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6.1.2 Threshold Criteria for Looked After Children

SCOPE OF THIS CHAPTER

This procedure applies to all decisions to Look After Children.

It should be read in conjunction with the Care and Supervision Proceedings and the Public Law Outline Procedure.

RELATED CHAPTERS

Protocol: Criteria for Transfer from Initial Response Service

Protocol: Criteria for Transfer from Long Term Social Work Service to 16 Plus

Remands to Local Authority Accommodation and Youth Detention Accommodation Procedure

AMENDMENT

In August 2016, a link was added to the ADCS/Cafcass Practice Guidance for the Use of Section 20.


Contents

  1. Threshold Criteria
  2. Decision to Look After
  3. Children who Become Looked After following a Remand to Local Authority Accommodation or Remand to Youth Detention Accommodation
  4. Action Required after a Decision to Look After a Child is made
  5. Section 20 Accommodation

    Appendix A: Looked After Placements

    Appendix B: Making the Placement Flow Chart - to follow


1. Threshold Criteria

A child or young person will be considered to be in need of accommodation where the assessment and child planning process has identified that the child's needs should be met by such provision because:

  • There is a risk of Significant Harm to the child or young person if they are not Accommodated;
  • There is not a person who has Parental Responsibility for the child;
  • The child is lost or abandoned;
  • The person who has been caring for the child is unable to provide the child with suitable accommodation.


2. Decision to Look After

A decision as to whether a child becomes Looked After will be made on completion of a Child and Family Assessment in circumstances in which the assessment has indicated that the child's welfare can only be protected by the child becoming Looked After.

  • This is confirmed by a SoS case analysis;
  • Community Fostering, family support intervention have not improved the circumstances for the child.

The plan to Accommodate / remove a child should be discussed and agreed with the responsible service managers and the Care / Core team, unless there is an immediate risk of Significant Harm. The social worker will complete a Placement Request form which must be authorised by the Designated Manager.

It is recognised that unless there are exceptional circumstances all placements of children should be planned. This is to ensure that any separation of a child from his / her family enables preparation and good planning which will ensure a successful start to any placement. The wishes of the child must be taken into account and recorded.

Children who are in the care of Newcastle Local Authority are known as Looked after Children (LAC).

Where it is considered that Care Proceedings should be initiated to secure the child's placement, see Legal Planning Meetings Procedure

A plan for reunification should be regularly reviewed by the care team as family circumstances may change.

Also see Children being Cared for by Family and Friends: Practice Guidance.


3. Children who Become Looked After following a Remand to Local Authority Accommodation or Remand to Youth Detention Accommodation

Since 3 December 2012, a child who is dealt with by a court by way of a Remand to Local Authority Accommodation or a Remand to Youth Detention Accommodation is a Looked After Child.

A court remanding a child to local authority accommodation may, after consultation with the designated authority, impose on the authority requirements for securing compliance with any conditions imposed on the child by the court, or requirements stipulating that the child must not be placed with a named person. In the absence of any such requirements, it is for the designated local authority to decide where the child resides.

The decision to remand a child will be made by a Court. This decision may be made at short, or no, notice for the local authority concerned. But YOTs and local authorities should be engaged from the earliest opportunity, and can offer alternatives to remand.

Local authorities may have very short-term relationships with remanded Looked After Children, lasting only for the period they remain remanded and therefore looked after However, taking proactive steps to engage with a vulnerable child may improve overall outcomes.

In relation to children remanded to local authority or Youth Detention Accommodation, the Care Planning Regulations were amended by the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2013. See also The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review (June 2015).

For care planning for young people on remand, see Remands to Local Authority Accommodation and Youth Detention Accommodation Procedure.


4. Action Required after a Decision to Look After a Child is made

Based on the assessed needs of the child a referral is made to the placement service for a Foster Placement or a Residential Placement.

As soon as the child becomes Looked After, the social worker will amend the Child Plan on Care First to reflect the child's current status and the following:

  • The arrangement for the child's day to day care;
  • Action for the parents and care team members with timescales (including timescales for reunification).

The social worker will also complete a Placement Information Record which will be signed by the parents / carer and a copy given to the Foster Carer.

