The Department for Education has extended its deadline for care experienced people to share their views and experiences of unregulated accommodation. The new deadline is 23 June 2020.
Article 39 strongly encourages those who have ever lived in unregulated accommodation to contribute to this consultation. We have worked with others in our #KeepCaringTo18 campaign steering group and the Department for Education to write the summary below. You can also download it here.
Article 39 submitted its own response to the government’s consultation on 8 April 2020. More here.
The Department for Education is undertaking a consultation on unregulated provision for children in care and care leavers. The original deadline was 8 April 2020. Since we are in the middle of a global pandemic, 91 organisations and individuals wrote to Children’s Minister Vicky Ford MP asking her to postpone the consultation. The consultation was then extended to 3 June 2020. [UPDATE: The new deadline for care experienced people is 23 June 2020].
Article 39 submitted our response below on 8 April. The Department for Education’s consultation page is here.
Our consultation response (submitted 8 April 2020)
Article 39 is deeply concerned that those most affected by the policy proposals in this consultation document – children in care and care leavers – have not yet been consulted.
We welcome the 8-week extension announced today and urge the Department for Education (DfE) to use this period to meaningfully inform and consult children and young people about the proposals. If this proves impossible given the unprecedented health crisis from the Covid-19 global pandemic, we ask that you postpone the consultation and take interim protective measures – for example, by encouraging local authorities to use the children’s homes quality standards in their procurement processes and offering financial support to enable young people to stay in care placements where they are settled and well cared for beyond the age of 18 or 21.
This consultation directly affects the human and legal rights of children in care and care leavers. BBC Newsnight put children and young people’s feelings and perspectives at the heart of its investigations. We hope the government will do the same.
Two documents were published on the day of the consultation launch – a DfE data analysis and a research report following “in-depth telephone interviews” with Ofsted and local authorities. The DfE has not published research on the views and experiences of children in care and care leavers, and the Task and Finish Group was similarly lacking the knowledge and expertise of care experienced people (we understand it is not currently meeting). The Education Secretary has failed to answer a Parliamentary Question asked on 24 March on whether the DfE has undertaken an equality impact assessment and plans to publish this.
Without the meaningful participation of children and young people, we believe the policy development process will be fundamentally flawed and not in compliance with legal obligations in the Human Rights Act, the Equality Act and the UN Convention on the Rights of the Child (UNCRC).
1) Please set out any positive and/or negative impact you think this change would bring about, and the areas we should consider to ensure it is effectively implemented.
Banning the use of independent and semi-independent accommodation for children under the age of 16 means they would receive care. This would be a very positive step forward. If living in a children’s home, they would be in a setting where care is required to the following legal standard (in addition to the other children’s homes quality standards – see Annex).
Children’s homes quality standards: The quality and purpose of care standard
6.—(1) The quality and purpose of care standard is that children receive care from staff who— (a)understand the children’s home’s overall aims and the outcomes it seeks to achieve for children; (b)use this understanding to deliver care that meets children’s needs and supports them to fulfil their potential.
(2) In particular, the standard in paragraph (1) requires the registered person to— (a)understand and apply the home’s statement of purpose; (b)ensure that staff— (i)understand and apply the home’s statement of purpose; (ii)protect and promote each child’s welfare; (iii)treat each child with dignity and respect; (iv)provide personalised care that meets each child’s needs, as recorded in the child’s relevant plans, taking account of the child’s background; (v)help each child to understand and manage the impact of any experience of abuse or neglect; (vi)help each child to develop resilience and skills that prepare the child to return home, to live in a new placement or to live independently as an adult; (vii)provide to children living in the home the physical necessities they need in order to live there comfortably; (viii)provide to children personal items that are appropriate for their age and understanding; and (ix)make decisions about the day-to-day arrangements for each child, in accordance with the child’s relevant plans, which give the child an appropriate degree of freedom and choice; (c)ensure that the premises used for the purposes of the home are designed and furnished so as to— (i)meet the needs of each child; and (ii)enable each child to participate in the daily life of the home; and (d)ensure that any care that is arranged or provided for a child that— (i)relates to the child’s development (within the meaning of section 17(11) of the Children Act 1989) or health; and (ii)is not arranged or provided as part of the health service continued under section 1(1) of the National Health Service Act 2006, satisfies the conditions in paragraph (3).
(3) The conditions are— (a)that the care is approved, and kept under review throughout its duration, by the placing authority; (b)that the care meets the child’s needs; (c)that the care is delivered by a person who— (i)has the experience, knowledge and skills to deliver that care; and (ii)is under the supervision of a person who is appropriately skilled and qualified to supervise that care; and (d)that the registered person keeps the child’s general medical practitioner informed, as necessary, about the progress of the care throughout its duration.
Banning the use of independent and semi-independent settings would benefit children like 17 year-old Kieran, who was in unregulated provision from the age of 15. He told BBC Newsnight about being kidnapped, put into the boot of a car and taken to a location in the countryside where he was ‘waterboarded’, stripped and beaten. He said that his local authority did not arrange for him to attend his mum’s funeral, and he later had suicidal thoughts:
The care system, social services and government made me just feel like I didn’t want to be around no more … I wanted to see my mum for the last time and get out of this world where no-one cares about me. (November 2019 programme; also reported here)
While a very positive move for children aged 15 and under, this partial ban risks continuing the serious neglect of 16 and 17 year-olds. It is deeply regrettable that the DfE has identified more than 6,000 children in independent and semi-independent accommodation but is only proposing to guarantee care to fewer than 100.
A policy which protects only looked after children under the age of 16 from being placed in non-care settings risks breaching the Human Rights Act and the Equality Act, and is not in conformity with UNCRC obligations. The government’s own data shows that children and young people from black and minority ethnic communities are disproportionately placed in independent and semi-independent accommodation. It is more often teenagers who have experienced abuse, trauma and/or exploitation over many years who end up in unregulated settings.
