Key practical differences for English and Welsh children’s services as a result of the Social Services and Well-being (Wales) Act 2014

Photot: Gary BrigdenPhotot: Gary Brigden

In Wales, the introduction of the Social Services and Well-being (Wales) Act 2014 will replace, in parts, some of the Children Act 1989. This guide outlines the specific sections within part 6 of the Welsh act that affect the Children Act 1989.

Summary
The general social care system under the Welsh Act: Parts 2 to 5 of the act
Part 6 – Looked-after and accommodated children

Summary
The Social Services and Well-being (Wales) Act 2014 reforms the law governing adult and children’s social care in Wales, bringing together in a single Act all legislation about how social care in Wales is to be provided.

When Part 6 of the Social Services and Well-being (Wales) Act 2014 comes into force it will replace Part 3 of the Children Act 1989. The planned commencement date is April 2016. This affects current children in need, looked-after children and leaving care functions of local authorities. While the concept of a child in need disappears from the Welsh act, the looked-after children and leaving care provisions of the act are in many (but not all) respects similar to those provisions which they replace in the Children Act 1989.

The child protection and court proceedings provisions of the Children Act 1989 are not materially affected by this act and so continue to apply in both England and Wales.

This guide highlights the similarities and differences between the sections within Part 6 of the Social Services and Well-being (Wales) Act 2014 and Part 3 of the Children Act 1989. In so doing, it identifies how social work practice in England and Wales will diverge as a result of the Welsh act.

Click here for a full digest of the Social Services and Well-being (Wales) Act 2014 or on each section title to be taken to the section digest.

The general social care system under the Welsh Act: Parts 2 to 5 of the act
Parts 2 to 5 of the act contain a single legislative framework for the provision of social care for both adults and children, including carers. As part of this initiative, the children in need provisions of Part 3 of the Children Act 1989 will be disapplied in relation to Wales. The legal authority for the provision of services for children and their families, including disabled children, will instead be Parts 2 to 5 of this act. As such, children, like adults, will be able to rely on an express right to a needs assessment as well as enforceable rights to those services which are necessary in order to meet their eligible needs.

However, the general social care system for Wales under Parts 2 to 5 does not apply in the case of looked-after children. Instead, a separate Part 6 of the new act contains local authority obligations in relation to looked-after children.

Part 6 – Looked-after and accommodated children
Part 6 of the Welsh act is the counterpart of the looked-after children and leaving care provisions of the Children Act 1989. Those provisions will be disapplied in Wales so that different primary legislation will apply in England and Wales. In many respects, the two pieces of legislation are similar. However, in some respects they differ and so it cannot be assumed that the position in England under Part 3 of the Children Act 1989 is the same as that in Wales under the new act. This guide now goes on to highlight, section-by-section, the differences between the law in the two countries.

Section 74 – Child or young person looked after by a local authority
This section replaces, in Wales, section 22, subsections (1) and (2) of the Children Act 1989 which provides the definition of “looked after”. It is very similarly worded to section 22(1) and (2) and so there are unlikely to be children who meet the definition of looked-after child in one country but not the other.

Accommodation duties

Section 75 – General duty of local authority to secure sufficient accommodation
This section imposes on Welsh local authorities a very similar duty to that imposed on English local authorities by section 22G of the Children Act 1989. The duty is about ensuring sufficient local placements for looked-after children.

Section 76 – Accommodation for children without parents or who are lost or abandoned etc.
This section identifies when a child, other than a child with a care order, must be accommodated by a Welsh local authority. This section is framed in very similar terms to section 20 of the Children Act 1989 which identifies when an authority in England is obliged to accommodate a child who does not have a care order.

However, there are some differences:

(a) under section 20(1) of the Children Act 1989, the duty to accommodate a child who is, for example, lost or abandoned only applies when the child is a child in need (within the meaning of section 17 of the Children Act 1989). Under section 76 of the Welsh act, there is no requirement for the child to be a child in need, simply being lost or abandoned is sufficient. This reflects that the concept of a “child in need” has no place in the Welsh act;

(b) unlike section 20 of the Children Act 1989, section 76 does not contain express powers to accommodate children and young adults up to the age of 21. Presumably, this is because such persons could potentially be accommodated under the general care and support regime contained in Parts 1 to 4 of the Welsh act.

