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RESPONSE BY THE CHILDREN’S LAW CENTRE TO THE DRAFT LEAVING AND AFTERCARE REGULATIONS

INTRODUCTION


The Children’s Law Centre was established in 1997. It is an independent non-governmental organisation, which helps children and young people, parents, carers and professionals work with and understand the law relating to children. The Centre is founded upon the principles laid down in the United Nations Convention on the Rights of the Child, in particular:

• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interest.
• Children have the right o have their voices heard in all matters concerning them.

The Children’s Law Centre’ s Mission Statement is:

‘The Children’s Law Centre, using the law to promote, protect and realise children’s rights’.

The Children’s Law Centre is committed in working to:

1) Compliment existing services provided by the voluntary, community , statutory and legal sectors,
2) Work in partnership with children and other agencies committed to realising children’s rights;
3) Provide a comprehensive and accessible advice service on children’s rights and law as it relates to children and young people;
4) Involve young people in helping direct the work of the Centre through Youth@ clc;
5) Coordinate research and monitor the implementation of the United Nations Convention on the Rights of the Child;
6) Provide education and training programmes to all stakeholders to increase understanding of children’s rights legislation.


RESPONSE TO THE DRAFT LEAVING AND AFTERCARE REGULATIONS AND GUIDANCE

The Children’s Law Centre submitted a response to the consultation document entitled “Proposals for a Leaving Care Bill” and this submission is attached at Annex One. We very much welcome the measures contained in the Children (Leaving Care) (Act) (NI) 2002, which in our view strengthen the legislative basis for the recognition of the rights of our young people leaving care.

The following submission focuses on our main concern which is to ensure that the Draft Leaving and Aftercare Regulations and Guidance ( “the draft regulations and guidance”) apply to as many young people leaving care as possible and that the regulations do not arbitrarily or unintentionally exclude any particular category of young person.

GLOSSARY OF TERMS

The term “looked after” should be defined in the glossary.

CHAPTER 1 INTRODUCTION

We recommend that a paragraph is inserted into this introductory chapter outlining the following reports and studies;
i) Branded a Problem
ii) Better Education , Better Futures;
iii) NHSSB (2001) Audit of the Educational Experiences and Achievements of C&YP in Foster Care in the NHSSB area, Sept 2001
iv) Educational Risk Experienced by Young People Looked After by the South & East Belfast Health & Social Services Trust.
v) NHSSB, Audit of the Educational Attainment and Experiences of Children & Young People in Children’s Homes, 2000
vi) Scoping Exercise by Leaving and Aftercare Services initiated by the DHSS PS through Board Children’s Services Planning, January 2003.
vii) Supporting People

It would also be helpful if the introductory paragraphs placed this legislation within the overarching Children and Young People’s Strategy of the Office of the First Minister and Deputy First Minister and also within the DHSS PS Strategy for Children in Need.


QUESTION ONE – IS THE DRAFT GUIDANCE CLEAR?


We note that the Regulations are identical to the Children (Leaving Care) (England) Regulations 2001, but that the guidance differs in some significant aspects.

The draft regulations and guidance will be helpful in applying the new legislation, but in our view remain unclear in several areas, which we have outlined below.

The complexities of the English Regulations have now been considered in two judicial review cases in England. In the case of R (on the application of W) v Essex County Council , W (at the age of 14, had been placed with foster carers by the local authority under section 20 of the Children Act 1989 from February 2000 until September 2000. In July and August 2002 when W was 16 he was provided with accommodation or housing by the local authority at the Park Hotel. The local authority asserted that this was provided under article 17 of the Children Act 1989 .

The legislative position in England on the date this case was heard was that the definition of a looked after child in section 22 of the Children Act 1989 had been amended to read as follows (the amendments are underlined).

Section 22 of the Children Act 1989

“In this Act, any reference to a child who is looked after by a public authority is a reference to a child who is-
a) in their care, or
b) provided with accommodation by the authority in the exercise of any functions ( in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.”

The words “apart from functions under sections 23B and 24B” were introduced by section 2.2 of the Children (Leaving Care) Act 2000 as from 1 October 2001 and the reference to section 17 in that phrase was introduced by section 116 of the Adoption and Children Act 2002, which states as follows;

“1) in section 17 of the 1989 Act (provision of services for children in need, their families and others) in subsection (6) (services that may be provided in exercise of the functions under that section) after included there is inserted ‘providing accommodation’ and”.
2) in section 22 of that Act (general duty of local authority in relation to children looked after by them), in subsection (1) (looked after children include those provided with accommodation, with exceptions) before ‘23B’ there is inserted ‘17’.”

