Some factors concerned with the understanding of unregistered and unregulated settings – January 2020

NCERCC briefing January 2020 (next update February 2020)

Contents

• Some factors concerned with the understanding of unregistered and unregulated settings
• Appendix A Learning from history re registration and regulation of children’s residential care
• Appendix B Practice Guidance: Placements in unregistered children’s homes in England or unregistered care home services in Wales (issued by Sir Andrew McFarlane President of the Family Division 12 November 2019)

Introduction

The situation is more complex than is often presented with interrelated factors.

Understanding unregulated settings requires more detail and evidence than currently available. The history of, and the role and task both operationally and culturally of unregulated settings has to be understood.

Sophistication not simplification is required.

It is not solely about placements.

The need to understand the stage of psycho-social development and functioning of the group(s) of young people

There is the need to appreciate the effects of maltreatment upon young people 15+.[1] Approaching this group in terms of chronological age leads to overestimation of capacities for self-care. Research shows this group are perceived as less at risk, more resilient, less believable, more culpable, a view perhaps resulting from chronological expectation of the population of young people generally. This affects how agencies understand, perceive, and respond to neglected and maltreated young teenagers. Rather than care the thinking is of providing support.

Various other research indicates that a key factor is a lesser ability to make and sustain relationships than the population of young people generally.[2]

Some of this group of young people may benefit from support. Certainly some of the group require care.

Neither regulation nor pursuing a contract or licence addresses these factors.

Policy and available funding have meant that social care is struggling to meet emerging needs; CSE, gangs, County Lines, Violence, mental health.

Need has outstripped the development of practice and services.

LA services have been reduced. Marketisation has not been able to produce a sufficient response.

There is a lack of early intervention in teenage years, safeguarding takes a different focus, as do care, accommodation and mental health services. The research of Bywaters et al shows that the current rapid trajectory to statutory intervention of some young people who have been receiving family and community supports rather than something more intensive as would meet their needs. This leads to the numbers arriving in crisis escalating, with needs in excess of most fostering.

There is a lack of suitable fostering and residential child care.

Neither regulation nor pursuing a contract or licence addresses these factors.

Right place, right time, right child through evidenced assessment 

Rather the understanding should be based in an assessed, using an evidenced assessment or profiling tool (CANS) to gain insight into developmental/ psychological functioning upon which a decision about placement could be made more securely.

Neither regulation nor pursuing a contract or licence addresses these factors.

Policy has not appreciated the needs of these groups of young people

Overall there is a shortfall in understanding and provision for such young people.  There is a lack of expertise, services, and resources for high level needs. The numbers are small and the cost of such services is seen as expensive rather than intensive.

It is to be noted that England already has a smaller social ecology of placements than in Europe. It is often stated that we do not have the placements we need. The reasons are multi-factorial and not solely within providers or LAs but at policy and funding levels.

Neither regulation nor pursuing a contract or licence addresses these factors.

Examples of needs shared with an APPG inquiry in 2019 included:

• a ‘17 year old with mental health problems, susceptible to exploitation, was placed in unregulated accommodation alongside another 17 year old male linked with a London gang and known for carrying weapons’.
• ‘a child who had been sexually exploited and then housed alongside a perpetrator of CSE’
• ‘children are often sharing the placement with adults who have addiction issues, are known to the police for criminal offences, and/or experiencing severe mental health difficulties’.

Regulation would be clear on the inappropriateness of these situations

What are the numbers?

2790 Looked after children in unregulated accommodation at 31 March 2019

5020 Looked after children aged 16-18 in unregulated accommodation in 2018

Compared to 2014

• 53 % increase in the number of looked after children living in unregulated
• 97 % increase in the number of children living in unregulated accommodation outside their home local authority

All children under 18 in unregulated accommodation in 2018

• 5020 looked after children
• 3960 care leavers
• 100 under 16 on any given night
• + ? homeless young people

The numbers and needs are of the order that require intervention

The current regulations and regulatory activity have not been able to extend to incorporate the group of young people in unregulated settings.

