Kinship care - Children and Young People (Scotland) Act 2014 - part 13: updated guidance 2024

Who can Receive Kinship Care Assistance Under Part 13 of the 2014 Act

14. The ethos behind kinship care is to ensure that a child who can no longer remain with their birth parents is able to be supported within their extended family, wherever possible. This ethos should be at the forefront of practitioners’ minds during the process of assessing whether a child or carer may be entitled to kinship care assistance.

15. ‘Kinship care assistance’ is of such description as the Scottish Ministers specify by order.^[12] The Kinship Care Assistance (Scotland) Order 2016 sets out current details of this assistance, and to whom it is available. This is outlined in the boxes below.

Who

A person who is considering applying for a kinship care order in relation to a child who is under the age of 16 and who was previously looked after or who is at risk of becoming looked after ^[13]

What kinship care assistance is available

The provision of information and advice as that person may reasonably require for the purpose of making a decision about whether to apply for a kinship care order

Who

A person who is applying for a kinship care order in relation to a child who is under the age of 16 and who was previously looked after or who is at risk of becoming looked after.^[14]

What kinship care assistance is available

The provision of such information and advice as that person my reasonably require for the purpose of the application and financial support towards the cost of the application.

Who

A child who is under the age of 16, who is subject to a kinship care order, and who was previously looked after or who is at risk of becoming looked after.^[15]

What kinship care assistance is available

The provision of such information and advice as that child may reasonably require for the purpose of facilitating the placement under a kinship care order

Who

A person who holds a kinship care order in relation to a child under the age of 16 who was previously looked after of who is at risk of becoming looked after.^[16]

What kinship care assistance is available

The provision of such information and advice as that person my reasonably require in relation to the kinship care order and the provision of an allowance.

Who

A child who is at least 16 years of age, who was subject to a kinship care order immediately before their 16^th birthday, and who was previously looked after or who is at risk of becoming looked after.^[17]

What kinship care assistance is available

The provision of such information and advice as that child may reasonably require for the purpose of facilitating a transition following a placement under a kinship care order and when the local authority considers it appropriate, the provision of an allowance.

Who

A person who is a guardian by virtue of an appointment made under section 7 of the 1995 Act of a child who is under the age of 16 and who was previously looked after or who is at risk of becoming looked after, unless they are also a parent of the child.^[18]

What kinship care assistance is available

The provision of such information and advice as that person may reasonably require in relation to a kinship care order and the provision of an allowance.

Who

A child who has a guardian by virtue of an appointment made under section 7 of the 1995 Act, and who was previously looked after or who is at risk of becoming looked after.^[19]

What kinship care assistance is available

The provision of such information and advice as that child may reasonably require for the purpose of facilitating that child’s placement with a guardian and when the local authority considers it appropriate, the provision of an allowance.

16. The definitions below should be used as a tool to assist those considering kinship care assistance. The terminology used in the legislation and regulations is followed by examples of what this means in application.

Helpful definitions

Children and kinship carers

17. Part 13 of the 2014 Act and the 2016 Order provide that kinship care assistance is available to children, and to those who may care for them, in the circumstances stated below.

• Where a person is applying for, or considering applying for, a kinship care order in relation to a child under the age of 16 who was previously looked after or is at risk of becoming looked after;^[20] or
• Where a person holds a kinship care order in relation to a child under the age of 16 who was previously looked after or is at risk of becoming looked after;^[21]
• Where a person is a guardian by virtue of an appointment made under section 7 ^[22] of the 1995 Act of a child under the age of 16 who was previously looked after or is at risk of becoming looked after,^[23] unless they are also a parent of the child;^[24]
• Where a child is under the age of 16, and subject to a kinship care order, and they were previously looked after or are at risk of becoming looked after;^[25]
• Where a child is at least 16 years of age, and they were subject to a kinship care order immediately before their 16th birthday, and they were previously looked after or are at risk of becoming looked after;^[26] or
• Where a child has a guardian by virtue of an appointment made under section 7 of the 1995 Act, and they were previously looked after or are at risk of becoming looked after.^[27]

18. A child who is living with friends or relatives by means of a kinship care order or a guardian appointed under section 7 of the 1995 Act, is not ‘looked after’ by a local authority. The guardian or person who holds the kinship care order is legally responsible for that child.

