SCOPE OF THIS CHAPTER
This procedure applies to all decisions to Look After children.
It should be read in conjunction with the Care and Supervision Proceedings and the Public Law Outline Procedure.
A child who is dealt with by a court by way of a Remand to Local Authority Accommodation or a Remand to Youth Detention Accommodation will be a Looked After Child. The care planning requirement will be amended in relation to such children - see Remands to Local Authority Accommodation or to Youth Detention Accommodation Procedure.
This chapter was amended in March 2018 to reflect the outcome of a decision of the Court of Appeal (2017) with respect to the consent requirement under s.20 of the Children Act 1989. The Court recognised that the word 'consent' does not appear in Section 20, but went on to describe the guidance given in previous case law as 'good practice guidance', emphasising its judgment should not be taken to alter the content and effect of these (see Section 2.3.1, Obtaining Parental Consent).
Further, in April 2018, Section 3.1, The Care Plan – Contents has also been amended to reflect the additional ‘permanence provisions’ of the Care Plan (s. 8 Children and Social Work Act 2017 amends section 31(3B) Children Act 1989) which a court is required to consider when deciding whether to make a Care Order.
- Underlying Principles
- Decision to Look After a Child
- The Care Plan
- Timescales for Completion of Care Plan
- Approval of the Care Plan
- Circulation of the Care Plan
- Other Required Plans, Documentation and Actions
1. Underlying Principles
There are three underlying principles, governing the admission of children to public care:
- Where possible, all children should be placed with their immediate or extended family;
- With the exception of children who have suffered significant harm, or who are likely to suffer significant harm, support services will be provided as an alternative to public care;
- All children entering the public care system have a right to a future which includes a permanent placement which is legally secure. In general terms, this entails children/young people having one of the following objectives for their overall Care Plan:
2. Decision to Look After a Child
2.1 The Decision
A child may not come into care without the express permission of a Service Director or Head of Service. Please also see Guidance on the Admission of Children to Care, Placement Planning and Review.
Outside office hours, the Emergency Duty Team can make the decision to Look After a child. This decision must be discussed with, and agreed by, the Manager on Call.
Any decision to look after a child made outside office hours will be communicated by fax or email to the relevant team by the beginning of the next working day.
2.2 Considerations before a Decision to Look After is made
The decision to look after a child will only be made where those making the decision are satisfied that:
- Suitable appropriate alternatives have been fully considered;
- Appropriate consideration has been given to the necessity of Accommodation, the purpose and nature of the proposed placement;
- Whether the Accommodation provided should be via a Court Order or undertaken with Parental Consent using section 20 (1989 Act). In considering this the local authority should:
- Appropriate consultation has taken place;
- However, where the circumstances constitute an emergency, opportunities for consultation may be limited e.g. where a parent/carer is not available.
Before a decision is made to look after a child, consideration must be given to making arrangements with other extended family members or friends who might be prepared to care for the child without the need for the child to come into care. In these circumstances, care must be taken where the local authority has been involved in the arrangements for the child to be cared for by relatives; the child may be viewed as within the definition of Looked After and a legal view may be helpful to clarify the status of the child and the placement. In these circumstances, if the child is regarded as looked after and placed with a relative or friend, the Placements with Connected Persons Procedure.
The following judicial guidance has been given to social workers when seeking consent from a parent for accommodation under Section 20:
- Every parent has the right, if they have capacity, to exercise their Parental Responsibility to consent to their child being Accommodated under section 20 and every local authority has the power under Section 20(4) to accommodate that child, provided that it is consistent with their welfare;
- Every social worker has a personal duty to be satisfied that the person giving consent does not lack the capacity to do so;
- The social worker must consider the questions raised by Section 3 Mental Health Act 2005 in order to determine whether the person giving the Section 20 consent has the requisite capacity;
- If the social worker has doubts about the capacity, he/she should make no further attempts to obtain consent at that time and should take advice from their team manager;
- If the social worker is satisfied that the person whose consent is sought does not lack capacity, he/she must then be satisfied that the person consenting is fully informed. This will include having an understanding of the consequences of consent, the range of choices available, the consequences of refusal to give consent and all of the facts and issues material to the giving of consent. If the social worker is not satisfied to the answers to any of these points, they should take advice from their team manager and/or legal adviser;
- The social worker must also be satisfied that the removal of the child is both fair and proportionate;
- A Section 20 agreement should not be obtained where a court order would not have been granted.
