Case No. UKUT-00227-(IAC)

E THE WEL F ARE OF CHILDREN 1.1. Section 11 of the 2004 Act places a duty on key people and bodies in England to make arrangements to ensure that their functions are discharged with regard to the need to safeguard and promote the welfare of children. Section 28 of the Act requires similar bodies in Wales to do the same. Theapplication of this duty will vary according to the nature of each agency and its functions. The key people and bodies that are covered by the duty are: • local authoritie s , including district councils; • the police; • the probation se r vice; • NHS bodies(Strategic Health A uthoritie s , Designated Special Health A uthoritie s , Prima r y Care T r ust s , NHS T r ust s , Local Health Boards and NHS F oundation T r usts); • Or g anisations (cu r rently the Connexions Service) providing services under section114 of the Learning and Skills Act 2007;Border Agency in an Act that deals directly with UK Border Agency work. It therefore appears in section 55 of the Borders, Citizenship and Immigration Act 20093.1.3. The duty does not give the UK Border Agency any new functions, nor does it over- ride its existing functions. It does require the Agency to carry out its existing functionsin a way that takes into account the need to safeguard and promote the welfare of children.1.4. Safeguarding and promoting the welfare of children is defined in the guidance to section11 of the 2004 Act (section 28 in Wales) and in Working Together to Safeguard Children4 as: • protecting c hildren from maltreatment; • pre v enting impai r ment of c hildre n ’ s health or de v elopment (where health means ‘p h ysical or mental health’ and de v elopment means ‘p h ysical, intellectual, emotional, social or beh a vioural de v elopment’); • Y outh offending teams; • G o v e r nors / Directors of Prisons and Young Offender Institutions; • Directors of Secure T raining Centres; • T he British T ranspo r t P olic e . 1.2. The UK Border Agency functions are not devolved, unlike those of the bodies listedin the 2004 Act, and so the Government has chosen to apply the duty to safeguard and promote the welfare of children to the UK 3 In Scotland the legislative p r ovisions for p r otecting child r en and p r omoting their welfa r e a r e contained in the P r otection of Child r en ( Scotland ) Act 2007 and the Child r en ( Scotland ) Act 1995. The principles of co-operation and info r mation sharing between agencies in the safegua r ding of child r en a r e, howeve r , impor tant themes in the legislative framework and guidance gove r ning the deliver y of child r en’s ser vices in Nor the r n I r eland, whe r e the legislative p r ovisions a r e the Child r en (Nor the r n I r eland) O r der 1995, and the Safegua r ding V ulnerable G r oups (Nor the r n I r eland) O r der 2007. In both jurisdictions A r ea Child P r otection Committees a r e the means of p r oviding local p r ocedu r es and p r ocesses for agencies to comply with the legislation to safegua r d child r en and to co-operate togethe r , and for anyone working with child r en. 4 The W elsh Assembly Gove r nment has p r oduced its own version of “ W orking T ogether” with a definition that matches this albeit exp r essed in a dif fe r ent wa y . It is available at: http://cymru.gov.uk/pubs/circulars/2007/nafwc1207en. pdf?lang=en • ensuring that c hildren are g r o wing up in circumstances consistent with the pr o vision of safe and effect i v e care; and • unde r taking that role so as to enable those c hildren to h a v e opti m um life c hances and to enter adulthood successfull y . 1.5. The overall framework set out in the 2004Act is to provide a basis for achieving the vision of safeguarding set out in the report Safeguarding Children5 i.e: • all a g encies w orking with c hildren, y oung people and their families ta k e all reasonable measures to ensure that the risks of ha r m to c hildre n ’ s w elfare are minimised; and • where there are conce r ns about c hildren and y oung people ’ s w elfar e , all a g encies ta k e all appropriate actions to address those conce r n s , w orking to a g reed local policies and procedures in pa r tnership with other a g encie s . FRAMEWORK FOR MAKING E FFECTIVE ARRANGEMENTS TO SAFEGUARD AND PROMOTE CHILDREN’S W EL F ARE 1.6. Each agency will have different contributions to make towards safeguarding and promoting the welfare of children depending on the functions for which they have responsibility. For example, the main contribution of some services might be to identify and act on their concerns about the welfare of children with whom they come into contact, perhaps during or following completion of a common assessment while others might be more involved in supporting a child once concerns have been identified. The UK Border Agency is among the former. There are some key features of effective arrangements to safeguard and promote the 5 Chief Inspector of Social Ser vices, Commission for Health Imp r ovement, Her Majesty’s Chief Inspector of Constabular y , Her Majesty’s Chief inspector of the C r own P r osecution Ser vice, Her Majesty’s Chief Inspector of the Magistrates’ Cour ts Ser vice, Her Majesty’s Chief Inspector of Schools, Her Majesty’s Chief Inspector of Prisons, Her Majesty’s Chief Inspector of P r obation (2002). Safegua r ding Child r en – A Joint Chief Inspectors’ Repor t on A r rangements to Safegua r d Child r en. London , Depar tment of Health. welfare of children which all agencies will need to take account of in addition to those that