19. If someone does not fall within these categories, other support may be available under other frameworks. This is discussed further at paragraphs 75 – 80.

20. A parent of the child is not able to access kinship care assistance.^[28]

Who provides kinship care assistance

21. The 2014 Act provides that the local authority for the area where a person who may be entitled to kinship care assistance resides is responsible for making that kinship care assistance available. This may not be the same as the local authority who placed the child with the carer if they were previously looked after.

22. A protocol has been developed which clarifies responsibilities around transfer and where responsibility lies for support. Please refer to the Cross Authority Protocol. This seeks to clarify cross authority responsibilities governing the support provided where a kinship care order is in place, but also extends to situations where a child is looked after.

23. It is recognised that there may be situations where good permanence planning practice and the spirit of corporate parenting duties means that if a child or carer moves to a different local authority area, a local authority may wish to extend their responsibilities to cover kinship care assistance where the child was previously their responsibility as a looked after child.

What is a kinship care order

24. A kinship care order is the term used in the 2014 Act to describe an order granted under section 11 of the 1995 Act which gives those carers, outlined below, the right to have the child living with them or to otherwise regulate the child’s residence. These types of orders are sometimes known as a ‘residence order’ or a ‘section 11 order’.^[29]

25. Section 11 orders granted in certain circumstances prior to the 2014 Act automatically became kinship care orders.^[30]

26. A kinship care order may confer all or part of parental responsibilities and parental rights on the applicant. If a kinship carer holds parental responsibilities they must promote and safeguard the child’s health, development and welfare, provide direction and guidance to the child in a manner appropriate to the age and stage of development of the child, together with the parental rights to control, direct or guide the child’s upbringing, and to act as the child’s legal representative as set out under section 1^[31] and 2^[32] of the 1995 Act.

27. When considering an application for a section 11 order by a carer (also known as a kinship care order), the court must have as its paramount concern the welfare of the child.^[33] The court will not make an order unless it would be better for the child than not making an order. This is well-established in Scots law and is known as the ‘no order’ principle.^[34] So far as practicable the court will have regard to the child’s views, taking account of the child’s age and maturity.

28. A kinship care order continues until a child reaches the age of sixteen. A child is usually deemed to have sufficient capacity to decide residence by the age of sixteen.^[35]

29. As part of a kinship care order, a court may, in addition to conferring parental responsibilities and parental rights on the kinship carer, either remove those parental responsibilities and parental rights from the parent or decide that all or some of those responsibilities and rights may be shared. For example, a parent may retain the parental responsibility to maintain contact with their child or consent to medical treatment, but a kinship carer may hold the right to apply for a passport and be responsible for the child’s property/financial assets/inheritance.

30. One of the main advantages of obtaining a kinship care order is achieving legal certainty ensuring a more stable home environment for a child. This allows a kinship carer to make a range of decisions that any reasonable parent can take in relation to a child’s day-to-day life.

Example: Kinship Care Order

Jonathan is 14 and lives with his Aunt Margaret and Uncle James. He has lived there since he was 9, after his mother unexpectedly passed away. Like many relatives in this situation in Scotland, they have a kinship care order – which recognises that Jonathan always has a safe and secure place to call home.

Jonathan, when living with his mother was subject to a compulsory supervision order, which was amended to require him to live with his aunt and uncle. Jonathan’s parents were separated, and his mum had always taken care of him. His father recognised that Margaret and James could best provide the care Jonathan needed and supported the decision that Jonathan live permanently with them secured via a kinship care order. His role as a father was incredibly important to him, and this consent was based on him retaining parental responsibilities and parental rights.

The local authority provided financial support towards the costs of applying for the kinship care order in line with their legal duties.

The Sheriff on hearing the application granted the kinship care order giving Margaret and James all parental responsibilities and rights, but sharing those related to advice, guidance and assistance, and consent to medical treatment and to travel abroad with James’s father. Upon granting of the kinship care order the compulsory supervision order was terminated by the Sheriff.

Who can apply for a kinship care order

31. A kinship care order may be applied for by someone who, at the time the order is made:

• is related to the child, including a person who is married to or in a civil partnership with a person who is related to the child or a person who is related to the child by the half blood. For example, an aunt or uncle, stepparent or a half brother or sister;
• is a friend or acquaintance of a person related to the child; or
• has some other relationship to, or connection with, the child as the Scottish Ministers may by order specify. The Scottish Ministers have not as yet made any such orders.
• A parent of a child cannot apply for a kinship care order.

