59.All local authorities are required to appoint IROs, whose functions include:
participating in meetings to review care plans;
monitoring the performance of the authority’s functions in respect of the review; and
referring a case to an officer of the Children and Family Court Advisory and Support Service (CAFCASS), or in Wales, a Welsh family proceedings officer, if they consider it appropriate to do so.
60.The Review of Children’s Cases (Amendment) (England) Regulations 2004 set out the IRO’s additional responsibilities which include ensuring that:
the views of children and young people are understood and taken into account in care planning;
the persons responsible for implementing any decision taken in consequence of the review are identified; and
any failure to review the case or to take proper steps to implement review recommendations is brought to the attention of persons at an appropriate level of seniority within the responsible authority.
61.Section 10 replaces section 26(2)(k) and (2A) to (2D) of the 1989 Act with new sections 25A to 25C that set out:
requirements regarding the appointment of an Independent Reviewing Officer (“IRO”) for each looked after child;
the IRO’s functions; and
an associated provision enabling the functions of CAFCASS officers and Welsh family proceedings officers to be extended.
62.Sections 25A(1) to (3) have the effect that when a child first becomes looked after, a named individual must be appointed by the local authority as the IRO for the child. The appointment must be made before the child’s case is first reviewed (i.e. within four weeks of the date on which the child begins to be looked after) and the local authority must appoint another IRO if a vacancy should arise. The intention is that each looked after child should have a named IRO, to provide continuity in the oversight of the case and to enable the IRO to develop a relationship with the child.
63.Section 25A(4) replaces the power of the appropriate national authority to require, by regulation, the IRO to be of a prescribed description.
64.Section 25B(1) set out the functions of the IRO which replaces section 26(2A) of the 1989 Act, adding the following new functions:
Section 25B(1)(a) introduces a duty on the IRO to monitor the local authority’s performance of its functions in relation to the child’s case. This duty will extend the IRO’s existing monitoring role which is currently confined to the authority’s functions in respect of the review;
Section 25B(1)(c)introduces a requirement for the IRO to ensure that the local authority give due consideration to any views expressed by the child, which is intended to reinforce the local authority’s duty under section 22(4) and (5) of the 1989 Act to ascertain and give due consideration to the wishes and feelings of the child when making any decision with respect to the child.
65.Section 25B(2) replaces the regulation making power in section 26(2)(k) of the 1989 Act, enabling the appropriate national authority to prescribe the manner in which the IRO functions are to be performed. In addition, it gives a new power to the appropriate national authority to issue guidance to which IROs must have regard in relation to the discharge of their functions. Section 25B(4)imposes a new duty on the local authority to cooperate with the IRO and take all reasonable steps to enable the IRO to perform his functions.
66.Sections 25B(3)and 25C(1) and (2) replace section 26(2A)(c) and (2C) which relate to the IRO’s existing function of referring the child’s case to an officer of CAFCASS or the equivalent in Wales, if he considers it appropriate to do so. The original provisions were inserted in the 1989 Act by the Adoption and Children Act 2002 in response to a House of Lords judgment in the conjoined appeals of Re S and Re W [2002] UKHL 10, [2002] 2 AC 291 (previously known as Re W, W and B) which concerned the respective roles of the courts and local authorities in care planning. The judgement concluded that the courts have no general power to monitor the discharge of the local authority’s functions but that a local authority that failed in its duties to a child could be challenged under the Human Rights Act 1998. However the judgement also expressed concern that some children with no adult to act on their behalf may not have any effective means to initiate such a challenge. The IRO’s power to refer the child’s case to a CAFCASS officer provides a remedy for this problem.
67.The intention is that these changes to the statutory framework will enable the IRO to have a more effective independent oversight of the child’s case and ensure that the child’s interests are protected.
68.Section 11(1) enables the Secretary of State by order either to:
establish a new body corporate to discharge such functions as may be conferred on it; or
confer additional functions (of the same nature) on CAFCASS.
69.The intention is that this power will be used to establish a national IRO service, if the amendments made by section 10 to the existing statutory framework do not prove to be effective in achieving significant improvements in the outcomes for looked after children.
70.The functions that may be conferred on the new IRO service include functions in connection with:
providing training and accreditation for IROs; and
appointing and/ or managing IROs (section 11(2)).
71.The power would also enable the Secretary of State to make consequential modifications to any enactment (both primary and secondary legislation) in relation to independent reviewing officers or in relation to CAFCASS (section 11(3)).
72.Section 11(4)enables the inspection of any new body to be added to the responsibilities of the registration authority and for the body to exercise its functions in accordance with directions given by the Secretary of State.
73.Exercise of the powers in section 11 are subject to the affirmative resolution procedure (section 40(2) and see paragraph 18 for further explanation of the Parliamentary procedure).
74.Section 12(1) enables Welsh Ministers by order either to:
establish a new body corporate to discharge such functions as may be conferred on it; or
provide for the discharge by them of such functions as may be conferred on them.
The intention is that this power will be used to establish a national IRO service in Wales, similar to the power in section 11 to establish a national IRO service in England.
75.Section 12(2) and (3)mirrors section 11(2) and (3)in relation to England.
76.Section 12(4)(a)will enable independent inspection of any new body established in exercise of the powers under this section and for the order to make consequential modifications to any enactment (both primary and secondary legislation) in relation to the carrying out of inspections. Section 12(4)(b) provides for the body to exercise its functions in accordance with directions given by Welsh Ministers.
77.Orders made under section 12 will be subject to a special affirmative procedure that is described in paragraphs 155 to 157.
78.Section 13 provides that an order under sections 11 and 12 may also:
confer on the recipient power to do anything which is incidental or conducive to, or designed to facilitate, the discharge of that function (Section 13(1));
authorise the recipient to charge fees for the discharge of any function conferred by that order, for example for providing training. It is implicit that these fees must be of a reasonable amount having regard to the cost of performing the function to which the fee relates (section 13(2));
transfer property, rights and liabilities to the new service (section 13(3)) and if in doing so it would affect employees rights, for example by transferring employees from local authority employment to the new service, the order must make provision for the Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply (section 13(4)); and.
require the new IRO service to establish a complaints procedure (section 13(5)).
79.Section 14 is a “sunset clause”: if no order has been made under section 11 within 7 years from the day the Act receives Royal Assent, then sections 11and 13 will cease to have effect in relation to England. Similarly provision is made for sections 12 and 13 to cease to have effect in relation to Wales, if no order has been made under section 12 within 7 years from the day the Act receives Royal Assent.
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