The Children and Young Persons Act 2008: A Guide
The Children and Young Persons Act 2008 received Royal Assent in November 2008 and makes changes to local authority duties for helping children in care. Here, solicitor Bik Wong summarises the key changes.
Bik Wong, Solicitor
The Children and Young Persons Act 2008 (“the 2008 Act”) received Royal Assent on 13th November 2008. The purpose of the Act is to extend the statutory framework for children in care in England and Wales and to ensure that such young people receive high quality care and services which are focused on and tailored to their needs. It will be for the Secretary of State for Children, in conjunction with other relevant ministers, to decide how and when the provisions are enacted.
The 2008 Act endeavours to improve the stability of placements and improve the educational experience and attainment of young people in local authority care or those about to leave care. The implications for local authorities are far reaching in terms of their developing appropriate policies, but most importantly in the implementation of their plans. For the good intentions of the Act to be achieved, it is beyond question that additional financial and human resources will be needed.
Practising lawyers should note that the 2008 Act interpolates, or on occasions substitutes, additional sections into the Children Act 1989 and the Care Standards Act 2000. For ease of reference this is indicated in the course of this guide. The powers of the Secretary of State for Children are also extended to enable him to carry out research on the functions of local authorities under recent legislation ie: The Adoption and Children Act 2002; the Children Act 2004 and the present 2008 Act.
The principal provisions of the 2008 Act are:
- Local authorities will be empowered to enter into arrangements with other bodies in the discharge of its care functions, but may not delegate such functions to other local authorities
- The securing of sufficient and appropriate accommodation for children in local authority care
- An amendment to the duties of local authorities to enable them to appoint Independent Reviewing Officers, such Officers to be independent of the local authority
- Local authorities will be obliged to visit young people in its care
- There will be a designated member of staff at maintained schools whose specific responsibility it will be to promote the educational achievement of children in care who attend that school
- The local authority will have a duty to provide assistance to young persons who are in care or who have recently left care to pursue education and training
- The local authority’s power to make cash payments to children in need and their families is extended ie this power can be exercised by an authority in circumstances which are not exceptional. (s.24)
- Individuals who are responsible for caring for disabled children can be assisted by being given breaks from their care duties (s.25)
- The Chief Inspector of Education Children’s Services and Skills will have enforcement powers in relation to a person who is failing to comply with a requirement relating to a child’s home etc.
- The rights of relatives who are entitled to apply for a residence order or a special guardianship order without leave of the court is now extended to include those with whom the child has lived for a continuous period of one year
- A pilot scheme will be established to monitor how local authorities enter into arrangements with other bodies in respect of their care functions: the scheme will commence on the day that s.1(1) of the 2008 Act comes into force and will end on the day that s.4 comes into force, or at the end of the five year period following the Act coming into force, whichever is the earlier
This article will now consider in greater detail these provisions:
Power to enter into arrangements for the discharge of care functions
(s.1(1) of the 2008 Act)
The power of a local authority to enter into arrangements with other parties for the discharge of its care functions, must be exercised in favour of registered social workers: ie such arrangements must be carried out or supervised by persons so qualified. The social service providers, are described in the Act as “P”. The care functions which the authority may so delegate are restricted to its duties to accommodate and maintain young people in its care. The authority may not enter into such arrangements in respect of its responsibility to appoint independent reviewing officers, nor in relation to its duties in respect of adoption agencies (s.2 (1) (a) and (b).
Legal liability in respect of the delegation by local authorities
The local authority will still be liable for any default or negligence by its social service provider, but will not be liable under s.6 of the Human Rights Act 1998 if the act complained of is of a private nature (s.6(2) (b). The appointment of a social service provider will not remove the possibility of the authority being judicially reviewed. However where criminal conduct is alleged the social service provider would be prosecuted as distinct from the local authority itself.
The duty to secure appropriate accommodation for young people in care
(s.8 of the 2008 Act - S.8 substitutes a new series of subsections 22A etc. into the 1989 Act in place of s.23 of the Children Act 1989)
A local authority has a duty to provide appropriate accommodation for children in its care. In practice the person with whom a child is placed may include:
- a parent
- someone with parental responsibility though they are not a parent of the child
- where a child is in the care of the local authority, but a residence order was in force in respect of the child immediately before the care order was made, the provider of the accommodation may be the person in whose favour the residence order was made (new s.22C(3) of the 1989 Act)
Predictably, none of the above parties will be regarded as appropriate providers of accommodation for the child, if any of their characteristics would adversely affect the welfare of the child in any way. Likewise none of these categories of person will be suitable if the child’s living with them was not “reasonably practicable”.
In circumstances where the parties set out in the preceding paragraph are deemed to be unsuitable, the local authority has a duty to place the child with another suitable individual which may include:
- a relative, friend or other person connected with the child who is also a local authority foster parent
- A local authority foster parent
- A placement in a children’s home in respect of which a person is registered under part 2 of the Care Standards Act 2000
- Or finally in accordance with other arrangements which comply with regulations which shall be made for the purposes of this section of the 2008 Act: obviously such regulations have yet to be made
In making its decision on where a child will be placed, the local authority must predictably consider all of the circumstances of the child’s case to include: the geographical position of the child’s home; their education and training; where a child has a sibling for whom the local authority are also providing accommodation, then the children should be accommodated together; if the child is disabled then the accommodation provided must be suitable to his/her needs. In circumstances where the authority intends to accommodate a child with a parent, someone with parental responsibility or a children’s home, the authority must first review the proposed arrangements according to regulations made under s.26 of the Children Act 1989 ie review by an Independent Reviewing Officer. Where children are accommodated with someone not falling within one of these categories, then such an arrangement is permitted provided it is necessary to safeguard the child’s welfare and there are circumstances which render the placement urgent.