32. The legislation provides two criteria of particular importance in relation to qualifying for kinship care assistance. These are that a child was previously looked after, or the local authority deems that a child, at this moment in time, is at risk of becoming looked after.

Previously looked after

33. In order to determine if a child was ‘previously looked after’, it is important to understand the definition of ‘looked after’.^[36] A child is ‘looked after’ by a local authority when he or she is:

• provided with accommodation by a local authority under section 25 of the 1995 Act;^[37] or
• subject to a compulsory supervision order^[38] or an interim compulsory supervision order^[39] made by a children’s hearing in respect of whom the local authority are the implementation authority (within the meaning of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”); or
• living in Scotland and subject to an order in respect of whom a Scottish local authority has responsibilities, as a result of a transfer of an order made out with Scotland under regulations made under section 33 of the 1995 Act^[40] or section 190 of the 2011 Act^[41] or
• subject to a permanence order made after an application by the local authority under section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”).^[42]

34. A child may be looked after at home i.e. have a compulsory supervision order in place but living with their parents or looked after away from home i.e. subject to a compulsory supervision order but with a condition that they live elsewhere. This could be in kinship or foster care, with prospective adopters, or in residential care, residential school or secure care, and may be referred to as ‘looked after and accommodated’.

35. For the purposes of kinship care assistance under Part 13 of the 2014 Act, the carers of children who were previously looked after for any length of time may apply for kinship care assistance, provided that they otherwise meet the criteria set out in section 71(3).^[43] In most circumstances this will be relevant to children who were subject to compulsory supervision orders or provided with accommodation under section 25 of the 1995 Act,^[44] and on rare occasions those subject to permanence orders

Examples: Previously Looked After

Previously Looked After: At Home

Louise is 10 and has lived full time with her gran, Martha, since she was 3, and before then was often with her gran for weeks at a time. Her mother misuses alcohol and has a difficult relationship with her ex-partner, Louise’s father. Every child needs stability from their caregivers. Inconsistent parenting while living with her mother, meant that Louise initially was on the child protection register and made subject to a compulsory supervision order. When her mother entered a more stable period, risks reduced, and the compulsory supervision order was terminated. Like many family situations where substance misuse is an issue, consistency in parenting can be variable and when Louise was 3, Martha suggested that Louise live with her on a permanent basis. Her mother agreed this was best for Louise. With support from the local authority, Martha applied for a kinship care order which was granted. She shares parental responsibilities and parental rights with her daughter. Martha has recently been told that she is entitled to assistance including a regular allowance to cover the costs of caring for Louise.

Louise and Martha are entitled to kinship care assistance as Louise was previously looked after. This includes Martha receiving an allowance, currently the Scottish Recommended Allowance. Martha is entitled to receive the allowance until Louise reaches the age of 16 years*, when children can determine their own residence, and this is Martha’s only source of income other than her state pension. In addition, the support available as part of kinship care assistance under Part 13 of the 2014 Act and the 2016 Order is determined by the local authority assessment of wellbeing. The local authority must provide such information and advice as Martha and Louise may reasonably require in relation to the arrangements under the kinship care order, for example life story work.

The local authority where Martha resides has a kinship support group which Martha accesses. The local authority also decide to provide an annual ‘additional’ payment, children’s kinship activities via their local carers centre, and access to a dedicated kinship care team for advice, information and assistance, including advice on income maximisation.

* Note: Many local authorities decide to make payments beyond this until school leaving age or to the age of 18, as long as the child remains in the care of the kinship carer.

Previously Looked After: Away from home: Compulsory Supervision Order

Matthew has lived in foster care since he was 8 years old. His mother’s new partner has a conviction against children, with historical offences against boys. When his mother refused to believe this and ask her partner to leave, social workers recognised that Matthew and his half -sister were not safe and removed them from the home on a child protection order. A compulsory supervision order was put in place with a measure of residence, requiring Matthew to live with foster carers. Though relatives were approached none were, at that point, able to offer Matthew a home.