As the needs are outside of the vision of legislation and policy so they are also of regulated vision; the role of regulator does not extend outside of registered and regulated provision. Additionally the funding of the regulator does not extend to allow attention to this group unless there is an unregulated setting that is thought should be registered and regulated. In the past year Ofsted have had over a hundred such settings brought to their attention, some have not needed to register as providing only support, some have needed registering, some have closed. There have been no prosecutions in the same way that illegal schools have faced.

Pursuing registration and regulation is indicated as necessary only then followed by a contract.

The current legislation does not make it illegal for a LA to make an unregulated placements but it is illegal for a provider to provide one.

The November 2019 Practice Guidance: Placements in unregistered children’s homes in England or unregistered care home services in Wales issued by Sir Andrew McFarlane President of the Family Division has an accurate understanding of the needs of the young people as high level. It responds by observing that where application is made to the High Court under its inherent jurisdiction to authorise the deprivation of liberty of a child, it is highly likely the place at which the child is to be accommodated will meet the definition of a children’s home

Registration of the placement is expected. If the home is not registered an application must be made.

The Court will review the situation regarding the registration status of those carrying on and managing the children’s home or care home service in a further 12 weeks.

In the meantime the local authority must assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child.

At 12 weeks the court will take this into account when deciding whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests.

As a result of this guidance a young person may be accommodated in unregistered and unregulated accommodation potentially for 12 weeks.

In relation resolving the issue, they are inoperable and leave the situation for young people unamended from the current one over which concerns have been expressed and the call for regulation made explicit as the only way of progressing the rights of children.

Pursuing registration and regulation is indicated as necessary only then followed by a contract.

The ‘flexibility’ of unregulated settings and its critique

It has been noted LAs refer to the ‘flexibility’ of using unregulated settings.

The diversity of the children’s homes and fostering provision shows flexibility is possible and present. There is a range of responses. Equally there is clearly provision needed that it not present.

The argument regarding flexibility diverts important attention from this wider and deeper questioning.

Taking a seemingly pragmatic solution of licencing and contracting does not seem to address the current situation. Neither regulation nor licencing/contracting.

The availability of places requires there are vacancies or that places and people can be sourced rapidly.

Such places and people rarely have any culture or relationship and the focus is short term. Continuous employment may not be present. Over decades other factors such as training have also been found to be less than for a regulated sector.

Culture, clarity of purpose and training are key aspects of the potential to meet need and provide a secure emotional base.

The desired ‘flexibility’ is achieved only by a set of operational factors that would not be permitted in a regulated setting.

These could be addressed by both regulation and licencing/contracting.

Many unregulated placements are made in an unplanned way.

This suggests a lack of prior involvement with the young person before the crisis, or the need is the result of a crisis being experienced by a provider being unable to carry on meeting the needs of the young person.

These are practice matters can be addressed by policy directing practice, though there is little that has not been written on this matter before.

This will not be resolved by licencing/contracting and procurement.

Recent LA actions seeking to ‘regularise the unregulated’ through contracts or licencing have not been successful and resulted in insufficient supply.

The recent evidence of such actions has been ineffective, only a small % of current semi/supported accommodation were successful in getting on to frameworks even if they were very limited and low thresholds.

Licencing/contracting does not seem to address the situation.

It is possible a licence/contract approach will lead to a migration of providers from providing regulated provision.

Implications of any action need to be thoroughly considered so as not to exacerbate the current shortfall.

A licencing/contracting approach can be seen to undercut regulation and regulated provision

Potential for licencing/contracting to bring back LA Registration and Inspection Units, a situation that existed pre-2000 Care Standards Act.

Inconsistency across the country and the lack of separation of registration, inspection and procurement were key factors leading to the Care Standards Act.

The Registration and Inspection units provided by the LAs were not seen as providing adequate quality assurance, or separation of role and task

This is explored in the companion NCERCC Briefing ‘Learning from history re registration and regulation of children’s residential care’. The historical overview shows that the move to Standards came after decades of advocacy to address very similar issues that are used to describe the current unregistered and unregulated settings. Parliamentary prevarication has been ended, with Standards, Regulations and regulatory activity being seen as a confirmed method.

