Responsibilities of the local authority to children who cease to be looked after children in custody



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Responsibilities of the local authority to children who cease to be looked after children in custody


Statutory Guidance to the Children Act 1989 (Visits to Former Looked After Children in Detention) (England) Regulations [2010]

Status



  1. This document is issued by the Secretary of State for Children, Schools and Families under section 7 of the Local Authority Social Services 1970. Section 7 of the 1970 Act requires local authorities in carrying out their social services functions to act under the general guidance of the Secretary of State. This guidance should be complied with by local authorities when exercising these functions, unless local circumstances indicate exceptional reasons that justify a variation.

Background

  1. Research and data indicates that that looked after children enter custody at a higher rate than other children. The most recent report by HMI identified that 24% of 15-18 year were looked after before entering custody.1 Where a child has been looked after prior to entry to custody, the local authority may have various duties depending on the child’s legal status.

  2. Where a child is the subject of a Care Order (under Section 31 of the Children Act 1989 (‘the 1989 Act’)) then the local authority shares parental responsibility for the child and will have ongoing duties to support the child whilst they are in custody and plan for their release and resettlement in the community. This release and resettlement planning should address where the child will live on release and how they will be provided with the support and services required to meet their needs – including the need to be diverted from re-offending.




  1. A similar process should be followed where children are entitled to support as care leavers. These young people will become “relevant” children under the leaving care provisions of the 1989 Act. The responsible authority (i.e. the local authority that was looking after the child before he or she entered custody) must allocate a personal advisor and work with the young person to prepare a pathway plan. This should include arrangements for the support that they will be provided with on release. This will include arranging for their accommodation and maintenance if they have not reached the age of 18.




  1. However there are particular concerns with regard to children who were voluntarily accommodated (under section 20 of the 1989 Act) before remand2 or sentence and whose period in custody ends before their 16th birthday or those who are not entitled to leaving care support. If their remand or sentence is served in a Youth Offenders Institute (YOI), or their sentence is served in a Secure Training Centre (STC) or Secure Children’s Home (SCH) then these children will no longer be looked after by a local authority. Some children in this group may have been looked after for a considerable time prior to being sentenced and may not necessarily be able to return to the care of a stable family.



  1. In recognition of these concerns, the White Paper “Care Matters” (2007) included a commitment to extend the requirement for local authorities to visit children to this potentially very vulnerable group of children.

Introduction

  1. This guidance applies to children who lose their looked after status on entering custody. This means children who were either looked after under s20 of the 1989 Act prior to being remanded or sentenced to custody or those who were looked after by virtue of having been remanded to local authority care under section 23(1) of the Children and Young Person’s Act 1969.




  1. The guidance does not, however, apply to children who on entering custody become “relevant” children for purposes of section 23 A of the 1989 Act on entering custody, or who become so if the appropriate time-scales are reached whilst they are in custody3. This is because these children will be entitled to local authority support as care leavers (see paragraph 4 above).




  1. Those who will not become relevant care-leavers whilst in custody are children who:




  • are aged 16 or 17 but have been looked after for less than 13 weeks since the age of 14 (perhaps because they were remanded into local authority accommodation immediately prior to sentence) ; or who

  • will leave custody before their 16th birthday.




  1. Section 15 of the Children and Young Persons Act 2008 inserts a new section 23ZA into the 1989 Act. This imposes a duty on the local authority to ensure that a child who was looked after by that local authority but has ceased to be so as a result of certain circumstances is visited by a representative of the authority. The local authority also has a duty to arrange for appropriate advice, support and assistance to be available to those children.




  1. The Children Act 1989 (Visits to Former Looked After Children in Detention) (England) Regulations 2010 (‘the 2010 Regulations’) provide that these duties will apply to children and young people who have ceased to be looked after as a result of being detained in a:




    • Young Offender Institute;

    • Secure Training Centre; or

    • Secure Children’s Home

and who are not “relevant” children4.




