Ebook Social work law (4/E): Part 2

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Chapter 10
Looked after children
Learning objectives
To develop an understanding of the following:
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The term ‘looked after children’.

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The duties owed by local authorities towards looked after children.

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The duty to provide accommodation as an aspect of service provision.

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Outcomes for looked after children

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Local authority and private fostering.

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Residential accommodation and secure accommodation.

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The role of the independent visitor.

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Support for young people leaving care.


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Chapter 10 Looked after children

Talking Point
The responsibilities of the Independent Reviewing Officer were considered in detail in A and
S (Children) v. Lancashire County Council [2012] EWHC (Fam) 1689, a case which unfortunately
demonstrates how the review process failed to protect the interests of two children, described
as profoundly damaged by the care system. The Court found violations of the rights guaranteed
by Articles 3, 6 and 8 and damages were awarded.
Two brothers were freed for adoption as infants but no adoptive placement was ever found for
them. By the time their case was heard by the High Court they were aged 16 and 14. Their care
history comprised experience of multiple placements, 77 and 96 respectively. They suffered physical and sexual abuse in at least two placements and were described as becoming increasingly
unsettled and disturbed. The boys had lost contact with their birth family despite requests for contact, no substitute permanent family was found and nobody held parental responsibility for them.
Between 1999 and 2011, 35 Looked After Children Reviews were held for each boy. One Independent Reviewing Officer identified in the case had chaired 16 reviews and accepted that he
had not carried out his monitoring role effectively in providing a safeguard for the boys. It was
noted that he had at times a caseload which was three times good practice guidance and that
he lacked training and recourse to legal advice. The court noted that, ‘These were children with
increasingly complex needs, but there is no record of any serious consideration being given
to important questions such as whether keeping them together was in their interests, nor an
acknowledgement of the possible value and purpose of family contact.’
A and S successfully brought proceedings against the local authority and the IRO (as its employee) under the Human Rights Act 1998
The case clearly highlights concerns that the IRO role was not effective in providing an independent safeguard for looked after children. Similar concerns were found by Ofsted in a report

in 2013 which found the role was underdeveloped and IROs needed to be more effective in
challenging drift and delay.

Introduction
Looked after children (LAC) are those children who are accommodated by the local authority,
away from their family, in a residential or foster placement, placed or authorised to be placed
for adoption, and all children who are the subject of a care order, even if they are living
with their parents. The term includes some short-term arrangements such as children under
an emergency protection order or police protection and also children subject to a criminal
supervision order with residence or detained under the grave crimes provision of the Children
and Young Persons Act 1933, s. 53. From the implementation of LASPO all children and
young people remanded in youth detention accommodation will have LAC status.
The accommodation (provided for a continuous period of more than 24 hours1) may be provided on a voluntary basis, or under the authority of a care order or other court order. Accommodation may be provided on a long-term basis or a series of planned short-term placements,
including support foster care (formerly referred to as ‘respite care’) and fostering for adoption.
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The local authority is often described as the ‘corporate parent’ of looked after children and has
a range of responsibilities towards them.2 Improving the role of the corporate parent and outcomes for looked after children was considered in ‘Care Matters: Time for Change’ (2007)3 with
some of those recommendations given effect in the Children and Young Persons Act 2008.
There are a significant number of looked after children. On 31 March 2013, 68,110 children were looked after. About 42 per cent of those children return home within eight weeks
but many will need to be looked after in a planned way with a degree of permanence for
a substantial part of their lives. The majority (75 per cent) live with foster carers. The legal
status of LAC includes children accommodated under s. 20 and children under a care order
(59 per cent). Five per cent lived with their parents with social services input, five per cent were
placed for adoption, and nine per cent were is secure units, children’s homes and hostels.4
There were 1,860 looked after unaccompanied asylum-seeking children in England in 2013.

This chapter will consider the duties towards looked after children, including the obligation to provide suitable accommodation. The material is structured to reflect the child’s journey through placement leading to independence. For those looked after children for whom
rehabilitation with their families is not possible, security and stability may be achieved
through adoption (see Chapter 11). A clear preference has emerged from official publications for greater use of adoption for looked after children. A total of 3,980 looked after
children were adopted during the year ending 31 March 2008.5
The chapter moves on to consider a range of alternative options for looked after children
offering some degree of permanence, namely fostering and residential accommodation, and
includes discussion of secure accommodation. Finally, the responsibilities of local authorities towards looked after children who cease to be looked after, under the Children (Leaving
Care) Act 2000 (C(LC)A 2000) are considered.

Duties towards looked after children
A local authority has certain duties towards all looked after children. These duties are set
out in the Children Act 1989, s. 22. The Children and Young Persons Act 2008 replaced
s. 23 of the Children Act 1989 with new provisions 22A–F. The new provisions emphasise
that the local authority has a duty to provide a child in its care with accommodation and to
­maintain the child in other respects.

s. 22(3)
It shall be the duty of a local authority looking after any child –



(a)  to safeguard and promote his welfare; and
(b)  to make such use of services available for children cared for by their own parents as
appears to the authority reasonable in his case.
(CA 1989)

Local authorities have a duty of consultation before making decisions regarding looked
after children. Specifically, they are directed to ascertain the wishes and feelings of the child,
his parents, and any person with parental responsibility, and any other person whose wishes
and feelings are considered relevant to the matter in hand (s. 22(4)). The authority is then

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directed to give due consideration to the views ascertained. In exceptional circumstances this
duty of consultation may be limited, as in Re P (Children Act 1989, ss 22 and 26: Local Authority Compliance) [2000] 2 FLR 910, where restricted consultation was permitted because
of the continuing risk the father posed to the children in placements outside the family. In
addition, before making the decision, under s. 22(5) the local authority must also give due
consideration to the child’s racial origin and cultural and linguistic background. This factor
is likely to be most relevant to placement decisions and would suggest that, where possible,
a child’s placement should be able to meet the child’s cultural needs and be with a family
of similar religious persuasion, racial origin and cultural and linguistic background. Where
adoption is proposed for the child, the duty in ACA 2002, s. 1(5) applies, namely: ‘In placing the child for adoption, the adoption agency must give due consideration to the child’s
religious persuasion, racial origin and cultural and linguistic background.’
There is a duty to promote contact between the child and his parents, any other person
who has parental responsibility, and relatives and friends. This is not an absolute duty and is
qualified in circumstances where it would not be reasonably practicable or is not consistent
with the child’s welfare. To enable contact, the local authority may make payments to assist
with travelling and subsistence costs incurred in visits to the child or by the child visiting his
family, if undue financial hardship would be caused without the assistance. The regulations
recognise the importance of sibling relationships and, if not living together, requires the care
plan to detail arrangements for the child to have sibling contact. The local authority must
also ensure that parents (and others with parental responsibility) are kept informed of the
child’s whereabouts, unless this would prejudice the child’s welfare.
The accommodation should normally (if reasonably practicable and consistent with the
child’s welfare) be near to the child’s home and be able to provide accommodation for
siblings to stay together. The accommodation must be suitable to the child’s needs if he is
disabled. The placement should be within the local authority’s area and should not disrupt

the child’s education (s. 22C).
There is an ongoing monitoring role and the local authority is under a duty to ensure the
looked after child is visited and seen alone by a representative of the authority (s. 23ZA).

