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Your Honour, I am afraid that I have not done a position statement, but may I just hand this up?

I think this summarises our position

I think this summarises our position

 

 

I thought of that gag this morning, and kudos to Cobb J for giving me the opportunity to deploy it.

 

Newcastle City Council v WM and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/42.html

 

When a High Court Judge asks why you haven’t filed and served a position statement, don’t do THIS

 

 

  • I return to consider some of the matters outlined at the beginning of this judgment.
  • At the outset of this hearing not one of the respondents’ advocates had troubled to prepare a Position Statement. Counsel addressed me on the first morning of the hearing to explain the absence of these documents addressing me as if the requirement for such a document were a personal idiosyncrasy of mine. It is not. May I, for the record, remind counsel again of the following points: PD27A para.4.3:

 

At the commencement of the bundle there shall be inserted the following documents (the preliminary documents) –

(a) an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if practicable, to four A4 pages;

(b) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;

(c) a position statement by each party including a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing;

(d) an up to date chronology, if it is a final hearing or if the summary under (i) is insufficient;

(e) skeleton arguments, if appropriate;

(f) a list of essential reading for that hearing; and

(g) the time estimate (see paragraph 10.1).

 

  • May I draw to their further attention PD27A, §4.4:

 

Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents

And PD27A para 6.4:

The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge’s clerk

Sadly, this is once again one of those cases where poor planning and preparation had led to massive delays for the children,  and unfairness in the process, and once again, the misuse of section 20 played a part

  • The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:

i) At the time of the final hearing, the children have been in foster care for 93 weeks awaiting a decision about them;ii) The children were accommodated under section 20 of the Children Act 1989 (“CA 1989″) from July 2013 until March 2015, when interim care orders were made (under section 38 of the CA 1989) at the Issues Resolution Hearing;

iii) The ‘letter before proceedings’ (prepared pursuant to PD12A FPR 2010) was sent to the parents in January 2013, 73 weeks before the proceedings were ultimately issued (July 2014);

iv) The final hearing is taking place in the 43rd week, not the 26th week following issue (see section 14(2)(ii) of the Children and Families Act 2014);

v) The mother has significant learning disability; she has an assessed IQ of 61. She is assessed to lack capacity to litigate in these proceedings. There is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that “she did not appear to understand the reasons why her children had been placed in foster care”), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated;

vi) On any of the outcomes proposed for the children, they will have to be separated; as indicated above, the family placement on offer is for the two older children only. The Local Authority does not contemplate an adoptive placement for all three siblings together;

vii) The youngest child has spent more than half his life waiting for a decision about his long-term future, which is, and has been for some time, essentially undisputed;

viii) The Children’s Guardian and Local Authority propose radically different outcomes for the older children. The Social Worker and the parties were only made aware of the final recommendation of the Guardian on the first morning of the hearing.

ix) The maternal aunt, who wishes to care for the children, suffers a serious and debilitating eye condition; it is identified and briefly described in the independent social work assessment of her capacity to care for the children. The aunt’s lawyers did not apparently explore the implications of this condition before the hearing began. The extent of her significant visual disability was astonishingly only revealed at the conclusion of her oral evidence, and only when I asked to describe it (she had obviously been struggling to read from the documents presented to her while giving evidence); this led to a short adjournment during the hearing to obtain necessary expert medical evidence;

x) In a case which generates a range of possible outcomes, and in which some of the key parties have vacillated about their preferences during the proceedings, none of the respondent advocates had prepared position statements prior to the final hearing (I exonerate Ms Moulder as she stepped in on day 2 of the final hearing to replace counsel who had unavoidably had to relinquish the brief at short notice, and for entirely legitimate reasons), leaving me, when reading into the case, to speculate about their final preferred outcomes;

xi) There was no attempt by the Local Authority to provide one pared-down trial bundle of the relevant material; I was provided with four lever arch files; no reading list and no reading time.

  • Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don’t, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105-111]).

 

I think that we are really close to the judiciary making human rights compensation orders in these cases – these children had on that reading been unlawfully accommodated for around 21 months, as the mother did not have capacity to consent to such accommodation.

 

Even more wretched than that, is that when the case was finally litigated, the Judge concluded that two of the children should be placed with a family member, their aunt. That could have been done much much earlier, and the children spent more time in care than was necessary. That’s a tragedy.

 

The judicial analysis and approach is excellent, and the judgment as a whole is worth reading.

 

Lest you think the whole thing is critical, the Judge was more than willing to lavish praise on those who deserved it.

 

 

  • Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.
  • I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.
  • Ms Jones’ report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother’s evidence, which we all endeavoured conscientiously to observe.
  • Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance

 

 

Angola – gross, inexplicable and unjustifiable delay

 

This is a judgment by a circuit Judge, His Honour Judge Wood, sitting in Newcastle. It is not binding precedent, but I think that it illuminates some important issues.

 

The mother in the case was Angolan, born in 1977. The eldest child had been born and raised in her early life in a refugee camp in Angola. The family came to England in 2005. It was sadly and brutally apparent that this mother had seen and experienced things that you would wish on no human being, and that obviously as a result, she had severe and serious need of help that she did not receive.

 

 

Re N (Children) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/37.html

  1. I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.
  2. Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.
  3. Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.
  4. Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.

