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These notes refer to the Children and Young Persons Bill [HL] as brought from the House of Lords on 26th March 2008 [Bill 96]
CHILDREN AND YOUNG PERSONS BILL [HL]
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EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Children and Young Persons Bill as brought from the House of Lords on 26th March 2008. They have been prepared by the Department for Children, Schools and Families in order to assist the reader in understanding the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or part of a section does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. In June 2007 the Government published a White Paper, Care Matters: Time for Change. This set out the Government's plans to improve the outcomes of children and young people in care. The White Paper built on the proposals in the Green Paper Care Matters: Transforming the Lives of Children and Young People in Care which was published for consultation in November 2006 and the conclusions of four working groups established to investigate best practice in making provision for looked after children. The Green Paper and a summary of the responses to it can be found at www.dfes.gov.uk/consultations/conResults.cfm?consultationId=1406 and the White Paper and working group reports at www.dcsf.gov.uk/publications/timeforchange/. The White Paper included a commitment to amend the legislative and regulatory framework for looked after children as well as amending the statutory guidance and National Minimum Standards.
Bill 96—EN 54/3
4. The purpose of the Bill is to reform the statutory framework for the care system by implementing the proposals in the White Paper that require primary legislation. This forms part of the Government's programme to ensure children and young people receive high quality care and support. The Bill also includes provisions in relation to well-being of children and young people, private fostering, child death notification to Local Safeguarding Children Boards and appropriate national authorities, the powers of the Secretary of State to conduct research and applications for the discharge of Emergency Protection Orders.
5. In summary, the Bill:
- makes provision to enable local authorities to delegate local authority functions in relation to looked after children to providers of social work services and (following the pilot stage) to enable regulation of these providers and to require them to be registered under Part 2 of the Care Standards Act 2000;
- requires the Border and Immigration Agency to make arrangements that its functions are discharged with regard to the need to safeguard and promote the welfare of children;
- places a general duty on the Secretary of State to promote the well-being of children in England;
- makes provision for the accommodation and maintenance of children who are looked after and provides powers to make further provision in relation to the placement of looked after children by regulation including a new power to create a mechanism for the independent review of decisions by fostering service providers that a prospective or existing foster parent is not suitable to foster (similar to that which currently exists for prospective adopters);
- requires local authorities to take steps to secure sufficient accommodation in their area that is appropriate for the needs of children they look after;
- amends the duties of local authorities in relation to the appointment of the Independent Reviewing Officer (IRO); adds to the functions of the IRO; and provides powers for the appropriate national authority to establish a new national IRO service independent of local authorities in England and Wales respectively;
- places a new duty on local authorities to appoint a representative to visit all looked after children, wherever they are living and provides a power to extend the duty to other groups of children who were looked after but have ceased to be so;
- extends the duty on local authorities to appoint an independent person to visit, befriend and advise any looked after child if doing so is in the child's interests;
- places a duty on governing bodies of maintained schools to designate a member of staff as having responsibility for promoting the educational achievement of registered pupils at the school who are looked after;
- extends the duty on local authorities to appoint a personal adviser and keep the pathway plan under regular review to young people who are former relevant children (i.e. care leavers who are over 18) and who start or resume a programme of education or training after the age of 21 but under the age of 25 years;
- requires local authorities to pay a bursary to a former relevant child who goes on to Higher Education;
- extends the powers of local authorities to make cash payments to children in need and their families;
- adds the provision of short breaks for carers to the range of services that local authorities must provide for disabled children and their families;
- makes provision to enable registration authorities to issue compliance notices to children's home providers who are failing to meet required standards and to serve a notice preventing new admissions to establishments where this is deemed appropriate;
- repeals section 45(9) of the 1989 Act to remove the 72-hour moratorium on the court's powers to hear an application to discharge an Emergency Protection Order;
- places a duty on registrars of births and deaths to notify Local Safeguarding Children Boards of the particulars of the death of a child and gives the Registrar General power to supply information to the appropriate national authority for research purposes;
- extends the powers of the Secretary of State to carry out research on the functions of local authorities to functions added under recent legislation, in particular the Adoption and Children Act 2002, the Children Act 2004 and the Children and Young Persons Act 2008;
- extends the period within which a registration scheme may be established for private fostering by three years; and
- extends the rights of relatives who are entitled to apply for a residence order or special guardianship order without leave of the court to those with whom the child has lived for a continuous period of one year; and ensures that where a court makes a residence order the order will normally continue until the child reaches the age of 18.
