Children Act 1989, section 26

Review of cases and inquiries into representations

Part III SUPPORT FOR CHILDREN AND FAMILIES PROVIDED BY LOCAL AUTHORITIES IN ENGLAND

(1)The [F458 Secretary of StateF458] may make regulations requiring the case of each child who is being looked after by a local authority to be reviewed in accordance with the provisions of the regulations.

(2)The regulations may, in particular, make provision—

(a)as to the manner in which each case is to be reviewed;

(b)as to the considerations to which the local authority are to have regard in reviewing each case;

(c)as to the time when each case is first to be reviewed and the frequency of subsequent reviews;

(d)requiring the authority, before conducting any review, to seek the views of—

(i)the child;

(ii)his parents;

(iii)any person who is not a parent of his but who has parental responsibility for him; and

(iv)any other person whose views the authority consider to be relevant,

including, in particular, the views of those persons in relation to any particular matter which is to be considered in the course of the review;

(e) requiring the authority F459 . . . , in the case of a child who is in their care

[F460 (i)to keep the section 31A plan for the child under review and, if they are of the opinion that some change is required, to revise the plan, or make a new plan, accordingly,

(ii)to considerF460] , whether an application should be made to discharge the care order;

(f) requiring the authority F461 . . . , in the case of a child in accommodation provided by the authority

[F462 (i)if there is no plan for the future care of the child, to prepare one,

(ii)if there is such a plan for the child, to keep it under review and, if they are of the opinion that some change is required, to revise the plan or make a new plan, accordingly,

(iii)to considerF462] , whether the accommodation accords with the requirements of this Part;

(g)requiring the authority to inform the child, so far as is reasonably practicable, of any steps he may take under this Act;

(h)requiring the authority to make arrangements, including arrangements with such other bodies providing services as it considers appropriate, to implement any decision which they propose to make in the course, or as a result, of the review;

(i)requiring the authority to notify details of the result of the review and of any decision taken by them in consequence of the review to—

(i)the child;

(ii)his parents;

(iii)any person who is not a parent of his but who has parental responsibility for him; and

(iv)any other person whom they consider ought to be notified;

(j)requiring the authority to monitor the arrangements which they have made with a view to ensuring that they comply with the regulations.

F463( k ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F464( 2A ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F464(2B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F464( 2C ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F464( 2D ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by—

(a)any child who is being looked after by them or who is not being looked after by them but is in need;

(b)a parent of his;

(c)any person who is not a parent of his but who has parental responsibility for him;

(d)any local authority foster parent;

(e)such other person as the authority consider has a sufficient interest in the child’s welfare to warrant his representations being considered by them,

about the discharge by the authority of any of their [F465 qualifying functions F465] in relation to the child.

[F466 (3A)The following are qualifying functions for the purposes of subsection (3)—

(a)functions under this Part,

(b)such functions under Part 4 or 5 as are specified by the [F467 Secretary of StateF467] in regulations.

(3B)The duty under subsection (3) extends to representations (including complaints) made to the authority by—

(a)any person mentioned in section 3(1) of the Adoption and Children Act 2002 (persons for whose needs provision is made by the Adoption Service) and any other person to whom arrangements for the provision of adoption support services (within the meaning of that Act) extend,

(b)such other person as the authority consider has sufficient interest in a child who is or may be adopted to warrant his representations being considered by them,

about the discharge by the authority of such functions under the Adoption and Children Act 2002 as are specified by the [F468 Secretary of StateF468] in regulations.F466]

[F469 (3C)The duty under subsection (3) extends to any representations (including complaints) which are made to the authority by—

(a)a child with respect to whom a special guardianship order is in force,

(b)a special guardian or a parent of such a child,

(c)any other person the authority consider has a sufficient interest in the welfare of such a child to warrant his representations being considered by them, or

