Kinship Care Reform: What Could It Mean for Grandparents and Relatives Raising Children?
Kinship Care Reform: What Could It Mean for Grandparents and Relatives Raising Children?
1. Introduction
It is not unusual for a child to be cared for by members of their family other than their parents, most commonly their grandparents. Such an arrangement is referred to by the generic term ‘Kinship Care’.
Kinship Care can arise for many reasons, and can take many forms. It can be purely temporary, or long-term.
Whatever form it takes, it gives rise to a potential legal problem: a kinship carer does not automatically have any legal status in relation to the child. This can obviously cause serious issues for the carer, who will be unable to make important decisions in relation to the child, or to prevent those with legal status (i.e. the parents) from removing the child from their care.
Under the law as it stands at present, the problem of legal status has been addressed by the law in a variety of ways. However, as we will see in a moment, this has itself led to problems.
It is therefore welcome that the Law Commission has recently published a consultation on Kinship Care, putting forward proposals to reform the law to improve the current complex legal landscape, and make options for kinship care for children simpler and easier to navigate.
In this article we examine those proposals, and consider what they could mean for grandparents and other relatives raising children.
But before we do so, we first need to consider what is kinship care, how the law deals with it at present, and what the problems are with the current law.
2. What is Kinship Care?
Kinship Care arises when the parents are unable to care for the child on a full-time basis, for a significant period of time. The kinship care arrangement may be purely informal, agreed within the family, or it may arise following local authority intervention. Most commonly, kinship care will be used as an alternative to the child entering the care system, or as a way of caring for a child who is the subject of a care order.
As mentioned above, kinship carers are most often grandparents, but they can be other relatives, such as older siblings, aunts, uncles, cousins, or even family friends.
There is no statutory definition of Kinship Care that applies across England and Wales, but the Children’s Wellbeing and Schools Act 2026 provides a definition that applies in England, which states that a kinship carer is:
- A relative, friend or other person connected with a child, with whom the child either lives for all the time, or for more time than the child lives with a parent; and
- Who provides all the care and support to the child, or more care and support than is provided for the child by a parent.
And there are many people covered by this definition. Based on the 2021 Census, it is estimated that in England and Wales around 141,000 children live in kinship care arrangements with related carers, representing approximately 1.1% of all children in England and Wales. And the charity Family Rights Group has estimated that a further 23,000 children live with unrelated kinship carers, such as a family friend.
As also mentioned above, Kinship Care can take many forms, which we will now consider in the next section.
3. What is the Current Law for Kinship Carers?
When preparing its consultation, the Law Commission considered five different types of Kinship Care:
Informal Family Arrangements: This is simply where members of the family agree that the child will live with another family member, rather than the parents. There is no involvement by the local authority, or the court. This means that the parents retain parental responsibility, although they may agree to the relative making day-to-day decisions in relation to the child.
Private Foster Care: This is an arrangement where the child lives with a person who is not their parent or relative, for more than 28 days. The local authority must be notified of the arrangement. Again, the parents will retain parental responsibility for the child, but may agree to the carer making day-to-day decisions in relation to the child.
Kinship Foster Care: This is where a child is placed with a family or friend carer, who is approved as a local authority foster carer. The child is a ‘looked after’ child, and is either the subject of a care order, or being accommodated by the local authority with parental agreement. Kinship foster carers do not have parental responsibility. The parents retain parental responsibility, but if the child is under a care order the local authority shares parental responsibility with the parents.
Child Arrangements Orders: This is where the court has made a child arrangements order stating that the child should live with the kinship carer. The order grants the carer parental responsibility, but does not remove it from the parents.
Special Guardianship Orders: This is another type of order, often used in kinship carer cases, particularly in care proceedings. The kinship carer becomes a ‘special guardian’, and is granted parental responsibility. The child’s parents will keep their parental responsibility but the special guardian can make most decisions relating to the child, without asking for the parents’ agreement.
4. What are the Problems with the Current Law?
The Law Commission identified a number of problems with the current law relating to Kinship Care, including:
Complexity: As the reader may have noted from the above, the law can be quite complex, with a whole range of possible legal solutions. This can obviously make it difficult to understand, both for parents and potential kinship carers.
Not all Kinship Carers have Parental Responsibility: As the reader will also have noted, not all kinship carers have parental responsibility. This can obviously lead to difficulties when important or urgent decisions have to be made in relation to the child.
Difficulties Returning Child to Parents: The current law places an emphasis on permanent solutions, such as special guardianship orders, which can make it difficult for a child to be returned to their parents, even where it is safe for this to happen.
Contact With Parents: The current law can also make it difficult for the child to retain contact with their parents, especially where there has been a breakdown in the relationship between the parents and the kinship carer.
Clear Definition of Kinship Care: As mentioned above, there is no clear definition of Kinship Care applicable to both England and Wales.
Prevalence of Informal Arrangements: The Law Commission found that the majority of kinship care arrangements are not formalised by an order or by involvement of the local authority. The Commission felt that there may be a need to recognise some of these informal arrangements by giving kinship carers parental responsibility, in a way that does not need the involvement of the courts or a local authority, where that is safe for the child.
Assessment by Local Authorities: Lastly, the Commission found that assessment of kinship foster carers has been criticised for being designed for non‑kinship situations, and that different authorities have different approaches to the assessment of potential special guardians.
5. What are the Proposals for Reform?
To address these issues the Law Commission consultation puts forward several proposals, including:
Kinship Care Order: This would be a new type of court order, available only to kinship carers, which would replace, for them, the use of special guardianship orders and child arrangements orders (existing special guardianship orders and child arrangements orders in favour of kinship carers would be unaffected). The Commission proposes that a Kinship Care Order would be “a flexible order which could be tailored to reflect the particular circumstances of the child in the kinship care arrangement, as well as those of their parents and kinship carer.” The order would appoint the carer as the child’s ‘Kinship Guardian’, and grant them parental responsibility for the child. The order will also set out the extent to which the child will live with, spend time with, or otherwise have contact with their parents. The order can be made for a fixed time, where it is expected that it will only be required for a certain time, or it can be made until the child reaches the age of 18.
Kinship Parental Responsibility Agreement: The other main proposal is for a Kinship Parental Responsibility Agreement, under which parents could enter into an agreement with a kinship carer who is also a close relative of the child, granting the kinship carer parental responsibility for the child. The agreement could be for any duration from one year up to the remainder of the time until the child reaches 18, and could obviously be used where there is an informal family arrangement.
A Clear Definition of Kinship Care: This would essentially mean adopting the definition contained in the Children’s Wellbeing and Schools Act 2026, mentioned above, across England and Wales.
6. What Happens Next?
The Law Commission consultation seeks views on its proposals from young people who have experienced kinship care, kinship carers, parents, local authorities, social workers, lawyers, charities and anyone with experience of or an interest in kinship care. Responses to the consultation will inform final recommendations to the UK Government and Welsh Government.
The consultation closes on the 16th of October.