We consider the partial ban on non-care placements to be discriminatory and not consistent with local authorities duties under the Children Act 1989. All children need, and have the right to be, loved, nurtured and cared for. As children’s capacities evolve, parents and caregivers encourage and support greater autonomy. This goes hand-in-hand with continuing care.
Denying teenagers care is not a legitimate ‘stepping stone’ to adulthood. This is not the way the rest of our society is organised, and it is not what happens in foster care, where children can remain until the age of 21. Children must legally stay in education or training until the age of 18. The DfE will be aware that even child prisons are expected to provide care to 16 and 17 year-olds (though they seldom do).
We appreciate that teenagers in care often push for independence but we contend that this is commonly a reaction to not feeling cared for or respected and/or a lack of understanding that being more independent and receiving care are not mutually exclusive. Young people can find out too late that independence actually equates to isolation, loneliness and a chronic sense of abandonment.
Article 39 runs a network of advocates working with children and young people in social care and other settings. Through this network, we heard about a young person, aged 17½ years, who lives in a self-contained flat in a large house where she receives two hours of support three times a week (six hours in total). She said it feels “weird” living in a set of flats with adults she doesn’t know. When asked if she feels safe, she said “it’s alright”. She said she feels like she has just been given somewhere to live, rather than being cared for, and that services either care too much or don’t care at all: “they are either on your back all the time or not there at all”. This young person has previously talked about being independent because she has learned how to be out of necessity.
The national standards being proposed for independent and semi-independent accommodation leave thousands of ‘looked after’ 16 and 17 year-olds without care and, as currently drafted, are markedly inferior to children’s homes quality standards.
We are aware that many 16 and 17 year-olds are provided accommodation by local authorities under Section 17 of the Children Act 1989, instead of Section 20, despite the Southwark judgment. This policy proposal is likely to make this situation worse, because it entrenches the belief that 16 and 17 year-olds can manage on their own.
In the absence of DfE research on the views and experiences of children in care and care leavers in supported accommodation, below we highlight findings from BBC Newsnight’s investigations into ‘Britain’s Hidden Children’s Homes’:
The murder of 17 year-old Lance Walker in supported accommodation in 2016 raised the lack of information-sharing between local authorities and the paucity of provision for very vulnerable young people (see Ealing Safeguarding Adults Board Executive Summary Management Case Review). This consultation document addresses neither of these chronic issues. (July 2019 programme)
A young woman reported having to use her coat and blanket as a duvet and being “freezing cold” in supported accommodation. She was moved from a foster home, where she was happy, to accommodation late at night. Her bedroom was downstairs; there were no curtains and no bedsheets. She felt desperate and very alone. (May 2019 programme)
A young woman felt “dumped and alone” in supported accommodation; she became depressed and anxious for the first time. Other young people in her accommodation used drugs and drank alcohol in their rooms; this young woman had never experienced this before and found it all “a massive shock”. (May 2019 programme)
The Children’s Commissioner has dealt with cases of children in unregulated accommodation without any bedroom furniture apart from a mattress on the floor, and having to share toilets with adults they don’t know (July 2019 programme)
Young people told Newsnight of violence from staff and from other young people. They spoke of running away many times and of serious sexual and criminal exploitation.
We believe that the vast majority of the children whose experiences were broadcast by Newsnight were aged 16 and over. We want all children in care, including those aged 16 and 17, to receive care.
2) Please share your examples of good practice [of dealing with emergency placements] here.
We urge the DfE to consult care experienced people about their experiences of being moved in an emergency, and what would have helped them feel safe and cared for.
3) Do you agree that we should introduce a new requirement for local authorities to consult with relevant local police forces when they place a child out of area in independent and/or semi-independent provision?
We believe that this is unnecessary. Local authorities are already required by The Care Planning, Placement and Case Review (England) Regulations 2010 to ensure out of area placements are the most appropriate for the child and consistent with their care plan. Responsible local authorities should already be gathering as much information as possible about prospective placements, including from the police.
All residential settings should register and be inspected as children’s homes. Regulation 12 of The Children’s Homes (England) Regulations 2015 already requires that the location of homes allow for children to be effectively safeguarded, and the DfE has published advice for providers on undertaking location assessments (July 2014).
4) Please explain your answer, including any positive and/or negative impact you think this change would bring about.
Banning independent and semi-independent accommodation only for under 16 year-olds sets in place a two-tier residential system:
Children’s homes which are registered and inspected by Ofsted, where providers must meet quality standards and provide children with care and accommodation up to and beyond the age of 18; and
Supported accommodation where children are not provided with care and providers follow rudimentary standards.
Introducing a specific new requirement on local authorities to consult the police is predicated on vulnerable children continuing to be placed in large numbers outside their home areas. This is generally not in the best interests of children. It causes dislocation and takes children away from their families and friendships, their places of education and their wider communities – making it difficult for young people to settle when they return after leaving care. It makes the safeguarding duties of local authorities, including social worker visits, more difficult to fulfil. Placing children outside their area should only occur when it is in the best interests of the child (with the child’s wishes and feelings given due consideration).
As stated above, local authorities should already be gathering as much information as possible about prospective placements, including from the police.
This proposal will do nothing to tackle the severe shortage of suitable placements for looked after children and young people, including in secure children’s homes.
Even with a specific duty to consult the police, local authorities will continue to have fragmented intelligence about placements outside their locality.
If local police forces have serious concerns about independent and/or semi-independent provision, wider safeguarding action is necessary. Concerns should be reported to Ofsted, which can then take the necessary remedial action.