are particular to its own work, when undertaking their particular functions. These arrangements will help agencies to create and maintain an organisational culture and ethos that reflectsthe importance of safeguarding and promoting the welfare of children. STR A TEGIC AND O RGANIS A TIONAL A RRANGEMENTS 1.7. Many organisations subject to the section 11 duty (or in Wales the section 28 duty) are also required to take part in Local Safeguarding Children Boards (LSCBs). LSCBs are thekey statutory mechanism for agreeing how the relevant organisations in each localarea cooperate to safeguard and promote the welfare of children in that locality, and for ensuring their effectiveness. The Local Authority convenes and is also a member of the LSCB. The Board partners are set out insection 13(3) of the 2004 Act for England and in section 31(3) for Wales6. They are: • district councils in local g o v e r nment areas that h a v e them; • the c hief police officer for a police area of whi c h any pa r t falls within the area of the Local A uthority; • the local probation board for an area of whi c h any pa r t falls within the area of the Local A uthority; • the Y outh Offending T eam for an area of whi c h any pa r t falls within the area of the Local A uthority; 6 In W ales they a r e: the members a child r en’s ser vices authority in W ales ; a Local Health Boa r d; an NHS t r ust all or most of whose hospitals, establishments and facilities a r e situated in W ales; the police authority and chief officer of police for a police a r ea in W ales; the British T ranspor t Police Authorit y , so far as exe r cising functions in r elation to W ales; a local p r obation boa r d for an a r ea in W ales; a youth of fending team for an a r ea in W ales; (h) the gove r nor of a prison or secu r e training cent r e in W ales (o r , in the case of a contracted out prison or secu r e training cent r e, its di r ector); ( i ) any person to the extent that he is p r oviding ser vices pursuant to a r rangements made by a child r en’s ser vices authority in W ales under section 123(1)(b) of the Lea r ning and Skills Act 2000 (c. 21) (youth suppor t ser vices). • Strategic Health A uthorities and Prima r y Care Trusts for an area of which any part falls within the area of the Local Authority; • NHS T r usts and NHS F oundation T r ust s , all or most of whose hospitals or establishments and facilities are situated in the Local A uthority area; • the Connexions se r vice operating in any pa r t of the area of the Local A uthority; • CAFCASS (Children and F amily Cou r ts Advisory and Support Service), • the G o v e r nor or Director of any Secure T raining Centre in the area of the Local A uthority; and • the G o v e r nor or Director of any prison in the Local Authority area that ordinarily detains children.1.8. Other organisations can be involved in LSCB by agreement. The UK Border Agency is one of these. For details of how the UK Border Agency fits in with these arrangements see Part 2 of this guidance.1.9. At an organisational or strategic level within individual agencies, key features for safeguarding and promoting the welfare of children are: a. Senior management commitment to the impo r tance of safegua r ding and p r omoting child r en’s welfa r e Senior managers will need to demonstrate leadership, be informed about, and take responsibility for the actions of their staff who are providing services to children and their families. This could mean identifying a named person at senior management level tochampion the importance of safeguarding and promoting the welfare of children throughout the organisation. Senior managers will alsobe responsible for monitoring the actionsof their staff to safeguard and promote the welfare of children. This includes ensuringthat children and young people are listened to appropriately and concerns expressed about their or any other child’s welfareare taken seriously and responded to in an appropriate manner. b. A clear statement of the agency’s r esponsibilities towa r ds child r en is available for all sta f f This should include any children in the care of the agencies, any with whom they work directly and those with whom they come into contact. It could form part of an agency’s existing policy and/or procedures. All staff should be made aware of their agency’s policies and procedures on safeguarding and promoting the welfare of children and the importance of listening to children and young people, particularly when they are expressing concerns about either their own or other children’s welfare. Effective systems should be in place for children, staff and other peopleto make a complaint where there are concerns that action to safeguard and promote a child’s welfare has not been taken in accordance with the agency’s procedures. c. A clear line of accountability within the o r ganisation for work on safegua r ding and p r omoting the welfa r e of child r en It should be clear who has overall responsibility for the agency’s contribution to safeguarding and promoting the welfare of children and what the lines of accountability are from each staff member up through the organisation to the person with ultimate accountability for children’s welfare. Itshould also be clear with whom each staff member should discuss, and to whom they should report, any concerns about a child’s welfare. Responsibilities for safeguarding and promoting the welfare of children can operate at three levels:i. Individual, which can be encompassed within job descriptions;ii. Professional, which