Delicate blooms

Laudable government efforts to educate looked after children are producing new obligations warns Richard Bird.

There used to be a set book for CSE and GCE exams called King of the Barbareens. It was the autobiography of Janet Hitchman, who was orphaned and trapped in care between the wars. It described endless knockbacks, culminating in her losing a place at a school where she might have thrived. Objectively, her problem seemed to be her attitude, yet to her it all occurred "in a mist. I know not how."

Recent statistics suggest not much progress has been made since then. Young people in public care are seven times as likely to be excluded from school. In the good economic times, they were three times as likely to be unemployed and twice as likely to be convicted of an offence.

In 2007, achievement of five GCSE A*-C grades among looked after children was 13 per cent compared to the national average of 62 per cent. Some 32 per cent did not sit GCSEs at all.

To its great credit the government has set out to make a difference. This has created new legal and quasi-legal obligations for schools and colleges.

Care orders

Under the 1989 and 2004 Children Acts, a child is held to be in public care if s/he is subject to a court care order, subject to an emergency protection order or being compulsorily accommodated for more than 24 hours.

Care orders will be made only if the court concludes that: it is better than making no order; it is in the interest of the child to make the order; and the child is suffering, or likely to suffer, significant harm attributable to the care given or likely to be given to the child by the parent (and that this care is not reasonable). Alternatively, an order can be made where the child is beyond parental control. In all of this the welfare of the child is paramount.

For schools and colleges, the first issue is who the parent is. The answer is 'a lot of people': registered birth parents, the local authority as a corporate parent (usually the relevant social worker), and foster carers (the guidance states that "a person who the child lives with and who looks after the child, irrespective of what their relationship is, is considered to be a parent").

Duties to promote the welfare of children were laid on local authorities (LAs) in the Children Act 1989 and on maintained schools and independent schools in the Education Act 2002 and associated regulations. The Children Act 2004 put an obligation on public authorities to cooperate to promote the welfare and the educational achievement of looked after children; the Education and Skills Act 2008 placed a duty on schools and further education institutions to promote achievement through regular attendance.

The bulk of these duties falls on LAs. However, schools have a duty to promote high standards of educational achievement and are expected to cooperate both with each other and with the authority in regards to looked after children. As with all statutory guidance, schools must have good reasons not to follow it.

Specific provisions under statutory guidance, regulations or statute include: priority in admissions; personal education plans (supported by a non-ring-fenced personal education allowance of £500 per student and a £2,000 higher education bursary); a requirement for a designated governor and member of staff (draft regulations effectively say a teacher) in every school and college to track and support the interests of looked after children (section 20 of the Children and Young Persons Act 2008); exclusion as absolutely the last resort and full-time education provided from the first day of an exclusion; and that a child needing a school should be placed in one within 20 days.

Virtual schools

The new Apprentices, Skills, Children and Learning Bill finally lays down that schools, too, should cooperate with other agencies. This may have serious consequences. In a case last year (X v London borough of Hounslow) a local authority was held liable for failing to communicate about a vulnerable adult within the authority.

Similarly a school or college could be at risk over a looked after child. It will be more important than ever to ensure that copies of letters are kept and that notes of phone calls are made. Cooperation will be particularly important with the heads of virtual schools for looked after children, which many authorities are creating.

Like Janet Hitchman, looked after children may try the patience of staff. But it is important that all staff understand why they are being asked to persevere with this vulnerable group. It is a matter of legal duty as well moral and professional obligation.