Children and Young Persons Act 2008

Children and Young Persons Act 2008

2008 CHAPTER 23

Commentary on Sections

Part 2 - Functions in Relation to Children and Young Persons

Accommodation

Sections 8 & 9 and Schedules 1 & 2: Provision of accommodation and maintenance for children who are looked after by a local authority

36. Section 8 replaces section 23 of the 1989 Act with new sections 22A to 22F. It re-enacts the duties on local authorities to provide accommodation for children who are in their care (new section 22A) and to maintain all looked after children in other respects apart from the provision of accommodation (new section 22B). The duties and powers of local authorities to provide accommodation for children under sections 20 and 21 of the 1989 Act (i.e. those who are “voluntarily accommodated” or accommodated for their own protection or by virtue of an order made in criminal proceedings) are unaffected by these changes.

37. New section 22C outlines the ways in which the local authority must perform its accommodation functions. Subsection (11) enables the appropriate national authority to make regulations for, and in connection with, the purposes of section 22C. Further detail about the regulation making powers is set out in new paragraphs 12A to 12G of Schedule 2 to the 1989 Act, inserted by Schedule 1 to the Act.

38. Subsections (2) to (4) of section 22Cdeal with placements with parents and others specified in subsection (3) of that section. The local authority must make arrangements for a child they are looking after to live with their parents; any other person who has parental responsibility for the child; or, in the case of a child who is the subject of a care order (i.e. who is “in care”), a person in whose favour a residence order subsisted immediately before the care order was made. This duty applies only where such arrangements are both consistent with the child’s welfare and reasonably practicable. The Act re-enacts paragraph 14 of Schedule 2 to the 1989 Act as new paragraph 12A (to be inserted by Schedule 1 to the Act), making further provision for regulations to set out conditions under which a child in care is to be allowed to live with a person specified in subsection (3).

39. Section 22C(5)provides that if the local authority is unable to place a child with a person specified in subsection (3), the local authority must place the child in the most appropriate placement available. ‘Placement’ is defined in section 22C(6)as meaning:

• a placement with a local authority foster parent who may be a relative (defined in section 105 of the 1989 Act), friend or other connected person;

• a local authority foster parent who is unconnected to the child;

• placement in a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or

• other arrangements.

40. Placements under section 22C(6)(d) may include, for example, supporting young people to live independently in rented accommodation, residential employment, or in supported lodgings/hostels. New paragraph 12B (to be inserted in Schedule 2 to the 1989 Act by Schedule 1 to this Act) re-enacts paragraph 13 of Schedule 2 to the 1989 Act to enable further provision to be made about arrangements made under subsection (6)(d).

41. Section 22C(7) provides that in determining the most appropriate placement for a child the local authority must have regard to the other provisions of Part 3 of the 1989 Act, and in particular to its duties under section 22. This includes the duty to safeguard and promote the welfare of the child (subsection (3)(a)) and the duty in particular to promote the child’s educational achievement (subsection (3A)); the duty to ascertain the wishes and feelings of the child, his parents and other relevant persons before making a decision with respect to the child they are looking after (subsection (4)); and the duty to give those wishes and feelings and the child’s religious persuasion, racial origin and cultural and religious background due consideration (subsection (5)) .

42. Section 22C(7)(a) provides that the local authority must give preference to a placement with a relative, friend or other person connected with the child over the other placement options.

43. Under section 22C(7)(b) and (8)the local authority must, so far as is reasonably practicable in all the circumstances of the child’s case ensure that the placement:

• allows the child to live near their home;

• does not disrupt the child’s education or training (powers to impose requirements with which a local authority must comply before making any decision about a child’s placement if he is in Key Stage 4 i.e. aged 14 -16 years are set out in paragraph 12D, to be inserted in Schedule 2 to the 1989 Act by Schedule 1 to this Act);

• if the child has a sibling who is also being looked after by the local authority, enables the child and that sibling to live together; and

• if the child is disabled, is suitable to the child’s particular needs.

44. Undersection 22C(7)(c) and (9) the child must be provided with accommodation within the local authority’s area unless that is not reasonably practicable. Powers to impose requirements with which a local authority must comply before making a placement out of area are set out in new paragraph 12C, to be inserted in Schedule 2 to the 1989 Act by Schedule 1 to this Act.

45. Section 22C(10) enables the local authority to determine the terms on which they place a child with a person specified in subsection (3) or with local authority foster parents, replicating the effect of section 23(2) of the 1989 Act. These terms might include details of the financial support to be provided for the child or other payments to be made to the carer(s); conditions relating, for example, to training for the carer that is relevant to the upbringing of the child; or details of support (other than financial support) by the local authority for both the child and the carer. Terms relating to payments made to local authority foster parents are subject to orders made under section 49 of the Children Act 2004. No such orders have been made to date.

46. Section 22C(12) defines a local authority foster parent as a person who is approved as a local authority foster parent in accordance with regulations made by virtue of new paragraph 12F of Schedule 2 to the 1989 Act (inserted by Schedule 1 to this Act). Further provision for regulation of foster care placements is made by new paragraph 12E (inserted in Schedule 2 to the 1989 Act by Schedule 1 to this Act) which, with paragraph 12F(1)(a)and paragraph 12G, re-enacts paragraph 12 of Schedule 2 to the 1989 Act. The current process for approval of foster carers and regulation of placements is dealt with in the Fostering Services Regulations 2002 and the Arrangements for Placement of Children (General) Regulations 1991. The 2002 Regulations provide, amongst other matters for placement of children in emergency with relatives and other connected persons even if that person does not have prior approval as a foster parent (regulation 38). It is intended that regulations under the new provisions will make similar provision for temporary approval of relatives as local authority foster carers in emergencies, and make provision for the approvals process to recognise the different considerations that apply to approval of someone who has a prior relationship to the child.

