6.7.5 Responsibilities of the Local Authority to Former Looked After Children and Young People in Custody

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6.7.5 Responsibilities of the Local Authority to Former Looked After Children and Young People in Custody

This chapter is based on Statutory Guidance for Local Authorities on Children who lose their Looked-After Status when Remanded or Sentenced to Custody.

AMENDMENT

This chapter was updated in October 2021 to reflect the Joint Housing Protocols for Care Leavers: good practice advice, Section 2.6 Care leavers leaving custody (DfE and MHCLG) (see Section 3.9, Planning for Release).

Derby City Council uses a Strengths Based Approach for all work with children and families.

Introduction
'Relevant' Children in Custody
Children in Custody who are not 'Relevant'

1. Introduction

Some young people may cease to be looked after when they are convicted and receive a custodial sentence (see Changes to Care Status as a Result of Criminal Justice Decisions, Children Act 1989 Guidance and Regulations - Volume 2: Care Planning, Placement and Case Review).

This may be because, once sentenced to custody, they are no longer voluntarily Accommodated under section 20 of the Children Act 1989, or because they became looked after solely by virtue of being remanded to Local Authority Accommodation or Youth Detention Accommodation.

Local authorities still have responsibilities towards such children and young people, however these responsibilities will differ depending on whether or not the child meets 'Relevant Child' status and is entitled to support as a care leaver.

A 'Relevant Child' is defined in section 23A(2) of the 1989 Act as a child who:

Is not looked after; and
Is aged 16 or 17; and
Was, before they last ceased to be looked after, an eligible child.

Regulation 3 of the Care Leavers Regulations prescribes a further category of Relevant Child who:

Is not looked after;
Is aged 16 or 17; and
At the time they attained the age of 16, was detained (i.e. detained in a remand centre, a Young Offender Institution or a Secure Training Centre, or a Secure Children's Home or any other centre pursuant to a Court order), or in a hospital, and immediately before they were detained or in hospital they had been looked after by a Local Authority for a period or periods amounting in all to at least 13 weeks which began after they reached the age of 14.

This means that the Local Authority which looked after the child before custody, retains responsibility for providing support during their time in custody and on release.

2. 'Relevant' Children in Custody

If the child is a 'Relevant Child' and entitled to support and services as a Care Leaver, this status remains unchanged while they are serving a custodial sentence, and the Local Authority that looked after the child retains responsibility for providing support during their time in custody and on release.

Some children, including children who become looked after as a result of being remanded, will become 'Relevant Children' if they are in custody on their 16th birthday. This would include children who have spent at least 13 weeks as a child in care since the age of 14 and were either subject to a Care Order or who were accommodated or remanded to Local Authority accommodation immediately prior to entering custody on sentence.

The authority must; keep in touch with Relevant Children in custody throughout their sentence; allocate a Social Care Worker; and work with the child to prepare a Pathway Plan. This should cover arrangements for the support that they will be provided with on release, including arranging for their accommodation and maintenance if they will be under 18. The child's Social Worker should ensure that the relevant YOS Case Manager is made aware of their status as a Relevant Child. The Case Manager, the Social Worker and the designated Social Worker in the relevant secure establishment should work in partnership when planning for a child's release from custody and resettlement into the community, involving the Leaving Care Team if the child has passed the age of 17 years of age.

For further information, see Leaving Care and Transition Procedure.

3. Children in Custody who are not 'Relevant'

Local Authorities also have a duty to children who, upon being sentenced, cease to be looked after, but who are not Relevant Children and so are not entitled to support as Care Leavers. This may be because they were, prior to detention, accommodated under section 20 of the Children Act 1989 and will leave custody before their 16th birthday, or they are aged 16 or 17 but have been looked after for less than 13 weeks since the age of 14 (perhaps because they only became looked after when remanded into Local Authority accommodation or Youth Detention Accommodation immediately prior to sentence).

In this situation, the responsible Local Authority must appoint a representative to visit the child to assess their needs.

The representative must make recommendations about any appropriate advice, support and assistance needed by the child, including where necessary, arranging for their accommodation on release, which might involve planning for them to become looked after again. This is likely (in most cases) to be a Social Worker that has been allocated due to either the remand into Local Authority accommodation or Youth Detention Accommodation.

There may be other on-going duties towards this group of children. Where they are aged 16 or 17, they may be entitled to advice and assistance as 'Qualifying' children under section 24(1B) of the Children Act 1989. That is; children who have been looked after but were not looked after immediately before entering custody. Irrespectively, all children who may be assessed as Children in Need are entitled to an assessment under Section 17 of the 1989 Act.

3.1 Notification and Visiting

If the Social Worker has not attended Court, the responsible YOS should notify the Local Authority about the details of the child's sentence, including details of where they have been detained.