TERRITORIAL EXTENT
6. The Bill extends to England and Wales, but the provisions relating to the welfare of child immigrants; children's well-being; and to the Chief Inspector's power to issue a compliance notice where there are concerns that standards in residential care settings are not being met, apply in relation to England only. The Bill does not extend to Northern Ireland and extends to Scotland only in relation to a consequential amendment to the Children (Scotland) Act 1995.
7. The Bill confers various powers to make subordinate legislation. In general, these are exercisable by the Secretary of State, in relation to England and the Welsh Ministers, in relation to Wales.
THE BILL
8. The Bill is in 5 parts. Part 1 (clauses 1 to 6) deals with arrangements for the provision of social work services for children and young persons.
9. Parts 1 to 3 of the Bill amend the public law framework for safeguarding and promoting children's welfare; that is, the services to be provided to support children and their families and the procedures to protect children who are at risk of suffering harm. The Children Act 1989 is central to this public law framework. That Act is substantially amended by the Bill (and is referred to in these Notes as "the 1989 Act"). Parts 3 to 5 of the 1989 Act have already been the subject of considerable amendment, in particular by the Children (Leaving Care) Act 2000, the Adoption and Children Act 2002 and the Children Act 2004. The Bill will also amend the Care Standards Act 2000, the Adoption and Children Act 2002 and the Children Act 2004.
10. Part 2 (clauses 7 to 33) of the Bill imposes a new duty on the Border and Immigration Agency to have regard to the need to safeguard and promote the welfare of children (by amending the Children Act 2004). It places a new duty on the Secretary of State to promote the well-being of children in England. It sets out the duties of local authorities when providing accommodation for children they look after; places a new general duty on local authorities to secure sufficient accommodation in their area for children they look after; and makes provisions for the appointment and functions of IROs and provides a power for the establishment of a national IRO service in England and Wales respectively. It provides for the local authority to make arrangements for visits by a representative of theirs to all looked after children and for other children and young persons living away from home; and for the appointment of independent visitors to advise befriend and support looked after children. It extends the powers of local authorities to make cash payments to children in need and their families; and places a new duty on local authorities to include, as part of the services they provide for disabled children and their families, the provision of breaks for carers.
11. In addition it imposes a duty on governing bodies of maintained schools to designate a member of staff for looked after children and extends the entitlements of former relevant children to the appointment of a personal adviser and other assistance in connection with education or training. It amends the Care Standards Act 2000 to make provision for the enforcement of care standards in children's homes and other settings. It imposes a duty on local authorities to provide short breaks for parents and others who care for disabled children. It requires registrars to provide information to Local Safeguarding Children Boards regarding child deaths and gives a power to the Registrar General to provide information about child deaths to the appropriate national authority for research purposes. It extends the powers of local authorities to make cash payments to children in need and their families and the powers of the Secretary of State to carry out research on the functions of local authorities. It removes restrictions on the court's powers to hear an application to discharge an Emergency Protection Order.
12. Part 3 (clauses 34 and 35) amends section 12 of the Adoption and Children Act 2002, that enables regulations to provide for the independent review of qualifying determinations relating to adoption and it extends the period allowed for making regulations to establish a registration scheme for private fostering.
13. Part 4 (clauses 36 to 38) makes amendments to Part 1 of the 1989 Act in relation to residence orders and special guardianship orders.
14. Part 5 (clauses 39 to 45) contains supplementary, general and final provisions.
15. There are three Schedules. Schedule 1 makes provisions that are supplementary and consequential on the amendments made to the Children Act 1989 by clause 9 of the Bill. Schedule 2 makes minor and supplementary amendments to the Children Act 1989. Schedule 3 deals with repeals.
COMMENTARY ON CLAUSES
16. Unless otherwise stated, in these notes, the "appropriate national authority" means the Secretary of State for Children, Schools and Families in relation to England and the Welsh Ministers in relation to Wales. The "registration authority" refers to the HM Chief Inspector for Education, Children's Services and Skills (the Chief Inspector) in England and, when applied to Wales, the Welsh Ministers.
Part 1 - Delivery of Social Work Services for Children and Young Persons (Clauses 1 to 6)
Clause 1: Power to enter into arrangements for discharge of care functions
17. Clause 1 enables local authorities to enter into arrangements with a body corporate (referred to in this Part as a "provider of social work services") for the discharge by that body of some or all of the authority's social services functions in relation to:
a. individual children who are looked after by the authority; and/or
b. care leavers (see Annex A - Glossary of terms)
referred to in subsection (2) as relevant care functions. Social services functions are defined in section 1A of the Local Authority Social Services Act 1970 (1970 Act). Subsection (5) provides that the arrangements may make provision for the continuing exercise of the local authority functions by the provider of social work services where the child ceases to be looked after by the local authority.
