Decision to Look After and Care Planning
SCOPE OF THIS CHAPTER
The chapter summarises the key steps that must be taken in deciding that a child should become Looked After.
AMENDMENTIn October 2018, additional information was added into Section 1.1, Section 20 Accommodation in line with recent case-law.
1. Decision to Look After a Child
Timely assessments will incorporate consideration of providing support to the family and or extended family to bolster their abilities to continue safely caring for the child.
Research clearly indicates that the outcomes for those children who become Looked After are significantly poorer than those who remain in their family of origin. It is therefore important that all attempts to exhaust the local authority duties, under Section 17 Children Act 1989, to promote & safeguard the welfare of children within their family are made.
Any decision to commence Care Proceedings, must take account of the Public Law Outline (see Care and Supervision Proceedings and the Public Law Outline Procedure) and assessments will consider.
Assessments will consider:
- Support available from within the extended family, Connected Persons and social networks;
- Family arrangements for alternative Carers within their network;
- Planned support available from other agencies;
- Consideration of referral to a Family Support Team;
- Consideration of referral to other support agencies;
- Support available from within Social Care.
Consideration should be given to convening a Family Group Conference and or using mediation and support services.
If a children's social care assessment has not been completed or it is not up to date, a children's social care assessment must be completed (see Section 47 Enquiries Guidance). If approval is given, the Social Worker should complete a Fostering Profile for the child, see Placements in Foster Care Procedure.
In the case of siblings, wherever it is in the best interests of each individual child, they should be placed together. Where they cannot be placed together, they must be supported to understand why they cannot live together, and there should be robust plans for contact between them, so far as this is consistent with their welfare.
The Nominated Officer - must approve any change of placement affecting a child in Key Stage 4, except in an emergency / where the placement is terminated because of an immediate risk of serious harm to the child or to protect others from serious injury.
A plan for a child to become looked after must be approved by the Legal Gateway Meeting.
There are many scenarios in which Section 20 is used positively and these include situations of family support (e.g. Short Breaks Procedure) and situations where parents are unable to care for children, for whatever reason, and there are no agreed alternative family or friends to undertake this.
In Accommodating a child under Section 20, it must always be borne in mind that the local authority does not have Parental Responsibility, and only the parents / those carers with Parental Responsibility can make decisions for the child. The parent / carer with Parental Responsibility can remove the child from Accommodation at any time (Section 20(8)) and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court. A number of court cases have confirmed that a local authority failing to permit a parent to remove a child in circumstances within Section 20(8) acts unlawfully. (See Herefordshire Council v AB  EWFC 10 rtf). (See also Ceasing to Look After a Child 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.
A recent Court of Appeal hearing (L B Hackney v Williams & Anor  EWCA Civ 26) confirmed that 'Consent' under any of the Section 20 provisions was not a statutory requirement as such. It stated that the local authority has a duty to provide accommodation for children, (subject to a parent being able to legally object and / or remove) where the person who had been caring for them was 'prevented (whether or not permanently and for whatever reason) from providing them with suitable accommodation or care'.
This, therefore, supports the local authority in its duties towards children on those occasions where 'parental consent' cannot, for a variety of reasons, be obtained at the time of a child's accommodation or parents cannot effect care of the child themselves.
Nevertheless, with regard to previous court judgments on 'consent', the Court reflected that they were, 'in short, good practice guidance and a description of the process that the family court expects to be followed'.
Therefore obtaining Parental Consent as a matter of good practice remains an essential 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 (in cases where the father also has Parental Responsibility, the consent of both parents should be sought) the consent needs to be 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 they are 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 their decision.
The High Court in Re S (Child as parent: Adoption: Consent)  EWHC 2729 (Fam) set out the relevant information that a parent would need to be able to understand, retain and weigh up in order to have competency to consent to the accommodation of a child:
- That the child will be staying with someone chosen by the local authority, probably a foster carer;
- That the parent can change their mind about the arrangements, and request the child back from accommodation at any time;
- That the parent will be able to see the child.
- 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?
- If 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 be difficult to determine, as some individuals with 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 (1). Note: 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: that the High Court in Re S (Child as parent: Adoption: Consent) made clear that parental Capacity to consent to a child being accommodated under S.20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific.
1.3 Recording Parental Consent
In Re N (Children) (Adoption: Jurisdiction)  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 Section 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'.
1.4 The use of Section 20 prior to Court Proceedings
High Court Judgements have considered that in circumstances where the threshold criteria (for Care / Supervision Orders) under Section 31 Children Act 1989 are met, (i.e. where a child is at risk of significant harm, or the likelihood of significant harm), then care proceedings should be issued without delay.Nevertheless, 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. The ADCS / Cafcass Practice Guidance for the Use of Section 20 seeks to clarify good practice in this area.
Even where a parent / carer's legal adviser 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.
(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.
