Preliminaries

1. Refresher Training to the Leaving Care Team – Leaving Care Duties; Lawful Decision-Making and Age Assessments Helen Ottino – Senior Lawyer & Asha Ganesh – Lawyer HB Public Law LB of Harrow 19th January 2016

2. Preliminaries • HB Public Law, Legal & Governance Services Social Care (Harrow) Team, 1st Floor, Civic 1: Helen Ottino – Senior Lawyer and Team Leader, ext 2919 Banaz Draey – Senior Lawyer, ext 2689 Matthew Dobkin – Senior Lawyer Advocate, ext 2280 Suzanne Groocock – Lawyer, ext 5673 (moving team 1.2.2016) Cassandra Lee – Lawyer, ext 2986 Seema Agha – Lawyer (locum) ext 6628 Asha Ganesh – Lawyer ext 9556 Parwant Lakhan – Lawyer ext 8349 Shivaan Jhally – Legal Assistant ext 8496

3. Overview of Session • Review of statutory legal duties for children in care and young persons formerly in care • Record-keeping and decision-making – avoiding challenge by way of judicial review • Age assessments October 2015 – ADCS guidance to social workers in undertaking age assessments http://adcs.org.uk/safeguarding/article/age-assessment-information-sharing-for-unaccompanied-asylum-seeking-childre June 2015 – ADCS and Home Office - joint working guidance https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/432724/Age_Assessment_Joint_Working_Guidance__April_2015__Final_agreed_v2_EXT.pdf

4. Child in care Children Act 1989 – child in care 1. Child accommodated under • (i) s20(1) – duty where child in need of accommodation through there being no person with parental responsibility (pr) or his being lost or abandoned or carer/parent being prevented from providing suitable accommodation or care; • (ii) s20(3) – duty where 16 year old child in need, whose welfare otherwise likely to be seriously prejudiced; • (iii) s20(4) - discretion, where person with pr able to provide accommodation but local authority considers provision of accommodation would safeguard or promote welfare. Under s20 local authority does not share pr with parent.

5. Child in care (2) 2. Child subject to interim care order (s38(1)) or care order (s31(1)) • Parental responsibility – under care order local authority shares pr with parent/guardian(s) and may determine the extent to which the parent/guardian(s) may meet his pr (s33(3). • Duration - a full care order will last until child attains the age of 18, unless discharged earlier by the court (s91(12)). 3. Child remanded to local authority accommodation – s92, Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO 2012) or remanded to Youth Detention Accommodation (YDA) – ss102-104, LASPO 2012 • pr is not shared with the parent/guardian(s).

6. Duties to children in care General duty to child looked after - s22 • - (3) to safeguard and promote welfare and make appropriate use of services for children; • - (3A) to promote educational achievement; • - (4) before making any decision with respect to the child, as far as is reasonably practicable, to ascertain wishes & feelings of the child; of his parents/other person with pr & any other person whose wishes & feelings considered relevant. Provision of accommodation & maintenance – duties; the placement – with whom, suitability of and review; care planning & review; role of IRO; swvists; independent visitors - ss22A – 22D, s23; s23ZA & s23ZB - Schedule 2, Part II; - Care Planning, Placement & Case Review (Eng) Regs 2010 (CPPCR Regs 2010); June 2015 statutory guidance – Care planning, placement and case review https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/441643/Children_Act_Guidance_2015.pdf

7. Duties to children in care (2)Preparation for leaving care - generally CPPCR Regs 2010 Reg 39(2) Before deciding to cease to look after a child, local authority must (a) assess suitability of proposed arrangements for accommodation & maintenance; (b) assess services and support that might be needed; (c) ascertain and give due consideration to child’s wishes & feelings; (d) consider whether ceasing to look after the child will safeguard & promote his welfare; Reg 39(5) – where child is 16 or 17 years the decision to cease to look after must not be put into effect until approved by the authority’s director of children’s services Schedule 2, CA 1989 Para 19A – Duty to advise, assist and befriend child with a view to promoting his welfare when local authority has ceased to look after him

8. Duties to children leaving care (3)Preparation for leaving care – eligible children January 2015 statutory guidance – Planning transition to adulthood for care leavers Care Leavers (Eng) Regs 2010 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397649/CA1989_Transitions_guidance.pdf Determination of whether child is ‘eligible’ child; If ‘eligible’ child; then consider whether ‘relevant child’ or ‘former relevant child’

9. Duties to children in care (4)Preparation for leaving care – definition of eligible child Eligible child • Schedule 2 of Children Act 1989, para 19B; • Reg 40, CPPCR Regs 2010 A child aged 16 or 17 years who has been looked after for a period of 13 weeks, or periods amounting in all to 13 weeks, which began after he reached the age of 14 years (ie 14, 15, 16 or 17 year old) and ended after he reached the age of 16 years (ie 16 or 17 year old). (Note – a child the subject of regular short breaks, between care and home, where short breaks do not exceed total of 75 days in any 12 months, is not an eligible child – regs 40 & 48)