Provision of accommodation
Perhaps the most important decision the local authority will take with respect to a looked after
child is where the child is to be accommodated. Section 22 imposes a duty on the local authority to provide accommodation and maintain a looked after child and outlines a range of possible placements. Wherever possible a child should be placed with a parent (in which case the
LA should consider whether the care order is still required), a person who is not a parent but has
PR, a person who had a residence order before the making of a care order. If that is not possible
the key message from the section (as amended by the CYPA 2008) is the emphasis on kinship
or connected persons placements as the preferred placement, defined as ‘placement who is a
relative, friend or other person connected with C and who is also a local authority foster parent’
(s. 22C (6)(a)). If and only if that is not possible other appropriate placements are listed as:
local authority foster parents, who may be relatives or who are unconnected; children’s homes;
or other arrangements, which might include for example living independently with support.
Provision of accommodation on a voluntary basis is intended to be seen as a service
to support parents and it is significant that s. 20, which deals with provision of accommodation for children in need, is contained in Part III of the Act: ‘Local Authority Support
for Children and Families’. The local authority must accommodate children in need who
appear to require accommodation as a result of:
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s. 20(1)
(a)  there being no person who has parental responsibility for him;
(b)  his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently,
and for whatever reason) from providing him with suitable accommodation or care.

(CA 1989)

The duty is to provide accommodation for a child, not for a parent and child. In R (G) v.
Barnet London Borough Council [2003] UKHL 57, a mother and her 1-year-old child had come
to the United Kingdom from Holland. The local authority were of the view that the child’s
best interests would be served by remaining in the care of his mother and they offered to pay
their fare to return to Holland. This was rejected. The local authority therefore was found to
have acted within the terms of the Children Act 1989 by offering to accommodate the child
only, under s. 20. The local authority may be considered to be accommodating a child where
it plays a major role in making arrangements even if the accommodation is provided by a
known carer. For example, in Southwark London Borough Council v. D [2007] EWCA Civ 182,
social services asked a father’s former girlfriend to look after his 14-year-old daughter following an allegation that he had attacked her. The local authority argued that it had facilitated
a private fostering arrangement but this was not accepted by the court.
According to R (RO ) v. East Riding of Yorkshire Council [2011] EWCA Civ 196, many
children in residential special schools will be classed as looked after children, meaning that
duties under the Children Act 1989 apply and they are likely to be entitled to leaving care
services. The basis for the decision was that the placement was not wholly or mainly to meet
educational needs (as provided under Education legislation), it also met the boy’s care needs
and was therefore provided under s. 20.
A person may be prevented from providing suitable accommodation in a variety of circumstances, including housing difficulties, hospital admission, illness, etc. The arrangement is voluntary and is an obvious area where the local authority must work in partnership with parents. A child cannot be accommodated under s. 20 if there is opposition from
a person with parental responsibility who would himself be able to provide accommodation for the child. In such circumstances the only way the local authority could provide
accommodation would be under the authority of a care order. Where a child is accommodated with the consent of the parents, the local authority does not have the power to move
the child to live with foster carers against the parents’ wishes. In R v. Tameside Metropolitan
Borough Council, ex parte J [2000] 1 FCR 173, a 13-year-old girl with severe disabilities and
autistic tendencies had lived in a residential home near to her parents’ home for two years.
Judicial review found that the local authority decision to move J against her parents’ wishes
was unlawful.
To reinforce the voluntary nature of s. 20 accommodation, there is no requirement for
a person who wishes to remove the child to give notice to the local authority (s. 20(8)).
Any question of notice and arrangements for the appropriate circumstances in which a

child should be returned will be covered by negotiated agreement with parents. Such agreements are covered by the Care Planning Placement and Case Review Regulations 2010. It
is important to note that an agreement is not a binding contract and any notice provision
it contains is unenforceable by the local authority. It may be argued that this renders such
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agreements pointless. Their value, however, rests on the fact that they should be negotiated
with parents and relied upon in the spirit of partnership.
On occasion s. 20 may be employed in preference to intervention under a care order.
The following key case emphasises the need for true consent to s. 20 and recognises that in
some cases this will require children’s social workers to have a working knowledge of the
law relating to capacity.

Key Case
Re CA (A Baby) [2012] EWHC 2190 (Fam)
This case illustrates the need for social workers in child protection to have an understanding
of capacity law. It involved an application by the local authority for a final care and placement
order for a child. The mother had significant learning difficulties and was described as being
‘devoid of parenting instinct or intuition’. Three older children were already the subject of
placement orders.
CA was removed from her mother on 1 February 2012, the day she was born, under a s. 20
agreement. The mother knew of the plan and had ‘demonstrated submission but not consent
to it’. On the day of CA’s birth, the mother had the trauma of deciding to have life-sustaining
surgery, had significant pain for which she received morphine, and was repeatedly faced with
the decision to consent to CA’s removal. She initially refused her consent to the s. 20 agreement
but consented later after she was medicated with morphine.
Hedley J gave judgment and included guidance for social workers when seeking s. 20 consent from a parent immediately or soon after birth.

Every social worker has a personal duty to be satisfied the person giving consent has capacity to do so. To determine whether the person has capacity the social worker should consider
s. 3 of the Mental Capacity Act 2005. If the social worker has doubts about capacity she should
make no further attempts to obtain consent at that time.
If the social worker believes the person has capacity, she must also be satisfied that the person is fully informed of the consequences and refusal of consent, the choices available and the
facts relevant to giving of consent.
The social worker should also be satisfied that removal is fair and proportionate.
Finally Hedley J confirmed that, ‘willingness to consent cannot be inferred from silence, submission or even acquiescence. It is a positive stance’ (para 44).

Local authorities are under a general duty (s. 22G) to take steps to secure sufficient
accommodation that is appropriate for the needs of children they look after within their
authority area.

Care plans
The Care Planning, Placement and Case Review Regulations 2010, require the local authority to set out the arrangements for a looked after child in a care plan, which should be written in such a way that it can be understood by the child (subject to age and understanding)
and family. Key elements of the plan include: a description of the child’s needs and required
services, details of the placement and why it has been chosen for the child, measures to
safeguard and promote the child’s welfare, with specific, measurable outcomes, roles and
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responsibilities of family and practitioners, contact, decision-making arrangements, contingency plans and a named IRO.
Each child will also have a health plan and a personal education plan.

Reviews
The circumstances of looked after children should be reviewed regularly. Regulations prescribe the detail.6 An Independent Reviewing Officer (IRO) (who will be a registered and
experienced social worker) will chair the reviews and monitor the s. 31A care plan and may
refer the case to CAFCASS if there are concerns; the CAFCASS officer may then return the

case to court. A review should be held within 20 days of the initial placement, followed by
a further review in three months’ time and thereafter every six months (as a minimum). The
issues to be considered at reviews are set out in Schedule 7 of the regulations and include
the child’s progress and whether his needs are being met in the placement, any changes that
might need to be made to the plan and contact arrangements and the child’s legal status. The
child (of sufficient age and understanding) will normally attend the review and parents are
entitled to attend reviews unless given a specific reason as to why they should not, e.g. fear of
violence. Also, health reviews of looked after children should be conducted every six months
for children under 5 and at least once a year for children over 5. This follows an initial health
assessment of the child’s physical and mental health, to be carried out as soon as practicable
after the children become looked after. The effectiveness of the IRO role was questioned in
the green paper ‘Care Matters’ and in the case of S (A Child Acting by the Official Solicitor) v.
Rochdale Metropolitan Borough Council and the Independent Reviewing Officer [2008] EWHC
3283 (Fam). Some reforms to the scheme followed in the Children and Young Persons Act
2008 (introducing section 25A–C Children Act 1989).
When a child first becomes looked after, a named individual must be appointed by the
local authority as the IRO for the child, the intention being that each looked after child
should have a named IRO, to provide continuity in the oversight of the case and to enable a
relationship to develop between the child and the IRO. Under s. 25B the IRO must: monitor
the local authority’s performance of its functions in relation to the child’s case, beyond the
review; ensure that the local authority give due consideration to any views expressed by the
child; chair the review meetings; and keep a written record of each review. The local authority is specifically placed under a duty to cooperate with the IRO and take all reasonable steps
to enable the IRO to perform his functions.

