Practice Note: Who is a former relevant child?

Certain young adults are entitled to continued support and, sometimes, accommodation from local authority children’s services. Colloquially, they are referred to as ‘care leavers’. In reality, it is by and large the group known as ‘former relevant children’ who are owed the widest range of powers and duties by local authority social services.

The term is statutorily defined. To be a former relevant child, the young person must have been:

1. A child in need (s17 of the Children Act 1989)
2. Accommodated by the local authority (under a care order or under a social services function, including ss20, 21 and 25 of the Children Act 1989)
3. Accommodation by the local authority must have been for at least 13 weeks from the age of 14, at least one of those days has to be over the age of 16 (s23C(1)

To determine whether a young person is a former relevant child, practitioners must consider two main issues:

1. Who accommodated the young person before s/he turned 18?
2. Was the accommodation under s20 of the Children Act 1989?

Who accommodated the young person?

This is not just a question of who provided the actual accommodation but who arranged the accommodation. If on the facts of the case, the local authority played a major role in arranging the accommodation, the accommodation must be treated as accommodation provided by the Local Authority, and under s20 (a point addressed below).

See D v Southwark [2007] EWCA Civ 182 per Janet Smith LJ at §50:

Where a local authority takes a major rule in making arrangements for a child to be fostered it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23.

Applied in R (A) v Coventry City Council [2009] EWHC 34 (Admin) where the Court held it unlawful for a local authority to deny a s20 duty is owed to a homeless child who was placed by social services with a family friend. The judge rejected the local authority’s argument that the placement was a private fostering arrangement and held that where the carer is led to believe that she would receive financial support from social services when consenting to looking after a child, that cannot be said to be a private arrangement that can absolve a local authority from duties under s20 of the Children Act 1989: §65 of the judgment. See also §59 of the judgment.

Was the accommodation under s20?

The issue of s20 accommodation has been subject to much litigation. For the purpose of determining whether a young person is a former relevant child, the question of s20 accommodation relates more to the facts of what was happening at the time rather than whether the young person wished to have been s20 accommodated. It will depend quite a bit on social services records to tell the historical narrative.

The correct legal test for determining whether a duty to accommodate under s20 arose is set out by Ward LJ in R (A) v Croydon LBC [2008] EWCA Civ 1445 and approved by Lady Hale at §28 (at 1308C et seq) of G v Southwark:

1. Is the applicant a child?
2. Is the applicant a child in need?
3. Is she within the local authority’s area?
4. Does she appear to the local authority to require accommodation?
5. Is that need a result of:
   1. There being no person who has parent responsibility for her;
   2. Her being lost or having been abandoned; or
   3. Person who has been caring for her being prevented from providing her with suitable accommodate or care?
6. What are the child’s wishes and feelings regarding the provision of accommodation for her?
7. What consideration (having regard to her age and understanding) is duly to be given to those wishes and feelings?
8. Does any person with parental responsibility who is willing to provide accommodation for her object to the local authority’s intervention?
9. If there is objection, does the person in whose favour a residence order is in force agree to the child being looked after by the local authority?

If questions above are answered in favour of the young person, the need for accommodation is satisfied and a mandatory duty to provide accommodation is owed by the local authority: §28 per Lady Hale in G v Southwark.

Further questions for practitioners to consider:

• Did the young person present to social services?
• If so, did social services accommodate?
• If so, did they call it s17 accommodation?
• In the alternative, did social services make the referral to housing (unlawfully)?
• Did the young person present to housing?
• Did they refer young person to social services?
• Did social services carry out an assessment? Should they have done?
• Was social services involved / aware? Extent of involvement?

Often this involves a trawl of social services records and housing files. Periods of accommodation may be disjointed short periods of accommodation; reference may be made (wrongly) to social services referrals to housing and being provided with emergency B&B or hostel accommodation by housing via a social services referral. The question to ask is whether, and if so, how, social service were involved in arranging accommodation for the young person.

See the obiter comments of Lady Hale in R (M) v Hammersmith and Fulham LBC [2008] UKHL 14; [2008] 1 WLR 535 at §25 et seq as to what ought to have happened in cases where a young person presented to housing, i.e. refer to children’s services. Housing cannot be satisfied that a young person was in priority need for the purposes of longer-term housing obligations unless they had at least considered whether the young person was owed a duty under s20.

Affirmed by Lady Hale’s speech in G v Southwark. This procedural of referrals by the housing department to children’s services is now adopted in the Statutory Guidance issued by the DCSF, Provision of Accommodation for 16 and 17 year olds may be homeless and / or require accommodation.

If it can be established that accommodation provided to the young person was in fact or ought to have been s20 accommodation, arguably social services should treat the young person as such.