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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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A care home has been advised by an Ofsted Inspector that the

Customer Question

A care home has been advised by an Ofsted Inspector that the staff cannot stop a 12 year old child from absconding from the home because they are not a secure establishment authorised by the secretary of state under the current Ofsted guidance.

Surely if the staff believe that the child is at foreseable risk of serious injury or sexual assault then simply letting the child 'walk out' has to be a breach of some law, especially in light of recent sexual grooming and exploitation cases and operation 'Yew Tree'?

Any legal guidance on this would be very much appreciated.
Submitted: 4 years ago.
Category: Law
Expert:  Ash replied 4 years ago.

Alex Watts :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

When was this decision made please?

JACUSTOMER-hd05v25v- :

This is part of an ongoing Ofsted inspection right now

Alex Watts :

Do they have a policy in relation to this matter?

JACUSTOMER-hd05v25v- :

Yes they do have a policy. It is to stop a child from leaving if they believe that the child is at risk of foreseeable harm as defined by S. 31(9) and 31(10) of the Children Act 1989.

JACUSTOMER-hd05v25v- :

Ofsted's recent guidance for care homes however, states that unless they are a secure home, mandated by the Secretary of State, then they cannot lock a door or physically stop a child from leaving, irrespective of the risk.

Alex Watts :

What you can do is once they deal with the investigation is to seek a Judicial Review of the decision. This is where a High Court Judge examines a decision made by a Public Body and decides whether their actions are on the whole reasonable and legal.

Alex Watts :

Clearly in this case it would not appear to be legal in accordance with the Children Act 1989.

Alex Watts :

Further they have a policy and guidance that states contrary to what they are doing.

Alex Watts :

The court can also consider whether the actions taken are reasonable.

Alex Watts :

The Court can either agree with the decision or remit it back for further consideration.

Alex Watts :

You would probably need a Solicitor because there are Judicial Review pre action protocols to follow and Court rules and procedure.

Alex Watts :

Can I clarify anything for you about this today please?

JACUSTOMER-hd05v25v- :

No this doesn't sound right Alex. Surely it is good practice and good sense that care staff take reasonable steps to protect children from foreseeable harm. They have a duty of care towards the child under Health & Safety Legislation and a positive obligation to preserve life and prevent torture, inhumane and degrading treatment under Human RIghts legislation. Ofsted have it written in their guidance, but this is placing a duress on the care home provider to place a child at risk purely to satisfy Ofsted's 'tick-box' approach to compliance.

Alex Watts :

They have a duty of care but where a public body has taken a decision and you disagree with it then normally action is taken in terms of Judicial Review.

Alex Watts :

What you can not do is sue the Public body in this case Ofsted if no loss has occurred. You can not sue for a theoretical loss.

Alex Watts :

They do have a duty of care but you can not sue if there has been no loss. As for Human Rights you do have rights, but again this would only come into place in terms of Court action for loss or Judicial Review.

Alex Watts :

Does this clarify the position?