4.3.3 Residence Order Policy and Procedures

See Guidance for Parents and Carers on Circumstances where the Local Authority will help with Legal Costs.

Introduction
Effects of a Residence Order
Policy: Oxfordshire's View of Residence Order Applications
Criteria to Bear in Mind When Considering Whether or Not a Child's Needs Would Be Better Met by a Residence Order
Summary
Checklist for Issues to Consider
Recording
Circumstances in Which Residence Orders Could Be Applied For
Local Authority Support for Residence Order Applications By Relatives
Approval of Carers Wishing to Apply for a Residence Order
Financial Support
Process for Agreeing Financial Support
Annual Review
Allowances to Applicants Living Out of the Local Authority Area
Support and Involvement After a Residence Order has Been Made
Support to Children Age 16+ Who Have Been Subject of a Residence
Documents and Forms

1. Introduction

This section covers the policy to be adopted over Residence Orders, mainly in public law proceedings. By definition the Local Authority is not automatically involved in private law proceedings, although it could become involved or joined in some circumstances.

2. Effects of a Residence Order

A Residence Order is an order made by the Court as to where a child should live. A person in whose favour a Residence Order is made automatically acquires Parental Responsibility. However, this is in addition to, not instead of, the Parental Responsibility attaching to the child's parent(s).

Residence Order will discharge a Care Order (if one is in force). The Parental Responsibility conferred by a Residence Order will last while the Order is in force - which will generally be until the child's 16th birthday (unless discharged earlier). Residence Orders can, however, last until the child is 18. In the majority of cases, Residence Orders will offer an additional legal framework to an existing situation: that is - those in whose favour the Residence Order is made will usually already have care of the child.

Applicants may be relatives, current or former carers, including foster carers, or others and applications may be made in the course of Care Proceedings. A Residence Order may be made in preference to making a Care Order to the local authority.

The Oxfordshire policy will address:

Those circumstances when Residence Orders should be considered/supported.
Assessment and decision making with regard to applicants.
Payment of allowances - criteria and level of payments, and reviews.
Applicants, especially relatives, living out of the local authority area.
Support and involvement when an Order has been made.

Other matters, such as detailed procedural guidance and arrangements for evaluation and review of this policy, will be addressed elsewhere.

3. Policy: Oxfordshire's View of Residence Order Applications

Oxfordshire believes that all young people should have available to them someone who will take Parental Responsibility for them: this should be someone with whom they have a meaningful level of contact and with whom they can easily get in touch. Where children are not living with their parents, and where their parents do not meet the criteria of having a meaningful level of contact and/or being easy to get in contact with, Oxfordshire will look positively at any proposal from a carer or prospective carer to care for the child under the terms of a Residence Order.

It will also often be the case that the possibility of a Residence Order will arise in the context of long term placements of children Looked After.

4. Criteria to Bear in Mind When Considering Whether or Not a Child's Needs Would Be Better Met by a Residence Order

Ongoing Looked After Reviews should note if a child's prime/basic/fundamental needs and Care Plan requirements are being met by the placement.
Ongoing annual review of carers should consider whether carers are sufficiently committed, able, physically fit etc. to deliver what the child needs according to his/her care plan, without support from the Directorate. This does not preclude financial support.
Child's age and ability to express his own wishes. The need for certainty/ permanency is likely to mean that for younger children, this is a more important than for older children or teenagers.
Anticipated length of placement. Residence Orders with new carers would generally be less relevant for older children for whom a return home may remain a possible option.
Views of parents. Parents who remain very involved and in contact with their children may wish to retain involvement and may prefer decision making to continue to involve the local authority.
Options for children to return home. These may vary from not at all (parents moved away, in prison, extreme past abuse) to possibly - e.g. if relationship breakdown can be mended). Residence Orders for children Accommodated need particular thought and discussion.
Parents’ capacity to support the placement will vary and where their support is consistent and appropriate, a Residence Order may not be so positively indicated. Similarly where there is regular, positive contact this may support the status quo.
Availability of other legal options. Adoption may be right for some younger children - may be less acceptable to older children especially if they are aware of resultant tensions or distress for their own parents.
Existing length of placement. The longer a placement has lasted successfully the more appropriate a Residence Order may become.
Carers views. Long term foster carers or relatives may prefer to reflect their commitment through additional responsibility.
Child's legal status past 16. These issues will need to be anticipated and discussed prior to any decision.

5. Summary

Children’s Care Plans, including a change of legal status, need to be decided at Looked After Reviews but in some cases some elements will need separate and detailed discussion prior to review.

