Author Archives: Sarah Phillimore

Recording interactions between social worker and parents

Is this becoming the norm? And if so, what are the consequences?

What is the impact of this practice on the working relationship between parents and social workers? Is this a good thing or do you find it concerning?

You may also be interested in this blog post by suesspiciousminds on the subject.

 

Section 36 Data Protection Act

The Data Protection Act makes it clear that individuals do not need the consent of professionals to record meetings/visits, as the information being discussed in that situation is personal to them and therefore exempt from the data protection principles. There may be problems if the meeting is going to deal with issues relating to a third party.

 

Update – Louise Tickle writes in the Guardian on 17th June 2015.

Louise Tickle, who attended the Child Protection Conference on 1st June, organised by the Transparency Project, was interested to hear comments from the parents about recording their meetings with social workers. This prompted comments from the lawyers present that they could see no objections to this practice. You can read her article here.

 

Recording and more specifically covertly recording

This is a guest post by Jacque Courtnage who runs the TaKen UK website which campaigns against the wrongful removal of children by the State. She has experience of the system both as a parent and a lay advisor to other parents in the family court.  Here are her views about what appears to be the growing practice of parents recording their interactions with social workers.

is becoming the norm and in some cases is being accepted as evidence by the courts. This is matter that does need further consideration and exploration by more of the courts.

I say this for a number of reasons as I have been present on many occasions where professionals, and in particular – social workers, have relayed pertinent information to the parents/carers and have then denied all knowledge of having said these things whilst giving evidence. I refer to conversations where either social workers have given the carers reassurance that no action will be taken or they have no concerns, and then when their witness statement has been produced, the complete opposite is stated. Because many of these parents all come before the courts disadvantaged, they are considered to be lying.

On the opposite side, we have also had social workers being aggressive and intimidating to carers and indeed some of the children involved, and when complaints are lodged, the parent is considered to only be doing so for vindictive reasons. Again the same with telephone calls. A lot of misinformation is being populated to parents by some social workers to ensure they either miss contacts or behave in certain ways that can then later be used against the parents in court.

I have attended many meetings as a mediator where communications have broken down between parents and LA. I have challenged where things were stated as fact but the professional would not go on record with their statement. I have challenged some of these individuals when they were giving evidence and their uncanny manner to feign amnesia is laughable. Had some of these things been recorded, many cases would perhaps be less detrimental to families involved.

Having said all of that, many parents also do lie. If recordings became the accepted norm, it would ensure there is no miscommunication or fabrication of events and that everyone involved will be forced to take responsibility for their actions and accountability will be able to become part of the transparency needed. If the individuals have nothing to hide and are behaving in a manner they would consider to be lawful, then there should not be any problem. The UK is full of CCTV that records everyone’s movements without the public going on a full riot, so why can this not then be rolled out to include public law areas?

Simply put, it protects everyone from unsavoury behaviour and starts to help making the system work the way it was meant to. There is just too much suppositions, speculations and individual personal perspectives involved in family law. Taking this to the next level, recordings will also help diffuse a problem as emotions are always heightened at times of intervention, and much is either misunderstood or misinterpreted. The recordings will allow for the individual who is aggrieved at the time, the opportunity to review the recording and see if they had perhaps initially overreacted.

The other matter is the recording of hearings and judgments. Whilst there must be legislation as to the use and availability of the recordings, the issue of getting transcripts is a rather problematic.  Despite Munby’s PD on judgment transcripts, these are still not being produced many weeks and months later. Many families involved in care cases do not have the finances to afford the exorbitant costs of transcribing 3 to 5 days Fact Finding hearings let alone a judgment. Recordings of hearings can be used to help progress cases for the Court of Appeal or indeed when they carer acts as as litigant in person because they do not qualify for funding.

 

A view from a family barrister

For discussions about the pros and cons of recording interactions from the family bar, please see this useful post on Pink Tape.  There are serious concerns about recording children and a warning that this can often back fire on the person responsible for the recording, particularly if the child is distressed. But with regard to recording interactions between parents and professionals, this has the potential to be helpful:

There are lots of reasons why a parent’s understanding, experience or perspective of a meeting might be very different from the professional – they may well not be a “reliable” historian in any forensic sense simply by virtue of the fact that emotions are high and the stakes are high also. But the truth of the matter is that sometimes social workers are also less than reliable – sometimes even untruthful.

I know that many parents would suggest that social workers are routinely and regularly untruthful, such is their desire to meet their targets to have children removed and secure their adoption bonus. Leaving that aside for one minute (I don’t think that is really what happens) I have met plenty of social workers who are just not great with detail, who don’t recognise their own emotional involvement and how it alters their own perspective and responses to a situation, and who are see, record and retell the history in an overly negative light. I have met social workers who seem to be prepared to gloss over the specifics of a particular conversation for the “greater good”, which is to secure the outcome that they genuinely think is best for the child.

I have sometimes suspected dishonesty on the part of a social worker but have rarely proved it. There are cases in which social workers have been caught out lying, but they are infrequent. Here is a notorious example of a case where the honesty of a social worker became a really big issue : Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam) (22 December 2008). Here is one recent example of where a recording was crucial : Man Wins Compensation After Recording Saves Him From Prison.

The view from CAFCASS

See para 2.27 from the Cafcass Operating Framework

We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge

Some service users ask in advance of an interview whether it can be recorded. Advice on handling advance requests from service users to record interviews is available on the Cafcass Legal intranet page. In cases where no advance request has been made and the practitioner subsequently becomes aware that they have been recorded without their knowledge, they should tell the court. In some cases, however, the practitioner may not become aware of the recording until the service user presents the recording, or a transcript of it, at court. In such situations, the practitioner should make clear to the court that the recording was made without their knowledge. The practitioner may ask for the opportunity to listen to the recording or read the transcript before it is admitted into evidence, if the court is minded to take this step. It is a matter for the court to decide whether the recording or transcript can be included in evidence.

‘Working Together’ – Serious Case Reviews and Local Safeguarding Children Boards

We are grateful to this contribution from Philiip Measures, a Social Worker. He is concerned about the current operation of Serious Case Reviews and the potentially damaging impact this may have on their integrity and focus. 

Serious Case Reviews are conducted when something has gone very badly wrong – for example a child has died. Here is an example of a Serious Case Review, carried out to investigate the death of Daniel Pelka when in the care of his mother and step father. 

 

Individual Management Reviews in Serious Case Reviews.

Under the new ‘Working Together to Safeguard Children (2013)’ multi-agency Guidance many people may be as surprised and amazed as I am to discover that the requirement for organisations to undertake Individual Management Reviews (IMR’s) in Serious Case Reviews (SCR’s) has been removed. IMR’s were the individual Agency Reports submitted to the SCR Independent Chair who could then pull them together and report from a, hopefully, informed and detailed basis and also seek further clarification on any matters arising.

