Written evidence from Family Rights Group (CFA0106)
HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY
The House of Lords Select Committee on the Children and Families Act 2014 Inquiry
Response from Family Rights Group, April 2022
Summary of recommendations set out in this submission
The submission also sets out proposals to address the following situations:
- that a child may be in care under a voluntary arrangement and placed in a foster for adoption placement, without the birth parents having had legal advice about the rights and options
- A revised approach to measuring timescales for proceedings if extensions are required to ensure proper assessment of relatives, or appropriate relationship building and support planning, to enable a child to return home or remain placed with a kinship carer.
1. About Family Rights Group (FRG)
1.1 Family Rights Group’s mission is to create a more socially just society in which the child welfare and family justice systems support children to live safely and thrive within their family, while strengthening the family and community networks of those children who cannot live at home. We are the national charity that works with parents in England and Wales whose children are in need, at risk or are in the care system and with members of the wider family who are raising children unable to remain at home.
1.2 We campaign for families to have their voice heard, be treated fairly and get help early to prevent problems escalating. FRG introduced the family group conference model (FGC) to the UK from New Zealand. FGCs are an approach which bring together the family network to make a plan for, and with a child, where there are concerns, for example, that the child may be at risk. We now host the National FGC Network. We also developed Lifelong Links, an approach which works with children in care to build a lasting support network for them to turn to emotionally and practically in child and adulthood.
1.3 Our specialist legal and practice advice service advises parents, wider family and friends about their rights and options when social workers or courts make decisions about their children. In 2021/2 we advised 7000 callers to the advice line and there were more than 500,000 visitors to our website and digital advice forums for parents and kinship carers.
1.4 FRG facilitated the sector-led Care Crisis Review which explored the contributory factors to the rise in applications for care orders and the number of children in care, and considered options for change. We provided the secretariat to the Parliamentary Taskforce on Kinship Care and now provide the secretariat to its successor, the All Party Parliamentary Group on Kinship Care.
2. Structure of submission
2.1 This submission addresses four of the questions identified by the Committee and includes evidence derived from our broader work with children and families.
3. To what extent has the Act improved the situation for the most vulnerable children, young people and families in England? To the extent that it has not, is this because of the Act itself, its implementation, or challenges which subsequently emerged, whether lasting or temporary?
3.1 There are now more children in the care system than at any time since 1985. The number of looked after children in England as of 31 March 2021 compared with 31 March 1994 shows a 70% rise to 80,850 children. In 2018 FRG facilitated the Care Crisis Review, a sector-led review of the high numbers of children in the care system and the record number of care cases coming before the family courts. The review’s findings continue to be pertinent today. The Review was prompted by a comment by Sir James Munby, then President of the Family Division of the High Court of England and Wales, who in September 2016 said: “We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis. What is to be done?”.
3.2 The Review’s intensive work programme heard from over 2,000 people, including children, young people and families and practitioners in England and Wales. It generated a conversation with those who have a stake in the system, including the judiciary and local government, Cafcass, third sector organisations and alliances and those with direct personal or professional experience of children’s social care and the family justice systems.
3.3 The Review found:
Many of the challenges identified in the Review have amplified during the pandemic.
See Care Crisis Review: options for change and Care Crisis Review: Factors contributing to national increases in numbers of looked after children and applications for care orders
4. If there were to be a Children and Families Act 2022, what should it include and what might be the barriers to implementation?
The following proposals build upon the Care Crisis Review’s Options for Change. We urge that where we recommend that new duties are placed on local government, these are adequately funded by central government.
4.1. Building not breaking relationships for children and young people in the care system - Lifelong Links
In 2013, FRG and seven other leading children’s charities conducted an inquiry into what worked best in securing permanence – including greater stability and a positive sense of identity and belonging – for children in, and on the edge of, care. Its key findings were:
4.2 In response, FRG developed Lifelong Links. The approach works to ensure that a child in care has a positive support network around them to help them during their time in care and in adulthood. An independent Lifelong Links coordinator works with a child to find out who is important to them, who they would like to be back in touch with and who they would like to know. The coordinator searches for these people, using a variety of tools and techniques. They then bring the network together at the Lifelong Links family group conference to make a plan with and for the child, which the local authority supports to ensure these relationships continue to grow.
