I really need help with a legal guardianship issue

[Makipuppy]

Hello, I've posted on here before about DP's nephew (12) who's coming to live with us very soon.

I'll outline the story in case in helps.

When DN was a few months old his father died and his mother (DP's sister) who was schizophrenic became very unstable so the children (her daughter was 8) came to live with Grandma with her seeing them. She then did something that drew the attention of SS to the safety of her children and they made moves to take the children into care. DP stepped in and they stayed with Grandma. His sister died soon after. DP was around a lot when they were growing up, picking DN up from school etc. and so is a sort of father figure - DN loves him.

Grandma has sort of done a good job, DN is a kind, funny and smart boy but he is starting to be quite naughty at school and is not doing very well academically. He has no rules or boundaries, stays up all night playing computer games, lies in all day, skips schools and is allowed to drink alcohol. Grandma is exhausted and knows she won't be able to cope with him when the teenage years come and admits he runs rings round her. His sister will soon leave home.

So, we have offered to have him come live with us and baby DS. All adult parties are convinced this is the best thing for him (plus we love him loads!) and although he is still not very happy about it - hardly surprising in view of the hugeness of the change - neither is he unhappy - just unsure and worried about the change of schools etc.

At Christmas I asked MIL for all the paperwork so we could set about transferring legal guardianship etc. I need to be able to prove that DN is a 'looked after' child to persuade the council to get him into one of the two schools in our catchment area (both excellent) and I'm worried if I don't do this well enough they'll put him in one of the bad ones out of the catchment area and he'll have a miserable time traveling hours on the bus, not having friends in his area etc. which would be a disaster seeing as school is his biggest concern.

MIL said she has no paperwork at all, is not officially the legal guardian and has never signed anything.

Can this be true? Does guardianship of the child fall to the nearest relative? How do I prove to the council that DN is a looked after child?

Very worried.

Does anyone have an information on what the council will need?

Many thanks,

'Looked after' means a child who is under the care of the LA eg in foster care or a home
I don't see how this applies here

"She then did something that drew the attention of SS to the safety of her children and they made moves to take the children into care. DP stepped in and they stayed with Grandma."

If they were never formally in care then he isn't a 'looked after' child afaik. I think you would need to contact social services so they can look at the original file. In normal circs, an orphan living with a relative is not a looked after child but as your DN was placed with the Grandma then she maybe classed as a kinship carer which would mean he is looked after. Does she get a foster carers allowance for him?

Agree - he isn't 'looked after'. However you can still apply to the schools under 'special circumstances' - at least that's what our LEA calls it. Can grandma go back to her LEA and get any advice or paperwork from when SS were involed - there must be somethig somewhere that shows they were placed into her care. I'd have thought you'd need something from SS to show your LEA he needs to be placed in a local school (saying he needs to in an academically good school probably won't cut it I'm afradi). Does she claim child benefit?

I'll ask her whether she's a kinship carer. When I spoke to the council she said he would classify as a 'looked after' child, although not under the classification given in the info, which states as EldonAve says that the term refers to children in foster care. I think perhaps he falls more under 'extenuating circumstances'.

I suppose what I need to know is whether we can get legal guardianship without involving SS. The family are very wary of involving SS because when it happened they tried to take him into care despite the family being willing to have him and the fact that he was already settled with them. He is over 12 now so they could ask him and he would definitely say he wants to stay with grandma.

Hi Titchy, I'm sure she claims child benefit. But DN came to her when he was just a few months old, so I don't think the LEA will have any paperwork. Definitely worth a try though.

There are two schools in our catchment area and they are both excellent. When I spoke to the council she said go and look round both then send in your forms with your preference and we will try to get him into one or the other. But I told her we would be his legal guardians and now I'm not sure we are.

Makipuppy - I am a retired social worker with over 30 years experience and still work part time on an independent basis.

It sounds to me as though SS did not instigate care proceedings when your DN was first placed with his grandma. If it was 12 years ago children could be taken into care on a voluntary basis, (i.e. with parental agreement) Since the Children Act 1989 came into force children are "looked after" by the SSD if they are made subject to a Care Order or whether it is by parental agreement. (The latter is the same as the old voluntary care but it isn't called that any more)

From what you say I suspect the SSD backed off taking any action because as you say your DP "stepped in" and the children were placed with grandma. It's all a bit hit and miss sometimes to be honest - IF the SSD actually "place" the children with a relative they have a responsibility towards the children and should either support the relative financially and any otherway OR approve the relatives as foster carers and yes they would be known as kinship carers. The thing is, it is a moot point about exactly who "placed" the children and if the relatives in your case moved the children, then SSD could well see that as just an arrangement made by relatives and no need for them to take any action. This isn't totally fair especially if grandma has not been getting any financial help over the years, but it does happen.

I think you need to find out from SSD what records they have from the time they were involved many years ago. Also you need to know if your MIL has been getting any support from SSD over the years (financial or otherwise) as this could throw a little light on the status of the children and your MIL as their carer.

