Children and Social Work Act 2017: implementing the corporate parenting principles

In a series of posts, Stephen Knafler QC, and colleagues at Landmark Chambers, will examine in detail key provisions of the Children and Social Work Act 2017 and consider how they fit into the wider picture of children’s social care.

In this second blog, Stephen examines the implementation of the corporate parenting principles (CPP). This will be followed shortly by a post considering the local offer for care leavers

Introduction

Section 1 of the Children and Social Work Act 2017 (the Act) requires local authorities to prioritise the welfare of ‘looked after’, ‘relevant’ and ‘former relevant’ children (referred to in the Act as ‘relevant children and young persons’ (RCYP)) whenever they discharge any of their functions in relation to them. It does this through the corporate parenting principles (CPP), which comprise seven ‘statutory needs’, and through statutory guidance.

The purpose of the CPP is to significantly improve the welfare and life chances of RCYP by requiring local authorities to prioritise their welfare at all times. That does not necessarily require different outcomes, in cases where there are important countervailing considerations, such as a lack of resources. However, the statutory guidance certainly envisages that there will be improved outcomes – as a result of local authorities giving proper consideration to the welfare of RCYP when previously they might not have done, or as a result of local authorities being unable to justify an adverse outcome, having given prior consideration to the CPP. Inevitably, as a relatively powerful process requirement, the CPP are likely to give rise to and/or loom large in judicial reviews of local authority decision-making in relation to RCYP.

The first post in this blog examined the legal content of the CPP; this second post is intended to be more practical and explores how the CPP should be implemented and some of the legal issues that are likely to arise.

Implementing the CPP

The CPP should inform and permeate:

  • policy and strategy that has a bearing on relevant children and young persons;
  • arrangements within local authorities;
  • arrangements between local authorities and other organisations;
  • decision-making in individual cases.

Policy and strategy

The CPP should be ‘integral’ to:

  • the development and review of a local authority’s ‘local offer’ to care leavers (under section 2 of the Act) as well as its ‘local offer’ to RCYP with SEN or a disability (under section 30 of the Children and Families Act 2004 (see para 4.53 of Children’s Social Care Law));
  • the ‘Care Leavers Covenant’ – when that finally appears;
  • Joint Strategic Needs Assessments (JSNA) and Joint Health and Well-being Strategies (see para 4.27 of Children’s Social Care Law).

As to how the CPP are relevant when formulating/reviewing general strategy and policy documents, it is suggested that those concerned would be well advised to:

  • expressly record that they had regard to the CPP;
  • set out each of the seven ‘needs’ within the CPP and explain –
    • how each ‘need’ was taken into account and given effect to eg how decision-makers took into account the need to ensure that the proposed policy was in the best interests of, and promoted the physical and mental health and well-being, of RCYP;
    • how decision-makers encouraged those persons to express their views, wishes and feelings about the proposed policy (and so on) –

    culminating in the overall question: ‘would this policy be good enough for my own child?’;

  • establish bodies such as a Children in Care Council or Care Leavers Forum and use online surveys, websites and other forms of modern technology to ascertain and take into account the views of RCYP to ‘feed in’ to general policy-making and strategy. For example, some local authorities have developed apps that allow RCYP to communicate how they feel about the services they are receiving, to social workers and other professionals, such as advocates.

Arrangements within local authorities

Many local authorities have established Corporate Parenting Boards or Panels, to look strategically at how children and care leavers experience their services (para 3.1 of Applying CPP).

Page 11 of Applying CPP suggests that:

  • lead members and senior officers promote the idea that looked after children are part of the ‘local authority family’;
  • there is regular contact between lead members/senior officers and Children in Care Councils; lead members/senior officers demonstrate that they care, for example, by visiting looked-after children placed outside the area;
  • services and practices change as a result of input from looked after children and care leavers;
  • local authorities should consider having an annual day/week when looked after children and care leavers meet with lead members/senior officers to discuss relevant issues;
  • local authorities appoint a Young Director (and apprenticeship for a care leaver, to mirror the work of the Director of Children’s Services).

Arrangements between local authorities and other organisations

Section 1(1)(d) refers to the need to help RCYP to ‘gain access to, and make the best use of, services by the local authority and its relevant partners’. (For the definition of ‘relevant partners’ see above).

