Independent Advocacy for Looked After Children in the Review of Their Care Plan
National Children’s Advocacy Consortium[1]
Children and Families Bill
House of Commons
Committee Stage
Tuesday 12 March 2013
Independent advocacy for looked after children in the review of their care plan
Proposed new clause
“In section 26 of the 1989 Act (review of cases of looked after children, etc) in subsection (2) (regulations as to reviews) after paragraph (d) there is inserted –
‘(dd) (1) requiring the authority when seeking the views of the child to make arrangements for the provision of independent advocacy for the child unless that child, being of sufficient understanding to do so, states that he or she does not wish to receive the services of an independent advocate.
(2) For the purposes of this section,
a) ‘advocacy’ means the provision of independent and confidential information, advice, representation and support to a child
b) ‘independent’ means
Where the person appointed is not connected with the local authority by virtue of being –
(i) a member of the local authority or any of their committees or sub-committees, whether elected or co-opted; or
(ii) an officer of the local authority employed by the Children’s Services Department of that authority; or
(iii) a spouse or civil partner of any such person.”
Purpose
New clause for the provision of independent advocacy services for looked after children in the review of their care plan and for whom the local authority has a duty to seek their views.
Briefing
Background
There is a statutory right to advocacy for looked after children under the Children Act 1989 only when making or planning to make a complaint.[2] Statutory guidance[3] recognises that children may need advocacy without the need to first make a complaint and when they wish to make representations about their care or the services they receive.
Statutory guidance on care planning and reviews states:
‘Where a child has difficulty in expressing his/her wishes and feelings about any decisions being made about him/her, consideration must be given to securing the support of an advocate.’[4]
Similarly The IRO Handbook 2010 states:
‘When meeting with the child before every review, the IRO is responsible for making sure that the child understands how an advocate could help and his/her entitlement to one. Advocacy is an option available to children whenever they want such support and not just when they want to make a formal complaint.’
‘Every child has the right to be supported by an advocate. The local authority must have a system in place to provide written, age appropriate information to each looked after child about the function and availability of an advocate and how to request one.’[5]
Proposed new clause
Building on statutory guidance
This new clause builds on existing statutory guidance by creating a stronger presumption of advocacy for looked after children in their statutory reviews unless they do not feel the need for such support. Many looked after children feel that their social worker or IRO can help them express their views adequately at their statutory review. This new clause gives those who do not feel supported in this way the statutory right to the protection of having their voices heard and their rights upheld.
We consider that there is need for advocacy in statute because statutory guidance has not been shown to be sufficiently robust in ensuring that children and young people receive advocacy support when they need it. The provision of services is patchy. A report from the Children’s Commissioner[6] highlighted the postcode lottery in provision of advocacy services in general and which groups of children are covered by local authority contracts, for example some services are not contracted to provide services to children in need. Research by the Children’s Society showed that one third of local authorities do not report spending anything on advocacy services.[7]
In addressing preventative measures in relation to child who go missing, the recent APPG report on missing children[8] has also recommended that all children in care have a statutory right to independent advocacy as part of care reviews and placement planning, not just as part of complaint processes.
Reduction in court scrutiny of care plans and the role of the IRO
We are very concerned that the court is required only to scrutinise the care plan in relation to plans for permanent placement for the child. The reduction of judicial scrutiny means that there will significant parts of the care plan such as education, health, social identity and contact with family that may not be considered by the court before making a care order.
As a result of this, we believe, as indicated by evidence presented to the House of Commons Justice Committee pre-legislative scrutiny[9] that there will be greater requirement for scrutiny of the child’s care plan in statutory reviews and concerns about the role and capacity of the IRO to fulfil their statutory duty. The Committee was given assurances that the role of the IRO is being considered by government.
We are concerned that the child’s article 8 rights under the European Convention to respect for private life and procedural fairness may not be met in his or her statutory review without the opportunity of support and representation by an independent advocate. While the IRO has a statutory duty to ensure that the wishes and feelings of the child are conveyed to the review this is not the same as promoting the instructions of the child about how he or she considers that the care plan would best promote his or her welfare. Practice[10] indicates strongly that it is the process of decision making that is of such importance to the child in experiencing full participation in and ownership of these decisions.
In addition, IROs are not always seen as independent by children and so they do not feel that their views are being independently conveyed[11]. Views given by young people in a participation group included the following comments:
“I don’t feel that they [IROs] are always independent and on my side – I feel that they are another adult who is part of the local authority.”
“They should work professionally, not personally, meaning that they should not be loyal to the local authority.”
Advocates can also help young people challenge local authority decision making where there is a failure to implement the care plan or indeed where the care plan itself does not meet the human rights of the child. While care planning regulations and statutory guidance[12] have enhanced the authority of the IRO in challenging local authority decision making through internal dispute resolution this does not always happen. And referrals to CAFCASS for legal action on human rights grounds on behalf of the child remain consistently very low indeed. Not only do advocates help the child put in a complaint but where necessary they can also help the child with a referral to a lawyer for consideration of legal proceedings.
7 March 2013
For further information please contact:
Nicola Wyld, Voice, Principal Legal and Policy Adviser – 020 7520 3777
Claire Hyde, NYAS, Deputy Chief Executive - 0151 649 8700
[1] Members of NCAC are Voice, NYAS, NSPCC, Children’s Society, Action for Children, Barnardos, Action for Advocacy (observer status)
[2] Section 26A Children Act 1989 introduced by section 119 Adoption and Children Act 2002
[3] Get it sorted, as above
[4] Para 1.10, The Children Act 1989 Guidance and Regulations, Volume 2; Care Planning, Placement and Case Review, 2010
[5] Paras 3.14 – 3.15, IRO Handbook, 2010
Brady, L (2011) Where is my Advocate?, Children’s Commissioner for England
[7] Pona, I. and Hounsell, D (2012) The value of independent advocacy for looked after children and young people London: The Children’s Society
[8]APPG for runaway and missing children and adult and APPG for Looked After Children and Care Leavers (2012) Report from the Joint Inquiry of children who go missing from care
[9] House of Commons Justice Committee; Pre-legislative Scrutiny of the Children and Families Bill, paras 87 - 90
[10] Chase, E et al (2006) Findings from an Evaluation of the Voice Advocacy Service, Thomas Coram Research Unit
[11] We do not propose to enter into the debate of whether IROs should sit in or outside the local authority in this context.
[12] The Children Act 1989 Guidance and Regulations, Vol. 2: Care Planning, Placement and Case Review 2010; IRO Handbook, 2010;