Article 39 threatens legal action over loss of legal protections for children in care

Children’s rights charity Article 39 has today (7 May) formally threatened legal action against the Department for Education, if it does not withdraw a statutory instrument which makes sweeping changes to safeguards for children in care in England.

The letter before action claims the government has acted unlawfully in its failure to consult on the changes and in not giving any time for Parliamentary scrutiny. The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 (statutory instrument 445) remove or weaken 65 children’s safeguards, without any evidence of their connection to the current serious health crisis. We focus our claim on six specific changes:

  • The dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory;
  • The removal of the duty to hold six-monthly reviews of children in care;
  • The loss of safeguards for children placed out of area with people who are not connected to them;
  • The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
  • The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
  • The dilution of the duty on children’s homes to ensure independent visits and reports on children’s welfare there.  

Article 39 is calling on the government to withdraw the statutory instrument with immediate effect and to give an assurance that any new regulations will be subject to proper consultation, Parliamentary scrutiny and children’s human rights and equality impact assessments.

Carolyne Willow, Article 39’s Director, said:

“This is an outrageous attack on safeguards which have been built up over 70 years, often in response to terrible failures to protect children.

“Legal action is always a last resort but we consider that this is the only way to ensure the rights of children in care are quickly reinstated. There is no obvious link between COVID-19 and the vast majority of the protections snatched away from vulnerable children. Indeed, since 2016 there have been three failed attempts by government to remove some of the most significant safeguards taken away this time – actions which were, in the past, strongly 
resisted by parliamentarians, care experienced people, social workers, children’s lawyers, charities and others.”

Oliver Studdert, partner at Irwin Mitchell, said:

“The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 remove a number of the essential protections put into place by law to safeguard children in the care system. The government should not use the COVID-19 crisis as an excuse to implement a large number of unnecessary and potentially dangerous changes to the way in which looked after children are supported. Many of the changes expose these children, who are some of the most vulnerable children in society, to additional risk. The regulations, which are widely opposed, have been rushed through without any meaningful attempt to consult, at a time where children in care are likely to be in need of greater levels of support.”

The government has been given 14 days to respond.

Notes

1.      Article 39 is represented by Oliver Studdert from Irwin Mitchell, Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.

2.      Statutory instrument 445 can be found here

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Ministers use COVID-19 to destroy children’s safeguards

A statutory instrument published this afternoon makes unprecedented changes to regulations (secondary legislation) relating to the care and protection of vulnerable children and young people.

The changes to 10 sets of regulations come into force tomorrow (24 April 2020), and are due to expire on 25 September 2020 – though this expiry date can be revoked.

Article 39 understands the tremendous pressures local authorities and public services are under, and the risks to the lives and health of staff and children, young people and families at this time. We support changes to practice which help to protect lives and safeguard health.

However, many of the changes made by this statutory instrument have been proposed by government before.

Four years ago, the Government tried unsuccessfully to grant local authorities the power to opt out of their children’s social care duties for up to six years – as a trial for removing the duties altogether. The move was widely and strongly opposed. Ministers were forced to backtrack in March 2017. Further attempts were made in 2017/18 and then 2018/19.

An exchange in the Education Select Committee yesterday between former Deputy Chair of the Local Government Association and the Children’s Minister reheated some of the debates from four years ago, using much of the same language. The suggestion was that these ‘freedoms’ be made permanent once the effect of the suspensions is known.

Extract from Education Select Committee, 22 April 2020
(The official transcript can be found here; see Question 24)

Carolyne Willow, Article 39’s Director, said:

“The idea that local authorities have been clamouring to remove fundamental legal protections from vulnerable children during the middle of a global pandemic is just not credible. This is deregulation on steroids. It is soul-destroying that so much time and effort has been put into systematically eroding the rights of children.

Much of this disrupter’s wish-list has been in the public domain, one way or another, for at least four years. It’s an insult to children to suggest that COVID-19 is the cause of this.

“Having spent hours going through the statutory instrument line-by-line, I haven’t been able to find a single new protection for children. The whole document is about taking away, diminishing and undermining what has been built up for children over many decades.

“Ministers have not even bothered to make a statement about compatibility with the European Convention on Human Rights, because the statutory instrument will just go through on the nod. We have to assume that the UK’s obligations under the Convention on the Rights of the Child have not been considered either.”