N.B. Any arrangements whereby the child is not regarded as Looked After would have to be agreed with the parent or a person with Parental Responsibility, and the social worker must be satisfied that such an arrangement is sufficiently secure to meet the child's needs and is supported by a Child in Need Plan.
If no such arrangement can be identified or such an arrangement would not meet the child's needs, the child's social worker, with his or her team manager, should consider:
- The child's immediate placement needs - including the child's views, the views of the parents, those with Parental Responsibility and any other person whose wishes and feelings the authority consider to be relevant - and whether a placement with a Connected Person may be possible;
- The timescales for the child's placement;
- A date for the child to return home or when the decision will be reviewed;
- The actions of support and work to be included in the Care Plan to enable the necessary change for the child to return home wherever possible;
- The obtaining of written consent to look after the child and consent to medical care;
- Any impact on educational arrangements;
- The contact arrangements with birth parents, siblings, extended family and friends.
Where it is considered that Care Proceedings should be initiated to secure the child's placement, see also Care and Supervision Proceedings and the Public Law Outline Procedure.
N.B. Any decision that a child should be the subject of Care Proceedings should have regard to the requirements of the Public Law Outline, and in particular the Pre-Proceedings Checklist.
All decisions made should be recorded on the child's electronic record, including the reasons for reaching the decision (see also Recording Parental Consent).
2.3 Section 20 Accommodation
There are many scenarios in which section 20 is used positively and these include situations of family support (e.g. Short Breaks) and, where parents are unable to care for children, for whatever reason, and there are no agreed alternative family or friends to undertake this.
In Accommodating a child under section 20, it must always be born in mind that the local authority does not have Parental Responsibility; only the parents/ those carers with Parental Responsibility can make decisions for the child. The parent/carer can remove the child from Accommodation at any time and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court (see also Ceasing to Look After a Child Procedure)
The parents/carers should be advised of any changes in the child's circumstances whilst the child is in local authority care.
It is therefore important to ensure that the parents/carers have full information about their continuing responsibilities as well as those of the local authority and that this is enshrined in the Care Plan and a written agreement.
2.3.1 Obtaining Parental Consent
A recent Court of Appeal hearing (L B Hackney v Williams & Anor  EWCA Civ 26) confirmed that 'Consent' under any of the Section 20 provisions was not a statutory requirement as such. It stated that the local authority has a duty to provide accommodation for children, (subject to a parent being able to legally object and / or remove) where the person who had been caring for them was 'prevented (whether or not permanently and for whatever reason) from providing them with suitable accommodation or care'.
This, therefore, supports the local authority in its duties towards children on those occasions where 'parental consent' cannot, for a variety of reasons, be obtained at the time of a child's accommodation or parents cannot effect care of the child themselves.Nevertheless, with regard to previous court judgments on 'consent', it reflected that they were, 'in short, good practice guidance and a description of the process that the family court expects to be followed'.
Therefore, obtaining Parental Consent as a matter of good practice remains an essential part of Accommodating a child under this part of the 1989 Act. A number of court decisions have been particularly critical of local authorities' actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.
Section 20 agreements are not valid unless the parent giving consent has capacity to do so, (in cases where the father also has Parental Responsibility, the consent of both parents should be sought). The consent must be properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or acquiescence - it is a positive action.
Detailed guidance on the obtaining of parental consent was given by the High Court in the case of Re CA (A Baby) (2012):
- The social worker must first be satisfied that the parent giving consent does not lack the mental Capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if (s)he is unable:
- To understand the information relevant to the decision;
- To retain that information;
- To use or weigh that information as part of the process of making the decision; or
- To communicate his/her decision.
