The chief of the family courts has attacked councils’ use of section 20 arrangements, saying the voluntary care agreement is subject to “misuse and abuse”.
In an appeal judgement published last week, Sir James Munby issued new guidance for section 20 arrangements, and warned councils that if they cannot defend their use of them, they can expect “stringent criticism and possible exposure to successful claims for damages”.
Munby was concerned about children being placed with section 20 care agreement as a long “prelude to care proceedings”.
“It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers,” Munby said.
A section 20 arrangement allows a child to be accommodated by the local authority, but it must be agreed to by those with parental responsibility. Use of section 20 has increased steadily since 2013, and a recent case involving a section 20 arrangement ended with the judge criticising social workers for the “most shocking misunderstanding of the law”, and a mother and daughter awarded record damages.
Munby identified four problems with the current use of section 20 arrangements:
- Failure of councils to get informed consent from the parents from the outset.
- How consent is recorded by local authorities. 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,” Munby said.
- That section 20 arrangements are allowed to continue for far too long.
- Local authorities are reluctant to return the child to the parent(s) immediately after parental consent is withdrawn.
Munby called the misuse “not just a matter of bad practice” and insisted: “It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop.”
As a result of the concerns, Munby set out new guidance for what “future good practice requires”:
- Where possible, the agreement of a parent to a section 20 arrangement should be properly recorded in writing and evidenced by the parent’s signature.
- The written document should be clear and precise and drafted in simple and straight-forward language that a parent can readily understand.
- The written document should spell out 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 of the parent’s right to withdraw consent.
- 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.’
Munby said: “From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.”
The guidance was set out in an appeal hearing against the decision to move the judgment of two children’s future care back to their home country.
The two children, who were Hungarian citizens but born in the UK, were placed in local authority care under a section 20 arrangement in mid-2013, but care proceedings were not brought until January 2014.
The local authority was appealing the decision by a judge that the care and placement order proceedings should be directed to Hungary, of which the children were citizens.
The appeal was rejected because, although it was acknowledged that the courts of England and Wales do have jurisdiction to make placement and adoption orders in the case of children who are not UK citizens, it was judged that the Brussels II (commonly referred to as Brussels II Revised) regulation in European law, which covers the jurisdiction in the matters of parental responsibility, was the right order to pursue.
The regulation applies in civil matters that relate to “the attribution, exercise, delegation, restriction or termination of parental responsibility”, and “the placement of the child in a foster family or in institutional care”.
The regulation does not apply to “decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption”. However, as the initial application was for care proceedings and a placement order, and the care proceedings were not judged to be preparatory for adoption, the regulation applied.