See the summary of working together to safeguard children and http://media.education.gov.uk/assets/files/pdf/w/working%20together.pdf

SO, how do we ascertain and have faith in the integrity, independence and correct focus of Serious Case Reviews if so much detailed information does not now have to be provided?

My starting point had to be the Guidance- so I saw at Paras. 37 and 38 that:

37) Each child who has been referred into local authority children’s social care

should have an individual assessment to respond to their needs and to

understand the impact of any parental behaviour on them as an individual.

Local authorities have to give due regard to a child’s age and understanding

when determining what (if any) services to provide under section 17 of the

Children Act 1989, and before making decisions about action to be taken to

protect individual children under section 47 of the Children Act 1989.

 

38) Every assessment must be informed by the views of the child as well as the

family. Children should, wherever possible, be seen alone and local authority

children’s social care has a duty to ascertain the child’s wishes and feelings

regarding the provision of services to be delivered.

It is important to  understand the resilience of the individual child when planning appropriate services.

Communication with the Department of Education

I sent 2 emails to the Department of Education of a more general nature and received their responses:

Dear Mr Measures
Thank you for your emails of 9 December and 23 December, regarding serious case reviews (SCRs) and local safeguarding children boards (LSCBs). I am providing a single response as there are areas which cross over between the two emails, and I trust this is acceptable. I also apologise for the delay in replying.The government is clear that professionals and organisations protecting children need to reflect on the quality of their services and learn from their own practice and that of others. When things go wrong there needs to be a rigorous, objective and transparent analysis of what happened and why, so that important lessons can be learnt and services improved to reduce the risk of future harm to children.Our statutory guidance, ‘Working Together to Safeguard Children’ (2013), is clear that the final decision on whether to conduct a SCR rests with the Chair of the LSCB, who should be independent from any local agency in order to hold them to account.Where a decision is made not to initiate a SCR, information should be provided to the national panel of independent experts on SCRs to enable them to scrutinise the decision. Where a SCR is initiated, the LSCB should appoint one or more suitable individuals to lead the SCR who are independent of the LSCB and the organisations involved in the case.’Working Together to Safeguard Children’ (2013) has removed the requirement for individual agencies to provide independent management reviews, and gives LSCBs increased freedom to use a range of learning models. This includes methodologies which are designed to get professionals thinking about the systems that they work within, and to challenge those systems and identify where weaknesses exist.

The involvement of front line professionals, and family members, in the review process is the key to drawing out clear understanding of how things seemed at that time and why decisions were made. Those who have taken part in this type of SCR are clear that the learning begins as the review unfolds, which is quite different to the historical method of conducting SCRs.(redacted)

LSCBs make a vital contribution to our safeguarding agenda, and play an important role in keeping children safe. ‘Working Together to Safeguard Children’ (2013) sets out the legislation which underpins LSCBs and their statutory objectives and functions. It makes it clear that each local authority (LA) is required to establish a LSCB for their area, and specifies the organisations and individuals that should be represented on LSCBs. It is also clear that LSCBs should be independent in order to provide effective scrutiny, and should not be subordinate to, nor subsumed within, other local structures. The accountability of LSCBs has been strengthened by requiring the Chief Executive of the LA to be responsible for the appointment of the Chair, rather than the Director of Children’s Services as was previously the case. The Chief Executive, drawing on other LSCB partners and, where appropriate, the Lead Member, will also hold the Chair to account for the effective working of the LSCB.

I can confirm that LSCBs are not public authorities for the purposes of the Freedom of Information Act 2000. LSCBs aremade up of many agencies and information requests should therefore be directed to the LA or relevant partner agency.

From November 2013, Ofsted has been carrying out reviews of LSCBs, alongside their inspection of services for children in need of help or protection, children looked after and care leavers. This is an important development and is the first time that there has been an evaluation of this kind. This will provide increased rigour to the knowledge and understanding of the strengths and weaknesses in the overall system.

 

Thank you again for writing and I hope this is helpful.

 

Well, it was informative and rather an eye-opener:

a) LSCB’s are no longer Public Bodies

b) Their Chairs are now appointed by Local Authority Chief Execs.

c) OFSTED inspect them.

I also asked about the Independent Panel and the Department of Education DoE) responded as follows:

 The Independent Panel

Dear Mr Measures
Thank you for your further email of 9 January, regarding the role of the serious case review (SCR) panel and individual agency reports.The government announced in ‘Working Together to Safeguard Children (2013)’ that a national panel of independent experts would be established to advise local safeguarding children boards (LSCBs) about the initiation and publication of SCRs. The panel has been fully operational since July 2013. Each panel member draws on their own area of expertise when considering the decisions made by LSCBs.Panel members are:

  • Peter Wanless, Chief Executive of the NSPCC
  • Nicholas Dann, Head of International Development at the Air Accidents Investigation Branch (AAIB)
  • Elizabeth Clarke, practicing barrister and specialist in family law
  • Jenni Russell, journalist

In addition to the panel, the department is funding the NSPCC to run training courses for independent authors of SCRs and LSCB chairs and members. The training concentrates on the need to keep asking ‘why’ when carrying out SCRs, in order to delve beneath the surface and establish what, if anything, went wrong within organisations. ‘Working Together to Safeguard Children (2013)’ states that, as part of the review process, LSCBs may decide to ask each relevant organisation to provide information in writing about its involvement with the child who is the subject of the review. However, it is for LSCBs to decide whether such an approach is appropriate and proportionate to the scale and level of complexity of the issues being examined.

Thank you again for writing and I hope this is helpful.

 

 

Concerns about the nature of  the available expertise

Well, frankly, NO I didn’t find it helpful – informative, yes, but helpful? No. An Air Accident investigator and a journalist – as ‘experts’? – come on DoE, whose leg are you pulling? Where are the ‘experts’ from Health, Education and the Police? These are 3 of the main agencies involved in Child Protection.

So does this new methodology represent a positive way forward? I absolutely believe that it doesn’t for the simple reasons that without access to a clear, and forensically detailed Chronology, how can it be possible to really tell the child’s story?

We need to be able to make sense of the full family background

Unless we can clearly make sense of the full family background (Social History) and see that important / significant events have been properly evaluated and assessed how can it be possible to even question on any authoritative basis the Conclusions of SCR’s because absolutely vital information may be absent – either my omission or commission? Agencies may provide reports which, if open to more detailed scrutiny, may require further investigation.

Also, in order to learn lessons we need the fullest information:

a) What significant events took place?

b) Did any meet the Threshold Criteria for intervention by any of the agencies who were aware? (to include legal intervention,  calling a multi-disciplinary Child Protection Conference; referral to MARAC etc.)

c) What responses, if any, ensued? (to include further information gathering and sharing / clarification with other agencies)

d) Were those responses (either positive or negative) relevant, targeted; monitored / reviewed and re-evaluated?

e) Who was ‘holding’ / co-ordinating the Case?

f) Who had management oversight and was offering support?

g) Was there evidence of effective multi-agency involvement?

h)  Were there clearly defined Aims and Objectives and ‘markers’ as to how progress / levels of improved safety were to be judged as being achieved or not?

i) Also, was there evidence of appropriate training / learning from any previous SCR’s?