4.3 In January 2021 the report by the Rees Centre, University of Oxford of their independent evaluation into Lifelong Links was published. The evaluation covered the three year trial, 2017-20, which involved 12 local authorities in England. Some of its key findings include:
4.4 A subsequent longitudinal evaluation led by Professor Lisa Holmes and academics at the Rees Centre, University of Oxford was published by FRG in April 2022. It focused upon two of the trial authorities and concluded that:
4.5 To ensure that all children in care and care leavers have a positive support network to help them during their time in care and in adulthood, we recommend a new legal duty to offer Lifelong Links to children in care. We also propose strengthening the law so the current duty that local authorities allow a child in care reasonable contact with their parents also applies to allowing reasonable contact with siblings. We also urge implementation of a Ministerial commitment made in 2017 to amend Care Planning Regulations to provide for contact between children in care and any siblings who are not looked after.
4.6 Family as an untapped resource
FRG’s Care Crisis Review found consensus around the idea that relationship building is (and always has been) at the heart of good practice and that greater focus on exploring and supporting family as a resource could safely avert more children needing to come into care and could help those in care to thrive.
4.7 Yet partnership working between families and the state is too easily eroded, particularly when the child welfare and family justice systems comes under further stress. An illustration is the way remote child protection conferences have been conducted during the pandemic. Experience from our advice service has found that parents commonly reported having to contribute to a child protection conference by phone, not knowing who else is in the room or who is speaking and not feeling that they understand the local authorities’ concerns. The Nuffield Family Justice Observatory report on remote child protection conferences[1] provides further evidence of concerns about how families are being engaged. We fear that what may feel organisationally expedient for local authorities during the pandemic, may become a norm post pandemic, without effective exploration of the impact on those that matter most – children and their families.
4.8 Failure to work in partnership can have negative implications on families receiving the tailored support they need and, on their ability to understand or accept local authority’s child welfare concerns. Moreover, perceived parental non-cooperation is commonly the trigger for local authorities to issue care proceedings. Advice and advocacy at an earlier stage helps families to understand their rights and responsibilities better and therefore engage better with the process. Evaluation of our advice line shows 85% understand their rights and responsibilities better as a result of the call. Analysis has also shown that the service saves the public purse £15.10 for every £1 invested, from care costs avoided and local authority costs saved by averting the need for long term or more intensive statutory involvement[2].
4.9 We recommend a right to independent legal advice and advocacy for all families whose children are subject to child protection enquiries or other compulsory interventions within the child welfare or family justice system, including through extending legal aid.
4.9 A family group conference (FGC) is a way of enabling the family network to take a lead in planning and decision making when a child is in need or at risk. It is proven to be effective in utilising the child’s family network (as well as local services) in supporting parents who are struggling and in identifying potential kinship carers where the child may not be able to remain with their parents. Statutory guidance on court and pre-proceedings2 strongly promotes the use of FGCs prior to a child entering care (except in an emergency). Whether families are offered an FGC is largely a postcode lottery. A 2018 survey by Family Rights Group found that only 33 local FGC services reported that it is written within their local authority/agency’s procedures that all families will be offered an FGC prior to care proceedings (except emergency situations). A mapping exercise in 2019 by Family Rights Group found that 78% of English local authorities ran or commissioned a FGC service and some services were small scale.
4.10 We recommend a new duty on local authorities to offer all families a family group conference before their child enters the care system (except in emergencies) so that the family’s knowledge and strengths inform and enhance decision-making and planning about their child and all efforts are made to enable the child to remain safely within the family network.
4.11 Family reunification, when a child returns home. is an area of permanence planning which has had very little political or policy attention since the 2014 Act. A key factor as to the reason why the numbers of children in care has risen over thirty years is that children are remaining in the care system for longer. But some of these children, with the right support and preparation could return home. FGCs could also be more regularly offered to families to plan and support children to safely return home from care
4.12 We propose that where the plan is for a child to return home from care, there is a duty on the local authority and other public agencies to provide (or once the child has returned home continue to offer) such support to the child and family as necessary to safeguard the child and promote their welfare.
4.13 Kinship care is where relatives or friends raises a child who cannot remain with their parents. An overview of UK research studies on kinship care found that outcomes are positive for most children living in kinship care, and that overall children feel loved, and a greater sense of security and stability than those in unrelated care.[3]. However, the cross party[4] Parliamentary Taskforce inquiry found kinship care is too often an afterthought in the child welfare system. Moreover, although children in kinship care have experienced similar adversities to those in the care system they and their carers often received much less support.