Matthew’s mum and partner moved away from the area two years later and ceased maintaining contact with Matthew. Every child needs safety and stability in their lives. The assessment concluded that Matthew was in need of permanent alternative care and the care plan then included further contact with his extended family to ascertain whether any of them were now able to look after him. Matthew’s paternal uncle, with whom he had a little contact, offered to be assessed as his long-term kinship carer. Following approval Matthew moved to live with his uncle on a compulsory supervision order. He was then supported by the local authority to apply for a kinship care order, which provided Matthew with security.

As Matthew was previously looked after he and his uncle are entitled to kinship care assistance. This includes Matthew’s uncle receiving an allowance, currently the Scottish Recommended Allowance. The Scottish Recommended Allowance was also payable to Matthew’s uncle when Matthew was a looked after child in the care of the local authority and placed with his uncle on a compulsory supervision order. The local authority must provide such information and advice as Matthew and his uncle may reasonably require in relation to the arrangements under the kinship care order. i.e. advice and support on parenting a teenager. The local authority may also decide to provide counselling to help Matthew and his uncle.

Previously Looked After: Away from home: Section 25 – Example 1

Dougie’s mum regularly misused substances which meant she struggled to provide the best care for her son. A pre-birth assessment highlighted significant risks such that Dougie could not remain safely in his mother’s care. A child protection order at birth was discussed with his mother and despite her distress she agreed to him becoming looked after under section 25 of the 1995 Act. Dougie stayed initially with foster carers in his local authority, before moving to his maternal grandmother who was approved to care for him on a looked after kinship care basis.

A parent capacity assessment was undertaken to assess the viability of Dougie returning to the care of his mother. A looked after children’s statutory review when Dougie was 18 months old concluded that Dougie should remain with his grandmother on a permanent basis, with the agreement of his mother. Support was provided by the local authority to assist his grandmother to apply for a kinship care order, which will ensure Dougie’s security.

As Dougie was previously looked after by his local authority, Dougie and his grandmother are entitled to kinship care assistance. This includes Dougie’s grandmother receiving an allowance, currently the Scottish Recommended Allowance. The local authority must provide such information and advice as Dougie and his grandmother may reasonably require in relation to the arrangements under the kinship care order, which for Dougie and his grandmother took the form of supporting them in spending time with Dougie’s mum. The local authority may also decide to provide counselling, advice or information about any matter to help Dougie and his grandmother.

Previously Looked After: Away from home: Example – 2

Lorraine and her mother were supported by the local authority on a voluntary basis under section 22 of the 1995 Act.^[45] Lorraine moved to live with her maternal granny, Caroline and step grandfather Alan under section 25 of the 1995 Act,^[46] after her mother died as there was no one with parental responsibilities and parental rights. Lorraine’s father is unknown. Caroline and Alan live in a different local authority to the one that Lorraine lived in with her mother (the placing authority). Caroline and Alan were assessed and approved as kinship carers, as required under regulation 10 of the Looked After Children (Scotland) Regulations 2009.^[47] As a looked after child, responsibility for Lorraine remained with the local authority where Lorraine lived with her mother (the placing authority). They notified Caroline and Alan’s local authority (the receiving authority) that Lorraine was now living there as per regulation 13 of the Looked After Children (Scotland) Regulations 2009.^[48]

All children need someone with parental responsibilities and parental rights and legal certainty. The placing local authority then supported Caroline to obtain a kinship care order. Once the kinship care order was granted Lorraine is no longer a looked after child, but Caroline and Lorraine are entitled to receive kinship care assistance (as Lorraine is a child who was previously looked after). The placing local authority continue to pay Caroline the Scottish Recommended Allowance, as part of kinship care assistance. Once the kinship care order was granted, in line with good practice, both local authorities discussed how Lorraine and Caroline’s support needs could best be met as outlined in the Cross Authority Protocol.^[49]

At risk of becoming looked after

36. It is for the local authority to determine whether or not a child is at risk of becoming looked after.^[50] In practice, this determination will be undertaken by social work professionals, in consultation with other professionals who know, or who may be working alongside, the child and their family. This determination should commence when the child, kinship carer, prospective kinship carer or guardian presents to, or otherwise comes to the attention of, the local authority social work service.