6. Checklist for Issues to Consider

In relation to Residence Orders, matters will need to be decided on a Case by Case basis. Oxfordshire will support existing carers applying for Residence Orders, but requires that all of the following issues have been considered and addressed, and expects that the answers to all the following questions will be very largely positive, affirmative or favourable.

Does the child have anyone to take Parental Responsibility with whom there is regular contact?

If no, a Residence Order should be given careful thought and early attention.
If yes, a Residence Order may still be appropriate but the views of the other person(s) with Parental Responsibility will need to be considered.
Do the child's reviews indicate his needs are being met in this placement?
Do the carer's reviews indicate they are able to meet the child's needs?
Is the child of an age to express a view and is he agreeable to this course of action?
Is it anticipated that this placement will last for a significant period of time (2 years plus)?
Are the parents agreeable to the carer having a RO? Are they in close contact with the child?
Is returning home ruled out as an option for this child in the future whether or not some changes are achieved?
Is this placement currently in difficulties because of parent inconsistencies or changing views? Is the contact less than once a month?
Have all other legal options which might be better for this child been ruled out?
Has this placement been in existence for more than 1 year? 2 years?
Can the carers manage to meet this child's needs without support and help of the local authority and with reduced financial support?
What are the carers views about a Residence Order - is this a positive option for them?
Have issues about the child's legal status and needs Post 16 been satisfactorily addressed?

7. Recording

The Child's file should clarify discussions and conclusions relating to the above, in order to provide a record for the child, the Directorate, and the decision making process, and should be available to feed into the relevant review or planning meeting.

8. Circumstances in Which Residence Orders Could Be Applied For

These should be considered on a case-by-case basis, but the underlying principles are:

Accommodated Children

Recently Accommodated Children

If children are Accommodated and early stage entrants to the Looked After System, the plans for them to be subject to a Residence Order should be presented to the Fostering Panel as part of the long term/permanency planning process.

In the very early stages, Residence Orders are not appropriate. Normally, children would be placed with foster/kinship carers approved under Regulations 28/38 and early work should primarily be concerned with developing and furthering assessments, Care Plans, contact arrangements and agreeing longer term plans.

However, at the point where longer term plans are being established/agreed, if the child is not to return to one or both parents, nor to someone who already has Parental Responsibility, then the issue of the child remaining or being placed with a relative with a Residence Order should be considered at the planning and review meeting.

If the child is to remain in foster care, but not placed with relatives, normal arrangements in Oxfordshire would be:

The child is to return home at a later stage (Residence Order not appropriate)
The child is to move to other long term foster carers (to be agreed by Fostering Panel: too early to consider a Residence Order)
The current foster carers are to be assessed as long term carers for the child, and arrangements discussed by Panel. In this event the question of a Residence Order should be considered at all subsequent reviews.

If a Residence Order application is planned at the time that the linking issues come to Panel, they should be advised of the plan and the reasons for it.
Children Who Have Already Been in the Looked After System for Some Time:

If children have already been for some time in the Looked After system and are with long term carers, and where there has already been a Panel process, which has agreed a linking with their carers, no further Panel process is required. The review process will consider if a child's needs would be better met by a Residence Order, and the decision will be for the child's Service Manager, on the basis of information and assessment provided in Section 6, Checklist of Issues to Consider above.

Residence Orders should be one of the legal options considered at each Looked After Review as part of the ongoing planning for each child. Where it is viewed as a positive option, existing carers (friends, relatives or foster carers) will have already been approved under Regulation 28 and may already be approved as long term carers. Support for a Residence Order application will therefore rest primarily on the assessment of the child's needs and whether they are being met in his current placement. If there has already been a Panel process linking the child with the carers, no further Panel process is required.

There is no requirement to bring the child's Residence Order plan to Panel, but if this would be helpful, either due to complexity or dispute within the family, this is certainly possible.

Potential new carers will need full assessment but any change of placement (if agreed subject to the usual planning, assessment and Panel processes) would initially be supported by Oxfordshire under Fostering Regulations, if it were to take place before the court grants the Residence Order.

Again, there is no requirement to bring the child's Residence Order plan to Panel, if there are no plans for the child to live with the prospective carers before the order is made, but this could happen if it would be helpful.

Children who are subject to Care Proceedings

Plans for Residence Orders do not necessarily need to be presented to Panel. The court process will include an assessment of prospective carers and Care Plans. However, this should be discussed with legal advisers, as it may be important to the court process that Panel procedures are available, for example in long, drawn-out proceedings.

In reality, the Court will determine these applications on the basis of its own view of applicants' suitability. Oxfordshire will do assessments of carers according to the Department's standard approval policy and procedure but is subject to Court direction as to process.

