Social workers have been regularly criticised in court during recent months over the inappropriate use of ‘voluntary’ accommodation for children.
Such criticism is often accompanied by hefty fines.
Community Care Inform’s Section 20: putting the guidance from case law into practice is written by Michael Jones, a family law barrister, and regularly updated with new case law and guidance from national agencies. It helps you ensure you are complying with the law and upholding both a child and their family’s rights.
Here are a few key tips selected from the current guide:
Please note this is not legal advice; social workers should consult their legal teams for advice on the facts of any specific case.
- Obtain valid parental consent
A parent must have mental capacity in order to give valid consent to their child being accommodated under section 20. Otherwise the accommodation is not lawful. In the landmark Re CA case (2012), Justice Hedley gave guidance that social workers obtaining consent are “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”.
It is important to note that capacity can fluctuate and be reduced in high stress situations. If you have doubts about a parent’s mental capacity, don’t make further attempts to seek consent on that occasion. Seek advice from a team leader or manager; managers should get legal advice if necessary.
This point applies particularly where parents have mental health problems, learning disabilities, are under 18, or mothers who have recently given birth but the guidance in the Re CA judgment should be considered in every case.
- Parents can end an arrangement at any time
While there is no formal requirement for parents to sign a written document or national template, the President of the Family Division, Sir James Munby has given ‘good practice’ guidelines that consent should be recorded on a document written in “straightforward language that the particular parent can readily understand”.
This includes spelling out that parents can request the child’s return at any time.
Once parental consent is withdrawn, the agreement is no longer lawful and the child should be immediately returned or formal legal steps to continue accommodating the child should be taken if appropriate.
In the Williams v Hackney case where parents successfully claimed they signed an agreement under coercion, the council was ruled to have breached the family’s rights under article 8 of the European Convention for, amongst other things, not telling the parents they could withdraw their consent.
- Section 20 should not be used to cover ‘gaps’
Cases that have attracted the sternest judicial criticism have often involved councils using section 20 arrangements to cover “drift and delay” before issuing care proceedings. In 2015, Munby called a council’s use of voluntary accommodation for eight months after a child’s birth before seeking care orders “a misuse, indeed, in my judgement an abuse, of the provision”.
If there is a pre-birth plan to issue care proceedings, this should be done without delay. Using section 20 while issues with foreign courts are resolved or until the authority considers care proceedings can be brought is also not acceptable, the courts have said.
- The importance of IRO oversight and LAC reviews
A key aspect of section 20 arrangements is that there is no transfer or sharing of parental responsibility as there would be under a court order.
Judges have pointed out in some child protection cases where there has been an inappropriately long use of voluntary accommodation, this meant no one was taking responsibility for the child’s progress and welfare.
LAC reviews are important opportunities to consider whether the continued use of section 20 is appropriate or whether another plan should be pursued, in consultation with the legal team if necessary.
- Understand when long-term section 20 arrangements are appropriate
Don’t forget that many children are voluntarily accommodated because their parents do not wish to be the main care-giver. For example, some disabled children or unaccompanied asylum-seeking children may remain in section 20 arrangements for long periods with no question of care proceedings being issued. Guidance from Cafcass and the Association of Directors of Children’s Services (ADCS) cautions against local authorities becoming reluctant to use section 20 where it is appropriate and positive, including as part of a strengths-based way of working with families.
Community Care Inform Children subscribers can read more tips and further detail of social work practice in the cases mentioned and others in the full guide. Michael Jones also provides summaries and the implications for practice from key judgments affecting children’s social work; read the latest case law articles here.