4.14 Kinship care placements are too often explored late in the day leading to some children unnecessarily going into the care system. Research by the Parliamentary Taskforce highlighted that a third (32%) of all looked after children in England who were living with kinship foster carers had previously been placed in an unrelated foster care placement. Greater focus and commitment to exploring and supporting those families could safely avert many more children from having to go into the care of strangers, which is in the interests of the children themselves, society, and the taxpayer.
4.15 There is also significant variation in how local authorities explore and support kinship care as an option. In East of England only 8% of children in care were living with kinship foster carers, compared to 18% of children in care in Yorkshire and Humber. It is worth comparing the situation in England with that internationally. In New Zealand, where FGCs are the means of decision making, 48 per 10000 children are in care compared to 67 per 10000 in England. Of those in care, 62% are raised by kinship carers in New Zealand compared to only 15%.
4.16 Many kinship carers and the children they are raising face significantly greater adversities than the wider population. They are more likely to be living in areas of greater deprivation, and both the children and their carers are more likely to be to have a disability or experience poor health. More than half of kinship carers have to give up work or reduce their hours to take on the children, and many rely on the benefit system as a result, that is often unresponsive to their particular situation. Since 2011, local authorities in England have been required to publish a policy setting out their approach to promoting and supporting the needs of children living with family and friends carers[5] This information is important to inform kinship carers, often in a crisis situation, of The Parliamentary Taskforce found that 16% of local authorities either did not have a family and friends care policy, or had a very outdated policy (i.e. it had not been updated since significant legislative changes were made to the child welfare and family justice system in April 2014). The quality and consistency of the policies as a whole are extremely variable, yet this information is important to kinship carers, especially if they are having to make life changing decisions in a crisis.
4.17 Time to Define kinship care
There is currently no single definition of kinship care in legislation. As a result, the child’s carer can face many challenges including not being recognised as the child’s carer by hospital services or schools. Many kinship carers are also currently entitled to little or no support for the child and themselves, especially if they have stepped in during an emergency.
4.18 Without an agreed definition, kinship carers can quickly run into a myriad of confusion and misunderstanding. At the very moment when the child they are caring for needs stability and support, kinship carers find they are having to constantly explain who they are and what they need. That is why FRG is proposing that a universal definition of kinship care be written into primary legislation which would encompass the different types of kinship care arrangement. Meeting the definition would then automatically passport kinship carers and their children to entitlement to a minimum level of support and services. See the proposal for a clear and simple legal framework for kinship care which sets out our recommendations in more detail including what minimum level of support kinship carers should be entitled to, including paid employment leave (akin to Adoption Leave).
4.19 Post removal support for parents
A significant minority of parents subject to care proceedings about their child, will already have had a child removed. Studies have established that one in four mothers in England is at risk of reappearing in care proceedings following an initial set of proceedings within seven years, with the likelihood being greatest within the first three years[6]. A study led by Professor Broadhurst found 40% of these mothers had been in foster care or children’s homes with a further 14% living in private or informal relationships away from their parents. The study also revealed the high levels of abuse and neglect women had suffered in their lives as children. And that these mothers often had their first child in their teenage years.
We propose a duty on local authorities to offer therapeutic support and counselling to parents whose children are removed, to help them deal with their grief and to address the reasons why their child was removed.
5. Is the Act enabling faster, more secure and stable adoptions which are in the best interests of the child? What has been the effect of provisions on fostering to adopt?
5.1 Since foster for adoption was legislated for in the Children and Families Act 2014, Family Rights Group has consistently highlighted concerns about the use of foster for adoption in the context of voluntary arrangements under section 20 of the Children Act 1989.
5.2 Foster for adoption is used primarily in respect of infants, and often newborns. The intention of foster for adoption is to minimise disruption for a baby or young child, enabling them to attach to a consistent carer who will become their adoptive parent, should they be unable to be raised within their family network. This clearly has life-long ramifications for both the child and their birth family.
5.3 Statutory guidance states that when a local authority places a child with foster for adoption foster carers, they have taken the view that ‘the long term permanence plan for a named child is likely to be adoption’ and that attempts to rehabilitate the child with the family will be ‘[7] The clear trajectory of a foster for adoption placement is adoption and as such it has profound implications for a child and their family.
