Councils risk misinterpreting section 20 law, guidance warns

Guidance published by service directors and Cafcass says there is a risk that judicial criticism could create a reluctance to use section 20

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Social workers and local authorities have been warned they could “misinterpret the law” around section 20 arrangements following recent judicial criticism.

The warning comes as new guidance is published to help social workers and local authorities properly use the voluntary care arrangements.

Published by the Association of Directors of Children’s Services (ADCS), Cafcass, and the Association of Directors of Social Services Cymru, the guidance warned that caution over section 20 arrangements following recent judicial guidance could be “translated into a reluctance to use [section 20] when it is appropriate to do so”.

“If this becomes the case, it will present a significant challenge to the no order principle at the heart of the 1989 Children Act. Furthermore, it limits the [section 20] offer of positive and strengths-based partnership working between social workers, children and parents,” the guidance said.

Risk

Anthony Douglas, chief executive of Cafcass, also said that without guidance “there was a real risk that recent court judgments could lead local authorities to misinterpret the law, and to always issue care proceedings when a child becomes looked after”.

The guidance did however welcome caution, if it brings about more robust reviewing of cases.

Use of section 20 of the Children Act 1989 has been under the microscope since last year when family court chief James Munby issued guidance amid suspected “misuse and abuse” of the arrangement.

What do recent court judgments and guidance say about section 20?

Community Care Inform subscribers can find an easy-to-read explanation of the practice implications of recent guidance and case law by our legal experts, with pointers on how section 20 should now be used, in this guide.

Andrew Webb, the family justice lead for the ADCS, said a recent rise in care applications and supervision orders had underpinned the need for the guidance.

“[Section 20] placements are an important legal option and are most obviously appropriate where the child’s parent is unable to care for them due to a hospital admission, for example,” Webb said.

Newborns

The guidance shares judicial concern about drifting cases where children have suffered harm or detriment as a result.

“All local authorities should take steps to ensure they do not have a single [section 20] arrangement of this sort,” the guidance said.

“This assurance can only be achieved by ensuring that every [section 20] case open to a local authority has been actively reviewed and that [section 20] status remains the appropriate current legal option and framework for the child.”

With newborns, section 20 should only be used in the short-term when there is no welfare or parenting capacity issue, and the parent can be supported to achieve the degree of protection needed for the child, the guidance said. It added how, in exceptional circumstances, it can be used “where the circumstances for a shared care arrangement are identified in a robust social work assessment. The rationale for this must be clearly recorded, along with a record of management oversight.”

How to use the arrangement positively – for example with hospital admissions or short breaks – and what duties the local authority has to a child in a section 20 placement, is also covered in the guidance.

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