- If there is doubt about Capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
- If satisfied that the parent has Capacity, the social worker must be satisfied that the consent is fully informed:
- Does the parent fully understand the consequences of giving such a consent?
- Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
- Is the parent in possession of all the facts and issues material to the giving of consent?
- If not satisfied that the consent if fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
- If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:
- What is the current physical and psychological state of the parent?
- If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
- Is it necessary for the safety of the child for her to be removed at this time?
- Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more 'able' than in fact they are. Equally, within the context of 'assessing capacity', social workers should approach with great care relying on section 20 agreements from mothers after giving birth, (especially where there is no immediate danger to the child and where probably no order would be made).
Where there is any concern about a parent / carer's capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice (1). Note: In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, 'every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others) to be satisfied that the person giving consent does not lack the capacity to do so'.
(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.
2.3.2 Recording Parental Consent
In Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112 good practice the President of the Family Division, Sir James Munby sets out his view in respect of good practice in the recording of parental consent to a Section 20 agreement:
- 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.
- The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand.
- The written document should spell out, following the language of section 20(8), that the parent can 'remove the child' from the LA accommodation 'at any time'.
- The written document should not seek to impose any fetters on the exercise of the parent's right under s.20(8). 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'.
2.3.3 The use of Section 20 prior to Court Proceedings
Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the Courts have strongly advised that this should not lead to an unnecessary delay in the issuing of proceedings and cases must not be allowed to drift, (including those cases when children are placed with relatives under a Section 20 agreement). Proceedings still need to be issued in a timely fashion. The ADCS/Cafcass Practice Guidance for the Use of Section 20 seeks to clarify good practice in this area.
Even where a parent/carer's legal advisor has established an agreement regarding the use of Section 20 prior to either issuing Proceedings or progressing a timely plan and timetable of work for further assessment, these should be carefully adhered to by all parties. Any plan should be based on the child's welfare needs and avoid delay.
All such agreements should be undertaken in conjunction with the local authority's Legal Services and include a clear (written) agreement and Care Plan with the outcome considered at a Looked After Children's Review to which the parents have been invited.
Where it is highly likely that proceedings will be required to determine a factual issue, or where complex medical evidence may become involved it is better for proceedings to be issued promptly allowing the court to manage the timetable of the case and the parents to be able to access effective legal advice.
2.4 Actions required after a Decision to Look After is made
In relation to children where Care Proceedings are being considered to secure the child's placement, see also Care and Supervision Proceedings and the Public Law Outline Procedure.
In all cases, if it is agreed that the child should become Looked After, the child's social worker will draw up a draft Care Plan (see Section 3, The Care Plan) with clear timescales and a statement as to whether the child's needs would best be met in a family placement or residential care.
If a foster or residential placement is required, the relevant procedure to be followed, including the need to hold a Placement Planning Meeting, will be found in the Placements in Foster Care Procedure or the Placements in Residential Care Procedure.
Where a decision is made to pursue a Looked After placement with a relative, friend or other (Connected Person or the child's placement with a relative or friend is judged to be a Looked After placement), an assessment of the relative/friend must be undertaken, prior to the child being placed. In exceptional circumstances, only where the Connected Person is known to the child, and where assessment of the child indicates a need for such a placement, temporary approval may be given for up to 16 weeks, whilst a foster carer assessment is completed. See Placements with Connected Persons.
For secure placements, see Placements in Secure Accommodation on Welfare Grounds Procedure.
For placements outside the local authority area, see Out of Area Placements Procedure.
In the case of siblings, wherever it is in the best interests of each individual child, they should be placed together. Where they cannot be placed together, they must be supported to understand why they cannot live together, and there should be robust plans for contact between them, so far as this is consistent with their welfare.
