UPDATE FEB 2017 : In light of the judgment of the Court of Appeal in Hackney v Williams (see here) we will be looking at our guidance note to see if it needs amendment or updating.
At The Transparency Project we tend to draft collaboratively, which can be a bit irksome at times due to the volume of email traffic that it produces, but which produces (we hope) reasonably good results in the end. But this is merely one layer of collaboration, and here at The Transparency Project we like to talk and listen and be responsive to constructive suggestion.
And so we invited – and duly received – suggestions and comments in respect of our recently published section 20 guidance. This blog post outlines those suggestions and what we think we will do in response (we’re not called The Transparency Project for nothing you know!). We are pleased to say that nobody has identified any major clangers in our guidance but we have had some helpful suggestions for improvement which we will incorporate. We will publish slightly revised guidance shortly on this blog. There is nothing *wrong* with the existing guidance, but we think there is nothing wrong with improvement.
We are very grateful for those who took the time and trouble to comment and will make the following amendments and issue a revised guidance note.
We welcome any further comments about what we can do to make the guidance note as helpful as possible.
Judicial interpretation of s20
A number of the comments received express some disquiet about a perceived unhelpful move away from the original purpose of the CA 1989 in recent judicial comment about the use of section 20, and a failure to properly understand or acknowledge the utility of section 20 in developing constructive partnerships with parents through appropriate use of section 20, for example long term accommodation of disabled children. Whilst we acknowledge those comments and concerns, the primary purpose of the guidance was to help those using section 20 in the context mainly of child protection issues to understand the law and current application / understanding of it – not to argue for against the correctness of any particular view. If the position on appropriate use of section 20 is further clarified through caselaw or statutory guidance we will amend our guidance to reflect this.
Suggested revisions for the Section 20 Guidance
|Suggested Amendment||Our response|
|It should not be called ‘guidance’ as that refers only to statutory guidance.||‘Statutory guidance’ for social workers is any guidance that is explicitly stated as issued under section 7 Local Government Act 1970 and has special status. We don’t think that anyone will be confused by our document into believing it was issued by any kind of statutory agency or has any binding force. We therefore propose to leave the title unchanged.|
|What is the position in Wales after April 2016?||From 6 April 2016, section 20 is repealed in Wales when the Social Services and Well-being (Wales) Act 2014 comes into force. Local authority duties toward looked-after children are contained in Part 6 of the new Act. We hope that the good practice as is set out in our guide will continue to be useful in Wales but thought we should flag up that the legislation will be different. In due course we will consider whether separate guidance for Wales is practical or necessary, or whether the position in Wales should be set out in a revised single composite document.|
|It’s too ‘wordy’ as a document intended for parents||We will go through the guidance and see if we can do some constructive editing – but there is quite a lot to cover so some degree of ‘wordiness’ is inevitable.|
|Page 6 para 2: change ‘if the social worker is worried that the parents do not understand, the social worker should get further advice about what to do’ CHANGE TO ‘unless the social worker is sure that the parents do understand then they should get further advice about what to do’||We agree this wording is an improvement.|
|Page 7 – not right to include reference to wardship as this is prevented by section 100 Children Act 1989||We don’t think this is right. See Court of Appeal in Re E (A Child)  – although rare, it is possible to have wardship and section 20 accommodation side by side.|
|Page 8 – does marriage post birth give the father Parental Responsibility too?||We agree and will amend to make this clear.|
|Page 14 and page 19 – comment re ‘many local authorities have long tick box forms setting out what sorts of decisions a parent does and does not agree…’ – Reg 9 of the Care Planning and Placement Case Review Regulations 2010 requires certain information to be in the placement plan. Therefore a written agreement about section 20 also needs to be consistent with the statutory scheme and contain that information.||We are aware of the CPPCR Regs, but think that this information needs to be in the placement plan not the s20 agreement. Depending on the urgency of accommodation a placement plan is likely to be drawn up a short time after the actual accommodation is agreed to at a placement planning meeting. So we don’t think this needs to be amended, although we will add words to the effect that “There may be other documents that the local authority will wish you to sign in due course setting out more details of what you do and don’t agree to whilst the child is accommodated. This might be called a placement plan. The model s.20 agreement is not intended to replace a placement plan.”|
|One commentator expresses concern that we describe section 20 in negative terms and are thus moving further away from the original purpose behind the section, which was intended to offer support to parents.The commentator suggests there should be reference to disabled children who live in residential schools for most or all of the year due to their complex disabilities and is concerned that the guidance note could be interpreted as suggesting that local authorities should be applying for care orders for such children. Another commentator agreed that the distinction between a child being ‘looked after’ under section 20 and ‘in care’ was often vitally important for families with disabled children.||We agree that section 20 was intended to be a supportive provision and we are not suggesting that local authorities should be applying for care orders when children are accommodated due to their complex disabilities. However, the purpose of our guide was to help parents and practitioners in the wake of Re N, rather than a full exposition of the law to include residential care for children with disabilities, where there are no child protection concerns. That is why we have made a relatively brief reference to the benefits of s 20 toward the end of the document. However we agree it is important to make this issue clear and we will amend to take these comments into account.|
|Part 6 (implications for parents of section 20 and placement orders) could be very frightening for parents in the way that it is laid out and might put off parents from seeking respite. Suggests amending with words ‘if the local authority still has concerns or agreement not being followed, then…’||We agree.|
We received several comments and queries from one individual, and these are set out below, with our response.
