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How Voluntary is Voluntary Accommodation?

Leah Pitt, pupil barrister, 2 King’s Bench Walk, considers the latest developments in the use of agreements under section 20 of the Children Act 1989.

Leah Pitt, pupil barrister, 2 King's Bench Walk

Leah Pitt, pupil barrister, 2 King's Bench Walk

Section 20 of the Children Act 1989 continues to provide comfort and concern in equal measure.

Family Law Week visited this subject only last year (see here). However, in the meantime section 20 agreements have continued to exercise judges, practitioners and, most importantly, parents. This article is intended to update the subject from a practitioner's perspective.

Section 20(1) Children Act 1989 provides:

"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of —

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) 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."

20(4) further allows a local authority to provide accommodation for a child – even though a person who has parental responsibility is able to provide him with accommodation – if the local authority considers that to do so would safeguard or promote the child's welfare.

In practice this means that anyone with parental responsibility can voluntarily allow the local authority to accommodate their child under section 20.

Section 20 "voluntary accommodation" is a common and useful measure and can, if used correctly, work to the advantage of children, parents and local authorities.

Problems arise, however, where "voluntary" seems to be less than "voluntary" or where it is perceived that the local authority is misusing the section to the detriment of the child and against the spirit of the Public Law Outline.

Childcare practitioners will often be asked to advise on section 20 arrangements. Perhaps there is a crisis in the home, the social worker considers that the children must be removed and the choice at that moment is between section 20 with the agreement of the parent or an emergency protection order. Alternatively  the local authority may have issued proceedings under section 31, initially asking for an interim care order, but there is the possibility that it may agree to section 20 accommodation instead. Importantly, it is possible that the local authority is minded to issue but wishes to "frontload" its work with the family prior to the commencement of the 26-week timetable and therefore hopes to enlist the agreement of the parent to voluntary accommodation while it carries out assessments. The assessments could include not only full parenting assessments, but also, if the local authority is prepared to pay, psychological or even psychiatric assessments. In such cases the status quo under section 20 would need to be preserved for weeks, even months.

From a practitioner's point of view, when asked to advise a client whether to agree a section 20 arrangement, there are arguments in favour and against. By agreeing a section 20 arrangement, a parent can be seen to be demonstrating a willingness to cooperate with the local authority and putting the needs of the child first. The local authority does not acquire parental responsibility, which is attractive to many parents who feel they are still playing a significant role in the proceedings. Arguably, in some situations, a section 20 agreement can give the parent or parents a chance to work through any issues they might be facing and thus avoid proceedings entirely.  Often the local authority might be persuaded that it is not necessary to have a contested ICO if, as an alternative, the parent agrees section 20 with a recital in the Order that the parent will not withdraw without first giving a suitable notice period. This potentially gives the local authority a reasonable amount of time to apply to the court for an ICO if the parent withdraws consent.

There are however situations when a practitioner is likely to advise a parent not to sign a section 20 agreement, for fear that the local authority will simply drag its heels. What begins as a short term agreement can, quite easily, end up spanning several months while the local authority continues its assessments at a pace of its own choosing.

Herein lies the problem.

It is worth reminding ourselves that section 20 – so often referred to as 'voluntary' – appears to many parents as anything but 'voluntary' and there can be few practitioners who have not had a conversation with a parent in which it is clear that the social worker presented the paperwork on the basis that if it was not signed they would go straight to court for an order to remove the children. It is often difficult to explain to a distraught client how this is really 'voluntary'.  The case of Re CA (A baby) [2012] EWHC 2190 is a useful reminder not only to social workers but to all of us of the correct procedure. Although the parent's capacity to make the difficult decision under section 20 was very much an issue in the case the broader guidelines set out in the judgment apply to all cases and have been recently cited in  the local guidance on section 20 given by HHJ Wildblood QC (see below).

Assuming, however, that the practitioner is dealing with a parent who has capacity and who has agreed (even with a heavy heart) section 20 accommodation for a child, one must ask how long a local authority should be permitted to allow that situation to continue before it is obliged to issue proceedings under section 31 or, indeed, return the child to the family. 

There has been growing concern amongst the judiciary – and no doubt many others – that local authorities are asking parents to sign section 20 agreements and then taking far too long to issue proceedings, leaving children languishing in local authority accommodation. There are also many circumstances where a child will be placed with relatives under a section 20 agreement, often leading to the longest delays because parents are perhaps not as motivated as those whose children are in foster care. As many judges have pointed out, this misuse of section 20 is inexcusable.

The 26-week timescale from issue to conclusion of a case has encouraged many local authorities to frontload their preparation by completing as much work as possible before proceedings are begun.  The use of section 20 is a boon to social workers in this respect. Clearly, however, a line needs to be drawn. Whilst it is important to present the court at the first appointment with all the relevant evidence, parents cannot be placed in a situation where they have agreed to a section 20 and live in fear of withdrawing their consent. It is trite law that the welfare of the child comes first and no one would argue that a child being placed – effectively in limbo – whilst the local authority takes months to issue can be in the child' s best interests. The 26-week timescale was not implemented so that longer time could be taken to do the same work before the court clock starts ticking.

There have been a number of cases where judges have made clear their concerns regarding the overreliance of section 20 where cases have 'drifted'.