  1. The local authority will have other ongoing duties towards this group of children under the 1989 Act. Where these children and young people are aged 16 or 17 they may be entitled to advice and assistance as “qualifying children” under section 24(1B) of the 1989 Act.5.




  1. All children who may be in need are entitled to an assessment under section17 of the 1989 Act.



Notification and Visiting


  1. At the point the young person is remanded or sentenced to custody, if the local authority’s social worker has not attended Court, the responsible YOT should notify the local authority about the details of their sentence and about where they have been detained.


  1. The local authority must then appoint a representative to visit the child. This representative should preferably be a qualified social worker employed by the authority and usually the social worker or personal advisor who was allocated to the child’s case and responsible for maintaining the care or pathway plan before they entered custody. There may be some circumstances where a residential care worker or a foster carer familiar to the child might be appropriate to carry out this role.




  1. The role must not be fulfilled by a YOT worker.



  1. The local authority should also inform the child’s IRO of their placement in custody and the name of the appointed representative.




  1. Regardless of the fact that the child is no longer looked after, the secure establishment will have the same need for information as any other residential setting. Within five working days of the child’s placement, the local authority should provide information to the custodial establishment by contacting the child’s appointed case supervisor and/or the social worker based in the YOI to inform them of:




  • the child’s previous care status;

  • persons with parental responsibility for the child;

  • name and contact details of the local authority’s appointed representative and the accountable team manager;

  • any immediate information necessary to ensure the child’s safety;

  • relevant information about the child’s family/carers and contact arrangements;

  • relevant information about the child’s needs that will enhance the establishment’s ability to care for the child, especially in responding to the child’s health and education needs

  • the date when the appointed representative will be visiting the child.




  1. In return, they should seek information from the secure establishment about the arrangements for them to visit the child.


Timing of visits


  1. The local authority must ensure that the appointed representative visits the child within 10 working days of their entering custody, unless this is not reasonably practicable6. The establishment should facilitate the visit and allow the child to be seen in privacy, unless the child refuses. Representatives of the local authority should be afforded the same status as legal visitors rather than the more limited access to the child that applies to family visits.




  1. Regulation 4(1)(b) also places a duty on the local authority to ensure that their representative also visits the child when reasonably requested to do so by:



  • the child;

  • a member of staff of the institution where the child is detained;

  • the child’s parent(s) or person with parental responsibility; or by

  • the relevant YOT case manager



Assessment and planning process




  1. The purpose of the initial visit is to complete an assessment of the child’s needs whilst in custody and on release. This will take into account previous assessments that have informed the child’s care plan and any new information from the assessments undertaken by the YOT or custodial establishment. The assessment should be based on the format for initial assessments provided by Framework for Assessment for Children in Need and their Families 7

Regulation 6 sets out the information that must be included in the assessment




  • The child’s wishes and feelings

  • Is the child’s welfare being adequately safeguarded and promoted?

  • Are further visits required

  • Who will keep in touch with the child whilst they are detained? Does there need to be help with contact arrangements?

  • Will it be in the child’s best interests to become looked after again by the local authority on release?

  • Whether the child and their family might require other services provided by the local authority formerly responsible for looking after the child, or from another local authority.

The representative might usually consider the following issues:




  • Is there a risk of self harm?

  • What is the child’s emotional state?

  • Does the child need money, clothes, books or other practical support?

  • Are education staff aware of and able to meet the child’s educational needs, including any special needs or abilities?

  • Are the health unit and wing staff aware of, and able to meet, the child’s health needs?

  • Are staff aware of, and able to meet, the child’s religious and cultural needs?

  • Is the child worried about anything? If so, what? Does the child understand how they can access advocacy and other services to express any concerns and make their views known?

  • Are the child’s parents able to fulfill their parental responsibility to the child whilst in custody?

  • Has there been a change in the parents’ capacity to enable them to resume care of the child on his release in a way that will meet the child’s needs? If not, might additional support be provided to enable the parents be able to resume care of the child?