The Local Authority must appoint a representative to visit the child. This should be a Qualified Social Worker employed by the Local Authority or Personal Adviser who was allocated to the child's case and was responsible for maintaining the Care Plan / Pathway Plan or Detention Placement Plan before they were sentenced. There may be circumstances where it would be appropriate for a Residential Care Worker or a foster carer familiar to the child to carry out this role.

The role must not be fulfilled by a YOS worker.

The Local Authority should also inform the child's Independent Reviewing Officer (IRO) of their placement in custody and provide the IRO with the name of the appointed representative.

Within 5 working days of the child being sentenced, the Local Authority should provide information to the custodial establishment by contacting the child's custodial Case Worker (sometimes called a Case Manager, Key Worker or Resettlement Practitioner) and the designated Social Worker based in the Young Offender Institution (YOI), Secure Training Centre (STC) or Secure Children's Home (SCH), to inform them of:

The child's previous care status;
Persons with parental responsibility for the child;
The name and contact details of the Social Worker and their Team Manager;
Any immediate information necessary to ensure the child's safety;
Relevant information about the child's family/carers and any arrangements or them to see or speak to their family or friends;
Relevant information about the child's needs that will enhance the establishment's ability to care for the child, especially in responding to the child's health and education needs;
The date when the Social Worker will be visiting the child.

The Local Authority should seek information from the secure establishment about how the child has settled in and make arrangements for the child to be visited.

3.2 Timing of Visits

The Social Worker must complete an initial visit to the child within 10 working days of their entering custody, unless this is not reasonably practicable. This may be coordinated with arrangements for the Initial Planning Meeting (see timetable in Appendix A of the Statutory Guidance Local Authority Responsibilities towards Former Looked After Children in Custody).

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; or the Social Worker is unable to do so or considers it inappropriate to do so having regard to the child's age and understanding.

The Social Worker must also visit when reasonably requested to do so by the child; a member of staff of the establishment where the child is detained; the child's parent(s) or person with parental responsibility; or the relevant YOS Case Manager.

3.3 Assessment and Planning Process

The purpose of the initial visit is to complete an assessment of the child's needs whilst in custody and on release. This will take into account previous assessments that have informed the child's Care Plan or Detention Placement Plan and any new information from the assessments undertaken by the YOS or custodial establishment. The assessment should be based on the format for Single Assessments as this represents a significant change in circumstances for that child.

The assessment should consider the following issues:

Is there a risk of self harm?
What is the child's emotional state?
Does the child need money, clothes, books or other practical support?
Are education staff aware of, and able to meet, the child's educational needs, including any Special Educational Needs or strengths/abilities?
Are the health unit and custodial staff aware of, and able to meet, the child's health needs?
Are staff aware of, and able to meet, the child's religious and cultural needs?
Is the child worried about anything? If so, what? Does the child understand how they can access advocacy and other services to express any concerns and make their views known?
Are the child's parents able to fulfil their parental responsibility to the child whilst in custody?
Has there been a change in the parents' capacity to enable them to resume care of the child on their release in a way that will meet the child's needs? If not, might additional support be provided to enable the parents to be able to resume care of the child?
If it is not appropriate for the child to return home or to become looked after again, what alternative arrangements need to be made?

The child's wishes and feelings on these matters must be sought. The Assessment must also take into account the views of the child's parent(s) (or any other person with parental responsibility) and appropriate members of staff in the custodial establishment (including pastoral care, education and health staff). The views of the child's previous carer(s) and the IRO should also be sought. If the appointed representative is not the Social Worker who was previously allocated to the child's case, the previous Social Worker's views should also be sought.

The Assessment should be completed within 20 working days of the child entering custody and should conclude with an analysis that sets out clearly the Social Worker's recommendations about the advice, assistance and support that the child will need whilst in custody and on release.

The following information must be included in the Assessment:

Is the child's welfare being adequately safeguarded and promoted (taking account of the child's wishes and feelings)?
Are further visits required?
Who will keep in touch with the child whilst they are detained? Does there need to be help with these arrangements?
Will it be in the child's best interests to become looked after again by the Local Authority on release?
Might the child and their family require other services provided by the Local Authority formerly responsible for Looking After the child, or from another Local Authority?

The recommendations should include proposals as to the future involvement of the Local Authority, for example whether visits should be maintained whilst the child remains in custody and on release. If parents are unavailable or otherwise unable to exercise their parental responsibility by providing the child with support whilst in custody, the child will require on-going visits, support and practical help from the Local Authority whilst in custody as a Child in Need.

