What do the Public Law Working Group’s Recommendations mean for placing children with families overseas?

May 2021

This article draws out the practice recommendations for social workers looking after kinship cases with an international element.  Both the March 2021 Final Report and the June 2020 special report Special Guardianship Orders are reviewed.  While international kinship care remains a complex area, CFAB was pleased to see many of our public calls for change (through our #Record2Protect campaign and our #OutOfSightOnOurMind campaign) have been recommended by the Public Law Working Group.

  1. Public Law Working Group ‘Recommendations to achieve best practice in the child protection and family justice systems’ (Final Report, March 2021)

The Public Law Working Group, chaired by Mr. Justice Keehan, was asked to make recommendations for best practice against a background of a steep rise in care proceedings cases in England and Wales.

The report, published in March 2021, makes a number of recommendations which are relevant to the protection of vulnerable children with international connections. In particular;

  • International issues and immigration issues must be considered at an early stage in care proceedings. The working group notes;
  • The immigration status of a child, their parents, or potential kinship carers may determine whether a family are able to remain in the UK. A kinship placement may be impacted by a prospective carer’s immigration status if they face deportation, for example. [155]
  • Insufficient attention is given to regularising the immigration status of children who are the subject of care orders. [156]
  • There is a need to recognise that a child may have a separate immigration status and nationality to that of their parents. [157]
  • As a practical measure, the working group recommend that where any party is a foreign national in care proceedings, a request is made to the Home Office to clarify their immigration status if it is unclear.
  • The working group also recommend that local authorities are directed to give notice of care proceedings to a relevant embassy, where any party is a foreign national, subject to it being safe to do so.
  • There is a recommendation for local authorities to ensure proper record keeping in relation to children by filing a copy of their birth certificate.  For those children who have foreign nationality, a copy of the biometric page of the child’s passport or identity documents should be obtained by a local authority. [97]

CFAB’s experience has been that immigration issues in relation to vulnerable children are often overlooked or addressed at a late stage in care proceedings. CFAB’s 2018 research into cross-border child safeguarding found that a child’s nationality was often recorded by Local Authorities on the basis of information as given by parent/s, rather than on the basis of documentation. CFAB welcomes the recommendation of the working group for record keeping in relation to children on the basis of identity documentation, which will also assist with ascertaining a child’s immigration status. It is hoped that the identification of immigration and international issues at an early stage in proceedings will ensure that children have a legal right to remain in the country where they are ultimately placed.

  1. Public Law Working Group ‘Recommendations to achieve best practice in the child protection and family justice systems: Special guardianship orders’ (June 2020)

CFAB was pleased to participate in the consultation on special guardianship to highlight the position of children who are placed in kinship care overseas, and the particular challenges and complexities associated with international kinship care.

The Public Law Working Group confirmed that special guardianship may be an appropriate legal framework for placing children overseas with kinship carers. However, there are three core practice challenges associated with international kinship care;

  1. Obtaining an assessment of an overseas kinship carer
  2. Ensuring that a special guardianship order is recognised in the country where the child will be living
  3. Planning post-placement support for the child overseas

In relation to the assessment process, CFAB welcomes the recognition by the Working Group that assessment of kinship carers who live overseas may take longer than assessments in the UK, and the recommendation that the 26-week time limit for care proceedings may be justifiably extended to permit CFAB to carry out an assessment [6]. Whilst mindful of the detrimental impact of delay on a child’s welfare, a thorough assessment of a kinship carer living overseas will inevitably take longer than a domestic assessment. The Working Group also emphasises the need to give specific attention to matters relevant to the care of the child in another country;

‘the relevant matters associated with the care of children in that country: permanent, stable and secure family life; safeguarding; education and health; and specifically how all of these relate to the personal living circumstances of the host family and their need for support services, including financial and therapeutic support and contact between family members including those resident in the UK.’ [34]

In relation to post placement support, the working group emphasise the need to consider how overseas kinship placements will be supported, and what the contingency arrangement are should the placement break down [35]. CFAB is able to offer assessments by partners in a number of countries for use in care proceedings.

CFAB is able to offer post-placement support services in a number of countries which can assist with monitoring and assessing a placement with a kinship carer overseas.

An overseas kinship carer may not have the same opportunities to live with a child prior to the making of a special guardianship order, as a prospective carer in the UK. The Public Law Working Group recommend that it may be appropriate to place a child on an interim basis with a prospective special guardian, during which a ‘robust evidence base’ will be established about the quality of care of the child is receiving [28]. The working group recommend a number of possible legal frameworks for an interim placement. However, in international cases, there are practical and legal considerations if a child is placed with a kinship carer on an interim basis overseas, which will require specific consideration. CFAB is able to offer a range of services which may support and assist with an interim placement of a child overseas, including monitoring of the placement by local child protection professionals.

If you are interested in learning more about good practice in international kinship care, we recommend you check out the International Kinship Care guide and follow our Safe, Secure and Thriving campaign.