SCOPE OF THIS CHAPTER
The chapter summarises the key steps that must be taken in deciding that a child should become Looked After.RELATED CHAPTER
In October 2018, additional information was added into Section 1.1, Section 20 Accommodation in line with recent case-law.
Timely assessments will incorporate consideration of providing support to the family and or extended family to bolster their abilities to continue safely caring for the child.
Research clearly indicates that the outcomes for those children who become Looked After are significantly poorer than those who remain in their family of origin. It is therefore important that all attempts to exhaust the local authority duties, under Section 17 Children Act 1989, to promote & safeguard the welfare of children within their family are made.
Any decision to commence Care Proceedings, must take account of the Public Law Outline (see Care and Supervision Proceedings and the Public Law Outline Procedure) and assessments will consider.
Assessments will consider:
Consideration should be given to convening a Family Group Conference and or using mediation and support services.
If a children's social care assessment has not been completed or it is not up to date, a children's social care assessment must be completed (see Section 47 Enquiries Guidance). If approval is given, the Social Worker should complete a Fostering Profile for the child, see Placements in Foster Care Procedure.
In the case of siblings, wherever it is in the best interests of each individual child, they should be placed together. Where they cannot be placed together, they must be supported to understand why they cannot live together, and there should be robust plans for contact between them, so far as this is consistent with their welfare.
The Nominated Officer - must approve any change of placement affecting a child in Key Stage 4, except in an emergency / where the placement is terminated because of an immediate risk of serious harm to the child or to protect others from serious injury.
A plan for a child to become looked after must be approved by the Legal Gateway Meeting.
There are many scenarios in which Section 20 is used positively and these include situations of family support (e.g. Short Breaks Procedure) and situations 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 borne in mind that the local authority does not have Parental Responsibility, and only the parents / those carers with Parental Responsibility can make decisions for the child. The parent / carer with Parental Responsibility can remove the child from Accommodation at any time (Section 20(8)) and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court. A number of court cases have confirmed that a local authority failing to permit a parent to remove a child in circumstances within Section 20(8) acts unlawfully. (See Herefordshire Council v AB  EWFC 10 rtf). (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.
A recent Court of Appeal hearing (L B Hackney v Williams & Anor  EWCA Civ 26) confirmed that 'Consent' under any of the Section 20 provisions was not a statutory requirement as such. It stated that the local authority has a duty to provide accommodation for children, (subject to a parent being able to legally object and / or remove) where the person who had been caring for them was 'prevented (whether or not permanently and for whatever reason) from providing them with suitable accommodation or care'.
This, therefore, supports the local authority in its duties towards children on those occasions where 'parental consent' cannot, for a variety of reasons, be obtained at the time of a child's accommodation or parents cannot effect care of the child themselves.
Nevertheless, with regard to previous court judgments on 'consent', the Court reflected that they were, 'in short, good practice guidance and a description of the process that the family court expects to be followed'.
Therefore obtaining Parental Consent as a matter of good practice remains an essential 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):
Whether a person has capacity can be difficult to determine, as some individuals with 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: that the High Court in Re S (Child as parent: Adoption: Consent) made clear that parental Capacity to consent to a child being accommodated under S.20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific.
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:
High Court Judgements have considered that in circumstances where the threshold criteria (for Care / Supervision Orders) under Section 31 Children Act 1989 are met, (i.e. where a child is at risk of significant harm, or the likelihood of significant harm), then care proceedings should be issued without delay.Nevertheless, 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. The ADCS / Cafcass Practice Guidance for the Use of Section 20 seeks to clarify good practice in this area.
Even where a parent / carer's legal adviser 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.
(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.
Where a decision is made to look after a child, the child must have a Child / Young Person's Plan. In guidance, the plan for a looked after child or young person is referred to as the Care Plan.
One of the key functions of the Child / Young Person's Plan is to ensure that each child has a Permanence Plan by the time of the second Looked After Child Review.