 

The Judge was rightly scathing about the delay between the Local Authority taking these children into care and issuing proceedings, some 17 months. With all of the features of this case, it should have been apparent that section 20 would not be sufficient and that proper plans for the long-term future of these children was needed.  Even worse than the delay was that the Local Authority took SEVEN MONTHS to issue the proceedings from the date that they wrote to mother’s solicitors saying that they were going to issue.  As the Judge points out – if the LA had issued when they said they were going to, the proceedings would have been concluded a month earlier than when they were actually issued.

[Even worse than this, the children had been taken into Police Protection a year before the section 20 accommodation, as a result of a physical assault, and then returned home, so the LA were seized of the issues and concerns for some 29 MONTHS before care proceedings were issued]

 

5. I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.

  1. It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20″, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.
  2. This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.

 

The Judge sadly had to make Care Orders – one will never know whether if during those 17 months of drift the mother had been given the right help whether the outcome would have been different.

He decided that these failings were not solely those of the social worker but of the organisation and system as a whole, so followed the President’s decision in Darlington not to name and shame the individual workers

 I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible.

 

It also seems to me that with all of the demonisation of asylum seekers that goes on in both political discourse and the media reporting, it is worth reading this little passage and remembering that asylum seeker ought not to be used a synonym for ‘sponger’

The mother was born on 23rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.

 

 

Unfortunate and woeful – Local Authority failings

 

This is a High Court case in which the Judge (Keehan J) was very (and rightly) critical of the Local Authority, including criticism that when they were asked for explanations of their conduct prior to and during the proceedings those explanations were not satisfactory and amounted to not much more than attempts to defend the indefensible.

 

Northamptonshire and DS 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html

 

The case ended with a child, DS, being placed with his maternal grandparents in Latvia.

 

It began, as cock-ups so often do, with a section 20 agreement. There were some legitimate concerns that DS would be at risk in the care of his mother and his mother was asked to agree to place him in ‘voluntary’ foster care. This happened when he was 15 days old.

 

The Local Authority did not properly think about care proceedings until five months later, and even worse than that, having decided that care proceedings were the right thing to do, did not then issue them until five months after that.

 

The care proceedings were plagued by delay, most if not all being ascribed to the Local Authority, ending up with a child spending nearly two years in foster care when there were grandparents who were eventually able to care for him.

 

The Guardian and mother issued claims for Human Rights damages on behalf of the child, and the LA by the time of the final hearing were accepting that they had violated the child’s human rights in all of these human rights claims:-

 

 

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights. *

(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.

(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.

(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.

(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

 

 

*you don’t often hear of article 13 rights, but it was a good call in this case:-

 

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

 

There wasn’t an effective remedy until the LA issued the care proceedings that should have begun in February at worst, but instead started in November.

 

A package amounting to £17,000 was agreed by the Local Authority and approved by the Court.

 

Looking at some of the particular criticisms made by the Court:-

 

 

Inexperience of the worker and delay in issuing

 

 

I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby. I do not understand why it took until August to provide her with support or why senior managers did not intervene in this case. It is wholly inexcusable for a local authority to take three months to decide to issue care proceedings in respect of a very young baby and then a further five months to issue care proceedings. The fact that the parents are Latvian and that close family members lived abroad, provides no explanation less still an excuse for the extraordinary delay in this case.

 

 

The changes in social worker

 

I appreciate that social services’ departments have difficulties recruiting and retaining social workers but it is deeply worrying that over the course of these proceedings DS has been allocated no less than eight different social workers. It is evident to me that neither the social workers, nor the senior managers at Northampton Children’s Services Department had DS’s welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby’s care and future life was dismal.

 

 

The section 20 agreement

 

The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.

 

 

Whether the s20 ‘consent’ was really meaningful consent

 

On 30 January the local authority concluded that DS was at risk of harm in the care of his mother and secured her agreement to him being placed with foster carers. I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.

 

And overall

 

The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

 

 

 

None of this is good. It is, in fact, deeply bad.

 

Critics of the family justice system, and there are many, are entitled to point to a case like this and say that this is what goes on. The parents in this case, and the child in this case, were badly let down by professionals and there were systemic failures to put things right.

 

It is only a small crumb of comfort that this was a case in which the Judge dealing with it was prepared to be tenacious and forensic about those failures, with a view to preventing them happening to other unfortunate families.

 

As the Judge says at the end

 

I trust that the events of the first 23 months of DS’s life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.

section 20 drift

This case is not a legal authority, in that it was delivered by a Circuit Judge, (Her Honour Judge Atkinson) but it is a good judgment, on an important issue, so I am sharing it.

 

Re P (A child : Use of section 20) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

 

By way of context for non-lawyers, section 20 is the provision in the Children Act 1989 where a parent can agree to the child being placed in foster care – that doesn’t automatically trigger court proceedings, so the case might not go before a Judge and the parents would not have lawyers to give them free advice about their situation.

