Chances of getting legal guardianship or similar (long)

[worriedaunt123]

Hi All,

I'm all confused about what I can and can't do and wondered if someone with knowledge could help point me in the right direction. Sorry if anything I include is irrelevant but at this stage I don't know what is or isn't and don't want to drip feed.

My DB has 3 kids but is not with the mother of these children. They are all of school age. She has another child by another man and one more on the way. The mother and new partner are both on full benefits (not a reference to their character but to their living arrangements ie; both home full time)

My brother works full time and pays maintenance, always has. He has the children alternating weekends. He doesn't have his own home, he is living with our parents currently. There is no formal visitation order, in fact none of their arrangements are formal.

Concerns have been raised about the care of the children from family. Examples include, all three always having lice despite repeated treatment at the weekends with their dad. Poor personal hygiene and not being clean (poo and wee) at age 8 and repeated accidents. Others often smelling of stale wee/musty.

At a recent parents evening, concerns have now raised by the school about hygiene, lateness, not having eaten and falling asleep in class. One child is far below their targets, one is achieving/exceeding some and one is barely achieving. No social services or safeguarding intervention at this point in time.

My partner and I would like to have them come live with us. My brother would agree to this arrangement (has been discussed) but the mother will not, the children 'earn' too much money and she would have to downsize her council/Housing assoc. home or pay the difference in 'bedroom tax'.

We have sufficient space, I am a SAHM and my partner works full time. The children know us and we could afford their upkeep without the additional tax credits, child benefit, housing benefit etc. I have qualifications in supporting learning and am currently working on my degree to become a teacher. WE would be more than willing to facilitate contact at weekends between the parents and would actively promote a good relationship.

The mother is not a bad person and loves the children but is an awful parent and is clearly not able to care for these children properly.

Is there a way I/we can obtain guardianship over the children. I don't want to remove parental rights or anything but I do not want my nieces to end up in the care system when I am perfectly able and willing to take on their care.

Thanks if you got this far!

If you have concerns, your first step is involving social services. My understanding is that if the neglect is enough to remove them from mothers care, they will attempt to place with family first.

Hi - from your description it would be incredibly difficult. There would be two main routes to having the children live with you in the way you describe;

1. Public law , i.e. as an outcome of a 'care case'. Where social services took the mother to court on the basis there was a serious welfare risk to the children and the 'care plan' was for the children to live with you.

2. Private law, pursuing a 'Special Guardianship order' which would require the consent of all those with parental responsibility.

The problem, amongst others, with both these routes is that a court would in the first instance ask why could the children not live with the father and why not pursue the matter as an ordinary private law case?

If you're really serious you should get some proper legal advice from a good solicitor. You could then get a better overview of all the options available to try and improve the lot of the children.

Why can their father look after them?

worriedaunt I understand your concerns but I think you are really "jumping the gun" here. I am a retired social worker/manager with a career spanning some 30 years.

As has already been said, if there are concerns about the welfare of the children then it is a matter for social workers to carry out an investigation and the decide on what action (if any) they would take. To be honest the issues that have been raised by the school don't really sound that bad and whilst I appreciate the concern of the family, again if social workers requested permission of a court to remove children because they smelled of wee and had head lice, that would mean quite a large percentage of children, especially those living in disadvantaged areas. I think the most that would happen is for the social workers to visit and check out whether the children were actually safe and maybe give advice about the importance of hygiene in school, so as the children aren't bullied for being smelly. There is no way that the concerns you have raised would mean that the social workers would need to request permission of a court to remove the children. Obviously if there were other concerns it may be different - for children to be removed there has to be evidence that the children are suffering significant harm and this means serious abuse/neglect.

FTcarer - Applications for Special Guardianship Orders are not private law and they don't require the consent of all those with Parental Responsibility. These applications arise when a child has been removed from the parents and the LA has instituted care proceedings in Court. The LA has a duty to find out if the child/ren can be placed within their extended family, and if so they have to carry out an assessment of the relatives who wish to care for the children (it's usually grandparents, but can be aunts etc) It is usually in the child's best interests if the relatives apply for a Special Guardianship Order (which is very similar to adoption) with a few slight differences, and a Judge can make this Order without the consent of the parents. In fact parents very rarely consent to the making of this Order as they are usually opposed to the fact that their children have been removed, and their lawyers will "fight their corner" in court. worriedaunt you would not be able to apply for this Order unless the children were removed from their mother and the LA were taking the matter to court, which I think is extremely unlikely.

Your brother could go to the Family Courts to request that the children lived with him - and this IS private law. The courts make what are called "Arrangements for the Care of Children" though I honestly can't see how your brother would have much of a case as he doesn't have a home for them. Also there is no legal aid available for these private law cases so unless he could pay a lawyer he would have to represent himself in court. If he is intent on pursuing this course of action, he could maybe apply to the local council to see if there was any possibility of him being allocated a council/housing association property IF the court agreed that the children should live with him. The children's wishes and feelings would be taken into account if they are old enough to understand.

Alternatively he could request that there was a shared AC Order made - this can be 50: 50 or any other split that was in the children's best interests. To be honest though I think your brother would be well advised to seek more contact with the children by agreement with his ex wife, as once these matters get into the family court, there are long drawn out battles, with the children in the middle of warring parents.