Voluntary Care Arrangements: Section 20 of the Children Act 1989
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The Children Act 1989 is the leading source of child welfare law in England and Wales.
The Act explains that children cared for within the care system are ‘looked after’ children. And that there are two different groups of ‘looked after’ children:
- Children ‘looked after’ under a court order and for whom a local authority shares parental responsibility. They are looked after because a court has decided that is in their best interests.
- Children a local authority provides with ‘accommodation’ but does not share parental responsibility for. These children may have become looked after without any court scrutiny or oversight.
Section 20 of the Children Act 1989 contains the powers and duties relating to this second group of looked after children. Section 76 of the Social Services and Wellbeing (Wales) Act 2014 contains parallel powers and duties relating to children in Wales. Children in voluntary arrangements may be looked after in a range of placements. Examples include unrelated foster care, residential care, with foster carers who could go on to adopt them, or with wider family members.
Family Rights Group and section 20
Family Rights Group has made two significant interventions to protect the rights of children, parents and other family members where children come into care under voluntary arrangements.
The Knowledge Inquiry into Section 20 voluntary arrangements of children in care, 2017
In 2016 most children entered the care system under a section 20 voluntary arrangement. Whilst some were subsequently subject to a care order, over a quarter of the 70,440 children in care were subject to a voluntary arrangements.
Concerned about lack of focused guidance from government to practitioners and local authorities on the use of section 20, Family Rights Group launched a ‘Knowledge Inquiry’. The Inquiry aimed to examine the original intention behind section 20, to understand how voluntary arrangements were being used and what might need to change.
Guided by an expert panel of family members, academics, lawyers and social workers, the Inquiry invited contributions from young people, parents, kinship carers, foster carers, social workers, family support workers, lawyers, academics and others.
The Knowledge Inquiry: Findings
The final Inquiry report, Cooperation or coercion? Children coming into the care system under voluntary arrangements’ by Caroline Lynch was published in July 2017. It identified several areas of concern, including:
- Families often did not understand their rights and options when section 20 voluntary arrangements were first discussed.
- Many parents – particularly younger parents – described feeling pressured by practitioners to agreeing to their child entering or remaining in the care system under a voluntary arrangement.
- Practitioners faced pressure to use voluntary arrangements to avert the need to begin care proceedings or avoid kinship foster care arrangements.
- Parents and carers were often excluded from decision-making or information sharing about their child.
- Statutory guidance offered little assistance and direction about the meaning and application of ‘partnership’.
- Guidance was splintered across a patchwork of different statutory guidance, giving rise to wildly different experiences of voluntary arrangements.
- Kinship foster carers risked not being recognised as such, and instead were often told – incorrectly – they are caring for the child under a private arrangement (and thus neither they nor the child were entitled to support).
- Some authorities appeared to use voluntary arrangements to achieve placement of children in ‘foster for adoption’ foster care.
The Knowledge Inquiry: Recommendations
The report made recommendations in thirteen areas including:
- Government should issue statutory guidance on the use of voluntary arrangements. This should include guidance on the principles of ‘partnership’ working with families.
- Changes to the legal aid framework should be made to ensure families have access to free, independent legal advice to understand their rights and options when voluntary arrangements are proposed.
- Independent advocacy support should be provided to vulnerable parents, in particular young parents and disabled parents, wherever a section 20 arrangement is put in place.
- Government should amend the Children Act 1989 to prohibit the instigation of ‘foster for adoption’ placements for any children under section 20, unless a) care proceedings are already before the court, or b) the parent has given formal consent for such a placement via an independently witnessed procedure.
In 2018 Family Rights Group joined as an intervener in an appeal brought by parents who alleged that the London Borough of Hackney had breached their human rights when accommodating their child in the care system under section 20 Children Act 1989.
Our intervention drew heavily the findings of our Knowledge Inquiry, which identified significant variations in how section 20 was used by local authorities. Both the Knowledge Inquiry and Care Crisis Review recommended that Government provide statutory guidance on the use of voluntary arrangements, to promote good practice.
Although the Supreme Court dismissed the appeal, the judgment clarified the law, outlining nine principles that should be applied to the practice of Section 20:
In her concluding statement Lady Hale, then President of the Supreme Court said:
“Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.”
Family Rights Group welcomed the nine principles and Lady Hale’s concluding statement and encourages all local authorities to ensure their social work and legal staff have a good understanding of these.