Where it becomes clear that the Threshold Criteria for a Care or Supervision Order are met, and there is either agreement or a court finding that the child cannot return home to be cared for by his parent(s), it may be that a relative comes forward to offer a long term home for the child, or that the Local Authority judges this to be a potential way of meeting the child's needs. In such cases where Residence Orders are applied for, relatives must be assessed, and may already be approved as foster carers if they’ve already had the child placed with them under Regulations 28/38.

If non-relatives or distant relatives offer themselves as carers for the child under the terms of a Residence Order, Oxfordshire would require full assessment procedures as for any foster carer under Regulations 28/38, but would not necessarily expect the matter to be considered at Fostering Panel if it were to be subject to close scrutiny in Court proceedings.

In both cases, the Court are guided but not bound by the Department’s assessment.

Since the Care Plan and the assessment of relatives will be issues which will be decided by Court, it is not an absolute requirement that these matters are brought before the Fostering Panel, but they must be subject to clear process and decision making prior to court by the Team Managers and, where appropriate, Service Manager, Family Support.

9. Local Authority Support for Residence Order Applications By Relatives

a.	Where children are not Looked After, who would otherwise be subject of Care Proceedings
	There are some circumstances where relatives intervene or become involved in the care of children either at parents' request or by default, where the parent's own care may be inadequate or neglectful. Some examples include instances of parents abusing drugs or alcohol, where relatives intervene to ensure children's needs are met on the instant; or more critically, parents might abandon their children or disappear. Relatives sometimes go on to seek long term care of the children. The local authority will support relatives' application for a Residence Order in such circumstances, providing: There has been an assessment at some depth that this arrangement would best meet the child's needs; The alternative for the Directorate would be to institute Care Proceedings to protect the child (i.e. parents may not agree with the application to court).
b.	Where children are not Looked After and who would not otherwise be subject of Care Proceedings.
	In certain circumstances, Oxfordshire would support an application for a Residence Order on behalf of a child who is living with relatives, and who cannot return home, as a direct alternative to the child being Looked After. These are situations where the Local Authority would not intervene if the family planned for the child to return to the parents. In such circumstances, Oxfordshire would consider supporting an application from the relative/carer for a Residence Order, Subject to the usual criteria for support of Residence Orders being met (see Section 3, Policy: Oxfordshire's View of Residence Order Applications above) including a specific requirement that the parent(s) is / are agreeable. The action would be the relative's and Oxfordshire would not meet any legal costs, nor would Oxfordshire play any part in seeking to obtain the parent's agreement on the relative's behalf. N.B. Any exceptional circumstances would need to be subject of a report to, and agreement by, the Family Support Service Manager.

10. Approval of Carers Wishing to Apply for a Residence Order

The formal process is the same as foster carer approval - Oxfordshire requires no other formal approval in order to agree applicants are suitable except that statutory checks should be updated if the original foster carer approval was some years earlier.

Discussion with carers/applicants and preparation should help them consider the differences between fostering a child looked after and the responsibilities of a Residence Order, and to focus on the nature of the decision making and responsibility they will need to undertake.

11. Financial Support

The criteria for paying a Residence Order Allowance are as follows:

Where a child's foster carer applies successfully for a Residence Order with the support of the Department, the Department will continue to meet the costs of caring for the child.

The Allowance will be calculated on the carer’s current maintenance level, less child benefit. Additional allowances e.g. birthday allowance will not be paid. Approved foster carers will be all those approved under Regulation 28 and could include friends and relatives.

Finance Department need to be notified by a Form 261, signed by the social worker and Team Manager.
Where a Court finds that the Threshold Criteria for a Care Order are satisfied, but makes a Residence Order in favour of a relative in the child's best interests, normally Oxfordshire would only expect to respond to specific requests for one-off items. In exceptionally rare cases, the Directorate will consider paying an allowance in cases of extreme hardship, but only if it can be shown that the proposed placement is impracticable without such an allowance. The level of allowance will be paid at the maintenance level, minus child benefit.

Finance need to be notified by a Form 261 signed by social worker and endorsed by the Service Manager (see Section 12, Process for Agreeing Financial Support).

Note: 261's can only run for one financial year and will need to be renewed each April. This will be prompted by Finance.
Where a Residence Order is made in favour of a relative in private law proceedings, it will be unusual for an allowance to be paid unless the order has been applied for with the Department's support as a clear alternative to Care Proceedings, when the criteria at b. above will apply.
In circumstances other than at c., where a Residence Order is made in favour of a relative in private law proceedings, any financial help would be subject to the usual assessment for support under the Section 17 hardship criteria. If the decision to make an allowance is taken, the rate will be paid at the Family Support level, formerly the “Real Cost Rates”
Where a Residence Order is made in favour of a parent or step-parent, there is no obligation to contribute to a child's maintenance. In cases of extreme hardship, any request for help would need to be considered and assessed against the hardship criteria in Section 17.