37. In line with Article 6 of the 2016 Order, this determination must consider whether the child’s wellbeing is being, or is at risk of being, adversely affected by any matter, such that the child is at risk of becoming looked after. To be eligible for kinship care assistance this determination should deem that the child is at risk of becoming looked after at this moment in time.

38. The framework for assessing wellbeing in any setting and for all children is the Getting it right for every child national practice model. This should be utilised by the local authority to determine if a child who is, or may be, subject to a kinship care order or who has a guardian by virtue of section 7 of the 1995 Act,^[51] is at risk of becoming looked after.^[52]

39. Where this wellbeing assessment concludes that i) a return to the care of their birth parents would be unsuitable; or ii) the current arrangement where the child living with the kinship carer or guardian or prospective kinship carer is at risk of breaking down and that a return to the care of their birth parents would be unsuitable, the child would be deemed to be at risk of becoming looked after and kinship care assistance must be made available.^[53]

40. Using the Getting it right for every child model the assessment should consider, at this moment in time, whether the child’s needs are being met and what support they and their family may need to ensure that the child’s needs can be met.

41. This assessment should involve all relevant partners, the family and child in order to fully consider the needs of the kinship family. The assessing worker should work alongside education and health colleagues and consider wider policy directions such as those relating to early years,^[54] additional educational needs^[55] and sibling relationships and keeping connected with wider family members and those important to the child.^[56] Issues related to accommodation and benefits may also be relevant as part of a holistic child centred assessment.

42. The assessment may result in the development of a child's plan in line with Getting it right for every child.

43. Specific issues which often feature in kinship situations should be addressed as part of the wellbeing assessment, such as the introduction of additional, sometimes complex, familial relationships with birth family and securing of legal powers. Practitioners assessing a child’s wellbeing needs should also retain at the forefront of their considerations the principles underpinning assessment for wellbeing; the principle of minimum intervention^[57] and the right of the child to family life - with their extended family as first choice where this cannot be with their birth parents.

44. Additional context for assessment of ‘at risk of becoming looked after’ may be found in Part 12 of the Children and Young People (Scotland) Act 2014 (services in relation to children at risk of becoming looked after) and the related Children and Young People (Scotland) Act 2014 (Relevant Services in relation to Children at Risk of becoming looked after etc.) Order 2016, which outlines the duty of the local authority to assess whether a child’s wellbeing is being, or is at risk of being, adversely affected by any matter, such that the child is at risk of becoming looked after.

Examples: At risk of becoming looked after

Not previously looked after and not at risk – Example 1

Noah is 14 and lives with his paternal grandparents Jo and Melanie. His mother Leanne only cared for him for a few years, during which time they moved several times, living in a range of unsuitable situations. His father, Jonathan, was 17 and a student when Noah was born and was unaware of his existence for the first year of life. He was not in a position to care for his son and had no ongoing involvement with Leanne. Though Jo and Melanie lived in a different part of the country, they consistently supported Leanne by caring for Noah. When Noah was 5, they cared for him while Leanne was unwell, and this short-term support gradually became a permanent agreement and legally secured through a kinship care order when Noah was 8. Leanne’s parental rights were removed.

Noah is settled, thriving at school and involved in a range of sporting activities where he excels. There are no particular concerns regarding his wellbeing.

Jo and Melanie have been advised by a charity that they are entitled to kinship care assistance in the form of The Scottish Recommended Allowance from their local authority as ‘Noah would have been in care if they had not taken him in’. They have written to the local authority requesting kinship care assistance.

Noah has neither been a looked after child nor is he at risk of becoming looked after as he is safe and secure with his grandparents. Kinship care assistance is therefore not applicable.

A wellbeing assessment using the Getting it right for every child national practice model may be undertaken to consider if there are any other supports and assistance from the local authority which would help Noah and his grandparents.

Not previously looked after and not at risk – Example 2

Sophia, 12 lives with her half-sister Nadia, 23. Nadia assumed care of Sophia when Sophia was 8 as their mother Caroline, was unable to provide her with the stability she needed. Caroline now lives in England, with a new partner with whom she has a child.

When Sophia wanted to go on a school trip the issue of who could sign the consent form arose as there was no-one available with parental responsibilities and parental rights. Nadia was advised by her local authority to seek a kinship care order which would vest those rights with her ensuring she had the legal authority to make decisions for Sophia, thus also securing a more normal childhood experience for Sophia. The local authority advised Nadia to seek legal aid to fund this.

