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Child refugees – section 20? Care proceedings? Either?

This is a case in which Mr Justice Peter Jackson was asked to decide whether to make a Care Order for two children aged 9 and 10 who had come to England as refugees from Afghanistan due to actions of the Taliban in their own country.
The Judge was also asked to give indications as to whether care proceedings or s20 were the right approach for other children and other Local Authorities.

Re J (child refugees) 2017
http://www.bailii.org/ew/cases/EWFC/HCJ/2017/44.html

On the critical issue of threshold (which has given me disquiet for a while, because the Act requires that the significant harm is as a result of the parents behaviour not being what it would be REASONABLE to expect a parent to provide, and if you are a parent in a war-torn country such as Syria and you can get your child to a place of safety can that really be said to be unreasonable?) the Judge decided this :-

15.The question first arises as to whether such children can properly be accommodated under section 20 of the Children Act, or whether the Local Authority is under an obligation to bring care proceedings. In this case, the threshold criteria have undoubtedly been crossed because the children have certainly faced the risk of significant harm and have, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection. Whether the children are to be described as abandoned or just sent out into the world makes no difference. It also seems to me that the fact that the children may have been sent out of Afghanistan for their own benefit does not prevent the threshold for care proceedings being met. That was a decision that was taken either by the parents or the parents were not in a position to exercise parental responsibility so that it was taken by others. The fact that the children might have suffered worse harm by staying does not mean they have not suffered significant harm and risked suffering significant harm by going.

(For my own part, I think that rather weakens the concept of a parent acting unreasonably from the statutory test, but we now have our pragmatic answer that sending a child overseas to become a child refugee is, in and of itself, sufficient to meet threshold. I can understand, however, why a Court would want to find threshold proven in this sort of situation, and why the formulation above was arrived at)

On the issue of whether or not care proceedings should always be preferred to s20 or vice versa, the Judge decided that it was a case specific decision rather than there being a universal preference. He helpfully outlined some of the factors to take into account when a Local Authority was making such a decision

18.Turning finally to the issue that faces many Local Authorities who are taking up responsibility for unaccompanied children, the submission made by Mr Jones is that the question of whether it is appropriate to apply for a care order will depend upon the facts of the individual case. I agree with that. This relatively short application is not the occasion to define when applications should be made to the court or not, to define the limits of accommodation under section 20, or to try to identify where the dividing line might fall. This is a case in which the Local Authority’s decision to take proceedings for the protection of children as young as ten and nine with no relatives whatever in this country so far as it was obviously correct. There may be many other cases, however, in which much older children fall into the hands of Local Authorities where accommodation under section 20 would be perfectly appropriate, because the arrangements in place for their support are relatively straightforward and need no oversight from the court or input from a litigation friend or children’s guardian.

19.I will, however, take advantage of the thought that has gone into the presentation of this case by referring to a schedule of the advantages and disadvantages of section 20 accommodation and care orders in so far as they might apply in cases of this sort. I do so in case, firstly, to carry forward the work and in case it should be useful to others.

20.Starting with accommodation under section 20, I the benefits that flow are: firstly, the provision of accommodation; secondly, the possibility of a child in need plan; thirdly, the availability of support under the leaving care legislation when the child reaches maturity; and fourthly the availability of looked after child reviews and an independent reviewing officer.

21.Turning then to the benefits that may arise under a care order, they are these: firstly, as above, the provision of accommodation; secondly, by distinction, support under a formal care plan that has been approved or at least considered by a children’s guardian and by a court; thirdly, again, the children would be entitled to leaving care legislation and support; fourthly, they would be entitled again to looked after reviews; fifthly, the children would have priority in relation to the obtaining of specialist therapy or medical care. They would undoubtedly be a first call on the Local Authority’s resources if subject to a care order and, depending upon the education legislation, quality for priority in the allegation of educational resources. Next, the Local Authority will have parental responsibility for the children, allowing it to make and carry through decisions about care, medical treatment, education and so forth. Next, if the children were to leave their placement, the Local Authority would be under a duty to find them with whatever measures were to hand. Next, the Local Authority holding a care order would be obliged to take an active role in relation to the asylum applications of such children, and finally, a care order would be most likely to provide the children with a plan for a permanent and established family life. Considering the benefits, it will easily be seen that the advantages of a care order may particularly apply to younger children or to children with unusual or particular needs.

