4.6 Children Living Away from Home
This chapter was updated in June 2016. A new Section 9, Deprivation of Liberty Safeguards, was added.
- Essential Safeguards
- Foster Care
- Private Fostering
- Children in Residential Settings
- Children in Hospital or Long Stay Providers
- Children in Custody
- Children of Families Living in Temporary Accommodation
- Deprivation of Liberty Safeguards
Revelations of the widespread abuse and neglect of children living away from home have done much to raise awareness of the particular vulnerability of such children. Many of these revelations have focused on sexual abuse, but physical and emotional abuse and neglect - including peer abuse, bullying and substance misuse - are equally a threat in institutional and other settings.
Concerns for the safety of children living away from home have to be put in the context of attention to the overall developmental needs of such children and a concern for the best possible outcomes for their health and development.
Every setting in which they live should provide the same basic safeguards against abuse, founded on an approach that promotes their general welfare, protects them from harm and treats them with dignity and respect.These values are reflected in regulations and standards which contain specific requirements on safeguarding and child protection for each particular regulated setting where children live away from home - see also Managing Allegations of Abuse Made Against Adults Who Work with Children and Young People Procedure.
The following essential safeguards should be observed in all settings such as foster care, residential care, private fostering, armed forces bases, healthcare, boarding schools (including residential special schools), Prisons, Young Offenders' Institutions, Secure Training Centres and secure units. Where services are not directly provided, these safeguards should be explicitly addressed in any contract with a service provider.
All settings must ensure that:
- Children feel valued and respected and their self-esteem is promoted;
- There is an openness on the part of the institution to the external world and to external scrutiny; including contact with families and the wider community;
- Staff and foster carers are trained in all aspects of safeguarding children, are alert to children's vulnerabilities and risks of harm, and knowledgeable about how to implement safeguarding children procedures;
- Children are listened to, and their views and concerns responded to;
- Children have ready access to a trusted adult outside the institution, e.g. a family member, social worker, independent visitor or children's advocate. Children should be made aware of independent advocacy services, external mentors and Child Line;
- Staff/carers recognise the importance of ascertaining the wishes and feelings of children and understand how individual children communicate by verbal or non-verbal means;
- Complaints procedures are clear, effective, and user-friendly and are readily accessible to children and young people including those with disabilities and those for whom English is not their preferred language;
- Bullying is effectively countered - see Bullying Procedure;
- Recruitment and selection procedures are rigorous and create a high threshold of entry to deter abusers and there is effective supervision and support that extends to temporary staff and volunteers;
- Contractor staff are effectively checked and supervised when on site or in contact with children;
- Clear procedures and support systems are in place for dealing with expressions of concern by staff and carers about other staff or carers (a Whistle-blowing Policy);
- There is respect for diversity, and sensitivity to race, culture, religion, gender, sexuality and disability;
- Staff and carers are alert to the risks of harm to children in the external environment from people prepared to exploit the additional vulnerability of children living away from home.
Where there is reasonable cause to believe that a child has suffered Significant Harm, the Local Authority for the area in which the child is living has the responsibility to convene a Strategy Discussion/Meeting, which should include representatives from the responsible Local Authority that placed the child, if different.At the Strategy Discussion/Meeting it should be decided which Local Authority should take responsibility for the next steps, which may include a Section 47 Enquiry.
The Local Authority's duty to undertake a Section 47 Enquiry, when there are concerns about Significant Harm to a child, applies on the same basis to Looked After children in foster care as it does to children who live with their own families.
When the concerns relate to a child placed in a foster home outside the area of the responsible local authority - see North West Protocol in Relation to Children in Need Moving Across Local Authority Boundaries and North West Protocol in Relation to Notification and Transfer of Children with a Child Protection Plan Across Local Authority Boundaries.
Where there is reasonable cause to believe that a child in foster care has suffered or is at risk of suffering significant harm in the foster placement, the Managing Allegations of Abuse Made Against Adults Who Work with Children and Young People Procedure will apply and a Strategy Meeting will be held.
In these circumstances, enquiries should consider the safety of any other children living in the household, including the foster carers' own children, grand-children or any children cared for by the foster carers in their home as well as any children whom the foster carers may be caring for or working with outside their home in a voluntary or paid capacity e.g. teaching, faith or youth work, scouts or many other groups.
As foster care is undertaken in the privacy of the carers' own home, it is important that children have a voice outside the family. Social workers are required to see children in foster care on their own and evidence of this should be recorded on the child's records.
Foster carers should monitor the whereabouts of their foster children, their patterns of absence and contacts, and follow the recognised agency procedure whenever a foster child is missing from their home.Details of the expectations placed on approved foster carers for looked after children are set out in the National Minimum Standards.
A private fostering arrangement is essentially one that is made without the involvement of a Local Authority for the care of a child under the age of 16 (under 18 if disabled) by someone other than a parent or close relative for 28 days or more. Privately fostered children are a diverse and sometimes vulnerable group which includes:
- Children sent from abroad to stay with another family, usually to improve their educational opportunities;
- Asylum-seeking and refugee children;
- Teenagers who, having broken ties with their parents, are staying in short-term arrangements with friends or other non-relatives;
- Language students living with host families.
