Looked After Children

Caroline Ball

• Publisher: Bloomsbury Academic
• Year: 2014
• ISBN:
  9781350313583
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Studien über Kinder in der Soziologie

How do you apply the principles, structures and processes of the law to everyday practice? Drawing on a wealth of contemporary case examples, this handy pocket book demystifies the complex legislation on Looked After Children and demonstrates the practical duties and responsibilities of professionals working with this group.

1

OVERVIEW OF LEGISLATION, GUIDANCE AND KEY RESEARCH

AT A GLANCE THIS CHAPTER COVERS:

♦ the accompanying statutory and practice guidance

♦ key themes and issues addressed by leading researchers in the field

Overview of legislation and guidance

Children may become ‘looked after’:

• as part of a child in need plan for their care, with the consent of, or no objections from, those with parental responsibility; or

• in any circumstances where there is no one to look after a child in need;

• when made the subject of a care order or interim care order in care proceedings and placed away from home; or

• for a shorter time as a result of an emergency by means of a child protection order, police protection or detention; or

• when in police custody, on remand or subject to a court order with a residence requirement in criminal proceedings.

All these routes are statutorily defined within the Children Act 1989, Parts III, IV and V and accompanying regulations and guidance.

Since its implementation in 1991, the primary act, the Children Act 1989, has been much amended by: the Children (Leaving Care Act) 2000, the Care Standards Act 2000, the Adoption and Children Act 2002, the Children Act 2004, the Children and Adoption Act 2006, the Children and Young Persons Act 2008, and will be further amended when the Children and Families Act 2014 is implemented. In addition to significantly varying many provisions, the amendments have considerably increased local authorities’ responsibilities in regard to the placement of looked after children, the introduction of an independent reviewing service, and the duties owed by local authorities to those formerly looked after. Regulations made under the 1989 Act have been similarly revised. Most of the accompanying combined volumes of regulations and statutory guidance, originally published in 1991 to coincide with implementation of the 1989 Act, were substantially revised and reissued between 2008 and 2011, and further planned revisions are referred to as appropriate. Practitioners need to ensure that the provisions of the primary statute and accompanying regulations and guidance that they consult are those currently in force.

Legislation

Whilst this book is mainly concerned with children looked after by the local authority, and therefore with Parts III, IV and V of the 1989 Act, the possible alternatives to local authority provision of accommodation in Part II need to be understood and are examined in Chapter 8. The key provisions of the 1989 Act relevant to local authorities’ powers and duties in regard to looked after children are contained in the following Parts and accompanying regulations:

• Part III Local Authority Support for Children and Families

• Part IV Care and Supervision

• Part V Protection of Children

• Part VI Community Homes

• Part VII Voluntary Homes and Voluntary Organizations

• Part VIII Registered Children’s Homes

• Part IX Private Arrangements for Fostering Children

A key principle underpinning the 1989 Act is that, wherever possible, services to promote and safeguard the welfare of children should be provided in partnership with the child’s family. Part III enacts this principle by defining qualification criteria and the range of services to be provided:

(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

s. 17 Children Act 1989

Children ‘in need’ are defined in sub-ss (10) and (11):

(10) For the purposes of this Part a child shall be taken to be in need if—

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled,

and ‘family’, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part—

‘development’ means physical, intellectual, emotional, social or behavioural development; and ‘health’ means physical or mental health.

s. 17 Children Act 1989

Children in need are the subject of a separate title in this series (Westwood, 2014). The full range of services which may be provided under Part III, details relating to them, and provisions regarding liability to contribute to the maintenance of looked after children are set out in Schedule 2 to the 1989 Act.

The duty of the local authority in regard to the provision of accommodation for children in need is set out in s. 20 and for children subject to emergency protection orders, in police protection or detention or on remand in s. 21. Its general duties towards looked after children are set out in s. 22, and elaborated in ss 22A–G (which replace the original s. 23). Sections 23ZA and ZB make provision for children in accommodation to be visited and ss 23D–E, 24 and 24A–D set out local authorities’ duties towards children previously looked after as they move to adulthood. The stringent criteria regulating the placement of looked after children in secure accommodation are set out in s. 25, and requirements relating to the functions of IROs in ss 25A–C. Detailed provisions regarding the implementation of the duties and responsibilities set out in the primary legislation are to be found in the raft of accompanying regulations to which reference will be made when each aspect is examined in detail.