 

If you want to know more about section 20, Sarah Philimore has written an excellent and comprehensive guide – it is valuable for lawyers, professionals and parents alike http://www.childprotectionresource.org.uk/what-does-section-20-mean/

P is a little boy who was born on 04/08/09 and is now aged 5 years and 4 months. P has not lived with his mother and father for 2 ½ years. He was accommodated under s.20 Children Act 1989 by the applicant local authority, London Borough of Redbridge, (LBR) on 28th June 2012 and placed in foster care. Care proceedings were not issued until almost 2 years after his removal, on 30th May 2014.

 

There is not (currently) anything in law that prevents section 20 going on for so long, but it is not good practice. With a child of this age, decisions need to be made in good time about whether he is able to go home to his parents, or be found a home elsewhere. The longer he remains in limbo, the more uncertain his future is. Two years, for a child who was not quite three at the time the s20 started, is a long, long time.

 

In this case, that’s made even worse, because once the care proceedings did start, assessments showed that these parents would, with help, be able to look after him.

These parents accept that at the relevant date in 2012, they needed help in developing the parenting skills necessary to meet their son’s needs and that the statutory threshold is crossed as a result. On the issue of welfare, suffice to say by way of introduction, that by September 2014 it was clear, on the evidence of the jointly instructed assessment service, Symbol, that these parents were able to resume the care of their son. It was also agreed that they needed a carefully managed programme of rehabilitation which could only commence once they had somewhere to live. The problem in this case and the only reason why P has not been returned to their care is that these parents have no home of their own and it is suggested that the local authority fixed with the obligation to house them, the Royal Borough of Greenwich (RBG) is unwilling to assist.

 

It didn’t help that the stumbling block was housing, and that the Local Authority wasn’t doing all it could to provide the parents with suitable housing

  1. In my judgment, P has not been appropriately cared for by the applicant local authority within the care system where for many years he has languished in s.20 accommodation with no clear plan. It is likely that he will have suffered confusion and some harm as a result. To its credit, the authority fixed with the responsibility for P’s care, LBR, has recognised the errors in its management of this family.
  2. However those errors are compounded by P’s ongoing separation from his parents caused, I am told, by the wholesale failure of another public authority to find them somewhere to live. The RBG is unrepentant in the way that it has handled this housing issue maintaining that it has followed all proper procedures and denying any bad faith. I have listed this case next week for me to determine whether there has been any bad faith in its handling of this case and to give the authority concerned the opportunity to reflect upon the circumstances in which this family finds itself. In the interim I have fixed RBG with the responsibility to support this family through an interim supervision order in the hope that by bringing children’s services on board I will see some “joined up thinking” develop within the authority as between housing and children’s services.

 

[If you want to know more about the housing side of things, I recommend Nearly Legal’s blog piece on it http://nearlylegal.co.uk/blog/2014/12/every-possible-obstacle/   which highlights that this appears wasn’t just the wheels of bureacracy moving slowly, but a conscious decision not to offer housing]

 

The Judge had this to say about the Local Authority’s use of section 20, particularly in relation to establishing threshold criteria (the test for whether it is right for the State to intervene in a family’s life and seek orders) and fairness

 

29. The relevant date for the purpose of this threshold is the date when P was first accommodated – 2 ½ years ago. For reasons which I am sure are obvious, the significance of those facts is reduced the more distant we are from them. In this case, for example, the more difficult it is to discern whether the child in question has suffered harm as a result of the parenting given to him before separation rather than the events he has had to endure after. I wonder at the impact upon P of the changes in his carers over the 2 years before proceedings were issued in circumstances in which he was living away from his parents with no real sense of why or for how long because LBR had no plan in place. I wonder at how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him.

  1. It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.
  2. In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P’s accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is “parked” and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.
  3. Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether LBR had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the LBR there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.

 

With all of that in mind, you might well be amazed that the Local Authority proposal for the way forward was for section 20 to continue whilst housing was resolved.  That shrill beeping noise you are hearing is the Court metal detector still going off three weeks later due to the balls of steel that London Borough of Redbridge’s team must have had to even suggest that as a solution.

Iron cojones or not, the Judge wasn’t much taken with that as a plan.

Turning now to the welfare decision, and contrary to my usual instinct to bring matters to a close and leave the LA to do its job, I absolutely agree that I am unable to make final orders here today. I am horrified that LBR should even ask and in doing so suggest that we should revert to the arrangement in which we use s.20 accommodation to “hold” the child until an unspecified point in the future when the other authority in this case complies with its housing obligation.

 

If you remember being at school and watching a classmate being told off and enjoying it, only to then have the teacher swivel towards you and say “And I don’t know what YOU’RE grinning about…”   this next bit will bring back memories.  Royal Borough of Greenwich are about to cop an earful too

I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a “looked after” child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of that statement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of “temporary accommodation” and that this may include accommodation outside of the Borough.

 

At least to their credit, after the judicial dressing down, accommodation was found for the family, and they were reconciled, nearly 2 1/2 years after first being separated

 

At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.

Happily, at the second hearing on 16th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.

As a result I had no need to make findings on the disputed facts.

The LBR have committed to embark upon an investigation as to how this child was accommodated without a plan for such a long time. I am grateful to them for that.

 

This Judge did remarkably well to secure justice for this family. It is a shame that her remarks about section 20 drift aren’t authority, but they will be useful pointers in framing the argument in similar cases. It seems like it will only be a matter of time before Courts set down an authority that such drift and delay amounts to an article 8 breach for which compensation is payable.

