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Vardags Family Law Essay competition 2023/24 | Ben Holder

Ben Holder - University of Reading

Use of s.20 by Local Authorities: a misuse and abuse of legislative provisions and State power? Or a strategy of unfortunate convenience for maintaining child welfare duties in contemporary Britain?

The use of s.20 of the Children Act 1989 by Local Authorities (LA) has provided fertile ground for judicial and academic criticism. With many members of academia and the judiciary contending that s.20 is being used by LAs as a cheaper coercive mechanism to remove children circumventing judicial supervision through so-called voluntary arrangements. Furthermore, LAs are purportedly using the in need status of children under s.20 as a full-service for satisfying child welfare obligations or using it as a prelude for care proceedings. It is the submission of this essay, however, that such criticism of LA use of s.20 while justified, reflects the far from perfect circumstances LAs and social workers (SW) find themselves in, often with existential pressures leading to the misuse of legislative provisions in the pursuit of child welfare.

Convincingly, academic consensus points to the need for better funding in legally aided family justice at the s.20 pre-proceedings stage which would realistically and largely address its present misuse. As well as pointing to reduced LA budgets which has led to concerning developments and practises within LAs childrens services. This is of vital importance as s.20 concerns a voluntary arrangement between the parents and the LA, however, criticism largely pertains to this no longer being the case. It is the intention of this essay to draw upon pressures and challenges faced by local government such as fiscal constraint as well as the unavailability of legal aid for parents, and an absence of court oversight, which has resulted in the emergence of controversial practises in cases concerning s.20.

Consent; Capacity, Power Imbalances, and Confusion –

Munby P in N made a number of important findings which broadly encapsulated the plethora of judicial criticism that has been levied at LA use of s.20. The first of these is an issue with consent. This is particularly concerning because at the heart of s.20 is the idea of partnership and parental consent to LA involvement. However, lawyers observe that parents can be pressured into agreeing to s.20 arrangements and are often confused about their rights, thus vitiating parental consent in the LA-parent relationship. This not only demonstrates that statutory intervention by LAs presents a power imbalance, but additionally, an inescapable product inherent in the framing of the Children Act 1989 and so not only speaks to a problem of good practice in the LA-parent relationship, but also the practicalities of the legislation.

The issue of capacious consent was distinctly dealt with by Hedleys J judicial guidance where he declared SW should have regard to the current physical and psychological state of the parent. However, despite this guidance the recurrence of dubious capacity acted upon by LAs in s.20 cases continues to concern the judiciary. As Lady Hale remarked, the separation of a baby shortly after birth in the absence of a care order or s.46 police powers in circumstances where it is questionable whether the delegation was truly voluntary, raised concerning questions about parental consent. However, it is important to contextualise why such judicial criticism has emerged. In 2020, the Department for Education found that 58% of SW felt overworked and 60% felt stressed due to bureaucratic pressures. With the dilemma faced by LAs where something must be done to look after the child, but doubts remain about the parents capacity to consent, combined with considerable work-based and financial strain, s.20 has been exploited as a way to cut down on work and softly coerce parents into agreeing to the voluntary arrangement in dubious circumstances in the name of child welfare. This demonstrates that the inability to build relationships with parents enshrined in Part III, is due to systemic funding challenges and work pressures on SWs which has blurred the boundary between family support and coercive intervention. The use of s.20 to manage risk, as seen in Williams where there are child protection concerns, reduced the need for reports and assessments to be examined in court proceedings, thereby reducing work required by a Care Order by exploiting s.20 as a less work-intensive and economical option.

With the minimum intervention principle enshrined in s.1(5), a pro-LA view would emphasise that use of s.20 by the LA is legally sound in principle as the LA is obligated to make no unnecessary order. Essentially, the LA is responsible for the childs welfare according to the paramountcy principle, but must do so in the least intrusive way possible, always seeking to work in partnership with parents as societal consensus is that children are raised best in their families.12 Use of s.20 perhaps demonstrates an attempt at this with statutory controls on the exercise of LA power, at least in theory, the practicalities of constrained budgets and inherent power imbalances skew the intentions away from this. Nevertheless, criticism made by Munby P and Lady Hale in identifying a lack of true parental consent in s.20 arrangements is patently justified as under current practise parents are subject to the coercive arm of the State with piecemeal statutory protection. Present practise is so egregious as fundamental tenet of s.20 is a voluntary arrangement between the LA and the parents, such derogation exemplified by case law constitutes an interference with the basic rights of parents. Only so much faith can be had in s.1(5) and s.1(1) which offer statutory limitations on the power of the State, the LA must comply with judicial direction in child welfare matters despite considerable existential pressures. Their actions undermine the intention of the Children Act 1989 tantamount to misuse and abuse and is especially concerning where there is a lack of parental capacity when entering the agreement.

