4.2.2 Residence Orders and Residence Order Allowances

Peterborough City Council supports the right of each child to experience normal family life.

Children’s Services will encourage and support relatives and significant others to make applications for Residence Orders as a possible alternative to children being Looked After so long as this is consistent with the child’s welfare and having regard to his/her wishes and feelings.

In doing so, the Department acknowledges that Residence Orders provide, for some children, an appropriate permanency option in addition to Adoption and Special Guardianship and, therefore, should be viewed similarly in terms of process, decision making and support.

The Legal Framework

A court may attach directions to a Residence Order which:

• Direct how it is to be carried out
• Impose conditions, which must be complied with
• Set out that it is to have effect for a specified period
• Include other provision as the court considers appropriate in the circumstances

Persons Who May Apply for a Residence Order

The following people may apply as of right:

• Parents or guardians of the child
• The child’s step parents
• Any person with whom the child has lived for a period of at least one year
• Any person who, where a Residence Order is in force, has the consent of each person in whose favour the order was made
• Any person who, where the child is in the care of the local authority, has the consent of that authority
• Any person who has the consent of each person who has Parental Responsibility.

Foster Carers and Residence Orders

Foster carers have an automatic right to apply for a Residence Order in the following circumstances:

• The child has lived with them for a period of one year immediately preceding the application
• The child is Accommodated and they have the consent of everybody who has Parental Responsibility or each person who holds a Residence Order in respect of the child
• The child is subject to a Care Order and the foster carers have the consent of the local authority

In other cases foster carers must apply for permission from the court.  They can do this in the following circumstances:

• The applicant for the order is a relative of the child
• The court is satisfied that it is in the child’s interests to hear the application

Others Who May Apply With Leave of the Court

The following people may also apply for a Residence Order with the leave of the court:

• The child him/herself if the court is satisfied that he/she has sufficient understanding to make the application
• Any person with a genuine interest in the child’s welfare

Where the person applying is not the child, the court in deciding whether or not to grant the leave will consider:

• The nature of the application
• The applicant’s connection to the child
• Any risk of disruption to the child’s life caused by the application
• Where the child is Looked After, the authority’s plans for the child’s future, and the wishes and feelings of the child’s parents.

Legislation Relating to Financial Support

Payment of Legal Costs

See Section 3.2, Residence Order Support

Where the local authority wishes to support existing foster carers including Family and Friend Foster Carers in their application for a Residence Order, the following principles apply with regard to the payment of legal costs:

• Applicants must first apply for legal aid to cover the court costs, if this is successful in full, then the local authority will be restricted to providing a list of local family court panel solicitors.
• If the applicants do not qualify for legal aid or only part legal aid, the local authority has the discretion to provide a financial grant towards the cost of the legal proceedings.  The local authority also recognises that contested proceedings in the main are more costly than uncontested proceedings and the grant provided will reflect this.
• The level of grant will be based on legal aid hourly charges for legal work and will also cover general administration costs and disbursements; this should represent the average cost of a typical Residence Order application.  Both grants (contested and uncontested) will only be payable at the conclusion of the proceedings and will be fixed amounts in all cases based on the calculations for contested and uncontested cases above.
• Any invoice received after the Residence Order has been made, where the difference is in excess of the grant, will be the responsibility of the applicant.
• On occasion there will be cases that present unexpected costs.  When this happens it will be the responsibility of the applicant and their solicitor to notify the local authority during the time of the proceedings and not after high costs have been incurred and the Residence Order has been made.  In these cases the local authority will exercise some discretion in making payments in addition to the standard grant prior to these being incurred.  If notification is not received and additional funding not agreed the local authority will not consider making any further financial contribution.  However, in all cases where this is applied there is an expectation that the legal representatives concerned will provide a clear breakdown and justification of the additional costs to both the local authority and the applicant.
• In some cases legal aid is only partially granted.  In these instances a grant may be provided after taking account of the legal aid contributions received.
• There may be circumstances where the local authority may decide to pay legal fees for applicants where the child is not looked after but there has been significant involvement of social services in supporting the child’s welfare.  This would be on the basis of preventing the child being looked after and promoting permanency with friends and family.  Payment of legal fees in these cases would be at the discretion of the Service Manager, Placement Services but would be based on the criteria highlighted above.

Applications by Foster Carers

As a guide the meeting should consider:

• Information required by the Welfare Checklist
• The child’s assessed needs
• Whether and if so why a Residence Order would be better for the child than any other order or no order at all
• Whether the people with Parental Responsibility would consent to an order being made
• Whether contact arrangements should be changed
• Preparatory work that should be undertaken with the child and foster carers
• The appropriateness of Residence Order Allowances (see 3.2, Residence Orders and financial support)
• Allocation of tasks including preparation of the court report.

Residence Order Support

This section was updated in November 2009.