is governed by codes of conduct for different disciplines or by distinct guidance on the functions being carried out; andiii. Organisational, with clear linesof accountability throughout the organisation to senior office level. d. Se r vice development takes account of the need to safegua r d and p r omote welfa r e and is info r med, whe r e app r opriate, by the views of child r en and families In developing services, those responsible should consider how the delivery of these services will take account of the need to safeguard and promote the welfare of children. e. Sta f f training on safegua r ding and p r omoting the welfa r e of child r en for all sta f f working with o r , depending on the agency’s prima r y functions, in contact with child r en and families Staff should have an understanding of both their roles and responsibilities and those of other professionals and organisations. This is essential for effective multi- and inter-agency collaboration. Agencies are encouraged to enable staff to participate in training provided on an inter-agency basis as well as in single agency training provided by the agency itself. Safeguarding and promoting the welfareof children is one of the six areas of the Common Core of Skills and Knowledge for the Children’s Workforce (2005) prospectus. This prospectus informs the training provided to all those working in children’s services. Training on safeguarding and promoting the welfare of children should be relevant to the roles and responsibilities of each staff member. f. Safer r ec r uitment Robust recruitment and vetting procedures must be in place to help prevent unsuitable people from working with children. This means thorough checks are carried out on all people as part of the recruitment process, and references are always taken up. People who recruit staff to work with children must have the appropriate training. The Safeguarding g. E f fective inter-agency working to safegua r d and p r omote the welfa r e of child r en This involves agencies and staff working together to safeguard and promote the welfare of children. Inter-agency working is crucial to ensuring the effectiveness of such working. The sharing of information and constructive relationships between individual membersof staff and teams should be supported by a strong lead from the Lead Member for Children’s Services, and Director of Children’s Services and commitment of all ChiefOfficers. This effective working should beat a strategic and an individual child level, in accordance with guidance from their LSCB, regarding safeguarding children, or for the Prison Service, in accordance with the policy agreed with the LSCB local to each prison. The LSCB guidance should be consistent with the current statutory guidance The Framework for the Assessment of Children in Need and their Families (2000) and Working Together to Safeguard Children (2006). TheGovernment’s practice guidance, What To Do If You’re Worried A Child Is Being Abused (HM Government 2006), is for use by practitioners and their managers in all agencies to inform them about what to do when they have concerns that a child may be a child in need, including concerns about a child whom itis believed is, or may be at risk of, suffering significant harm7. The UK Border Agency contribution to inter-agency work is described in Part 2. h. Info r mation sharing Effective information sharing by professionals is central to safeguarding and promoting the welfare of children. It is therefore essential that effective arrangements for sharing information about a child and their family within each agency and between agencies are in place. This will usually be set out in the form of a protocol or information sharing agreement setting outVulnerable Groups Act 2006 establishes a new vetting and barring scheme from October2009 for those who work with children and vulnerable adults. 7 These documents can be found at: www.dcsf.gov.uk/ever ychildmatters/1240; www.dcsf.gov.uk/ever ychildmatters/1236; www.dcsf.gov.uk/ever ychildmatters/_download/?id=760 the process to be followed and the legal and security issues that need to be considered. However, the lack of an information sharing agreement between agencies should neverbe a reason for not sharing information that could help a practitioner deliver services to a child. The Welsh version of “Working Together” contains non-statutory guidance on good practice in information sharing.The decision to share or not to share information about a child should always be taken on a case by case basis based on professional judgement, supported by the cross-Government Information Sharing:Practitioners’ Guide (published in April 2006)8 and in line with the provisions of the Data Protection Act and Human Rights Act 1998 with consideration of any duty of confidence which is owed and the data security issues raised by the Cabinet Office guidelines on handling personal data. Full guidance on these issues is provided in Information Sharing: Practitioners’ Guide (HM Government, 2006). The consent of children, young people and their caregivers should be obtained when sharing information unless to do so would place the child at risk of significant harm.1.10. In order to safeguard and promote children’s welfare, arrangements should ensure that: • all staff in contact with c hildren understand what to do and the most effect i v e wa ys of sharing info r mation if they belie v e that a c hild and family m a y require pa r ticular se r vices in order to a c hie v e their opti m um outcomes; • all