“In March 2017 local authorities in England were looking after 72,670 children, a figure which has been rising steadily for the past nine years. They do so either as part of a range of services provided for children in need or under a variety of powers to intervene compulsorily in the family to protect children from harm. 50,470 of those 72,670 children were the subject of care orders, up 10% from the previous year; 16,470 were accommodated without any court order; the balance were subject to various other compulsory powers. In practice, the distinction between these categories is not always clear cut. Some accommodated children in need may also be at risk of harm if they are left at or returned home. In law, however, the distinction is clear. Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not. This case is about the limits of a local authority’s powers and duties to provide accommodation for children in need undersection 20 of the Children Act 1989 (“the 1989 Act”) without the sanction of a court order….”
“[The] cases illustrate a number of problems with the use of section 20: separation of a baby from the mother at or shortly after birth without police protection or a court order, where she has not delegated the exercise of her parental responsibility to the local authority or been given in circumstances where it is questionable whether the delegation was truly voluntary; retention of a child in local authority accommodation after one or both parents have indicated a desire to care for the child or even formally asked for his return; and a lack of action where the perception is that the parents do not object to the accommodation, even though this means that no constructive planning for the child’s future takes place. They also illustrate the dilemma posed to the local authority: something has to be done to look after the child but there are serious doubts about whether the parent can validly delegate the exercise of her responsibility. Equally, they illustrate the dangers if the local authority proceed without such delegation or obtain it in circumstances where the parents feel that they have little choice. There are none of the safeguards and protections for both the child and the parents which attend the compulsory procedures under the Act. Yet, rushing unnecessarily into compulsory procedures when there is still scope for a partnership approach may escalate matters in a way which makes reuniting the family more rather than less difficult.”
“The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority. The use of the provisions ofs.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most. The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children's guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.”
"The first issue relates to the use by the local authority, in my judgment the misuse by the local authority, of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013. Yet it was not until January 2014, over eight months later, that the local authority eventually issued care 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 use of section 20, as a prelude to care proceedings for a period as long as here, is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.” As I said in Re: A (a Child) in Darlington Borough Council v M[2015] EWFC 11 , paragraph 100: "
“Thus, although the object of section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term. There are bound to be cases where that should include consideration of whether or not the authority should seek to take parental responsibility for an accommodated child by applying for a care order. Good examples are Medway Council v M and T (para 31 above), where the mother suffered from long term mental health problems and was not meeting her parental responsibility, so it was necessary for someone to do so; and Herefordshire Council v EF and GH (above, para 33), where it was recognised as soon as the mother and baby foster placement of GH and his 14-year-old mother broke down that care proceedings should be brought, but this did not happen until he was nine years old. Care proceedings have obvious advantages for the child. They involve a rigorous scrutiny of the risk of harm to her health and development if an order is not made, of the assessment of her needs and of the plans for her future. Her interests are safeguarded by an expert children’s guardian. If an order is made, it means that the local authority have parental responsibility for her and can put their plans into effect. But, as pointed out by Judge Rowe QC in In re AS (para 30 above) there are also advantages for the parents and for the wider family. The parents are entitled to legal aid. Their rights are safeguarded in the proceedings. Even if a care order is made, the court may make orders about their continued contact with the child. Hence it is scarcely surprising that the President and other judges have deplored the delay in bringing care proceedings in cases where it was obvious that they should have been brought. 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 to do so. In some cases there may also be breaches of the child’s or the parents’ rights underarticle 8 of ECHR .”
“In respect of both EF and GH, there were repeated occasions over very many years when it was accepted that legal advice should be sought and/or that care proceedings should be issued. Notwithstanding the close scrutiny which has been undertaken by senior managers of the local authority and by the director, it has still not been possible to explain why these decisions were not put into action. It is extremely concerning that when this local authority recognised, as it did on repeated occasions, that it was not acting in the welfare best interests of either these children, it did nothing. The complete inertia is inexplicable. Such gross failings by a local authority are intolerable. EF and GH were denied a voice in the determination of their future care. The same may be said about their parents. The boys were both denied the opportunity for clear and focussed planning about their respective futures to be undertaken and for the same to be endorsed by a court. The early issue of care proceedings would have enabled a decision to be made about their legal status and their future in a structured and timelimited manner.”
