How to comply with court rulings on section 20

This article was first published in 2016 and last updated in January 2018.

Social workers have been regularly criticised in court and by Ofsted in recent years over the inappropriate use of ‘voluntary’ accommodation for children under 20 of the Children Act 1989.

The courts and researchers have cited examples of section 20 accommodation being ‘misused’ in safeguarding contexts to avoid or delay care proceedings, with parents feeling coerced into agreeing to their children being accommodated or children being accommodated long-term without proper care planning.

Latest looked-after children figures show a drop in the use of section 20 arrangements following concerns that practitioners might become reluctant to use this route in circumstances when it is appropriate because of judicial criticism.

Community Care Inform’s Section 20: putting the guidance from case law into practice is written by a family law barrister. It is regularly updated to help you make sense of the latest case law and guidance and 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.

1. Understand how a parent’s right to object works
   

   Until a landmark Court of Appeal case in January 2017 it was understood that parental consent (often in the form of a written agreement) was needed for section 20 accommodation to be lawful. The Court of Appeal found in Hackney vs Williams that the law does not require parental consent to local authority accommodation; instead it is prevented if  a parent objects and is able to provide or arrange accommodation themselves.

   In this particular case, the parents were under bail conditions during police investigations which included all contact with their children being supervised. In these circumstances, their objection did not render the children’s placement with foster carer unlawful, because they could not provide accommodation themselves.

   The Court of Appeal said that this judgment was not “intended to dilute or amend the good practice guidance [on obtaining consent, set out in previous cases] which sits above the bare statutory requirements.” It was ruling on whether the council had acted in breach of the law, which it had not.

2. Be satisfied that a parent has the mental capacity to understand their right to object

   A parent must have mental capacity in order to validly object or consent to their child being accommodated under section 20. Judicial guidance was given in Re CA (2012) after a newborn baby was removed from its mother who was recovering in hospital from medical complications – the court found that she lacked capacity at the time she was asked to make a decision about her child being accommodated.

   The court in Hackney v Williams (mentioned above) noted that it disagreed with the judges in this case that valid consent was necessary for lawful removal under section 20. But it said that in different circumstances it would be good practice and guidance set out by Justice Hedley in Re CA (also referred to as Coventry v C) should be followed when seeking consent.

   Justice Hedley said 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. This is a particular consideration when parents have mental health problems, learning disabilities, are under 18, or for mothers who have recently given birth but should be kept in mind in all cases. 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.

3. Don’t use section 20 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.

4. 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.