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Voluntary Care Arrangements: Section 20 of the Children Act 1989
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.
The Knowledge Inquiry Report
Cooperation or coercion? Children coming into the care system under voluntary arrangements
DownloadKey legal judgment: What the Supreme Court has said about voluntary arrangements
The Case
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:
Parental Responsibility
“Firstly, that the starting point must be parental responsibility…it encompasses all the rights of a parent. The most obvious and fundamental of these is the right to look after and bring up one’s own children…no local authority has the right or power to remove a child from a parent who is looking after the child and wants to go on doing so without a court order…
Parental Consent
“Secondly, it may be confusing to talk of parent “consent” to the removal (or accommodation of her child). If a parent does agree to this, she is simply delegating the exercise of her parental responsibility for the time being to the local authority. Any such delegation must be real and voluntary…
Information
“Thirdly, removing a child from the care of a parent is very different from stepping into the breach when a parent is not looking after her child…but…in such cases, as a matter of good practice, local authorities should give parents clear information about what they have done and what the parents’ rights are…Parents should also be informed of the local authority’s own responsibilities…
Delegation of parental responsibility
“Fourthly, parents may ask the local authority to accommodate a child, as part of the service they provide for children in need. If the circumstances fall within section 20(1), there is a duty to accommodate the child. If they fall within section 20(4), there is the power to do so. Once again, this operates as delegation of the exercise of parental responsibility for the time being…
Parental objection
Fifthly, … the authority cannot accommodate a child if a parent with parental responsibility who is willing and able to accommodate the child herself or arrange for someone else to do so objects to the local authority doing so … If the local authority considers the proposed arrangement, not merely unsuitable, but likely to cause the child significant harm, they should apply for an emergency protection order.
Parental removal
“Sixthly, … a parent with parental responsibility may remove the child from accommodation provided or arranged by a local authority at any time. There is no need to give notice in writing, or otherwise. The only caveat…is the right of anyone to take necessary steps to protect a person, including a child, from being physically harmed by another…
Legal restrictions
“Seventhly, the right to object … and right to remove … are qualified … (if there are) court orders which have determined with whom a child is to live… (such as a special guardianship order). These orders restrict the parents’ exercise of parental responsibility…
Children aged 16+
“Eighthly, section 20 makes special provision for children who have reached 16. In addition to the general duty … there is a duty … to provide accommodation for any child in need who has reached 16 and whose welfare will be seriously prejudiced if this is not done; and…to accommodate anyone who has reached 16 but is under 21 in a community home which caters for over 16-year-olds…once an accommodated child reaches 16, a parent has no right to object or to remove the child if she is willing to be accommodated by the local authority.
Length of time
“Finally, there is nothing in section 20 to place a limit on the length of time for which a child may be accommodated. However, local authorities have a variety of duties towards the children whom they are accommodating. …Section 20 must not be used in a coercive way: if the state is to intervene compulsorily in family life, it must seek legal authority to do so. Thus although it is not a breach of section 20 to keep a child in accommodation for a long period without bringing care proceedings, it may well be a breach of other duties under the Act and Regulations or unreasonable in public law terms. In some cases there may be breaches of the child’s or the parents’ right under article 8 of the ECHR.”
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.
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