As to the future...........it is possible for relatives in your position to apply to the courts for a Special Guardianship Order which if granted would give you parental responsibility over your DN. However as your DN is 12, his wishes and feelings would count very much in any assessment that has to be undertaken as to the suitability of such an Order being made. You say he still wants to live with his grandma, so that would obviously count against making such an Order. The thing is it is very early days and he is surely going to be confused with the move and not ready to make any long term committment to you though this may change over time.

To be honest I don't think that his legal status is that important in terms of schooling - in my experience this doesn't mean very much. I think it far more likely for you to get him into a school of your choice by building up a good relationship with the head teacher and explaining the background yourself.

You can find all the info you need about Special Guardianship Orders on google or I can help further if you wish. The only benefit really of such an Order is that someone has Parental responsibility for the child, as no-one seems to have this PR at the moment. May be something for the future.

What happened to your DN's sister by the way - presumably she is now living independently or is she still with MIL.

Hope this helps but if you are still unclear please post again and I will try to clarify what I am saying. Hope all works out well for you all.

NanaNina, thanks so much for your informative post.

I think you're right, SS did 'step back' and nothing was ever signed. His sister died around the same time by the way.

Re DN's views on the move. We've been careful to say to him that we have instigated the move so that he doesn't feel that granny (who has brought him up from a baby and so is in many ways his mother figure) has rejected him. But she is totally in favour of the move. She was massively relieved when we talked to her about it because for a long time she has worried that she won't be able to control him as he gets older. I should add that two of her three children went completely and awfully off the rails with drugs and alcohol and DP (who witnessed it at first hand of course) strongly believes that the complete absence of boundaries or any sort of discipline didn't help in this. DN's sister, the older child brought up by her, was a clever, bright little thing and now spends her days smoking dope and granny can do nothing about it. It's very sad and we are determined DN will not go this way, even if he doesn't much appreciate it at the time. We are thinking of his long term good.

So basically we have told him that he has to accept what the adults say and that he is definitely coming to live with us. He is not unhappy but understandably worried about the change. A big factor in this is that we cannot tell him which school he is going to or when they will take him. That's why I want to be really on the case with the council.

I went to visit both the schools in the catchment area and did all I could to warm them up but they both said that they will have no choice - the council will make the decision and they will have to take the child if the council tells them to.

So I've focused on building a relationship with the lady at the council dept, maybe this will be enough without paperwork.

I want to avoid SS asking DN what he wants to do because he can't possibly know what's good for him (i.e. he thinks being allowed to stay up all hours on a school night playing computer games is 'what's good for him...'

Many thanks, any further ideas you have would be most useful and you have so much experience in the area!

can i just check i understand properly?

the paperwork you need right now is to persuade the education department of the council where you live that your DN actually lives with you or is moving to live with you?

so you need to ask them what their requirements are - what evidence they need and when.it will may include child benefit letter and registration with local GP etc. I would get it in writing. you also need to know the appliaction process, selection criteria, dates, appeals system etc

there will be lots of info on Mn education threads

AFAIK it doesn't actually matter ( in this regard) whether or not you have parental rights or legal guardianship. eg lots of children don't live with their father, even though he has parental rights. its where the child lives that counts

i agree with the other posters - your DN is not a looked after child, he's just a child living with relatives

if he was placed with his grandmother as a kinship carer she woudl be getting an allowance and / or there woudl be SS involement

if your local schools are as popular as you say, i suspect you will find that the council's admission policies are quite strict. many councils have applications from children claiming to be moving in with relatives so they are nearer to a particular school. Please understand, I am not suggesting you are doing this. But just to explain why the council will require more than an explanation from you.

Is getting into one of these good schools a condition of your DN coming to live with you? What will happen if he doesn't like it and wants to move back to his old school and live with his grandmother and sister?

Makipuppy - I think Kristina has good advice but wonder if I am confused now. I thought the paperwork you were seeking from your MIL was to do with your nephew's legal status (i.e. whether he was lookedafter or not)I think the most likely explanation to that as Kristina says is that he is NOT looked after and is merely a child living with his grandmother via family arrangements.

You mention that you want to avoid SS asking your N what he wants to do because he can't possibly know what's good for him. I really wouldn't worry about this because a) sws are not going to be remotely interested in your case - they have clearly not been involved during the boy's life and there will be no reason for them to be involved now. They are hugely understaffed and will not be looking for work! However b) if it ever did come to SS involvement, any social worker worth their salt would applaud your view that your N does not know what is best for him and that he should not at his age be put in a position where he has to make the decision about his future. The fact that you are saying that this decision is being made for him, is eminently sensible. And, as you imply, what 12 year old wouldn't prefer living conditions without boundaries and where he can do pretty much as he pleases!