One way of discharging this aspect of the CPP, would be for a local authority and ‘relevant partners’ jointly to consider:

  • what services are available for relevant children and young people across the spectrum of relevant organisations;
  • whether – having regard to the CPP – those services should be supplemented, or varied, and whether any eligibility criteria should be varied; and
  • how these services can be publicised, eg by a supplement to the ‘local offer’ under section 2 of the Act.

Nothing prevents a local authority endeavouring to undertake the same exercise with other organisations that are not ‘relevant partners’, eg local voluntary organisations or indeed commercial entities, and it would be consistent with the CPP to do so.

Already in place, section 10 of the Children Act 2004, requires local authorities to make arrangements to promote co-operation between ‘relevant partners’ with a view to improving the well-being of children in the area (and section 10(5) requires ‘relevant partners’ to co-operate, in turn, with local authorities).

The CPP requires that, when local authorities and ‘relevant partners’ co-operate with each other, in making arrangements to promote the well-being of children in the area, local authorities should seek to include a focus on the CPP, so that the arrangements made promote the CPP. That entails, as a minimum, ensuring a shared understanding of the needs of RCYP and ensuring that arrangements for multi-agency working take account of those needs.

Again, nothing prevents a local authority from endeavouring to make similar arrangements with other bodies who are not ‘relevant partners’ (eg the Home Office and voluntary organisations) and it would be consistent with the CPP to do so.

In practical terms, this can involve a local authority:

  • working with schools and other local organisations (the Local Music Education Hub, Bridge organisation, County Sports Partnership, for example) to promote access by RCYP to local leisure and cultural services;
  • promoting participation in activities such as the Duke of Edinburgh Award Scheme and National Citizen Service;
  • working collaboratively with universities to link care leavers into higher education.

Migrant children

The NRPF Network has published a useful article – How will the Children and Social Work Act 2017 affect migrant children?  It emphasises, rightly, that:

The NRPF Network also emphasises the importance of undertaking meaningful care planning for migrant children and helping them to achieve a sustainable form of immigration status, as well as, importantly, obtaining their views and input in relation to policy development and services generally.

Decision-making in individual cases

The CPP will obviously be relevant to assessments of need for RCYP.

It would be (to put it mildly) good practice and prudent for assessment documents to record, explicitly, that the assessor has had regard to the CPP and, indeed, to set them out. That would not, however, be enough by itself. The assessment will need to show that, as a matter of substance, the assessor did have regard to the CPP. To give an obvious example, if the assessment does not record the views of the RCYP, it will be difficult to show that, in substance, the assessor had regard to the need at section 1(1)(b), ‘to encourage those children and young people to express their views, wishes and feelings’. Again, therefore, it would be highly advisable for important work with individual children (eg care and pathway plans, and reviews) to include a section that  explains how the process has taken into account each of the seven ‘needs’ within the CPP. A failure to do so would, at best, amount to very poor social work practice.

Social workers and others will need to show how they have applied the CPP to specific problems that may arise in relation to individual RCYP, whether those problems are addressed in a needs assessment (as ought normally to happen) or elsewhere. So, for example, suppose a RCYP presents with ‘challenging behaviour’: a specific example given in Applying CPP, at paragraph 4.5, is the need to consider encouraging carers and professionals (and other agencies, such as the police) to use restorative justice and to understand and ameliorate the underlying causes of the behaviour (under section 1(1)(a) of the Act).

The duty is ultimately one of substance. Accordingly, where it is clear that, in substance the decision-maker de facto took into account the CPP – for example,  by encouraging the relevant RCYP to express their views, wishes and feelings – the decision-making process ought to be safe from legal challenge. However, it is more than simple prudence or good practice to make express reference to the CPP and to provide a reasonably clear explanation, contemporaneously, as to how the ‘seven needs’ were taken into account. The CPP embody a very important duty. A failure expressly to address them may well not call into question the lawfulness of the decision-making process when that process touches upon areas that are relatively distant from mainstream decision-making about children and where it is, also, clear, that in substance consideration was given to relevant aspects the ‘seven needs’. But where the challenge is to assessment and care planning in relation to individual RCYP, or to strategic decisions that have a direct bearing upon RCYP (eg JSNAs, or service closures decisions), a failure expressly to address the CPP ought to be seen as such poor practice as to invite especially robust consideration on the part of the court, and a quashing of the relevant decision-making unless it is clear that, despite such incompetence, the substance of what is required truly was performed.

