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Family Law

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Court of Protection Practice and Procedure Conference 2016

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17 AUG 2015

Section 20: Abused, or just not used?

Section 20: Abused, or just not used?

Hannah examines the recent case law around section 20 of the Children Act 1989 and two concerning trends: s 20 being abused or, worryingly, not used at all.

Section 20 of the Children Act 1989 (the 1989 Act) can be a tool of stability and agreement or wielded as a weapon that exploits the fears of deferential parents at their most vulnerable. Section 20(4) of the 1989 Act provides local authorities with the obligation to accommodate a child, even if the parent can provide accommodation, if the local authority thinks that this is necessary to 'safeguard or promote the child’s welfare'. Crucially, this provision requires the consent of everyone with parental responsibility.

In the last year, anecdotal evidence and a flurry of case law suggests an increase in the use of s 20. This could be due to a toxic mix of factors, including:

a) the drive to comply with 26-week timescales when in proceedings, so using s 20 as vital ‘extra time’ to gather evidence and undertake assessments;

b) financially struggling local authorities (a sharp-intake of breath at 'does this really need to go into proceedings?' coupled with freezes on social worker training);

c) Increasing nervousness amongst local authorities following Re B (Care Proceedings: Appeal) [2013] UKSC 33[2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146[2014] 1 FLR 1035 that the case may not yet reach the threshold for permanent removal in court proceedings.

This article will examine three concerns around the use and non-use of s 20, including recent case law, specifically:

i. parental capacity to consent;

ii. the 'languishing' child;

iii. a 'family arrangement' or s 20?

(i) Capacity to consent

By s 20, the local authority is temporarily avoiding court proceedings by virtue of obtaining parental consent. Firm guidance was established on the providing of consent in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam)[2013] 2 FLR 987:

a. Every social worker must be personally satisfied that the person giving consent has the capacity to do so. Section 3 of the Mental Capacity Act 2005 outlines the questions to be satisfied.

b. If the person has capacity, they must also be fully informed of the consequences of refusal of consent including the range of choices available.

c. A s 20 agreement should not be obtained where a court order would not have been granted - the removal must be both fair and proportionate.

d. Willingness to consent cannot be inferred from silence, submission or acquiescence. It must be a 'positive stance'.

The recent case of Medway Council v A and Others (Learning Disability: Foster Placement) [2015] EWFC B66, demonstrates the continued failures to follow this guidance on consent. HHJ Lazarus gave judgment in this case at the beginning of June 2015. The judge felt 'obliged to consider and make serious criticisms of the social work' in this case which had involved a vulnerable mother, a matter of days after the birth, signing a s 20 agreement. The parents believed the agreement covered just a two week period in mother and baby foster placement (when it actually lasted for 40 days before proceedings were issued) and the social worker accepted that concerns over the Mother’s cognitive functioning had been raised by the hospital. The judge called the local authority’s conduct 'wholly unacceptable' and stated her concern that 'most significantly, the use of s 20 agreements result in vulnerable adults coping with such circumstances without legal advice or representation'.

Other recent and highly concerning examples of poor practice in this regard include:
  • Where s 20 consent was given by a mother two weeks after the birth without the benefit of an interpreter (Northamptonshire CC v AS & Ors [2015] EWHC 199 (Fam)).
  •  Where s 20 consent was given by parents six days after the birth. The mother had cognitive difficulties and a speech impediment; the father was deaf and an interpreter was not present when the agreement was made (Re C (A Child) [2014] EWCA Civ 128, [2015] 1 FLR 521).
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(ii) The 'languishing' child

Concerns that care proceedings led to delay and uncertainty for children’s futures were addressed by the introduction of 26-week proceedings targets, implemented through the Children and Families Act 2014. The unintended consequence for many children has been extensive periods under s 20 before the local authority issue proceedings in order to avoid falling foul of the 26-week time scale. Some extreme recent cases where children have been permitted to drift on s 20, include:
  • In P (A child: Use of s 20, CA 1989) [2014] EWFC 775, the child had been accommodated under s 20 for nearly two years at the point that care proceedings were finally issued, despite concerns by the LA about the paternal grandfather, with whom the child was accommodated. HHJ Atkinson stated that the fact the child had 'languished in s 20 accommodation with no clear plan [meant] it is likely that he will have suffered confusion and some harm as a result'.
  • In SR (A child: Habitual Residence) [2015] EWHC 742 (Fam), particular disapproval was passed on the use of s 20 for lengthy periods where there is obvious potential for jurisdiction to be an issue.
  • In Northamptonshire CC (above) the extensive delay in bringing proceedings, whilst the child was on s 20, led to the guardian and mother issuing a claim for Human Rights damages on behalf of the child. The local authority agreed to pay £17,000 of damages. Keehan J found that the accommodation of the child by the local authority '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.'

Call a spade a spade: 'family arrangements' or section 20?

Failure to use s 20 of the 1989 Act at all is perhaps the most worrying trait. Abuse of s 20 will at least come to the court’s attention eventually. Having what in effect constitutes a s 20 agreement (with corresponding local authority involvement and 'ultimatums') and then labeling it 'private fostering' or a 'family arrangement' may never face the scrutiny of the courts, nor permit the opportunity for those involved to obtain legal advice.

The goal, of course, is to avoid the child being classified as 'looked after' within the meaning of s 22(1) of the 1989 Act and the financial obligations (including full fostering allowance) that this definition entails. The distinction between a 'looked after child' and 'private fostering arrangements' was outlined in two cases: R (SA) v Kent CC [2011] EWCA Civ 1303, [2012] 1 FLR 628 and Southwark London Borough Council v D [2007] EWCA Civ 182[2007] 1 FLR 2181. The relevant factors include:

a. whether the local authority took a central role in making arrangements for the child to live with someone in their home;

b. whether the local authority had made clear they were proposing solely a 'family arrangement' with limited financial support;

c. if the proposed financial arrangements were left unclear, there was a danger that the foster parent and court would conclude that the local authority had been acting under its statutory powers and duties.

In that case, the local authority was held to have taken a 'central role' by virtue of:

a. Drawing up an agreement, on local authority headed paper, for the child to be cared for by the grandmother;

b. Strictly regulating contact between the child and parents;

c. Initiating the first discussions with the grandmother regarding long-term care of the child and giving an 'ultimatum' on foster care or kinship care.

The Court of Appeal held that the local authority had acted in accordance with their s 20 obligations, even if the agreement was not officially labelled as such. Therefore, the child was deemed 'looked after' and the full fostering allowance was to be awarded to the prospective special guardian (grandmother).

Ultimately, s 20 can be a useful tool to reach agreement and stability for a child’s care but local authorities should exercise great care in its use. It should be used as an interim measure, for welcomed ‘respite care’ or family placements. Even in such circumstances, the parents should be given access to legal advice to ensure they understand the range of options available. Where the local authority claim to merely assist a 'family arrangement', and not to invoke their powers and obligations under the Children Act 1989, this must be unequivocal and the financial consequences clearly set out.
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