10. Duties to children in care (5)Preparation for leaving care – assessment for eligible child Duty to assess Schedule 2 of Children Act 1989, paras 19B(4) & 19BA CPPCR Regs 2010, regs 41 & 42 Para 19B(4) - Duty to assess eligible child’s needs to determine what advice, assistance & support it would be appropirate to provide while (a) still a child looked after and (b) after ceases to be looked after Reg 42 sets out areas to be covered in assessment of need; assessment to be undertaken not more than 3 months after: the child’s 16th birthday or the child becomes an eligible child after that date Para 19BA – where eligible child in foster placement, assessment must determine whether appropriate for child to stay put after ceases to be looked after; where so assessed and child & foster carer agree, duty to proivde advice, assistance & support to facilitate this.

11. Duties to children in care (6)Preparation for leaving care – pathway plan & personal adviser for eligible child Pathway plan Children Act 1989 - S23E and Schedule 2, para 19B(4) CPPCR Regs 2010, reg 43 & schedule 8 Duty to prepare pathway plan, informed by the assessment and to keep under regular review Personal adviser Children Act 1989 – S23D and Schedule 2, para 19C CPPCR Regs 2010, reg 44 – role of personal adviser Detailed guidance on qualifications and skills, functions, need to have working relationship with young person – paras 3.17-3.60 of statutory guidance on planning transition to adulthood

12. Duties to children in care (7)Preparation for leaving care – definition of relevant child Relevant child - CA 1989 – s23A and CL Regs 2010 S23A(2) • A child who (a) is not looked after; (b) was, before last ceasing to be looked after, an eligible child; and (c) is aged 16 or 17 S23A(3) & reg 3(1), CL Regs 2010 • A child who (a) is aged 16 or 17; (b) is not subject to care order; and (c) on attaining 16 was detained, or in hospital, and immediately before being detained or admitted to hospital had been looked after by a local authority for a period or periods amounting to at least 13 weeks, which began after attaining the age of 14 (excluding periods of short breaks of no more than 4 weeks between care and home) Note – reg 3(4) excludes a child who has lived, continuously, for 6 months + with a parent or person with pr

13. Duties to children in care (8)Preparation for leaving care – duties to relevant child Children Act 1989 - s23B duties to a relevant child: (1) to take reasonable steps to keep in touch; (2) to appoint a personal adviser*; (3) to assess needs and prepare a pathway plan (if not already undertaken)*; (8) & (9) to safeguard and promote the child’s welfare and, unless satisfied that welfare does not require it, provide support – maintenance (may be in cash) and suitable accommodation; (11) if lose touch, must, without delay, consider how to re-establish contact and take reasonable steps to do so. CL Regs 2010, reg 5 - details of what such assessment of relevant child should cover, views to be taken into account & that to be undertaken within 3 months of becoming relevant child; regs 6-8 – content and review of pathway plan, functions of personal adviser; reg 9 – support in respect of education, training or employment needs and accommodation

14. Duties to those formerly in care Definition of former relevant child Former relevant child – s23C(1): • a person who has been a relevant child for the purposes of s23A (and would be one if he were under 18), and in relation to whom the local authority was the last responsible authority; and • a person who was being looked after by the authority when he attained the age of 18, and immediately before ceasing to be looked after was an eligible child.

15. Duties to those formerly in care (2)Duties to former relevant child Children Act 1989 – ss23C, 23CZA, 23CA s23C - duties to a former relevant child: (2) to take reasonable steps – (a) to keep in touch with a former relevant child, whether in the area or not; and (b) if lose touch, to re-establish contact; (3) (a) to continue the appointment of a personal adviser; and (b) to continue to keep pathway plan under review; (4) to give- (a) & (b) assistance in respect of employment, education or training (see s24B), to the extent that his welfare (and in respect of education or training, his educational or welfare needs) requires it; (c) other assistance, to the extent that his welfare requires it (in kind or, in exceptional circumstances, in cash)

16. Duties to those formerly in care (3)Duties to former relevant child (2) s23C duties (continued): (5A), (5C) (and the CA 1989 Higher Education Bursary)(Eng) Regs 2009) without prejudice to the (4)(b) duty, to pay the relevant amount - £2000 – where pursuing higher education in accordance with a pathway plan. Note – duties under (2, (3) and (4) subsist until former relevant child reaches age of 21 or, where pathway plan sets out programme of education or training which extends beyond his 21st birthday, these duties subsist for as long as former relevant child continues to pursue that programme