“[AA] became accommodated under section 20 arrangement on the 2nd of November 2010. Prior to him being accommodated he was made subject of a child protection plan. He has had 2 IROs during his care Journey; Gordon Robertson was AA’s IRO from November 2010 – October 2011. Jenny Peel became AA’s IRO in 2011 until the present date. [AA] has had approximately 22 social workers and several Team managers throughout his period in care. Initially the care plan was that [AA] be placed in foster care short term for 4 weeks with a care plan for reunification subject to the social worker completing an assessment. As outlined in his review Chaired by Gordon Robertson In February 2011 the IRO noted the assessment by the social worker was still not complete and no care proceedings had been initiated, this remained the position in July 2011. At the next Looked after review in January 2012 he had a change in IRO to Jenny Peel where it was recorded “threshold for proceedings not met” and confirmed section 20 was the appropriate care plan for [AA]. Then recommendations were detailed but set a time scale until the next review 6 months later for the Social worker to compete her assessment, there is no evidence on the file of IRO footprint between reviews. At the subsequent review in June 2012 [AA] had been placed with his carers for 19 months and was thriving and was very happy and well cared for, there was discussion around the care plan changing from short term to long term fostering still under a sect 20 arrangement The next review in December 2012 the IRO endorsed the care plan that [AA] remain in long term foster under a section 20 arrangement and the contact with his Mother and brothers had lapsed. In April 2013 Mother became ill and was in hospital and the carers wanted to apply for an SGO, legal raised concerns that Mother was the only PR holder and the Local authority may need to consider making an application for a care order. In June 2013 at [AA]’s next review it is noted that contact has not been re-established with his Mother or siblings and [AA] remains cared for under a section 20 arrangement. Mothers health is significantly deteriorating. In October 2013 the IRO Jenny Peel did send an email highlighting her significant concerns re drift and delay in initiating care proceedings and it was noted that the carers for [AA] wanted to move to Cheshire with him, Jenny again requested an urgent legal planning meeting be convened. In March 2014 Mother reluctantly signed a written agreement for [AA] and his foster carers to move to Cheshire and he moved to Cheshire in June 2014 still subject to section 20. Each subsequent 6 x monthly looked after review stated legal status and care plan remain unchanged SGO issue remains unresolved. January 2017 [AA]’s Mother died. The looked After Review In May 2017 regarding the issue of obtaining PR for [AA] was escalated but the advice from senior managers in November 2011 was that the threshold for a care order was not met as he wasn’t suffering significant harm and foster carers were applying for an SGO. Reviewing this file it is evident there has been significant drift and delay in progressing [AA]’s care plan from all involved in [AA]’s case. The use of section 20 agreement with [AA]’s Mother remained in place throughout the whole of his journey in care even after her death which is clearly unacceptable. Contact with his birth family ended in 2015 and I can see no clear rationale as to why. There has been significant learning for the IRO service regarding this matter as outlined below. - There was no evidence of the IRO foot print on the file, between 6 monthly reviews, there was no escalation regarding the significant drift and delay in this matter. - No monitoring and tracking evident from the IRO between reviews. - SGO matter not progressed - No evidence of the independence of the IRO - No challenge regarding the care plan. - Overreliance on working agreements”
“My analysis of the case decision making identifies five key areas of concern that have impacted on effective good quality and timely care planning for [AA]. Child Led Assessments : I believe that mother's ill health and personal needs impacted on the social work thinking and that this led assessments to be parent-led and not child-led. Mother had not "harmed" [AA] and had significant needs herself. She continued to care for two children when [AA] left the household and she maintained throughout her emotional attachment to [AA] and wish to care for him. This combination of factors I believe influenced the Social Worker's thinking when planning for permanency. Start Again syndrome. The changes of social worker and transition between teams led to repeated assessments of what was the best long term care arrangement for [AA]. Reactive Case Management . It is clear that any real action in the case has been a "reaction" to an event rather than any planned pro action. Events include Mother's challenge to withdraw her S20 consent, Mother deterioration of health and subsequent death, Foster Carer challenge / request for SGO and House move. [AA] was seen as "safe and well". This had been monitored regularly through his LAC reviews. Whilst I acknowledge that this fails to recognise