Regulatory activity by a national regulator is a factor in sustaining practice and continuously improving through the ‘raising of the bar.’ It was only on the basis of a national regulator and its activity that LAs could base their evaluation of ‘Only Good is good enough.’ The national evaluation of what is seen as Good is important and cannot be open to the influence of local interpretation.

There is Parliamentary commitment to Standards and regulatory activity. It has been possible through having a national inspectorate to provide some assurance of consistency of method and those involved as inspectors. Both are open to local influence under licencing/contracting.

Regulation has strengths and consistency not possible in local licencing/contracting

The role of the regulator as an agency of improvement.

This is an example of the necessity of wider and deeper thinking.

The quality of care is all important. The Quality Standards are designed to produce the delivery of quality care which is inspected as a quality assurance and safeguarding by the regulator, Ofsted.

Regulation requires a level of practice is achieved and delivered, and that this is monitored internally and inspected externally.

The best providers invest in professional development.

There is a need to link regulatory activity to direct care for children. The regulator could be an improvement agent identifying and sharing good practice as well as spotlighting areas that would benefit from development. Currently and annually Ofsted and providers are able to look at regulations that are met least effectively

Previous to the Care Standards Act the sector benefitted from the Residential Support Force. National Care Standards (National Minimum Standards) were implemented with NCERCC providing support and improvement, funded by the Government. This is a task NCERCC is returning unfunded by the Government.

A national organisation is more able to deliver consistent good practice development than locally.

Regulations and licencing/contracting both require support for practice to be provided.

It is possible to amend the Regulations through Parliament procedure not requiring legislation

It has been remarked that Government is not minded to make legislation. On this basis the argument is that a LA can create a licence and contract easily.

Legislation is not required.

Through Parliamentary procedure it is possible to amend regulations

Both regulation and licencing/contracting are possible. The decision is regarding the efficacy of each. 

There is an underdeveloped understanding of the role of the LAs in creating and sustaining unregulated provision.

Without placements being sought it would not be provided.

The current focus is solely, the providers. Markets require demand, the role and work of the LAs has not been adequately identified or included. There is a strong view amongst informed analysts and commentators that the children’s placements sector is a monopsony with the position of the LA being dominant.

At least, in this light, the failure to secure places and prices needs to be considered both from supply and demand viewpoints.

It can be seen that unregulated settings are not because of a shortfall in regulated provision, though that is a factor.  It is not solely the ‘fault’ of providers. The active role of the LA creating and sustaining the provision has to be included in any inclusive representation of the situation.

 

Regulation and licencing/contracting are both involved

The current Sufficiency duty is inadequate for the purpose it now needs to perform and needs to be rewritten.

LA Sufficiency statements are often descriptive rather than analytic. The need for policy to insist on an audit of needs that will lead to the planning locally, sub-regionally, regionally, and nationally, could enable us to we know what we need where we need it.

Regulation of LAs is required rather than regulation or licencing/contracting of providers

Sufficiency = surplus

It can be seen from this discussion that any sufficiency must include a surplus of available placements. One of the reasons for the current situation of placements having to be made on the basis of availability at distance is because of the leanness of provision.

Voids will need to be included in the costings and this will affect the view of VFM. This may be offset by the occupancy on many providers rising, and matching, and on this basis there may be a marginal reduction in fee

Any move to a registration and regulation, whether with Ofsted or LA, will require the situation of a service now needing to introduce voids into the costs. Voids have to be covered and add to the costings for such placements.

Neither regulation nor pursuing a contract or licence addresses these factors.

The need to define the term ‘children’s home’ accurately

Importantly the term children’s home as currently used in legislation includes semi/supported and other arrangements.

The term should only be used for registered and regulated children’s homes.

If this threshold is not achieved then it is not a children’s home.

There is the need for regulation that will enable then correct licencing and contracting

Undoubtedly what is being identified is the need for more provision. There are 4 aspects that are to be addressed

1. An audit of needs, levels, numbers along with an audit of provision and a gap analysis.
2. A nationally applied evidenced assessment and profile of needs
3. A sustainable Investment vehicle. Unregulated provision has been invested in by providers and LAs when procuring the places. If there is to be a change then what is the investment vehicle? There is a discussion over profit making providers, but LA residential provision is evidenced as costing more when calculated like for like.
4. Workforce – we have a shortfall of RCCWs/RMs/SWs/Psychs of all sorts. Where will we source the workforce for more provision?
5. Regulation – currently it is perceived as inhibiting the admission of the high level needs and risks.

