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:
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  EWHC 2190 (Fam),  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)  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:
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- 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  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)  EWCA Civ 128,  1 FLR 521).