22.The disadvantages of each option are to some degree the other sides of the coin of advantage, firstly as to section 20: (1) no one has parental responsibility or is able to exercise it; (2) there is a risk that the children will fall down the queue for such services as may be available; (3) although section 20 can be used in cases where children have been abandoned, that is not its core function; (4) living under section 20 throughout one’s middle and later childhood may lead to a lack of purpose in planning for the future and looser responsibilities should the children, for example, abscond. Without a care order or the presence of just section 20 accommodation, there may be more uncertainties than need be.

23.As against that, the disadvantages of a care order are few. It may potentially stigmatise the children to be accompanied by such an apparatus, and secondly, as a matter of principle it is a more interventionalist order that accordingly needs to be justified.

24.That is the balance sheet collected by Mr Jones, to whom I am grateful.

25.It will be apparent that cases of this kind, however, cannot be read alongside the very different class of case where Local Authorities harbour children under section 20 where they have, in effect, removed them from their parents for child protection purposes and where the parents are at hand and, in many cases, wanting the children back. In those cases, the instances of judicial and other guidance in favour of bringing care proceedings without delay are numerous, but they do not, I think, apply in circumstances of this kind. It is neither in the interests of individual children, nor, I think, in the wider public interest for Local Authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings.

The last sentence is very significant, so I’ll repeat it

It is neither in the interests of individual children, nor, I think, in the wider public interest for Local Authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings.

So a Local Authority, and the IRO, should be weighing up with such children which of the two options is the better option for the child, but the law is not that section 20 is always wrong or always right. There needs to be individual analysis of what’s best for that particular child.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

9 responses

  1. ashamedtobebritish

    What a palaver – they have a duty of care, no need for all the ‘ways of getting round it’

  2. Reblogged this on | truthaholics and commented:
    “It is neither in the interests of individual children, nor, I think, in the wider public interest for Local Authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings.

    So a Local Authority, and the IRO, should be weighing up with such children which of the two options is the better option for the child, but the law is not that section 20 is always wrong or always right. There needs to be individual analysis of what’s best for that particular child.”

  3. Thank you for this helpful post – have reblogged.

  4. At the risk of sending this post in a slightly different direction, I have a question about Section 20 that I’ve been meaning to ask. I primarily work with adults as a social worker in the fields of mental capacity and mental health, so it may be that I’m missing something obvious within the children’s legislation, but the children’s social workers I’ve liaised with don’t seem to be able to unpick this one either.

    Scenario: a child is put on Section 20 of the Children’s Act while he is under the age of 16, with the consent of his parents. He turns 16, wherein the principles of the Mental Capacity Act now apply. The Local Authority and his parents feel that, for Safeguarding reasons (and remember he is still under 18 so falls within Children’s Safeguarding), he needs to remain in Local Authority care. The 16-year-old, however, is objecting to the care/placement and much of the Local Authority’s involvement. The Local Authority are questioning his capacity to make decisions about his placement and care, yet they seemed to have side-stepped the question of Section 20.

    I would suggest that, for the order to remain lawful – or indeed to ascertain that it is not – the LA would need to spend some time explaining to the 16-year-old the implications of the Section 20 order itself, as well as alternatives, as per Principle 2 of the MCA (and indeed any case law regarding consent); and subsequently they would need to assess his capacity to consent to the order (or refuse it) if his ability to understand, retain, or use or weigh this information is in any doubt. What do others think, and are there any case law precedents that I’ve missed? Many thanks for your thoughts.

    • Really good questions. Court of appeal decided in re a last year that a 16-17 year old doesn’t have to legally consent to S20 if the parents consent ( I personally think they were wrong, but it is the law now). So legally it is okay. But as a Matter of good practice I’d completely agree with you

  5. Could it not have been classed as ‘being beyond parental control’ – which they are in a very literal sense – rather than attributable to their care?

    • Oh I like that. The Judge says that the child being in a foreign country and without parents meets the significant harm element, and they of course are literally beyond parental control, and parental control doesn’t require culpability.

      I think that’s genius! And you can quote me on that, Polly.

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