South West Safeguarding and Child Protection Procedures
South West Safeguarding and Child Protection Procedures South West Safeguarding and Child Protection Procedures

5.1.18 Residence Order Procedures

SCOPE OF THIS CHAPTER

Describes the procedure for making an application for a Residence Order.

References

  • The Children Act 1989;
  • Children (Leaving Care) Act 2000;
  • The Adoption and Children Act 2002;
  • The Children Act 1989 Guidance and Regulations Volume 1 Court Orders.

RELEVANT CHAPTERS

Permanence Planning Guidance

Residence Order Policy


Contents

  1. Introduction
  2. Persons who may apply for a Residence Order
  3. Applications for a Residence Order for a Child subject to a Care Order
  4. Application for Children not in Care
  5. Payment of Legal Costs
  6. Legislation Relating to Financial Support
  7. Court Process for Children in Care
  8. Action arising from Court decision
  9. Conditions of Financial Support
  10. Reviews
  11. Cessation of Financial Support
  12. Variation or Discharge


1. Introduction

A Residence Order is an order under Section 8 of the Children Act 1989, which settles arrangements as to the person with whom a child will live.

A person in whose favour a Residence Order is made automatically acquires Parental Responsibility, but the order does not discharge the parental responsibility of others such as the child's parents.

The Order, unless discharged, lasts until the child is 18 unless the order states otherwise.

A Residence Order can be used to increase the degree of legal permanence in a placement.

The order confers "residence" for the child on the person who gets the order. It is therefore useful for situations where the plan is for a shared care arrangement for a child as it can be used to secure the place where a child will live but allows flexibility about exercise of Parental Responsibility (PR).

In reaching the decision to approve and support a person applying for a Residence Order, the authority will have due regard to research finding relating to the placement of children with relatives, the proven benefits and desirability of continuity for children and the other potential gains that may accrue from placement within the extended family, with a known carer or within the child's wider community network.


2. Persons who may apply for a Residence Order

2.1 People who may apply as of right

Parents or guardians of the child - Where the relationship has broken down and the parents are separated and are unable to resolve the living arrangements for the child without a Court order. This is a Private Law application and the Local Authority will not be required to complete a report for Court.

The child's step parents - A Residence Order would be appropriate where a step parent wishes to obtain parental responsibility for a child.

Any person with whom the child has lived for a period of at least one year - For example foster carers where the child is in the care of the Local Authority.

Any person who, where a Residence Order is in force, has the consent of each person in whose favour the order was made - For example where the child is living with a grandparent and they are in poor health and it would be beneficial to the child to have someone with joint parental responsibility.

Any person who, where the child is in the care of the Local Authority, has the consent of that authority - For example foster carers (see above, if they have lived with the foster carer for more than a year), it may be appropriate to consider in the case of unaccompanied asylum seeking children but it does not change their immigration status).

Any person who has the consent of each person who has parental responsibility - This applies in circumstances where the Local Authority is required to intervene in a family crisis and the birth parents consent to the child living with another family member e.g. grandparents.

The intervention of the Local Authority to help to resolve the child living with the other family member does not automatically mean that the child has been accommodated by the Local Authority.

2.2 Others who may apply with Leave of the Court

The following people may also apply for a Residence Order with the leave of the Court:

  • The child him/herself if the Court is satisfied that he/she has sufficient understanding to make the application;
  • Any person with a genuine interest in the child's welfare.

Where the person applying is not the child, the Court in deciding whether or not to grant the leave will consider:

  • The nature of the application;
  • The applicant's connection to the child;
  • Any risk of disruption to the child's life caused by the application;
  • Where the child is looked after, the authority's plans for the child's future, and the wishes and feelings of the child's parents.

2.3 Foster Carers and Residence Orders

Foster carers have an automatic right to apply for a Residence Order in the following circumstances:

  • The child has lived with them for a period of one year immediately preceding the application;
  • The child is accommodated under Section 20 (Children Act 1989) and they have the consent of everybody who has parental responsibility or each person who holds a Residence Order in respect of the child;
  • The child is subject to a care order and the foster carers have the consent of the Local Authority (see above), and the plan has been ratified through the Statutory Review.

In other cases foster carers must apply for permission from the Court. They can do this in the following circumstances:

  • The applicant for the order is a relative of the child;
  • The Court is satisfied that it is in the child's interests to hear the application.


