Social workers and local authorities should avoid using section 20 arrangements in cases involving unaccompanied asylum seeking children, an expert has warned.
Jon Fayle, an independent reviewing officer and vice chair of the National Association of Independent Reviewing Officers, told social workers at Community Care Live that setting up the voluntary care arrangements for children without parents in this country was “absolutely the wrong use”.
Fayle said, in his view, use of section 20 in such situations risked being “negligent and disgraceful” because the children do not have parents in this country to be involved in key decisions, and section 20 does not give the local authority parental responsibility.
He said: “[Unaccompanied asylum seeking children] have no-one available to make key decisions in their lives about health treatment or schools. Various important decisions about their life cannot be made by a local authority under a section 20 agreement – but they do.”
His comments were in contrast to recently published guidance by the Association of Directors of Children’s Services, Cafcass and Association of Directors of Social Services Cymru, which described the use of section 20 for unaccompanied children from abroad, including those seeking asylum, as positive.
Compulsion by disguise
In a wide-ranging session on section 20, Fayle addressed the practice implications of recent judicial criticism of local authorities’ use of the arrangements.
He referenced Re N, a case where family court chief James Munby identified widespread ‘misuse and abuse’ of the arrangement and issued new guidance. He also pointed to guidance from Judge Bellamy that section 20 consent should not be “used as compulsion by disguise”.
Fayle argued that in some circumstances it would be “reasonable” for local authorities to tell a parent “we hope we can work with you in trust and cooperation and we hope we don’t need to go to court, but we do have to sort this out. I hope we can do this on the basis of a voluntary agreement however you need to know that if we can’t get this agreement we may have to consider thinking about care proceedings”.
However he said it would be “unreasonable” to tell a parent that if they didn’t sign a section 20 agreement they would go to court.
Fayle said section 20 was “terribly susceptible to potential misuse”, adding: “The most common concern, the most common abuse, that I’ve come across in my time as an independent reviewing officer has been the misuse of section 20, sometimes the abuse of section 20, sometimes completely unlawful practice that I have observed”.
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What is the alternative if they are unaccompanied? There are no parents to take responsibility away from, so drawn out care proceedings are a waste of time.
The article makes a criticism without giving an alternative which is better for the immediate welfare of these Children.
The other options only benefit money hungry solicitors and clog up the courts.
Negligent? Disgraceful? Really? S20 is a duty imposed on local authorities for exactly these situations. Its use is entirely proper and the statutory regime ensures that decisions ARE made for these children! It does not automatically follow that care proceedings are required just because there is no person with parental responsibility. Thorpe j,s comments in Birmingham v d and Birmingham v m remain apposite – the needs of children (in that case orphaned) are met by s20 children act. Local authorities plan for and parent children in care In exactly the same way as they do children looked after. Misreading and misinterpretation of the presidents comments in re n appears to have resulted in a significant increase in care proceedings and care orders nationally. This results in significant cost to the state (taxpayers) significant strain on limited resources (courts, social workers,iro and legal departments) and a reluctance of social workers to actually work with families – why would they when they are simply accused of causing drift and compulsion in disguise. Cases are now being put into court far too early and families are no longer given the opportunity to make necessary changes – all of these sacrifices at the altar of speed!
Whilst i am balancing on the top of my high horse how, how, how are the examples of reasonable and unreasonable practice, mentioned above different? In my experience the compulsion is very rarely in disguise. La,s say to parents stop abusing your child or else, agree to this or else – that is simply being honest. Re n addresses important points and is a good judgment but it does not apply to every use of s20 In every circumstance.
And another thing, if a parent decides that to save their child,s life they must put them on a boat or in a truck, send them to a foreign land and potentially never see them again is it really right and proper for any la to aver that that child is suffering significant harm because of their parent(s)?
Last point but if there are abuses of s20 then they must be flagged up and addressed by local authorities and the courts but iro,s cannot sit back and simply observe. I,m sure mr fayle is well aware of those duties and does not allow the abuses he has observed to continue!
Mr Hughes is right, the only winners are the lawyers!
So if we are not going to use S20 to look after these children then what is the alternative? Is there more to this argument that has been left off this article. These children often get a rough deal from local authorities and the Tories are already hatching plans to leave over 18’s destitute with no access to services or support we should be concentrating on these issues rather than navel gazing about S20.
Perhaps John Fayle could explain
1) How to run care proceedings in relation to unaccompanied refugee minors for example how to serve proceedings on their parents, comply with the Vienna Convention on Consular relations;
2) what the benefits of care proceedings would be? Yes the LA will get PR which they will share with the parents but what else? and
3) what difference PR makes in the medical treatment of a child who is Gillick competent. If the child refuses treatment a court order will be necessary unless the treatment is urgent; if the child consents to treatment, their parents views are irrelevant – indeed the young person is entitled to confidentiality.
The limited resources LAs have should be spent on services for children not unnecessary legal proceedings.