Section 4, Section 85 Referral Process was updated in August 2018.
- Protection and Action to be Taken
- Section 85 Referral Process
- Action Following Section 85 Referral
- Local Information
Everywhere children live should provide the same basic safeguards against abuse, founded on an approach that promotes their general welfare, protects them from harm and treats them with dignity and respect.
The National Minimum Standards and Quality Standards contain specific requirements on safeguarding and child protection for each particular regulated setting where children live away from home.
Section 85 of the 1989 Children Act places a duty on local authorities to check on the safety and welfare of children living in residential education or hospital provision for any continuous period exceeding and/or likely to exceed 12 weeks.
The intention behind the legislation is to provide a 'safety net' for vulnerable children living away from home where the child is not accommodated under section 20 and where the child is not subject to the usual processes of Care Planning and review by an Independent Reviewing Officer.
Children living away from home are particularly vulnerable to being abused by adults and peers. Limited and sometimes controlled contact with family and carers may affect a child's ability to disclose what is happening to them. Given that many young people live away from home because of concerns about their home conditions, it is particularly important that their welfare is protected when they are being cared for by another agency or institution.
All settings must ensure that:
- Children feel valued and respected and their self-esteem is promoted;
- There is an openness on the part of the institution to the external world and to external scrutiny, including contact with families and the wider community;
- Staff and foster carers are trained in all aspects of safeguarding children, are alert to children's vulnerabilities and risks of harm, and knowledgeable about how to implement safeguarding children procedures;
- Children are listened to, and their views and concerns responded to;
- Children have ready access to a trusted adult outside the institution, e.g. a family member, social worker, independent visitor or children's advocate. Children should be made aware of independent advocacy services, external mentors and Child Line;
- Staff/carers recognise the importance of ascertaining the wishes and feelings of children and understand how individual children communicate by verbal or non-verbal means;
- Complaints procedures are clear, effective, and user–friendly and are readily accessible to children and young people including those with disabilities and those for whom English is not their preferred language;
- Bullying is effectively countered; Recruitment and selection procedures are rigorous and create a high threshold of entry to deter abusers and there is effective supervision and support that extends to temporary staff and volunteers;
- Contracted staff are effectively checked and supervised when on site or in contact with children;
- Clear procedures and support systems are in place for dealing with expressions of concern by staff and carers about other staff or carers (a Whistleblowing Policy);
- There is respect for diversity, and sensitivity to race, culture, religion, gender, sexuality and disability;
- Staff and carers are alert to the risks of harm to children in the external environment from people prepared to exploit the additional vulnerability of children living away from home.
3. Protection and Action to be Taken
The most important aspect is the need to listen to children to ensure that they have the mechanism for talking about concerns with people that they trust who are prepared to act on the child's concerns.
Where there is reasonable cause to believe that a child has suffered, or is likely to suffer Significant Harm, a referral must be made, in accordance with the Referrals Procedure to Children's social care. The Local Authority for the area in which the child is living has the responsibility to convene a Strategy Discussion/Meeting, which should include representatives from the responsible Local Authority that placed the child, if different.
At the Strategy Discussion/Meeting it should be decided which Local Authority should take responsibility for the next steps, which may include an Assessment and a Section 47 Enquiry.
Whether a child is in foster care, privately fostered, in a residential setting, hospital, custody or living in temporary accommodation with their family, the duty to protect is essentially the same. The local authority has a duty to undertake an Assessment which may lead to a Section 47 Enquiry where there are concerns about significant harm.
4. Section 85 Referral Process
All Section 85 notifications should be passed to the IRO Manager responsible for the independent reviewing service for Looked After Children.
Notifications are required when a child is likely to be resident within an institution for 12 weeks or more and also when a child is discharged after a 3 month period. Upon receipt of notification, the IRO Manager is required to send a single email (available here) to the following individuals;
- Director of Children, Families and Education;
- Assistant Director Early Help, Safeguarding and Children's Services;
- Assistant Director Quality and Performance;
- Assistant Director Vulnerable Learners.
The prepopulated email must be adapted as necessary and should state the child's full name, age, date of birth, where the child is placed and reason for the placement.
5. Action Following Referral Section 85 Referral
Where Children's Social Care have been notified under this section, they shall:
- 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 by the accommodating authority; and
- Consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.
In cases where children are not known to the Local Authority a referral is sent to Children's Services who notify the Safeguarding and Quality Assurance Service.