The result of these amendments is that children provided with accommodation under section 23B and section 17 of the Children Act 1989 are excluded from the definition of a child who is “ looked after” by a local authority from respectively 1 October 2001 and 7 November 2002.

The amendment in relation to section 17 which came into place was not retrospective and therefore did not affect the child W in this case prior to 7 November 2002. (the periods during which the child W was looked after were February and August 2002).

Mr. Justice Charles found that on the facts the child, W was, in all the circumstances of the case, a relevant child and, on attaining 18 years of age, would be a former relevant child for the purposes of the 2000 Act. He considered that the child had been looked after by a public authority in July and August 2002, that he became an eligible child because he had been looked after in 2000 (when he was 14) and in 2002 (when he was 16) for periods which exceeded 13 weeks in total, when he ceased to be looked after in August 2002 he became a relevant child and when he attained the age of 18 he would be a former relevant child.

He did however state at the conclusion of this case as follows;

“ It seems to me that the exclusion since 7 November 2002 of accommodation provided under section 17 from accommodation that satisfies the definition of a child who is being looked after by a local authority has the consequence that it is now strongly arguable that a) there is a distinction between accommodation provide under the two sections, and b) in deciding what to do and what power it should exercise a local authority should have regard to the effect that its decision will have on i) the duties it will owe to the child, and thus ii) on whether the child will satisfy the definition of a child who is looked after by the local authority, an eligible child, a relevant child and a former relevant child.”




1. In respect of Section 2.8, line 8 ( Who is Affected by Legislative Changes ?) of the draft regulations and guidance for Northern Ireland, we would welcome clarity in relation to whether the guidance applies to children and young people who have been receiving support/accommodation under articles 17/18 of the Children (NI) Order 1995 in addition to those who are in receipt of accommodation under article 21 of the Children (NI) Order 1995 and whether a period during which a child or young person is accommodated under articles 17/18 of the Children (NI) Order 1995 will count towards the qualifying period.

2. We would also welcome clarity as to the content of chapter 10 of the guidance in relation to children and young people who will only qualify for advice and assistance under article 35 of the Children (NI) Order 1995 – the guidance should specify exactly who the “care leavers who do not qualify for the new arrangements “ will be.

In the case of Behre & Others, (R on the application of) v Hillingdon & Anor the four claimants had received assistance from the local authority. At the time of the hearing all were adults over the age of 18 and were in full time education. One of the claimants had been recognized as a refugee, two had been granted exceptional leave to remain and one was awaiting determination of her asylum claim. None of them had any parent or other relative when they arrived at Heathrow Airport in 2000 as unaccompanied asylum seeking children. The claimants argued that the local authority still owed them duties under the Children (Leaving Care) Act 2000 and had failed to discharge those duties. The local authority argued that although the young people had received assistance from the social services department they had not been technically “looked after”
The claimants had all been provided with accommodation by the local authority. At the heart of the local authority’s case was the contention that these four claimants were not provided with accommodation under section 20 of the Children Act but merely provided with services under section 17 of the Act and were therefore excluded form the definition of looked after children and not owed any further duties under the leaving care regulations .

It is important to note that the amendment to article 22 of the Children Act by section 116 of the Adoption and Children Act 2002 as discussed above which excludes children provided with accommodation under section 17 of the Children Act from the definition of looked after child was considered by Mr. Justice Sullivan in this case. He said that as it only came into effect in November 2002, it did not apply retrospectively and therefore was not applicable to the claimants’ cases. In his judgment Mr. Justice Sullivan considered in detail the Framework for the Assessment of Children In Need and their Families and came to the conclusion that as a general rule, the exclusion which was introduced in relation to children accommodated under section 17 of the Children Act should not affect most lone children looked after by local authorities who should in fact be accommodated under section 20, but that there may be exceptions to that general rule where the child does not want to be or need to be looked after by the local authority.

Mr. Justice Sullivan found in favour of the claimants on the grounds that they had all been “looked after” and granted declarations in each case that they were eligible children for the purposes of section 19B of the 1989 Children Act and were now former relevant children for the purposes of section 23C of the Act.

3. We would welcome a specific section in the draft guidance dealing with unaccompanied asylum seeking children and other unaccompanied children entering Northern Ireland.

