Posted on | November 22, 2011 | 31 Comments
…I shall mostly be complaining about section 20 of the Children Act.
It’s a well intentioned provision, but often exploited and misused in ways which make my blood boil.
s20, for those who don’t know, is a provision which places a duty upon Local Authorities to accommodate children who have no available parent or who are abandoned or where “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.”
Note that it is intended to ensure that waifs and strays and orphans are not left without accommodation by creating an obligation on a Local Authority to step in. In practice however, s20 operates more like a power than a duty. For why? Let me tell you how it works.
A Local Authority thinks children are at risk, they form the view that they need to remove the children from home in order to protect them. They can do this one of two ways: issue care proceedings, paying substantial issue and legal fees along the way, and triggering onerous duties in respect of evidence gathering and presentation; OR persuade the parents to agree to voluntary accommodation under s20, avoiding all that nasty paperwork and cost – oh, and avoiding the scrutiny and the chance that the plan will be successfully challenged.
Because you see if a child is accommodated under s20 instead of issuing care proceedings there is no court scrutiny. There is no Guardian appointed to represent the child, to independently assess her needs and wishes, or to offer a potentially contrary view about what is best for the child. There are no lawyers to stick their awkward oars in. No hearing. No bench or Judge. No testing of the evidence or analysis or the judgment. No exposure of any gap in the evidence or of any lack of analysis, or weighing of contrary opinions. And – and this is the cherry on top – the Local Authority can place a child with a scarcely assessed grandparent or aunty without going to the cost of paying for an expensive foster placement or residential accommodation. Win win…Right?
It’s very common on first hearings in care proceedings for there to be a difference of opinion as to whether or not a child already removed has been truly accommodated “by consent”. The parents often express that they had no choice – in essence they had to agree to (short term) accommodation in order to avoid court proceedings. They often swear that they were told the children would be PPO’d by the police if they didn’t agree – that may be a correct summary of what is the likely reality but how is it consent in any meaningful sense? (PPO = Police Protection Order) As night follows day care proceedings often follow in any event, but in truth however sensitively it is approached by social workers attempting to obtain s20, parents don’t have any choice, and at moments of family crisis when asked to make such a decision, have no access to the legal advice about the significance of their agreement to accommodation. Parents often describe the use of s20 as blackmail, and it’s a tough argument to respond to: the reality is that the threat of care proceedings or of longer term removal is held over them like the sword of damocles. If they agree it’s a fait accompli that makes the first hearing in care proceedings more difficult. If they don’t it’s a failure to prioritise the needs of the child or a failure to cooperate with professionals.
S20 seems also to be increasingly commonly to be used as a safeguarding device in cases where a Local Authority has set its face against issue of proceedings under s31. It goes something like this: child suffers apparent non accidental injury. Caring parent / parents agree to accommodation for the short term whilst the injuries are investigated, often with a grandparent or other safe adult. Days stretch into weeks, weeks into months. Social workers and Child Protection Conferences recommend the issue of private law proceedings by the non-resident parent / any vaguely known family member not in the pool. And Bingo! Child is “safeguarded” by virtue of the s20 accommodation and the court scrutiny triggered by s8 proceedings. Why bother issuing those costly care proceedings, where the Local Authority would have to run the case, gather and assess the medical evidence, seek findings, assess risk…Let the court, the family, the Legal Services Commission bear the responsibility and the cost. The LA can sit back and wait for an outcome, not even under any pressure from lawyers, guardians or judges to assess, to put in services, to attempt to rehabilitate. s20 is a recipe for drift.
It’s wrong. It’s an abnegation of a Local Authorities’ responsibility to safeguard, to place before the court cases where there is a risk of significant harm. I can think of two cases I am currently dealing with where the Local Authority has declined to issue care proceedings or to become involved in private law proceedings where there are NAI and where they consider that threshold is met, where there are intervenors, independent medical evidence will be required (and in one case both parties are privately paying where they would be in receipt of public funding if the LA would issue). In those cases the children are separated from their primary carer for month upon month, with the parents powerless to progress the case, to challenge the removal. In these cases I ask: “What will happen if the parent wishes to remove the child?” Answer? “We’ll EPO” (Seek an emergency protection order). Hmmm.
On days when I am feeling ornery (that’s most days) I want to advise parents like these to give notice of withdrawal of their consent to accommodation. So we can do it properly. So the LA can stop passing the buck – so it can take responsibility for the cost, the evidence, the analysis. Nobody wants their clients to be the subject of care proceedings, it’s what we all want to head off at the pass. And whether or not care proceedings are issued nobody wants an ICO (interim care order) in place where consent could be properly obtained to a sensible plan for short, medium or even long term care elsewhere. But in cases where the justification for removal is finely balanced what I want for my clients is for the state’s exercise of powers of removal to be properly accountable. That is what the drafstmen and women of The Children Act 1989 intended; it is the purpose behind the system of interim care orders, the sharing of parental responsibility and crucially of the threshold provisions in s31 CA 1989. They are to protect families against the excesses of the state. s20 is the backdoor to removal. A door wide open.
You might think from reading the Norgrove report that I am forgetting the Independent Reviewing Officers (IROs) who should be speaking up in the CPCs, kicking butt. I haven’t forgotten them. But I’m sanguine. That part of the system is pretty dysfunctional too, for reasons which I will save for another post.
So, Ladies and Gentlemen. That is s20. In practise less of a duty than a power. An unregulated power, which enables Local Authorities to act without scrutiny or challenge and which can, when wielded inappropriately, interfere with the Article 6 and Article 8 rights of parents and children.
I shall now get back in my box and await a multitude of comments telling me why all the above is garbage.