Where a child lives or is to live with a person as the result of a Residence Order, a local authority MAY make contributions to the cost of accommodation or care of that child except where the person is the parent of that child or the husband or wife of the parent of the child.  Residence Order financial support is payable solely at the discretion of the local authority.

Payment of Legal Costs

Where the local authority wishes to support existing carers in their application for a Residence Order, the following principles apply with regard to the payment of costs.

• The child must be at risk of becoming a Child in Care if the Residence Order was not sought.
• Applicants must first apply to the court for legal aid and not be successful; evidence of this must be presented to the Finance Panel with the application.
• The proceedings are to be contested which result in a higher cost.  It may be that the local authority agrees to part fund if legal aid will only cover part of this cost.
• Payments for uncontested and contested hearings must be agreed in advance and will only be payable on the conclusion of the case.
• Any invoice received after the order has been made which is outside the agreed amount will be the responsibility of the applicant.
• At times it is accepted that the case will present unexpected costs.  When this happens it will be the responsibility of the applicants and their solicitors to inform the local authority during the proceedings in order for discretion to be applied. If the local authority is not notified during the proceedings, the extra costs will be the responsibility of the applicants.

Financial Assistance for Residence Orders

The provision of financial support, other than for the legal costs in favour of a person who has a Residence Order for a child, is at the discretion of the local authority.  Any financial support is made as a contribution to the child's maintenance and will not include any element of reward or remuneration.  In normal circumstances, financial support will only be appropriate when the decision to support a Residence Order arises out of the department's child care planning process, i.e. when a Residence Order is made as an alternative to Care Proceedings. It is vital that the case is presented to the Finance Panel and an agreement reached on the amount payable prior to the Residence Order application being heard in court. The court must also be aware of the decision.

Financial support will normally only be paid until the Residence Order ceases.

All financial payments are less child benefit and any other specific benefits such as Disability Living Allowance.

As with Adoption Support, Residence Order allowance is only payable when a specific set of circumstances are demonstrated;

• Where the child needs special care which requires a greater expenditure of resources because of illness, disability, emotional or behavioural difficulties or the continuing consequences of past abuse or neglect.  This financial support is where the child's condition is serious of life long.
• Where it is necessary to ensure the carer can look after the child.  This circumstance is unusual as part of the carers' assessments will look at their financial viability.
• Where it is necessary for the local authority to make special arrangements to facilitate the placement by reason of:
  • The age or ethnicity of the child, or
  • The desirability of the child being placed with the same carers as his/her biological sibling or a child with whom he/she has previously shared a home.
• Where the support is to meet recurring high costs of contact arrangements.

Remuneration for former foster carers

Financial support does not usually include the payment of remuneration, i.e. fees or salaries to adults who have a Residence Order in respect of a child.  However, where the child was previously fostered and they received remuneration as the child's foster carer, the local authority may continue to pay that remuneration for 2 years from the date of the residence.  If the case is considered to be exceptional (under the reasons outlined above), the payments may continue beyond this point.

Payments under the Residence Order allowance will not attract the holiday, religious festival, birthday or respite allowances contained within the fostering allowances.

Cessation of financial support

Residence Order financial support ceases to be payable if:

• The child ceases to have a home with them,
• The child ceases full time education or training and commences employment,
• The child qualifies for Income Support of Jobseekers' Allowance in his/her own right,
• The child reaches the age of 18, unless they continue into full time education.

Continuation of full time education post 18

Conditions of payments

Where financial support is paid on an ongoing basis as a regular allowance, the care must agree the following:

1. To inform the local authority immediately if they change address, the child dies, if any of the changes mentioned in the cessation of payments occur or if there is a change in their financial circumstances or the resources the child requires.
2. Where the information is given verbally, to confirm it in writing annually within 7 days.
3. To complete and supply an annual financial assessment and confirm annually that the child still has a home with them.

In respect of the child -

1. name, sex, date and place of birth and address including local authority area;
2. a photograph and physical description;
3. nationality (and immigration status where appropriate);
4. racial origin and cultural and linguistic background;
5. religious persuasion (including details of baptism, confirmation or equivalent ceremonies);
6. details of any siblings including their dates of birth;
7. the extent of the child's contact with his relatives and any other person the local authority consider relevant;
8. whether the child is or has been looked after by a local authority or is or has been provided with accommodation by a voluntary organisation and details (including dates) of placements by the authority or organisation;
9. whether the residence order applicant is a local authority foster parent of the child;
10. a description of the child's personality, his social development and his emotional and behavioural development and any related needs;
11. details of the child's interests, likes and dislikes;
12. a health history and a description of the state of the child's health which shall include any treatment the child is receiving;
13. names, addresses and types of nurseries or schools attended with dates;
14. the child's educational attainments;
15. whether the child is subject to a statement of special educational needs under the Education Act 19965; and
16. details of any order made by a court with respect to the child under the Act including –

1. the name of the court;
2. the order made; and
3. the date on which the order was made.

