Legal challenge risk for councils after youth remand changes

Judy Cooper examines the pros, cons and legal challenges that could arise from the new regulations giving children on remand looked-after status

Social workers, independent reviewing officers and youth offending teams have been left in legal limbo after new regulations concerning children on custodial remand came into force in December.

The move to ensure young people held in custody on remand are also treated as looked-after children has created legal contradictions, which the government has yet to resolve.

The most obvious problem is the legal duty on independent reviewing officers (IROs) and social workers to remove a child in care from a placement if the child says it is not meeting their needs.

Are councils at risk of future legal challenges?

Andrew Webb, vice president of the Association of Directors of Children’s Services, says social workers and youth offending teams (YOTs) are working around the regulations in the best way they can using common sense.

But he admits the situation leaves councils open to potential legal challenges.

The Department for Education is only now carrying out a consultation looking at the impact of the new regulations, with a view to amending care planning, placement and case review regulations towards the end of March.

Despite the risk, Rachel Knowles, a solicitor at Just for Kids Law, doubts any lawyer will begin a case for judicial review over actions clearly impossible because a child is in jail.

“What I’m more concerned about is that in reviewing the regulations the DfE will go too far and well end up with children remanded in custody getting a second class looked-after-child status,” Knowles says.

Will statutory visits be done by YOTs rather than social workers?

She is particularly concerned by suggestions, made at a recent event by DfE officials, that statutory visits by a social worker could be done by a YOT worker instead.

Although most in the sector welcome the intention behind the changes, there is strong criticism for the lack of thought put into the planning and implementation.

Ian Keating, policy officer with the Local Government Association (LGA), points out that a key aim for the legislation is to change the culture inside youth prisons. Yet there has been little joint working between the DfE and Ministry of Justice to ensure prison staff know about the new rights these children have when looked-after.

“Statutory guidance says a social worker, a YOT officer and an IRO will all have to visit a child on remand within 15 days,” he says. “Someone at the consultation event asked if prison governors will be receptive to providing access to this onslaught of people in this timeframe and there didnt seem to be any answer because that was an MOJ issue.”

What happens when councils are responsible for remand costs?

On top of this, local authorities are deeply worried about the cost of the changes when the financial responsibility for children in custodial remand passes to councils in April.

Although the Youth Justice Board (YJB) currently spends £22m on custodial remand – two thirds of the final cost – its officials have argued the board never had any statutory responsibility to do so. Therefore it is not a new burden for councils, they say.

The board has also done modelling to predict a 9% drop in remand, based on current falling trends, and has further reduced the money being transferred accordingly.

Keating said the amount of new money being transferred will probably be about £5m, but the increase in costs for councils is closer to £40m.

The LGA is also concerned about longer-term costs, such as those children in custodial remand for more than 13 weeks who then become entitled to leaving care services, such as supported accommodation.

Where have all the monies gone?

But Webb says councils need to resign themselves to this cost if changes are to remain child-centred. “Given we know the release from custody is a high risk time, any extra support from the council can only be good if it helps stop them reoffending.”

Gareth Jones, interim chair of the Association of YOT managers, said YOTs are also worried about disappearing monies.

“For example, there used to be money coming from the YJB for prevention work for YOTs,” he says. “We have been advised that that money has now been given to the new police commissioners, but my local commissioner says there has been no uplift to the budget they were given. So where have those monies gone?”

Jones said it would be a shame if money issues de-railed the regulations, which in the most part were to be welcomed as a positive step forward in the approach to young offenders.

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