Social workers have been reminded again of the need to fully consult parents involved in section 20 agreements in a case where the judge decided not to name the local authority, despite clear failings, in recognition of the pressures on practitioners.
The case involved a child, C, who was placed in a voluntary section 20 agreement. The child’s mother consented to the arrangement but the father was not consulted.
The father was found to not have the capacity to participate in court proceedings because of a mild learning disability and inability to read. He was not with the mother at the time of the arrangement, and the ruling said it was a failing of the local authority not to identify the father, who was on the birth certificate and had regular contact with the child, as having parental responsibility.
“Not only was F (the father) not consulted and asked if he had any objection, he was not asked if he knew of any relative who might be able to provide a temporary home for C (the child),” the judgment, which was delivered in October but only published recently, said.
Judge Heather Anderson said: “I wish to make it clear that there is no suggestion of any bad faith on the part of any of the professionals in this case. An early error was not noticed by a variety of professionals who are all working under a great deal of pressure. It is unlikely that this pressure will lessen. Therefore it is crucial that where rights and obligations derive from parental responsibility clear simple procedures are put in place as early as possible to establish who has it.”
“It is clear from what has happened in this case that early gathering of accurate information about a child’s family circumstances is crucial to there being fair and timely child protection procedures,” she added.
Allan Norman, a registered social worker and qualified lawyer, said the case showed it was important that professionals “don’t make assumptions that somebody who has parental responsibility and a right to be consulted might lack capacity, and therefore lack the legal capacity, to make decisions and therefore doesn’t need to be consulted.”
The local authority conceded that the father should have been made party to the proceedings automatically.
A series of cases have highlighted concerns over local authority practice in section 20 agreements, culminating in the chief of the family court division, Sir James Munby, issuing new guidance in November 2015.
‘Not useful to name authority’
Explaining her decision not to name the local authority, Judge Anderson said social workers and their legal advisers were under “huge pressure”, largely imposed by the requirements of the court.
She added: “Although I will be critical of the local authority’s conduct it will not serve any useful purpose for me to attribute the omissions and failings which I will identify to specific individuals.”
However, this decision was criticised by former MP and “campaigner against injustice” John Hemming. According to The Press Association, he said that “unless we know where things have gone wrong, they cannot be put right”.
He added: “Many families will no doubt be involved with this council’s social services department. They have a right to know if something has gone wrong.
“It is simply not good enough to keep the name of the council secret because social workers and their legal advisers work under ‘huge pressure’. This council is a public authority, its staff are public employees and members of the public have a right to know what is done in their name.”
Was this the right decision?
Not naming local authorities is uncommon. Norman said the local authority should have been named, not from a “name and shame perspective” but because this is the ordinary legal principle.
“The judge considers the social workers weren’t really at fault, there are quite a few precedents for the judge specifying because they don’t really think the social workers are at fault I’m not going to name the social workers.
“That would have been entirely legitimate here, but there’s a world of difference between applying the principle that there’s no reason to name individual social workers because they are working under pressure and so on, and what this judge has done to apply the same principle to not even name the party to the litigation. That’s a leap I can’t really make, I think on the normal principle the judge is wrong,” Norman said.
The Transparency Project, an organisation run by lawyers aiming at promoting transparency in the family courts, said the reasons for anonymity could have partly been to prevent “jigsaw identification” of the family.
“The judge noted that there had been errors and omissions by the court and other agencies, as well as the local authority, that these came about through workload pressures and not because of any suggestions of bad faith,” it added.
In a blog on the Project’s website, it added that the judge could possibly be taking collective responsibility for the failings in the case.
“Perhaps the flurry of interest will lead more readers to the actual judgment with HHJ Anderson’s acknowledgement of the huge pressures the courts and local authorities are under,” it said.