In respect of the child's family –

1. name, date and place of birth and address (and the date on which their last address was confirmed) including local authority area of each parent of the child and his siblings under the age of 18;
2. a photograph, if available, and physical description of each parent;
3. nationality (and immigration status where appropriate) of each parent;
4. racial origin and cultural and linguistic background of each parent;
5. whether the child's parents were married to each other at the time of the child's birth or have subsequently married and whether they are divorced or separated;
6. where the child's parents have been previously married or formed a civil partnership, the date of the marriage or civil partnership;
7. where the child's parents are not married, whether the father has parental responsibility and, if so, how it was acquired;
8. if the identity or whereabouts of the father are not known, the information about him that has been ascertained and from whom, and the steps that have been taken to establish paternity;
9. the past and present relationship of the child's parents;
10. where available, the following information in respect of each parent -
    
    i. health history, including details of any serious physical or mental illness, any hereditary disease or disorder or disability;
    ii. religious persuasion;
    iii. educational history;
    iv. employment history;
    v. personality and interests;
11. in respect of the child's siblings under the age of 18 –
    
    i. the person with whom the sibling is living;
    ii. whether the sibling is looked after by a local authority or provided with accommodation by a voluntary organisation; and
    iii. details of any court order made with respect to the sibling under the Act, including the name of the court, the order made and the date on which the order was made.

In respect of the wishes and feelings of the child and others –

1. an assessment of the child's wishes and feelings (considered in light of his age and understanding) regarding –
   
   i. the residence order application;
   ii. his religious and cultural upbringing; and
   iii. contact with his relatives and any other person the local authority consider relevant,and the date on which the child's wishes and feelings were last ascertained.
2. the wishes and feelings of each parent regarding –i. the residence order application;ii. the child's religious and cultural upbringing; and iii. contact with the child,and the date on which the wishes and feelings of each parent were last ascertained; and
3. the wishes and feelings of any of the child's relatives, or any other person the local authority consider relevant regarding the child and the dates on which those wishes and feelings were last ascertained.

In respect of the residence order applicant or applicants, their  –

1. name, date and place of birth and address including local authority area;
2. a photograph and physical description;
3. nationality (and immigration status where appropriate);
4. racial origin and cultural and linguistic background;
5. if the resident order applicant is –
   
   i. married, the date and place of marriage;
   ii. has formed a civil partnership, the date and place of registration of the civil partnership; or
   iii. has a partner, details of that relationship;
6. details of any previous marriage, civil partnership, or relationship;
7. where residence order applicants wish to apply jointly, the nature of their relationship and an assessment of the stability of that relationship;
8. if the residence order applicant is a member of a couple and is applying alone for a residence order, the reasons for this;
9. whether the residence order applicant is a relative of the child;
10. the residence order applicant’s relationship with the child;
11. a health history of the residence order applicant including details of any serious physical or mental illness, any hereditary disease or disorder or disability;
12. a description of how the residence order applicant relates to adults and children;
13. previous experience of caring for children;
14. parenting capacity, to include an assessment of the residence order applicants ability and suitability to bring up the child;
15. where there have been any past assessments as a prospective adopter, foster parent or special guardian, relevant details as appropriate;
16. details of income and expenditure;
17. information about the residence order applicants home and the neighbourhood in which he lives;
18. details of other members of the household and details of any children of the residence order applicant even if not resident in the household;
19. details of the parents and any siblings of the residence order applicant, with their ages or ages at death;
20. the following information –
    
    i. religious persuasion;
    ii. educational history;
    iii. employment history; and
    iv. personality and interests;
21. details of any previous family court proceedings in which the residence order applicant has been involved (which have not been referred to elsewhere in this report);
22. a report of each of the interviews with the three persons nominated by the residence order applicant to provide personal references for him;
23. whether the residence order applicant is willing to follow any wishes of the child or his parents in respect of the child's religious and cultural upbringing;
24. the views of other members of the residence order applicant’s household and wider family in relation to the residence order; 
25. an assessment of the child's current and future relationship with the family of the residence order applicant;  
26. reasons for applying for a residence order and extent of understanding of the nature and effect of residence orders and whether the applicant has discussed the residence order with the child;
27. any hopes and expectations the residence order applicant has for the child's future; and
28. the residence order applicant’s wishes and feelings in relation to contact between the child and his relatives or any other person the local authority considers relevant.

In respect of the local authority which completed the report –

1. name and address;
2. details of any past involvement of the local authority with the residence order applicant, including any past preparation for that person to be a local authority foster parent or adoptive parent or special guardian;
3. a summary of any support services (including finance) provided by the authority for the residence order applicant, the child or the child's parent and the period for which those services are to be provided; and

The implications of the making of a residence order for –

1. the child;
2. the child's parent;
3. the residence order applicant and his family; and
4. any other person the local authority considers relevant.