17. Duties to those formerly in care (4)Duties to former relevant child (3) – employment, education and training S23C(4) duty and s24B(1) and (2) assistance S24B(1) assistance – contributing to expenses incurred by person in living near the place where he is, or will be, employed or seeking employment S23C(4)(a) duty to former relevant child, to provide s24B(1) assistance to the extent that his welfare requires it S24B(2) assistance – (a) contributing to expenses incurred by person in living near the place where he is, or will be, receiving education or training; or (b) making a grant to enable him to meet expenses connected with his education or training S23C(4)(b) duty to former relevant child, to provide s24B(2) assistance, to the extent that his welfare and his educational or training needs require it. Note – the decision about what assistance to provide must be informed by (i) the assessment of need; (ii) clear analysis of the extent that the yp’s welfare requires it; and, in case of s24B(2) assistance, of the extent that his educational or training needs require assistance

18. Duties to those formerly in care (5)Duties to former relevant child (4) – young person remaining in foster care S23CZA - duties to former relevant child continuing to live with foster carer – monitoring, advice, assistance & support to former relevant child, until attains age of 21; - support to foster carer

19. Duties to those formerly in care (6)Duties to former relevant child (5) – further education and training duties S23CA(1) – qualifying young person if (a) aged under 25; (b) he is a former relevant child to whom s23C(2), (3) & (4) duties no longer subsist; and (c) he has informed responsible local authority that he is pursuing, or wishes to pursue, a programme of education or training Eg former relevant child under 25 wishing to commence fresh education course following completion of programme set out in pathway plan or to return to education

20. Duties to those formerly in care (7)Duties to former relevant child (6) – further education and training duties (2) S23CA duties: (2) to appoint a personal adviser; (3) (a) to carry out an assessment of the needs of the person with a view to determining what assistance (if any) it would be appropriate for the local authority to provide to him; and (b) to prepare a pathway plan (4) & (5) to the extent that his educational or training needs require it, to (a) contribute to expenses incurred in living near place where he is, or will be, receiving education or training; or (b) making a grant to enable him to meet expenses connected with his education and training Note – the decision about what assistance to provide must be informed by (i) the assessment of need; (ii) clear analysis of the extent that the educational or training needs require assistance

21. Duties to those formerly in care (8)Duties to former relevant child (7) – further education and training duties (3) s23CA duties (continued) (6) duties under this section subsist for as long as the person continues the programme of education or training – ie programme beyond age of 25 covered, where started before the age of 25 (10) duty to make s23C (5A) higher education bursary would apply, but any prior payment of the bursary can be taken into account in the assessment of needs Note – regs 4 – 8 of CL Regs 2010 apply to involvement ofand assessment of needs of former relevant child, preparation and review of pathway plans, functions of personal advisor

22. Duties to those formerly in care (9)Persons qualifying for advice and assistance - definition Children Act – s24 A person qualifying for advice and assistance is: (1A) a person – • who has reached the age of 16 but not the age of 21; • with respect to whom a special guardianship order is in force (or, if 18+, was in force when he reached 18); and • who was, immediately before the making of the sgo, looked after by a local authority; or (1B) a person – • who is under 21; and • at any time after reaching the age of 16 but while still a child was, but is no longer, looked after, accommodated or fostered – includes a person accommodated for 3 months + by Health and a person privately fostered

23. Duties to those formerly in care (10)Persons qualifying for advice and assistance – advice and assistance Children Act – s24A S24A(3)(a) duty to advise and befriend a person qualifying for advice and assistance under s24(1A) or a person qualifying under s24(1B) who was previously accommodated by a local authority/voluntary organisation, if: (a) he needs help of a kind falling under s24B – assessment to determine need; and (b) local authority satisfied that the person who was caring for him does not have the facilities for advising or befriending him. S24A(3)(b) discretion to advise and befriend any other person qualifying for advice and assistance

24. Duties to those formerly in care (11)Persons qualifying for advice and assistance – advice and assistance (2) S24A (continued) (4) & (5) Where under a duty or empowered to advise and befriend a person a local authority may provide assistance under s24B. In exceptional circumstances this may include providing accommodation or cash. Note – the decision whether or not to make provision must be informed by an assessment of need of the individual concerned and reasons for the decision clearly recorded

25. Duties to those formerly in care (12)Persons qualifying for advice and assistance – advice and assistance (3) Children Act – s24B assistance with employment, education and training Power to provide the advice and assistance to persons qualifying under (i) s24(1A) and (ii) those persons qualifying under s24(1B) who were looked after by a local authority by • contributing to expenses incurred in living near place where he is, or will be, employed or seeking employment; • (a) contributing to expenses incurred in living near place where he is, or will be, receiving education or training; or (b) making a grant to meet expenses connected with education or training Note – power under (2) can also be exercised for qualifying person who is aged under 25 (5) where providing assistance under (2), duty to provide suitable vacation accommodation or cash to secure such accommodation where term-time accommodation not available during the vacation.

26. Discussion and questions • Challenges and queries • Good record-keeping; • Thorough assessment and clear written analysis to inform decision making; • Reducing opportunity for challenge by way of judicial review