Judge issues guidance on Section 20 arrangements following ‘unfairness’ in the use of Section 20 and awards of damages under the Human Rights Act
Social workers must gain written consent from parents in order for a child to be accommodated under Section 20 of the Children Act, a judge has reiterated.
Judge Clifford Bellamy has issued a practice guide following the misuse of section 20 which has recently led to awards of damages under section 7 of the Human Rights Act 1998.
The judge said that when a child is accommodated before care proceedings are issued:
- the court has no jurisdiction to scrutinise the local authority’s interim care plan for the child or to control the planning for the child and prevent or reduce unnecessary and avoidable delay;
- the court has no power under section 34 of the Children Act to determine issues relating to parental contact with the child;
- the child will not have the benefit of the appointment of an independent Children’s Guardian to represent and safeguard his interests;
- the child is not entitled to legal aid and is therefore unlikely to have legal representation and
- unless a pre-proceedings meeting has been convened, the parents have no entitlement to legal aid and are, therefore, unlikely to have legal representation.
As a result, these factors clearly give rise to scope for unfairness in the use of section 20.
“Accommodation of a child under section 20 is frequently referred to as ‘voluntary accommodation,’ said the guidelines. “This description highlights the absolute importance of recognising that a child can only be accommodated under section 20 if a parent with parental responsibility consents to his or her child being accommodated.”
“This requires the social worker obtaining the parent’s consent to satisfy herself that the parent has a clear understanding of what she is being asked to consent to and that she is capable of giving consent. It has been said that consent ‘must not be compulsion in disguise’,” the guidelines add.
Particular issues have arisen when Section 20 is used to take a newborn baby into care, the judge warned. Therefore, social workers must gain consent, actively address the issue of capacity and if there are doubts over capacity, social workers should seek advice from team leaders.
If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed, the guidelines add.
The judge highlights that as a matter of good practice, legal advice should normally be obtained before inviting a parent to consent to his or her child being accommodated under section 20. If a parent objects to his or her child being accommodated under section 20 the local authority may only lawfully remove the child from parental care with the authorisation of a court in the form of an Emergency Protection Order or an Interim Care Order.
While there is no legal requirement for a social worker to obtain consent in writing, ‘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 parent's signature’, says the guidelines.
Where English is not the parents’ first language, appropriate measures such as an interpreter and translation forms should be provided.
“The ability to accommodate a child under section 20, with parental consent, is not intended to be a long-term alternative to care proceedings. It is intended as a short-term measure pending the commencement of care proceedings,” the judge reiterated. “’Short-term’ means no longer than is necessary to enable the local authority to prepare and issue an application for a care order. In such circumstances it is imperative that care proceedings are issued promptly, particularly if there are complex medical issues as a result of which the court is likely to give permission for the instruction of independent medical evidence.”
In cases where children are accommodated under section 20 for more than three months, senior management should review the case, concluded Judge Clifford Bellamy.
The guidance was written by Judge Clifford Bellamy for the Leicester and Leicestershire Family Justice Board.