Conclusions

I would finally make a call for the routine involvement in SCR’s of experienced practitioners who are independent of the Case and the Local Authorities / agencies concerned and also for their inclusion of Overview / Expert Panels.

Unless and until it can be clearly demonstrated that SCR’s are completely open and truly independent there can neither be professional, and even more importantly, public confidence in their integrity.

 

Philip J Measures,

Registered Social Worker; C.Q.S.W; Cert. in Social Work (Probation & Child Care); Advanced Cert. in Working with Child Abuse; Graduate Award in Management & Leadership  in Social Care

 

Contact him

Philip Measures is happy to be contacted directly if you have any queries

[email protected]

 

It’s Not Always Easy

We are grateful for the following contribution from an adoptive parent. We know that adoption can be a hard and difficult option and it is best for everyone to go in with their eyes open and with genuine communication about the potential problems. We hope to increase the information available here about post adoption support and attachment difficulties. 

The Bubble Wrapped Child by Helen Oakwater contains a good discussion about some of the emotional difficulties adopted children can have. Her website is here.

We are adoptive parents. We have birth children who are older than our adopted daughter. We are probably a bit conventional.

We adopted our daughter aged 6. That should have flagged up a lot of signals but we were optimists, believing that love and care would be enough. It wasn’t.

We were not told the truth about our daughter when she arrived, and we gradually found it out over the next 7 years. We were naive, in spite of our professional experiences.  Do not expect to be told the full truth – some of it will be confidential, and even though it would help to know it, you may not be told.

Things got worse with puberty, and our daughter started demonstrating the fight or flight symptoms (we learnt later that she had Reactive Attachment Disorder and this was natural), but it was very stressful and we didn’t understand it.

There were problems, when we adopted her we were told that one day she may “revert to type”. We found this awful at the time, but later it came back to haunt us. Beware though, you may be blamed for the problems, even though it may not be you that have caused them.

 

Establishing Good Relationships

Establishing a good working relationship with your social worker is, of course, a two way street. It is the responsibility of both of you to try to make it  work, for the good of your child. If either of you is rude, dismissive or doesn’t seem to be listening, the relationship will struggle.

This doesn’t mean that either the parent or the social worker has to be 100% well behaved 100% of the time; this probably isn’t possible. We are all human and the parent/social work relationship has the potential to be difficult even at the best of times.

But if either person is aware that they haven’t behaved well then they need to apologise sincerely and take action to make things better.

Here is a helpful short video explaining the 3 necessary things to establish a good relationship of ANY kind.

Those 3 things are:

Commitment

you have to commit to any relationship for it to grow

Authenticity

don’t be insincere, people will notice and it harms the relationship

Communication

if you are not talking opening and listening carefully to one another, the relationship can’t work.

Edit  – the point of this post was NOT to suggest that we ought to expect social workers to behave badly to the point that they fail to adhere to professional standards and ethical codes. The point being made was that the social work/parent relationship is one between two humans, working in often stressful and difficult situations. But if anyone feels their social worker has acted unprofessionally then they must complain about this kind of behaviour, it is not acceptable.

To read more about making a complaint about a professional, see our post here.

 

Advice for parents with mental health issues

I’m a parent and I have mental health problems and/or a personality disorder. What can I do to help myself?

You may also be interested in our post on parents with mental health difficulties in the ‘Mythbusting’ section.

Most people would agree that there is not an adequate amount of help available to parents with mental health challenges or a diagnosis of or the difficulties associated with personality disorder. Many parents feel very isolated, and often frightened. With feelings of isolation and fear can often come a sense of hopelessness or disempowerment. However, as a parent struggling alone with mental health issues, there is a great deal that you can do to help yourself;

  • Try not to panic about the involvement of Children’s Services. As the rest of this website explains, their main aim is simply to support you in looking after your children.
  • If you have difficulty understanding or following what is happening, ask your social worker, solicitor or advocate to explain.
  • Find out what support is available in your area and for people with your difficulties or diagnosis. Your GP, advocacy services, mental health charities and internet searches can be a good starting point. Do not assume that your doctor or social worker has already referred you to everything available – you may have found something they don’t know about.
  • Do not underestimate the value of family networks, informal support or social media. Think about what your family and friends can do to help. Try and get involved in your local community, perhaps by volunteering at your child’s school or by joining a local gardening club, or simply by looking for friends online through Mumsnet or Twitter.
  • Look after your health. Smoking, alcohol, illegal drugs and too much coffee and chocolate are bad for both physical and mental health. Exercise and plenty of water and veg and fresh air and friendship are good.
  • Look after your finances. Many families and particularly parents with mental health issues and other disabilities are seeing their incomes fall and outgoing rise due to benefit cuts, inflation and the bedroom tax. Citizens Advice and the Money Advice Service can provide excellent free advice. For those who are having trouble feeding their families, foodbanks can provide emergency parcels.
  • Learn to relax. Stress-management techniques can be beneficial to everyone, and people with mental health challenges have more stress factors than many. Mindfulness, self-hypnosis and other forms of relaxation can be learned from classes or from YouTube.
  • Enjoy your children. Certainly, parenting can be messy and stressful and tiring – but it can also be hugely fun and rewarding. Make time and save energy for trips to the park, finger paint and bedtime stories.
  • Stay positive. Trite and twee as it sounds, you have to believe that you will cope.

 

Response to Commentators #1

Our aims as a site

We want not only to provide useful and credible information to ALL those involved in the child protection system, but also to be part of the debate about what we can do to make our child protection system the best it can be.

That means we don’t want anyone to feel shut out of the debate or that we will censor or ignore their contributions.

However, we worry that for far too long, constructive debate has become hostage to a number of people who put forward extreme and unsupported allegations about the ‘evil’ and ‘corruption’ of an entire system.

We are going to try to strike a balance between welcoming debate and views that may not chime with our own and not becoming overwhelmed or overrun by hyperbolic conspiracy theorists.

It may take a while to see if we have that balance right. But in the spirit of welcoming debate we here provide a response to a number of points raised by commentator ‘Winston Smith’.

We are having discussions at the moment about the best way to deal with comments here that we feel are not helping: we agree with this very helpful article from Urban 75 about the kind of commentators we don’t want to encourage.

We think we will probably delete comments to various posts which we think are obvious trolling or attempts to push unsupported theories.

However, we will continue to collect them in Mythbusting and try to answer them. In that way, we can’t be accused or ignoring or censoring, but equally our attempts to debate and inform won’t be derailed by malice, ignorance or wild accusations made without any evidence in support.

This response is provided by Sarah Phillimore, a family barrister since 1999. If she has got anything wrong or there is anything you would like to add, please let us know.