Options for the child on release will be as follows:

The child's parents or wider family will be able to resume care of the child on release from custody, with support from the Local Authority under section 17 of the Children Act 1989 and with continuing supervision from the YOS;
The child's parents or wider family will be able to resume care of the child on release from custody, solely with supervision from the YOS for as long as any order continues;
The child will need to become looked after again on release;
The child will not be able to return home to parents but it will be inappropriate for them to become looked after again because of their age (if they attain adulthood whilst in custody) or particular circumstances, in which case the YOS and Local Authority will need to meet with housing and other relevant services prior to the planned release date to determine the arrangements that will be necessary in order to provide them with suitable accommodation and support in the community.

A copy of the assessment must be given to:

The child;
The child's parent(s) or those with parental responsibility, unless this would not be in the child's interests;
The Governor or Director or Registered Manager of the establishment where the child is detained;
The relevant YOS Case Manager;
The Local Authority where the child is being detained (if different from the authority that formerly looked after the child); and
Any other person the responsible authority considers should receive a copy of the report.

3.4 Decision-making

The Social Worker's Assessment must be sent to the manager who has been appointed as Designated Manager to receive reports and decide how to act on their recommendations. This should be an officer with responsibility for allocating any resources necessary to provide support to the child in future.

The Designated Manager must confirm that the Assessment and recommended plan have been received and the steps that will be taken to implement its recommendations.

Where the Designated Manager does not accept the recommendations about on-going support to be provided to the child, it will be necessary to consult the YOS Case Manager and YOS Service Manager before the designated manager confirms this decision. It is also desirable to consult with the child's former IRO and their former Social Worker (if different from the appointed representative).

Each Local Authority should have a protocol setting out the process for resolving disputes in cases where the Local Authority Designated Manager rejects the Social Worker's Assessment or recommendations. This process must enable a decision to be reached about whether or not the formerly responsible authority will contribute to the child's future support well before they are due to be resettled into the community, and no later than 28 days prior to their potential release date.

Details of the plan confirming how the authority will contribute to the child's support in future should be sent to:

The child, their parents and others with parental responsibility;
The child's Case Manager in the YOS;
The Governor or Manager of the custodial establishment;
Any other agencies that would be responsible for implementing the recommendations relating to the child, such as a provider of supported housing;
Other relevant parties, with the child's consent.

Where the Local Authority has decided that it will not be providing any continuing support, the Designated Manager must inform the child, their parents and others with parental responsibility; the child's Case Manager in the YOS; and the Governor or Manager of the custodial establishment of the decision.

Where it has been agreed that the child will need on-going support from the Local Authority, either whilst they are in custody or following release, or that the child will need to become looked after again, arrangements should be made to maintain contact with the child whilst they remain in custody.

3.5 Visits

Whilst the child remains in custody, where appropriate, they should be visited in the same way as any other looked after Child. That is; visits taking place at intervals of not more than 6 weeks for the first year and not more than 3 months after that. Please note that 3monthly visits are only considered appropriate where the placement is long term, and will remain constant until the young person is 18 years.

Additional visits should also take place if reasonably requested by the child, the establishment or the YOS Case Manager or if there are particular circumstances that require a visit. For example, it will be good practice for the appointed representative to attend the child's Sentence Planning Meetings. Where the child is serving their sentence in a SCH or STC, a visit should also take place if there has been a notification by the Ofsted Chief Inspector of the underperformance of a placement provider (under section 30A of the Care Standards Act 2000 or under Section 47 of the Criminal Justice and Public Order Act 1994) or, where the child is placed in a YOI, concerns about the welfare or safety of children are raised by HM's Inspectorate of Prisons.

3.6 Young People Serving Long Sentences

Where young people are serving long sentences, this may involve the formerly responsible authority negotiating with the YOS and National Probation Service (NPS) about the child's release plan in adulthood. These services will need to be advised about whether in future the child will be eligible for Leaving Care services. The Youth Custody Service (YCS) Placement Team has additional responsibility for planning for children on long sentences and the Local Authority should inform them of their involvement and intentions.

If children reach the age of 18 whilst in custody, they may be moved to an adult prison. This is dependent on a number of factors, including the young person's age, maturity and vulnerability. Responsibility for their supervision will then transfer from the YOS to the National Probation Service (NPS). Currently, children and young adult's serving Detention and Training Orders (which cannot exceed 2 years in duration) remain under the supervision of the YOS until the Order has expired and are not transitioned into the NPS.

3.7 Action to be taken if there are Concerns about the Child's Safety or Welfare

Where there are concerns that the child is not being safeguarded or their welfare promoted (for example, relating to; the quality of care the child is receiving; the suitability of the type of placement; or concerns around bullying, self-harm, violence or intimidation), it may be possible in the first instance to resolve the concerns by reaching agreement with the establishment directly. Social Workers should consult with the YOS to identify any formal escalation processes specifically established between the YOS and the relevant secure facility.

Where issues cannot be resolved at establishment level, and if the responsible authority is of the view that the child needs to be moved to another establishment, see Section 3.8, How to Request a Transfer or Placement Review.

