Law Commission Consultation on Kinship Care (Consultation Paper)

We provisionally propose that it should be possible for a child’s parents to enter into an agreement with a child’s kinship carer(s) to share parental responsibility for a child?

Do consultees agree?

We provisionally propose that a kinship parental responsibility agreement should require the consent of all parents with parental responsibility, and of any other individuals who hold parental responsibility for the child, before the agreement is made.

Do consultees agree?

We provisionally propose that, where parental responsibility for a child is shared using a kinship parental responsibility agreement, it should not be possible for the agreement to provide for either the parents or kinship carer to exercise enhanced parental responsibility. By enhanced parental responsibility, we mean parental responsibility that can be exercised by one of its holders to the exclusion of any other holders.

Do consultees agree?

We provisionally propose that:

1. only kinship carers who fall within both the definition of kinship carer in section 22I of the Children Act 1989, and the definition of relative in section 105 of the Children Act 1989 (that is “a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parent”) should be able to enter into a kinship parental responsibility agreement;
2. it should be possible for a prospective carer under a kinship parental responsibility agreement to satisfy the definition in section 22I of the Act based on caring for a child at a date after the kinship parental responsibility agreement is made, with this date to be specified in the agreement;
3. the number of kinship carers with whom parental responsibility can be shared should be limited to two in each agreement; and
4. it should only be possible for there to be one kinship parental responsibility agreement with respect to a child at any one time.

Do consultees agree?

We provisionally propose that a kinship parental responsibility agreement should:

1. take effect on the later of the date on which it is received and recorded by the Central Family Court and any commencement date set out in the agreement;
2. be brought to an end by:
   1. the expiry of the period set out in the agreement;
   2. an order of the court made on the application of any person who has parental responsibility for the child, removing parental responsibility from the person to whom it was provided by the agreement;
   3. an order of the court made on the application of the child with permission of the court, removing parental responsibility from the person to whom it was provided by the agreement, such permission only to be granted where the court is satisfied that the child has sufficient understanding to make the application; or
   4. the child reaching the age of 18; and
3. be for such period as the parties specify subject to a minimum duration of one year.

Do consultees agree?

We provisionally propose the following process for the making of a kinship parental responsibility agreement:

1. the parents and the kinship carer must sign the document before a justice of the peace (a magistrate), a justices’ clerk, an assistant to a justices’ clerk, or a court official who is authorised by the judge to administer oaths;
2. the parents and the kinship carer must provide evidence of their identity;
3. the parents must provide evidence that they have parental responsibility for the child;
4. the kinship carer must provide evidence that they are within the category of people entitled to apply for a kinship parental responsibility agreement;
5. the application form must require the parties to list all those who already have parental responsibility for the child, thus ensuring that there is no pre-existing kinship parental responsibility agreement with respect to the same child;
6. the kinship parental responsibility agreement and the supporting evidence must be sent to the Central Family Court, with the agreement to be recorded and sealed by the Court; and
7. copies of the sealed kinship parental responsibility agreement must be sent by the Court to the parents and kinship carer(s).

Do consultees agree?

Section 66 of the Children Act 1989, uses the terms “a privately fostered child” and “to foster a child privately”. We have been told that some stakeholders find this language confusing, because, for example, of the potential for confusion with children being looked after by the local authority who have been placed with foster carers. We ask for consultees’ views on whether and why they find these terms confusing.

We ask for consultees’ views on whether a child cared for by a foster carer in the child’s own home, in the absence of any parent or other person with parental responsibility for that child, should fall within the definition of a privately fostered child.

We ask for consultees’ views on whether a child who is not disabled and is aged 16 or 17 should fall within the definition of a privately fostered child, if they are living in an arrangement that would, but for their age, be classed as a private fostering arrangement.