Introduction

1.These explanatory notes relate to the Children and Young Persons Act 2008 which received Royal Assent on 13 November 2008. They have been prepared by the Department for Children, Schools and Families in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

Summary and Background

3.In June 2007 the Government published a White Paper, Care Matters: Time for Change. This set out the Government’s plans to improve outcomes for looked after children and care leavers. The White Paper built on the proposals in the Green Paper Care Matters: Transforming the Lives of Children and Young People in Care which was published for consultation in November 2006 and the conclusions of four working groups established to investigate best practice in making provision for looked after children. The Green Paper and a summary of the responses to it can be found at www.dfes.gov.uk/consultations/conResults.cfm?consultationId=1406 and the White Paper and working group reports at www.dcsf.gov.uk/publications/timeforchange/. The White Paper included a commitment to amend the legislative and regulatory framework for looked after children and care leavers as well as amending the statutory guidance and National Minimum Standards.

4.The purpose of the Act is to reform the statutory framework for the care system in England and Wales by implementing the proposals in the White Paper that require primary legislation. This forms part of the Government’s programme to ensure children and young people receive high quality care and support. The Act also includes provisions in relation to well-being of children and young people, private fostering, child death notification to Local Safeguarding Children Boards and appropriate national authorities, the powers of the Secretary of State to conduct research and applications for the discharge of Emergency Protection Orders.

5.In summary, the Act:

• makes provision to enable local authorities to delegate local authority functions in relation to looked after children to providers of social work services and (following the pilot stage) to enable regulation of these providers and to require them to be registered under Part 2 of the Care Standards Act 2000;

• places a general duty on the Secretary of State to promote the well-being of children in England;

• makes provision for the accommodation and maintenance of children who are looked after and provides powers to make further provision in relation to the placement of looked after children by regulation including a new power to create a mechanism for the independent review of decisions by fostering service providers that a prospective or existing foster parent is not suitable to foster (similar to that which currently exists for prospective adopters);

• requires local authorities to take steps to secure sufficient accommodation in their area that is appropriate for the needs of children they look after;

• amends the duties of local authorities in relation to the appointment of independent reviewing officers (IROs); adds to the functions of IROs; and provides powers for the appropriate national authority to establish a new national IRO service independent of local authorities in England and Wales respectively;

• places a new duty on local authorities to appoint a representative to visit all looked after children, wherever they are living and provides a power to extend the duty to other groups of children who were looked after but have ceased to be so;

• extends the duty on local authorities to appoint an independent person to visit, befriend and advise any looked after child if doing so is in the child’s interests;

• places a duty on governing bodies of maintained schools to designate a member of staff as having responsibility for promoting the educational achievement of registered pupils at the school who are looked after;

• extends the duty on local authorities to appoint a personal adviser and keep the pathway plan under regular review to young people who are former relevant children (i.e. care leavers who are over 18) and who start or resume a programme of education or training after the age of 21 but under the age of 25 years;

• requires local authorities to pay a bursary to a former relevant child who goes on to Higher Education;

• extends the powers of local authorities to make cash payments to children in need and their families;

• adds the provision of short breaks for those who care for disabled children and services to support family contact for children who are provided with accommodation under health or education legislation to the range of services that local authorities must provide for children and their families;

• makes provision to enable registration authorities to issue compliance notices to children’s home providers who are failing to meet required standards and to serve a notice preventing new admissions to establishments where this is deemed appropriate;

• repeals section 45(9) of the 1989 Act to remove the 72-hour moratorium on the court’s powers to hear an application to discharge an Emergency Protection Order;

• places a duty on registrars of births and deaths to notify Local Safeguarding Children Boards of the particulars of the death of a child and gives the Registrar General power to supply information about the deceased child to the appropriate national authority for research purposes;

• extends the powers of the Secretary of State to carry out research on the functions of local authorities to functions added under recent legislation, in particular the Adoption and Children Act 2002, the Children Act 2004 and the Children and Young Persons Act 2008;

• extends the period within which a registration scheme may be established for private fostering by three years; and

• extends the rights of relatives who are entitled to apply for a residence order or special guardianship order without leave of the court to those with whom the child has lived for a continuous period of one year; and ensures that where a court makes a residence order the order will normally continue until the child reaches the age of 18.

