Commentary on Sections Part 2 – Children Order Amendments Section 128: Former relevant children: continuing functions
Subsection (1) inserts a new Article 34AA (preparation for ceasing to be looked after: continuing care arrangements) in the Children Order which places a duty on authorities as part of an assessment of an eligible child’s needs, undertaken in accordance with Article 34A(5), to determine the appropriateness of providing advice, assistance and support in order to work towards facilitating a future continuing care arrangement.
Subsection (2) inserts a new Article 34DA into the Children Order. This sets out what constitutes a continuing care arrangement, the duties placed on authorities for the duration of the arrangement and the conditions that underpin the support from the authority. New paragraph (2) provides that a continuing care arrangement is one where the young person is someone who was in care immediately prior to their 18th birthday as an eligible child, and that person continues to reside with their former foster carer once they turn 18.
So long as the arrangement is consistent with the welfare of the young person, the authority is required to provide advice, assistance and support to them and their former foster parent to support the maintenance of the arrangement. The authority is also required to monitor the arrangement (paragraph (3)). The support provided to the former foster carer must include financial support (paragraph (4)). These duties will continue until the young person reaches the age of 21 (paragraph (6)) unless either they or their former foster parent decides to end the arrangement sooner (paragraph (7)).
Subsection (3) inserts a new Article 34DB (further advice and support) into the Children Order to extend existing duties which an authority has under Article 34D of the Children Order towards former relevant children (as defined in that Article). It applies to former relevant children who have reached age 21 but not 25, or such other age as may be prescribed in regulations (paragraph (1)).
New Article 34DB imposes a new set of duties on an authority where a former relevant child requests advice and support, regardless of whether that young person intends to pursue a course of education and training. Paragraph (3) provides that the first duty is for the authority to appoint a personal adviser for the child if he or she requests help until such time as he or she reaches the age of 25 or he/she informs the authority that a personal adviser is no longer required.
Paragraph (4) requires the authority to carry out an assessment of the young person's needs and to prepare a pathway plan for them. Paragraph (5) defines an assessment of needs under paragraph (4) as an assessment to determine whether any services offered by the authority may help to meet the young person's needs, and what advice and support it would be appropriate for the authority to provide to help the young person obtain those services. Paragraph (6) places a duty on the authority to provide the former relevant child with any advice and support that the assessment identified as appropriate.
The authority may continue to provide a former relevant child with advice and support after they have reached the age of 25, or any other prescribed age, if the authority is satisfied that the former relevant child has needs that cannot be met other than by providing such advice and support (paragraph (7)). Paragraph (8) provides that an authority must offer to provide a former relevant child with advice and support if they are not already receiving it, as soon as possible after they reach the age of 21, and at least once every 12 months thereafter.
Subsection (3) of section 128 also inserts a new Article 34DC (Further assistance to pursue education or training) into the Children Order, which extends the duties of authorities to appoint a personal adviser. Currently all eligible, relevant and former relevant children (defined in Article 34D) must have a personal adviser who will, in accordance with regulations made under Article 34C, be involved in drawing up the young person's pathway plan, make sure that it is regularly reviewed, and that it is implemented. When the young person leaves care, and until they are at least 21, the personal adviser will in practice be responsible for performing the authority's duty to keep in touch with them and ensuring that they receive the advice and support to which they are entitled.
New Article 34DC extends the duties of authorities to appoint a personal adviser to include a former relevant child who informs the responsible authority (that is, the authority that formerly looked after him) that he is pursuing or intends to pursue a programme of education or training but to whom the authority would otherwise owe no duty under Article 34D because the young person is over 21 years of age and has completed (or abandoned) the programme set out in their original pathway plan (paragraphs (1) and (2)). In relation to such a young person, who must be under 25 years (or such age as may be prescribed), the authority must also carry out an assessment of needs, prepare a pathway plan and determine what assistance is required (paragraph (3)). The authority may provide assistance such as contributing to expenses incurred by the person in living near the place where is, or will be receiving education or training or they can make a grant available to meet expenses connected with their education or training (paragraph (5)).
Paragraph (6) requires the authority to provide assistance (including appointment of a personal adviser and maintenance of the pathway plan) for as long as the young person continues to pursue the agreed educational or training programme, even where this programme goes beyond a young person's 25th birthday.
Paragraph (8) provides that any assistance made to the young person under Article 18(7) to (9) of the Children Order should be taken into account when determining what assistance the young person should be given. However, references in Article 18(8) that an authority must have regard to the means of the child’s parents before assistance may be given should be disregarded for the purpose of assistance under new Article 34DC.