  • If it is not appropriate for the child to return home or to become looked after again, what alternative arrangements need to be made?



  1. The child’s wishes and feelings on these matters must be sought8. The assessment must also take into account the views of the child’s parents (or any other person with parental responsibility) and appropriate members of staff in the custodial establishment (including pastoral care, education and health staff), unless it is not reasonably practicable to do so or it is not consistent with the child’s welfare9. The views of the child’s previous carers and the Independent Reviewing Officer should also be sought. If the appointed representative is not the social worker who was previously allocated to the child’s case, that social worker’s views should also be sought.




  1. The assessment should be completed within 20 working days the child entering custody and should conclude with an analysis that leads to recommendations about the advice, assistance and support that the child will need whilst in custody and on release.




  1. The recommendations should include proposals as to the future involvement of the local authority, for example whether visits should be maintained, whilst the child remains in custody and on release. If parents are unavailable or otherwise unable to exercise their parental responsibility by providing the child with support whilst in custody, the child will require ongoing visits, and support and practical help from the local authority whilst in custody as a child in need under s17 of the 1989 Act.

26. Options for the child on release will be as follows:




  • child’s parents or wider family will be able to resume care of the child on release from custody, with support from the local authority exercising their powers under section 17 of the 1989 Act and with continuing supervision from the YOT;

  • child’s parents or wider family will be able to resume care of the child on release from custody, solely with supervision from the YOT;

  • child will need to become looked after again on release;

  • child will not be able to return home to parents but it will be inappropriate for them to become looked after again because of their age or particular circumstances, in which case the YOT and local authority will need to meet with housing and other relevant services well before the planned release date to determine the arrangements that will be necessary in order to provide them with suitable accommodation and support in the community.



  1. Regulation 6(3) specifies that the local authority should give a copy of the representative’s report to:




    • the child;

    • their parents or those with parental responsibility, unless this would not be in the child’s interests;

    • the governor or director of the institution where the child is detained

    • the relevant YOT case manager

    • the local authority where the child is being detained (if different from the authority that formerly looked after the child); and

    • any other person whom the responsible authority considers should receive a copy of the report.


Decision Making
28. Every local authority will need to appoint a designated manager to receive reports from the representative and decide how the local authority will act on their recommendations. This should be an officer of the authority with responsibility for allocating any resources necessary to provide support to the child in future.

29. The representative’s assessment with their recommendations about the support and services that the responsible authority and youth justice services will provide to safeguard and promote the child’s welfare10 must be sent to the designated manager in the authority formerly responsible for their care.


30. The relevant local authority manager must confirm that the assessment and recommended plan have been received and the steps that will be taken to implement its recommendations. The local authority should develop a protocol with the local youth offending service for confirming and recording such plans.
31. In circumstances where the designated manager does not accept the recommendation about ongoing support to be provided to the child, then it will be necessary to consult the YOT case manager and YOT manager; and also desirable to consult with the child’s former IRO and their former social worker (if not the appointed representative), before the designated manager confirms this decision
32. Each local authority will need to put in place a process agreed with the Youth Offending Service and set out in their joint protocol for resolving disputes in cases where the local authority designated manager rejects the representative’s assessment or recommendations for providing continuing support for a previously looked after child in custody. This process must enable a decision to be reached about whether or not the formerly responsible authority will contribute to their future support well before they are due to be resettled into the community (no later than 28 days prior to their potential release date).
33. Details of the plan confirming how the local authority previously responsible for their care will contribute to their support in future should be sent to


  • the child’s case manager in the YOT;

  • the Governor or manager of the custodial establishment;

  • the child, their parents and others with parental responsibility;

  • any other agencies that would be responsible for implementing the recommendations relating to the child, such as a provider of supported housing.

  • The local authority might also send the assessment and agreed plan to any other relevant parties with the child’s consent.


