2002 Chapter 11

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These Explanatory Notes refer to the Children (Leaving Care) Act (Northern Ireland) 2002

CHILDREN (LEAVING CARE) ACT

(NORTHERN IRELAND) 2002

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EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes relate to the Children (Leaving Care) Act (Northern Ireland) 2002. They have been prepared by the Department of Health, Social Services and Public Safety in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by the Assembly.

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 explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3.     In October 2000, the Social Services Inspectorate of the Department of Health, Social Services and Public Safety, published a report entitled "Promoting Independence: A Review of Leaving and After Care Services". The main finding of the review was that young people leaving care experience a range of disadvantages in terms of education, employment, housing and family support. The report concluded that there was a need for a better level of support from public sector agencies.

4.     "Promoting Independence" noted that between 1996 and 1999, around 670 young people aged between 16 and 18 became care leavers. Approximately a quarter of these young people were only 16 when they left care. By contrast, the typical age for young people leaving their family home is 22.

5.     Young care leavers are among the most vulnerable young people in society. Often they leave the care system without the educational attainments and the ongoing support necessary to underpin their successful inclusion within their community and the wider society. To make a difference these young people need to have access to staff and services capable of meeting their assessed needs. In particular they need help to redress some of the shortcomings associated with their early life experiences.

6.     The Act meets a commitment given in the Programme for Government to introduce legislation to help support young people leaving care. The Act forms the basis for improved leaving and after care services and builds upon the existing statutory provisions contained in the Children (Northern Ireland) Order 1995 ("the Children Order").

THE NEW PROVISIONS

7.     The main purpose of the Act is to improve the life chances of young people who are looked after by HSS Trusts as they make the transition to independent living. To do this, it amends the Children Order to place new and enhanced duties on HSS Trusts to assess and meet the care and support needs of young people until they are at least 21 years old. Its main aims are: to ensure that young people should not leave care until they are ready to do so; to improve the assessment, preparation and planning for leaving care; to provide better personal support for young people after leaving care; and to improve the financial arrangements for care leavers. The main provisions of the Act are set out below.

8.     The Act places a new duty on HSS Trusts to assess and meet the needs of eligible 16 and 17 year olds who remain in care, or those who have left care. This duty will rest with the Trust which last looked after the young person wherever he or she currently lives. The Act and supporting Regulations will determine who will, and will not, be eligible under the new arrangements.

9.     The Act places a new duty on HSS Trusts to keep in touch with young people who have left care in order to make sure that they receive the support to which they are entitled. The duty will run until the young person reaches 21, or later if he or she is still receiving help from a Trust with education or training.

10.     The Act requires HSS Trusts to provide a personal adviser and a pathway plan for all eligible young people. The pathway plan will map out a route to independence for these young people and will be reviewed regularly to take account of a young person's changing circumstances and ambitions. The personal adviser will provide a single point of contact for a young person. The adviser will be responsible for overseeing the pathway plan and ensuring that the young person receives the support to which he or she is entitled in a co-ordinated and easily accessible way.

11.     The Act simplifies the arrangements for the financial support of 16 and 17 year olds leaving care. Previously, young people who left care at 16 could claim benefits through the social security system. Depending on their circumstances these benefits might be Income Support, Housing Benefit or income-based Jobseeker's Allowance. The Act places HSS Trusts under a new statutory duty to support these care leavers and at the same time removes entitlement to these means-tested benefits from "eligible" and "relevant children". Under the new arrangements, HSS Trusts will become their primary source of income. This measure is intended to ensure that vulnerable young people receive the care and help they need to grow into independence. The resources deployed by the Department for Social Development in relation to means-tested benefits for 16-17 year old care leavers will be transferred to the Department of Health, Social Services and Public Safety to help support these young people more effectively.