18. Subsection (6) enables the appropriate national authority to make regulations specifying functions which are or are not to be treated as relevant care functions. An order under this subsection is subject to the affirmative resolution procedure. This means that before the order can be made a draft of it must have been laid before, and approved by, each House of Parliament (if it is to be made by the Secretary of State) or the National Assembly for Wales (if it is to be made by Welsh Ministers). This contrasts with the more common "negative" procedure for exercising delegated powers that permits the statutory instrument to be laid before both Houses or, as the case may be, the National Assembly for Wales after it has been made. Under the negative procedure, the instrument is subject to revocation if a resolution for annulment is passed within 40 days.
19. A provider of social work services cannot be a local authority (subsection (3)(a)) and regulations may make further provision about the bodies corporate which may, or may not, be providers of social work services (subsection (7)). This power is also subject to affirmative resolution.
20. In addition the appropriate national authority may by regulations provide that arrangements may be entered into for no less than a prescribed minimum period or for no more than a prescribed maximum period (subsection (8)).
Clause 2: Restrictions on arrangements under section 1
21. Clause 2 places restrictions on the functions that may be the subject of arrangements under this Part. The excluded functions (set out in subsection (2)) are functions in relation to the appointment of independent reviewing officers and the local authority's functions as an adoption agency (unless the provider of social work services is also a registered adoption society). The intention is that independent reviewing officers will be one of the mechanisms by which local authorities quality assure the work carried out by providers of social work services. Making arrangements for adoption are excluded as the intention is that providers of social work services are to focus on the provision of support to looked after children, particularly those who are likely to remain in the long term care of the authority.
22. Subsection (5) provides that a local authority must not enter into arrangements under Part 1 unless it is satisfied that the functions will be discharged by, or under the supervision of, registered social workers.
Clause 3: Effect of arrangements under section 1
23. Clause 3(1) provides that any acts or omissions of a provider of social work services or their employees are to be treated as the acts and omissions of the local authority. Subsection (2) provides that this does not affect the rights and liabilities of the local authority and the provider as between one another; does not apply to criminal offences, does not make the local authority liable under section 6 of the Human Rights Act 1998 in respect of acts of the provider which are private in nature (see paragraph 174 below), and does not prevent any civil proceedings being brought against the provider. This leaves in place the liability of the provider and means that the local authority will in addition be equally and jointly liable for the acts of the provider. For example in tort the provider is liable and the local authority is deemed liable under clause 3.
Clause 5: Functions under this Part to be social services functions
24. The power to enter into an arrangement with a provider of social work services is to be a social services function (clause 5 amends Schedule 1 to the 1970 Act). This means that in making arrangements under this Part the local authority must act under any general guidance of the appropriate national authority issued under section 7 of the 1970 Act and comply with any directions issued under section 7A of that Act.
Clause 6: Piloting and expiry of arrangements under this Part
25. Clause 6 enables the piloting of arrangements under this Part for a period of up to five years. The intention is to pilot the arrangements in a number of local authorities. The pilots will be evaluated and subject to that evaluation the power may be extended to all local authorities. In that event, all providers of social work services will be regulated as agencies under the Care Standards Act 2000 and subject to registration and inspection by the Chief Inspector for Education, Children's Services and Skills and clause 4 makes provision for this. Subsection (3) provides that sections 1 to 5 cease to have effect if the piloting period comes to an end after 5 years without clause 4 having been commenced. Subsections (4) and (5) provide that if clause 1(1) is not commenced within a period of 5 years then sections 1 to 5 cease to have effect in relation to England or, as the case may be, Wales.
Part 2 - Functions in Relation to Children and Young Persons
Welfare for child immigrants
Clause 7: Border and Immigration Agency: welfare of children
26. Clause 7 amends section 11 of the Children Act 2004 to add the Border and Immigration Agency to the list of bodies in England who must make arrangements to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children under that duty.
Well-being
Clause 8: General duty of the Secretary of State to promote the well-being of children in England
27. Clause 8 gives the Secretary of State a statutory duty to promote the well-being of children. The Secretary of State has, for many years, carried out activities for the benefit of children. In particular, he is required by section 10 of the Education Act 1996 (c.56) to promote the education of the people of England and Wales. This clause brings the Secretary of State's statutory duties into line with his policy commitments which have developed in recent years. The Secretary of State now has responsibility for promoting the well-being of all children and young people (and, by extension, their families and those who care for them) as well as their education. The new statutory duty complements the existing duties on local authorities and governing bodies of schools to promote children's well-being.
28. Subsection (1) places the Secretary of State under a general duty to promote the well-being of children (defined as persons under the age of 18) in England. This general duty is subject to any specific duties on the Secretary of State (subsection (2)).