A friend told Nadia that she had heard that carers in similar circumstances to Nadia are entitled to an allowance and Nadia has applied to her local authority for this.

Sophia was not previously looked after. Using the Getting it right for every child national practice model an assessment of wellbeing is undertaken to decide whether Sophia is at risk of becoming looked after. This shows that Sophia is well cared for and settled with her sister, who is providing a caring home and doing everything she can to best meet Sophia’s needs. The sisters have a close and caring relationship. There are no concerns at school though the guidance teacher notes that Sophia is very shy and to help her strengthen her social skills and friendships she is encouraged to become involved in additional activities.

It is concluded that Sophia is not at risk of becoming looked after and therefore Sophia and Nadia do not meet the criteria for kinship care assistance under Part 13 of the 2014 Act.

General assistance however is available to Sophia and her sister, as part of the Getting it right for every child approach. School provides extra help to enable Sophia to access extracurricular activities and Nadia is invited to the local kinship care support group to meet other people in her situation. Funding is provided under section 22 of 1995 Act to assist with sports clothing, and Sophia is linked to a local art activities group for children. Funding is provided to Nadia under section 4 of the Social Care (Self- directed support) (Scotland) Act 2013 Option 1^[58] to ensure she can have an occasional break to maintain her own life out with her caring responsibilities.

Not previously looked after but at risk

Jemima is 6 and has lived with her Great Aunt Mary since birth. Her mother struggled with substance misuse and was not able to care for Jemima and disappeared soon after giving birth. Mary applied for and was granted a kinship care order when Jemima was 2. Jemima’s school have recognised that Jemima struggles with a range of tasks in class and can become disruptive to avoid tackling activities. The school have also become aware that Mary’s ongoing health issues have become more prevalent and are beginning to impact on her care of Jemima. Mary has experienced intermittent mental health issues during her life. Jemima is often late for school, poorly dressed, and hungry. As part of an early intervention strategy the school have provided a range of supports via their family support staff, a place at breakfast club and in social skills groups.

To help Jemima thrive now and in the future the school request a multi-agency assessment is undertaken using the Getting it right for every child National Practice Model. This indicates that Jemima’s wellbeing is at risk of being adversely affected by a number of matters. Jemima is considered to be on the cusp of coming into the care of the local authority. A multi-agency plan is agreed and put in place and support measures include regular Team Around the Child meetings, ongoing family support, practical assistance with clothing and finance, and counselling for her aunt alongside liaison with the range of professionals involved with both Jemima and Mary.

Referral to the Reporter for compulsory measures of care is not made as the family are keen to work with the plan for Jemima

As Jemima is at this point in time a child who is at risk of becoming looked after, she and her aunt are entitled to kinship care assistance. This includes the payment of an allowance, currently the Scottish Recommended Allowance, payable to her aunt. This is reviewed annually.

As part of the child's plan, other supports beyond kinship care assistance are also provided. Jessica is referred to the Educational Psychologist for assessment to determine if additional education support is required; her social worker undertakes life story work with Jemima to help her understand her past and share information about her mother; family support services become involved to assist with daily tasks, link Jemima in to local activities and group support and provide Jemima with a befriender; Mary joins the local kinship care support group for peer support.

Not previously looked after – but at risk of becoming looker after (pre-birth)

Sharon has two grandchildren by her daughter Flora, who has struggled to provide the best care for her children. After a short period of living in the care of the local authority two of Sharon’s grandchildren now live with her after she applied for and was granted kinship care orders for them.

Flora is now pregnant with her third child and concerns remain about her ability to provide safe care. As part of the local authority assessment a family decision making meeting took place prior to their birth where Flora recognised that Sharon could provide the best care for all of her children.

The family plan is for the baby to live with Sharon and for her to apply for a kinship care order and kinship care assistance once they are born.

In this case the baby is at risk of becoming looked after at birth due to the concerns around Flora’s ability to provide the best care for her baby. The family decision making process allowed for minimum intervention by the local authority. Sharon is supported to apply for kinship care assistance, which includes the payment of an allowance, currently the Scottish Recommended Allowance. This also supports the baby to live with their brother and sister who are also in receipt of kinship care assistance as they were previously looked after.