(d)any person who has applied for an assessment under section 14F(3) or (4),

about the discharge by the authority of such functions under section 14F as may be specified by the [F470 Secretary of StateF470] in regulations.F469]

(4)The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in—

(a)the consideration; and

(b)any discussions which are held by the authority about the action (if any) to be taken in relation to the child in the light of the consideration

[F471 but this subsection is subject to subsection (5A).F471]

[F472 (4A)Regulations may be made by the [F473 Secretary of StateF473] imposing time limits on the making of representations under this section.F472]

(5)In carrying out any consideration of representations under this section a local authority shall comply with any regulations made by the [F474 Secretary of StateF474] for the purpose of regulating the procedure to be followed.

[F475 (5A)Regulations under subsection (5) may provide that subsection (4) does not apply in relation to any consideration or discussion which takes place as part of a procedure for which provision is made by the regulations for the purpose of resolving informally the matters raised in the representations.F475]

(6)The [F476 Secretary of StateF476] may make regulations requiring local authorities to monitor the arrangements that they have made with a view to ensuring that they comply with any regulations made for the purposes of subsection (5).

(7)Where any representation has been considered under the procedure established by a local authority under this section, the authority shall—

(a)have due regard to the findings of those considering the representation; and

(b)take such steps as are reasonably practicable to notify (in writing)—

(i)the person making the representation;

(ii)the child (if the authority consider that he has sufficient understanding); and

(iii)such other persons (if any) as appear to the authority to be likely to be affected,

of the authority’s decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take.

(8)Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate.

Definitions used in section 26 12

child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
local authority

“local authority” means, in relation to England ..., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act 1968 ;

Defined in s.105(1) · see it in the full Act
parent

(2) In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

Defined in Sch.1 para.16(2) · see it in the full Act

21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996 . ).

Defined in Sch.3 para.21 · see it in the full Act
parental responsibility

“parental responsibility” has the meaning given in section 3;

Defined in s.105(1) · see it in the full Act

(1) In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

Defined in s.3(1) · see it in the full Act
section 31A plan

“section 31A plan” has the meaning given by section 31A(6);

Defined in s.105(1) · see it in the full Act
a care order

“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

Defined in s.31(11) · see it in the full Act
care order

“care order” has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order;

Defined in s.105(1) · see it in the full Act
service

“service”, in relation to any provision made under Part III, includes any facility;

Defined in s.105(1) · see it in the full Act
local authority foster parent

“local authority foster parent” means a person authorised as such in accordance with regulations made by virtue of—

(a)

paragraph 12F of Schedule 2; or

(b)

sections 87 and 93 of the Social Services and Well-being (Wales) Act 2014 (regulations providing for approval of local authority foster parents);

Defined in s.105(1) · see it in the full Act

“local authority foster parent” has the meaning given in section 22C(12);

Defined in s.105(1) · see it in the full Act
functions

“functions” includes powers and duties;

Defined in s.105(1) · see it in the full Act
special guardianship order

“special guardian” and “special guardianship order” have the meaning given by section 14A;

Defined in s.105(1) · see it in the full Act
special guardian

“special guardian” and “special guardianship order” have the meaning given by section 14A;

Defined in s.105(1) · see it in the full Act

Cases considering section 26 19

RE v North Yorkshire County Council & Ors

[2015] EWCA Civ 1169 · 17 November 2015Limits

The court treated the section 26 consultation and review duties as directory, but as an important statutory discipline protecting parental participation and the child’s welfare. Absolution from those duties is justified only in exceptional circumstances, which were not established here. (see paras [26]-[31])

W & Ors (Children), Re

[2001] EWCA Civ 757 · 23 May 2001

The provision establishes local-authority review and complaints processes. Those processes support the authority’s continuing responsibility for care management but may require a limited judicial reporting safeguard where Convention rights are genuinely at risk (see paras [63]; [78]-[81]).