Outcomes for looked after children
In comparison with other children in society, looked after children appear to fare less well
on a number of levels. This includes levels of educational attainment, e.g. 15.3 per cent
obtained at least five GCSEs (or equivalent) at grades A*–C compared with 58 per cent of
all children, although it is noted that 67.8 per cent of looked after children have special
educational needs. The Df E statistical release on outcomes notes that LAC face significant

challenges:
During the year ending 31 March 2013, 6.2% of looked after children aged 10–17 had been
convicted or subject to a fine, warning or reprimand and 3.5% of all looked after children
had a substance misuse problem. Looked after children are twice as likely to be permanently excluded from school and nearly three times more likely to have a fixed-term exclusion
than all children. Around half of all children aged 5–16 were considered to be ‘borderline’
or ‘cause for concern’ in relation to their emotional and behavioural health.7
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Mental health needs of looked after children also raise concern. In a study of 1,039 looked
after children Meltzer et al. (2003)8 found that 50 per cent of boys and 33 per cent of girls
aged 5–10 had an identified disorder; for children aged 11–15, it rose to 55 per cent of boys
and 43 per cent of girls. Also, conduct disorder was found in 42 per cent of boys and 31 per
cent of girls.
Given the circumstances in which some children become looked after, having suffered
neglect or abuse, and coming from disadvantaged backgrounds, these outcomes may not be
a great surprise. Nevertheless, it is not appropriate simply to accept the inevitability of such
outcomes, and the Government has adopted a position whereby it has set targets to significantly improve outcomes for looked after children.
The primary vehicle for this initiative is the ‘Quality Protects’ programme (‘Children First’
in Wales). Associated initiatives have come out of the ‘Modernising Social Services’ agenda
and include new systems of regulation under the Care Standards Act 2000, the ‘Sure Start’
programme and ‘Connexions’. The objectives of these initiatives should be seen in the context of the ‘Every Child Matters: Change for Children’ programme, which aims to improve
outcomes for all children.
Aspects of the Quality Protects strategy relate to all children likely to come into contact
with social services but it is particularly targeted at children in need (discussed in Chapter 6)
and looked after children. There are 11 main objectives, each accompanied by sub-objectives
and performance indicators, published in ‘The Government’s Objectives for Children’s Social Services’ (1998).9 The Quality Protects objectives clearly call for greater use of adoption

for looked after children. The Prime Minister’s Review of Adoption leant further support to
this, with the following quote drawn from the introduction: ‘It is hard to overstate the importance of a stable and loving family life for children. That is why I want more children to
benefit from adoption.’10
Two particular aspects of outcomes for looked after children have been priortised by
Government: improving the stability of placements for looked after children, and improving their educational achievement. The stated objective is to narrow the gap in educational
achievement between looked after children and other children and to reduce the number
of placement moves experienced by looked after children. All looked after children should
have a personal education plan covering achievement, development and educational needs,
short-term targets, long-term plans and aspirations. Statutory guidance expects social workers to be ‘effective advocates in dealing with school admissions, issues arising from behavioural problems and school discipline and school exclusions’.11 (The education of looked
after children is considered further in Chapter 12.)
In relation to stability, in 2005 a DfES study12 found that 65 per cent of looked after
children had been in the same placement for at least two years, but there was wide variation
between different authorities. Factors which were most likely to lead to improvements in
stability were improvements in placement choice and placement support.

Fostering
The term ‘foster carer’ is used in this text in preference to foster parent. It was acknowledged
in the Children Act 1989 Guidance that although ‘foster parent’ is the term used in legislation and regulations, and is understood by the general public, the term ‘foster carer’ is more
commonly used by professionals.13 Fostering is a term that applies to a great variety of
arrangements. It may be short- or long-term, provided in emergencies, as part of a planned
provision of ‘respite’ care, by local authority, or private carers, and increasingly by relatives,
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friends and other connected persons. There are some ‘specialist’ foster carers who cater, for
example, for children who have been abused in a particular way, or for gay teenagers.
Foster carers do not acquire parental responsibility by virtue of the fostering arrangement.

They are de facto carers acting ‘in loco parentis’, a situation which lacks legal security. If faced
with a parent who wishes to resume care of their child, or a local authority who plans to
move the child, there is little that the foster carers can do to prevent removal, other than to
rely in the short term on s. 3(5) of the Children Act 1989 or to seek an emergency protection
order (EPO). If foster carers wish to continue to care for a child on a long-term basis, they
may seek a residence order, where the child has been living with them for one out of the last
five years (CA 1989, s. 9(3)), or they have the consent of those with parental responsibility,
or the consent of the local authority if they are relatives of the child. Where a foster carer
wishes to adopt a foster child, the foster parent must give notice of intention to adopt under
s. 44 at least three months before the application to adopt. During the three-month period
the local authority will prepare a report for the court.
Despite the legally insecure position of foster carers, their profile has been raised and
there is a greater emphasis on the training and professionalism of foster carers. Foster
carers frequently provide reports to case conferences and reviews, and may have to give
evidence to court and keep records relating to a child. A Department of Health publication
includes a useful checklist for foster carers to assist with the preparation of statements to
be used in court.14

Local authority foster carers
A significant proportion of children looked after by the local authority are placed with local
authority foster carers. A local authority foster carer may include a relative but not a parent.
The foster carer’s role is described in the regulations as being: ‘to care for any child placed
with him as if the child were a member of the foster-parent’s family and to promote his
welfare having regard to the long and short term plans for the child.’
Fostering arrangements are governed by the Fostering Services (England) Regulations
2011 which provide for the approval process of foster carers and written placement agreements. Foster carers must be approved under the Fostering Services (England) Regulations
2011 and Fostering Services National Minimum Standards (2011) are in place.
‘The Children Act 1989 Guidance and Regulations’, volume 4 ‘Fostering Services’ 2011,
provides further guidance on practice issues. Some local authorities have difficulty recruiting
sufficient foster carers to provide choice when placing looked after children. In particular,

some local authorities have regular recruitment drives for ethnic minority foster carers.
Paragraph 11 of Sch. 2 to the Children Act 1989 directs a local authority to have regard, in
publicising and recruiting for the fostering service, to the different racial groups to which
children in need in the area belong. This is important because a local authority must be
satisfied that a particular placement is the most suitable way of performing its duty to
safeguard and promote the child’s welfare, and the child’s cultural background and racial
origin is an important consideration.
Prospective foster parents must provide references and be assessed by the local authority or fostering agency before approval can be given. The assessment is comprehensive and
includes consideration of health, age, marital status, religious persuasion, racial origin and
cultural background, family members, employment record, accommodation, etc. In R (Johns
and Johns) v. Derby City Council [2011] EWHC 375, a couple who were members of the Pentecostalist church and disapproved of homosexual relationships applied to be approved as
foster carers. The High Court found that such views could be taken into account as part of the
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fostering approval process and the couple could not complain of unlawful religious discrimination under the equality legislation. As to Art. 9 rights in relation to religion, the couple had
the absolute right to hold religious beliefs but the right to manifest beliefs is not absolute.
Following approval, a ‘foster placement agreement’ (reg. 27(5)) will be drawn up concerning the foster carer’s relationship with the authority and information about arrangements
for the child including financial support. The agreement includes details of the training and
support to be given to the foster carer, review and placement procedures, and the duties expected of the foster carer. The foster carers should care for the child as if he were a member
of the foster carers’ family, not administer corporal punishment, and notify the authority of
significant changes in the household or serious illness of the child. The agreement should
contain all the information the authority considers necessary to enable the foster parents to
care for the child. This information should include details of the child’s personal history,
religion, cultural and linguistic background and racial origin, health needs and education
needs. If adoption is being considered for a looked after child, the local authority must place
the child with a local authority foster carer who is also approved as a prospective adopter