staff in contact with c hildren understand what to do and when to share info r mation if they belie v e that a child may be a child in need, including those children suffering or at risk of suffering harm; • appropriate a g ency-specific guidance is produced to complement guidance issued b y central G o v e r nment, and su c h guidance and appropriate training is made a v ailable to existing and new staff as pa r t of their induction and on g oing training; • guidance and training specifically c o v ers the sharing of info r mation bet w een profession s , or g anisations and a g encie s , as w ell as within them, and a r ran g ements for training ta k e into account the v alue of multi-agency training as well as single agency training; • mana g ers in c hildre n ’ s se r vices are fully co n v ersant with the le g al frame w ork and g ood practice guidance issued for practitioners w orking with c hildren. CON T ACT P OINT 9 1.11. Contact Point is a key part of the Every ChildMatters programme to improve outcomes for children and will support practitioners, local authorities and other organisations infulfilling their duties to safeguard and promote the welfare of children. It is currently being delivered in phases that began in May 2009and that are gradually being rolled out to other local authorities and partners. Contact Point will be the quick way to find out who else is working with the same child or young person and allow services to contact one anothermore efficiently. This basic online directory will be available to authorised staff who need it do their jobs.1.12. Contact Point will not contain any detailed information (such as case notes, assessments, and clinical data or exam results). The legal framework for the operation of Contact Point is provided by regulations, made under section12 of the 2004 Act and further operational details are set out in Statutory Guidance that was published in late 2007. 8 This is c r oss-gove r nment guidance that complements and suppor ts policies to imp r ove info r mation sharing ac r oss all ser vices. It is at www.dcsf.gov.uk/ever ychildmatters/_download/?id=103 9 Contact Point exists in England onl y . WORK WITH INDIVIDUAL CHILDREN AND THEIR F AMILIES 1.13. The ways in which agencies work with or have contact with individual children and their families will differ depending on the functions of each agency. Some will focus on directwork with children and young people, whereas others will work with children and their families, and still others will work with adults with parenting responsibilities for children.1.14. In order to safeguard and promote the welfare of individual children, the following shouldbe taken into account, in addition to the relevant section of Part 2 of this guidance. The key features of an effective system are: • Children and y oung people are listened to and what they h a v e to s a y is ta k en seriously and acted on; • F oll o wing assessment, rele v ant se r vices are pr o vided to respond to the assessed needs of c hildren and to suppo r t parents or carers in effect i v ely unde r taking their parenting role s . W here v er su c h se r vices are being pr o vided the UK Border A g ency will ta k e account of them in planning their future interaction with the family and the c hildren. 1.15. The following principles underpin workwith children and their families to safeguard and promote the welfare of children. They are relevant to varying degrees dependingon the functions and level of involvement of the particular agency and the individual practitioner concerned. The UK Border Agency should seek to reflect them as appropriate.1.16. Work with children and families should be: • Inte r v entions ta k e place at an early point when difficulties or problems are identified; • c hild centred; • rooted in c hild de v elopment; • W here possible the wishes and feelings of the pa r ticular c hild are obtained and ta k en into account when deciding on action to be unde r ta k en in relation to him or he r . Com m unication is according to his or her preferred communication method or language; • suppo r ting the a c hie v ement of the best possible outcomes for c hildren and impr o ving their w ellbeing; • holistic in approa c h; • ensuring equality of oppo r tunity; • E t hn i c identit y , langua g e , religion , f a i t h , g ende r an d disabilit y ar e ta k e n int o accoun t whe n w orkin g wit h a c hil d an d thei r f a m il y ; • Practitioners are clear when and h o w it is appropriate to ma k e a refe r ral to Local A uthority c hildre n ’ s se r vices where c hildren m a y need se r vices to safeguard them or to promote their w elfare; • i n v ol v e c hildren and familie s , taking their wishes and feelings into account; • building on strengths as w ell as identifying and addressing difficulties; • m ulti and inte r -a g ency in its approa c h; • a conti n uing proces s , not an e v ent; • W her e c hildre n ar e bein g pr o vide d w i t h se r vice s t o respon d t o thei r need s an d suppo r t thei r w elfar e (usuall y b y L o c a l A uthorit y c h il dr e n ’ s se r vices) , p r o f e ss i on a l s includin g th e U K Borde r A g enc y c on t r i b u t e t o subsequen t plan s , inte r v ention s an d review s i n accordanc e wit h requirement s i n rele v an t regulation s an d g u i d a n ce ; • designed to identify and pr o vide the se r vices required, and monitor the impact their pr o vision has on a c hild ’ s de v elopmental pro g ress; • info r med b y evidenc e . 