 

I’m afraid that this can be part of human nature – social workers are busy and are fire-fighting crises all of the time. If the child is in section 20 and the parents aren’t clamouring for the return, there’s a danger that the case drifts not by design but because it never presents as being a towering inferno that has to be tackled as an immediate priority then and there.

The IRO in this case also got away without criticism, but this drift ought to have been nipped in the bud at the Looked After Child reviews.  There has to be a LAC review for a child in care after 28 days, then after 3 months, and then at least every 6 months. So for P, there should have been at least four, perhaps five LAC reviews before the proceedings were issued.

 

And by the second LAC review, there should be a plan for the child’s permanent future, which probably did not happen here. It is the job of the IRO to make sure that this sort of drift doesn’t happen and that the case doesn’t get put on the backburner over and over.

 

“Hope your child enjoyed their stay, now if you could just settle your bill, please”

 

Or, on an Alan Partridge vibe “Cashback!”  (Have been hitting the Partridge in readiness for the film, apologies)

The legal implications of the mooted proposals from Worcestershire to charge parents for voluntary foster care.

 

Worcestershire are of course, only consulting on the scheme at the moment, and haven’t made any decisions; but the idea in a nutshell is that where a parent can’t look after a child and the child goes into voluntary foster care, the parent would be charged by Worcestershire to recover the costs of this (subject to the parents means)

 

http://www.communitycare.co.uk/articles/14/08/2013/119417/council-defends-controversial-plans-to-charge-parents-whose-children-go-into-care.htm

 

 

and here

 

http://www.theguardian.com/society/2013/aug/13/children-charged-social-care-worchestershire?INTCMP=SRCH

 

 

There are, as we know, two distinct categories of services that a Local Authority provides for children in need

 

  1. Section 17 services to meet their needs
  2. Section 20 accommodation of children who have to live away from their families for whatever reason.

 

Most lawyers are dimly aware that the Children Act has in it tucked away the POWER to make charges for section 20 placements, but the Act actually goes further than that.

 

Surprisingly, despite all the vitriol that Worcestershire’s mooted policy has caused them, they are actually just complying with the Children Act 1989

 

 

     Schedule 2 para   21. —(1) Where a local authority are looking after a child(other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute(“a contributor”)

See that word ‘shall’ there? That means it is a mandatory duty. The Local Authority are legally obliged to consider whether to recover financial contributions from a parent where the child is in voluntary foster care.  (para 21 (7) prohibits doing so where the child is in compulsory foster care i.e an interim care order, for obvious reasons). They HAVE to consider whether they should try to recover the costs from the parent.

 

What Worcestershire’s maligned policy goes on to say is that such charges wouldn’t be imposed on any parent in receipt of benefits  (which the Act already says in Schedule 2 para 21(4) ) and that they would only ever recover those financial contributions where it is reasonable to do so (which the Act already says in Schedule 2 para 21 (2))

 

So Worcestershire could simply have told everyone that their intention was to comply with their duties under the Children Act 1989.  Job done.

 

Of course, although those duties exist, they are one that most authorities overlook, just as (cough cough) many of the OTHER duties in Schedule 2 get overlooked from time to time.

 

This is really more of a corporate decision that where a parent is working and has financial means, that the Local Authority would genuinely look at the issue of charging them for accommodating their children  i.e they would ACTUALLY give it consideration under Schedule 2 para 21;  whereas most Local Authorities, if they have thought about para 21 at all, it is that they would not ever try to recover such contributions.

 

One can see why, as soon as one looks at para 22’s provisions as to how such charges would actually come about

 

 

      22. —(1) Contributions towards a child’s maintenance may only be recovered if the local authority have served a notice(“a contribution notice”) on the contributor specifying—

 (a)  the weekly sum which they consider that he should contribute; and

 (b)  arrangements for payment.

(2)  The contribution notice must be in writing and dated.

(3)  Arrangements for payment shall, in particular, include—

 (a)  the date on which liability to contribute begins(which must not be earlier than the date of the notice);

 (b)  the date on which liability under the notice will end(if the child has not before that date ceased to be looked after by the authority); and

 (c)  the date on which the first payment is to be made.

 

 

Para 22 also caps the contributions to be no more than the actual cost of foster care.  That of course, prevents the Local Authority blessed with affluent parents with stroppy teenagers from propping up their budgets by charging Mr and Mrs Moneybags £10,000 a week to look after young Tony Moneybags.

 

 

Okay, well having :-

 

(a)  Found a parent who has some means and isn’t on benefits, whose child is voluntarily accommodated

(b)  Decided whether it is reasonable to ask them for a contribution

(c)  Set that amount at what it is reasonable for them to pay – that being no more than the foster care allowance

(d)  Drawn up a Contribution Notice

 

 

What happens when the parent doesn’t pay the money?

 

Well, para 23 kicks in

 

23. —(1) Where a contributor has been served with a contribution notice and has—

 (a)  failed to reach any agreement with the local authority as mentioned in paragraph 22(7) within the period of one month beginning with the day on which the contribution notice was served; or

 (b)  served a notice under paragraph 22(8) withdrawing his agreement,

the authority may apply to the court for an order under this paragraph.