Regulation precedes licencing/contracting but not on its own.

Looking closely, the legal framework does not provide for support without care being present

If we separate support we accept a group of young people are not being cared for. This places it outside the legislation as well as ethics.

That it can happen relates to the factors re maltreatment above.

Annex A of the Ofsted Introduction to CH is an important document.

Licencing/contracting requires regulation first.

Looking again at the ‘new normal’

S22 of the 1989 Act is relevant.

The 1989 Act included ‘other arrangements’ of use in exceptional circumstances. There appears to be a ‘new normal’ as 73% of 16-18 year olds have semi/supported accommodation.

If we understand support requires care then the numbers requiring care are more.

If we understand exceptional use was expected then we have to critique current practice that has resulted in something unexpected occurring.

The numbers requiring support only are lower if we have young people who should be in care, and therefore, regulated settings.

Regulation precedes licencing/contracting.

There is an increase in the number of placements made not number of placements.

This requires we acknowledge the care system systematically makes and breaks relationships.

This runs counter to regulations and is a result of commissioning/procurement driving placement making.

The position in Scotland is that there are no unregistered and unregulated  placements possible.

It is possible to achieve regulation on a national basis. This directs the form of licencing/contracting.

Any change in England on this matter will bring implications for Scotland

The interrelatedness of this issue is manifold. This briefing shows the necessity for a full awareness of all factors before making any decisions.

Preliminary research has brought the following information for consideration.

1. We do not know the reasons, other than availability, as to why young people not gaining a placement in England can find a placement in Scotland.

 

It may be important to know the reasons.

 

2. What are the needs and the level?

 

An audit of need along with ages, provision, gaps etc would be necessary.

3. Do we know how many placements are made into Scotland?

There is no total available figure on the overall number of placements of English young people in Scottish-based provision. In Scotland there is a requirement for local authorities to notify each other if they are placing looked after young people in their area with other providers. However there is no requirement on English authorities to notify Scottish host authorities, and no requirement on independent providers to do so.

It might be that DfE have such data?

There are several independent (English-based, Scottish-registered, providers tending to have facilities in the south of Scotland – Scottish Borders and Dumfries and Galloway primarily. Often these provisions will be in rural areas, aimed at young people with more complex needs.

4. Are the fees commensurate with those in England?

Uncorroborated data suggests so.

5. What other issues does cross Border placement bring?

It is reported that there is added pressure to mainstream or specialist education, and health support. Between Scottish authorities there is often an agreed reciprocity – however there is generally no reciprocal benefit for Scottish authorities placing young people south of the Border.

6. Are there any regulatory activity factors that make high level needs placements possible in Scotland but not England?

Unknown. It may be availability as is the case with secure care.

7. How will future trends on Scottish care affect matters?

In Scotland there is general drive towards achieving a ‘balance of care’ moving more towards foster care and particularly kinship care, with less use of residential child care. This means independent children’s homes providers will be less used, placements will become available, and empty beds will reduce reduced income, so commercial decisions may inform whether to accept referrals from English LA’s.

Any reduction in English placements into Scottish independent children’s homes could be destabilising for that sector. This is a similar consequence of that could follow moves to more local/regional placements.

The complexity, interrelatedness and implications of any decisions and activity need to be considered widely and deeply. Data and analysis must precede any decision. Modelling is essential. An action plan over some years will be necessary.

Proposals for regulations

• Specific regulations for other arrangements
• CH regs schedule as for short breaks/ SCHs
• Explicit right to advocacy during preparation of a placement plan
• Secretary of State to have a sufficiency duty in respect of children’s accommodation ( need analysis etc)

Conclusions

We should be starting from providing a secure base for children not systematically making and breaking relationships as the rising numbers of 3+ and %+ indicates.

Neither regulation nor licencing/contracting moves the current situation to the above.  However it is not tenable to do nothing.