12.     The Act provides continuing support to care leavers when they enter the adult world at 18. It enables those young people who have qualified for the new arrangements when they were 16 or 17 to continue to have a personal adviser and a pathway plan. It also requires HSS Trusts to keep in touch with them until they are 21, or later if they are still being helped with education or training. On top of this, the Act requires HSS Trusts to provide general assistance for these young people, in kind, or exceptionally in cash, until they are 21 and to assist them with the expenses associated with employment, education and training. HSS Trusts are required to provide out of term accommodation (or the funds to secure it) to care leavers they are assisting in full-time further or higher education.

CONSULTATION

13.     A consultation document, entitled "Proposals for a Children Leaving Care Bill" was issued to a wide range of interested parties in March 2001 with a 3-month consultation period. Over 50 responses were received from individuals and organisations working with children and young people. A number of respondents sought the views of young care leavers and included these in their replies. Responses indicated a broad welcome for the proposals, particularly since they would enhance the responsibilities of HSS Trusts to provide improved leaving and after care services.

14.     The main area of concern was in relation to the proposed new arrangements for the financial support of 16 and 17 year old care leavers (see paragraph 11 above). While some respondents were attracted by the idea of a single system of financial support for 16-17 year old care leavers, others did not support such an approach. In proceeding with this proposal, it was considered important to ensure that the financial and other support for care leavers was co-ordinated through Trusts and that young care leavers should not lose contact with Trusts after they leave care. In addition, the Minister for Social Development agreed that the social security benefits system should be amended to support the new proposals as outlined in the consultation document. This agreement supports the long-standing principle of parity across the social security field.

OPTIONS CONSIDERED

15.     Although most respondents to the consultation document clearly wished to see the legislation in place, a few argued that it should be deferred until such time as the equivalent legislation in England and Wales (the Children (Leaving Care) Act 2000) had been in operation for some time. It was suggested that this would enable the Department to monitor the experiences of England and Wales so as to ensure that any future legislation here would have a positive impact on the outcomes for young people leaving care. The option to "wait and see" was considered and rejected in favour of moving ahead to promote the legislation at the earliest opportunity.

OUTLINE OF THE EXISTING LAW

16.     The Children Order provides the legal basis for the provision of leaving and after care services. All references to numbered Articles in paragraphs 17 to 21 below, are to the Children Order before amendment by the Children (Leaving Care) Act (Northern Ireland) 2002.

17.     HSS Trusts have a duty to prepare young people they are looking after for the time when they will leave care. They are also given duties and powers to advise and assist young people over the age of 16 who were previously "looked after" by social services. A "looked after" child is a child who is provided with accommodation by an HSS Trust under voluntary arrangements, or who is in its care under a care order (Article 25(1)). For this purpose, a child means a person under the age of 18 (Article 2(2)).

18.     The Children Order and, consequently, the Act, use the term "authority" to refer to a Health and Social Services Board or Trust. The powers and duties under the Children Order are exercised by a Board, except where a function is exercisable by a Trust by virtue of an authorisation for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994 (Article 2(2) and (3)). In practice, most powers and duties under the Children Order have been delegated to HSS Trusts.

19.     Article 35 requires HSS Trusts to advise, assist and befriend young people they are looking after, with a view to promoting their welfare when they cease to be looked after. In other words, steps should be taken to prepare the young person for the time when he or she is no longer looked after. Similar duties are also placed on voluntary organisations and anyone operating private children's homes (Articles 76 and 92).

20.     Alongside the duty to prepare young people for independence, HSS Trusts have after care duties towards formerly looked after young people and other "qualifying persons" aged 16 and over. HSS Trusts may (or in some cases must) advise and befriend these young people (Article 35(4)). If a Trust has a duty or power to advise and befriend a young person, it may also provide assistance (Article 35(6)). This assistance may be in kind, or in exceptional circumstances, in cash (Article 36(1)). Assistance may be given unconditionally or may be repayable in whole or in part (Articles 18(7) to (9) and 36(4)). Before giving assistance or imposing conditions, the Trust must have regard to the means of the young person and each of his or her parents (Article 18(8)). A person is not required to repay while he or she is in receipt of certain social security benefits (Article 18(9)).