(Fostering for Adoption, Children and Families Act 2014).
Information given to foster carers was found to be inadequate in the case of W and others v.
Essex County Council [1998] 3 All ER 111. Here, children of foster carers were given leave to
sue the council and social worker for negligence on the grounds that they were not told that
the foster child who was placed with them had previously sexually abused his sister.
A fostering allowance is paid to local authority foster carers. An enhanced rate may be
payable to specialist foster carers. The National Foster Care Association recommends a minimum allowance based on the age of the child and the location. The Children Act 2004 introduces a power for the Secretary of State to set the level of payments made to foster carers caring for looked after children. In R (L) v. Manchester City Council [2001] EWHC Admin 707,
the council had a policy of financially assisting foster carers who were relatives or friends
on a considerably smaller scale than other foster carers. This was found to be unlawful. The
policy was ‘Wednesbury’ irrational, fundamentally discriminatory and in breach of Arts. 8
and 14 of the European Convention on Human Rights. This position has been confirmed
in guidance: ‘Criteria for calculating fees and allowances must apply equally to all foster carers, whether the foster carer is related to the child or unrelated, or the placement is short or
longterm’ (2011); and also by the Court of Appeal in London Borough of Tower Hamlets v. The
Queen on the Application of X [2013] EWCA Civ 904.
The local authority is not vicariously liable for the acts of foster carers. However, in Barrett v.
Enfield London Borough Council [1999] 3 All ER 193, a claim was allowed for damages to be
paid in respect of a child who suffered harm whilst placed with foster carers. Foster carers
should take out their own insurance to cover their fostering role.
Local authority fostering services are subject to inspection under the Care Standards
Act 2000.
In addition to the system for review of adoption determinations, the Independent Review
of Determinations (Adoption and Fostering) Regulations 2009 (made under powers of the
Children and Young persons Act 2008), provides a new system for the independent review
of fostering determinations. An independent panel may review determinations made, refusing an individual’s approval as a foster carer, terminating approval as a foster carer, or altering the terms of approval as a foster carer.
The Children and Families Act 2014 amends the Children Act 1989, inserting s. 23CZA
regarding arrangements for certain former relevant children to continue to live with foster
parents, in a ‘staying put arrangement’ until the age of 21. The local authority must continue
to provide financial and other support during this extended time.
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Private foster carers
At 31 March 2013, 1,780 children were reported as being cared for and accommodated in
private fostering arrangements in England, although this is thought to be an underestimate
due to under reporting. Private foster carers are those who foster a privately fostered child,
defined in s. 66 of the Children Act 1989. A privately fostered child is under the age of 16
(18 if disabled); is accommodated by someone who is not a parent, does not have parental
responsibility and is not a relative; and is accommodated for more than 28 days. A privately
fostered child is not a looked after child under s. 22 of the Children Act 1989 and the local
authority are not involved in making the arrangement.
The local authority has responsibilities under Part IX of the Children Act 1989 and the Children (Private Arrangements for Fostering) Regulations 200515 to regulate and support private
fostering. A person who is privately fostering a child or proposes to privately foster a child (and
any person involved (whether directly or not) in arranging for the child to be fostered privately,
and a parent of the child or other person with parental responsibility for the child) should notify
the local authority and an officer will visit and report back to the local authority. Within the first
year of the arrangement the child should be visited every six weeks, then every 12 weeks in subsequent years, and unless considered inappropriate the officer should speak to the child alone.
A person may be disqualified from private fostering under s. 68 of the Children Act 1989
and the Disqualification for Caring for Children Regulations 1991.16 The grounds are: if a
child of the individual has been the subject of a care order or otherwise removed from his
care; the person has been convicted of a specified offence; or the person has been concerned
with a registered home which has been deregistered or has had an application for registration refused; or the person has been prohibited from being a private foster parent. The local
authority should be notified of private fostering arrangements.
The local authority must be satisfied that the welfare of privately fostered children is satisfactorily safeguarded and promoted. It may impose a fostering prohibition where: a prospective foster parent is not a suitable person; the premises intended to be used for fostering
are not suitable; or it would be prejudicial to the welfare of the child to be accommodated
by that foster parent in those premises (Children Act 1989, s. 69).17
The Children Act 2004 responds to the criticisms directed at the law on private fostering
in the Climbié inquiry and strengthens the scheme for registration and monitoring of private fostering. The relevant guidance is, ‘The Replacement Children Act 1989 Guidance on

Private Fostering’, DfES, 2005.

Usual fostering limit
A foster parent, whether private or local authority, may not foster more than three children,
the ‘usual fostering limit’, unless the children are siblings or the foster parent has been exempted from the usual limit. Local authorities may impose a lower limit. If a foster parent
exceeds the usual limit, he will be treated as a person carrying on a children’s home and
subject to the conditions governing the operation of children’s homes.

Residential care
The Utting Report (1997) defined residential care as: ‘Continuous residence in permanently
staffed accommodation for more than three children, which provides or enables access to
the care and services normally available to children and such additional measures of care,
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control and treatment as resident children require.’ The report noted that residential care
has a crucial role in the range of services available to children and should not be seen as a
last resort. The number of children in residential care has steadily decreased, however. In
providing residential care, the report emphasised the need for a planned approach, proper
management, inspection and monitoring of the service, and the need for more professionally qualified staff.18
Practice and standards and the legal framework for residential care have been consistently
challenged by successive inquiry reports, which have revealed the abuse of children and
young people living in residential accommodation. A selection of those inquiry reports are
listed below:
●

Report of the inquiry into the conduct of Leeways children’s home (1985).

●

The Pin-down inquiry (1991).

●

The Leicestershire inquiry (1992).

●

Ty Mawr Community Home inquiry (1992).

●

The Aycliffe Centre for children (1993).

●

Report of the tribunal of inquiry into the abuse of children in care in the former county
council areas of Gwynedd and Clwyd since 1974: ‘Lost in care’ (2000).

Guidance has been produced as a result of the findings of inquiry reports: e.g. following
Pin-down, which was described as a ‘regime intrinsically dependent on elements of isolation, humiliation and confrontation’, the Department of Health published guidance on
permissible forms of restraint in children’s residential care. The key elements of that guidance provided that physical restraint, the positive application of force with the intention of
overpowering the child, should only be used within the following framework:
●

necessary to prevent the child significantly injuring him or herself, others or causing damage to property;

●

dialogue and diversion to avoid need for a warning;

●

minimum force necessary;

●

the presence of other staff as assistance and witnesses;

●

gradually relax restraint once safe;

●

act of care and control, not punishment;

●

not used purely to enforce compliance with staff instructions if no other risks involved.

