Legal arrangements for family and friends carers
This page provides practitioners with information about the legal status of children who live with family and friends carers.
Children who live with a family member or friend of the family do not fall into a single legal category. The six main groups are listed below, with an explanation of local authorities' duties towards these children.
1. Looked after by the local authority
A child may be looked after as the result of a care order being in place, or under a voluntary agreement with the child's parents. When a child is looked after, the local authority must safeguard and promote the child's welfare. It is also under a duty to accommodate and maintain the child.
If the child is looked after by the local authority, the person caring for them must be a foster carer approved by the local authority through the usual processes, and the child must be visited.
Local authorities are under a duty to make arrangements to enable a looked-after child to live with a relative or friend of the family, unless this would not be reasonably practical or consistent with the child's welfare. (Click to read Section 23(6) of the Children Act 1989.)
2. Residence order
A court may make a residence order under the Children Act 1989. This specifies who the child lives with and gives the carer parental responsibility.
When a residence order is in place, the local authority is under no duty to monitor the placement and the carer is under no duty to notify the local authority of the placement. As for any other arrangement, if the local authority becomes concerned for the welfare of the child, the authority is able to use its range of child protection powers included in the 1989 Act.
3. Special guardianship order
From 30 December 2005 a court may make a special guardianship order. This is an order appointing one or more people over the age of 18 to be a child's special guardian. When considering whether to make a special guardianship order, the welfare of the child is the court's paramount consideration. An order can only be made if the court has received a report covering the suitability of the applicant(s) to be a special guardian(s) from the local authority.
When a special guardianship order has been made, the local authority is under no duty to monitor the placement. As for any other arrangement, if the local authority becomes concerned for the welfare of the child, the authority is able to use its range of child protection powers included in the 1989 Act.
4. Living with a relative under a private arrangement
A parent may make arrangements for their child to live with a close relative without any involvement of social services. Where the relative falls within the definition set out in Section 105 of the Children Act 1989 (grandparent, brother, sister, uncle, aunt; whether full blood, half blood, or by affinity; or step parent) there is no need to notify the local authority of the placement, or for the local authority to monitor the placement. The local authority will only have a role if the child is in need or at risk.
5. Privately fostered with a member of the wider family or a family friend
A parent may make arrangements for their child to live with someone from within the wider family or a family friend. The child is privately fostered if the placement lasts for more than 28 days and the carer does not have parental responsibility for the child and falls outside the definition set out in section 105 of the Children Act 1989 (grandparent, brother, sister, uncle, aunt; whether full blood, half blood, or by affinity; or step parent).
Although this is a private arrangement, there are special rules that mean the local authority must be told about the placement and carry out regular visits to check on the child's welfare.
Click for further information on private fostering.
6. Appointed as a guardian after the death of a parent
Where a parent has died and appointed the carer as the guardian of the child and no one else holds parental responsibility for the child, the carer will have parental responsibility for the child and will be able to act for the child in the same way as any parent. Social services will not have any role to play unless the child is determined to be in need or at risk.
Where a parent has died and someone else holds parental responsibility for the child, the carer will be treated as looking after the child under a private arrangement and may be a private foster carer.
Click for more information on exercising parental responsibility.
This page was last updated on 23 December 2005