|Comments (with extract referred to)||Our Response|
|“If a parent cannot be found, this does not prevent s.20 being used if the other parent / anyone else with parental responsibility agrees, but as a matter of good practice, a local authority should always try to get the consent of everyone who has parental responsibility.”The legislation specifically did not say this because of the difficulties this would entail in identifying whether a father had PR and locating him||The legislation does not require it. Nonetheless we think it is fair to say it is good practice.|
|“Whether it is necessary for the child’s safety to be removed at this time or whether it would be fairer to seek a care order from the court. If the situation appears to be particularly urgent and serious, it is usually better to seek a court order. Courts are able to make orders at short notice in cases of emergency, even out of normal office hours.”This is unrealistic. It is very difficult to make a short notice or without notice application for an EPO. The number of EPOs has declined very substantially in recent years; in contrast both use of police protection and care proceedings have increased.It is apparently causing problems for courts to deliver a true emergency service.||We disagree. It is not difficult to make a short notice application for an EPO – courts sit late and out of hours (although an EPO is not always granted on application). An application for an EPO is easier now that the application form has been consolidated with a s31 care application. There is considerable listing pressure in some courts at present, but in the experience of the practising members of the project committee urgent applications are appropriately prioritized. We would suggest that Local Authority legal departments need to familiarize themselves with local arrangements and make representations to their DFJ or LFJB if they consider that applications for emergency child protection remedies are not being dealt with sufficiently quickly.We are not sure that a reduction in the number of EPOs demonstrates that it is difficult to make an application – it might represent a number of things, such as a perception that it is difficult to make an application or a pattern of local authorities choosing more often to take alternative measures, including the use of s20.|
|“Parents must be told they have a right to withdraw their consent to s.20 accommodation at any time – they do not have to give the local authority advance warning and they should not be asked to do this.”Should not parents be told that sudden removal of a child is likely to be very stressful for the child. Also that return home without preparation is a major factor in the failure of re-unification. Also note the research findings about how partnership develops as parents work with CYPS to resolve problems – Packman and Hall||We think that the points about the risks of unplanned removal of a child would be a useful addition to this bulleted list and will amend.|
|Section on new born babies :pre-birth discussions?||We agree it would be useful to mention that where practical it is expected that these things should be discussed well in advance of the birth of the baby in a “pre-birth discussion”, and that this might be drawn up into a plan.|
|Reference to HHJ Bellamy’s guidance on page 14 :HHJ Bellamy makes very clear that his guidance is not guidance on the law. The recent exchange between Tolson J and Bindmans makes it clear that DFJs do not have power to issue practice directions. Guidance on practice re s.20. is a matter for the Secretary of State for Education under LASSASSA 1970.Also, re-referential guidance is very unhelpful to those who do not have easy access (or have to plough through) another document.||We agree that DFJs do not have power to issue practice directions. We nonetheless think that that part of the guidance we have reproduced is useful. We have set out the parts that we think are likely to be useful to the target audience of this document (primarily parents and social workers rather than lawyers) so that they have no particular need to refer to the guidance itself.However, we will consider adding a URL for the HHJ Bellamy guidance for those who wish to refer directly to it.|