3. The Care Plan
3.1 The Care Plan - Contents
In all circumstances where a decision is made to look after a child, the child must have a Care Plan completed by the social worker and signed by the relevant team manager, the contents of which include:
- The child's Placement Plan (setting out why the placement was chosen and how the placement will contribute to meeting the child's needs);
- The child's Permanence Plan (setting out the long term plans for the child's upbringing including timescales);
- The Pathway Plan (where appropriate, for young people leaving care);
- The child's Health Plan;
- The child's Personal Education Plan (PEP);
- The contingency plan;
- The date of the child's first Looked After Review (within 20 working days);
- The name of the Independent Reviewing Officer.
3.1.1 The Care Plan Where the Matter is Before the Court
In addition to the above, a Care Plan should reflect that the court is required under s. 8 Children and Social Work Act 2017 which amends section 31(3B) Children Act 1989 to consider the ‘permanence provisions’ of the Care Plan for the child:
- The provisions setting out the long-term plan for the upbringing of the child - to live with a parent/family member/family friend; adoption; or other long-term care, and,
- The plan’s provisions in relation to any of the following:
- The impact on the child concerned of any harm that he or she suffered or was likely to suffer;
- The current and future needs of the child (including needs arising out of that impact);
- The way in which the long-term plan for the upbringing of the child would meet those current and future needs.
3.2 The Care Plan - Process
Where there is no recent Social Care Single Assessment in relation to the child, the Care Plan must provide for a Social Care Single Assessment to be completed.
The child's social worker is responsible for drawing up and updating the Care Plan in consultation with:
- The child;
- The child's parents and those with Parental Responsibility;
- Anyone who is not a parent but has been caring for or looking after the child;
- Other members of the child's family network who are significant to the child;
- The child's school or the education service;
- The relevant health trust;
- The Youth Offending Service, if the child is known to them;
- Any other agency involved with the child's care.
The social worker should ensure that the child, those with Parental Responsibility and the carer understand the Care Plan and their role in contributing to its implementation.
One of the key functions of the Care Plan is to ensure that each child has a Permanence Plan by the time of the second Looked After Review. The Care Plan is subject to scrutiny at each Looked After Review - see Looked After Review Procedure.
The Care Plan should include the arrangements made to meet the child's needs in relation to his or her:
- Emotional and behavioural development;
- The child's identity in relation to religious persuasion, racial origin and cultural and linguistic background;
- Family and social relationships; arrangements for contact with sibling(s) accommodated by the authority or another local authority; details of any Section 8 Order, in relation to a Looked After Child; details of any order in relation to contact with a child in care; arrangements for contact with parents/anyone with Parental Responsibility/ any other Connected Person; arrangements for the appointment of an Independent Visitor for a Looked After Child;
- Social presentation;
- Self-care skills.
4. Timescales for Completion
A Care Plan must be prepared prior to a child's first placement, or, if it is not practicable to do so, within 10 working days of the child's first placement.
5. Approval of the Care Plan
Any final Care Plan taken before the Court within Care Proceedings must be developed and agreed at a Permanence Planning Meeting, agreed at a LAC Review and endorsed and signed by a Designated Manager (Care Plan). Any change to the final Care Plan which may be made as a result of decisions in Court should be immediately added to the document on the child's file and a copy sent to the IRO. Any later difficulty in implementing this plan must be referred to the IRO and legal advice sought before any change is made.
All other Care Plans must be endorsed and signed by the social worker's team manager.
6. Circulation of Care Plan
The Care Plan must be circulated to the following people:
- The child;
- The parent(s);
- Providers/Carers - if no Care Plan has been drawn up prior to the child's placement, the social worker must ensure that the providers/carers understand the key objectives of the plan, and how the placement will help achieve these objectives;
- The Fostering Service, where the child is in foster care. N.B. The Care Plan should be filed in the confidential section of the foster carer's file and returned to the child's social worker when the placement ends;
- The child's Independent Reviewing Officer.