29. Subsection (3) makes clear that the activities the Secretary of State undertakes to promote children's well-being include activities in connection with parenting, which includes parental care provided by any person to a child not just that provided by a parent or other person who has parental responsibility for the child.
30. In addition, subsection (4) gives the Secretary of State a statutory power to promote the well-being of care leavers who are over the age of 18 (both former relevant children within the meaning of section 23C and persons qualifying for advice and assistance under section 24) and other groups of persons under the age of 25 who may be prescribed in regulations subject to negative procedure (see paragraph 18 above for a description of Parliamentary procedures)
31. The clause requires the Secretary of State to have regard to the aspects of well-being mentioned in section 10(2) of the Children Act 2004 when discharging his functions under this clause. The aspects of well-being mentioned in section 10(2) are physical and mental health and emotional well-being; protection from harm and neglect; education, training and recreation; their contribution to society; social and economic well-being.
32. The clause comes into force on Royal Assent (see paragraph 180 below) and applies in relation to England only.
Accommodation
33. Every local authority should have a plan for the future care of each of the children it looks after. Care plans should describe the child's needs, set out the services that will be provided to meet those needs and the local authority's long term plan for the child. The care plan should include amongst other things:
- the child's identified needs;
- how those needs might be met;
- proposed placement (type and details);
- other services to be provided to the child or family either by the local authority or other agencies;
- the Personal Education Plan; and
- dates of scheduled reviews of the care plan.
34. At every stage of care planning, where decisions are taken that will affect the child's life, the wishes and feelings of the child must be ascertained and given due consideration, in addition to the wishes and feelings of their parents and carers (section 22 of the 1989 Act). Due consideration must also be given to the child's religious persuasion, racial origin and cultural and linguistic background. Care plans must be reviewed in accordance with regulations i.e. the first review must be within 4 weeks of the date on which the child begins to be looked after, the second review must be within 3 months after that date, and subsequently at intervals of no more than 6 months.
35. The content of care plans and arrangements for reviews is determined by a combination of regulations. In England, these are the Arrangement for Placement of Children (General) Regulations 1991 and the Review of Children's Cases Regulations 1991, made under the 1989 Act. In relation to Wales, the Placement of Children (Wales) Regulations 2007 and the Review of Children's Cases (Wales) Regulations 2007 apply.
36. Amendments to arrangements for care planning and review are made by the provisions in Part 2 of the Bill.
Clause 9 and Schedule 1: Provision of accommodation and maintenance for children who are looked after by a local authority
37. Clause 9 replaces section 23 of the 1989 Act with new sections 22A to 22F. It re-enacts the duties on local authorities to provide accommodation for children who are in their care (new section 22A) and to maintain all looked after children in other respects apart from the provision of accommodation (new section 22B). The duties and powers of local authorities to provide accommodation for children under sections 20 and 21 of the 1989 Act (i.e. those who are "voluntarily accommodated" or accommodated for their own protection or by virtue of an order made in criminal proceedings) are unaffected by these changes.
38. New section 22C outlines the ways in which the local authority must perform its accommodation functions. Subsection (11) enables the appropriate national authority to make regulations for, and in connection with, the purposes of section 22C. Further detail about the regulation making powers is set out in new paragraphs 12A to 12G of Schedule 2 to the 1989 Act, inserted by Schedule 1 to the Bill.
39. Subsections (2) to (4) of section 22C deal with placements with parents and others specified in subsection (3). The local authority must make arrangements for a child they are looking after to live with their parents; any other person who has parental responsibility for the child; or, in the case of a child who is the subject of a care order, a person in whose favour a residence order subsisted immediately before the care order was made. This duty applies only where such arrangements are both consistent with the child's welfare and reasonably practicable. The Bill re-enacts paragraph 14 of Schedule 2 to the 1989 Act as new paragraph 12A (to be inserted by Schedule 1 to the Bill) which makes further provision for regulations to set out conditions under with a child in care is to be allowed to live with a person specified in subsection (3).
40. Subsection (5) provides that if the local authority is unable to place a child with a person specified in subsection (3), the local authority must place the child in the most appropriate placement available. 'Placement' is defined in subsection (6) as meaning:
- a placement with a local authority foster parent who may be a relative (defined in section 105 of the 1989 Act), friend or other connected person;
- a local authority foster parent who is unconnected to the child;
- placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or
41. Placements under subsection (6)(d) may include, for example, supporting young people to live independently in rented accommodation, residential employment, or in supported lodgings/hostels. New paragraph 12B (to be inserted in Schedule 2 to the 1989 Act by Schedule 1 to the Bill) re-enacts paragraph 13 of Schedule 2 to the 1989 Act to enable further provision to be made about arrangements made under subsection (6)(d).