the emotional impact on [AA] and his need for emotional security and stability in a permanent legal status with parents acting with Parental responsibility, this fact will have impacted on the prioritisation of his case within the priorities of other cases held in the team. Non Reflective Learning Organisation. As an organisation we have been delayed in reflecting and learning from advice and instruction on the appropriateness of S20 as a care status. This has been addressed through legal training for social workers, IROs and legal services and through new management and leadership. Whole service failure. The case was held from 2010 until the present date. The poor quality of service through this time period is well evidenced by the Ofsted Safeguarding Inspection of October 2016. The "widespread and serious failures" identified not only led to an “inadequate” judgment but to the appointment of a Commissioner and a direction for an Alternative Delivery Model to be established. This latter action has been implemented against authorities identified to have had poor services for five years or more. Whilst a comprehensive service improvement plan has been in place since Ofsted’s report there was no "quick fix" to the longstanding and entrenched problems within the service. High caseloads, poor quality leadership and management and significant challenges in staff recruitment and retention all being key factors of concern. In conclusion, I am sorry to say the case of [AA] reflects practice at the time. Whilst I am satisfied the service assured itself of [AA]'s safety and quality of care it appears that these assurances led to a de-prioritisation of proactive action by the LA to secure any permanency plan for [AA]. There was a lack of understanding about the use of S20 and most importantly about the negative impact for [AA] in not having his long term care arrangement assured. The case has been subject to internal review, review through court proceedings and review through the Local Government Ombudsman. All these process have identified learning for my service and will be shared and incorporated into our continued service improvement work.”
“During this assessment [AA] presented as a complex but polite young man, eager to please, who is slowly recovering from an horrendous start to life. While the precise nature of the experiences and circumstances of his first five years will not be known, there is strong evidence to indicate that [AA] was either exposed to, or in close proximity to many conditions and factors which are harmful to children and which are associated with negative life outcomes: - variable availability of his principal attachment figure at the time (his birth mother) – material, psychological, emotional - developmental delays (e.g. speech and language; motor skills) - parental mental health difficulties - destructive family dynamics - family history of learning difficulties - adult drug use - domestic violence - severe physical / emotional abuse. Eight years since being taken into care there continue to be signs of the trauma [AA] will have experienced in those early years. He can regress quickly from a state in which he presents one minute as functioning in a broadly age-appropriate manner, to the next minute in which he can behave in an almost infantile state. [AA] continues to be a very frightened young man whose functioning can deteriorate by several years, more specifically when encountering: - separation from his carers – his parents – Mr. and Mrs. [C] - change from established routine - threatening or even just boisterous behaviour - toileting - loud noises - washing machines - stairs. [AA] is now exhibiting many fine qualities, however, for example, during individual work he demonstrated a lovely sense of humour, an enjoyment of interaction and a potential for learning. His progress in these respects is due largely to the almost heroic commitment of Mr. and Mrs. [C] who have dedicated their lives to [AA] without consideration for their own wellbeing. Throughout his eight years with the [C]s, [AA] has become accustomed to a total parental involvement in his life that far exceeds the usual expectations of most 13 year olds. For example, the parents still have to assist [AA] in meeting a range of his most basic needs, such as crossing the road, going to the toilet and a range of other self-help and self-care activities. [AA] is by choice often house-bound and currently unable to function in the world without support. Whenever anything is demanded which takes him out of a very limited comfort zone (even simple changes) [AA] can resort to various emotional holding behaviours such as rocking or humming although thankfully there is no evidence to suggest that he is currently self-harming in the manner described previously in documentation i.e. by banging his head on the floor. So, while there has been significant progress across virtually all areas, [AA]’s functioning is context-specific and he will need a coordinated programme of support and development activities in order to help him safely and ethically to achieve the next stage of development. The strategy of educating [AA] in a mainstream school with support has worked but there are a number of