The lawyers’ perspective

Lawyers and courts are now used to grappling with legislation that imposes overarching process duties onto social care legislation. There is a decent argument that the CPP require more robust court supervision, than has so far been the case, but the obvious starting point is the courts’ approach to similar, existing legislation, for example:

  • under section 1 of the Care Act 2014, which requires local authorities exercising a function under that Act in the case of an individual ‘to promote that individual’s well-being’, as further defined, and to ‘have regard to the following matters’ – a series of eight important factors and needs, such as the importance of beginning with ‘the assumption that the individual is best placed to judge the individual’s well-being’;
  • under section 11(2) of the Children Act 2004, which requires local authorities to ‘make arrangements for ensuring that … their functions are discharged having regard to the need to safeguard and promote the welfare of children’;
  • under section 149(1) of the Equality Act 2010, which requires local authorities to ‘in the exercise of its functions, have due regard to the need to … eliminate discrimination … advance equality of opportunity … foster good relations between persons who share a relevant protected characteristic and persons who do not share it’.

As to the relevant case-law on these duties, see chapter 4 of Adult Social Care Law and chapters 1 and 2 of Children’s Social Care Law.

Having regard to the case-law on these similar process duties, on the one hand, there are likely to be limits to the duty imposed by the CPP:

  • like the other duties referred to above, the CPP is clearly a duty of process rather than a duty to achieve any particular result – although, as mentioned above, the statutory guidance envisages that it will, in practice, result in at least some changed outcomes (otherwise, what would be the point?) and, it could be argued, the CPP requires more by way of justification should the outcome not meet one or more of the ‘seven needs’;
  • important though the seven needs that comprise the CPP are, they can in principle be outweighed by other factors, such as the local authority’s view as to where the best interests of the RCYP lies, or by limitations on the local authority’s physical or financial resources (see para 4.11 of Applying CPP). Accordingly, local authorities can still make budget cuts, close services and make other decisions adverse to the interests of RCYP providing they take the CPP into account. On the current legal approach to similar duties, it will probably be the case that, ultimately, providing a local authority diligently takes account of the CPP, its ultimate decision how best to proceed will  be subject to a conventional public law challenge only – although it is arguable that a more stringent approach is required, in this context;
  • although it is good practice to refer expressly to the CPP and to explain how they have been taken into account the duty remains one of substance. Accordingly, a local authority will have acted lawfully if it can show that it did, in fact, take the CPP into account. For example, what was written down at the time may show that the CPP were taken into account, even though no express reference is made to them; or the court may be persuaded by ex post facto evidence that the CPP were taken into account. One would though strongly expect RCYP’s formal assessment and planning documents expressly to consider each of the seven needs, as well as strategy and policy documents directly connected with children’s welfare;
  • it will almost certainly be acceptable for the local authority to concentrate on the needs within the ‘seven needs’ that are relevant, rather than any needs that are irrelevant, to the issue under consideration. For example, where a discrete issue arises in relation to a ‘looked after’ child’s education, it may be unnecessary to have regard to the need for them to be safe and to have a stable home (see para 2.6 of Applying the CPP). That would not apply, of course, to a formal needs assessment, which will be expected to consider the RCYP’s welfare in the round and, therefore, all of the seven needs;
  • it will probably be lawful for local authorities to make high-level/macro budgetary or other decisions with no or a reduced focus on the CPP, on the basis that implementation will be subject to the CPP and the budgetary decision may be reversed – although one can envisage the Courts taking a different view than heretofore;
  • whether or not there has been a breach of the CPP is likely to be a highly fact-sensitive, evaluative question;
  • an unduly forensic approach may in some cases amount to an inappropriate attack on the merits of the underlying decision – one can expect the courts to be astute to guard against that;
  • as a set of ‘governing principles’ for children, the CPP are pretty feeble. Not only do they only apply to RCYP and to local authorities (cf other public bodies, and private organisations involved with children), they are some way distant from incorporating the most basic obligation, that all public authorities and indeed all private organisations concerned with the welfare of all children, should be required to comply with, found in Article 3 of the United Nations Convention on the Rights of the Child (‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’). Accordingly, the point can be fairly made, that Parliament has chosen to impose a significantly lesser obligation and that the courts should respect that choice.

