There is a blog post coming about the Hereford case, discussed in this Guardian article
but following Twitter discussions, I thought it might be helpful to share the guidance I prepared for my own social work department with others. Be warned that there’s a Supreme Court decision on section 20 coming soon, in the Hackney case, and all bets are off as to what they might say. (I think Hackney’s spirits probably sank when they saw the Hereford case whilst waiting for their own judgment)
This is intended to be a simple short guide for social workers as to what to think about when section 20 is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.
Before using section 20, the social worker must be sure that :-
- The parent has the capacity to agree
- The parent understands what it is they are being asked to agree to
- The parent has been told that they are able to say no and their right to later object and seek return of the child AT ANY TIME
- The consent is given freely and not under duress
- The prospect of Court proceedings is not being used as a threat to compel a parent to agree to section 20 (you can inform them of the possibility, if it is a genuine one, but not in a way that is directly or indirectly threatening. Social workers should never talk about Court in a way that suggests that the order is inevitable or certain)
- AND REALLY IMPORTANTLY that even if the parent is consenting, that the Social worker specifically considers whether it is proportionate and necessary for the child to be placed in foster care AND whether the case should be before a Court rather than by agreement
All of this MUST be recorded in the social work case notes, which should be done contemporaneously – if for some reason they cannot be done contemporaneously they should be done at the shortest possible interval thereafter with a note made on the record as to when they were made and why they were not made at the time.
This recording element is vital.
The social worker should obtain this consent from each of the persons who have parental responsibility. IF one parent consents and the other cannot be contacted for good reason, a short period of s20 whilst efforts are made to locate and contact that other parent is probably satisfactory. (Note that the Courts have not yet specifically decided this point). A careful note should be made as to the efforts made to contact the other parent and why they were not successful – a non-resident parent who is local and has active involvement in the child’s life will need very compelling reasons not to have had this conversation about consent.
The Court has also made it plain that the practice of having a police officer present or nearby during discussions about section 20, with the explicit or implied threat of “if you don’t agree, the police officer will remove the child” is completely unacceptable. Don’t do it, don’t do it, don’t do it.
On the issue of capacity to agree
- i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity;
- ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 *and in particular the parent’s capacity to use and weigh all the relevant information;
iii) if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.
If there is any doubt about a parent’s functioning, capacity to understand, mental health issues impairing their judgment, learning difficulties or disabilities, language issues, then section 20 should not be used without seeking legal advice.
If section 20 is used as a result of a child protection concern, very urgent consideration should be given to holding a swift Meeting Before Action in order that the parents can have the benefit of free legal advice and to avoid drift and delay.
*Section 3 of the Mental Capacity Act 2005
A person is unable to make a decision for himself on section 20 if he is unable to :-
Understand the information relevant to the decision (that the child will not be with them, that the child will be in a foster placement, what foster care means, that they have the right to say yes or no, and that they have the right to change their mind, how long it would be for, what might happen next – what would happen if they say no, what would happen if they say yes)
To retain that information (for a long enough period to make the decision properly)
To use or weigh that information as part of the decision-making process (a person can make a BAD decision or one that seems foolish, but they need to be having a process of deciding)
To communicate the decision
A person is entitled to have help and an explanation given in a way that is appropriate for them.
Re S (Child as Parent: Adoption: Consent)  EWHC 2729 (Fam)
sets out that the specific things that a parent has to understand in order to have capacity to agree section 20 are these:-
a) That the child will be staying with someone chosen by the local authority, probably a foster carer;
b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time;
c) That the parent will be able to see the child
Removal from section 20
A person who has Parental Responsibility is legally able to remove a child from section 20 accommodation at any time. They can be ASKED to give a notice period or a pause to allow a Court order to be obtained, but they do not HAVE to.
The social worker should be aware that the issue of whether a parent should give a notice period at the time of signing section 20 is contentious and that even if they agreed to give the notice period at the time, they are not bound by it at a later point. A parent agreeing to give seven days notice before removal is not a guarantee.
Section 20(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
The fact that the LA think that the child would come to harm if the child was removed does not block that power to remove – the LA would need, in that circumstance, to seek an urgent order from the Court which would give the LA a share of PR. They cannot simply refuse to give the child back or ignore the request. (see the Hereford judgment for how badly that can go wrong)
This power to remove does not apply if another person has an SGO or Child Arrangements Order and that person agrees to the s20 continuing, OR where the child is over 16 and agrees to accommodation continuing.
Objection to section 20
A parent is able to object to section 20 if THEY are able to provide the child with accommodation or arrange for someone else to do so.
The LA cannot ignore that objection just because they consider that the accommodation being put forward is unsuitable, lacking or even dangerous (that might be a trigger for an application to Court to obtain an order instead) but it does not block the objection.
What MIGHT block an objection is that the parent has bail conditions that prevent them caring for the child (if they are offering to provide accommodation themselves, not via a third party). But I would not rely on that at the moment. The High Court said no, you’d still need consent. The Court of Appeal said you wouldn’t, and the Supreme Court are dealing with it at the moment – in the Hackney case. I would still go with valid section 20 consent or a Court order, and not rely on the bail conditions blocking an objection.
Section 20 drift
Social workers, managers and IROs must be very alive to the issue of drift within section 20 – consent having been given, the child remains accommodated without a clear and time-sensitive plan for the child’s longer term future being implemented. The questions should be asked, answered and recorded on the file :-
Should this child be going home or to other relatives?
What would need to happen in order to make that work?
What assessments / information are needed if we can’t make those decisions yet, how are we going to get them and when?
Is this a case that is suitable for section 20 or should it be before the Court?
Where a child is expressing strong views about being uncertain or fearful about their status, even more careful thought must be given to the final question above.
Just because a child has been in section 20 for a long time, doesn’t mean that you shouldn’t revisit and ask those questions again. Failure to properly think about these things is what leads to drift.
For many unaccompanied children, locating and communicating with their parents to conduct the consent exercise in this document will not always be possible or easy. Clear recording must be made of the efforts to do so.
A Local Authority can place a child in section 20 if the child is abandoned, which would generally be the case here. Reasonable efforts ought to be made to trace the parents and to communicate with them – that may not always be possible at all and may not be possible in a short period of time.
If, in considering the case, the social worker, manager or IRO are of the view that this perhaps ought to be a case which is put before the Court, a Legal Planning Meeting request should be made.
The High Court have now ruled that threshold can be satisfied for such children, as a result of them being abandoned (even though the parent has made efforts to move the child to a safer place/country), so the matter needs serious and careful thought as to whether section 20 or court proceedings are the correct route.