Click to access the Children Act 1989 [opens in new window].
The Children Act remains an important piece of legislation and one that is particularly relevant to the work of YOTs. The Children Act applies to children and young people in custody and the secure estate as well as to children and young people living in the community.
Social services’ duties to vulnerable children in need
Under the terms of section 17 of the Act, every child under the age of 18 is entitled to a full assessment of his/her needs and, if approached, social services have a legal duty to carry out this assessment and can be challenged if they fail to respond to any request for a section 17 child-in-need assessment.
There is case law to support challenges in respect of failing to undertake child-in-need assessments and the following may be useful.
- R v Stewart v Hammersmith and Fulham, Wandsworth and Lambeth LBC (Sept. 2001)
- R v London Borough of Tower Hamlets ex parte Bradford QBD 13.1.97
In both cases local authorities were found to have been in breach of their duty to undertake child-in-need assessments and failure to consider housing need as part of the assessment process.
Further duties on social services under the Act
Section 17 places a general duty on social services to safeguard and promote the welfare of children ‘in need’ living in the area and to ensure appropriate services are provided for those children. Social services do not have any right to opt out of this requirement or any other part of the Act on the grounds that they do not have resources. The term ‘in need’ is not tightly defined in the legislation, but left open to reinforce preventative services and support for families.
A child is defined as being in need under the Act if:
- s/he is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health and development without the provision of services by a local authority under this part of the Act
- his/her health or development is likely to be significantly impaired or further impaired, without the provision of such services
- s/he is disabled.
Social services may provide services themselves or facilitate others to provide the services that are required. Assistance may be given in kind or (in exceptional circumstances) cash. When considering what assistance to provide to a child or young person, social services must have regard to the financial and others means of the child and his/her family.
Sections 20/21 impose a duty and a power on social services to provide accommodation for:
- any child in need who is lost/abandoned/without carer or person with parental responsibility. This includes any child whose carer is prevented from caring for him/her either permanently or temporarily
- any child aged 16 or over whose welfare may be seriously prejudiced without accommodation. If a 16 to 17-year-old is intentionally homeless/sleeping rough/at risk of custody/reoffending their welfare is likely to be seriously prejudiced without the provision of accommodation and as such social services should be called upon to provide accommodation under this section and challenged if they provide a negative response
- any child in the area where to do so will safeguard the child’s welfare. This clause is applicable regardless of whether there is anyone with parent responsibility. An example of this may be if a young person is at risk of violence in the family home and their welfare will be safeguarded by a move elsewhere
- any child subject to police protection/detention or remand under the terms of the Police and Criminal Evidence Act 1984 and the Children and Young Persons Act 1969.
Section 27 poses a duty of co-operation on other statutory agencies in the discharge of all duties under the Act. If social services do not have the resources available to respond under the terms of the Act then they should call on other statutory agencies for assistance.
Under Section 20 social services have a duty to ascertain and consider the child’s wishes in respect of any accommodation that is offered.
It can be argued that all young people who offend or at risk of offending meet these criteria and should therefore be considered a vulnerable children in need. In reality this does not happen and YOTs must seek to develop protocols and local working agreements to ensure that young people are able to access the services they are entitled to under the Act. Social services may have local thresholds in place that act as a barrier to young offenders trying to access their services and it is appropriate for YOTs to challenge these polices and practices.