On the other hand:

  • the ‘seven needs’ to which a local authority is required to ‘have regard’ are now statutorily relevant considerations, which means that local authority decision-makers are under a duty (i) properly to understand them; and (ii) consciously to consider them. A failure properly to understand or otherwise take into account one of these ‘needs’ will probably result in the relevant local authority action being held to be unlawful (eg unless the failure has not had a material effect on the end result or some other discretionary bar applies);
  • on the current legal approach to legislation of this kind, if local authorities can show that they have conscientiously taken into account the CPP, their final decision will probably be subject to challenge on conventional public law principles only, if the courts follow the path they have so far mapped out. However, one does have the statutory guidance in this case, Applying the CPP: that has to be (i) properly understood; (ii) taken into account; and (iii) followed, unless there is a sufficiently good reason why not;
  • whilst the duty is one of substance and not form, it would be very bad practice for decision-making that bears directly on the interests of one or more RCYP not to carefully refer to and address each of the CPP and ought to seriously call into question whether the process can have been a lawful discharge of the CPP duty;
  • the duty is probably non-delegable and therefore must be discharged personally by the decision-makers;
  • the duty should be discharged at the time and not addressed by way of a ‘rear guard action’;
  • it is probably implicit in the CPP that local authority decision-makers are under a ‘duty of inquiry’ to ascertain relevant information necessary to give proper consideration to the CPP – although it is unlikely that the inquiry duty will impose a higher obligation than the Tameside obligation to take Wednesbury reasonable steps to ascertain and consider relevant information. In addition, where the future is uncertain, it is likely to be sufficient to make a rational judgment about the future and then monitor developments;
  • decision-making may be treated as unlawful where it contains only token references to the CPP and a ‘tick box’ or ‘formulaic’ approach and where the decision itself and the contemporaneous material fails to show, expressly or by implication, that the substance of the CPP was in truth taken into account.

Further, although the CPP are comparable with the other general process duties referred to above, there are some differences. The ‘seven needs’ are quite specific and are closely geared to issues that are likely to arise, that affect relevant children and young persons. Accordingly, they are likely to result in a higher degree of judicial scrutiny. For example, one of the needs, to which regard must be had, is the need to help RCYP to ‘gain access to, and make the best use of, services provided by the local authority and its relevant partners’. In the case of an individual assessment/care planning process, it may be difficult for a practitioner to demonstrate that he or she did truly have regard to this need unless they can demonstrate that they took positive steps to identify what relevant services were available and to make a reasonable effort to facilitate the RCYP gaining access to them.

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The Children and Social Work Act 2017: the corporate parenting principles

In a series of posts, Stephen Knafler QC, and colleagues at Landmark Chambers, will examine in detail key provisions of the Children and Social Work Act 2017 and consider how they fit into the wider picture of children’s social care.

In this first post, Stephen provides an introduction to the corporate parenting principles (CPP). This will be followed shortly by a post relating to the implementation of those principles.

Introduction

Section 1 of the Care Act 2014 creates a set of governing principles, aimed at ensuring that the well-being of adults is central to the discharge of local authority functions under that Act. Section 1 of the Children and Social Work Act 2017 (‘The Act’) goes further and requires local authorities to prioritise the welfare of ‘looked after’, ‘relevant’ and ‘former relevant’ children (referred to in the Act as ‘relevant children and young persons’ (RCYP)) whenever they discharge any of their functions in relation to them.

It does this through the Corporate Parenting Principles (CPP), which comprise seven ‘statutory needs’, and through statutory guidance. The purpose of the CPP is to significantly improve the welfare and life chances of RCYP by requiring local authorities to prioritise their welfare at all times. That does not necessarily require different outcomes, in cases where there are important countervailing considerations, such as a lack of resources.