5.4 A decision that a child be cared for by foster for adoption carers required approval by a local authority nominated officer before the placement may take effect. Regulation and statutory guidance taken together make it explicit that a nominated officer is a senior officer of the authority nominated in writing by the Director of Children’s Services to fulfil the role and that it is expected that person will be ‘a social worker with a good understanding of care planning, including adoption and fostering’[8].The nominated officer considering approving a decision for a child to move to a foster for adoption placement has to be satisfied that the placement is the most appropriate one for the child and that certain matters have been attended to. These matters include ensuring: that the child’s wishes and feelings have been considered in the decision making process; the Independent Reviewing Officer has been informed; that the parents (including fathers without parental responsibility) are notified in writing about the proposed placement (as soon as the officer is asked to approve the placement decision[ and where the child is in the care system under a voluntarily arrangement under section 20 Children Act 1989, the notification to birth parents should remind them of their right to remove the child from the local authority’s care and should provide advice on access to legal advice and appropriate advisory bodies.
5.5 But only some children’s cases will be the subject of scrutiny by the Family Court at the time that foster for adoption arrangements are being considered (e.g. because there are ongoing care proceedings). For other children looked after under a section 20 voluntary arrangement, their cases will not be before the Family Court. Local authorities may be seeking the agreement of a parent that their child becomes looked after in the care system via a voluntary arrangement within mere days of the child’s birth i.e. when a mother may be particularly vulnerable. Some parents have expressed that they have felt coerced into agreeing to a voluntary arrangement. they have no choice but to agree. This could then become a foster for adoption placement.
5.6 In Summer 2014, prior to the Government issuing statutory guidance, FRG met with officials and Ministers to express concern about the use of foster for adoption placements for children looked after under section 20, particularly those not subject to care proceedings at the time they become looked after. The response was that foster for adoption would be rarely used in such instances. Indeed, Government guidance subsequently stated that use of foster for adoption placements alongside section 20 voluntary arrangements ‘are likely to be unusual[9][10] found:
• 83 local authorities reported that 163 voluntarily accommodated children were placed in foster for adoption placements initiated since 25 July 2014. Whilst this averaged two per authority, it masks huge variation in practice: 40 of the 83 reported that they had not used foster for adoption arrangements for any voluntarily accommodated child, whilst the other 43 had used it for 163 children
• 84 local authorities reported the age breakdown of 144 voluntarily accommodated children in foster for adoption arrangements instigated since
25 July 2014. 127 (88%) were babies aged under 6 months including 111 (77%) new-borns aged under 6 weeks old.’
5.7 The FOI requests also asked the authorities to confirm how many of the section 20 foster for adoption placements were instigated after care proceedings had been initiated. The responses suggest that a significant number, possibly a majority, of the children voluntarily accommodated and placed with foster for adoption carers had moved to those arrangements at a time when neither proceedings nor a pre-proceedings process had been instigated. This is significant because where a parent is in care proceedings or the formal pre-proceedings process, they are entitled to non-means and non-merits tested legal aid. However, for parents outside of these formal proceedings, especially parents of newborns, it is likely they will not have had free, independent legal advice and therefore may not understand their rights or options or the consequences of steps being taken.
5.8 We accept that where section 20 foster for adoption arrangements are in place, the subsequent issuing of care proceedings, placement order proceedings and thereafter adoption proceedings, provide opportunities for independent scrutiny of the case and for legal advice and representation to be provided[11] However, none of this can be considered a substitute for early-stage advice for parents about the nature and implications of a foster for adoption arrangement.
5.9 Whatever the route by which a child’s case comes before the court, one of the key considerations that courts take into account is the early bonds and attachment that the child has made. This has been reinforced in section 9 of the Children and Social Work Act 2017 which adds to the list of matters to which court is to have regard in coming to a decision relating to the adoption of a child. The list now includes the relationship with any person who is a prospective adopter with whom the child is placed. Parents without independent, legal advice at the time a foster for adoption placement is being proposed or put in place are unlikely to be aware of these far-reaching implications. Further, an early and insufficiently scrutinised foster for adoption arrangement can have the effect of enabling a child to form those bonds with the prospective adopter but conversely prevent, frustrate or otherwise deprioritise the child forming bonds with birth parents and family.
