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Children's rights placement moves

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Mike Lindsay's presentation on

Mike Lindsay's presentation on

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  • 1. CHILDREN’S RIGHTS & PLACEMENT MOVES Dr Mike Lindsay Office of the Children’s Rights Director CHILDREN’S RIGHTS OFFICERS AND ADVOCATES SEMINAR
  • 2. OBJECTIVES  These seminars will give you an opportunity to consider what rights children have when faced with decisions to move them.  They will provide some examples of practical advocacy when challenging decisions that have failed to consult children properly, and are being imposed contrary to their wishes.  There will be an opportunity to discuss and explore cases that you have been involved with.  You will be provided with practical tools (cue card, YP guide, case summaries) to help you in supporting children and young people.  The main objective of these seminars is to ensure that you are better placed and more confident in helping children and young people, whenever they are being forced to move placements against their will, their rights or both.
  • 3. GETTING PLACEMENT MOVES RIGHT …1 (1) Social workers should ask and listen to what the child wants. (2) Children should visit the placement beforehand, and meet their new carers before they move in. (3) Children should be given a reasonable choice of placements. (4) Children should know what their educational plan is. (5) Children should be able to take their pets and property (photos, bikes, clothing etc.) with them.
  • 4. GETTING PLACEMENT MOVES RIGHT … 2 (6) There should be time to prepare and adjust before moving. (7) Whether the child wants to move can make all the difference. (8) Stop ending settled placements for reasons that are nothing to do with the child (e.g. policy or money). (9) Ensure contact with family and friends. (10) Always tell the child exactly what is going on.
  • 5. STABILITY IS THE KEY! “On almost every social indicator children with only a few placements in their care history do dramatically better than children who have experienced a large number of placements.” Stability is the key from which all good outcomes for children in care are necessarily derived.
  • 6. CHALLENGING PLACEMENT MOVES …1 Can the local authority show that it has reached the decision in a “reasonable” manner? Has it: 1. Listened to and considered the views of the child or young person affected by the decision (NOTE: doing this is not the same as telling the child or young person what has been decided); 2. Listened to and considered the views of others with an interest in the child’s welfare (such as family, carers, social worker, independent reviewing officer, advocate);
  • 7. Has it: 3. Considered all of the things (such as school, contact with friends and family, care plan reviews) that it would be reasonable for it to have considered; 4. Avoided giving too much regard to matters that it would be unreasonable for it to give too much consideration to (such as giving far more value to views of people qualified in finance and administration, over those qualified in children’s welfare); 5. Avoided being unfair or biased in making its decision (that is, it had not already made up its mind based on what it thinks is best for itself); This is what lawyers refer to as the “Wednesbury Test”. CHALLENGING PLACEMENT MOVES …2
  • 8. 1. The legal challenge route If a local authority failed to meet it then a child or young person could ask a solicitor to act on their behalf and make an application for judicial review of the decision, on grounds that it would fail to meet any administrative test of 'reasonableness'. Put simply, this means that the court is being invited to rule that the local authority’s decision (which could include a decision about moving a child or young person from a placement) was, in effect, an unlawful one. In such a case, the court would intervene to stop any placement move pending a proper process of decision making.
  • 9. Advantages of judicial review  An application for judicial review can be done quite quickly; and does not rely on having to show whether the decision was a good one or not (you only have to show that it was wrongfully made).  Whilst it is a very costly business, the courts will not award costs against a child in care. Therefore, the local authority could have to meet all the costs (whether they win, lose or draw).  The High Court is very powerful and can make the local authority do certain things the law requires, even if it does not want to.  It is a more effective remedy than relying on breaches of child care legislation.
  • 10. Disadvantages of judicial review  It is not available to all children; only those who are deemed capable of instructing a solicitor.  It may not be available where, in spite of the child having been consulted, the local authority still decides to go ahead with the placement move [Note: the local authority is only required to get the process right – not necessarily the decision itself].  It potentially places those professionals, advising children, in conflict with local authorities; including, at times, those they either work for or have service level agreements with.
  • 11. 2. The local authority complaints procedure A child or young person could make a formal complaint (under Section 26 of the Children Act 1989) against being moved without proper notice or being consulted. This might not change the decision, but it should lead to the local authority “freezing” any move until the complaint has been looked into. Getting the Best from Complaints’ Guidance (2006) says: “… there should generally be a presumption in favour of freezing …” Failure to do so could lead to further grounds that the local authority was acting “unreasonably” in its decision making.
  • 12. 3. Local ombudsman A child or young person could complain to the Ombudsman if they felt the local authority was not making decisions properly (what they call “maladministration”).
  • 13. 4. Requesting IRO refers the case to CAFCASS Under Section 118 of the Adoption and Children Act 2002 the Independent Reviewing Officer can (and arguably should) refer a case to CAFCASS where they are not satisfied that the child’s care plan is being followed or where it seems to them that the child’s welfare is not being promoted.
  • 14. 5. Refusing to move The law is clear on there being no challenge of a local authority’s right to decide what it thinks is best for children in care. However, the law does not say that children and young people always have to go along with those decisions. Where they have the right to challenge placement decisions (such as when these are reached “unreasonably”) a child or young person could refuse to move until such time as their complaint or legal case against the local authority has been heard. [Note: This option may lead to threats of police involvement, use of forced removal, the withholding of funding and complaints against the current placement – typically each of these threats are without substance].
  • 15. 6. A Children’s Rights Director letter A child or young person could ask the Children’s Rights Director for England to write to the Director of Children’s Services on their behalf. He would ask them to look into the case, and for the local authority to keep him up to date with what is happening.
  • 16. FINAL CONSIDERATIONS  NOTE: It is important to be aware of timeframes. Clearly, the less notice given for a disputed placement move the fewer remaining options there are likely to be for achieving a positive outcome for the child.  Consider each of your options carefully – If in doubt ASK OCRD!!