This article by Allan
Norman first appeared in
Professional Social Work, a journal of the British Association
of Social Workers, in December 2015/January 2016 edition
The ‘Nottingham Baby’
case in 20081 attracted a certain amount
of media attention2. It involved a baby removed from an
18-year-old care leaver without a care order or her consent. The social
worker involved in the case was scathingly rebuked by the court for
using powers to voluntarily accommodate a child under Section 20 of the
Child Act, based on the fact that there had been no objection. “To
equate helpless acquiescence with consent [is...] unprincipled and,
indeed, fraught with potential danger,” said the judge
hearing the case3, now Lord Justice Munby, President of
the Family Division of the High Court of England and Wales.
Fast forward four years and along
comes another significant case4 involving
a local authority in dispute with a mother over care of a child. This
dealt with capacity to consent, and
the need for judicial scrutiny if children are to be removed when
parents lack capacity. Last year, there were at least three similar
cases. So far this year, I have counted 12. So, you may ask, what’s
going on?
Munby recently5
referred to this as a “litany” of cases6.
Those familiar with litanies will know they are characterised by the
same refrain being repeated over and over again. The word is apt. Issues
around consent, capacity, and drift, with cases dragging on, are
repeated time and again.
I have on occasion advised families
in such circumstances and I invite you to imagine the scenario. A parent
is invited to consent to voluntary accommodation of their child. As
their advisor, I can tell them about the concern I have about the way
consent is being pursued. I can even say I think the arrangements are
unlawful. But I am conscious that where the issue could be the break-up
of a family, the stakes are very high. If the threshold for an interim
care order could be crossed, and if lack of cooperation might be used as
an argument to help cross the threshold, then it might be unwise to
tempt fate and oppose a section 20. Having decided to go with it, they
may hope and expect some pay-back. If they agree as a family they would
benefit from support, they will expect that support to be forthcoming.
If they agree to voluntary accommodation in the short run so that they
are not under pressure to have to present their case in a hurried and
ill-prepared manner, then they may expect an opportunity to present a
measured and properly prepared case further down the line. If they need
a breather to turn their lives around, they might hope and expect to be
able to get their child back when they feel they have done so.
While the early cases I referred to
criticise the circumstances in which children were first accommodated, a
theme over the course of this year has been the drift that occurs once a
section 20 arrangement has been made. In one sad case
last year7, a two-year-old child was removed under
section 20 and the case dragged on for two years before care proceedings
were issued, during which a parenting assessment found the parents could
care for their child.
A generous interpretation of the
drift is that, faced with limited resources and other pressing demands,
a child who is deemed ‘safe’ is a lower priority. A less generous
interpretation is that faced with the introduction of the
statutory 26 week deadline8 in the Children and
Families Act 2014, practitioners used Section 20 drift to allow
themselves to be good and ready before the 26 week clock is set ticking.
Sadly, it cannot be said that
lessons around capacity and consent have been learned. There have been a
number of cases this year where damages have been awarded for the misuse
of Section 20, the highest being £40,0009.
In this case, the local authority argued10
Section 20 accommodation was permissible provided only that there is no
objection. Whatever the exact wording of the legislation, case law is
also law, which means taking note of court rulings such as in the
‘Nottingham Baby’ case. I cannot help but wonder why the authority
making the £40,000 payout had not taken heed of the lessons of seven
years earlier. The admitted absence of objection was particular
pernicious in this case, as the parent in question was completely
unaware that their child had been voluntarily accommodated, and may have
lacked the capacity to consent.
I have in the past defended the use
of Section 20. I like the fact that there is a tool in the social
worker’s toolkit that allows us to avoid the use of compulsion even
where the threshold is crossed, and enables us to provide support in the
form of accommodation even where it is not. But the case for having such
a tool, must be subject to a condition that it is not misused.
There is a concept which judges
sometimes use, of an Alsatia. It comes from an historical London enclave
where the Rule of Law did not run. Judges do not like an Alsatia. In
particular, they do not like being told that there are matters for a
social worker’s discretion in which the courts should not interfere.
Section 20 has been something of an
Alsatia. By its very nature, its use has not routinely required judicial
oversight. This, however, is changing. Those advising families are
taking courage from the raft of legal authority that they can challenge
the unlawfulness of Section 20 decisions. Drift is no longer tolerated.
Faced with a continuing misuse of Section 20 agreements, the Court of
Appeal last month spelled out clear instructions to the profession that
go well beyond anything found in Section 20 itself: consent must be
drawn up in plain language. It must be “properly recorded in writing and
evidenced by the parent's signature”. It must include a clear
explanation of the right of a parent to change their mind and be
reunited with their child at any time.
That judges will now be proactive in
regulating section 20 – a power which on its face requires no judicial
oversight – could not be more clear. Munby said11,
“Judges will and must be alert to the problem and pro-active in putting
an end to it. From now on, local authorities which use section 20 as a
prelude to care proceedings for lengthy periods or which fail to follow
the good practice I have identified, can expect to be subjected to
probing questioning by the court. If the answers are not satisfactory,
the local authority can expect stringent criticism and possible exposure
to successful claims for damages.”
We have been warned!
1. G, R (On the application of) v Nottingham City Council [2008] EWHC 152 (Admin) (01 February 2008)
2. My article in PSW at the time: 'Can I, Should I, Must I… take this baby into care?' PSW, May 2008
3. G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008) at paragraph 55 - a follow-on from the hearing and judgment at 1 above
4. CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012)
5. N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)
7. P (A Child: Use of S.20 CA 1989) [2014] EWFC 775 (16 December 2014)
8. Section 14, which amends section 32 of the Children Act 1989
9. Medway Council v M & T (By Her Children's Guardian) [2015] EWFC B164 (13 October 2015)
11. N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015) at paragraph 171