I am going to respond to some of the recent comments of a Mr Winston Smith. Mr. Smith asserts:

Adoption targets

Unfortunately a major scandal erupted in 2008 when it was finally proved that Central Government were paying generous grants to each LA. to increase the numbers of children Forced Adopted each year. In many LA’s bonuses were also being paid to SW’s to secure Forced Adoptions.
I have the printout showing the sums paid, including the £1,025,000 paid to “Blogshire Council” , my own, and with which Elected Members still deny was happening and go white when I hold it under their noses.

They were known as Public Service Agreements and if you failed to meet your target by the end of the year you were financially penalised, not only on this, but across the board on the other 11 PSA’s.
So you had every incentive to prioritise the adoption of babies.

This appears to be the familiar territory of ‘adoption targets’ where the wish of successive governments to increase the number of children adopted from the care system led to targets and performance incentives to encourage LA to find permanent homes for children who may have spent many years in the care system.

This is of course very different from a system which sets ‘targets’ for the removal of babies because they are easier to adopt.

We don’t deny that most adopters would prefer to adopt a child who is as young as possible – hopefully the younger a child the less trauma he has already suffered and the more easily he  will become part of the adopter’s family.

But does this translate into LA taking babies for no good reason, because babies will be more easily adopted and this in turn will enable them to meet their ‘adoption targets’ ?

I don’t agree.  We have already dealt with this issue in our Mythbusters section but I think I should repeat the salient points here

  • Even though local authorities have targets to match children in their care with adoptive parents faster than before, in England the average age at adoption was three years and eight months at 31 March 2013.  Just 2% of children adopted in England in the year ending 31 March 2013 were under one year old
  • Only 6% of Looked After Children in England were under one year old at 31 March 2013.
  • It usually takes at least three months for adoptive parents to be matched with a child after they have been approved to be adopters (see column A12 in the Underlying Data spread sheet)

Although the amounts of money paid to local authorities who meet their targets for placing children in their care and for assessing adoptive parents can be large (see this official Written Answer from 3 September 2007 towards the bottom of this page) they do not exceed the cost of the proceedings.  For example, the largest payments in this table were made to Kent County Council, who received £2,156,583 over three years.  Information on the numbers of children placed for adoption by Kent County Council in 2005-2007 is not readily available, but more recent information suggests that the average number is 205 children per year (see the adoption scorecard for 2008-11 here).  Dividing £2,156,586 by 205 would give an average payment of £10,519.93 per child placed for adoption.  Even without details for the costs of all social workers involved in a case, plus legal representatives at court – usually for both the local authority and the family involved – plus court time, plus foster carers, it is clear that any money paid in the form of a bonus does not come close to covering the cost of removing a child from their family and placing them for adoption.

 

 

Since then subsidies have returned on a more indirect basis.

There has been TWO MSBP/FII/AIB Relaunches since, on a very similar basis to your site.

This has always been the focus of all of this.

Sadly I cannot respond to this as I don’t understand what it means, so I will need Mr. Smith to clarify.

 

 

Since the mothers are accused of “Munching” the kids and won’t “confess” they if under 5 are likely to end up being Forced Adopted as they cannot be returned home.

We agree that if a child is subject to care proceedings and is aged 5 or under, then adoption is much more likely to be considered as part of the final care plan than if the child was older. Simply, adoptions are less likely to succeed the older a child gets and once a child is over 7 it is unlikely that adoption will be a realistic option.

However, here Mr Smith appears to ignore all the other options that are routinely before the court in care proceedings such as Residence Orders or Special Guardian Orders to family members. The LA is under a statutory obligation to undertake kinship assessment.

Presumably Mr Smith must have access to some clear statistics to be able to assert confidently that those under 5 are ‘likely’ to be subject to ‘forced adoption’ and we would be grateful if he could share this information with us so we can consider it.

 

Since peoples’ “professional” theories are involved they have just gone on behaving in the same way and continued to try and prove their theories.

Ruralsocialworker, the last thing we need is yet another campaign which denies everything, of which there have been a number over the years.

I think this comment shows Mr. Smith has misunderstood the aims of this resource. We do not say and have never said that the system is perfect and that no mistakes are ever made. What we do say is that we do not accept that professionals routinely lie and collude to ensure that children are removed from loving homes for the purposes of meeting adoption targets.

We are keen to discuss new and better ways of operating, the only rule which we insist upon is that serious assertions require serious evidence.

If Mr. Smith truly believes we wish to be ‘another campaign which denies everything’ then he needs to have another look at the site and what we are trying to do. Hopefully then he will accept this criticism is untrue and unfair.

 

Meanwhile anew campaign has been created by the adoption agencies and members of the government ,also appointing Martin Nairey as Adoption ,and include bringing in the American “Fost-Adopt” system and reducing times to6 months. So we are back where we started.

Mr. Smith appears to be referring here to attempts to speed up adoption times for children in care and to make it less traumatic for children by encouraging their foster carers to adopt them. I think both are very good ideas. I do not see how this fits into an allegation that the State steals children for adoption. Rather they are examples of how the State is attempting, quite rightly, to improve outcomes for children already in the care system.

 

Children are taken into Care for silly reasons and in breach of procedures. Once there they will not be returned and dubious or provably inaccurate evidence concocted as the LA does not wish to be proved wrong.

I cannot and do not deny that mistakes are made and mistakes in this field can have very serious consequences. But none of us here, from a variety of perspectives within the system, accept such mistakes are routine or are made deliberately and maliciously in furtherance of some State plot to steal babies.

It is emphatically NOT my experience that children are taken into care for ‘silly reasons’. Again, assuming Mr. Smith has some statistical information to back up this assertion, we would like to see it. As far as we know, serious reasons are needed before a child can be taken away from his home – which is entirely as it should be.

I refer Mr. Smith to the legal section of our site and in particular our discussions of what is meant by ‘significant harm’. I  can find nothing ‘silly’ there.

I reject the assertion that evidence is routinely ‘concocted’ and again would request that Mr. Smith provide his evidence for this extremely serious assertion so that we can consider it.

In 15 years I have never come across deliberate concoction of evidence. Yes, I have seen sloppy evidence gathering and reporting, misunderstandings that became hardened into believed ‘facts’ and people making assumptions where they shouldn’t. It is my job to challenge that.

But deliberate falsification of evidence? Never. So either I am a stooge of the system and too stupid to notice when this is happening under my nose OR it doesn’t actually happen very often or at all.

 

The greatest area of corruption is the Expert Witness, in view of the huge sums being paid, and they repeatedly give diagnoses NHS or private clinic experts say do not exist.

Mr. Smith seems unaware of recent changes to public funding of expert witnesses. The sums paid on legal aid rates are very far from ‘huge’ and in fact the prevailing concern is now that we will lose the services of valuable expert witnesses as they won’t agree to be instructed on the new low rates.

I would urge Mr. Smith to read what the Legal Aid Agency are now saying about the remuneration of experts.