The child's Social Worker is responsible for drawing up and updating the Child / Young Person's Plan It should include the wishes and feelings of the following about the arrangements and about any proposed changes to the Child / Young Person's Plan of the following:
The Child / Young Person's Plan should include:
In addition, it should include the arrangements made to meet the child's needs in relation to:
The Child / Young Person's Plan should include the name of the Independent Reviewing Officer (IRO).
Note: The Care Plan must identify if there is reason to believe that the child is a victim of trafficking, or is an unaccompanied asylum seeker and has applied for, or intends to apply for, asylum.
The Child / Young Person's Plan must be drawn up as soon as the need for the child to be Looked After has been identified. It should be completed prior to the child's first placement in accordance with the outcome of the Planning Meeting.
If there are exceptional reasons that prevent the Child / Young Person's Plan from being drawn up prior to the child's placement, the key objectives of the child's proposed placement must still be identified and recorded. If satisfied, the Manager can then approve that the Child / Young Person's Plan is drawn up within a maximum of 10 working days of the Child / Young Person's Plan placement.
Any Child / Young Person's Plan taken before the Court within Care Proceedings must be endorsed and signed by the Social Worker's Manager.
All other Child / Young Person's Plans must be endorsed and signed by the Social Worker's Manager.
The Child / Young Person's Plan can be updated by the Social Worker, with the Manager's approval, at any time.
The Child / Young Person's Plan is subject to scrutiny at each Looked After Child Review.
The Child / Young Person's Plan must be circulated to the following people:
The Placement Plan must be drawn up outlining the arrangements for looking after the child.
Part 1 of the Placement Plan must be drawn up by the social worker with the child's family or someone with Parental Responsibility for the child before the child is placed. Placement Plan Part 1 forms the profile of the child and what is needed from a foster placement or children's home for that child. It will also have the Consent to Accommodate (Section 20) and the Medical Consent that must be signed by someone with Parental Responsibility prior to a child coming into the care of the Local Authority. If it is not reasonably practicable to hold a Planning Meeting prior to a child coming into the care of the Local Authority then it should be held within 5 working days of the start of the placement, and forms part of the overarching Child / Young Person's Plan.Placement Plan Part 2 is how the child, their parents / person with Parental Responsibility, the social workers and the carers will look after the child and for how long. It will allow carers to exercise delegated authority for some aspects of the care of the child, such as dental appointments, haircuts or school trips.
Information to be included in the plan:
Where the child is placed on a planned basis, the plan should be completed fully, with copies circulated to the child, parent(s), carers / children's home and other significant people / agencies including the child's IRO.
If the child is placed out of hours or on an unplanned basis, it may not be possible to fully complete the Placement Plan. In these circumstances, as much of the plan should be completed as possible. As a minimum, the following should be recorded:
The child's social worker will notify the 'Events Team' of the child's placement. Events then notify the child's IRO, the LAC Health Team, the host authority if the child is placed out of the Hull area. The social worker should also notify the relevant local Targeted Services (if the placement is in the area of a different local authority) and the child's GP.
The education service in Hull has access to their own reports that inform them of a newly Looked After Child.
The child's social worker will notify all family members consulted and involved in the decision-making process of the placement.
The child's social worker should also notify - preferably in writing but it may be verbally - all those involved in the day to day arrangements for the child, including nursery / school and any health professional or YOT worker actively involved with the child.
The notifications should be made before the start of the placement or within 5 working days.
Under the Care Planning, Placement and Review Regulations 2010, there are specific requirements in relation to Placements out of Area which apply except where the placement is with a Connected Person, or a local authority foster carer approved by the placing authority. The requirements are that the placement must be approved by the Nominated Officer - (Assistant Head of Service), who must be satisfied of the following:
In the case of a placement made in an emergency, the Nominated Officer must be satisfied that the child's wishes and feelings have been ascertained and given due consideration, and must take steps to ensure that within 5 working days: the IRO has been informed; relatives have been consulted (where appropriate) and the area authority notified.
The Social Worker should additionally complete or update the following records immediately or within specified timescales:
Only valid for 48hrs