Section 77 – Accommodation for children in police protection or detention or on remand
This section is, in material respects, identical to section 21 of the Children Act 1989. Accordingly, there is no practical difference between England and Wales in terms of local authority duties to accommodate children involved in the criminal justice system.

Duties of local authorities in relation to looked-after children

Section 78 – Principal duty of a local authority in relation to looked-after children
This section sets out a Welsh local authority’s core duties towards looked-after children. It is very similar to section 22 of the Children Act 1989 which performs the same role in relation to English local authorities. However, there are some differences:

(a) under this section, a local authority has a duty periodically to assess whether a looked-after child has eligible needs for care and support, under the general social care system in Parts 1 to 5 of this act. So that will require a local authority to assess a child’s needs and provide services to meet those needs if they meet the authority’s eligibility criteria. This will only be relevant to the extent that a particular need is not already being met as a result of the authority’s discharge of its duty to safeguard and promote the child’s welfare. There is no counterpart to this duty for English local authorities under section 22 of the Children Act 1989;

(b) there is no Welsh counterpart to the English duty to appoint a specific local authority officer for the purposes of the obligation to promote a looked-after child’s educational achievement;

(c) the overarching duty is to safeguard and promote the child’s well-being rather than, as in England, the child’s welfare. This reflects the fact that the promotion of well-being is the organising principle of the Welsh act: see section 5.

Section 79 – Provision of accommodation for children in care
This section is, in material respects, the same as section 22A of the Children Act 1989. Like section 22A, it requires the local authority named in a care order to provide accommodation for the child.

Section 80 – Maintenance of looked-after children
This section is, in material respects, the same as section 22B of the Children Act 1989. Like section 22B, it obliges a local authority to “maintain” a looked-after child.

Section 81 – Ways in which looked-after children are to be accommodated and maintained
This section is very similar to section 22C of the Children Act 1989, which sets out, for English local authorities, a placement hierarchy under which certain placements, such as parental placements, are to be preferred to others.

However, there is one significant difference concerning the priority given to placements for adoption. Section 22C of the Children Act 1989 was amended by the Children and Families Act 2014 so as to give greater priority, in England, to a “fostering for adoption” placement in cases where adoption is being considered for a child. In these cases, the English local authority must give preference to a foster carer who is a relative, friend or other person connected with the child. If such a placement is not considered to be the most appropriate placement, the local authority must consider placing the child “with a local authority foster parent who has been approved as a prospective adopter” (subsection (9B)).

In Wales, however, greater priority only arises where an authority proposes to place a child with a particular prospective adopter.

Section 82 – Review of child’s case before making alternative arrangements for accommodation
This section is, in material respects, the same as section 22D of the Children Act 1989 in requiring, in most cases, a statutory review before a looked-after child is placed in what is sometimes referred to as unregulated accommodation, for example supported lodgings.

Section 83 and 84 – Care and support plans
This section requires every child looked after by a Welsh local authority to have a care and support plan. In England, the requirement is for a care plan but this is as a result of regulations not primary legislation.

Section 85 – Contributions towards maintenance of looked-after children
This section introduces Schedule 1 to the act, which controls local authority powers to require contributions towards the costs of maintaining a looked-after child. Schedule 1 is very similar to paragraph 21 of Schedule 2 to the Children Act 1989 although under the Welsh provision contributions may not be sought from the child. Under the Children Act 1989, contributions can be sought from a child who has attained 16.

Section 86 – Children’s homes provided, equipped and maintained by the Welsh Ministers
This section is, in material respects, the same as section 22E of the Children Act 1989. Both are about the terms and conditions on which a child is placed in a children’s home provided by central government.

Sections 87 to 94 – Regulations
These sections authorise the Welsh Ministers to make regulations further controlling the exercise of local authority functions in relation to looked-after children. These powers mirror those conferred by the Children Act 1989 although it is likely that the regulations made under the powers will differ across England and Wales.