Overall the evaluation of the evidence is that regulation should precede licencing/contracting.

The seeming attraction of licencing/contracting does not have the authority to address the issues arising. The attractive pragmatism may prove to be cosmetic.

Regulation is required to provide the structure for the next stage of contracting. Regulation has proven able to sustain practice and through regulatory activity changes demand steady yet continuous improvement through the raising of the bar we have seen in children’s homes inspections

Achievable actions

Short term

An achievable first step that could happen in weeks is an extension of legislation.

Medium term

3 essential steps

1. National needs analysis, levels and numbers
2. Provision map
3. Gap analysis

Contract based on regulations.

Long term

A strategy for placements based on evidence of levels of needs and numbers plans responses locally, sub-regionally, regionally, and nationally, and that has a support and development agency funded.

Appendix A

Learning from history re registration and regulation of children’s residential care.

There may be few involved with the issue who were involved with social work and residential child care prior to 1989 and the Children Act[3].

The matter has been raised repeatedly in Parliament.

The history of the matter is instructive as it reveals that the same issues.

The following are extracts from debates that illustrate the concerns.

Lessons that can be drawn

• There have been many reviews, reports stretching back to 1950
• Consideration of the issue has been protracted and unresolved inside and outside of Parliament
• Progress has been incremental as omissions have been identified
• These omissions arise as informality or lesser scrutiny than registration and regulation has been promoted
• Local registration and inspection has proven not to be a solution
• ‘The arrangements were not sufficient, and ‘children placed in such homes do not enjoy the additional protection that registration and regular inspection provide’.
• Legislation regarding regulation is resisted
• Yet successive Governments have taken the stance ven issuing circulars with notes of guidance on appropriate standards. That guidance reminded local authorities that inquiries into standards should treat the placement as if it were in a larger home. It stated that the Department of Health did not intend the standard of care to be lower than in a larger home.
• In that case, why not regulate for registration, and in so doing provide for regular independent inspection to ensure that those… standards are adhered to?’ (Hansard op cit)

In the discussion of the Registration of children’s homes Bill Third reading  Hansard (HC Deb 02 April 1982 vol 21 cc614- https://api.parliament.uk/historic-hansard/commons/1982/apr/02/registration-of-childrens-homes)  the immediate history was made known. ‘It is more than a decade since a working party was set up to consider the registration of all residential homes. Successive Governments, including this Government … have been waiting for an opportunity to legislate. In 1972 there were some very disturbing accounts about conditions in a number of private children’s homes, which worried us all. In 1974 the working party reported in favour of a registration scheme for children’s homes’.

‘The necessary consultations with the local authority associations and with the professional bodies concerned were then put in hand. By 1978 agreement on the broad details of a system of registration and of control had been reached. The problem both then and subsequently has been to find space for this desirable measure within the tight legislative timetable’.

The accommodation of children in care was governed by the Child Care Act 1980. Under Section 74 of the 1980 Act enabled the authorisation of the inspection of all premises where children in care are accommodated, and of the children themselves.

However, there was not the power where conditions were unsatisfactory to require changes of any sort, to require the removal of children or prevent further admissions.

The remedy was proposed by the giving of powers of monitoring and inspection of the standards of the home as a whole not to Government but to local authorities.

The ‘responsibility to act in the place of the child’s parents, and preserve his or her individuality and meet each child’s individual needs is an essential role. But in future the Bill will provide an additional safeguard, by ensuring that the home meets standards to be drawn up covering the facilities it provides, levels of staffing and the quality and conduct of care, and at all times promotes the children’s welfare’.

The Bill was unsuccessful, though having been agreed on the nod twice. The debate in the HoC concluded as follows (The Under-Secretary of State for Health and Social Security (Mr. Geoffrey Finsberg) ‘the registration of a home will, I hope, rarely need to be used. By informal, as well as formal contact and discussion with the staff of a home, standards can be influenced and the quality of care can be improved and maintained. [Hon Members: “Shabby.”]

The 1989 Children Act required the registration and inspection of children’s homes.

