What you need to know

Under section 20:

• accommodation is provided for a continuous period of more than 24 hours (S.22(2) Children Act 1989).
• the birth parent retains full parental responsibility. If a child is looked after and subject to an interim or final care order, the local authority shares parental responsibility.
• a child cannot be accommodated if a person with parental responsibility for the child objects, has asked for accomodation to cease and/or is willing to provide or arrange accommodation for the child (S.20 (7) Children Act 1989).

There are many circumstances where section 20 (s20) is used in practice, including respite through parental illness and difficulties or with unaccompanied children from abroad.

Care proceedings

In thinking about the context of care and pre-proceedings, section 20 may have an appropriate role to play as a short term measure and has been used:

• as a way to further support a child and parent to prevent the commencement of care proceedings (for example, as part of a mutually agreed package of respite)
• when a situation arises unexpectedly (for example a premature birth or an injury). S20 is often used outside of the court arena to allow the child to be looked after by the local authority in the short term until proceedings are issued and an interim care order hearing can take place
• following the commencement of care proceedings, as a short-term solution when there is insufficient time for a contested application for an interim care order to be heard by the court.

The most recent case law has led authorities to review their cohort of children accommodated under section 20, and sector-led guidance has been issued[2].

References

What has changed

The use of section 20 arrangements in certain circumstances has been criticised by the higher courts and the President of the Family Division, Sir James Munby.

In N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112) Sir James Munby identified four problems with the current use of section 20 arrangements:

• Failure of councils to get informed consent from parents from the outset

Hedley J (with the approval of the President) set out the following guidance in respect of parental capacity to consent in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam) [2013] 2 FLR 987 [para 45 & 46].  It provides a useful checklist for social workers to determine:

• capacity to consent
• whether consent is informed
• when to seek advice from legal teams or managers

It is transcribed in detail below:

“i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into    account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well   as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?

vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) What is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

• The form in which the consent is recorded

There is no requirement, in law, for the agreement to be in or evidenced by writing: “But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parents’ signature” (para 166 Re N above)

• Section 20 arrangements being allowed to continue for far too long

• Reluctance to return the child to the parent(s) immediately upon a withdrawal of parental consent

Those with parental responsibility can remove their child from a section 20 accommodation at any time and without having to give the local authority notice. Indeed, s20 agreements  which give parents a specified period of notice before removing a child may be unlawful (para 169 of Re N above)

Learning for practitioners

Good practice in s20 accommodation is given in Re N by Sir James Munby, the President of the Family Division. In summary practitioners should:

• Ensure proper compliance with the guidance given by Hedley J (as above) regarding obtaining parental consent
• “Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature”
• “The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand”
• “The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time””
• “The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)”
• “Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.”

Learning resources

Across the country local authorities are developing examples of evidence showing work with families to demonstrate informed and cooperative consent. The transparency project is a development of this work and other local examples are in use.

The Family Rights Group has produced advice sheets that can be used to explain section 20 agreements to families.

The website Suspicious Minds has published a short guide for practitioners for what to think about when section 20 is being considered or reviewed.

Case law

It is important for practitioners to stay informed of current case law and professional development must include a process for professionals to capture learning from judgments. Summaries of case law concerning the use of section 20 can be found in the Research in Practice website.

Current examples of case law cover issues such as consent as well as recording agreements in section 20 accommodations include:

• Re CA (A Baby) [2012] EWHC 2190 (Fam) and added to by the President of the Family Division in N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112: addressing the individual social worker’s personal duty to be satisfied that the parent(s) act with capacity, and give properly informed consent. Extensive guidance given by Hedley J to the required approach to s20
• Williams & Anor v London Borough of Hackney [2015] EWHC 2629: provides a summary of the legal framework and obtaining and recording consent.  Later added to by London Borough of Hackney-v-Williams and Williams [2017] EWCA Civ 26: examining whether parental consent is necessary for accommodation of a child under s20
•  Re W (Children) [2014] EWCA Civ 1065: Children living with paternal grandmother pursuant to an agreement between the local authority and the mother. The court expresses concern as to whether  the agreement was used as an alternative to issuing care proceedings
• Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam): reflecting issues with the length of accommodation of very young children under s20 before care proceedings are issued
• Medway Council v M&T [2015] EWFC B164: relating to the award of damages for breach of article 8 rights
• N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112: President endorsing the Hedley J guidance and offering further advice around s20 including its appropriate use and evidencing consent in writing.