(2)  On such an application the court may make an order(“a contribution order”) requiring the contributor to contribute a weekly sum towards the child’s maintenance in accordance with arrangements for payment specified by the court.

(3)  A contribution order—

 (a)  shall not specify a weekly sum greater than that specified in the contribution notice; and

 (b)  shall be made with due regard to the contributor’s means.

(4)  A contribution order shall not—

 (a)  take effect before the date specified in the contribution notice; or

 (b)  have effect while the contributor is not liable to contribute(by virtue of paragraph 21); or

(c)     remain in force after the child has ceased to be looked after by the authority who obtained the order.

 

 

See that last little paragraph that I’ve underlined? That means that the order that the Court can make (but won’t) doesn’t have any effect once the child stops being looked after.

 

So what, you say?

 

Well, once you realise that the Local Authority HAVE to stop accommodating a child voluntarily once the parent objects (s20(7) , but that they HAVE to provide accommodation for any child who meets the criteria in s20(1), which includes “the person who has been caring for him being prevented (whether or not permanently or for whatever reason) from providing him with suitable accommodation”

 

(Lightbulb)

 

It is pretty clear that the wealthy parent, served with a contribution notice, who ignores it, and is then taken to court, can simply declare as soon as the Contribution Order is made that they object to the child being accommodated.

 

That ends the accommodation and the Contribution Order.  The parent can then notify the LA that the child needs to be voluntarily accommodated all over again.

 

And note that the Contribution Order doesn’t compel any payments HIGHER than the original weekly amount in the contribution notice, so it doesn’t provide for recovery of the previous weeks missed. (that’s the net effect of reg 23(3) (a) )

 

In those circumstances, the Contribution Order will net the Local Authority not one shiny penny, and will lose them all the legal fees and costs in the meantime. 

 

 

So, just running things through in my own mind :-

 

  • A policy of charging middle to high income parents for voluntarily accommodating children would be politically unpopular

 

  • It would garner very negative publicity (as we have seen, just saying that you are considering it makes things get ugly)

 

  • Probably only covers a small proportion of the children who are voluntarily looked after in any event 
  • Has the possibility of discouraging parents who are not coping temporarily and need a break from seeking that help

 

  • It almost certainly inhibits the working relationship between the Local Authority and the parent aimed at fixing the problems so that the child could go home.

 

  • It would be administratively expensive – someone has to do financial assessments (and how do you get a parent to tell you their income anyway? What’s in it for the wealthy parent to tell you?), someone has to draw up Contribution Notices, someone has to collect the money and keep track of it

 

  • Any attempt to enforce it would be incredibly vulnerable to a side-step using the interplay of s20(7) and para 24 (4) (c), as outlined above

 

  • It would be unlikely to actually recoup any income

 

 

 So, ending with Alan Partridge again, I’m not sure that this policy is “back of the net” material

 

Of course, all Worcestershire have done so far is remind themselves that they have a statutory duty to CONSIDER this and all that they have done is complied with their duties under the Children Act 1989.

“Social Services are asking me to put my child in care, and they want me to do it now”

 Some important things for you to know, if you are asked to put your child in care. And some practical tips.

 

Firstly, and I can’t stress this enough – I am not your lawyer, just A LAWYER, and what is right for you and the circumstances of your case are things I don’t know, and the best thing I can recommend is for you to either talk to your own lawyer or find a lawyer and talk to them.

If you need to find one – you came here on the net, so you have internet. Google “family law firms in X” (where X is your town or county). Look for ones who do Care work if you can. Get in touch with them and make an urgent appointment.

There might be a good reason for you, and your family, why agreeing to the children coming into care is a good thing. What I want to help you with is not agreeing just because you feel you have no choice, and before you have had chance to think and ask your own lawyer what to do. If you honestly feel that it is the right thing for you, don’t be put off by me. I am trying to help people who feel that it ISN’T the right thing for them.

That done, back to your situation. You are a parent, social workers have come to your house, told you that they are worried about your children and think they need to come into care and are asking you to agree.

Here are some important things to know before you make any decisions

1. You don’t have to say yes. It has to be your free choice.

2. You don’t have to decide right now.

3. You are entitled to tell them that you want some legal advice before you decide something as big as that.

4. If you are told “If you don’t agree we will go to Court”, this is supposed to make you agree to avoid going to Court. It doesn’t have to. The Court will listen to your side of the story, and it might be that going to Court is the right thing for you to do. At the very least, it will get you a lawyer who will listen to you, give you advice and speak on your behalf.

5. The social worker doesn’t have any magic powers to be able to take your children away. They have to have either your agreement, or a Court order. Except in very specific circumstances, they can’t get a Court order without you having a chance to be there, to have your own lawyer speak on your behalf and have the chance to have your say.  They should NEVER go away and try to get that order without you being there if they have asked you to consent to the children coming into care and you have said no. That hearing should be with you present.

6. If they DO have that Court order, you will have a chance at a later Court hearing to challenge and fight it, but I’m afraid the order does give them the power to remove (if it is an Emergency Protection Order or an Interim Care Order) and trying to prevent them won’t do much good. You can try to tell them the names of other family members who would be willing and able to look after the children (as they have to consider placing the children within the family rather than with strangers if it is safe to do so)

7. The police do have the power to take your children away without a Court order (I’ll come back to that later) so you will know that if the police aren’t there and there isn’t a court order, your children will not be going anywhere unless you agree or until you have your say in Court.