However in 1994 Ann Coffey introduced the Registration of small homes Bill (Hansard HC Deb 02 February 1994 vol 236 cc895-6895 )‘to provide for the registration of a children’s home where accommodation is provided for one or more children, and for connected purposes’. The point was made that ‘the arrangements were not sufficient, and that ‘children placed in such homes do not enjoy the additional protection that registration and regular inspection provide.’

In the debate it was explained that The Children Act 1989 brought requirements for private children’s homes that accommodate four or more children to register with local authorities and be regularly inspected by the local authority.  There were local authority registration and inspection units established.

Homes with 3 or fewer children did not need to be registered.

The concerns continued as to the ‘monitoring their standards of care or quality, because there is no requirement to register’ and ‘no means of enforcing a consistent minimum standard of care.’

An SSI study into NW homes observed  high levels of need, insufficient training, high turnover, concerns regarding recruitment.

‘There was evidence that proprietors were operating with fewer than four children to evade the stringencies of registration, particularly in relation to fire safety’. (Hansard op cit)

‘The agencies concerned had clearly moved into providing services in unregistered homes because it had been simpler to set them up than to go through the process of registration’. Hansard op cit).

‘Nor can local authorities escape their responsibilities in this matter. The SSI report said that difficult-to-place children, in crisis at the time of the placement, were placed in unregistered homes—an “any port in a storm” approach —at a cost of £500 to £1,500 per week’. (Hansard op cit).

An SSI study concluded that there was a need to ensure that the Arrangements for the Placement of Children (General) Regulations 1991 and the Review of Children’s Cases Regulations 1991 were applied as required.

A Department of Health Circular was issued to local authorities with notes of guidance on appropriate standards. That guidance reminded local authorities that inquiries into standards should treat the placement as if it were in a larger home. It stated that the Department of Health did not intend the standard of care to be lower than in a larger home.

The conclusion was drawn, ‘In that case, why not regulate for registration, and in so doing provide for regular independent inspection to ensure that those minimal standards are adhered to?’ (Hansard op cit)

It was not until the Care Standards Act 200 that small private children’s homes which accommodate fewer than four children were required to register and be inspected.

Appendix B

Practice Guidance: Placements in unregistered children’s homes in England or unregistered care home services in Wales

Guidance issued by Sir Andrew McFarlane President of the Family Division

12 November 2019

https://www.judiciary.uk/wp-content/uploads/2019/11/PG-Placements-in-unregistered-childrens-homes-in-Eng-or-unregistered-care-home-services-in-Wales-NOV-2019.pdf

• The setting out of the understanding of the needs of the young people is accurate
• Where application is made to the High Court under its inherent jurisdiction to authorise the deprivation of liberty of a child, it is highly likely the place at which the child is to be accommodated will meet the definition of a children’s home ..
• Registration of the placement is expected. If the home is not registered an application must be made. .
• The Court will review the situation regarding the registration status of those carrying on and managing the children’s home or care home service in a further 12 weeks.
• In the meantime the local authority must assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child.
• At 12 weeks the court will take this into account when deciding whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests.

Learning

• These requirements and timescales are unable to be met by Ofsted.
• In relation to the young person they are left in unregistered and unregulated accommodation potentially for 12 weeks.
• In relation resolving the issue, they are inoperable and leave the situation for young people unamended from the current one over which concerns have been expressed and the call for regulation made explicit as the only way of progressing the rights of children.

Extracts from the document

1. The number of applications made for a court in family proceedings to authorise a residential placement of a young person in circumstances where their liberty may be restricted has increased markedly in recent times. Often the court is invited to exercise its inherent jurisdiction to approve a particular placement at an ‘urgent’ hearing… The primary focus of this Guidance is to ensure that, where a court authorises placement in an unregistered unit, steps are immediately taken by those operating the unit to apply for registration (if the unit requires registration) so that the placement will become regulated within the statutory scheme as soon as possible. The Guidance requires the court to monitor the progress of the application for registration and, if registration is not achieved, to review its continued approval of the child’s placement in an unregistered unit
2. Where application is made to the High Court under its inherent jurisdiction to authorise the deprivation of liberty of a child, it is highly likely the place at which the child is to be accommodated will meet the definition of a children’s home ..