Introducing a system whereby local authorities make enquiries with the police before placing an individual child out of area runs the risk of care planning decisions effectively being delegated to the police. It may protect that individual child from unsafe and unsuitable accommodation (though probably not in the absence of a national strategy to remedy the shortage of placements for highly vulnerable teenagers). But it would not trigger a wider investigation into the accommodation, or lead to closure of premises when this is necessary to safeguard and promote the welfare of children.
All residential settings should be required to register with Ofsted and be inspected as children’s homes. Requiring local authorities to consult with the police is no substitute for registration and inspection under the Care Standards Act 2000.
5) Do you agree that we should amend legislation to define ‘care’, in order to provide clarity on what amounts to ‘other arrangements’ i.e. ‘unregulated’ provision, and what constitutes ‘unregistered’ provision?
6) Please explain your answer, including any positive and/or negative impact you think this change would bring about.
Care must be provided to all children in care and care leavers. Developing a legal definition of care for the purpose of legitimising its absence in ‘other arrangements’ is not legally or professionally justified.
Article 20 of the UNCRC entitles all children separated from their families to special protection and assistance from the state.
Section 22 of the Children Act 1989 provides the same overarching duty in respect of all looked after children (whether they are the subject of a care order or accommodated) – to safeguard and promote their welfare. This continues to apply when a child is placed in ‘other arrangements’.
Legally defining and legitimising the absence of care for children in care would be a seriously retrograde step. We do not believe this would be compatible with Articles 8 and 14 of the European Convention on Human Rights / Human Rights Act.
As outlined above, care is already defined in the children’s homes quality standards (The quality and purpose of care standard). Schedule 1 of The Care Planning, Placement and Case Review (England) Regulations 2010 sets out what must be included in the child’s care plan. Furthermore, Working Together to Safeguard Children defines neglect as:
The persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development … [Neglect] may involve a parent or carer failing to: a. provide adequate food, clothing and shelter (including exclusion from home or abandonment) b. protect a child from physical and emotional harm or danger c. ensure adequate supervision (including the use of inadequate care-givers) d. ensure access to appropriate medical care or treatment.
It may also include neglect of, or unresponsiveness to, a child’s basic emotional needs.
7) Do you have any suggestions for areas where we might go further? In making your suggestions, please provide any supporting evidence or information you have.
We propose modifications to the children’s homes quality standards for establishments which wholly or mainly provide care and accommodation to children aged 16 and over. This would ensure children and young people receive care in these settings, while also providing for their increasing autonomy / evolving capacities – in accordance with Article 5 of the UNCRC.
Modifications already exist in the children’s homes regulations for short breaks and secure children’s homes.
We have previously shared our illustrative modifications with the DfE, and attach these as an Annex again. We strongly recommend consultation with care experienced people (including adults who left care some time ago and can speak with the benefit of hindsight) on how the quality standards can reflect their need for growing autonomy. Foster carers and children’s homes providers will additionally have expertise to share on looking after teenagers.
When it became evident that the DfE was not going to consult children and young people about its plans for the care system, we put out a call to advocates and other professionals in our networks to share anonymous case studies of children and young people in unregulated provision (3 April). In less than a week, we elicited the following:
A teenage girl’s baby was removed from her after a “shocking” lack of support. Staff threatened her every day with the loss of her baby. They continually criticised her. An experienced worker told us the girl would have thrived in a family setting and that “all she needed was a Mum-like figure”.
A 16 year-old girl was moved from her residential home into semi-independent living. The two placements were around 20 miles apart, and many miles from her family who are very important to her. The support given to the girl whilst in residential care was of good standard and her behaviour and mental health improved significantly. She had activities, 1-1 time, clothing allowance, spending money and meals prepared for her. When she was moved to semi-independent living, the support decreased to virtually nothing in her eyes and she was spending all of her time at her mum’s house because she felt lonely. The young person’s opinion was that no one helped her adjust to her semi-independent placement and that there was no middle ground on which bits of support were taken away gradually. Eventually the semi-independent placement broke down as the young person began to break more and more rules and she is now in another residential placement which is in her home town.
One child in supported accommodation was refused bedsheets and had to sleep on the sofa.
We were told of accommodation not being safe for a care leaver and their young children (extra resources were required, which were either not provided or there was a delay in providing them).
We heard of young people being placed in accommodation in an area far from their place of education or work, or out of reach of the health services that they are currently engaging with (mental health services and outpatient hospital services).
We were told of problems with accommodation not being of a suitable living standard, e.g. unhygienic, poorly decorated, without basic items causing a delay in a young person having access to white goods and basic furniture.
Examples were given of care-experienced adults being expected to keep the accommodation in a tidy and clean state (being checked on twice a day in one case) when the accommodation was not given to them in this state.
We heard of managers refusing children access to advocacy in supported accommodation.
One advocacy service has helped challenge the threat of eviction for ‘antisocial behaviour’. We were told “The lack of transparency and the intimidation sometimes used towards vulnerable young people by housing officers has been shocking”. Young people have reported that the presence of advocates has made a difference to how housing providers treat them.
Another service has supported two young people, both aged 17, who live in the same house and raised concerns about both the practical care environment and support they have been provided. The house and its appliances are in a very poor state of repair and there are numerous concerns about staffing.
An advocate told us that poor accommodation “is having a significant impact on the mental health of the young people and adults that we work with” and concluded: “For me, it comes back to the question to the local authority as the corporate parent that, if this was your son or daughter, would you ask them to live in accommodation like this? I suspect the answer would be ‘no’”.