The only way I can see where there would be any SS involvement was if in the future you did decide to apply for a Special Guardianship Order. These matters are heard in court by a judge and there are court rules about the assessment that has to be done by a social worker to consider the suitability of the application. It is an extremely comprehensive a/ment (I am involved as an ind worker doing these a/ments) because it is of course about a child's life. To be honest it wouldn't be worth you making such an application in the future unless your N was firmly of the view that he wanted to remain with you throughout his childhood/young adulthood. I'm not sure what benefits there would be in making such an application - if the child has previously been looked after by a l.a. then they have to provide financial support for a period of 2 years and they also have to consider if the applicants need any other kind of support
and if so how they intend to provide that support. Judges in the area inwhich I usually work will not hear SG applications unless the local SSD have completed their assessment of support services, so it can be usupportive to relatives in this respect. Mind that doesn't mean to say the necessary support will be forthcoming, as once the Order is made, there is always the possibility that support will not be able to be accessed.

I am a little confused about the education aspects. Are you in the U.K. I thought that head teachers these days had a lot of autonomy about their school admissions. Not sure what the schools meant by saying the "council will make the decision" - presumably they mean the L.E.A.? Who is this "lady at the council" who you are talking to. As I said before I don't think it's here nor there about paperwork (or lack oof it) related to previous SS involvement. As K says, you will need to proove that your nnephew is actually living with you and this isn't a ploy to get him into a school of your choice. It's just that there's been a few cases like this so head teachers/LEAs may be more on the lookout for this sort of thing. You will have no difficulty in proving that this is a permanent arrangement though.

Can I also say that I think that it is SO evident that you and your P are acting entirely in the boy's interests and with your caring and balanced views, I feel sure that this will be a successful arrangement, although you must of course expect some adjustment problems for all of you.

Do you live a long way from your MIL - presumably it is too far for him to continue at his old school.

Hi, thanks SO much for your responses.

Kristina, yes, the only aim I have in investigating the legal status is to back up our efforts to get DN into one of the two schools in our catchment area in March of this year. I called the council and spoke with the dept in charge of school admissions. I explained DN's situation and said we wanted to apply for a school for him. I know he is not technically a looked after child, but I'm hoping his situation will constitute special circumstances (she certainly led me to believe that would be the case) - our concern is that they will put him in a school outside of our catchment area. There are some bad ones that are quite rough and I would worry about him being unhappy on top of all the other adjustments to be made whereas both the schools in our area have excellent pastoral care.

So we don't actually need to involve SS if I can prove to the council that he does actually live with us, his situation is as described and that we're not trying to pull a fast one. I was just thinking that they might need some proof for this. I'll speak to them tomorrow and find out exactly what they need.

The school isn't a criteria for him living with us - even if the worst happened and he was put in a school out of the catchment area he would still come to us. I don't think he would be unhappy long term (or i wouldn't do it) but if he was we would work with that situation rather than send him back to DP's mother.

Nana, I think you're right, there has been no SS involvement and they won't be interested seeing as all his needs are being met. I'm very relieved you feel that SWs would see the broader view - I'm a bit wary because my brother and SIL are fosters carers and have the SS giving their twin girls the 'option' of returning to their parents when they are 16 despite the fact they suffered serious abuse there. I just don't want any lack of knowledge on my part putting us in a situation where decisions are taken out of our hands. It sounds like we don't have to worry though, which is a big relief.

I don't think, from your description, that we need an SGO.

I need to find out from the council how I can prove he is coming to live here, perhaps a letter from grandma?

Thanks for your support - we know the going may get a bit rough, but DP has a very strong relationship - it'll be love and rules till it works!

If you don't mind I'll give you an update tomorrow when I've spoken to the council again,

Many thanks!

Actually although I can't speak to the council till Monday, I just wondered what would happen if I needed to give permission for something for DN, i.e. in hospital or at school. DP and I are not married yet, although we will be in the next few months. Would that make a difference? I don't know how degrees of kinship work - is DP as close a blood relative as granny?

really appreciating your help..

on medical issues, i think that at 12 he would be able to consent to most things himself.

i suspect the medics would just ask if you were his parents, and if Dp explained that they were dead so he lives with you, that would be enough

its not really about degrees of kinship, more about parental responsibility

Well I spoke with the lady at the council again yesterday. She said a letter from his grandmother explaining the situation will be enough and didn't think the lack of paperwork was a problem. She seems pretty hopeful about getting him into one of the two schools. I'll email the heads of year as well, since as was said above, they do get some say in the matter.

Thanks so much for all your help - the prospect of SS intervention was making my mind spin things rather out of proportion.

thats great news. if i were you i would send a letter or email to the person at the Council confirming your conversation.

and follow it up asap with a formal application with supporting documents as requested

good luck

Good idea Kristina. I think I might email the heads of year (I got their addresses when we looked round the schools) and mention his name again so it rings a bell when the request comes in. Or perhaps the head? I suppose I could ask them to forward as required.

I'll ask if we can hand the form in in person.

Feeling much more positive about it .