21.     An HSS Trust may also give assistance to any young person under 21 who was looked after by a Trust after reaching the age of 16, by contributing to the expenses incurred by the young person in living near the place where he or she is, or will be, employed, or seeking employment or receiving education or training. A Trust may also make a grant to enable the young person meet expenses connected with his or her education or training (Article 36(2)). The grant or contribution may continue beyond the young person's 21^st birthday until he or she completes the course of education or training (Article 36(3)(a)). If the young person goes to live (or proposes to live) in the area of another Trust, the first Trust must inform the second. This is with a view to the latter taking over the after care duties for the young person (Article 37(3)).

OVERVIEW

22.     The Act has 9 sections. Sections 1 to 5 amend Part IV of the Children Order by inserting new Articles 34A to 34F and substituting Articles 35 to 37 of the Order with new Articles 35 to 35D. Section 6 of the Act provides for changes to social security legislation. Sections 7 to 9 deal with supplementary matters including consequential amendments to the Children Order and arrangements for the commencement of the Act.

COMMENTARY ON SECTIONS

Section 1 - Further duties of authorities towards children whom they are looking after

Section 1 inserts new Article 34A into the Children Order to impose further duties on authorities towards children whom they are looking after. In particular, it places a duty on an authority to prepare young people it is looking after for the time when they cease to be so looked after and leave care.

Article 34A - Preparation for ceasing to be looked after

Paragraph (1) requires an authority looking after a child to advise, assist and befriend that child with a view to promoting his or her welfare when he or she ceases to be looked after. This restates the duty previously found in Article 35(1) of the Children Order before amendment by the Act.

Paragraph (2) places additional duties on an authority in relation to any child it is looking after who is also an eligible child. The additional duties are set out in the remainder of this Article.

Paragraph (3) defines an "eligible child" as one who has been looked after for a prescribed period after a prescribed age, and is aged 16 or 17. The prescribed period need not be continuous but could be aggregated from more than one episode of care. In order to avoid including young people who may have been looked after as infants and happen to return briefly to care after they are 16, regulations will specify the age above which episodes of care count towards the qualifying period.

Paragraph (4) gives the Department the power to make regulations to include or exclude particular groups from the definition of eligible child. For example, there are groups of young people for whom this package of care would not be appropriate. Some young people normally live at home with their families and are only looked after for short periods of respite care in order to give their carers a rest. These periods of respite care could amount to the prescribed period and thereby meet the eligibility criteria but the Department is of the view that these young people are the responsibility of their families and should not become subject to the new leaving care arrangements. Similarly, care leavers who successfully return to their families should become their families' responsibility and should not be brought within the new arrangements. The provisions of Articles 35, 35A and 35B (see section 4) will, however, continue to apply to such young people.

Paragraph (5) requires an authority to carry out an assessment of the needs of each eligible child with a view to determining what advice, assistance and support it would be appropriate to provide while the young person is in care and after he or she has left care. It also requires the authority to prepare a pathway plan for each eligible child. Pathway plans are defined in the new Article 34F (see section 3).

Paragraph (6) requires pathway plans to be reviewed regularly. It is envisaged that this will mean at least every six months or more often if the young person or the personal adviser asks for one. These reviews will provide the opportunity to update and revise the pathway plan in order that it may develop in line with the young person's changing ambitions and circumstances. The review will make sure that the levels of support, both financial and other, are adequate and are being delivered according to the pathway plan.

Paragraph (7) provides that pathway plans may be reviewed at the same time as other statutory reviews under the provisions of the Children Order. This will allow for a streamlining of any reviews which fall due for a given child, so that they can all be carried out together.

Paragraph (8) enables the Department to make regulations about needs assessments for eligible children.

Paragraph (9) specifies the matters which may be included in regulations made under paragraph (8). The regulations may make provision about who is to be consulted about an assessment, the way in which an assessment is to be carried out, who will perform the assessment and when, how the outcome of the assessment is to be recorded and the type of considerations an authority is to have regard to in carrying out an assessment.

Paragraph (10) requires an authority to arrange for each eligible child to have a personal adviser.