47. New paragraphs 12F(1)(b) and (2)–(11) (inserted in Schedule 2 to the 1989 Act by Schedule 1 to this Act) will enable regulations to make provision for prospective or existing foster parents to apply to the appropriate national authority for an independent review of the determination of a fostering service provider regarding a person’s suitability or continuing suitability to foster a child.

48. Under existing provisions (set out in regulation 28(6)(b) and regulation 29(7)(b) of the Fostering Services Regulations 2002) foster parents are able to challenge a fostering service provider’s proposal not to approve them by making written representations to the fostering service provider; the provider must refer the case back to the fostering panel and take any fresh recommendations into account in making its decision. These regulations also set out the approvals process which must be followed by fostering service providers in assessing the suitability of prospective foster parents and the procedures to follow with regard to terminating approval.

49. Regulations made under new paragraph 12F of Schedule 2 to the 1989 Act will provide an additional means for foster parents to challenge a proposal relating to their approval, or the continuation of their approval – by applying to a panel established by the appropriate national authority for a review by an independent panel.

50. It is intended that this independent review mechanism (“IRM”) for foster parents will operate in a similar way to the current mechanism which considers applications from prospective adopters for an independent review of an adoption agency determination that they are not suitable to adopt or to withdraw their earlier approval. Where the prospective adopters apply for an independent review, the independent review panel convened to review the case considers the case afresh and makes a recommendation to the adoption agency; the adoption agency must take that recommendation into account, along with that of the agency’s adoption panel, when making its decision. This mechanism was established by sections 9 and 12 of the Adoption and Children Act 2002 and secondary legislation made under the enabling powers conferred by those provisions.

51. Under paragraph 12F(1)(b) and (3) the appropriate national authority may, by regulations, prescribe the details of the IRM. This may include, for example, the procedure for review of the qualifying determination, the functions of the panel and its constitution and membership (e.g. that the panel shall include social workers and those considered by the appropriate national authority to be suitable members, including persons with experience of fostering). It is intended that the regulations will cover similar matters to the Independent Review of Determinations (Adoption) Regulations 2005.

52. Paragraph 12F(4) gives the appropriate national authority the power to recover the costs of reviews.  However, these costs will not be recoverable from the person who made the application for an independent review. Paragraph 12F(5) provides that the sums payable to the appropriate national authority must not, taking one financial year with another, exceed the costs incurred in performing the independent review functions. Paragraph 12F(9) makes similar provision in situations where the national authority has made arrangements under sub-paragraph (6) of that paragraph for its functions to be performed on its behalf by an organisation. The definitions of “financial year” and “independent review function” are both included in Paragraph 12F(11).

53. Paragraph 12F(6) to (8) enables the IRM for fostering to be operated by an independent organisation. The organisation operating the IRM on behalf of the national authority must perform its functions in accordance with any general or special directions which the appropriate national authority may give. Paragraph 12F(8) makes provision for payments to be made to the organisation.

54. Paragraph 12F(10)gives the Welsh Ministers the power to enter into an arrangement under which their functions in relation to independent reviews are performed by the Secretary of State. A similar power exists in section 12(7) of the Adoption and Children Act 2002 in relation to the adoption IRM, but has not been exercised to date.

55. Schedule 2to the Act makes transitory modifications to Schedule 2 to the 1989 Act that closely follow the provisions in new paragraph 12F of Schedule 2 to the 1989 Act (to be inserted by Schedule 1) described above. The transitory modifications enable regulations on the Independent Reviewing Mechanism for foster parents to be made before the amendments in Schedule 1 are commenced. When Schedule 1 is commenced these transitory arrangements will cease to have any effect, but will be replaced by the substantive amendments in Schedule 1.

56. New section 22D introduces a new procedural requirement in a case where the local authority is considering moving a child from a placement under section 22C(2) or (6)(a)–(c) to one that involves making “other arrangements” under section 22C(6)(d). It prevents the local authority from doing so unless there has been a statutory review of the child’s case in accordance with section 26 of the 1989 Act. But this would not prevent such a change of placements if it is necessary for child protection reasons as a matter of urgency.

57. New section 22E replicates section 23(2A) of the 1989 Act, inserted by the Care Standards Act 2000. There are at present no children’s homes provided under section 82(5) in England; there is one children’s home in Wales that was established under this provision. New section 22Fprovides for Part 2 of Schedule 2 to the 1989 Act (as amended by Schedule 1to this Act) to have effect, replicating the effect of section 23(9) of the 1989 Act.

58. Section 9 inserts new section 22G in the 1989 Act, placing a new general duty on local authorities to take steps to secure sufficient accommodation that is appropriate for the needs of children they look after within their authority area. Local authorities need not take into account those children who can be placed with their parents or those for whom it would not be consistent with their welfare to be placed in the area when discharging this function (section 22G(3)). Local authorities must, however, have regard to the benefit of having a number of accommodation providers in their area (because it will usually be beneficial to commission provision from a number of different providers) and to the need to have a range of different types of accommodation capable of meeting the different needs of children in their area (section 22G(4)). “Accommodation providers” means local authority foster parents and children’s homes (section 22G(5)).