Decision to Look After

Recent developments have sought to move away from the idea that Section 20 accommodation should not be used for lengthy periods of time (as propounded by Munby LJ in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713).  However, the courts have also been clear that use of Section 20 should not be used to delay the issue of care proceedings in appropriate cases – see Section 3.5, The use of Section 20 prior to Court Proceedings.

The PLWG Report stated at paragraph 234  that ‘there should be no imposition of time limits for the use of Section 20. There are no legal time limits in place. The imposition of time limits will be counterproductive. However, it is recommended that, where possible, the purpose and the duration of any Section 20 accommodation is agreed at the outset and regularly reviewed’.

King LJ in Re S (A Child) and Re W (A Child) (s 20 Accommodation) stated ‘I can see no inhibition on a Section 20 order being made in appropriate circumstances for a longer period of accommodation provided that proper consideration is given to the purpose of the accommodation and that the regular mandatory reviews are carried out’.

In that case the Court of Appeal allowed appeals against the making of care orders, with the result that the children would remain in long-term placements provided by the local authorities under Section 20.  The children were settled in long-term placements which were meeting their respective needs in circumstances where both the placements and the accompanying care plans were supported by the parents. 

Public Law Working Group (PLWG) Best Practice Guidance: Section 20/Section 76 Accommodation states that there are many scenarios in which Section 20 is used positively and these include situations of family support (e.g. Short Term Breaks) and where parents are unable to care for children, for whatever reason, and there are no agreed alternative family or friends to undertake this. In all cases the context and purpose for which Section 20 is being considered should be identified. This may be short-term accommodation during a period of assessment or respite; alternatively, it may be a longer period of accommodation, including the provision of education or medical treatment.

Particular regard must be paid to the child's age. Different considerations, including the purpose and duration, may be heavily influenced depending on the age group of the relevant child. The PLWG Best Practice Guidance advises considering the groups as follows (a) newborn and very young babies, (b) toddlers up to five years of age, (c) six years' old to preteens, (d) teens but under sixteen years' old, and (e) sixteen years' old or older when the child can consent to accommodation. The voice of the child must be clearly recorded and stated.

The Best Practice Guidance states that separation of a newborn or a young baby from their parents is scarcely appropriate under the provisions of Section 20. The circumstances in which this is appropriate are very rare. The (limited) appropriate use of Section 20 in this context may include circumstances where the parents need a very short period in a residential unit to prepare for the child to join them, or if a carer needs to undergo a short programme of detoxification or medical treatment. In appropriate pre-birth cases, discussions about the use of Section 20 can commence some time prior to birth so that those with parental responsibility have time to consider all the options and be assisted in making an informed decision. However, agreement to a child being accommodated can only be given once the child is born.

Any immigration issues concerning the children, the family and any adults who may be caring for the children must be established.

Within each local authority, the use of Section 20 should be monitored by senior management, although this may be delegated.

In accommodating a child under Section 20, it must always be borne in mind that the local authority does not have Parental Responsibility; only the parents/ those carers with Parental Responsibility can make decisions for the child. The parent/carer with Parental Responsibility can remove the child from Accommodation at any time (Section 20(8)) and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court. A number of court cases have confirmed that a local authority failing to permit a parent to remove a child in circumstances within Section 20(8) acts unlawfully (see Herefordshire Council v AB [2018] EWFC 10 rtf) (see also: Ceasing to Look After a Child Procedure).

The parents/carers should be advised of any changes in the child's circumstances whilst the child is in local authority care.

It is therefore important to ensure that the parents/carers have full information about their continuing responsibilities as well as those of the local authority and that this is enshrined in the care plan and a written agreement.

Obtaining parental consent as a matter of good practice remains an essential part of Accommodating a child under this part of the Children Act 1989. A number of court decisions have been particularly critical of local authorities' actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.

Section 20 agreements are not valid unless the parent giving consent has legal capacity to do so, (in cases where the father also has Parental Responsibility, the consent of both parents should be sought). The consent needs to be properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or acquiescence - it is a positive action. The local authority should ensure that consent is not given under duress or compulsion to agree (whether disguised or otherwise). Consent may not be valid if given in the face of a threat to issue court proceedings. Where possible, the person with parental responsibility should have access to legal advice.

Where possible, the purpose and duration of any proposed accommodation should be agreed in advance of the child being accommodated. In case of emergencies, this should be addressed as soon as it is practicable to do so. The purpose and duration of accommodation may change and should be subject to review.

Detailed guidance on the obtaining of parental consent was given by the High Court in the case of Re CA (A Baby) (2012):

• The social worker must first be satisfied that the parent giving consent does not lack the mental capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if they are unable:
  • To understand the information relevant to the decision;
  • To retain that information;
  • To use or weigh that information as part of the process of making the decision; or
  • To communicate their decision.
    The High Court in Re S Child as parent, Adoption - Consent 2017 EWHC 2729 Fam set out the relevant information that a parent would need to be able to understand, retain and weigh up in order to have competency to consent to the accommodation of a child
    1. That the child will be staying with someone chosen by the local authority, probably a foster carer;
    2. That the parent can change their mind about the arrangements, and request the child back from accommodation at any time;
    3. That the parent will be able to see the child.