Section 2 - Additional functions of authorities in respect of certain children

Section 2 amends Article 25 of the Children Order and inserts new Articles 34B to 34D in the Order. These Articles impose new duties on authorities towards children formerly looked after by them.

Subsection (1) amends Article 25 of the Children Order to allow an authority to provide accommodation for a child who has left care, without the fact of their doing so classifying that child as still being looked after.

Subsection (2) amends the cross-heading before Article 35 of the Children Order as the new Articles being inserted in the Order affect young people over age 18 as well as children under age 18.

Subsection (3) inserts new Articles 34B, 34C and 34D into the Children Order. These Articles impose new duties on authorities in respect of relevant children and former relevant children.

Article 34B - The responsible authority and relevant children

This Article and Article 34C make provision for those young people aged 16 and 17 who leave care. Article 34B defines the terms "relevant child" and "responsible authority".

Paragraph (1) provides that in relation to a relevant child, the "responsible authority" (see paragraph (4) below) will have the functions set out in Article 34C.

Paragraph (2) defines a "relevant child" as a child aged 16 or 17 who has left care and before leaving care was an "eligible child".

Paragraph (3) makes parallel provision to that made in Article 34A(4) for eligible children. It allows the Department to prescribe additional categories of relevant children and to exclude certain groups from the definition.

Paragraph (4) defines the "responsible authority" as the authority which last looked after a child. That authority will remain responsible for the young person wherever that young person is currently living. This is to ensure continuity of care and to avoid any disputes amongst authorities concerning who should have responsibility for providing after care support for a young person who moves to live in the area of another authority.

Paragraph (5) gives the Department a regulation making power to make an authority responsible for any child who has been looked after by a Scottish, English or Welsh local authority, if they come to live here. If regulations are made under paragraph (3)(a) to make such children a new category of relevant child, the power in paragraph (5) is needed to ensure that they have a "responsible authority" under Northern Ireland legislation.

Article 34C - Additional functions of the responsible authority in respect of relevant children

Article 34C sets out the duties of the responsible authority towards "relevant children". Some of the duties towards relevant children will in practice be continuations of those already delivered to them as eligible children.

Paragraph (1) places a duty on the responsible authority to take reasonable steps to keep in touch with a relevant child, whether the young person lives within its area or not.

Paragraph (2) requires the responsible authority to appoint a personal adviser for each relevant child, should it not already have done so when the child was being looked after as an eligible child.

Paragraph (3) requires the responsible authority to carry out a needs assessment and to prepare a pathway plan for each relevant child if this has not already been carried out when the child was being looked after as an eligible child.

Paragraph (4) enables the responsible authority to carry out an assessment of a young person's needs at the same time as his or her needs are being assessed under the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978, the Disabled Persons (Northern Ireland) Act 1989, the Education (Northern Ireland) Order 1996 or any other statutory provision. This allows for joint assessments of the needs of young people whenever this is practicable.

Paragraph (5) enables the Department to make regulations about needs assessments.

Paragraph (6) provides that the regulations made under paragraph (5) may cover the same matters as are specified in Article 34A(9) in relation to needs assessments for eligible children.

Paragraph (7) requires the responsible authority to keep a pathway plan under regular review.

Paragraph (8) imposes a duty on the responsible authority to safeguard and promote the welfare of a relevant child unless it is satisfied that his or her welfare does not require it. The authority must provide the child with maintenance and suitable accommodation and such other support as may be prescribed in regulations. When a young person leaves care it may not be possible for them to return to their family: they may have none, or they may be estranged. The Act aims to ensure that children leaving care can expect to receive the same sort of support from their responsible authority as a child might expect from his or her parents. This might be moral support or practical support.

Paragraph (9) makes it clear that support for relevant children may be given in cash as well as in kind.

Paragraph (10) enables the Department to make regulations about the meaning of "suitable accommodation". The regulations may also make provision about the suitability of potential landlords or other providers in the light of the vulnerability of young care leavers.