Here are suggestions for what you can do if you are asked to make that decision

Very hard to do, but keep calm. It is likely that what you do and say in the next hour or so will end up being information given to the Court. It can be information that helps you (you were calm, reasonable but firm) or that hurts you (you got aggressive, shouting, or physical, or the children were exposed to lots of drama and distress whilst all this was going on).

With that in mind, it is perfectly fine to say something like “That’s a real shock. I want to talk about this, but I don’t want the children to have to hear it. Can we sit down with the children being in another room and talk about it for a bit?”

And “I’d really like to get some legal advice about all this before I decide anything at all, does this have to be decided right now?”

If they are insisting on it being right now, it is fine for you to ask why, and also fine for you to ask them for some paper, so you can make a note of what they are saying.

It is also fine to say “I would like to call my lawyer to see what they think and I am going to do that now, just so I know where I stand”

[I don’t know whether agreeing to the children coming into care is right for you, or right for your situation, that’s a matter for you and your lawyer. What I want to do is give you the chance to make that decision and think about it and know what it means.]

The social worker will probably say something along the lines of “I’m afraid if you won’t agree now to the children going into care, then I’ll go to court and get an order for them to come into care”

And as I said earlier, you need to remember, that what they actually mean here is “I’ll go to court and ASK for an order for the children to come into care, and you will be at Court and you can ASK for them to stay at home, and the Court will make a decision”

And also that the Court don’t automatically grant those orders – they require the social worker to have evidence that the children are at risk and that going into care is the only thing that can be done, and that everything else that could be tried either has been or isn’t safe to try.

It might be that for you, going to Court is better than agreeing for the children to go into care. You would have your chance to fight this in Court, to have someone speak for you, and the chances are that if Social Services are in your home asking you to agree to the children going into care that you will eventually have to be in Court in order to get them back. So the threat of the case going to Court isn’t a good reason to agree to the children going into care, if you wouldn’t otherwise agree to do it.

Agree if you do think it is best for you or your children, or if talking it through with your lawyer you decide it is right for you right now, and that you need to sort some things out for yourself first before you have that fight.

If you feel that you are being bullied to agree or make that decision right away, you can say to the social worker “I believe that the High Court in Re CA, decided that section 20 consent has to be voluntary and not as a result of pressure, and that my human rights could be breached if I was cajoled into that agreement”

And “It isn’t that I am not cooperating, but I think a decision about whether my children should be removed is a very big one, and I don’t agree that right now. I’d want to see all of the evidence and have my own legal advice before I thought about it”

What if the police are there?

If the police are there, all of these discussions become much more serious. The police do have the power to take the children away, under Police Protection. That lasts for 72 hours, after which time the social workers have to either get a Court order, or your agreement to the children being in care, or a Court order.

So you would have a right to challenge and fight to get the children back in 72 hours, but you obviously want to avoid that happening if at all possible.

So firstly, again keep calm. Shouting, yelling, screaming, throwing things, being aggressive are all things that make the police more likely to use that power. Try not to give them any excuse.

Here are the magic words, if the police say “we are going to take your child into police protection” or something similar.

“Officer, I’m not being difficult, but I see that you have come with the social worker, which means social services are already involved. And as the High Court said in Re CA 2012, where that is the case, the social worker ought to go to Court to seek an order from the Court, so my human rights aren’t breached by the police or social services. And you will know from the Liverpool case that the police shouldn’t just take a child into police protection to save the social worker the trouble of going to court. And so you should only take the children into police protection if the risks are so great that they can’t be kept safe until the case is heard in Court. I won’t do anything silly and I won’t run away. I will go to Court and the Court will decide. If you want, you can watch me with the kids, or they can go to (my mother/aunt Beryl/whoever) until the Court case starts, then you know everything will be fine.”

That may well put the fear of god into them. It will probably make them think “God, I don’t know anything about the law on this, but this person seems to, and the High Court say we shouldn’t do this”

And you won’t have said anything that isn’t (a) true and (b) fair. No threats, no shouting. Just a reminder that the police aren’t supposed to do social workers dirty work for them, unless there is evidence that the children won’t be safe with you even for an hour whilst the social worker gets a Court hearing sorted out.

“I need two volunteers – you, and you” – how ‘voluntary’ is voluntary accommodation?

A consideration of the High Court decision in CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012)  and whether it is now legitimate for a social worker to ask a mother to agree voluntary accommodation of a baby.  (answer, probably not)

 

I think it would not be unreasonable to describe this case as being to section 20 what Re X was to EPOs.

 

The case can be found here :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

 

Much of the case relates to a factual determination of applications for Care and Placement Orders, but the important bit of wider import can be found in the passages dealing with the mother’s case that her human rights had been breached by the Local Authority effectively pressuring her into agreeing section 20 voluntary accommodation of her child.

 

As far as I am aware, this is the first case dealing with the vexed issue of whether someone has genuinely agreed section 20 accommodation, and whether when the LA effectively pitch up and say “You’ve got to agree to accommodate” there is actually any element of choice involved.