Before taking any further steps, we urge the DfE to review the two reports from the Care Experienced Conference held in Liverpool in April 2019. They speak directly to this consultation, though their recommendations have clearly not influenced the DfE’s proposals. For example, the Care Experienced Conference made this recommendation:
We need more love in the care system, including displays of positive physical affection. We want to feel like other children and enjoy the spontaneity of ordinary life – there is too much bureaucracy in day-to-day life. Sometimes our care feels more like ‘warehousing’ and we can feel [as if] we are being ‘passed around’. [Emphasis in original].
The Research and Academic Group Report summarises the workshops that took place at the conference. It is packed with reflections relevant to this consultation. One of its observations stresses the need for genuine consultation:
Moving forward, there was an agreement throughout the sessions that the collective voice and experiences of care experienced people of all ages should be mobilised. It was felt that the voices and experiences of CEP needed to be respected, not disregarded, by all, including professionals, decisions makers and politicians.
Other relevant research includes the recently released report from the Victims Commissioner, ‘Sowing the seeds: Children’s experience of domestic abuse and criminality’ (2020) and the All-Party Parliamentary Group for Runaway and Missing Children and Adults’ reports ‘No place at home’ (2019) and ‘It is good when someone cares’ (2016).
8) Please set out any positive and/or negative impact the introduction of new national standards would have.
The proposed national standards would have an extremely negative impact, because they deliberately omit care and are in other ways inferior to existing children’s homes quality standards.
More fundamentally, national standards for independent and semi-independent accommodation would give legitimacy to a leaving care age of 16 for this very vulnerable group of teenagers. This goes against existing policy and decades of research and testimony from care experienced adults.
The Children and Social Work Act 2017 extended support to care leavers to age 25, a very welcome step. Statutory guidance (2018) explains:
The objective of this new duty is to protect care leavers aged 21 up to age 25 from feeling isolated, not having anybody to turn to for advice or support, or continuing to struggle with the transition to adult life. Local authorities retain a role as corporate parent to care leavers up to age 25 and should support them in a way that is consistent with the way in which birth parents support their own children as they grow up, helping them transition to independent life.
We urge the government to encourage and assist local authorities to apply a consistent minimum leaving care age of at least 18.
One unintended consequence of a second set of residential standards could be to discourage potential providers from establishing new children’s homes, at a time when increased capacity is desperately required. Providers could opt instead to follow the ‘light touch’ standards which will inevitably be cheaper and easier to implement.
9) Please set out any other areas you think should be covered in the new national standards.
We do not support new national standards. They are unnecessary and seriously risk formalising a two-tier residential system.
We propose modifications to the children’s homes quality standards for establishments which wholly or mainly provide care and accommodation to children aged 16 and over.
10) How effectively do you think either option would raise the quality of independent and semi-independent provision?
We consider that Ofsted registration and inspection would substantially raise the quality of what is currently independent and semi-independent provision.
11) Please explain your answer, including why the options would be particularly effective or ineffective.
A universal set of quality standards ensures the same legal protection for all children in residential settings (children’s homes). It provides equal entitlements to care, protection and support.
Returning to local authorities inspecting some children’s residential settings (option 1) and the independent regulator, Ofsted, continuing to inspect the majority of children’s care settings, would not be in the interests of children. It would take us back to the era when small children’s homes did not have to register; a position which was remedied by the Care Standards Act 2000, which followed the Burgner Report (1996) and Sir William Utting’s Children’s Safeguards Review (1997).
Local authorities already have extensive duties towards individual children in care and care leavers – this consultation would not be necessary were these duties being fulfilled.
12) Please set out the consequences and implementation challenges that should be considered when introducing new standards?
We do not support the development of new national standards.
We propose modifications to the children’s homes quality standards for establishments which wholly or mainly provide care and accommodation to children aged 16 and over. As well as being consulted on the detail of the standards, we further suggest that young people are asked about a new description for these 16+ establishments. This approach would be similar to short breaks, which has its own terminology but still sits within the children’s homes regulations.
13) Do you agree that we should clarify statutory guidance, to ensure that IROs undertake visits to a placement to be able to assess whether it is meeting the needs of the child or young person and that they must send a report to the local authority to inform their decision making process about next steps for the individual child or young person?
14) Please explain your answer
The IRO role is not to assess the suitability of a placement but to monitor the local authority’s performance in relation to the individual child; participate in any review of the child’s care; and ensure the child’s wishes and feelings are given due consideration by the local authority (Section 25B Children Act 1989).
The IRO additionally must ensure the child has information about their rights; they must inform the child about their right to an advocate; and, when necessary assist the child to obtain legal advice and representation when they wish to take legal proceedings under the Children Act 1989 (Regulation 45(1)-(2), The Care Planning, Placement and Case Review (England) Regulations 2010).
IROs must consider a referral to Cafcass when a local authority has failed:
to prepare a child’s care plan;
to review a child’s care;
to “effectively implement” a decision from a child’s review; or
is in material breach of any other duties it has towards a child in care.
and they have drawn attention of the failure or breach to a senior person in the local authority but the matter “has not been addressed to the satisfaction of the IRO within a reasonable period of time” (Regulation 45(3), The Care Planning, Placement and Case Review (England) Regulations 2010).
Cafcass is, 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).
At the end of June 2019, Article 39 received data from Cafcass (following a freedom of information request) which showed:
Just 20 referrals were made to Cafcass from IROs in the 10 years between 2009/10 and 2018/19.
Cafcass had not initiated any legal proceedings, including Human Rights Act claims, on behalf of a child in care following a referral from an IRO.
It is therefore important to stress that there is already a legal mechanism in place – through IRO referrals to Cafcass, and subsequent action by Cafcass – to challenge the scandalous neglect of children which has been exposed by BBC Newsnight and others. We are aware of work being undertaken by IRO organisations, the DfE and others and suggest that specific guidance be produced on IROs and Cafcass challenging local authority breaches of statutory duties.