Paragraph (11) places a duty on the responsible authority to take reasonable steps to keep in touch with a relevant child. Where contact is lost, the authority must immediately take reasonable steps to re-establish contact and to continue doing so until it succeeds in making contact. This duty applies until the child reaches his or her 18^th birthday and so ceases to be a relevant child.

Paragraph (12) applies Article 18(7) to (9) of the Children Order to assistance which may be given under this Article. Paragraphs (7) to (9) of Article 18 require an authority to have regard to the means of the child concerned and each of his or her parents, and permits the authority, depending on their means, to require some or all of this assistance to be repaid.

Paragraph (13) provides that paragraphs (2) and (3) of Article 26 of the Children Order apply to decisions taken under Article 34C. This means that the authority must, so far as is reasonably practicable, ascertain and give due consideration to the wishes and feelings of the child concerned, his or her parents and anyone else whom the authority considers to be relevant. The authority must also give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.

Article 34D - Continuing functions in respect of former relevant children

Article 34D sets out the duties of the responsible authority towards "former relevant children".

Paragraph (1) defines a "former relevant child" as one who qualified for the new support arrangements under the Act either as an "eligible" or "relevant" child and who is aged 18 to 21.

Paragraph (2) places a duty on the responsible authority to take reasonable steps to keep in touch with a former relevant child wherever he or she might be living and to re-establish contact where this is lost.

Paragraph (3) requires the responsible authority to continue to provide the young person with a personal adviser and to regularly review his or her pathway plan.

Paragraph (4) imposes a duty on the responsible authority to provide assistance to a former relevant child with: (a) expenses associated with employment; (b) expenses associated with education or training; and (c) general assistance. In each case, the duty is to provide assistance to the extent that the young person's welfare (or, where relevant, his educational or training needs) requires it.

Paragraph (5) provides that the assistance provided under paragraph (4)(c) may be given in kind or, exceptionally, in cash.

Paragraph (6) provides that the duties under this Article last until the young person reaches the age of 21.

Paragraph (7) provides that if a former relevant child is being assisted with education or training pursuant to his or her pathway plan, the duty to provide assistance will continue until the end of the agreed programme of education or training, even if this runs beyond the young person's 21^st birthday. The duties to keep in touch, to provide a personal adviser and to review the pathway plan also extend to the end of the programme.

Paragraph (8) requires the responsible authority to disregard any interruption in the young person's attendance at a programme of education or training provided that he or she resumes it as soon as is reasonably practicable.

Paragraph (9) requires the responsible authority to provide, should it be needed, out of term accommodation, or the funds to secure it, for a former relevant child whom the authority is assisting with full-time further or higher education.

Paragraph (10) has the same effect as Article 34C(12).

Section 3 - Personal advisers and pathway plans

Section 3 inserts new Articles 34E and 34F into the Children Order which set out the detail of personal advisers and pathway plans. These Articles contain regulation-making powers enabling the Department to make further provision with regard to personal advisers and pathway plans.

Article 34E - Personal advisers

Paragraph (1) enables the Department to make regulations to allow other individuals aged between 16 and 21 to have a personal adviser in addition to those children and young people listed in sub-paragraphs (a) to (c) who are entitled to a personal adviser by virtue of other provisions of the Children Order (as inserted by the Act).

Paragraph (2) gives the Department the power to make regulations about the functions of personal advisers.

Article 34F - Pathway plans

Article 34F deals with the content of pathway plans and provides for regulations to be made giving more detail about what they are to cover and how they are to be reviewed.

Paragraph (1) defines a "pathway plan" for the purposes of Part IV of the Children Order. It provides that in respect of an eligible child the plan should set out the advice, assistance and support which an authority intends to provide while the young person is in care and after he or she has left care. The plan should also indicate when the young person might leave care. In relation to a relevant child who does not already have a pathway plan, it provides that the plan should set out the advice, assistance and support which the authority intends to provide.

Paragraph (2) enables the Department to make regulations about what may be included in pathway plans and how they are to be reviewed.