Best practice

Confirmation of Registration Status

14. When making an application to the court for an order under its inherent jurisdiction to authorise the deprivation of the liberty of a child, the applicant should make the court explicitly aware of the registration status of those providing or seeking to provide the care and accommodation for the child.

Not registered: Is registration required?

16. If those providing, carrying on and managing the service are not registered, this must be made clear to the court. The Court should be made aware of the reasons why registration is not required or the reasons for the delay in seeking registration. Registration may not be required because the provision falls within the terms of “unregulated provision” such as supported living which falls outside Ofsted and CIW’s scope of registration, or that a statutory exemption applies (Note 2 2 It must be noted that the exemption from registration found in regulation 3(2) of the Children’s Homes (England) Regulations 2015 is very unlikely to be applicable in situations where an order is being sought under the Court’s inherent jurisdiction.) In such cases the applicant must make the court aware of the steps it is taking (in the absence of the provision falling within Ofsted or CIW’s scope of registration) to ensure that the premises and support being provided are safe and suitable for the child accommodated . If care rather than support is being provided, then the provision is likely to require registration as a children’s home. (Note 4 For guidance on how ‘care’ is distinguished from ‘support’ in England refer to Ofsted’s Introduction to Children’s Homes: a children’s social care guide to registration July 2018, Annex A (page 12). For Wales, refer to CIW’s registration guidance, Regulation and Inspection of Social Care (Wales) Act 2016 – Registration Guidance (Annex 1 page 32)).

If registration is required: Next steps

17. Due to the vulnerability of the children likely to be subject to an order authorising a deprivation of their liberty, when a child is to be provided with care and accommodation in an unregistered children’s home or unregistered care home service the court will need to be satisfied that steps are being taken to apply for the necessary registration. The court will wish to assure itself the provider of the service has confirmed they can meet the needs of the child. In addition, the court will need to be informed by the local authority of the steps the local authority is taking in the meantime to assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child.
18. Where an application for registration has been submitted to Ofsted or CIW, the court should be made aware of the exact status of that application.

Court to monitor application for registration and review placement

These requirements and timescales are unable to be met by Ofsted. As such they are inoperable and leave the situation for young people unamended from the current one over which concerns have been expressed and the call for regulation made explicit as the only way of progressing the rights of children.

19. If an order is granted and no application for registration has been made, then the court order should provide that the application for registration should be submitted to Ofsted or CIW within 7 working days from the date of the order. The provider must ensure that application to Ofsted or CIW for registration is complete. Providers should refer to the Ofsted or CIW guidance on applications for registration. The court will need to be advised by the local authority within 10 working days of the order being made that the application for registration has been received by Ofsted or CIW, confirmed as complete, the necessary fee paid where applicable and is capable of determination by Ofsted or CIW.
20. Once the court is satisfied that a complete application has been received by Ofsted or CIW, the court will review the situation regarding the registration status of those carrying on and managing the children’s home or care home service in a further 12 weeks. Such review (which may be on paper) will be in addition to any review the court requires to ascertain whether the deprivation of liberty should continue. If the court has not received confirmation from the local authority within 10 working days of the initial order that a complete application for registration has been received by Ofsted or CIW, the court should list the matter for a further immediate hearing.
21. If registration is refused or the applications for registration are withdrawn, the local authority should advise the court of this as a matter of urgency. The court will take this into account when deciding whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests.

.

 

[1] https://www.york.ac.uk/inst/spru/research/pdf/NeglectMatters.pdf

© NCERCC owns the copyright and publishing rights to this report. hello@ncercc.co.uk.

Disclaimer: Though every care has been taken to ensure accuracy of the material contained, liability can be accepted for errors or omissions

[2] https://pure.york.ac.uk/portal/en/publications/inhome-support-or-out-of-home-care-thresholds-for-intervention-with-abused-and-neglected-children(5abef952-bd9c-43b3-b4f9-751fb8e53a7d).html

[3] The matter has been given attention much longer Children’s Homes (Inspection)

25 May 1950 Volume 475 https://hansard.parliament.uk/Commons/1950-05-25/debates/5d582416-4cf5-4df5-9f96-98c58b8096e4/ChildrenSHomes(Inspection)