Julie Stather, barrister, of 42 Bedford Row suggests some ways to benefit children by strengthening the position of grandparents
Society is constantly evolving. Grandparents used to be very central figures in the lives of their grandchildren often living on the same street. Then as families became more mobile and the cities provided more possibility of employment, grandparents seemed to fade into the background. Now society, as with fashion, has come full circle and grandparents are once again at the forefront of many family units. The briefing paper Grandparents providing childcare produced in November 2011 by June Statham at the Childhood Wellbeing Research Centre identifies that grandparents provide the main form of child care for 35% of families where the mother was working or studying when the child was nine months old. Further, figures used by the charity Grandparents Plus identify that there are currently 300,000 kinship carers in the UK. This article will consider whether the law and current ‘on the ground’ practices are keeping pace with the changing role of grandparents in society, or whether in fact we have some catching up to do.
It is easy to see that grandparents are at a disadvantage, both perceived and practical, within the private law arena even if they have performed the role of main carer for a child. Grandparents still need to seek leave to apply for any section 8 order (most usually contact but sometimes residence) under the Children Act 1989. They may benefit from the exceptions to the requirement to seek leave under section 10(5)(c) – namely where they already have a residence order, where the child has resided with them for three years, or where those with parental responsibility agree. The test for leave is set out in section 10(9) but does not differentiate grandparents from any other applicant requiring leave. Therefore a grandparent whose grandchild has lived with them for two years and 11 months will be subject to the same hurdle with regard to leave as somebody who is not a blood relative and who has never cared for the child. Of course the outcome of applications for leave as between two such applicants may well be different, but the existence (and discouragement) of the extra hurdle is the same for both. Surely a grandparent who has provided sole care or the majority of care for a child should benefit from the right to make an application for a section 8 order without having to seek leave beforehand?
Obviously family mediation could have an important role to play here because it is suitable as a means of attempting to resolve any such disputes between grandparents and parents where the families can at least communicate albeit via a third party, but until such time as the awareness of mediation increases, grandparents are still faced with the daunting prospect of having to seek leave even to commence litigation.
The main focus of this article is, however, on public law proceedings, and the potential for grandparents to play a greater part than ever before in the lives of children who are the subject of those proceedings.
The government’s adoption advisor, Martin Narey, recently gave an interview to Children and Young People Now in which he stated that the aim in public law cases should be firstly to reunite the family; then if that is not achievable, to look at kinship carers; and then, only as the third and final option, to consider adoption. These goals are, it is to be hoped, at the forefront of all of our minds each and every week in court, but the more thorny issue is how these laudable aims will work within the new 6 month timetable for public law proceedings.
Almost immediately Grandparents Plus responded (via their policy officer Agnes Gaultier also in an interview with Children and Young People Now) to Mr Narey’s comments by claiming that the new 6 month timetable risked “overlooking the extended family as the natural first port of call” (). In a legal system where, quite rightly, the timetable for the child is the most important timetable and in a system where, equally rightly, delay (unless planned and purposeful) is identified as detrimental to the welfare of the child, tensions between assessment of kinship carers and children’s timescales are likely to occupy an increasing amount of the courts’ precious time. So how can practitioners maximise the chances of kinship carers being properly assessed within the relevant timescale?
One way in which the wider family of a child can be identified and progress through assessment most quickly is by effective and timely use of the Family Group Conference (FGC) (as envisaged by the Family Justice Review). This would not require any statutory change – merely expedient use of the existing Public Law Outline (PLO) guidance.
It is often the case that the FGC is not convened until after the Case Management Conference (CMC) date, so the 45 days after issue of proceedings, which provides a valuable opportunity, is lost. More importantly perhaps, is what is lost in terms of time pre-proceedings. In the PLO flowchart as published on the Ministry of Justice website, the Family Group Conference appears at the very beginning of the process – at the initial assessment stage and even before the core assessment. This would, of course, make perfect sense, as alternative care within the family, or sometimes even just the provision of support, could be vital in the assessment of safeguarding concerns generally. It would also allow for the outcomes of the FGC to feed into the Child Protection Plan, which can only be beneficial for all concerned. For families it would give them the opportunity, before the issue of proceedings, to work with the structured support of their family together with any other forms of input and resources identified at the FGC. For the local authority it would provide a chance to see how the dynamics of the family work; to form an initial view as to the abilities of the respective family members to work individually and together in the best interests of the children; and to assess the family’s willingness to access the relevant resources and to work with professionals. This could of course be an invaluable insight when approaching any viability assessments. There are also benefits to the guardian when he or she is appointed, as some evidence will be immediately available with regard to possible kinship carers, which is hardly ever the case under current working practices.
An early CMC may also serve to reduce the increasingly heavy workload of the already hard-pressed local authority.The NSPCC fact sheet “Family Group Conferences in Child Protection” (August 2009) states that “the aim of the family group conference is to support families to find their own solutions to problems: the family members are the decision-makers rather than the professionals; the family is the primary planning group”. In this way, the task of planning ways to meet the child’s needs passes immediately to the family (in its widest sense) rather than resting with the local authority. In practical terms this means that, for example, the local authority might provide information regarding various local nurseries but would not then have to actually make the enquiries as to availability of places etc.