Regulation of children’s homes
The Care Standards Act 2000 defines a children’s home as an establishment which provides
care and accommodation wholly or mainly for children (Care Standards Act 2000, s. 1(2)).
Health service hospitals, independent hospitals and clinics, residential family centres and
schools (other than boarding schools providing 295 days’ or more accommodation in a
year) are exempt from the definition, as is accommodation provided by a foster carer, parent or relative, i.e. a domestic household. The Children’s Homes (Amendment) Regulations

2011, Children Act Guidance and Regulations, Volume 5 ‘Children’s Homes’ and National
Minimum Standards’ apply to children’s homes, and Ofsted are responsible for inspections.
The National Minimum Standards (NMS) for Children’s Homes deal with planning for
care, quality of care, complaints and protection, care and control, environment, staffing,
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management and administration, specialist provision including secure accommodation and
refuges. Within each grouping there are a number of sub-groups, e.g. quality of care includes
standards relating to consultation; privacy and confidentiality; provision and preparation of
meals; personal appearance, clothing and pocket money; good health and wellbeing; treatment and administration of medicines; education; leisure and activities. They are intended
to specify the minimum standard and many homes are likely to exceed the standards.
Managers of children’s homes must be registered under the Care Standards Act 2000
based on compliance with requirements in the regulations and legislation. The standards
will also be taken into account. Registration may be cancelled if conditions of registration
are not complied with. An appeal may be made to the Care Standards Tribunal (part of the
First-tier Tribunal) against cancellation of registration or refusal of registration. The case of
William Mitchell v. Commission for Social Care Inspection [2004] 0369, EA provides an example.19 Mitchell unsuccessfully appealed against the CSCI decision to refuse his application to
become the registered manager of a children’s home. The criteria for managing a home are
contained in the Children’s Homes Regulations 200120, and stipulate that a person shall not
manage a children’s home unless he is fit to do so, and he will not be fit unless he is of integrity and good character, and he has the qualifications, skills, and experience necessary for
managing the children’s home (reg. 8). Standard 22.7 of the National Minimum Standards
for Children’s Homes was also relevant to the case, and states: ‘Physical restraint is only
used to prevent likely injury to the child concerned or to others, or likely serious damage to
property.’ The burden of proof is on the applicant to prove that he is ‘fit’. Mitchell became
employed in residential social work after he left the army. Concerns were raised and became
subject of a disciplinary hearing, about physical intervention and restraint being used in a

way that was not reasonable and appropriate. Evidence was produced concerning eight incidents including the following:
●

A resident appeared to be encouraging another resident to cause damage by punching the
walls. When she refused to leave the room she was physically restrained by the appellant
and a co-worker and removed.

●

A resident was found to have cigarettes in her room. She refused the appellant’s request
to hand them over and was physically restrained.

●

A resident was being noisy and abusive. She appeared to be bleeding from her arm and
had a history of self-harm. She was physically restrained for seven minutes on her bed.

●

A resident was asked to leave the room of another resident as she was preventing her from
getting ready for school. The appellant told her he would ‘extract her from the room using non-violent intervention’. As he approached her, she began to throw punches, so the
appellant placed his hand either on her lower throat or her breastbone, placed her on the
bed, then grasped both her hands.

The regulation inspector gave evidence that, in her view, restraint had been used as a
means of enforcing compliance and therefore inappropriately. A further expert witness was
critical of the appellant’s methods and expressed his opinion that the appellant failed to
use effective de-escalation techniques and there was no indication that the use of physical
intervention was a last resort. The tribunal found the appellant to be a sincere, honest man
who had done well to gain the required paper qualifications in residential care following

retirement from the army. He had, however, failed to discharge the burden to show he was a
fit person, and the tribunal concluded: ‘Whilst his use of physical restraint was well intended
and at the time believed by him to be an appropriate intervention in difficult situations,
critical analysis revealed lack of judgment and inadequate skills and training.’
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Each child accommodated in a children’s home should have a ‘child placement plan’,
which should address day-to-day care arrangements for the child, arrangements for health
and accommodation and arrangements for contact (reg. 12).
A number of cases have ordered payment of compensation to adults who were abused in
residential accommodation as children and this is a further demonstration of the removal
of the blanket immunity from actions in negligence formerly enjoyed by local authorities. In
C v. Flintshire County Council [2001] EWCA Civ 302 the claimant was bullied by other residents in her first placement without staff intervention and in the second home she suffered
physical, emotional and sexual abuse by staff and was illegally detained in a secure unit.
She was awarded a total of £70,000 in damages for the local authority’s negligence. In KR v.
Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, 14 adults were awarded damages
for long-term psychiatric or psychological injury caused by sexual, physical and emotional
abuse suffered whilst resident in children’s homes in North Wales.

Secure accommodation
There are times when it is considered necessary for a child to be placed in secure accommodation, i.e. accommodation provided for the purpose of restricting liberty. There are 298
approved places in the 17 secure children’s homes open in England and Wales.21 A decision
that a child needs to be in secure accommodation will often necessitate a move.
Section 25 of the Children Act 1989 provides:

s. 25

(1) . . . a child who is being looked after by a local authority may not be placed, and, if placed,
may not be kept, in accommodation provided for the purpose of restricting liberty (‘secure
accommodation’) unless it appears –





(a) that –
(i)   he has a history of absconding and is likely to abscond from any other description
of accommodation; and
(ii)  if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself
or other persons.

. . . 
(4) If a court determines that any such criteria are satisfied it shall make an order authorising
the child to be kept in secure accommodation and specifying the maximum period for
which he may be so kept.
(CA 1989)

Secure accommodation is defined in the Children (Secure Accommodation) Regulations
1991,22 reg. 2(1) as: ‘Accommodation which is provided for the purpose of restricting the
liberty of children to whom section 25 of the Act applies.’
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Secure accommodation

A secure accommodation order may be made in respect of a child who is the subject of
a care order or, providing there is parental consent, any other child to whom the criteria
apply. If the child is not subject to a care order, the s. 20(8) provision applies to secure
accommodation in the same manner as it does to any other accommodation for a looked
after child. The effect of this is that a person with parental responsibility could remove a
child (not subject to a court order) from a secure accommodation without notice.
It is possible for a child to be kept in secure accommodation for a total of 72 hours before
an application is made to court. The 72 hours may be consecutive, or not consecutive within
a period of 28 days. The court may make a secure accommodation order for a maximum
initial period of three months, or it may make a 28-day interim secure order. A six-month
order may be made if it is the second application for a child.
The local authority has a duty to avoid the need for children to be placed in secure accommodation (CA 1989, Sch 2, para. 7(c)). The court must make an order if the criteria are satisfied but
it will require detailed information about absconding patterns, what happens when the child
absconds (e.g. any offences that are committed), where the child goes and with whom. In addition, the aims of a secure placement for the particular child, in the context of a care plan, should
be presented to court. The local authority should not detain the child in secure accommodation
if the criteria for detention cease to apply. As s. 25 applications are ‘specified proceedings’ under
the Children Act 1989, a children’s guardian should be appointed and the child must be legally
represented. The child is able to attend the secure accommodation order hearing if she wishes as
in A City Council v. T, J and K (by her Children’s Guardian) [2011] EWHC 1082 (Fam).
The question whether human rights are breached by the imposition of secure accommodation orders under the Children Act 1989, s. 25 was considered in Re K (A Child) (Secure
Accommodation Order: Right to Liberty) [2001] 1 Fam 377. Here the court refused an application for a declaration of incompatibility. It was accepted by the court that the purpose of
s. 25 was to restrict liberty and it therefore fell within ECHR, Art. 5 as a deprivation of liberty.
Article 5 is, however, a qualified article and the court held that detention under a secure
accommodation order fell within the exception at Art. 5(1)(d):

Art. 5(1)(d)
. . . the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority.
(ECHR)

A secure placement that did not involve educational or therapeutic provision might not
subsequently be upheld, however.
Secure accommodation was the subject of a further Human Rights Act 1998 challenge in
the case of Re M (A Child: Secure Accommodation) [2001] EWCA 458. In this case the Court
of Appeal considered whether the procedure for obtaining a secure accommodation order
was compatible with Art. 6(3) of the Convention. Article 6(3) concerns those charged with a
criminal offence. It was decided that secure accommodation is protective in nature and therefore criteria applicable to criminal cases do not apply, even though there is a loss of liberty.
The court found that the procedure for obtaining secure accommodation orders was compatible with Art. 6(3) but that any application should comply with the minimum requirements
of Art. 6(3) relating to notice of the nature of the charge, adequate time to prepare a defence,
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the ability to defend oneself through legal assistance of one’s own choosing, free assistance of
an interpreter if required, and the opportunity to cross-examine witnesses.

