Or, on an Alan Partridge vibe “Cashback!” (Have been hitting the Partridge in readiness for the film, apologies)
The legal implications of the mooted proposals from Worcestershire to charge parents for voluntary foster care.
Worcestershire are of course, only consulting on the scheme at the moment, and haven’t made any decisions; but the idea in a nutshell is that where a parent can’t look after a child and the child goes into voluntary foster care, the parent would be charged by Worcestershire to recover the costs of this (subject to the parents means)
There are, as we know, two distinct categories of services that a Local Authority provides for children in need
- Section 17 services to meet their needs
- Section 20 accommodation of children who have to live away from their families for whatever reason.
Most lawyers are dimly aware that the Children Act has in it tucked away the POWER to make charges for section 20 placements, but the Act actually goes further than that.
Surprisingly, despite all the vitriol that Worcestershire’s mooted policy has caused them, they are actually just complying with the Children Act 1989
Schedule 2 para 21. —(1) Where a local authority are looking after a child(other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute(“a contributor”)
See that word ‘shall’ there? That means it is a mandatory duty. The Local Authority are legally obliged to consider whether to recover financial contributions from a parent where the child is in voluntary foster care. (para 21 (7) prohibits doing so where the child is in compulsory foster care i.e an interim care order, for obvious reasons). They HAVE to consider whether they should try to recover the costs from the parent.
What Worcestershire’s maligned policy goes on to say is that such charges wouldn’t be imposed on any parent in receipt of benefits (which the Act already says in Schedule 2 para 21(4) ) and that they would only ever recover those financial contributions where it is reasonable to do so (which the Act already says in Schedule 2 para 21 (2))
So Worcestershire could simply have told everyone that their intention was to comply with their duties under the Children Act 1989. Job done.
Of course, although those duties exist, they are one that most authorities overlook, just as (cough cough) many of the OTHER duties in Schedule 2 get overlooked from time to time.
This is really more of a corporate decision that where a parent is working and has financial means, that the Local Authority would genuinely look at the issue of charging them for accommodating their children i.e they would ACTUALLY give it consideration under Schedule 2 para 21; whereas most Local Authorities, if they have thought about para 21 at all, it is that they would not ever try to recover such contributions.
One can see why, as soon as one looks at para 22’s provisions as to how such charges would actually come about
22. —(1) Contributions towards a child’s maintenance may only be recovered if the local authority have served a notice(“a contribution notice”) on the contributor specifying—
(a) the weekly sum which they consider that he should contribute; and
(b) arrangements for payment.
(2) The contribution notice must be in writing and dated.
(3) Arrangements for payment shall, in particular, include—
(a) the date on which liability to contribute begins(which must not be earlier than the date of the notice);
(b) the date on which liability under the notice will end(if the child has not before that date ceased to be looked after by the authority); and
(c) the date on which the first payment is to be made.
Para 22 also caps the contributions to be no more than the actual cost of foster care. That of course, prevents the Local Authority blessed with affluent parents with stroppy teenagers from propping up their budgets by charging Mr and Mrs Moneybags £10,000 a week to look after young Tony Moneybags.
Okay, well having :-
(a) Found a parent who has some means and isn’t on benefits, whose child is voluntarily accommodated
(b) Decided whether it is reasonable to ask them for a contribution
(c) Set that amount at what it is reasonable for them to pay – that being no more than the foster care allowance
(d) Drawn up a Contribution Notice
What happens when the parent doesn’t pay the money?
Well, para 23 kicks in
23. —(1) Where a contributor has been served with a contribution notice and has—
(a) failed to reach any agreement with the local authority as mentioned in paragraph 22(7) within the period of one month beginning with the day on which the contribution notice was served; or
(b) served a notice under paragraph 22(8) withdrawing his agreement,
the authority may apply to the court for an order under this paragraph.
(2) On such an application the court may make an order(“a contribution order”) requiring the contributor to contribute a weekly sum towards the child’s maintenance in accordance with arrangements for payment specified by the court.
(3) A contribution order—
(a) shall not specify a weekly sum greater than that specified in the contribution notice; and
(b) shall be made with due regard to the contributor’s means.
(4) A contribution order shall not—
(a) take effect before the date specified in the contribution notice; or
(b) have effect while the contributor is not liable to contribute(by virtue of paragraph 21); or
(c) remain in force after the child has ceased to be looked after by the authority who obtained the order.
See that last little paragraph that I’ve underlined? That means that the order that the Court can make (but won’t) doesn’t have any effect once the child stops being looked after.
So what, you say?
Well, once you realise that the Local Authority HAVE to stop accommodating a child voluntarily once the parent objects (s20(7) , but that they HAVE to provide accommodation for any child who meets the criteria in s20(1), which includes “the person who has been caring for him being prevented (whether or not permanently or for whatever reason) from providing him with suitable accommodation”
It is pretty clear that the wealthy parent, served with a contribution notice, who ignores it, and is then taken to court, can simply declare as soon as the Contribution Order is made that they object to the child being accommodated.
That ends the accommodation and the Contribution Order. The parent can then notify the LA that the child needs to be voluntarily accommodated all over again.
And note that the Contribution Order doesn’t compel any payments HIGHER than the original weekly amount in the contribution notice, so it doesn’t provide for recovery of the previous weeks missed. (that’s the net effect of reg 23(3) (a) )
In those circumstances, the Contribution Order will net the Local Authority not one shiny penny, and will lose them all the legal fees and costs in the meantime.
So, just running things through in my own mind :-
- A policy of charging middle to high income parents for voluntarily accommodating children would be politically unpopular
- It would garner very negative publicity (as we have seen, just saying that you are considering it makes things get ugly)
- Probably only covers a small proportion of the children who are voluntarily looked after in any event
- Has the possibility of discouraging parents who are not coping temporarily and need a break from seeking that help
- It almost certainly inhibits the working relationship between the Local Authority and the parent aimed at fixing the problems so that the child could go home.
- It would be administratively expensive – someone has to do financial assessments (and how do you get a parent to tell you their income anyway? What’s in it for the wealthy parent to tell you?), someone has to draw up Contribution Notices, someone has to collect the money and keep track of it
- Any attempt to enforce it would be incredibly vulnerable to a side-step using the interplay of s20(7) and para 24 (4) (c), as outlined above
- It would be unlikely to actually recoup any income
So, ending with Alan Partridge again, I’m not sure that this policy is “back of the net” material
Of course, all Worcestershire have done so far is remind themselves that they have a statutory duty to CONSIDER this and all that they have done is complied with their duties under the Children Act 1989.