Following a warning from the children’s commissioner that England’s use of unregulated placements for vulnerable children has become a ‘national scandal’ – with cases rising by more than 370% in five years – Kirsty Thyer, director at The Family Law Company, explores the legal duties local authorities owe to children in care and says the current shortage of regulated homes is leading to unlawful decision-making.
The recent report Children First, commissioned by Commonweal Housing and written by Public First, highlights the growing issue of unregulated placements for vulnerable children in England. The report reveals the number of children in unregulated settings has increased by more than 370% in five years.
From my own perspective, when I started working in public law in 2006 for Cornwall Council, the requirement to find placements for children who required secure accommodation was perhaps one or two children a year. Whilst those requiring residential care was more than that, the majority of children were placed in foster care if they couldn’t live with family members.
Starkly, the number of children requiring this type of provision now is one or two every week. The number of regulated homes available hasn’t kept pace with this dramatic increase. Local authorities have just not been able to find suitable lawful placements.
Legal duties
Amongst the many layers of regulations, the basic legal duty of the local authority is the provision of suitable accommodation which may be with family members, foster carers, or in a registered children’s home.
These must all be assessed as being safe, while children’s homes must be registered with Ofsted and inspected to ensure they are meeting the child’s needs.
In addition, the setting should be close to home. We have all heard about placements where a child is staying hundreds of miles from home.
Unlawful decision-making
The shortage of unregulated homes is driving unlawful decision-making – this is the rock and hard place for the local authority. A vulnerable, troubled child cannot be left to fend for themselves on the streets. Some of these children are as young as 13, sometimes even younger. They need a roof over their head and care teams to oversee their wellbeing and safety.
The situation finds local authorities sending searches for accommodation on a daily basis, not just for registered, but unregistered providers, too. Registered providers are able to cherry pick the children they take and, unsurprisingly, they will opt for those with needs they are more able to manage, and who are unlikely to lead to their registration with Ofsted being jeopardised.
But what happens to the children who are disruptive or likely to self-harm?
The options aren’t great. I know of one child left at a hospital for a three-week stay, there being no other options. Others are homed in Airbnb properties or other holiday accommodation, with care staff provided by agencies to provide the necessary 24/7 cover.
Sadly, the longer a child is in this type of accommodation without the help and therapeutic support they need, the more likely their welfare will be seriously impacted. Education provision is often seriously lacking, and the child may be isolated from friends and family.
The role of the family courts
The family court only gets involved when children are placed in unsuitable or illegal accommodation if there are public law proceedings or through an application for a deprivation of liberty order (Dols).
The National Dols Court has now given guidance to judges determining these applications. The judge must now consider if a currently unregulated children’s home has planning agreements to be such a residence; whether it is seeking Ofsted registration; the frequency of visits from the local authority which ideally will be weekly; that there is oversight by a senior manager; that the guardian has visited; that social workers see the young person on a one-to-one, face-to-face basis when visiting.
As well as this oversight, the independent reviewing officer (IRO) appointed for each child has a duty to make sure the child’s care plan is implemented and that they are safe.
Existing laws and enforcement powers
Although it seems somewhat unlikely, in theory the existing laws and enforcement powers designed to hold providers and authorities accountable are, on paper, sufficient.
For example, Ofsted can potentially prosecute those running an unregistered children’s home; courts: can ensure the local authority keeps a close eye on unregulated placements; the IRO can make sure the local authority is doing what it is required to do.
The guardian should be able to bring any failings to the attention of the court, and LADO can investigate if there are concerns about individual staff members.
And the child, in theory, could issue proceedings for breach of human rights against the local authority.
However, that’s a lot of ‘cans’, ‘coulds’ and ‘shoulds’.
In practice, these powers may well not be invoked. Is it really likely that Ofsted would prosecute? If they did, that could leave the child in an even worse situation.
Sometimes, all a local authority can do is have close oversight of these placements whilst it continues searches for a more suitable placement for a young person – although this means that companies continue to provide unlawful placements for children at considerable cost to public bodies.
About the author
Kirsty Thyer joined The Family Law Company in August 2012 and became a director of the firm in April 2019. Prior to joining, she worked at another well respected Plymouth firm where she furthered her experience in acting for children and parents in children matters. Kirsty specialises in the law relating to children and has been a member of the Law Society’s Children Panel since 2008. She has expertise in dealing with complex cases involving injuries to children and has experience in taking cases up to the Court of Appeal. She is viewed by her clients as approachable and gives straightforward advice.