We further highlight local authorities statutory duty to visit looked after children, as part of their arrangements for supervising the child’s welfare (Regulation 28, The Care Planning, Placement and Case Review (England) Regulations 2010).
Regulation 30, The Care Planning, Placement and Case Review (England) Regulations 2010 requires that:
Where, as the result of a visit … [the local authority’s representative’s] assessment is that C’s welfare is not adequately safeguarded and promoted by the placement, the responsible authority must review C’s case …
To ensure existing duties surrounding statutory visits are properly understood and implemented, we suggest that a further duty could be added to Regulation 29 (conduct of visits), making it a requirement to record in writing how the child’s placement is meeting their needs and the child’s wishes and feelings in respect of the placement.
15) Do you agree that we should legislate to give Ofsted powers to issue enforcement notices to illegal unregistered providers before proceeding with prosecutions?
16) Please explain your answer.
Children in care and care leavers are among the most vulnerable in society. The Care Quality Commission has extensive enforcement powers in respect of adult social care. We support Ofsted having greater enforcement powers though we would also like to see potential providers offered positive assistance and support in establishing registered children’s homes. Ofsted would inevitably need extra capacity for this, in addition to increased funding to register and inspect the new children’s homes for teenagers aged 16 and over we propose.
We cannot stress enough that the future publication by Ofsted of enforcement notices, to alert local authorities not to use the providers listed, will be no substitute for a national strategy and dedicated central government funding for children’s residential care.
ANNEX: Modifying Children’s Homes Standards for those aged 16 and over
Engaging with the wider system to ensure children’s needs are met 5. In meeting the quality standards, the registered person must, and must ensure that staff— (a)seek to involve each child’s placing authority effectively in the child’s care, in accordance with the child’s relevant plans; (b)seek to secure the input and services required to meet each child’s needs; (c)if the registered person considers, or staff consider, a placing authority’s or a relevant person’s performance or response to be inadequate in relation to their role, challenge the placing authority or the relevant person to seek to ensure that each child’s needs are met in accordance with the child’s relevant plans; and (d)seek to develop and maintain effective professional relationships with such persons, bodies or organisations as the registered person considers appropriate having regard to the range of needs of children for whom it is intended that the children’s home is to provide care and accommodation.
Regulation 5(b) does not apply to short breaks. No modifications suggested for wholly 16+ establishments.
The quality and purpose of care standard 6.—(1) The quality and purpose of care standard is that children receive care from staff who— (a)understand the children’s home’s overall aims and the outcomes it seeks to achieve for children; (b)use this understanding to deliver care that meets children’s needs and supports them to fulfil their potential. (2) In particular, the standard in paragraph (1) requires the registered person to— (a)understand and apply the home’s statement of purpose; (b)ensure that staff— (i)understand and apply the home’s statement of purpose; (ii)protect and promote each child’s welfare; (iii)treat each child with dignity and respect; (iv)provide personalised care that meets each child’s needs, as recorded in the child’s relevant plans, taking account of the child’s background; (v)help each child to understand and manage the impact of any experience of abuse or neglect; (vi)help each child to develop resilience and skills that prepare the child to return home, to live in a new placement or to live independently as an adult; (vii)provide to children living in the home the physical necessities they need in order to live there comfortably; (viii)provide to children personal items that are appropriate for their age and understanding; and (ix)make decisions about the day-to-day arrangements for each child, in accordance with the child’s relevant plans, which give the child an appropriate degree of freedom and choice; (c)ensure that the premises used for the purposes of the home are designed and furnished so as to— (i)meet the needs of each child; and (ii)enable each child to participate in the daily life of the home; and (d)ensure that any care that is arranged or provided for a child that [meets certain conditions].
Regulation 6(2)(b)(vi) is modified for short breaks.
6(1)(b) could potentially be modified to: b)use this understanding to deliver care that meets children’s needs and supports them to fulfil their potential and enjoy their growing autonomy. 6(2)(iv) could potentially be modified to: (iv)provide personalised care that meets each child’s needs, as recorded in the child’s relevant plans, taking account of the child’s background and their growing autonomy;
6(2)(ix) could potentially be modified to: (ix)provide guidance and assistance so the child can make day-to-day decisions; 6(2)(c) could potentially be modified to: (c)ensure that children in the home have choice and control over the design and furnishing of communal areas and their own private space so as the premises—
The children’s views, wishes and feelings standard 7.—(1) The children’s views, wishes and feelings standard is that children receive care from staff who— (a)develop positive relationships with them; (b)engage with them; and (c)take their views, wishes and feelings into account in relation to matters affecting the children’s care and welfare and their lives. (2) In particular, the standard in paragraph (1) requires the registered person to— (a)ensure that staff— (i)ascertain and consider each child’s views, wishes and feelings, and balance these against what they judge to be in the child’s best interests when making decisions about the child’s care and welfare; (ii)help each child to express views, wishes and feelings; (iii)help each child to understand how the child’s views, wishes and feelings have been taken into account and give the child reasons for decisions in relation to the child; (iv)regularly consult children, and seek their feedback, about the quality of the home’s care; (v)help each child to understand how the child’s privacy will be respected and the circumstances when it may have to be limited; (vi)help each child to prepare for any review of the child’s relevant plans and to make the child’s views, wishes and feelings known for the purposes of that review; and (vii)make each child aware of and, if necessary, remind them of each of the matters in sub-paragraph (d)(i) to (iii); (b)ensure that each child— (i)is enabled to provide feedback to, and raise issues with, a relevant person about the support and services that the child receives; (ii)has access to the home’s children’s guide, and the home’s complaints procedure, when the child’s placement in the home is agreed and throughout the child’s stay in the home; and (iii)is given appropriate advocacy support; (c)keep the children’s guide and the home’s complaints procedure under review and seek children’s comments before revising either document; (d)ensure that an explanation is given to each child as soon as reasonably practicable after the child’s arrival about— (i)the children’s guide; (ii)how to make a complaint or representations in relation to the home or the care the child receives and how any such complaint or representations will be dealt with; and (iii)what advocacy support or services are available to the child, how the child may access that support or those services and any entitlement the child may have to independent advocacy provision; and (e)ensure that the views of each relevant person are taken into account, so far as reasonably practicable, before making a decision about the care or welfare of a child.