42. Subsection (7) provides that in determining the most appropriate placement for a child the local authority must have regard to the other provisions of Part 3 of the 1989 Act, and in particular to its duties under section 22. This includes the duty to safeguard and promote the welfare of the child (subsection (3)(a)); the duty to promote the child's educational achievement (subsection (3A)); the duty to ascertain the wishes and feelings of the child, his parents and other relevant persons before making a decision with respect to the child they are looking after (subsection (4)); and the duty to give those wishes and feelings and the child's religious persuasion, racial origin and cultural and religious background due consideration (subsection (5)) .
43. Subsection (7)(a) provides that the local authority must give preference to a placement with a relative, friend or other person connected with the child over the other placement options.
44. Under subsections (7)(b) and (8) the local authority must, so far as is reasonably practicable in all the circumstances of the child's case ensure that the placement:
- allows the child to live near their home;
- does not disrupt the child's education or training (powers to impose requirements with which a local authority must comply before making any decision about a child's placement if he is in Key Stage 4 (i.e. he is 14 -16 years old) are set out in paragraph 12D, to be inserted in Schedule 2 to the 1989 Act by Schedule 1 to the Bill);
- if the child has a sibling who is also being looked after by the local authority, enables the child and that sibling to live together; and
- if the child is disabled, is suitable to the child's particular needs.
45. Under subsections (7)(c) and (9) the child must be provided with accommodation within the local authority's area unless that is not reasonably practicable. Powers to impose requirements with which a local authority must comply before making a placement out of area are set out in new paragraph 12C, to be inserted in Schedule 2 to the 1989 Act by Schedule 1 to the Bill.
46. Subsection (10) enables the local authority to determine the terms on which they place a child with a person specified in subsection (3) or with local authority foster parents, replicating the effect of section 23(2) of the 1989 Act. These terms might include details of the financial support to be provided for the child or other payments to be made to the carer(s); conditions relating, for example, to training for the carer that is relevant to the upbringing of the child; or concern the provision of support (other than financial support) by the local authority for both the child and the carer. Terms relating to payment made to local authority foster parents are subject to orders made under section 49 of the Children Act 2004. No such orders have been made to date.
47. Subsection (12) defines a 'local authority' foster parent as a person who is approved as a local authority foster parent in accordance with regulations made by virtue of new paragraph 12F of Schedule 2 to the 1989 Act (inserted by Schedule 1 to the Bill). Further provision for regulation of foster care placements is made by new paragraph 12E (inserted in Schedule 2 to the 1989 Act by Schedule 1 to the Bill) which, with paragraph 12F(1)(a) and paragraph 12G, re-enacts paragraph 12 of Schedule 2 to the 1989 Act. The current process for approval of foster carers and regulation of placements is dealt with in the Fostering Services Regulations 2002 and the Arrangements for Placement of Children (General) Regulations 1991. The 2002 Regulations provide, amongst other matters for placement of children in emergency with relatives and other connected persons even if that person does not have prior approval as a foster parent (regulation 38). It is intended that regulations under the new provisions will make similar provision for temporary approval of relatives as local authority foster carers in emergencies, and make provision for the approvals process to recognise the different considerations that apply to approval of someone who has a prior relationship to the child.
48. New Paragraphs 12F(1)(b) and (2)-(11) will enable regulations to make provision for prospective or existing foster carers to apply to the appropriate national authority for an independent review of the determination of a fostering service provider regarding a person's suitability or continuing suitability to foster a child.
49. Under existing provisions (set out in regulation 28(6)(b) and regulation 29(7)(b) of the Fostering Services Regulations 2002) foster carers are able to challenge a fostering service provider's proposal not to approve them by making written representations to the fostering service provider; the provider must refer the case back to the fostering panel and take any fresh recommendations into account in making its decision. These regulations also set out the approvals process which must be followed by fostering service providers in assessing the suitability of prospective applicants and the procedures to follow with regard to terminating approval.
50. Regulations made under new paragraph 12F of Schedule 2 to the 1989 Act will provide an additional means for foster carers to challenge a proposal not to approve them - by applying to a panel established by the appropriate national authority for a review by an independent panel.
51. It is intended that this independent review mechanism ("IRM") for foster carers will operate in a similar way to the current mechanism which considers applications from prospective adopters for an independent review of an adoption agency determination that they are not suitable to adopt or to withdraw their earlier approval. Where the prospective adopters apply for an independent review, the independent review panel convened to review the case considers the case afresh and makes a recommendation to the adoption agency; the adoption agency must take that recommendation into account, along with that of the agency's adoption panel, when making its decision. This mechanism was established by sections 9 and 12 of the Adoption and Children Act 2002 and secondary legislation made under the enabling powers conferred by those provisions.
