’ child arrangements order.
Do consultees agree?
Consultation Question 61.
8.177 We provisionally propose that if kinship care orders are introduced, when an
application for permission to discharge or vary a special guardianship order is made
by
(1) a parent;
(2) a guardian;
(3) a step-parent of the child who has parental responsibility for the child, or
(4) a person who immediately prior to the making of the special guardianship
order had (but no longer has) parental responsibility for the child.
the requirement under section 14(D) of the Children Act 1989 that the applicant
must satisfy the court that there has been a significant change in circumstances
since the making of the special guardianship order should not apply where the
applicant is seeking the permission of the court to discharge a special guardianship
order and replace it with a kinship care order appointing the child’s special guardian
as a kinship guardian.
Do consultees agree?
Consultation Question 62.
8.188 We provisionally propose that a care order in relation to a child should be
discharged by the making of a final kinship care order.
Do consultees agree?
Consultation Question 63.
8.189 We provisionally propose that a care order in relation to a child should not be
discharged by the making of an interim kinship care order.
Do consultees agree?
Consultation Question 64.
8.190 We provisionally propose that, if a care order and an interim kinship care order are in force at the same time, the court should when making the interim care order
determine how parental responsibility is to be exercised by either the local authority,
the parents, the kinship guardian or anyone else with parental responsibility.
Do consultees agree?
Consultation Question 65.
8.191 We provisionally propose that
(1) it should be possible for the court to make a supervision order at the same
time as making an interim kinship care order, and
(2) the duration of the supervision order should not be limited by the duration of
the interim kinship care order.
Do consultees agree?
Consultation Question 66.
8.192 We invite any other views which consultees may have on the involvement of a local authority when an interim or final kinship care order is made.
Consultation Question 67.
8.194 We ask consultees to share any further comments or views they may have on our proposals for the introduction of a kinship care order.
Consultation Question 68.
9.31 We ask consultees to tell us if they believe or have evidence or data to suggest that
(1) the operation of the current law governing kinship care; or
(2) the provisional proposals which we make in this consultation paper
results, or would if the law were reformed in the way we provisionally propose result,
in advantages or disadvantages to certain groups or based on certain
characteristics (with particular attention to age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex,
and sexual orientation).
Response: We do not have any evidence or data on this point.
Consultation Question 69.
9.32 We ask for consultees’ views on how any disparities in the operation of the current law governing kinship care could be reduced or removed.
Response: See our reply to question 68 above.
Consultation Question 70.
9.34 We ask consultees to tell us anything relating to their experiences of kinship care arrangements, or our provisionally proposed reforms, that they have not yet had a chance to express in response to earlier consultation questions.
Response: There are a number of additional points we would wish to make:
The voice of the child.
We are concerned that these proposals do not give sufficient weight to the wishes and feelings of the child or how those wishes and feelings are to be ascertained. In most kinship care proposals, the child will likely have very clear views about the proposed placement. We would hope that, when any final proposals are put forward, real weight and importance are given to making time for professionals to build a relationship with the child and to then explore the child’s wishes and feelings. If the Law Commission has not already done so, we would suggest that discussions should take place with the Family Justice Young People’s Board, who would be able to explain, from the knowledge and experience of children who have been subject to proceedings, how the child’s views should be ascertained.
Support before any orders
It is important to highlight the need for Child in Need support between assessments and the making of any orders, as well as ongoing support after an order has been made. Families are often left without practical and adequate support, also around contact arrangements. We would also emphasise the need for contact supervision, where appropriate, and sufficient resourcing to provide the necessary support, without assuming that all kinship arrangements will automatically be safe. Paul Shuttleworth’s research highlights some of these concerns and assumptions that kinship is safe.
Health and housing support
We would also highlight the need for support with children’s health needs, particularly where CAMHS services are not sufficiently responsive to the needs of kinship families. Housing support is another important area that may warrant further attention- important for kinship carers transitioning or affected by poverty and racialised groups.
Marginalised groups and systemic inequalities
Race is mentioned only once in the consultation questions, and we would invite the Law Commission to give greater attention to how the proposed changes might affect children and families from marginalised backgrounds. We do not have evidence about how these proposed changes will affect marginalised groups; however, we have evidence from the Reese Centre at Oxford and Kinship, alongside Families in Harmony’s work. These consistently highlight the additional disadvantages experienced by racialised and minoritised ethnic groups. Also, RGT families. These disadvantages can be compounded by gender, disability, poverty and mental health challenges.
We therefore support changes that are inclusive and actively challenge and disrupt the systemic barriers that exacerbate inequalities for minoritised ethnic groups, especially Black, Asian, and mixed-heritage groups, as evidence shows that these groups suffer more from systemic structures.