34. Where the local authority has decided that it will not be providing any continuing support for a formerly looked after child assessed by their representative, the designated manager in the responsible authority must inform the following:


    • the child’s case manager in the YOT;

    • the Governor or manager of the custodial establishment;

    • the child, their parents and others with parental responsibility;

35. Where the authority has determined that they will be offering some support to the child then responsibility for implementing the plan to deliver this will rest with the manager that the local authority appoints to take forward this task. This should not affect other services being provided and future support should be provided in conjunction with any on-going interventions provided by youth offending services.
36. Where it has been agreed that the child will need ongoing support from the local authority either whilst they are in custody or following release, or that the child will need to become looked after again, arrangements should be made to maintain contact with the child, whilst they remain in custody.
37. The child might be visited in the same way as any other child in care whilst in custody. That is, visits taking place at intervals of not more than six weeks for the first year and not more than three months after that. Additional visits should also take place if reasonably requested by the child, the establishment or the YOT case manager or if there are particular circumstances that require a visit. For example, it will be good practice for the appointed representative to attend the child’s remand or sentence planning meetings. Where the child is placed in an SCH or STC, a visit should also take place either if there has been a notification under the Care Standards Act 2000; or if, where the child is placed in a YOI, concerns about the welfare or safety of children are raised by Her Majesty’s Inspectorate of Prisons.

Children serving long sentences
38. Most children will not be in custody for long periods. The most common custodial sentence is a Detention and Training Order (DTO), with a maximum of two years, but half of the Order is served in the community. Periods on remand awaiting trial are also usually short. In the case of serious crimes, however, longer sentences can be imposed11. These children are likely to be transferred between establishments as they get older and, if they reach the age of 18 whilst in custody, they may be moved to an adult prison. Responsibility for their supervision will then transfer from the YOT to the Probation Service.

39. The same principles apply as with other children: if parents or wider family are assessed as being able to meet their needs whilst in custody and on release, the assessment may conclude that there is no ongoing role for the local authority. Where they are not able to fulfill this role, the representative’s assessment will need to take this into account and make recommendations to the designated manager in the authority formerly about remaining in touch with the child.


40. This may involve the formerly responsible authority in making negotiations with the YOT and Probation Service about the child’s release plan in adulthood. These services will need to be advised about the child’s eligibility for leaving care services. The YJB has additional responsibility for planning for children on long sentences and the local authority should inform them of their involvement and intentions. The relevant contact is:
Head of Placement and Casework Service

Youth Justice Board for England and Wales

1 Drummond Gate

Pimlico, London

SW1V 2QZ

Tel: 020 3372 7855
41. The needs of children serving long sentences are likely to change and need to be re-assessed. Where parents are able to meet the child’s needs whilst in custody, but will not be able to provide suitable accommodation or support on release, it may not be necessary for the local authority representative to undertake regular visits throughout the entire sentence. They should, however, ensure that they receive regular information about the child’s progress and should agree with the child’s YOT case manager the point during the sentence when they will undertake a re-assessment with a view to beginning to plan for release. Visits should be resumed at this point. A re-assessment could also be triggered by a change in the child’s needs, circumstances or plans before this point.

Action to be taken if there are concerns about the child’s safety or welfare

42. The local authority does not have the power to terminate the ‘placement’ of a child who has been remanded or sentenced to custody in the way that it can terminate placements made under section 22C of the 1989 Act. Where there are concerns that the child is not being safeguarded or their welfare promoted, there are a number of avenues for the local authority to pursue. These concerns may relate to the quality of care the child is receiving in this particular establishment or to a perception that the type of placement is unsuitable for the child, for example because they are thought to need closer supervision. In the first instance, the authority may be able to resolve the concerns by agreement with the establishment itself. All YOIs are required to have a Safeguards Manager and there are a number of childcare social workers based within YOIs who may be able to address the problem, as may the managers of SCHs and STCs. For example, the child could be moved to another unit within the establishment or provided with additional support or services.