• If there is doubt about capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
• If satisfied that the parent has capacity, the social worker must be satisfied that the consent is fully informed:
  • Does the parent fully understand the consequences of giving such consent?
  • Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
  • Is the parent in possession of all the facts and issues material to the giving of consent?
• If not satisfied that the consent if fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
• If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:
  • What is the current physical and psychological state of the parent?
  • If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
  • Is it necessary for the safety of the child for them to be removed at this time?
  • Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more 'able' than in fact they are. Equally, within the context of 'assessing capacity', social workers should approach with great care relying on section 20 agreements from mothers after giving birth, (especially where there is no immediate danger to the child and where probably no order would be made). It may be necessary to put in place such support as is necessary to ensure that the mother in such circumstances can make an informed decision. This may include referral to adult or advocacy services, engaging the services of an intermediary or involving other reliable family members.

Where there is any concern about a parent / carer's capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice (1). Note: In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, 'every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others) to be satisfied that the person giving consent does not lack the capacity to do so'.

Note that the High Court in Re S (Child as parent: Adoption: Consent) made clear that parental capacity to consent to a child being accommodated under Section 20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific.

^{[1] Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.}

Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 set out good practice in the recording of parental consent to a Section 20 agreement:

• Wherever possible the agreement of a parent to the accommodation of their child under Section 20 should be properly recorded in writing and evidenced by the parent's signature;
• The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand;
• The written document should spell out, following the language of Section 20(8), that the parent can 'remove the child' from the local authority accommodation 'at any time' without giving notice to the local authority;
• The written document should not seek to impose any fetters on the exercise of the parent's right under Section 20(8);
• The document should make the consenting persons aware that by agreeing to accommodation they are delegating the exercise of that aspect of their parental responsibility to the local authority;
• The document should be signed on behalf of the relevant local authority and by the persons consenting to accommodation;
• Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms';
• Each local authority is encouraged to provide the parties to such agreement with a brief explanatory note or leaflet which is easily understandable and in an appropriate language.

Public Law Working Group Best Practice Guidance: Section 20/Section 76 Accommodation includes a Section 20 Agreement Template and Explanatory Note for Older Children.

In Re S (A Child) and Re W (A Child) (s 20 Accommodation) the Court of Appeal made clear that despite the fact that the threshold for care proceedings under Section 31 Children Act 1989 was satisfied on the basis that the ‘harm or likelihood of harm’ was attributable to ‘the child’s being beyond parental control’, the children in that case could continue to be accommodated on a long-term basis under Section 20 with parental agreement, without care proceedings being issued.

However, in cases where there is a need for care proceedings to be issued, then the  courts have made clear that Section 20 should not be used to delay the proper issue of care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the courts have strongly advised that this should not lead to an unnecessary delay in the issuing of proceedings and cases must not be allowed to drift, (including those cases when children are placed with relatives under a Section 20 agreement). Proceedings still need to be issued in a timely fashion.

The Supreme Court in Williams – v- London Borough of Hackney stated that, although the object of Section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term. There are bound to be cases where that should include consideration of whether or not the authority should seek to take parental responsibility for an accommodated child by applying for a care order. 

The Court stated that care proceedings have obvious advantages for the child. They involve a rigorous scrutiny of the risk of harm to the child’s health and development if an order is not made, of the assessment of their needs and of the plans for their  future. Their interests are safeguarded by an expert children’s guardian. If an order is made, it means that the local authority have parental responsibility for the child and can put their plans into effect. There are also advantages for the parents and for the wider family. The parents are entitled to legal aid. Their rights are safeguarded in the proceedings. Even if a care order is made, the court may make orders about their continued contact with the child.

Even where a parent/carer's legal adviser has established an agreement regarding the use of Section 20 prior to either issuing Proceedings or progressing a timely plan and timetable of work for further assessment, these should be carefully adhered to by all parties. Any plan should be based on the child's welfare needs and avoid delay.

All such agreements should be undertaken in conjunction with the local authority's Legal Services and include a clear (written) agreement and Care Plan with the outcome considered at a Looked After Children's Review to which the parents have been invited.

The purpose and duration of any accommodation should be regularly reviewed whilst the child is accommodated. This may change with the changing circumstances of children. The frequency of such reviews should be agreed at the time that the agreement is signed and recorded in that document. The appropriate frequency will depend on the facts of each case. Generally longer-term provision of accommodation can be reviewed in line with looked-after child reviews; short-term provision of accommodation may require more frequent reviews. The accommodation should be reviewed as soon as it is practicable when there has been a material change in the circumstances.

It must be made clear that those agreeing to the accommodation may ask for a review at any time. The IRO should ensure that the accommodation is reviewed at a frequency in line with the individual needs of the child. The review should involve all persons capable of continuing to give informed consent to accommodation. Each review must have a clearly identifiable statement of the voice of the relevant child.

During the period of accommodation, the local authority should continually assess the needs of the accommodated child and provide for those identified needs. This includes educational, psychological and therapeutic needs.