ANEXOS Anexo

6.4.1

A common use of residence orders

Our study demonstrates that residence orders are regularly used as an alternative to public law remedies in situations where the parents are no longer able to provide care and grandparents or other relatives take over, often at the suggestion of social services. These orders were generally made in cases where mothers struggled with multiple and complex problems and fathers were relatively uninvolved.15 _{Our findings are supported by the work of Hunt and Waterhouse (2012)}16 _{who found} that 25% of kinship care cases were formalised by a residence order. In 2013 Selwyn et al found even higher numbers of residence order in their sample; 56% of kinship care arrangements were formalised

14 _{See section 5.5.2, p5.5.2105.}

15 _{There were a similar group of cases where fathers took over from mothers who were struggling to cope with their}

children; these are discussed ….

16 _{J Hunt & S Waterhouse, Understanding Family and Friends Care: the relationship between need, support and legal}

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by a residence order.17 _{4% of the children who exited ‘looked after’ status in 2011 did so because a} Section 8 residence order was made.18

6.4.2

Fathers are not considered as appropriate substitute carers

There was a definite gendered aspect to this group of cases. The trigger for placement with non- parents was maternal inability to care for children. While four single mothers sought the return of children there were no such applications from single fathers. The fathers in these cases were never seriously considered as substitute primary carers.19 _{However, the files generally provided good} reasons for this approach, which was taken by both children services and the County Courts.

Any allegation of a gender bias can be easily refuted by the high numbers of residence applications by fathers to take over as primary carer due to incapacity of the mother. A sizeable number of these applications from non-resident fathers had been expressly encouraged by children’s services and are discussed e.g. in section 2.8.5.

In 6 cases the fathers were unavailable; they were dead, living outside of the UK and unable to obtain a visa, or missing in the sense that all reasonable efforts to locate them had failed. E31, for example, concerned a teenage boy whose dad had moved to Spain in 1999 and had not been in contact since; unsurprisingly a letter sent to the Spanish address had been returned stamped ‘addressee unknown’.

In 4 of the cases there was no (or very little) information about the children’s fathers in the files. In E25, for example, there was sporadic telephone contact, but since the challenging 13-year-old boy had settled in well with his maternal grandmother and his behaviour at school had improved noticeably it was understandable that no efforts were made to consider a move to his dad’s house.

17 _{J Selwyn and others, The Poor Relations? Children and Informal Kinship Carers Speak Out (Buttle 2013).}

18 _{Department of Education, Children looked after by local authorities in England: year ending 31 March 2011}

Statistical First Release SFR 21/2011, https://www.gov.uk/government/statistics/children-looked-after-by-local- authorities-in-england-year-ending-31-march-2011 accessed 22nd December 2014.

19 _{In C1, C4 and C53 the fathers were having low level of contact which were not formalised by a contact order.}

Fathers in Non-Parent Residence Disputes

Deceased, Overseas or Missing 6

No Information on File 4 Unsuitable 2 Low-level Contact 5 Involved in Proceedings 3 20 6 cases, 30% 4 cases, 20% 2 cases, 10% 5 cases, 25% 3 cases, 15%

Where were the fathers in the Non-Parent Residence Dispute Cases?

Dec'd, Overseas, Missing No Info on File

Unsuitable Low-level Contact Involved in Proceedings

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There were 2 cases where the fathers could clearly not be considered as primary carers. In C29 the alcoholic dad was also suspected of having sexually abused his daughter’s older half-sisters. In B41 the father’s learning difficulties meant he failed to see why it was so wrong to view child pornography on the internet.

In five of the cases there was some contact between the fathers and the children; but it was commonly informal and limited to the occasional daytime visits. In C4, for example, dad, who had a history of drug use, was already informally seeing his children at the paternal grandparents’ house. An order was made for reasonable contact.

There were only 3 of these 20 non-parent residence disputes where the fathers were actively involved in the proceedings. Only in one case, B8, was the father seeking to have the child come and live with him (and the mother and the child’s younger half siblings).20

6.4.3

Less Priority given to promoting parent-child contact

These cases were more focussed on finding a safe and stable residence for the child, than on contact as a highly prioritised goal in its own right. In the cases where the children were placed with non- parents the level of contact with both mothers and fathers tended to be quite low. The parents in these cases were often struggling with multiple problems. Reliability could be an issue and there were also child safety concerns.

In a few cases, the main purpose of contact was to maintain links with half siblings. In others, contact was used as a tool in determining whether or not a parent could take over or resume the role of full- time carer. Where the children returned to the parents the emphasis of the cases was on smoothing the transition. The non-parent carers remained heavily involved, yet formal contact orders were rare. Where they were made, the details were generally left up to the parties.

6.4.4

Residence in preference to Special Guardianship

The use of a residence order grants the non-parent the parental responsibility (PR) which is necessary to care for and make decisions on behalf of the child.21 _{This grant of PR does not, however, affect the} PR held by the mother and father. In contrast, a special guardianship order allows the holder to make decisions to the exclusion of other holders of parental responsibility, effectively overriding their input.22

The issue of special guardianship was raised in only two cases in our sample. Neither application was successful. In B8, the court actually decided to return the child to her parents, who were at that stage cooperating well with all agencies, while the grandmother’s house was described as chaotic.

In C29, the neighbour said she was worried that either parent could turn up randomly and demand changes; a special guardianship order would also entitle her to financial and other support from the local authority. The authority supported, and funded, the application for special guardianship. However, the mother’s barrister successfully argued the court had not been shown sufficient reasons to prevent this mother from exercising her parental responsibility. This order, it was said, was more suited to public proceedings where full framework assessments have also been carried out. The court made a residence, but not a special guardianship order. Whilst this gave the neighbour some security, it also left her without any formal local authority support and worried that either parent could interfere or disrupt the child.

20 _{The parents’ application was successful. The other two cases were C5, a highly unusual informal surrogacy case}

where the married parents ‘gave’ the child to a childless relative and C53 where the father actively supported his own parents’ application for residence.

21 _{Section 12(2) The Children Act 1989.} 22 _{Section 14C(1)(b The Children Act 1989).}

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Furthermore, we saw the unexpected use of the shared residence order as a compromise solution in two cases between grandparents and mothers, as discussed above.23 _{We were concerned that} compromise became an end in itself, but left the person tasked with actually being the child’s primary carer in a less secure position.