5.10 We propose:
(i) The child is already subject of an application under section 31 Children Act 1989 which is before the court prior to any placement of the child with proposed foster for adoption foster carers; or
(ii) The parent has given formal, informed consent via a procedure witnessed by Cafcass, to the child being cared for by foster carers in a foster for adoption placement. This consent cannot take place until the child is at least six weeks old and the parent(s) must have been offered free independent, legal advice.
6. Does the 26-week limit on care and placement proceedings strike the correct balance between justice and speed?
6.1 The 26 week timescale for care proceedings introduced by the 2014 Act needs to be looked at in the context of I) how local authorities approach working with children and families in line with the partnership principles underpinning the Children Act 1989; and ii) whether local authorities are meeting their duties under government statutory guidance for timely and early-stage exploration of wider family and friends (both as a source of support and as an alternative care option).[12] There is evidence of significant variations in the timeliness and quality of local authority practice in early and pre-proceedings work with families. As stated above, it is largely a postcode lottery as to whether families are offered an FGC as a means to explore the wider family and friends’ network and many authorities do not have up to date, published kinship care policies as required by statutory guidance. Where local authorities do not undertake timely early work and where good quality formal pre-proceedings work has not been carried out, the pressure of the 26-week timescale can lead to potential kinship carers experiencing rushed assessment processes to the frustration and detriment of children and families.
6.1 Further, where the 26-week timescale becomes the sole or principal performance indicator of local courts or family justice areas this leads to a climate in which focus on speed risks supplants focus on exploration of all potentially realistic options for the child. , This can lead to the underuse of the mechanism for extending the timeframe for proceedings as built into the legislative framework. Adequate time is needed within proceedings to ensure that a full and robust kinship care assessment of carers can be completed; sufficient time is required for building relationships between the child and the potential carer and between the social workers and family members; and to ensure that all family members supporting the placement are properly involved. [This is line with recent guidance from the President of the Family Division’s Public Law Working Group].
6.2 As highlighted by the Parliamentary Taskforce and within FRG’s initial assessment guide, potential kinship carers should be identified early and properly informed from the outset. This should include being given an explanation of the nature of the assessment process, why questions are being posed, and what is being asked of them. They should have a full understanding of their legal rights, including in relation to upholding any proposed support arrangements. Within care proceedings local authorities and other parties need to make use of the currently available option to apply to extend care proceedings beyond 26 weeks when it is necessary
We also propose approaches to measuring performance within the family justice system are reviewed by the Family Justice Board in consultation with stakeholders so that future approaches ensure:
May 2022
[1] Child protection conference practice during COVID-19: Reflections and experiences (rapid consultation September–October 2020) - Nuffield Family Justice Observatory (nuffieldfjo.org.uk)
[2] How our Advice and Advocacy Service makes a Difference - Family Rights Group (frg.org.uk)
[3] Hunt, J. (December 2020) An overview of the last two decades of UK research on kinship care
published by Family Rights Group
[4] First Thought Not Afterthought: Report of the Parliamentary Taskforce on Kinship Care (2020) https://www.frg.org.uk/images/Cross_party_PT_on_KC/KinshipCare_parliamentary-report-September20.pdf
[5] Department for Education (2011) Family and friends care: Statutory guidance for local authorities. https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/288483/family-and-friends-care.pdf
[6] Karen Broadhurst, Bachar Alrouh, Emily Yeend, Judith Harwin, Mike Shaw, Mark Pilling, Claire Mason, Sophie Kershaw, Connecting Events in Time to Identify a Hidden Population: Birth Mothers and Their Children in Recurrent Care Proceedings in England, The British Journal of Social Work, Volume 45, Issue 8, December 2015, Pages 2241–2260, https://doi.org/10.1093/bjsw/bcv130
[7] The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review at paragraph 3.160
[8] Extract taken from The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review at paragraph 3.155. It is acknowledged that the nominated officer may also be the Agency Decision Maker (ADM)
[9] The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review, paragraph 3.156. Available at: https://www.gov.uk/government/publications/children-act-1989-care-planningplacement-and-case-review
[10] Lynch, C. (2017) Cooperation or coercion? Children coming into the care system under voluntary arrangements. Family Rights Group. Available at: https://www.frg.org.uk/images/YFYV/KI-Report-10.07final.pdf
[11] It is not a given that all such cases will come before the court by way of care proceedings where the local authority plan is one of adoption (see section 22(1) Adoption and Children Act 2002)
[12] See for example,
the Pre-proceedings and court order statutory guidance and the Family & Friends Care statutory guidance for local authorities