43. Where issues cannot be resolved at establishment level, the responsible authority may need to involve external agencies. All custodial placements for under 18 year olds are commissioned by the YJB and they are ultimately responsible for ensuring that they provide appropriate care. The YJB employs monitors to have oversight of standards and performance. Local Safeguarding Children’s Boards also have responsibility for the secure establishments for under 18s in their area - as do Local Authority Designated Officers (LADOs) if child protection concerns arise. If the responsible authority is of the view that the child needs to be moved to another establishment, the YJB has a transfer protocol. Transfer requests can be formally initiated by the:


  • YOT

  • establishment, or

  • placement team at the YJB.

44. The local authority should contact one of these agencies to express their concerns and ask that they complete a Transfer Request Form, indicating the degree of urgency. Concerns should also be submitted in writing to the YJB placement team and, if they relate to the standard of care being provided by the establishment rather than the specific needs of an individual child, the LSCB and YJB monitor for the establishment should be notified.


Planning for release

45. Where the plan is for the child to be looked after again or for them to be provided with support in the community from children’s services then the local authority must be involved in the plans for release. They must also be involved in discussions if the child is being considered for early release or home curfew detention, particularly with regard to the child’s ability to cope with any additional supervision requirements, such as electronic monitoring or an Intensive Supervision and Surveillance Programme (ISSP); or any MAPPA12 arrangements that have been set on release


46. Wherever possible, arrangements should be made for children to visit prospective placements and employment or educational facilities and to meet relevant practitioners before their release. There are facilities for a child to be granted Release on Temporary Licence (ROTL) or Mobility to allow outside visits to take place.


47. As soon as possible, and [ideally] no later than 14 days before release, the child must know:


  • who is collecting them;

  • where they will be living;

  • the reporting arrangements;

  • sources of support – including out of hours;

  • the arrangements for education or employment;

  • arrangements for meeting continuing health needs;

  • how and when they will receive financial support;

  • when they will be seeing their social worker;

  • the roles and responsibilities of the respective practitioners.

It is essential that there is clarity about who is responsible for each element of the child’s plan and the arrangements for communication and enforcement. The local authority should record this plan and make copies available to the child, the supervising YOT officer, IRO, other agencies that will be involved with supporting the child after release and the child’s family, if appropriate.


Support in the community

48. Sentenced children returning to the community will continue to be supervised by the YOT. For those on a Detention and Training Order (DTO), the most common custodial sentence, the second half of the term is served in the community but the child can be recalled if they do not comply with the conditions within their Notice of Supervision. For children who have served other types of sentence, they are released on Licence and can again be recalled if they breach the conditions or are thought to pose a risk to others.


49. Where as a result of the representative's assessment the local authority has agreed to support the child on release, then the social worker allocated to the child’s case will collaborate with the YOT case manager during the period of supervision by the YOT. The function of the allocated social worker to plan for the child’s care, or for their support in the community, is different and more extensive than that of the YOT case manager officer.

50. Children are vulnerable in the early days after release and need considerable help, both emotionally and practically, to:




  • readjust to living in open conditions;

  • meet the requirements for reporting and surveillance;

  • settle into accommodation;

  • become established in education or training;

  • re-establish relationships with family and friends;

  • be diverted from re-offending.

51. It is good practice to have some joint appointments with the child, supervising YOT officer and local authority social worker, so that information is shared and the child receives an integrated service. The YOT should consult the local authority over enforcement issues, particularly if there is a possibility of the child being breached – that is when the YOT considers the child has broken the conditions of their Notice of Supervision and issues proceedings to return the child to court, when they may be returned to custody. (Children on Licence can be recalled to custody without returning to court). Where the child is having difficulty in complying with their conditions, the local authority should work with the YOT to put additional support in place. The social worker and supervising YOT officer should keep each other informed of significant events, including any changes in service delivery or plans.


52. Where the child becomes looked after then, their care plan must be reinstated and the placement plan agreed with their placement provider should include information about the support that the placement will provide to minimise the likelihood of the child committing any further offences in future.
Annex
Outline of matters to be included in protocols between children’s services and Youth Offending Teams.
This outline is not intended to be comprehensive but sets out those matters that will be particularly important so that children’s services and YOT can work in partnership to support and assist children “on the edge of care” or those that have been looked after.