52. Under paragraph 12F(1)(b) and (3) the appropriate national authority may, by regulations, prescribe the details of the IRM. This may include, for example, the procedure for review of the qualifying determination, the functions of the panel and its constitution and membership (e.g. that the panel shall include social workers and those considered by the appropriate national authority to be suitable members, including persons with experience of fostering). It is intended that the regulations will cover similar matters to the Independent Review of Determinations (Adoption) Regulations 2005.
53. Sub-paragraph (4) gives the appropriate national authority the power to recover the costs of reviews. However, these costs will not be recoverable from the person who made the application for an independent review. Sub-paragraph (5) provides that the sums payable to the appropriate national authority must not, taking one financial year with another, exceed the costs incurred in performing the independent review functions. Sub-paragraph (9) makes similar provision in situations where the national authority has made arrangements under sub-paragraph (6) for its functions to be performed on its behalf by an organisation. The definitions of "financial year" and "independent review function" are both included in sub-paragraph (11).
54. Paragraph 12F(6) to (8) enables the IRM for fostering to be operated by an independent organisation. The organisation operating the IRM on behalf of the national authority must perform its functions in accordance with any general or special directions which the appropriate national authority may give. Sub-paragraph (7) makes provision for payments to be made to the organisation.
55. Paragraph 12F(10) gives the Welsh Ministers the power to enter into an arrangement under which their functions in relation to independent reviews are performed by the Secretary of State. A similar power exists in section 12(7) of the Adoption and Children Act 2002 in relation to the adoption IRM, but has not been exercised to date.
56. New section 22D introduces a new procedural requirement in a case where the local authority is considering moving a child to a placement under section 22C(6)(a) -(c) to one that involves making "other arrangements" under subsection (6)(d). It prevents them from doing so unless they have undertaken a statutory review of the child's case in accordance with section 26 of the 1989 Act. But this does not prevent such a change of placements if it is necessary to make the change to the arrangements for the child's accommodation for child protection reasons as a matter of urgency.
57. New section 22E replicates section 23(2A) of the 1989 Act, inserted by the Care Standards Act 2000. There are at present no children's homes provided under section 82(5) in England; there is one children's home in Wales that was established under this provision. New section 22F provides for Part 2 of Schedule 2 to the 1989 Act (as amended by Schedule 1 to this Bill) to have effect, replicating the effect of section 23(9) of the 1989 Act.
58. Clause 10 inserts new section 22G in the 1989 Act, placing a new general duty on local authorities to take steps to secure sufficient accommodation that is appropriate for the needs of children they look after within their authority area. When performing this new general duty, local authorities are not required to take into account those children who can be placed with their parents or those for whom it would not be consistent with their welfare to be placed in the area (subsection (3)). Local authorities must, when taking steps to ensure that they have sufficient accommodation in their area for children they look after, have regard to the benefit of having a number of accommodation providers in their area and to the need to have a range of accommodation capable of meeting the different needs of children in their area (subsection (4)). "Accommodation providers" means local authority foster parents and children's homes (subsection (5)).
Independent Reviewing Officers (IROs)
59. All local authorities are required to appoint IROs, whose functions currently include:
- participating in meetings to review care plans;
- monitoring the performance of the authority's functions in respect of the review; and
- referring a case to an officer of the Children and Family Court Advisory and Support Service (CAFCASS), or in Wales, a Welsh family proceedings officer, if they consider it appropriate to do so.
60. The Review of Children's Cases (Amendment) (England) Regulations 2004 set out the IRO's additional responsibilities which include ensuring that:
- the views of children and young people are understood and taken into account in care planning;
- the persons responsible for implementing any decision taken in consequence of the review are identified; and
- any failure to review the case or to take proper steps to implement review recommendations is brought to the attention of persons at an appropriate level of seniority within the responsible authority.
Clause 11: Independent Reviewing Officers
61. Clause 11 replaces section 26(2)(k) and (2A) to (2D) of the 1989 Act with new sections 25A to 25C that set out:
- requirements regarding the appointment of IROs;
- an associated provision enabling the functions of CAFCASS officers and Welsh family proceedings officers to be extended.
62. Sections 25A(1) to (3) have the effect that when a child first becomes looked after, a named individual must be appointed by the local authority as the IRO for the child. The appointment must be made before the child's case is first reviewed (i.e. within four weeks of the date on which the child begins to be looked after). The local authority must appoint another IRO if a vacancy should arise (for whatever reason). The intention is that each looked after child should have a named IRO, to provide continuity in the oversight of the case and to enable the IRO to develop a relationship with the child.