Territorial Extent

6.The Act extends to England and Wales, but the provisions relating to children’s well-being; and to the Chief Inspector’s power to issue a compliance notice where there are concerns that standards in residential care settings are not being met, apply in relation to England only. The Act does not extend to Northern Ireland and extends to Scotland only in relation to a consequential amendment to the Children (Scotland) Act 1995.

7.The Act confers various powers to make subordinate legislation. In general, these are exercisable by the Secretary of State, in relation to England and by the Welsh Ministers, in relation to Wales.

The Act

8.The Act is in 5 parts. Part 1 (sections 1 to 6) deals with arrangements for the provision of social work services for children and young persons.

9.Parts 2 and 3 of the Act amend the public law framework for safeguarding and promoting children’s welfare; that is, the services to be provided to support children and their families and the procedures to protect children who are at risk of suffering harm. The Children Act 1989 is central to this public law framework. That Act is substantially amended by the Act (and is referred to in these Notes as “the 1989 Act”). Parts 3 to 5 of the 1989 Act have already been the subject of considerable amendment, in particular by the Children (Leaving Care) Act 2000, the Adoption and Children Act 2002 and the Children Act 2004. The Act will also amend the Care Standards Act 2000, the Adoption and Children Act 2002 and the Children Act 2004.

10.Part 2 (sections 7 to 33) of the Act places a new duty on the Secretary of State to promote the well-being of children in England. It sets out the duties of local authorities when providing accommodation for children they look after; places a new general duty on local authorities to secure sufficient accommodation in their area for children they look after; and makes provisions for the appointment and functions of IROs and provides a power for the establishment of a national IRO service in England and Wales respectively. It provides for the local authority to make arrangements for visits by a representative of theirs to all looked after children and for other children and young persons living away from home; and for the appointment of independent visitors to advise befriend and support looked after children. It also provides for visits by a local authority representative to children who are provided with accommodation under health or education legislation. It extends the powers of local authorities to make cash payments to children in need and their families; and places a new duty on local authorities to include, as part of the services they provide for children and their families, the provision of breaks for those who care for disabled children and for services to support family contact with children provided with accommodation under health or education legislation.

11.In addition it imposes a duty on governing bodies of maintained schools to designate a member of staff for looked after children; and on local authorities to pay a bursary to former relevant children who go on to Higher Education. It also extends the entitlements of former relevant children to the appointment of a personal adviser and other assistance in connection with education or training. It amends the Care Standards Act 2000 to make provision for the enforcement of care standards in children’s homes and other settings. It requires registrars to provide information to Local Safeguarding Children Boards regarding child deaths and gives a power to the Registrar General to provide information about child deaths to the appropriate national authority for research purposes. It extends the powers of local authorities to make cash payments to children in need and their families and the powers of the Secretary of State to carry out research on the functions of local authorities. It removes restrictions on the court’s powers to hear an application to discharge an Emergency Protection Order.

12.Part 3 (sections 34 and 35) amends section 12 of the Adoption and Children Act 2002, that enables regulations to provide for the independent review of qualifying determinations relating to adoption and it extends the period allowed for making regulations to establish a registration scheme for private fostering

13.Part 4 (sections 36 to 38) makes amendments to Part 1 of the 1989 Act in relation to residence orders and special guardianship orders.

14.Part 5 (sections 39 to 45) contains supplementary, general and final provisions.

15.There are four Schedules. Schedule 1 makes provisions that are supplementary and consequential on the amendments made to the Children Act 1989 by section 9 of the Act. Schedule 2 makes transitory modifications to Schedule 2 to the 1989 Act. Schedule 3 makes minor and supplementary amendments to the 1989 Act. Schedule 4 deals with repeals.

