Unvisited: Looked after children and the role of the Independent Visitor
Noel Arnold, Head of Legal Practice at the Coram Children’s Legal Centre, considers the importance of Independent Visitors for looked after children and clarifies confusions in the current arrangements.
Noel Arnold, Head of Legal Practice, Coram Children's Legal Centre
It is generally recognised that children are best looked after within their families. 1 However, for looked after children (LAC) this not always possible. LAC represent a cohort of children in society who are often living in environments with which they may not be familiar or that are not traditional settings in which most children grow up in. LAC comprise not only those who are the subject of interim or final care orders but also those accommodated under s.20 Children Act 1989 (CA 1989). They may live in foster care, spend time in respite facilities, live in residential homes or otherwise in educational settings which provide home and schooling. Some LAC are cared for by members of the wider family.
The Government's aims for LAC are manifest in the preface to The Children Act 1989 Guidance and Regulations, Volume 2: Care Planning, Placement and Case Review (hereinafter 'the Guidance'): "Looked after children deserve the best experiences in life, from excellent parenting which promotes good health and educational attainment, to a wide range of opportunities to develop their talents and skills in order to have an enjoyable childhood and successful adult life. Stable placements, good health and support during transition are all essential elements, but children will only achieve their potential through the ambition and high expectation of all those involved in their lives." 2
The reality for many LAC is that their life experiences are not as positive as those who are raised in more conventional familial settings 3. It is for that reason that LAC may need some ancillary support to make up for experiences that they may miss out on. It is often the elementary features which are easily forgotten. The role of the independent visitor (IV) was created in part to fulfil some of the more rudimentary aspects which children should experience. "Independent Visitors are a further source of encouragement and support in accessing activities. Children and young people in care often view their Independent Visitor as a friend to talk to; someone who can provide them with emotional support and stability as well as enabling them to have fun and share in recreational activities. 4" IVs are usually volunteers who are recruited to visit and spend time with LAC.
Appointment of IVs to looked after children 5
An IV is someone who has the duty of visiting, advising and befriending the child 6. § 17(1), Schedule 2 CA 1989 states that where communication between the child and the parents or persons with parental responsibility (PR) has been infrequent or the child has not lived with or been visited by any such persons within 12 months and it was thought by the local authority to be in a child's best interests to have an IV, the local authority would appoint an IV.
Where a local authority proposes to appoint an IV, it should not do so if the child objects and the local authority is satisfied that the child has sufficient understanding to make an informed decision 7. Similarly where an IV has been appointed, the local authority should terminate 8 the appointment where the child objects and has sufficient understanding to make that decision.
A change in the law
Section 16(2) Children and Young Persons Act 2008 (CYPA 2008) 9 repealed § 17 of Schedule 2 CA 1989 so that now appointment of IVs to children will be made under s.23ZB CA 1989. Appointment of an IV to a child will be made where the child falls within a description prescribed by regulations 10 or in any other case, it appears to the local authority that it would be in the best interests of the child 11. The repeal of § 17 of Schedule 2 CA 1989 came into force on 01.04.2011 12.
The regulations in which one would expect to find the prescribed description is the Care Planning, Placement and Case Review (England) Regulations 2010 but no prescribed description is to be found in the relevant section (Regulation 47 13). The repeal of § 17 of Schedule 2 CA 1989 coupled with the lack of any new regulations (to provide for a prescribed description of children to whom an IV should be appointed) leads to the position where there is arguably a weakening of the provisions relating to the appointment of IVs.
The previous set of children who would have been appointed an IV (although again subject to it being thought in their best interests) is lost from statute (CA 1989). Those children are however, referred to elsewhere. The provision is effectively now buried in dense guidance. § 3.186 of the Guidance states: "A responsible authority should assess whether it would be appropriate to appoint an independent visitor for a child they are looking after if either of the following criteria is satisfied: -it appears that communication between the child and a parent or any person who is not a parent but has parental responsibility for the child has been infrequent; or -the child has not been visited (or has not lived with) a parent or any person who is not the child's parent but who has parental responsibility for the child, during the preceding 12 months."
One could suggest that to remove the previous relevant category of children to whom IVs would be appointed (those who are have little contact/communication with parents or persons with PR) from statute and resigning it only to guidance results in a looser provision which in turn leads to more children being appointed an IV. On the other hand there is also a real possibility that because there is too little emphasis and accent, the matter is left to the total discretion of the local authority; based only on its determination as to whether the appointment of an IV would be in a child's best interests. The Guidance does give five example situations which it suggests local authorities take into account when considering appointment of IVs at § 3.187.
