Key legal rights for looked after children and care leavers

by stevebroach

Nothing increases my level of outrage like the law being ignored. This is precisely what happens routinely with looked after children (children in Local Authority care or accommodated under section 20 of the Children Act 1989) and young people leaving care. It is particularly outrageous that the law should be flouted over and over again in relation to such a vulnerable group. The routine disrespect for the legal duties has led to a campaign, Every Child Leaving Care Matters, which has a Parliamentary event coming up on 11 September. In an attempt to help end this, I am setting out here what I think are some of the key legal duties. Please share this post far and wide with everyone working with looked after children and care leavers.

Firstly, I have already written about the duty in section 22C of the Children Act 1989 to place looked after children in the ‘most appropriate’ placement available for them. The most appropriate placement is generally the one closest to the family home, which meets the needs arising from any disability the child has, which allows siblings to live together and so on. This duty carries on until the child turns 18. What are the differences between the legal duties owed to looked after 7 year olds and looked after 17 year olds? Nothing – except for the additional planning duties in relation to older teens (see below). Importantly, everything done for all looked after children is subject to the duty in section 22(3) of the Children Act 1989 that Local Authorities must ‘safeguard and promote’ their welfare.

Why are young people still leaving care at 16? This isn’t just against policy and guidance – it is unlawful. The duties to look after children under the Children Act 1989 carry on until 18. The only reason older teens (or indeed any child) should be leaving care is because the problem which has meant that they cannot live with their families has gone away. In fact 16 and 17 year olds who remain looked after are ‘eligible children’ under the leaving care scheme and are entitled to a personal adviser and pathway plan, as described below in relation to care leavers. This is additional to their rights as looked after children, not a substitute status.

So if children are being forced out of placements at 16, this is unlawful – unless the new placement is the ‘most appropriate’ one available for them. The remedy is judicial review. Critically, pretty much all looked after children (and indeed almost all young care leavers) will be eligible for legal aid. So why aren’t judicial reviews being brought all over the country? It can only be because children and young people don’t know there rights or who to turn to for help. Let’s change this.

What happens when a looked after young person turns 18? Well the vast majority (who meet the minimum requirement of 13 weeks’ time looked after from their 14th birthday) will become ‘former relevant children’ and will be entitled to a significant amount of ongoing support from their Local Authority. These young people should have a ‘pathway plan’ in place setting out what help they will need and receive in their transition to an independent adulthood. They should have a ‘personal adviser’ to advise, assist and befriend them. And importantly, if they need help with accommodation (for example, if they are not eligible for Housing Act accommodation for any reason) the Local Authority will have to provide it – see Children Act 1989 s 23C (see sub-para 4(c) – the very broad duty to provide ‘other assistance’ to the extent that the young person’s welfare requires it). The Local Authority’s duties to young people leaving care could even extend to meeting the cost of university tuition fees.

The duties to support young people leaving care run at least until the young person turns 21, and potentially up to 25 if they remain in education or training. A run of cases in the past ten years, including R (J) v Caerphilly and R (G) v Nottingham CC, highlighted the massive gap between what the law requires and practice on the ground – a gap which depressingly does not seem yet to be closing. For example, Barnardo’s has found systemic use of bed and breakfast accommodation for young people leaving care, which the government’s guidance says is unsuitable. All these Local Authorities are highly likely to be in breach of their leaving care duties to these young people – for example, how can a young person placed in bed and breakfast accommodation on a long term basis have a lawful pathway plan?

There is also a very important new duty allowing young people in foster care to remain in their placement until they turn 21 – see section 98 of the Children and Families Act 2014 concerning ‘staying put’ arrangements. There seems to me to be no good reason why this should not also be extended to young people in residential care – as Every Child Leaving Care Matters are proposing.

There is a vast amount of guidance on the duties owed by Local Authorities to looked after children and young people leaving care. The most important is the statutory guidance in Volume 2 (looked after children) and Volume 3 (care leavers) of the Children Act guidance set. The overriding message behind all the regulations and guidance is simple – Local Authorities are supposed to act like good parents towards children in their care and young people leaving their care. So if a Local Authority acts in a way that no good parent would act – it’s probably unlawful.

The key duties to looked after children and young people leaving care are summarised in the Children In Need book I co-authored for Legal Action Group. It costs £50 – which I know is expensive, but it’s cheap for a law book and all the profits go to LAG, which is an amazing campaigning charity. I hope that groups and organisations working with children and young people will find it a worthwhile investment – the second edition was published late last year and it still reasonably up to date although it does not deal with the Children and Families Act 2014.

Please post any questions or queries about the duties to looked after children and young people leaving care in the comments below.