28. Many people perceive the sexual abuse of children in care to have been a problem of the past. Abuse has occurred in many local authorities.^[1] The Inquiry’s investigations into the sexual abuse of children in the care of Lambeth Council and of the Nottinghamshire Councils found abuse akin to that uncovered by inquiries of the 1990s, where systemic abuse was found to have taken place in children’s residential homes and by some carers.^[2] In both investigations, the Inquiry concluded that the true number of victims of child sexual abuse was likely to be higher than the local authorities had been able to identify.^[3]

29. The contemporary approach to children who are in the care of a local authority (known as ‘looked after children’) is different in many respects. The Children Act 1989 (and its associated guidance and regulations) introduced fundamental changes to the regulation and inspection of institutions responsible for children in care.

30. There are also significantly fewer children in residential care today than there were in the past. In 1973, 59 percent of looked after children in England and in Wales were in residential placements.^[4] In England at the end of March 2021, there were 11,550 looked after children in secure units, children’s homes and semi-independent living accommodation, amounting to 14 percent of the total. By comparison, 57,330 (71 percent) were living in foster placements.^[5] In Wales, at the end of March 2021, there were 535 looked after children in residential settings (7 percent) and 5,070 in foster placements (70 percent).^[6] Many children in care are placed in other settings by the local authority, including private and voluntary or third sector settings.

31. The number of looked after children has increased every year since 2010. Between 2018 and 2021, there was a 7 percent increase in the number of looked after children in England, from 75,370 to 80,850.^[7] Over the same period in Wales there was a 13 percent increase, from 6,406 to 7,263.^[8] In 2022, children accommodated in residential settings are likely to be those for whom foster care is not suitable, possibly as a result of the child’s own heightened needs, which may in turn be a result of their early childhood experiences.^[9] As a group, children in residential homes tend to be older than the general population of children in care (with an average age of 14.6 in March 2015).^[10] Older children in care are 50 percent more likely to have an Education, Health and Care Plan or a Statement of Special Educational Needs, and are 10 times more likely to have been attending a pupil referral unit than those under 13.^[11] Generally speaking, and for a range of reasons, young people in residential care are more likely than their peers to have suffered hardship and to be disempowered by their circumstances. Experiences of trauma while living in the parental home are likely to have occurred.

32. This makes looked after children particularly vulnerable to sexual abuse and exploitation.^[12] Around half of children whose cases were considered as part of the Inquiry’s Child Sexual Exploitation by Organised Networks Investigation Report were children in care.^[13] Prevailing prejudices concerning a person’s vulnerability, such as social isolation and prior trauma, can be manifested as additional barriers for a looked after child who discloses sexual abuse.^[14] This makes it even more difficult for those children to get the help they need.

33. Young people in care are uniquely placed to identify what needs to change to keep them safe. They are often acutely aware that their vulnerability can be increased by problems such as ‘drift’ in their care planning, distance from their family and community, and living in inappropriate locations.^[15] Children in care are also in a different legal position – decisions are made on their behalf by local authorities, who act as their ‘corporate parent’ and organise their placement with alternative carers.

34. Young people living in residential care may feel that they have little control or say over aspects of their lives. Whereas a young person in a family home might have the opportunity and ability to challenge their parents about issues such as school choice, or rules about going out in the evenings, who they can and cannot see and who they can have relationships with, young people in care may feel less able to test, discuss and bend rules.

35. A striking illustration of this is the well-recognised pattern of children going missing from care when they are unhappy with their circumstances. They may do so for many reasons (including, simply, a wish to return to their families). In some cases they do so because they are seeking to avoid situations where they are at risk of sexual abuse or exploitation at (or in the vicinity of) their placements.^[16] One victim described his desperate wish to escape sexual abuse by “any means necessary”, including by running away.^[17] A thematic assessment of Truth Project accounts of child sexual abuse in residential care found that 24 percent of children abused in residential contexts ran away:

“Running away was reported to be a common response to the experience of sexual abuse at the time amongst other techniques to try to escape it”.^[18]

Sections 8 and 9 of the Children Act 1989

36. There are several routes by which children and young people in care can express their views about their circumstances.

36.1. Section 22(4) of the Children Act 1989 states that before making any decision with respect to a looked after child, a local authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child. Many local authorities in England have Children in Care Councils which provide opportunities for children in care to share their views.^[19] These were established “to ensure that every child has the opportunity to air their views” and so that “children and young people should be able to put their experiences of the care system directly to those responsible for corporate parenting”.^[20]

36.2. Local authorities must also make arrangements for advocacy provision for children and young people in receipt of social care services who wish to make a representation under section 26A of the Children Act 1989. Local authorities must monitor the steps they have taken, in particular by keeping a record of the advocate appointed to the child or young person.

36.3. Ofsted conducts an annual children’s social care survey to seek the views of children in care.^[21]

36.4. The Children’s Commissioners for England and for Wales frequently conduct surveys and other research to establish the views of children in care.^[22]

36.5. Several charities and third sector organisations that provide advocacy services conduct regular surveys, forums or focus groups with children in care and care leavers. For example, Become supports the All-Party Parliamentary Group (APPG) for children in care and care leavers, Barnardo’s runs specialist advocacy services, as do the National Youth Advocacy Service, Action for Children, Article 39 and the Children’s Society.^[23] There are many more local advocacy organisations.