  1. Arrangements, compatible with the Framework for Assessment for Children in Need and their Families 13so that YOTs are able to refer children on their caseloads for initial and core assessment so that they are able to access support as children in need. These will include processes for expediting referrals of children who may require accommodation by children’s services, including children who may be homeless on their release from custody.




  1. Where children are known to both services, arrangements for joint working that recognise the distinctive contribution of each service to safeguarding and promoting the welfare of the child concerned. (Where a child is looked after the “lead professional” will be a children and families social worker). These will include detail about:




    1. Information sharing;

    2. notification by the YOT when a child, not already allocated to a social worker in children’s services, is remanded to local authority accommodation,

    3. arrangements for children’s services to refer looked after children and “children in need” to “early-intervention” and positive activities provided by youth offending services to prevent offending behaviour and divert children from the criminal justice system.




  1. Arrangements for children’s services to notify their local YOT services about offending by looked after children placed out of authority, so that the local YOT may support children’s services in negotiating appropriate services provided by youth offending services to tackle offending behaviour by their looked after children in the area where the child is placed.




  1. Joint arrangements for participating in throughcare and resettlement planning and statutory care planning review where children in care (subject to a Care Order under s.31 of the Children Act) are in custody.



  1. Arrangements for sharing plans for the future support of a former looked after child in custody that have been developed a following the assessment of a representative appointed under the Former Looked After Children (in Detention) Visiting Arrangements (England) Regulations [2010] and this Guidance.



  1. Processes for timely, effective, dispute resolution in circumstances where the accountable staff in children’s services and YOT are unable to reach agreement about how individual children might be best supported – including a process to meet the requirement set out at paragraph 22 of this guidance where the local authority designated manager rejects the representative’s assessment and recommendations for providing continuing support for a previously looked after child in custody

1 HMI/YJB Children and Young People in custody 2008-2009

2 A person aged 17 years may be remanded to a YOI under section 27 of the Criminal Justice Act 1948 (as amended). Any child who was a looked after child prior to being remanded to a YOI will cease to be looked after once they are in custody.

3 Children (Leaving Care) Regulations 2001. Regulation 4


4 Regulation 1(3) provides that the Regulations do not apply to a child who is a relevant child for the purposes of section 23A of the Act.

5 As substituted by section 4 of the Children (Leaving Care) Act 2000).

6 Regulation 4(1)(a) of the 2010 Regulations

7 http://www.archive.official-documents.co.uk/document/doh/facn/fw-00.htm

8 Regulation 6(1)(a) of the 2010 Regulations

9 Regulation 6(2) of the 2010 Regulations

10 Children Act 1989 (Visits to Former Looked After Children in Detention) (England) Regulations 2010 - Regulation 6 (1) (b)


11 Section 90/91 of the Powers of the Criminal Courts (Sentencing) Act 2000 allows the Crown Court to impose longer sentences where a young person is convicted for a serious crime. If a young person is convicted of murder they will receive a mandatory life sentence under S90 with a specified minimum term. If they are convicted of an offence for which an adult could receive at least 14 years in custody, they may be sentenced under S91 and the length of the sentence can be anywhere up to the adult maximum for the same offence.

Section 226 of the Criminal Justice Act 2003 allows young people to be detained for an indeterminate period, but at least two years, in order to protect the public. Section 228 of the same Act allows an extended sentence to be passed for certain violent and sexual crimes, and the minimum period of detention is four years.




12 MAPPA - Multi Agency Public Protection Arrangements – is a risk management system encompassing the police, probation, prison services as well as other crime reduction stakeholders to reduce the risk posed to the public by serious offenders

http://noms.justice.gov.uk/protecting-the-public/supervision/mappa/


13 http://www.archive.official-documents.co.uk/document/doh/facn/fw-00.htm


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