However, the statutory guidance certainly envisages that there will be improved outcomes as a result of local authorities giving proper consideration to the welfare of RCYP when previously they might not have done, or as a result of local authorities being unable to justify an adverse outcome, having given prior consideration to the CPP. Inevitably, as a relatively powerful process requirement, the CPP are likely to give rise to and/or loom large in judicial reviews of local authority decision-making in relation to RCYP.

Here we look closely at the content of the CPP and explore how the principles should be implemented and the legal issues that are likely to arise.

Before moving on, however, it may be useful to pause and reflect on how the CPP fit into the existing corpus of overarching welfare duties relevant to children. As set out in chapter 1 of Children’s Social Care Law (LAG, 2018):

  • where children’s rights under Article 8 of the European Convention on Human Rights (ECHR) are engaged, all public authorities including of course local authorities are required to treat the best interests of the child as a primary consideration: Nzolameso v City of Westminster [2015] UKSC 22, (2015) 18 CCLR 201;
  • otherwise, local authorities and some other public bodies (including the NHS, the police and the Secretary of State for the Home Department) are required to make arrangements to ensure that their functions are discharged having regard to the have due regard to the need to safeguard and promote the welfare of children: section 11(2) of the Children Act 2004.

Two considerations leap out:

  • first, yet again, Parliament has failed to take the opportunity to take the obviously necessary and long overdue step of straight-forwardly incorporating into national law the duty at Article 3 of the United Nations Convention on the Rights of the Child (‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’);
  • on the other hand, although the CPP only apply directly to local authorities, and only to limited classes of children and young persons, the CPP do comprise seven very specific ‘needs’. One suspects that the power of the CPP will derive from the range and specificity of these seven needs. They are designed to, and will, impose a great deal on the thought process of a conscientious decision-maker; undoubtedly, also, they will make it difficult for the less conscientious, or well-informed, decision-maker, to sustain the lawfulness of their decision-making.

Overview of legislation

The CPP are found in section 1 of the Act, at the start of Part 1. They came into force on the 1 April 2018.

Part 1 of the Act also includes a variety of specific steps which local authorities are required to take, to improve the welfare and life chances of ‘looked after’ children and ‘care leavers’.

The CPP, by contrast, comprise general principles that local authorities are required to ‘take into account’ and they have very wide effect. They are required to be taken into account not just when a local authority is discharging a function under the Act or the Children Act 1989 or one of the other enactments that specifically applies to children but, also, whenever a local authority discharges any function that has an impact on RCYP, whether that function is the local authority’s social care function, or its waste collection function – and everything in between.

The structure of Part 1 of the Act is as follows:

  • section 1 requires local authorities to ‘have regard’ to the CPP when they carry out their functions in relation to RCYP;
  • sections 2 and 3 require local authorities to publish their ‘local offer’ for care leavers and, also, provide additional services to ‘former relevant children’;
  • sections 4 to 7 comprise further provision to promote the educational achievement of previously ‘looked after’ children;
  • sections 8 to 10 make further provision in relation to care orders, adoption and secure accommodation.

The purpose of the CPP

It is clear from the language used in section 1 of the Act that the purpose of enacting the CPP is to influence and permeate the mind-set and culture of local authorities, from top to bottom, and across the whole range of local authority activity, so that whenever a local authority contemplates taking action that is relevant to one or more RCYP it brings the anxious concern of a pragmatic but loving, aspirational and enlightened parent to bear.

The statutory guidance (see below), Applying CPP to looked-after children and care leavers: statutory guidance for local authorities, drives that message home, inter alia, at:

  • para 1.1 (‘the critical question that local authorities should ask … is: “would this be good enough for my child?”’);
  • para 1.3 (‘A strong corporate parenting ethos means that everyone from the Chief Executive down to front line staff, as well as elected council members, are concerned about those children and care leavers as if they were their own. This is evidenced by an embedded culture where council officers do all that is reasonably possible to ensure that the council is the best ‘parent’ it can be to the child or young person’).

In particular, one thing that the CPP do through the statutory guidance, Applying CPP, is to enable and strongly encourage dynamic and thoughtful local authorities to innovate new solutions for promoting the welfare of RCYP in all the variety of ways that enlightened and aspirational parents would – from promoting their educational achievement through to higher education, to providing apprenticeships, to setting up bank accounts, Junior ISAs and so on. Applying CPP contains a large number of examples of good practice, clearly designed to encourage and legitimise creative efforts to improve the life chances of RCYP.