Under the Children Act 1989, private foster carers and those with Parental Responsibility are required to notify the local authority of their intention to privately foster or to have a child privately fostered, or where a child is privately fostered in an emergency.
For detailed information, see Privately Fostered Children Procedure.
All residential settings where children and young people are placed, including children's homes and residential schools, whether provided by a private, charitable or faith based organisation, or a local authority, must adhere to the Children's Homes Regulations 2001 (as amended by the Children's Homes (Amendment) Regulations 2011) and all other relevant regulations and to the Quality Standards for Children’s Homes.
Where a local authority places a child in a different local authority area, it is the statutory duty of the Placing Authority to notify the local authority where the child is placed of the placement. Please see the Letter and Form Template Appendix B: Formal Notification of placing LAC out of area - letter with form from the Children Missing from Home and Care - A Standardised Approach to Dealing with Missing and Absent Children and Young People Across Greater Manchester Procedure.
It is good practice for care providers and other professionals to also inform the host local authority in these cases, in case notification has not yet been received. The local authority receiving the notification also has a duty to pass this on to health and education providers to ensure the child receives all relevant services in their new area.
NOTE: The Visits To Children In Long-Term Residential Care Regulations 2011 apply to children accommodated in residential special schools, hospitals or care homes for consecutive periods of three months or more – see Section 6, Children in Hospital or Long Stay Providers.
Prior to the placement, the Placing Authority must consider within the care planning process all potential risks to the child including the potential for the child to go missing and this is even more critical where a child is to be placed outside the area. Where appropriate a discussion should take place in relation to the likely risks with the Safeguarding Unit for the area where the child is to be placed.
Clear records must be kept and reviews and inspections must take place in accordance with the Quality Standards and regulations.
Children in such settings are particularly vulnerable and must be listened to.
All such establishments must have in place complaints procedures for children and young people, visiting and contact arrangements with social workers and Independent Visitors (for Looked After children), as well as parents, advocacy services.
Where there is reasonable cause to believe that a child in a residential setting has suffered or is at risk of suffering Significant Harm, a referral must be made in accordance with the Making Referrals to Children's Social Care Procedure. The concerns may range from bullying or abuse by other children to allegations against staff - see Bullying Procedure and, where the concerns relate to a member or members of staff and/or the care the child is receiving in the residential setting, the Managing Allegations of Abuse Made Against Adults Who Work with Children and Young People Procedure will apply and a Strategy Meeting will be held.When the concerns relate to a looked after child placed in residential care outside the area of the responsible local authority - see North West Protocol in Relation to Children in Need Moving Across Local Authority Boundaries and North West Protocol in Relation to Notification and Transfer of Children with a Child Protection Plan Across Local Authority Boundaries.
Hospitals should be child-friendly, safe and healthy places for children. Wherever possible, children should be consulted about where they would prefer to stay in hospital, and their views should be taken into account and be respected. Care should be provided in an appropriate location and in an environment that is safe and well suited to the age and stage of development of the child or young person.
Children under 16 should not be cared for on an adult ward. Hospital admission data should include the age of children, so that hospitals can monitor whether children are being given appropriate care in appropriate wards.
Hospitals must have policies in place to ensure that their facilities are secure and regularly reviewed.
Any concerns about Significant Harm to a child within a hospital or health based setting must be referred to the Children's Social Care Services in whose area the hospital is located in accordance with the Making Referrals to Children's Social Care Procedure.
No child known to Children's Social Care Services who is an inpatient in a hospital and about whom there are child protection concerns should be discharged home without a referral to establish that the home environment is safe, the concerns by medical staff are fully addressed and there is a plan in place for the ongoing promotion and safeguarding of the child's welfare - see the Making Referrals to Children's Social Care Procedure.
The Visits To Children In Long-Term Residential Care Regulations 2011 apply to children accommodated in residential special schools, hospitals or care homes for consecutive periods of three months or more. The ‘responsible’ local authority must, under sections 85 and 86 of the Children Act 1989, be notified of the fact. The Responsible Authority is then under a duty to take such steps as are reasonably practicable to determine whether the child's welfare is adequately safeguarded and promoted while they are accommodated, and to consider whether there is a need to exercise any functions under the Children Act 1989 with respect to the child.
Where the establishment in which the child is residing is in the public sector (e.g. NHS hospital, local authority residential special school), the ‘responsible authority” means (under section 85 Children Act 1989):
- The local authority within whose area the child was ordinarily resident immediately before being accommodated; or
- Where the child was not ordinarily resident within the area of any local authority, the local authority within whose area the accommodation is situated.
Where the establishment in which the child is residing is in the private sector (e.g. private hospital, care home), the ‘responsible authority” means (under section 86 Children Act 1989) the local authority within whose area the establishment is situated.
Where the child is residing in a private establishment but funded by a public sector organisation, e.g. a CCG, then this will fall within section 85, rather than section 86, and the ‘responsible authority’ will be the authority within whose area the child was ordinarily resident immediately before being accommodated in the hospital.