I don’t understand what he means by ‘repeatedly give diagnosis NHS or private clinic experts say do not exist’ and again I think that such a serious allegation requires some serious proof.

 

There is an almost 100% “Guilty” verdict in the Family Court

I accept that if care proceedings are brought, the most likely outcome is that a court will make a care or supervision order. Two conclusions can be reached from this:

  • Care proceedings are a farce and the conclusion is a rubber stamp; OR
  • Care proceedings are not bought lightly given the enormous expense and time they involve for cash strapped LA and only the most serous cases will go to court.

I support the latter conclusion.  Mainly because this fits exactly with my own experience over many years.  In fact, when I am critical of the way a LA has conducted a case, I can think of only a handful of cases where I felt they acted too quickly; the majority of my complaints are that they waited far too long before taking decisive action.

 

Basically we are into the same scenario as Cleveland, Satanic Abuse, Constructive Memory, MSBP, those cosmic megascandals all those years ago, where groups of true believers continued to doggedly defend them, even though disproved.

Here Mr. Smith refers to a number of ‘megascandals’ and appears to lump our site in with those ‘true believers’ who continue to doggedly defend the indefensible, even in the face of evidence.

I am  not quite sure what he means here and again, suspect he has misjudged or misunderstood the aims of this site.

I think this artice from Slate is interesting about the hysteria which surrounded the issue of child satanic abuse. It is a good example of the danger of proceeding to reach conclusions about extremely serious matters when your evidence is weak or even non existent.

 

However, regarding KinCarers , this statutary duty is regularly ignored by LA’s.

Admittedly grandparents maybe too old but other relatives are ignored.

Regularly aunties or sisters are advised to file for Residence Orders or SGO’s themselves. Uproar round at LAQ legal offices.

LA will go for Forced Adoption and only after a bitter battle with numerous court hearings agree to an SGO.

This isn’t my experience. Every case I do, when a family member puts themselves forward they are assessed – they have to be. It is the law. If the LA assessment is negative, the family member can come to court and argue their case or even seek permission for a further assessment. I was involved in a very recent case where the court agreed the maternal grandparents hadn’t been properly assessed and ordered a further report from an Independent Social Worker.

 

This includes busting the Placement Order in the CoA on Appeal.

I would like to respond to this but I don’t understand Mr Smith’s point.

 

These are usually either with the foster carer or a remote relative with either no contact or once every six months.

Again, I am going to need some statistics to back this up as it is very far from my own experience of the orders courts will make and the contact parents are likely to have.

 

LA’s and FD judges will move heaven and earth to prevent any child’s witness statements, prevent the Wishes and Feelings Pact being done, and prevent them being called as witnesses in violation of Practice Direction on Child Witnesses Dec 2010.

The children are kept isolated to prevent their view a being known and the are routinely obstructed from instructing their own solicitors if Gillick Competent.

Again, evidence please. This isn’t my experience. Courts are rightly worried about the impact of children becoming directly involved in court proceedings, particularly if it involves them giving evidence about the abuse they have suffered but to say ‘heaven and earth’ is moved to prevent them is nonsense.

I invite Mr. Smith to read the case of Re W in 2010 about the court’s approach to children giving evidence, which may assist his understanding.

What does ‘section 20’ mean? And when should it be used?

The law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step …

NB We now have the benefit of a March 2021 ‘Best Practice Guide’ from the Public Law Working Group.

Basically,  section 20 of the Children Act 1989  is about the LA’s duty to provide a child with somewhere to live because the child doesn’t currently have a home, or a safe home:

  • there isn’t anyone who has parental responsibility for him (for e.g. an asylum seeking child who has come to the UK on his own);
  • the child has been lost or abandoned;
  • the person who has been caring for the child can’t provide him with a suitable home, whatever the reason for this and regardless of whether this is short term or long term problem.

It is a very important section with regard to care proceedings, because it often happens that a local authority (LA) will ask parents to sign a ‘section 20 agreement’. This means the parents are agreeing to let their children live somewhere else, usually in LA foster care, while the LA carries out more investigations or the parents get some time to sort themselves out (‘respite care’).

The child is therefore out of the parents’  care without the need for the LA to go to court and get the Judge to make a care order. Because the court is not involved to oversee this, it’s very important that section 20 agreements are used properly and don’t become a way of letting the case drift on without proper consideration or getting a care order ‘by the back door’.

I discuss these issues further below:

  • What is the impact of section 20
  • What have the courts said about the requirements of section 20
  • When it goes wrong
  • What you can do if its going wrong

On 24th February 2016 the Transparency Project published Guidance for parents and professionals about the use of section 20, which you can download here.

There has been some controversy about ‘foster to adopt’ placements where section 20 is used to put a child in such a placement before the matter gets to court. You can read more about this, and the report of the Family Rights Group here. 

Impact of section 20: the BIG difference between section 20 and a care order – the LA does NOT have parental responsibility

The difficulties around section 20 were summed up by Lady Hale in para 34 of the Supreme Court judgment Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018)

iThese cases illustrate a number of problems with the use of section 20: separation of a baby from the mother at or shortly after birth without police protection or a court order, where she has not delegated the exercise of her parental responsibility to the local authority or been given in circumstances where it is questionable whether the delegation was truly voluntary; retention of a child in local authority accommodation after one or both parents have indicated a desire to care for the child or even formally asked for his return; and a lack of action where the perception is that the parents do not object to the accommodation, even though this means that no constructive planning for the child’s future takes place. They also illustrate the dilemma posed to the local authority: something has to be done to look after the child but there are serious doubts about whether the parent can validly delegate the exercise of her responsibility. Equally, they illustrate the dangers if the local authority proceed without such delegation or obtain it in circumstances where the parents feel that they have little choice. There are none of the safeguards and protections for both the child and the parents which attend the compulsory procedures under the Act. Yet, rushing unnecessarily into compulsory procedures when there is still scope for a partnership approach may escalate matters in a way which makes reuniting the family more rather than less difficult.

  • Section 20 accommodation is very different to your child being removed from your care against your will under a care order. The LA do NOT share parental responsibility for your child just because you have agreed that your child should be in foster care under a section 20 agreement.
  • Under section 20(8) any person who has parental responsibility can remove the child from LA accommodation at any time unless there are objections to this by someone who has a child arrangements order to say the child lives with him/her (what used to be called a ‘residence order’), a special guardianship order or has care of the child by a special order of the High Court.
  • Section 20(4) says that the LA may provide accommodation for any child in their area, even if the child has a parent who is able to provide accommodation, if the LA thinks that they need to do this to keep the child safe.
  • Section 20(7) provides that the LA cannot provide accommodation for a child if there is someone who has parental responsibility for the child and objects to the LA providing the accommodation.

So if the parents won’t agree to section 20 accommodation, their child can only be removed by court order or by the intervention of the police using their special powers.