Unfortunately, that ‘best parent’ very often has seriously limited resources and one of the problems with the CPP is that it continues to allow limited resources to justify local authority action that is significantly adverse to the best interests and welfare of RCYP (see below).

The CPP

It has been implicit in legislation, and explicit in statutory guidance, for many years, that local authorities should treat the children they are looking after, and care leavers, analogously to how a good parent treats their children. For example, paragraph 1.15 of The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review provides as follows:

1.15 The responsibility of local authorities in improving outcomes and actively promoting the life chances of children they look after has become known as ‘corporate parenting’ in recognition that the task must be shared by the whole local authority and partner agencies. The role of the corporate parent is to act as the best possible parent for each child they look after and to advocate on his/her behalf to secure the best possible outcomes.

Section 1 of the Act gives statutory force to seven aspects of good parenting, to be known as the CPP.

Paragraph 1.5 of Applying CPP explains that CPP ‘comprise of seven needs that local authorities in England must have regard to whenever they exercise a function in relation to looked-after children or care leavers’.

Section 1(1) of the Act defines the CPP in this way:

1(1) A local authority in England must, in carrying out functions in relation to the children and young people mentioned in subsection (2), have regard to the need–

(a) to act in the best interests, and promote the physical and mental health and well-being, of those children and young people;

(b) to encourage those children and young people to express their views, wishes and feelings;

(c) to take into account the views, wishes and feelings of those children and young people;

(d) to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners;

(e) to promote high aspirations, and seek to secure the best outcomes, for those children and young people;

(f) for those children and young people to be safe, and for stability in their home lives, relationships and education or work;

(g) to prepare those children and young people for adulthood and independent living.

An immediate and rather fundamental query arises: does the duty to ‘have regard to the need’ to, for example, ‘act in the best interests’ of RCYP mean that local authorities are under a duty to ‘act in the best interests’ of RCYP?

The answer is, unfortunately not. The duty is a duty to take into account that local authorities need to act in the best interests of RCYP, but it is not a duty to actually act in the best interests of RCYP. Equally, it is not a duty merely to take into account the desirability of acting in the best interests of the RCYP – ‘need’ is much stronger than ‘desirability’.

It is a strange way of legislating, albeit one that seems to have become fashionable. On one view, local authorities are required to exercise their functions on the basis that it is necessary to, for example, ‘act in the best interests’ of RCYP so that they must ‘act in the best interests’ of RCYP unless that would result in disproportionate damage to some other, important consideration.

On another view, local authorities may be required to do no more than bear in mind that, in principle, it is very important to, for example, ‘act in the best interests’ of RCYP, and remain entitled to form their own view (subject only to a conventional public law challenge) as to how important that is, in the particular circumstances of the case and as to what weight to be attached to countervailing considerations.

That is the approach that has been taken in the context of the PSED: see R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 at para 26(8).

The ‘relevant partners’ referred to in section 1(1)(d) are defined by section 1(3) as being the entities referred to in section 10(4) of the Children Act 2004 which, for convenience, are defined as follows:

(4) For the purposes of this section each of the following is a relevant partner of a local authority in England–

(a) where the authority is a county council for an area for which there is also a district council, the district council;

(b) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority ;

(c) a local probation board for an area any part of which falls within the area of the authority;

(ca) the Secretary of State in relation to his functions under sections 2 and 3  of the Offender Management Act 2007, so far as they are exercisable in relation to England;

(cb) any provider of probation services that is required by arrangements under section 3(2)  of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) a youth offending team for an area any part of which falls within the area of the authority;

(da) the National Health Service Commissioning Board;

(db) any clinical commissioning group for an area any part of which falls within the area of the authority;

(f) a person providing services in pursuance of section 68  of the Education and Skills Act 2008 in any part of the area of the authority;

(fa) the governing body of a maintained school that is maintained by the authority;

(fb) the proprietor of a school approved by the Secretary of State under section 342  of the Education Act 1996 and situated in the authority’s area;

(fc) the proprietor of a city technology college, city college for the technology of the arts or Academy situated in the authority’s area;

(fd) the governing body of an institution within the further education sector the main site of which is situated in the authority’s area;

(fe) the Secretary of State, in relation to the Secretary of State’s functions under section 2  of the Employment and Training Act 1973.

