The case of ‘Tommy’ highlights everything that is wrong in practice with the system that is supposed to support children ‘in need’. Jon Robins wrote about Tommy in an article about the innovative Community Justice Centre in Liverpool (Whatever happened to community justice?).
‘Next up is Tommy, 15 years old and also in breach of his court order. ‘I reckon I might have seen him 30 times. He has been coming here since he was about 13,’ says [Judge] Fletcher…
The judge believes that ‘a fairly intensive supervision order’ could help turn his life around. But he says: ‘The problem is at 16 years he’s no longer the responsibility of social services and could end up in Men’s Direct.’ This is a local shelter mainly used by alcoholics, including Evans. Tommy, for all his problems, appears not have a drink or drug problem. The inappropriateness of the two living in the same doss house is shocking.’
Anyone working with children should know that the suggestion that a 16-year-old is ‘no longer the responsibility of social services’ is blatantly wrong. In the landmark case of R (G) v Southwark LBC  UKHL 26, the House of Lords laid down crystal clear guidelines that homeless children up to the age of 18 need to be accommodated by children’s services, not housing.
This means firstly that they become ‘looked after’ children who the local authority has a duty to support, including financially and emotionally. Secondly, it means that if they are accommodated for a sufficient period (13) weeks then on their 18th birthday they become ‘former relevant children’ – aka care leavers. Local authorities then have ongoing duties to support these young people and help them plan for an independent future.
The duties to young people leaving care last until they are 21, or until they are 25 (or potentially even beyond) if they are studying. These duties extend far beyond the right to a personal adviser and a ‘pathway plan’, important though these matters are to making sure young people head off into adulthood in the right direction. In particular, in R (S0) v Barking and Dagenham  EWCA Civ 1101, the Court of Appeal held that the duty under section 23C(4)(c) of the Children Act 1989, which requires local authorities to provide care leavers with ‘other assistance’ to the extent their welfare requires it, can require both accommodation and financial support to be put in place by the local authority.
Flaws in the system
So the legal requirements are clear. Children like Tommy whose parents are prevented from providing them with suitable accommodation or care should, if they wish, be accommodated and supported by children’s services, not housing. Once they turn 18, local authorities then need to give them the support they need to move on to successful independent lives as adults.
Yet the stories being told during National Care Leavers’ Week last week show how far away reality remains from the law for far too many vulnerable children and young people. The practical flaws in the system are also clear from two recent cases.
Firstly, in R (TG) v Lambeth LBC  EWCA Civ 526, the Court of Appeal had to go back in time and re-badge accommodation provided to a teenager under the Housing Act as having been provided under the Children Act, in order to ensure that TG could then benefit from leaving care status. The court was only able to do this because a children’s social worker had actually assessed TG as a child ‘in need’ but yet had still referred him to housing. At paragraph 5 of the judgment, the court told local authorities to take ‘urgent steps’ to remedy the failures of co-ordination between housing and children’s services departments.
A second case, widely reported this August, shows the consequences of the unlawful failures to support children ‘in need’ in stark relief. The Local Government Ombudsman found that Kent county council and Dover district council had breached their duties to a homeless 16-year-old who ended up living in a tent for nine months and selling his belongings to survive. A local youth centre manager referred the boy to Kent on three occasions but he was not even assessed, never mind provided with accommodation or support. Worse still, this young person had been in Kent’s care from the age of 12 to 14 and so was well known to the children’s services department.
The housing authority, Dover, had offered him bed-and-breakfast accommodation, but he had declined it because he was worried about being tempted back to offending and drug use. Offers of bed and breakfast accommodation to homeless teenagers continue to be made routinely, despite statutory guidance issued after the Southwark case saying that such accommodation is not suitable for children. This case is all the more depressing because a joint protocol requiring the councils to work together to meet the needs of homeless young people was supposedly in place.
There is nothing wrong with the legal framework designed to protect homeless children. There is everything wrong with the way it continues to be ignored in practice, despite the clearest possible judgments from the highest courts.
If we want things to change in this financial climate, local authorities are going to have to start to prioritise funding for children’s services and explain to their electorates that this is what the law requires.
Steve is a barrister at Doughty Street Chambers specialising in cases involving children 'in need' and disabled adults. He is a co-author of two Legal Action Group books, 'Children in Need: Local Authority Support for Children and Families' and 'Disabled Children: A Legal Handbook'. Steve previously worked in the voluntary sector for the National Autistic Society, TreeHouse (now called Ambitious about Autism) and the Every Disabled Child Matters campaign.