Ah admit it, you skipped straight here, didn’t you? In which case, you missed a lot of cool stuff about lizards, that’s for sure.
In this part, I’ll tell you the key tests and principles from the Acts and case law, for each sort of order. I will keep this up to date if the law changes, and it will be up on the front page on a tab.
Let’s start with the thing that is changing more dramatically than anything else at the moment, and it ISN’T an order.
Section 20 accommodation
Section 20 is the voluntary agreement of a parent for the child to come into foster care. For almost 22 years of the Children Act 1989 it was completely ignored by the Court and barely got a mention. Then all hell broke loose.
It started with a decision by Mr Justice Hedley, where a mother was asked to agree section 20 consent immediately after a C-section. She also had learning difficulties and was basically scared into signing it by threats that if she didn’t, the social worker would go to Court and get an EPO.
From that case, which you can read about here,
the following principles were derived. These are REALLY important for all social workers to know. I would seriously recommend having them on a piece of paper that you have on your person when doing any visit – because if the issue of section 20 comes up, it is on YOUR shoulders to evidence that you knew about all of this and took it all into account – the records are going to need to show all of it.
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(4) 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.
At the moment, Human Rights Act damages are being paid out by Councils not just for misuse of section 20 to get a child INTO care, but delaying too long in making decisions about a child’s future once they are IN care – an issue called section 20 drift.
The law has developed still further, with the Court of Appeal in Re N suggesting that section 20 agreements should always be in writing and that it is not sufficient for a Local Authority to rely on an absence of objection. Also that if a parent withdraws their consent, the LA have to either get an immediate Court order (very very hard at present due to Court access) or return the child. I’d suggest that Re N is a major factor in the volume of care proceedings going up 20% this year, and it is going to keep going up.
Re N is here http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html (don’t read it, because 98% of it is unintelligible stuff about international law, but if you MUST, skip straight to para 157
Be REALLY aware that going to a maternity ward to ask for s20 consent with a police officer there as back up is liable to make the s20 consent invalid as made under duress
- Surrey County Council –v- M, F & E  EWHC  a decision of Mrs. Justice Theis and at paragraph 60 she said this:-
“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”
And that leads us nicely into
First things first- EVERYONE calls these PPOs (because they sort of sit beside Emergency Protection Orders EPOs) but there’s no O. There is no Order. This is the police exercising their power to remove a child
46 Removal and accommodation of children by police in cases of emergency.
(1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—
(a)remove the child to suitable accommodation and keep him there; or
(b)take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.
And you can see from the statute that the test for this is pretty low. It is an administrative decision taken by a police officer at the time, on the scene. There’s no filing of evidence, no legal argument, no representation of a parent, no voice of the child, and no Judge weighing things up
It is for that reason that the Court’s don’t like them and have made it clear that “Wherever possible, a decision to remove a child from a parent should be made by a Court not as an administrative decision”. Police Protection should be reserved for situations where the risk can’t even be managed long enough to go to Court and seek an EPO. That’s a LOT rarer than their actual use.
Be warned, if a Court scrutinises use of Police Protection and thinks that the LA were involved and used it as a short cut or an easy way to get the child into foster care without having to go to Court, damages can and will be made.
“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”
The lead case is Langley v Liverpool 2005, so these issues are not exactly new. The Home Office Guidance above makes it really clear that s46 is an emergency power only, not to be used if the Court can make a decision instead.
Emergency Protection Order
The bare statute just says this:-
44 Orders for emergency protection of children.
(1)Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—
(a)there is reasonable cause to believe that the child is likely to suffer significant harm if—
(i)he is not removed to accommodation provided by or on behalf of the applicant; or
(ii)he does not remain in the place in which he is then being accommodated;
[It is quite often overlooked that actually ANY person can apply for an EPO – unlike care orders, where only the LA or NSPCC can apply. In 25 years, I’ve only seen a parent apply once for an EPO, but it can happen]
The Courts set a much higher test for EPOs than the Act does.
The lead case is Re X and B Council 2004
There are 14 points in there which the High Court say MUST be drawn to the attention of a Court considering an EPO application – the case law has to be produced and the Court referred to these 14 points when making the application.
Critically for social workers
An EPO, summarily removing a child from his parents, is a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons”. Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child’s safety; “imminent danger” must be “actually established”.
If your statement or evidence in relation to an EPO does not ‘actually establish’ ‘imminent danger’ then you can’t have your order.
The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
It is probably the HARDEST order to obtain, and many would argue rightly so. The test set down by the High Court in re X and B, compared to what the Act says is the difference between a limbo bar and a pole vault.
Removal under an Interim Care Order
Again, the bare statute doesn’t say much
38 Interim orders.
(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or
(b)the court gives a direction under section 37(1),
the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).
The Courts though have set a higher test for removal under an Interim Care Order, and THAT is the test that social workers must address in their written and oral evidence
“that separation is only to be ordered if the child’s safety demands immediate separation.”
It may do no harm to invite particular attention to Wall LJ’s definition of “safety” in this passage in Re B and KB. The concept of a child’s safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court’s decision as to whether to grant an interim care order is the child’s welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view “KB’s welfare did demand her immediate removal from her parents’ care”.
Re GR and Others (Children) 2010
I was going to squeeze adoption into this part, but it has already been pretty long, and my Chinese food has arrived, so I’ll clean up adoption over the weekend.
I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.
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