7. Other Required Plans, Documentation and Actions
7.1 Placement Plan
The child must have a Placement Plan at the time of the placement (this includes the parent's consent to the placement (if applicable) and the child's medical treatment). It should be completed as far as possible before the child is placed or, if not reasonably practicable, within 5 working days of the start of the placement.
The information to be included in the Placement Plan will include:
- How on a day-to-day basis the child will be cared for and the child's welfare will be safeguarded and promoted by the appropriate person;
- Any arrangements for contact between the child and parents/anyone with Parental Responsibility/any other connected person, including, if appropriate, reasons why contact is not reasonably practicable or not consistent with the child's welfare; details of any Child Arrangements Order or Contact Order (under Section 8 or 34 of the Children Act 1989); the arrangements for notifying any changes in contact arrangements;
- Arrangements for the child's health (physical, emotional and mental) and dental care, including the name and address of registered medical and dental practitioners; arrangements for giving/withholding consent to medical/dental examination/treatment;
- Arrangements for the child's education and training, including the name and address of the child's school/other educational institution/provider and designated teacher; the Local Authority maintaining any Education, Health or Care Plan;
- The arrangements for and frequency of visits by the child's social worker; and for advice, support and assistance between visits;
- If an Independent Visitor is appointed, the arrangements for them to visit the child;
- The circumstances in which the placement may be terminated;
- The name and contact details of the Independent Reviewing Officer, the Independent Visitor if one is appointed, the social worker who will be visiting the child, and the Personal Adviser for an Eligible Young Person.
The Placement Plan will be recorded on the Placement Information Record on the child's electronic database.
Copies of the Placement Information Record must be provided to the child (if of sufficient age and understanding), the parents and must be handed to the residential staff/carers before the child is placed. Where a child is placed in an in-house foster placement, one copy should also be sent to the Fostering Team - to be kept in the confidential section of the foster carer's file and returned at the end of the placement.At the time of the placement, the residential staff/carers should also be given any additional information about details of the child's day to day needs which are not covered by the Placement Information Record but are important to ensure that the staff/carers are in the best possible position to help the child settle in the new placement, for example any particular fears at night-time or the child's favourite toys.
Whenever a new placement is made or the child moves placement, the child's Chronology should be updated.
7.3 Arrangement of first Looked After Review
The child's social worker must notify the Independent Review Service of the placement within two working days of the child becoming looked after, so that the necessary arrangements for the allocation of an Independent Reviewing Officer (IRO) (within 5 working days of the child becoming looked after wherever possible) and the child's first Looked After Review can be made. See the Looked After Review Procedure for the procedures relating to reviews, including the responsibility for invitations to reviews.
7.4 Health Care
Before or at the time of the placement, the social worker should request the parent to transfer the child's personal child health record. Where this is lost or not available, the social worker should ask for a replacement to be issued and ask the Designated Nurse for LAC to assist with providing any information to complete the record.
The social worker should also contact the Designated Paediatrician or Nurse for LAC to arrange a Health Care Assessment before the placement or, if not reasonably practicable before the first Looked After Review (i.e. within 20 working days of the placement) so that the completion of a Health Care Plan is in time for the child's first Looked After Review. See Health Care Assessments and Plans Procedure.
In addition, the social worker should inform the carer of any medication the child is taking, and ensure that a supply of medication is provided in a clearly labelled bottle with the child's name, required dosage and the time the medication is to be given.
7.5 Personal Education Plan (PEP)
The social worker should also liaise with the Designated Teacher so that a Personal Education Plan (PEP) can be completed as part of the Care Plan before the child becomes looked after (or within 10 working days in the case of an emergency placement) and be available in time for the first Looked After Review. See Education of Looked After Children Procedure.
7.6 Provision of information
The child's social worker must provide the child and parents with written information about the placement.
The child and parents must also be provided with information about the complaints process and the availability of advocates.
7.7 Changes in Legal Status
Any changes in a child's legal status as a result of court proceedings must be recorded on the child's electronic record.