This chapter is based on statutory guidance for local authorities on children who lose their looked-after status when remanded or sentenced to custody. (See, GOV.UK, Children Act 1989: former looked-after children in custody).RELATED CHAPTER
In June 2019, this chapter was updated in relation to the role of the Youth Custody Service when placing young people in custody, see Section 3.8, How to Request a Transfer or Placement Review.
Some young people may cease to be Looked After when they are convicted and receive a custodial sentence (see Changes to Care Status as a Result of Criminal Justice Decisions, 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 detention or Youth Detention Accommodation.Local authorities still have responsibilities towards these children and young people, however these responsibilities will apply differently depending on whether or not the young person is Relevant and entitled to support as care leaver.
If the young person 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 young person retains responsibility for providing support during their time in custody and on release.
Some young people, including young people who become looked after 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 looked after 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 young people in custody throughout their sentence, allocate a Personal Adviser and work with the young person 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 young person's social worker should ensure that the relevant YOT case manager is made aware of their status as Relevant.For further information, see Leaving Care and Transition Procedure.
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 Looked After for less than 13 weeks since the age of 14 (perhaps because they only became looked after when remanded into local authority accommodation immediately prior to sentence).
In this situation, the responsible local authority must appoint a representative to visit the young person to assess their needs.
The representative must make recommendations about any appropriate advice, support and assistance needed by the young person, including where necessary arranging for their accommodation on release, which might involve planning for them to be Looked After again.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.
If the social worker has not attended Court, the responsible YOT should notify the local authority about the details of the young person's sentence and about where they have been detained.
The local authority must appoint a representative to visit the young person. This should be a qualified social worker employed by the authority, usually the social worker or Personal Adviser who was allocated to the young person's case and was responsible for maintaining the Care Plan / Pathway Plan or Detention Placement Plan before they were sentenced. There may be some circumstances where it would be appropriate for a residential care worker or a foster carer familiar to the young person might be appropriate to carry out this role. (The term 'social worker' is used here). The role must not be fulfilled by a YOT worker.
The local authority should also inform the young person's Independent Reviewing Officer (IRO) of their placement in custody and the name of the appointed representative.
Within 5 working days of the young person being sentenced, the local authority should provide information to the custodial establishment by contacting the offender supervisor based in the YOI, or equivalent post in the Secure Training Centre or Secure Children's Home, to inform them of:
They should seek information from the secure establishment about how the young person has settled in and agree arrangements for them to visit the young person.
The social worker must visit the young person 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 young person in private unless the young person, 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 young person's age and understanding.
The social worker must also visit when reasonably requested to do so by the young person; a member of staff of the establishment where the young person is detained; the young person's parent(s) or person with Parental Responsibility; or the relevant YOT case manager.
The purpose of the initial visit is to complete an assessment of the young person's needs whilst in custody and on release. This will take into account previous assessments that have informed the young person's Care Plan or Detention Placement Plan and any new information from the assessments undertaken by the YOT or custodial establishment. The assessment should be based on the format for Assessments provided by the Working Together to Safeguard Children.
The assessment should consider the following issues:
The young person's wishes and feelings on these matters must be sought. The assessment must also take into account the views of the young person'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 young person'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 young person's case, that social worker's views should also be sought.
The assessment should be completed within 20 working days of the young person 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 young person will need whilst in custody and on release.
The following information must be included in the assessment:
The recommendations should include proposals as to the future involvement of the local authority, for example whether visits should be maintained whilst the young person remains in custody and on release. If parents are unavailable or otherwise unable to exercise their Parental Responsibility by providing the young person with support whilst in custody, the young person will require ongoing visits, support and practical help from the local authority whilst in custody as a Child in Need.
Options for the young person on release will be as follows:
A copy of the report must be given to:
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 young person 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 young person, it will be necessary to consult the YOT case manager and YOT manager; and also desirable to consult with the young person'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 young person'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 young person's support in future should be sent to:
Where the local authority has decided that it will not be providing any continuing support, the designated manager must inform the young person, their parents and others with Parental Responsibility; the young person's case manager in the YOT; and the Governor or manager of the custodial establishment.
Where it has been agreed that the young person will need ongoing support from the local authority, either whilst they are in custody or following release, or that the young person will need to become Looked After again, arrangements should be made to maintain contact with the young person whilst they remain in custody.
Whilst the young person remains in custody, where appropriate, they should be visited in the same way as any other Looked After young person. That is, visits taking place at intervals of not more than 6 weeks for the first year and not more than 3 months after that. Additional visits should also take place if reasonably requested by the young person, the establishment or the YOT 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 young person's remand or 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.
Where young people are serving long sentences, this may involve the formerly responsible authority negotiating with the YOT and Probation Providers about the young person's release plan in adulthood. These services will need to be advised about whether in future the young person will be eligible for leaving care services. The Youth Custody Service (YCS) Placement Team has additional responsibility for planning for young people on long sentences and the local authority should inform them of their involvement and intentions.
If young people 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 YOT to the Probation Providers.
Where there are concerns that the young person is not being safeguarded or their welfare promoted (for example, relating to the quality of care the young person 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.
Where issues cannot be resolved at establishment level, and if the responsible authority is of the view that the young person needs to be moved to another establishment, see Section 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.
YOTs can ask for one if they are responsible for a child or young person and:
To request a transfer, the YOT should read the Placement Review Guidance and then:
Other people can ask for a transfer but only the YOT 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.
The local authority must be involved in plans for release where the plan is for the young person to be Looked After again or for them to be provided with support in the community from Children's Social Care, and if the young person is being considered for early release or home curfew detention, particularly with regard to the young person'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 young person to be granted Release on Temporary Licence (ROTL) or Mobility to allow outside visits to take place, subject to relevant agreements.As soon as possible and, ideally, no later than 14 days before release, the young person must know:
It is essential that there is clarity about who is responsible for each element of the young person's plan and the arrangements for communication and enforcement. The local authority should record this plan and make copies available to the young person, the supervising YOT officer, IRO, the establishment, other agencies that will be involved with supporting the young person after release and the young person's family, if appropriate.
Sentenced young people returning to the community will continue to be supervised by the YOT. Where the local authority has agreed to support the young person on release, the social worker will work alongside the YOT case manager during the period of supervision. The function of the social worker, that is to plan for the young person's care or for their support in the community, and is different and more extensive than that of the YOT case manager.
It is good practice to have some joint appointments with the young person, supervising YOT officer and social worker, so that information is shared. The YOT should consult the local authority over enforcement issues, particularly if there is a possibility of the young person being returned to custody for breach of the conditions of their Notice of Supervision/Licence. Where the young person is having difficulty in complying with their conditions, the local authority should work with the YOT to put additional support in place. The social worker and supervising YOT officer should keep each other informed of significant events, including any changes in service delivery or plans.
Where the young person becomes Looked After, 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 young person committing further offences in future.
Only valid for 48hrs