Summary of key changes

  • Social worker visits to children in care – can now be via a phone call but clear 6-weekly duty removed
  • Six-monthly independent reviews of a child’s care no longer mandatory
  • Adoptions to “proceed swiftly”
  • Relaxation of notification duties in respect of criminal offences (fostering)
  • Placement plans no longer necessary for kinship care
  • Care standard weakened in children’s homes
  • Twice-yearly Ofsted inspections of children’s homes no longer required
  • Monthly independent visits and reports on children’s homes no longer mandatory
  • ‘Emergency’ foster care placements to last for nearly 6 months
  • Short breaks can last for 75 days without care planning safeguards
  • Local authority action in relation to children who are privately fostered becomes “reasonably practicable”
  • Adoption agencies no longer required to establish adoption panels, and fostering panels become optional
  • Suitability of foster carers can be assessed in the absence of health information and criminal records checks (still have to be obtained though not clear when)
  • “Reasonably practicable” caveat added to timings of independent review of children’s social care complaints
  • Children’s homes a place of detention for children potentially infected with COVID-19
  • Fostering services no longer required to report infectious disease to Ofsted

Social worker visits to children in care – can now be via a phone call but clear 6-weekly duty removed
The law currently requires local authorities to visit children in care one week after they started living in a placement (foster care, children’s home or unregulated accommodation for example) and then every six weeks.

From tomorrow, this basic protection for children in care is removed through a change which allows local authorities who are unable to meet the six-weekly time-scales to visit “as soon as is reasonably practicable”.

An accompanying change allows these six-weekly visits to be made by “telephone, video-link or other electronic means”. This means the law has been relaxed to such an extent that councils are not even required to make a telephone call to a child in care once every six weeks.

Six-monthly independent reviews of a child’s care no longer mandatory
The law requires an independent review of each child in care every six months. (A first review must be carried out within 20 days of a child entering care, and a second after three months).

From tomorrow, six-monthly reviews of children in care move to a “where reasonably practicable” time-frame. This is a substantial dilution of child protection. The requirement to undertake six-monthly reviews of children in care has been in place since 1946, following the manslaughter of a 12 year-old child, Dennis O’Neill, by his foster carers.

Ministers tried to change the law in 2016/17 to facilitate a weakening of this protection. Peers rejected the government’s plans when the ‘opt-out’ legislation was voted on in the House of Lords (November 2016). Then the former Education Secretary, Justine Greening, abandoned the plan altogether in March 2017, amidst huge opposition from parliamentarians, care experienced people, social workers, children’s lawyers and charities.

Adoptions to “proceed swiftly”
The law currently requires that only a ‘nominated officer’ of a local authority can approve the placement of a child with foster carers who are also prospective adoptive parents for that child. Such a placement can only be made after the local authority has prepared a placement plan for the child.

From tomorrow, both these safeguards are removed. Explanatory notes to the statutory instrument state: “This means that these placements are able to proceed swiftly, ensuring children are not waiting due to procedural delays”. In other words, during a global pandemic, when family courts are conducting hearings remotely and access to justice is even further constrained, Ministers have removed safeguards in order to speed up adoptions.

Relaxation of notification duties in respect of criminal offences (fostering)
The law currently requires providers, managers or directors of fostering services who are convicted of a criminal offence to notify Ofsted’s Chief Inspector in writing without delay.

From tomorrow, this is diluted to “as soon as is reasonably practicable”. This is an astonishing change, since the ability to notify in writing via email is not at all affected by COVID-19.

Placement plans no longer necessary for kinship care
The law currently requires that children in care who go to live with family members or friends only do so after a placement plan has been agreed for the child. This is to ensure that this arrangement is right for the child.

From tomorrow, a placement plan will no longer be necessary. Moreover, whereas the law previously allowed children to be placed in kinship care on an emergency basis, followed by an assessment of its suitability within 10 working days, this has now been changed to “as soon as is reasonably practicable”. When Ministers were trying to push through the exemption clauses in 2016/17, this was one of the areas of law they hoped to change.

Care standard weakened in children’s homes
Children’s homes have been required to meet quality standards since April 2015. One of the standards relate to the quality of care. It requires that children are cared for by people who have the experience, knowledge and skills necessary to deliver that care, and that staff are supervised by appropriately skilled and qualified people.

From tomorrow, this will change to “as far as reasonably practicable”. We are not aware of any other children’s setting – paediatric wards, schools or nurseries for example – where statutory requirements relating to the experience, knowledge and skills of staff have been similarly relaxed. Earlier this month, the Independent Children’s Homes Association reported that just 5 per cent of staff in 150 settings had taken time off sick, so it appears unlikely that this dilution of the care standard has been drafted to cover temporary staffing challenges.