3. Applications for a Residence Order for a Child subject to a Care Order

In line with the Local Authority's permanency policy, a child in care's review may conclude that it is in the child's best interests for the local authority to encourage and/or support a foster carer, or friends or family carer, to apply for a Residence Order. A Residence Order would be recommended when Special Guardianship or Adoption are deemed to be unsuitable for the child's permanency needs.

3.1 Legal advice

The Social Worker, Team Manager and a Local Authority solicitor are to discuss the legal requirements.

As a guide this meeting is to consider:

  • Reason why child is in need;
  • Information required by the welfare checklist;
  • The child's assessed needs;
  • Whether and if so why a Residence Order would be better for the child than any other order or no order at all;
  • Whether the people with parental responsibility would consent to an order being made;
  • Whether contact arrangements need to be changed;
  • Preparatory work that will be undertaken with the child and their carers;
  • Allocation of tasks including preparation of the Court report.

The Social Worker must record the outcome of the legal advice meeting on CareFirst.

In these instances the child's allocated Social Worker must explain to the carer the implications and processes involved in such an application. If after this discussion the carer wishes to proceed, the Social Worker must advise them of their right to seek legal advice with regard to making a Residence Order application.


4. Application for Children not in Care

Where the child is not known to Services for Children and Young People a Court Welfare Officer will normally complete the report to Court.

Where a child is known or has been known to Services for Children and Young People, the Court may direct that a Section 7 Court report is completed.


5. Payment of Legal Costs

5.1 Foster Carers

Where the Local Authority wishes to support existing foster carers including kinship carers in their application for a Residence Order, the following principles apply with regard to the payment of legal costs:

  • Applicants must first apply for legal aid to cover the Court costs, if this is successful in full, then the Local Authority will be restricted to providing a list of local family Court panel solicitors;
  • If the applicants do not qualify for legal aid or only part legal aid, the Local Authority has the discretion to provide a financial grant towards the cost of the legal proceedings. Request must be made via the Resource Panel and agreed by the Agency Decision Maker. The Local Authority also recognises that contested proceedings in the main are more costly than uncontested proceedings and the grant provided will reflect this;
  • The level of grant will be based on legal aid hourly charges for legal work and will also cover general administration costs and disbursements; this is to represent the average cost of a typical Residence Order application. Both grants, (contested and uncontested), will only be payable at the conclusion of the proceedings and will be fixed amounts in all cases based on the calculations for contested and uncontested cases above;
  • Any invoice received after the Residence Order has been made, where the difference is in excess of the grant, will be the responsibility of the applicant;
  • On occasion there will be cases that present unexpected costs. When this happens it will be the responsibility of the applicant and their solicitor to notify the Local Authority during the time of the proceedings and not after high costs have been incurred and the Residence Order has been made. In these cases the Local Authority will exercise discretion in making payments in addition to the standard grant prior to these being incurred. If notification is not received and additional funding not agreed the Local Authority will not consider making any further financial contribution. However, in all cases where this is applied there is an expectation that the legal representatives concerned will provide a clear breakdown and justification of the additional costs to both the Local Authority and the applicant;
  • In some cases legal aid is only partially granted. In these instances a grant may be provided after taking account of the legal aid contributions received.


6. Legislation Relating to Financial Support

Where a child lives, or is to live, with a person as the result of a Residence Order, a Local Authority may make contributions to that person toward the cost of the accommodation or care of the child, except where the person is the parent of the child or the husband or wife of the parent of the child (Children Act 1989 Schedule 1 Para 15).

Residence Order financial support is payable solely at the discretion of the Local Authority.

6.1 Residence Orders and Financial Support

Plymouth City Council may provide financial support in the form of a one off payment to a person in whose favour a Residence Order has been made, except where a Residence Order is made in favour of a parent or step-parent of the child. Any one off payments must be based on the child's assessed needs. 

There must not be any element of reward in the calculation of the payment

In normal circumstances, one off financial support will only be appropriate when the decision to support a Residence Order application arises out of the Local Authority child care planning processes - i.e. when a Residence Order is made as an alternative to the making of a Care Order, or a replacement thereof, in public law proceedings when a relative or friend to make application for a Residence Order in private law proceedings as an alternative to Care Proceedings.