The Responsible Authority, once notified, must ensure that visits are made to the child by a qualified social worker.
On each visit, the social worker must speak to the child in private unless:
- The child, being of sufficient age and understanding to do so, refuses;
- The social worker considers it inappropriate to do so, having regard to the child's age and understanding; or
- The social worker is unable to do so.
Where the child's needs for the purposes of the Children Act 1989 have not been assessed by any local authority in the past twelve months, the social worker must visit:
- Within seven working days of the notification; and
- Thereafter, at intervals of not more than six months.
Where the child's needs have been assessed in the past twelve months, the social worker must visit:
- Within three months of the notification; and
- Thereafter, at intervals of not more than six months.
In addition, the social worker must visit:
- Whenever reasonably requested to do so by the child; and
- Whenever satisfied that circumstances require the child to be visited in order to safeguard and promote his/her welfare.
The social worker must provide a written report of each visit.
The report must include the social worker's assessment of:
- The child's wishes and feelings about the accommodation, so far as the social worker has been able to ascertain them;
- Whether the child's welfare is adequately safeguarded and promoted;
- Whether further additional visits are required in order to safeguard and promote the child's welfare;
- Any services which the social worker considers appropriate to be made available with a view to promoting contact between the child and his/her family; and
- Any other steps that should be taken by the local authority exercising its functions under the 1989 Act to safeguard and promote the child's welfare.
The report must be copied to:
- The child, unless it would not be appropriate to do so, having regard to age and understanding;
- Any parent/person who has Parental Responsibility, unless to do so would place the child at risk of Significant Harm;
- Where different from the responsible local authority, the local authority in whose area the child is accommodated; and
- Any other person with responsibility for safeguarding and promoting the child's welfare under the 1989 Act.
The local authority has the same responsibilities towards children in custody as it does to other children in the local authority area.
Young Offenders Institutions which accommodate Juveniles (16-18) must have policies and procedures in place which set out their duties to safeguard and promote the welfare of the children and young people in their care.
Specific institutions in an area must ensure that there are links in place with the Local Safeguarding Children Boards and local authorities.Wigan LSCB have their own Protocol with local institutions, which is available on their website:
Placement in temporary accommodation, often a distance from previous support networks or involving frequent moves, can lead to individuals and families falling through the net.
It is important that effective systems are in place to ensure that children from homeless families receive services from health and education, social care and welfare support services as well as any other specific services, because with frequent moves they may become disengaged from services. For example a child who is not registered with a school or a GP will miss out on basic services such as health screening, eye tests, immunisations and learning to read and write. Where a child who needs specific treatment misses appointments due to moves the problem may become an issue of Significant Harm.
Temporary accommodation, for example bed and breakfast accommodation or women's refuges, may be a location which is not secure and safe and where other adults are also resident who may pose a risk to the child. Therefore, if this kind of accommodation is used, this should only occur where a thorough risk management strategy has been carried out and it should be reviewed regularly.
All concerns of Significant Harm to a child should be referred to Children's Social Care Services in accordance with the Making Referrals to Children's Social Care Procedure.
The local authorities' responsibilities for homeless families are set out in the Legal Framework for Safeguarding Children in Individual Cases Procedure.
The Mental Capacity Act Deprivation of Liberty Safeguards (DOLS) were introduced in April 2009 as part of the implementation of the Mental Capacity Act 2005 (MCA), to ensure better legal and administrative protection for all those who may, for whatever reason, lack Capacity to consent to the care they are receiving, including where they live and how they are cared for on a day to day basis. Since implementation, practice and case law has been developing. For adult services the implementation has become increasingly demanding and complex as case law has extended the people who need DoLs assessments and related legal processes, and greatly expanded the scope of what deprivation of liberty meant.
At the time of the implementation of the DoLs provisions, there was little consideration of whether and how the provisions might apply to children. A case in March 2016 makes clear that social workers and local authorities need to consider whether DoLs applies to children in care or cared for away from home in other settings. The case illuminates what a deprivation of liberty would be for a looked after child in residential or foster care and who (and in what circumstances) can consent to a deprivation of liberty for a child. It makes clear that, where a child is on an interim care order of care order, a local authority cannot consent to a deprivation of liberty, and that where a child is accommodated under s20 of the Children Act 1989, whether parents can consent will depend on the particular circumstances of the case. Where parents cannot consent to deprivation of liberty, the local authority will have to seek leave from the high Court for the Court to exercise its inherent jurisdiction in order to lawfully deprive a child of their liberty.
The particular case concerned a 14 year old boy (AB) who was residing in a children’s home under an interim care order. He had previously been Accommodated under Section 20 of the Children Act 1989. He had moderate to severe learning disability, Attention Deficit Hyperactivity Disorder, a statement of special educational needs and was under the care of child and adolescent mental health services. He was happy, settled and wished to remain in the children’s home but lacked Capacity to make the decision.
Click here for a tri.x Policy Briefing which provides greater detail.
This is a developing area of law, and tri.x will issue further Policy Briefings as the law develops.
If you are uncertain as to whether a case may involve a deprivation of a child’s/young person’s liberty, you should seek legal advice.