Twice-yearly Ofsted inspections of children’s homes no longer required
The law currently requires Ofsted to inspect registered children’s homes at least twice a year. From tomorrow, this duty no longer exists.

Duties relating to the frequency of inspections have similarly been removed in respect of fostering and adoption agencies, residential family centres and holiday schemes for disabled children.

Ofsted continues to have statutory powers to inspect in accordance with the Care Standards Act 2000 and is reported to be “content with this change” to inspection frequency.

Monthly independent visits and reports on children’s homes no longer mandatory
The law requires that every children’s home appoints an independent person to visit the home at least once a month. The independent person must write a report on the home which in particular addresses whether a) children living there are effectively safeguarded and b) the conduct of the home promotes children’s well-being. This report must be sent to Ofsted and local authorities.

From tomorrow, instead of these independent visits and reports being required to happen at least once a month, children’s homes’ providers will be simply required to “use reasonable endeavours” to ensure they occur. This is a significant relaxation of an independent safeguard.

The majority (three-quarters) of children’s homes are run by the private sector and only 49 per cent of children living in children’s homes live within 20 miles of their home area. These independent visits and reports are a vital safeguard for children living far away from their local authorities, in establishments not under council control.

Emergency’ foster care placements to last for nearly 6 months
Currently the law allows local authorities to temporarily approve a child’s relative, friend or other connected person as a foster carer for a period no longer than 16 weeks.

From tomorrow, this period has been extended to 24 weeks and there is no requirement for the temporary foster carers to have an existing family or other connection to the child.

Short breaks can last for 75 days without care planning safeguards
Social worker visits, independent reviews, leaving care entitlements and other safeguards currently apply when a disabled child has a single short break (in a children’s home for example) lasting longer than 17 days, or has short breaks amounting to more than 75 days in a year.

From tomorrow, safeguards only apply when a disabled child has had short breaks amounting to more than 75 days in a year. (The single short break of more than 17 days does not trigger the safeguards.) Moreover, duties around social worker visits and independent reviews have been specifically modified for these children.

Local authority action in relation to children who are privately fostered becomes “reasonably practicable”
Private fostering is where a child under 16 (or 18 if the child is disabled) lives with another family, the arrangement having been made privately – without the involvement of children’s social care. Legal safeguards developed (slowly) following the murder of eight-year-old Victoria Climbié in 2000.

The law currently requires that local authorities (social workers) visit a child within seven days when first notified that there is a plan to privately foster the child, or the child has been privately fostered. From tomorrow, this duty dilutes to seven working days “or as soon as is reasonably practicable”. Similarly, “where reasonably practicable” has been added to local authority duties to visit the child.

Adoption agencies no longer required to establish adoption panels, and fostering panels become optional
The law currently requires every adoption agency to establish a panel which scrutinises adoption applications and make recommendations on the suitability of prospective adoptive parents. It also requires fostering providers to have fostering panels which approve and review foster carers. These are two further safeguards which this government has previously sought to delete.

During the passage of the Children and Social Work Act 2017, the Government said it wanted local authorities to be able to trial opting out of their duties to establish adoption and fostering panels. As with all of the other exemption proposals, this was widely and strongly condemned. John Simmonds, from CoramBAAF, wrote at the time:

It is also suggested that adoption and fostering panels will be made optional or subject only to electronic forms of communication. This is a major turning away from their long established and critical role in big decisions that affect children throughout their lives.

John Simmonds, Director of Policy, Research and Development, CoramBAAF, January 2017, when government first tried to remove these duties

Suitability of foster carers can be assessed in the absence of health information and criminal records checks (still have to be obtained though not clear when)
The law currently requires that health information (including a medical report) and criminal record checks are part of the fostering assessment and approval process.

From tomorrow, fostering agencies will be able to proceed with assessments of prospective foster carers without this information (though it must still be obtained). This is an incredible relaxation of basic safeguards. During this global pandemic, health information about prospective carers is more, not less, critical.

Reasonably practicable” caveat added to timings of independent review of children’s social care complaints
Adults and children who make a formal complaint about children’s social care have the legal right to request that it be investigated by a review panel. Three independent people form this review panel.

From tomorrow, instead of the regulations stating that the review panel must meet within 30 working days of a complainant’s request for a review panel, the requirement is 30 working days “or as soon as is reasonably practicable”. In a similar vein, the requirement for the panel to send a report to the complainant and the local authority within 5 days of its meeting has been changed to 5 working days “or as soon as is reasonably practicable”. This dilutes important procedural safeguards around the independent investigation of complaints.