If financial support is agreed, the type of support will usually be in the form of a one off payment to support additional costs, associated with the new arrangement. These costs will need to be itemised and agreed by Assistant Director/Heads of Service, via consideration at Resource Panel.

It is only in very exceptional circumstances that an ongoing allowance will be agreed. The decision can only be put forward for considered if a minimum of three out of the four criteria below are in place:

  • The child is a child in care;
  • The Residence Order would provide a preferred alternative permanence plan for the child;
  • The child has significant and continuing high levels of need which can not be met and would be in care without making this Order;
  • The child requires ongoing allowance that can not be met by the benefits or tax system.

A Residence Order allowance is discretionary and will need to be agreed by Assistant Director/Heads of Service via consideration at Resource Panel.

If financial support in exceptional circumstances is ongoing, the Local Authority will continue to make payments based on the results of the annual review until the child's 18th birthday. If he/she is in full time education the allowance will continue to August 31st following the child's 18th birthday as long as they still reside with the person to whom the Order was made. In these cases, the local authority will send out a letter each term to the carer, to be counter-signed by the educational establishment for confirmation that they are attending education.

6.2 Financial Support for Children Currently in Care and Placed with Foster Carers

In principle, whether or not the Local Authority provides financial support will be based on an assessment of the child's needs. However, where the Residence Order applicant is a foster carer, the Local Authority may protect their current level of payment for a period of two years regardless of the child's needs. The following criteria must be in place before this payment can be protected for two years.

  • The child has been resident with the prospective carer for over one year prior to the order being granted;
  • The plan for Residence Order is the only permanence option for the child;
  • The child's needs would best be met by a Residence Order, it is in the Care Plan and has been recommended and agreed at a statutory review.

In practice, this means that the foster care network rates element of the payment, (current band 2 rate minus child benefit, child tax credit and any contributions from the birth parents), will increase with inflation (as agreed by the council) throughout the two year period. In the circumstances where foster carers receive a reward element this will cease on the making of the residence order.

The weekly allowance will also include a payment for birthdays, festivals and holidays that is the equivalent of four weeks allowance spread over 52 weeks (as opposed to the current lump sum payments). At the end of the two year period, these payments will cease. The Social Worker is to ensure that the foster carer is aware of this.

Any increase in payment, which is liable due to the fact that the child has entered a different age band within the two year period, will also be paid.

The Social Worker will complete a Residence Order Assessment of Need and Support Plan at the time the Residence Order application is being made. The report needs to be discussed and agreed by the Adoption Support Team Manager.

The Social Worker is to submit the finding of the Residence Order Assessment of Need and Support Plan to the Head of Service via the Service Manager Permanency and Planning, prior to filing with the Court. The Assistant Director will decide, via panel as before, whether financial support is to be provided after the two year period has ended.

If, in exceptional circumstances, it is decided that financial support is required in line with the child's needs beyond the two year period, it will be paid at foster care network rates (minus any reward element, child benefit, child tax credit an any contribution from birth parents) and means tested. The Social Worker is to inform the Residence Order applicant in writing of the decision as to whether payments will continue beyond two years.

The Agency Decision Maker has the discretion to waive the means test in exception circumstances for a specific period of time

6.3 Finance support summary

It is essential that the process for determining whether the Council will provide financial support is completed prior to the Residence Order application being heard in Court. Applicants must be informed in advance of the hearing of the level of financial support that will be provided and the Court will also be informed of this decision.


7. Court Process for Children in Care

Whether the Council's legal department continues to be involved in the Residence Order application depends on the complexity of the case and whether or not the application is likely to be contested.

If, after seeking legal advice, the applicant wishes to continue with a Residence Order application, they or their solicitor must notify the child's Social Worker in writing.

The Social Worker, on receiving the notification, will inform the Team Manager and the Independent Reviewing Officer for the child.

The Court, on receiving the Residence Order application will arrange, for an initial hearing to take place, which the child's Social Worker must attend.

Once the Residence Order application has been lodged, the Social Worker will inform everyone with parental responsibility (where possible), verbally and in writing that an application for a Residence Order is being considered and is to record their initial response in writing on the file.

Where practicable the Social Worker is to invite those with parental responsibility to attend a meeting with a view to discussing with them the full implications of the Residence Order application. They are to be advised to seek legal advice where appropriate.

