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Local authorities ‘may misinterpret’ law around s20 warns children’s leaders

ADCS and Cafcass launch guidance for local authorities around use of Section 20 following recent judicial criticism

The Association of Directors of Children’s Services has warned that local authorities may misinterpret the law around Section 20 of the Children Act following recent judicial criticism.

In fresh guidance issued by the ADCS and Cafcass, the organisations state that there is no existing statutory or judicial guidance around Section 20.

“We are concerned that recent judgements may lead local authorities to misinterpret the law and conclude that s20 care requires care proceedings to be issued in most if not all cases where a child becomes Looked After,” the joint guidance states.

Recent judgements are encouraging local authorities to adopt a greater caution when issuing section 20. While such caution may result in more robust reviewing when it is needed, avoiding damaging drift in care, that is a clear improvement for looked after children, however there is a danger that the caution could be translated into a reluctance to use s20 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 s20 offer of positive and strengths-based partnership working between social workers, children and parents,” says the guidance.

ADCS and Cafcass share the concerns of the judiciary where s20 cases have drifted without decent care plans which has caused considerable harm to children and the organisations state such practice should never be excused or condoned. All local authorities should review their cases to ensure they have no Section 20 cases like this.

Judges have been especially concerned about drift in s20 arrangements for younger children. Paragraph 157 in Re N (2015) EWCA Civ1112 is the authority. The President says in his judgment, “s20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of s20 as a prelude to care proceedings for as long as here is wholly unacceptable”.

However, the ADCS/Cafcass guidance warns that s20 care is not a quick and inevitable prelude to s31 care proceedings for every child, only for those children, usually much younger children, for whom care proceedings has been identified as the likeliest route to achieve permanence for the child. “Even then, s20 has a place in some pre-proceedings plans if it is the best way of maintaining a child-focussed dialogue with the child’s parent/s, given that a move to issuing care proceedings can bring with it a greater fear in the parent of losing their child which then leads them to withdraw from both the dialogue with their social worker and co-produced casework,” says the guidance.

The guidance states that where a baby is being removed from parent/s at birth for the baby’s immediate protection, care proceedings should be issued within five days, unless there are exceptional circumstances not to do so. S20 is not usually appropriate in these circumstances unless the protection needed is only short-term and s20s should only be used “very exceptionally” when the circumstances for a shared care arrangement are identified in a robust social work assessment. The rationale should be clearly recorded.

“S20 is most obviously appropriate in circumstances where the child’s parent is unable to care for them for a short period. This may be due to a hospital admission or for short breaks for a child with additional needs, for example, where there are no family or friends able to provide temporary care. S20 may be appropriate for a child with disabilities where her/his parent/s are not able to manage the level of need but can share parenting successfully, sometimes over a longer period of time,” the guidance states.

It adds that s20 is also appropriate with unaccompanied children from abroad including those seeking asylum and is also commonly used when a relationship between parents and their children break down and one or both parties are reluctant to live together. S20 continues to be an important legal option if a child’s parent/s cannot identify suitable family friends or relatives to support them at a time of need, the guidance states.

The main difference between voluntary care or S20 and compulsory care under s31, the guidance adds, is that under s20 the parents retain control and responsibility over major decisions in respect of the child while day to day responsibility rests with the local authority. The planning assumption from Day 1 is that the child will return home, often in a matter of days or weeks. As soon as the care plan changes away from a return home to a need for a longer period in care, the child should be subject to the same permanency planning considerations as all other children in care.

“Used correctly, s20 has much to offer children and families though not at the expense of a child’s long-term health and well-being,” the guidance concludes.

Guidance is available here.

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