Children’s homes a place of detention for children potentially infected with COVID-19
The law currently provides that children’s homes may only deprive children of their liberty if this is authorised by a court order. From tomorrow, this can be in accordance with an exercise of powers under Schedule 21 to the Coronavirus Act 2020. These are powers of detention given to health officials and immigration and police officers.

Fostering services no longer required to report infectious disease to Ofsted
Currently fostering services have a number of ‘notification duties’, including a duty to report infectious disease to Ofsted’s Chief Inspector.

From tomorrow, this particular duty will no longer apply – even within the middle of a global pandemic.

Read the statutory instrument here.

PLEASE NOTE: This summary has been prepared at speed. It is not an exhaustive review of the statutory instrument. We will add further information (and links) over the coming days.

Unregulated provision – public consultation will be “fundamentally flawed” without meaningful consultation with children and young people

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?

No.

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?

No.

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?

No.

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?

Yes.

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

Quality standardPossible modification
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.

Concern over suspension of rights safeguard

Last week, the Local Government and Social Care Ombudsman (LGO) announced it was “suspending complaints enquiries of councils and care providers’ in light of the Coronavirus outbreak”. The Ombudsman, Michael King, stated that “we still expect local authorities and care providers to respond appropriately to any complaints they receive during this time”. However, he has admitted that “this may look different to their normal arrangements”.

Kamena Dorling, Article 39’s Head of Policy and Advocacy, said:

“While we acknowledge the real need to alleviate pressure on local authorities at this unprecedented time, Article 39 is extremely concerned about the potential impact of this decision on children and young people in the care system.

We have already been alerted to examples of the complaints procedure at a local level being weakened in recent weeks. This makes the Ombudsman safeguard all the more important.

We would have preferred a triage-based system where at least the most serious cases would be considered for investigation. We will be monitoring the impact of this decision, as well as how statutory complaints procedures are working at a local level, though our advocates network. This is an incredibly stressful time for everyone, which makes it all the more important that vulnerable children and young people can still fall back on established mechanisms to protect their rights.”  

Last year, the LGO made decisions in 1,732 complaints about education and children’s services and 66% of these were upheld.

The LGO has now suspended all casework activity that demands information from, or action by, local authorities and care providers to ‘protect’ their capacity to deliver vital frontline services during the panedmic. Councils and care providers will not be asked to answer enquiries on new or existing cases and cases still in progress will be frozen for the time being. The LGO has stated on social media that it will “be closely observing what happens and if we sense significant levels of injustice arising, we can and will re-engage at any point” but it is unclear how this will be possible without a functioning complaints process.

When services do resume, the LGO has made clear that delays caused by these changes will be taken into account when considering whether or not complaints have been brought within the legal timeframe. Those who have already registered a complaint will be contacted about their case in due course.

LGO complaints can make a huge difference both to individuals and wider policy. This was the case, for example, with the LGO’s finding that Cornwall Council had repeatedly provided inappropriate accommodation for a young person and failed to properly assess the boy’s needs. The boy spent five weeks in a tent, four weeks in a static caravan and several nights sleeping rough after approaching the council for help. The LGO’s recommendations included a review of the council’s procedures for accommodating young people and pushed the council to confirm that it would invest significant funds in accommodation suitable for housing young people.

The Children Act 1989 complaints procedure can also prevent further damage being done by, for instance, ensuring that a decision to move a child in care is frozen whilst the complaint is being investigated.

Recommendations to improve services typically include a review of policies, change to practices, training staff, and awareness raising of issues within the authority and to the public. The LGO can also ask authorities to put things right for people affected by issues found within an investigation but did not complain themselves.

Article 39 is monitoring children and young people’s access to justice via statutory complaints procedures during the COVID-19 pandemic. Please contact our Head of Policy and Advocacy, Kamena Dorling, with any information: kamena.dorling@article39.org.uk.

Joint call for safe release of child prisoners

Earlier this month, Article 39 and others wrote to Justice Secretary Robert Buckland QC MP urging the release of children from prison wherever possible.

Carolyne Willow, Article 39’s Director, said:

“Children need to be with their families or in care settings where their health and well-being can be secured and their fears and questions answered. It’s unconscionable that in a global pandemic a civilised society would keep hundreds of children incarcerated in institutions which in normal times are unable to keep them properly fed, safe and occupied. But this is not just about protecting children from serious harm; we’re also extremely worried about the risks to prison staff, their families and the wider community. These exceptional times demand standout political leadership across all parts of government: children who can be safely looked after in the community must be released.”

The Independent newspaper reported our joint letter here.