SCOPE OF THIS CHAPTER
This procedure details the Department's approach to the accommodation of children by voluntary agreement. It outlines the policy and practice issues underpinning the provision of this service. It clarifies the legal basis of such an arrangement, the circumstances when it can be used and the decision making processes to be followed.
This chapter is new, and was added to the procedures manual in May 2016.
- Departmental Policy
- The Legal Framework
- How the provision of accommodation through voluntary agreement can be used to promote the welfare of children and their families
- Processes: Assessment and Decision-Making
- Process: Planning
- Section 20 Accommodation
1. Departmental Policy
Derby City Council's first priority in relation to children is to work in partnership with parents, so that children can grow up whenever possible within their own families. We have a range of services available through our Early Intervention arrangements to prevent admission to care, or to ensure that, as far as possible, such admissions are brief and part of a planned programme.
We will therefore use the provisions of the Children Act to accommodate children through voluntary agreement with them and their families only when assessment indicates that this is in their best interests, and that no other action is appropriate.
When children are accommodated by voluntary agreement, this will usually be because it provides the best way of working to support the continuing care of that child by his own family in the long term. We will continue to seek to work in partnership with the families of accommodated children to safeguard and promote the welfare of those children.
Equally we are aware of the potential damage to young people who "drift" in care. It is therefore departmental policy that, for any child unable to return home, a permanency plan is made at the four month review.
All children accommodated under Section 20 should be presented at the next Gateway Panel.
2. The Legal Framework
2.1 Legislation and Guidance
2.2 Detail of Statutory Provisions
The legal basis for the provision of accommodation through voluntary agreement is contained in the Children Act 1989 as follows:
A local authority must provide accommodation to a child if
There is no person who has parental responsibility for him;
He is lost or abandoned;
The person who has been caring for him is prevented (either permanently or temporarily) from providing suitable accommodation or care. (CA 1989, Section 20(1))
A local authority must consider, where possible, the wishes and feelings of the child, his parents or any person with parental responsibility, and any other person deemed relevant, before providing accommodation. (CA 1989 Section 20(6), Section 22(4)(5))
A local authority must consider the child's race, religion, culture and language before providing accommodation. (CA 1989 Section 22(5))
A local authority must not provide accommodation for a child under 16 if any person with parental responsibility objects and wishes to provide accommodation. (CA 1989 Section 20(7))
A local authority may provide accommodation for any child in their area if it would promote and safeguard their welfare. (CA 1989 Section 20(4))
A local authority may provide accommodation for a young person over 16 at their own request even where a parent or person with parental responsibility objects. (CA 1989 Section 20(11))
A local authority does not acquire parental responsibility when accommodation is provided to a child under voluntary agreement. This is retained by the parents. (CA 1989 Section 20)
A person holding parental responsibility can terminate an arrangement for providing accommodation at any time without notice. (CA 1989 Section 20(8))
Accommodation can consist of a single episode or a series of episodes in a package of short breaks (respite care). All children looked after for more than 24 hours are said to be accommodated. (CA 1989, Section 22(2)
The provision of accommodation through voluntary agreement must be based on a written agreement between the local authority and the parents or the young person himself where he is over 16 and the parent objects. (CA 1989 Regulations, V4 para2.19)
3. How the provision of accommodation through voluntary agreement can be used to promote the welfare of children and their families
The provision of accommodation through voluntary agreement is part of a range of services provided by the Council and its partner agencies to help children in need and to support families in the care of their children.
These services are underpinned by the guiding principles of the Children Act, 1989:the paramountcy of the child's welfare, partnership in practice with children and their families, respect for racial, religious, cultural and linguistic diversity.
These services are informed by professional knowledge, experience and research. We know that a child is usually best cared for in his own family. It is clear that in a number of ways children in public care do less well than children growing up in their own families. We have learned that an imaginative and participatory approach to working with families can generate a range of alternatives to admission to care. We should take a broad view of the nature of a "family" because extended family members can often contribute helpfully to the arrangements that are made for children.
