Local authorities are in an unenviable situation where it is clear that care proceedings should not be rushed into but that children are in need of protection. As Lady Hale puts it:
"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"
It is particularly tempting for section 20 agreements to be relied upon during the current COVID-19 crisis where it is more difficult to undertake unannounced visits, provide support and at times, obtain an urgent listing for a case. Nevertheless, section 20 agreements under the Children Act 1989 should not be used as a long-standing measure and the agreements should be approached cautiously.
Every parent has the right to consent, if they have the capacity to do so, to a section 20 agreement. Every social worker is under a personal duty to be satisfied that the person giving the consent has the capacity to do so.
Where there are doubts about whether a parent has the capacity to consent to a section 20 agreement and there are concerns that a child has suffered or would be at risk of suffering significant harm, such agreements should not be used and proceedings should be issued.
What is a section 20 agreement?
A section 20 agreement is an agreement between the local authority and the parent(s) of a child for that child to be accommodated. The local authority will fulfill certain obligations in return. This can be a temporary arrangement to allow for respite care or to allow the parents time to make changes and work with the local authority for the child(ren) to be returned.
A section 20 agreement should be a shared agreement between a parent and a local authority. The local authority’s commitments will be case dependent and could, for example, include referrals to parenting classes or referrals to resources for victims of domestic violence.
Importantly, a section 20 agreement does not give the local authority parental responsibility. Where there are concerns about a parent’s ability to exercise parental responsibility, consideration should be given to whether there is a need for the local authority or a family member to share parental responsibility. If there is such a need, proceedings should be issued.
At all times, parents have the right to withdraw their consent to a section 20 agreement. Should they do so, the child should be returned to the parents immediately under section 20(8).
The making of a section 20 agreement shortly post-birth
The case law is clear that section 20 agreements should be used sparingly post-birth and only for short periods. Local authorities are warned to take particular care when obtaining such agreements from mothers in the aftermath of birth, particularly where there is no immediate danger to the child and where no order is likely to be made (Coventry Council v C and others  EWHC 2190 (Fam)).
In Medway Council v M & T  EWFC B164, HHJ Lazarus envisaged that there may be some delay in emergency situations in order to review a parent’s progress in the hospital in the event that their ability to care for a child may return before proceedings can be issued. The court made clear that such a period should be less than 72 hours
A parent's capacity to consent
Section 20 agreements should be used only where the parent clearly has the capacity to give consent.
Social workers should identify any capacity issues early on. Consent to a child’s accommodation under section 20 of the Children Act 1989 is unlikely to be valid if there are capacity issues. Mental capacity can fluctuate, and the question of capacity should be closely monitored and reviewed.
The local authority also has a duty to consider whether the parent is eligible for adult social care services. When a social worker considers that a parent may have learning disabilities, they should make a referral to the relevant social care team to assess the parent for potential services.
Where a parent has been found to have lacked the capacity to give consent and a section 20 agreement entered into any event, parents have successfully brought human rights claims resulting in the award of significant damages. For example, in H (A child: Breach of Convention Rights: Damages)  EWFC 38, two parents with learning difficulties were awarded £6000 each for breach of their human rights after the child was improperly kept in section 20 accommodation for a year.
The duration of a section 20 agreement
There is no time limit on how long a section 20 agreement can last. However, the courts have been critical when agreements have been considered to have gone on for too long.
In Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112, Munby was clear that section 20 agreements should act as a short-term measure pending the commencement of care proceedings. In this case, the court found that an eight-month agreement was a misuse by the local authority of its statutory powers and misuse in cases with an international element was particularly serious.
In Medway Council v Mother and Others  EWHC 308 (Fam), Theis J observed that the no delay principle in section 1(2) of the Children Act 1989 applies not only to the conduct of proceedings but also to the issue of proceedings.
In Williams, the Supreme Court considered that keeping a child in accommodation under section 20 for a long period may well be in breach of other duties under the act and regulations or be unreasonable in public law terms to do so. In some cases, there may also be breaches of the child’s or the parent’s rights under article 8 of the ECHR.
There are some cases where it may be appropriate for section 20 agreements to be used in the longer-term, for example when a mother has always intended for a child to be placed for adoption. However, these cases are relatively rare and local authorities should keep cases involving section 20 agreements under close review.
Questions to ask before entering into a section 20 agreement
If the answer to any of the above is no, a section 20 agreement should not be entered into. This includes whether removal from the parent’s care is necessary. In Coventry City Council, Hedley J observed that section 20 agreements should never be used to achieve accommodation when the local authority knows, believes or suspects that an interim care order would not be made.
A section 20 agreement may also not be appropriate if:
The local authority or a family member needs to share parental responsibility in the interests of the child’s welfare. If this is the case, proceedings should be issued to enable the appropriate court orders to be sought.
Support or safeguards can be put in place to reduce the risk of harm.
The parent could care for the child in a placement (foster or residential). Although not an arrangement that will assess how a parent can care for a child in the community, it is particularly important to explore this as an option when considering the care of young children.
There are factual issues to be determined. Where it is highly likely that proceedings will be required to determine a factual issue, proceedings should be issued as soon as possible (Re: U (a child)  EWCA Civ 1022).
Section 20 agreements can be a powerful tool and one which relieves pressure on the court system when used properly. As the Guardian recently reported, it appears that care cases are increasing, even in lockdown. Section 20 agreements can also avoid the need for contested hearings and allow a local authority to continue care planning up until a final hearing. However, these agreements should be treated with extreme caution particularly in cases involving vulnerable persons and mothers who have recently given birth.
As made clear in Williams, as a matter of best 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. This may include information about the local authority’s power (and duty) to bring proceedings if they have reasonable grounds to believe that the child is at risk of significant harm if they do not.
A prudent local authority should, in addition to answering the above questions, ensure that section 20 agreements are:
In writing and signed;
Clear, precise and in straight forward language that a parent can readily understand;
Include that a parent can remove the child from the local authority’s care at any time; and
Where a parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign that document confirming in writing that they have read and understood it.
Sophia Stapleton is a barrister at 2 Dr Johnson's Buildings specialising in family, criminal and education law.