63. Section 25A(4) replaces the power of the appropriate national authority to require, by regulation, the IRO to be of a prescribed description.
64. Section 25B(1) set out the functions of the IRO which replaces section 26(2A) of the 1989 Act, adding the following new functions:
a. Section 25B(1)(a) introduces a duty on the IRO to monitor the local authority's performance of its functions in relation to the child's case. This duty will extend the IRO's existing monitoring role which is currently confined to the authority's functions in respect of the review;
b. Section 25B(1)(c) introduces a requirement for the IRO to ensure that the local authority give due consideration to any views expressed by the child, which is intended to reinforce the local authority's duty under section 22(4) and (5) of the 1989 Act to ascertain and give due consideration to the wishes and feelings of the child when making any decision with respect to the child.
65. Section 25B(2) replaces the regulation making power in section 26(2)(k) of the 1989 Act, enabling the appropriate national authority to prescribe the manner in which the IRO functions are to be performed. In addition, it gives a new power to the appropriate national authority to issue guidance to which IROs must have regard in relation to the discharge of their functions. Section 25B(4) imposes a new duty on the local authority to cooperate with the IRO and take all reasonable steps to enable the IRO to perform his functions.
66. Sections 25B(3) and 25C(1) and (2) replace section 26(2A)(c) and (2C) which relate to the IRO's existing function of referring the child's case to an officer of CAFCASS or the equivalent in Wales, if he considers it appropriate to do so. The original provisions were inserted in the 1989 Act by the Adoption and Children Act 2002 in response to a House of Lords judgment in the conjoined appeals of Re S and Re W [2002] UKHL 10, [2002] 2 AC 291 (previously known as Re W, W and B) which concerned the respective roles of the courts and local authorities in care planning. The judgement concluded that the courts have no general power to monitor the discharge of the local authority's functions but that a local authority that failed in its duties to a child could be challenged under the Human Rights Act 1998. However the judgement also expressed concern that some children with no adult to act on their behalf may not have any effective means to initiate such a challenge. The IRO's power to refer the child's case to a CAFCASS officer provides a remedy for this problem.
67. The intention is that these changes to the statutory framework will enable the IRO to have a more effective independent oversight of the child's case and ensure that the child's interests are protected.
Clause 12: Power to make further provisions concerning independent reviewing officers: England
68. Clause 12(1) enables the Secretary of State by order either to:
a. establish a new body corporate to discharge such functions as may be conferred on it; or
b. confer additional functions (of the same nature) on CAFCASS.
69. The intention is that this power will be used to establish a national IRO service, if the amendments made by clause 11 to the existing statutory framework do not prove to be effective in achieving significant improvements in the outcomes for looked after children.
70. The functions that may be conferred on the new IRO service include functions in connection with:
- providing training and accreditation for IROs; and
- appointing and/ or managing IROs (clause 12(2)).
71. The power would also enable the Secretary of State to make consequential modifications to any enactment (both primary and secondary legislation) in relation to independent reviewing officers or in relation to CAFCASS (clause 12(3)).
72. Clause 12(4) enables the inspection of any new body established by the exercise of the powers under this clause to be added to the responsibilities of the registration authority and for the body to exercise its functions in accordance with directions given by the Secretary of State.
73. Exercise of the powers in clause 12 will be subject to affirmative procedure (clause 40(2)) and see paragraph 18 for further explanation of the Parliamentary procedure).
Clause 13: Power to make further provisions concerning independent reviewing: Wales
74. Clause 13(1) enables Welsh Ministers by order either to:
a. establish a new body corporate to discharge such functions as may be conferred on it; or
b. provide for the discharge by them of such functions as may be conferred on them.
The intention is that this power will be used to establish a national IRO service in Wales, similar to the power in clause 12 to establish a national IRO service in England.
75. Clause 13(2) and (3) mirrors clause 12(2) and (3) in relation to England.
76. Clause 13(4)(a) will enable independent inspection of any new body established in exercise of the powers under this clause and for the order to make consequential modifications to any enactment (both primary and secondary legislation) in relation to the carrying out of inspections. Clause 13(4)(b) provides for the body to exercise its functions in accordance with directions given by the Welsh Ministers.
77. Orders made under clause 13 will be subject to a special affirmative procedure that is described in paragraphs 161 to 163.