In respect of paragraph 2.9 (Who is Affected by Legislative Changes?), we note the statement that looked after children who enter the criminal justice system will also qualify for help under the Children Order (as amended by the 2002 Act) so long as they meet the qualifying criteria; “for example, a young person’s care order does not lapse if he/she enters a juvenile justice centre.” Article 43 of the Criminal Justice (Children) (NI) Order 1998 currently states as follows;

Article 43

“(1) Where a juvenile justice centre order is made with respect to a child who is subject to a care order under the Children (NI) Order 1995, the care order shall be of no effect while he is detained in a juvenile justice centre.
(2) Where a child has ceased to be in the care of an authority by virtue of paragraph (1), the authority shall, where practicable, while the child is detained in a juvenile justice centre, cause him to be visited and befriended, and may, in exceptional circumstances, give him assistance in kind or in cash.
(3) Paragraphs (7) – (9) of article 18 of the Children (NI) Order 1995 shall apply to assistance under this article as they apply to assistance under that article.

4. We would therefore recommend that in the interests if clarity that Article 43 of the Criminal Justice (Children) (NI) Order 1998 should be amended to state that a care order does not cease on a child entering the Juvenile Justice Centre or alternatively that the guidance should state that even though the care order technically ceases when the child enters the Juvenile Justice Centre, that the Trust remain under a continuing legal obligation to visit and befriend under article 43 and to conduct LAC reviews whilst the child is in custody. It would be important in these cases to ensure that the social worker continued to liaise with the child (as required in any event by article 43(2) of the Criminal Justice ( Children) (NI) Order 1998) to ensure that when he/she reaches 16, work could commence without delay on the pathway plan and a personal adviser could be appointed.

The guidance should make it clear that the child, on leaving the Juvenile Justice Centre or Young Offenders Centre, will still qualify as an eligible or relevant child if he/she fulfils the criteria under Regulation 3 (1) (c).

5. In addition we would suggest that the guidance specifically says “whether on remand or in custody”.

6. We recommend that the guidance should clarify that a period of time spent in the Juvenile Justice Centre or Young Offenders Centre can count towards the qualifying 13 week period.

7.The guidance in England contains a section on the youth justice system in the section key organizations which sets out how authorities should work together in respect of any child/young person who is subject to any orders (not only on remand or in custody) e.g. probations orders, attendance centre orders, youth conferencing orders, reparation orders, community responsibility orders. It is our view that it would be helpful if a similar section was developed for this guidance.

8. In respect of paragraph 2.9 the guidance should also clarify whether a child who has been admitted voluntarily to a hospital will fall within the definition of relevant as long as he or she fulfils the requirements of regulation 3(c) and again whether a period of time spent detained or admitted to hospital (during which LAC reviews should continue) can count towards the prescribed 13 week period.



QUESTION 2 – DRAFT REGULATION 2 (1) PROVIDES THAT TO QUALIFY FOR THE NEW LEAVING AND AFTERCARE SUPPORT ARRANGEMENTS, A YOUNG PERSON MUST HAVE BEEN LOOKED AFTER FOR A PERIOD OF 13 WEEKS AFTER THE AGE OF 14 ? ARE THESE QUALIFYING CRITERIA SET AT THE APPROPRIATE LEVEL?


9. We have noted that the qualifying period of 13 weeks is replicated from the Children (Leaving Care) (England) Regulations 2001. We are unaware of the reasoning as to why this time period was chosen and we would have concerns that the limit has the potential to arbitrarily exclude some young people from accessing the new services. It is our view that the Guidance needs to allow for exceptional circumstances where a young person may not have the qualifying period of thirteen weeks, but is nonetheless unable to return home post 16 and s/he would be prejudiced by the failure of the Trust to provide the new additional services under the Children ( Leaving Care) ( NI) Act 2003.


QUESTION 3 – DRAFT REGULATION 6(2) PROVIDES THAT AN ASSESSMENT OF A YOUNG PERSON’S NEEDS MUST BE COMPLETED WITHIN 3 MONTHS OF A YOUNG PERSON BECOMING AN ELIGIBLE CHILD. IS THREE MONTHS THE RIGHT LENGTH OF TIME FOR COMPLETING AN ASSESSMENT?

10. Yes.

QUESTION 4 – DRAFT REGULATION 6 (4) PROVIDES THAT WHEN CARRYING OUT A NEEDS ASSESSMENT, AN HSS TRUST MUST TAKE ACCOUNT OF ALL FACTORS. ARE THE FACTORS LISTED AT REGULATION 6 (4) SUFFICIENT FOR THIS PURPOSE?

11. In relation to assessment of need, in compliance with Article 12 UNCRC, we suggest that Regulation 6 (3) is amended by inserting a new sub clause as follows:

(d) the views of the child or young person concerned.