The level of any allowance payable will be calculated by Finance on Form RA2 (former foster carers) and RA4 (relatives).

12. Process for Agreeing Financial Support

If the hardship criteria for paying an allowance are met, and if the legal framework exists - e.g. if the Residence Order is actually made as a result of court proceedings - then the authority for paying a Residence Order allowance rests with the child's Service Manager.

Carers should be asked to complete Form RA1. Relatives in receipt of a Family Support Allowance will be asked to complete Form RA3. Carers will be expected to apply for Child Benefit.

13. Annual Review

It will be necessary to initiate a system with the Finance Section whereby those in receipt of a Residence Order allowance complete a form each year to confirm:

That the young person is still a full time member of their household
The carer remains financially responsible for the young person's maintenance.
Still qualifies under the Section 17 hardship criteria.

The Finance Section will initiate the review and will require social workers to complete a new 261 for each financial year, but will specifically request this on a case-by-case basis on completion of the review.

We will not undertake an annual financial review of carers receiving Family Support allowances under Section 10 above.

14. Allowances to Applicants Living Out of the Local Authority Area

Oxfordshire would support a Residence Order for an Oxfordshire child and pay an allowance according to the same hardship criteria as above, wherever the child was placed. For relatives or parents or others who have a Residence Order and whose need for help arises subsequent to the order being made, and who live in another area, then the assessment and responsibility for meeting any needs will rest with the Local Authority in whose area the child and carer live.

Similarly, if a child has come to Oxfordshire on a Residence Order with an allowance, we would expect the placing Authority to have ongoing financial responsibility. However, if no allowances are in place when the order is made but a subsequent claim is made under the hardship criteria, Oxfordshire would assess the need for any support under the hardship criteria for Section 17 support.

15. Support and Involvement After a Residence Order has Been Made

Ongoing or subsequent Social Worker involvement will need to be by negotiation with people who hold the Residence Order. There is an expectation that it would be help/intervention with specific issues rather than ongoing or long term involvement.

Access to other services such as Family Centres or Family Support Services, would be unaffected by change of status to a Residence Order if the need for such service is confirmed by ongoing review. (All Family Support services provided by the Directorate are reviewed on a regular basis).

Other support for carers with a Residence Order might, depending on local availability, allow for them to be involved in foster carer support groups: this would represent the best use of targeted support on relevant issues, and in some cases would keep foster carers in touch with existing support networks.

16. Support to Children Age 16+ Who Have Been Subject of a Residence

Financial support will continue on the same basis until the child is of school leaving age. If the young person wishes to remain at school, the carer will need to claim further support and give details of their financial situation. There will not be a formal means test and we would aim to continue support in such circumstances.

17. Documents and Forms

Specimens of these are included below, namely:

Forms;

RA1 Agreement & Notice of Payment to Former Foster Carer

RA2 Calculation of Allowance to Former Foster Carer

RA3 Agreement and Notice of Payment to Relative

RA4 Calculation of Allowance to Relative

Checklist: When Oxfordshire Would Support An Application For A Residence Order In Respect Of A Child Look After

	Would consider Supporting Order in Favour of	Approval Details for Carers	Panel “Approval” Needed For
Children Newly Accommodated	1. Relatives considered after review has considered that long term placement needed and if this is the care plan	1. As for approval of relatives as foster carers – see Placement with Connected Persons Procedure	1. For approval of carers linking and consideration of whether Residence Order appropriate
Children Newly Accommodated	2. Current foster carers: consider after review and appropriate care plan clarify long term placement needed	2. Forms E & F, and linking to Panel, as for fostering	2. For approval as for fostering and linking and Residence Order for child.
Care Proceedings in Progress	1. Relatives	1. As for approval of relatives as foster carers.	1. OCC does not need issues to come to Panel if guidance on approval is followed, but legal advice may be that the usual Panel process should take place
Care Proceedings in Progress	2. Friends and distant relatives	2. Form F for approval as carers. Panel may be involved – seek legal advice re Court process.
Children Long Term Looked After	1. Existing long term carers	1. If carers and linking already approved by Panel as for foster carers, then S M will decide plan for child to be subject to Residence Order	1. N/A
Children Long Term Looked After	2. Potential new carers or short term carers	2. Fostering regs would apply unless child placed after residence order made.	2. As for approvals for long term fostering or residence and linking

End