Problems have arisen when parents feel they have been ‘rushed’ or even bullied into making a decision to agree to let their children be accommodated under section 20. Sometimes, LAs get consent from only one parent but the other objects. A LA should always try to get the consent of everyone who has parental responsibility.

What do the courts say?

Evolving case law and the case of Williams v Hackney

A very important case when considering how section 20 should work is the case of Coventry City Council v C, B, CA and CH [2012]. This should be read together with the case of Williams and Another v London Borough of Hackney [2015]. See also the case of Medway Council v M and T [2015] which appears to be the highest amount of compensation paid for unlawful use of section 20 – £20K to both mother AND child.

In the Coventry case, Mr Justice Hedley gave guidance about what should happen if a LA want to remove a baby immediately or soon after birth – it can be appropriate to use section 20 in these circumstances but obviously it is vital to make sure the parents understand what is being proposed and give real consent.

The Hackney case, involved parents of 9 children who were taken into foster care in 2007 after the police intervened saying the home conditions were not suitable for the children to live in. The children spent about 2 months in foster care.

The parents took legal action against the local authority, saying it had acted unlawfully by taking the children into care under section 20 of the Children Act as they had not understood what was going on. The court found that they had not been informed of their right to object to the children’s continued accommodation under section 20(7) or of their right to remove the children at any time under section 20(8) and that their consent was not informed or fairly obtained (para 65).

Therefore Hackeny was found in breach of its statutory duty and the parents were awarded the £10,000 each and Hackney was ordered to pay 75% of their costs.

Hackney appealed and this decision was overturned on appeal in December 2016.

The Court of Appeal agreed with Hackney and pointed out that the word ‘consent’ does not appear in section 20  – the relevant word is ‘objects’. At the time the children were accommodated pursuant to section 20, the parents were subject to bail conditions that prevented them from providing suitable accommodation for their children. Their consent was not required in these circumstances. There was no breach of the HRA and damages should not have been awarded.

However the Court of Appeal stated that guidance from other cases about issues of ‘consent’ was still relevant:

“The guidance given in the family court … identifies clear, co-operative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed … but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.”

The case then went to the Supreme Court, the main ground of appeal being was there or was there not a lawful basis for the children’s accommodation under section 20 of the 1989 Act once the 72 hours of police protection under section 46 had expired? Judgment was handed down on 18th July 2018 in Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018), dismissing the appeal.

The UKSC commented that it was potentially confusing to talk about ‘consent’ to section 20 and it was better to refer to the process as the parent agreeing to delegate their PR to the LA for a period of time. However, it remained important that the parents genuinely understood what was going on so previous ‘good practice’ should be adhered to.

Lady Hale considered at paras 57 and 58

Whether the local authority had a lawful basis to continue to accommodate the children all depends, therefore, on whether the parents’ actions after the expiry of the police protection order amounted to an unequivocal request for the children to be returned. The judge did not see the bail conditions as an insuperable impediment to their making such a request (para 65.b). There could have been a number of solutions, including the parents or the Council persuading the police to vary bail to allow alternative accommodation with family and friends, if there were any to help, or with the parents themselves. Breaking police bail conditions is not a criminal offence and there was no evidence of what would have happened if the children had returned home. The bail conditions did not operate to give the Council any greater powers than they had under the 1989 Act. The ostensible reason for the conditions was not a good reason for keeping all eight of the children – particularly the baby – apart from their parents. It is not surprising that they were lifted soon after contact from a senior Council officer, even though there was still the prospect of criminal proceedings against the parents.

But it is difficult to know how to construe the events of 9 July, when the parents went to the Council’s offices and, according to them, asked for the return of their children. The judge accepted the social worker’s denial that she had told them that the children would never be returned. But he found it probable that they were told that the document they had signed authorised the children to be kept, because that is what she believed at the time. However, he went on to say that “it is difficult to determine whether, and if so on what terms, the claimants asked for their children to be returned”. Given his earlier finding about the events of 6 July, he made no finding about it (para 68). It is therefore difficult for us to construe these events, either as a clear objection to the children’s accommodation under section 20(7) or as an unequivocal request for their immediate return under section 20(8). There would be little point in our sending the case back to the judge for him to make findings on this matter. It is fairly clear that, on that date, he would have regarded the continued interference in the family’s life as a proportionate means of protecting the children from harm. In those circumstances, even if the events of 9 July had removed the lawful basis for the local authority’s actions for a matter of days, which must be doubtful, no damages would be payable.

The Supreme Court therefore decided that as the parents had not objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20.

Summary of legal principles from case law.

Considering the evolving case law, it appears that the ‘good practice’ guidance identified in earlier cases remains relevant and LA would be wise to ensure that it is complied with. A useful precis is found at the very final paragraph of Lady Hale’s judgment:

In sum, there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40 above). Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.

As the Supreme Court did not resile from any of the guidance set out in previous cases, I will summarise it here.

  • Parents must give valid consent to section 20 accommodation; their agreement must be ‘real’ –
    • but note Hackney case (above) where the parents were subject to bail conditions that meant they were prevented from offering a home to their children. Consent was not an issue in these circumstances. If parents are prevented from ‘objecting’ to section 20 accommodation this may be enough to make it lawful.
    • Also note comment of Lady Hale in SC decision in Hackney (para 39) a delegation of parental responsibility (i.e. agreeing to section 20) can be “real and voluntary” without being fully “informed”.
  • The parents must understand what they are agreeing to; they must have ‘capacity’
  • The parents must have all the relevant information
  • Removing a child under section 20 must be fair and proportionate
  • Parents must be told they have a right to take legal advice
  • Parents must be told they have a right to withdraw their consent

These principles are dealt with in more detail below.

Agreement must be real – parents must give valid consent to section 20 accommodation

  • Every parent who has capacity has the right to give consent under section 20 to have their child accommodated by a LA (for a discussion of what is meant by ‘capacity’ see our post on the Mental Health Act 2005);
  • Every LA has the power to accommodate a child, if to do so is consistent with the child’s welfare.

The parent giving consent must have capacity – they must understand what they are agreeing to

  • every social worker obtaining a parent’s consent is under a personal duty to be satisfied that the person giving consent has the capacity to do so;
  • The social worker must actively consider the issue of capacity and consider the questions raised by the Mental Capacity Act 2005 at section 3 and in particular the person’s capacity to use and weigh all the relevant information;
  • If the social worker has doubts that the person has capacity they should stop trying to obtain consent and seek advice from the Team Leader or Management.

The parent must have all the relevant information to be able to agree

If the social worker is satisfied the parent is able to agree, the next question is whether the consent is ‘fully informed’. Does the parent:

    • understand the consequences of consent or refusal?;
    • appreciate the full range of choices available?
    • know about all the relevant facts?

If the social worker is not satisfied the parent is ‘fully informed’ again, no further attempts should be made to obtain consent and further advice should be sought, including legal advice if necessary.

