Section 20: Conscious uncoupling
Justin Slater looks at the President of the Family Division's important comments on local authorities' use of section 20 of the Children Act.
The President of the Family Division, Sir James Munby (pictured), earlier this month condemned the misuse of Section 20 (4) Children Act 1989 in a judgment, putting the spotlight on an issue which had long-plagued care proceedings.
Section 20 provides practitioners on both sides of the divide with a powerful tool for good. This discretionary power, which obliges a local authority (LA) to provide accommodation for a child in certain circumstances, can safeguard a child and relieve a parent at a time of intolerable stress. The President’s concerns surrounded the extent, however, to which Section 20 is used as a prelude to care proceedings for a disproportionate length of time.
Nothing in the President’s judgment in N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 should in my view be read to discourage the use of section 20, but practitioners must be clear as to exactly what it is intended to achieve and the nature of its limitations.
To understand the concerns of the President one must consider not only the framework of the Public Law Outline (PLO), but also the great hallmark of his term, transparency.
As to the former, section 20 must be seen for its integral role within the PLO. The accommodation of a child does not inhibit the authority in its care-planning role [1], instead it serves to draw parents into pre-proceedings and affords access to legal advice where longer term judicial decision making is very likely to be needed.
Section 20(4) accommodation should only be used where there are real child protection concerns and where the LA would otherwise have a reasonable expectation for an interim order. Should there be any likelihood as to the future need for judicial decision making, there should be no delay in the issuing of those proceedings. The ‘no delay’ principle applies equally to pre-proceedings and issue of proceedings. [2] Section 20 agreements will fall squarely into those categories.
The frustration of the higher courts is in no small part due to the perception that practitioners are uncoupling section 20 from the PLO, perhaps in an attempt to gain time for pre-proceedings assessments. Agreeing to accommodation should not have the impact, as it did in the case of ‘N’, of delaying issue by up to eight months. Not only does delay serve to distort the aims of the PLO, but it offends against the principle of transparency.
If section 20 accommodation can be used to ‘buy time’ prior to issue, and matters however well meaning, are allowed to drift, then what is the nature of the agreement between the parent and the authority? Transparency must shine a light upon the expectations and understanding of both parties to the agreement.
Hedley J in Coventry City Council v C, B, CA, CH [2012] EWHC 2190 (Fam) sets out his observations around section 20, now approved and supplemented by two Presidents:
(i) It should be entered into in good faith and not to exert force upon any parent, it must be fair and proportionate;
(ii) A parent must have mental capacity to consent;
(iii) The allocated worker has the personal duty to actively assess and satisfy herself that the parent has the mental capacity to consent. In the exercise of that duty she cannot be dictated to by others;
(iv) That good consent is fully informed consent, the consequences of agreement / refusal and the range of alternatives must be known;
(v) The allocated worker must consider the parent’s current physical and psychological state;
(vi) If at any point the allocated worker has doubt as to these points she should stop and seek advice before continuing;
(vii) Consent should be set out in clear and precise terms in a signed document, including in the case of a foreign national, translated into that person’s language and signed. This document should include a clear statement of the parent’s right to withdraw consent and remove the child at any point reflecting section 20(8).
(viii) Agreements, even those made at court, which seek to fetter this right to remove by recording a parental notice period to the authority prior to removal are very likely to be unenforceable.
I add that the question as to whether or not accommodation is warranted at any given time is one that must fall subject to review as circumstances change.
For good reason, regional pre-proceedings protocols often stipulate that any child accommodated due to child protection concerns for more than 6 months must be referred to Legal Planning Meetings unless there are clear child welfare reasons for the authority not to issue, that those reasons are set out in an agreed document approved by senior management, and that there should be an accompanying clear and analytical plan of further action. [3]
It is suggested that such protocols may suffice, but their use limited to the most exceptional cases. The warning then being that those who seek to uncouple section 20(4) from its natural place as immediate precursor to care proceedings should be conscious of their uncoupling or face a growing frustration from the courts which may manifest as Human Rights Act declarations, claims in damages, or even criminal charges.
Justin Slater is a barrister at 7BR Chambers.
[1] LB Merton v CB (a child) [2013] EWCA Civ 476
[2] Medway Council v Mother [2014] EWHC 308 (Fam)
[3] Protocol for Leicestershire and Bristol