Part IV: care and supervision

Where the local authority believes that to safeguard their welfare children need to live away from their family, but the family will not agree, or where the local authority does not believe that a voluntary arrangement will safeguard a child’s welfare, it will need to apply for a care order (DCSF, 2008). The application is made on the basis that the child concerned is suffering, or is likely to suffer, significant harm if the order is not made (s. 31) (see Child Protection in this series: Holt, 2014). When a court makes a care order, or an interim care order, its effect is to give the local authority parental responsibility for the duration of the order, and to allow it to determine the extent to which parents may exercise theirs (s. 33). If the local authority determines that the child’s welfare can only be safeguarded by being accommodated away from his or her family, the child becomes looked after under Part III.

Part V: emergency protection

A child can be protected in an emergency by the making of a time-limited emergency protection order by a family (proceedings) court or single family (proceedings) court Justice, with or without notice, under s. 44, or by the police exercising powers under s. 46 (DCSF, 2008). A child placed away from home under an emergency protection order or police protection becomes a looked after child under Part III for the duration of the order.

Statutory guidance

Guidance, issued to local authorities by the Secretary of State for the relevant government department under s. 7 Local Authority Social Services Act 1970, or to each person or body to which the s. 11 Children Act 2004 duty to safeguard and promote the welfare of children applies (s.11(4)), should be complied with unless exceptional circumstances justify different actions. The fact that guidance is issued under s. 7 or s. 11 will be stated in the text. It is commonly referred to as ‘statutory guidance’ to differentiate its status from practice guidance which is advisory in nature. The statutory guidance relating to powers, duties and responsibilities under the Children Act 1989 is published in several volumes of guidance and regulations. The following are relevant to the exercise of powers and duties in relation to looked after children and will be referred to throughout the text.

Volume 1: court orders

This guidance (DCSF, 2008) provides a complete account of the range of court orders set out in the Act including those that are predominantly used in private law proceedings such as child arrangements orders and special guardianship which may provide alternatives to children being looked after by the local authority (see below, Chapter 8).

Volume 2: care planning, placement and case review

Central to work with looked after children, this guidance (DCSF, 2010a) sets out the functions and responsibilities of local authorities and partner agencies under Part III of the 1989 Act and describes how local authorities should carry out their responsibilities in relation to care planning, placement and case review for looked after children. Both the regulations and guidance in this volume are due to be significantly revised in 2014 (DfE, 2013c; 2013d)

Volume 3: planning transition to adulthood for care leavers

This guidance (DfE, 2010b) largely concerns information about the support required for young people who have ceased to be looked after, referred to in the legislation as ‘relevant’ and ‘former relevant’ children, so that local authorities can meet the requirements set out in the Care Leavers (England) Regulations 2010. These regulations, applicable in England and Wales, elaborate the increased duties of local authorities to care leavers enacted in amendments to s. 23 Children Act 1989.

Volume 4: fostering services

This guidance (DfE, 2011a) sets out the functions and responsibilities of local authorities and their partner agencies in relation to fostering services under Parts III, VII and VIII Children Act 1989. It also sets out the responsibilities arising from the Children Act 2004 and the Children and Young Persons Act 2008 in relation to fostering services and gives guidance to independent fostering agencies about their responsibilities under the Care Standards Act 2000.

Volume 5: children’s homes

This volume (DfE 2011b) provides guidance to local authorities in England and their staff about their functions under Parts III and VI–VIII Children Act 1989. It also gives guidance to providers of children’s homes about their responsibilities under the Care Standards Act 2000.

Replacement Children Act 1989 guidance on private fostering

This guidance on private fostering (DfES, 2005a) replaces ch. 1 of vol. 8 (Private Fostering and Miscellaneous) of the Children Act 1989 guidance, which was first published in 1991. It incorporates guidance on provisions in the Children Act 2004 and in the Children (Private Arrangements for Fostering) Regulations 2005 and came into effect at the same time as the National Minimum Standards for Private Fostering.

Family and friends care: statutory guidance for local authorities

This guidance (DfE, 2010a) sets out a framework for the provision of support to family and friends carers (currently referred to as ‘connected persons’), whatever the legal status of the children they are caring for. In particular, it provides guidance on the implementation of t...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Table of legislation
• Acknowledgments
• Abbreviations
• Using this book
• Introduction
• 1 Overview of legislation, guidance and key research
• 2 Accommodation under section 20
• 3 Other routes to ‘looked after’ status
• 4 Local authorities’ responsibilities towards looked after children
• 5 The voice of the looked after child and the role of the family
• 6 The accommodation of looked after children
• 7 Reviews
• 8 Alternative legal arrangements
• 9 Looked after children’s transition to adulthood
• Useful websites
• Glossary
• Bibliography
• Index