I wrote on Wednesday about Gloucestershire social workers getting a hard time from His Honour Judge Wildblood QC, and it is only Friday and they are getting another. For many of the same issues
C1 and C2 (Children :Section 20 of the Children Act) 2015
- This is the third case that I have seen this week where this Local Authority has allowed there to be protracted use of the accommodation of children under section 20 of The Children Act 1989. Without descending into full legal analysis of the statute ‘section 20 accommodation’ arises when a parent agrees that a Local Authority should arrange where a child is to live. With their mother’s agreement, therefore, the two children involved in this case went to live with foster carers in September 2013 and have remained with the same carers for over two years. In its own case summary the Local Authority says: ‘the Local Authority is aware that there has been delay in bringing this matter before the court and entirely accepts this is inappropriate and will attract judicial criticism’. It does.
- The one saving feature of this case is that the foster carers, through their dedication to these children, are now offering them a permanent home. However, initially, they were short-term carers for the children and there is still no certainty about where the children will live because, as yet, there is no agreement about the orders that will be made. It appears that the mother may agree to the children remaining with the foster carers. It also appears that the putative fathers may also agree to this. The guardian has proposed that there needs to be further assessment of the foster carers before orders are made (and I deal with that point later).
- The upshot is that, for two years, nobody has been able to tell these children where they will be living and that remains the current state of affairs. The only way that certainty can be achieved is by making court orders. For some inexplicable reason the Local Authority chose not to bring the case before the court until now.
- Over the past year I have i) met with this Local Authority on a number of occasions to discuss the issue of the protracted use of s 20 accommodation, ii) attended conferences in this area at which I have spoken on this issue, iii) issued newsletters where I have written about it, iv) placed judgments about it on the Bailii website, v) spoken to other judges and magistrates in this area all of whom seem to share my opinion and are also trying to combat what is happening and vi) raised the issue with the Local Family Justice Board.
- Where this type of very bad practice arises it is not possible for a judge to undo the past. The only thing that I can do, now, is to publish judgments where this occurs so that the public know what is being done in its name by this Local Authority in a bid to prevent other children experiencing the same procedures. The firm drive of the courts to deal with cases expeditiously in accordance with 32 of The Children Act 1989, as amended, (i.e. keeping cases to no more than a 26 week timetable) is of no benefit to the child if the delay during the overall period of state intervention remains the same because of procedures that are followed before the case is brought before the court.
- The effect of this type of procedure is not only that it is patently wrong from the point of view of the welfare of children and in the full spectrum of family difficulties that it creates for foster carers. It also means that limited resources and money are being taken up in a way that expedition would avoid. In the plainest possible language it takes much more time and money for a delayed procedure to be followed than an expeditious one. Inefficiency costs more than efficiency and takes up more time. It also means that the task of sorting out what is best for the children becomes even more complex than it would otherwise be with repeated episodes of crisis management.
- For these children not to know for two years where they will be living, who will be caring for them, where they will be going to school, with whom they can make friends and when decisions will be made about them is bound to have a profound effect on their emotional welfare. It is inevitable that the children form attachments to their current carers and do so without knowing whether those attachments will persist.
- The guardian says this in her initial assessment: ‘as a consequence of the significant delay to issuing these proceedings the two children have been deprived of having care that could be regarded by them as permanent. It is likely that this has had a significant impact upon the children’s ability to feel secure and this combined with the children’s early experiences had an impact on their personality development and attachment style. This I believe will impact upon their ability to regulate their emotions, feel secure and develop a sense of self-worth. They and any carer are likely to require support with this impact…the children were accommodated under section 20 on 2/9/2013. I am unable to evidence any reason or explanation for the delay in issuing proceedings’.
- Over the past two years when these children have sought comfort or reassurance about the future nobody will have been able to tell them what the future holds. In my experience schools do excellent jobs when this type of issue arises but the burden that this type arrangement places on teachers is immense – for instance, how can schools or nurseries protect the emotional welfare of children in these circumstances and what happens when there are discussions or projects at school about families, holidays or future plans?