The CPP guidance

Section 1(4) of the Act provides that a ‘local authority in England must have regard to any guidance given by the secretary of state as to the performance of the duty under subsection (1)’.

The most relevant statutory guidance is Applying Corporate Parenting Principles to looked-after children and care leavers: statutory guidance for local authorities (‘Applying the CPP’).

Applying the CPP makes clear, on page 4, that it is intended to be read alongside, and not substitute, existing statutory guidance at volumes 2 and 3 of the Children Act 1989 Guidance and Regulations. It does two things:

  • first, it provides a really useful explanation of the purpose of the CPP and how they are to be applied and implemented;
  • second, it provides helpful examples of how the CPP can be implemented, in a way that is designed to encourage and sanction innovative approaches, not just to meeting needs but, above all, to promoting the welfare of relevant children and young persons.

Applying the CPP is, of course, required reading for all those in local authorities (officers and members) whose functions touch upon relevant children and young persons and, also, for relevant officers and members of ‘relevant partners’. Not only that, as a statutory ‘relevant consideration’, that is required to be taken into account, those who make decisions affecting relevant children and young persons will need to be able to show that they properly understood Applying the CPP,took it into account and acted in accordance with it unless they had a good reason to take a different course.

As ever, the best way, by far, of demonstrating this thought process is by making a contemporaneous record of it, within the document that records the decision, or elsewhere in the associated paperwork.

Other guidance

Get in on the Act, is a general guide, providing an overview – rather like an explanatory note – of the Act and what each section provides.

The Corporate parenting resource pack  is a (non-statutory) good practice guide, published by the Local Government Association. It emphasises that ‘[e]very councillor and officer within a council has a responsibility to act for [looked after] children and young people as a parent would for their own child’ and gives many useful examples of good practice, in this regard.

It also makes the useful practical suggestion that all councillors and members of all committees ‘have a responsibility to consider how reports before them impact upon children in care and care leavers’ (page 5). Accordingly, it is worth considering including in all formal reports for decision-making, some reference to the CPP and to how what is proposed may affect relevant children and young people.

As its title suggests, Support for care leavers resource pack, is focused more on sections 2 and 3 of the Act although, of course, section 1 and the CPP are highly relevant to those sections, and all other provisions elsewhere that bear upon the support provided for care leavers.

The NRPF (No Recourse to Public Funds) Network website contains a useful reminder that the CPP do apply to trafficked and migrant children and explains why/how those particular categories of (particularly vulnerable) children should be supported.

Children England provides at a high-level summary of main provisions of the Act, but a useful and clear one.

It is also worth noting, in this connection, that there is further statutory guidance on sections 2 and 3 of the Act, to which the CPP has some relevance:

Which children and young persons do the CPP apply to?

In short, the CPP apply to ‘looked after’ children, ‘relevant children’ and ‘former relevant children’.

Section 1(2) of the Act defines these RCYP as:

  • ‘looked after children’ within the meaning of section 22(1) of the Children Act 1989, ie children who are in the local authority’s care, or who are provided with accommodation in the exercise of any social services function other than under sections 17 (family services), 23B (accommodation for ‘relevant children’) and 24B (accommodation for ‘former relevant children’ and others) of the Children Act 1989;
  • ‘relevant children’ within section 23A(2) of the Children Act 1989, ie
    • 16- or 17-year old children; who
    • are not ‘looked after’ but were ‘eligible children’ immediately before last ceasing to be ‘looked after’; unless and until
    • they have lived for a continuous period of at least six months with their parent, or a person with parental responsibility for them or (when they were in care) a person named in a child arrangements order (made before the care order was made) as a person with whom the children was to live; although
    • should those arrangements break down and the children cease to live with the person concerned, the children again become  ‘relevant children’; or
    • they are not subject to a care order, but were detained or in hospital when they attained the age of 16 and, immediately before that, had been ‘looked after’ for a period or periods totalling at least 13 weeks, which began after the children reached 14 and did not comprise a series of pre-planned short-term placements;[1]
  • Persons aged under 25 who are ‘former relevant children’ within section 23C(1) of the Children Act 1989, ie
    • children who have been ‘relevant children’ and would still be ‘relevant children if they were under 18, in relation to whom the local authority was the last responsible authority; and
    • children who were being ‘looked after’ by the local authority when they turned 18 and immediately before ceasing to be ‘looked after’ were ‘eligible children’ (see above).

