The future of section 20 – the impact of the recent case of Re N (Children) (Adoption: Jurisdiction) and comments by the President of the Family Division

The use of section 20 of the Children Act 1989, the provision for a child to be voluntarily and accommodated by a local authority, with the consent of those with parental responsibility, has always been a contentious issue. The Courts, have offered guidance and criticism of the use (and misuse) of s20 with .the most recent and pertinent Judgement being given by the President of the Family Division, in the case of Re N (Children) [2015] EWCA Civ 1112 (paragraphs to 154 to 171).

The President refers to the local authority’s use of section 20 in this case as “a misuse by the local authority of its statutory powers.”

The children in the case of Re N had been in foster care since May 2013; 8 months prior to the local authority commenced proceedings. This is unfortunately not unusual; in my own experience, ‘voluntary accommodation’ of children under this section can be for months; sometimes even a year or more.

Section 20 is, when used correctly, a valuable resource and useful short-term measure sometimes before or until proceedings can properly be issued with consideration being given to how the child’s safety and wellbeing can be protected without court intervention. However, as this case shows, too often it is used with little regard for what it actually means for a child and their family.

Under section 20 there is no representation of or independent input regarding the best interest of the child concerned and it is the local authority, not the court overseeing the planning for the child and its future. Where local authorities have great resource pressures, it may seem a favourable way to deal with matters, however is this really fair on the child? It can lead to drift and delay in necessary arrangements being made for the child with an uncertain future.

In my own experience, a parent will sometimes agree to section 20 accommodation of their child due to a ‘fear’ of court proceedings being issued if they do not. This is wrong. A local authority can not use its powers to accommodate a child if a parent objects. The consent obtained must be ‘genuine consent’ and not brought about ‘in the face of asserted state authority’. The social worker must ensure the parent has the capacity to consent and that their consent is given after the whole situation, exactly what they are agreeing to, possible consequences and the range of options available to them have been fully explained to and understood by that parent. The agreement must then be put in writing, and signed by all parents and professionals involved.

Ideally, parents should have access to independent legal advice at the earliest opportunity.

The use of section 20 is often raised when a family is experiencing difficulties and they need support and assistance to address a particular problem; often a time of great stress about their own circumstances. It can allow a family to work positively with social services to ensure their child is safe. However, when used incorrectly such accommodation of a child amounts to little more than a local authority taking advantage of, often vulnerable, parents.

There are times when use of this section is wholly appropriate however the recent comments and guidance from the court makes it clear that irresponsible use of this provision should not be tolerated and that some local authorities need to improve their current practices.