There will though be circumstances where the provision of accommodation through voluntary agreement is the best way of helping a child and his family. In these instances it is important that the arrangement be seen primarily as a service supporting the continuing care of a child by his family and promoting the quickest possible return to that family.
Where a child is to be admitted to the public care, accommodation by voluntary agreement must always be considered before any action involving the courts is taken. This is likely to provide the best basis for a partnership arrangement with parents.
Where accommodation by voluntary agreement is the chosen course of action, this must always be on the assessed best interests of the child, not for reasons of operational convenience.
Where a child is accommodated by voluntary agreement, the parents and child must be appropriately involved in that decision and advised of other options.
The social worker is responsible for ensuring that the child, if age appropriate, his/her parents and any other relevant person are actively involved in the formulation of the plan, and have a copy of it. The plan and the Placement Agreement constitute the written agreement which must underpin the provision of accommodation by voluntary agreement.
Following the accommodation of a child, the continuing involvement of their parents and wider families must be actively promoted. This applies equally to older children.
When children are accommodated they must be helped to make informed choices about their lives, by being given information in ways that they can understand, taking account of their age, language and communication skills. Any particular needs of children with disabilities must be considered and met.
4. Processes: Assessment and Decision-Making
A decision to provide accommodation through voluntary agreement will only be taken following an assessment. Guidance on assessments is provided in detail in a separate procedure. However, an assessment in relation to the possible provision of accommodation will always include and detail the following:
- The basic information needed to complete Basic Information Sheet for Carers;
- The needs of the child including his/her identity, safety, security, development, relationships, health and education;
- The nature of the difficulties the family are experiencing;
- A brief record of the contact between the family and statutory agencies;
- Those alternatives to accommodation which have been used;
- Those alternatives to accommodation which have been considered but not used;
- How wider family members could usefully be involved;
- The wishes of the child, the parents and any other persons significantly involved;
- Any factors suggesting urgent action is needed;
- Confirmation that Ealing is the responsible authority.
The social worker is responsible for making the assessment and a proposal for placement, recording this on the case file and presenting it to the Team Manager.
There will be occasions when a social worker considers a matter urgent and the Team Manager is not available. The social worker is responsible for presenting the matter to the Duty Manager.
The Team Manager or Duty Manager is responsible for deciding whether or not to refer the matter to the Deputy Head of Service who can under exceptional circumstances agree accommodation. This decision MUST be ratified by the next available Gateway panel.
The DHOS will record the rationale for that decision on the child's case file.
The social worker and manager are responsible for presenting the case to.Gateway panel and will ensure that a Single Assessment, chronology and genogram are made available to that panel at the required deadline.
5. Process: Planning
Looking after a child by voluntary agreement does not have the pressures of court processes and can result in children 'drifting' in care. This must be explicitly recognised and addressed in care planning for the child.
When we look after children by voluntary agreement, it is crucially important that this is approached as part of a continuing partnership with the child and his/her family. It should be viewed as an opportunity for that child, in his/her particular circumstances, to promote and strengthen his/her identity and self esteem. It should never be presented to the child as a parental failure.
6. Section 20 Accommodation
There are many scenarios in which section 20 is used positively and these include situations of family support (eg. Short Breaks Procedure) 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.
6.1 Obtaining Parental Consent
Obtaining Parental Consent is a crucial 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 needs to 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'.
Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.
6.2 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'.
The Derby City process now includes a section 20 agreement form to be signed by parents at the point of accommodation. See also: Information for Parents about the council looking after children under Section 20 of the Children Act 1989.
6.3 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.
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.
When considering the accommodation of a 16-18 year old young person, the Local Authority has a separate process which also involves the Housing department. See Derby City's Joint Housing Protocol for 16 and 17 Year Olds) This also includes a leaflet which is discussed with and given to the young person, and this outlines the choice to be made around becoming a Looked After Child.