Legal definitions
Parental responsibility
As far as schools are concerned, parental responsibility (PR) must be viewed from two perspectives. As far as education acts and schools' legislation are concerned, the role of parent is broadly drawn and will include foster carers and social workers. The notion that public services are corporately responsible for the parenting of children in their care is to be found in the widely used term, corporate parenting.
The Children Act 1989 details specific responsibilities for parents and for others who would hold PR.
Those who hold PR for a child are given the right to determine key issues, including:
- where the child should live
- whether the child might receive medical treatment
- what school the child should attend.
Why is a designated teacher needed?
Many looked after children have suffered disrupted learning and may have missed extended periods of school. The gaps in their learning are likely to have become significant barriers to their progress. The complexity of this fragmented educational experience needs careful assessment and planning. Excellent practice in supporting looked after children already exists in many schools. The designated teacher role is statutory to help ensure effective practice becomes universal.
Different types of parental responsibility
When a child is cared for by a family member or a friend, the local authority or the parent may still have PR.
The legal status of PR is different in certain circumstances.
Looked after by the local authority
Under a care order
If the child is looked after by the local authority under a care order and placed with an approved family member or friend, PR is shared between the child's parents and the local authority. The foster carer will not have PR for the child. The child may only be removed from the carer by the local authority.
Under a voluntary agreement
If the child is looked after by the local authority under a voluntary agreement with the child's parents and placed with a family member or friend approved as a foster carer, PR is held by the child's parents. The foster carer will not have PR for the child. The child may be removed from the carer by the child's parents or the local authority.
Cared for by a family member or friend
With a child arrangement order
If the child is cared for by a family or friend carer with a child arrangement order, PR is shared by the person in whose favour the child arrangement order was made and the child's parents. The child may not be removed from the carer except by the order of a court. These children are not classed as looked after.
With a special guardianship order
If the child is cared for by a family or friend carer with a special guardianship order, PR is shared by the person in whose favour the order was made and the child's parents. However, while the basic legal link with the child's parents is retained, their ability to exercise their PR is limited. This means that the special guardian may exercise day-to-day PR to the exclusion of all others with PR, apart from another special guardian. The child may not be removed from the carer except by the order of a court. These children are not classed as looked after.
Cared for by an appointed guardian on the death of a parent
If the child is cared for by a family or friend carer appointed as the child's guardian upon the death of a parent as part of the parent's will or under a deed of appointment, an individual appointed as a guardian by a parent who has sole PR for a child will acquire PR on the death of that parent (or otherwise upon the death of everyone with PR). The child may not be removed from the carer except by the order of a court.
Cared for by an unappointed guardian without a legal order
If the child is cared for under a private arrangement, PR is retained by the child's parents. The carer will not have PR. The child's parents may remove the child.
What arrangements are made for Looked After Children to see their family?
The social worker is responsible for arranging contact for a child with their family. This will sometimes be supervised and at a contact centre. Contact will be arranged for times that fit in with their other commitments and so will often be after school and at weekends. The social worker or carer should give clear information to the education provider about arrangements for contact as this may affect how the child feels or behaves when they are at school or nursery.
Legal process related to care
There are a number of court orders relating to Looked After Children that are helpful to understand.
A long-term order which commits the child to the care of the local authority. It provides extensive powers to local authorities but requires evidence to the court that a child is suffering, or likely to suffer, significant harm, or the likelihood of harm is attributable to a lack of adequate parental care or control.
Parental responsibility is shared between the local authority and birth parent/s for the duration of the order. The local authority has majority proportion.
Is the child looked after? Yes.
A time-limited order that places the child under supervision of a social worker or probation officer. The grounds upon which an order can be made are identical to a Care Order.
Parental responsibility is retained, in full, by birth parent/s.
Is the child looked after? No.
Order made pending a full hearing of the application of a Care Order.
Parental responsibility is shared between the local authority and birth parent/s for the duration of the order. Local authority has majority proportion.
Is the child looked after? Yes.
Order made pending a full hearing of the application of a Care Order.
Parental responsibility is retained in full, by birth parent/s.
Is the child looked after? No.
Enables the return of the child to a responsible person.
Parental responsibility is retained in full, by birth parent/s.
Is the child looked after? No.
Replaced by the "Child Arrangements Order, 2014".
An order setting the arrangements to be made as to the person with whom a child is to live.
Parental responsibility - A Residence Order in favour of any person that gives PR for the child.
Is the child looked after? No.
Replaced by the "Child Arrangements Order, 2014".
An order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.
Parental responsibility? N/A
Is the child looked after? No.
An order for settling a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child, for example, a change of surname where one parent objects. The court is given the responsibility to make the decision.
Parental responsibility - N/A.
Is the child looked after? No.
A long-term order that can be offered to a child for whom adoption is not appropriate but who cannot return to their birth parents to live and could benefit from the permanence provided by a secure family placement. Special Guardians must be over 18 years old and must not be a parent of the child.
Parental responsibility - the Special Guardian gains PR and is entitled to exercise this to the exclusion of any other person with PR for the child (apart from another Special Guardian).
Is the child looked after? No.
A short-term order (up to 15 days) which either removes the child on a short term basis, or allows the child to be kept in a place of safety or requires an alleged abuser to leave the family home. The grounds for an EPO are much easier to prove but successful applicants gain limited powers. Any person can apply for an EPO including a local authority or other authorised body.
Parental responsibility is shared temporarily by the applicant with the birth parent/s.
Is the child looked after? Yes - where the local authority shares parental responsibility.
A short-term order (maximum 7 days) which provides for the compulsory assessment of the child's state of health and development.
Parental responsibility is retained in full, by birth parent/s.
Is the child looked after? No.
No court order is necessary for the police to implement this power which enables the police to remove a child or to keep a child in a safe place.
Parental responsibility is retained in full, by birth parent/s.
Is the child looked after? No.
Following the changes brought in by the Children and Families Act 2014, “contact orders” and “residence orders” under Section 8 of the Children Act 1989 were both replaced on 22 April 2014 with a single “child arrangement order” that covers both. Any existing residence and contact orders remain in force and do not need to be converted, but all new orders can now only be child arrangement orders.
Parental responsibility is with the person/s with whom the child lives for as long as the order is in force.
Is the child looked after? No