The local authority will normally look after unaccompanied and separated migrant children under Section 20 of the Children Act 1989. The majority of those children will be entitled to leaving care services.
The general aim of leaving care support is to provide the young person with parental guidance and support they would have received growing up in their own families.
Support from the leaving care service continues until at least the young person’s 21st birthday or up to 25 if in education or training.
The local authority should interpret ‘education or training’ broadly and can include a range of opportunities e.g.:
If at age 21 they not in education or training then support from leaving care will usually stop. However, the young person is entitled to a personal adviser up to the age of 25.
Eligible children are 16 or 17 years old, have been ‘looked after’ under section 20 for at least 13 weeks since the age of 14 and are still looked after. Relevant children are the same as eligible children but are no longer looked after. Upon turning 16, both eligible and relevant children should receive (if they have not done so already) an assessment of their needs. This should include information about education, health and development. The young person should also have a pathway plan and a personal adviser.
Former relevant children are 18-21 years old (or up to 25 in education and training and have been either/both an eligible or relevant child. The local authority should provide:
- a personal adviser;
- a pathway plan;
- financial assistance with employment, education and training (including a higher education bursary if the young person is at university);
- assistance in general (this may include accommodation if the young person’s welfare requires it);
- vacation accommodation for higher education if needed;
- the responsible authority is under a duty to keep in touch with them.
Qualifying children are young people under 21 (under 25 in education or training) who have stopped being looked after and don’t meet the 13 weeks criteria. Although they are not entitled to the main leaving care entitlements, they are entitled to advice, assistance and befriending.
The social worker must carry out an assessment of needs for a eligible or relevant child. They must then prepare a ‘pathway plan’.
Areas covered in the pathway plan include:
- accommodation
- practical life skills
- education and training
- employment
- financial support
- specific support needs, and
- contingency plans for support if independent living breaks down.
The local authority should record the pathway plan in writing and review it at least every six months. The local authority must involve the young person in the pathway plan and advise them that they can request a review.
The social worker should also plan for different outcomes of a child’s asylum or immigration case (triple planning). Planning for three possible outcomes after reaching 18 involves:
- equipping the young person for their future if they receive some form of leave to remain in the UK,
- preparing a young person for return if they exhaust their appeal rights and are to be returned, and
- supporting young people who have been refused leave to remain in the UK and who have exhausted all appeals but are not removed.
The young person can have their leaving care support removed if they have no leave to remain or outstanding application. However, the local authority must carry out a human rights assessment to determine would breach their human rights before they can remove their support.
The aim of such an assessment is to consider whether withdrawing support from a young person would result in a breach of either Article 3 (inhuman/degrading treatment) or Article 8 (right to family/private life) of the ECHR.
Case law has made clear that the young person should not be moved onto support under section 4 support.
It is important that the local authority take into account any obstacles to the young person’s departure from the UK. For example, the young person may not be able to obtain travel documents.
The young person may have a fresh claim for asylum or other immigration route. If they do, they should continue to receive leaving care support until resolution. It is not for the local authority to draw its own conclusions as to the merits of the claim.
If a young person receives a decision removing their leaving care support they can challenge the decision. There is no right of appeal. However, the local authority will have a complaints process to follow. If the complaints process is exhausted, the young person can receive advice on judicial review. The young person will need to raise judicial review proceedings within 3 months of the decision. There is an established procedure that needs to be followed before the judicial review is made. Legal aid is available for judicial review.