The Government seems to have genuinely wished to increase the number of appointments of IVs to children. In July 2008 Kevin Brennan (then Parliamentary Under-Secretary of State for Children, Schools and Families) told the House of Lords Public Bill Committee: "We want those who are currently eligible to maintain their right to an independent visitor and will use regulations to ensure under new section 23ZB subsection (1)(a) that these groups continue to be automatically eligible for an independent visitor on that basis." 14
The Guidance talks of a wider recruitment duty so that IVs can be considered for a larger group of looked after children (§ 3.200) and this is what other commentators had understood would happen 15, yet despite the Government's policy statements of making more appointments of IVs to children, it is arguable that the pool of children eligible to be considered for the appointment of IVs has been reduced. The Government has not to date introduced regulations providing for a prescribed category of children as was clearly its intention.
Stages of consideration as to appointment of an IV
The Guidance is clear on this subject. It states that: "The appointment should be considered as part of the development of the care plan for the child or as part of a review of the child's case. Any decision not to appoint an independent visitor should be kept under review to make sure that the opportunity to appoint such a person is considered if the child's circumstances change. The child's wishes and feelings should be ascertained…" (§ 3.184).
This should mean that at the very least, the matter of appointment of an IV to a child should be considered twice a year; at each six-monthly review of the child's care plan. In the author's view this is a good opportunity for local authorities to keep the issue under review. The child's independent reviewing officer (IRO) will usually conduct the review meeting. This is of assistance as the IRO is independent 16 of the social work team responsible for the child and his/her care plan. The statutory review is an ideal occasion to give consideration to appointment of an IV and for the child's wishes and feelings on the subject to be ascertained.
Unfortunately, in the author's experience having looked at children's care plans and minutes of statutory review meetings, the issue of appointment of an IV is seldom considered or given comment and so this ripe opportunity (the statutory review) is frequently missed. This should be something that the IRO, family lawyers assisting parents or children, the children's guardian and importantly the social work team should all focus on to ensure that children are supported with appropriate services which may benefit them. Independent advocates for children in care are also well situated to take up the issue with the social work team if a child has expressed a desire for the services of an IV even if he/she does not understand what an IV is or the nature of that role 17.
What the children say
In speaking to the House of Lords Public Bill Committee, Kevin Brennan explained that children and young people were consulted during the Green Paper stage of what then became the Children and Young Persons Act 2008 18. They "made it clear that they wanted greater access to the support of an independent visitor. They have told us that they value having someone from outside the system to befriend them, to take them out, to be a source of advice and support, and independent visitors can potentially benefit a much wider group of looked-after children than currently have access to one.19" (author's emphasis)
Recently Ofsted's Children's Rights Director for England produced a report, Independent visitors, Children and young people's views 20. The Children's Rights Director consulted with children and young people. 361 completed survey questionnaires were returned. Some key findings were:
- 71% of the children and young people said that they did not have an IV;
- 77 of the children and young people explained why they thought they had been offered a IV but of those only 5 believed that it was because they had little contact with their birth families;
- The most common answers about what children and young people want their IVs to do was they wanted the IV to give them help and support and to have someone to talk to;
- Half of the care leavers who participated (who had IVs) said they had kept in contact with IVs suggesting that the relationships made between IVs and children are often significant in nature; and
- The report explains that "the main reason for children or young people not having an independent visitor was that they had never been offered one" (80% of those answering the question gave this answer).
Conclusion and confusion
It seems that there has been a degree of confusion on the subject of IVs. In summary, the Government made a commitment to introduce by regulations a prescribed definition of children to whom an IV should be appointed; the aim presumably being to increase the number of children who benefit from an IV. Certainly the Government had publically explained that more children could benefit from an IV than at the time (see section on 'What the children say'). The Government has not brought any such regulations into being.
The previous category of children (those not having communication/contact with parents) who were eligible for assistance of an IV (subject to being in the child's best interests) has been removed from the statute, with that provision now only to be found in guidance.
There appears to have been a degree of misunderstanding on the part of the Government. A key example, which may simply be an innocent error was when Kevin Brennan told the House of Lords Public Bill Committee: "Local authorities must already appoint an independent visitor for looked-after children who have no contact with their birth parents or those who have parental responsibility." 21 That statement as to the law is incorrect as it was only mandatory for a local authority to appoint an IV to a child if the local authority also thought the appointment to be in the child's best interests.
