When ‘I do’ becomes ‘I don’t’ - Protecting your assets pre and post nuptials
What rights do grandparents have for financial assistance when caring for grandchildren?
Financial assistance is a common problem faced by many families, including those where children are living with their grandparents, which is an increasing trend in the UK. Dependent upon how that child has come to live with their grandparents can make a big difference as to what financial support the grandparents may have available to them.
There are various routes for a child to come to live with their grandparent such as by way of a residence order, a special guardianship order, adoption, fostering, private arrangement or kinship. Each placement has its own unique support package which may or may not be available to the grandparent dependent upon various factors such as the grandparent’s means, circumstances and the local authority’s discretion.
This article will focus on the differences between circumstances where a local authority has placed a child with a grandparent compared to a private arrangement.
If a grandchild comes to live with a grandparent and the local authority has not placed the child with the grandparent, for example where an agreement has been reached directly between parent and grandparent, then there are no specific duties on the local authority to provide financial assistance.
The local authority may have agreed to the placement after agreement had been reached directly but may not have taken steps to place the child with the grandparent. This is a grey area which can often be opened up to debate. However, if the local authority places that child with the grandparent, for example it was there suggestion and they have then facilitated the placement then the obligations of the local authority are very different.
The grandparent should receive a kinship allowance (grandparents cannot receive a fostering allowance as they are a relative). Recent case law suggests that the kinship allowance should be financially equivalent to a fostering allowance (which is higher than kinship allowance). Fostering allowances vary with each local authority, The recent Court of Appeal case of R (SA) v Kent County Council highlights the plight of many grandparents in trying to secure appropriate payments when caring for or raising their grandchildren.
The case concerned the financial provision required to be made by Kent County Council to the grandmother of a child who had gone to live with her due to the local authority’s concerns about the mother’s parenting. The local authority tried to argue that this was a private arrangement between the grandmother and child’s mother and that they therefore only needed to make discretionary payments to the grandmother and that there was no duty to pay a fostering allowance or equivalent. The grandmother who had now retired to look after the child was receiving £63.56 a week for her care, over £80 per week short of the average for foster parents who at that time were receiving about £146.23 weekly.
The court at first instance held that the presence of the grandmother did not mean that the local authority could side-step its duty to accommodate the child, a duty which they owed her because her parents were unable to care for her.
Therefore the local authority did have a duty to make payments at the same rate as a fostering allowance. Crucial to the Judge’s decision were the actions of the local authority.
The grandmother did not initiate any conversations with the local authority before her grandchild came to live with her; all discussions were initiated by social services. Nor was anything said to the grandmother during any of her conversations with the local authority to suggest that it was a private arrangement. The nature of the placement nor the question of financial support were ever addressed explicitly with the grandmother by social services.
The grandmother said that if it had been suggested to her that it was a private arrangement, she would have asked how she was to keep the child as she knew neither of the child’s parents were in a position to offer financial assistance and she expected financial and practical support from local authority. No one from social services ever set out for the grandmother, in the early days of discussing the placement, the ambit of any financial help that might be available for her and certainly no one told her that she would essentially be on her own with regard to financing her grandchild’s stay with her except in so far as discretionary payments might be made.
The Court of Appeal concurred with the view of the court below. The held that the Judge had been entitled to find that the local authority placed the child with her grandmother and she was therefore entitled to payments equivalent to a fostering allowance. It is therefore clear that where a grandchild comes to live with a grandparent it is essential that the grandparent establishes the parameters of the placement and the financial support package being proposed by the local authority.
It is worth noting that the above case took 6 years to reach a conclusion.
If a grandchild has come to live with you or is likely to come and live with you in the near future, it is vitally important that you take legal advice to establish whether or not the local authority has a duty to provide financial assistance and, if so, how much that assistance should be. For more information or to contact a member of the team see our Family Services.
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