Key Legislation and Definitions

Information is set out below about the key legislation and definitions in relation to children in care.

Legal Context

The functions (including powers and duties) of Local Authorities in relation to children Looked After by them are set out in the Children Act 1989, principally amended by The Children (Leaving Care) Act 2000, the Adoption and Children Act 2002 and Children and Young Person's Act 2008 and associated Regulations and guidance, in particular The Children Act 1989 Guidance and Regulations Volume 2 Care Planning, Placement and Case Review.

Sec22(3) of the 1989 Act sets out the general duty of the Local Authority looking after a child to safeguard and promote the welfare of the child

The 2010 Regulations and Guidance sets out how Local Authorities and their partners should carry out their full range of responsibilities in relation to care planning, placement and review for Looked After children.

The Looked After Child

A child is Looked After by the Local Authority if s/he is in their care by reason of a care order or is being provided with accommodation under Sec 20 of the 1989 Act for more than 24 hours with the agreement of the parents or if the child if aged 16 or over.

For a child who is accommodated under a Sec 20 voluntary arrangement, the Local Authority does not have parental responsibility for the child, it is retained by the parents, but the LA must comply with the duties set out in the 1989 Act

A Care Order gives the LA parental responsibility for the child, although a parent also retains parental responsibility and may continue to exercise it if their actions are not incompatible with the Care Order.

An Eligible Child is a looked after child aged 16 or 17, who has been looked after for a total of at least 13 weeks which began after s/he reached aged 14 and ends after s/he reaches the age of 16.

A Relevant Child is a young person aged 16 or 17 who was an eligible child but is no longer looked after.

A former relevant child is a young person aged 18 or over who was either an eligible or relevant child

The LA has duties in relation to former relevant children until they reach age 21 or 25 if they are pursuing a programme of education or training.

Corporate Parenting

The task of improving outcomes and promoting the life chances of children Looked After is shared by the whole Local Authority and partner agencies.

The role of the corporate parent is to act as the best possible parent for each child they look after and to advocate for them to secure the best possible outcomes.

Care Order

Cannot be made by a court unless it is satisfied that the threshold criteria are met as set out in Sec 31of the 1989 Act.

  1. The child concerned is suffering or is likely to suffer significant harm, and
  2. That the harm or likelihood of harm is attributable to either(1) the care given to the child or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give, or (2) the child is beyond parental control.

Sec 31 of the 1989 Act provides that where an application is made for a care order, the responsible authority must prepare a care plan, which includes a plan of permanence for the child.

Harm

Harm means ill- treatment or the impairment of health or development including impairment suffered from seeing or hearing the ill-treatment of another. Development means physical, intellectual, emotional, social or behavioural development. Health means physical or mental health. Ill-treatment includes sexual abuse and forms of ill-treatment which are not physical.

The Care Plan (as set out in the 2010 Regs) contains information about how the child's developmental needs will be met as well as arrangements for the current and longer term care of the child.

Permanence Planning

Permanence is the framework of emotional permanence ( attachment),physical permanence(stability) and legal permanence( the carer has parental responsibility for the child) which gives the child a sense of security, identity and commitment. The objective of permanence planning is to ensure children have a secure, stable and loving family to support them through childhood and beyond. A child should have a plan for permanence by their second LAC Review.

Options for Permanence

  1. A successful return to birth family
  2. Family and friends care, supported by a Legal Order such as a Residence Order, Special Guardianship Order or adoption
  3. Long term foster care
  4. Adoption

The planning process, informed by multi-agency contributions will identify options most likely to meet the needs of the child.

Residence Order

Settles the arrangements as to the person with whom the child is to live with. A non-parent acquires parental responsibility and retains it as long as the order is in force. Where a residence order is made in favour of someone who is not a parent of the child it can be extended by the court until the child's 18th birthday. Foster carers can apply for a Residence Order after caring for the child for one year.

Special Guardianship Order

Intended to meet the needs of children who cannot live with birth parents, for whom adoption is not appropriate, but who would still benefit from a legally secure placement. Gives the carer parental responsibility for all aspects of caring for the child and for taking the decisions to do with their upbringing.The child is no longer looked after by the Local Authority. It preserves the link between the child and their birth family. Have access to a range of services provided by the Local Authority.

Adoption

When an adoption order is made all legal ties between the child and his birth parents (and all other birth family members) are severed. The birth parents no longer have parental responsibility for the child- this is vested in the adopters. The making of an adoption order extinguishes all other court orders in relation to the child.

Parental Responsibility

'All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property'. An unmarried father obtains parental responsibility for his child if he is registered as the father on the child's birth certificate. A step parent ( a person married to a parent with parental responsibility) can obtain parental responsibility by agreement of  all those with parental responsibility or by application to the court.

Sec 17 Child in Need

General duty on Local Authorities to provide a range of services for children in need , their families and others.

A child is in need if a) he is unlikely to achieve or maintain a reasonable standard of health or development without the provision of services b) his health or development is likely to be significantly impaired without the provision of services c) he is disabled.

Local Authorities can provide accommodation for children in need under section 17 of the Children Act.

Sec 47 Duty to Investigate

The Local Authority has a duty to make enquiries to enable them to decide whether they should take any action to safeguard or promote the child's welfare when they have reasonable cause to suspect that the child is suffering or is likely to suffer, significant harm.

Core Assessment

Where a child has not been assessed before becoming Looked After a core assessment is required to inform the care plan. Based on the Assessment framework ( Framework for the assessment of children in need and their families).

Describes how a child's developmental needs, parental capacity and environmental factors are assessed, enabling desired outcomes to be identified and planned for.

IRO - Independent Reviewing Officer

Should chair all reviews of children looked after and will monitor the implementation of the care plan and ensure there is no delay in actions being taken within the care plan.

Weblinks

NSPCC - guide to legislation, policy and guidance in relation to children in care