Councils are flouting the law by failing looked-after children and young people in care.
Nothing offends against the rule of law as much as law being ignored. Yet this is what happens too often in relation to looked-after children and young people leaving care. Recently, Barnardo’s found systemic use of bed and breakfast accommodation for care leavers, which government guidance states is unsuitable. As they are placed in unsuitable accommodation, these young people cannot have lawful plans for their transition to adulthood.
Further, Action for Children found that a third of children are separated from siblings when placed in foster care, despite an express statutory duty to keep siblings together unless it is impossible or not in their interests to do so.
There is nothing wrong with the basic legal framework. Importantly, everything done for all looked-after children is subject to the duty in section 22(3) of the Children Act 1989, that local authorities must ‘safeguard and promote’ their welfare. Further, the detailed statutory duty in section 22C requires all looked-after children to be placed in the ‘most appropriate’ placement available.
This is specified to be generally the one closest to the family home, which meets the needs arising from any disability the child has, which allows siblings to live together and so on. This duty continues until the child turns 18.
So why are young people still leaving care at 16, another commonly identified problem? This is not just against policy and guidance – it is unlawful. The only reason older teenagers (or indeed any child) should be leaving care before 18 is because the problems which have meant that they cannot live with their families have gone away.
So if children are being forced out of placements at 16, whether into bed and breakfast or otherwise, this is unlawful, unless a new placement is the ‘most appropriate’ one available for them. The remedy is judicial review. Critically, almost all looked-after children (and indeed most care leavers) will be eligible for legal aid, despite the swingeing cuts.
What happens when a looked-after young person turns 18? Most will become ‘former relevant children’ and will continue to be entitled to a significant amount of ongoing support from their local authority. These young people should have a ‘pathway plan’ in place from shortly after age 16, setting out what help they will need and receive in their transition to independent adulthood.
They should have a ‘personal adviser’ to advise, assist and befriend them. And importantly, if they need help with accommodation (for example, if they are not eligible for Housing Act accommodation) or any other service required to promote their welfare, the local authority will have to provide it (see section 23C).
The local authority’s duties to young people leaving care could even extend to meeting the cost of university tuition fees where their welfare requires it, as the Court of Appeal found in R (Kebede) v Newcastle City Council  EWCA Civ 960. These duties to support young people leaving care run at least until the young person turns 21, and potentially up to 25 if they remain in education or training.
Further statutory duties keep being introduced, for example the important new duty allowing young people in foster care to remain in their placement until they turn 21 (see section 98 of the Children and Families Act 2014). More law reform is sought. Should this new duty be extended to young people in residential care, as the Every Child Leaving Care Matters campaign is proposing?
But the real problem is not flaws in the legal framework, it is non-compliance with what has been mandated to be the minimum standards of care for these vulnerable children and young people.
The overriding message behind the statute, regulations and guidance is simple – local authorities are supposed to act like good parents towards children in their care and young people leaving their care. So if a local authority acts in a way that no good parent would act – as too many sadly do – it is probably unlawful.
Steve Broach is a barrister at Monckton Chambers (rightsinreality.wordpress.com)