7(1) could potentially be modified to: The children’s views, wishes and feelings standard is that children receive care from staff who— (a)develop positive relationships with them; (b) respect their growing autonomy; ( )engage with them; and ( )take their views, wishes and feelings into account in relation to matters affecting the children’s care and welfare and their lives.
The education standard 8.—(1) The education standard is that children make measurable progress towards achieving their educational potential and are helped to do so. (2) In particular, the standard in paragraph (1) requires the registered person to ensure— (a)that staff— (i)help each child to achieve the child’s education and training targets, as recorded in the child’s relevant plans; (ii)support each child’s learning and development, including helping the child to develop independent study skills and, where appropriate, helping the child to complete independent study; (iii)understand the barriers to learning that each child may face and take appropriate action to help the child to overcome any such barriers; (iv)help each child to understand the importance and value of education, learning, training and employment; (v)promote opportunities for each child to learn informally; (vi)maintain regular contact with each child’s education and training provider, including engaging with the provider and the placing authority to support the child’s education and training and to maximise the child’s achievement; (vii)raise any need for further assessment or specialist provision in relation to a child with the child’s education or training provider and the child’s placing authority; (viii)help a child who is excluded from school, or who is of compulsory school age but not attending school, to access educational and training support throughout the period of exclusion or non-attendance and to return to school as soon as possible; (ix)help each child who is above compulsory school age to participate in further education, training or employment and to prepare for future care, education or employment; (x)help each child to attend education or training in accordance with the expectations in the child’s relevant plans; and (b)that each child has access to appropriate equipment, facilities and resources to support the child’s learning.
Regulation 8(2)(a)(vi) and (viii) do not apply to short breaks. No modifications suggested for wholly 16+ establishments.
The enjoyment and achievement standard 9.—(1) The enjoyment and achievement standard is that children take part in and benefit from a variety of activities that meet their needs and develop and reflect their creative, cultural, intellectual, physical and social interests and skills. (2) In particular, the standard in paragraph (1) requires the registered person to ensure— (a)that staff help each child to— (i)develop the child’s interests and hobbies; (ii)participate in activities that the child enjoys and which meet and expand the child’s interests and preferences; and (iii)make a positive contribution to the home and the wider community; and (b)that each child has access to a range of activities that enable the child to pursue the child’s interests and hobbies.
Regulation 9(2)(a)(iii) is modified for secure children’s homes.
9(1) could potentially be modified to: The enjoyment and achievement standard is that children are encouraged to take part in and benefit from a variety of activities that meet their needs and develop and reflect their creative, cultural, intellectual, physical and social relationships, interests and skills.
The health and well-being standard 10.—(1) The health and well-being standard is that— (a)the health and well-being needs of children are met; (b)children receive advice, services and support in relation to their health and well-being; and (c)children are helped to lead healthy lifestyles. (2) In particular, the standard in paragraph (1) requires the registered person to ensure— (a)that staff help each child to— (i)achieve the health and well-being outcomes that are recorded in the child’s relevant plans; (ii)understand the child’s health and well-being needs and the options that are available in relation to the child’s health and well-being, in a way that is appropriate to the child’s age and understanding; (iii)take part in activities, and attend any appointments, for the purpose of meeting the child’s health and well-being needs; and (iv)understand and develop skills to promote the child’s well-being; (b)that each child is registered as a patient with a general medical practitioner and a registered dental practitioner; and (c)that each child has access to such dental, medical, nursing, psychiatric and psychological advice, treatment and other services as the child may require.
Regulation 10(2)(b) and (c) do not apply to short breaks.
10(1) could potentially be modified to: The health and well-being standard is that— (a)the health and well-being needs of children are promoted; (b)children receive advice, services and support in relation to their health and well-being; and (c)children are encouraged to lead healthy lifestyles.
The positive relationships standard 11.—(1) The positive relationships standard is that children are helped to develop, and to benefit from, relationships based on— (a)mutual respect and trust; (b)an understanding about acceptable behaviour; and (c)positive responses to other children and adults. (2) In particular, the standard in paragraph (1) requires the registered person to ensure— (a)that staff— (i)meet each child’s behavioural and emotional needs, as set out in the child’s relevant plans; (ii)help each child to develop socially aware behaviour; (iii)encourage each child to take responsibility for the child’s behaviour, in accordance with the child’s age and understanding; (iv)help each child to develop and practise skills to resolve conflicts positively and without harm to anyone; (v)communicate to each child expectations about the child’s behaviour and ensure that the child understands those expectations in accordance with the child’s age and understanding; (vi)help each child to understand, in a way that is appropriate according to the child’s age and understanding, personal, sexual and social relationships, and how those relationships can be supportive or harmful; (vii)help each child to develop the understanding and skills to recognise or withdraw from a damaging, exploitative or harmful relationship; (viii)strive to gain each child’s respect and trust; (ix)understand how children’s previous experiences and present emotions can be communicated through behaviour and have the competence and skills to interpret these and develop positive relationships with children; (x)are provided with supervision and support to enable them to understand and manage their own feelings and responses to the behaviour and emotions of children, and to help children to do the same; (xi)de-escalate confrontations with or between children, or potentially violent behaviour by children; (xii)understand and communicate to children that bullying is unacceptable; and (xiii)have the skills to recognise incidents or indications of bullying and how to deal with them; and (b)that each child is encouraged to build and maintain positive relationships with others.