3.8 How to Request a Transfer or Placement Review

The Youth Custody Service (YCS) have the statutory power to place young people who are remanded to youth detention accommodation or sentenced to custody, and this includes carrying out placement reviews to decide whether a transfer is required for a child or young person due to the unsuitability of the current placement.

The home YOS can ask for a transfer if they are responsible for a child or young person and:

The child's circumstances change;
There is a risk or issue with their current placement.

To request a transfer, the YOS should read the Placement Review Guidance and then:

Convene a multi-disciplinary meeting to establish how risk can be managed or reduced;
Complete the Placement Review Form (Refer to the Guidance and Tips document for support on completing this form);
E-mail it to the Placement Review team at YCSTransfers@justice.gov.uk.

Other people can ask for a transfer but only the YOS and/or staff at the establishment where the child is placed should contact the YCS Placement Team.

The YCS Placement Team makes the final decision in the best interests of the child or young person after carefully considering all of the information available and opinions stated.

3.9 Planning for Release

The Local Authority must be involved in plans for release where the plan is for the child to be looked after again or for them to be provided with support in the community from Children's Social Care, and if the child is being considered for early release or home curfew detention, particularly with regard to the child's ability to cope with any additional supervision requirements, such as electronic monitoring or an Intensive Supervision and Surveillance condition (ISS); or any Multi-Agency Public Protection Arrangements (MAPPA) arrangements that have been set on release.

The local authority has a joint housing protocol which maps out how the local housing authority will work with children's social care; the youth secure estate; prisons; the National Probation Service; the Youth Offending Service and other interested agencies that maybe involved with a young person, to support the release of children from custody and secure accommodation and ensure that adequate pre-release planning is in place and that suitable accommodation forms a central part of this. See:

It is important there are Protocols that set out the process to be followed in order to enable an appeal where a care leaver is not satisfied that the accommodation being provided is suitable and also establish ways of resolving disputes, both within and between authorities.

Wherever possible, arrangements should be made for children to visit prospective placements and employment or educational facilities and to meet relevant practitioners before their release. There are facilities for a child to be granted Release on Temporary Licence (ROTL) or Mobility to allow outside visits to take place, subject to relevant agreements.

As soon as possible and, ideally, no later than 14 days before release, the child must know:

Who is collecting them;
Where they will be living;
The reporting arrangements;
Sources of support - including out of hours services;
The arrangements for education or employment;
Arrangements for meeting continuing health needs;
How and when they will receive financial support;
When they will be seeing their Social Worker;
The roles and responsibilities of the respective practitioners.

It must be noted that ROTL and Mobility provision is dependent on the type and length of custodial sentence.

It is essential that there is clarity about who is responsible for each element of the child's plan and the arrangements for communication and enforcement. The Local Authority should record this plan and make copies available to the child, the supervising YOS officer, IRO, the secure establishment, other agencies that will be involved with supporting the child after release and the child's family, if appropriate.

In all cases where a child is known to the YOS, which should include all cases where a child is incarcerated, the YOS hold a Custody Scrutiny Panel (CPS) to discuss all custodial cases and, amongst other activities, plan for their release into the community and managing risk following release. This is a further mechanism to ensure the Local Authority delivers its responsibilities to children and young people in custody and following their release. It is the responsibility of the YOS Case Manager to ensure any allocated Children's Social Care (CSC) Social Worker(s) are advised of the outcomes of a CSP, including any sharing of CPS notes/minutes, though CSC SWs can also be directly invited to the CPS if issues relating to securing accommodation in the community are evident or anticipated.

3.10 Support in the Community

Sentenced children and young people returning to the community (following release from a custodial sentence) will continue to be supervised by the YOS in the community. This is technically called a 'Notice of Supervision/Licence' but is often referred to as a 'licence period'. Where the Local Authority has agreed to support the child or young person on release, the Social Worker will work alongside the YOS Case Manager during the period of supervision. The function of the Social Worker is to plan for the child's care or for their support in the community and is different and more extensive than that of the YOS Case Manager.

It is good practice to have some joint appointments with the child, YOS Case Manager and Social Worker, so that information is shared and all can work in partnership. The YOS should consult the Local Authority over enforcement issues, particularly if there is a possibility of the child being returned to custody for breach of the conditions of their Notice of Supervision/Licence. Where the child is having difficulty in complying with their conditions, the Local Authority should work with the YOS to put additional support in place. The Social Worker and supervising YOS Case Manager should keep each other informed of significant events, including any changes in service delivery or plans.

Where the child becomes looked after, their Care Plan must be reinstated and the Placement Plan agreed with their placement provider should include information about the support that the placement will provide to minimise the likelihood of the child committing further offences in future, which the YOS Case Manager should also be made aware of and be able to assist with.

Derby City Children's Social Care Procedures