2. The Child / Young Person's Plan
Where a decision is made to look after a child, the child must have a Child / Young Person's Plan. In guidance, the plan for a looked after child or young person is referred to as the Care Plan.
One of the key functions of the Child / Young Person's Plan is to ensure that each child has a Permanence Plan by the time of the second Looked After Child Review.
The child's Social Worker is responsible for drawing up and updating the Child / Young Person's Plan It should include the wishes and feelings of the following about the arrangements and about any proposed changes to the Child / Young Person's Plan of the following:
- The child;
- The child's parents person(s) with Parental Responsibility;
- Anyone who is not a parent but has been caring for or looking after the child;
- Other members of the child's family network who are significant to the child;
- The child's school or education authority;
- The relevant Clinical Commissioning Group;
- The Youth Offending Service, if the child is known to them;
- Any other agency involved with the child's care.
The Child / Young Person's Plan should include:
- Placement Plan (setting out why the placement was chosen and how the placement will contribute to meeting the child's needs);
- Permanence Plan (long-term plans for the child's upbringing including timescales);
- Pathway Plan which replaces the Child / Young Person's Plan when the child reaches the age of 15 ½ years or older;
- Health Plan;
- Personal Education Plan.
In addition, it should include the arrangements made to meet the child's needs in relation to:
- Emotional and behavioural development;
- The child's identity in relation to religious persuasion, racial origin and cultural and linguistic background;
- Family and social relationships: arrangements for contact with sibling(s) accommodated by the authority or another local authority; details of any section in relation to a Looked After child; details of any order in relation to contact with a child in care; arrangements for contact with parents / anyone with Parental Responsibility / any other Connected Person; arrangements for the appointment of an Independent Visitor for a Looked After child;
- Social presentation;
- Self-care skills.
The Child / Young Person's Plan should include the name of the Independent Reviewing Officer (IRO).
Note: The Care Plan must identify if there is reason to believe that the child is a victim of trafficking, or is an unaccompanied asylum seeker and has applied for, or intends to apply for, asylum.
2.1 Timescales for completion of the Child / Young Person's Plan
The Child / Young Person's Plan must be drawn up as soon as the need for the child to be Looked After has been identified. It should be completed prior to the child's first placement in accordance with the outcome of the Planning Meeting.
If there are exceptional reasons that prevent the Child / Young Person's Plan from being drawn up prior to the child's placement, the key objectives of the child's proposed placement must still be identified and recorded. If satisfied, the Manager can then approve that the Child / Young Person's Plan is drawn up within a maximum of 10 working days of the Child / Young Person's Plan placement.
2.2 Approval of the Child / Young Person's Plan
Any Child / Young Person's Plan taken before the Court within Care Proceedings must be endorsed and signed by the Social Worker's Manager.
All other Child / Young Person's Plans must be endorsed and signed by the Social Worker's Manager.
The Child / Young Person's Plan can be updated by the Social Worker, with the Manager's approval, at any time.
The Child / Young Person's Plan is subject to scrutiny at each Looked After Child Review.
2.3 Circulation of the Child / Young Person's Plan
The Child / Young Person's Plan must be circulated to the following people:
- The child;
- The Parent(s);
- The child's IRO;
- Providers / Carers - if no Child / Young Person's Plan has been drawn up prior to the child's placement, the Social Worker must ensure that the providers / carers understand the key objectives of the plan, and how the placement will help achieve these objectives.
3. The Placement Plan
The Placement Plan must be drawn up outlining the arrangements for looking after the child.
Part 1 of the Placement Plan must be drawn up by the social worker with the child's family or someone with Parental Responsibility for the child before the child is placed. Placement Plan Part 1 forms the profile of the child and what is needed from a foster placement or children's home for that child. It will also have the Consent to Accommodate (Section 20) and the Medical Consent that must be signed by someone with Parental Responsibility prior to a child coming into the care of the Local Authority. If it is not reasonably practicable to hold a Planning Meeting prior to a child coming into the care of the Local Authority then it should be held within 5 working days of the start of the placement, and forms part of the overarching Child / Young Person's Plan.Placement Plan Part 2 is how the child, their parents / person with Parental Responsibility, the social workers and the carers will look after the child and for how long. It will allow carers to exercise delegated authority for some aspects of the care of the child, such as dental appointments, haircuts or school trips.