37. Children can also make a formal complaint about their care (for example, under the Local Authority Social Services Act 1970, to Children’s Commissioners, or to the Local Government Ombudsman).^[24]

38. These services and provisions do not, however, change the legal position of children in care. There are only limited routes by which children in care can compel a local authority to take a different approach to their care from one that it proposes. The legal position of children in care should be improved, so that they can be empowered to challenge aspects of local authority decision-making for themselves.

39. The Children Act 1989 (the 1989 Act) separates the powers of courts from those of local authorities. Courts can make orders under section 8 of the 1989 Act to limit or mandate an aspect of parents’ exercise of their parental responsibility. A court has no such ability in respect of a child in care. Where a court finds that parents’ actions have caused a child to experience, or be at risk of, significant harm, it may make a care order so that a local authority effectively has ‘overriding’ parental responsibility over that child.^[25] The local authority then has day-to-day care of, and control over, the child as their ‘corporate parent’.^[26] Section 9 of the 1989 Act prevents section 8 orders being made against parents in respect of children who are the subject of a care order.^[27]

40. The effect of this legal regime is to create a separation of powers between courts and local authorities. Courts can make decisions about children who are not in care, but only local authorities can make decisions about children who are in care.

41. In a number of cases, senior judges have observed that this ‘separation of powers’ gave rise to serious practical and legal problems for children.^[28] The government responded by introducing an Independent Reviewing Officer, who can refer a child’s case to court.^[29] However, that power is rarely used in practice^[30] and in a number of cases senior judges have commented on their limited utility.^[31]

42. The other ways in which children in care can apply to the court for orders to control a local authority’s actions are of limited use in practice.

42.1. A child can request that a court discharge a care order but this is likely to be unrealistic where a child has no alternative carer, and a court considering such an application has no power to control how the local authority exercises its parental responsibility.^[32]

42.2. Children can, and sometimes do, bring applications under the Human Rights Act 1998 for injunctions, declaratory relief or damages.^[33] In those cases, children are represented by an adult acting as their ‘litigation friend’ who can conduct proceedings on their behalf (often the Official Solicitor, who is an officer of the Supreme Court).^[34] Children receive legal aid for such applications but rarely bring them themselves.^[35] They are not proceedings in which courts will place paramount importance on a child’s welfare, and instead courts are required to balance the child’s rights against the proportionality of the measure and whether or not it is targeted at a legitimate aim.^[36]

42.3. Experience shows that judicial review is little-used by children. In order to succeed, a child applicant would need to show that a local authority had acted in a way that is illegal, irrational or procedurally improper. Those are high thresholds which are not often met in the course of challenging care decisions; such a decision might be contrary to a child’s welfare, against their wishes and one of a range of options that the local authority had, without necessarily being ‘illegal’ or ‘irrational’.

43. There needs to be a route by which children in care can apply to the family courts for orders to mandate or limit a local authority’s exercise of its parental responsibility.

44. Children should be able to bring an application under the 1989 Act so that a court’s paramount consideration is the child’s welfare. The Inquiry therefore recommends an amendment to the 1989 Act.

45. A court should make such orders only where it is satisfied that a child will otherwise experience significant harm that is attributable to the care of a local authority not being what it would be reasonable to expect a local authority to give him or her (thereby mirroring the language presently at section 31 of the 1989 Act). That harm need not be limited to harm caused to a child while physically in local authority care, but any harm that a child experiences while they are a looked after child. This may apply, for example, to cases of children who have been, or become, victims of child sexual exploitation and are looked after by a local authority, and who through inappropriate placement or inadequate supervision experience further such abuse.

46. Courts must be careful to ensure that the operation of a threshold does not place an unduly high burden of proof on a child litigant during the preliminary stages of an application. It should be sufficient that there is reasonable cause to believe that a child might experience such harm on their own account and, once raised, the underlying facts should be explored on an inquisitorial rather than adversarial basis.

47. In exercising the powers envisaged, courts should be able to make a wide range of orders against a local authority similar to the range of powers they have against parents under section 8 of the 1989 Act. This would not enable the court to create alternative care plans for children, and courts should continue to have regard to local authorities’ finite resources and competing statutory obligations. However, this change would ensure that vulnerable children at risk of harm had recourse to court about a range of aspects of their care and that their welfare would be the court’s paramount consideration.

48. The court should also have powers akin to those under section 8 of the 1989 Act to prohibit a course of action, to prohibit the continuation of an ongoing set of circumstances and to make directions to ascertain the courses of action available to a local authority which are in the child’s best interests. Those powers, together with the other powers available under the 1989 Act and in the Administrative Division of the High Court, would encourage (if not compel) alternative care decisions.

49. Necessary safeguards should be introduced at a preliminary stage of proceedings to ensure the maturity, independence and authenticity of the child’s views, and to guard against any pressure being brought to bear on children.

50. The amendment should be accompanied by the introduction of procedural measures to ensure that applications are realistically accessible to children in care, including consideration of whether it is appropriate for those who hold parental responsibility to automatically be respondents to applications. There should also be provision for legal aid for prospective applicants to provide advice and assist with representation.