Independent visitors
The Children Act 198923 introduced the role of the independent visitor. It is stated in
para. 17 of Sch. 2 to the Act that:

Sch. 2, para. 17
Where it appears to a local authority in relation to any child they are looking after that –
(a)  communication between the child and –
 (i) a parent of his,
 (ii) any other person who . . . has parental responsibility, has been infrequent, or
(b) he has not visited or been visited by (or lived with) any such person during the preceding
12 months and it would be in the best interests of the child for an independent person to
be appointed, they shall appoint an independent visitor.

(CA 1989)

The duty of the independent visitor is to visit, advise and befriend the child. The independent visitor may also have a role in helping to prepare the young person for leaving care.
An independent visitor will not be appointed (or an appointment can be terminated) if the
child objects and the local authority is satisfied that his objection arises from the child’s sufficient understanding to make an informed decision.24
An Ofsted survey (2012) of children’s and young people’s views on independent visitors
found that 71 per cent of the young people did not have an independent visitor, in many
cases because they had not been offered one; those with independent visitors wanted them
to give help and support and be there to talk to; and half of the care leavers interviewed had
kept in touch with their visitor. It seems that there is potential for independent visitors to
have a much greater impact than is presently the case.25
In addition to the independent visitor, advocates and children’s rights officers are available in some areas and present a potential safeguard against institutional abuse.
Section 16 CYPA 2008 extends the group of looked after children for whom an independent person must be appointed, to include all those for whom an appointment would be ‘in
their best interests’. The Act also provides for additional visiting requiring local authorities
to ensure that all looked after children and children who were looked after, but ceased to be
looked after as they have been taken into custody, are visited by a representative of the local
authority and that appropriate advice, support and assistance is made available to them.

Leaving care
Children leaving care tend to do so at an earlier age than children living with their own
families and often experience multiple disadvantage. The Children Act 1989, s. 24 introduced a duty towards looked after children to advise, assist and befriend with a view to
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Leaving care

­ romoting their welfare when they cease to be looked after. The duty was owed to young
p
people between the ages of 16 and 21. In support of this duty, guidance called for local authorities to act as ‘corporate parent’ for young people leaving care. Leaving care services and

projects, however, proved to be provided in a patchy and under-resourced fashion, often
failing to meet the needs of young people leaving care. Research continued to highlight the
plight of children leaving care, with poor levels of educational achievement and high levels
of pregnancy amongst young women.26
The unsatisfactory picture emerging regarding children leaving care is partly attributable
to the weakness of the Children Act 1989 provisions. This area is now covered by the Children (Leaving Care) Act 2000 (C(LC)A 2000). Central to the Act is the role of personal advisers for young people and pathways planning. The following is a summary of provisions:
●

Local authorities must meet the needs of eligible 16- and 17-year-olds in care (eligible
children) or care leavers (relevant children), those who were eligible or relevant before
reaching 18 (former relevant children), and former relevant children pursuing further
education or training (under 25).27

●

There is a duty on local authorities to keep in touch with their care leavers until at least
the age of 21.

●

At the age of 16, each young person in care must have a comprehensive written pathway
plan mapping out a clear route to their independence. The plan leads on from the care
plan and should include information on education, health, accommodation and any
contingency plans. The content specified by the guidance is set out in Table 10.1. The

Table 10.1  Pathway plans
Pathway plans

1. The nature and level of contact and personal support to be provided, and by whom, to the child
or young person.

2. Details of the accommodation the child or young person is to occupy.
3. A detailed plan for the education or training of the child or young person.
4. How the responsible authority will assist the child or young person in relation to employment or
other purposeful activity or occupation.
5. The support to be provided to enable the child or young person to develop and sustain appropriate
family and social relationships.
6. A programme to develop the practical and other skills necessary for the child or young person to
live independently.
7. The financial support to be provided to the child or young person, in particular where it is to be
provided to meet his accommodation and maintenance needs.
8. The health needs, including any mental health needs, of the child or young person, and how
they are to be met.
9. Contingency plans for action to be taken by the responsible authority should the pathway plan
for any reason cease to be effective.
The pathway plan must also record key details such as the name, age and contact details of the
young person, the name and contact details of the personal adviser and those of any other people
who will be actively involved in delivering aspects of the plan. It will note the date due for review.
Children (Leaving Care) Act 2000 Regulations and Guidance.
(paras. 21–22)
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plan is described by the guidance as ‘pivotal to the process whereby children and young
people map out their future’ (para. 7.2). It should be reviewed at least every six months.
●

Personal and practical support must be provided by local authorities to 16- and 17-yearolds in care or care leavers to meet the objectives of their pathway plan.

●

An adviser will be allocated to each young person to participate in implementation and
review of the pathway plan, coordinate provision of support and assistance to meet the
needs of the young person, and to be kept informed of his wellbeing. This may include
helping the young person find training, employment or education opportunities and
acting as the ‘Connexions’ adviser. R (A) v. Lambeth LBC [2010] EWHC 1652 (Admin)
confirms that a personal adviser should not produce a young person’s pathway plan. The
personal adviser is a separate role to that of the social worker and the functions of the
personal adviser include participating in the preparation of the plan and its review but
not its actual preparation and production.

●

Assistance for care leavers aged 18–21 with education, training and employment shall be
continuous.

●

Accommodation should be suitable in relation to health and other needs and bed-andbreakfast accommodation should only be used in an emergency for 16- and 17-year-olds.

●

In place of the current system of benefits, a new financial regime will be introduced and
administered by the Social Services Department. Most care leavers will no longer be entitled to claim welfare benefits.

●

All young people covered by the C(LC)A 2000 will have access to the Children Act 1989

complaints procedure.

●

Unaccompanied asylum-seeking children are covered by the C(LC)A 2000.

A High Court case has emphasised the importance of pathway plans. In R (J) Caerphilly
County Borough Council [2005] EWHC 586 (Admin), Munby J gave guidance to local authorities as to what is expected in drawing up a pathway plan. The case concerned a 17-year-old,
J, who had been in care for four years, having suffered abuse and disruption in his home
life and with a number of criminal convictions. The local authority and other agencies had
attempted to help J but he was uncooperative and unwilling to engage. Supported by the
Howard League, J sought a declaration that the local authority has acted unlawfully in failing
to assess his needs, prepare a pathway plan, appoint a personal adviser and provide accommodation. The court ordered the authority to produce a lawful assessment and a plan and
gave the following guidance:
The child’s personal adviser may be an employee of the local authority but it must be
clear to the adviser and the local authority that the adviser was acting in the role of adviser
to the child and not some other conflicting role. The personal adviser should not prepare
the assessment and plan, the role being to liaise with the authority and focus on its implementation. The court described the personal adviser as a go-between between the child and
the authority. In this case the local authority had failed to involve J in the process, which it
had embarked on far too late. The plan had failed to specify key dates or identify specialist
support. It was not a detailed operational plan. It failed clearly to identify the child’s needs,
what was to be done about them, by whom and by when. Where a child is unwilling to
cooperate, this is not a reason for the authority not to carry out its obligations under the Act
and regulations. The child’s lack of engagement should be clearly documented in the plan
with the steps the authority has taken to engage the child, and proper thought should be
given to contingency plans.
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Exercises

The Children and Young Persons Act 2008 places a duty on local authorities to pay a
bursary to former relevant children who go on to higher education. It also extends the entitlements of former relevant children to the appointment of a personal adviser and other
assistance in connection with education or training. The framework of different responsibilities and support for each category of young people is explained further in DfE guidance,
‘Planning Transition to Adulthood for Care Leavers’ (2010).

