And for tonight’s rant…

suitcase - courtesy of jasleen_kaur

courtesy of jasleen_kaur

…I shall mostly be complaining about section 20 of the Children Act.

It’s a well intentioned provision, but often exploited and misused in ways which make my blood boil.

s20, for those who don’t know, is a provision which places a duty upon Local Authorities to accommodate children who have no available parent or who are abandoned or where “the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”

Note that it is intended to ensure that waifs and strays and orphans are not left without accommodation by creating an obligation on a Local Authority to step in. In practice however, s20 operates more like a power than a duty. For why? Let me tell you how it works.

A Local Authority thinks children are at risk, they form the view that they need to remove the children from home in order to protect them. They can do this one of two ways: issue care proceedings, paying substantial issue and legal fees along the way, and triggering onerous duties in respect of evidence gathering and presentation; OR persuade the parents to agree to voluntary accommodation under s20, avoiding all that nasty paperwork and cost – oh, and avoiding the scrutiny and the chance that the plan will be successfully challenged.

Because you see if a child is accommodated under s20 instead of issuing care proceedings there is no court scrutiny. There is no Guardian appointed to represent the child, to independently assess her needs and wishes, or to offer a potentially contrary view about what is best for the child. There are no lawyers to stick their awkward oars in. No hearing. No bench or Judge. No testing of the evidence or analysis or the judgment. No exposure of any gap in the evidence or of any lack of analysis, or weighing of contrary opinions. And – and this is the cherry on top – the Local Authority can place a child with a scarcely assessed grandparent or aunty without going to the cost of paying for an expensive foster placement or residential accommodation. Win win…Right?

It’s very common on first hearings in care proceedings for there to be a difference of opinion as to whether or not a child already removed has been truly accommodated “by consent”. The parents often express that they had no choice – in essence they had to agree to (short term) accommodation in order to avoid court proceedings. They often swear that they were told the children would be PPO’d by the police if they didn’t agree – that may be a correct summary of what is the likely reality but how is it consent in any meaningful sense? (PPO = Police Protection Order) As night follows day care proceedings often follow in any event, but in truth however sensitively it is approached by social workers attempting to obtain s20, parents don’t have any choice, and at moments of family crisis when asked to make such a decision, have no access to the legal advice about the significance of their agreement to accommodation. Parents often describe the use of s20 as blackmail, and it’s a tough argument to respond to: the reality is that the threat of care proceedings or of longer term removal is held over them like the sword of damocles. If they agree it’s a fait accompli that makes the first hearing in care proceedings more difficult. If they don’t it’s a failure to prioritise the needs of the child or a failure to cooperate with professionals.

S20 seems also to be increasingly commonly to be used as a safeguarding device in cases where a Local Authority has set its face against issue of proceedings under s31. It goes something like this: child suffers apparent non accidental injury. Caring parent / parents agree to accommodation for the short term whilst the injuries are investigated, often with a grandparent or other safe adult. Days stretch into weeks, weeks into months. Social workers and Child Protection Conferences recommend the issue of private law proceedings by the non-resident parent / any vaguely known family member not in the pool. And Bingo! Child is “safeguarded” by virtue of the s20 accommodation and the court scrutiny triggered by s8 proceedings. Why bother issuing those costly care proceedings, where the Local Authority would have to run the case, gather and assess the medical evidence, seek findings, assess risk…Let the court, the family, the Legal Services Commission bear the responsibility and the cost. The LA can sit back and wait for an outcome, not even under any pressure from lawyers, guardians or judges to assess, to put in services, to attempt to rehabilitate. s20 is a recipe for drift.

It’s wrong. It’s an abnegation of a Local Authorities’ responsibility to safeguard, to place before the court cases where there is a risk of significant harm. I can think of two cases I am currently dealing with where the Local Authority has declined to issue care proceedings or to become involved in private law proceedings where there are NAI and where they consider that threshold is met, where there are intervenors, independent medical evidence will be required (and in one case both parties are privately paying where they would be in receipt of public funding if the LA would issue). In those cases the children are separated from their primary carer for month upon month, with the parents powerless to progress the case, to challenge the removal. In these cases I ask: “What will happen if the parent wishes to remove the child?” Answer? “We’ll EPO” (Seek an emergency protection order). Hmmm.