The social worker will also obtain the parents / carer's consent to initiate LA Medical.

The child's social worker will convene a Placement Planning Meeting within 72 hours of the placement and further amend the child plan following the meeting.

The planning meeting should include the parent / carer, child (if age appropriate), foster carer / residential worker, supervising social worker and the child's social worker. The notes of the planning meeting will be recorded on the child's electronic file.

The circumstances in which the child entered the Looked After system will be reviewed at the first available Placement Panel.


5. Section 20 Accommodation

See also: ADCS/Cafcass Practice Guidance for the Use of Section 20.

In Accommodating a child under section 20, it must always be borne in mind that the local authority does not have Parental Responsibility; only the parents/ those carers with Parental Responsibility can make decisions for the child. The parent/carer can remove the child from Accommodation at any time and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court. (See also Ceasing to Look After Procedure).

The parents/carers should be advised of any changes in the child’s circumstances whilst the child is in local authority care.

It is therefore important to ensure that the parents/carers have full information about their continuing responsibilities as well as those of the local authority and that this is enshrined in the Care Plan and a written agreement.

Obtaining Parental Consent

Obtaining Parental Consent is a crucial part of Accommodating a child under this part of the 1989 Act. A number of court decisions have been particularly critical of local authorities’ actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.

Section 20 agreements are not valid unless the parent giving consent has capacity to do so, the consent is properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or acquiescence - it is a positive action.

Detailed guidance on the obtaining of parental consent was given by the High Court in the case of Re CA (A Baby) (2012):

  • The social worker must first be satisfied that the parent giving consent does not lack the mental Capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if (s)he is unable:
    • To understand the information relevant to the decision;
    • To retain that information;
    • To use or weigh that information as part of the process of making the decision; or
    • To communicate his/her decision.
  • If there is doubt about Capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
  • If satisfied that the parent has Capacity, the social worker must be satisfied that the consent is fully informed:
    • Does the parent fully understand the consequences of giving such a consent?
    • Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
    • Is the parent in possession of all the facts and issues material to the giving of consent?
  • If not satisfied that the consent if fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
  • If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:
    • What is the current physical and psychological state of the parent?
    • If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
    • Is it necessary for the safety of the child for her to be removed at this time?
    • Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more ‘able’ than in fact they are. Equally, within the context of ‘assessing capacity’, social workers should approach with great care relying on section 20 agreements from mothers after giving birth, (especially where there is no immediate danger to the child and where probably no order would be made).

Where there is any concern about a parent / carer’s capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice. In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, ‘every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others, to be satisfied that the person giving consent does not lack the capacity to do so’.

Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.

Recording Parental Consent

In Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 good practice the President of the Family Division, Sir James Munby sets out his view in respect of good practice in the recording of parental consent to a Section 20 agreement:

  • Wherever possible the agreement of a parent to the accommodation of their child under section.20 should be properly recorded in writing and evidenced by the parent's signature;
  • The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand;
  • The written document should spell out, following the language of section 20(8), that the parent can 'remove the child' from the LA accommodation 'at any time';
  • The written document should not seek to impose any fetters on the exercise of the parent's right under s.20(8). Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms'.

The use of Section 20 prior to Court Proceedings

Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the Courts have strongly advised that this should not lead to an unnecessary delay in the issuing of proceedings and cases must not be allowed to drift, (including those cases when children are placed with relatives under a Section 20 agreement). Proceedings still need to be issued in a timely fashion.

Even where a parent/carer’s legal advisor has established an agreement regarding the use of Section 20 prior to either issuing Proceedings or progressing a timely plan and timetable of work for further assessment, these should be carefully adhered to by all parties. Any plan should be based on the child’s welfare needs and avoid delay.

All such agreements should be undertaken in conjunction with the local authority’s Legal Services and include a clear (written) agreement and Care Plan with the outcome considered at a Looked After Children’s Review to which the parents have been invited.

Where it is highly likely that proceedings will be required to determine a factual issue, or where complex medical evidence may become involved it is better for proceedings to be issued promptly allowing the court to manage the timetable of the case and the parents to be able to access effective legal advice.


Appendices

Click here to view Appendix A: Looked After Placements

Appendix B: Making the Placement Flow Chart - to follow

End