11(1) could potentially be modified to: The positive relationships standard is that children are encouraged to develop, and to benefit from, relationships based on— (a)mutual respect and trust; (b)an understanding about acceptable behaviour; and (c)positive responses to other children and adults. 9(2)(a) could potentially be modified to: (a)that staff— (i)support each child’s behavioural and emotional development, as set out in the child’s relevant plans; (ii)encourage each child to develop socially aware behaviour; (iii)encourage each child to take responsibility for the child’s behaviour, in accordance with the child’s age and understanding; (iv)help each child to develop and practise skills to resolve conflicts positively and without harm to anyone; (v)provide praise, encouragement and guidance to each child about positive, respectful behaviour; (vi)provide guidance to each child to understand, in a way that is appropriate according to the child’s age and understanding, personal, sexual and social relationships, and how those relationships can be supportive or harmful;
The protection of children standard 12.—(1) The protection of children standard is that children are protected from harm and enabled to keep themselves safe. (2) In particular, the standard in paragraph (1) requires the registered person to ensure— (a)that staff— (i)assess whether each child is at risk of harm, taking into account information in the child’s relevant plans, and, if necessary, make arrangements to reduce the risk of any harm to the child; (ii)help each child to understand how to keep safe; (iii)have the skills to identify and act upon signs that a child is at risk of harm; (iv)manage relationships between children to prevent them from harming each other; (v)understand the roles and responsibilities in relation to protecting children that are assigned to them by the registered person; (vi)take effective action whenever there is a serious concern about a child’s welfare; and (vii)are familiar with, and act in accordance with, the home’s child protection policies; (b)that the home’s day-to-day care is arranged and delivered so as to keep each child safe and to protect each child effectively from harm; (c)that the premises used for the purposes of the home are located so that children are effectively safeguarded; (d)that the premises used for the purposes of the home are designed, furnished and maintained so as to protect each child from avoidable hazards to the child’s health; and (e)that the effectiveness of the home’s child protection policies is monitored regularly.
No modifications suggested for wholly 16+ establishments.
The leadership and management standard 13.—(1) The leadership and management standard is that the registered person enables, inspires and leads a culture in relation to the children’s home that— (a)helps children aspire to fulfil their potential; and (b)promotes their welfare. (2) In particular, the standard in paragraph (1) requires the registered person to— (a)lead and manage the home in a way that is consistent with the approach and ethos, and delivers the outcomes, set out in the home’s statement of purpose; (b)ensure that staff work as a team where appropriate; (c)ensure that staff have the experience, qualifications and skills to meet the needs of each child; (d)ensure that the home has sufficient staff to provide care for each child; (e)ensure that the home’s workforce provides continuity of care to each child; (f)understand the impact that the quality of care provided in the home is having on the progress and experiences of each child and use this understanding to inform the development of the quality of care provided in the home; (g)demonstrate that practice in the home is informed and improved by taking into account and acting on— (i)research and developments in relation to the ways in which the needs of children are best met; and (ii)feedback on the experiences of children, including complaints received; and (h)use monitoring and review systems to make continuous improvements in the quality of care provided in the home.
13(1) could potentially be modified to: The leadership and management standard is that the registered person enables, inspires and leads a culture in relation to the children’s home that— (a)helps children enjoy their growing autonomy; and (b)promotes their welfare.
The care planning standard 14.—(1) The care planning standard is that children— (a)receive effectively planned care in or through the children’s home; and (b)have a positive experience of arriving at or moving on from the home. (2) In particular, the standard in paragraph (1) requires the registered person to ensure— (a)that children are admitted to the home only if their needs are within the range of needs of children for whom it is intended that the home is to provide care and accommodation, as set out in the home’s statement of purpose; (b)that arrangements are in place to— (i)ensure the effective induction of each child into the home; (ii)manage and review the placement of each child in the home; and (iii)plan for, and help, each child to prepare to leave the home or to move into adult care in a way that is consistent with arrangements agreed with the child’s placing authority; (c)that each child’s relevant plans are followed; (d)that, subject to regulation 22 (contact and access to communications), contact between each child and the child’s parents, relatives and friends, is promoted in accordance with the child’s relevant plans; (e)that the child’s placing authority is contacted, and a review of that child’s relevant plans is requested, if— (i)the registered person considers that the child is at risk of harm or has concerns that the care provided for the child is inadequate to meet the child’s needs; (ii)the child is, or has been, persistently absent from the home without permission; or (iii)the child requests a review of the child’s relevant plans; and (f)that staff help each child to access and contribute to the records kept by the registered person in relation to the child.
No modifications suggested for wholly 16+ establishments.
Article 39 is working with other charities and social work experts to press for all children in care (up to age 18) to receive care.Current government plans only guarantee this to age 16.
UPDATE, 27 February: we have received data from the Department for Education in response to our freedom of information request. See table below.
The majority of children in care (72%) live with foster carers. A much smaller proportion (8%) of children live in children’s homes. The person responsible for the children’s home must ensure staff follow quality standards, which include that they:
Protect and promote each child’s welfare;
Treat each child with dignity and respect;
Provide personalised care that meets each child’s needs; and
Help each child to understand and manage the impact of any experience of abuse or neglect.