On days when I am feeling ornery (that’s most days) I want to advise parents like these to give notice of withdrawal of their consent to accommodation. So we can do it properly. So the LA can stop passing the buck – so it can take responsibility for the cost, the evidence, the analysis. Nobody wants their clients to be the subject of care proceedings, it’s what we all want to head off at the pass. And whether or not care proceedings are issued nobody wants an ICO (interim care order) in place where consent could be properly obtained to a sensible plan for short, medium or even long term care elsewhere. But in cases where the justification for removal is finely balanced what I want for my clients is for the state’s exercise of powers of removal to be properly accountable. That is what the drafstmen and women of The Children Act 1989 intended; it is the purpose behind the system of interim care orders, the sharing of parental responsibility and crucially of the threshold provisions in s31 CA 1989. They are to protect families against the excesses of the state. s20 is the backdoor to removal. A door wide open.

You might think from reading the Norgrove report that I am forgetting the Independent Reviewing Officers (IROs) who should be speaking up in the CPCs, kicking butt. I haven’t forgotten them. But I’m sanguine. That part of the system is pretty dysfunctional too, for reasons which I will save for another post.

So, Ladies and Gentlemen. That is s20. In practise less of a duty than a power. An unregulated power, which enables Local Authorities to act without scrutiny or challenge and which can, when wielded inappropriately, interfere with the Article 6 and Article 8 rights of parents and children.

I shall now get back in my box and await a multitude of comments telling me why all the above is garbage.

32 thoughts on “And for tonight’s rant…

  1. Issues around s20 and ‘meaningful’ consent are also coming up around social care provision. In the case Re RK, RK had complex disabilities and was placed in a local authority care home under s20. Her parents wanted to care for her at home, but the LA said they couldn’t put in place the expensive package of support needed to care for her there. The parents argued that consequently RK was de facto detained, engaging Article 5 (I’m not sure why they didn’t just JR the care plan, but probably there were good reasons). Anyway, Mostyn J said that RK couldn’t be detained because the parents had consented and had the legal right to take RK home. The parents responded that this was an ’empty right’ without support to do so. Mostyn J said that RK couldn’t be ‘detained’ because s20 didn’t contain legal powers of detention – so it’s interesting to see you describe it being used in quite a coercive fashion in other cases.

    Mostyn J’s ruling has recently been appealed, and judgment is awaited with interest.

    The high court judgment is available from here:
    http://www.mentalhealthlaw.co.uk/Re_RK;_YB_v_BCC_(2010)_EWHC_3355_(COP)

  2. I’d be interested to know how common this (coercive use of s 20) still is, because last week I was told I was out of date in thinking LAs avoid care proceedings. I was told that in England, since the publicity following the death of Peter Connelly, LAs have no compunction in applying for orders.

    Is there any way of collecting data on this? A couple of years ago i compared s 20/s 31 ratio of LAC between a few LAs and they were remarkably different. But does that say that some LAs work more co-operatively with parents than others?

    In any event, David Norgorve has recently said that social workers must be trusted by the courts and allowed to make mistakes. While I am sure we would like to trust SWs themselves, it is their employers and the government which dictate policy.

    • I’m obviously not going to comment on specific cases, but my general view is that in cases where there is failure to issue it is either because of a failure to properly analyse matters from a legal point of view (and only the LA knows whether that is as a result of failings in the legal department or a failure to act on good advice given) or because of a deliberate attempt by service managers / those higher up the chain to prioritise the “more serious” cases by not issuing if a way around it can be found.

      That said the care stats continue to rise and I know of a number of LAs who are issuing like crazy and for whom this is not a problem. I can think of one where they are making a concerted effort to issue on the kinds of cases where you look at the chronology on first hearing and go “what have the LA been doing for the last 5, 10 etc years?” i.e. to pick up on the chronic cases. But it’s very patchy.