At the initial Court hearing the application and the position of all parties will be considered. The case will be timetabled to a final hearing and this will include a date by which Children's Services will need to file their Court report.

A time limited Residence Order may be granted at the initial hearing. Once the Court has accepted a Residence Order application, the local authority cannot remove a child from their current placement, without the leave of the Court, the exception to this would be child protection concerns.

The child's Social Worker is responsible for completing the Section 7 Report to the Court by the filing date.

When the Court report is complete it must be signed by the Social Worker and Team Manager. The Residence Order Assessment and Support Plan, as approved by the Assistant Director/Heads of Service via Resource Panel, is to be attached. If the Council's legal department are involved in the case the report is also to be sent there. A legal representative will lodge it with the Court and send a copy to the applicant and parties solicitors.

If the Council's legal department are not involved in the case, the Social Worker is to send a copy of the Court report directly to the Court and all parties or the applicant's solicitor (if one is involved).

The Social Worker must attend the hearing where they may be asked to give evidence.


8. Action arising from Court decision

If the Residence Order is granted the Social Worker is to complete an SS117, an SS120 and an SS496 (if financial support is being paid) and update CareFirst.

If the assessment of need completed at the time of the Order application identifies that the child's assessment of needs does not merit financial support, payment will stop at the end of the two year period. The two year period in these instances allows the family time to adjust to their new financial circumstances.

In these cases the Social Worker must inform the payments and finance teams that the foster carer is entering a period of two years protection of payments as a former foster carer from the date the Residence Order is made. The Social Worker must also explain that there will be no uplift of the remuneration element of payments throughout the two year period and that payments will cease at the end of two years.

On the making of the Residence Order the case will then be transferred to the adoption support team via the transfer protocol.


9. Conditions of Financial Support

The person to whom the Residence Order is made must inform the Local Authority if:

  • The child lives with another person;
  • He/she changes address;
  • The child dies;
  • Any of the changes cited under cessation of financial support occur (see below);
  • There is a change in his financial circumstances or the financial needs or resources of the child which may affect the amount of financial support payable to him/her;
  • The child turns 18 years of age.


10. Reviews

10.1 Review of former Foster Carers receiving ongoing allowances beyond 2 years:

The first means test will take place at the end of the two year period by a finance officer sending out a means test form for completion by the person in whose favour the Residence Order has been made. Future payments will be based on the outcome of the review of assessment of need and means test and finance will instruct the payments section to adjust payments if required.

The Local Authority may set any other conditions they consider appropriate, including the timescale within which and purposes for which any payment of financial support is to be utilised. Where any condition is not complied with, the Local Authority may suspend or terminate payment of financial support and seek to recover all or part of the financial support they have paid.

If the person, who entered into the agreement fails to provide an annual statement the Local Authority is only able to take steps to suspend, terminate or seek to recover financial support 28 days after sending them notice informing them of the need to provide an annual statement. This notice will be sent by a finance officer who must also inform the Adoption Support Team Manager.

10.2 Review of Orders receiving ongoing allowances:

All ongoing allowances will be subject to an annual means test. A finance officer will send out a means test form for completion by the person in whose favour the Residence Order has been made. Future payments will be based on the review of assessment of need and outcome of the means test and finance will instruct the payments section to adjust payments if required.

The Local Authority may set any other conditions they consider appropriate, including the timescale within which and purposes for which any payment of financial support is to be utilised. Where any condition is not complied with, the Local Authority may suspend or terminate payment of financial support and seek to recover all or part of the financial support they have paid.

However, where the condition not complied with is a failure to provide an annual statement, the Local Authority may not take steps to suspend, terminate or seek to recover financial support until they have sent to the person who entered into the agreement a written reminder of the need to provide an annual statement; and 28 days have expired since the date in which the notice was sent. This notice will be sent by a finance officer who must also inform the Adoption Support Team Manager.


11. Cessation of Financial Support

11.1 Financial support ceases to be payable on a Residence Order when

  • The child ceases to have a home with him/her;
  • The child ceases full time education or training and commences employment;
  • The child qualifies for Income Support or Jobseeker's Allowance in his/her own right;
  • The child attains the age of 18.


12. Variation or Discharge

Any person entitled to apply for a Residence Order may apply for its variation or discharge.

End