Guidance on Directions made under Section 38(6)

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.

Key points:

1. 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;
2. 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;
3. If a child is subject to Section 38(6) then Regulation 24 does not apply, and the carer is not temporarily approved by Children's Services as a foster carer;
4. The child is a child in care and will need statutory visits, reviews, PEP;
5. 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 Children's Services does not feel able to endorse via Regulation 24.

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 locality Team Manager. Depending 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 Children's Services when backdated Child Benefit payments have been made.

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 Children's Services to provide financial support.

Therefore:

1. For us to record this placement, the worker will need to complete the Children’s Purchasing Request on Mosaic, so the purchase type and legal status is recorded on the child’ record. This will enable us to create the 'placement' however the carer will not be deemed to be a foster carer;
2. Allowances will be based on the current Lincolnshire fostering rates;
3. 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;
4. Payments will be made from the Fostering budget via MOSAIC;
5. Social workers via KinshipReferrals will need to liaise with the Finance Team (Softbox) to ensure that regular payments to the required level can be made automatically or until the placement ceases;
6. Such payments may include 'set up' costs such as provision of beds and bedding will be sourced by the locality team.