Altogether, children’s homes must follow nine quality standards:
The quality and purpose of care standard
The children’s views, wishes and feelings standard
The education standard
The enjoyment and achievement standard
The health and well-being standard
The positive relationships standard
The protection of children standard
The leadership and management standard
The care planning standard
An even smaller number of children (2,790 at 31 March 2019 – 4% of all those in care) live in what’s called semi-independent accommodation (also called supported accommodation). This type of accommodation is currently unregulated, which means providers do not have to register with Ofsted, and there is no independent inspection. Government research (2016) found the main providers of supported accommodation for vulnerable 16 to 25 year-olds to be: housing associations (64%); charities/voluntary organisations (26%); local authorities (5%); and ‘others’ (5%). However, recent Department for Education research found that 77% of semi-independent accommodation for children in care is run by private providers. Local authorities run 10% of provision and charities/voluntary organisations 9%.
Research published by the Department for Education shows that over half (51%) of children in care who live in semi-independent accommodation are from black and minority ethnic communities. There are six times more unaccompanied asylum-seeking children living in semi-independent accommodation than other children in care (36% versus 6%).
The majority of children (70%) in semi-independent accommodation are there under Section 20 of the Children Act 1989 (a voluntary agreement between a local authority and parents and/or the child). Under a third (29%) of children are the subject of a Care Order – where the local authority has parental responsibility for them.
39% of children enter semi-independent accommodation within a week of being looked after by a local authority.
In February 2020, the Department for Education launched a consultation about semi-independent and independent accommodation for children in care. The proposals are:
That local authorities are banned from placing children under the age of 16 in semi-independent and independent accommodation.
A new legal definition of ‘care’ (though the consultation does not provide one).
A new requirement on local authorities to liaise with local police forces when they place children in care in semi-independent or independent accommodation outside the child’s home area. This is to help councils make a “considered judgement” over whether to place children in these settings, or whether extra support or monitoring are required.
New national standards for semi-independent and independent accommodation, with each setting “making it clear that it cannot provide ‘care and accommodation wholly or mainly for children’ as it is not a registered children’s home”. Four standards are proposed: the purpose and intent standard; the quality of accommodation standard; the support standard; and the protection of children and young people standard.
Two options for putting the standards into practice – a requirement on local authorities to only place children in care in accommodation which meet the new standards (to be checked when Ofsted inspects councils) or a requirement for providers to register with Ofsted, and to be inspected against the standards.
A new requirement on independent reviewing officers to visit children in care to assess whether their placement is meeting their needs.
A new power for Ofsted to issue enforcement notices to providers of semi-independent and independent accommodation who illegally provide care and accommodation to children (or act unlawfully in other ways).
Article 39 believes all children in care should receive care wherever they live. All children in care are, by definition, vulnerable. Sixteen and seventeen year-olds are children. The Children Act 1989 and the United Nations Convention on the Rights do not differentiate children’s entitlements to care and protection on the basis of age.
There is an alternative to creating a new form of regulated residential setting for 16 and 17 year-olds: modifications to the Children’s Homes Regulations for establishments which provide care and accommodation wholly to those aged 16 and over. This would recognise and respect teenagers’ growing autonomy while ensuring all children in care receive care. Families do not stop caring for children when they turn 16, and neither should the state. This is consistent with the Conservatives 2019 election manifesto promise: “Children who end up in care are more likely to struggle as adults, denied the love and stability most of us take for granted. We will prioritise stable, loving placements for those children…”. Love is impossible without care.
Working from the Children’s Homes Regulations would save civil servants from having to come up with a legal definition of care. Were this a straightforward task, a form of words would surely have been included in the consultation document.
Read the consultation document here. DfE research documents (February 2020) can be found here and here.
The Department for Education has today announced a public consultation on its plans for children in care who are placed in unregulated accommodation by local authorities. Staff who work in such accommodation are not legally permitted to provide care to children; they may only provide support.
Government proposals include:
A ban on under 16 year-olds being placed in unregulated accommodation. This would help around 100 (2%) of the estimated 6,000+ children in care currently living in unregulated accommodation.
Standards for providers of unregulated accommodation. It appears these would be non-statutory, which is similar to current arrangements. Local authorities are already required to check that accommodation is suitable before a child is moved there.
Ensuring children get the right support from their independent reviewing officers (this is already in law).
Local authorities to make contact with police forces before they place a child in unregulated accommodation.
Ofsted to have new powers to make sure children’s homes are not being run illegally.
Article 39’s Director, Carolyne Willow, said:
“Today’s announcement does not deal with the fundamental issue that we have over 6,000 children in care in England who are presently, by law, not allowed to experience care. Ministers have so far only come up with a proposal to help 2% of these children. That’s just not good enough.
“It’s right that no under 16-year-old should be placed in unregulated accommodation, but 16 and 17 year-olds have the right to be cared for too. These are children in the care of the state, and many will be the subject of a care order – made by a family court because they have suffered (or are at risk of suffering) significant harm. It beggars belief that such children are deemed not to need care.”
“The Office for National Statistics reported at the end of last year that more than a quarter of adults aged 20-34 years still live with their parents. Yet here we have Ministers saying children in the care of the state can manage without care from the age of 16.”
UPDATE: Since this morning’s announcement, the Government has published research on the characteristics and circumstances of children in care who currently live in semi-supported accommodation (and those who live independently). These are all children who are not receiving any day-to-day care where they live. The research shows:
More than half of children in semi-supported (unregulated) accommodation are from black and minority ethnic communities;
Whereas 6% of all children in care are living in semi-supported accommodation, 36% of those in this setting are unaccompanied asylum seeking children;
29% of children in semi-supported (unregulated) accommodation are the subject of a care order – meaning the local authority has parental responsibility for them.
In response to serious media revelations, particularly a BBC Newsnight investigation, Article 39 convened a national seminar with The Care Leavers’ Association and the National Association of Independent Reviewing Officers last month. We are now working on a proposal which will ensure all children in care receive care. This would involve modifications to children’s homes regulations, which would allow older teenagers to still receive care while their growing autonomy is nurtured and respected. Please contact us if you want to be involved.
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.
“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.“
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.
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.