Chapter summary
●

Looked after children are those children who are accommodated by the local authority,
away from their family, in residential or foster placements, and all children who are the
subject of a care order, even if they are living with their parents. There are approximately
68,000 looked after children on any one day.

●

It is the duty of a local authority to safeguard and promote the welfare of all looked after
children. Local authorities must consult the child, his parents, any person with parental
responsibility and others whose wishes and feelings are relevant, before making decisions
regarding a looked after child and give due consideration to the child’s racial origin, cultural and linguistic background.

●

The local authority must provide accommodation and maintain looked after children
under CA 1989, s. 23. The accommodation should normally be near to the child’s home
and contact between the child and their family should be promoted. Accommodation
provided on a voluntary basis is an aspect of service provision to families.

●

Fostering covers a wide range of situations including short- and long-term arrangements
and provision of respite care. There are private and local authority foster carers.

●

Residential care continues to have a role to play in the provision of security and stability for some children. Standards in residential care have been challenged in a number of
reports and a new regulatory framework is provided by the Care Standards Act 2000 and
Children’s Homes Regulations 2011. An independent visitor will be provided to advise,
assist and befriend certain looked after children. Sometimes a child will need to be placed
in secure accommodation.

●

The local authority has responsibilities towards young people leaving care, under the Children (Leaving Care) Act 2000, which develops earlier provisions of the Children Act 1989.

Exercises
The Beeches, a local authority children’s home, provides accommodation for 15 young people.
Consider whether any action should be taken in respect of the following incidents and what
form it should take.
●

A 17-year-old male resident and a 13-year-old female resident are discovered having sexual
intercourse. They have not used any contraception and it is not an ongoing relationship. The
girl later tells a member of staff that she was being bullied by other girls in the home who
called her frigid.

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●

A 16-year-old male resident has been out shopping with a male member of staff in preparation for leaving the home. On the way back to the Beeches, they call at the member of staff ’s
own home, drink a can of lager each and look at pornographic magazines.

●

A 14-year-old girl returns to the Beeches at 2 a.m., four hours after the agreed time. She is
abusive to staff when they ask where she has been and tries to assault a female member of
staff when she asks if the girl has been taking drugs. She is restrained by a male member of
staff by twisting her arm behind her back, thereby sustaining a strained wrist. She is taken to
her room and locked inside. The following morning she is prevented from telephoning her
social worker and is told she has nothing to complain about.

Websites
Many of the relevant official publications relating to looked after children and adoption
issues can be accessed via the Department for Education website:
www.education.gov.uk/childrenandyoungpeople/families/adoption

British Agencies for Adoption and Fostering (BAAF) provides a wide range of information
and research publications:
www.baaf.org.uk

BAAF also host a website focusing on private fostering
www.privatefostering.org.uk

The Fostering Network (formerly known as the National Foster Care Association) is an

organisation that aims to promote improvements in foster care through involvement with
agencies and foster carers. It is also a useful resource for information on fostering, producing
a range of publications and reports:
www.fostering.net/

Voice for the Child in Care is a national organisation which provides independent advocacy
and advice for children in care, care leavers, in custody and in need:
www.voiceyp.org

Carelaw is an information site for children and young people in care in England and Wales,
providing accessible information in a question and answer format:
www.carelaw.org.uk

The Catch 22 National Care Advisory Service (NCAS) works to improve young people’s
transition from care to adulthood.
www.leavingcare.org/

Further reading
Texts which focus on looked after children:
Ball, C. (2014) Looked After Children: Social Work Law Focus Series. Basingstoke: Palgrave
Macmillan.
Cocker, C. and Allain, L. (2008) Social Work with Looked After Children. Exeter: Learning
Matters.
Schofield G. and Simmonds J. (2009) (eds) The Child Placement Handbook (London: BAAF).
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Further reading

Relevant Government documents include:
Department of Health (1997) ‘People Like Us: The Report of the Review of Standards for
Children Living Away from Home’ (the Utting Report). London: The Stationery ­Office.
Department of Health (1998) ‘Caring for Children Away from Home: Messages from
Research’. London: The Stationery Office.
Department of Health (1998) ‘Quality Protects: Transforming Children’s Services’. London:
Department of Health.
Department of Health (1999) ‘The Government’s Objectives for Children’s Social Services’.
London: Department of Health.
Department for Education and Skills (2004) ‘Get It Sorted: Guidance on Providing Effective
Advocacy Services for Children and Young People Making a Complaint Under the Children Act 1989’. London: DfES.
Department for Education and Skills (2005) ‘The Replacement Children Act 1989 Guidance
on Private Fostering’. London: DfES.
Department for Children, Schools and Families (2010) ‘The Children Act 1989 Guidance
and Regulations Volume 2: Care Planning, Placement and Case Review’. Nottingham:
DCSF Publications.
Department for Children, Schools and Families (2010b) ‘Sufficiency: Statutory Guidance on
Securing Sufficient Accommodation for Looked After Children’. London: DCSF.
Department for Children, Schools and Families (2010c) ‘IRO Handbook: Statutory ­Guidance
for Independent Reviewing Officers and Local Authorities on their Functions in Relation
to Case Management and Review for Looked After Children’. Nottingham: DCSF.
Department for Children, Schools and Families and Department for Communities and
Local Government (2008) ‘Provision of Accommodation for 16 and 17 Year Olds Who
May Be Homeless and/or Require Accommodation’. Nottingham: DCSF.
Department for Education (2010) ‘Family and Friends Care: Statutory Guidance for Local
Authorities’. London: DfE.
Department for Education (2010) ‘Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers’. London: DfE.
Department for Education (2011) ‘Guidance and Regulations Volume 4: Fostering Services’.
London: DfE.
Department for Education (2013) ‘Improving Permanence for Looked After Children’.

­London: DfE.
Department for Education (2013) ‘The Children Act 1989 Guidance and Regulations Volume 5: Children’s Homes’. London: DfE.
Department for Education (2014) ‘Looked-after children: contact with siblings’, update to
‘ The Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement
and Case Review’. London: DfE.
In relation to leaving care:
Broad, B. (2005) ‘Young people leaving care: Implementing the Children (Leaving Care) Act
2000?’ 19(5) Children and Society p. 343.
Morgan R. and Lindsay, M. (2006) Young People’s Views on Leaving Care: What Young People
in and Formerly in Residential and Foster Care Think About Leaving Care. London: CSCI. (A
comprehensive report written by the Children’s Rights Director for England.)
Stein, M. (2012) Young People Leaving Care: Supporting Pathways to Adulthood. London: Jessica
Kingsley Publishers.
Wheal, A. (ed.) (2005) The Leaving Care Handbook. Lyme Regis: Russell House.
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Chapter 10 Looked after children