The imbalance of power between LAs and parents is often another way in which consent is vitiated in the s.20 arrangements. An imbalance of power between the LA and the parents has emerged as a result of social factors and the statutory powers possessed by the LA. Families in deprived and working-class neighbourhoods have a particular experience of interventionist practise. Therefore, cooperation with the LA is prudent, and many experienced family solicitors acting for parents advise that cooperation is the best course of action as seen by the advice provided in Williams. This is because s.20 is a partnership between the LA and the parents; if the LA do not believe that cooperation with the parents is viable then more interventionist provisions like care proceedings may be initiated to remove the child. The criticism levied at LAs regarding questionable consent must be viewed in light of cuts to legal aid. As a result, parents feel pushed into agreeing with the LA in what is meant to be a voluntary arrangement and as such its use could be an interference in family life. While Lynch submits that with free legal representation for parents, vital for those of lower financial means, would ensure they are informed of their rights and better placed to challenge the LA, the importance to appear cooperative fuels the limited impact challenging s.20 arrangements with legal advice has.

Judicial criticism around the validity of consent is justified as parents with or without legal representation either feel pushed into agreeing to a so-called voluntary agreement or are advised to do so anyway by their lawyers, as cooperation is the best course of action. This exemplifies how the relationship between the individual and the State enshrined in statute as being fundamentally cooperative and consensual is diminished as the abilities to challenge and refuse LA involvement is curtailed by the powers afforded to LAs by the Act. Legal aid is a fundamental part of checks and balances between the State and private individuals and ensuring parents understand their rights in relation to the State is a vital part of ensuring consent is not vitiated by coercion and power, especially if parents are of lower social class or have other individual challenges. However, it can only be accepted in part that making legal aid available to the parents would address the existing power imbalance, as cooperation is often the best way to preclude further intensified LA involvement in the family. What is clear is that consent cannot be genuine when it is influenced by the looming threat of compulsory LA intervention whether the parents are represented or not. The availability of legal aid will ensure parents are supported and that LAs could face challenge but is unlikely to make much difference in redressing the present imbalance in s.20 arrangements. Judicial criticism is justified but speaks not to a misuse of s.20 by the LA but rather the effects of systemic underfunding in family justice and childrens services. The absence of such vital provision places LAs in a difficult position in ensuring parents are treated fairly while sustaining child welfare duties.

Section 20 arrangements continue for far too long and reluctance to return children – LAs have come under strong judicial criticism for allowing s.20 arrangements to continue for too long. However, Munby P acknowledged that s.20 could, in the right circumstances, be a good long-term measure, as long-term use can be advantageous to struggling parents to provide an opportunity for respite. The issue is with the use of s.20 as a prelude to care proceedings which for long periods of time is wholly unacceptable. This is because some children are left to languish in s.20 arrangements where there are clear grounds for care proceedings to be initiated, bringing obvious advantages such as a care plan which provides focussed support for the child and their interests are safeguarded by a guardian ad litem in compliance with s.1(3) Children Act 1989. Furthermore, LAs have been reluctant to return children in s.20 accommodation despite not taking any further action such as care proceedings and despite the arrangements being extinguished by the parents.

However, in light of the paramountcy principle (s.1(1) Children Act 1989) and the realities of LA work, one would be misguided to perceive malice on the part LA in their use of s.20 as an easier way to ensure compliance with child welfare responsibilities. Rather, the situation is the inevitable issue with funding cuts, meaning LAs with such duties are forced to cut corners. The use of s.20 reveals the pressures, delays, and additional work required to resolve matters through the courts. LAs struggle to do this with limited resources and the far from perfect conditions SWs operate in, often with limited contact with the family due to large caseloads and low staffing, according to the DfE in 2021-2022 there was a 9% increase in numbers leaving the profession. Masson further points out that LA use of s.20 is reflected by the difficulty they have in satisfying the high statutory thresholds imposed and the copious work required for removing children. Leaving children in s.20 arrangements is a convenient way for LAs to by-pass legal safeguards provided by the courts and gives rise to the misuse of statutory powers.