23. Substantial discussions took place on the first day of the hearing (and had of course been in train for some time) which resulted in the local authority conceding the mother’s claim under Section 7 of the 1998 Act. The substance is recorded in the recitals to the order but in effect acknowledge two matters: first, that a Section 20 consent should not have been sought on 1st February 2012; and secondly, that such a removal was not a proportionate response to the risks that then existed. In the event the local authority accepts breaches of the Article 8 rights of both mother and child. The Order with its recitals is annexed to and should be read in conjunction with this judgment

24. The mother, in discussion about damages, asked that they be applied to the costs of her receiving the therapeutic input that has long been advised. The parties have agreed the payment of damages and other provisions which all accept amount to ‘just satisfaction’ of both these claims. It is important to stress that nothing in the subsequent discussion of Section 20 agreements or indeed anything else in this judgment is intended to impugn (nor should it be so read) the propriety of that resolution of the Human Rights claim to which indeed the court (since a minor is a party) specifically gives its approval.

 

So, that’s already quite a big deal – the Court (and the parties) accepting that there would be circumstances in which the LA seeking a section 20 agreement and accommodating the child as a result would be a breach of the mother’s article 8 rights and compensation of some kind is payable.

[Going back to my overarching theme of the law of unintended consequences, I hope HMCS are aware of the deluge of Emergency Protection Order applications that might flow from this sort of decision, as these s20 arrangements are often a stopgap or bridge to get into Court for an ICO hearing, which is now seemingly no longer an option]

It is important to note that there were genuine doubts about the mother’s capacity to agree to section 20 accommodation, as a result of her significant learning difficulties. At the time that the agreement was sought, the mother was also being asked about consenting to medical treatment (for herself, which would be life-saving) and to pain relief including morphine (for herself).

There must obviously have been some reservations about whether the mother was in a position to give valid agreement to accommodate the child under s20 of the Children Act 1989, but the Court go beyond that, and into a discussion of whether a Local Authority can properly invite a parent to give s20 consent if the circumstances are not such that a Court would authorise separation, before concluding that they cannot.

Obviously, that’s quite a big deal, and is something fresh in law. A parent can still ask for s20 accommodation, for whatever reason, but if a Local Authority is asking a parent to agree to it, they run the risk of a human rights financial claim if they did not, at that time, have the sort of evidence that would persuade a Court to sanction removal/separation.

  Prior to this case, as a matter of strict law, the Local Authority did not need to even have reasonable grounds to believe that the threshold criteria are made out, let alone that there was a reasonable prospect of persuading a Court to sanction separation, in order to ASK a parent to agree to s20 accommodation.

I think that there are plenty of cases – the obvious type being a mother who has previously had four or five children removed, but where the concerns are neglect-based rather than a risk of physical harm, where obtaining an EPO would be difficult and usually the first question asked by the LA lawyer of the social worker is ‘is mum willing to agree to s20 accommodation’ – it seems to me that asking that question now carries with it a degree of risk.

 

(The emboldening of key passages is author’s own)

 

27. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.

28. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.

29. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.

30. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers of the authority honestly believed that there were such reasonable grounds. In those circumstances a removal could be lawfully effected in one of four ways under the 1989 Act: by agreement under Section 20, by emergency protection order under Section 44, by the police under Section 46 or under an interim care order pursuant to Section 38. This range of options was considered by the Court of Appeal in A – v – East Sussex C.C. and Another [2010] 2FLR 1596. That case was not concerned with a removal at birth but it does stress the need for minimum intervention and the need to work in partnership with parents.

31. There is reasonably clear authority in respect of the compulsive powers under the Act. It is clear that court orders are to be preferred to administrative action and so Section 44 is accorded primacy over Section 46 – see Langley -v- Liverpool C.C. and Another [2006] 1WLR 375 especially per Dyson LJ at paragraphs 35-40. The regime and criteria for the use of Section 44 is fully set out in ‘X’ Council -v- B [2005] 1FLR 341 and X (Emergency Protection Orders) [2006] 2FLR 701 both approved by the Court of Appeal in A (Supra). The Court of Appeal have repeatedly returned to the subject of removal under an interim care order; for example in Re G (Interim Care Order) [2011] 2FLR 955 the authorities are reviewed and the conclusion reached that the court must consider whether the child’s safety requires removal and whether removal is proportionate in the light of the risk of leaving the child where she was.

32. On the facts of this case, it is most unlikely that any order would have been granted on 1st February. In saying that, it is of course accepted that had either the hospital required the discharge of the child or had the mother tried to procure it, an order would no doubt have been made. As it was, the mother was unable to leave and the hospital were not requiring discharge and it is probable that they would not have done so at least until the mother was fit for discharge.

33. In those circumstances the child was in a place of safety in hospital. All parties accept that in consequence the police would have had no power to remove under Section 46 and no order would have been granted under Section 44. Moreover, given the pre-birth plan and the mother’s co-operation in hospital, it is hard to see how immediate removal could have been justified let alone actually authorised under an interim care order.