The Appointment of Independent Reviewing Officers
(covered by section 10 of the 2008 Act - s.10 inserts new sections 25A etc. into the Children Act 1989. Sections 15 and 16 of the 2008 Act cover the duties of the Independent Reviewing Officer)
The 2008 Act does not define who may be an Independent Reviewing Officer. It will be the duty of the “appropriate national authority” presumably the Secretary of State for Children to define in regulations what the qualifications and experience of such officers must be. The Secretary may also (under s.11 (1)) by order, establish a new national body of Independent Reviewing Officers to carry out the reviewing functions. An order made under this section may provide for the training, accreditation and management of independent reviewing officers.
The duties of the Independent Reviewing Officers will be to monitor the performance of the local authority in accommodating children in its care and ensuring that the ascertained wishes and feelings of the child are given due consideration by the local authority. Interestingly, the officer will have the power to refer a case to a CAFCASS officer, presumably with a view to legal proceedings being initiated if the authority is considered to have erred in some way.
The duty of the local authority to visit children in care
This section confers a duty on local authorities to visit children in care but at the time of writing, the Act is silent on who will be the authority’s visitor and the circumstances in which such visits will be made. Regulations will be made by the Secretary of State on such factors as the frequency and the circumstances of such visits and indeed the functions of the visitor. The child in care may object to such a visitor if they have sufficient understanding to make an informed decision
A designated member of staff at maintained schools for pupils who are in the care of the local authority
The duty of this member of staff will be to promote the educational achievement of young people in care who attend the member’s school. This is clearly an important appointment given that there is much anecdotal evidence which suggests that children in care underachieve at school. The governing body of the school has the duty of ensuring that its designated member of staff is appropriately trained. It is likely that the appropriate national authority, one assumes The Chief Inspector of Education Children’s Services and Skills, will determine what such appropriate training will be.
The duty to provide further assistance in education or training
(s.22 of the 2008 Act interpolates a new series of sections. S.23CA (1) etc. into the 1989 Act)
Local authorities will have a duty to provide further assistance to those under the age of twenty five (or a lesser age if so prescribed by the Secretary of State) to pursue education or training. This provision could well be an onerous burden on local authorities which are already hard pressed financially given the nature of the duty. Authorities will also be compelled to: appoint a personal adviser to young people in care and will also be obliged to carry out an assessment of the educational/training needs of each young person. Though the Act does not say it in so many words, assuming that this provision is activated, young people who are or have been in care will effectively be financed through a programme of education or training. The financial assistance envisaged includes contributing to living expenses to enable the assisted person to live near their training or educational establishment or making a grant available to enable him to meet such expenses. The duty extends for as long as the individual pursues the programme which he has commenced.
The Act does not specify who may be a personal adviser; again presumably it will be for the Chief Inspector of Education Children’s Services and Skills to define who may fulfil this role.
Other assistance which a local authority may give
Section 24 of the 2008 Act empowers a local authority power to make cash payments to children in need and their families in circumstances which are not exceptional: this is an extension of the pre-existing power already contained in s.17(6) of the 1989 Act.
In recognition of the difficult task of caring for disabled children, individuals who have such a responsibility can be assisted by being given breaks from their care duties (s.25 of 2008 Act.). The Act gives no detail on how such assistance would be provided in practice and merely states that such a duty would be performed in accordance with regulations made by the appropriate national authority.
Enforcement powers of the Chief Inspector of Education Children’s Services and Skills
(s.26 of the 2008 Act. S.26 inserts additional provisions after s.14(1) of the Child Care Standards Act 2000)
The Act envisages the Chief Inspector as being the enforcer of standards in respect of social service providers: such enforcement would be by way of a compliance notice on the provider. The notice would:
- State the opinion of the Inspector
- Identify the requirement which it is considered the provider has failed to fulfil
- Describe how the provider is failing to fulfil the identified duty
- Identify the establishment or agency in relation to which the Inspector considers the provider is failing
- Specify the steps the Inspector considers should be taken to comply with the duty
- Set out the timescale within which compliance must be effected.
Most interestingly failure to comply with a compliance notice will be a criminal offence liable to summary conviction.
Additional powers of OFSTED
(S.27 of the 2008 Act interpolates a new sections 22B etc after s.22A of the Care Standards Act 2000)
OFSTED (the Office for Standards in Education for Children’s Services and Skills) will take on yet another regulatory function. The Office will have the power to serve a notice on those running children’s homes or residential family centres notices restricting their activities ie that no further children can be accommodated at the establishment save for children who were accommodated there when the notice was served, and who have continued to reside there since the notice was served.
The notice must:
- set out what remedial requirements are imposed
- Identify the establishment upon which the requirement is imposed
- Set out the reasons why OFSTED has served the notice
- Explain the right of appeal against the notice conferred by s.21 of the 2000 Act
Other miscellaneous points of note
The 2008 Act removes the moratorium on the court’s powers to hear an application to discharge an Emergency Protection Order before 72 hours have elapsed, ie s.45(9) of the Children Act 1989 is repealed.
The Registrar of births and deaths will have a duty to notify Local Safeguarding Children boards of the death of a child.
The Registrar General will have the power to supply information about the deceased child to the appropriate national authority (presumably OFSTED) for research purposes.
With reference to the private fostering of children, the period within which a registration scheme may be established is extended to three years.
The aims of the 2008 Act are most laudable. However the Act has received the Royal Assent in circumstances where the hard pressed social service departments of local authorities are yet again under scrutiny about an earlier stage of their responsibilities, ie at what point should children be taken into care. This issue is revisited through the devastating case of Baby P and the scandal surrounding the criminal offence with which Karen Matthews was convicted. Nevertheless an improvement in standards of local authority care for children is needed and this is what the act seeks to address.