Commentary on Sections

16.Unless otherwise stated, in these notes the “appropriate national authority” means the Secretary of State for Children, Schools and Families in relation to England and Welsh Ministers in relation to Wales. The “registration authority” refers to HM Chief Inspector for Education, Children’s Services and Skills (the Chief Inspector) in England and, when applied to Wales, the Welsh Ministers.

Part 1 – Delivery of Social Work Services for Children and Young Persons (sections 1 to 6)

Section 1: Power to enter into arrangements for discharge of care functions

17.Section 1 enables local authorities to enter into arrangements with a body corporate (referred to in this Part as a “provider of social work services”) for the discharge by that body of some or all of the authority’s social services functions in relation to:

referred to in subsection (2) as relevant care functions. Social services functions are defined in section 1A of the Local Authority Social Services Act 1970 (the “1970 Act”). Subsection (5) provides that the arrangements may make provision for the continuing exercise of the local authority functions by the provider of social work services where the child ceases to be looked after by the local authority.

18.Subsection (6) enables the appropriate national authority to make regulations specifying functions which are or are not to be treated as relevant care functions. An order under this subsection is subject to the affirmative resolution procedure. This means that before the order can be made a draft of it must have been laid before, and approved by, each House of Parliament (if it is to be made by the Secretary of State) or the National Assembly for Wales (if it is to be made by Welsh Ministers). This contrasts with the more common “negative” resolution procedure for exercising delegated powers that permits the statutory instrument to be laid before both Houses or, as the case may be, the National Assembly for Wales after it has been made. Under the negative resolution procedure, the instrument is subject to revocation if a resolution for annulment is passed within 40 days.

19.A provider of social work services cannot be a local authority (subsection (3)(a)) and regulations may make further provision about the bodies corporate that may, or may not, be providers of social work services (subsection (7)). This power is also subject to the affirmative resolution procedure.

20.In addition the appropriate national authority may by regulations provide that arrangements may be entered into for no less than a prescribed minimum period or for no more than a prescribed maximum period (subsection (8)).

Section 2: Restrictions on arrangements under section 1

21.Section 2 places restrictions on the functions that may be the subject of arrangements under this Part. The excluded functions (set out in subsection (2)) are functions in relation to the appointment of independent reviewing officers and the local authority’s functions as an adoption agency (unless the provider of social work services is also a registered adoption society). The intention is that independent reviewing officers will be one of the mechanisms by which local authorities quality assure the work carried out by providers of social work services. Making arrangements for adoption are excluded as the intention is that providers of social work services are to focus on the provision of support to looked after children, particularly those who are likely to remain in the long term care of the authority.

22.Subsection (5) provides that a local authority must not enter into arrangements under Part 1 unless it is satisfied that the functions will be discharged by, or under the supervision of, registered social workers.

Section 3: Effect of arrangements under section 1

23.Section 3(1) provides that any acts or omissions of a provider of social work services or their employees are to be treated as the acts and omissions of the local authority. Subsection (2) provides that this does not affect the rights and liabilities of the local authority and the provider as between one another; does not apply to criminal offences; does not make the local authority liable under section 6 of the Human Rights Act 1998 in respect of acts of the provider which are private in nature; and does not prevent any civil proceedings being brought against the provider. The liability of the provider to third parties is unaffected by this provision, which means that the local authority will in addition be equally and jointly liable for the acts of the provider. For example, in tort the provider is liable under the common law and the local authority is deemed liable under section 3.

Section 5: Functions under this Part to be social services functions

24.The power to enter into an arrangement with a provider of social work services is a social services function (section 5 amends Schedule 1 to the 1970 Act). This means that in making arrangements under this Part the local authority must act under any general guidance of the appropriate national authority issued under section 7 of the 1970 Act and comply with any directions issued under section 7A of that Act.