The decision regarding section 20 accommodation must be fair and proportionate

  • If the consent is considered to be fully informed, the social worker must then be satisfied that the giving of such consent and subsequent removal of the child is fair and proportionate.
  • To answer that question, the social worker should consider the current physical and psychological state of the parent, whether or not they have a lawyer, or have been encouraged to seek legal advice, 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.

The parents must be told they have a right to legal advice and can withdraw their consent at any time.

See para 65 of the Hackney judgment:  a section 20 agreement HAS to convey that the parents have the right to withdraw their consent. The parents must also be told of their right to take legal advice. Otherwise their apparent ‘consent’ to section 20 may be no consent in reality. This is confirmed in the Supreme Court decision although the point is made that consent can be real without necessarily having ‘full information’. This is not a point I find easy to reconcile and presume that the focus then falls on what is ‘relevant’ information – which I assume is primarily being informed that the parent can remove the child from section 20 accommodation at any time. 

When it goes wrong

The parents didn’t understand what was going on

For a case that went badly wrong, when the LA did not make sure the parents were supported to understand what was going on, see the case of H (A Child – Breach of Convention Rights: Damages) [2014]. The parents were awarded damages of £6,000 for breach of their human rights in a case that drifted due to unacceptable use of section 20 accommodation.

The court had real doubts about the reality of the parents’ consent in the case of P (A Child: Use of section 20) [2014] EWFC 775. The Judge commented at paragraph 32:

Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether [the LA] had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the [LA] there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.

When it starts ‘drifting’: Judicial Warning

Sometimes, when a child is in foster care under section 20, that has lead to unacceptable drift and delay in making decisions about the child’s long term future. In the case of H (A Child – Breach of Convention Rights: Damages) it took the LA nearly a year to issue proceedings, while the child was in section 20 accommodation,  a delay that the court decided was both ‘unjustified’ and ‘inexcusable’. Also, the LA did not take enough care to ensure the parents understood what was going on. The parents were awarded £6,000 each for breach of their human rights.

On 26th November 2014 the Designated Family Judge for Avon, North Somerset and Gloucestershire issued the following warning about the use of section 20:

Misuse of accommodation under section 20 of The Children Act 1989

1. There have been several recent instances in this area where it is quite apparent that accommodation of children under Section 20 of The Children Act 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.

HHJ Wildblood QC – 26th November 2014.

In the case of P (A Child: Use of section 20) [2014] EWFC 775, the child had been in section 20 accommodation for 2 years whilst the case drifted. Then there were enormous problems in getting another LA to agree to help the parents with housing. The Judge commented at para 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. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

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. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.

There was further serious criticism about the misuse of section 20 in the case of A (A Child) in 2015 where the President of the Family Division stated at paragraph 99 of his judgment:

Quite apart from all the 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. This 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.

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).

Unfortunately, its still going wrong. HHJ Wildblood QC identified what had gone awry in Bristol City Council v S [2015]

  • The circumstances of the children were allowed to drift in the pre-proceedings stage and the use of section 20 of the Children Act 1989 was too prolonged.
  • The absence of a meeting of professionals from the Local Authority’s Children’s and Adults’ Services in the early stages of the Local Authority’s intervention.
  • A lack of understanding of The Care Act 2014.
  • There were inadequate assessments of the mother in the pre-proceedings stage. If there was insufficient information available to the local authority for it to formulate a satisfactory care plan at that stage a proper and full psychiatric assessment of the mother should have taken place within the pre-proceedings stage. It should not have been left to the time of the proceedings.
  • The apparent lack of information held by Dr. S as to exactly what has been provided to the mother by way of therapy within the community.

EDIT The case of Herefordshire Council v AB [2018] EWFC 10 (1 February 2018) reveals further serious unlawful use of section 20; Mr Justice Keehan describing this case as representing “two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge”.  Once child spent 8 years in section 20 accommodation from the ages of 8 – 16 and the other spent the first 9 years of his life without any plan for permanent accommodation.

It’s going wrong and you don’t agree to section 20 anymore

If you don’t want your child in foster care any more then you can stop agreeing at any time. BUT this may mean that if the LA aren’t happy with you taking your child home, they may want to try to stop you.

To do this lawfully, there are only two options:

  • The LA try to persuade the police to exercise their powers to take a child to a place of safety for up to 72 hours;
  • OR the LA will have to apply to court for an order.

If they think the situation is urgent they might apply for an Emergency Protection Order. See our post on interim removals.

In some situations, parents might be better off if there was an application for a care order – this will ensure the matter is now subject to a strict court timetable and a judge will be in charge of making decisions. Being involved in care proceedings will also mean parents can get free legal advice and representation.

The LA want me to sign a ‘written agreement’.

Often section 20 agreements go hand in hand with other written agreements; for example, setting out what the LA would like the parents to do or stop doing, while their child is in foster care. These documents don’t have any specific legal force but they are often relied on in evidence in later care proceedings to show how co-operative (or un co-operative) the parents have been and therefore, how much they can be relied on in the future.

Written agreements should not be used to get care orders ‘by the back door’. See the case of Re W [2014] for discussion about this. Also, read this blog post by suesspicious minds for further consideration about written agreements and their consequences.

His advice to parents is:

  • Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it;
  • If you have a lawyer, you should ask for legal advice BEFORE you sign it. If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement;
  • If you think that something isn’t fair, say so;
  • If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement;
  • Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

Section 20 – other issues

Watch out for section 22 of the Adoption and Children Act 2002

There can be serious consequences flowing from section 20 accommodation and parents need to be aware of these. In particular, parents will need to bear in mind section 22 of the Adoption and Children Act 2002 which states that if a LA is providing accommodation for a child, the LA MUST apply for a placement order if :

  • they think the conditions of section 31 of the Children Act are met (significant harm);
  • and they are satisfied the child ought to be placed for adoption.

See further LB v London Borough of Merton [2013] EWCA Civ 476.

See further discussions at The Transparency Project about the ‘foster to adopt’ controversy, where parents may agree to place babies in such a placement, under section 20, therefore without the oversight of the court.

Review and monitoring of section 20 accommodation.

Under the Review of Children’s Cases Regulations the LA must appoint an Independent Reviewing Officer (IRO) to carry out the functions in section 26(2A) of the Children Act 1989;

  • participating in the review of the case in question;
  • monitoring the performance of the LA’s functions in respect of the review;
  • referring the case to Cafcass, if the IRO thinks it is appropriate.

Every case must be reviewed within 4 weeks of the child being provided with accommodation and a second review must follow after that within 3 months. After this second review, the reviews must be at least every six months. The LA should be considering whether or not the child can go home at these review meetings.

The IRO is under a duty to:

  • make sure that the child’s views are understood and taken into account;
  • to identify who is responsible for making sure decisions taken in the review get acted upon;
  • inform senior management at the LA if reviews are not properly carried out;
  • to assist the child to obtain legal advice; or
  • to find out whether an appropriate adult is able and willing to provide such assistance or bring the proceedings on the child’s behalf.