Initial enquiries will be undertaken by an IRO and will include a meeting with the child and family to assess the need for any intervention.
Where such a need is identified it will be the responsibility of the IRO to continue to monitor and refer back to the First Response Team to undertake a Single Assessment & identify services required.
In cases where a child is already known and open to the Children's Social Care it is expected that a Single Assessment will be undertaken by an allocated social worker who will continue to monitor the case.
In some instances the type of accommodation may complicate this process; all draw a wider group of professionals into the matter. Specific issues to consider in different settings are as follows:
When the concerns relate to a child placed in a foster home outside the area of the responsible local authority. See Children and Families Moving Across Local Authority Boundaries Procedure.
Where there is reasonable cause to believe that a child in foster care has suffered, or is likely to suffer Significant Harm in the foster placement, a Strategy Meeting will be held. The Allegations Against Staff or Volunteers Procedure will apply.
In these circumstances, enquiries should consider the safety of any other children living in the household, including the foster carers' own children, grand-children or any children cared for by the foster carers in their home as well as any children whom the foster carers may be caring for or working with outside their home in a voluntary or paid capacity e.g. teaching, faith or youth work, scouts or many other groups.
As foster care is undertaken in the privacy of the carers' own home, it is important that children have a voice outside the family. Social Workers are required to see children in foster care on their own and evidence of this should be recorded on the child's records.
A private fostering arrangement is essentially one that is made without the involvement of a Local Authority for the care of a child under the age of 16 (under 18 if disabled) by someone other than a parent or close relative for 28 days or more. Privately fostered children are a diverse and sometimes vulnerable group which includes:
- Children sent from abroad to stay with another family, usually to improve their educational opportunities;
- Asylum-seeking and refugee children;
- Teenagers who, having broken ties with their parents, are staying in short–term arrangements with friends or other non-relatives;
- Children who stay with another family whilst their parents are in hospital, prison or serving overseas in the armed forces;
- Language students living with host families.
Under the Children Act 1989, private foster carers and those with Parental Responsibility are required to notify the local authority of their intention to privately foster or to have a child privately fostered, or where a child is privately fostered in an emergency.
Teachers, health and other professionals should notify the local authority of a private fostering arrangement that comes to their attention, where they are not satisfied that the arrangement has been or will be notified.
It is the duty of every local authority to satisfy itself that the welfare of the children who are privately fostered within their area is being satisfactorily safeguarded and promoted. The local authority must also arrange to visit privately fostered children at regular intervals. All arrangements and regulations in relation to Private Fostering are set out in the Children (Private Arrangements for Fostering) Regulations 2005. Children should be given the contact details of the social worker who will be visiting them while they are being privately fostered.
Children in Residential Settings
All residential settings where children and young people are placed, including children's homes and residential schools, whether provided by a private, charitable or faith based organisation, or a Local Authority, must adhere to the Children's Homes Regulations 2001 (as amended by the Children's Homes (Amendment) Regulations 2015, associated guidance) and all other relevant Regulations and to the relevant Quality Standards.Clear records must be kept and reviews and inspections must take place in accordance with Quality Standards and the Regulations.
Children in such settings are particularly vulnerable and must be listened to.
All such establishments must have in place complaints procedures for children and young people, visiting and contact arrangements with social workers and Independent Visitors (for Looked After children), as well as parents, and advocacy services.
Where there is reasonable cause to believe that a child in a residential setting has suffered or is likely to suffer Significant Harm, a referral must be made to Children's social care in accordance with the Referrals Procedure. The concerns may be related to bullying, children who exhibit harmful behaviour against other children or allegations about the behaviour of practitioners or volunteers.
Children in Hospital
For the purpose of this section the term 'hospital' includes small 'local' hospitals, independent/private hospitals and Psychiatric units including private and voluntary sector units including those that treat young people for dependency on drugs or alcohol.
Children under 16 should not be cared for on an adult ward. Hospital admission data should include the age of children, so that hospitals can monitor whether children are being given appropriate care in appropriate wards.
Hospitals must have policies in place to ensure that their facilities are secure and regularly reviewed.
Any concerns about Significant Harm to a child within a hospital or health-based setting must be referred to the Children's social care in whose area the hospital is located.