Residential care and secure accommodation are specifically addressed in:
Butler, I. and Drakeford, M. (2005) Scandal, Social Policy and Social Welfare. Bristol: BASW/
Policy Press. (Analyses the concept of ‘scandal’ with chapters on residential care of children and ‘Pin-down’.)
Dunnett, K et al. (eds) (2006) Health of Looked After Children and Young People. Lyme Regis:
Russell House Publishing.
Stather, J. (2013) Secure Accommodation Handbook. Bristol: Family Law.
Stein, M. (2006) ‘Missing Years of Abuse in Children’s Homes’ 11 Child and Family Social
Work p. 11.
Waterhouse, R. (2000) ‘Report of the Tribunal of Enquiry into the Abuse of Children in Care
in the Former County Council Areas of Gwynedd and Clwyd since 1974’. London: House

of Commons.
Other aspects of law relating to planning and placement of looked after children:
Knowles, G. and Sharp, M. (2012) ‘IRO service: still a work in progress?’ (Parts 1 and 2) Family Law (November) p. 1258 and (December) p. 1377.
Schofield, G., Thoburn, J., Howell, D. and Dickens, J. (2007) ‘The search for stability and
permanence: modelling the pathways of long stay looked after children’ 37(4) British
Journal of Social Work p. 619.
Sinclair, I. (2005) Fostering Now: Messages from Research. London: Jessica Kingsley. (Sixteen
research studies.)
Talbot, C. and Williams, M. (2003) ‘Kinship care’ Family Law p. 502. (Considers outcomes
for the increasing number of children living in kinship care arrangements.)
Thomas, N (2011) ‘Care planning and review for looked after children: fifteen years of slow
progress?’ 41 British Journal of Social Work p. 387.

Notes
  1Children Act 1989, s. 22(2).
  2See DfES (2003) ‘If This Were My Child’.
  3Cm. 7317.
  4DfE Statistical First Release SFR 36/2013.
  5Ibid.
  6Care Planning, Placement and Case Review Regulations 2010 (replacing the Review of
Children’s Cases Regulations 1991). See also the IRO Handbook: ‘Statutory guidance for
independent reviewing officers and local authorities on their functions in relation to case
management and review for looked after children’ (DCSF, 2010).
  7SFR 50/2013
  8Meltzer, H., Gatward, R., Corbin. T., Goodman, R. and Ford, T. (2003) The Mental Health
of Young People Looked After by Local Authorities in England. London: The Stationery Office.
  9Department of Health. London: HMSO. See also Department of Health (1998) ‘Quality
Protects: Transforming Children’s Services’. London: Department of Health.
10
Tony Blair: Prime Minister’s Review of Adoption (2000). Performance and Innovation Unit.

11
DfES ‘Statutory Guidance on the Duty on Local Authorities to Promote the Educational
Achievement of Looked After Children under s 52 Children Act 2004’. p. 23.
12
DfES (2005) Qualitative Study: The Placement Stability of Looked After Children. London:
DfES.
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Notes

13

‘The Children Act 1989 Guidance and Regulations’, vol. 8 ‘Private fostering and miscellaneous’, London: DfES, p. 1.
14
J. Plotnikoff and R. Woolfson (2000) Reporting to Court under the Children Act: A Handbook
for Social Services. London: Department of Health/The Stationery Office.
15
SI 2005/1533.
16
SI 1991/2094.
17
See, further, ‘The Children Act 1989 Guidance and Regulations’, vol. 8 ‘Private fostering
and miscellaneous’, London: DfES.
18
Department of Health (1997) ‘People Like Us: The Report of the Review of Standards for
Children Living Away from Home’ (The Utting Report). London: The Stationery Office.
19
Further decisions of the Care Standards Tribunal can be accessed on its website: www.

carestandardstribunal.gov.uk.
20
SI 2001/3967.
21
SFR 14/2014.
22
SI 1991/1505.
23
See also Definition of Independent Visitors (Children) Regulations 1991 (SI 1991/892).
24
Hereford and Worcester County Council v. S [1993] 2 FLR 360. See also ‘The Children Act
Guidance and Regulations’, vol. 4 ‘Residential care’. London: DfES.
25
www.ofsted.gov.uk/resources/independent-visitors.
26
See B. Broad (1999) ‘Young people leaving care: moving towards “joined up” solutions?’
13 Children and Society p. 81.
27
The exact definitions are:


Eligible children: Children aged 16 and 17 who have been looked after for at least
13 weeks since the age of 14 and who are still looked after.



Relevant children: Children aged 16 and 17 who have been looked after for at least
13 weeks since the age of 14, and have been looked after at some time while 16 or 17,
and who have left care.

Former relevant children: Young people aged 18–21 who have been either eligible or relevant children, or both.



Qualifying children and young people over 16: Any person under 21 (24 if in education
or training) who ceases to be looked after or accommodated or privately fostered after the
age of 16.

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Chapter 11
Adoption
Learning objectives
To develop an understanding of the following:
●

The current law of adoption embodied in the Adoption and Children Act 2002.

●

Background to the reforms introduced by the Adoption and Children Act 2002.

●

National Standards for Adoption.

●

Particular issues within adoption, including the question of who can adopt, placement, the role
of parental consent and the development of ‘open adoption’.

●

Issues surrounding the adoption process, including the role of the adoption panel.

●

Alternative routes to security and stability,1 including use of and special guardianship.


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Talking Point

Talking Point
An important Supreme Court decision reinforces the need for adoption agencies to give proper
consideration to alternative placements before the court will approve an adoptive care plan.
A mother (M) appealed against refusal of her application for leave to oppose the making of an
adoption order (under s. 47(5)), in relation to her children who had been made subject of care
and placement orders. The children were placed with prospective adopters and an application for
adoption was made. The mother’s new circumstances were described as ‘astonishingly different’.
The judgments of both the Supreme Court and Court of Appeal provide ­guidance on the proper
approach in adoption applications and the analysis of applications under s. 47(5). The Supreme
Court emphasised a number fundamental principles for adoption cases (reinforcing points made
in the earlier decision of Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.
Key points:

●

 he court cannot give leave to oppose an adoption order application unless there has been
T
a change in (the mother’s) circumstances. If leave is granted then the parent can oppose
the adoption order and is also entitled to fresh consideration of whether parental consent
should be dispensed with.

●

‘Orders contemplating non-consensual adoption – care orders with a plan for adoption, place­
ment orders and adoption orders – are “a very extreme thing, a last resort”, only to be made
where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”,’ [22]

● ‘. . .

although the child’s interests in an adoption case are paramount, the court must never
lose sight of the fact that those interests include being brought up by the natural family,
ideally by the natural parents, or at least one of them, unless the overriding requirements of
the child’s welfare make that not possible’. [26]

● ‘. . .

the court “must” consider all the options before coming to a decision. . . . They range,
in principle, from the making of no order at one end of the spectrum to the making of an
adoption order at the other.’ [27]

●

‘. . . the court’s assessment of the parents’ ability to discharge their responsibilities towards the

child must take into account the assistance which the authorities would offer.’ [28] ‘It is the
obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all . . .
adoption, because it is unable or unwilling to support a less interventionist form of order.’ [29]

●

‘We have real concerns, shared by other judges about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put
before the court by local authorities and guardians and also in too many judgements. This is
nothing new. But it is time to call a halt.’ [30]

Re B-S [2013] EWCA Civ 1146 may be described as a landmark ruling from the Court of Appeal
on adoption law and practice. It has subsequently been applied in a series of cases, including Re
E [2013] EWCA Civ 1614, Re HA (A Child) [2013] EWCA Civ 3634 and Re L [2013] EWCA Civ 1481.
One of the practice implications of this judgment is that evidence from the local authority will increasingly be presented following a balance sheet model, analysing placement options, weighing up advantages and disadvantages in depth in order to evidence that nothing
less than adoption will meet the needs of the child. The Supreme Court applies existing law

307