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

1. Introduction

Some children may cease to be looked after when they are convicted and receive a custodial sentence (See Annex 8: Changes to Care Status as a Result of Criminal Justice Decisions of the 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 these children and young people, however these responsibilities will differ depending on whether or not the young person is relevant and entitled to support as a care leaver.

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 cared for as a result of being remanded, will become 'relevant children' if they are in custody on their 16th birthday. This would include young people who have spent at least 13 weeks cared for by the local authority 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 personal adviser 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 YJS case manager is made aware of their status as Relevant.

3. Children in Custody who are not 'Relevant'

Local authorities also have a duty to young people who, upon being sentenced, cease to be Looked After, but who are not Relevant and so 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 cared for by the local authority for less than 13 weeks since the age of 14 (perhaps because they only became cared for by the local authority when remanded into local authority 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 be cared for again by the local authority.

There may be other ongoing duties towards this group of young people. Where they are aged 16 or 17, they may be entitled to advice and assistance as qualifying young people under section 24(1B) of the Children Act 1989. All young people who may be 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 YJS should notify the local authority about the details of the child’s sentence, and about where they have been detained. If a child is cared for by the local authority prior to attending Court, the allocated Social Worker or suitable representative should be in attendance at the Court hearing.

The local authority must appoint a representative to visit the child. This should be a qualified social worker employed by the authority, usually the social worker 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 term 'social worker' is used here). The role must not be fulfilled by a YJS  worker.

The local authority should also inform the child’s independent reviewing officer (IRO) of their placement in custody and the name of the appointed representative. The YJS have a dedicated YRO link worker.

Within five working days of the child being sentenced, the local authority should provide information to the custodial establishment by contacting the case supervisor based in the YOI, or equivalent post in the Secure Training Centre or Secure Children's Home, to inform them of:

• The childs's previous care status;
• Persons with parental responsibility for the child;
• The name and contact details of the social worker and team manager;
• Any immediate information necessary to ensure the child's safety;
• Relevant information about the child's family/carers and contact arrangements;
• 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.

They should seek information from the secure establishment about how the child has settled in and agree arrangements for them to visit the child.

3.2 Timing of visits

The social worker must visit 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 YJS 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 YJS or custodial establishment. The assessment should be based on the format for Assessments provided in Working Together to Safeguard Children. 

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 needs or abilities?
• Are the health unit and wing 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 his release in a way that will meet the child’sneeds? If not, might additional support be provided to enable the parents be able to resume care of the child?
• If it is not appropriate for the child to return home or to become cared for by the local authority 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 parents (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 carers 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, that 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 contact arrangements?
• Will it be in the child's best interests to become cared for 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 ongoing 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 YJS;
• 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 YJS for as long as any order continues;
• The child will need to become cared for again by the local authority on release;
• The child will not be able to return home to parents but it will be inappropriate for them to become cared for again by the local authority because of their age or particular circumstances, in which case the YJS and local authority will need to meet with housing and other relevant services well before 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 report must be given to:

• The child;
• His or her parents 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 YJS case manager;
• The local authority where the child is being detained (if different from the authority that formerly cared for 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 ongoing support to be provided to the child, it will be necessary to consult the YJS case manager and YJS manager; and also desirable to consult with the child's former IRO and their former social worker (if not the appointed representative), before the designated manager confirms this decision.

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 YJS;
• 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's case manager in the YJS; and the Governor or manager of the custodial establishment.

Where it has been agreed that the child will need ongoing support from the local authority, either whilst they are in custody or following release, or that the child will need to become cared for again by the local authority, 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 cared for Child. That is, visits taking place at intervals of not more than six weeks for the first year and not more than three months after that. Additional visits should also take place if reasonably requested by the child, the establishment or the YJS 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 Her Majesty's Inspectorate of Prisons.

3.6 Children serving long sentences

Where children are serving long sentences, this may involve the formerly responsible authority negotiating with the YJS and National Probation Service 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. Responsibility for their supervision will then transfer from the YJS to the National Probation Service.

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), in the first instance it may be possible to resolve the concerns by agreement with the establishment itself.

The Local Authority should inform the establishment and Her Majesty's Prison and Probation Service Young People's Team that they have decided to take this course of action.

3.8 How to Request a Transfer or Placement Review

The Youth Custody Service (YCS) carries out placement reviews to decide whether a transfer is required for a child or young person.

YJSs can ask for one if they are responsible for a child or young person and:

• Their circumstances change;
• There is a risk or issue with their current placement.

To request a transfer, the YJS 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 YJS 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 childto be cared for again by the local authority 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 Programme (ISSP); or any MAPPA arrangements that have been set on release.

Wherever possible, arrangements should be made for young people 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. This needs to be discussed and work towards from day one of the child’s sentences. ROTL’s should be utilised to support the child’s resettlement into the community.

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 (under the YCS National Accommodation Standard, accommodation should be identified six weeks prior to the child’s earliest release date);
• The reporting arrangements;
• Sources of support - including out of hours;
• 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 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 YJS officer, IRO, the establishment, other agencies that will be involved with supporting the child after release and the child’s family, if appropriate.

3.10 Support in the community

Sentenced children returning to the community will continue to be supervised by the YJS. Where the local authority has agreed to support the child on release, the social worker will work alongside the YJS case manager and YJS Constructive Resettlement Worker 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 YJS case manager.

It is good practice to have some joint appointments with the child, supervising YJS officer, YJS constructive resettlement worker  and social worker, so that information is shared. The YJ 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 YJS to put additional support in place. The social worker and supervising YJS officer should keep each other informed of significant events, including any changes in service delivery or plans.

Where the child becomes Care for by the local authority, 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.