In the case of P (A Child: Use of section 20) [2014] EWFC 775 a section 20 arrangement had been in place for two years. HHJ Atkinson makes clear her concerns at paras 29 -31 of her judgment:

"29. In this case, for example, the more difficult it is to discern whether the child in question has suffered harm as a result of the parenting given to him before separation rather than the events he has had to endure after. I wonder at how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him....

30. It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has "disabled" these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents' lawyers making clear that they did not give their consent...

31. In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P's accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is "parked" and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion."

Further judicial warning was given by the Designated Family Judge for Avon, North Somerset and Gloucestershire, HHJ Wildblood QC, on 26th November 2014:

"1. There have been several instances in this area where it is quite apparent that accommodation of children under Section 20 of the CA 1989 has continued in an unstructured way for excessive periods of time and in circumstances where proceedings are either inevitable or otherwise highly likely to be issued. I regard such accommodation in those circumstances to be unprincipled and wrong. Further, where this occurs, it leads to unjustifiable delays in the completion of arrangements for the child concerned.

2. I refer, in particular, to the decision of Hedley J in Re CA (A baby) [2012] EWHC 2190 in which guidance is given about the use of accommodation under that section. It includes guidance that the Local Authority should consider: 'Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement.' That question should be read as if the word 'fairer' were to be expanded so that the question reads: 'Would it be fairer and in the better interests of the child in this case for this matter to be the subject of a court order rather than an agreement?' It is not in the interests of a child for accommodation to be used in the unstructured way that I have described in paragraph one above.

3. Therefore, in any cases before District Judges or Magistrates in this area where there is any significant suggestion that accommodation under section 20 has been misused in the manner that I have described, the case should be listed before a Circuit Judge following the Case Management Hearing. Circuit Judges are encouraged to give judgments on any such issues that arise before them on referral or on a CMH listed before them. Where possible and appropriate, the judgments should be placed on BAILII in accordance with the transparency provisions. I consider it to be in the public interest that any such misuse of accommodation under that section should be made public."

This notice has been echoed throughout the courts in England and Wales. More recently Sir James Munby, President of the Family Division, made patent his own criticisms in A (A Child) [2015] EWFC 11. At para 99 he stated:

"99. Quite apart from all other serious failures, the delay in this case was shocking. A was born on 11 January 2014. There had-appropriately and commendably- been much pre-birth planning. Yet it was not until 16 September 2014 that the care proceedings were issued. The delay is, to all intents and purposes, unexplained. The gap was covered by the local authority's use of section 20 in a way which was a misuse, indeed, in my judgment, an abuse, of the provision.

100. There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated. I draw attention to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the recent decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam)."

It seems that the judiciary are taking these warnings very seriously and cases are swiftly being reallocated to Circuit Judges for the purposes of investigating why proceedings were not issued in a timely fashion whilst section 20 was being exercised. In a guidance note issued by the Designated Family Judge for Dorset, HHJ Bond, sitting at Bournemouth Combined Court he made the following comments:

"The reason why this matter is before court today is because of general concerns amongst the senior  judiciary that children are being left in state of limbo pursuant to section 20 placements and at a late stage proceedings are then issued. As a result of those concerned I issued a notice recently saying that in any case where a child has been in section 20 accommodation for 4 months or more before issue of proceedings the matter should be referred to me. I have been made aware from other information that there was a general concern within CAFCASS about children being in section 20 accommodation when proceedings should have been issued...Any case where a child is subject to section 20 does have to be kept under careful review and is it tempting when Local Authorities are under huge pressure-as I know many are- not to pay as much attention to section 20 children as they should, being distracted by other matters. It is important not to allow that temptation to cause the Local Authority to lose focus on these cases. In this particular case, and having heard more about the situation, there is nothing more I need to say save to make the general observation that s 20 needs to be used carefully with judgment and discretion."

So, what of the consequences when section 20 is misused despite the vast amount of judicial warning? Clearly it is a useful exercise – as well as a deterrent – that cases are referred to Circuit Judges for review in this way. However, of course,  by the time it has reached the stage that such a review is necessary, this misuse or abuse has already occurred. The damage has been done. What then?

In H (A Child - Breach of Convention Rights: Damages) [2014] EWFC 38 it look the local authority almost a year to issue proceedings whilst the child remained under section 20 accommodation – what the local authority described to the parents as an 'informal placement'. HHJ Bellamy described the delay as 'unjustified and inexcusable' and damages of £6,000 were awarded to each parent for breach of their human rights. It should be pointed out that this was a case where there was not only delay but the local authority had failed to properly consider whether the parents understood what was happening.

It is unclear what the consequences might be outside the realms of monetary awards or sanctions. It would be very difficult to argue that legislation should be introduced to determine a maximum length of time for use of section 20 given how diverse the circumstances of each case may be. However wherever there is unreasonable or unjustifiable delay judicial criticism is to be expected.  Certainly local authorities are under immense pressure to get cases to court in a timely fashion whist producing all the evidence the case requires at the right stage and many of them work tirelessly to do so. However for those local authorities that continue to allow children to drift under section 20, it remains to be seen what level of sanction courts may decide to impose.