This chapter is based on statutory guidance for local authorities on children who lose their looked-after status when remanded or sentenced to custody, Children Act 1989: former looked-after children in custody.
This chapter was updated in April 2021 to reflect the publication Joint Housing Protocols for Care Leavers: good practice advice, Section 2.6 Care leavers leaving custody (DfE and MHCLG) (see Section 3.9, Planning for Release).
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 accommodation or Youth Detention Accommodation.Local authorities still have responsibilities towards these children and young people, however these responsibilities will differ depending on whether or not the young person is Relevant and entitled to support as a care leaver.
2. 'Relevant' Young People in Custody
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.
3. Young People in Custody who are not 'Relevant'
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.
3.1 Notification and Visiting
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 circumstances where it would be appropriate for a residential care worker or a foster carer familiar to the young person might 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 five 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:
- The young person's previous care status;
- Persons with Parental Responsibility for the young person;
- The name and contact details of the social worker and team manager;
- Any immediate information necessary to ensure the young person's safety;
- Relevant information about the young person's family/carers and contact arrangements;
- Relevant information about the young person's needs that will enhance the establishment's ability to care for the young person, especially in responding to the young person's health and education needs;
- The date when the social worker will be visiting the young person.
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.
3.2 Timing of visits
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.
3.3 Assessment and planning process
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 in Working Together to Safeguard Children.The assessment should consider the following issues:
- Is there a risk of self harm?
- What is the young person's emotional state?
- Does the young person need money, clothes, books or other practical support?
- Are education staff aware of, and able to meet, the young person's educational needs, including any special needs or abilities?
- Are the health unit and wing staff aware of, and able to meet, the young person's health needs?
- Are staff aware of, and able to meet, the young person's religious and cultural needs?
- Is the young person worried about anything? If so, what? Does the young person understand how they can access advocacy and other services to express any concerns and make their views known?
- Are the young person's parents able to fulfil their Parental Responsibility to the young person whilst in custody?
- Has there been a change in the parents' capacity to enable them to resume care of the young person on his release in a way that will meet the young person's needs? If not, might additional support be provided to enable the parents be able to resume care of the young person?
- If it is not appropriate for the young person to return home or to become Looked After again, what alternative arrangements need to be made?
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:
- Is the young person's welfare being adequately safeguarded and promoted (taking account of the young person's wishes and feelings)?
- Are further visits required?
- Who will keep in touch with the young person whilst they are detained? Does there need to be help with contact arrangements?
- Will it be in the young person's best interests to become Looked After again by the local authority on release?
- Might the young person and their family require other services provided by the local authority formerly responsible for looking after the young person, or from another local authority?
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 of support.
Options for the young person on release will be as follows:
- The young person's parents or wider family will be able to resume care of the young person on release from custody, with support from the local authority under Section 17 of the Children Act 1989 and with continuing supervision from the YOT;
- The young person's parents or wider family will be able to resume care of the young person on release from custody, solely with supervision from the YOT for as long as any order continues;
- The young person will need to become Looked After again on release;
- The young person will not be able to return home to parents but it will be inappropriate for them to become Looked After again because of their age or particular circumstances, in which case the YOT and local authority will need to meet with housing and other relevant services well before the planned release date to determine the arrangements that will be necessary in order to provide them with suitable accommodation and support in the community.
A copy of the report must be given to:
- The young person;
- Their parents or those with Parental Responsibility, unless this would not be in the young person's interests;
- The governor or director or registered manager of the establishment where the young person is detained;
- The relevant YOT case manager;
- The local authority where the young person is being detained (if different from the authority that formerly looked after the young person); and
- Any other person the responsible authority considers should receive a copy of the report.
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:
- The young person, their parents and others with Parental Responsibility;
- The young person's case manager in the YOT;
- The Governor or manager of the custodial establishment;
- Any other agencies that would be responsible for implementing the recommendations relating to the young person, such as a provider of supported housing;
- Other relevant parties, with the young person's consent.
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 three 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 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.
3.6 Young people serving long sentences
Where young people are serving long sentences, this may involve the formerly responsible authority negotiating with the YOT and Probation Provider 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 Provider.
3.7 Action to be taken if there are concerns about the young person's safety or welfare
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.
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:
- Their circumstances change;
- There is a risk or issue with their current placement.
To request a transfer, the YOT should read the Placement Review Guidance and then:
- Convene a multi-disciplinary meeting to establish how risk can be managed or reduced;
- Complete the Placement Review Form (Refer to the Guidance and Tips document for support on completing this form);
- Email it to the Placement Review team at YCSTransfers@justice.gov.uk.
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.
3.9 Planning for Release
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.
The local authority should have a joint housing protocol which maps out how the local housing authority will work with children's social care; the youth secure estate; prisons; the National Probation Service; the Youth Offending Services and other interested agencies that maybe involved with a young person, to support the release of children from custody and secure accommodation and ensure that adequate pre-release planning is in place and that suitable accommodation forms a central part of this. See:
- Joint Housing Protocols for Care Leavers: good practice advice, Section 2.6 Care leavers leaving custody (DfE and MHCLG);
- Youth Justice Accommodation Pathway (St. Basils).
It is important there are Protocols that set out the process to be followed in order to enable an appeal where a care leaver is not satisfied that the accommodation being provided is suitable and also establish ways of resolving disputes, both within and between authorities.
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:
- Who is collecting them;
- Where they will be living;
- The reporting arrangements;
- Sources of support - including out of hours;
- The arrangements for education or employment;
- Arrangements for meeting continuing health needs;
- How and when they will receive financial support;
- When they will be seeing their social worker;
- The roles and responsibilities of the respective practitioners.
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.
3.10 Support in the community
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 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.