Information to be included in the plan:
- How on a day-to-day basis the child will be cared for and the child's welfare will be safeguarded and promoted by the appropriate person;
- Any arrangements for contact between the child and parents / anyone with Parental Responsibility / any other connected person, including, if appropriate, reasons why contact is not reasonably practicable or not consistent with the child's welfare; details of any Contact Order (under Section 8 or 34 of the Children Act 1989); the arrangements for notifying any changes in contact arrangements;
- Arrangements for the child's health (physical, emotional and mental) and dental care, including the name and address of registered medical and dental practitioners; arrangements for giving / withholding consent to medical / dental examination / treatment;
- Arrangements for the child's education and training, including the name and address of the child's school / other educational institution / provider and designated teacher; the Local Authority maintaining any Education, Health or Care Plan;
- The arrangements for and frequency of visits by the child's social worker; and for advice, support and assistance between visits;
- If an Independent Visitor is appointed, the arrangements for them to visit the child;
- The circumstances in which the placement may be terminated;
- The name and contact details of the Independent Reviewing Officer, the Independent Visitor if one is appointed, the social worker who will be visiting the child, and the Personal Adviser for an Eligible Young Person;
- Where there are child protection concerns relating to a child and/or where the child has gone missing from the placement or from any previous placement, the Placement Plan must include information agreed between the local authority and the placement provider about the day-to-day arrangements put in place to keep the child safe.
Additional information to be included where the child is placed with parents
- Details of the support and services to be provided to the parents during the placement;
- The obligation on the parents to notify the Local Authority of any relevant change in circumstances including any intention to change address, any changes in the household in which the child lives and any serious incident involving the child;
- The obligation on the parents to ensure that any information relating to the child or the child's family or any other person given in confidence to the parents in connection with the placement is kept confidential and that such information is not disclosed to any person without the consent of the Authority;
- The circumstances in which it is necessary to obtain the prior approval of the Authority for the child to live in a household other than that of the parents;
- The circumstances in which the placement of the child with the parents pending completion of the assessment of suitability will be terminated if the decision following completion of the assessment is not to confirm the placement.
Additional information to be included where the child is placed with foster carers, in a children's home or in other arrangements
- The type of accommodation to be provided, the address and, where the child is placed in 'other arrangements', the name of the person who will be responsible for the child at that accommodation;
- The child's personal history, religious persuasion, cultural and linguistic background and racial origin;
- Where the child is not in care, the respective responsibilities of the Local Authority and parents / anyone with Parental Responsibility; any delegation of responsibility by parents / anyone with Parental Responsibility to the Local Authority for the child's day-to-day care; the expected duration of the arrangements and the steps to bring the arrangements to an end, including arrangements for the child to return to live with parents / anyone with Parental Responsibility; where the child is aged 16 or over and agrees to being provided with accommodation under Section 20 Children Act 1989, that fact;
- The circumstances in which it is necessary to obtain in advance the Authority's approval for the child to take part in school trips or overnight stays;
- The Authority's arrangements for the financial support of the child during the placement;
- Where the child is placed with foster carers, the obligation on the carers to comply with the terms of the foster care agreement.
Where the child is placed on a planned basis, the plan should be completed fully, with copies circulated to the child, parent(s), carers / children's home and other significant people / agencies including the child's IRO.
If the child is placed out of hours or on an unplanned basis, it may not be possible to fully complete the Placement Plan. In these circumstances, as much of the plan should be completed as possible. As a minimum, the following should be recorded:
- Healthcare / medical needs, including consent to urgent medical treatment;
- Contact arrangements;
- Arrangements for school, including transport;
- Financial arrangements including the need to purchase any clothing or urgent equipment;
- Support that may be required by the carer / home or child.
Notification of Placement
The child's social worker will notify the 'Events Team' of the child's placement. Events then notify the child's IRO, the LAC Health Team, the host authority if the child is placed out of the Hull area. The social worker should also notify the relevant local Targeted Services (if the placement is in the area of a different local authority) and the child's GP.
The education service in Hull has access to their own reports that inform them of a newly Looked After Child.
The child's social worker will notify all family members consulted and involved in the decision-making process of the placement.
The child's social worker should also notify - preferably in writing but it may be verbally - all those involved in the day to day arrangements for the child, including nursery / school and any health professional or YOT worker actively involved with the child.
The notifications should be made before the start of the placement or within 5 working days.
4. Placements Out of Area
Under the Care Planning, Placement and Review Regulations 2010, there are specific requirements in relation to Placements out of Area which apply except where the placement is with a Connected Person, or a local authority foster carer approved by the placing authority. The requirements are that the placement must be approved by the Nominated Officer - (Assistant Head of Service), who must be satisfied of the following:
- That the child's wishes and feelings have been ascertained and given due consideration;
- That the placement is the most appropriate placement available for the child and consistent with the Child / Young Person's Plan;
- That relatives have been consulted where appropriate;
- That the area authority has been notified;
- That the Independent Review Officer (IRO) has been consulted (usually the IRO will discuss with the child after the child has visited the proposed placement).
In the case of a placement made in an emergency, the Nominated Officer must be satisfied that the child's wishes and feelings have been ascertained and given due consideration, and must take steps to ensure that within 5 working days: the IRO has been informed; relatives have been consulted (where appropriate) and the area authority notified.
5. Other Plans / Records
The Social Worker should additionally complete or update the following records immediately or within specified timescales:
- The child's Chronology;
- A Personal Education Plan (PEP): in time for the first Looked After Child Review;
- A Health Plan: in time for the first Looked After Child Review.