[Also note, that despite a period of nearly two years in section 20 foster care The putative father of the eldest child underwent DNA testing only yesterday ]
Powerful words. The Judge here is quite right – the delay in section 20 cases coming before the Court is one that harms children. The Government have tackled the delay that occurs within proceedings (firstly by the clause in the Children Act 1989 that specifically says that delay within proceedings is harmful to children and to be avoided if possible, and latterly by introducing the Children and Families Act 2014 to try to make care proceedings be resolved within 6 months).
The delay BEFORE proceedings are issued though, has not been tackled. It may even be that the introduction of the Children and Families Act actually made it worse – because there’s a relatively short space of time once the care proceedings start for the social worker to get absolutely everything done and the case can be finished, it can be tempting to not start the case until almost all of that is done. Which can mean, in a case where parents aren’t demanding the return of the child or their lawyer sending angry letters, that there’s delay for the child.
It may be that all that the Children and Families Act 26 week edict has done is “Shift the Drift” so that most of it happens before Court proceedings. Which is worse, because at least when the case is in Court, everyone has a lawyer and knows their rights and a Judge can control the timetable. Section 20 drift is a real problem.
Here, this was a case that was inevitably going to need care proceedings. The children were 3 years old and 15 months old when they came into foster care, and they came into foster care as a result of suspicious bruising. And there was a background of concerns that went back to 2010. That was always likely to need to be resolved by a Court, and it was always the case that decisions needed to be made for these children quickly, so that wherever they were going to live permanently that could be done and the children settled.
It isn’t a problem that only happens in Gloucester, not by any stretch of the imagination. But Gloucester have a Judge who has realised the scope and nature of this problem and is going to express displeasure about it each and every time.
What would be some practical proposals, if one was to legislate to fix it?
Well, I would start with the requirement that any use of section 20 where the child is in care for more than a fortnight must go through the PLO procedure – that means the parents get sent a letter about the concerns and future plans and more importantly attend a meeting and get legal advice. That means that they will absolutely know that they have the right to remove the child from section 20 and can make the Local Authority ‘put up or shut up’ – either take the case to Court and persuade a Judge that the child needs to stay in foster care or to return the child.
Another helpful addition might be to incorporate into legislation that a Local Authority can’t take a section 20 consent given in September 2013 and be still relying on it in March 2015. What would be wrong with saying that section 20 consent must be obtained afresh after 20 days, then 3 months after that, and then every 6 months thereafter? [That is the same timing as LAC reviews, and thus the IRO can be charged with establishing at the LAC review whether there is genuine and informed parental consent to the next period of section 20 accommodation, and if not the LA are to ‘put up or shut up’]
Could a Judge impose such stipulations on a Local Authority without legislation? I don’t think that even the President would have such power by way of Practice Direction – those powers really only extend to what happens within care proceedings – a Judge can’t really fetter what a Local Authority can do before care proceedings are initiated.
An option available to parents is to make a claim under the Human Rights Act – as can be seen from the last blog, even if the section 20 consent is given freely and on an informed basis, there is the possibility of a claim on the basis that the State’s actions in using section 20 to keep the child in care rather than working actively on either rehabilitation or putting the matter before the Court are not proportionate.
[In the Hackney case in the last blog, the parents would have lost on the ‘proportionality’ argument based on the facts in that case, but the section 20 was only for two months, not nearly two years as here]
The other noteworthy element of this case was the Guardian’s tentative suggestion that there be a psychologist to assess the children. I wholeheartedly agree with the judicial approach here.
The guardian has suggested that she may seek an order for a psychological assessment of the attachment of the children to the foster carers; I have made it very plain that, having regard to the necessity test in Section 13 of The Children and Families Act 2014, I think it highly unlikely that I would make an order to that effect since the attachment between the children and the foster carers: a) is obvious; b) can be dealt with by evidence from schools, nurseries, health authorities, social workers and the guardian c) does not raise any evident psychological issues that could not easily be dealt with by the social worker and guardian. Further, by the time that a psychological report had been produced (e.g. in 3+ months time) and the case has come back to court the children would have been with the foster carers for at least two years and about four months so I cannot begin to imagine that psychological evidence would add anything to what was obvious about the attachment between the foster carers and the children by then.
I think I might be taking this to Bristol Family Court if I was cursed with having to do a section 20 drift case next week.