Bury Metropolitan Borough Council v ML & Ors

[2022] EWHC 746 (Fam) · 4 April 2022

The provision formed part of the local authority’s statutory obligations concerning information and consultation in relation to a looked-after child. The court held that relief from those obligations required reasonable cause to believe that significant harm would otherwise occur and exceptional circumstances, neither of which was established. (see paras [56], [78]-[80])

2 more judgments, and what each says about section 26, are in the case-law panel in the full Act.

Amendments and notes

20 notes from legislation.gov.uk

Amendments

  1. F458Words in s. 26(1) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(a)
  2. F459Words in s. 26(2)(e) omitted (21.5.2004) and repealed (30.12.2005) by virtue of 2002 c. 38, ss. 118(1)(a), 139, 148, Sch. 5 (with Sch. 4 paras. 6-8); S.I. 2004/1403, art. 2; S.I. 2005/2897, art. 2(b)
  3. F460Words in s. 26(2)(e) inserted (21.5.2004) by 2002 c. 38, ss. 118(1)(a), 148 (with Sch. 4 paras. 6-8); S.I. 2004/1403, art. 2
  4. F461Words in s. 26(2)(f) omitted (21.5.2004) and repealed (30.12.2005) by virtue of 2002 c. 38, ss. 118(1)(a), 139, 148, Sch. 5 (with Sch. 4 paras. 6-8); S.I. 2004/1403, art. 2; S.I. 2005/2897, art. 2(b)
  5. F462Words in s. 26(2)(f) inserted (21.5.2004) by 2002 c. 38, ss. 118(1)(b), 148 (with Sch. 4 paras. 6-8); S.I. 2004/1403, art. 2
  6. F463S. 26(2)(k) repealed (1.4.2011 for E., 6.4.2016 for W.) by Children and Young Persons Act 2008 (c. 23), ss. 10(3)(a), 44(4), Sch. 4; S.I. 2010/2981, art. 4(c)(l) (with art. 5); S.I. 2016/452, art. 2(c) (with art. 3)
  7. F464S. 26(2A)-(2D) repealed (1.4.2011 for E., 6.4.2016 for W.) by Children and Young Persons Act 2008 (c. 23), ss. 10(3)(b), 44(4), Sch. 4; S.I. 2010/2981, art. 4(c)(l) (with art. 5); S.I. 2016/452, art. 2(c) (with art. 3)
  8. F465Words in s. 26(3) substituted (30.12.2005) by 2002 c. 38, ss. 117(5), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)
  9. F466S. 26(3A)(3B) inserted (7.12.2004 for specified purposes and otherwise 30.12.2005) by 2002 c. 38, ss. 117(4), 148 (with Sch. 4 paras. 6-8); S.I. 2004/3203, art. 2(1)(m)(xi); S.I. 2005/2213, art. 2(k)
  10. F467Words in s. 26(3A) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(b)
  11. F468Words in s. 26(3B) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(c)
  12. F469S. 26(3C) inserted (17.1.2005 for E. and 30.12.2005 for W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), s. 117(1); S.I. 2005/38, art. 2(a); S.I. 2005/2925, art. 8; S.I. 2005/3285, art. 2(1)
  13. F470Words in s. 26(3C) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(d)
  14. F471Words in s. 26(4) inserted (30.12.2005 ) by 2002 c. 38, ss. 117(5), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)
  15. F472S. 26(4A) inserted (7.12.2004) by 2002 c. 38, ss. 117(6), 148 (with Sch. 4 paras. 6-8); S.I. 2004/3203, art. 2(1)(m)(xi)
  16. F473Words in s. 26(4A) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(e)
  17. F474Words in s. 26(5) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(f)
  18. F475S. 26(5A) inserted (30.12.2005) by 2002 c. 38, ss. 117(7), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)
  19. F476Words in s. 26(6) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 90(g)

Commencement

  1. I23S. 26 wholly in force at 14.10.1991, see s. 108(2)(3) and S.I. 1991/828, art. 3(2)