Clause 14: Orders under sections 12 and 13: supplementary provisions
78. Clause 14 provides that an order under sections 12 and 13 may also:
- confer on the recipient power to do anything which is incidental or conducive to, or designed to facilitate, the discharge of that function (clause 14(1));
- authorise the recipient to charge fees for the discharge of any function conferred by that order, for example for providing training (clause 14(2));
- transfer property, rights and liabilities to the new service (clause 14(3)) and if in doing so it would affect employees rights, for example by transferring employees from local authority employment to the new service, the order must make provision for the Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply (clause 14(4)); and.
- require the new IRO service to establish a complaints procedure (clause 14(5)).
Clause 15: Expiry of powers conferred by sections 12 and 13
79. Clause 15 is a "sunset clause": if no order has been made under clause 12 within 7 years from the day the Act receives Royal Assent, then clause 12 and clause 14 will cease to have effect in relation to England. Similarly provision is made for clauses 13 and 14 to cease to have effect in relation to Wales, if no order has been made under clause 13 within 7 years from the day the Act receives Royal Assent.
Visiting
Clause 16: Duty of local authority to ensure visits to looked after children and others
80. Clause 16 inserts new section 23ZA into the 1989 Act. This provision requires local authorities to ensure that all looked after children and children who were looked after, but ceased to be looked after as a result of prescribed circumstances (subsection (1)) are visited by a representative of the local authority and that appropriate advice, support and assistance is made available to them (subsection (2)). It is intended that the power in subsection (1) will be used to place a duty on local authorities to ensure that children who have ceased to be looked after on being taken into custody because they cease to be accommodated by the authority under section 20 are visited and receive advice assistance and support while they are in custody.
81. The appropriate national authority may, by regulations, specify how the duties are to be discharged (e.g. that the local authority should provide each child and their carers with emergency contact details so that the child can speak to a social worker between visits); and in particular may specify the frequency of the visits; the circumstances in which the visit must take place and the functions of the visitor. The regulations will make it clear that functions of the visitor will include reporting to the local authority, the IRO and the child's parents on the visit; supervising the placement and ensuring that it continues to meet the child's needs and that the child's welfare is safeguarded and protected; and, particularly in the case of a child in custody, assessing the child's needs for services and working with the Youth Offending Team to plan for the child's release.
82. Performance of these duties will be subject to any particular statutory requirements that may apply to the place where the child (or young person) is actually living, for example children who are held in custody or who are liable to be detained under the Mental Health Act 1983.
Clause 17: Independent visitors for children looked after by local authority
83. Clause 17 replaces paragraph 17 of Schedule 2 to the 1989 Act, extending the group of looked after children for whom an independent person must be appointed to visit, befriend and advise the child to include all those for whom an appointment would be in their interests. The appropriate national authority may by regulations extend those to whom the duty is owed automatically to further specific groups of looked after children (subsection (1)(a)).
84. Subsection (9) allows regulations to be made to describe what is required for a visitor to be regarded as "independent".
Clause 18 and 19 - Notification of, and visits to, children in long term care
85. Section 85 of the 1989 Act requires a health body (e.g. a Primary Care Trust) or a local education authority (i.e. a local authority exercising its education functions), when accommodating (or intending to accommodate) a child for at least three months, or when ceasing to accommodate a child, to notify the local authority for the area where the child is ordinarily resident of the placement (the "responsible authority"). On receiving a notification of this kind, the responsible authority must take such steps as are reasonably practicable to ensure that the welfare of a child (of whom it has been notified under the requirements above) is adequately promoted and safeguarded, and consider whether it needs to exercise its functions under the 1989 Act, for example the provision of services such as parenting support under section 17, if it determines that the child is a "child in need" within the meaning of that section.
86. Section 86 of the 1989 Act requires a person carrying on a care home or independent hospital to notify the responsible authority of any child placed at their establishment in similar circumstances; and places similar duties on the responsible authority so notified.
87. The children to whom these sections relate are most likely to be placed in one of the following settings:
- Care homes and independent hospitals;
- Health service hospitals; or
- Residential schools including maintained boarding schools; non-maintained special schools; independent boarding schools and colleges.
88. Most residential schools accommodating children to whom section 86A applies will be children's homes within the meaning of section 1 of the Care Standards Act 2000.
89. Clause 18 amends section 85 and 86 to ensure that the notifications described above will be sent to the Director of Children's Services in England or the lead director in Wales.
90. Clause 19 inserts new section 86A which places a new duty on the responsible authority to make arrangements for the children it is notified of under sections 85 and 86 to be visited. The appropriate national authority will have power to make regulations under section 86A(2), in similar terms to regulations made under section 23ZA of the Act (inserted by clause 16) i.e. they may specify the frequency of the visits; the circumstances in which the visit should take place; and the functions of the visitor (e.g. to report to the local authority, the IRO and the child's parents on the visit) (section 86A(3)).
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