STOP PRESS : Misuse and abuse of section 20. (Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112)

Sadly we are all too well aware of the delays that the misuse of section 20 can cause.  This mechanism for accommodating children means that as long as their immediate welfare needs are safeguarded they go to the bottom of the list when it comes to local authorities issuing proceedings and getting on with any assessments.  Months can go by with children languishing in foster placements without any attempts being made to return them to the care of their parents.  

Parents in this situation rarely have an understanding of their rights to withdraw consent and when they do seek advice and withdraw their consent they are usually criticised for it.  However, withdrawing consent or threatening to withdraw consent is often the only way to force the hand of the local authority to issue proceedings and for there to be proper oversight of the issues.

Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 the President has again looked at the use or misuse of section 20 by local authorities.  Whilst it is clear that “Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings,” it is not to be used, as it currently is, as a holding position for lengthy periods of time before proceedings are commenced.

The President sets out his view in respect of good practice at para 170.

“It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above:

i)  Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

ii)  The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

iii)  The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

iv)  The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).       

v)  Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

171. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.”

Practitioners beware!!!  On behalf of parents we should no longer be agreeing to fetters on their right to withdraw consent to section 20. We should no longer be offering a period of notice in writing before the parents can withdraw consent.  Such actions are likely unlawful.