Rotherham and the legal duty to keep children close to home

by stevebroach

The fallout from the horrific child protection failings in Rotherham (expertly analysed on Twitter by @itsmotherswork) requires urgent attention to one of the key duties in the Children Act (CA) 1989.

Section 22C (CA) 1989 governs placements made by Local Authorities in England and Wales for children that they are looking after. The duty applies in the same way both to children ‘in care’ and those who are looked after by the Local Authority by voluntary agreements with parents made under section 20 CA 1989 – including many disabled children living away from home. The section 22C duty was part of a set of tougher new duties in relation to looked after children introduced by the Children and Young Persons Act 2008. Sadly, despite the intervening six years it is still widely misunderstood or ignored.

Section 22C first requires that looked after children should be placed with their parent(s) or a person with a residence order if that is reasonably practicable and consistent with the child’s welfare (section 22C(2)). So yes, Parliament has said that the first port of call for children ‘in care’ is to live with their parents, if necessary with an intensive package of support. As the statutory guidance (see below) states at para 3.2, ‘state intervention in family life should be kept to the minimum necessary to protect the child from harm – ultimately a child should be brought up by his/her family if that is a safe place for him/her to be’.

If the child can’t live with their parents in a way which promotes their welfare, then the Local Authority must place the child ‘in the placement which is, in their opinion, the most appropriate placement available‘ (section 22C(5) – emphasis added). Clearly then the judgment about the ‘most appropriate placement’ is one for the Local Authority officers to make – but as with all public authority judgments it has to be exercised rationally, reasonably and fairly while taking account of all relevant factors. All placement decisions are subject to the duty set out in CA 1989 section 22(3) that the placement is the most appropriate way to safeguard and promote the child’s welfare.

Furthermore Parliament has in relation to this duty set out a series of factors which Local Authorities must take into account when deciding which placement is ‘most appropriate’. Firstly, the Local Authority should look to place the child with a person who is a ‘relative, friend or other person connected with the child and who is also a local authority foster parent’ (section 22C(6)(c)). If that is not possible, then the placement must be one which, if reasonably practicable:

  • allows the child to live near the child’s family home;
  • does not disrupt the child’s education or training;
  • enables the child to live with any sibing(s) they may have;
  • is suitable to the particular needs arising from any disability the child may have; and
  • is within the local authority’s area. (section 22C(8) and (9))

There is no hierarchy within these factors – if possible all of them should be complied with, but if not then the Local Authority must make a judgment as to which available placement is most appropriate for that particular child, bearing all these matters in mind (see statutory guidance at 3.10). The overriding principle, as the statutory guidance states at 3.4, is that ‘children should, wherever possible be brought up in their families and communities, if they cannot remain with their parents’.

It is obvious that what Parliament is emphasising here is continuity – of geographical location, family ties and education. Looked after children are inherently vulnerable and Parliament is seeking to make sure that the disruption children face is minimised when they are placed outside their families by the state.

Two of the mandatory factors relate to geography; the ‘most appropriate’ placement is one which allows the child to live near their family home and is within the Local Authority’s area, unless this is not reasonably practicable for the particular child. Indeed there are specific additional requirements to be complied with it a placement is proposed outside a Local Authority’s own area – see statutory guidance at 3.28-3.40.

Which begs the question – how do thousands of children end up placed hundreds of miles away from home – for example, in Rochdale? Because a careful assessment of their needs showed that a placement there was ‘most appropriate’ for them notwithstanding the distance? Or because it was the simplest and most cost effective solution to do so? If the answer is the latter, as I suspect is the case, then we have serial and wholesale non-compliance with the law – in relation to some of our most vulnerable children. Tackling this defiance of the law should be an important priority for anyone who wants to stop these children being abused once they are placed.

There is more on what the law requires on placements of looked after children in the Volume 2 Children Act guidance on care planning, placement and case review – see in particular chapter 3 from p38 of this statutory guidance.

As an aside, after the Court of Appeal’s judgment in R (O) v East Riding it is clear that many disabled children in residential special schools are placed under CA 1989 section 20 as a matter of law and their placements are therefore also subject to the section 22C duty described in this post. This places an important gloss on the approach of the SEN and Disability Tribunal to educational placement issues, which is merely to ensure that the placement is ‘suitable’ – not the ‘most appropriate’ available, which as set out above is what CA 1989 section 22C requires. Anyone who thinks this might make a difference in their case should seek expert legal advice as CA 1989 section 22C is not within the jurisdiction of the Tribunal – the remedy here is judicial review.

I would suggest that anyone with concerns about placements of looked after children contacts Coram Children’s Legal Centre or any of the solicitors at the end of my Using the Law to Fight the Cuts paper for advice.

Please post any views on why children continue to be placed hundreds of miles away from home in direct contradiction to what the law requires – and what we can do to stop this happening – in the comments below.

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