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.
Problem areas
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- Local authorities are reluctant to return the child to the parent(s) immediately after parental consent is withdrawn.
New guidance
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.”
Appeal
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.
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The whole point is that Section 20 does not constitute an order, so your story is misleadingly written. It is a voluntary arrangement and should not be used where compulsion is needed.
Hi Steven,
Thank you for your comment. We have noted the mistake and since corrected it throughout the piece.
Kind regards,
Luke
…and just help me out a bit please, in what circumstances would compulsion be needed where agreement is available ?
Oh dear. First off, Community Care call a section 20 admission an “order”, which just underlines Munby’s concerns. And yet again Munby criticises local authorities with no thought as to why they may be having problems, in this case misusing S20, ie the mountain of paperwork caused by his previous judgements that mean getting a child into care promptly is neigh in impossible. I’ve always said he should shadow a social worker for a month, then go back to making judgements.
Hi James,
Thank you for your comment. We have noted the mistake and since corrected it throughout the piece.
Kind regards,
Luke
Please assist by pointing me in the direction of where the President has given judgments making it harder to “get a child into care promptly”, by which I assume you mean removal under ICO or EPO?
Hallelujah. Will Munby be sending out a directive to all judges and overseeing any failings due to judges rubber stamping social services cases? It’s high time legal action was brought against the rotten apples in the barrel and people on their payroll.
My son is severely autistic and disabled. In order to get him into a residential school – I had to sign a Section 20. I was told it was needed to get funding for the placement. It felt like blackmail. I am regularly threatened by section 20 if SW does not like my choices… Section 20 is being used to control families and vulnerable children.
If a child accesses residential school then they are looked after by the LA. Section 20 is the legal framework under which this happens, otherwise your child’s placement would not be legal. This article is discussing something quite different – whee section 20 is used to keep a child safe without a court order where in actual fact, such is required
This is a local policy. My daughter has been in 39 and 52 week placements in residential schools, and we retained full parental rights throughout. S20 never came into it. A child should get a residential school either through a statement or nowadays an EHC plan, because that is what their special educational, medical, psychological and social needs require (as appropriate). It may be that there is joint funding between education, social services and the NHS, but that is not your concern. The local authority certainly do not need to use S20 to fund the placement – other local authorities do it all the time through the statement or EHC plan!
I suggest you get advice from Ipsea or SOS!SEN, charities who advise parents on SEN.
http://www.proceduresonline.com/norfolk/user_controlled_lcms_area/uploaded_files/Alternative%20to%20Care%20_%20short%20breaks%20v1.doc
This link explains the legal framework in respect of disabled children staying away from home. I would add that section 20 agreements full parental responsibility is retained by parents. Only with a care order is it shared between parents and the LA
It is quite clear that those who make the rules should work with those on the ground trying to apply them with good practice. Clearly mr m needs a month with those I work with thus also applies to the completely barmy rule about 26 week deadlines too get real !!
to Mr Ms credit he has been critical of the 26 week timescale imposed by conservative desire to remove as many children from the feckless poor as possible Oh my Dickens. The problem for SWs is they are being forced into cognitive disonance. Adoption is the best and the only permenant option but our values, ethics, training, research practice experience, children’s voices and wider families voices etc etc etc tell us placing a child with connected people is best. OK they might not get a pony or go to a third rate private school and the home can be a bit chaotic but they are with ‘good enough’ family who inherently care. The CA 89 doesn’t say if threshold is met you have to make an application but does have no order and lesser order principals.
I am in agreement in some sense, where Section can be used incorrectly. However, I have seen if used far more and appropriately where necessary. and with written consent used and gained appropriately. Practice as with Judgement made by various Social Worker and Various Judges are subject to diversity of Location and practice.
Crucial that the IRO acts prudently with this and avoids delay and drift in care planning.
I am a little bit confused by “the written document should not seek to impose any fetters of the parent’s right to withdraw consent” as I have been in many cases where the parent’s solicitor advises that the parent will agree to s20 with 14 days notice of removal of the child, thus giving the LA time to get a court hearing. Surely a no order with ‘fetters’ is the least oppressive approach? I can’t see the LA agreeing to no order if there is a risk that parents may remove a child.
Secondly with the ‘required assessments’ needing to be completed where possible before any court application is made, surely it is better to safeguard the child through s20 whilst the SW appeases the court and conducts these?
This is s20(8) of the CA89 where it is really clear and has been for 26 years…
“Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section”
So to add to the article above, it’s not just the parent consenting to placement who can remove, it’s anyone with PR, as long as they can provide or arrange to provide accommodation accommodation for them (s20(7)).
Consent must be consent… if it isn’t, you need an order. And don’t forget to check the person understands the document… you’ve mentioned language above, but there’s also Mental Capacity.
I hope that’s helpful! 🙂