Section 95 – Promotion and maintenance of contact between child and family
This section, which imposes a qualified duty on a local authority to promote contact between a looked-after child and specified individuals, such as a child’s parent, is very similar to paragraph 15 of Schedule 2 in the Children Act 1989. However, section 95 does not incorporate the amendments to paragraph 15 made by the Children and Families Act 2014. As a result of those amendments, for English local authorities the general duty to promote contact does not apply in the case of a child under a care order in relation to whom an authority is permitted to refuse contact under section 34 of the Children Act 1989.

Section 96 – Family visits to or by children: expenses
This section, about payments to family members and other significant persons in a child’s life so they can visit looked-after children, is, in material respects, the same as paragraph 16 of Schedule 2 to the Children Act 1989.

Section 97 – Duty of local authority to ensure visits to, and contact with, looked-after children and other children
This section is, in material respects, in almost the same terms as section 23ZA of the Children Act 1989 which contains the duty on English local authorities to have a visiting programme for every looked-after child. The difference is that, in relation to Welsh local authorities, regulations of the Welsh Ministers could extend the visiting duty to a wider range of children than would be possible in England.

Section 98 – Independent visitors for looked-after children
This section, concerning appointment of independent visitors for looked-after children, is, in material respects, the same as section 23ZB of the Children Act 1989.

Section 99 – Appointment of independent reviewing officer (IRO)
This section is, in material respects, the same as section 25A of the Children Act 1989, although it is possible that the IRO regulations will differ across England and Wales.

Section 100 – Functions of the independent reviewing officer
This section is, in material respects, the same as section 25B of the Children Act 1989, although it is possible that the IRO regulations will differ across England and Wales.

Section 101 – referred cases
This section is, in material respects, identical to the counterpart provision in section 25C of the Children Act 1989. In Wales, though, any referral would be to an officer of Cafcass Cymru.

Section 102 – review of cases and inquiries into representations
The powers to make regulations about reviews and representations under this section mirror regulation-making powers under the Children Act 1989. However, the regulations themselves may well differ across England and Wales.

Leaving care, accommodation and fostering

Section 103 – Befriending, advising and assisting looked-after children
This section’s duty on a local authority to advise, assist and befriend a child with a view to promoting their well-being once they cease to be looked after, is similarly framed to paragraph 19A of Schedule 2 to the Children Act 1989. But the legislative provisions differ in that the object of this section is to promote the child’s well-being when s/he ceases to be a looked-after child whereas the object of paragraph 19A is the child’s welfare when s/he ceases to be a looked-after child. This reflects the organising principle of this act which is to promote well-being: see section 5.

Section 104 – Young people entitled to support under sections 105 to 115
This sections identifies six categories of young person upon whom later sections confer various support entitlements. The leaving care provisions of the Children Act 1989 take the same approach in substance but the terminology is different. The six categories, with their respective English and Wales names, are as follows:

(a) an eligible child in England is in Wales called a category 1 young person;

(b) a relevant child in England is in Wales called a category 2 young person;

(c) a former relevant child in England is in Wales called a category 3 young person;

(d) a young person entitled to services under section 23CA of the Children Act 1989 is in Wales called a category 4 young person;

(e) a young person entitled to services under section 24A of the Children Act 1989 (on the basis that he or she is a person who qualifies for advice and assistance by virtue of section 24(1A) of the Children Act 1989) is called a category 5 young person in Wales;

(f) a young person qualifying for advice and assistance under section 24A of the Children Act 1989 by virtue of section 24(1B) of the Children Act 1989 is called a category 6 young person in Wales.

Section 105 – Keeping in touch
The duties to keep in touch under this section mirror the duties to keep in touch with relevant and former relevant children under the Children Act 1989.

Section 106 – Personal advisers
The obligation to appoint a personal adviser under this section mirrors the obligations to appoint personal advisers under the Children Act 1989. Hence, the same range of care leavers are entitled to personal advisers in England and Wales.

Section 107 – Pathway assessments and plans
The local authority duties under this section to carry out pathway assessments and prepare pathway plans match those for England under the Children Act 1989. Hence, the same groups of care leavers in both England and Wales are entitled to pathway plans.