areas in which progress needs to be made, for example, relating to his self-help skills and preparation for independent living. [AA] has become emotionally reliant solely upon his parents and while he is capable of being social in school he has not been able to extend that sociality into the community. This is not the parents’ ‘fault’ but testimony to their total and humane commitment to a young boy who has been severely abused and traumatized. The [C]s have provided the conditions in which [AA] has been able to develop strong attachments with them while at the same time ensuring that he complies with the compulsory demands of schooling. School attendance, however, is also an example of [AA]’s tendency to be overly compliant in the face of power and authority. [AA]’s progress – educational, emotional, social - was not inevitable and far worse outcomes could have been predicted. - variable availability of his principal attachment figure at the time (his birth mother) – material, psychological, emotional - developmental delays (e.g. speech and language; motor skills) - parental mental health difficulties - destructive family dynamics - family history of learning difficulties - adult drug use - domestic violence - severe physical / emotional abuse. - separation from his carers – his parents – Mr. and Mrs. [C] - change from established routine - threatening or even just boisterous behaviour - toileting - loud noises - washing machines - stairs. Having made such good progress, however, it is now time for 55. [AA] to make yet another ‘leap’ – a word used by Mrs. [C] - for that is what is required. 56. [AA] remains a highly vulnerable and often frightened young man who will need protection and support as he negotiates biological and psychological changes, potentially up to the age of 25.”
“It is noted there is some delay over the downstairs shower and toileting facilities being agreed. It has been suggested to Mr and Mrs [C] that agreement for the downstairs facilities will not be passed unless they sign the Special Guardianship Plan which is outrageous. [AA] is a child who has a deep-rooted fear of the bath owing to his early life experiences. Having to use the bath causes [AA] to become distressed to the point he requires his carers to be with him, which given his age is not something they are comfortable with and they desperately seek for him to gain independence within this area. The current Special Guardianship Support Plan only provides support up to the age of eighteen or while he remains in education. In the event [AA] does not engage with educational provisions post eighteen it is suggested by the Local Authority that financial support and services he may require will need to be paid for by the sum of money he is likely to be awarded from his ‘Human Rights Claim’. This is unacceptable, [AA] is a child who has significant difficulties as a consequence of the Local Authority failing him. The notion of suggesting he should use any compensation money to top up his care between eighteen and twenty-five is improper and raises question to the true empathy and responsibility this Local Authority hold for this particular child [AA] has been placed with Mr and Mrs [C] since 2010, living longer with them, then he has with any of his birth family. [AA] and his carers share a very special bond, the love and admiration they have for one another is just heart-warming. [AA] is an integral part of Mr and Mrs [C]’s extended family and is regarded as an established family member (particularly by their sons who view [AA] as their brother) which bodes well for his future support needs in the absence of Mr and Mrs [C]. The commitment Mr and Mrs [C] have for [AA] is exceptional. They have gone above and beyond in their role as foster carers to try and gain the best outcomes for him and whilst most people would have been exhausted by such process, Mr and Mrs [C] have just gathered more and more strength in their midst to get matters finalised correctly. I have had the benefit of reading Mr and Mrs [C]’s position statement and I fully adopt the concerns they raise which I highlight below; Funding 18-25. [AA]’s needs will not suddenly alter when he reaches 18. We are aware that there has been correspondence passing between the professionals on this point but the Local Authority are adamant that their position will not alter. On the making of an SGO [AA] may lose much of what he could have been entitled to in the future as a Looked after Child or a Child Leaving Care. We need this to be considered within the Support Plan. We can’t be expected to sign a plan that takes entitlement away from [AA], especially when considering his considerable needs. We cannot justify that risk for [AA]. Lack of inclusion of the recommendations found within interim report of therapist. Based upon speaking with Mr and Mrs [C], is clear that they are becoming more frustrated with this process and are now questioning the Special Guardianship application. Their ultimate wish is to create a future for [AA] which fully reflects, supports his needs and which enhances his quality of life. These are simple wishes which the Local Authority don’t appear to either acknowledge or indeed make provisions to support.”