The Court of Appeal handed down a landmark decision for kinship foster carers on 24 July 2013. It held that kinship foster carers should not be paid less than unrelated foster carers simply because they are related.

Ms X is the registered foster mother of her 2 nephews who are aged fourteen and seven and her niece who is aged sixteen. The mother of the children has drug and alcohol issues and the father has mental health issues which meant that the children were exposed to severe neglect. They were removed from their parents in 2007 and placed in a number of foster care placements which all broke down. The Council, London Borough of Tower Hamlets, approached Ms X, who gave up her job as an art restorer, her financial independence and her home to care for the children. In February 2011, Ms X was formally approved as a foster carer.

The Council’s policies on foster carers’ allowances make a difference between how much unrelated carers should be paid and how much kinship foster carers should be paid, with the latter being paid far less. For example, unrelated foster carers are in receipt of a weekly allowance of £334 for a child aged 11-15 years old, whilst a kinship foster carer receives only £163. The only difference between the two sorts of carers is the familial relationship.

Guidance states that if fees are paid to foster carers they must be payable to all meeting the applicable criteria whether or not related to the children. The Council’s criterion was relationship to the children. The Council argued that offering the same pay to both sets of carers would lower the incentive for unrelated persons to be foster carers. The Judge at the first instance did not come to a view on Ms X’s challenge on the basis of Human Rights being breached. The matter therefore went to the Court of Appeal.

The Court of Appeal ruled that the Council departed from the guidance and agreed that there were no strong reasons for doing so. It concluded that:

  • The success of the statutory preference to family and friends as foster carers is underwritten by the equal treatment guidance
  • There may be a need to incentivise unrelated foster carers but there is no evidence that unrelated carers seek a differential over their family colleagues
  • The failure to consider other criteria such as qualifications meant that a policy of differentials based purely on a pre-existing relationship could not carry with it cogent reasons for departing from the statutory guidance.

The Council has until 3 October 2013 to revise its policies.

If you are thinking about adoption or fostering a child and need some more guidance, please contact our Family Law Team or go to https://www.ringroselaw.co.uk/thinking-about-adoption/ for further details.

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