Which local authorities are under the duty?

See section 1(3) of the Act:

  • county councils;
  • district councils;
  • London borough councils;
  • the Common Council of the City of London (in its capacity as a local authority);
  • the Common Council of the Isles of Scilly; and
  • a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009 (these are two or more local authorities that have combined together via an order made by the secretary of state, such as the Greater Manchester Combined Authority, North-East, Liverpool City Region, Sheffield City Region and West Yorkshire).[2]

When and how do the CPP apply?

Section 1(1) of the Act imposes the CPP on local authorities whenever they are ‘carrying out functions’ in relation to RCYP.

A local authority’s ‘functions’ are ‘all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions’: Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 at 29F.

Accordingly, for all practical purposes, the CPP apply whenever a local authority does anything that could affect RCYP, under its existing responsibilities.

It is important to bear in mind that:

  • first, the CPP do not replace or extend existing responsibilities: ‘The CPP are intended to inform how a local authority carries out those existing responsibilities….’ (paragraph 2.4 of Applying CPP);
  • second, on the other hand, the duty in section 1(1) is expressed as a duty to ‘have regard to the need’ to (for example) ‘act in the best interests, and promote the physical and mental health and well-being’ of RCYP. This betokens that the CPP will be more relevant in some contexts than in others. Paragraph 2.6 of Applying CPP explains that, ‘Local authorities will need to consider the extent to which the CPP are relevant to a particular service area or exercise of a particular function. This should be a reasonable and proportionate evaluation based on the extent to which the service/function is being carried out in relation to looked-after children and/or care leavers’.

 Applying the CPP draws attention to the breadth of the scope of the relevance of the CPP but, also, to the need for a proportionate approach, in that the CPP will not always be relevant to every kind of decision (and not every facet of the CPP will be relevant to every decision that may affect RCYP):

3.4 The services that local authorities deliver can be broadly categorised into 14 different types of service. The service areas where consideration of the CPP are of most relevance are: education, social care, housing, libraries, leisure and recreation, strategic policies (such as health and well-being plans) and local tax collection.

3.5 The seven other types of service provided by local authorities include highways, transport planning, passenger transport, environmental health, waste collection, waste disposal and town and county planning. Looked-after children and care leavers access these services as residents of the local authority area, regardless of their legal status. These services are less likely to require differentiated service for looked-after children or care leavers and therefore the need to have regard to the CPP will either not apply or apply only in a limited way. This is because it may not possible to do anything towards meeting one or more of the identified needs or, although it may be possible, it is not appropriate to do so.

3.6 The way in which a local authority operates its corporate services is important to consider in relation to the principles. For example, the way a local authority acts as an employer can have an impact, such as by ring-fencing apprenticeships for care leavers. These opportunities can be provided in any department of the council regardless of the function it performs. For example, there is no reason why a care leaver could not be take up an apprenticeship opportunity in the highways department. All services can have a role in providing these opportunities for looked-after children and care leavers. This is different from providing a differentiated service, for instance, a differentiated service for looked-after children or care leavers in relation to a particular function such as waste collection.

Annex 3 of Applying CPP identifies the areas where consideration of the CPP:

  • should generally apply, as being education, social care, housing, libraries, leisure and recreation and local taxation collection; and
  • are less likely to apply, as being highways, transport planning, passenger transport, environmental health, waste collection, waste disposal and planning applications.

[1] Children Act 1989 s23A(2); Care Leavers (England) Regulations 2010 SI No 2571 reg 3 and The Children Act 1989 Regulations and Guidance, Volume 3: Planning transition to adulthood for care leavers).

[2] See the relevant Parliamentary Briefing Paper at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06649.

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