1.17. Some of these apply to specialisedprofessional work, whilst others relate to more general work that can affect children. Ensuring equality of oppo r tunity a. Equality of opportunity means that all children have the opportunity to achieve the best possible development. Some children may have been deprived of opportunitiesand assistance in early life and will, as a result, require services to meet their health and educational needs, to promote their immediate welfare so that they can achieve their potential into adulthood. I n v ol v ement of child r en and f amilies b. In order to appreciate the child’s needs and how they make sense of their circumstances it is important to listen and take account of their wishes and feelings. It is also important to develop a co-operative constructive working relationship with parents or caregivers so that they recognise that they are being respected and are being kept informed. Where thereis respect and honesty in relating to parents they are likely to feel more confident about providing vital information about their child, themselves and their circumstances. Building on st r engths as w ell as identifying difficulties c. Identifying both strengths and difficulties within the child, his or her family and the context in which they are living is important, as is considering how these factors have an impact on the child’s health and development. Working with a child or family’s strengths becomes an important part of a plan to resolve difficulties. Multi and Inte r a gency in app r oach d. From birth, there will be a variety of different agencies and programmes in the community involved with children and their development, particularly in relation to their health and education. Multi and inter-agency work to safeguard and promote children’s welfare starts as soon as there are concernsabout a child’s welfare, not just when there are questions about possible harm. A conti n uing p r ocess not an e v ent e. Understanding what is happening to a vulnerable child within the context of his or her family and the local community, and taking appropriate action, are continuingand interactive processes, not single events. Assessment should continue throughout a period of intervention, and intervention may start at the beginning of an assessment. P r o viding and R eviewing se r vices f. Action and services should be provided according to the identified needs of the child and family in parallel with assessment where necessary. It is not necessary to await completion of the assessment process. Immediate and practical needs should beaddressed alongside more complex and longer term ones. The impact of service provisionon a child’s developmental progress should be reviewed. In f o r med by evidence g. Effective practice with children and families requires sound professional judgements which are underpinned by a rigorous evidence base, and draw on the practitioner’s knowledgeand experience. INTER-AGENCY CO-OPER A TION TO I MPROVE THE WELLBEING OF C HILDREN 1.18. A key aspect of the Every Child Matters: Change for Children programme is about encouraging relevant services to integrate around the needs of the child through children’s trust arrangements10. To this end, section 10 of the 2004 Act places a dutyon top tier and unitary local authorities in England to promote co-operation with a view to improving the wellbeing of children, and places a reciprocal duty on ‘relevant partners’ 10 A child r en’s t r ust is the ‘wrapper’ that brings together all ser vices for child r en and young people in an a r ea underpinned by the duty to cooperate that is in the Child r en Act 2004. to co-operate with the authority in the making of these arrangements11. Most of the strategic organisations covered by the section 11 (and section 28) duty are also under a duty to co- operate with the local authority in the making of co-operation arrangements (children’s trust). Those that are not will howeverwish to engage with the local authority and partners where appropriate in the interests of promoting children’s wellbeing. As a matter of law, the UK Border Agency is not subject to the duty in section 10, and details of the UK Border Agency contribution to inter-agency work is described in Part 2. MONITORING AND INSPECTION OF ARRANGEMENTS TO SAFEGUARD AND PROMOTE W EL F ARE 1.19. Agencies’ responsibilities for safeguarding and promoting the welfare of children, including the arrangements they make under section 11, will be monitored through the LSCB.1.20. Agencies, and the LSCB, are subject to independent assessment and inspection. The Framework for the Inspection of Children’s Services, published in July 2005 by Ofstedon behalf of all relevant inspectorates and commissions, sets out principles to be applied by an inspectorate or commission assessing any children’s service, and defines the key judgements which, where appropriate and practical, inspections will seek to make12. Itis available from www.ofsted.gov.uk. The key judgements include several relating to children and young people staying safe.1.21. Details of the arrangements that apply to the UK Border Agency are contained in Part 2 of this guidance. 11 The r elevant powers to imp r ove cooperation and well-being a r e set out in s.25 for W ales , whe r e child r en’s t r usts do not exist and which has taken a dif fe r ent app r oach to applying co- operation a r rangements to that in England . 12 The inspection body in W ales is Estyn which per fo r ms a similar function to that of Ofsted in England . P A R T 2 THE ROLE OF THE UK