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“… this can no longer be tolerated”: a short guide to the correct use of section 20, Children Act 1989

Alex Laing, barrister of Coram Chambers, concludes his review of N (Children) (Adoption: Jurisdiction) by considering what the President said about section 20 agreements.

Alex Laing, barrister, Coram Chambers

Alex Laing, barrister, Coram Chambers

Following the judgment of Munby P in Inthe Matter of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, what follows is a short guide to good practice in using and drafting agreements under section 20 of the Children Act 1989.

A quick recap

There has, in the words of the President, been a "litany of judgments" in which local authorities have been condemned in "necessarily strong, on occasions withering, language" for misuse or abuse of section 20.

The President warns Directors of Social Services and local authority Heads of Legal Services to pay attention and take a view on whether "their authority's current procedures and practices are satisfactory" (all, at [160]).

From now on, if good practice is not followed, local authorities "can expect to be subjected to probing questions by the court" and, if unsatisfactory answers are given, "the local authority can expect stringent criticism and possible exposure to successful claims for damages" (at [171]). The above takes on particular resonance in cases with an international element.

The concerns, of course, about the prolonged use of section 20 are that it deprives the child of the benefit of having a children's guardian – i.e. an independent figure – to represent and safeguard his interests; and it deprives the court of the ability to control the planning for the child, and to prevent or reduce delay (at [158]).

A guide to good practice

(1) Informed consent
Section 20(7) is clear that the local authority may not accommodate the child if a parent "objects" (for these purposes that includes any individual with parental responsibility; in cases where the father also has PR, the consent of both parents must be obtained). Consent must not be by compulsion or submission. Local authorities must tread carefully in discussions with parents about care proceedings being the likely consequence of a lack of section 20 consent.

The fuller guidance of Hedley J at [46] in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987 must be followed. This is lengthy – but, given its importance, parts bear repeating:

"…(ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so…

(v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

(a) Does the parent fully understand the consequences of giving such a consent?

(b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

(c) Is the parent in possession of all the facts and issues material to the giving of consent?

(vi) If not satisfied that the answers to (a)–(c) above are all 'yes', no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary…

(viii)… it may be necessary to ask:

(a) What is the current physical and psychological state of the parent?

(b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

(c) Is it necessary for the safety of the child for her to be removed at this time?

(d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?..

(x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made."

Note that, where the parent is not fluent in English, particular care must be taken in ensuring that they understand and consent.

(2) The form of the agreement
Purely as a matter of law, the agreement need not be agreed in or evidenced by writing. Nevertheless, good practice dictates that it not only be in writing but that the parent(s) sign it. The document should be clear, precise and written in simple and straightforward language that can be understood by the particular parent(s). Where the parent is not fluent in English, it should be translated in to the parent's mother tongue and the parent should sign the foreign-language text adding words to the effect that 'I have read this document and I have agreed to its terms' (at [163] – [165]; [170]).

(3) Drift
Section 20 agreements should not be permitted to continue for months (at [168)). If it is necessary for the child to continue to be accommodated then this should be done under a court order.

(4) Immediate return of child(ren) on withdrawal
Section 20(8) provides that "any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section" (my emphasis).

This is often forgotten. It means that a local authority that fails to permit a parent to remove his/her child from accommodation "exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority" (at [169]).

As a matter of good practice, therefore, the document should mirror the language of section 20(8) and spell out clearly that the parent can remove the child 'at any time'.

Practitioners will be all too familiar with the section 20 agreement under which parents agree that they will provide notice (often up to 7 days) to the local authority before effecting a withdrawal under section 20(8). In legal terms, the President describes himself as "extremely skeptical" that the "lawful contract[ion] out of section 20(8) in advance" can be of any legal effect (at [169]). In any event, good practice now dictates that the written section 20 agreement should "not seek to impose any fetters on the exercise of the parent's right under section 20(8)" (at [170]).

The practical effect of the above will be interesting. It is not uncommon that the court is persuaded, say, to accept a section 20 agreement from the parents instead of making an interim care order (the parents thereby continuing to feel in control of the situation and avoiding a finding of interim threshold) in part on the basis that consent cannot be immediately withdrawn.

A final reminder

Whenever considering section 20, we should keep the following at the forefront of our minds: "Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings" (at [157]) (my emphasis). It ought now to be no more than that.

For a further article about section 20 agreements - How Voluntary is Voluntary Accommodation, by Leah Pitts of 2 King's Bench Walk - which highlights guidance given in local courts, please click here.


For a discussion of other aspects of the judgments in In the Matter of N, see 'Limping infants and Article 15 BIIA: the "magisterial" judgment in In the Matter of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112'