34. Although many local authorities have policies and internal guidance in place in respect of post birth removals, the researches of very experienced leading counsel have not uncovered specific guidance in respect of the use of Section 20. There is none in publicly available guidance nor in any reported decision of the court. Since this removal, which would not have been sanctioned by a court, was in fact effected by consent, it is perhaps not surprising that the court is being asked to consider the proper ambit of Section 20 in this specific context.

35. It is necessary to state one obvious point which does not arise in this case but which, if not stated, will at least be thought by those inherently suspicious of local authority power: namely that it can never be permissible to seek agreement to do that which would not be authorised by order soley because it is known, believed or even suspected that no such authorisation would be given and in order to circumvent that position. That would breach all requirements of good faith and of fairness.

36. As I have already said, however, there will be cases where it is perfectly proper to seek agreement to immediate post-birth accommodation. Three obvious examples occur: first, where the mother’s intention always has been and remains to have the child placed for adoption; secondly where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to acquiesce); and thirdly, where a parent whether by reason of supervening physical health or personal circumstance positively seeks accommodation of the child by social services. There will of course be others and the right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority’s powers of response under Section 20(4) must be respected.

37. However, and whatever the context, Section 20 agreements are not valid unless the parent giving consent has capacity so to do. It is important to note that by Section 1(2) of the 2005 Act a person is to be presumed to have capacity unless it is established that he lacks it. Moreover, the effect of Section 1(4) is to prevent inferences of incapacity from the making of unwise decisions. Incapacity must be due on a “…impairment of, or disturbance in the functioning of the mind or brain” – Section 2(1). Capacity is issue and situation specific. It follows that not only may a person have capacity to make one decision but not another but also may have capacity at one time to make the very decision in respect of which he lacks capacity at another.

38. That can be seen in the context of this case. The fact that the mother could make decisions about surgery and pain relief does not indicate that she could make decisions about the removal of her child. Again the fact that before the birth or sometime after the birth she could make decisions about removal does not mean she could on the day of birth. This latter factor (the impact of the birth itself) is the basis on which Parliament enacted for example Section 52(3) of the 2002 Act in respect of adoption and Section 54(7) of the Human Fertilisation Act 2008 in respect of surrogacy.

39. Capacity is not always an easy judgment to make, and it is usually to be made by the person seeking to rely on the decision so obtained. Sometimes it will be necessary to seek advice from carers and family; occasionally a formal medical assessment may be required; always it will be necessary to have regard to Chapter 4 of the Code of Practice under the 2005 Act. Assistance is, however, to be found in Section 3 of the Act which provides by subsection (1) that a person is unable to make a decision if he is unable – a) to understand the information relevant to the decision, b) to retain that information, c) to use or weigh that information as part of the process of making the decision, or d) to communicate his decision… 4) The information relevant to a decision includes information about the reasonably foreseeable consequence of – a) deciding one way or the other, or b) failing to make the decision.

40. Applying that to the facts of the case, the social worker was the person finally to decide capacity and she had the views of the midwives. The key judgments to be made were probably the mother’s ability to use or weigh information surrounding removal and whether she understood that, if she refused, the child would stay in hospital with her. The first of those illustrates why a decision to agree to life-sustaining surgery is wholly different to a decision to consent to removal of the child. It is also clear that her attention was not called to the second matter at all.

 

A reading of paragraph 36 suggests (and there may be other interpretations) that separating a baby from a parent shortly after birth by way of section 20 ought to be a decision driven by the parent (that they genuinely want the child to be accommodated), and not the Local Authority seeking to cajole, influence, persuade (or if you’re cynical) browbeat, the parent into it.

 

And by implication, that such a separation, if the parent is not actively driving it, ought not to be done by s20, but instead by a decision of the Court.

One might think, very fairly, that this is right and proper, and that a parent ought not to be separated from their child because they are weak-willed or haven’t twigged that they have the right to say no when being pushed towards agreeing s20 accommodation by a social worker.

I find it a little hard to disagree with that, to be honest, but it is worth noting that this is quite a departure from where the law was prior to this decision.

Previously, it was incumbent on the parent to not say ‘yes’ to the accommodation being proposed, and for the LA to either issue or allow the child to remain with the parent. NOW, it will be incumbent on the LA to issue if they want separation and to tread extraordinarily carefully in any conversation about s20 accommodation for a baby.

It seems to me, from reading this judgment, that it might be lawful for a social worker to ask (with a huge amount of care, to explain what it means and what the possible consequences are and that the parent can say no) “do you want to voluntary accommodate your child?”  but NOT  anything like “I think it would be a good idea for your child to stay in foster care, do you agree?”

 

(I suspect that to get the wording bullet-proof on this, you’ll need something like the Miranda waiver so beloved of American cop shows… and that it will be so cumbersome that most social workers will just decide not to ask the question)

I think that this passage in particular, will be vital reading for social workers, local authority lawyers, out of hours workers, and those who might be representing parents either in the hours after the baby is born, or when a case pitches up to Court where the parents ‘agreed’ separation.

46. The following can perhaps be offered as the more important aspects –

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20 so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed: a) Does the parent fully understand the consequences of giving such a consent? b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent? c) Is the parent in possession of all the facts and issues material to the giving of consent?

vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask: a) what is the current physical and psychological state of the parent? b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends? c) Is it necessary for the safety of the child for her to be removed at this time? d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

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