      I don’t know if there are any s20 stats collected. I suppose one could compare the numbers “looked after” with the number of care orders and extrapolate. Alternatively I wonder if it’s possible to construct a FOI request? I bet that the figures are not nationally collated. You would have to do a FOI to individual local authorities. It would be an interesting project.

      I don’t think it’s about blaming social workers. There are some fantastic social workers out there, but they increasingly do not make decisions – everything is driven by service managers. And sadly in many cases social workers are inexperienced, unsupported and overworked, too busy fire fighting to analyse the legal issues or to worrying about court process. They are dealing with the front line – it’s the planning that is lacking. As with the OFSTED report that came out yesterday that’s about leadership and management.

      Equally, it is difficult to be too down on service managers – they are genuinely trying to prioritise without sufficient resources to do everything that they ought to. I have heard one Local Authority routinely submitting that “We accept we have a legal duty to do X (e.g. assess) but we have no funds and therefore we can’t comply”. It comes to something when a Local Authority admits an intentional breach of a legal duty as it’s starting point.

      I don’t know what the answer is. Luckily I’m not the one who has to find the fix, I am in the luxurious position of being able to grumble and grouse from the sidelines. It is my clients and the children who I am most concerned for.

  3. Agreed section 20 was intended to be used to to give parents or carers respite .Parents these days however are told “sign this or we will have to take you to court and you may lose your children for good !”
    Even worse,this so called “voluntary care” is used as a pretext to hold children in care even when the parents have refused to sign the section 20.There are many cases where babies and young children are claimed in LA position statements to be the subject of section 20 orders and despite protesting parents crying out that they had refused to sign anything at all the judge simply warns them abouit complaining to the media and otherwise ignores their concerns !

    • In general parents are safeguarded by the issue of proceedings, and in some cases by the making of an ICO both of which give rise to certain duties. I’m not saying that s20 is always a bad thing, but that it can be used as a means to an end perhaps in ways never intended and in ways which short-circuit the safeguards that the court process is intended to afford both parents and children.

  4. Yes there are DfE and WG stats that show the numbers of children looked after who are accommodated (s 20) and the no. who are subject to care orders and comparison between LAs can show wide variation. But that does not necessarily mean more s 20 should have gone to court – maybe LA is just supporting far more families.

    Apparently thw PM is due to make a statement about adoption policy soon (deja vu Tony Blair?)so policy change may increase/decrease rate of care applications. Mr Narey presumably not keen on s 20. (Excellent point a while ago by Pink Tape on The Times’ switch from accusing CSDs of child snatching to now saying more children should be adopted!)

  5. I probably wouldn’t couch it in the same terms as you, though I agree that the “agree s20 or we’ll PPO” is no choice at all, and almost certainly a wrongful use of the Police Protection powers, following Liverpool.

    But most LA lawyers that I’ve discussed this with are of the same view that s20 is a drift waiting to happen. I do see far, far less long-term s20s than I used to, I think principally because people are more alive to it, and we tend to get parents represented for a Letter Before Action meeting earlier in the process.

    I’ve thought for a long time that s20 should have two additional strands – the first being that a parent can legitimately give notice of their intention to withdraw s20 consent without it being evidence of non-cooperation (effectively inviting the LA to put up or shut up) and secondly being that if the LA haven’t agreed a programme of rehabilitation within say 6 weeks of the s20, they must either issue the proceedings or the s20 will disintegrate 2 weeks later. You could add that the first time a child is s20 accommodated, the LA should convene an LBA meeting within 10 days, as being a way of ensuring that the parents get some legal advice about what their options genuinely are.

  6. You are wring on the issue of costs. While you may as the LA avoid the costs of litigation a child in s20 accommodation becomes “looked after” just as a child taken into care does and the same obligations arise.

    From a social services point of view those costs are significantly more than any potential legal costs, which in any event are likely to be coming out of the legal departments budget.

    In my experience s20 is more commonly used at the first ICO hearing in the Mags where parents offer to consent as an alternative to an ICO where they recognise that opposing removal is hopeless.