Another benefit of the FGC as an early form of intervention is that it is chaired by a coordinator unaffiliated with the local authority, so that if family members have any issue with the Social Services representative per se, they can be confident that the FGC is being overseen by an independent person with knowledge of the resources available and being offered, and the types of issues and scenarios being discussed at the FGC. This independence could be of paramount importance during the family’s private planning and discussion session as the coordinator is available to them during that time without any of the professionals being present. This may lead to an easier working relationship between the local authority and the family and therefore a potentially higher chance of success of any ‘family plan’ at a less advanced stage of the process.
Finally, an early FGC may also assist within proceedings in that a complete minute or very thorough summary of the FGC may reduce arguments often presented at contested interim care order hearings and CMCs that the parents have not been directed towards relevant resources or offered places on appropriate courses. Where the assistance has been offered but there is a lack of engagement on the part of the family, the documentation of this fact may also provide the local authority with an opportunity to rely on it.
It should be the practice of all local authority representatives to include a direction at the earliest opportunity for parents to disclose the names of any persons they wish to be assessed. In Practice Direction 12A – the Public Law Proceedings Guide to Case Management: April 2010, the naming of such persons is one of the directions to be “considered” (see 13.3(6)(d)) at the First Appointment which, as we know, should be held within 6 days of the issue of proceedings. However, it is the experience of the author that the appropriate direction is often not made until the CMC which, according to the PLO, should be held by day 45. Under the new proposed 6 month scheme, 45 days is proportionately a wealth of time and it would therefore appear sensible to make the direction mandatory (and within a tight timescale such as 7 days for compliance) rather than discretionary at First Appointment. It would also be desirable to add a direction for initial enquiries to be made of those persons proposed as carers to be completed prior to the CMC; and insofar as is possible, for preliminary checks via Child Protection Protocols to be made in relation to police and social services records to ascertain whether any such persons are likely to be ‘ruled out’ very quickly. Further, a direction should provide for the invitation of those persons whose names have been put forward to attend the next hearing (which should be the CMC) to ascertain whether they wish to be assessed, and whether they require separate representation. In addition care should be taken to ensure that a direction is given for disclosure of the viability assessment to the subject of that assessment as soon as it is completed because there has been a frighteningly high occurrence of that simple step not being taken which has led, naturally, to further delay. In a recent case in which the author was briefed for final hearing, a viability assessment of the grandparents had not been disclosed to them until a week or so before that hearing. In an ideal world the viability assessments should be completed prior to CMC in order that arguments about further assessment could be heard then, but viability assessments are seldom, at present, completed within one month, although this is something that will perhaps need to change under the new system.
Whilst all of these proposed directions may seem light years away from the current timetables, they may well assist in ensuring compliance with the new ultimate six month limit at the same time as avoiding the dreaded last minute application by a hitherto unknown family member.
British society is undoubtedly changing. More grandparents are caring for children for a variety of reasons: there is a social expectation of mothers going back to work relatively soon after the birth of their child; many extended families live under one roof; the cost of childcare is unaffordable for many, and of course many parents would just prefer their child to be looked after by a family member. The legal profession needs to be at the forefront of recognising these changes and embracing them, particularly if that means the chance of more children being raised within their birth families.
The situation of grandparents in private law proceedings is not enviable – there are real difficulties in relation to funding for most grandparent applicants; and the requirement for leave creates a perceived barrier and indisputably increases the time and cost of proceedings. It may be that the time has come to consider the requirement for leave for grandparents, but in any event there must surely be a strong case for promoting the use of mediation in these types of wider family dispute.
There is a real opportunity for change too in relation to public law proceedings. We could try to throw money at the problem: local authorities sometimes pay for an initial session for a grandparent with a solicitor, and it could be argued that this should be standard practice, but with resources in such demand, funds are naturally preserved for child protection. Instead, by looking more closely at working practices both before and after the issue of proceedings, it may be possible to give grandparents and other kinship carers a greater voice with regard to the child’s welfare and placement.
There are real concerns that the new six month timetable will lead to kinship carers losing the possibility to be assessed. The adjustments discussed within this article could hopefully bring those potential carers into the ‘limelight’ at an earlier stage of proceedings, thereby potentially saving court time, legal expenses and even possibly the costs of some expert assessments (of course there are some cases which would not be fought to final hearing if a family placement was identified at an early stage). Long term there are also potential savings in relation to the costs of supervising contact which in many cases would not arise in a family placement as compared to long term foster care etc.
However, undoubtedly the best potential outcome of these changes would be for the children, who would have a greater chance of being brought up within their birth family, benefitting from that continued sense of identity and belonging, and a natural form of contact with their parents, which only a family placement can provide.
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