Children in care in “other arrangements”

Newsnight programme, 20 May 2019

Serious concerns about children in care living in unsafe and unsuitable accommodation are growing after BBC Newsnight recently reported over 5,000 teenagers are living in unregulated accommodation – up 70% from a decade ago.

Several police forces were cited in the programme as having provided alarming evidence to a parliamentary group – of children in care being abused, exploited and criminalised through lack of effective care and safeguarding.

A statement from the Association of Directors of Children’s Services concluded:

We recognise the role unregulated provision can play within the care placement market and the flexibility it offers when linked to a clear plan based on the needs of a young person and a clear support plan. There is a distinction to be made between using it as part of a considered move compared with using it to deal with a crisis when no other accommodation is available. Total regulation would limit this flexibility so we are keen to see all providers take their responsibilities seriously and welcome increased expectations around standards and transparency as to how those will be delivered.

Care paradox

Having reviewed the legal framework surrounding unregulated accommodation, Article 39’s Director, Carolyne Willow, said:

Here we have a care paradox, whereby children are legally in the care of the state but placed by social workers in accommodation operating outside the law.

The contorted legal arrangements for placing children in unregulated accommodation show successive governments are aware of the risks and the dangers.

Teenagers’ growing independence is not a legitimate reason for relaxing safeguards. If a child is in care, they must be properly cared for – in settings which are registered, inspected and meet minimum standards. Children’s homes regulations include a particular requirement to prepare children for adult life – so it cannot be said that they are not intended to care for older teenagers. Indeed, the Children Act permits local authorities to place a child in a children’s home between the ages of 16 and 21 years.

Councils are at breaking point with lack of resources but these are children for whom councils are legally serving the function of parents and families. It can never be right for a child in the care of the state to be placed in a setting where they are abused and exploited, or in which they simply cannot possibly feel loved or looked after.

We support wider calls for a comprehensive review of the care system, conducted with care experienced people of all ages, to eliminate this and other practices which clearly work against what’s best for children. Meanwhile, intervention by independent reviewing officers will be essential for children not in safe or suitable accommodation today.”

Council legal duties

Councils are under a duty to provide accommodation to children in their care (Section 22A of the Children Act 1989).

Unless this would not be consistent with the child’s welfare, or it is not reasonably practicable, the Children Act requires that children in care are supported to live with a parent, a person with parental responsibility or a carer with whom a family court formerly said the child should live (through making a ‘residence order’).

When the above arrangements are not possible, local authorities must place a child in “the most appropriate placement available” from the following options:

– A relative, friend or other person who is a local authority foster parent
– A local authority foster parent who doesn’t fall into the above category
– A registered children’s home
– Other arrangements which comply with any regulations.

The Care Planning, Placement and Case Review (England) Regulations 2010 set out the factors (in Schedule 6 – below) to which councils are legally required to have regard in satisfying themselves that unregulated accommodation is “suitable”.

It is important to stress that other provisions in the Children Act apply, including the general duty to safeguard and promote the child’s welfare (Section 22(3)), and the duty to ascertain and give due consideration to the child’s wishes and feelings before making any decision with respect to them (Section 22(5).

Moreover, there must be a review of the child’s case before he or she is placed in “other arrangements” – unless the local authority considers it has to take this course of action to safeguard the child’s welfare as a matter of urgency (Section 22D). This means that the vast majority of decisions to use unregulated accommodation for children in care should be subject to independent scrutiny and challenge by an independent reviewing officer (IRO) – before the child is moved.

IROs and Cafcass – protecting children’s rights

IROs are empowered by Regulation 45(3) of the Care Planning Regulations to refer to Cafcass any cases where, in their opinion, a material breach of council duties has occurred.

Cafcass are, in turn, empowered to bring a Human Rights Act claim or initiate judicial review proceedings following a referral from an IRO (Regulation 3, The Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004). However, its Practice Note 2017 states IROs should not refer cases to it where a child has sufficient age and understanding and wishes to pursue legal action him or herself.

Freedom of Information Act request

Article 39 has today (29 May) submitted an FOI request to Cafcass to ascertain how well the IRO/Cafcass legal safety net is working for children. Once we obtain basic data, we will seek further information about the types of cases referred to the organisation by IROs, and what happens as a result.

Article 39’s preliminary FOI request to Cafcass, 29 May 2019

UPDATE: At the end of June 2019, we received data from Cafcass which shows:

– Just 20 referrals were made to Cafcass from independent reviewing officers in the 10 years between 2009/10 and 2018/19.

– Cafcass has not initiated any legal proceedings, including Human Rights Act claims, on behalf of a child in care following a referral from an independent reviewing officer.