§ 3.187 of the Guidance states: "Section 23ZB(1)(b) of the 1989 Act requires the responsible authority to consider the appointment of an independent visitor in respect of a child they look after where it appears that it would be in the child's interests to do so." That is erroneous as s.23ZB(1)(b) states that a local authority must appoint an IV to the child if it appears to the authority to be in the child's best interests. That is not the same as the guidance suggests which is that the local authority is required only to consider the appointment where it appears in the child's best interests.
In the author's view, the aim of increasing the pool of children who could be provided with an IV is a sound one. What children and young people have told the Children's Rights Director is that they generally benefit from the appointment of an IV yet too many children do not have someone in their lives who fulfils that role. In addition too many children explained that they were not offered an IV. The Children's Rights Director explains in his report that he is sending a copy of the report to Government. It is hoped that this will prompt the Government to make further and stronger efforts to achieve the aim of ensuring that all children who could benefit from an IV and who want one are offered an IV.
The perennial difficulty for looked after children is that they may well not know what services are potentially available to them or which should be offered to them. These difficulties need someone involved in the child's life to identify gaps and to bring those to the attention of relevant persons with responsibility. Looked after children who could benefit from an IV are likely those who are not being visited by members of the family and so parents and persons with PR are hardly well positioned to raise questions on the child's behalf or in the child's interests. A remedy against the refusal of an appointment of an IV (and arguably the failure to consider the subject of whether an IV should be appointed) rests in a claim for judicial review but children's access to such courses of challenge will invariably require another person in his/her life to identify and raise the issue.
Noel Arnold is the Head of Legal Practice at the Coram Children's Legal Centre (CCLC) in London and sits on the Law Society's Children Law Sub-committee and the Association of Lawyers for Children's Executive Committee. Follow Noel on Twitter: @Children_Law. Follow the CCLC on Twitter: @CCLCUK. The CCLC is interested to hear from family law practitioners who are involved in cases with wider implications for groups of children with a view to considering what assistance CCLC may be able offer.
 § 1.4 The Children Act 1989 Guidance and Regulations, Volume 2: Care Planning, Placement and Case Review, HM Government, March 2010, https://www.education.gov.uk/publications/eOrderingDownload/DCSF-00185-2010.pdf
 ibid, p. 2
 See Chapter 1 of the Green Paper, Care Matters: Transforming the Lives of Children and Young People in Care, Department of Education and Skills (now DoE), October 2006, https://www.education.gov.uk/publications/eOrderingDownload/Care-Matters%20Green%20Paper.pdf
 § 5.67 of the White Paper, Care Matters: Time for Change, Department of Education and Skills (now DoE), June 2007, http://www.official-documents.gov.uk/document/cm71/7137/7137.pdf
 References to child or children in the remainder of this article should be read accordingly as references to a looked after child or looked after children
 § 17(2)(a), Sch 2 CA 1989
 § 17(5), Sch 2 CA 1989
 § 17(6), Sch 2 CA 1989 actually uses the word 'determine' which is assumed to be a typographical error. The author assumes it should read 'terminate'
 Read together with s.42 and Sch 4 CYPA 2008
 s.23ZB(1)(a) CA 1989
 s.23ZB(1)(b) CA 1989
 s.4(e) The Children and Young Persons Act 2008 (Commencement No.3, Saving and Transitional Provisions) Order 2010
 This section only deals with the issue of who is considered a connected person to the local authority such that they should not be considered independent and thereby unable to fulfil the role of an IV.
 HL Deb 1 July 2008 cc142, 01.07.2008 (at approx 12:45 p.m.), http://www.publications.parliament.uk/pa/cm200708/cmpublic/children/080701/am/80701s07.htm
 Edwards, Jo, "Independent Visitors: Visiting, Befriending and Advising Children in Care"  41 Family Law 868-870
 The issue of the IRO's independence is not without controversy. See further: Arnold, N, Independent Reviewing Officers: Past, Present and Future, Seen & Heard (Dec 11), Vol. 21, Issue 4, pp. 12-23
 See Ofsted's Children's Rights Director for England report, Independent visitors, Children and young people's views, 31.10.2012, http://www.ofsted.gov.uk/resources/independent-visitors where at p. 7 this explains that some children and young people were confused about whether other people (for example, a Personal Adviser) was the child's IV
 Ibid, at n. 3 and 4
 Ibid, at n. 14
 31.10.2012, http://www.ofsted.gov.uk/resources/independent-visitors
 Ibid at n. 14