‘High stress’ situations impact capacity to consent to section 20, social workers warned

Fluctuating capacity one of several issues covered in section 20 guidance published by Transparency Project

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Parents’ capacity to consent to section 20 arrangements can be impacted by the stress of knowing their children could be taken into care, experts have warned.

Guidance published by the Transparency Project, a website aimed at promoting transparency in the family courts, said social workers have a “personal duty” to ensure parents have capacity to consent to section 20 arrangements. It urged practitioners to be alert to the fact capacity can “fluctuate” and be impacted by “moments of very high stress”.

Lucy Reed, a family barrister and member of the Transparency Project, said: “One of several issues that crops up with Section 20 is whether or not there has been valid or continuing consent at the time it was taken or thereafter. There might be parents who have capacity but at the time when their consent is taken they might not have had it.

“They might have fluctuating capacity and the pressures of being, for example, in a situation where there is a threat of your children being removed by use of the police if you don’t agree. That might affect someone’s capacity to make good decisions.”

The guidance covered several areas of section 20 decision-making. It was issued in response to a series of high-profile court judgments that criticised local authorities’ use of section 20. A 2012 case, Re CA (A baby), particularly focused on the issue of capacity.

Social workers should “take urgent advice” if there is any doubt over a person’s capacity, the guidance said.

It pointed practitioners to sections two and three of the Mental Capacity Act 2005 and explained that if an adult has a permanent or temporary problem with their mental functioning, they will be said to “lack capacity” to make a decision if they:

  • Can’t understand the information which is relevant to the decision; or
  • Can’t retain the information about the decision; or
  • Can’t use, or weigh up, that information as part of making the decision; or
  • Can’t communicate their decision, by speech, sign language or any other means.

Issues around who holds parental responsibility in section 20 arrangements, what happens if one parent agrees and another does not, and what weight a child’s views should be given, were also addressed in the guidance.

Reed said the guidance aimed to help social workers think the issues through and help parents better understand the process, adding: “There’s an inconsistency of knowledge and, on occasion, insufficient care taken to ensure section 20 is, or remains, appropriate.”

The Transparency Project report follows guidance on section 20 arrangements published by Judge Bellamy earlier this month.

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