Children’s rights legal digest – February 2021

In December 2020, the Local Government and Social Care Ombudsman (LGSCO) found a local authority at fault for failing to properly assess, plan and support a 15-year-old boy, S, in preparation for and following his release from custody. Inadequate and delayed assessment and planning prevented S’s early release, which unnecessarily extended his time in custody, disrupted his education and created stress and uncertainty for S and his family during a very difficult time of resettling in the community after his detention.

Local authority at fault for failing to support a 15-year-old boy in custody as a ‘child in need’

S received a custodial sentence in October 2017 at the age of 15. He was eligible for early release in late April 2018. There were no concerns about early release, but it was contingent on him having a support plan in place and suitable accommodation. Prior to and during his time in custody, S remained in the care of his family. While his family were keen for S to be reunited with them upon release, there were risks associated with S’s return to his previous home address and the terms of S’s license prevented this. Because the council failed to assess S’s needs in time to put a support plan in place, including failing to provide even temporary, suitable accommodation for S, he was unable to benefit from early release and remained in custody until his ‘automatic release’ in early September 2018 – an extra four months in custody.

Supported by the Howard League for Penal Reform, the boy complained to the LGSCO* that the local authority failed to support him as a child in need under the Children Act 1989, which included failure to conduct a timely assessment of his needs and failure to provide suitable accommodation and education upon release from custody.

The LGSCO’s investigation found that the local authority did not start planning for S’s release until mid-April 2018, just 10 days before the date of planned early release, which is when S’s representative threatened legal action unless S’s needs were assessed under Section 17 of the Children Act 1989 (provision of services for children in need).

The Children Act 1989 defines a child in need (see Section 17(10)) as:

a) a child who is unlikely to achieve or maintain a reasonable standard of health or development without the provision of services by a local authority;
b) a child whose health or development is likely to be significantly or further impaired without the provision of such services; or
c) a child who is disabled.

Despite the local authority identifying possible support scenarios for S, there was not enough time left to enable S’s early release. Even after that, planning and support were not timely enough and S was unable to return to full-time education upon his eventual release from custody in September 2018.

The LGSCO highlighted a number of missed opportunities and set out what should have happened to support S:

  • The local authority should have assessed S’s needs much sooner in order to start planning and putting in place the support needed by S. This could have started in the form of a detention placement plan (DPP) when S was first remanded.

(It is important to remember that children who are remanded to youth detention accommodation automatically become looked after – see Section 104(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).

  • When considering the need to provide S with suitable accommodation after his release, support under Section 17 of the Children Act 1989 would have enabled S and his family, who were keen to be reunited after his release, to live together. Had this proved impossible or too difficult to achieve in the time available prior to S’s release, the option to accommodate S under Section 20 of the Children Act 1989 should have been considered.
  • The local authority should have also identified suitable, full time education for S. The only offer made to S was home tuition for two hours a day, with no evidence of such an arrangement being suitable for S who had been in full-time education while in custody.  

The LGSCO found that the local authority was at fault because it failed to assess the child’s needs in a timely manner and develop a plan that would enable, firstly, his early release from custody and secondly, his needs in relation to accommodation, support and education to be met as part of his return to his family and community. 

While the local authority agreed to apologise to S and pay compensation to remedy the injustice caused to him, it is important to stress the preventable harm he suffered, i.e. spending four more months in custody and serious disruption to his education. Advocates who support children in need are in a unique place to quickly challenge delays in fulfilling legal duties, so as to try and prevent such harm.  

We summarise the duties of local authorities along with their sources in law in the box below. 

You can read the LGSCO’s full decision here.

*To find out more about the role and remit of the Local Government and Social Care Ombudsman, read the bottom part of the July 2020 issue of our children’s rights legal digest. You can also learn more on the LGSCO website.

Local authorities’ duties towards children in need

The rights of children who are ‘in need’ and the corresponding duties and powers of local authorities are set out in the Children Act 1989.

Section 17 defines the criteria that determine whether a child is ‘in need’ and places a general duty on local authorities to safeguard and promote the welfare of children in need, and to promote their upbringing by their families. The services provided by a local authority under Section 17 can include providing accommodation and assistance in kind or in cash, and assistance can entail provision of services to the child’s family if it is provided with a view to safeguarding or promoting the child’s welfare. Local authorities must also facilitate the provision of relevant services by others, including voluntary organisations.

Section 17(4A) places a duty on local authorities to ascertain the child’s wishes and feelings and give them due consideration before determining what (if any) services to provide.

The specific duties and powers of local authorities in the context of supporting children in need are set out in Schedule 2, Part 1 of the Children Act 1989. They include:

* The duty to take reasonable steps to identify children in need within their area.
* The duty to publish information about services for children in need and their families.
* The duty to take reasonable steps to reduce the need for care, supervision or criminal proceedings against children, and to avoid the need for children to be placed in secure accommodation.
* The duty to provide assistance to prevent ill-treatment or neglect of a child in need.
* The duty to enable children in need who live apart from their families to live with them or to see and spend time with them.

Advocates will also find statutory guidance helpful in understanding relevant statutory requirements, including assessment timescales.

Finally, it is important to remember that all functions under Part 3 of the Children Act 1989 (support for children and families provided by local authorities in England), including services for children in need, are subject to the statutory representations (including complaints) procedure (Section 26(3) and 26(3A) of the Children Act 1989). Local authorities are under a legal duty to ensure advocacy services are available to children making or preparing to make a representation, including a complaint (Section 26(A) of the Children Act 1989).