Section 20 Accommodation and Agreement

1. Section 20 Accommodation

Under section 20 of the Children Act 1989, a child or young person may be accommodated by the local authority where there is agreement to this arrangement by those with Parental Responsibility. The child becomes Looked After under a section 20 arrangement.

In advance of the child becoming accommodated, agreement must be sought from those with parental responsibility. Agreement must be sought for the child to be looked after by the local authority and for consent for the local authority to arrange surgical, medical and dental procedures or treatments for the child of young person.

The local authority must consider, where possible, the wishes and feelings of the child, their parents or any person with parental responsibility, and any other person deemed relevant, before providing accommodation (CA 1989 Section 20(6), Section 22(4)(5)).

Section 20 may have a role to play as a short term measure pending the commencement of care proceedings but the local authority must not use Section 20 as a prelude to care proceedings on a long term basis where there are concerns about significant harm for the child.

There are many scenarios in which section 20 is used positively; these include situations of family support (e.g. Short Term Breaks) and situations where parents are unable to care for children, for whatever reason, and there are no agreed alternative family or friends to undertake this.

In accommodating a child under Section 20, it must always be borne in mind that the local authority does not have Parental Responsibility; only the parents/ those carers with Parental Responsibility can make decisions for the child. The parent/carer with Parental Responsibility can remove the child from Accommodation at any time (Section 20(8)) and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court. A number of court cases have confirmed that a local authority failing to permit a parent to remove a child in circumstances within Section 20(8) acts unlawfully (see Herefordshire Council v AB [2018] EWFC 10 rtf) (see also Procedure where the Local Authority is Ceasing to Look After a Child).

The parents/carers should be advised of any changes in the child's circumstances whilst the child is in local authority care.

It is therefore important to ensure that the parents/carers have full information about their continuing responsibilities as well as those of the local authority and that this is enshrined in the Care Plan and a written agreement.

2. Obtaining Parental Consent

A recent Court of Appeal hearing (L B Hackney v Williams & Anor [2017] EWCA Civ 26) confirmed that 'Consent' under any of the Section 20 provisions was not a statutory requirement as such. It stated that the local authority has a duty to provide accommodation for children, (subject to a parent being able to legally object and / or remove) where the person who had been caring for them was 'prevented (whether or not permanently and for whatever reason) from providing them with suitable accommodation or care'.

This, therefore, supports the local authority in its duties towards children on those occasions where 'parental consent' cannot, for a variety of reasons, be obtained at the time of a child's accommodation or parents cannot effect care of the child themselves.

Nevertheless, with regard to previous court judgments on 'consent', it reflected that they were, 'in short, good practice guidance and a description of the process that the family court expects to be followed'.

Therefore, obtaining Parental Consent as a matter of good practice remains an essential part of Accommodating a child under this part of the 1989 Act. A number of court decisions have been particularly critical of local authorities' actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.

Section 20 agreements are not valid unless the parent giving consent has capacity to do so, (in cases where the father also has Parental Responsibility, the consent of both parents should be sought). The consent needs to be properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or  acquiescence - it is a positive action.

Detailed guidance on the obtaining of parental consent was given by the High Court in the case of  Re CA (A Baby) (2012):

• The social worker must first be satisfied that the parent giving consent does not lack the mental Capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if s/he is unable:
  • To understand the information relevant to the decision;
  • To retain that information;
  • To use or weigh that information as part of the process of making the decision; or
  • To communicate their decision.
    
    The High Court in Re S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam) set out the relevant information that a parent would need to be able to understand, retain and weigh up in order to have competency to consent to the accommodation of a child:
    1. That the child will be staying with someone chosen by the local authority, probably a foster carer;
    2. That the parent can change their mind about the arrangements, and request the child back from accommodation at any time;
    3. That the parent will be able to see the child.
• If there is doubt about Capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
• If satisfied that the parent has Capacity, the social worker must be satisfied that the consent is fully informed:
  • Does the parent fully understand the consequences of giving such consent?
  • Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
  • Is the parent in possession of all the facts and issues material to the giving of consent?
• If not satisfied that the consent if fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
• If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:
  • What is the current physical and psychological state of the parent?
  • If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
  • Is it necessary for the safety of the child for her to be removed at this time?
  • Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more 'able' than in fact they are. Equally, within the context of 'assessing capacity', social workers should approach with great care relying on section 20 agreements from mothers after giving  birth, (especially where there is no immediate danger to the child and where probably no order would be made).

Where there is any concern about a parent / carer's capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice (1). Note: In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, 'every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others) to be satisfied that the person giving consent does not lack the capacity to do so'.

Notethat the High Court in Re S (Child as parent: Adoption: Consent) made clear that parental Capacity to consent to a child being accommodated under s.20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific.

(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.

3. Recording Parental Consent

In Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 good practice the President of the Family Division, Sir James Munby sets out his view in respect of good practice in the recording of parental consent to a Section 20 agreement:

• Wherever possible the agreement of a parent to the accommodation of their child under section.20 should be properly recorded in writing and evidenced by the parent's signature;
• The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand;
• The written document should spell out, following the language of section 20(8), that the parent can 'remove the child' from the local authority accommodation 'at any time';
• The written document should not seek to impose any fetters on the exercise of the parent's right under s.20(8). Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms';
• Once the parent carer has signed the section 20 agreement, this should be scanned and uploaded to the child's Liquid Logic record. A copy should be provided to the parent/carer within 5 working days;
• For the duration of the section 20 arrangement, those with parental responsibility should be involved in, kept informed of, and consulted about all aspects of the child's life;
• This includes the child's education including: being invited to attend parent's evening; being invited to contribute to the development of the personal education plan; and being invited to extra-curricular school activities such as performances and sport occasions;
• Although the section 20 agreement covers the issues of consent for the local authority to arrange surgical, medical and treatments, those with parental responsibility should be informed about the treatment or procedure. They should also be involved in the Health Needs Assessment;
• The parents or carers with parental responsibility must also be kept informed about any other significant changes for the child or young person. This includes (but not exclusively) where a child is away from placement without authorisation or reported missing to the police;
• The section 20 agreement should include confirmation of when a copy of the Placement Plan will be provided to the parent/carer. The Placement Plan should clarify what has been agreed for contact between the child and the parent/ carer.

4. The Use of Section 20 Prior to Court Proceedings

High Court Judgements have considered that in circumstances where the threshold criteria (for Care/ Supervision Orders) under Section 31 Children Act 1989 are met, (i.e. where a child is at risk of significant harm, or the likelihood of significant harm), then care proceedings should be issued without delay.

Nevertheless, Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the Courts have strongly advised that this should not lead to an unnecessary delay in the issuing of proceedings and cases must not be allowed to drift, (including those cases when children are placed with relatives under a Section 20 agreement). Proceedings still need to be issued in a timely fashion.

Even where a parent/carer's legal adviser has established an agreement regarding the use of Section 20 prior to either issuing Proceedings or progressing a timely plan and timetable of work for further assessment, these should be carefully adhered to by all parties. Any plan should be based on the child's welfare needs and avoid delay.

All such agreements should be undertaken in conjunction with the local authority's Legal Services and include a clear (written) agreement and Care Plan with the outcome considered at a Looked After Children's Review to which the parents have been invited.