    • Yes of course you are right that s20 accommodated children are looked after. That was my slip. But on the costs issue it’s not just the legal costs that are different. The duties for all categories of children may be the same in many respects, but the scrutiny of how LAs discharge those duties is not the same in both cases, and there are additional safeguards for the parent of a child under an ICO, to counter the additional power that the sharing of PR gives (duty to provide reasonably contact, ability to apply for a contact order). And part of my point is that s20 can be used in conjunction with a placement with grandparents as a quick fix where perhaps there should have been closer scrutiny and maybe a more expensive placement option considered (eg mum should have been considered for residential assessment). I’m not saying this happens all the time, just that it does happen.

      And as you say s20 is often offered at a first ICO where there is no justification for sharing of PR and parents are cooperative.

  7. Current national statistics on looked after children can be found at http://www.education.gov.uk/researchandstatistics/statistics/allstatistics/a00196857/children-looked-after-by-las-in-england

    Also please dont call it a Police Protection Order, it isn’t a court order and it shouldn’t be confused with one.

  8. OK, i am going to leave this one alone eventually. A child accommodated under s20 becomes looked after. A local authority is obligated to review the case of every looked after child which is chaired by an independant reviewing oficer. A care plan still needs to be prepared and the implementation of that plan is subject to scrutiny by the Review Conference. Failure to implement the plan can result in a referal to senior LA management or, ultimately, CAFCASS. The idea that s20 is a paperless soft option is untrue.

    I do agree however that it is sometimes used inapprorpriately. Using it as an alternative to issuing an EPO I have no problem with. Parents are free to refuse to agree and to contest the EPO. Refusing then to issue proceedings where the circumstances were sufficiently serious to justify emergency intervention is a dereliction of duty.

    Using it in a case of NAI (and not then issuing proceedings) is compeltely inappropriate as you have no way to properly assess the risk posed by the potential perpetrators without having obtained a finding.

    • To be clear I’m also not saying that it is always wrong to use s20 as an alternative to an EPO, just that sometimes in real terms it is not much of a choice, and that often parents experience of the process is that they have not truly consented, either because of the nature of events or a lack of sensitive handling.

      It really is the NAI cases which drive me batty. I just can’t compute what is going on there.

      Thanks for your comments today by the way. 🙂

  9. Lots of v good discussion here and of course correct that no-one wants to take on loads of s 20 children (esp. Kent or Hillingdon) but, sorry, can’t use s 20 if there is NAI. (did I misunderstand that point?)

  10. I do agree that they are sometimes used inappropriately but I can only really go off my own experiences. I practiced as a local authority solicitor and saw very few cases of long term s20 accommodation where the child should have been subject to proceedings.

    There were plenty of times when the parents faced agreeing to accommodate versus emergency interventions but these generally preceded an actual application for an ICO.

    I also think you rather downplay the obligations to children in s20 accommodation. They are much the same as the obligations to children in care including the requirement to promote contact. What they lack is oversight or supervision from the Court or Guardian, a choice made by Parliament (and much the same as the position post proceedings).

  11. On the subject of oversight I have always been dubious about the IRO Referral process created after the Re S and Re W case of starred care plans.

    I was curious if the powers have ever actually been used and have submitted a FOIA request to CAFCASS which, if you are interested, you can follow at http://www.whatdotheyknow.com/request/information_about_iro_referrals

  12. To Julie,

    You can use s20 accommodation if there are alleged NAI but to use it and not issue proceedings is really dubious. If NAI is alleged you need to establish what happened, how it happened and who was responsible. You can only do that within the context of proceedings which the LA should be bringing.

  13. @Andrew Pack

    The only issue I see with your suggestion is that there are plenty of cases where it is appropriate for a child to be in long term local authority accommodation under s20.

    In particular those cases where a parent is prevented from caring for their child and there is no family member available. You dont have grounds to obtain an Care Order as threshold is not met but there still needs to be a legal basis for the accommodation which s20 provides.

    It also wouldn’t be appropriate for those small number of cases where a child is lost or abandoned, orphaned or, as sometimes happens with older teenagers, thrown out of home.