Section 6: Piloting and expiry of arrangements under this Part

25.Section 6 enables the piloting of arrangements under this Part for a period of up to five years. The intention is to pilot the arrangements in a number of local authorities. The pilots will be evaluated and, subject to that evaluation, the power may be extended to all local authorities. In that event, all providers of social work services will be regulated as agencies under the Care Standards Act 2000 and subject to registration and inspection by the Chief Inspector for Education, Children’s Services and Skills and section 4 makes provision for this. Subsection (3) provides that sections 1 to 5 cease to have effect if the piloting period comes to an end after 5 years without section 4 having been commenced. Subsections (4) and (5) provide that if section 1(1) is not commenced within a period of 5 years then sections 1 to 5 cease to have effect in relation to England or, as the case may be, Wales.

Part 2 - Functions in Relation to Children and Young Persons

Well-being

Section 7: General duty of the Secretary of State to promote the well-being of children in England

26.Section 7 places the Secretary of State under a statutory duty to promote the well-being of children in England. The Secretary of State has, for many years, carried out activities for the benefit of children. In particular, he is required by section 10 of the Education Act 1996 (c.56) to promote the education of the people of England and Wales. This section brings the Secretary of State’s statutory duties into line with his broader policy commitments for children and young people, which have developed in recent years. The Secretary of State now has responsibility for promoting the well-being of all children and young people (and, by extension, their families and those who care for them) as well as their education. The new statutory duty complements the existing duties on local authorities and governing bodies of schools to promote children’s well-being.

27.Subsection (1) places the Secretary of State under a general duty to promote the well-being of children (defined as persons under the age of 18) in England. This general duty is subject to any specific duties on the Secretary of State (subsection (2)).

28.Subsection (3) makes clear that the activities the Secretary of State undertakes to promote children’s well-being include activities in connection with parenting, which includes parental care provided by any person to a child not just that provided by a parent or other person who has parental responsibility for the child.

29.In addition, subsection (4) gives the Secretary of State a statutory power to promote the well-being of care leavers who are over the age of 18 (both former relevant children within the meaning of section 23C and persons qualifying for advice and assistance under section 24) and other groups of persons under the age of 25 who may be prescribed in regulations subject to the negative resolution procedure (see paragraph 18 above for a description of Parliamentary procedures)

30.The section requires the Secretary of State to have regard to the aspects of well-being mentioned in section 10(2) of the Children Act 2004 when discharging his functions under this section. The aspects of well-being mentioned in section 10(2) are physical and mental health and emotional well-being; protection from harm and neglect; education, training and recreation; their contribution to society; social and economic well-being.

31.The section came into force on Royal Assent (see paragraph 160 below) and applies in relation to England only.

Accommodation

32.Every local authority should have a plan for the future care of each child it looks after. Care plans should describe the child’s needs, set out the services that will be provided to meet those needs and the local authority’s long term plan for the child. The care plan should include amongst other things:

• proposed placement (type and details);

• other services to be provided to the child or family either by the local authority or other agencies;

• the health plan;

• the Personal Education Plan; and

• dates of scheduled reviews of the care plan.

33.Whenever decisions are taken that affect the child, their wishes and feelings must be ascertained and given due consideration, in addition to the wishes and feelings of their parents and carers (section 22 of the 1989 Act). Due consideration must also be given to the child’s religious persuasion, racial origin and cultural and linguistic background. Care plans must be reviewed in accordance with regulations i.e. the first review must be within 4 weeks of the date on which the child begins to be looked after, the second review must be within 3 months after that date, and subsequently at intervals of no more than 6 months.

34.The content of care plans and arrangements for reviews is determined by a combination of regulations. In England, these are the Arrangement for Placement of Children (General) Regulations 1991 and the Review of Children’s Cases Regulations 1991, made under the 1989 Act. In relation to Wales, the Placement of Children (Wales) Regulations 2007 and the Review of Children’s Cases (Wales) Regulations 2007 apply.

35.Amendments to arrangements for care planning and review are made by the provisions in Part 2 of the Act.

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.