Court Directed Placements made under Section 38(6)
This guidance is new and was added to the procedures in October 2019.
When a child is subject to an Interim Care Order, the court may decide to make a direction for the child to be assessed under Section 38(6) Children Act 1989.
This enables the court to direct where the child should live, for a period of assessment.
Directions under Section 38(6) CA 1989 can result in a child being placed with a parent, relative or other connected person.
2. Key Points
- A Section 38(6) direction can only be made where a child is subject to an Interim Care Order and is therefore always a temporary position pending assessment outcome;
- If a child is subject to a Section 38(6) direction and is in the care of a parent, we are not required to obtain approval of Placement with Parents from the Director of Children’s Social Care;
- If a child is subject to Section 38(6) then Regulation 24 does not apply and the carer is not temporarily approved by the Local Authority as a foster carer;
- The child is a Child in Care and will need statutory visits, reviews, PEP etc. Visiting must take place at least once a week until the first Looked After Review, thereafter at intervals of not more than 6 weeks. (On LiquidLogic this is the “Placed with Parents Pending Assessment” visit rule;
- The placement is regulated by the court and only the court can make the decision to end the placement/assessment however the police may still exercise their protective powers under S46 Children Act 1989 if the police have reasonable cause to believe that a child/children would otherwise be likely to suffer significant harm.
The circumstances in which directions under Section 38(6) are made will vary but typically involve situations in which the court wishes to enforce a placement that the Local Authority does not feel able to endorse via Regulation 24.
3. Financial Support to Parents (and Others with Parental Responsibility)
In some cases a direction under Section 38(6) can result in a child being placed with a parent or other person with parental responsibility. In such circumstances any financial support is at the discretion of the Team Manager. Dependant on circumstances it may be reasonable to provide a parent or person with parental responsibility with a start-up grant e.g. to purchase beds, bedding, clothing etc. In addition it may be appropriate to provide the carer with financial support until such a time as they are in receipt of child benefit however:
- Any regular maintenance payments should not exceed the Child Benefit amount;
- In most cases it is expected that any maintenance payments to parents in lieu of Child Benefit will be reclaimed by the Local Authority when backdated Child Benefit payments have been made.
4. Providing Support to Other Connected Persons
Directions under Section 38(6) do not result in a connected person becoming a foster carer. Therefore they will not receive “fostering allowances”.
However caring for a child is a considerable expense for a family member caring for a child at the direction of the court and it is appropriate for the Local Authority to provide financial support. Therefore:
- In order for us to record the placement in LiquidLogic, the PACT team will need to make a request to LiquidLogic Service Desk to add the carer as a “Court Directed Carer” who can only provide Z1 services, and record the placement. This will enable us to create the “placement” however the carer will not be deemed to be a foster carer. (Only the service desk have access to use this code as it can only be used in exceptional circumstances in consultation with the performance team, who need to exception report these placements to the DfE)
- Allowances will be based on the current Hull City Council rates for connected person foster carers.
- Extended family or friends caring for a child under a Section 38(6) direction will receive the basic fostering rate which will not be means tested during the s38(6) period.
- If the outcome of the proceedings is that the connected person is awarded a CAO or SGO their allowance from this point will be means-tested. It is recommended that where there is potential for the final outcome to be a Child Arrangements or Special Guardianship Order, the process of financial assessment be started early during the Section 38(6) period so that the carers and the court are fully aware of the financial support that will be available in the longer term.
- Payments will be made from the Looked After Children Budget and should not be made from petty cash apart from in an emergency in line with the petty cash procedure.
- Social workers will need to liaise with the Finance Team to ensure that regular payments to the required level can be made automatically via bank transfer. The Finance Team will need the details of the carer including bank details.
- As an interim measure, where financial support is required prior to commencement of payments this is at the discretion of the Team Manager in line with the Local Authorities scheme of Delegation. All financial support provided must be essential, justifiable and in the best interests of the child.
- Such payments may include “set up” costs such as provision of beds and bedding.
- Where a regular maintenance payment is requested in advance of a financial assessment, this is at the discretion of the Team Manager but will not exceed a maximum of £50 per child each week without the approval of the Head of Service.
- Where the allowance is backdated any previous payments made under paragraphs 7, 8 or 9 above will be deducted from the backdated payment.