  14. In my experience it is more often the case that the child is ‘placed’ with family members by the LA – who then either don’t realise that a S20 duty has arisen, refute that the child was ‘placed’ (“the mother placed him with grandparents”) despite having extensive involvement in the process and concerns or just try and ignore it. Quite often with a recommendation for someone somwehere to apply for some sort of order. Thus no need for even an IRO! …and no financial cost whatsoever!

    • Ah yes, that too. Although less common these days I think since assorted cases in which wrists were slapped (no time to look out references, busy prepping for contested ICO).

  15. Yep, there have been quite a few of those cases, I believe starting with R v Manchester City Council [2001] EWHC Admin 707. It’s just had its 10th anniversary so LA’s should really have caught on by now.

  16. You also might be interested in another recent case which looked at whether a child who lived with relatives became looked after when the LA got involved in arranging the placement.

    R (SA) v Kent County Council [2011] EWCA Civ 1303

  17. […] Because you see if a child is accommodated under s20 instead of issuing care proceedings there is no court scrutiny. There is no Guardian appointed to represent the child, to independently assess her needs and wishes, or to offer a potentially contrary view about what is best for the child. There are no lawyers to stick their awkward oars in. No hearing. No bench or Judge. No testing of the evidence or analysis or the judgment. No exposure of any gap in the evidence or of any lack of analysis, or weighing of contrary opinions. And – and this is the cherry on top – the Local Authority can place a child with a scarcely assessed grandparent or aunty without going to the cost of paying for an expensive foster placement or residential accommodation. Win win…Right?Continue reading “And for tonight’s rant…” » […]

  18. […] on the vexed question of “How Voluntary is Voluntary Accomodation?” (on which topic I wrote some months ago) and the case of CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July […]

  19. […] not using a failure to co-operate voluntarily against a parent (this, of course, is particularly pernicious, as explained in this blog) […]

  20. I have literally just been ‘forced’ to sign my 4.5 year old to S.20..if I didnt sign the form, social services (Surrey)will take her through the courts….they have not done any research into my capabilities as a parent..I believe in this case they have used the excuse of being ‘homeless’ as being sufficient cause for concern …. ok, this point I agreed on, which is why I authorised …. now, I was told I ‘can remove her anytime’ ….now there is a catch22 situation … the LEA wont consider me for housing, as my daughter is not ‘residing’ with me, therefore, not priority….I believe s20 is a loophole to get the child into care …. it was ‘agreed’ so without access to public funds and accommadation, social services have won the first hurdle …. apparently in voluntary agreements the parent, ie, me, can remove her at any time? …I believe this is a loophole in the system that allows ss to remove a child without thorough investigations or court…..great for them, but not for me …. challenges lie ahead….for example if i enforce my ‘right’ to ‘remove’ her, it will be prevented by an immediate court order? …..my plan? secure a home, intermediary benefits, and a professional family support organisation?….my daughter has been living with me overseas for the past 3 years…she was in a entirely different culture …. I believe this is why she is in care…and in actual fact this is the reason why we returned to the UK…we arrived 23rd jan …. I believe there is no evidence to support a case..as I removed my child from the source of the initial ‘concerns’ how can ss be judge and jury with no investigations or support to keep a family together..the trauma of this is not acceptable ….. now to enforce my right to remove my daughter from a voluntary care order is beginning ….. catch 22 no home equals no money = no child. to be classed as priority for housing does not apply for single parents where the child is subject to a court order? …plan B secure private housing, which means i have a home, then money..but reckon, they will still enforce the section 20…a weird system that does not protect the child, ony causes undue distress to child and parents..catch22 again….social services do not help parents to solve money/home issues … so my daughter remains in care…the case will eventually fold, but the damage is already done and irrevokable…how can a child be removed from the mother with no reasons or mear hearsay/ or investigations..so I will keep researching s20…it is not acceptable to remove my ‘baby’ without just cause, we came here to seek assistance and help!

  21. Hi, I am a student at present and writing on exactly your first point, however, i need to back this up by case law. Do you know of any case law that refers to this exact point? Thanks

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