A story published in Community Care today, highlights an important point of law which we often share with families we assist: councils must try to place children in need with family members or friends before they consider sending children to live with foster carers or in children’s homes. Placing children in need with relatives or friends is sometimes referred to as Kinship Care.

Section 22C of the Children Act 1989, requires that all local authorities must try to place children with either a parent of the child in question, or someone who has parental responsibility for that child. There is a very specific order which councils must follow when looking at placement options, and family members and friends of the child are at the top of that list.

The only exceptions which allow councils to deviate from that list and skip straight to the second cluster of options is where placing a child with family or friends would not be consistent with that child’s welfare, or would be impractical in some way. The difficulty here lies not only in whether the decision maker, here that’s the council, is impartial, but how, or whether, that decision has been recorded and made available.

Should the council feel that family members and friends are not suitable options, they are then required to consider the following placements, in this order:

1. An individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent
2. A local authority foster parent, who is not related to the child
3. A children’s home
4. Other arrangements which fall under this section.

Equally important is Section 22(8), which says:

(8) The local authority must ensure that the placement is such that—
(a) it allows the child to live near their home;
(b) it does not disrupt the child’s education or training;
(c) if the child has a sibling for whom the local authority are also providing accommodation, it enables the child and the sibling to live together;
(d) if the child is disabled, the accommodation provided is suitable to that child’s particular needs.

However, the compulsory aspects of S.22(8) are seriously undermined by S.22(7)(b) which explains that:

In determining the most appropriate placement for the child, the local authority must, subject to [F5subsection (9B) and] the other provisions of this Part (in particular, to their duties under section 22)… comply, so far as is reasonably practicable in all the circumstances of the child’s case, with the requirements of subsection (8).

The piece in Community Care gives details about a Freedom Of Information request which asked councils across the country whether they were engaging in Kinship Care, and how many kinship placements they had made in the last year. The request found that less than 1 in 5 of the 124 councils that answered had used kinship arrangements, with as few as 11% of children taken into care initially placed with friends or family, in the 2016-17 financial year. The FOI request was made by law firm Ridley & Hall, who also discovered that only 4,758 out of 27,791 children were initially placed with relatives or close family friends.

Speculation over the reasons behind these figures include the view that initial assessments of family members and relatives are taking place but with little to no success, while others are suggesting the real issue is that kinship engagements are not being actively promoted in some councils. Other, more complicated factors may also be at work, like councils’ continued preference towards foster placements and the often drawn out and complicated assessments needed, to see if family and friends are suitable placement options, which councils are keen to avoid.

Running against the clock to fit child protection cases into a 26 week window also incentivises councils to choose faster solutions, like foster care, where agencies and individuals have been previously vetted and are ready to go. The fear of placing children in situations where they could be at risk of harm, regardless of whether a risk exists or not, is also likely to be a factor in councils’ reluctance to place children within family settings, with the threat of judicial reviews and massive fines often clouding child protection decisions.

Still, the law is clear. Families and friends must be considered FIRST, before a council can go ahead and start looking at foster placements and care homes, so don’t be shy to quote Section 22C, and to ask that proper process is followed.