Given the difficult circumstances SWs find themselves in, there is often a conflict between ensuring child protection duties are complied with and ensuring it is done within the law. It is clear that the present situation causes these considerations to collide far more regularly than otherwise would be the case. It is easier for SWs with limited time and resources to voluntarily accommodate a child under s.20 where there are concerns over the childs welfare but limited capabilities to investigate and take further necessary action, a form of pre- emptive damage control has thus emerged. However, it must be pointed out that some academics, like Martha Cover, point to constrained budgets in LAs as self-inflicted and signifying poor fiscal management and bureaucratic burdens. The prolonged use of s.20 as a substitute for initiating care proceedings results in parents being unable to obtain legal aid, parents are unclear as to how long the arrangement will continue for, and with no court oversight s.20 arrangements provide a concerning evasion for LAs from the scrutiny inherent in s.31 proceedings. A lack of court oversight of s.20 arrangements is exceptionally concerning as parents lack independent judicial protections in their interactions with the State. The lack of court oversight speaks to the voluntary and consensual nature of s.20, however, its use as a coercive tool makes parents vulnerable and concerningly allows children to drift in care. Be that as it may, with wider issues facing LAs, s.20 provides a convenient alternative to satisfy child welfare obligations without navigating extensive and delayed court processes.

Nevertheless, while use of s.20 can be attributed to a lack of public funding and a cheaper, less time-consuming option for meeting child welfare obligations, it is hard to conceive that its use as a prelude or substitute to care proceedings is done with the Paramountcy Principle as a central consideration. Rather, it seems to reflect maintaining child welfare obligations in the short-term due to the financially constrained and challenging environment, as opposed to using s.20 effectively in the long-term for the child concerned.

Conclusion 

A lack of funding to family law justice and LAs has led to the current concerns enunciated about the use of s.20. LA budgets have declined and as such practises too have declined to reflect this, with the misuse of legislative provisions to meet the LAs ever-increasing duties. Lack of funding for legal aid in family cases at the pre-proceedings stage and a lack of court oversight has led to the inequality of arms and imbalance of power between parents and LAs. It is submitted that, funding to family justice would largely rectify these issues, however its impact is limited in areas because of statutory powers afforded to the LA create an inherent power imbalance. As such, criticism of LA use of s.20 is justified, however, it must be viewed in light of limited budgets for child welfare and extensive obligations on LAs. It would appear that presently s.20 has simply become a conduit through which LAs can balance the pressures they face and continue to protect child welfare in their locality.

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Bibliography

Primary sources

Authorities

Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987

Herefordshire Council v AB [2018] EWFC 10, [2018] Fam Law 675

HXA v Surrey County Council, YXA (a protected party by his litigation friend the Official Solicitor) v Wolverhampton City Council [2022] EWCA Civ 1196, [2023] 1 WLR 116

Re N (Children) [2015] EWCA Civ 1112, [2016] 1 All ER 1086

R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668

Re S and Re W (A Child: s.20 Accommodation) [2023] EWCA Civ 1, [2023] 2 FLR 302

Re W (Children)[2014] EWCA Civ 1065, [2014] Fam Law 1394

Williams and another v. London Borough of Hackney [2017] EWCA Civ 26, [2018] UKSC 37

Statue

Children Act 1989

Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO)

Studies

Department for Education Childrens Social Work Workforce Census, (2022)

Department for Education published Impact of the Family Justice Reforms on Front-Line Practice: The Public Law Outline, (2015)

Graham Atkins, Stuart Hoddinot, Local Government Funding in England (Institute for Government 10th March 2020)

Robert Preston, Growing majority of childrens social workers feeling stressed and

overworked, finds DfE study, (Community Care, 26th July 2021)

Secondary sources Journals

Brid Featherstone, Kate Morris, Brigid Daniel et al. Poverty, Inequalities, Child Abuse, and Neglect: changing the conversation across the UK in child protection? [2019] Children and Youth Services Review

Caroline Lynch, Cooperation or coercion? Children coming into the care system under s.20 voluntary arrangements, [2018] Fam Law 191

Conor OMahony, Rebekah Brennan and Kenneth Burns, Informed consent and parental rights in voluntary care agreements, [2020] CFLQ 373

Joan Connell & Tatiana Rocha Putting parents on a level playing field: when is s 20 appropriate for the long-term care of a child? [2023] Family Law 415

Judith Masson, Questioning the use of s.20, Family Law Week (2015) 48 http://www.familylawweek.co.uk/site.aspx?i=ed151621

Judith Masson, Thinking about contact – a social or a legal problem?, [2000] CFLQ 15. Judith Masson, Understanding the current use of s 20 [2018] Family Law 1289

Laura Slater & Chris Barton, Its voluntary! Accommodation under s 20 of the Children Act 1989, [2016] Family Law 1141

Margaret Parr, Pre-Proceedings and s.20 of the Children Act 1989, [2020] Fam Law 208. Martha Cover, Is the legal tail wagging the social work dog? [2022] Fam Law 395 Penelope Welbourne, Parents and childrens rights and good practice: s.20 [2017] Fam Law 80

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