Making parents pay for section 20 accommodation?

For consideration of the very odd situation outlined by Schedule 2 of the Children Act, see this excellent blog post by suesspicious minds.  Such charges can’t be imposed on any parent who is receiving state benefits and they don’t apply to any child subject to a care order.

The Schedule reads:

Schedule 2 para 21. —(1) Where a local authority are looking after a child (other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute (“a contributor”)

Parents on bail: condition not to contact their children

The court initially stated in  Williams and Another v the London Borough of Hackney [2015] that the LA should still get informed consent to section 20 accommodation, even when the parents were subject to bail conditions that meant they could not have unsupervised contact with their children. This was overturned by the Court of Appeal who pointed out that the statute uses the word ‘object’ not ‘consent’ and the parents clearly couldn’t ‘object’ to the LA providing their children with accommodation, when they were prevented by their bail conditions from giving them a home.  See discussions above and in particular the comments from Lady Hale in the Supreme Court judgment about bail conditions and their impact.

Further reading

What do we mean by the ‘welfare stage’ of care proceedings?

Care proceedings involve a two stage legal test

As we discussed in another post about ‘threshold criteria’,  a court can only make a care or supervision order if it is satisfied it has passed both parts of a two stage test –

First – that the necessary ‘threshold criteria’ must be found proved on the balance of probabilities  in order to show that the child has suffered or is at risk of suffering significant harm.

Second – is it is in the best interests of the child to make a care or supervision order?

This second stage is often called ‘the welfare stage’ because the court has to focus on what order would best meet the child’s interests; or in other words, what does the child’s welfare require the court to do?

It used to be called the ‘disposal stage’ but it was soon noticed that this was an unpleasant way to refer to children’s proceedings. ‘Welfare stage’ is a much more appropriate way of signposting that the focus should now be on what the child needs.

Therefore, even if the court is satisfied a child has suffered significant harm, a care order and removal from the parents does not automatically follow. For example, if the parents have engaged with the LA and are working to change things for the better, the court may make no order or only a supervision order.

Or the court may make a child arrangements order (previously ‘residence order’) or Special Guardianship order in favour of another family member, which may mean the parents can carry on having direct contact with the children after the final hearing.

 

What does the court need to consider when looking at the ‘welfare stage’ ?

The fundamental principle behind the Children Act 1989 can be found in Part 1, section 1. This states that when the court is determining a question with regard to a child’s upbringing:

The child’s welfare shall be the paramount consideration

We need to unpick what is meant by that. Section 1(2) reminds the court of the principle of ‘no delay’ i.e there is an assumption that any delay in making a decision is likely to harm the child’s welfare. You can argue that ‘planned and purposeful’ delay could actually be a good thing for the child – for example, you need more time to finish assessments of family members who could care for him. But you will need to remember the impact of the new Public Law Outline which sets a strict 26 week timetable for care proceedings to finish.

Section 1(5) sets out the ‘no order principle’ – the court should only make an order if this would be better for the child than no order at all. This is in line with the principle of ‘least intervention’ and the requirements of Article 8 of the ECHR.

Section 1(3) is very important as this sets out the ‘welfare checklist’ which is a reminder to the Judge of all the things he or she needs to show have been considered in the judgment. If a Judge makes a decision about a case but can’t show how the welfare checklist was considered, this could make the judgement vulnerable to an appeal.

 

The Welfare Checklist under the Children Act 1989

  • the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding)
  • his physical, emotional and educational needs
  • the likely effect on him of any change in his circumstances
  • his age, sex, and background and any characteristics of his which the court considers relevant
  • any harm which he has suffered or is at risk of suffering
  • how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
  • the range of powers available to the court under this Act in the proceedings in question

 

The welfare checklist under the Adoption and Children Act 2002

When the court is considering placement or adoption orders, the court must also consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act

  • the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)
  • the child’s particular needs
  • the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person
  • the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant
  • any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering
  • the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including
    • the likelihood of any such relationship continuing and the value to the child of its doing so
    • the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs
    • the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

The warnings from Re B-S (Children) [2013]

The recent case of Re B-S (Children) [2013] contained stern warnings from the Court of Appeal about the importance of good clear analysis about what was in a child’s best interests, particularly when the court was thinking about endorsing a care plan that would lead to adoption. 

The key points of the judgment can be summarised as:

  • Adoption is the ‘last resort’ [para 22]
  • the starting point needed to be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
  • the least interventionist approach is to be preferred [para 23]
  • The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
  • There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option.[para 34]
  • The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
  • That the court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [ para 28]
  • The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]
  • The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of  all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e rejecting option A, then moving on to option B etc.

They said at paragraph 44 of the judgment:

“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”

The court also made it clear that proceedings could take longer than 26 weeks if more time was needed to resolve a case justly. See paragraph 49.

Suesspicious minds offers a good analogy to show us why  ‘linear evaluations’ of evidence can be so dangerous in this blog post  

 

A Day in the Life of a Family Solicitor

Here one legal aid family solicitor shares the timetable of her typical day

7.40am I start my journey to the office by train.

8.45am I arrive at the office and start the day by looking through my post and emails having a cup of tea. I answer as much as I can before the first client of the day….

10am   I see a new client for the first time. He is here to talk about social services’ involvement with his family. He is worried as they have applied to the court to have his child removed from his care. We talk about what has happened in the past and what the situation is now.  We consider whether there are any family or friends who can help. We discuss the court process and what happens next.

11.30am I receive a phone call from a Guardian at CAFCASS asking me to represent a child in care proceedings. I am emailed the papers and start reviewing them, analysing the information for the key issues: is the child at risk, what are the local authority’s proposals for the short and long term care of the child, are any assessments needed, next steps.

12pm I leave the office to travel by train to court for a hearing. I have my lunch whilst on the train.

12.50pm I arrive at court and meet the other professionals involved for the case; the solicitors for the parents and the Local Authority. Acting for the child in the case, I meet the guardian to take some up to date instructions.

1.45pm The professionals convene to discuss the case and to see if there is an agreed way forward today.  We consider: is an order agreed, is it agreed where the child will live, are contact arrangements agreed, is the timetable for the case and assessments agreed.

Whilst at court I keep an eye on my emails on my phone for any pressing matters which need attention.

3.30pm We present the case to the Judge for consideration. The Judge gives further direction to the case and makes a decision about matters which are not agreed.

4.15pm I start the journey back to the office.

5.10pm I arrive back at the office.  I check what has happened since I have been out. Make some phone calls.  I then start to draft an application for the instruction of an expert. I prepare my papers for court the next day.

6.45pm I start the journey home. Whilst on the train I think about my work for the next day and make a list.

8pm I arrive home

The danger of polarised positions

A failure to grasp the complex realities of child protection work.

Here is an interesting article from Ray Jones of Community Care who points out that the debate about child protection needs much more nuance than can be obtained from ‘headline grabbing simplicity’ about what social workers should be doing.

Read the article here.