Section 108 – Pathway assessments and plans: post-18 living arrangements
This section imposes similar obligations to those under new paragraph 19BA of Schedule 2 to the Children Act 1989 (inserted by section 98 of the Children and Families Act 2014). Both provisions are about facilitating “staying put” arrangements for foster children to continue living with foster carers after the age of 18.

Section 109 – Support for category 2 young people
This section mirrors section 23B of the Children Act 1989, about support obligations in relation to that group known in England as relevant children although, unlike section 23B, this section does not provide for appointment of personal advisers, pathway assessments and plans. This is because these matters are in the Welsh act dealt with by sections 106 and 107.

Section 110 – Support for category 3 young people
This section mirrors section 23C of the Children Act 1989, about support obligations in relation to that group known in England as former relevant children although, unlike section 23C, this section does not provide for appointment of personal advisers, pathway assessments and plans. These matters are in the Welsh act dealt with by sections 106 and 107. Additionally, this section requires a Welsh local authority to monitor any staying put arrangement for the category 3 young person and provide advice and support for the arrangement if appropriate, these matters being dealt with in England by new section 23CZA of the Children Act 1989 (added by the Children and Families Act 2014).

Section 111 – Cessation of duties in relation to category 3 young people
The effect of this section is the same as the cessation provisions of section 23C of the Children Act 1989. Accordingly, England and Wales have the same rules about when former relevant children/category 3 young people cease to be entitled to support.

Section 112 – Support for category 4 young people

Section 113 – cessation of duties in relation to category 4 young people
Sections 112 and 113 impose similar obligations to those imposed on English local authorities under section 23CA of the Children Act 1989 in respect of adult care leavers who wish to return to education or training.

Section 114 – Support for category 5 young people and former category 5 young people

Section 115 – Support for category 6 young people and former category 6 young people
Sections 114 and 115 impose similar obligations to those imposed on English local authorities under sections 24A and 24B of the Children Act 1989.

Section 116 – Supplementary provision about support for young persons in further or higher education
The powers under this section for central government to make regulations about financial support for young persons in further or higher education are materially the same as powers under the Children Act 1989.

Section 117 – Charging for provision under sections 109 to 115
The Children Act 1989’s provisions about charging for leaving care services are spread throughout the leaving care legislation. By contrast, all charging powers under the Welsh act are contained in this section. In practice, however, the powers are similar although in Wales a child cannot be required to pay any charges; only a person with parental responsibility for a child can be required to do so.

Section 118 – Information
This section imposes effectively the same notification requirements as those imposed by section 24C of the Children Act 1989.

Secure accommodation

Section 119 – Use of accommodation for restricting liberty
This section is, in material terms, the same as section 25 of the Children Act 1989. Accordingly, England and Wales continue to have the same rules about when a child may be placed in secure accommodation.

Section 120 – Assessment of children accommodated by health authorities and education authorities

Section 121 – Assessment of children accommodated in care homes or independent hospitals
The notification provisions of these sections largely mirror those which apply in England under section 85 and section 86 of the Children Act 1989. Where the legislation differs, however, is that, where the local authority that is notified that a child is accommodated in, for example, a hospital is a Welsh authority, then it is required, upon notification, to carry out an assessment of the child’s needs under section 21 of the Welsh act. This is not the case for England under the Children Act 1989. Under the Children Act 1989, the notified local authority is required to take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated, and consider whether any of their functions under the Children Act 1989 should be exercised with respect to the child.

Section 122 – Visitors for children notified to a local authority under section 120 or 121
This section is, in material terms, the same as section 86A of the Children Act 1989 although the regulations made under this section could differ.

Section 123 – Services for children notified to a local authority under section 120 or 121
This section imposes a similar range of obligations to those imposed by paragraph 8A of Schedule 2 to the Children Act 1989.

Moving looked after children to live outside the jurisdiction

Section 124 – Arrangements to assist children to live outside England and Wales
This section contains provisions which are materially the same as those contained in paragraph 19 of Schedule 2 to the Children Act 1989. Accordingly, the rules about when a looked-after child may be placed outside England and Wales are the same in both countries.

Death of a looked-after child

Section 125 – Death of children being looked after by local authorities
This section contains provisions which are materially the same as those contained in paragraph 20 of Schedule 2 to the Children Act 1989.

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