12. We suggest that Regulation 6 (4) which relates to the matters to be considered in the needs assessment be amended to include the following;

“g) the child’s identified needs arising from the child’s age, gender, race, culture, religion, language or sexual orientation.”
“ h) Child’s identified needs arising from disability.”

13. We suggest that Regulation 6 (4) (b) should be amended to read “the child’s educational needs, including any special educational needs”.

14. We suggest that Regulation 6 4 (f) should be amended to read “and suitable accommodation”.

15. The Guidance in England provides a very clear diagram outlining the relationship between the Framework for the Assessment of Children in Need and their Families, Looking After Children and the Assessment of Needs and Pathway Plans . It is noted that paragraph 4.14 of the draft guidance indicates that the pathway plan should be based on an assessment tool approved by the HSS Board and the HSS Trust. The draft guidance states that work is currently underway in Northern Ireland to develop a regional assessment model – this is much needed to ensure uniformity of practice. We would suggest that on completion of this regional assessment model for children in need that it would be helpful if a similar table was drawn up to demonstrate the relationship between the two assessment processes.
The draft guidance should be clearer about whether it is the responsibility of the aftercare social worker or personal adviser to conduct the assessment of need and write the pathway plan.

QUESTION 5 – REGULATION 7 AND THE SCHEDULE TO THE DRAFT REGULATIONS SET OUT THE MATTERS THAT MUST BE INCLUDED IN A PATHWAY PLAN. ARE THESE MATTERS SUFFICIENT?

16. We would suggest that the Schedule should be amended as follows;

Amend No. 2 to read “together with confirmation of its suitability in accordance with regulation 10 (2)”.
Amend No. 3 to read, “including matters arising in relation to any special educational needs.”
Insert No. 10 “Any identifiable needs arising from the child’s age, race, culture, religion, language or sexual orientation and how these are to be met”.
Insert no 11 “Any identifiable needs arising from disability and how these are to be met”.
In addition the pathway plan should set out contingency arrangements and have a section clearly recording the child or young person’s consent to the sharing of any information.

QUESTION 6 – DRAFT REGULATION 8 SETS OUT THAT A PATHWAY PLAN MUST BE REVIEWED AT LEAST EVERY 6 MONTHS, OR WHENEVER THE YOUNG PERSON OR PERSONAL ADVISER ASKS FOR ONE. IS THIS THE RIGHT MINIMUM TIME?

17. This is appropriate


QUESTIONS 7 – DRAFT REGULATION 11 SETS OUT THE FUNCTIONS OF PERSONAL ADVISERS. ARE THESE FUNCTIONS APPROPRIATE?
QUESTION 8 – DO YOU THINK THE GUIDANCE IS APPROPRIATELY CLEAR ABOUT THE ROLE OF PERSONAL ADVISERS

18. We suggest that Regulation 11 should be amended as follows;

h) To arrange independent advocacy where appropriate.

19. We suggest that paragraph 6.19 should indicate that personal advisers should receive training in relation to the UNCRC and the Human Rights Act 1998.

20. We suggest that overall the guidance needs to be clearer about the role of the personal adviser, particularly in relation to funding for these posts, necessary qualifications, vetting, line management issues and position in relation to the current leaving and aftercare social workers.

SUITABLE ACCOMMODATION

It is our view that there is currently a lack of accommodation which would be deemed suitable for care leavers, particularly those who need a medium or high level supported living environment. It is essential that facilitation of these legislative requirements is properly funded to ensure that there is a range of accommodation options available which could be included in pathway plans and could be verified as reaching the standard of “suitability” legally required.


ADVOCACY

The Act, Draft Regulations and Guidance are silent on the issue of independent advocacy for children and young people leaving care. We had raised this issue in our original submission. If a child or young person disagrees with the decisions which are being made, the content of the pathway plan or the services which are being provided for him/her it is important that he/she has access to an independent advocate. We have noted that article 119 of the Adoption and Children Act 2002 which extends to England and Wales only amends section 26 of the Children Act 1989 to provide a statutory basis for advocacy services for young people.

21. We would recommend that a similar amendment to article 45 of the Children (NI) Order 1995 is enacted.

TRANSITIONAL ARRANGEMENTS

22. We suggest that the second table on page 11 is reviewed in relation to the entries in relation to “detained or in hospital on 16th birthday “as these do not appear to be correct.

CONCLUSION

Overall, the guidance when finalised will be helpful and will certainly assist us in the interpretation of this legislation. Thank you for providing the Children’s Law Centre with the opportunity to respond. If you have any queries please contact our Ms Caul who will be glad to help.


Children’s Law Centre

July 2004


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ANNEX A