|“If a decision is taken to remove a child under police protection rather than go to court, there must be wholly exceptional reasons for this. Those involved would need to show not only that there was a need for separation, but that this need has arisen because no other reasonable steps could be taken to keep the child safe WHILST a court hearing was arranged. ” (page 17)I cannot find this provision in s.46. The power to remove is a power exercised by constables which comes with the role of constable. A constable is unlikely to exercise the power more than 5 times in their whole career. How are they supposed to tell whether the case is wholly exceptional – and what are they supposed to do when they think the poser might be exercised – walk away? away. The vast majority of use of pp are resolved in 4 hours. The power is used 1000s times a year – lets see how the courts cope with that. Dicta by the CA in a single case is NOT a good basis for guidance||This section is intended to refer to circumstances where a local authority invite the police to exercise powers rather than go to court. Generally, if there is sufficient time to issue an invitation there is sufficient time to go to court. The guidance is not intended to suggest how the police should exercise their function under s46, but to address how a local authority should exercise its functions in conjunction with the police and / or courts. We are not suggesting that police powers should never be used, but authority is very clear (A v East Sussex CC  EWCA civ 743) that police powers should not be used unless the matter genuinely cannot await an urgent hearing.|
|“His Honour Judge Bellamy (the Designated Family Judge for Leicester) issued guidance in January 2016 which states that s.20 is NOT intended to be a long term alternative to care proceedings but is rather a ‘short term measure pending the commencement of care proceedings’ (paragraph 18). The Guidance suggests that any child who is accommodated for more than 3 months should have their case reviewed by senior management. That is just the view of one judge but others are likely to hold similar views in light of the case of Re N.” (page 18)The legal requirements for case review for looked after children make it very clear when reviews should take place, what issues must be considered – including the child’s legal status – and who conducts the review. Legislation has given the obligation to review cases to the IRO – not senior management – to ensure independence within the reviewing system||We are aware of the legal requirements for case review and of the role of the IRO in holding the local authority to account. However, the local authority has a responsibility to prevent drift independently of the view of the IRO, and we can see no reason why senior management should not be monitoring such issues. We are aware that in some cases the IRO has been the subject of criticism for not being sufficiently alert to drift.|
|“There can be serious consequences flowing from s.20 accommodation, and parents need to be aware of these. In particular, parents will need to bear in mind that if a local authority is providing accommodation for a child, s.22 of the Adoption & Children Act 2002 says that the local authority MUST apply for a placement order if certain circumstances are met. A ‘placement order’ is the order which allows the local authority to look for adoptive parents for a child and place the child with them.”I think this is unduly alarmist and unhelpful to parents – designed to push them to fight responses||The guidance is not designed to alarm parents or to promote their resistance to its use – it is designed to accurately inform parents of the potential consequences of giving consent under section 20, in order that their consent can be validly given. We think that this section accurately reflects the law, and therefore that any alarm that might be caused is an inevitable consequence of the legal significance of section 20.|
|Reference to LB v London Borough of Merton  EWCA Civ 476 :In the Merton case the child entered care by police protection, then became looked after under s.20 and was then subject to care proceedings. Given the emphasis on using proceedings in this document this seems to be the course of action suggested. Removal of the s.20 element does not seem likely to have changed the long term outcome||We think this misses the point. The Merton case establishes that a LA can indeed issue a placement application where a child is accommodated but in the absence of an interim care order and appears to be an example of a mother who may not have appreciated the potential ramifications of her consent to accommodation.|
|Section on IRO role / review and monitoring of care plan :How does this fit with the suggested senior management review above||We don’t see any conflict.|
|Section on Possible benefits of section 20 :Rather lightweight||We are not sure what is proposed here. We acknowledge those who hold views that it may be unhelpful to discourage long-term child protection use of s.20 in certain scenarios, e.g. where there is an older child of a parent with learning or mental health difficulty who is consistently aware of their limitations. However, we think such cases are likely to be relatively rare and not applicable to most of the target audience of this guidance. Our intention is to provide guidance that is consistent with clear judicial authority about undue delay in planning.|
[Update : 5 May 2016 We’ve now uploaded version 2 of the guidance here.]