The Visits To Children In Long-Term Residential Care Regulations 2011 apply to children accommodated in residential special schools, hospitals or care homes for consecutive periods of three months or more. The 'responsible' local authority must, under sections 85 and 86 of the Children Act 1989, be notified of the fact. The Responsible Authority is then under a duty to take such steps as are reasonably practicable to determine whether the child's welfare is adequately safeguarded and promoted while they are accommodated, and to consider whether there is a need to exercise any functions under the Children Act 1989 with respect to the child.
Where the establishment in which the child is residing is in the public sector (e.g. NHS hospital, local authority residential special school), the 'responsible authority" means (under section 85 Children Act 1989):
- The local authority within whose area the child was ordinarily resident immediately before being accommodated; or
- Where the child was not ordinarily resident within the area of any local authority, the local authority within whose area the accommodation is situated.
Where the establishment in which the child is residing is in the private sector (e.g. private hospital, care home), the 'responsible authority" means (under section 86 Children Act 1989) the local authority within whose area the establishment is situated.
Where the child is residing in a private establishment but funded by a public sector organisation, e.g. a CCG, then this will fall within section 85, rather than section 86, and the 'responsible authority' will be the authority within whose area the child was ordinarily resident immediately before being accommodated in the hospital.
The Responsible Authority, once notified, must ensure that visits are made to the child by a qualified social worker.
On each visit, the social worker must speak to the child in private unless:
- The child, being of sufficient age and understanding to do so, refuses;
- The social worker considers it inappropriate to do so, having regard to the child's age and understanding; or
- The social worker is unable to do so.
Where the child's needs for the purposes of the Children Act 1989 have not been assessed by any local authority in the past twelve months, the social worker must visit:
- Within seven working days of the notification; and
- Thereafter, at intervals of not more than six months.
Where the child's needs have been assessed in the past twelve months, the social worker must visit:
- Within three months of the notification; and
- Thereafter, at intervals of not more than six months.
In addition, the social worker must visit:
- Whenever reasonably requested to do so by the child; and
- Whenever satisfied that circumstances require the child to be visited in order to safeguard and promote his/her welfare.
The social worker must provide a written report of each visit.
The report must include the social worker's assessment of:
- The child's wishes and feelings about the accommodation, so far as the social worker has been able to ascertain them;
- Whether the child's welfare is adequately safeguarded and promoted;
- Whether further additional visits are required in order to safeguard and promote the child's welfare;
- Any services which the social worker considers appropriate to be made available with a view to promoting contact between the child and his/her family; and
- Any other steps that should be taken by the local authority exercising its functions under the 1989 Act to safeguard and promote the child's welfare.
The report must be copied to:
- The child, unless it would not be appropriate to do so, having regard to age and understanding;
- Any parent/person who has Parental Responsibility, unless to do so would place the child at risk of Significant Harm;
- Where different from the responsible local authority, the local authority in whose area the child is accommodated; and
- Any other person with responsibility for safeguarding and promoting the child's welfare under the 1989 Act.
No child known to Children's social care who is an inpatient in a hospital and about whom there are Child Protection concerns should be discharged home without a Discharge Planning meeting and referral to assess and establish that the home environment is safe, the concerns by medical staff are fully addressed and there is a plan in place for the ongoing promotion and safeguarding of the child's welfare.
Children in Custody
The Local Authority has the same responsibilities towards children in custody as it does to other children in the Local Authority area.
Under the Legal Aid Sentencing & Punishing of Offenders Act 2012, children are remanded to the care of the Local Authority and are managed within the statutory LAC framework.
Young Offenders Institutions which accommodate Juveniles (16-18) must have policies and procedures in place which set out their duties to safeguard and promote the welfare of the children and young people in their care.
Specific institutions in an area must ensure that there are links in place with the Local Safeguarding Children Board and local authorities.
The local authorities' responsibilities are set out in Local Authority Circular (LAC) 2004(26). See also guidance on the Legal Aid Sentencing and Punishment of Offenders Act 2012.
Children of Families Living in Temporary Accommodation
It is important that effective systems are in place to ensure that children from homeless families receive services from health and education, social care and welfare support services as well as any other specific services, because with frequent moves they may become disengaged from services. Where a child who needs specific treatment misses appointments due to moves, the problem may become an issue of Significant Harm.
Temporary accommodation, for example bed and breakfast accommodation or women's refuges, may be a location which is not secure and safe and where other adults are also resident who may pose a risk to the child.
All concerns about the welfare of a child or of Significant Harm to a child should be referred to Children's social care in accordance with the Referrals Procedure.